Disposed - Judgment Entered
Personal Injury - Motor Vehicle
STEPHEN P. PFAHLER
EDWARD B. MORETON, JR.
DAVID J. COWAN
VICTOR E. CH VEZ
MELVIN D. SANDVIG
LAURA A. SEIGLE
STATE COMPENSATION INSURANCE FUND
WILSON ERIC N.
RATHBONE WILLIAM MICHAEL
11/14/2022: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR LEAVE TO INTERVENE)
11/10/2022: Notice of Continuance
11/3/2022: Reply - REPLY VICTORIA FIRE & CASUALTY COMPANYS REPLY IN SUPPORT OF MOTION TO INTERVENE; DECLARATION OF DANICA LAM
10/27/2022: Declaration - DECLARATION DECLARATION OF DANIEL ELI IN SUPPORT OF OPPOSITION TO MOTION TO INTERVENE
10/27/2022: Opposition - OPPOSITION OPPOSITION TO MOTION TO INTERVENE
10/19/2022: Motion re: - MOTION RE: NOTICE OF MOTION AND MOTION TO INTERVENE; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF DANICA LAM AND SUPPORTING EXHIBITS
10/18/2022: Notice - NOTICE OF ERRATA
8/10/2022: Appeal - Notice Court Reporter to Prepare Appeal Transcript - APPEAL - NOTICE COURT REPORTER TO PREPARE APPEAL TRANSCRIPT NOA 6/27/22 B321339
4/29/2022: Minute Order - MINUTE ORDER (COURT ORDER RE: RULING ON MOTION TO TAX COSTS PREVIOUSLY TAKE...)
4/29/2022: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE: RULING ON MOTION TO TAX COSTS PREVIOUSLY TAKE...) OF 04/29/2022
5/6/2022: Appeal - Notice Court Reporter to Prepare Appeal Transcript
5/19/2022: Brief - BRIEF DEFENDANTS' AMENDMENT TO THE DESIGNATION OF RECORD ON APPEAL
6/27/2022: Appeal - Notice of Appeal/Cross Appeal Filed - APPEAL - NOTICE OF APPEAL/CROSS APPEAL FILED "U"
6/29/2022: Appeal - Notice of Filing of Notice of Appeal - APPEAL - NOTICE OF FILING OF NOTICE OF APPEAL "U"
7/5/2022: Appeal - Ntc Designating Record of Appeal APP-003/010/103
11/16/2021: Judgment on Special Verdict
11/17/2021: Unknown - CERTIFICATE OF MAILING
11/24/2021: Notice - NOTICE NOTICE OF ENTRY OFJUDGMENT
DocketMinute Order (Hearing on Motion for Leave to Intervene)[+] Read More [-] Read Less
DocketHearing on Motion for Leave to Intervene scheduled for 12/08/2022 at 08:30 AM in Beverly Hills Courthouse at Department 200 Not Held - Vacated by Court on 11/14/2022[+] Read More [-] Read Less
DocketHearing on Motion for Leave to Intervene scheduled for 11/14/2022 at 09:00 AM in Beverly Hills Courthouse at Department 200 updated: Result Date to 11/14/2022; Result Type to Held - Taken under Submission[+] Read More [-] Read Less
DocketHearing on Motion for Leave to Intervene scheduled for 12/08/2022 at 08:30 AM in Beverly Hills Courthouse at Department 200[+] Read More [-] Read Less
DocketNotice of Continuance; Filed by: Victoria Fire & Casualty Company (Non-Party)[+] Read More [-] Read Less
DocketHearing on Motion for Leave to Intervene scheduled for 11/14/2022 at 09:00 AM in Beverly Hills Courthouse at Department 200[+] Read More [-] Read Less
DocketPursuant to the request of moving party, Hearing on Motion for Leave to Intervene scheduled for 11/14/2022 at 08:30 AM in Beverly Hills Courthouse at Department 200 Not Held - Rescheduled by Party was rescheduled to 12/08/2022 08:30 AM[+] Read More [-] Read Less
DocketReply VICTORIA FIRE & CASUALTY COMPANYS REPLY IN SUPPORT OF MOTION TO INTERVENE; DECLARATION OF DANICA LAM; Filed by: Victoria Fire & Casualty Company (Non-Party)[+] Read More [-] Read Less
DocketUpdated -- Request for Refund of Reporter Appeal Transcript Deposit; Affidavits attached; NA6/27/22: As To Parties: removed[+] Read More [-] Read Less
DocketOpposition Opposition to Motion to Intervene; Filed by: Eric Bejar (Plaintiff); Christina Bejar (Plaintiff)[+] Read More [-] Read Less
DocketDocument:Answer Filed by: Attorney for Defendant/Respondent[+] Read More [-] Read Less
DocketDocument:Notice Filed by: Attorney for Defendant/Respondent[+] Read More [-] Read Less
DocketDocument:Receipt Filed by: Attorney for Defendant/Respondent[+] Read More [-] Read Less
