Filed 2/26/14 Beraze v. Wilshire Landmark CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


ISAK BERAZE, et al.,                                                 B243782

         Cross-complainants and Appellants,                          (Los Angeles County
                                                                     Super. Ct. No. BC365315)
         v.

WILSHIRE LANDMARK, LLC, et al.,

         Cross-defendants and Respondents.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Jane L.
Johnson, Judge. Reversed and remanded.
         Meylan Davitt Jain & Arevian, Vincent J. Davitt and Anita Jain; Anderson
McPharlin & Connors, Michael S. Robinson and D. Damon Willens, for Cross-
complainant and Appellant.
         Orbach, Huff & Suarez, David M. Huff, Enrique M. Vassallo and Niv V.
Davidovich, for Cross-defendants and Respondents.


                                          _______________________
       Webcor Construction executed a contract with Wilshire Landmark to construct a
condominium tower. Before the project was complete, Wilshire presold each of the
condominium units to individual buyers. Wilshire used the buyers’ purchase funds to pay
off its construction loans and distributed the remaining funds to its member entities.
After the project was complete, Webcor recorded a $17.5 million mechanics lien against
the condominium tower for unpaid labor and materials. In 2007, Webcor filed a
complaint asserting claims for breach of contract against Wilshire and foreclosure of its
mechanics lien against Wilshire and the individual condominium unit owners. The unit
owners filed a cross-complaint seeking indemnification from Wilshire and its “alter ego”
member entities for any losses resulting from Webcor’s mechanics lien claim. The cross-
complaint alleged that although Wilshire was aware it owed Webcor a substantial sum for
construction costs incurred on the project, it chose to distribute the remaining purchase
funds to its alter ego member entities as profits. The cross-complaint further alleged that,
as a result of this conduct, Wilshire had harmed the unit owners by exposing them to
potential liability on Webcor’s mechanics lien claim.
       Wilshire filed a motion for summary judgment or, in the alternative, summary
adjudication, on the cross-complaint arguing that the unit owners could not prevail on any
of their claims because: (1) there was no evidence any unit owner had suffered harm as a
result of Webcor’s pending mechanics lien claim; and (2) any future loss the unit owners
might suffer as a result of the mechanics lien claim would be covered by title insurance.
The trial court granted the motion and entered judgment in favor of Wilshire.
       On appeal, the unit owners argue the trial court erred in granting summary
adjudication on three of its claims: (1) violation of California’s unfair competition law
(Business and Professions Code, § 17200 (the UCL)); (2) breach of the implied covenant
against encumbrances (Civil Code, § 1113); and (3) equitable indemnity. We affirm in
part and reverse in part, concluding that Wilshire failed to satisfy its initial burden to
show the nonexistence of any triable issue of material fact regarding the unit owners’
UCL claim, but affirming the trial court’s grant of summary adjudication on the
remainder of the unit owners’ claims.

                                               2
              FACTUAL AND PROCEDURAL BACKGROUND
       A. The Unit Owners’ Cross-Complaint
       Wilshire Landmark LLC (Wilshire) was created in July of 2002 to develop a
condominium tower known as “The Californian” (the project). Wilshire was owned by
three member entities: FRC Wilshire, FRC Wilshire Holdings and CLD Wilshire High
Rise (CLD). Each of these member entities signed an “Operating Agreement” governing
their relationship. On October 31, 2003, Wilshire executed a contract with Webcor
Construction to construct the project.
       Between August of 2004 and June of 2005, Wilshire sold all of the condominium
units in the project to 73 individual buyers. The terms of each sale were governed by a
“Purchase and Sale Agreement” (PSA) that included escrow instructions. The escrow
instructions stated, in part, that title to the unit would not be conveyed to the buyer until
either “the statutory period for recordation of all mechanic’s[1] lien claims ha[d]
expired,” or until Wilshire [had] provided a title insurance policy “insuring Buyer . . .
against unrecorded mechanic’s liens.” Wilshire subsequently provided each buyer a title
insurance policy that included an endorsement providing coverage against losses
sustained by liens or encumbrances on title up to the purchase price of the condominium
unit. Between May and June of 2006, Wilshire conveyed title to each of the
condominium unit owners pursuant to the PSA and the unit owners’ purchase funds were
released to Wilshire.
       Wilshire used the purchase funds to pay off construction loans, leaving it with a
balance of $25 million. Between August and November of 2006, Wilshire distributed
approximately $15.5 million to its member entities and withheld approximately $9.5
million to cover its remaining debts.

1       Both parties use an apostrophe when referring to the term “mechanic’s lien.” In
2008, however, the California Legislature adopted legislation reorganizing and amending
the mechanics lien law. Although the legislation retains the use of the term “mechanics
lien,” it “drops the apostrophe.” (See 37 Cal. L. Revision Comm’n Reports 527, 559
(2007).) Accordingly, we use the term “mechanics lien” except when quoting the parties’
briefs, evidence or prior case law.

                                               3
       During the course of construction, Webcor and Wilshire became involved in a
payment dispute. The dispute began in 2004 and continued until 2007, when Webcor
walked off the job, forcing Wilshire to hire another contractor to complete the work. On
March 7, 2007, Webcor recorded a mechanics lien against the project in the amount of
$17,571,750. Shortly after recording the lien, Webcor filed a complaint asserting claims
for breach of contract against Wilshire and foreclosure of its mechanics lien against
Wilshire and numerous current and former owners of condominium units at the
Californian.
       On April 30, 2010, the unit owner defendants filed a cross-complaint against
Wilshire and its member entities, each of which were alleged to be “alter egos” of
Wilshire.2 The cross-complaint asserted numerous causes of action seeking repayment of
any amounts the unit owners were found to owe Webcor on the mechanics lien claim,
including: violation of the UCL (Bus. & Prof. Code, § 17200), fraudulent transfer of
assets (Civ. Code, § 3439.04), improper distribution, breach of the implied covenant
against encumbrances in deed transfers (Civ. Code, § 1113), equitable subrogation,
equitable indemnity and contribution.3
       The unit owners’ UCL claim alleged Wilshire had “received purchase . . . funds
from [the unit owners] which was [sic] intended, among other things, for the purpose of
paying . . . to complete construction of the [p]roject.” Wilshire allegedly “began
diverting . . . funds received for completion of the [pr]oject to its members, all of whom
knew of [Wilshire’s] still outstanding payment obligations to [Webcor] for completion of
the [p]roject . . . .” The cross-complaint alleged Wilshire’s “diversion of funds and

2      The cross-complaint also named Steven Fifield, who was the managing partner of
Wilshire and two of Wilshire’s member entities, and two other entities with which Fifield
was affiliated. The unit owners asserted Fifield and his entities were also “alter egos” of
Wilshire.

3       The complaint also alleged causes of action for breach of fiduciary duties, breach
of the implied covenant of good faith and fair dealing, constructive trust and declaratory
relief. According to the unit owners’ brief, however, these causes of action were
“dismissed on demurrer” and are “not at issue in this appeal.”

