Motion for Summary Judgment, or in the Alternative, Summary Adjudication to the Cross- Complaint of Cross-Complainants Dilip Patel, Devyani Patel, and Gaurang J. Patel by Cross- Defendant Hoge, Fenton, Jones & Appel, Inc.

Factual and Procedural Background

This is a cross-action for professional negligence and related claims brought by crosscomplainants Dilip Patel (“Dilip”), Devyani Patel (“Devyani”), and Gaurang J. Patel (“Gaurang”), individually and derivatively on behalf of Krishna Mountain View, Inc. (“Krishna”) (collectively, “Cross-Complainants”), against cross-defendant Hoge, Fenton, Jones & Appel, Inc. (“Hoge Fenton”).1

According to the cross-complaint, the Cross-Complainants and plaintiff/cross-defendant Bharat Patel (“Bharat”) are the four sole shareholders of nominal defendant and nominal crossdefendant Krishna.2 (Cross-Complaint at ¶ 10.) Krishna’s sole business is the ownership and operation of a Hampton Inns hotel, which is a Hilton franchisee, located in Mountain View, CA. (Ibid.) Cross-Complainants and Bharat all hold equal, 25% shares in Krishna. (Ibid.) Devyani and Gaurang are essentially silent partners and perform few or no duties for Krishna. (Ibid.) Dilip however performs the vast majority of the work, though Bharat is also personally involved in the operation of Krishna. (Ibid.)

In August 2022, Dilip contacted Hoge Fenton regarding Krishna. (Cross-Complaint at ¶ 11.) Dilip wanted to be compensated in some way by Krishna for his work and asked Hoge Fenton if they could effectuate some kind of legal mechanism by which he could be compensated for his past, present, and future work. (Ibid.) In response, Hoge Fenton prepared the following legal documents: (1) an employment agreement concerning Dilip’s salary for work going forward; and (2) a release agreement, compensating Dilip for his work over the past approximately twenty years (both documents collectively known as the “Hoge Fenton Documents”). (Id. at ¶ 12.)

Cross-Complainants further allege they relied on Hoge Fenton for legal advice based on an implied attorney-client relationship with the law office. (Cross-Complaint at ¶¶ 15, 28.) Hoge Fenton allegedly failed to provide adequate legal advice to Cross-Complainants and was negligent in the preparation of the Hoge Fenton Documents. (Id. at ¶¶ 29-30.) On May 26, 2023, Bharat filed a complaint in the underlying action against Dilip, Devyani, Gaurang, and Krishna (nominal defendant) alleging causes of action for: (1) breach of fiduciary duty; (2) abuse of control; (3) corporate waste; and (4) unjust enrichment.

1 Because Cross-Complainants share a surname, the court refers to them individually by their first name for purposes of clarity. No disrespect is intended. (See

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, fn. 1.) 2 Cross-Complainants Dilip and Devyani are married and Gaurang is Devyani’s brother. (Cross-Complaint at ¶ 13.)

On July 10, 2024, Cross-Complainants filed the operative cross-complaint against Hoge Fenton setting forth causes of action for: (1) implied/equitable indemnity; (2) contribution; and (3) professional negligence.

On September 3, 2024, Hoge Fenton filed an answer to the cross-complaint asserting a general denial and affirmative defenses.

On February 20, 2026, a partial conditional settlement was filed in the underlying action.

On March 12, 2026, Hoge Fenton filed the motion presently before the court, a motion for summary judgment, or in the alternative, summary adjudication to the cross-complaint. Hoge Fenton filed a request for judicial notice in conjunction with the motion. Cross-Complainants filed written opposition. Hoge Fenton filed reply papers and evidentiary objections.

Trial is scheduled for April 12, 2027.

Motion for Summary Judgment, or in the Alternative, Summary Adjudication

Hoge Fenton argues there is no triable issue of material fact as to the claims in the crosscomplaint and thus judgment should be entered as a matter of law. In the alternative, Hoge Fenton moves for summary adjudication of the first, second, and third causes of action.

In opposition, Cross-Complainants argue the motion should be denied as Hoge Fenton did not comply with the mandatory notice requirements set forth in Code of Civil Procedure section 437c, subdivision (a)(2).

“Notice of the motion and supporting papers shall be served on all other parties to the action at least 81 days before the time appointed for hearing. If the notice is served by mail, the required 81-day period of notice shall be increased by 5 days if the place of address is within the State of California, 10 days if the place of address is outside the State of California but within the United States, and 20 days if the place of address is outside the United States. If the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 81-day period of notice shall be increased by two court days.” (Code Civ. Proc., § 437c, subd. (a)(2).)

