Opinion
B320392
09-29-2023
EVANSTON INSURANCE COMPANY, Plaintiff and Appellant, v. SOUTHERN CALIFORNIA EDISON COMPANY, Defendant and Respondent.
Complex Appellate Litigation Group, Johanna Schiavoni; Jessica M. Weisel for Plaintiff and Appellant. Murchison & Cumming, Friedrich W. Seitz, Richard C. Moreno, Matthew E. Voss; Jenner &Block, David M. Kroeger; Jennifer B. Hayden for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. 19STCV22176 Richard J. Burdge, Jr., Judge. Affirmed.
Complex Appellate Litigation Group, Johanna Schiavoni; Jessica M. Weisel for Plaintiff and Appellant. Murchison & Cumming, Friedrich W. Seitz, Richard C.
Moreno, Matthew E. Voss; Jenner &Block, David M. Kroeger; Jennifer B. Hayden for Defendant and Respondent.
BENDIX, Acting P. J.
This is an appeal from a judgment entered after the trial court granted summary judgment in favor of defendant and respondent Southern California Edison Company (SCE) and against plaintiff and appellant Evanston Insurance Company (Evanston) as to Evanston's claims for equitable subrogation, equitable indemnity, restitution, and declaratory relief. Evanston contributed $25 million to settle claims by property owners against its insured, The Original Mowbray's Tree Service, Inc. (Mowbray's), which was a subcontractor of Utility Tree Service, Inc. (UTS) under UTS's contract with SCE to manage certain vegetation proximate to SCE's equipment. According to Evanston, the property owners' claims arose out of a wildfire they alleged was caused by a tree hitting power lines that were owned and operated by SCE. Evanston asserted that the wildfire resulted solely from SCE's negligence.
Evanston and SCE are the only parties to this appeal.
In its motion for summary judgment, SCE argued that the following waiver provision in Mowbray's subcontract with UTS barred Evanston's claims: "Subcontractor [(Mowbray's)] waives and will require all of its insurers to waive all rights of recovery against Contractor [(UTS)] or the Owner [(SCE)], their affiliates, their directors, officers and employees, whether in contract, tort (including negligence and strict liability) or otherwise." (See Factual &Procedural Background, post.) The trial court agreed and entered judgment in SCE's favor.
On appeal, Evanston contends the waiver provision is ambiguous and that the trial court erred in failing to analyze separately whether SCE's waiver defense applied to Evanston's equitable indemnity and restitution causes of action.
Evanston does not argue that the trial court erred in failing to address separately its declaratory relief cause of action.
We hold the plain language and context of the waiver provision demonstrate that the provision unambiguously precludes Evanston's equitable subrogation claim against SCE. We also hold that by failing to address separately its equitable indemnification and restitution causes of action in opposing summary judgment below, Evanston forfeited its claim of error regarding those causes of action. We thus affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Our Factual and Procedural Background is derived in part from undisputed aspects of the trial court's ruling and admissions made by the parties in their filings. (See Baxter v. State Teachers' Retirement System (2017) 18 Cal.App.5th 340, 349, fn. 2 [utilizing the summary of facts provided in the trial court's ruling]; Applicable Insurance Law & Standard of Review, part A, post [noting that the trial court's orders and judgments are presumed correct]; Artal v. Allen (2003) 111 Cal.App.4th 273, 275, fn. 2 [" '[B]riefs and argument . . . are reliable indications of a party's position on the facts as well as the law, and a reviewing court may make use of statements therein as admissions against the party.' "].)
We summarize only those facts pertinent to our disposition of this appeal.
In February 2015, "a wildland fire ignited . . . in Bishop, California" on "property owned by the Los Angeles Department of Water and Power" (Round Fire). Evanston alleges that property owners and their subrogated insurers filed at least 10 lawsuits in the aftermath of the Round Fire to recover damages. Evanston asserts that the plaintiffs in the lead action (underlying action) alleged that the fire was caused by a tree (subject tree) that made contact with power lines owned and operated by SCE.
Evanston claims that the plaintiffs in the underlying action named SCE and UTS as defendants therein, and that "Mowbray's was subsequently added to the underlying action as a defendant and cross-defendant." At the time of the Round Fire, SCE and UTS were parties to a master service agreement (MSA) that required UTS to conduct "vegetation management." Also at the time of the Round Fire, UTS and Mowbray's were parties to two subcontractor agreements, a 2013 subcontractor agreement and a 2014 subcontractor agreement. The subcontractor agreement required Mowbray's to perform" 'certain vegetation management tasks' in the area near the Round Fire ...."
Evanston concedes, "For the purposes of this appeal, the 2013 and 2014 Subcontractor Agreements are identical ...." In accordance with this concession, Evanston directs us to provisions of the 2014 subcontractor agreement to support its contentions regarding Mowbray's rights and obligations as UTS's subcontractor. All further references to the "subcontractor agreement" are thus to the 2014 agreement.
The subcontractor agreement incorporated the MSA and its predecessor, including the obligation to carry $41 million per occurrence in insurance coverage. Additionally, exhibit B to the subcontractor agreement "required Mowbray's to procure 'certain policies of insurance,'" and includes the following text: "Subcontractor waives and will require all of its insurers to waive all rights of recovery against Contractor or the Owner, their affiliates, their directors, officers and employees, whether in contract, tort (including negligence and strict liability) or otherwise." Pursuant to its obligations under the subcontractor agreement, Mowbray's procured four layers of commercial general liability insurance with total limits of $41 million per occurrence: (1) the primary policy from Navigators Specialty Insurance Co. ($1 million per occurrence) (the Navigators policy); (2) the first excess policy from National Union Fire Insurance Co. ($10 million per occurrence); (3) the second excess policy from Kinsale Insurance Co. ($5 million per occurrence); and (4) the third excess policy from Evanston ($25 million per occurrence).
The first paragraph of the subcontractor agreement identifies Mowbray's as the "Subcontractor" and UTS as the "Contractor," and section 1.1 of the agreement identifies SCE as the "Owner."
