Filed 7/1/24 Promote Mexico v. Monster Energy Company CA2/1

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

PROMOTE MEXICO, LLC,

Cross-complainant and 

Appellant,

v.

MONSTER ENERGY COMPANY,

Cross-defendant and 

Respondent.

 B328413

 (Los Angeles County

 Super. Ct. No. 19STCV28457)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Bruce G. Iwasaki, Judge. Affirmed in part

and reversed in part.

Procopio, Cory, Hargreaves & Savitch, Kendra J. Hall, 

John D. Alessio, Sean M. Sullivan and Zagros S. Bassirian for 

Cross-complainant and Appellant.

Shook, Hardy & Bacon, M. Kevin Underhill, Marc P. Miles 

and Kristy A. Schlesinger for Cross-defendant and Respondent.

____________________________
2

Promote Mexico, LLC (Promote Mexico) appeals from a

summary adjudication order finding Promote Mexico has a duty 

to defend Monster Energy Company (Monster) in a lawsuit

alleging injuries to a Monster spokesmodel at an off-road racing 

event promoted by Promote Mexico. The order directed Promote 

Mexico to pay Monster’s future defense costs as well as past costs 

retroactive to January 15, 2019, the date Monster invoked the 

relevant indemnity provision in an e-mail to Promote Mexico.

1 

Promote Mexico argues other language in the agreements 

containing the indemnity provision supersedes its duty to defend, 

as does a general waiver signed by six drivers from Monster’s offroad racing team. Promote Mexico further argues to the extent a 

duty to defend exists, Monster failed to prove that duty was 

triggered on January 15, 2019, seven months before the 

spokesmodel filed her complaint. Finally, Promote Mexico argues 

the order directing it to pay Monster’s past and future defense 

costs and setting deadlines for such payment exceeds the scope of 

Monster’s summary adjudication motion.

We hold, as did the trial court, that Promote Mexico has a 

duty to defend Monster. We disagree with Promote Mexico that 

other language in the relevant agreements overrides Promote 

Mexico’s duty to defend, or that the general waiver, signed by 

Monster’s drivers as individuals, binds Monster. 

1 In the written decision granting Monster’s summary 

adjudication motion, the trial court also granted the parties’ 

motion to seal filings. This appeal does not challenge the grant of 

the sealing motion, which we regard as a separate order from the 

summary adjudication order. Nothing in this opinion should be 

read to affect the grant of the sealing motion.
3

We agree with Promote Mexico, however, that Monster 

failed to provide evidence that as of January 15, 2019, its 

spokesmodel had made a claim or demand triggering Promote 

Mexico’s duty to defend Monster. The issue of when Promote 

Mexico’s duty arose therefore remains a question for trial.

We also agree with Promote Mexico that Monster’s 

summary adjudication motion requested a ruling only as to 

Promote Mexico’s duty to defend, and did not request an order 

directing payment of past and future legal costs and setting a 

deadline for doing so. The trial court thus erred in adjudicating

these payment issues.

Accordingly, we affirm in part and reverse in part.

BACKGROUND

1. The sponsorship agreements

Promote Mexico is a Nevada limited liability company that 

“markets SCORE-branded off-road racing events.” In 2016 and 

2017, Monster and Promote Mexico executed two agreements, 

retroactive to January 1, 2016, entitled “Television Sponsorship 

Agreement” and “Sponsorship Agreement.”2 The agreements 

concerned Monster’s involvement in SCORE World Desert 

Championship off-road race series and related events, including 

the Baja 1000. These events are referred to in the agreements as

“Events” or, in the singular, “Event.”

The agreements contain materially identical provisions

under paragraph 6.01 stating, in relevant part, “[Promote 

2 Promote Mexico is identified in the agreements and 

elsewhere in the record as Score International, the name under 

which Promote Mexico was doing business. 
4

Mexico] shall indemnify, protect, defend and hold harmless 

[Monster] . . . from and against any and all claims, liabilities, 

losses, damages, injuries, demands, actions, causes of action, 

suits, proceedings, judgments and expenses . . . arising from or 

connected with: (i) any breach by [Promote Mexico] of any 

provision of this Agreement or any representation or warranty 

made by it herein; (ii) any negligent act or omission to act of 

[Promote Mexico], its employees, servants and agents; and/or 

(iii) any death or injury to any person or damage to any property

related to the Event by the actions of [Promote Mexico], its 

respective employees, servants, and agents.”