“[A] trial court does not have authority to shorten the minimum notice period for summary judgment hearings absent the express consent of the parties.” (Urshan v. Musicians’ Credit Union (2004) 120 Cal.App.4th 758, 768 (Urshan).) Also, a trial court abuses its discretion by continuing the summary judgment hearing in an effort to provide the required statutory notice. (See Robinson v. Woods (2008) 168 Cal.App.4th 1258 [trial court abused its discretion by continuing noticed hearing for only four days, in an effort to provide 80 days’ notice].) Moreover, “waiver of the right to the statutorily mandated minimum notice period for summary judgment hearings should not be inferred from silence.” (Urshan, supra, 120 Cal.App.4th at p. 768.)

According to court records, Hoge Fenton filed and served its motion for summary judgment with a hearing date set for August 12, 2026. Hoge Fenton thereafter moved ex parte to

advance the hearing date to June 5, 2026. As court was not in session the week of June 3, 2026, the court denied ex parte relief and scheduled the hearing for May 29, 2026, a date in violation of the 81-day statutory notice for summary judgment motions. Thus, to the extent there is any violation of the notice period, the fault is attributable to the court, not Hoge Fenton. And the court’s calendaring error is not a basis for denying the motion for summary judgment where, as here, it is timely filed. (See Cole v.

Super. Ct. (2022) 87 Cal.App.5th 84, 88 [“ ‘A trial court may not refuse to hear a summary judgment motion filed within the time limits of [Code of Civil Procedure] section 437c. [Citation.] Local rules and practices may not be applied so as to prevent the filing and hearing of such a motion.’ [Citations.]”].) Therefore, the court addresses the instant motion for summary judgment, or in the alternative, summary adjudication on its merits.

Request for Judicial Notice

Hoge Fenton’s request for judicial notice is GRANTED. (Evid. Code, § 452, subd. (d); see Stepan v. Garcia (1974) 43 Cal.App.3d 497, 500 [the court may take judicial notice of its own file].)

Cross-Complainants’ Evidentiary Objections

“In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court...” (Code Civ. Proc., § 437c, subd. (c).)

“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. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” (Code Civ. Proc., § 437c, subd. (q).)

Written evidentiary objections must be made in a separate document and must not be re-stated or re-argued in the separate statement. (Cal. Rules of Court, rule 3.1354(b).) Objections must identify the specific item of evidence that is objectionable. (Ibid.)

In addition, evidentiary objections must be accompanied by a proposed order that complies with the requirements set forth in California Rules of Court, rule 3.1354(c). The rule requires an objecting party to file two separate documents, objections and a separate proposed order, both in one of the approved formats set forth in the rule. (See Cal. Rules of Court, rule 3.1354(b) and (c).) Here, Cross-Complainants asserted objections in response to Hoge Fenton’s separate statement which is not permitted by the rules of court. (See Cross- Complainants’ Disputed Facts at Nos. 21, 26, 28, 30, 46, 50, 71, 75-80, 95-96, 100, 121, 125- 130, 145-147, 150.) Nor do Cross-Complainants submit a separate document or proposed order for the objections in compliance with the rules of court.

Therefore, the court declines to rule on the objections based on the above-described defects. (See Vineyard Spring Estates v. Super. Ct. (2004) 120 Cal.App.4th 633, 642 [trial courts only have duty to rule on evidentiary objections presented in proper format]; see also Hodjat v. State

Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1, 8 [trial court did not abuse its discretion in refusing to rule on improperly formatted evidentiary objections].)

Hoge Fenton’s Evidentiary Objections

The court declines to consider the evidentiary objections submitted by Hoge Fenton with the reply papers as they are not relevant to resolving issues raised by the motion for reasons explained below. (Code Civ. Proc., § 437c, subd. (q).)

Any party may move for summary judgment. (Code Civ. Proc., § 437c, subd. (a); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) “The object of the summary judgment procedure is ‘to cut through the parties’ pleadings’ to determine whether trial is necessary to resolve their dispute. [Citation.]” (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1020 (Spinks).)

“[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact...” (Aguilar, supra, 25 Cal.4th at p. 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.)

A defendant moving for summary judgment may satisfy its initial burden either by producing evidence of a complete defense or by showing the plaintiff’s inability to establish a required element of the case. (Spinks, supra, 171 Cal.App.4th at p. 1021.)