Evanston maintains that "the undisputed evidence, including a Cal Fire investigative report, establishes the fire resulted from SCE's own negligence ...." For instance, Evanston claims SCE failed to "de-energize[ ] its electrical distribution system in the area to prevent a power line or other electrical equipment from causing a wildfire during the known dangerous, high wind conditions." Evanston further alleges that during the underlying action, certain SCE personnel made admissions that exculpated Mowbray's. As illustrative, Evanston asserts, "SCE's corporate designee as the person most knowledgeable" "agreed that the Subject Tree was . . . not within the scope of Mowbray's 'work.'" (Italics omitted.)
Evanston alleges that during the underlying action, SCE, which claimed to be an additional insured under the policy, "repeatedly threatened to bring a bad faith action if Evanston did not pay the full amount of the policy ...." Evanston asserts that, "[u]nder this threat of a bad faith action and to protect its insured and putative insureds against the risks of trial, Evanston agreed to contribute the $25 million policy limit to a settlement and preserved its rights to pursue full recovery from SCE." (Fn. omitted.) Evanston claims its "payment in July 2018 led to the resolution of all claims against SCE, UTS, and Mowbray's- essentially ending the Underlying Round Fire Actions in their entirety." According to Evanston, Mowbray's other insurers also paid their respective policy limits to settle the underlying action.
In June 2019, Evanston commenced the instant action by filing a complaint against SCE, wherein Evanston alleged the following causes of action: (1) equitable indemnity; (2) equitable subrogation; (3) restitution; and (4) declaratory relief.
SCE moved for summary judgment against Evanston on the complaint. SCE advanced two independent grounds in support of its motion: (1) "Evanston's insured, Mowbray's, waived all rights of recovery against [SCE,]" meaning there was "no claim by Mowbray's" to which Evanston could be subrogated; and (2) "Evanston . . . waived its right of subrogation against SCE" because Evanston's policy "expressly incorporates the terms of the underlying policies by reference and neither the Evanston policy [n]or any of the other policies restricts or limits the express waiver of the right of subrogation in the Navigators policy ...." Evanston opposed the motion, arguing that "none of the waiver provisions of the UTS MSA, [subcontractor agreement], or the Navigator[s] Policy applies to Evanston['s] . . . subrogation rights."
The trial court heard and granted SCE's motion for summary judgment. Judgment was later entered in favor of SCE in accordance with the court's order granting summary judgment. Evanston timely appealed the judgment.
Evanston asserts that "[t]he trial court orders are not without some confusion" in part because "the trial court issued a minute order that was identical to the tentative ruling and reiterated both [of SCE's grounds] for waiver as the basis for summary judgment," yet, at the hearing on the motion, the "court adopted only . . . the waiver in the Subcontractor Agreement . . . as the basis for granting summary judgment in favor of SCE." We need not determine whether the trial court relied on both grounds in granting summary judgment because we conclude that the waiver in the subcontractor agreement bars Evanston's subrogation claim, Evanston has forfeited its appellate challenges concerning its equitable indemnity and restitution causes of action, and Evanston does not argue the trial court erred in granting summary judgment as to its declaratory relief cause of action. (See Discussion, parts A-B, post.)
APPLICABLE INSURANCE LAW AND STANDARD OF REVIEW
A. Applicable Standards of Review and Contract Interpretation
"A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding...." (Code Civ. Proc., § 437c, subd. (a)(1).) "A defendant . . . has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff . . . shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto." (Id., subd. (p)(2).) "We review an order granting or denying summary judgment or summary adjudication independently." (Los Angeles Unified School Dist. v. Torres Construction Corp. (2020) 57 Cal.App.5th 480, 492.)
" '[I]nterpretation of a contract presents a question of law unless it depends on conflicting evidence, and an appellate court is not bound by a trial court's interpretation which does not depend on the credibility of extrinsic evidence.' [Citations.]" (Boyd v. Oscar Fisher Co. (1989) 210 Cal.App.3d 368, 378.) Evanston concedes that because "the parties offered no extrinsic evidence to support their interpretations of the waiver provision [included in the subcontractor agreement], interpretation of the contract is a legal question for the Court ...."
The parties dispute whether Evanston forfeited its contention that the clear and convincing evidence standard applies to SCE's waiver defense. We need not resolve this question because even if that standard were applicable, we would find that the waiver provision satisfies it as a matter of law. This is because Evanston concedes that "the underlying facts are not disputed in this case," and, based on those uncontested facts, we conclude that the waiver provision in the subcontractor agreement unambiguously applies to Evanston's equitable subrogation cause of action. (See Discussion, part A.1, post.)
"In interpreting a contract, the objective intent, as evidenced by the words of the contract, is controlling. [Citation.] We interpret the intent and scope of [an] agreement by focusing on the usual and ordinary meaning of the language used and the circumstances under which the agreement was made." (Lloyd's Underwriters v. Craig &Rush, Inc. (1994) 26 Cal.App.4th 1194, 1197-1198 (Lloyd's Underwriters).)" '[Contracts . . . must be construed from the language used; when the terms are plain and unambiguous, it is the duty of courts to enforce the agreement. [Citation.]' [Citation.]" (Roug v. Ohio Security Ins. Co. (1986) 182 Cal.App.3d 1030, 1035.)" 'A contract is ambiguous when . . . it is capable of two different reasonable interpretations [citation.]' [Citation.]" (See McCorkle v. State Farm Ins. Co. (1990) 221 Cal.App.3d 610, 614.)
"' "A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness." [Citation.]' [Citation.] Thus, '" 'it is the appellant's responsibility to affirmatively demonstrate error'"' by '" 'supply[ing] the reviewing court with some cogent argument supported by legal analysis and citation to the record.'" [Citation.]' [Citations.] The appellant bears this burden of rebutting the presumption of correctness accorded to the trial court's decision, regardless of the applicable standard of review." (Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2023) 94 Cal.App.5th 764, 776-777.)
B. Applicable Subrogation Principles
"' "In the case of insurance, subrogation takes the form of an insurer's right to be put in the position of the insured in order to pursue recovery from third parties legally responsible to the insured for a loss which the insurer has both insured and paid. [Citations.]" [Citation.] "The subrogated insurer is said to' "stand in the shoes"' of its insured, because it has no greater rights than the insured and is subject to the same defenses assertable against the insured. Thus, an insurer cannot acquire by subrogation anything to which the insured has no rights, and may claim no rights which the insured does not have." [Citation.]' [Citation.]" (Carter v. Pulte Home Corp. (2020) 52 Cal.App.5th 571, 578 (Carter).) "[S]ubrogation has its source in equity and arises by operation of law ...." (39A Cal.Jur.3d (2022) Insurance Contracts, § 699, p. 691.)
