M V P Construction, LLC vs. Davis/Reed Construction, Inc.

A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a

34-2021-00306654-CU-BC-GDS: M V P Construction, LLC vs. Davis/Reed Construction, Inc. 07/15/2026 Hearing on Motion for Summary Adjudication Re Townsend & Schmidt Masonry in Department 8D

reporter from the Court’s Approved Official Reporter Pro Tempore list.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will forward the form to the Court Reporter’s Office and an official reporter will be provided.

TENTATIVE RULING:

Plaintiff and Cross-Defendant Davis/Reed Construction, Inc.’s (“DRC”) motion for summary adjudication of Townsend & Schmidt Masonry’s (“Townsend”) duty to defend is DENIED as follows.

This is a consolidated action consisting of three different complaints and multiple crosscomplaints. Notwithstanding the multitude of complaints and cross-complaints, DRC makes this motion seeking summary adjudication of “Townsend’s Duty to Defend [DRC] is proper” but does not identify any complaint or cross-complaint, whatsoever, in its notice of motion. Accordingly, it is unclear from the notice of motion under what complaint(s) and/or crosscomplaints in this consolidated action DRC is seeking a determination of duty.

DRC’s failure in this regard creates a due process issue as its notice of motion does not provide adequate notice to Townsend as to the parameters of this motion. Indeed, the pleadings define the scope of the issues on a motion for summary judgment or summary adjudication. (FPI Dev. Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.) Because a motion for summary judgment or summary adjudication is limited to the issues raised by the pleadings (Lewis v. Chevron (2004) 119 Cal.App.4th 690, 694), all evidence submitted in support of or in opposition to the motion must be addressed to the claims and defenses raised in the pleadings.

As no opposition has been filed, there has been no waiver of any defect in the notice based on a response on the merits. Accordingly, the Court finds that DRC’s motion for summary adjudication is defective at its inception inasmuch as its notice of motion fails to identify under what complaint(s) and/cross-complaints it is seeking a determination of duty. Thus, DRC’s motion for summary adjudication must be DENIED.

While the Court need not continue, the Court does so to demonstrate that even if notice was not defective, this motion would still be denied. Specifically, on March 25, 2026, default was entered

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2021-00306654-CU-BC-GDS: M V P Construction, LLC vs. Davis/Reed Construction, Inc. 07/15/2026 Hearing on Motion for Summary Adjudication Re Townsend & Schmidt Masonry in Department 8D

on Townsend as to “the complaint or cross-complaint” filed on “August 13, 2025.”

Accordingly, to the extent DRC intended to move for summary adjudication on the issue of duty under its First Amended Complaint filed on August 13, 2025 in Case No. 34-2022-00324435- CU-BC-GDS, such a motion would still be DENIED as DRC fails to provide any authority that the Court can, or should, grant summary adjudication against a defaulted defendant. In this regard, DRC also fails to explain why the order it seeks related to the issue of Townsend’s duty to defend cannot be addressed in the default judgment process.

Additionally, Code of Civil Procedure section 437c subdivision (a) provides:

A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. The motion may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct.

(Underline added for emphasis.)

Code of Civil Procedure section 437c subdivision (f)(2) provides that a motion or summary adjudication proceeds in all procedural respects as a motion for summary judgment. Thus, the plain language of the statute explicitly provides that a motion for summary judgment or adjudication may only be brought after the party against whom the motion is directed has made a general appearance.

A review of the case law supports this conclusion. In Orange County Air Pollution Control Dist. v. Superior Court (1972) 27 Cal.App.3d 109 (“Orange County”), the Court of Appeal considered a prior version of section 437c and held that summary judgment could not be rendered against a non-defaulting defendant prior to that defendant’s filing of an answer. (Orange County, supra, 27 Cal.App.3d at 113-115). After Orange County was decided, the legislature revised section 437c.

Thereafter, the court in Sadlier v. Superior Court (1986) 184 Cal.App.3d 1050 (“Sadlier”) was asked to evaluate whether or not, under the revised language of section 437c, a plaintiff could “obtain summary adjudication of issues pursuant to section 437c against a nondefaulting defendant prior to such defendant’s filing an answer to plaintiff's complaint[.]” (Sadlier 184 CalApp.3d 1050, 1052.) In Sadlier, the plaintiffs initiated their action on September 19, 1985. Defendants made their first general appearance on September 20, 1985, when they opposed

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2021-00306654-CU-BC-GDS: M V P Construction, LLC vs. Davis/Reed Construction, Inc. 07/15/2026 Hearing on Motion for Summary Adjudication Re Townsend & Schmidt Masonry in Department 8D

plaintiffs’ ex parte application for a right to attach order. (Ibid.) The hearing on the motion for summary adjudication was continued to December 17, 1985. (Ibid.) Thus, by the time of the hearing, 60 days had not passed since defendants’ first general appearance, nor had defendants filed an answer to the complaint. (Ibid.) At the hearing the trial court granted the motion for summary adjudication on four issues and denied it as to four other issues.

After first finding that the trial court did not err in permitting the motion although it had been less than 60 days since defendants’ general appearance, the Sadlier Court noted that “the version of section 437c existing in the Orange County case envisioned the prior existence of an answer by the defendant prior to a motion for summary judgment by plaintiff. It stated in part, ‘if it is claimed the action has no merit, or that there is no defense to the action, on motion of either party, ... the answer may be stricken out or the complaint may be dismissed and judgment may be entered....’” (Id., at 1054-1055 quoting Orange County, supra, 27 Cal.App.3d at 113 [italics in original].)

The Sadlier Court then held that, because section 437c has been revised and no longer refers to an “answer”, summary adjudication could be granted against a nondefaulting defendant who had appeared, but had not yet filed an answer. (Id., at 1055.) Accordingly, Sadlier stands for the proposition that, while a defendant need not file an answer, the defendant still must have made a general appearance before a motion for summary adjudication can be made against it.

In sum, the language of section 437c and the relevant California authority both indicate that a motion for summary adjudication can be made only after the party against whom it is directed at has appeared. Here, it does not appear from the Court’s register of actions that Townsend made any appearance as it relates to Case No. 34-2022-00324435-CU-BC-GDS and thus, to the extent DRC seeks summary adjudication against Townsend related to this case, such a motion would also be DENIED for this reason.

This minute order is effective immediately. Pursuant to California Rules of Court, rule 3.1312, DRC shall prepare an appropriate order which conforms to Code of Civil Procedure section 437c(g).