Request,Application: 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                                                  09/23/2020
 5                                                                                Clerk of the Court
                                                                                    BY: EDNALEEN ALEGRE
     Attorneys for Intervenors                                                                Deputy Clerk
 6   MASSACHUSETTS BAY INSURANCE
     COMPANY, MARYLAND CASUALTY
 7   COMPANY AND FIREMAN’S FUND
     INSURANCE COMPANY
 8

 9                       SUPERIOR COURT OF THE STATE OF CALIFORNIA

10                                FOR THE COUNTY OF SAN FRANCISCO

11   CAROL CHULICK, as Successor-in-Interest to           CGC-19-276757
     and as Wrongful Death Heir of JOHN
12   CHULICK, Deceased; and DEBORAH HAGEN                 MEMORANDUM OF POINTS AND
     and JOLEEN HAGLER, as Wrongful Death                 AUTHORITIES IN SUPPORT OF
13   Heirs of JOHN CHULICK, Deceased,                     MASSACHUSETTS BAY INSURANCE
                                                          COMPANY, MARYLAND CASUALTY
14                  Plaintiffs,                           COMPANY AND FIREMAN’S FUND
                                                          INSURANCE COMPANY’S EX PARTE
15           vs.                                          APPLICATION FOR LEAVE TO FILE
                                                          ANSWER-IN-INTERVENTION
16   RILEY POWER, INC., et al.,

17                  Defendants.                           Hearing Date: September 24, 2020
                                                          Time:         11:00 a.m.
18                                                        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 (collectively referred to as
24   “INTERVENORS”), pursuant to terms of their respective insurance policies and solely in their
25   capacities as insurers of MARCONI PLASTERING, hereby apply ex parte for leave of this Court to
26 intervene in this action pursuant to California Code of Civil Procedure section 387.

27          The Court may grant leave to intervene by ex parte order following an ex parte application by
28 the Intervenor. (4 Witkin Cal. Proc. 4th Ed §201 at pg. 260; Allen v. Cal. Water & Tele. Co. (1947)
                                                   1
        MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MASSACHUSETTS BAY INSURANCE COMPANY, MARYLAND
      CASUALTY COMPANY AND FIREMAN’S FUND INSURANCE COMPANY’S EX PARTE APPLICATION FOR LEAVE TO FILE ANSWER-
                                                  IN-INTERVENTION
     10715602v.1
 1   31 Cal.2d 104, 106-07; Adoption of Lenn E. (1986) 182 Cal.App.3d 210, 217.)
 2           INTERVENORS, as liability insurance carriers for defendant MARCONI PLASTERING
 3 COMPANY, INC. (hereinafter “MARCONI PLASTERING”), have a direct and immediate interest

 4 in contesting liability, fault and damages claimed by plaintiffs against MARCONI PLASTERING. As

 5 shown by facts susceptible to judicial notice per Evidence Code section 452(c) & (h), both the

 6 California Secretary of State and California Franchise Tax Board have suspended the corporate status

 7 of MARCONI PLASTERING and, as a result, MARCONI PLASTERING is barred from defending

 8 itself against the claims brought by Plaintiffs. Thus, INTERVENORS face being bound by a default

 9 judgment under Insurance Code section 11580 et. seq.

10                                              II.       FACTS
11           Plaintiff’s Complaint for Wrongful Death - Asbestos, in which MARCONI PLASTERING
12 was named as a defendant, was filed on January 22, 2019. (Declaration of Emily M. Cunningham

13   (hereinafter “Cunningham Decl.”), at ¶3, Exhibit A.) MARCONI PLASTERING is a suspended
14   California corporation. (Cunningham Decl., at ¶4; Request for Judicial Notice, Exhibits 1 and 2.)
15 Due to its suspended corporate status, MARCONI PLASTERING has not answered Plaintiffs’

16 Complaint and is unable to defend itself. (Ibid.) If MARCONI PLASTERING were an active

17 corporation, MARYLAND CASUALTY, MASSACHUSETTS BAY INSURANCE COMPANY

18 and/or FIREMAN’S FUND INSURANCE COMPANY would provide a defense under a reservation

19 of rights in accordance with their insurance policies. (Cunningham Decl., at ¶5.) No default has been

20 taken by Plaintiffs or entered against MARCONI PLASTERING in this lawsuit. (Cunningham Decl.,

21 at ¶4.)