DocketDocument:Notice of Lien Filed by: Attorney for Lien Claimant[+] Read More [-] Read Less
DocketDocument:Summons Filed Filed by: Attorney for Plaintiff/Petitioner[+] Read More [-] Read Less
DocketCalendaring:Final Status Conference 02/22/19 at 10:00 am Holly J. Fujie[+] Read More [-] Read Less
DocketCalendaring:Jury Trial 03/08/19 at 8:30 am Holly J. Fujie[+] Read More [-] Read Less
DocketCalendaring:OSC RE Dismissal 09/08/20 at 8:30 am Holly J. Fujie[+] Read More [-] Read Less
DocketCase Filed/Opened:Motor Vehicle - PI/PD/WD[+] Read More [-] Read Less
DocketDocument:Complaint Filed by: N/A[+] Read More [-] Read Less
Case Number: ****5339 Hearing Date: November 14, 2022 Dept: 200
eric bejar, et al.,
JOSEFINA LOPEZ, et al.,
Case No.: ****5339
Hearing Date: November 14, 2022
[TENTATIVE] order RE:
victoria fire & casualty
company’s motion to intervene
MOVING PARTY: Prospective Intervenor Victoria Fire & Casualty Company
RESPONDING PARTY: Plaintiffs Eric Bejar and Christina Bejar
This is a personal injury case. Plaintiff Eric Bejar, a police officer, was struck from behind by Defendant Josephina Lopez while Bejar was on duty and pulling over another motorist. At the time of the accident, Lopez was insured by Victoria Fire & Casualty Company (“Victoria”). Lopez’s policy was subject to a limit of $15,000. Prior to filing suit against Lopez, Eric Bejar and his wife Christina attempted to settle their claims against Lopez in exchange for her $15,000 policy limits. The Bejars contend Victoria unreasonably failed to settle their claims and thereby breached the implied covenant of good faith and fair dealing in Lopez’s policy. The Bejars also contend that as a result, Victoria is liable for the entire amount of judgment they obtained against Lopez (a jury verdict of nearly $50 million).
Lopez filed a petition for bankruptcy protection on August 11, 2021. (Lam Decl. 5) The automatic stay imposed by the filing of the bankruptcy was lifted two weeks later to allow the Bejars’ claims to proceed to trial. (Lam Decl. 6; Ex. A to Lam Decl.). On October 20, 2021, following a trial in this Court, the jury awarded nearly $50 million to the Bejars. (Ex. B to Lam Decl.) This Court denied a motion for new trial.
Lopez then filed a notice of appeal in March 2022. (Ex. C to Lam Decl.) In April 2022, the clerk of the Court of Appeal sent a letter to the parties indicating that the trustee of Lopez’s bankruptcy estate, Howard M. Ehrenberg, is the proper appellant. (Ex. D to Lam Decl.) In March 2022, Lopez filed a letter requesting she be permitted to pursue the appeal in her own name. (Ex. E to Lam Decl.) In June 2022, the Court of Appeal asked Ehrenberg to respond to Lopez’s request to pursue the appeal in her own name. (Ex. G to Lam Decl.) In response, Ehrenberg stated he has exclusive standing to appeal. (Ex. H to Lam Decl.) On the same day, Lopez filed a second notice of appeal. (Ex. I to Lam Decl.)
On September 20, 2022, the Court of Appeal issued an order stating that Ehrenberg, not Lopez, has standing to appeal. (Ex. J to Lam Decl.) In the same order, the Court of Appeal stated it “is considering dismissing” the appeals “as filed by a party without standing to do so.” (Ex. J to Lam Decl.) The Court asked Ehrenberg to “address the Bejars’ assertion that Lopez lacked standing to file the appeal at the time it was filed and whether the appeal should be dismissed.” (Id.) In response, Ehrenberg did not address whether the appeals should be dismissed but stated he would not oppose the Court of Appeal considering a motion to substitute Ehrenberg as the proper appellant. (Ex. L to Lam Decl.) Ehrenberg also explained he did not file an appeal in the first instance because “[i]n exercising my business judgment, I believe that an appeal of the Judgment was not in the best interest of the Bankruptcy Estate and thus took no action to appeal the judgment.” (Ex. L to Lam Decl. at 3).