The agreements each contain another provision in

paragraph 6.11 stating, in relevant part, that Monster “will be 

solely responsible for all wages, income taxes, worker’s 

compensation and any other requirements for all personnel it 

supplies pursuant to this Agreement.” 

The television sponsorship agreement contained additional

language in paragraph 6.01 requiring Monster to indemnify and 

defend Promote Mexico under specified circumstances. That 

language is not at issue in this appeal.

2. Complaint and cross-complaints

On August 12, 2019, Magda Angel filed a complaint against 

Monster and others arising from injuries she allegedly suffered at 

the 2018 Baja 1000 race when she was struck by one of the race 

vehicles. Angel alleged that at the time of the accident, she was 

an independent contractor working at the race as one of 

Monster’s spokesmodels. Angel alleged Monster had been 

negligent for “fail[ing] to adopt safety policies, procedures, rules 

and/or guidelines; fail[ing] to provide safety training, instruction, 

warnings, security, supervision and/or staffing; and fail[ing] to 
5

protect [Angel] from unexpected and hidden risks, hazards and 

dangers associated with the 2018 Baja 1000 events.” Angel 

did not name Promote Mexico in the complaint.

On October 28, 2019, Monster filed a cross-complaint 

against Promote Mexico (identified as Score International) and 

others for express indemnity, breach of contract, implied 

equitable indemnity, comparative indemnity, contribution, 

apportionment, and declaratory relief. Monster sought, inter 

alia, defense and indemnity from Promote Mexico for Angel’s 

claims, citing the sponsorship agreements. 

On January 7, 2020, Promote Mexico cross-complained 

against Monster and others, also seeking defense and indemnity 

from Monster under the sponsorship agreements. 

On August 18, 2020, Angel filed an amendment to her 

complaint substituting Promote Mexico as a Doe defendant. A 

year later, on August 29, 2022, Angel filed her first amended 

complaint, which, unlike her original complaint, included 

allegations that Promote Mexico had negligently failed to protect 

her from the accident. 

3. Motion for summary adjudication

On January 5, 2023, Monster moved for summary 

adjudication of one issue: whether Promote Mexico has a duty to 

defend Monster under paragraph 6.01 of the agreements against

Angel’s claims. Monster contended the duty arose on January 15, 

2019, seven months before Angel filed her complaint, when 

Monster claimed to have tendered defense of the “anticipated 

lawsuit.” Monster asked for “an order finding that [Promote 

Mexico] has an immediate duty to defend Monster in this action.” 

As evidence, Monster submitted an e-mail dated 

January 15, 2019, from Monster’s counsel to a representative of 
6

Promote Mexico. In the e-mail, Monster’s counsel referred to 

earlier conversations and disagreed with Promote Mexico’s 

position, apparently stated earlier, that Promote Mexico “has no 

responsibility or liability for the accident.” The e-mail also 

stated, “Pursuant to Section 6.01 of the agreement, [Promote 

Mexico] is further required to indemnify, protect, defend and hold 

harmless Monster and its affiliated corporations against any and 

all claims arising from or connected with any negligent act of 

[Promote Mexico] or any injury to any person related to the event 

by the actions of [Promote Mexico], its employees, agents or 

servants. [¶] Based on the foregoing, Monster hereby demands 

that [Promote Mexico] indemnify, protect, defend and hold 

harmless Monster for Ms. Angel’s injuries. [Promote Mexico] 

should place all of its insurers on notice of a claim and provide 

Monster with all insurance policies that may provide coverage for 

Ms. Angel’s injuries. Monster further requests that [Promote 

Mexico] meaningfully participate in any and all negotiations with 

Ms. Angel to resolve any claims related to her injuries.” 