"' "The essential elements of an insurer's cause of action for equitable subrogation are as follows: [1] the insured suffered a loss for which the defendant is liable, either as the wrongdoer whose act or omission caused the loss or because the defendant is legally responsible to the insured for the loss caused by the wrongdoer; [2] the claimed loss was one for which the insurer was not primarily liable; [3] the insurer has compensated the insured in whole or in part for the same loss for which the defendant is primarily liable; [4] the insurer has paid the claim of its insured to protect its own interest and not as a volunteer; [5] the insured has an existing, assignable cause of action against the defendant which the insured could have asserted for its own benefit had it not been compensated for its loss by the insurer; [6] the insurer has suffered damages caused by the act or omission upon which the liability of the defendant depends; [7] justice requires that the loss be entirely shifted from the insurer to the defendant, whose equitable position is inferior to that of the insurer; and [8] the insurer's damages are in a liquidated sum, generally the amount paid to the insured." [Citation.]' [Citation.]" (Carter, supra, 52 Cal.App.5th at p. 578.)
Under the doctrine of equitable subrogation, an insurer may acquire a cause of action against a defendant by "fund[ing] a settlement [with an injured third party] on behalf of" its insured. (See Carter, supra, 52 Cal.App.5th at p. 584.) Under those circumstances, the insured is deemed to have possessed"' "an existing, assignable cause of action against the defendant which the insured could have asserted for its own benefit had it not been compensated for its loss by the insurer ...." [Citation.]' [Citation.]" (See id. at pp. 578, 584.) This appears to be the theory underlying Evanston's equitable subrogation cause of action. As Evanston avers in its complaint, "Mowbray's could have and would have asserted this action for its own benefit had the claim not been compensated for by [Evanston] as Mowbray's excess insurer."
In its appellate briefing, Evanston does not expressly identify the underlying cause of action it claims to have obtained from Mowbray's through subrogation. Evanston, however, asserts, "The crux of Evanston's complaint against SCE is that it has the right to recover through equitable subrogation the $25 million payment it made to settle the Underlying Round Fire Actions, because SCE cannot blame Mowbray's for the Round Fire ...." Evanston further maintains, "[T]he fire resulted from SCE's own negligence ...." It thus appears that Evanston is contending it was subrogated to an indemnity claim that Mowbray's could have asserted against SCE had Evanston not made the $25 million contribution toward the settlement of the underlying action. (See 2 Witkin, Summary of Cal. Law (11th ed. 2017) Insurance, § 475, p. 769 ["Indemnity is an obligation, arising either from contract or equitable considerations, under which one party is obligated to save another from loss or liability."].)
An insured's contractual waiver may defeat an insurer's subrogation claim. (See, e.g., Fireman's Fund Ins. Co. v. Sizzler USA Real Property, Inc. (2008) 169 Cal.App.4th 415, 417 (Fireman's Fund Ins. Co.).) Ordinary principles of contract interpretation determine whether a contractual waiver bars a subrogation cause of action. (See Lloyd's Underwriters, supra, 26 Cal.App.4th at pp. 1196, 1198.)
DISCUSSION
A. The Subcontractor Agreement Unambiguously Waived Evanston's Subrogation Rights Against SCE
Evanston argues the waiver provision in Mowbray's subcontractor agreement is ambiguous because "it is subject to two reasonable interpretations": (1) "a broad waiver of all claims [that] bars any rights of recovery by Mowbray's or any of its insurers against SCE," which Evanston characterizes as SCE's position; and (2) Evanston's position that "the provision applies only to waive those claims that arise out of Mowbray's 'Work[,]'" as that term is defined in the subcontractor agreement. Evanston elaborates that under its construction of the waiver, the provision would "apply . . . only to claims that arise from harm caused by Mowbray's 'Work.'" Evanston further maintains that "because the scope of the waiver is ambiguous," we should "constru[e] the waiver narrowly" and either adopt Evanston's interpretation or conclude there is a triable issue of fact as to the waiver's scope.
For the reasons set forth below, we hold the plain language and context of the waiver provision in the subcontractor agreement establish that the provision unambiguously precludes Evanston's equitable subrogation cause of action. We also conclude the waiver provision is not reasonably susceptible to the interpretation Evanston advocates that would limit the scope of that provision to only claims arising out of Mowbray's Work. Finally, we reject Evanston's argument that we must adopt its construction of the waiver to avoid absurd and inequitable results. Given our ruling that the waiver provision precludes Evanston's equitable subrogation claim, we do not address SCE's other arguments in support of its waiver defense.
SCE contends (1) its agreement with UTS "confirms that Evanston was required to waive any right of recovery against SCE," and (2) Evanston's insurance policy incorporated by reference a subrogation waiver included in the Navigators policy.
1. The plain language and context of the waiver provision demonstrate that it encompasses Evanston's subrogation rights
We apply time-honored principles of contract interpretation to the waiver provision in the subcontractor agreement." '[T]he context in which a [contract] term appears is critical." '[L]anguage in a contract must be construed in the context of that instrument as a whole, and in the circumstances of that case ....'" [Citations.] In other words, there cannot be ambiguity in the abstract, that is, one unrelated to an application. While "reliance on [the] common understanding of language is bedrock[,] [¶] [e]qually important are the requirements of reasonableness and context." [Citation.]' [Citation.]" (See Mount Vernon Fire Ins. Co. v. Busby (2013) 219 Cal.App.4th 876, 882.)
The waiver provision at issue appears in exhibit B of the agreement, which is a two-page document entitled "Insurance." On the first page and under the subheading "Subcontractor's Insurance" (boldface & underscoring omitted), the subcontract requires the "Subcontractor" to "obtain and maintain" certain specified "policies of insurance ...." The waiver provision is the final sentence of the second paragraph on page two of exhibit
These polices are "Statutory Workers Compensation" insurance; "Employers Liability Insurance"; "Commercial general liability insurance"; Automobile liability insurance"; certain other forms of insurance "[i]f applicable" (e.g., "Environmental Pollution Liability" insurance); and "[o]ther insurance appropriate for Contractor's business or required by law."
