Carter v. Pulte Home Corporation

Filed 7/23/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
CHARLES CARTER et al.,
Plaintiffs,
v.
PULTE HOME CORPORATION et al.,
Defendants;
TRAVELERS PROPERTY CASUALTY
COMPANY OF AMERICA et al.,
Interveners and Appellants;
COASTAL CONSTRUCTION & A154757
LUMBER COMPANY et al.,
(Contra Costa County
Interveners and Respondents.
Super. Ct. No. MSC13-01718)
Travelers Property Casualty Company of America (Travelers) appeals
from a judgment denying relief on its complaint for equitable subrogation.
Travelers defended the residential developer in a construction defects suit as
an additional insured under general liability insurance policies issued to
several subcontractors on the project, then sought to recover its costs from
respondents, subcontractors that also worked on the project but failed to
provide the developer a defense. Travelers contends the trial court erred in
finding it failed to establish all the elements of its cause of action and denied
it a fair trial by violating its own in limine orders. We affirm.
1
BACKGROUND
Pulte Home Corporation (Pulte), a residential developer and general
contractor, was sued for construction defects by the owners of 38 homes in
two housing developments. Many subcontractors worked on the projects,
under contracts requiring each subcontractor to indemnify Pulte and to name
it as an additional insured on the subcontractor’s commercial general liability
insurance. These contracts required each subcontractor to indemnify Pulte
against “all liability, claims, judgments, suits, or demands for damages to
persons or property arising out of, resulting from, or relating to Contractor’s
performance of work under the Agreement (‘Claims’) unless such Claims have
been specifically determined by the trier of fact to be the sole negligence of
Pulte . . . .”
Pulte cross-complained against the subcontractors who worked on some
or all of the homes at issue, alleging it was entitled to a defense and
indemnity, and tendered its defense of the homeowners’ suit to the
subcontractors and their insurers.
Travelers, the insurer for four of the subcontractors,1 accepted the
tender and provided a defense. The “Blanket Additional Insured
Endorsements” to Travelers’s named insureds’ policies stated that the
“person or organization is only an additional insured with respect to liability
caused by ‘your work’ for that additional insured.”
1AGI Associates, Inc., doing business under the name of AGI Shower
Door & Mirror (AGI), Bill Wilder Construction Company (Wilder), Halabi,
Inc., doing business under the name of Duracite (Duracite), and Sullivan
Countertops, Inc. (Sullivan).
2
Respondents are seven subcontractors2 who did not respond to the
tender of Pulte’s defense and whose insurance carriers denied that the
additional insured endorsements to their policies required the insurers to
provide a defense.
Travelers filed a complaint in intervention against respondents and
other subcontractors no longer involved in the litigation.3 Its complaint and
first amended complaint alleged causes of action for declaratory relief,
equitable subrogation, equitable indemnity and contractual subrogation.
Travelers dismissed all the causes of action except equitable subrogation
prior to trial.
Pulte eventually settled the homeowners’ claims and its claims against
all the subcontractors. Travelers ultimately paid $320,491.82 for Pulte’s
defense. At trial, it sought to recover $156,091.82 from respondents, having
recovered $164,400 from other subcontractors.4
Travelers’s position at trial was that respondents were each jointly and
severally liable for the remainder of its costs for defending Pulte, as each
respondent had a contractual obligation to defend Pulte. Travelers filed an in
2 Coastal Construction & Lumber Company (Coastal), Colorific
Painting, Inc. (Colorific), Concord Plumbing Company (Concord), Daggett
Electric, Inc. (Daggett), Dawson Electric, Inc. (Dawson), Jerry Dellinger
Concrete, Inc. (Dellinger), Dependable Heating (Dependable), Josh Edward
Gish, doing business under the name of Woodland Stairs and Millwork
(Woodland).
3 Travelers initially named many more subcontractors as defendants in
intervention. At the time of trial, eight remained: Respondents and
Colorific. Travelers later settled with Colorific, which is not a party to this
appeal.
4 Travelers recovered $208,000 from subcontractors no longer involved
in the litigation by the time of trial, $141,400 of which it allocated to defense
fees; it later recovered an additional $23,000 when it settled with Colorific.
3
limine motion seeking an order precluding the parties from presenting
evidence or argument suggesting its damages should be allocated or
apportioned among the subcontractors, which the trial court stated was “in
effect” granted after confirming that Travelers’s case was “just all or
nothing.” The court also granted Travelers’s in limine motion for an order
precluding presentation of evidence or argument concerning whether
respondents’ work on the homes was defective or caused damages, which
Travelers sought on the basis that the truth of such claims was irrelevant
because respondents agreed to defend Pulte against claims of negligence or
defective work.
According to the evidence at trial, there was considerable variation in
the number of homes each respondent worked on: Two worked on all 38
homes involved in the litigation (Coastal and Dellinger), one worked on 30
(Daggett), two worked on 23 (Concord and Woodland), and another two
worked on only six or eight of the homes (Dependable and Dawson,
respectively). The homeowners’ complaints did not indicate which
subcontractor worked on which home, and no evidence was presented as to
whether the work of any subcontractor was defective. For example, while the
complaint alleged violations relating to heating, ventilation, and air
conditioning (HVAC) systems within the scope of Dependable’s work, and
there was evidence that Dependable worked on three homes in one of the
subject residential developments, Travelers’s expert witness could not
determine whether the complaint alleged there were HVAC issues in any of
the three homes on which Dependable worked. The trial court found that
Pulte’s tender of defense to the subcontractors was based on “the contractual
provision that required each to provide a defense with respect to plaintiffs’
4
claims related to its scope of work, regardless of whether that work was
ultimately proved to be defective.”
As will be explained, the trial court analyzed the factors necessary to
establish entitlement to equitable subrogation, determined that Travelers
had not proven at least three of these factors, and concluded that it “would
not be just” to find respondents jointly and severally liable for the fees and
costs Travelers sought to recover. Travelers’s motion for a new trial was
denied, and this appeal followed.
DISCUSSION
Travelers contends the judgment must be reversed because it
established each of the elements of its claim for equitable subrogation, the
judgment is contrary to public policy in that it incentivizes subcontractors to
breach their subcontracts, and the trial court’s violation of its own in limine
orders deprived Travelers of a fair trial. Travelers argues that respondents
are each jointly and severally liable to it for the cost of Pulte’s defense (less
the amount Travelers has recovered from other parties).5 In the event we
disagree as to joint and several liability, however, Travelers asks us to
remand for the trial court to allocate to each respondent a proportionate
share of the defense costs.
