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Court of Appeal:
Cross-Complaint Need Not Be Filed to Oppose Summary Judgment Sought by Co-Defendant
By a MetNews Staff Writer
A defendant may oppose a motion for summary judgment filed by another defendant with an adverse interest without the need of filing a cross-complaint, Div. Six of this district’s Court of Appeal declared yesterday.
The issue arose because Code of Civil Procedure §437c(p)(2) makes reference to opposition filed by a “defendant or cross-defendant” to a plaintiff’s motion for summary judgment but says nothing about a co-defendant’s standing to counter efforts of another party that’s been sued seeking exoneration. Ventura Superior Court Judge Jeffrey G. Bennett had declined to consider opposition by the City of Thousand Oaks to a motion filed by Gina L. Goode who, along with the municipality, was sued by Bonnie Bean for negligence and premises liability after tripping on a public sidewalk.
Bennett reasoned that the city was obliged to file a cross-complaint and hadn’t.
Baltodano’s Opinion
The accident was allegedly caused by a tree in the “parkway,” the grass-covered area between the curb and sidewalk.
Justice Hernaldo J. Baltodano authored the opinion proclaiming that the filing of a cross-complaint was not necessary.
That observation is dictum, only, because the jurist went on to say that under a 1984 Court of Appeal opinion by this district’s Div. Seven in Jones v. Deeter, Thousand Oaks, alone, bears responsibility for the condition of parkways because it exercises control over them. Summary judgment was properly granted in favor of Goode, he concluded.
Policy Consideration
In explaining why the city did not need to file a cross complaint, Baltodano noted that “the City and Goode were adverse parties” and said that “granting summary judgment in favor of one alleged tortfeasor, Goode, would preclude the City, as another alleged tortfeasor with an adverse interest to Goode, from seeking to attribute fault to Goode.” He wrote that “prohibiting a defendant with an interest adverse to that of another defendant from opposing a motion for summary judgment would run afoul of” the policy of deciding cases on the merits.
Legislative history does not indicate to the contrary, he said.
“Even if the City were required to file a cross-complaint to oppose summary judgment, we conclude it did so here,” Baltodano added, pointing out that the city attempted to file such a pleading but the Clerk’s Office bounced it because leave of the court had not been secured. Under Code of Civil Procedure §428.50(b). he said, leave need not be obtained to file a cross-complaint against a co-defendant.
The case is Bean v. City of Thousand Oaks, 2025 S.O.S. 2580.
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