Filed 8/27/14 Watson Cogeneration v. So. Cal. Edison CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


WATSON COGENERATION                                                  B251746
COMPANY,
                                                                     (Los Angeles County
                   Plaintiff and Appellant,                          Super. Ct. No. BC473092)

         v.

SOUTHERN CALIFORNIA EDISON
COMPANY,

                 Defendant and Respondent.




         APPEAL from a judgment of the Superior Court of Los Angeles County.
Gregory W. Alarcon, Judge. Affirmed.
         Rovens Lamb and Steven A. Lamb for Plaintiff and Appellant
         Carlsmith Ball, James Polish; Southern California Edison Company, Leon
Bass, Jr., and Michael J. Barrett for Defendant and Respondent.


                                __________________________________
       This is an action for breach of contract and unjust enrichment by an energy
producer, Watson Cogeneration Company (Watson), against an energy buyer, Southern
California Edison Company (SCE). The parties do not dispute that SCE agreed to
purchase energy from Watson at a specified price for a 20-year period. They disagree
whether that 20-year period terminated on December 31, 2007, as SCE contends, or on
April 5, 2008, as Watson contends. The trial court agreed with SCE’s interpretation of
the agreement and entered judgment in its favor on both causes of action. We affirm.
                        FACTS AND PROCEEDINGS BELOW
       The following facts are undisputed.
       Watson owns a cogeneration facility that produces energy for refining petroleum
and running electricity-generating turbines.
       In 1984, Watson entered into a contract to sell the excess energy it produced to
SCE at the agreed-on price for a period of 20 years. (The parties refer to this agreement
as the Power Purchase Contract or PPC.) The PPC provided in section 1.8 that it
“shall continue in effect for a period of 20 years beginning on the Firm Operation Date.”
The “Firm Operation Date” was defined in section 2.15 of the contract as: “The date
agreed on by the Parties on which each generating unit(s) of the Generating Facility
is determined to be a reliable source of generation and on which such unit can be
reasonably expected to operate continuously at its effective rating (expressed in kW).”
The PPC further provided in section 1.7 that the “Firm Operation Date for the Generating
Facility will be on or before December 31, 1988.”
       In 1986, SCE sent Watson some proposed modifications of the PPC including a
modification of the definition of “Firm Operation Date” in section 2.15. (We show
the proposed language in italics and the existing language in bracketed strikeout-type.)
“Firm Operation Date: The date agreed on by the Parties on which [each generating
unit(s)] all the generating units of the Generating Facility [is] are determined to be [a]
reliable [source] sources of generation and on which such [unit] units can be reasonably



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expected to operate continuously at [its] their effective [rating] ratings (expressed in
kW).” (Italics and strikeouts added.)
       In 1988 the parties amended the PPC sections pertaining to its commencement
date. They did not adopt the changes SCE proposed in 1986, discussed above. Instead,
they amended section 2.15 to state in relevant part: “The Firm Operation Date for the
Generating Facility shall be the Firm Operation Date for the last individual Generator to
achieve firm operation. The Firm Operation Date for individual Generators shall be the
date agreed on by the Parties on which each Generator of the Generating Facility is
determined to be a reliable source of generation and on which such Generator can be
reasonably expected to operate continuously at its effective rating (expressed in kW).”
The parties also amended section 1.8 to read: “This contract . . . shall continue in effect
for a period of twenty years (20) beginning on the earliest Firm Operation Date.”
(Italics added.) We will refer to these changes in the PPC as the 1988 Amendments.
       Watson’s facility consists of six power generating units. The parties agree that the
first generator achieved firm operation on January 1, 1988 and that the last generator
achieved firm operation on April 6, 1988.
       The parties dispute whether the 20-year term of the contract began on the date the
first generator attained firm operation or on the date that all the generators had obtained
that status. SCE contends that the PPC expired on December 31, 2007, 20 years after the
first generator achieved firm operation, i.e. the “earliest” Firm Operation Date.
       Watson sued SCE for breach of contract, unjust enrichment and declaratory relief
claiming that the PPC did not expire until April 5, 2008, 20 years after the last generator
attained firm operation, and therefore SCE owed it over $10 million under the contract.1
       After considering extrinsic evidence as to the PPC’s commencement date, the trial
court sustained SCE’s demurrer to the breach of contract cause of action without leave to
amend, overruled SCE’s demurrer to the unjust enrichment cause of action and