                                             4
failure to complete improvements for which it had received funds from [the unit owners]
was knowing, willful and deliberate.” The cross-complaint further asserted that, as a
result of this unfair conduct, the unit owners had been damaged “by, among other things,
having their property potentially subject to foreclosure on [Webcor’s] mechanic’s lien
[and] being subject to [Webcor’s] $17.5 million claim for unpaid labor and materials as a
result of [Wilshire’s] failure to fulfill its contract with [Webcor]. . . .”
        The unit owners’ claim for “breach of the implied covenants in deed transfers”
(Civ. Code, § 1113) alleged that “at the time . . . title [was] conveyed . . . to the
condominium units,” Wilshire had “already acted in such a manner as to give [Webcor]
the inchoate right to assert mechanic’s liens upon the units.” It further alleged that,
“having provided to [Webcor] the right to encumber the [unit owners’] units by
mechanic’s liens, which were later . . . perfected by [Webcor], [Wilshire] violated the
implied covenant in deed transfer set forth in Civil Code § 1113.”
        The unit owners’ claim for equitable indemnity alleged Wilshire was “primarily
responsible for the damages if any, for which [Webcor] complains.” The claim further
alleged that if the unit owners were found liable to Webcor, they were “entitled to be
indemnified and held harmless under the principles of equitable indemnity by [Wilshire],
either from all the damages or from a percentage based upon principles of comparative
fault. . . .”
        In their prayer for relief, unit owners requested, among other things, restitution
and indemnification for any sum of money Webcor recovered against them on its claim
for foreclosure of its mechanics lien.

        B. Stipulation Regarding Unit Owner Subdivision Groups
        After the unit owners filed their cross-complaint, the parties entered into a
stipulation agreeing that the unit owners consisted of “individuals, trustees, and entities”
who had been named in Webcor’s complaint and “own or once owned title to one or
more units in . . .The Californian.” The parties further stipulated that they had agreed to
divide the unit owners into different groups, which were defined as follows:


                                                5
“Group ‘1’: Unit owners who received title to their units in the Project from Wilshire
and still hold title to those units.
Group ‘2’:     Unit owners who did not receive title to their units in the Project from
Wilshire, but still hold title to those units.
Group ‘3’:     Unit owners who received title to their units in the Project from Wilshire,
but no longer hold title to those units.”4
       The stipulation included an attachment showing that Group 1 was comprised of 66
current unit owners, Group 2 was comprised of 23 current unit owners and Group 3 was
comprised of 11 former unit owners.

       C. Wilshire’s Motions for Summary Judgment
           1. Summary of Wilshire’s motions for summary judgment
       Wilshire filed separate motions for summary judgment, or in the alternative,
summary adjudication, against each group of owners.5 The parties stipulated, however,
that the three motions presented identical arguments on most of the unit owners’ claims,
differing only with respect to the issue of standing on two of the unit owners’ claims:
violation of the UCL and breach of the implied covenant against encumbrances.

                       a. Summary of Wilshire’s arguments on the UCL claim
                           i. Lack of standing under the UCL

       Wilshire argued that all three groups of unit owners lacked standing to assert a
UCL claim because none of them had lost “lost money or property” within the meaning
of Business and Professions Code section 17204. (See § 17204 [“Actions for relief


4     The stipulation described a fourth group of owners comprised of individuals who
had not purchased their units from Wilshire and no longer held title to their units.
Although the Group 4 owners initially joined in this appeal, they have since elected to
“voluntarily dismiss the[ir] appeal. . . as to all causes of action.”

5      The other cross-defendants, which included Wilshire’s member entities and
various other parties alleged to be liable to the unit owners under an alter ego theory,
joined in the motions.

                                                 6
pursuant to this chapter shall be prosecuted exclusively . . . by . . . a person who has
suffered injury in fact and has lost money or property as a result of the unfair
competition”].)
       Wilshire argued there were two reasons why Group 1 owners lacked standing to
assert their UCL claim challenging Wilshire’s decision to distribute the remaining
purchase funds to its member entities. First, Wilshire contended the Group 1 owners had
suffered no loss of money or property as a result of the distributions because each owner
had received exactly what they contracted for: “title to their unit in exchange for the
sums paid.”
       Second, Wilshire argued the parties’ undisputed evidence demonstrated the Group
1 owners had not yet suffered, and would not suffer, the loss of any money or property
as a result of Webcor’s mechanics lien claim. Wilshire explained that: “(1) [the unit
owners’] attorney fees are not sufficient to establish economic injury . . . under the UCL
. . . . ; (2) [the unit owners] have not [yet] been required to pay Webcor any money . . .;
(3) [the unit owners] were provided title insurance policies by [Wilshire] that would
insure them against any future loss to Webcor by virtue of the mechanic’s liens . . . ; (4) .
. . [the unit owners] maintain possession of their units . . . .”
       In support of its assertion the Group 1 owners had not lost, and would not lose,
any money or property, Wilshire cited to: (1) language in the PSA stating that the buyer
would receive title to a condominium unit in exchange for the purchase funds; (2)
discovery responses indicating the unit owners had no evidence that they had ever paid
Webcor any amount for the mechanics lien claim; and (3) a stipulation in which the unit
owners admitted that, as a condition of their purchase, Wilshire had provided a title
insurance policy stating the insured would be covered against damage or loss sustained
by reason of any defect in or lien or encumbrance on the title.
       Wilshire asserted additional arguments as to why the Group 2 and Group 3 owners
lacked standing to pursue their UCL claim. It argued Group 2 owners lacked standing
because they had not bought their units from Wilshire and had never paid any money to
Wilshire. Thus, according to Wilshire, there was “no relationship between whatever

                                                7
funds the [Group 2 owners] may or may not have paid for their units and the money that
[Wilshire] may have [improperly] distributed.”
      Wilshire argued the Group 3 owners lacked standing to assert a UCL claim
because they had already sold their condominium units and were therefore not susceptible
to any of the forms of injury alleged in the unit owners’ UCL claim, all of which derived
from potential liability arising from Webcor’s mechanics lien.

                        ii. Wilshire’s alleged conduct did not violate the UCL

      Wilshire also argued that, even if any of the unit owners had standing to assert a
UCL claim, the conduct alleged in the cross-complaint did not constitute an “unfair” or
“fraudulent” business practice within the meaning of Business and Professions Code
section 17200.6 Wilshire contended the conduct underlying the UCL claim–Wilshire’s
decision to distribute the remaining condominium purchase funds to member entities
despite knowledge of its payment obligations to Webcor–was not an “unfair” business
practice because the “distributions were made pursuant to contractual obligations.”
Wilshire contended its “Operating Agreement,” which was signed by each of the member


6       Wilshire also argued the unit owners had failed to state a claim under the UCL’s
“unlawful” prong. (See Jenkins v. JP Morgan Chase Bank, N.A. (2013) 216 Cal.App.4th
497, 520 [“The UCL’s unlawful prong ‘“‘borrows’ violations of other laws and treats
them as unlawful practices’ that the unfair competition law makes independently
actionable. [Citations.]” [Citation.]’”].) The cross-complaint alleged Wilshire’s
distribution of the purchase funds was “unlawful” because it violated Penal Code section
484b’s prohibition against “the unlawful diversion of funds received for [construction]
improvements.” (People v. Williams (2013) 218 Cal.App.4th 1038, 1064.) The trial
court, however, ruled the unit owners’ cross-complaint failed to allege any conduct that
violated section 484b. On appeal, the unit owners have presented no argument regarding
the unlawful prong of section 17200, nor have they presented any argument regarding
Penal Code section 484b. We therefore treat this portion of their UCL claim as
abandoned. (See Wall Street Network, Ltd. v. New York Times Co. (2008) 164
Cal.App.4th 1171, 1177 (Wall Street) [“failure to address summary adjudication of a
claim on appeal constitutes abandonment of that claim”]; Los Angeles Equestrian Center,
Inc. v. City of Los Angeles (1993) 17 Cal.App.4th 432, 450 [summary resolution of
causes of action not addressed in appellants’ brief upheld because the “failure to discuss
the theories on appeal constitutes an abandonment”].)