I.
“Subrogation is the ‘substitution of another person in place of the
creditor or claimant to whose rights he or she succeeds in relation to the debt
or claim.’ (Fireman’s Fund Ins. Co. v. Maryland Casualty Co. (1998) 65
Cal.App.4th 1279, 1291.) ‘In the case of insurance, subrogation takes the
5 In this opinion, our references to the amount Travelers seeks to shift
to respondents as the “full” or “entire” cost of Pulte’s defense mean this
remaining amount of Travelers’s total expenditures.
5
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.]’ (Id. at pp. 1291–
1292.) ‘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.’ (Id. at p. 1292.)” (Interstate Fire &
Casualty Ins. Co. v. Cleveland Wrecking Co. (2019) 182 Cal.App.4th 23, 31–32
(Cleveland Wrecking).)
“ ‘ “As now applied [the doctrine of equitable subrogation] is broad
enough to include every instance in which one person, not acting as a mere
volunteer or intruder, pays a debt for which another is primarily liable, and
which in equity and good conscience should have been discharged by the
latter.” [Citations.]’ (Caito v. United California Bank (1978) 20 Cal.3d 694,
704.)” (Fireman’s Fund Ins. Co. v. Maryland Casualty Co., supra, 65
Cal.App.4th at p. 1292 (Fireman’s Fund).)
“ ‘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
6
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.’ (Fireman’s Fund[, supra,] 65
Cal.App.4th at p. 1292.)” (Cleveland Wrecking, supra, 182 Cal.App.4th at
pp. 33–34.)
We review the trial court’s decision for abuse of discretion. (Valley
Crest Landscape Development, Inc. v. Mission Pools of Escondido, Inc. (2015)
238 Cal.App.4th 468, 482 (Valley Crest); City of Barstow v. Mojave Water
Agency (2000) 23 Cal.4th 1224, 1256.) “ ‘ “The appropriate test for abuse of
discretion is whether the trial court exceeded the bounds of reason. When
two or more inferences can reasonably be deduced from the facts, the
reviewing court has no authority to substitute its decision for that of the trial
court.” [Citation.] [¶] “The abuse of discretion standard . . . measures
whether, given the established evidence, the act of the lower tribunal falls
within the permissible range of options set by the legal criteria.” ’ (Bank of
America, N.A. v. Superior Court (2013) 212 Cal.App.4th 1076, 1089.) The
scope of the trial court’s discretion is limited by law governing the subject of
the action taken. (Ibid.) An action that transgresses the bounds of the
applicable legal principles is outside the scope of the trial court’s discretion
and, therefore, is deemed an abuse of discretion. (Ibid.) [¶] In applying the
abuse of discretion standard, we determine whether the trial court’s factual
findings are supported by substantial evidence and independently review its
legal conclusions. (County of San Diego v. Gorham (2010) 186 Cal.App.4th
1215, 1230.)” (Valley Crest, at p. 482.)
7
II.
As will become apparent, it was critical to the trial court’s decision that
Travelers framed its case as an all-or-nothing claim against respondents
jointly and severally. In Travelers’s view, after initially agreeing that a claim
of equitable subrogration required joint and several liability and on this basis
granting its in limine motion excluding evidence relevant to respondents’
individual liability in the underlying lawsuit, the trial court changed its
position and found it inequitable to shift the entire cost of the developer’s
defense to respondents, and then refused to entertain Travelers’s request to
allocate damages proportionally among the subcontractors.
Travelers took the position at trial that because each subcontractor had
a contractual duty to defend Pulte against claims relating to its work
regardless of whether those claims were ultimately proven (Crawford v.
Weather Shield Mfg., Inc. (2008) 44 Cal.4th 541, 547, 568 (Crawford)), and
the homeowners’ lawsuit included claims related to each of the
subcontractors’ work, respondents could each be held jointly and severally
liable for Travelers’s costs in defending Pulte. As an insurer, Travelers
undisputedly had an obligation to defend the entire action if any of the claims
against Pulte were potentially covered, including claims that were not
potentially covered. (Presley Homes, Inc. v. American States Ins. Co. (2001)
90 Cal.App.4th 571, 574–575; Buss v. Superior Court (1997) 16 Cal.4th 35, 48
(Buss).) Travelers’s position at trial rested in part on the assumption that
respondents were each similarly obligated to defend the entire case against
Pulte despite their contracts with Pulte imposing a duty to indemnify and
defend only claims related to the individual subcontractor’s scope of work.
Respondents, in essence, maintained there was no common obligation
for which they could be held jointly and severally liable because each
8
subcontractor had a distinct duty limited to defense of claims related to its
particular scope of work, and disagreed that their defense obligations were as
broad as an insurer’s. In respondents’ view, Travelers precluded its own
recovery by advancing a cause of action and theory of the case that
improperly sought to impose joint and several liability rather than seeking to
recover from each respondent a portion of the defense costs proportional to
that subcontractor’s potential liability.
Travelers maintained throughout the trial—until closing argument—
that it was entitled to shift its loss “entirely” to respondents, jointly and
severally. In closing argument, while adhering to this position, Travelers
argued that if the trial court did not agree, Travelers was entitled to
allocation rather than no recovery at all from respondents, and asked the
court to reopen the evidence to address the issue if necessary. Respondents
objected to Travelers’s change of position at this point in the trial and,
ultimately, the trial court agreed it would be unfair to permit Travelers to
assert a claim for allocation of damages “after the issues have been fully
framed, the trial briefs have been filed, the evidence taken, and closing
arguments are all but complete.” The issue became the subject of Travelers’s
objections to the court’s tentative decision and motion for a new trial,
Travelers arguing that it was the court’s ruling on its motion in limine, not
Travelers’s framing of the case, that limited its presentation at trial to the
“all or nothing” joint and several liability theory.
On this appeal, Travelers first asks us to accept its all or nothing view
of the equitable subrogation doctrine and reverse the trial court’s decision,
finding Travelers entitled to equitable subrogation as a matter of law with
respondents jointly and severally liable. Alternatively, Travelers asks us to
remand for allocation of damages, arguing that the trial court deprived it of a
9
fair trial by initially excluding evidence related to allocation as irrelevant,
then denying Travelers relief due to the absence of that evidence.