B. That paragraph reads in full:
"If the Prime Contract requires higher limits and/or additional coverages, then such insurance requirements shall be incorporated herein. The limits are minimum requirements only, it is the responsibility of the Subcontractor to determine if the limits are sufficient to protect the interests of the Parties and Owner. The required insurance may be satisfied, at Subcontractor's option, through the purchase of a separate excess umbrella liability policy together with lower primary underlying insurance limits. The coverages shall provide a severability of interest or cross-liability clause. Each policy shall be endorsed to provide a breach of warranty clause. Subcontractor waives and will require all of its insurers to waive all rights of recovery against Contractor or the Owner, their affiliates, their directors, officers and employees, whether in contract, tort (including negligence and strict liability) or otherwise."
Section 1.1 of the subcontractor agreement defines the "Prime Contract" as the underlying MSA between SCE and UTS.
The other provisions found on the second page of exhibit B set forth certain rights and obligations concerning the insurance Mowbray's was responsible for securing. For instance, one provision requires Mowbray's to "cause all of [its] insurers to name Contractor and Owner, their affiliates and subsidiaries, and the officers, directors, employees and agents of each, as additional insured for all of the liability coverages required above, including completed operations." This provision further indicates that exhibit B of the subcontractor agreement was designed to protect UTS and SCE from liability to third parties.
Concerning the text of the waiver provision itself, its employment of the broad phrase "all rights of recovery against Contractor or the Owner . . . whether in contract, tort (including negligence and strict liability) or otherwise" indicates that the provision is sufficiently capacious to preclude Mowbray's right to seek recovery from SCE for damages Mowbray's owes to a third party as a result of SCE's conduct. (Italics added.) Furthermore, Mowbray's obligation to "require all of its insurers to waive all rights of recovery against Contractor or the Owner" suggests the parties to the subcontract intended for this waiver to extend to claims against SCE as the "Owner," which, absent this provision, Mowbray's presumably could have transferred to its insurers. (See Applicable Insurance Law &Standard of Review, part B, ante [discussing the basis of Evanston's apparent equitable subrogation theory].)
Furthermore, the context of the waiver provision supports the conclusion that it encompasses claims against SCE that Mowbray's would otherwise have been able to transfer to its insurers. As noted above, the provision appears in an attachment to the subcontractor agreement that delineates Mowbray's obligations to procure insurance to protect SCE and UTS from liability. Construing the waiver provision to shield SCE from claims leveled by Mowbray's insurers would thus be consistent with the overall ostensible purpose of exhibit B. (See Scalia &Garner, Reading Law: The Interpretation of Legal Texts (2012) p. 167 ["[T]he whole-text canon . . . calls on the judicial interpreter to consider the entire text, in view of its structure and of the physical and logical relation of its many parts....[¶] . . . A legal instrument typically contains many interrelated parts that make up the whole."].)
This interpretation of the waiver provision is not novel. At one point, the "standardized American Institute of Architects (AIA) form" contract provided:" 'The Owner and Contractor waive all rights against each other . . . for damages caused by fire or other perils to the extent covered by property insurance obtained pursuant to [the contract] or other property insurance applicable to the Work.'" (See Lloyd's Underwriters, supra, 26 Cal.App.4th at pp. 1196-1197, italics omitted.) The Lloyd's Underwriters court held that this standardized language waived certain claims for damages against contractors that an owner had transferred to its insurers via subrogation because those claims were" 'covered'" by property insurance" 'applicable to the Work.'" (See id. at pp. 1196, 1198; see also Davlar Corp. v. Superior Court (1997) 53 Cal.App.4th 1121, 1124-1125 (Davlar Corp.) [holding that a similar standardized AIA form contract waived claims against a subcontractor that were covered by the general contractor's property insurance].) Similarly, given Evanston's concession that Mowbray's obtained Evanston's excess insurance policy "[t]o meet the insurance requirements of the Subcontractor Agreement," we conclude Evanston is one of the "insurers" whose "rights of recovery against" SCE are subject to the waiver provision in exhibit B.
We acknowledge that unlike the waiver provision in the AIA standardized contract, the instant waiver provision does not contain text restricting the scope of the waiver to claims covered by insurance. (See Lloyd's Underwriters, supra, 26 Cal.App.4th at p. 1197 [indicating the AIA form contract contained this restrictive language]; Davlar Corp., supra, 53 Cal.App.4th at p. 1123 [same].) That omission does not, however, establish that claims covered by insurance are exempt from the waiver provision found in exhibit B. Rather, the absence of this language indicates that the scope of the waiver in Mowbray's subcontractor agreement is potentially broader than the provisions at issue in Lloyd's Underwriters and Davlar Corp.
In sum, we hold the plain language of the waiver provision, read in the context of exhibit B to the subcontractor agreement, unambiguously forecloses Evanston's equitable subrogation claim against SCE-a claim for indemnification that Mowbray's otherwise would have had but for Evanston's $25 million contribution to the settlement of the underlying action.
2. The general language in the waiver provision does not render it ambiguous
Evanston argues on appeal that because "the release in Exhibit B was framed in very 'general' language," there is an "ambiguity as to what the parties to the Subcontractor Agreement intended as to [its] scope ...." In particular, Evanston contends the generality of the "all rights of recovery" language in the provision is insufficient to release claims that are not "tied to the scope of Mowbray's Work," or that, at a minimum, the scope of the provision "should be put to the trier of fact to resolve." Evanston cites Hohe v. San Diego Unified Sch. Dist. (1990) 224 Cal.App.3d 1559 (Hohe), to support its position. Hohe is unavailing.
In Hohe, a high school student sustained injuries after falling several times during a campus hypnotism show. (See Hohe, supra, 224 Cal.App.3d at pp. 1562-1563.) Prior to the show, the student's father signed two release forms, one of which was titled" 'Mission Bay High School [Parent, Teacher and Student Association (PTSA)] Presents Dr. Karl Santo'" and provided in part:" 'I waive all liability against the PTSA, its members, Mission Bay High School, and the San Diego Unified School District.'" (See id. at pp. 1562-1563 & fn. 1.) "Th[is] form began with precautionary language stating children with mental disorders or of a nervous disposition were not allowed to participate." (See id. at p. 1566.) The other release form was titled" 'Karl Santo Hypnotist'" and read in part:" 'I agree to indemnify and hold you and any third parties harmless from any and all liability, loss or damage (including reasonable attorney fees) caused by or arising in any manner from my participation in the Magic of the Mind Show including any utterances made by me during the above named show or material furnished by me in connection with my participation in the show.'" (See id. at p. 1563 & fn. 2.) "This second document . . . granted Karl Santo the authority to broadcast and record [the student's] performance and to use her name and likeness for promotional purposes." (Id. at p. 1566.)