If a moving defendant makes the necessary initial showing, the burden of production shifts to the plaintiff to make a prima facie showing of the existence of a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2); see Aguilar, supra, 25 Cal.4th at p. 850.)

A triable issue of material fact exists “if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar, supra, 25 Cal.4th at p. 850, fn. omitted.) If the plaintiff opposing summary judgment presents evidence demonstrating the existence of a disputed material fact, the motion must be denied. (Id. at p. 856.)

Throughout the process, the trial court “must consider all of the evidence and all of the inferences drawn therefrom.” (Aguilar, supra, 25 Cal.4th at p. 856.) The moving party’s evidence is strictly construed, while the opponent’s is liberally construed. (Id. at p. 843.)

Similarly, “[a] party may seek summary adjudication on whether a cause of action, affirmative defense, or punitive damages claim has merit or whether a defendant owed a duty to a plaintiff. [Citation.] ‘A motion for summary adjudication...shall proceed in all procedural respects as a motion for summary judgment.’ [Citation.]” (California Bank & Trust v. Lawlor (2013) 222 Cal.App.4th 625, 630.)

“[S]ummary judgment (or summary adjudication) is a drastic remedy and should be used with caution. [Citation.] Because summary judgment is a drastic procedure all doubts as to the propriety of granting a motion for summary judgment should be resolved in favor of the party opposing the motion. [Citations.]” (Tully v. World Savings & Loan Assn. (1997) 56 Cal.App.4th 654, 660; see Kernan v. Regents of University of California (2022) 83 Cal.App.5th 675, 684 [“The drastic remedy of summary judgment may not be granted unless reasonable minds can draw only one conclusion from the evidence.”].)

Third Cause of Action: Professional Negligence

To recover against an attorney, a plaintiff (or cross-complainant) must prove each of these elements of his or her cause of action for professional negligence: (1) the duty of the professional to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence. (Hecht, Solberg, Robinson, Goldberg & Bagley LLP v. Super. Ct. (2006) 137 Cal.App.4th 579, 590.)

On summary judgment, “the pleadings frame the issues to be resolved. ‘ “The purpose of a summary judgment [adjudication] proceeding is to permit a party to show that material factual claims arising from the pleadings need not be tried because they are not in dispute.” [Citation.] “The function of the pleadings in a motion for summary judgment [adjudication] is to delimit the scope of the issues: the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” [Citations.]’ [Citations.]” (Snatchko v. Westfield LLC (2010) 187 Cal.App.4th 469, 477.)

In the third cause of action, Cross-Complainants allege an attorney-client relationship had been established between them on the one hand and Hoge Fenton on the other such that an implied attorney-client relationship was in fact formed. (Cross-Complaint at ¶ 28.) Hoge Fenton allegedly failed to provide adequate legal advice to Cross-Complainants, including negligently preparing the Hoge Fenton Documents, which was a substantial factor in causing harm to Cross-Complainants. (Id. at ¶¶ 29-30.)

On summary judgment, Hoge Fenton argues there is no duty to support professional negligence as there was no implied attorney-client relationship between Hoge Fenton and Cross- Complainants.

“A key element of any action for professional malpractice is the establishment of a duty by the professional to the claimant.” (Goldberg v. Frye (1990) 217 Cal.App.3d 1258, 1267.) “No formal contract or arrangement or attorney fee is necessary to create the relationship of attorney and client. It is the fact of the relationship which is important.” (Farnham v. State Bar (1976) 17 Cal.3d 605, 612.)

An attorney-client relationship may be implied rather than express. “Although the relationship usually arises from an express contract between the attorney and the client, it may also arise by implication. [Citations.] ‘ “Neither contractual formality nor compensation nor expectation of

compensation is required.” ’ [Citations.] [¶] The relationship may arise without any direct dealings between the client and the attorney.” (Streit v. Covington & Crowe (2000) 82 Cal.App.4th 441, 444-445, italics added.) “It is the intent and conduct of the parties which is critical to the formation of the attorney-client relationship.” (Hecht v. Super. Ct. (1987) 192 Cal.App.3d 560, 565.)

Also, “the general rule is that ‘when “representing a corporation, an attorney’s client is the corporate entity, not individual shareholders or directors, and the individual shareholders or directors cannot presume that corporate counsel is protecting their interests.” ’ [Citation.] ‘An attorney representing a corporation does not become the representative of its stockholders merely because the attorney’s actions on behalf of the corporation also benefit the stockholders.’ [Citation.]” (De Meo v. Cooley (2025) 115 Cal.App.5th 17, 30 (De Meo).)