                                            8
entities, required the distributions to be made at the time and in the manner Wilshire had
made them. Wilshire asserted that because “[t]he reasons, motives and justifications for
the distributions all flow from contractual requirements,” Wilshire’s conduct “in no way
could they be construed as ‘unfair’ . . .” In support of its assertion the distributions were
contractually required, Wilshire cited to letters it had received from CLD (a Wilshire
member entity) asserting that the terms of the Operating Agreement required Wilshire to
distribute the remaining purchase funds.
        Wilshire also argued its decision to distribute the purchase funds to its member
entities, rather than use them to pay Webcor, was not unfair because each unit owner had
received a title insurance policy that would protect them from “any potential injury”
resulting from Webcor’s mechanics lien claim. According to Wilshire, the unit owners
“could have and did avoid injury by obtaining title insurance which specifically protected
them against any mechanic’s liens that had yet been recorded such as Webcor’s.” In
support, Wilshire cited to an endorsement in the title insurance policy covering losses
sustained by reason of any defect in or lien or encumbrance on the title.
        Wilshire also asserted the unit owners could not prevail under the fraudulent prong
of the UCL because they had failed to “allege any misrepresentation” that it had made to
the unit owners. It further argued that, to the extent the unit owners’ “fraudulent” prong
claim was based on Wilshire’s failure to disclose it was distributing the remaining
purchase funds to its member entities, the unit owners had not alleged Wilshire had any
duty to disclose such information.

                      b. The unit owners’ claim for breach of the implied covenant
                         against encumbrances

        Wilshire argued that none of the unit owners could prevail on their claim that it
had violated Civil Code section 1113’s implied covenant against encumbrances by
conveying property that was subject to Webcor’s “inchoate right” to assert a mechanics
lien.




                                              9
       Wilshire argued the Group 1 owners’ implied covenant claim failed because the
PSA contained express provisions explaining that title would not be conveyed until either
the statutory period to record a mechanics lien claim had expired, or until Wilshire
provided a title insurance policy covering losses attributable to any mechanics liens.
According to Wilshire, this express language precluded application of any implied
covenant the unit owners’ title would be free from unrecorded mechanics liens.
       Wilshire argued the Group 2 owners had no standing to assert a claim for breach
of the implied covenant against encumbrances because they did not take title of their
units from Wilshire. According to Wilshire, “[o]nly those parties in privity to a contract
or deed have standing to sue on the contract or deed, or as to any implied covenants
contained therein.” Wilshire argued the Group 3 owners’ implied covenant failed
because they no longer held title to their units and therefore could not suffer any harm
from Webcor’s mechanics lien.

                     c. Equitable indemnity
       Wilshire argued the unit owners had “fail[ed] to state a cause of action” for
equitable indemnity, contending the doctrine did not apply in the absence of some form
of joint tort liability among the defendants. Wilshire asserted that because Webcor had
“not alleged any actions in tort against the [u]nit [o]wners or [Wilshire],” the unit owners
could not pursue an equitable indemnity claim.

                     d. Failure to establish “alter ego” liability
       Finally, Wilshire argued that the unit owners could not substantiate their claim that
Wilshire’s member entities were subject to “alter ego” liability for the acts Wilshire had
committed. In sum, Wilshire contended the unit owners had failed to identify any
evidence proving that a unity of interest existed among the various Wilshire member




                                             10
entities, or that an inequitable result would follow if Wilshire’s acts were treated as its
alone.7

          2. The unit owners’ oppositions to the motions for summary judgment
              a. The UCL claim
       The unit owners argued Wilshire had failed to introduce any evidence
demonstrating they lacked standing to pursue their UCL claim. The Group 1 and 2
owners, who retained title to their units, argued that the cross-complaint specifically
alleged various forms of economic injury that satisfied section 17204’s “lost money or
property” requirement, including “having a cloud on the title to their property,” having
their property “potentially foreclosed upon” and “diminution in value of their properties
as a result of the liens . . .” The Group 2 owners further asserted that, for the purposes of


7       Wilshire also argued it was entitled to summary adjudication on the unit owners’
four remaining claims for violation of the California Fraudulent Transfer Act (Civ. Code,
§ 3439 et seq.), improper distribution, equitable subrogation and contribution. The trial
court agreed and granted summary adjudication on all four claims. The unit owners’
opening appellate brief does not present any argument regarding these claims.
“Generally, . . . [the] failure to address summary adjudication of a claim on appeal
constitutes abandonment of that claim.” (Wall Street, supra, 164 Cal.App.4th at p. 1177.)
The unit owners’ reply brief, however, contends they did not abandon these claims
because their opening brief included language stating that although their arguments
would “focus” on three claims dismissed by the trial court (violation of the UCL, breach
of the implied covenant against encumbrances and equitable indemnity), they were
appealing the “entire grant of Summary Judgment.” Their reply brief contains no further
argument regarding the claims that were not addressed in their opening brief. As the
appellants, the unit owners had an affirmative duty to present a “cogent legal argument”
regarding each claim they believed to have been erroneously dismissed in the trial court.
(Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 (Cahill).)
“‘We are not bound to develop appellants’ argument for them. [Citation.]’” (Ibid.) The
unit owners’ assertion they were appealing “the entire grant of Summary Judgment” is
insufficient to preserve claims they did not address in their briefing. (Cf., Martinez v.
County of Los Angeles (1986) 186 Cal.App.3d 884, 887, fn. 2 [although appellant’s
“notice of appeal was filed as to . . . [a] judgment . . . which included a dismissal of the
second cause of action,” the appellant’s failure to “address the propriety of the trial
court’s ruling with respect to the second cause of . . . . constitutes an abandonment of
review thereof”].)

                                              11
standing, it was immaterial whether they had personally engaged in any transaction with
Wilshire “as it is the existence of the lien upon the property that caused the damage or
injury to the unit owners, which was caused by the unfair . . . actions of [Wilshire].” The
unit owners provided no argument, however, as to how Group 3 owners (who had sold
their units) had sustained, or might sustain, a loss of money or property as the result of
Webcor’s pending mechanics lien claim.
        The unit owners also argued Wilshire had failed to introduce any evidence
demonstrating that its decision to pay out the remaining purchase funds to its member
entities as profits was not an “unfair” business practice. The unit owners argued there
were disputed issues of material fact as to whether Wilshire was contractually required to
make the distributions pursuant to the terms of the Operating Agreement. They further
argued that, even if the distributions were required under the agreement, there were
disputed issues of fact as to whether Wilshire and its alleged alter ego member entities
had utilized the Operating Agreement as a fraudulent mechanism to “siphon the unit
owners’ sale proceeds” to the alter ego liabilities without paying for the entire project and
without providing the buyers with good title.
        The unit owners also argued that “the existence of title insurance [was] completely
irrelevant” to “determining whether [Wilshire] participated in an unfair business
practice.” According to the unit owners, the title insurance did not negate the injuries
they had suffered as a result of Wilshire’s conduct; the insurance merely provided a
mechanism to redistribute the losses associated with those injuries.
        The unit owners also argued they had properly asserted a claim under the
“fraudulent” prong of section 17200 by alleging that, at the time Wilshire sold the units,
it had concealed the existence of the “inchoate mechanics lien . . . and that recordation of
the lien was imminent.” The unit owners argued that by “decid[ing] to conceal this
information . . . and take the [purchase funds as] . . . ‘profit’ distributions,” Wilshire had
“ensured that . . . . [u]nit [o]wners] would not receive the lien free units they contracted
for . . .”