The student and her father sued the San Diego Unified School District and the PTSA for personal injury, and the trial court later granted summary judgment based on the releases. (See Hohe, supra, 224 Cal.App.3d at p. 1562.) On appeal, the Court of Appeal reversed on the ground that "a triable issue of fact exist[ed] regarding the releases' scope and effect." (See ibid.)
At the outset of its analysis, the Hohe court observed," '[T]o be effective, an agreement which purports to release, indemnify or exculpate the party who prepared it from liability for that party's own negligence or tortious conduct must be clear, explicit and comprehensible in each of its essential details[,]'" and that" '[s]uch an agreement, read as a whole, must clearly notify the prospective releasor or indemnitor of the effect of signing the agreement.' [Citations.]" (See Hohe, supra, 224 Cal.App.3d at pp. 1565-1566.) The Court of Appeal concluded the releases fell short of satisfying that standard because they were "ambiguous." (See id. at pp. 1565-1568.)
Hohe reasoned that the two forms were "general releases" that did not include "language which specifically sp[oke] to a release from liability for negligence" or "any language which specifically alert[ed] the parent his child [was] barred from a recovery based on her bodily injury." (See Hohe, supra, 224 Cal.App.3d at p. 1567.) Although Hohe acknowledged "[t]he presence or absence of the words 'negligence' or 'bodily injury' [was] not dispositive," the appellate court nonetheless concluded "the intention as expressed in the releases signed by the parent for his child [was] not clear." (See id. at pp. 1567-1568.) Of particular importance to the Hohe decision was the fact that the releases "waived all liability . . . in the context of two documents which focused on mental and nervous disorders, defamation and broadcast rights." (See id. at p. 1568.)
Even assuming arguendo that applying the instant waiver to Evanston's subrogation claim would effectively" 'release, indemnify, or exculpate'" SCE for its own tortious conduct (see Hohe, supra, 224 Cal.App.3d at pp. 1565-1566), Hohe is inapposite. Whereas the language of the releases in Hohe arguably could have led a party to believe that the claims at issue were not subject to the releases, the same cannot be said of the waiver provision included in exhibit B to the subcontractor agreement, an exhibit that concerns Mowbray's procurement and maintenance of insurance. The context of the waiver provision indicates the parties to the subcontractor agreement intended to require Mowbray's to obtain certain insurance policies to protect UTS and SCE from liability. (See Discussion, part A.1, ante.) The waiver provision instructs Mowbray's to "require all of its insurers to waive all rights of recovery against Contractor or the Owner" as well, thereby manifesting the parties' intent to waive rights belonging to Mowbray's that could otherwise have been transferred to its insurers. (See Discussion, part A.1, ante.) Accordingly, even if the waiver provision can fairly be described as general, unlike the releases in Hohe, its meaning is plain for the reasons discussed in the preceding section.
3. The waiver provision is not reasonably susceptible to Evanston's proffered construction
Evanston argues, "[T]he language purporting to waive 'all rights of recovery' [citation] against SCE and UTS" is reasonably susceptible to Evanston's interpretation that the provision applies only to "claims arising out of Mowbray's Work as that is defined under the contract." Specifically, Evanston argues that its "interpretation is the only way [a] limitation on [the subcontractor agreement's] indemnification and . . . duty to defend provisions have any effect" and that the "defined term 'Work' is used repeatedly in defining the scope of Mowbray's obligations and potential liability" in the subcontractor agreement. The waiver provision is not reasonably susceptible to Evanston's proposed construction.
Evanston contends, "[T]he Subcontractor Agreement imposes on Mowbray's broad duties to indemnify and defend UTS and SCE-but limits the scope of indemnification and defense to acts and omissions causally connected to the Work." According to Evanston, section 12.1 of the agreement obligates Mowbray's to "indemnify and hold harmless 'Contractor [UTS] and Owner [SCE]' for 'all claims, demands, losses, damages, expenses and liabilities,' including those resulting from errors, omissions, or negligence, 'which were caused in whole or in part by the Subcontractor [Mowbray's], its employees, agents, and assigns or connected with the Work.'" (Fn. omitted.) Evanston alleges that section 12.2 of the agreement "reiterates that Mowbray's must indemnify UTS and SCE 'when there is any causal connection between the Subcontractor's Work and any claim.'" Further, Evanston claims that section 12.3 of the agreement imposes upon Mowbray's a "duty to defend UTS and SCE 'as long as the claims could be ca[us]ally connected to' Mowbray's 'as reasonably determined by' UTS and SCE."
Assuming arguendo that Evanston has correctly construed these indemnification and duty to defend provisions, we nonetheless fail to discern why limitations on Mowbray's obligations to indemnify and defend SCE would restrict the scope of a waiver regarding claims Mowbray could otherwise have transferred to its insurers. If Mowbray's were obligated to indemnify and defend SCE for all claims causally connected to Mowbray's Work, it would necessarily follow that, for the purposes of the waiver provision, those claims could not constitute "rights of recovery" against SCE that belonged to Mowbray's. Thus, as SCE points out, "According to Evanston's logic, Mowbray's (and, therefore, Mowbray's insurers) would not have any claims against SCE related to the Round Fire if the Round Fire had been caused by Mowbray's 'Work.'" Put differently, as SCE correctly notes, because Evanston interprets the waiver provision to apply only to claims never belonging to Mowbray's "in the first place," Evanston's approach would render the provision "a nullity ...." Evanston's construction is thus unreasonable. (See United Farmers Agents Assn., Inc. v. Farmers Group, Inc. (2019) 32 Cal.App.5th 478, 495 (United Farmers Agents Assn., Inc.) ["We strive to 'give effect to all of a contract's terms, and to avoid interpretations that render any portion superfluous, void or inexplicable.' "].)
