2011-00111281-CU-PO

Aisha Cherie Henry vs. Calico Building Services Incorporated

Nature of Proceeding:   Hearing on Demurrer

Filed By:  Bickel, Angie M.

Defendant Calico Building Services Incorporated’s (“Calico”) demurrer to Plaintiff-in-
Intervention The Hartford Accident & Indemnity Company’s (“Hartford”) complaint in
intervention is overruled.

Calico’s and Hartford’s requests for judicial notice are granted.

In this personal injury action, Judge Hight granted Hartford’s motion to file a complaint
in intervention given that it paid worker’s compensation benefits to Plaintiff Aisha
Henry on behalf of her employer and thus had a direct interest in the lawsuit as
recognized by relevant provisions of the Labor Code.  Hartford challenges Plaintiff and
Calico’s ability to settle the action without providing it notice as required by the Labor
Code. Generally, if a settlement includes the amounts of the reimbursable benefits, the
employer must be given notice of settlement in order to protect its rights. See, e.g.
Labor Code § 3860.

Calico demurs to the complaint in intervention on the basis that Hartford lacks standing
because Plaintiff Aisha Henry filed a dismissal of the action on August 21, 2013, and
Hartford did not file the complaint in intervention until October 2, 2013.  Calico reasons
that Judge Hight improperly allowed Hartford to file the complaint in intervention after
the complaint was dismissed and the dismissal stripped the Court of jurisdiction and
Hartford of standing.

Here, to the extent that Calico demurs to the complaint on the basis that the Court was
stripped of jurisdiction and Hartford of standing to intervene by Plaintiff’s August 21,
2013 dismissal, the demurrer is an attempted reconsideration of Judge Hight’s October
2, 2013 order granting Hartford’s motion for leave to file the complaint in intervention.
Indeed, Calico raised the identical arguments in opposition to Hartford’s motion to
intervene, which it now raises in the instant demurrer, though Calico contends Judge
Hight never reached these issues.  However, a review of the transcript shows that the
issues were addressed.  Indeed, Calico specifically argued to Judge Hight that
Hartford’s motion to intervene could not be granted because the dismissal had been
filed on August 21 and the ruling specifically referenced that argument.  (Oct. 2 minute
order [Calico “opposes intervention arguing that a dismissal was tendered to the court
following settlement of the case on August 21, 2013, and although the dismissal has
not been formally entered, the court no longer has jurisdiction over this matter].”)
Further, these arguments were repeated at oral argument as seen from the transcript
of the hearing.

By allowing intervention, Judge Hight necessarily rejected Calico’s argument that the
dismissal deprived the Court of jurisdiction, otherwise, the motion could not have been
granted.  No new facts or circumstances are set forth which would allow for
reconsideration of Judge Hight’s order and further, and in any event, such a motion
must be heard by Judge Hight.  (CCP § 1008(a).)  Calico argues that a new fact exists
in that there now is a file-stamped copy of the August 21 dismissal which was not
available to Judge Hight for consideration.  Even if this were a new fact justifying
reconsideration, any motion for reconsideration must be brought before Judge Hight.
As a result, to the extent the demurrer is based on the argument that the Court was
stripped of jurisdiction and Hartford of standing to intervene by Plaintiff’s August 21,
2013 dismissal, this Court is compelled to determine that the demurrer is an improper
reconsideration of Judge Hight’s October 2, 2013 order and is overruled.  To sustain
the demurrer on this basis would effectively contradict Judge Hight’s order. See, e.g.
Ziller Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1232 [An
order made by one judge cannot be reconsidered by another judge of the same court].

Further, the additional argument, though not addressed by Hartford in opposition, that
the complaint is barred by the statute of limitations because Hartford did not file the
action within two years from Plaintiff’s alleged injury, is rejected.  Indeed, in a case
such as this one, where the injured employee (here Plaintiff) timely filed an action
against the alleged tortfeasor (here Calico), the employer who has paid worker’s
compensation to the employee may intervene after the expiration of the statute of
limitations and at any time before trial pursuant to Labor Code § 3853.  (Labor Code §
3853; see also Basin Constr. Corp. v. Department of Water & Power of the City of Los
Angeles (1988) 199 Cal.App.3d 819, 823-824; Harrison v. Englebrick (1967) 254 Cal.
App. 2d 871.)

The demurrer is overruled.  No later than December 26, 2013, Calico shall file and
serve its answer to Hartford’s complaint in intervention.

This minute order is effective immediately.  No formal order pursuant to CRC Rule
3.1312 or other notice is required.