Promote Mexico opposed the motion, arguing, inter alia, 

that under paragraph 6.11 of the agreements, Monster was

“ ‘solely responsible’ ” for injuries to personnel supplied by 

Monster.3 Promote Mexico further argued Monster was bound by 

a separate indemnity agreement and covenant not to sue 

3 Promote Mexico also contended the agreements did not 

impose a duty to defend unless the complaint alleged injuries 

caused by Promote Mexico’s actions and did not allege Monster’s 

own active negligence, conditions Promote Mexico argued did not 

exist in this case. The trial court rejected this argument, and 

Promote Mexico does not reassert it on appeal.
7

executed by “twelve Monster Energy Off-Road Team racers” who 

participated in the race. 

As evidence in support of this last point, Promote Mexico 

submitted a “General Waiver, Release, Consent and 

Indemnification Agreement” (underscoring & some capitalization 

omitted) that appears to be signed by six people, the first 

identified under the signature line as “Participant” and “ ‘Driver 

of Record’ ” and the other five identified as “Participant” (some 

capitalization omitted). That agreement states, in relevant part, 

“I hereby agree that I, my assigns, spouse, heirs, beneficiaries, 

agents, guardians, legal representatives, team members, staff, 

family and individuals affiliated with my race efforts will not 

make any claim against, sue, or attach the property of . . .

Promote Mexico, LLC, dba SCORE Marketing [and other

identified ‘Releasees’] for any injury or damage resulting from the 

negligence or other acts, howsoever caused, by any of the 

Releasees as a result of my participation in the Event and 

Related Activities, associated functions and use of the facilities. I 

hereby agree to release, discharge, defend, indemnify and hold 

Releasees harmless from all liability, actions, claims, demands, 

charges, expenses, attorney’s fees of any nature that I, my 

assignees, spouse, heirs, beneficiaries, agents, guardians, legal 

representatives, team members, staff, family and individuals 

affiliated with my race efforts now have or may hereafter have for 

injury or damage resulting from, related to or connected with my 

participation in the Event and Related Activities, associated 

functions and use of the facilities.” (Boldface omitted.) 

Monster began its reply by emphasizing its motion “sets 

forth one issue—whether [Promote Mexico] has a duty to defend 

Monster against Plaintiff’s claims of injury. This is the only 
8

question pending before the Court and represents Monster’s Fifth 

Cause of Action for Declaratory Relief.” Monster disputed all of 

Promote Mexico’s arguments and concluded by asking the trial 

court to “issue an order finding that [Promote Mexico] has had a 

duty to defend Monster in this action from January 15, 2019.” 

4. Grant of summary adjudication

Following hearing, the trial court adopted its written 

tentative decision granting Monster’s motion for summary 

adjudication. The court found Promote Mexico had a duty to 

defend Monster against Angel’s claims, a duty that arose upon 

Monster’s January 15, 2019 e-mail demanding that defense. The 

court rejected Promote Mexico’s argument that paragraph 6.11 of 

the agreement obviated the duty, ruling paragraph 6.11 “has no 

application here; undertaking to pay [Monster’s] own employees 

does not indicate any limitation on a right to a defense.”

The trial court’s written decision did not address Promote 

Mexico’s argument that Monster was bound by the general 

waiver signed by Monster’s racing team members. At the 

hearing, Promote Mexico stated the terms of the sponsorship 

agreements “were then modified through the subsequently 

executed general release which Monster does not address at all,” 

but provided no additional argument on the point, and the court 

and the parties did not discuss it further.

The trial court ordered Promote Mexico “to pay Monster’s 

reasonable and necessary defense fees and costs retroactive to the 

date of tender. To that end, Promote Mexico shall pay to Monster 

all fees and costs incurred by Monster from January 15, 2019 to 

the present in defending (but not prosecuting) this matter. Such 

payment shall be made within 45 days of Promote Mexico’s 

counsel being served with documentation of such fees and costs. 
9

Thereafter, Promote Mexico shall pay invoices for Monster’s

defense in this action within 45 days of written notice to Promote 

Mexico’s counsel in this matter.” 