That said, “in the absence of an express relationship, in some instances an implied attorneyclient relationship may arise between an attorney and individual constituent of the entity that the attorney represents.” (De Meo, supra, 115 Cal.App.5th at p. 30.)

“When assessing the existence of an implied attorney-client relationship between a corporate attorney and the entity’s individual members, the key inquiry is whether ‘the totality of the circumstances’ implies an agreement that the corporate attorney will not act adversely to the individual shareholder’s interests with respect to the issues in dispute. [Citation.] Stated differently, we must assess whether the parties conducted themselves in a way that would reasonably cause a shareholder to believe the attorney would protect the shareholder’s individual interests.” (Sprengel v. Zbylut (2019) 40 Cal.App.5th 1028, 1047 (Sprengel).)

And, “a client’s subjective belief that an attorney-client relationship exists, standing alone, cannot create such a relationship, or a duty of care owed by the attorney to that plaintiff. [Citation.] This is because a plaintiff cannot unilaterally establish an attorney-client relationship, and its hindsight ‘beliefs’ that such a relationship existed are thus legally irrelevant. [Citation.]” (Zenith Ins. Co. v. O’Connor (2007) 148 Cal.App.4th 998, 1010.)

“Duty, being a question of law, is particularly amendable to resolution by summary judgment.” (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 465.)

Here, Hoge Fenton submits the following material facts in its separate statement in support of its argument that there was no implied attorney-client relationship with Cross-Complainants for purposes of this action:

• Krishna (or KMV) retained Hoge Fenton in March 2016 for employment law advice and counsel regarding a former employee’s potential employment claims and demand for personnel records. • In June 2017, Krishna retained Hoge Fenton regarding stock purchase agreements and tenants in common conversion. • Dilip signed engagement letters on behalf of Krishna for both the March 2016 and June 2017 transactions involving Hoge Fenton’s representation of Krishna. • Krishna designated Dilip as the client contact for the company. • In either Q3 or Q4 of 2022, Dilip retained attorney Paul Avila who provided legal services to him for approximately two months.

• Hoge Fenton drafted an Employment Agreement and General Release Agreement pertaining to Dilip’s compensation. • Gaurang did not have any communications (email/telephone) or in person meeting with Hoge Fenton regarding Dilip’s employment agreements. • Devyani has not never: (1) spoken with a Hoge Fenton attorney; (2) sent or received an email from anybody at Hoge Fenton; and (3) paid fees to Hoge Fenton. • Krishna paid the fees Hoge Fenton charged for preparing the General Release Agreement and Employment Agreement. • Hoge Fenton sent attorney Gordon Finwall who filed an answer on behalf of Krishna in the underlying action. • The Finkelstein firm filed an answer on behalf of Dilip, Gaurang, and Devyani in the underlying action. (See Hoge Fenton’s Separate Statement of Undisputed Facts [“SSUF”] at Nos. 102, 106, 109, 113, 118-120, 122-123, 125-130, 134-135, 141-144.)

In addition to these material facts, Hoge Fenton also provides Dilip’s responses in discovery. For example, in his December 2, 2025, the following exchange took place at Dilip’s deposition:

Q: Paragraph 12 of the Cross-Complaint, the very first sentence says, quote: “On information and belief Hoge Fenton never clarified, either internally or with Dilip or any other Krishna shareholder, who specifically Hoge Fenton was representing regarding this matter.” Do you see that?

Q: What was your understanding as to who the client was with Hoge Fenton in this transaction?

A: Can you repeat your question one more time, please?

Q. Sure. What was your understanding as to who the client was with Hoge Fenton in this transaction?

A. Krishna Mountain View.

(Hoge Fenton’s SSUF at No. 121, emphasis added.)

Also, in the underlying action, Dilip served the following verified responses to special interrogatories propounded by Bharat:

SPECIAL INTERROGATORIES NO. 6: IDENTIFY the attorney who represented DILIP with respect to the RELEASE AGREEMENT.

RESPONSE TO NO. 6: None.

SPECIAL INTERROGATORIES NO. 7: IDENTIFY the attorney who represented KRISHNA with respect to the release agreement.

RESPONSE TO NO. 7: Hoge Fenton.

(Hoge Fenton’s SSUF at No. 150.)