22           Accordingly, by this timely-filed application, INTERVENORS seek leave to file an Answer-
23 in-Intervention pursuant to Section 387 of the Code of Civil Procedure and California case law.

24 (Cunningham Decl., at ¶7, Exhibit C.) INTERVENORS request that the Court deem the Answer-in-

25 Intervention an Answer to Plaintiffs’ Complaint against MARCONI PLASTERING and that the Court

26 grant INTERVENORS leave to appear and defend MARCONI PLASTERING in this action pursuant

27 to the terms of their respective insurance policies.

28           INTERVENORS provided proper notice of the instant ex parte application. (Cunningham
                                                2
        MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MASSACHUSETTS BAY INSURANCE COMPANY, MARYLAND
      CASUALTY COMPANY AND FIREMAN’S FUND INSURANCE COMPANY’S EX PARTE APPLICATION FOR LEAVE TO FILE ANSWER-
                                                  IN-INTERVENTION
     10715602v.1
 1   Decl., at ¶6, Exhibit B.)
 2                                       III.    LEGAL ARGUMENT
 3          Code of Civil Procedure section 387(a) provides in relevant part: “Upon timely application,
 4   any person, who has an interest in the matter in litigation, or in the success of either of the parties, or
 5   an interest in the matter in litigation, or in the success of either of the parties, or an interest against
 6   both, may intervene in the action of proceeding.” The purpose of allowing intervention is to “promote
 7   fairness by involving all parties potentially affected by a judgment.” (Lindelli v. Town of San Anselmo
 8   (2006) 139 Cal.App.4th 1499.) Courts have interpreted section 387 liberally, in favor of intervention.
 9   (City of Malibu v. City of California Coastal Comm. (2005) 128 Cal.App.4th 897, 902; Lincoln
10   National Life Ins. Co. v. State Bd. of Equalization (1994) 30 Cal.App.4th 1411, 1423; Simpson
11 Redwood Co. v. State of California (1987) 196 Cal.App.3d 1192, 1201; and Lindelli, supra, 139

12 Cal.App.4th at 1504-1505.)

13          In determining whether to exercise its discretion to permit intervention under section 387(a),
14 supra, a court considers the following factors: (1) whether the intervenor has a direct interest in the

15 lawsuit, or the success of either of the parties to the lawsuit; (2) whether the intervention would

16 enlarge the issues raised in the lawsuits by the original parties; and (3) whether the intervenor would

17 interfere with the rights of the original parties to conduct their own lawsuit. (Hinton v. Beck (2009)

18 176 Cal.App.4th 1378, 1382-1383; and Kuperstein v. Superior Court (1988) 204 Cal.App.3d 598,

19 600.)

20          Pursuant to Code of Civil Procedure section 387(b), a party has the right to intervene where it
21 “claims an interest relating to the property or transaction which is the subject of the action and that

22 person is so situated the disposition of the action may as a practical matter impair or impede that

23 person’s ability to protect that interest.” Permissive intervention is allowed when the intervening party

24 has a direct and immediate interest in the litigation, the intervention will not enlarge the issues, and

25 the reasons for intervention outweigh any opposition by the existing parties. (Reliance Ins. Co. v. Sup.

26 Ct. (2000) 84 Cal.App.4th 383, 386; §387(a); Truck Ins. Exch. v. Sup. Ct. (1997) 60 Cal.App.4th 342,

27 346.)

