Zenith Ins. Co. v. Bunn-O-Matic CA4/2 (2016) · DecisionDepot
Zenith Ins. Co. v. Bunn-O-Matic CA4/2
California Court of Appeal Jan 29, 2016 No. E062728Unpublished
Filed 1/29/16 Zenith Ins. Co. v. Bunn-O-Matic CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
ZENITH INSURANCE COMPANY,
Plaintiff and Respondent, E062728
v. (Super.Ct.No. MCC1400758)
BUNN-O-MATIC et al., OPINION
Defendants and Respondents;
OLGA GRASSO,
Movant and Appellant.
APPEAL from the Superior Court of Riverside County. Sharon J. Waters, Judge.
Affirmed.
Law Office of Herb Fox and Herb Fox; Law Offices of John P. Rosenberg and
John P. Rosenberg for Movant and Appellant.
Lewis Brisbois Bisgaard & Smith, Anthony E. Sonnett and David B. Litt for
Defendant and Respondent Bunn-O-Matic.
1
Weston Herzog Wenderoff and William S. Weston for Defendant and Respondent
PepsiCo, Inc. (See fn. 1, post.)
Chernow and Lieb and Michael J. Daniels for Plaintiff and Respondent Zenith
Insurance Company.
Movant and appellant Olga Grasso was injured at her place of employment. Her
employer was insured for workers’ compensation coverage by plaintiff and respondent
Zenith Insurance Company (Zenith). Zenith paid the loss and pursued a subrogation
action against defendants and respondents PepsiCo, Inc. (PepsiCo)1 and Bunn-O-Matic
(Bunn). Following a global settlement, the subrogation action was voluntarily dismissed
prior to Grasso filing a complaint in intervention. Grasso objected to the dismissal and
moved to set it aside to allow her to intervene. The trial court denied her motion, and she
appeals.
I. PROCEDURAL BACKGROUND AND FACTS
On May 23, 2012, Grasso was injured on the job when she slipped and fell on
liquid near the beverage dispensing machine. She received workers’ compensation
benefits that were paid by Zenith. On May 21, 2014, Zenith filed a subrogation claim
(Zenith action) against Bunn and PepsiCo, the companies who designed, manufactured,
and/or operated the beverage dispensing machine. Zenith claimed that PepsiCo
performed maintenance on the subject beverage dispenser, that the machine was
1 In their reply brief, respondents note that the subrogation claim should have been filed against Grayhawk Leasing, LLC; however, Zenith erroneously sued and served PepsiCo.
2
manufactured by Bunn, and that both PepsiCo and Bunn were responsible for Grasso’s
alleged injuries. Zenith sought damages for the medical expenses, earnings
compensation and other benefits it paid to Grasso as a result of the accident. On May 29,
2014, Zenith served Grasso at her home in Texas with notice of the Zenith action
pursuant to Labor Code section 3853. Bunn filed its answer on June 19, 2014. On
June 20, 2014, Grasso retained attorney John Rosenberg to represent her.
Shortly after the Zenith action was filed, the parties reached a settlement. On
June 27, 2014, one of the defendants filed a notice of settlement, serving all parties,
including Grasso, with a copy.2 On July 9, 2014, Grasso filed her objection to the
settlement along with notice of her intent to intervene. Two days later, she filed and
served an ex parte application for leave to file a complaint in intervention. On July 14,
2014, Zenith filed a request for dismissal without prejudice. The dismissal was entered
that same day and the parties, including Grasso, were served with a conformed copy. On
July 16, 2014, the trial court took Grasso’s ex parte application off calendar, noting that
the case had been dismissed.
On September 30, 2014, Grasso moved to set aside the dismissal so that she could
intervene in the Zenith action. All parties to the Zenith action opposed the motion. A
hearing was held on November 18, 2014, and the trial court denied Grasso’s motion on
the ground that it had no jurisdiction based on the holding in Roski v. Superior Court
(1971) 17 Cal.App.3d 841 (Roski).
2Grasso complains that this notice was not served on her, but only on her workers’ compensation attorney.
3
II. DISCUSSION
Grasso contends the trial court erred in denying her motion to set aside the
dismissal on the basis of the discretionary provisions of Code of Civil Procedure section
473, subdivision (b). However, she argues that the issue “is not merely whether the trial
court abused its discretion. Instead, it declined to exercise its discretion, finding that it
had no jurisdiction. Whether a court has subject matter jurisdiction is a question of law
that is reviewed de novo [citation].”
Code of Civil Procedure section 581, subdivision (b)(1), provides a party with the
almost unlimited right to dismiss an action. (See O’Dell v. Freightliner Corp. (1992) 10
Cal.App.4th 645, 659 (O’Dell).) One primary exception under the statute applies when
another party has filed a pleading seeking affirmative relief. Nonetheless, the voluntary
dismissal of a lawsuit terminates the trial court’s jurisdiction over the matter. (Ibid.)