                                              12
              b. Breach of the implied covenant against encumbrances

       The unit owners also argued Wilshire had failed to demonstrate it was entitled to
judgment on their claim for breach of the implied covenant against encumbrances. The
Group 1 owners disputed whether the provisions of the PSA expressly informed buyers
that title to their units was subject to unrecorded mechanics lien claims. Although the
owners acknowledged the PSA stated that escrow would not close until either the
statutory period for recording a mechanics lien had expired or upon Wilshire’s
procurement of title insurance protecting against mechanics liens, they contended this
provision merely described the conditions necessary to close the escrow; it did not
constitute an express limitation on title.
       The Group 2 owners argued that although the implied covenant against
encumbrances generally does not pass to a subsequent purchaser, the trial court retained
equitable authority to contravene that rule to ensure Wilshire was not unjustly enriched
by its wrongful conduct. The unit owners provided no argument in response to
Wilshire’s assertion that Group 3 owners could not pursue a claim for breach of the
implied covenant because there was no conceivable way they could be injured by
Webcor’s pending mechanics lien claim.

              c. Equitable indemnity
       The unit owners also asserted that they were entitled to pursue a claim for
equitable indemnity, arguing that “although normally applied to joint tortfeasors, the
principle of partial or total equitable indemnity has applied where the liability of the party
seeking indemnity has not been based on tort.”

              d. Alter ego liability
       The unit owners also argued Wilshire had failed to “meet [their] burden to
establish that ‘one or more elements of alter ego cannot be established as a matter of
law.” The unit owners argued there were disputed questions of fact as to whether a unity
of interest and ownership existed among Wilshire and its member entities and whether an


                                             13
inequitable result would follow if Wilshire’s acts were not deemed attributable to those
members.

       D. The Trial Court’s Ruling
       After the hearing on Wilshire’s motions for summary judgment, the trial court
entered separate judgments in favor of Wilshire against each group of owners. Each
judgment incorporated the tentative ruling the court had issued prior to the hearing.

              1. Group 1 owners
       The trial court ruled the Group 1 owners “lack standing to bring a UCL action”
because they had failed to show they lost any “money or property” within the meaning of
section 17204. The court explained that “since the unit owners are not entitled to
restitution on a lien that has yet to be foreclosed upon, there is no actual ‘lost money or
property’ which would give rise to an actionable UCL claim.”
       The court further ruled that, even if Group 1 owners had standing to pursue a UCL
claim, Wilshire had demonstrated its alleged conduct was neither an “unfair” nor
“fraudulent” business practice within the meaning of the UCL. The court began its
analysis by summarizing Wilshire’s argument: “[Wilshire] asserts distribution was not
an unfair business act because (1) it made the distributions pursuant to the . . . Operating
Agreement, and (2) the [u]nit [o]wners avoided any potential injury by receiving title
insurance from [Wilshire] as required by the [PSA].” The court, however, ruled there
was a separate reason why the unit owners’ claim failed, explaining that the unit owners
had provided “no basis to conclude the distribution by Wilshire” should have been used
to pay for construction costs. The court noted that the parties’ evidence showed: (1) the
project was “primarily funded” through construction loans; and (2) the unit owners had
admitted Wilshire had used the purchase funds to pay off the construction loans. The
court concluded that “based on this, it cannot be said that [Wilshire] violated § 17200 by
paying off its members [with any remaining funds] prior to paying Webcor.”




                                             14
       The court also ruled Wilshire could not “be held liable under the fraudulent prong
of the UCL” because the cross-complaint had failed to allege Wilshire had any duty to
disclose it was making distributions to its member entities.
       The court ruled Wilshire was entitled to summary adjudication on the Group 1
owners’ claim for breach of the implied covenant against encumbrances because the PSA
contained “express language” that “specifically reference[d] the possibility that
mechanic’s liens may be filed.” According to the court, this language showed the
conveyance had been “‘restrained by express terms contained in such conveyance,’ such
that the implied covenant set forth in Ca. Civil Code, § 1113 is inapplicable.”
       The court ruled Wilshire was entitled to summary adjudication on all of the unit
owners’ claims for equitable indemnity because “[e]quitable indemnity . . . was
developed to apportion damages among multiple tortfeasors on a comparative negligence
basis. . . . As Webcor has not alleged any action in tort against the [u]nit [o]wners or
[Wilshire], there is no basis to sue for equitable indemnity.”
       The court’s judgment explained that because it had found Wilshire was entitled to
summary adjudication of every claim set forth in the cross-complaint, the Group 1
owners’ “‘alter-ego’ allegations . . . [were rendered] moot.”

              2. Group 2 and 3 unit owners
       The trial court ruled the Group 2 owners could not assert a UCL claim against
Wilshire because they had admitted they never entered into any transaction with Wilshire
and never paid Wilshire any of the purchase funds that it should have allegedly paid to
Webcor. The court further concluded that, like the Group 1 owners, the Group 2 owners
had no standing to assert a UCL claim because the lien “ha[d] yet to be foreclosed upon.”
       The court ruled the Group 3 owners also lacked standing to bring a UCL claim,
explaining: “[Because] Group 3 [owners] . . . no longer own their units, there is no basis
to conclude that they will suffer damage (cloud on title, subject to foreclosure).
Moreover, there is no showing that any of these [u]nit [o]wners suffered any injury
before selling their respective unit as a result of the mechanic’s lien having been filed.”


                                             15
       On the claim for breach of the implied covenant against encumbrances, the court
ruled the Group 2 owners lacked standing because they did not acquire their
condominium units from Wilshire. The court explained that “covenants that land is free
from encumbrances are personal covenants not running with the land and . . . do not
entitle a succeeding grantee to maintain an action in his own name for their breach.” The
court ruled the Group 3 owners could not maintain a claim for breach of the implied
covenant because they no longer owned their units and therefore could not be damaged
by Webcor’s pending mechanics lien claim.
       The trial court’s orders stated that Wilshire was entitled to summary adjudication
on the remainder of the Group 2 and Group 3 owners’ claims for the same reasons set
forth in the order pertaining to the Group 1 owners. As with the judgment against the
Group 1 owners, the judgments entered against the Group 2 and Group 3 owners stated
that the “alter ego” allegations were “moot” in light of the court’s “other rulings.” The
unit owners filed a timely appeal of each judgment.8

                                      DISCUSSION
       A. Standard of Review
       “A motion for summary judgment is properly granted only when ‘all the papers
submitted show that there is no triable issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.’ (Code Civ. Proc., § 437c, subd. (c).)
We review a grant of summary judgment de novo and decide independently whether the


8      “‘Where a defendant cross-complains against a third party or against a
codefendant, the dismissal of the cross-complaint is a final adverse adjudication of the
cross-complainant’s rights against a distinct party, and the order is appealable.
[Citations.]’ [Citation.]” (Paragon Real Estate Group of San Francisco, Inc. v. Hansen
(2009) 178 Cal.App.4th 177, 181, fn. 1 [order sustaining demurrer to cross-complaint
filed against codefendant appealable]; see also Yandell v. City of Los Angeles (1926) 214
Cal. 234, 235-236 [dismissal of a cross-complaint is appealable “where the cross-
complaint [i]s filed by . . . defendants against other defendants and the parties in the
cross-action were . . . not identical with those in the main action”]; Jones v. Russ Davis
Ford (1967) 247 Cal.App.2d 725, 727 [dismissal of “cross-complaint . . . [that] names a
co-defendant a cross-defendant” constitutes an appealable order].)