This hearing is on Victoria’s motion to intervene, to protect its interests in the appeal.
Intervention may be mandatory or permissive. (Code Civ. Proc., 387(d).) Here, Victoria seeks permissive intervention. Code Civ. Proc. 387(d) provides that a court “may, upon timely application, permit a nonparty to intervene in the action or proceeding if the person has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both.”
The Court permits intervention when the following factors are met: (1) the proper procedures have been followed; (2) the nonparty has a direct and immediate interest in the action; (3) the intervention will not enlarge the issues in the litigation; and (4) the reasons for the intervention outweigh any opposition by the parties presently in the action. (Siena Court Homeowners Ass’n v. Green Valley Corp. (2008) 164 Cal.App.4th 1416, 1428.) CCP 387 should be liberally construed in favor of intervention. (Simpson Redwood Co. v. State of California (1987) 196 Cal.App.3d 1192, 1200.)
To show a direct and immediate interest in the litigation, the prospective intervenor must show that he or she stands to gain or lose by direct operation of the judgment, even if no specific interest in the property or transaction at issue exists. (Simpson Redwood, 196 Cal.App.3d at 1200.) Stated differently, “[a] person has a direct interest justifying intervention in litigation where the judgment in the action of itself adds to or detracts from his legal rights without reference to rights and duties not involved in the litigation.” (Continental Vinyl Products Corp. v. Mead Corp (1972) 27 Cal.App.3d 543, 549.)
An interest is consequential and thus insufficient for intervention when the action in which intervention is sought does not directly affect the proposed intervenor, although the results of the action may indirectly benefit or harm the proposed intervenor. (Continental Vinyl Products v. Mead Corp. (1972) 27 Cal.App.3d 543, 550.) “One cardinal rule which is established by the cases is that an intervener's interest must be more direct and immediate than that of a simple creditor of one of the parties.” (California Physicians' Service v. Superior Court (1980) 102 Cal.App.3d 91, 95-96.)
Victoria argues intervention is necessary because the appeal may be dismissed for lack of standing. But it is not clear how Victoria’s intervention would prevent this from happening. The Court of Appeal has made clear that the only party with standing to appeal is the Trustee. Victoria, like Lopez, lacks standing to appeal, and thus its intervention will not resolve the standing issue.
Further, Victoria has not shown that the Trustee will not adequately represent its interests in the appeal. Victoria claims that the trustee only “recently agreed” to be substituted in as appellant and has “expressed hostility to the appeal.” But Victoria only recently asked the Trustee to be substituted in as the appellant, and within a day of that request, the Trustee agreed to do so. (Ex. L to Lam Decl.) Moreover, while the Trustee explained he did not pursue the appeal in the first instance because it was not in the best interest of the bankruptcy estate (Ex. L to Lam Decl.), he has also repeatedly told Victoria he has no objection to the appeal going forward. (Ex. E to Lam Decl.)
In addition, Victoria has not shown it has a “direct and immediate interest” in the action, as required by Code Civ. Proc., 387(d). Victoria claims it has an interest because depending on the outcome of the appeal, it faces a “direct action” for policy benefits pursuant to Insurance Code 11580. But Victoria has already paid those limits to the Bejars and cannot face a “direct action” for sums it has already paid. (Ex. G to Eli Decl.) Rather, Victoria is intervening because it is concerned that a judgment in excess of limits will constitute damages in a subsequent “bad faith” action the Trustee intends to file.
But Victoria’s liability in excess of limits is not sufficiently “direct” to warrant intervention. Its liability is contingent on whether a settlement it entered into with Lopez, whereby Lopez settled her “bad faith” claim against Victoria for $62,500, will be set aside as a fraudulent conveyance. If the settlement is not set aside, Victoria faces no liability in excess of limits. Its interest in the outcome of the appeal is contingent on resolution of an extraneous issue (fraudulent conveyance), and thus, its interest is “consequential” and does not warrant intervention. Cf. Corridan v. Rose, Zurich General Acc. & Liability Ins. Co. (1955) 137 Cal.App.2d 524, 530 (denying insurer’s motion to intervene in third party’s negligence lawsuit against the insured; although a judgment rendered in the lawsuit may form the damages in a subsequent bad faith action, “the plaintiff’s claim against [the insurer] would not be decided by the judgment in the negligence action alone but would be contingent on the policy coverage which [the insurer] denies”).
