In Bean v. City of Thousand Oaks, a decision with meaningful implications for public entities, insurers, and defense counsel, the California Court of Appeal held that a codefendant with an adverse interest may oppose another defendant's motion for summary judgment, even if it has not filed a cross-complaint. The court reaffirmed that standing turns on adverse interests, not pleading posture. Despite correcting the trial court's procedural error, the Court of Appeal ultimately affirmed the summary judgment for the adjacent homeowner because no triable issue of fact existed regarding her control over the sidewalk or the parkway tree that allegedly caused the plaintiff to trip and fall.

Case Background: Trip-and-Fall on a Raised Sidewalk and Multiple Defendants

Plaintiff Bonnie Bean tripped on an uneven portion of sidewalk in front of a house owned by Gerardo and Carie Rodriguez. She sued the Rodríguezes and the City of Thousand Oaks for negligence, premises liability, and dangerous condition of public property. In its answer, the City asserted an affirmative defense alleging negligence of third parties.

Bean later amended her complaint to add Gina Goode, who owned the adjacent property. Bean alleged that a tree located in the parkway in front of Goode's home, had roots that "may have caused or contributed" to the uplifted sidewalk. Goode moved for summary judgment, arguing she neither owned nor controlled the sidewalk, and did not create the condition. Bean filed no opposition. The City, concerned about the impact on potential apportionment of fault, opposed the motion by submitting evidence, evidentiary objections, and a separate statement of undisputed facts.

Goode replied that the City lacked standing to oppose the motion because it had not filed a cross-complaint. On the morning of the hearing, the City submitted a cross-complaint, but the clerk rejected it for lack of leave of court. The trial court then ruled the City lacked standing and granted summary judgment for Goode. The City appealed.

Can a Codefendant Oppose Summary Judgment Without a Cross-Complaint?

The appellate court rejected Goode's theory that Code of Civil Procedure section 437c, subdivision(p)(2), bars codefendants from opposing summary judgment unless they have filed a cross-complaint. While the appeal was pending, Division Two of the Fourth District resolved this question in RND Contractors v. Superior Court (2025) 112 Cal.App.5th 697, 699, holding that an adverse codefendant may oppose summary judgment even when the plaintiff does not. The court here adopted the same conclusion.

Statutory Text and Legislative History Support Broad Standing

Section 437c, subdivision (p)(2) provides, "A defendant or co-defendant has met that party's burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or defense thereto." 

The court noted that section 437c's reference to "the plaintiff or cross-complainant" in describing burden-shifting is ambiguous. It stated that the section either, "limits the parties who may oppose a defendant's motion for summary judgment, or merely codifies the burden of proof in such a motion." Applying standard rules of statutory interpretation, including review of legislative history, the court concluded the statute codifies burden allocation- not who may oppose a motion. Estate of Griswold (2001) 25 Cal.4th 904, 911.

The 1992 amendments to section 437c sought to harmonize California practice with Federal Rules of Civil Procedure 56, under which any "nonmovant" may oppose a summary judgment motion. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 848.  Nothing in the statutory history suggests an intent to restrict opposition only to plaintiffs or cross-complainants.

Adverse Parties Must be Allowed to Oppose Summary Judgment

The court emphasized that section 437c, subdivision(b)(3), expressly allows "the opposing party" to submit evidence- including any defendant. California Supreme Court dicta likewise states that "any adverse party may oppose" a summary judgment motion. Aguilar, supra, 25 Cal.4th at 843.

Prohibiting an adverse defendant, such as the City here, from opposing a motion that would eliminate a potential tortfeasor would undermine:

  • The purpose of summary judgment, and
  • The principle of resolving cases on the merits rather than procedural traps. Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1085.

Since the City and Goode were both attempting to shift fault to one another, they were plainly adverse, even without formal crossclaims. RND, supra, 112 Cal.App.5th at 705-706.

Cross-Complaints Against Codefendants Do Not Require Leave of Court

Even if a cross-complaint were required (it was not), the court held that City's cross-complaint was validly filed. Under CCP §428.50(b), a cross-complaint against a codefendant may be filed "at any time before the court has set a date for trial" and does not require leave of court. In this case, no trial date was set; thus, the clerk's determination was erroneous.

A clerk has a ministerial duty to file any document presented in proper form. Voit v. Superior Court (2011) 201 Cal.App.4th 1285, 1287. A document is deemed filed upon delivery to the clerk, regardless of improper rejection. Roijas v. Cutsforth (1998) 67 Cal.App.4th 774, 778.

The timing of the cross-complaint, filed after the City's opposition, was immaterial, as  section 437c only requires that opposition papers be filed 20 days before the hearing, a requirement the City met.

Why the Adjacent Homeowner Still Won: No Duty, No Control, No Liability

After reviewing the record de novo, the appellate court concluded that summary judgment was proper because Bean could not establish essential elements of any claim against Goode. California law has long held that abutting property owners owe no duty to maintain public sidewalks and are not liable for injuries caused by sidewalk defects unless they created the condition or exercised control over the area. Jordan v. City of Sacramento (2007) 148 Cal.App.4th 1487, 1490.

Section 5610 Does Not Create Tort Liability

Street and Highways Code §5610 imposes a duty on property owners to maintain sidewalks fronting their property, but courts have repeatedly held it does not create tort liability to pedestrians absent creation of the defect or control over the sidewalk. "This limitation on liability is referred to as the Sidewalk Accident Decisions Doctrine." Jordan, supra, at 1490-1491. Liability did not attach in the current case because:    

  • Goode's home did not front the slab where Bean fell.
  • She had no dominion or control over that portion of the sidewalk.
  • She had no knowledge of the defect.
  • Owning a property adjacent to a tree is not equivalent to creating a dangerous condition.

Control Over the Parkway Tree was Exclusively the City's

Control, not title, is the decisive factor in sidewalk or tree-related liability. Alcarez v. Vece (1997) 14Cal.4th 1149, 1159. The undisputed evidence showed the City:

  • Inspected and trimmed the tree, including within three years of the incident.
  • Inspected the tree again less than two months before the fall
  • Maintained authority to remove trees damaging sidewalks; and
  • Prohibited private trimming or alteration without City approval. Thousand Oaks Mun. Code section §7-2.906(c), 7-2.907(b).

These facts mirror Jones v. Deeter (1984) 152 Cal.App.3d 798, where the appellate court held that even though the homeowner owned the parkway and performed minor care, the city exercised control, and the homeowner was properly dismissed.

Because the City exercised the "crucial element of control" and Goode neither controlled the sidewalk nor created the defect, no triable issues of material fact existed. Therefore, summary judgment for Goode was correctly granted.

Key Takeaways

The Court of Appeal's decision clarifies two significant procedural and substantive principles:

  • A codefendant with an adverse intent may oppose a summary judgment motion without filing a cross-complaint.
  • Adjacent homeowners are not liable for sidewalk defects absent control or creation of the condition- even where a privately owned tree is involved.

For public entities, insurers, and defendants in multiparty tort actions, the case underscores the importance of timely filing opposition papers when exposure may shift, asserting control-related evidence in sidewalk or tree-root disputes, and understanding the broad standing afforded under CCP §437c.

Judgment was affirmed. 

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