Travelers’s position is untenable. The record leaves no question that
Travelers chose to frame this case as an all-or-nothing claim for equitable
subrogation. Prior to trial, Travelers dismissed the causes of action in which
it had sought to impose liability on each respondent for a proportional share
of the defense costs (causes of action for “declaratory relief—apportionment of
defense obligations,” “declaratory relief—apportionment of indemnity
obligations” and equitable indemnity), leaving only its claim for equitable
subrogation to be tried. Travelers’s in limine motion to exclude evidence or
argument on allocation of damages was based on the premise that such
evidence was irrelevant because respondents were jointly and severally liable
for the defense costs Travelers incurred. When the trial court asked
Travelers’s counsel whether it was correct in understanding that Travelers
was “not seeking apportionment of responsibility” and was taking the
position that “each of these defendants or cross-defendants is jointly and
severally liable for the entire defense obligation,” counsel replied in the
affirmative. The court then confirmed, “so basically your position is that it is
all or nothing? [¶] If I don’t find, for example, on equitable subrogation, that
justice requires—justice requires shifting the entire burden, then you simply
lose on your fifth cause of action, correct?” Counsel responded, “That’s
essentially right, Your Honor. [¶] Basically you’re determining the equitable
positions of the—of the Travelers entities versus the subcontractors. [¶] If
you find that we are in a superior equitable position, then all of it gets shifted
to them. [¶] If you find the equities are not superior or that our—or that ours
is inferior, then it doesn’t get shifted.”
10
Travelers argues in this court, as it did below, that its in limine motion
only sought guidance from the trial court, and it was not responsible for the
exclusion of evidence on allocation. But the court’s order was clearly a
response to Travelers’s limitation of its case to a claim of equitable
subrogration imposing joint and several liability on respondents. At the
conclusion of the hearing on in limine motions, the court stated, with regard
to the motion to exclude evidence of apportionment, “As I understand it, it’s
just all or nothing as I said before; so, in effect, that motion is granted. [¶] If
some of you find somewhere along the line that you think there’s some basis
for apportionment in the pleadings or in a pretrial order, it would be good to
let me know sooner rather than later, because otherwise I’m planning to do
an all or nothing trial on equitable subrogation.” (Italics added.)
Travelers emphasized the all-or-nothing nature of its claim in its trial
brief on the elements of equitable subrogation. For example, Travelers
argued, “[t]here is thus no discretion in a subrogation action to shift only a
portion of the debt or to allocate the debt among multiple parties in
proportion to their share of the debt. Rather, if the court determines that one
or more of the defendants had an obligation to defend Pulte and that
Travelers is in a superior equitable position to those parties, then the entire
debt should be shifted to those parties.”
Travelers argues that respondents violated the in limine ruling by
arguing allocation was required, and the trial court violated its own ruling by
considering allocation (or the absence thereof) in determining that Travelers
was not entitled to equitable subrogation. As Travelers sees it, the trial court
changed its mind and found allocation was relevant to the equitable
subrogation claim, as reflected in the court’s determination that Travelers
was not in a superior equitable position because it was attempting to recover
11
the entire amount of its defense costs from each respondent. In Travelers’s
view, the trial court improperly mixed the amount of damages with its
analysis of the equities rather than determining the equities and then
considering the proper amount of damages. Moreover, according to
Travelers, when Travelers realized respondents were raising allocation issues
in their closing briefs and arguments and sought to present the previously
excluded evidence, the trial court refused to let it do so, then based its
decision in part on the absence of such evidence.
The record does not support Travelers’s characterization. As we have
said, Travelers unquestionably framed its case as an all-or-nothing claim
against respondents, jointly and severally. Respondents argued there was no
basis to impose joint and several liability because there was no shared
obligation to support doing so (see Douglas v. Bergere (1949) 94 Cal.App.2d
267 [“[i]f two persons bind themselves severally in respect to the same subject
matter each obligor is liable only for his several promise and cannot be held
for the other”]; Civ. Code, § 16596 [“[w]here all the parties who unite in a
promise receive some benefit from the consideration, whether past or present,
their promise is presumed to be joint and several”]), as each subcontractor
had an obligation to defend Pulte only with respect to claims arising from its
own scope of work. Respondents’ arguments concerning allocation challenged
the premise of Travelers’s cause of action; their assertion of this defense did
not introduce the issue of allocation so as to justify Travelers’s attempt to
change its theory of the case after the close of evidence. Similarly, the trial
court’s consideration of the fact that Travelers was seeking to impose joint
and several liability upon each subcontractor for the full cost of Pulte’s
6Further statutory references will be to the Civil Code unless
otherwise specified.
12
defense as part of its analysis of the equities was necessitated by Travelers’s
framing of its claim. The trial court did not “change its mind” as to the
relevance of allocation evidence; it adhered to its conclusion that such
evidence was not relevant to Travelers’s claim of a joint and several
obligation, and found that claim inequitable.
Travelers makes the same argument regarding its in limine motion to
exclude evidence or argument concerning whether respondents’ work on the
homes was defective or caused damages. Travelers’s motion argued that
because the subcontractors agreed to defend Pulte against claims of
negligence or defective work, the truth of such claims was irrelevant.
Travelers claims respondents violated the order granting this motion by
arguing that they were not shown to have caused any of the homeowners’
injuries and could not be held liable for injuries caused by other
subcontractors’ work, and argues the trial court violated its own order by
basing its decision in part on the absence of proof as to which subcontractor
caused damage to which property.
The statement of decision discusses the fact that some of the equitable
subrogation cases consider fault, finding it inequitable to leave the costs of
litigation defense with an insurer who played no role in causing the
underlying loss rather than shifting the cost to the party who caused, or was
alleged to have caused, the injury. (E.g., Cleveland Wrecking, supra, 182
Cal.App.4th at pp. 39, 47; Patent Scaffolding Co. v. William Simpson
Construction Co. (1967) 256 Cal.App.2d 506, 512–516; but see Valley Crest,
supra, 238 Cal.App.4th at p. 491 [noting “[a]ge and subsequent appellate
court opinions have not been kind to Patent Scaffolding” regarding its
indication that equitable subrogation is not available if defendant’s
negligence was not cause of insured’s loss]; Fireman’s Fund Ins. Co. v.