Promote Mexico timely appealed. The next month, 

Promote Mexico filed its own motion for summary adjudication 

contending Monster owned Promote Mexico a reciprocal duty to 

defend based on other language in the sponsorship agreements.

The trial court denied the motion.

4 That denial is the subject of a 

separate writ proceeding before this court, Promote Mexico, LLC 

v. Superior Court, case No. B332617, in which we issued an order 

to show cause.

APPEALABILITY

Summary adjudication orders finding a duty to defend 

normally are not appealable, but here the trial court additionally 

ordered Promote Mexico to pay Monster’s past and future defense 

expenditures, an order which is appealable. (Watts Industries, 

Inc. v. Zurich American Ins. Co. (2004) 121 Cal.App.4th 1029, 

1038.) “Since the latter depends on the former, to review it, we 

must review both. As such, the summary adjudication and 

payment order together constitute a collateral final judgment 

that is appealable.” (Ibid.)

STANDARD OF REVIEW

“ ‘A motion for summary judgment or summary 

adjudication is properly granted only when “all the papers 

submitted show that there is no triable issue as to any material 

4 We take judicial notice of Promote Mexico’s motion for 

summary adjudication and the order denying it. (Evid. Code, 

§§ 452, subd. (d), 459.)
10

fact and that the moving party is entitled to a judgment as a 

matter of law.” ’ [Citations.] We review a ruling on summary 

judgment or summary adjudication de novo and ‘decide 

independently whether the facts not subject to triable dispute 

warrant judgment for the moving party or a determination a 

cause of action has no merit as a matter of law.’ [Citation.] In so 

doing, we liberally construe the evidence in favor of the party 

opposing the motion and resolve all doubts concerning the 

evidence in their favor.” (Campbell v. FPI Management, Inc.

(2024) 98 Cal.App.5th 1151, 1161.) 

Agreements providing for indemnity and defense are 

“construed under the same rules as govern the interpretation of 

other contracts. Effect is to be given to the parties’ mutual intent 

[citation], as ascertained from the contract’s language if it is clear 

and explicit [citation]. Unless the parties have indicated a 

special meaning, the contract’s words are to be understood in 

their ordinary and popular sense.” (Crawford v. Weather Shield 

Mfg., Inc. (2008) 44 Cal.4th 541, 552 (Crawford).)

The parties agree the terms of the trial court’s payment 

order are reviewed for abuse of discretion. 

DISCUSSION

A. Promote Mexico has a Duty To Defend Monster

On appeal, Promote Mexico does not dispute that when 

viewed in isolation, paragraph 6.01 of the sponsorship 

agreements imposes a duty on Promote Mexico to defend Monster 

against Angel’s claims. That paragraph requires Promote Mexico 

to “defend” Monster “from and against any and all claims, 

liabilities, losses, damages, injuries, demands, actions, causes of 

action, suits, proceedings, judgments and expenses . . . arising 
11

from or connected with . . . any negligent act or omission to act of 

[Promote Mexico], its employees, servants and agents; and/or . . . 

any death or injury to any person or damage to any property

related to the Event by the actions of [Promote Mexico], its 

respective employees, servants, and agents.” 

Here, Angel alleged in her first amended complaint that

she sustained physical injuries at one of Promote Mexico’s race 

events because of Monster’s and Promote Mexico’s negligence. 

Under paragraph 6.01, Promote Mexico has a duty to defend 

Monster, at least as of the filing of the first amended complaint.

5

As it did below, Promote Mexico argues its duty to defend 

under paragraph 6.01 nonetheless is superseded by paragraph 

6.11 of the same agreements, and by the general waiver 

purportedly executed by Monster’s race team drivers. We 

disagree.

1. Paragraph 6.11 does not override paragraph 6.01’s 

defense obligation

Paragraph 6.11 states Monster “will be solely responsible 

for all wages, income taxes, worker’s compensation and any other 

requirements for all personnel it supplies pursuant to this 

Agreement.” Promote Mexico contends this provision makes 

Monster, and only Monster, responsible for all requirements of its 

personnel, including responsibility for their safety and protection, 

5 We express no opinion whether Angel’s original 

complaint or other event preceding the first amended complaint 

implicates Promote Mexico’s conduct for purposes of triggering 

Promote Mexico’s defense obligations under paragraph 6.01. As 

we discuss post, the date when Promote Mexico’s duty arose 

remains an issue for trial.
12

and “ ‘legal responsibility for claims related to their attendance’ ” 

at the race.