1
      After December 31, 2007, SCE continued to purchase energy from Watson but at
a lower rate.
                                              3
subsequently granted SCE’s motion for summary judgment on the claim of unjust
enrichment.2 Watson filed a timely appeal.
                                          DISCUSSION
       I.     THE 1988 AMENDMENTS UNAMBIGUOUSLY PROVIDE
              THAT THE CONTRACT’S 20 YEAR PERIOD
              COMMENCES ON THE DATE THE FIRST GENERATOR
              ATTAINS FIRM OPERATION.
       We review de novo the trial court’s ruling sustaining the demurrer. (Blank v.
Kirwan (1985) 39 Cal.3d 311, 318.)
       Watson contends that the trial court erred in sustaining the demurrer to its breach
of contract cause of action because the PPC is ambiguous as to the commencement date
and the extrinsic evidence alleged in the complaint and submitted with Watson’s request
for judicial notice shows that the PPC could reasonably be interpreted to mean that the
commencement date was April 6, 1988, the date by which all of Watson’s generators had
attained firm operation. We hold as a matter of law that the contract is not reasonably
susceptible to Watson’s interpretation.
       The party “moving for a demurrer based on [contract] language must establish
conclusively that this language unambiguously negates beyond reasonable controversy
the construction alleged in the body of the complaint. [Citation.] To meet this burden,
[the defendant] is required to demonstrate that the [contract] language supporting its
position is so clear that parol evidence would be inadmissible to refute it. [Citation.]
Absent this showing, the court must overrule the demurrer and permit the parties to
litigate the issue in a context that permits the development and presentation of a
factual record, e.g., summary judgment or trial.” (Palacin v. Allstate Ins. Co. (2004)
119 Cal.App.4th 855, 862.) When ruling on a demurrer the court must conditionally
consider any parol evidence alleged in the complaint or subject to judicial notice to
determine if it would be relevant to prove a meaning to which the contract is reasonably


2
     The court also sustained SCE’s demurrer to the declaratory relief cause of action.
Watson does not challenge that ruling.
                                        4
susceptible. (George v. Automobile Club of Southern California (2011) 201 Cal.App.4th
1112, 1122 [evidence alleged in complaint]; Ascherman v. General Reinsurance Corp.
(1986) 183 Cal.App.3d 307, 310-311 [evidence judicially noticed].)
       In ruling on the demurrer in this case, the court took judicial notice of the 1988
Amendments and documents filed by SCE with the Public Utilities Commission, along
with the parol evidence that Watson alleged in its complaint.
       The 1988 amendments established a Firm Operation Date for the generating
facility itself and separate Firm Operation Dates for the individual generators. The
amended PPC defined the Firm Operation Date for the facility as the date “the last
individual Generator . . . achieve[s] firm operation.” Each individual generator,
however, had its own firm operation date defined as “the date agreed on by the Parties
on which each Generator of the Generating Facility is determined to be a reliable source
of generation . . . .”
       Amending section 2.15 of the PPC to create seven Firm Operating Dates—one
for the facility and six for the individual generators—instead of retaining a single Firm
Operating Date would indeed have created an ambiguity because section 1.8 of the
contract stated that the 20-year term “shall continue in effect for a period of 20 years
beginning on the Firm Operation Date.” (Italics added.) That made sense when there
was only one Firm Operating Date but not when there were seven. To avoid that
ambiguity, the parties amended section 1.8 of the PPC to state that it “shall continue in
effect for a period of twenty years (20) beginning on the earliest Firm Operation Date.”
(Italics added.) The earliest Firm Operation Date occurred on January 1, 1988 when
Gas Turbine Generator Unit Number 4 attained firm operation. Accordingly, the PPC
was effective from January 1, 1988 to December 31, 2007 and SCE did not breach the
contract.
       Watson spends considerable energy arguing that the term “earliest” Firm
Operation Date is ambiguous and does not necessarily mean the first Firm Operation
Date. In the context of the PPC, it does. As the trial court explained, for the term