13
Wilshire Film Ventures, Inc. (1997) 52 Cal.App.4th 553, 557 [criticizing
Patent Scaffolding Co.].) In noting that Travelers offered no proof as to which
subcontractor’s work was defective here, however, the trial court’s focus was
the principle that each subcontractor’s obligation to indemnify and defend
was limited to its own scope of work. The point was not that Travelers could
not prevail on its equitable subrogation claim because it failed to present
evidence of causation but that respondents could not be held jointly and
severally liable for the entire cost of Travelers’s defense of Pulte.
We find no violation of the court’s in limine orders and no denial of
Travelers’s right to a fair trial. Accordingly, we will review the trial court’s
decision to determine whether it abused its discretion in finding justice did
not require shifting Traveler’s entire loss to respondents, jointly and
severally. We express no opinion as to whether damages could have been
allocated proportionally among respondents if Travelers had asserted a cause
of action seeking such relief.7
7 Travelers argues that the trial court was not constrained to view joint
and several liability as the only form of relief available. Equitable
subrogation being a claim in equity, Travelers argued the trial court could
and should have sought a remedy to do justice between the parties, rather
than allowing respondents to evade their contractual duties to defend
without consequence. (Lickiss v. Financial Industry Regulatory Authority
(2012) 208 Cal.App.4th 1125, 1133 [“equitable remedies are flexible”];
Cassinos v. Union Oil Co. (1993) 14 Cal.App.4th 1770, 1786 [“no inflexible
rule has been permitted to circumscribe the power of equity to do justice”].)
We do not address how a claim for equitable subrogation could or should be
framed in a case such as this, in which an insurer seeks equitable
subrogation against multiple defendants with independent contractual
obligations to the insured. As we have said, Travelers presented its claim to
equitable subrogation as requiring a shifting of its entire loss to respondents,
jointly and severally. The trial court was not required to allow Travelers to
alter its theory of the case and claim for relief after the case had been tried in
accordance with Travelers’s framing of the issues.
14
III.
The trial court found Travelers failed to prove three of the elements of
its claim for equitable subrogation (Nos. 3, 7, and 8 in the description above)
in that it failed to establish the loss for which it compensated Pulte was one
for which any of the subcontractors was “primarily liable” (factor 3), justice
does not require shifting the loss entirely from Travelers to the
subcontractors, jointly and severally, as none is in an equitable position
inferior to Travelers (factor 7), and Travelers failed to prove its damages
because its proof included bills for work done for purposes other than defense
of Pulte.
In most of the decided equitable subrogation cases, an insurer paid a
claim on behalf of its insured for a single indivisible injury and then sought to
recover its costs from a single party who, in fairness, should be responsible
for them. For example, in Cleveland Wrecking, the employee of a stairway
subcontractor (Delta) sued the general contractor and a demolition
subcontractor whose negligence was alleged to have caused the employee’s
injury. Both subcontractors were contractually required to indemnify the
general contractor for liability arising from their work and to obtain liability
insurance with the general contractor as an additional insured, but only
Delta obtained the required insurance. Delta’s insurer funded a settlement
on behalf of the general contractor, then sought subrogation against
Cleveland, alleging Cleveland breached its contract by failing to defend and
indemnify the general contractor. The question for the court was whether it
was more equitable to leave the cost of the defense with the insurer who “had
nothing to do with causing the loss but abided by its contractual obligation to
pay for it” or shift that cost to the subcontractor who “caused the loss and
then shunned its contractual obligation to pay it.” (Cleveland Wrecking,
15
supra, 182 Cal.App.4th at p. 47.) The court concluded the insurer’s equitable
position was superior to Cleveland’s. (Ibid.)
The complication in the present case, of course, is that the homeowners
asserted a variety of claims relating to the work of many different
subcontractors, and Travelers asserted its right to equitable subrogation
against multiple subcontractors whose indemnification and defense
obligations to Pulte were specifically limited to claims arising from each one’s
individual scope of work.
A.
The trial court found Travelers failed to establish that the loss for
which Travelers compensated Pulte was one for which any of the
subcontractors was “primarily liable” for two reasons. First, under
Travelers’s theory of the case, each subcontractor had a duty to provide Pulte
with a complete defense, meaning each had the same obligation and no one of
the subcontractors’ was “primarily liable.” Second, since each subcontractor
was responsible for providing a defense to Pulte with respect to its individual
scope of work, the subcontractors did not each have the same obligation and
no one of them could be viewed as “primarily liable.”
Travelers argues the court’s reasoning is contrary to the decisions in
Cleveland Wrecking, supra, 182 Cal.App.4th 23, and Valley Crest, supra, 238
Cal.App.4th 468. Travelers describes Cleveland Wrecking as holding that
“where an additional insured carrier and a subcontractor involved in the
project have an overlapping contractual obligation to defend a developer, the
subcontractor’s liability is primary.” Travelers specifically notes the
Cleveland Wrecking court’s statement that “[a]n entity which, like [the
demolition subcontractor], agrees to indemnify the other party to the
underlying transaction has a liability of greater primacy than an independent
16
insurer that insures against loss.” (Cleveland Wrecking, at p. 44.) According
to Travelers, respondents, who directly contracted to assume Pulte’s defense,
had a “greater primacy of liability” than Travelers, an independent insurer.
Travelers’s portrayal of Cleveland Wrecking as establishing a rule
necessarily applicable in all equitable subrogation cases takes the court’s
holding too far, at least insofar as Travelers asserts the rule in a case
involving multiple subcontractors with potential liability for different
underlying injuries. Cleveland was concerned with a single underlying injury
for which a single subcontractor was allegedly responsible, and the
subcontractor had breached its contractual obligation to indemnity and
obtain liability insurance coverage for precisely the type of injury at issue
(negligence causing injury to another subcontractor’s employee). The insurer
claiming equitable subrogation had assumed an obligation to defend the
general contractor in the same circumstances, albeit only by virtue of its
general liability insurance policy covering the subcontractor whose employee
was injured. Here, by contrast, the underlying suit alleged many injuries and
each of the subcontractors—Travelers’s insureds, as well as respondents—
was potentially liable for only some of them, those arising out of the scope of
work of the particular subcontractor. Travelers’s contracts with its named
insureds limited its obligations to Pulte as an additional insured in the same
manner, to claims arising out of the named insureds’ work on the project.
