Motion,Ex Parte: CAROL CHULICK ET AL VS. RILEY POWER INC.

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                                1   Khaled Taqi-Eddin, Esq.     SBN 220923
     Emily Cunningham, Esq. SBN 303905
 2   HAWKINS PARNELL & YOUNG, LLP                                              ELECTRONICALLY
     One Post Street, Suite 2400
 3   San Francisco, CA 94104                                                      FILED
                                                                              Superior Court of California,
     Telephone: (415) 766-3200                                                 County of San Francisco
 4   Facsimile: (415) 766-3250
     E-mail: ktaqi-eddin@hpylaw.com                                               09/29/2020
 5           ecunningham@hpylaw.com
                                                                               Clerk of the Court
                                                                                 BY: EDNALEEN ALEGRE
                                                                                           Deputy Clerk
 6   Attorneys for Intervenors
     MASSACHUSETTS BAY INSURANCE
 7   COMPANY, MARYLAND CASUALTY
     COMPANY AND FIREMAN’S FUND
 8   INSURANCE COMPANY
 9
                         SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
                                  FOR THE COUNTY OF SAN FRANCISCO
11

12   CAROL CHULICK, as Successor-in-Interest to         CGC-19-276757
     and as Wrongful Death Heir of JOHN
13   CHULICK, Deceased; and DEBORAH HAGEN               MASSACHUSETTS BAY INSURANCE
     and JOLEEN HAGLER, as Wrongful Death               COMPANY, MARYLAND CASUALTY
14   Heirs of JOHN CHULICK, Deceased,                   COMPANY AND FIREMAN’S FUND
                                                        INSURANCE COMPANY’S EX PARTE
15                  Plaintiffs,                         APPLICATION FOR LEAVE TO FILE
                                                        ANSWER-IN-INTERVENTION
16          vs.
17   RILEY POWER, INC., et al.,                         Hearing Date: October 1, 2020
                                                        Time:         11:00 a.m.
18                  Defendants.                         Dept.:        503
                                                        Judge:        Hon Cynthia Ming-Mei Lee
19
                                                        Action Filed: January 22, 2019
20                                                      Trial Date:   TBD
21

22          MASSACHUSETTS BAY INSURANCE COMPANY, MARYLAND CASUALTY
23   COMPANY AND FIREMAN’S FUND INSURANCE COMPANY (“INTERVENORS”), pursuant
24   to the terms of their respective insurance policies and solely in their capacities as insurers of
25   MARCONI PLASTERING COMPANY, INC. (“MARCONI PLASTERING”) hereby apply for leave
26   of court to intervene in this action by filing a Answer-in-Intervention. Thus, INTERVENORS are
27   filing this ex parte application pursuant to California Rules of Court, Rule 3.1200 et seq.
28   INTERVENORS will suffer irreparable harm if they are not allowed to intervene.
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          MASSACHUSETTS BAY INSURANCE COMPANY, MARYLAND CASUALTY COMPANY AND FIREMAN’S FUND INSURANCE
                     COMPANY’S EX PARTE APPLICATION FOR LEAVE TO FILE ANSWER-IN-INTERVENTION
     10715597v.1
 1          Good cause exists for granting this ex parte application because MARCONI PLASTERING is
 2   prohibited from defending itself in this asbestos lawsuit. This application is made pursuant to
 3   California Code of Civil Procedure section 387(a) and (b) on the grounds that INTERVENORS have
 4   a direct and immediate interest in the litigation, that the disposition of the action will impair or impede
 5   their ability to protect that interest and the intervention will not enlarge the issues before the Court.
 6   Permissive intervention is allowed when the intervening party has a direct and immediate interest in
 7   the litigation, the intervention will not enlarge the issues, and the reasons for intervention outweigh
 8   any opposition by the existing parties. (Reliance Ins. Co. v. Sup. Ct. (2000) 84 Cal.App.4th 383, 386;
 9   §387(a); Truck Ins. Exch. v. Sup. Ct. (1997) 60 Cal.App.4th 342, 346.)
10            The purpose of the INTERVENORS’ intervention is to contest MARCONI PLASTERING’s
11   alleged liability and the amount of damages, if any, alleged by Plaintiffs.            Here, MARCONI
12   PLASTERING is a suspended corporation and cannot appear in the action and cannot defend itself.
13   Since INTERVENORS agreed to pay any judgment obtained against their insured (See Ins. Code
14   §11580(b)(2)), they have the right to intervene where the insured is barred from defending itself. In
15   such circumstances, intervention is necessary to protect INTERVENORS’ own interest because they
16   may be obligated to pay any judgment rendered against MARCONI PLASTERING. (Reliance Ins.
17 Co. v. Sup. Ct. (2000) 84 Cal.App.4th 383, 386-387.)