28          In Reliance, supra, plaintiffs filed an action against Reliance’s insured, Campbell. (84
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        MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MASSACHUSETTS BAY INSURANCE COMPANY, MARYLAND
      CASUALTY COMPANY AND FIREMAN’S FUND INSURANCE COMPANY’S EX PARTE APPLICATION FOR LEAVE TO FILE ANSWER-
                                                  IN-INTERVENTION
     10715602v.1
 1   Cal.App.4th at 384.) After Campbell filed an answer to the Complaint, Plaintiffs moved to strike the
 2   Answer on the grounds that Campbell’s corporate status had been suspended and thus, it could not
 3   appear in the action to defend itself. (Id. at 385.) Reliance filed a motion to intervene, which the trial
 4   court denied. (Ibid.) In concluding that the trial court abused its discretion by denying Reliance’s
 5   motion, the Court of Appeal noted that “intervention by an insurer is permitted where the insurer
 6   remains liable for any default judgment against the insured, and it has no means other than intervention
 7   to litigate liability or damages issues.” (Id. at 384; see also, Truck Ins. Exch., 60 Cal.App.4th at 346;
 8   Nasongkhla v. Gonzalez (1994) 29 Cal.App.4th Supp. 1, 3.)
 9          Accordingly, the Court reasoned that since Reliance may be required to satisfy any default
10   judgment entered against Campbell, Reliance has a direct and immediate interest in the litigation.
11   Moreover, because Reliance will most certainly assert the same defenses as would have been asserted
12   by Campbell had its corporate status not been suspended, intervention by Reliance in the lawsuit will
13   not enlarge the issues in the case. (Reliance, supra, 84 Cal.App.4th at 387.)
14          Here, MARCONI PLASTERING is a suspended corporation and cannot appear in the action
15 and cannot defend itself. Since INTERVENORS agreed to pay any judgment obtained against their

16 insured (See Ins. Code §11580(b)(2)), they have the right to intervene where the insured is barred from

17 defending itself. In such circumstances, intervention is necessary to protect INTERVENORS’ own

18 interest because they may be obligated to pay any judgment rendered against MARCONI

19 PLASTERING. (See Reliance, supra, 84 Cal.App.4th at 386-387.)

20          Moreover, INTERVENORS seek to intervene in order to litigate the claims brought by
21 Plaintiffs against MARCONI PLASTERING with respect to the determination of Plaintiffs’ damages

22 and the determination of the comparative faults of the parties, if any. Intervention by INTERVENORS

23 will not enlarge the issues, as INTERVENORS will assert the same defenses that MARCONI

24 PLASTERING would have asserted had it been permitted to appear in the action. INTERVENORS

25 do not intend to litigate any coverage or policy defenses in this action, nor are they required to do so.

26 (See e.g. Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2006) 136

27 Cal.App.4th 212, 223.)

28          Accordingly, intervention is appropriate and should be permitted. INTERVENORS have
                                                     4
        MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MASSACHUSETTS BAY INSURANCE COMPANY, MARYLAND
      CASUALTY COMPANY AND FIREMAN’S FUND INSURANCE COMPANY’S EX PARTE APPLICATION FOR LEAVE TO FILE ANSWER-
                                                  IN-INTERVENTION
     10715602v.1
 1   timely applied to intervene and have agreed to defend MARCONI PLASTERING in this action.
 2   INTERVENORS have a direct and immediate interest in the litigation because they will be forced to
 3   satisfy any default judgment that may be taken against MARCONI PLASTERING and will have no
 4   opportunity to litigate fault or damage issues in any action brought by plaintiff on his judgment under
 5   Insurance Code §11580. Thus, whether mandatory or permissive, intervention is warranted.
 6                                          IV.    CONCLUSION
 7           For the foregoing reasons, INTERVENORS respectfully request this Court grant this ex parte
 8   application for leave to file an Answer-in-Intervention and grant INTERVENORS leave to appear and
 9   defend MARCONI PLASTERING in this action pursuant to the terms of their respective insurance
10   policies.
11   Dated: September 23, 2020                              HAWKINS PARNELL & YOUNG LLP
12

13                                                          By:
                                                                  Khaled Taqi-Eddin
14                                                                Emily Cunningham
                                                                  Attorneys for Intervenors
15                                                                MASSACHUSETTS BAY INSURANCE
                                                                  COMPANY, MARYLAND CASUALTY
16                                                                COMPANY and FIREMAN’S FUND
                                                                  INSURANCE COMPANY
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        MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MASSACHUSETTS BAY INSURANCE COMPANY, MARYLAND
      CASUALTY COMPANY AND FIREMAN’S FUND INSURANCE COMPANY’S EX PARTE APPLICATION FOR LEAVE TO FILE ANSWER-
                                                  IN-INTERVENTION
     10715602v.1