Our conclusion that the indemnity and duty to defend provisions of the subcontractor agreement differ in scope from the waiver provision is further supported by this court's recognition in a prior case that there was no inconsistency between an agreement's indemnification provisions and a subrogation waiver. (See Davlar Corp., supra, 53 Cal.App.4th at pp. 1124-1125 &fn. 3.) In Davlar Corp., we wrote somewhat piquantly "[s]ubrogation waivers and indemnity provisions are horses of different colors." (See id. at p. 1125.)
Additionally, Evanston relies on provisions in the subcontractor agreement defining Mowbray's "Work" to be provided pursuant to the agreement, the standard of care applicable to that "Work," the warranties Mowbray's is providing as to that "Work," and other provisions employing the term "Work" to define the scope of Mowbray's obligations and potential liability to argue that the waiver provision must be read in pari materia with these provisions. This is a non sequitur. Although the subject matter of a subcontract is a subcontractor's provision of services for the owner that had hired the general contractor, it does not logically follow that a waiver of the subcontractor's claims against the owner must be limited to rights of recovery arising out of the subcontractor's provision of those services. Instead, the waiver could apply more broadly to claims the subcontractor would have otherwise been able to transfer to its insurer. (See Discussion, part A.1, ante.)
Furthermore, as discussed earlier in this part, Evanston's position is that sections 12.1, 12.2, and 12.3 of the agreement explicitly obligate Mowbray's to indemnify and defend SCE for claims causally connected to Mowbray's Work. Conversely, the waiver provision in exhibit B does not employ the terms "causally connected to" or "arising from" Mowbray's Work to define the scope of the waiver. The fact that the parties to the subcontractor agreement knew how to express their intention to limit the scope of provisions regarding indemnity and duty to defend to claims causally connected to Mowbray's Work but chose not to do so in the waiver further demonstrates that Evanston's interpretation of the latter is unreasonable. (See Cornette v. Department of Transportation (2001) 26 Cal.4th 63, 73 ["When one part of a statute contains a term or provision, the omission of that term or provision from another part of the statute indicates the Legislature intended to convey a different meaning."]; Christian v. Flora (2008) 164 Cal.App.4th 539, 551 [holding that contracts are to be "construed in accordance with substantially the same canons of interpretation as statutes"]; Edwards v. Arthur Andersen LLP (2008) 44 Cal.4th 937, 954 (Edwards) ["[W]hen courts construe an instrument, a judge is 'not to insert what has been omitted, or to omit what has been inserted ....' "].)
4. Construing the waiver provision to include Evanston's subrogation claim against SCE would not yield an absurd or inequitable outcome
Evanston argues that restricting the waiver provision to claims arising out of Mowbray's Work is the only means of averting "unreasonable, inequitable, and absurd results." In addition, Evanston contends that declining to adopt its construction of the waiver provision would "contravene[ ] the strong public policy favoring settlement of insurance disputes and allocating fault between defendants through equitable subrogation." We acknowledge that "court[s] 'should avoid an interpretation which will make the contract unusual, extraordinary, harsh, unjust or inequitable [citations], or which would result in an absurdity ....' [Citation.]" (West Pueblo Partners, LLC v. Stone Brewing Co., LLC (2023) 90 Cal.App.5th 1179, 1185 (West Pueblo Partners, LLC).) We, however, conclude that none of these arguments is persuasive. Rather, they appear to be directed to deflecting focus from the express terms of the waiver provision, which preclude Evanston's equitable subrogation cause of action against SCE.
Regarding Evanston's first contention, Evanston maintains that in the absence of its limiting construction of the waiver, the provision "would bar Mowbray's from asserting any claim of any type against SCE forever." Evanston claims Mowbray's would be foreclosed from bringing an action for "non-payment-an action for recovery in contract." Evanston further argues that because the waiver provision covers tort claims, "SCE would argue that Mowbray's [would be] barred from any recovery" against SCE for "any claim in tort," e.g., if SCE "negligently or intentionally damaged Mowbray's equipment." Evanston also maintains, "[I]f a third party suffers damage (like here) due to SCE's negligence and Mowbray's is sued, SCE would argue that Mowbray's is barred from any recovery against SCE for causing the harm."
As a preliminary matter, we note that" '" '[l]anguage in a contract must be construed in the context of that instrument as a whole, and in the circumstances of that case, and cannot be found to be ambiguous in the abstract.'" [Citation.] . . . [Citation.]' [Citation.]" (Powerine Oil Co., Inc. v. Superior Court (2005) 37 Cal.4th 377, 391, italics added.) In accordance with this principle, our conclusion that the waiver provision unambiguously encompasses claims against SCE that Mowbray's otherwise could have been transferred to Evanston through subrogation does not necessarily imply that all potential claims Mowbray's could have against SCE or UTS fall within the scope of the waiver.
For instance, our holding that this provision bars Evanston's subrogation claim does not transgress "the established principle that we must interpret the provisions of a contract to avoid rendering the instrument 'illusory' [citation]" (see John's Grill, Inc. v. The Hartford Financial Services Group, Inc. (2022) 86 Cal.App.5th 1195, 1219, review granted Mar. 29, 2023, S278481), nor does it render nugatory payment provisions of the subcontractor agreement (see United Farmers Agents Assn., Inc., supra, 32 Cal.App.5th at p. 495 [holding that a court should" 'avoid interpretations [of a contract] that render any portion superfluous, void or inexplicable' "]). On the other hand, interpreting the waiver provision to apply to UTS's obligation to pay Mowbray's for its services would run afoul of both of those principles. Thus, our construction of the waiver provision does not lead to the conclusion that Mowbray's waived the consideration to which it is entitled under the subcontractor agreement.
Nor does it follow from our holding that applying the waiver provision to Evanston's subrogation claim would mean SCE would be shielded from liability for "any claim in tort," including claims against SCE for "negligently or intentionally damag[ing] Mowbray's equipment." The waiver provision appears in an attachment to the subcontractor agreement that requires Mowbray's to purchase certain insurance to protect against claims belonging to third parties, e.g., "Statutory Workers Compensation" and "Commercial general liability insurance." This context supports our conclusion that the waiver precludes a claim paid by Mowbray's insurer to such a third party. (See Discussion, part A.1, ante.) This context does not suggest that the waiver also applies to hypothecated torts by SCE against Mowbray's.