                                             16
facts not subject to triable dispute warrant judgment for the moving party as a matter of
law. [Citation]
       “When a defendant moves for summary judgment in a situation in which the
plaintiff would have the burden of proof at trial by a preponderance of the evidence, the
defendant may, but need not, present evidence that conclusively negates an element of
the plaintiff’s cause of action. [Citation.] As an alternative to the difficult task of
negating an element, the defendant may present evidence to ‘show[ ] that one or more
elements of the cause of action . . . cannot be established’ by the plaintiff. (§ 437c, subd.
(p)(2); [citation].) A defendant ‘has shown that the plaintiff cannot establish at least one
element of the cause of action by showing that the plaintiff does not possess, and cannot
reasonably obtain, needed evidence: The defendant must show that the plaintiff does not
possess needed evidence, because otherwise the plaintiff might be able to establish the
elements of the cause of action; the defendant must also show that the plaintiff cannot
reasonably obtain needed evidence, because the plaintiff must be allowed a reasonable
opportunity to oppose the motion. . . .’ [Citations.] A defendant can satisfy its initial
burden to show an absence of evidence through ‘admissions by the plaintiff following
extensive discovery to the effect that he has discovered nothing’ [citation], or through
discovery responses that are factually devoid. [Citations.]
       “Only after the defendant’s initial burden has been met does the burden shift to the
plaintiff to demonstrate, by reference to specific facts not just allegations in the
pleadings, there is a triable issue of material fact as to the cause of action. (§ 437c, subd.
(p)(2); [citation].) On review of an order granting summary judgment, we view the
evidence in the light most favorable to the opposing party, liberally construing the
opposing party’s evidence and strictly scrutinizing the moving party’s. [Citation.]”
(Chavez v. Glock, Inc. (2012) 207 Cal.App.4th 1283, 1301-1302 [emphases in the
original].) “The same standards apply to motions for summary adjudication.”
(Hypertouch, Inc. v. ValueClick, Inc. (2012) 192 Cal.App.4th 805, 818, fn. 3.)




                                              17
       B. The Trial Court Erred in Granting Summary Adjudication of the Group 1
          Owners’ UCL Claim

              1. Standing under the UCL

       The unit owners argue that the trial court erred in concluding that Wilshire
demonstrated they lack standing to bring a UCL claim. Business and Professions Code
section 17204 limits standing under the UCL to “a person who has suffered injury in fact
and has lost money or property as a result of the unfair competition.” To satisfy section
17204’s standing requirement a “party must . . .[:] (1) establish a loss or deprivation of
money or property sufficient to qualify as injury in fact, i.e., economic injury, and (2)
show that that economic injury was the result of, i.e., caused by, the unfair business
practice . . . that is the gravamen of the claim.” (Kwikset Corp. v. Superior Court (2011)
51 Cal.4th 310, 322 (Kwikset).)
       In this case, the trial court concluded Wilshire had demonstrated the Group 1 and
Group 3 owners could not establish economic injury, and that the Group 2 owners could
not satisfy either requirement.

                     a. Wilshire did not make a prima facie showing that the Group 1
                        owners cannot establish economic injury

       In the trial court, the Group 1 owners argued they had suffered an economic injury
because Webcor’s mechanics lien had placed a cloud on their title and caused a
diminution in the value of their property. The trial court, however, ruled that because the
Group 1 owners had admitted they had not yet paid any funds to Webcor as a result of the
lien, they could not satisfy section 17204’s lost money or property requirement. The
court explained that “[s]ince the [u]nit [o]wners [were] not entitled to restitution on a lien
that has yet to be foreclosed upon, there [wa]s no actual ‘lost money or property’ which
would give rise to an actionable UCL claim.” In support of its ruling, the court quoted
language from a federal district court opinion, Walker v. USAA Cas. Ins. Co. (E.D. 2007)
474 F.Supp.2d 1168, stating that the “lost money or property” requirement set forth in
section 17204 should “be interpreted in accordance with the construction already given to


                                             18
the ‘lost money or property’ required to seek restitution under section 17203.” (Id. at
p. 1172.) On appeal, the Group 1 owners contend the trial court erred in interpreting
section 17204 as limiting standing to individuals who can demonstrate an entitlement to
restitution under section 17203, which describes the remedies available under the UCL.
We agree.
       To satisfy section 17204’s “lost money or property” requirement, a plaintiff need
only demonstrate he or she has suffered “some form of economic injury.” (Kwikset,
supra, 51 Cal.4th at pp. 323.) “There are innumerable ways in which economic injury
from unfair competition may be shown. A plaintiff may (1) surrender in a transaction
more, or acquire in a transaction less, than he or she otherwise would have; (2) have a
present or future property interest diminished; (3) be deprived of money or property to
which he or she has a cognizable claim; or (4) be required to enter into a transaction,
costing money or property, that would otherwise have been unnecessary.” (Ibid.) The
economic injury requirement may also be satisfied by showing “a diminishment in the
value of some asset a plaintiff possesses.” (Id. at p. 336.)
       In contrast, to establish the right to restitution under section 17203, a plaintiff must
do more than merely prove he or she has suffered economic injury as the result of unfair
competition. “Restitution under section 17203 is confined to restoration of any interest in
‘money or property, real or personal, which may have been acquired by means of such
unfair competition.’ (Italics added.) A restitution order against a defendant thus requires
both that money or property have been lost by a plaintiff, on the one hand, and that it
have been acquired by a defendant, on the other.” (Kwikset, supra, 51 Cal.4th at p. 336.)
       Our Supreme Court has expressly rejected the argument that section 17204’s “lost
money or property” requirement confines standing to individuals who have suffered
losses that are eligible for restitution. (See Kwikset, supra, 51 Cal.4th at pp. 335-336.) In
Clayworth v. Pfizer, Inc. (2010) 49 Cal.4th 758, the Court explained that “this argument
conflates the issue of standing with the issue of the remedies to which a party may be
entitled. That a party may ultimately be unable to prove a right to damages (or, here,
restitution) does not demonstrate that it lacks standing to argue for its entitlement to

                                              19
them.” (Id. at p. 789.) In Kwikset, supra, 51 Cal.4th 310, the Court reaffirmed its
holding in Clayworth, explaining that “the standards for establishing standing under
section 17204 and eligibility for restitution under section 17203 are wholly distinct” and
that “ineligibility for restitution is not a basis for denying standing under section 17204.”
(Id. at pp. 335-336, 337.)
       In light of Clayworth and Kwikset, the trial court erred in tying standing under the
UCL to the showing required to obtain restitution. As explained in Kwikset, section
17204 requires nothing more than that the plaintiff show they suffered an economic
injury as a result of unfair competition. In this case, the unit owners have asserted
Webcor’s mechanics lien has caused a diminution in the value of their property. This
qualifies as a form of economic injury sufficient to support standing under section 17204.
(See Kwikset, supra, 51 Cal.4th at p. 336 [“a diminishment in the value of some asset a
plaintiff possesses” constitutes a form of economic injury that satisfies section 17204’s
“lost money or property” requirement].)
       Wilshire, however, argues we should nonetheless affirm the trial court’s ruling
that the unit owners lack standing because the owners “offered no evidence to the trial
court of any change in value of their units.” However, as the party moving for summary
judgment or summary adjudication, Wilshire had an initial “‘burden to show there is no
triable issue of fact on [the elements of] UCL standing . . . ’ [Citation.]” (Troyk v.
Farmers Group, Inc. (2009) 171 Cal.App.4th 1305, 1350-1351.) To satisfy this burden,
Wilshire had to either introduce evidence demonstrating the unit owners did not suffer
any form of economic injury, or, alternatively, by demonstrating the unit owners do not
possess, and cannot reasonably obtain evidence of economic injury. Wilshire has cited to
no evidence in the record indicating Webcor’s mechanics lien did not cause a diminution
in the value of the Group 1 owners’ property, nor has it made any showing suggesting
these owners could not reasonably obtain such evidence. Thus, “it is unnecessary to
examine the [unit owners] opposing evidence.” (Diamond v. Superior Court (2013) 217
Cal.App.4th 1172, 1182.)



