California appellate courts have recently provided much needed clarity for defendants wishing to preserve the ability to attribute fault to a potentially culpable co-defendant seeking summary judgment. We previously addressed this issue in a 2021 blog post, highlighting the uncertainty facing defense counsel where granting summary judgment to a co-defendant would preclude an empty chair defense. Two published 2025 decisions now confirm that defendants can oppose a co-defendant’s summary judgment motion directly with no cross-complaint required.
This is a rare and tricky situation. Defendants in multiparty litigation often share interests. Opposing a co-defendant’s motion can inflate costs, strain relationships, and ultimately benefit plaintiffs. But sometimes preserving the ability to attribute fault to a co-defendant is necessary to protect your client.
To do so, defendants must oppose the co-defendant’s motion for summary judgment. But standing presented a threshold hurdle to filing such an opposition. Code of Civil Procedure Section 437c(p)(2) provides that once the moving defendant meets its initial burden, “the burden shifts to the plaintiff or cross-complainant” to show triable issues of fact. The statute does not address whether this burden also shifts to co-defendants. California trial courts therefore held in several unpublished decisions that defendants lack standing to oppose a co-defendant’s summary judgment motion.
In the rare situations in which this arises, defendants would instead need to file a cross-complaint against the moving co-defendant and incur related costs, just to preserve the option to oppose the co-defendant’s summary judgment motion.
The landscape shifted with RND Contractors, Inc. v. WRSE, 112 Cal.App.5th 697 (2025). In that case, the Fourth Appellate District adopted the broad interpretation of § 437c outlined in Aguilar v. Atlantic Richfield Co., 25 Cal.4th 826 (2001). In Aguilar, the California Supreme Court noted in dicta that the statute allows any adverse party to oppose a motion for summary judgment. See RND Contractors, 112 Cal.App.5th at 704. Aguilar did not involve a dispute over who could oppose a motion for summary judgment, but the RND Contractors court found this dicta “highly persuasive.” Id. The RND Contractors court further held that “any party may oppose a motion for summary judgment so long as that party is ‘adverse’ to the moving party.” Id (emphasis in original). The court explained that “parties are deemed adverse to one another if their competing interests in the outcome of the litigation are at odds.” Id. at 705. A defendant seeking settlement is adverse to its co-defendants because it is negotiating the best deal for itself. And a defendant seeking to attribute liability to a culpable co-defendant is also adverse. See id.
Shortly thereafter, the Second Appellate District reached the same conclusion in Bean v. City of Thousand Oaks, 114 Cal.App.5th 775 (2025). The Bean court expressly adopted RND Contractors, confirming that “a codefendant with an adverse interest has standing to oppose a motion for summary judgment whether it has filed a cross-complaint or not.” Id. at 779.
California appellate courts have now solved the culpable co-defendant problem in a way that reduces costs for defendants. In the rare instances where defendants need to preserve the ability to attribute fault to a co-defendant seeking summary judgment, they can oppose the motion directly with no cross-complaint required.
That said, defense counsel should still pick their battles wisely. Consider the implications for your client before opposing a co-defendant’s motion, lest defendant infighting become the norm to the benefit of the plaintiffs’ bar.
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