Unlike the situation in Cleveland Wrecking, in which there was no question
Cleveland and the insurer had each assumed an obligation to indemnify and
defend the general contractor against the claim asserted by the plaintiff, here
the insurer seeks equitable subrogration against respondents whose
obligations to provide indemnity and a defense were each limited to specific
different types of claims.
17
Travelers, as an insurer, was obligated to defend the entire case if any
of the claims potentially involved the scope of work of its named insureds.
(Presley Homes, Inc. v. American States Ins. Co., supra, 90 Cal.App.4th at
pp. 574–575; Buss, supra, 16 Cal.4th at p. 48.) Travelers’s claim against
respondents is based on the assumption that a subcontractor contractually
obliged to provide a defense for claims within its scope of work has the same
obligation to provide a complete defense to the entire action. It cites no
authority in support of this assumption, however, and the cases discussing
the obligation involve, and therefore phrase the obligation in terms of,
insurers. An insurer’s duty to defend the entire action in which some claims
are potentially covered and others are not (a “mixed” action) derives from
policy, not contract. (Buss, at pp. 48–49.)8 Policy considerations applicable to
an insurer’s contract with its insured do not necessarily apply in the same
manner to the contractual obligations of a subcontractor indemnitor to a
general contractor indemnitee.9
8 “To defend meaningfully, the insurer must defend immediately.
(Montrose Chemical Corp. v. Superior Court [(1993)] 6 Cal.4th [287,] 295.) To
defend immediately, it must defend entirely. It cannot parse the claims,
dividing those that are at least potentially covered from those that are not.
To do so would be time consuming. It might also be futile: The ‘plasticity of
modern pleading’ (Gray v. Zurich Insurance Co. [(1966)] 65 Cal.2d [263,] 276)
allows the transformation of claims that are at least potentially covered into
claims that are not, and vice versa. The fact remains: As to the claims that
are at least potentially covered, the insurer gives, and the insured gets, just
what they bargained for, namely, the mounting and funding of a defense.
But as to the claims that are not, the insurer may give, and the insured may
get, more than they agreed, depending on whether defense of these claims
necessitates any additional costs.” (Buss, supra, 16 Cal.4th at p. 49.)
9As the court explained in Crawford, “[t]hough indemnity agreements
resemble liability insurance policies, rules for interpreting the two classes of
contracts do differ significantly. Ambiguities in a policy of insurance are
construed against the insurer, who generally drafted the policy, and who has
18
Moreover, section 2778, subdivision 4, specifies that, absent evidence of
a contrary intention, a contract of indemnity requires the indemnitor “to
defend actions or proceedings brought against [the indemnitee] in respect to
the matters embraced by the indemnity.” This provision “places in every
indemnity contract, unless the agreement provides otherwise, a duty to
assume the indemnitee’s defense, if tendered, against all claims ‘embraced by
the indemnity.’ ” (Crawford, supra, 44 Cal.4th at p. 557.) Respondents each
assumed a contractual obligation to defend Pulte only with respect to claims
involving their respective scope of work. Each respondent’s liability was thus
limited to a proportionate share based on its scope of work. (Id. at p. 565,
fn. 12; Pulte Home Corporation v. CBR Electric, Inc. (2020) 50 Cal.App.5th
216, 226 (CBR Electric).)10
received premiums to provide the agreed protection. (See, e.g., Buss, supra,16 Cal.4th 35, 47–48; La Jolla Beach & Tennis Club, Inc. v. Industrial
Indemnity Co. (1994) 9 Cal.4th 27, 37–38.) In noninsurance contexts,
however, it is the indemnitee who may often have the superior bargaining
power, and who may use this power unfairly to shift to another, a
disproportionate share of the financial consequences of its own legal fault.
(E.g., Goldman v. Ecco–Phoenix Elec. Corp. (1964) 62 Cal.2d 40, 49; see
Regan Roofing Co. v. Superior Court (1994) 24 Cal.App.4th 425, 436.)”
(Crawford, supra, 44 Cal.4th at p. 552.)
10 Crawford is not directly on point here, as it is not an equitable
subrogration case and did not involve multiple subcontractors potentially
liable for some of a number of different injuries, but it clearly supports
respondents’ position in this case: The Crawford footnote commented upon
the problem of “sorting out multiple, and potentially conflicting, duties to
assume the active defense of litigation then in progress” and indicated that a
non-defending subcontractor’s “proportionate liability for breach of [the] duty
to defend” can be determined after the underlying construction defect
litigation is concluded. (Crawford, supra, 44 Cal.4th at p. 565, fn. 12.) The
specific issue in Crawford was whether a particular subcontractor, ultimately
determined at trial not to have been negligent and therefore not to owe
indemnity, could be held liable for breach of a duty to defend the general
contractor against claims of defects arising from the subcontractor’s
19
Indeed, current California law expressly makes unenforceable
provisions in a construction contract purporting to impose upon
subcontractors the obligation to indemnify or defend a developer or general
contractor for claims of construction defects “to the extent the claims arise
out of, pertain to, or relate to the negligence of the builder or contractor or the
builder’s or contractor’s other . . . independent contractors . . . or to the extent
the claims do not arise out of, pertain to, or relate to the scope of work in the
written agreement between the parties.” (§ 2782, subd. (d).) While the
subcontractors’ contracts with Pulte in the present case predated the
enactment of this explicit statutory limitation of subcontractors’ liability to
the scope of their work, then-existing section 2782, subdivision (a), like the
present statute, made unenforceable provisions in construction contracts
purporting to indemnify the promisee against liability for damage “arising
from the sole negligence or willful misconduct of the promisee or the
promisee’s agents, servants or independent contractors who are directly
responsible to the promisee.” (§ 2782, subd. (a).) This provision, together
with section 2778 and Crawford, reflects the same policies underlying the
subsequent explicit enactments. Holding respondents jointly and severally
liable for the cost of Travelers’s defense of Pulte would be completely
inconsistent with the policy behind section 2782.