                                             20
       Wilshire also argues we should affirm the trial court’s ruling that the Group 1
owners lack standing under section 17204 because it introduced evidence showing each
owner was provided a title insurance policy that will cover any economic injury resulting
from Webcor’s mechanics lien. The only evidence Wilshire cites in support of this
argument consists of: (1) the unit owners’ admission that Wilshire provided each of them
a title insurance policy as a condition of their purchase; and (2) a provision in the title
policy stating that the policy insures against any loss or damage “by reason of [¶] . . . [¶]
Any defect in or lien or encumbrance on the title.”
       Wilshire appears to assert that a plaintiff lacks standing to assert a UCL claim if he
or she is insured against the form of economic injury that was allegedly caused by the
defendant’s unfair competition. Even if we assume Wilshire is correct on this point of
law,9 it has failed to make a prima facie evidentiary showing that the Group 1 owners’
insurance policies would actually cover any loss arising from Webcor’s mechanics lien
claim. Wilshire provided no evidence the Group 1 owners’ title insurer has admitted it
will provide coverage for any such loss, nor has it provided any evidence the insurer
would have no defenses to any claim for coverage predicated on the Webcor lien.10

9       Wilshire has cited no authority suggesting that the availability of insurance is
sufficient to defeat standing under section 17204. As a general matter, “[i]nsurance does
not eliminate [a] loss, it simply shifts the loss from the landowner to the insurer, which is
then entitled to assert its subrogation rights.” (Paterno v. State of California (2003) 113
Cal.App.4th 998, 1025.) Thus, although the unit owners’ title insurance might ultimately
entitle them to indemnification for any economic injury they have suffered as a result of
the mechanics lien, we fail to see how the availability of insurance negates the existence
of the economic injury.

10     Wilshire contends the unit owners have made a “judicial admission” that the title
insurer will reimburse them “free of charge” for any cost incurred as a result of the
mechanics lien. In support, Wilshire cites to a portion of the trial court hearing transcript
in which the unit owners’ counsel stated: “Well, insurance company is going to pay, on
behalf of the unit owners. And again, we come back to where we started, which is, you
know, I don’t think the law says that [Wilshire’s conduct is] okay, because it’s the
insurance company that’s – that’s paying on behalf of the unit owners . . .” “Statements
of counsel in argument are not deemed judicial admissions unless they have the formality
of an admission or a stipulation. [Citations.]” (People v. Kiney (2007) 151 Cal.App.4th

                                              21
Instead, it cites to a single policy provision indicating that the policy covers losses
sustained by defects in or liens or encumbrances on title. The policy, however, contains
numerous other provisions, including several “exclusions from coverage” for, among
other things, encumbrances and claims that were “attach[ed] or created subsequent to the
Date of Policy” or “not shown by the public records.”11 Wilshire’s citation to a single
policy provision is simply not sufficient to show that any economic harm the Group 1
owners might suffer from the lien will necessarily qualify as a covered event.

                     b. Wilshire established Group 3 owners lack standing to pursue a
                        UCL claim

       It is undisputed that the Group 3 owners purchased their unit from Wilshire, but no
longer hold title to the units. In the trial court, Wilshire argued the Group 3 owners
lacked standing to assert a UCL claim because they could not suffer any possible loss of
money or property as the result of Webcor’s pending mechanics lien claim. The Group 3
owners’ opposition to Wilshire’s motion for summary judgment did not provide any


807, 815.) Accordingly, a counsel’s statement may not be treated as an admission if “it is
made improvidently or unguardedly, . . . is in any way ambiguous . . . [or] lacks the
gravity of a complete relinquishment of rights on the issue.” (Irwin v. Pacific Southwest
Airlines (1982) 133 Cal.App.3d 709, 714; see also Fassberg Const. Co. v. Housing
Authority of City of Los Angeles (2007) 152 Cal.App.4th 720, 752.) In this case,
counsel’s statement was made during a lengthy discussion regarding the relevancy of the
unit owners’ title insurance policies. This single, isolated comment cannot be fairly
construed as a formal, unambiguous and deliberate admission that the title insurer had
agreed to cover any losses associated with Webcor’s mechanics lien. Moreover, as
Wilshire’s own attorney clarified at the trial court hearing, the title insurer is a “distinct
entit[y]” from the unit owners, it is not “a party to this action” and its “rights” are not at
issue in this litigation. We therefore fail to see how a statement by the unit owners’
counsel can be treated as an admission binding the title insurer to coverage under its
policy.

11     It is undisputed that the unit owners’ title insurance policies were issued before
Webcor recorded its mechanics lien. Wilshire’s appellate brief asserts that a mechanics
lien does not constitute an encumbrance on property until it has been recorded. Thus,
Wilshire’s own arguments suggest the title insurer might have grounds to assert its title
policy does not apply to Webcor’s lien.

                                              22
response to this argument. The trial court agreed with Wilshire, explaining “‘Group 3
Unit Owners . . . lack[] standing as they no longer own the real property at issue and,
thus, are no longer susceptible to any future harm as a consequence of this action – there
is nothing left to restore or enjoin.’”
       For the first time on appeal, Group 3 owners contend they suffered economic
injury as the result of Wilshire’s conduct because they “acquired less than they otherwise
would have.” They offer no further explanation regarding the nature of their alleged
“economic injury.” As the appellants, the Group 3 owners had a duty to “affirmatively
demonstrate [the trial court committed] error.” (People v. White Eagle (1996) 48
Cal.App.4th 1511, 1523.) “This burden requires more than a mere assertion that the
judgment is wrong. . . . It is not our place to construct theories or arguments to undermine
the judgment and defeat the presumption of correctness. When an appellant fails to raise
a point, or asserts it but fails to support it with reasoned argument and citations to
authority, we treat the point as waived.” (Benach v. County of Los Angeles (2007) 149
Cal.App.4th 836, 852; see also Cahill, supra, 194 Cal.App.4th at p. 956 [“‘The absence
of cogent legal argument or citation to authority allows this court to treat the contention
as waived’”].) The Group 3 owners’ conclusory assertion that they “acquired less than
they would have” is not sufficient to demonstrate the trial court erred in its ruling.
       Moreover, as the trial court explained, it is apparent the Group 3 owners cannot
suffer any of the forms of economic injury for which they have sought redress. The
cross-complaint and Group 3 owners’ trial briefs allege they have been harmed by
Webcor’s mechanics lien claim because: the lien constitutes a cloud on their title; their
units are now subject to potential foreclosure; and the value of their property has been
diminished. However, because the Group 3 owners no longer own their units, they
cannot possibly suffer any of these forms of injury. We therefore affirm the grant of
summary adjudication on the Group 3 owners’ UCL claim for lack of standing.




                                              23
                       c. Wilshire established Group 2 owners lack standing to pursue a
                          UCL claim

       Wilshire’s motion for summary judgment argued that the Group 2 owners lacked
standing to assert a UCL claim based on their admission that they “did not buy their units
from or pay any money to [Wilshire or its member entities].” The trial court agreed,
ruling that the Group 2 unit owners’ admission they did not pay Wilshire any money
demonstrated that their purported harm–being subject to the mechanics lien claim – was
not caused by the conduct alleged in the cross-complaint–Wilshire’s decision to distribute
purchase funds received from the unit owners to its member entities. The court further
concluded the Group 2 owners lacked standing for the same reasons as the Group 1
owners: they had not demonstrated the loss of money or property because the lien had yet
to be foreclosed on.
       On appeal, the Group 2 owners contend they have alleged the same forms of
economic harm resulting from the mechanics lien as the Group 1 owners; namely, cloud
on their title and a diminution in the value of their property. Although the trial court’s
order regarding the Group 2 owners applied the same erroneous interpretation of section
17204’s “lost money and property requirement” discussed above , the Group 2 owners
have failed to address the other basis for the court’s ruling: lack of causation.
       To establish standing to assert a UCL claim, the plaintiff must show not only
economic injury, but also that the economic injury “was the result of, i.e., caused by, the
unfair business practice . . . that is the gravamen of the claim.” (Kwikset, supra, 51
Cal.4th at p. 322.) In this case, the UCL claim set forth in the cross-complaint alleges
Wilshire “received various purchase money funds from [the unit owners] which was
intended . . . for the purpose of paying . . . to complete the construction of the Project.” It
further alleges that Wilshire “began diverting the funds received for the completion of the
Project to its [alter ego] members, all of whom knew of [Wilshire’s] still outstanding
payment obligation to [Webcor] for completion of the project.” According to the cross-
complaint, Wilshire’s “diversion of funds and failure to complete improvement for which
it had received funds from [the unit owners] was knowing, willful and deliberate” and an

