2011-00106833-CU-CD

Westlake Villas Community Assn vs. Westlake Villas LLC

Nature of Proceeding:    Motion to Strike Cross-Complaint of Clarendon America

Filed By:  Comerford, Scott R.

The motion of Cross-Defendant Nor-Cal Concrete, Inc. (“Nor-Cal”) to strike the cross-
complaint of Clarendon America Insurance Co. (“Clarendon”) is DENIED.

This is a construction defect case.  Clarendon is the alleged insurer of certain
corporate defendants.  Because its insureds are suspended from operation in
California, and because any judgment against them implicates Clarendon’s interests
as their insurer, Clarendon moved to intervene.  When Clarendon moved to intervene,
it represented that its intervention would not enlarge the issues in the case.  (See
Comerford Decl., Exh. B; see also Kuperstein v. Superior Court (1988) 204 Cal.App.3d
598, 600 [“For permissive intervention three factors are paramount: the intervener
must have a direct interest in the lawsuit, the intervener must not enlarge the issues
raised by the original parties and the intervener must not tread on the rights of the
original parties to conduct their own lawsuit”] [citation omitted].)  Clarendon also
emphasized that, without its intervention, it could become liable based upon its
insureds’ defaults.  (Id.)

The court granted Clarendon’s unopposed motion for leave to intervene on January
15, 2013.  Clarendon thus filed a general denial of the allegations in the complaint and
asserted numerous affirmative defenses.  Clarendon concurrently filed its cross-
complaint for indemnity and other causes of action against numerous subcontractors,
including Nor-Cal, who allegedly performed construction services in connection with
the condominium project in question.  Nor-Cal filed an answer to Clarendon’s cross-
complaint on August 20, 2013.  (Moving Memo. at 3:6-7.)  On October 30, 2013, Nor-
Cal filed the instant motion to strike Clarendon’s cross-complaint.

Nor-Cal’s principal argument is that Clarendon was not entitled to file its cross-
complaint because such a filing enlarges the issues in the case.  Nor-Cal does not
dispute Clarendon’s right to raise its affirmative defenses.

The court rejects Nor-Cal’s position because once a party is permitted to intervene, it
th
is a party for all purposes.  (See Gray v. Begley (2010) 182 Cal.App.4   1509, 1521
[citation omitted]; accord Hensel Phelps Constr. Co. v. San Diego Unified Port Dist.
(2011) 197 Cal.App.4th 1020, 1029.)  Given that Nor-Cal does not dispute Clarendon’s
right to intervene for purposes of making a general denial and raising affirmative
defenses, it cannot complain that Clarendon’s has filed other pleadings as well.

In concluding that Clarendon is entitled to proceed upon its cross-complaint, the court
notes that Clarendon has raised defenses of third party fault, contribution and
superseding cause.  Thus, to the extent the cross-complaint likewise raises these
issues in the form of causes of action against the subcontractors, it does not enlarge
the issues in the case.

Nor-Cal raises a separate argument that this court’s order granting Clarendon leave to
intervene did not include leave to file a cross-complaint.  Because Clarendon became
a party defendant for all purposes once it was granted leave to intervene, Nor-Cal’s
argument fails.

The parties’ requests for judicial notice of court documents are GRANTED.

The minute order is effective immediately.  No formal order pursuant to CRC 3.1312 or
further notice is required.