Great question.
Here’s why.
You remove the non-liable defendant from litigation, and prevent the other remaining defendants from blaming the removed, non-liable defendant. The remaining defendants can’t use the empty chair defense.
Here’s how that could work.
You fall down a poorly lit, broken staircase. You sue the property owner, property manager, and the janitorial company. During discovery, you learn that the janitorial company only cleaned the floors and took out trash. They had no duty to inspect the staircase or change the lights. The company is not liable for what happened.
You can then file a motion for summary judgment arguing that the janitorial company is not liable because it had no duty; if there’s no duty there’s no breach and therefore no negligence. Of course, you would expect that the janitorial company would not oppose the motion. A potential issue, however, is if the remaining defendants oppose the summary judgment. But to succeed, they would have to produce evidence showing the janitorial company had a duty, and there was a breach, etc. Under these facts that seems unlikely. So, the motion should be unopposed.
The Court should then grant your unopposed motion for summary judgment against the janitorial company. If so, that means:
- The janitorial company will not be listed on the verdict form
- The remaining defendants cannot prevent evidence or argument at trial that the janitorial company is a fault. These defendants cannot use the empty chair defense and blame the defendant who is no longer part of the lawsuit.
The key to this approach is CCP § 437c(l), which states “In an action arising out of an injury to the person or to property, if a motion for summary judgment is granted on the basis that the defendant was without fault, no other defendant during trial, over plaintiff’s objection, may attempt to attribute fault to, or comment on, the absence or involvement of the defendant who was granted the motion.”
In other words, if a Court finds a defendant is without fault through granting summary judgment, then no other defendant can blame or even mention that defendant.