Travelers challenges the trial court’s reasoning that even if a given
respondent was obliged to provide Pulte the complete defense Travelers in
fact provided, it could not be said that Travelers compensated Pulte for a loss
for which the respondent was “primarily” liable. Travelers argues this
reasoning is contrary to law because “more than one party can be primarily
negligence. Crawford held it could, to the extent of its proportionate liability.
(Ibid.)
20
liable for a loss.” But the cases Travelers cites concern situations in which
multiple defendants are each held equally liable for a loss. (Kesmodel v.
Rand (2004) 119 Cal.App.4th 1128, 1145 [co-conspirators each equally liable
for damages caused by conspiracy]; Bostick v. Flex Equipment Co. (2007) 147
Cal.App.4th 80, 89 [under strict products liability, defendants in chain of
distribution is joint and several].) The whole purpose of equitable
subrogation is to shift loss from one party to another who, comparatively
speaking, should have borne the cost. The trial court’s point was that if all
the parties had an equal obligation to provide Pulte’s defense, none were
“primarily liable” as compared to the others.
B.
The above analysis also bears on the seventh element of equitable
subrogation—“justice requires that the loss be entirely shifted from the
insurer to the defendant, whose equitable position is inferior to that of the
insurer.” (Cleveland Wrecking, supra, 182 Cal.App.4th at pp. 33–34.) This is
the factor the trial court found determinative.
“ ‘ “[T]here is no facile formula for determining superiority of equities,
for there is no formula by which to determine the existence or nonexistence of
an equity except to the extent that certain familiar fact combinations have
been repeatedly adjudged to create an equity in the surety or the third
party. . . .” ’ ” (Valley Crest, supra, 238 Cal.App.4th at p. 484, quoting State
Farm General Ins. Co. v. Wells Fargo Bank, N.A. (2006) 143 Cal.App.4th
1098, 1112.) The cases discuss a number of potentially relevant factors, with
emphasis on one or another depending on the circumstances.
Cleveland Wrecking, supra, 182 Cal.App.4th at page 44, found the
insurer’s equitable position superior to the subcontractor’s due to the
subcontractor’s alleged fault for the underlying injury and breach of its
21
contractual obligations to the general contractor to indemnify and defend
such claims and to obtain insurance covering the general contractor. The
insurer was not at fault and complied with its obligation to defend even
though that obligation arose from a more general promise based in its
insurance policy for a different subcontractor. Public policy militated in favor
of imposing the costs on the party who caused the loss and breached its
contractual obligation to pay rather than the party who had nothing to do
with the loss but complied with its contractual obligation.
In Valley Crest, supra, 238 Cal.App.4th at pages 487–489, although the
subcontractor’s work was determined not to have been the cause of the
plaintiff’s injury, the insurer was found to be in a superior equitable position
because the subcontractor had failed to comply with its contractual
obligations to indemnify the general contractor and maintain liability
insurance with the general contractor as a named insured. The court focused
upon the facts that the subcontractor had agreed to indemnify the general
contractor for the specific type of loss that occurred while the defense was
provided by the general contractor’s own insurer under a general liability
insurance policy, and the subcontractor ignored its contractual duties to
defend (as it was required to do at least until the point it was granted
summary judgment in the underlying suit) and to maintain insurance
coverage for the general contractor, while the insurer fulfilled its contractual
obligations.
Travelers argues that it is in a superior equitable position to
respondents because, as in Cleveland Wrecking and Valley Crest, it was not
involved in the underlying transaction and respondents each agreed to
indemnify and defend Pulte for the specific type of claims asserted in the
homeowners’ suit. The situation is not as clear as it was in either Cleveland
22
Wrecking or Valley Crest. As we have discussed, respondents each agreed to
provide Pulte indemnity and defense of claims related to their particular
scope of work, and the lawsuit involved claims involving many
subcontractors’ spheres. Unlike the insurer in Valley Crest, the duties of
which arose from its own general liability contract with the general
contractor, Travelers’s insurance coverage of Pulte was limited to claims
arising from its named insureds’ scope of work; its duty to defend against
other claims arose from its role as an insurance company, not from contract.
Travelers’s contractual promises to Pulte as an additional insured were thus
more closely related to the specific construction project than were the
promises of the general contractor’s insurer in Valley Crest. Travelers’s own
contractual obligations were also more closely related to the underlying
transaction than were the insurer’s in Cleveland Wrecking. In that case, the
fact that Cleveland not only failed to comply with its indemnity and defense
obligations but was allegedly responsible for the injury, played a significant
role in the court’s analysis of the equities. Here, Travelers’s own named
insureds, as well as respondents, were alleged to be at fault in the underlying
suit.
Significantly, Travelers is seeking to shift to respondents costs for
defending Pulte against claims unrelated to the scope of respondents’ work—
claims for which respondents did not promise to indemnify and defend Pulte.
Respondents’ failure to comply with their contractual obligations to
indemnify and defend Pulte for claims arising from their own work could not
make them liable for losses due to the work of other independent
subcontractors. (§ 2782.) Equitable subrogation allows a loss to be shifted
from one who was legally liable to another who is more responsible for the
23
same loss.11 Here, Travelers is trying to shift the loss jointly and severally to
respondents who were each liable for only a portion of the total loss. (See
Maryland Casualty Co. v. Nationwide Mutual Ins. Co. (2000) 81 Cal.App.4th
1082 [equitable subrogation not available to insurer of general contractor
seeking to shift cost of defense to subcontractor’s insurer, which refused
defense; insurer entitled only to contribution, not entire cost of defense].)12
11 In its analysis of whether the parties had agreed to indemnify Pulte
for the same loss, the trial court discussed a distinction between the
additional insured endorsements to respondents’ insurance policies, which
were limited to “ongoing operations” and were the basis of respondents’
insurers denial of a defense, and Travelers’s extension of coverage for
“completed operations.” The trial court noted Travelers’s argument at trial
that the “ongoing operations” endorsements did not preclude the claims in
this case, but stated that Travelers’s interpretation was based on cases
decided years after the insurers made their coverage decisions. Travelers
devotes a significant portion of its brief to challenging the trial court’s refusal
to apply the more recent precedent. The question is not directly relevant, as
Travelers challenges respondents’ denial of a defense, not their insurers’
denial. Travelers makes an issue of the trial court’s comments, however,
because the trial court stated that due to its broader extension of coverage,
Travelers did not “deserve extra credit for ‘stepping up’ to provide a defense,
compared to carriers who were evaluating their position under what they
claimed to be a pure ‘ongoing operations’ [additional insured] endorsement.”