The court finds De Meo, cited by Hoge Fenton, to be instructive. There, the Fourth Appellate District upheld the granting of a summary judgment motion by a law firm (Cooley) against a limited liability company member, concluding there was no implied attorney-client relationship. Applying the rules governing implied contracts (Civ. Code, § 1621), the appellate court determined there was no implied attorney-client relationship because the undisputed facts established the firm did not reach a mutual agreement with the member that it would not act adversely to the member, did not indicate any intent to enter into such a relationship with the member, and did not conduct itself in a way that would reasonably cause the member to believe the firm’s attorney would protect the member’s individual interests. (De Meo, supra, 115 Cal.App.5th at p. 34.)

The Court of Appeal also found that certain other factors weighed against the existence of an implied attorney-client relationship: (1) Cooley and De Meo had very little contact over the years, and the limited communication that did take place points away from any attorney-client relationship; (2) immediately upon learning of the 2021 transaction, De Meo took steps to hire a law firm, other than Cooley, to represent him; and (3) after the October 16, 2021 call, De Meo did not rely on Cooley to negotiate on his behalf with respect to the 2021 transaction. (De Meo, supra, 115 Cal.App.5th at p. 35.) Of consequence was also plaintiff’s deposition testimony:

“Most significantly, De Meo confirmed during his deposition that Hallman Rice said ‘they weren’t [his] lawyers’ and ‘made it clear’ that ‘[t]hey believed they weren’t.’ Because ‘ “ ‘the very heart of this kind of [implied] agreement is an intent to promise’ ” ’ [citation], Hallman-Rice’s statement to De Meo that she believed Cooley did not represent him weighs strongly against finding the existence of an implied attorney- client agreement.” (De Meo, supra, 115 Cal.App.5th at p. 34, emphasis added.)

Similarly, Hoge Fenton submits evidence showing that it did not have an implied attorneyclient relationship with Cross-Complainants as: (1) Dilip admitted at deposition that Hoge Fenton represented Krishna; (2) Dilip hired separate counsel to represent him; (3) Hoge Fenton had no contact with Devyani and Gaurang; and (4) Krishna paid the fees Hoge Fenton charged for preparing the General Release Agreement and Employment Agreement. Based on this evidence and the aforementioned material facts, the court finds Hoge Fenton has met its initial burden on summary judgment.

In opposition, Cross-Complaints assert triable issues of material fact exist regarding whether an implied attorney-client relationship exists with Hoge Fenton. In support, Cross-Complainants direct the court to Responsible Citizens v. Super. Ct. (1993) 16 Cal.App.4th 1717 (Responsible Citizens), a Fifth Appellate District decision, addressing factors relevant to whether an implied attorney-client relationship has been established with individual partners in a partnership:

“Without any attempt at being exhaustive, we can identify some factors which might support, or undercut, implication of an attorney-client relationship with an individual partner in any particular case. The type and size of the partnership obviously have a bearing, as already noted. So do the nature and scope of the attorney’s engagement by the partnership. The kind and extent of contacts, if any, between the attorney and the

individual partner might be important factors. The same is true as to the attorney’s access to information (e.g., partnership financial information) relating to the individual partner’s interests.” (Responsible Citizens, supra, at p. 1733.)

In support, Cross-Complainants rely on the following additional material facts in their separate statement in connection with their opposition:

• Hoge Fenton drafted the Employment Agreement pertaining to Dilip’s compensation at Krishna. • Hoge Fenton drafted a General Release Agreement pertaining to Dilip’s compensation at Krishna. • Sarju Naran prepared two agreements related to Krishna’s compensation of Dilip. • The December 6, 2022, email from Dilip to Hoge Fenton attorney Sblend Sblendorio stated that the matter “has to do with the past compensation and forward going compensation.” • The Notice of Special Meeting of Shareholders drafted by Hoge Fenton included agenda items concerning the “Fair Compensation Dispute with Chief Executive Officer,” ratification of Dilip’s Employment Agreement, and ratification of a Release Agreement regarding Dilip’s past compensation. • At the January 31, 2023 shareholders meeting, Krishna approved and ratified the Employment Agreement and General Release Agreement prepared by Hoge Fenton. • The March 8, 2023 letter authored by Hoge Fenton was addressed to objections raised by Bharat concerning the Employment Agreement and Release Agreement relating to Dilip’s compensation. • The litigation filed by Bharat alleged breach of fiduciary duty, abuse of control, corporate waste, and unjust enrichment arising from disputes concerning Dilip’s compensation. • The Employment Agreement and Release Agreement prepared by Hoge Fenton were central subjects of the shareholder dispute and subsequent litigation. (See Cross- Complainants’ Additional Facts at Nos. 1-9; OPP at pp. 12:8-14:15.)

