The Culpable Co-Defendant Problem: How to Preserve Your Client’s Defenses After a Culpable Co-Defendant Files a Motion for Summary Judgment in California State Court


Defense attorneys involved in California multi-defendant product liability lawsuits are familiar with the challenge of properly balancing the need to preserve their clients’ defenses with the strategic importance of maintaining cooperation among co-defendants.  In many cases, co-defendants’ interests are aligned, and they find the strategic benefits of cooperation outweigh any benefits of finger-pointing amongst one another.  Indeed, co-defendant infighting is risky on several fronts—it can help the plaintiffs, increase defense costs, create animosity among possible business partners, and chill future cooperation with defendants who regularly blame their co-defendants.  Inevitably, however, cases arise that involve a culpable co-defendant and a client wants to preserve its ability to attribute fault to the co-defendant at trial.  This issue becomes complex and the specific language of California Code of Civil Procedure Section 437c(l) comes into play when the co-defendant seeks no-fault summary judgment.

Section 437c(l) operates to limit the extent to which defendants can attribute legal fault at trial to defendants who were dismissed through no-fault summary judgment.  Specifically, Section 437c(l) provides that “if a motion for summary judgment is granted on the basis that the defendant was without fault, no other defendant during trial, over plaintiff’s objection, may attempt to attribute fault to, or comment on, the absence or involvement of the defendant who was granted the motion.”  Cal. Civ. Proc. Code § 437c(l).  In other words, remaining defendants cannot assert the empty chair defense to attribute legal fault to co-defendants who obtained summary judgment.

Plaintiffs’ counsel are no doubt aware of this issue, and tactically may elect not to oppose a summary judgment motion in order to preclude one defendant from attributing liability to the co-defendant who may obtain summary judgment.  That means defendants cannot take for granted that their co-defendants’ summary judgment motions will be opposed.  What then are defense counsel to do in order to preserve the ability to attribute fault to a co-defendant whose summary judgment motion is pending?

The seemingly obvious answer is to take matters into their own hands and oppose the co-defendant’s summary judgment motion especially if the plaintiff does not oppose it.  But even when this course makes strategic sense, it is easier said than done.  As a threshold issue, such defendants will face the question of whether they have standing to oppose a co-defendant’s summary judgment motion.

This issue has rarely been addressed by California appellate courts, and there are no published appellate opinions on point.  However, the few trial courts that have examined the issue have relied on Code of Civil Procedure Section 437c(p)(2) in finding that defendants do not generally have standing to oppose a co-defendant’s summary judgment motion.  See, e.g., Arreola v. Preferred IPA of California, No. BC 629841, 2017 WL 11439854, at *2 (Cal. Super. Dec. 26, 2017); Reynolds v. Cookie Cutter Pools, Inc., No. 34-2010-00086020, 2012 WL 12910743, at *1 (Cal. Super. Oct. 17, 2012); Stapleton v. Pacific Const. Group, No. BC 613913, 2018 WL 9490056, at *1 (Cal. Super. Mar. 27, 2018).  That is because Section 437c(p)(2) expressly provides that once a defendant moving for summary judgment meets their initial burden, “the burden shifts to the plaintiff or cross-complainant” to show triable issues of fact.  Cal. Civ. Proc. Code § 437c(p)(2) (emphasis added).  California trial courts have therefore reasoned that the omission of language shifting the burden also to “co-defendants” means the plain language of the statute does not provide for a defendant to oppose a co-defendant’s summary judgment motion.  See Arreola, 2017 WL 11439854, at *2; Reynolds, 2012 WL 12910743, at *1; Stapleton, 2018 WL 9490056, at *1.

Defense counsel therefore should anticipate a dispute over standing and that a California court may find their clients do not have standing to oppose a co-defendant’s summary judgment motion.  Although this may be an obstacle to preserving a client’s ability to attribute fault at trial to a culpable co-defendant, all hope is not lost.  In fact, the above language from Section 437c(p)(2) also offers a solution:  filing a cross-complaint against the co-defendant.  Indeed, California trial courts have held that the filing of a cross-complaint makes all the difference in finding that a defendant has standing to oppose that co-defendant’s motion for summary judgment.  See Buncio v. Ophir Management Services, No. BC669756, 2019 WL 9595744, at *1-2 (Cal. Super. Sept. 24, 2019).

Defendants in product liability cases and their counsel are often understandably hesitant to file cross-complaints against co-defendants (as noted above, infighting among co-defendants is risky and may involve business relationships among defendants that need to be considered).  Accordingly, while defendants and their counsel would be wise to carefully consider the pros and cons of such an action on a case-by-case basis, when faced with a particularly culpable co-defendant threatening to escape a case on an unopposed motion for summary judgment, filing a cross-complaint and preparing an opposition to the co-defendant’s summary judgment motion may be necessary to preserve a remaining defendant’s ability to attribute fault to the co-defendant at trial.

The material contained in this communication is informational, general in nature and does not constitute legal advice. The material contained in this communication should not be relied upon or used without consulting a lawyer to consider your specific circumstances. This communication was published on the date specified and may not include any changes in the topics, laws, rules or regulations covered. Receipt of this communication does not establish an attorney-client relationship. In some jurisdictions, this communication may be considered attorney advertising.

About the Author: David P. Koller

David Koller advises clients throughout product liability cases, developing and executing strategies to overcome their specific challenges.

About the Author: Joseph Tanner

Joe Tanner solves product liability issues for global and regional companies. He is experienced in complex litigation and trials, multidistrict litigation (MDL), and national defense coordination, as well as finding business solutions through alternative dispute resolution, regulatory compliance and risk avoidance strategies. Joe leads Faegre Drinker's nationally ranked product liability & mass torts group.

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