18          INTERVENORS request that the Court deem the Answer-in-Intervention an Answer to
19 Plaintiffs’ Complaint against MARCONI PLASTERING and that the Court grant INTERVENORS

20 leave to appear and defend MARCONI PLASTERING in this action pursuant to the terms of their

21 respective insurance policies.

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          MASSACHUSETTS BAY INSURANCE COMPANY, MARYLAND CASUALTY COMPANY AND FIREMAN’S FUND INSURANCE
                     COMPANY’S EX PARTE APPLICATION FOR LEAVE TO FILE ANSWER-IN-INTERVENTION
     10715597v.1
 1          This ex parte Application is based on the Declaration of Emily Cunningham, the Memorandum
 2   of Points and Authorities, Request for Judicial Notice, and [Proposed] Order served and filed with this
 3   Application, and on the papers and records in this matter, and on such oral and documentary evidence
 4   as may be presented at the hearing on the Application.
 5   Dated: September 29, 2020                             HAWKINS PARNELL & YOUNG LLP
 6

 7                                                         By:
                                                                 Khaled Taqi-Eddin
 8                                                               Emily Cunningham
                                                                 Attorneys for Intervenors
 9                                                               MASSACHUSETTS BAY INSURANCE
                                                                 COMPANY, MARYLAND CASUALTY
10                                                               COMPANY and FIREMAN’S FUND
                                                                 INSURANCE COMPANY
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          MASSACHUSETTS BAY INSURANCE COMPANY, MARYLAND CASUALTY COMPANY AND FIREMAN’S FUND INSURANCE
                     COMPANY’S EX PARTE APPLICATION FOR LEAVE TO FILE ANSWER-IN-INTERVENTION
     10715597v.1
 1                                          PROOF OF SERVICE
 2
                            Carol Chulick, et al. v. Asbestos Companies, et al.
 3                   San Francisco County Superior Court Case No. CGC-19-276757
 4          I, the undersigned, declare as follows:
 5          I am employed in the County of San Francisco, California, and I am over the age of 18 years
 6   and not a party to the within action. My business address is 1 Post Street, Suite 2400, San Francisco,
 7   CA 94104.
 8          On the date executed below, I electronically served the documents(s) via File & ServeXpress

 9 described as:

10          MASSACHUSETTS BAY INSURANCE COMPANY, MARYLAND CASUALTY
            COMPANY AND FIREMAN’S FUND INSURANCE COMPANY’S EX PARTE
11            APPLICATION FOR LEAVE TO FILE ANSWER-IN-INTERVENTION;
12   MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MASSACHUSETTS
     BAY INSURANCE COMPANY, MARYLAND CASUALTY COMPANY AND FIREMAN’S
13    FUND INSURANCE COMPANY’S EX PARTE APPLICATION FOR LEAVE TO FILE
                         ANSWER-IN-INTERVENTION;
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         REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MASSACHUSETTS BAY
15   INSURANCE COMPANY, MARYLAND CASUALTY COMPANY AND FIREMAN’S FUND
     INSURANCE COMPANY’S EX PARTE APPLICATION FOR LEAVE TO FILE ANSWER-
16                             IN-INTERVENTION;
17    DECLARATION OF EMILY CUNNINGHAM IN SUPPORT OF MASSACHUSETTS BAY
     INSURANCE COMPANY, MARYLAND CASUALTY COMPANY AND FIREMAN’S FUND
18      INSURANCE COMPANY’S EX PARTE APPLICATION FOR LEAVE TO FILE AN
                         ANSWER-IN-INTERVENTION; &
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          [PROPOSED] ORDER GRANTING INTERVENORS MASSACHUSETTS BAY
20   INSURANCE COMPANY, MARYLAND CASUALTY COMPANY AND FIREMAN’S FUND
        INSURANCE COMPANY’S EX PARTE APPLICATION FOR LEAVE TO FILE AN
21                         ANSWER-IN-INTERVENTION.
22   on the recipients designated on the Transaction Receipt located on the File & ServeXpress website.

23          I declare under penalty of perjury under the laws of the State of California that the foregoing
24   is true and correct and that this declaration was executed on September 29, 2020, at San Francisco,
25   California.
26
                                                            Amy Harkness
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          MASSACHUSETTS BAY INSURANCE COMPANY, MARYLAND CASUALTY COMPANY AND FIREMAN’S FUND INSURANCE
                     COMPANY’S EX PARTE APPLICATION FOR LEAVE TO FILE ANSWER-IN-INTERVENTION
     10715597v.1