MONICA D. COOPER VS. THANH K. CHUNG, ET AL.

July 10, 2026 Law and Motion Calendar

HONORABLE MICHAEL L. MAU, Department 20 ________________________________________________________________________ liabilities, damages, attorney fees and claims of every type, arising out of any acts relating to Belong’s or its employees or agents acts relating to management, leasing, rental security deposits, or operation of the rental property at issue in this litigation, or the performance or exercise of any of the duties, powers or authorities granted to Belong. (Decl. Segundo Alfonso filed April 20, 2026, iso Motion, ¶¶ 3&4, Exhs. A & B.)

Defendant Chung opposes, contending that the motion is procedurally defective having improperly combined two distinct legal obligations, the duty to defend and the duty to indemnify. Additionally, the indemnity clause itself is broad and does not include the negligence and misconduct allegations included in the underlying complaint. Thus, because Belong’s liability has not been established, the duty to indemnify is prematurely sought. Even if it were, however, Belong fails to carry its burden that there are no triable issues of material facts because the evidence in support includes inadmissible and unsupportive evidence. Lastly, the indemnity clause itself is unconscionable procedurally and substantively which renders it unenforceable.

A. Evidentiary Objections

Defendant Chung raises a total of 31 evidentiary objections to the two declarations Beyond Home submits in support of their motion. “In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion.” (Code Civ. Proc., § 437c, subd. (q).) The Court rules as follows:

Objections 1 through 30 to the Declaration of Segundo Alfonso: OVERRULED. Relevant.

Defendant Chung raised one evidentiary objection to the Declaration of Marissa Nebenahl, Exhibit 1, p. 96:10-18 which is OVERRULED. Relevant.

B. Legal Standard

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, ... if the party contends that ... there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action ... A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).) A motion for summary adjudication “shall proceed in all procedural respects as a motion for summary judgment.” (Code Civ. Proc., § 437c, subd. (f)(2).)

“The party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Code Civ. Proc. § 437c, subd. (a); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A triable issue of material fact exists if the evidence would allow a reasonable trier of fact to find the underlying

July 10, 2026 Law and Motion Calendar

HONORABLE MICHAEL L. MAU, Department 20 ________________________________________________________________________ fact in favor of the party opposing the motion in accordance with the applicable standard of proof. (Ibid.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467; Code Civ. Proc. § 437c, subd. (c).)

C.

Discussion

The Court’s initial question regards the applicability and scope of the indemnity clauses found in the parties’ June 24, 2021, and October 19, 2021 agreements with one another. (Decl. Matthew G. Salazar, filed June 18, 2026, iso Opp., Ex. 3, ¶4(b), Ex. 4, ¶4(b).) “Indemnity involves “the obligation resting on one party to make good a loss or damage another party has incurred.” (Maryland Casualty Co. v. Bailey & Sons, Inc. (1995) 35 Cal.App.4th 856, 864, 41 Cal.Rptr.2d 519, italics added (Maryland Casualty).)” (Rooz v. Kimmel (1997) 55 Cal.App.4th 573, 582 (Rooz).)

[O]ur Supreme Court, while acknowledging this general rule, has held that “whether an indemnity agreement covers a given case turns primarily on contractual interpretation, and it is the intent of the parties as expressed in the agreement that should control. When the parties knowingly bargain for the protection at issue, the protection should be afforded. This requires an inquiry into the circumstances of the damage or injury and the language of the contract; of necessity, each case will turn on its own facts.” (Rossmoor, supra, 13 Cal.3d at p. 633, 119 Cal.Rptr. 449, 532 P.2d 97; Morton Thiokol, supra, 193 Cal.App.3d at p. 1028, 238 Cal.Rptr. 722.)

(Rooz, supra, 55 Cal.App.4th at 583.)

Here, Defendant Beyond Home asserts that the indemnity agreement between the parties is unequivocally clear that Defendant Chung must “defend...Belong and its employees and agents, as permitted by law, from all costs, expenses, suits, liabilities, damages, attorney fees and claims of every type, including, but not limited to, those arising out of injury or death of any person, or damage to any real or personal property of any person[.]” (SSUMF Nos. 5, 6, 10.) Because Plaintiff’s claims specifically relate to “acts relating to the management, leasing, rental, security deposits, or operation of the Property by Belong, or its employees or agents, or the performance or exercise of any of the duties, powers or authorities granted to Belong” (SSUMF Nos. 5, 6, 9, 10) Thus, the claims raised in the complaint are included in the express language of the indemnity agreement, and Chung’s duty to defend Belong arose immediately upon Belong’s tender of defense regardless of any finding of liability for negligence or Defendant’s affirmative defenses.

See, Civil Code Section 2778, subpart (3).

“[A] contractual indemnitor has the obligation, upon proper tender by the indemnitee, to accept and assume the indemnitee’s active defense against claims encompassed by the indemnity

July 10, 2026 Law and Motion Calendar

HONORABLE MICHAEL L. MAU, Department 20 ________________________________________________________________________ provision.” Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal.4th 541, 555. “[T]he duty arises immediately upon a proper tender of defense by the indemnitee, and thus before the litigation to be defended has determined whether indemnity is actually owed.” Id. at 558. Here Belong tendered the defense of this action to Mr. Chung on October 18, 2024. SSUMF, ¶11. Opposing party concedes this tender of defense.

Separate Statement in Opposition (“SSiO”) ¶ 11. Further, even a cursory review of Plaintiff’s Complaint demonstrates that some allegations clearly fall within the provisions of the above clause that would require a defense. Though the indemnity clause at issue is not in the insurance context, the issue is analogous, that the duty to defend is very broad and includes covered and non-covered claims. See generally, Waller v. Truck Ins. Exchange (1995) 11 Cal.4th 1, and Horace Mann Ins. Co. v. Barbara B. (1993) 4 Cal.4th 1076.