Here, at the time the parties filed their request to dismiss the entire action on July 14,
2014, Grasso had not yet intervened. As no pleading seeking affirmative relief was on
file at the time, Grasso had no right to block the dismissal. (See Roski, supra, 17
Cal.App.3d at p. 845.)
Both Roski and O’Dell addressed issues similar to the one raised by Grasso, i.e.,
the right of a nonparty to set aside a dismissal in order to intervene. In Roski, after an
injured employee received workers’ compensation benefits, the employer filed suit
against the alleged third party tortfeasor, settled, and filed a voluntary dismissal of the
action. (Roski, supra, 17 Cal.App.3d at p. 843.) The employee sought to set aside the
dismissal so that he could intervene in the action pursuant to Labor Code section 3853.
4
(Roski, supra, at pp. 843-844.) The trial court granted the employee’s motion to vacate
and set aside the dismissal pursuant to Code of Civil Procedure section 473. (Roski,
supra, at p. 843.) On appeal, the Roski court reversed. The court noted that the employee
was entitled to intervene “so long as that action remained pending.” (Id. at p. 844.)
However, because that action had been dismissed, the court held that the trial court
lacked jurisdiction to entertain the employee’s motion. (Id. at p. 846.)
In O’Dell, an injured employee received workers’ compensation benefits and
brought an action against the alleged third party tortfeasor. (O’Dell, supra, 10
Cal.App.4th at p. 651.) The employee settled his case before trial and voluntarily
dismissed the lawsuit. Thereafter, the employer sought to set aside the dismissal so that it
could intervene. (Ibid.) Despite concluding that the employee had not fulfilled its
statutory obligation under the Labor Code to notify the employer of the action or
settlement (O’Dell, supra, at pp. 656-657) the appellate court reasoned that the dismissal
precluded the employer’s action against the third party defendant and that the employer
“is therefore left to whatever remedies it might assert against [the employee] either by
suit for breach of the duty to notify or as a credit against future compensation benefits it
may have to pay [him].” (Id. at p. 662.)
The present situation is governed by the holdings in Roski and O’Dell. The fact
that Grasso had filed an ex parte application seeking leave to intervene prior to the entry
5
of the dismissal is irrelevant.3 Until her complaint was filed, she was not a party to the
Zenith action. The trial court’s concern that the voluntary dismissal was in some way
“strategic”4 was misplaced. It does not matter whether the dismissal was intended to
block Grasso’s assertion of her claims in the Zenith action. The parties were legally
entitled to do so and Grasso was not entitled to a further opportunity to press her tardy
claims. No legal basis existed to vacate the dismissal when entered. (Cf. Code Civ.
Proc., § 473, subd. (b).)
It also is irrelevant whether the statute of limitations on any claim Grasso may
have asserted against PepsiCo or Bunn may have now passed, barring Grasso from filing
a separate action for relief. The Labor Code was set up to “grant the employee and the
employer the right to share in each other’s judgment or settlement.” (County of San
Diego v. Sanfax Corp. (1977) 19 Cal.3d 862, 872.) However, it does not extend the
statute of limitations for the employee or the employer. (Id. at p. 886 [the statutory
scheme of the Labor Code does not extend the statute of limitations beyond that of the
employee]; see also Fairmont Ins. Co. v. Frank (1996) 42 Cal.App.4th 457, 460 [an
employee was prohibited from intervening in the subrogation action because he failed to
diligently prosecute his own lawsuit, which was dismissed].)
3 Code of Civil Procedure section 387 requires an individual not named as a party to an action to seek leave of court for permission to intervene.
4 “I really do feel as if the settlement was expedited simply to try to avoid the plaintiff . . . from intervening.”
6
The trial court did not err in denying Grasso’s motion to set aside the dismissal.
III. DISPOSITION
The order is affirmed. Respondents shall recover costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST Acting P. J. We concur:
MILLER J.
CODRINGTON J.
7
AI Brief
AI-generated · verify before citing
Holding. The trial court correctly denied a nonparty's motion to set aside a voluntary dismissal because the court lost jurisdiction over the action once the dismissal was entered and no complaint in intervention had been filed.
Issues
Does a trial court retain jurisdiction to set aside a voluntary dismissal to allow a nonparty to intervene after the dismissal has been entered?
Does a pending ex parte application for leave to intervene prevent a party from exercising its right to a voluntary dismissal under Code of Civil Procedure section 581?
Disposition. affirmed
Quotations verified verbatim against the opinion
“the voluntary dismissal of a lawsuit terminates the trial court’s jurisdiction over the matter.”
“Until her complaint was filed, she was not a party to the Zenith action.”
“The parties were legally entitled to do so and Grasso was not entitled to a further opportunity to press her tardy claims.”