Accordingly, because Victoria has not shown it has a direct and immediate interest, it is not entitled to permissive intervention, and the Court does not reach the Bejars’ other arguments as to why Victoria’s motion should be denied.
Based on the foregoing, the Court DENIES Victoria’s motion to intervene.
IT IS SO ORDERED.
DATED: November 14, 2022
Edward B. Moreton, Jr.
Judge of the Superior Court
Case Number: ****5339 Hearing Date: October 07, 2020 Dept: F49
Calendar # 7
Case # ****5339
TRIAL DATE: 10-13-20 c/f 8-3-20 c/f 5-26-20 c/f 3-30-20 c/f 2-24-20 c/f 12-2-19
MOVING PARTY: Defendant, Josefina Lopez
RESPONDING PARTY: Plaintiffs, Eric Bejar
Motion for Reconsideration of the Order Confirming the Referee Report Recommendation Denying the Motion to Compel the Independent Medical Examination.
SUMMARY OF ACTION
On September 8, 2015, Plaintiff Eric Bejar was on-duty as a California Highway Patrol officer operating a CHP issued motorcycle. Plaintiff attempted to execute a traffic stop of a vehicle in proximity to the vehicle of Defendant Josefina Lopez. In the process of the stop, Defendant’s vehicle hit the rear wheel of the motorcycle, thereby causing Plaintiff to fall off his vehicle and slide into the roadway.
Plaintiff Christina Bejar is the spouse of Eric.
On September 8, 2017, Plaintiffs filed a complaint for negligence and loss of consortium.
On February 13, 2020, the court referred the parties to a discovery referee for all remaining discovery disputes. The parties additionally executed a stipulation whereby the non-prevailing party on any dispute submitted to the referee shall be responsible for payment of the referee fee on said dispute.
At the time of reference, the court declined to extend the discovery or motion cut-off dates, and extended the trial date to March 3, 2020. On February 21, 2020, the court vacated a number of discovery motion hearing dates beginning with the motion to compel the neurological medical examination motion on February 21, 2020. On February 28, 2020, the court entered the parties’ stipulation for the appointment of the discovery referee, Judge Waldrip (ret). On March 17, April 1, and May 7, 2020, the court continued the trial date to May 26, 2020, August 3, 2020, and then to October 13, 2020.
On June 15, 2020, the court accepted and approved the referee report. The report specifically recommended the court deny the motion to compel the independent neurological medical examination on grounds of untimeliness, as the motion appeared after the prior discovery cut-off date. The report additionally found that the request to reopen the discovery deadlines in the reply to the motion unfairly prejudiced Plaintiffs of their opportunity to respond. On July 6, 2020, Defendant filed a motion for reconsideration of the order confirming the referee report recommendation denying the motion to compel the independent neurological examination.
Defendant disputes the finding of the referee that the motion to compel the independent medical examination was filed on April 20, 2020—after the discovery and motion cut-off. Defendant states that when the court vacated the discovery dates, the parties stipulated to allow the referee to hear all pending disputes. The determination of the April 20, 2020 “late filing” of the motion was the result of a misrepresentation by Plaintiffs’ counsel to the court. The IME motion was the same relief specially set by the court for February 21, 2020, and re-filed with Adjudicate West for Judge Waldrip to consider.
Plaintiff in opposition contends the motion lacks any “new” facts for purposes of supporting a motion for reconsideration. Plaintiffs deny any claims of “misstatement” to Judge Waldrip, and further counter that contrary to the claim of a simple re-filed motion, Defendant in fact filed a motion with new and additional argument. Plaintiff states that Judge Waldrip specifically instructed the parties to forward all previously filed briefs for consideration, which in no way constituted an invitation for redrafted items, even if it covered the same relief.
Defendant in reply denies the finding that the motion was only filed on April 20, 2020; Defendant re-filed a “substantively identical…second version” of the motion to compel IME. The second version only “included an updated procedural history on a caption for the discovery referee,” which in no way constitutes a “new, more persuasive brief.”
Defendant also continues to accuse Plaintiff of false representation to the court and Judge Waldrip. Said “false representation” constitutes the “new and different” fact required for a motion for reconsideration.
