| Case | County / Judge | Motion | Ruling | Indexed | Hearing |
|---|
Motion For Reconsideration; Motion To Vacate Dismissal
Matter on the Law & Motion/Discovery Calendar for Friday, September 11, 2025, line 3 CLAIMANT LARGO CONCRETE INC./THE HARTFORD'S Motion For Reconsideration Or, In The Alternative, Motion To Vacate Dismissal Pursuant To Ccp Sections 473(B) And 473(D). (tentative ruling part 1 of 2)
Largo Concrete's Motion for Reconsideration and to Vacate Dismissal is DENIED. As a nonparty, Largo Concrete may not seek these remedies.
Plaintiff Isai Lerin-Carrera filed a personal injury action on August 10, 2023, naming Suffolk Construction as the sole defendant and alleging a cause of action for negligence for a workplace incident that took place on April 3, 2023. Isai Lerin-Carrera alleges that he was employed by Largo Concrete and injured during the scope of employment while working in an elevator shaft at a construction project. Because Isai Lerin-Carrera's injury arose in the course of his employment with Largo Concrete, he received worker's compensation benefits from Largo's carrier, The Hartford, but neither Largo Concrete nor The Hartford intervened in the action.
On June 5, 2025, Lerin-Carrera filed a Notice of Settlement of the entire case. On June 30, Largo Concrete and The Hartford filed and served its Notice of Lien asserting a lien for benefits paid to Lerin-Carrera. On July 15, Isai Lerin-Carrera filed a Request for Dismissal. Largo Concrete and The Hartford now ask this court to reconsider or vacate dismissal.
Status of Largo Concrete as a Party: Labor Code sec. 3853 permits an employee or employer to intervene as a party in an action brought by either against a third party who is alleged to be responsible for damage to an employee. (Id. ["If either the employee or the employer brings an action against such third person, . . . the other may, at any time before trial on the facts, join as party plaintiff or shall consolidate his action, if brought independently."].)
Once a case is voluntarily dismissed, however, the action terminates and nonparties can no longer intervene. (O'Dell v. Freightliner Corp. (1992) 10 Cal.App.4th 645, 660-662; Apostolos v. Estrada (1958) 163 Cal.App.2d 8, 12.) Here, Largo Concrete and The Hartford had notice of this matter as early as December 18, 2023, when they were served with a case management conference statement (Flores Dec. para. 4), yet they did not seek intervention before plaintiff the dismissal. Because they failed to intervene, they are not parties and cannot invoke Code of Civil Procedure, sec. 473 or 1008. (
Looking for case law or statutes not cited here? Search published authorities
Examples: “Why did the court rule this way?” · “What were the procedural grounds?” · “Is appearance required?”
A lien does not confer party status absent an order permitting intervention. (Apostolos, supra, at p. 13.) Plaintiffs also retain an absolute right to dismiss under Code of Civil Procedure sec 581. The subsequent filing of a lien does not alter the effect of the dismissal or create standing for nonparties. (O'Dell, supra, 10 Cal.App.4th, at p. 662.) Although Largo argues prejudice from losing an opportunity to have its lien adjudicated, the proper mechanism was intervention under Labor Code sec. 3853. Having failed to intervene, it cannot now obtain relief under sec 473 or 1008.
Service of Notice of Dismissal: Nonparties are not entitled to service of a dismissal. (Apostolos, supra, 163 Cal.App.2d at p. 14.) Thus, Largo's claim that plaintiff erred by not serving it with the dismissal lacks merit. Plaintiff was obligated to serve only the defendants of record, which it did. In any event, Largo had actual notice by June 16, 2025 that Lerin-Carrera would seek dismissal "[i]n the next 30 days or so" without protecting Largo's lien rights. (Flores Dec. Ex. 1.)
(end of tentative ruling part 1 see part 2) = (302/CVA) | |