                                              24
“‘unfair’ . . . . practice as [that] term is defined in [section] 17200.” The cross-complaint
complaint further alleges that, as a result of this unfair conduct, the unit owners “have
been . . . damaged by, among other things, having their property potentially subject to
foreclosure on Webcor’s mechanics lien claim [and] being subject to Webcor’s $17.5
million claim for unpaid labor and materials as a result of [Wilshire’s] failure to fulfill its
contract with [Webcor].”
       The cross-complaint makes clear that the gravamen of the unit owners’ UCL claim
is that Wilshire took their purchase funds, which were supposed to be used to complete
the project (which included paying its contractor Webcor), and distributed the money to
its alter ego members. As the trial court pointed out, the Group 2 owners were not
subjected to this alleged unfair business practice because they did not give Wilshire any
money or property that was supposed to be used to complete the project; indeed, they did
not engage in any business transaction with Wilshire whatsoever. (See generally
Kwikset, supra, 51 Cal.4th at p. 317 [“apparent purpose” of section 17204’s standing
requirement is “to eliminate standing for those who have not engaged in any business
dealings with would-be defendants”].) Because the Group 2 unit owners were not
subjected to the unfair practice alleged in the cross-complaint, their alleged harm could
not have been “caused” by that practice. Accordingly, the trial court did not err in
concluding the Group 2 owners lack standing to pursue the UCL claim.

              2. Wilshire failed to make a prima facie showing that it did not commit an
                 unfair business practice

       The trial court ruled that, even if the unit owners had standing to pursue a section
17200 claim, Wilshire had provided evidence demonstrating that the conduct alleged in
the cross-complaint did not qualify as an “unfair” business practice within the meaning of
the UCL.
       “In consumer cases arising under the UCL, a business practice is ‘unfair’ if: (1)
the consumer injury is substantial; (2) the injury is not outweighed by any countervailing
benefits to consumers or competition; and (3) the injury could not reasonably have been


                                              25
avoided by consumers themselves. [Citations.] ‘Whether a practice is . . . unfair is
generally a question of fact which requires “consideration and weighing of evidence from
both sides” . . .’ [Citation.]” (Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th
1342, 1376 (Klein) [citing and quoting Camacho v. Automobile Club of Southern
California (2006) 142 Cal.App.4th 1394, 1403 (Camacho).)12
       The trial court’s order explained that the unit owners’ UCL claim failed because
there was “no basis to conclude” Wilshire should have used their purchase funds to pay
for the construction and completion of the project. The court noted the parties’ evidence
showed Wilshire had obtained construction loans to finance the project and then used the
unit owners’ purchase funds to pay off those loans. In support, the court cited to an
undisputed fact in the unit owners’ separate statement asserting that “‘[t]he [u]nit
[o]wners’ purchase money funds were used to pay off the . . . construction loans.’” The
court explained that, “[b]ased on this, it cannot be said that [Wilshire] violated § 17200
by paying off its members prior to paying Webcor.”
       It appears the court misperceived the nature of the unit owners’ unfair competition
claim. The unit owners’ claim does not involve the portion of the purchase funds
Wilshire used to pay off its construction loans. Rather, the unit owners allege that, after
paying off those construction loans, Wilshire possessed $25 million in remaining
purchase funds. The unit owners further allege that although Wilshire knew it still owed
Webcor a substantial amount of money for construction costs, it chose to distribute the

12      There is currently a split of authority with respect to the proper definition of the
term “unfair” in the context of consumer cases arising under the UCL. (See generally
Davis v. Ford Motor Credit Co. (2009) 179 Cal.App.4th 581, 584, 594-597 (Davis);
Drum v. San Fernando Valley Bar Assn. (2010) 182 Cal.App.4th 247, 256 [“Courts of
Appeal ... have applied three different tests for unfairness in consumer cases”].)
However, this District has consistently followed the definition enunciated in Camacho,
supra, 142 Cal.App.4th at p. 1403, which was decided by Division Three of this District
in 2006. (See Klein, supra, 202 Cal.App.4th at p. 1376, fn. 11 [adopting Camacho’s
definition of “unfair” in consumer cases]; Davis, supra, 179 Cal.App.4th at p. 596
[Camacho “contains an excellent analysis of the issue and we adopt its definition of
‘unfair’ in consumer cases”]; Daugherty v. American Honda Motor Co., Inc. (2006) 144
Cal.App.4th 824, 838-839 [applying and following Camacho].)

                                             26
remaining purchase funds to its member entities as “profits.” The court’s analysis does
not address whether Wilshire’s decision to distribute the remaining $25 million to its
member entities, rather than using it to pay the debt it owed to Webcor, could be
construed as an unfair business practice.
       Wilshire, however, argues that we may affirm the trial court’s ruling based on
other arguments that were raised in its motion for summary judgment, but were not
addressed in the court’s ruling. (Securitas Security Services USA, Inc. v. Superior Court
(2011) 197 Cal.App.4th 115, 120 [“We will affirm a summary judgment or summary
adjudication if it is correct on any ground that the parties had an adequate opportunity to
address in the trial court, regardless of the trial court’s stated reasons].) First, Wilshire
argues its conduct was not unfair because it was contractually obligated to distribute the
remaining purchase funds to its member entities. Specifically, Wilshire contends the
“Operating Agreement” entered into between Wilshire’s member entities contained
“binding contractual obligations” that required it to distribute the remaining purchase
funds at the time and in the manner it did.13 This argument fails for two reasons.
       First, Wilshire has failed to make a prima facie showing that the terms of the
Operating Agreement required it to distribute the remaining purchase funds to its member
entities. The only evidence Wilshire cites in support of this assertion consists of: (1)
deposition testimony in which the managing partner of Wilshire stated the Operating
Agreement required the disbursement of “distributable proceeds” on a quarterly basis;
and (2) letters from CLD (a Wilshire member entity) asserting Wilshire was required to
distribute the funds under the terms of the Operating Agreement. Neither piece of
evidence shows the Operating Agreement required Wilshire to distribute the remaining

13      Wilshire characterizes its assertion that the terms of the Operating Agreement
required it to distribute the remaining funds to its members as an “undisputed” fact.
However, it has cited no evidence showing the unit owners have ever made any such
concession. In the trial court, the unit owners’ filed a response to Wilshire’s separate
statement of undisputed facts that specifically disputed whether “such Operating
Agreement . . . ‘mandates’ [the] distributions.” The unit owners’ response also asserted
Wilshire “failed to follow the provisions of the Operating Agreement” by making
“distributions to its members” prior to “paying the claims” of its creditors.