We agree with the trial court that this is not a reasonable 

construction of the contractual language. “Noscitur a sociis

means that ‘a word takes its meaning from the company it keeps. 

[Citation.] Under this principle, courts will adopt a restrictive 

meaning of a listed item if acceptance of a broader meaning 

would make other items in the list unnecessary or redundant, or 

would otherwise make the item markedly dissimilar to the other 

items in the list.’ [Citation.]” (DeMarinis v. Heritage Bank of 

Commerce (2023) 98 Cal.App.5th 776, 791 (DeMarinis).) 

The items listed in paragraph 6.11—“wages, income taxes, 

worker’s compensation”—indicate the intent of the paragraph is

to ensure that, by entering into the sponsorship agreements, 

Promote Mexico was not thereby taking on responsibility for 

paying salaries, taxes, workers’ compensation insurance 

premiums, and similar human resources concerns on behalf of 

Monster’s personnel. In other words, Promote Mexico was not 

becoming a quasi-employer of Monster’s personnel. The 

paragraph says nothing about liability for injuries, which instead 

is the subject of paragraph 6.01. To read “any other 

requirements” under paragraph 6.11 to include such liability 

“ ‘make[s] the item markedly dissimilar to the other items in the 

list,’ ” and we reject that reading. (DeMarinis, supra,

98 Cal.App.5th at p. 791.) For the same reason, we reject 

Promote Mexico’s argument that paragraph 6.11 makes Monster 

solely responsible for properly training its employees to ensure 

their safety, a requirement which, again, is “markedly dissimilar 

to” payroll, taxes, and worker’s compensation insurance.
13

Promote Mexico contends a declaration submitted by its 

former manager contradicts our interpretation. The former 

manager declared that he interpreted paragraph 6.11 to impose 

“sole legal responsibility” on Monster “for claims related to 

[Monster spokesmodels’] attendance at the Events,” and also to 

impose on Monster the responsibility for “instructing, training, 

advising, and supervising its personnel.” Promote Mexico 

provided no evidence it informed Monster of this understanding 

of the language when the agreements were executed, or that 

Monster shared that understanding. “[E]vidence of the 

undisclosed subjective intent of the parties is irrelevant to 

determining the meaning of contractual language,” and therefore 

is not “competent extrinsic evidence” creating a dispute of 

material fact. (Winet v. Price (1992) 4 Cal.App.4th 1159, 1166,

fn. 3, italics omitted.)

2. Promote Mexico fails to show Monster is bound by the 

general waiver signed by the drivers

Promote Mexico characterizes the general waiver as 

“executed by Monster, through its Monster Energy Race Team 

members.” Assuming arguendo the general waiver is authentic 

and signed by race drivers affiliated with Monster, Promote 

Mexico nonetheless fails to show those drivers signed the waiver 

on behalf of Monster as opposed to themselves, individually. 

Promote Mexico contends the drivers were Monster’s 

agents, and therefore could bind Monster with the general 

waiver. “An agent is one who represents another, called the 

principal, in dealings with third persons.” (Civ. Code, § 2295.) 

“ ‘ “The essential characteristics of an agency relationship . . . are 

as follows: (1) An agent or apparent agent holds a power to alter 

the legal relations between the principal and third persons and 
14

between the principal and himself; (2) an agent is a fiduciary 

with respect to matters within the scope of the agency; and (3) a 

principal has the right to control the conduct of the agent with 

respect to matters entrusted to him. [Citation.]” [Citations.]’

[Citation.]” (Garlock Sealing Technologies, LLC v. NAK Sealing 

Technologies Corp. (2007) 148 Cal.App.4th 937, 964.) 

