Mar

I respectfully dissent. Industrial Indemnity promptly filed its complaint in intervention in the same month plaintiff filed his original complaint. Wells Fargo, however, waited until just four days before the original trial date to attempt intervention. The trial court, in denying Wells Fargo’s motion as untimely, obviously construed the words “upon timely application” of Code of Civil Procedure 1 section 387 as a limitation upon Wells Fargo’s otherwise unconditional right to intervene pursuant to Labor Code section 3853.1 believe both legislative history and established case law support that construction.

To begin with, it bears emphasis that the statutory phrase “upon timely application” became a part of section 387 by amendment in 1977. (Stats. 1977, ch. 450, § 1.) Prior to 1977, section 387 provided that “any time before trial” a person who has an interest in the matter in litigation may intervene in the action. Regardless of the exact wording of the section, timeliness has always been held one of the prerequisites for granting an application to intervene. (Allen v. California Water & Tel. Co. (1947) 31 Cal.2d 104, 108 [ 187 P.2d 393 ]; Northern Cal. Psychiatric Society v.…

*1782 Opinion

If an employee injured in the course of his or her employment by a third party commences an action against that third party, Labor Code section 3853 grants the employee’s employer an unconditional right to intervene in the action “at any time before trial on the facts.” (la) We hold that if an employer makes a pretrial motion to become a party to such a pending action, the employer has, as a matter of law, satisfied the “upon timely application” requirement in Code of Civil Procedure section 387 governing intervention in general.

Background

In November of 1989 Kingsley Mar was struck by masonry that fell from a San Francisco building damaged in the Loma Prieta earthquake of a month earlier. At the time he was injured Mar was working within the course and scope of his employment with Wells Fargo Bank. Industrial Indemnity Company, the workers’ compensation carrier for Wells Fargo, paid Mar statutory workers’ compensation benefits. Wells Fargo paid the difference between those benefits and Mar’s full salary during his convalescence.

Just before the one-year statute of limitations expired, Mar filed a complaint for damages. Named as defendants were the owner and…

Carnes and Dibble and Thomas M. Carnes for Movant and Appellant.

Ghidella & Carmody and Janet L. Holmes for Defendants and Respondents.

OPINION

POCHE, J.

If an employee injured in the course of his or her employment by a third party commences an action against that third party, Labor Code section 3853 grants the employee's employer an unconditional right to intervene in the action "at any time before trial on the facts." (1a) We hold that if an employer makes a pretrial motion to become a party to such a pending action, the employer has, as a matter of law, satisfied the "upon timely application" requirement in Code of Civil Procedure section 387 governing intervention in general. [1]

In November of 1989 Kingsley Mar was struck by masonry that fell from a San Francisco building damaged in the Loma Prieta earthquake of a month earlier. At the time he was injured Mar was working within the course and scope of his employment with Wells Fargo Bank. Industrial Indemnity Company, the workers' compensation carrier for Wells Fargo, paid Mar statutory workers' compensation benefits. Wells Fargo paid the difference between those benefits and Mar's full salary during his…