Even assuming, as Evanston tacitly contends, that the waiver could be read to encompass "future liability for fraud and other intentional wrongs" perpetrated by SCE, any such waiver arguably would be invalid under Civil Code section 1668. (See Farnham v. Superior Court (1997) 60 Cal.App.4th 69, 71; see also id. at p. 74 [observing that "exemptions from all liability for intentional wrongs, gross negligence and violations of the law have been consistently invalidated" under the statute]; Civ. Code, § 1668 ["All contracts which have for their object, directly or indirectly, to exempt any one from responsibility for his own fraud[ ] or willful injury to the person or property of another . . . are against the policy of the law."].) Any such potential invalidity would support interpreting the phrase "all rights of recovery against" SCE not to shield SCE from liability for such wrongs. (See Edwards, supra, 44 Cal.4th at p. 954 [" '[I]t is one of the cardinal rules of interpreting an instrument to give it such construction as will make it effective rather than void.' "].)
We emphasize that we are not deciding whether a waiver of Mowbray's claims against SCE for the latter's fraud and other intentional wrongs would transgress Civil Code section 1668. We refer to this statute merely to demonstrate that rejecting Evanston's proffered construction of the waiver would not necessarily yield the inequitable outcome of which Evanston complains, i.e., SCE escaping liability for its intentional torts. We do not address Evanston's argument further because Evanston fails to address this obstacle to its position. (See Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 (Cahill) [" 'We are not bound to develop appellants' arguments for them. [Citation.] The absence of cogent legal argument or citation to authority allows this court to treat the contention as waived.' "].)
Evanston further postulates that if the waiver provision were not restricted to claims arising from Mowbray's Work, then "if a third party suffers damage (like here) due to SCE's negligence and Mowbray's is sued," Mowbray's may be "required to defend SCE and UTS under the [duty to defend] provision entitling them to declare their claims are 'ca[us]ally connected' to Mowbray's [citation] with no recourse if that determination was false or made in bad faith." Even assuming arguendo the literal terms of the waiver provision could be read to include Mowbray's bad faith claims against SCE and UTS, that fact alone would not establish that such a claim would be precluded if preclusion were contrary to the contracting parties' intent. (See Civ. Code, § 1648 ["However broad may be the terms of a contract, it extends only to those things concerning which it appears that the parties intended to contract."].) Furthermore, even if the waiver could be interpreted such that Mowbray's shoulders the risk of UTS's and SCE's erroneous (but not necessarily bad faith) determination that Mowbray's is obligated to defend them in a particular case, it is not apparent to us that this" 'interpretation . . . [would] make the contract unusual, extraordinary, harsh, unjust or inequitable[,] . . . or . . . would result in an absurdity[.]' [Citation.]" (See West Pueblo Partners, LLC, supra, 90 Cal.App.5th at p. 1185.)
Evanston does not purport to level against SCE a bad faith claim that initially belonged to Mowbray's. (See fn. 8, ante [explaining that Evanston does not identify expressly the underlying basis of its subrogation claim in its appellate briefing, and that Evanston appears to be invoking Mowbray's right to indemnification from SCE].)
In short, we reject as unsupported Evanston's hypothesis that affirming the judgment necessarily implies that "the waiver provision would bar Mowbray's from asserting any claim of any type against SCE forever."
Evanston also seems to argue that if we do not adopt its interpretation of the waiver provision, "a third party suffers damage (like here) due to SCE's negligence[,] and Mowbray's is sued, .... [then] Mowbray's [would be] barred from bringing any of these claims even though these claims are entirely unrelated to any harm caused by Mowbray's." It is not clear whether in making this argument, Evanston is asserting Mowbray's would somehow be entitled to assert a third party's claim for relief against SCE if the waiver provision were limited to claims arising out of Mowbray's Work. Because Evanston does not shed further light on this argument, we decline to address it further. (See Cahill, supra, 194 Cal.App.4th at p. 956.)
Turning to Evanston's policy argument, Evanston contends, "In mass tort claims like the Underlying Round Fire Actions, public policy favors insurers settling claims and then litigating appropriate allocations after the settlement." (Citing, inter alia, Ace American Ins. Co. v. Fireman's Fund Ins. Co. (2016) 2 Cal.App.5th 159, 182 [" 'California's public policy is to encourage settlement.' "].) According to Evanston, "one of the central benefits of subrogation . . . is that it allows prompt settlement of a lawsuit while reserving the dispute over which party is at fault," thereby "allow[ing] the victims to be compensated instead of being tied up for years in litigation ...." Evanston asserts that "[b]y agreeing to the settlement of the lawsuits and deciding to pursue SCE separately, Evanston was able to resolve the litigation for Mowbray's and the victims of the wildfire while preserving its right to place the responsibility of the wildfire where it belongs-on SCE." Evanston adds that declining to restrict the waiver provision to claims arising out of Mowbray's Work would "negate" that benefit of equitable subrogation by incentivizing insurers to "dispute allocation of fault before contributing to settlements." (Italics added.)
We are not persuaded that our construction of the waiver provision would hinder public policy favoring prompt settlement of insurance disputes. The fact that a provision waiving the subrogation rights of insurers was a standardized term in many construction contracts suggests our interpretation is not anomalous as Evanston intimates. (See Lloyd's Underwriters, supra, 26 Cal.App.4th at pp. 1196-1198.) Indeed, "[w]aivers of subrogation . . . are not unfamiliar in California." (Fireman's Fund Ins. Co., supra, 169 Cal.App.4th at p. 419; see also Davlar Corp., supra, 53 Cal.App.4th at p. 1125 ["[I]t is . . . common practice in the construction industry for contractors and subcontractors to enter into contracts with express subrogation waivers."].) Furthermore, notwithstanding a contractual provision explicitly waiving "all rights of recovery" Mowbray's and its insurers have against UTS and SCE, "Evanston agreed to contribute the $25 million policy limit to a settlement," thereby demonstrating that the waiver provision need not be limited to claims arising from Mowbray's Work in order to encourage the settlement of insurance disputes. Also," '[w]hatever merit there may be to conflicting social and economic considerations, they have nothing whatsoever to do with our interpretation of the unambiguous contractual terms. [Citation.] . . .' [Citations.]" (Qualcomm, Inc. v. Certain Underwriters at Lloyd's, London (2008) 161 Cal.App.4th 184, 204.)