Promote Mexico provided no evidence Monster had granted

the drivers power to alter Monster’s legal relationship with 

Promote Mexico, or that the drivers were fiduciaries as to 

Monster. Nothing in the waiver itself indicates an intent to bind 

Monster. To the contrary, the signature lines recite execution not 

as representatives of Monster, but as a “Participant” or “ ‘Driver 

of Record’ ” (some capitalization omitted). Although the drivers 

may work for or be affiliated with Monster, that alone is not 

enough to establish agency absent satisfaction of the elements in 

Garlock Sealing Technologies.

B. Triable Issues Remain as To When Promote Mexico’s 

Duty To Defend Was Triggered

Although we agree with the trial court that Promote Mexico 

has a duty to defend Monster, we do not agree the evidence 

supported a finding for purposes of summary adjudication that 

the duty was triggered on January 15, 2019. 

Again, paragraph 6.01 requires Promote Mexico to 

“indemnify, protect, defend and hold harmless [Monster] . . . from 

and against any and all claims, liabilities, losses, damages, 

injuries, demands, actions, causes of action, suits, proceedings, 

judgments and expenses . . . arising from or connected with”

negligent acts or omissions by Promote Mexico, or death or injury 

related to the race “by the actions of” Promote Mexico. This 

language imposes two general requirements to trigger the duty to 
15

defend: First, a party must make a claim, demand, complaint, or 

similar request for redress against Monster, and second, that 

request for redress must implicate Promote Mexico’s negligence 

or, in the case of death or injury related to the race, “the actions 

of” Promote Mexico.

As of January 15, 2019, Angel had yet to file her complaint

against Monster, and would not do so for another seven months. 

Promote Mexico concedes, however, the agreements do not 

require a formal lawsuit to trigger a duty to defend. Promote 

Mexico acknowledges, “A claim, supported by some facts alleging 

Promote Mexico’s conduct was a potential cause of the accident, 

may have been enough.” (See Stein v. International Ins. Co.

(1990) 217 Cal.App.3d 609, 613 [“ ‘A claim . . . is a demand for 

something as a right, or as due. A formal lawsuit is not required 

before a claim is made.’ ”].)

Still, to establish for purposes of summary adjudication a 

trigger date of January 15, 2019, Monster at minimum would 

need to offer evidence that as of that date, Angel had made some 

sort of prelitigation claim, demand, or similar request against 

Monster implicating Promote Mexico’s conduct. (See Crawford, 

supra, 44 Cal.4th at p. 558 [a duty to defend “is owed” on claims 

that, “at the time of tender, allege facts that would give rise to a 

duty of indemnity” under the relevant agreement (italics 

omitted)].) 

Monster did not meet this burden. The record contains no 

evidence of communications between Monster and Angel or her 

representatives in which Angel made a prelitigation claim, 

demand, or similar request against Monster at all, much less one 

that alleged Promote Mexico was responsible for her injuries or 

otherwise implicated Promote Mexico’s conduct. The only 
16

evidence Monster offered to establish the January 15, 2019 date 

was Monster’s e-mail to Promote Mexico, which refers to an

accident, states Monster’s belief that Promote Mexico is partly 

responsible or liable, and demands a defense. The e-mail 

does not refer to communications with Angel or anything else 

that might indicate Angel had made a claim, demand, or similar 

request triggering Promote Mexico’s duty to defend.

Monster argues, “[A] formal tender is not necessarily 

required in order to trigger [the duty to defend], if the party 

already has sufficient facts to put it on inquiry notice.” Monster 

contends its e-mail, which refers to previous conversations 

between Monster and Promote Mexico, indicates “Promote 

Mexico was on at least constructive notice even before” the 

January 15, 2019 e-mail. 

The issue here is not the adequacy of Monster’s notice, but 

the threshold issue whether, as of January 15, 2019, the date of 

Monster’s purported tender, Angel had, in fact, made a claim, 

demand, or similar request implicating Promote Mexico’s 

conduct. Put another way, we need not reach the issue of 

adequacy of notice if Monster has not established Angel made a 

claim in the first place. As discussed, Monster offered no 

evidence Angel had made any claim at all by January 15, 2019, 

and therefore, irrespective of the adequacy of the notice, Monster 

failed to establish that Promote Mexico’s duty to defend arose on 

that date. The trial court should not have granted summary 

adjudication on that issue, and instead have left it for trial. 

