There's a lot to be said favorably about this opinion. Starting with its opening paragraph, which nicely summarizes its holding:
"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 crossclaims between those parties for them to be adverse to one another."
I can very much understand where Justice Codrington is coming from in this regard. We don't want to grant summary judgment unnecessarily. And there are, indeed, real reasons why one defendant might well not want an MSJ granted to a co-defendant; namely, because it might cut off potential future claims for indemnity.
So why not let 'em oppose the MSJ? If the facts are indeed clear, go ahead and grant the motion, but if they're not, deny it. Who cares which particular party felt like writing the brief?
Totally understandable.
Three things, though:
(1) Sure, that solve the MSJ problem. But what about the things that come next? Plaintiff doesn't care, as is evident by its failure to oppose the MSJ in the first place. What is the court going to do when plaintiff doesn't show up for trial, or doesn't put on any evidence about the MSJ-moving defendant? Do you let the co-defendant do plaintiff's job for them at that point too? What about when the MSJ-moving defendant sends an RFA to the plaintiff that says "Admit I'm not liable" and the plaintiff responds "Admit"? Are we going to still let the co-defendant get in the way? As a practical matter, it just seems like this holding simply kicks the problem down the road -- with additional expense and complexity -- rather than actually solving it.
(2) As the opinion notes, there's a split in the federal district courts on this exact issue. Some allow the co-defendant to oppose the MSJ, and some don't. Justice Codrington says that she doesn't have to wade into this dispute because there's a California Supreme Court opinion that once said that "any adverse party may oppose the motion," so that means that ANY adverse party -- including a co-defendant -- necessarily can file an opposition. Justice Codrington admits that this statement is dicta, since the case itself had nothing whatsoever to do with that procedural issue, but notes that dicta from higher courts should generally be followed, so that's what she's doing here.
But is that sentence from the prior opinion really "dicta" in the relevant manner? What we usually mean by "dicta" -- and why lower courts generally follow it -- is that it's a holding, albeit an unnecessary one, from the higher court. But there's a difference, in my view, anyway, between true "dicta" on the one hand and something that the higher court merely "once said" -- at least in terms of the general rule that we try to follow it. Dicta that involves a considered judgment is one thing. That we generally follow, even if the issue was technically unnecessary to the result. But random background sentences -- which is, respectfully, what's at issue here -- are another thing.
Imagine, for example, that in the course of an opinion about a particular person's conviction for contempt of court, where the core issue was simply whether that person had indeed engaged in contemptuous conduct (say, by appearing shirtless in court), the California Supreme Court's opinion contained the following sentence: "It is self-evident that any court could validly impose contempt upon a person who appeared naked in a courtroom." Then, many years later, X appears naked in a San Diego courtroom, and for some inexplicable reason, a trial court in Alpine County, with zero connection to the dispute or parties, enters an order holding X in contempt. Well, the California Supreme Court did indeed say that "any court" can validly enter a contempt citation in such settings, right? So we follow that dicta, correct?
I think not. Sometimes courts just say things. They use imprecise language. They write background sentences without thinking much about them. Those types of things, in my view, are not true "dicta" that we generally follow. They're instead entitled to a much weaker form of deference. Yes, we might well go ahead and follow those literal words if it makes sense. But if it doesn't, we shouldn't. When the words are something that the higher court didn't think about at all -- which is pretty clearly the case with the sentence Justice Codrington relies upon here -- I think it's a mistake not to wade into the debate on the merits and figure out which side in the split of non-controlling authorities has the better of the argument. Maybe, in the end, the outcome here is the right one. But we shouldn't just blindly follow a throwaway sentence of a higher court just because, literally read, it might potentially provide an answer to the issue here.
(3) Finally, isn't there an easier way to deal with the underlying problem? The reason the co-defendant is an "adverse" party is because, Justice Codrington says, they might not be able to sue for indemnity if the MSJ is granted, since (after all) a court has already found that the moving party isn't liable. Why don't we just solve that issue? Can't we just hold that where, as here, a defendant moves for MSJ without any opposition, the issue was not resolved at a contested proceeding and hence isn't entitled to any issue preclusive effect? Which, in turn, would mean that the co-defendant isn't really an "adverse" party in any event, and so isn't obligated (and can't) oppose the MSJ? Wouldn't that be a more direct way to solve the underlying problem rather than having to deal with all the post-MSJ procedural complexities identified above in (1)?
Again, I appreciate Justice Codrington's opinion, and she might well have the better of the argument here.
But maybe not. Maybe there's an easier, and perhaps better, way.