“A motion for reconsideration may only be brought if the party moving for reconsideration can offer ‘new or different facts, circumstances, or law which it could not, with reasonable diligence, have discovered and produced at the time of the prior motion. (Citations.) A motion for reconsideration will be denied absent a strong showing of diligence.” (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690; Forrest v. State Of California Dept. Of Corporations (2007) 150 Cal.App.4th 183, 202 disapproved of and overruled on unrelated grounds in Shalant v. Girardi (2011) 51 Cal.4th 1164, 1172 (footnote 3); New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212–213; Baldwin v. Home Sav. of America. (1997) 59 Cal.App.4th 1192, 1199.) Disagreement with a ruling is not a new fact that will support the granting of a motion for reconsideration. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.)
A court acts in excess of jurisdiction when it grants a motion to reconsider that is not based upon “new or different facts, circumstances or law.” (Gilberd v. AC Transit, supra, 32 Cal.App.4th 1494, 1499.) Motions for reconsideration are restricted to circumstances where a party offers the Court some fact or circumstance not previously considered, and some valid reason for not offering it earlier. (Id.) The burden under Section 1008 is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at trial. (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-213.)
On January 28, 2020, the court granted Defendant’s ex parte application to specially set the IME for February 21, 2020. The court ordered Defendant to separately file the motion pursuant to statutory deadlines. The filing deadline was well before the motion filing cut-off date, thereby allowing consideration of the motion by the discovery referee, along with any motions filed prior to the cut-off date. The motion and opposition were filed on January 30 and February 6, 2020, respectively.
On February 27, 2020, the parties stipulated to allow Judge Waldrip to rule on all “remaining discovery disputes.” Given the court vacated all discovery motion dates on February 21, 2020—eight days after February 13, 2020 order referring the parties to a discovery referee—the parties’ subsequent stipulation apparently contemplated the determined scope of any and all remaining discovery disputes to be submitted before the referee.
On April 20, 2020, Defendant admits to the filing of a second motion to compel an independent medical examination for consideration by Judge Waldrip in his capacity as a discovery referee. Defense counsel states that the motion included “an update regarding the meet and confer and a few minor non-substantive changes.” [Dupuy Decl., ¶10.] While Defendant characterizes the April 20, 2020 IME motion as a mere re-filing of the previously set motion specially set by the court for February 21, 2020, the report specifically states:
“It is unclear why [Lopez] did not comply with the briefing instructions given by the Court in connection with the ‘specially’ set hearing on February 21, 2020, which could have been passed on to the Referee for management. Perhaps relying upon the ‘timely’ notice of the IME discussed above, Defendant apparently overlooked or misunderstood the concurrent deadline for motions—February 15, 2020, that, to the knowledge of the Referee, has never changed.”
Judge Waldrip made an apparent factual finding regarding the propriety of the April 20, 2020 filed motion, which Defendant now seeks to challenge on grounds of error by the referee and the court in approving the order. As addressed above, Plaintiff states Judge Waldrip specifically instructed the parties to forward all previously filed briefs for consideration. This representation is undisputed by Defendant. The language of the ex parte order specially setting the hearing, the stipulation of the parties, and referee report itself also additionally upholds the representations of Plaintiff. Defendant presents no evidence of an invite for redrafted items, even if it covered the same relief and made inconsequential changes in the opinion of defense counsel.
Defendant’s argument lacks a basis of support for the finding of a “new” fact. The motion constitutes a direct factual challenge with the finding of Judge Waldrip regarding the propriety of the revised motion. A disagreement of opinion over the characterization of the revisions in the submitted item and accusations of misrepresentation by opposing counsel are not new facts. The court referred the action to the discovery referee because of the regular disputes addressed in the original referral order. To second-guess the opinion of the referee undermines the purpose of the of the discovery referee referral.
Even if the court considered the changes in the revised motion as inconsequential and therefore the April 20, 2020 filed motion somehow constituted a “new” fact, the motion fundamentally lacks address of the diligence standard underlying the findings of the referee. The report specifically questions why the motion was re-filed in the first place after the framework for management of the subject discovery disputes by the referee was set. Again, Defendant timely filed the original motion, and the original motion would have been duly accepted by Judge Waldrip for consideration. In other words—Defendant fails to satisfactorily answer the question of why the prior motion was simply not submitted along with any other items, and why was the “updated” motion considered necessary. The paucity of explanation renders the motion wanting for a basis of requested for relief under the standard for reconsideration.
Defendant is ordered to give notice.
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