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Court of Appeal:
Any ‘Adverse Party’ May Oppose Summary Judgment Motion
In Case of First Impression, Opinion Declares That Codefendants Are Entitled to Challenge One Another’s Unopposed Request Even if There Are No Cross-Claims Between Them
By Kimber Cooley, associate editor
Div. Two of the Fourth District Court of Appeal has held that codefendants may oppose one another’s motions for summary judgment, where the plaintiff fails to do so, if they are “adverse” in the sense of having incompatible competing interests in the outcome of the litigation, regardless of whether either one has filed a cross-claim against the other.
The decision, filed Monday and publicly released yesterday, was written by Justice Carol D. Codrington and joined in by Presiding Justice Manuel A. Ramirez and Justice Frank J. Menetrez. The court declared:
“This case raises an issue of first impression under California law: when a defendant moves for summary judgment, but the plaintiff does not oppose the motion, may another party oppose the motion? We hold that the party may do so if that party and the defendant are adverse to one another. We further hold that there need not be cross claims between those parties for them to be adverse to one another.”
The question arose in litigation over a 2019 deadly accident that occurred at a construction project on the campus of Monte Vista High School in San Diego County. Two construction workers, Omar Nuro and Jose Navarro, fell from a 30-foot-tall platform after a beam extending from the base failed; Nuro suffered injuries, and Navarro died.
After the incident, Nuro and Navarro’s family members sued Wiseman + Rory Structural Engineers (“WRSE”), the structural engineer of record for the project, and Balfour Beatty Construction LLC, which was purportedly the company hired by the school district to oversee the construction, among other parties, asserting negligence and other causes of action.
Plaintiffs’ Employer
They did not assert claims against RND Contractors Inc.—Nuro and Navarro’s employer—which was hired to complete the structural steel framing and to prepare the erection drawings, procedures, and bracing plans. However, Balfour filed a cross-claim against RND, alleging that the construction company’s contract with the school district mandated that it defend and indemnify Balfour.
Following a year of discovery, WRSE moved for summary judgment, asserting that the collapse happened because of the steel section’s negligent construction, not its faulty design. After Nuro and Navarro’s family members filed statements of non-opposition to the request, RND and Balfour opposed the motion, claiming that WRSE’s design plans, calling for the use of two allegedly inadequate bolts, caused the collapse.
San Bernardino Superior Court Judge Gilbert G. Ochoa ruled that RND and Balfour lacked standing to oppose the motion and granted summary judgment in favor of WRSE. The jurist acknowledged that “[t]here is no precedent for this issue” and the question is “ripe for further appellate work,” but pointed to federal and unpublished state decisions finding that codefendants may only oppose each other’s motions if there are cross-claims between them.
RND filed a petition for a writ of mandate requesting that the Court of Appeal direct the trial court to vacate its order and consider the other defendants’ oppositions. Monday’s opinion grants these requests.
Deeply Split
Codrington said that “federal district courts are deeply split on whether a defendant may oppose a codefendant’s motion for summary judgment when, as here, the plaintiff does not oppose it and there are no cross-claims” between them, and noted that each side urges the court to follow the cases supporting its position.
Declining to “discuss these cases,” she looked to dicta in the 2001 California Supreme Court case of Aguilar v. Atlantic Richfield Co. that she said was “highly persuasive.” In the decision, the high court clarified the law surrounding motions for summary judgment and outlined the burden-shifting framework to govern the analysis.
As part of its review of governing law, the court considered Code of Civil Procedure §437c(b)(2), which provides:
“An opposition to the motion shall be served and filed not less than 20 days preceding the noticed or continued date of hearing, unless the court for good cause orders otherwise. The opposition, where appropriate, shall consist of affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.”
In an opinion authored by Justice Stanley Mosk, now deceased, the court broadly interpreted this section as providing that any party that is “adverse” to the movant may oppose a motion for summary judgment.
Saying that “there was no dispute in that case over who could oppose a summary judgment motion,” Codrington pointed to case law establishing that dicta from the Supreme Court “should generally be followed” unless there is a good reason to depart from it.
Adverse Party
Finding no such reason not to follow the high court’s statement, she wrote:
“No party cites, and we cannot find, any published California authority defining an ‘adverse party’ in the context of summary judgment motions, but RND notes that the term has been defined in other contexts of California law….
“In other multiparty cases, courts have held codefendants are ‘adverse parties,’ even without cross-claims between them, given their conflicting interests.”
The justice added:
“The common thread in these cases is that parties are deemed adverse to one another if their competing interests in the outcome of the litigation are at odds. For instance, if defendant A was found not liable at trial while codefendant B was found liable, there would be no question that they would be adverse parties if codefendant B moved for a new trial in an effort to shift liability to codefendant A….And when a defendant tries to settle a multidefendant case with a plaintiff, the defendant is adverse to the other codefendants because the defendant is trying to get the best deal for itself, regardless of how it may affect the other codefendants…This is especially true when the codefendants are alleged joint tortfeasors.”
With these principles in mind, she declared:
“The record here shows that RND and WRSE are adverse parties. The ultimate issue in this case is determining who is liable for Plaintiffs’ damages. WRSE, Balfour, and RND are all trying to escape liability by blaming someone else for Plaintiffs’ damages.”
Reasonable Probability
In an unpublished portion of the decision. Codrington said that “we may reverse only” if RND shows that it is reasonably probable that the trial court would have denied the motion had it considered RND’s opposition.
Concluding that the defendant had made such a showing, she pointed to a declaration accompanying the opposition by structural engineer Seb Ficcadenti, opining that WRSE’s design “erroneously” called for the use of three-quarter-inch bolts “at the two cantilevering beam connections that failed, without any indications that additional shoring would be required.” Ficcadenti attributed the cause of the accident to this “deficient specification.”
She said:
“In our view, there is a reasonable probability that, had the trial court considered this evidence and RND’s opposition, it would not have found that Plaintiffs could not succeed on their negligence and wrongful death claims against WRSE. This is because it is reasonably probable that the trial court would have found that WRSE was involved in the project’s design and that there is evidence that suggests the design itself caused the collapse.”
The case is RND Contractors Inc. v. Superior Court (Wiseman + Rohy Structural Engineers), 2025 S.O.S. 1906.
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