Travelers believes it is entitled to this credit.
We do not find it necessary to address the merits of the trial court’s
conclusion. The trial court’s point about the “ongoing operations” language
was expressly addressed to Travelers’s position vis-à-vis the other insurers,
which is not relevant to the issues on this appeal. As to respondents directly,
the trial court noted Travelers’s statement that its indemnification obligation
to Pulte as an additional insured was limited to damages resulting from the
work of its named insureds, and commented that if this was true, “the
obligations of the remaining subcontractor defendants are equally limited.”
12 Addressing the point that an insurer seeking equitable subrogation
stands in the shoes of the insured, Travelers argues it is not clear that Pulte
could not recover the entire cost of its defense from each subcontractor. It
points to Valley Crest, in which the general contractor’s insurer prevailed on
24
As recently explained in CBR Electric, which like the present case involved
an equitable subrogation claim by the insurer that defended Pulte as an
additional insured under a subcontractor’s policy, “subrogation entirely shifts
the claimed loss, but the claimed loss does not have to be the entire loss the
subrogee suffered.” (CBR Electric, supra, 50 Cal.App.5th at p. 231.) Since
“the amount of defense costs an insurer may seek depends on what the
subrogor (here, Pulte) would be entitled to, . . . [i]f Pulte could not recover the
entire costs of defense from defendants, neither can [the insurer].” (Ibid.)
Pursuant to the subcontracts, “Pulte’s recovery against defendants is defined
by the duty to defend in the subcontracts. That duty renders defendants
responsible not for the entire cost of defending the construction defect
actions, but only for the costs of defending claims related to their work.”
(Ibid.)
Travelers argues that the present case is “almost identical” to
Fireman’s Fund Ins. Co. v. Wilshire Film Ventures, Inc., supra, 52
Cal.App.4th 553. There, the defendant leased camera equipment under a
contract requiring it to return the equipment by a specified date or pay its
full value. The equipment was stolen through no fault of the defendant and
the defendant refused to pay for it; the lessor’s insurer paid its claim and
then sought equitable subrogation against the defendant. Fireman’s Fund
its claim of equitable subrogation against the subcontractor for the full cost of
the general contractor’s defense. The trial court ruled the subcontractor, by
failing to accept the general contractor’s tender of defense, forfeited its right
to seek allocation of the attorney fees and settlement costs between claims
related to the subcontractor’s work and unrelated claims. (Valley Crest,
supra, 238 Cal.App.4th. at p. 477.) This aspect of the trial court’s decision,
although noted in the description of the procedural history of the case, was
not an issue on the appeal and not further mentioned in the appellate court
opinion. Moreover, Valley Crest did not involve multiple injuries potentially
attributable to the work of multiple subcontractors.
25
Ins. Co. held the insurer’s equitable position was superior because the
defendant breached a specific promise to return or pay for the equipment
while the insurer performed its more general promise to provide the lessor
with insurance coverage. In Travelers’s view, the situation is the same here
because respondents specifically promised to defend Pulte against loss
arising from their work on the project but refused to do so, while Travelers
provided the defense despite not even having a direct contract of insurance
with Pulte. But, unlike the insurer’s promise of general insurance coverage
to its insured in Fireman’s Fund Ins. Co. (and as discussed with respect to
Valley Crest), Travelers’s obligation to Pulte was tied to the project and
underlying injury by its limitation to claims arising from the named insureds’
work on the project. While the loss for which the insurer of the lessor in
Fireman’s Fund Ins. Co, or the general contractor in Valley Crest, sought
equitable subrogation was one that happened to fall within the general
insurance coverage the insurer provided to its insured, Travelers was obliged
to provide a defense to Pulte only in the specific situation that occurred—a
suit involving claims against its named insureds for work performed for
Pulte.
Travelers suggests the trial court was confused in believing its
agreement to defend Pulte was equivalent to respondents’ for purposes of this
analysis. It theorizes that the court may have conflated the concepts of an
obligation to defend with that of a promise to do so, which it argues was
specific to Pulte and the project for respondents but only general for
Travelers (to defend any action against anyone its insureds were required to
add as additional insureds). Or, Travelers suggests, the trial court may have
mistakenly believed Travelers’s polices and endorsements were specific to
Pulte and the project when in fact they were blanket additional insured
26
endorsements. The latter is unlikely, as the trial court’s statement of
decision specifically refers to Travelers’s “Blanket Additional Insured
Endorsements.” As to the former, the promises were not quite as different as
Travelers maintains, since Travelers’s promise to defend an additional
insured its subcontractor insured was required to add to the policy against
claims arising from the subcontractor’s work would necessarily contemplate
the risk of a claim against the general contractor for whom the insured
performed work.
In any event, this point is not critical. Contrary to Travelers’s
characterization, neither this district nor any court we are aware of has held
that the equities of an insurer are superior as a matter of law when the
insurer’s promise is more general than that of a party to the underlying
transaction.13 Equitable subrogation being, by definition, an equitable
doctrine, every case will turn on its facts. Here, the salient point is that
respondents did not promise to defend Pulte against claims that did not arise
from their own scope of work and Travelers’s claim for equitable subrogation
sought to impose on respondents the costs of defending just such claims.
13 In analyzing the primacy of liability, CBR Electric applied the
reasoning of Cleveland Wrecking and Valley Crest to hold that because the
insurer who provided the defense to Pulte as an additional insured on a
subcontractor’s general liability policy was “a general liability insurer
uninvolved in the underlying residential developments” and the
subcontractors from which it sought equitable subrogation were “directly
involved in the developments and entered agreements obligating them to
defend Pulte in any lawsuits related to their work,” the subcontractors were
“primarily liable for the claimed loss—that is, their equitable share of the
defense costs.” (CBR Electric, supra, 50 Cal.App.5th at p. 233.) We agree
with this reasoning. The situation is different in the present case because—
as a result of Travelers’s framing of the case at trial—the issue is primacy of
liability for the entire cost of the defense.
