Aaron Herzberg v. JRG Attorneys at Law, et al.

When a plaintiff moves for summary adjudication, they fulfill their initial burden by demonstrating that there is no defense to a cause of action if they prove each element of the cause of action, thereby entitling them to judgment as a matter of law. [Code Civ. Proc. § 437c, subd. (p)(1).] Failure to meet this burden results in the denial of the motion, ending the inquiry. [Id.]

Even if the moving plaintiff meets their burden, the opposing defendant can still defeat a summary adjudication motion by presenting evidence that raises a triable issue of fact. [Aguilar, 25 Cal. 4th at 849-850.] The defendant cannot rely solely on allegations or denials in their pleadings; instead, they must present specific facts indicating the existence of a triable issue of material fact concerning the cause of action. [Code Civ. Proc. § 437c, subd. (p)(1).] If the defendant fails to do so, summary adjudication should be granted.

The court must liberally construe the evidence presented by the party opposing summary adjudication, resolving all doubts and making all reasonable inferences in favor of that party. [Aguilar, 25 Cal.4th at 844-845.] When reviewing such a motion, the court must consider what inferences a factfinder could reasonably draw that favor the opposing party. [Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.] The main role of the court is to identify issues, not to decide them; only clear and indisputable inferences can lead to a legal resolution. [Ibid.] If evidence conflicts, factual disputes must be resolved during trial. [Ibid.] Furthermore, the trial court cannot weigh evidence as a factfinder would to determine credibility, nor can it grant summary adjudication based on credibility assessments. [Id. at 840.]

Discussion.

A. Plaintiff Fails to Meet His Initial Burden.

Plaintiff fails to meet his initial burden to establish all elements of the express indemnity claim. [Code Civ. Proc. § 437c, subd. (p)(1).] A contractual indemnity claim requires: (1) a contract containing an indemnity clause; (2) performance; (3) a loss within the meaning of the indemnity agreement; and (4) damages resulting from breach. [Gumarang v. Braemer on Raymond, LLC (2025) 110 Cal.App.5th 370, 382.]

Here, Plaintiff’s evidence demonstrates the existence of the Settlement Agreement, his efforts in notifying Defendant, and that a Fee Arbitration Award was granted to JRG Attorneys at Law (“JRG”) against him. [Plaintiff’s Separate Statement of Undisputed Material Facts (“Plaintiff’s Fact(s)”) 1-13, 16, 23, 29-32, 34, 36-38, 43, 45, 47-49, 51-59.] Nonetheless, Plaintiff has not definitively established the third element of his contractual indemnity claim: that a loss within the scope of the Settlement Agreement occurred.

Plaintiff has not demonstrated a matured “loss” because he filed a request for a trial de novo under Business & Professions Code section 6204, subdivision (c), which means the fee claim is now subject to trial, and no final liability has yet been determined. [Plaintiff’s Fact 49.] “Indemnity may be defined as the obligation resting on one party to make good a loss or damage another party has incurred.” [Rossmoor Sanitation, Inc. v. Pylon, Inc. (1975) 13 Cal.3d 622, 628.] Because no final liability has been incurred, Plaintiff has not met his initial burden of proving that all elements of his contractual indemnity claim entitle him to judgment as a matter of law. [Code Civ. Proc. § 437c, subd. (p)(1).]

Plaintiff also fails to show that the Settlement Agreement covers attorney fees. The indemnity clause explicitly excludes indemnification for claims found to result from Plaintiff’s fraud, willful misconduct, or gross negligence. [Plaintiff’s Fact 36.] Plaintiff’s motion papers do

not address this exclusion, including the details regarding why JRG’s invoices were not paid. The burden is on Plaintiff, as the moving party, to prove that the contractual exclusions do not apply. Plaintiff has provided no evidence to demonstrate that the JRG claim did not stem from conduct within the exclusion.

Due to either or both reasons mentioned above, the summary-adjudication motion is DENIED because Plaintiff fails to demonstrate that he is entitled to judgment as a matter of law on his Second Cause of Action against Defendant.

B. Triable Factual Issues Require a Trial.

Plaintiff provided evidence that JRG’s legal services included obtaining a conditional use permit for Pacific Roots Marina, LLC (“Marina”) to operate a cannabis dispensary. [Plaintiff’s Fact 22.] However, significant disputes remain. First, Defendant disputes any agreement to reimburse Plaintiff, and Defendant’s declaration raises a triable issue of fact regarding whether the JRG fees came from Plaintiff’s role or work for Marina as outlined in the Settlement Agreement. [Defendant’s Response to Plaintiff’s Facts 11, 17, 19-22, 24-27.]

Additionally, Plaintiff’s Fact 28 (regarding whether Plaintiff was to be reimbursed for “fronting” legal fees) is materially disputed. [Defendant’s Response to Plaintiff’s Fact 28 (citing Defendant’s Decl. at ¶ 5).] Defendant’s declaration sufficiently shows a triable issue. Thus, even if Plaintiff met his initial summary-adjudication burden, Defendant’s evidence raises triable factual issues sufficient to defeat the motion. The motion is DENIED.

C. Defendant’s Request for Continuance.

Defendant’s request for a continuance [Code Civ. Proc. § 437c, subd. (h)] is DENIED. No affidavit or attorney declaration was submitted demonstrating facts essential to justify opposition that cannot presently be obtained. Defendant’s conclusory assertion that “discovery has not yet been conducted on critical factual issues” is insufficient, particularly given the proximity of the August 24, 2026, trial and statutory discovery cutoff. A continuance is not mandatory where no compliant affidavit is submitted. [Menges, 59 Cal.App.5th at 25.]

Conclusion.

Plaintiff’s motion for summary adjudication is DENIED. Defendant shall prepare the Proposed Order consistent with this Tentative Ruling.

NOTE RE TENTATIVE RULING This tentative ruling becomes the court’s order, and no hearing shall be held unless one of the parties contests it by following Rule 3.1308 of the California Rules of Court and Monterey County Local Rule 7.9. Those parties wishing to present an oral argument must notify all other parties and the Court no later than 4:00 p.m. on the court day before the hearing; otherwise, NO ORAL ARGUMENT WILL BE PERMITTED, AND THE TENTATIVE RULING WILL BECOME THE ORDER OF THE COURT AND THE HEARING VACATED. You must notify the court by email or by calling the Calendar Department at 831-647-5800, extension 3040, before 4:00 p.m. on the court day before the hearing.

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