Promote Mexico asks us to direct the trial court to find that 

Promote Mexico’s duty to defend did not arise until August 29, 

2022, when Angel filed her first amended complaint adding 

allegations of Promote Mexico’s negligence. Assuming arguendo 
17

we may direct the trial court to make findings on summary 

adjudication other than those requested by the movant, Monster’s 

inadequate evidentiary showing on summary adjudication 

does not compel the conclusion that Promote Mexico’s proposed 

trigger date is correct. Our reversal of the trial court’s summary 

adjudication as to the trigger date of the duty to defend merely 

leaves that an issue for trial.

In so holding, we do not suggest that the duty to defend

necessarily arose either on January 15, 2019 or August 29, 2022, 

as opposed to some other date, and this opinion should not be 

read to limit the parties’ arguments or the trial court’s findings 

on that question.

C. The Payment Order Exceeded the Scope of Monster’s 

Motion for Summary Adjudication

Promote Mexico argues the trial court improperly decided

issues not raised in Monster’s summary adjudication motion 

when the court directed Promote Mexico to pay Monster’s defense 

costs retroactive to January 15, 2019, as well as future costs upon 

45 days’ notice. We agree.

Monster’s summary adjudication motion requested solely a 

determination that Promote Mexico owed a duty to defend

Monster as of January 15, 2019. Monster did not request a 

retroactive or future payment order, and submitted no evidence 

of legal expenditures incurred. As far as the record indicates, the 

issue of payment did not arise until the trial court’s tentative 

decision. 

“Where only certain claims or defenses are raised” in a 

motion for summary adjudication, “the court has no power to 

adjudicate others.” (Weil et al., Cal. Practice Guide: Civil

Procedure Before Trial (The Rutter Group 2022) ¶ 10:86; see 
18

Maryland Casualty Co. v. Reeder (1990) 221 Cal.App.3d 961, 974,

fn. 4 [trial court lacked power to resolve insurance coverage 

issues not identified as discrete issues in summary adjudication 

motion].) This principle is a matter of fairness—because Monster 

did not raise the issue of retroactive or future payment in its 

motion, the parties had no opportunity to brief it before the trial 

court. 

Thus, although the trial court properly found Promote 

Mexico has a duty to provide for Monster’s defense against 

Angel’s claims, the court had no basis on summary adjudication 

to order Promote Mexico to pay Monster’s past and future defense 

costs and impose deadlines for doing so. We thus reverse the 

order and do not reach Promote Mexico’s alternative arguments 

on this issue.

In our opinion in Promote Mexico, LLC v. Superior Court, 

case No. B332617, issued concurrently with this opinion, we 

conclude the trial court erred in interpreting the television 

sponsorship agreement not to impose a duty on Monster to 

defend Promote Mexico from Angel’s claims, and remand for the 

trial court to consider Monster’s alternative argument that the 

agreement is void because Promote Mexico’s representative’s 

signature was forged. If on remand the trial court in case 

No. B332617 rejects this argument, and thus there is no triable 

issue as to Monster’s duty to defend Promote Mexico, we leave it 

to the trial court to determine in the first instance the 

appropriate procedure to effect the reciprocal defense obligations. 

Nothing in this opinion should be read to limit the trial court’s 

discretion.

If instead the trial court in case No. B332617 finds on 

remand there is a triable issue as to whether the television 
19

sponsorship agreement is void, we express no opinion how or 

whether that finding would impact the trial court’s ruling at 

issue in this appeal. The parties to this appeal have not raised 

that issue nor provided a record from which we can address it. 

DISPOSITION

The order granting summary adjudication is affirmed to 

the extent it rules Promote Mexico, LLC has a duty to defend 

Monster Energy Company. The order otherwise is reversed. The 

parties shall bear their own costs on appeal.

NOT TO BE PUBLISHED.

BENDIX, Acting P. J.

We concur:

CHANEY, J.

WEINGART, J.