Here, the court agrees with Cross-Complainants that Krishna, being a closely held corporation with only four equal shareholders, is a factor that weighs in favor of an implied attorney-client relationship. (See Sprengel, supra, 40 Cal.App.5th at p. 1046 [“As Sprengel correctly notes, Purposeful Press’s status as an entity comprised of only two 50 percent shareholders is a factor that weighs in support of an attorney-client relationship.”]; see also Johnson v. Super. Ct. (1995) 38 Cal.App.4th 463, 476 [“The argument is that representation of [an entity with] few members may suggest an individual representation of the members”].)

But, there is very little substantive argument and minimal evidence in opposition addressing the remaining factors outlined in Responsible Citizens which include: (1) nature and scope of attorney’s engagement by the partnership; (2) kind and extent of contact between the attorney and individual partners; and (3) the attorney’s access to information relating to the individual partner’s interests. For example, there is no legal authority cited in the opposition which establishes an implied attorney-client relationship based on the drafting of the various agreements and the shareholder notices.

Nor do Cross-Complainants dispute that Hoge Fenton ever had contact with Gaurang and Devyani. And, perhaps most critical, none of the cited evidence demonstrates that Hoge Fenton’s actions were to intended to create an attorney-client relationship with Cross-

Complainants and benefit each of them individually. Instead, all of these facts, taken together, establish as a matter of law that Hoge Fenton and Cross-Complainants did not enter into an implied attorney-client relationship.

Alternatively, Cross-Complainants, in opposition, contend triable issues of material fact exist as to whether Cross-Complainants were intended beneficiaries of Hoge Fenton’s services. (Cross-Complainants’ Additional Facts at Nos. 1-9; OPP at pp. 14:16-16:3.)

“An attorney’s liability for professional negligence does not ordinarily extend beyond the client except in limited circumstances. In California, the attorney’s duty to non-clients depends upon ‘a judicial weighing of the policy considerations for and against the imposition of liability under the circumstances. [Citations.]’ [Citation.] ‘[The] determination whether in a specific case the [attorney] will be held liable to a third person not in privity is a matter of policy and involves the balancing of various factors, among which are the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to [plaintiff], the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the [attorney’s] conduct and the injury, and the policy of preventing future harm. [Citation.]’ [Citation.]” (St.

But, as pointed out in the reply papers, the court cannot consider the intended beneficiary theory of liability as it has not been pled in the cross-complaint. (Reply at pp. 7:6-8:24.) “A ‘plaintiff cannot bring up new, unpleaded issues in his or her opposing papers. [Citation.]’ [Citation.] A plaintiff wishing ‘to rely upon unpleaded theories to defeat summary judgment’ must move to amend the complaint before the hearing. [Citations.]” (Knapp v. Doherty (2004) 123 Cal.App.4th 76, 90.) No such motion to amend is before the court and this court cannot rely on an unpleaded theory to defeat the instant motion for summary judgment. (See Whelihan v.

Espinoza (2003) 110 Cal.App.4th 1566, 1576 [“a party cannot successfully resist summary judgment on a theory not pleaded”]; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258, fn. 7 [“To allow an issue that has not been pled to be raised in opposition to a motion for summary judgment in the absence of an amended pleading, allows nothing more than a moving target.”]; see also Millard v. Biosources, Inc. (2007) 156 Cal.App.4th 1338, 1353 [plaintiff whose complaint alleged negligence but not a theory of negligence per se and who did not seek to amend complaint to include such allegations cannot defeat summary judgment by raising a theory of negligence per se].)

Therefore, as Cross-Complainants fail to raise any triable issue of material fact, there is no viable claim for professional negligence.

First and Second Causes of Action: Implied/Equitable Indemnity and Contribution

The cross-complaint also alleges claims for implied/equitable indemnity and contribution. As these are derivative causes of action, the survival of these claims depends on the outcome of the motion for summary judgment with respect to the professional negligence cause of action. Since there is no viable claim for professional negligence, the derivative claims for indemnity and contribution also fail.

Accordingly, the motion for summary judgment is GRANTED.

The motion for summary judgment to the cross-complaint is GRANTED.

The court will prepare the order.