The Motion for Summary Adjudication is thus GRANTED on the duty to defend, i.e. Thanh K. Chung had a duty to defend Belong Homes, Inc. from the date of tender on October 18, 2024.

However, the duty of indemnity is a separate matter. The Court’s reading of the indemnity agreement reveals the utter lack of any reference to active negligence. Instead, the clause somewhat cryptically refers to “costs, expenses, suits, liabilities, damages, attorney fees and claims of every type, including, but not limited to, those arising out of injury or death of any person, or damage to any real or personal property.” (See Salazar Decl. Ex. 3 ¶4(b).) The Court finds the lack of the use of the word “negligence” renders the indemnification clause in this case a general indemnity provision, and the omission of any reference to “active negligence” excludes this type of claim from the scope of indemnification. Likewise, the indemnity clause also does not address intentional or willful misconduct.

As noted by the California Supreme Court in Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal.4th 541, “if one seeks, in a noninsurance agreement, to be indemnified for his or her own active negligence or regardless of the indemnitor's fault—protections beyond those afforded by the doctrines of implied or equitable indemnity—language on this point must be particularly clear and explicit ....” (Id. at p. 552, emphasis added.) That is not the case with this agreement.

Furthermore, the potential liability for and plaintiff’s alleged damages have not yet been adjudicated. Trial on this matter is still forthcoming. Moving parties’ Separate Statement does not claim (nor can it claim) that liability for and plaintiff’s alleged damages are not triable issues. Conversely, responding parties’ SSiO demonstrates triable issues. SSiO, Response ¶ 10, and Disputed ¶¶ 2-5, and 7-8. “The duty to indemnify does not arise until liability is proven.” Aluma Systems Concrete Construction of California v. Nibbi Bros, Inc. (2016) 2 Cal.App.5th 620, 627 (citations omitted).

Accordingly, defendant Beyond Home’s motion for summary adjudication is DENIED as to the duty of indemnity.

Relatedly, the Court agrees with Belong Home, that Chung has failed to raise its unconscionability argument as an affirmative defense as required, and therefore that argument need not be addressed substantively. See, Answer filed 1/15/2025. Murphy v. Twitter, Inc. (2021) 60 Cal.App.5th 12, Fn. 11 (“unconscionability is an affirmative defense”)

July 10, 2026 Law and Motion Calendar

HONORABLE MICHAEL L. MAU, Department 20 ________________________________________________________________________

Any party who contests a tentative ruling must email Dept20@sanmateocourt.org with a copy to all other parties by 4:00 p.m. stating, without argument, the portion(s) of the tentative ruling that the party contests.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, Counsel for the prevailing party shall prepare for the Court’s signature a written order consistent with the Court’s ruling pursuant to CRC Rule 3.1312 and provide written notice of the ruling to all parties who have appeared in the action, as required by law and by the CRC. Please note that Local Rule 3.403(b)(iv) states in part “prevailing party on a tentative ruling is required to prepare a proposed order REPEATING VERBATIM the tentative ruling” (emphasis added). The order should be filed or e-filed only, do not email or mail a hard copy to the Court.

July 10, 2026 Law and Motion Calendar

HONORABLE MICHAEL L. MAU, Department 20 ________________________________________________________________________

09:00 AM 24-CIV-05635 MONICA D. COOPER VS. THANH K. CHUNG, ET AL. LINE 4

MONICA D. COOPER ERIC L. TOSCANO THANH K. CHUNG MATTHEW G. SALAZAR

DEFENDANT/CROSS-COMPLAINANT: BELONG HOME, INC’S TO COMPEL AN INDEPENDENT MENTAL EXAMINATION OF PLAINTIFF MONICA COOPER

TENTATIVE RULING:

Defendant Beling Home, Inc.’s Motion to Compel Independent Medical Examination (“IME”) of Plaintiff Monica Cooper is GRANTED, as follows:

Discovery by mental examination is permitted when "the mental or physical condition . . . of that party or other person is in controversy in the action." (Code Civ. Proc. section 2032.020 subd. (a).) The same subsection requires that "[t]he court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown." (Id.) The motion must "specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty" of the examiner. (Code Civ. Proc. section 2032.310.)

The Motion specifies that the examination is to be conducted by Dr. John M. Greene M.D. (“Dr. Greene”) at his offices located at 634 North Santa Cruz Avenue, Suite 210, Los Gatos, California 95030. (Motion, at p. 2:1-3.) It further specifies Dr. Greene’s specialty in psychiatry and describes that he will administer tests including the Minnesota Multiphasic Personality Inventory – 3 (“MMPI-3”), the Millon Clinical Multiaxial Inventory – IV (“MCMI-IV”), and the Rotter Incomplete Sentence Blank over a period of seven hours. (Id., at p. 2:4-10.)

The Motion does not specify the date and time of the examination, although Defendant’s meet and confer correspondence indicates that Dr. Greene is available on July 10, 2026 at 10:00 a.m., and Defendant submits evidence that the parties have recently agreed to conduct the examination at that date and time. (Hatcher Decl., ¶3, Exh. A; Hatcher Decl. ISO Reply, ¶2, Exh. A.)

Defendant contends that because Plaintiff alleges that Belong Home’s conduct and omissions caused her psychological harm, she has placed her mental condition in controversy. This is supported by Plaintiff’s allegations of interference with her ability to function at home, psychological harm, and severe emotional distress. (See Complaint, ¶¶ 21-15, 47, 92.) Good cause therefore exists to compel the examination.