27
Travelers argues that ruling against it would violate public policy by
giving subcontractors an incentive to breach their contracts and leave it to
others to assume the costs of defense. As the Cleveland Wrecking and Valley
Crest courts commented, it is better “to permit subrogation for an insurer
that fulfilled its contractual obligations, even if the result was a windfall for
the insurer,” than to “reward parties who refuse to fulfill their alleged
indemnification obligations.” (Valley Crest, supra, 238 Cal.App.4th at p. 491;
Cleveland Wrecking, supra, 182 Cal.App.4th at p. 47.) We fully agree that
subcontractors should not be able to reject their contractual obligations to
indemnify and defend without consequence. It does not follow, however, that
respondents can be held jointly and severally liable for the entire remaining
cost of Pulte’s defense. Each subcontractor remains liable for its
proportionate share of the defense costs—but not for more than that
proportionate share. 14
14 Amendments to section 2782 subsequent to the contracts in the
present case further elaborate this point, providing that if a subcontractor
fails to timely and adequately perform its obligations to either defend a claim
against the builder or general contractor arising from the subcontractor’s
work or pay “no more than a reasonable allocated share of the builder’s or
general contractor’s defense fees and costs,” the builder or general contractor
has a right to pursue a claim for compensatory and consequential damages,
but such defense fees must be allocated to the subcontractor consistent with
the requirement that the subcontractor’s liability is limited to claims arising
from the scope of its work. (§ 2782, subds. (d), (e), (f).)
Subdivision (d) of section 2782 prohibits construction contracts
purporting to require a subcontractor to indemnify or defend a builder or
general contractor “to the extent the claims do not arise out of, pertain to, or
relate to the scope of work in the written agreement between the parties.”
Section 2782, subdivision (e) of the statute permits a subcontractor to
satisfy its defense obligation by either defending “the claim with counsel of its
choice” (id., subd. (e)(1)) or paying “within 30 days of receipt of an invoice
from the builder or general contractor, no more than a reasonable allocated
28
As we have said, “ ‘[t]he subrogated insurer is said to “ ‘stand in
the shoes’ ” of its insured, because it has no greater rights than the insured.’ ”
(Cleveland Wrecking, supra, 182 Cal.App.4th at p. 32, quoting Fireman’s
Fund, supra, 65 Cal.App.4th at p. 1292.) Here, Pulte was entitled to
indemnity and a defense from each of the respondents only with respect to its
own scope of work. To quote the trial court, Travelers “is not seeking to stand
in Pulte’s shoes. It is seeking to stand in a different, more advantageous set
of shoes.”15
share of the builder’s or general contractor’s defense fees and costs, on an
ongoing basis during the pendency of the claim, subject to reallocation
consistent with subdivision (d), and including any amounts reallocated upon
final resolution of the claim, either by settlement or judgment. The builder or
general contractor shall allocate a share to itself to the extent a claim or
claims are alleged to be caused by its work, actions, or omissions, and a share
to each subcontractor to the extent a claim or claims are alleged to be caused
by the subcontractor’s work, actions, or omissions, regardless of whether the
builder or general contractor actually tenders the claim to any particular
subcontractor, and regardless of whether that subcontractor is participating
in the defense. Any amounts not collected from any particular subcontractor
may not be collected from any other subcontractor.” (Id., subd. (e)(2).)
Section 2782, subdivision (f) of the statute gives the builder or general
contractor a right to pursue a claim against a subcontractor that fails to
“timely and adequately perform its obligations” under subdivision (e). The
subdivision specifies, “If, upon request by a subcontractor, a builder or
general contractor does not reallocate defense fees to subcontractors within
30 days following final resolution of the claim as described above, the
subcontractor shall have the right to pursue a claim against the builder or
general contractor for any resulting compensatory and consequential
damages, as well as for interest on the fees, from the date of final resolution
of the claim, at the rate set forth in subdivision (g) of Section 3260, and the
subcontractor’s reasonable attorney’s fees incurred in connection therewith.
The subcontractor shall bear the burden of proof to establish both the failure
to reallocate the fees and any resulting damages.”
15 Although the insurer prevailed in CBR Electric on similar underlying
facts, our reasoning and the result we reach are consistent with that case.
29
In the particular circumstances of this case, we find no abuse of
discretion in the trial court’s determination that justice does not require
shifting the entire remaining cost of Pulte’s defense to respondents, jointly
and severally.16 To the contrary, the trial court’s lengthy statement of
decision reflects thoughtful consideration.
DISPOSITION
The judgment is affirmed.
Costs to respondents.
The difference, as we have indicated, is a result of Travelers’s trial strategy
in the present case. While the trial court in CBR Electric erroneously
concluded that the insurer’s equitable subrogation claim required it to shift
the entire cost of defense to the subcontractors, jointly and severally, the trial
court here only adhered to Travelers’s insistence that it was pursuing an all-
or-nothing claim against respondents. Just as the CBR Electric court agreed
“it would be unfair to burden only a small subset of the subcontractors that
worked on a project with the entire cost of defending a construction defect
action alleging defects in every trade” if equitable subrogation required
shifting the entire amount of defense costs to the subcontractors jointly and
severally (CBR Electric, supra, 50 Cal.App.5th at p. 224), our analysis would
be different if Travelers had not sought to hold respondents each responsible
for the full cost of Pulte’s defense.
16This conclusion makes it unnecessary for us to consider Travelers’s
further contention that the trial court abused its discretion in finding
Travelers’s failed to establish the eighth element of its equitable subrogation
claim concerning proof of the amount of its damages.
30
_________________________
Kline, P.J.
We concur:
_________________________
Richman, J.
_________________________
Miller, J.
Carter et al. v. Pulte Home Corporation et al. (A154757)
31
Trial Judge: Hon. Barry P. Goode
Trial Court: Contra Costa County Superior Court
No Appearance for Plaintiffs
No Appearance for Defendants
Attorneys for Interveners
and Appellants: The Aguilera Law Group
A. Eric Aguilera
Raymond E. Brown
Lindsee B. Falcone
Attorneys for Interveners
and Respondents: Nicolaides Fink Thorpe Michaelides Sullivan
Jodi S. Green
Jeffrey N. Labovitch
Kimberly A. Hartman, Pro Hac Vice
Oles Morrison Rinker & Baker
Kevin P. McCarthy
Bryce D. Carroll
Rebecca D. Takacs
32