Lastly, Evanston seems to contend that we must engraft an "arise out of Mowbray's 'Work'" limitation on the waiver provision to avoid "countenanc[ing]" an inequitable result. In particular, Evanston argues that in the absence of this extratextual restriction, Evanston would have "no recourse to make the actual wrongdoer bear the costs of its wrongdoing," which is unfair because SCE "threaten[ed] a bad faith action and demand[ed] to be treated as an additional insured" "despite knowing there was no causal connection to Mowbray's ...."
The waiver provision was presumably available for Evanston's review when it underwrote the insurance policy for Mowbray's. (See 4 Cal. Ins. Law Dictionary &Desk Ref. (2023 ed.) § U11:01 ["Underwriting is a label commonly applied to the process, fundamental to the concept of insurance, of deciding which risks to insure and which to reject in order to spread losses over risks in an economically feasible way."].) Evanston nonetheless provided coverage even though the waiver provision did not contain text limiting its application to claims arising out of Mowbray's Work or include any exception for losses SCE knows Mowbray's did not actually cause. Because our function is to interpret the subcontractor agreement as written and not to protect Evanston from the risks it assumed in insuring Mowbray's operations and contributing to the settlement of the underlying action, we decline Evanston's invitation to vary the explicit terms of the agreement. (See Pacific Architects Collaborative v. State of California (1979) 100 Cal.App.3d 110, 123 [" '[T]he courts cannot rewrite a contract to avoid difficulty or hardship.' "].)
5. Because the waiver provision is unambiguous, we reject Evanston's remaining arguments supporting its construction of the provision
Evanston argues that "[b]ecause the waiver provision in Exhibit B is subject to two reasonable readings, in an effort to resolve the ambiguity, this Court must apply other principles of contract interpretation to determine the parties' intent." In particular, Evanston asserts that "[a] provision purporting to waive a party's legal rights must be construed narrowly, against waiver." Similarly, Evanston contends the waiver provision should "be strictly construed against" SCE because, "[b]y arguing that Mowbray's waiver forecloses equitable subrogation, SCE seeks to exculpate itself from the consequences of its own negligence and wrongdoing." Evanston further argues that only its construction is "consistent with other rules governing contract interpretation," including the principle that the court "should adopt an interpretation that is consistent with the stated purpose of the contract." (Italics &capitalization omitted from first quotation.)
In connection with Evanston's assertion that only its interpretation is "consistent with other rules governing contract interpretation," Evanston further contends that (1) its interpretation is (a) "the only way the [subcontractor agreement's] limitation on indemnification and the duty to defend provisions have any effect" and (b) consistent with the "strong public policy favoring settlement of insurance disputes and allocating fault between defendants through equitable subrogation," and (2) "foreclos[ing] recovery for any and all losses that admittedly were not connected to Mowbray's 'Work' would create unreasonable, inequitable, and absurd results." (Italics & capitalization omitted from first quotation.) Because those arguments implicate whether the waiver provision is reasonably susceptible to Evanston's interpretation and whether our construction would yield an absurdity, we address (and reject) them in Discussion, parts A.3 and A.4, ante.
Evanston concedes, and we agree, that these "other principles of contract interpretation" are relevant "if [we] find[ ] the language [of the waiver provision] susceptible of more than one meaning." (See Edwards, supra, 44 Cal.4th at p. 953 [" 'Where the language of a contract is clear and not absurd, it will be followed. [Citations.] But if the meaning is uncertain, the general rules of interpretation are to be applied.' "]; Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 393 [" 'When a dispute arises over the meaning of contract language, the first question to be decided is whether the language is "reasonably susceptible" to the interpretation urged by the party. If it is not, the case is over.' "].) Because we conclude for the reasons set forth above that the waiver provision's reference to "all rights of recovery against Contractor or the Owner" unambiguously includes Evanston's equitable subrogation rights against SCE, we do not address Evanston's arguments concerning these other principles of contract interpretation.
B. Evanston Forfeited Its Claims of Error Concerning Its Equitable Indemnity and Restitution Causes of Action
In its opening brief, Evanston asserts that although its causes of action for equitable indemnity and restitution are "distinct from the cause of action for equitable subrogation," SCE "did not address equitable indemnity or restitution" in its summary judgment motion and the trial court did not "address these causes of action [either], other than [by] reciting them in the introductory section of its order." Evanston argues that the trial court erred in failing to analyze these claims separately.
SCE counters on appeal that Evanston forfeited its argument that the "causes of action for equitable indemnity or restitution should have survived SCE's Motion for Summary Judgment ...." SCE claims to have "argued in its Motion that 'as a matter of law, no triable issue of material facts exists [sic] as to any of EVANSTON's causes of action alleged against [SCE] in the Complaint in this matter[,]'" and that "SCE sought summary judgment as to the entirety of Evanston's Complaint." SCE represents that "in opposing SCE's Motion, Evanston declined to make any separate reference to its causes of action for equitable indemnity, restitution, or declaratory relief."
As we noted in our Factual and Procedural Background, ante, Evanston also asserted a cause of action for declaratory relief. Evanston does not argue that the trial court should have addressed that claim separately in its order granting SCE's summary judgment motion.
In its reply brief, Evanston acknowledges SCE's arguments that SCE "intended to move for summary judgment on the whole complaint and [that] Evanston did not earlier raise a defect or separate claim as to equitable indemnity." Yet, Evanston does not dispute either of those contentions or otherwise challenge SCE's invocation of the forfeiture doctrine. Evanston thus tacitly admits that in opposing SCE's summary judgment motion, Evanston did not argue that even if Evanston's subrogation claim were barred by the waiver provision, Evanston's causes of action for equitable indemnity and restitution would still be viable. (See Rudick v. State Bd. of Optometry (2019) 41 Cal.App.5th 77, 89-90 [concluding that the appellants made an implicit concession by "failing to respond in their reply brief to the [respondent's] argument on th[at] point"].) Accordingly, Evanston has forfeited its claims of error concerning its equitable indemnity and restitution causes of action. (See Meridian Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 699 [holding that" '[a]n argument or theory will . . . not be considered if it is raised for the first time on appeal[,]'" and that this "rule of forfeiture through inaction applies to summary judgment appeals"].)
DISPOSITION
The judgment is affirmed. Respondent Southern California Edison Company is awarded its costs on appeal.
We concur: CHANEY, J. WEINGART, J.