                                              5
“earliest Firm Operation Date” to have meaning, there has to be more than one such date.
(Italics added.) It is undisputed that the first Firm Operation Date occurred on January 1,
1988, when Gas Turbine Generator Unit Number 4 attained firm operation. Therefore,
January 1, 1988 was the “earliest” Firm Operation Date. It is also undisputed that the last
generator achieved firm operation on April 6, 1988. The “earliest” date simply cannot
mean the “last” date anymore than in Boston “the Bunker Hill Monument” can mean “the
Old South Church.” (Goode v. Riley (1891) 28 N.E. 228.)
       II.    WATSON CANNOT ESTABLISH ITS CLAIM THAT
              THE CONTRACT WAS MODIFIED TO TERMINATE
              IN APRIL 2008

              A.     Background

       We review the trial court’s summary judgment ruling de novo to determine
whether the moving party met its burden of showing that there is no triable issue of any
material fact and that it is entitled to judgment as a matter of law. (Lyle v. Warner
Brothers Television Productions (2006) 38 Cal.4th 264, 274.)
       The trial court initially sustained SCE’s demurrer to Watson’s cause of action for
unjust enrichment with leave to amend. Watson filed an amended complaint which,
liberally construed, purports to allege a cause of action for unjust enrichment based on
two theories: (1) that between January 1 and April 6, 2008, SCE continued to bill its
customers according to the PPC rate while it unjustly paid Watson a lower rate and
pocketed the difference; and (2) that SCE unjustly denied Watson payment at the PPC
rate because SCE’s statements over the years had modified the contract to extend beyond
December 2007.
       The court overruled SCE’s demurrer to the amended complaint for unjust
enrichment. As to Watson’s second theory of recovery, the court ruled that “Watson is
also basing its unjust enrichment claim on the fraudulent or unfair representations
by SCE that the contract did not expire until April 6, 2008.” In other words, the court
stated, “it can be reasonably construed that Watson is alleging that ‘it would be

                                             6
inequitable to deny Watson the benefit of SCE’s apparent modification of the’. . .
contract so that the Contract [T]erm ended on April 6, 2008.”
       Subsequently, the court granted SCE’s motion for summary judgment on
Watson’s unjust enrichment cause of action.
       The court found that SCE was entitled to summary judgment on Watson’s first
theory of unjust enrichment—that SCE “short changed” Watson and Watson does not
challenge this ruling.
       B.     Watson’s Evidence Does Not Support Its “Equitable Modification”
              Theory.
       The court did not address Watson’s second—“equitable modification”—theory of
unjust enrichment. Watson contends the court erred in not doing so because the theory
was briefed by the parties and the court had earlier concluded that Watson was basing its
unjust enrichment claim, in part, on the theory “that ‘it would be inequitable to deny
Watson the benefit of SCE’s apparent modification of the’ contract.” The parties have
briefed the issue on appeal and therefore we proceed to address it. (See Code Civ. Proc.,
§ 437c, subd. (m)(2).)
       Watson argues that even if the 1988 Amendments meant that the term of the PPC
began when the first generator achieved firm operation on January 1, 1988 and ended
20 years later, on December 31, 2007, SCE subsequently extended the termination date to
April 5, 2008.
       Watson supports its argument with evidence of documents SCE submitted to the
Public Utility Commission in May 1998. In one of these documents SCE described
the term of its contract with Watson as “20 years from the Firm Operation Date, April 6,
1988.” In the other document, an SCE official stated that “[t]he Watson contract term
extends until April 6, 2008.”
       SCE counters with undisputed evidence that in 2001, in a different lawsuit
between the parties, Watson’s executive director testified that the 1998 Amendments
“set a 20-year Contract Term commencing on the date of the earliest Firm Operation
Date. That date was January 1, 1988.” Another Watson executive testified in the same
                                         7
action that the “starting date under the contract was January 1, 1988, and the Contract
[T]erm was set for 20 years.”
       The conclusion we draw from this evidence is that at various times executives of
both parties were confused about the commencement date of the PPC but there was no
modification of the contract under any recognized legal or equitable theory.
                                     DISPOSITION
       The judgment is affirmed. Respondent is awarded its costs on appeal.
       NOT TO BE PUBLISHED.




                                                        ROTHSCHILD, P. J.
We concur:



                     CHANEY, J.



                     WILEY, J.





        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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