                                              27
portion of the unit owners’ purchase funds to its member entities. The cited deposition
testimony merely states that Wilshire had to distribute “distributable proceeds” on a
quarterly basis; the testimony does not define the meaning of that term, nor does it
explain why the remaining purchase funds qualified as “distributable proceeds.” The
letters from CLD, on the other hand, simply constitute a demand for payment; they do not
demonstrate the payments were in fact contractually obligated.
       Second, even if Wilshire had made an evidentiary showing the Operating
Agreement required it to distribute the remaining purchase funds, the unit owners have
alleged that every signatory to that agreement was an alter ego entity of Wilshire. The
unit owners essentially contend Wilshire was distributing the purchase funds to itself
through an operating agreement that it entered into with itself. Accordingly, without a
determination as to the unit owners’ alter ego allegations (which the trial court declined
to make), it is impossible to evaluate what relevance, if any, the terms of the Operating
Agreement have on assessing the “unfairness” of Wilshire’s conduct.
       Wilshire also argues we should affirm the trial court’s dismissal of the unfairness
claim because the unit owners “avoided any potential injury arising from [the mechanics
lien claim] by receiving title insurance.” According to Wilshire, the undisputed evidence
shows the unit owners will “never pay Webcor any money because of title insurance,
purchased by [Wilshire], insuring [unit owners] against any future loss caused by
Webcor’s mechanic’s lien.” In support, Wilshire cites to a single provision in the unit
owners’ title policy stating that the policy insures against any loss or damage “by reason
of [¶] . . .[¶] Any defect in or lien or encumbrance on the title.”
       This is essentially the same argument (supported by the same evidence) that
Wilshire raised in relation to the Group 1 owners’ standing to assert a UCL claim; it fails
for the same reasons. Even if we assume the availability of insurance coverage might
provide a proper basis for dismissing a UCL “unfairness” claim, Wilshire’s reference to a
single provision in the title insurance policy is insufficient to show the insurer will cover




                                              28
any loss arising from the mechanics lien claim or that the insurer would lack any defenses
to coverage.14
       In sum, Wilshire failed to make a prima facie showing that the unit owners could
not demonstrate the conduct alleged in their cross-complaint was an unfair business
practice within the meaning of the UCL. We therefore reverse the trial court’s grant of
summary adjudication on the Group 1 owners’ UCL claim.15 The court’s dismissal of
the Group 2 and Group 3 owners’ UCL claim, however, is affirmed .

       C. Wilshire is Entitled to Summary Adjudication on the Unit Owners’ Claim for
          Breach of the Implied Covenant Against Encumbrances

       Civil Code section 1113 “‘implies a covenant against encumbrances in a grant
deed “unless restrained by express terms contained in such conveyance.”’ [Citation.]”
(Thorstrom v. Thorstrom (2011) 196 Cal.App.4th 1406, 1416.)16 The unit owners allege
Wilshire violated section 1113’s implied covenant by conveying condominium units that


14      For the first time on appeal, Wilshire also argues the unit owners’ unfairness claim
fails as a matter of law because they could have reasonably avoided their injury by
investigating whether a mechanics lien could be recorded against their property. We
decline to address this new argument, which was never presented to the trial court.
(C9 Ventures v. SVC-West, L.P. (2012) 202 Cal.App.4th 1483, 1491 [“An appellate court
ordinarily will not consider arguments made for the first time on appeal”].)

15   Because we reverse the trial court’s summary adjudication of the Group 1 owners’
UCL claim on the basis of the “unfairness” prong, we need not address the owners’
arguments regarding the “fraudulent” prong.

16      Civil Code section 1113 reads: “From the use of the word ‘grant’ in any
conveyance by which an estate of inheritance or fee simple is to be passed, the following
covenants, and none other, on the part of the grantor for himself and his heirs to the
grantee, his heirs, and assigns, are implied, unless restrained by express terms contained
in such conveyance: [¶] 1. That previous to the time of the execution of such conveyance,
the grantor has not conveyed the same estate, or any right, title, or interest therein, to any
person other than the grantee; [¶] 2. That such estate is at the time of the execution of
such conveyance free from encumbrances done, made, or suffered by the grantor, or any
person claiming under him. [¶] Such covenants may be sued upon in the same manner as
if they had been expressly inserted in the conveyance.”

                                             29
were encumbered by Webcor’s “inchoate [mechanics] lien rights.” The trial court ruled
that Wilshire was entitled to summary adjudication of this claim against all three owner
groups.
              1. Group 2 owners cannot pursue a claim for breach of the implied
                 covenant because they did not take title from Wilshire

       The trial court ruled that Group 2 owners could not assert a claim for breach of the
implied covenant against Wilshire because they did not purchase their units from
Wilshire, nor did they take title from Wilshire. The court’s ruling is supported by well-
established case law.
       Our Supreme Court has repeatedly held that the implied covenant set forth in Civil
Code section 1113 constitutes a “personal covenant . . . [that] does not run with the land
or pass to the assignee.” (McPike v. Heaton (1900) 131 Cal. 109, 111 (McPike); see also
Woodward v. Brown (1897) 119 Cal. 283, 294 [covenant set forth in section 1113 is “a
personal covenant” that “does not run with the land”].) In McPike, the Court ruled that
the plaintiffs could not assert a claim for breach of the implied covenant against an
individual who did not grant them their property and with whom they had “no contractual
relation.” (McPike, supra, 131 Cal. at p. 111; see also Babb v. Weemer (1964) 225
Cal.App.2d 546, 551 (Babb) [it is now “well-settled . . . that the covenants [set forth in
section 11113] are personal covenants not running with the land and that they do not
entitle a succeeding grantee to maintain an action in his own name for their breach”].)

              2. Group 3 owners failed to state a claim for breach of the implied
                 covenant because they have identified no harm they may suffer as the
                 result of Webcor’s pending mechanics lien claim

              The trial court ruled the Group 3 owners, who no longer hold title to their
condominium units, may not maintain a claim for breach of the implied covenant against
Wilshire because they failed to allege any harm or loss they might suffer as a result of
Webcor’s pending mechanics lien claim.
       The unit owners’ cross-complaint alleges that, “as a proximate result of
[Wilshire’s] breach of the implied covenants [set forth in section 1113],” they have been

                                             30
damaged by “having their property potentially subject to foreclosure on [Webcor’s]
mechanic’s lien [and] being subject to Webcor’s $17.5 million claim for unpaid labor and
materials as a result of [Wilshire’s] failure to full its contract with Webcor . . . ” In their
opposition to Wilshire’s motions for summary judgment, the Group 3 owners, who have
already sold their units, failed to explain how they might suffer either form of injury.
       On appeal, the Group 3 owners have again failed to identify any harm they have
suffered, or might suffer, as a result of Webcor’s pending mechanics lien claim. The only
argument they present on this issue consists of a single sentence stating that Group 3
owners “received Grant Deeds from [Wilshire] in which the implied covenants were
breached to their detriment.” Their brief does not describe the nature of this purported
“detriment” nor does it cite to any part of the record that describes the detriment.
Because the Group 3 owners have provided no “reasoned argument” explaining why the
trial court erred in concluding they suffered no harm as a result of Wilshire’s alleged
breach of the implied covenant, they have forfeited any claim of error. (See Cahill,
supra, 194 Cal.App.4th at p. 956 [“‘“When an appellant fails to raise a point, or asserts it
but fails to support it with reasoned argument and citations to authority, we treat the point
as waived”’”].)

              3. Wilshire is entitled to summary adjudication of the Group 1 owners’
                 claim for breach of the implied covenant

       The trial court ruled that the Group 1 owners could not prevail on their claim for
breach of the implied covenant because language in their purchase sale agreement (PSA)
with Wilshire expressly “warned of mechanic’s liens and, additionally, provided for
[title] insurance.” The court explained that because the PSA “specifically reference[d]
the possibility that mechanics liens may be filed [against the property] . . . the
conveyance [wa]s ‘restrained by express terms contained in such conveyance,’ such that
the implied covenant set forth in [Civil Code section] 1113 is inapplicable.”
       The Group 1 owners argue the court committed two errors in ruling on their claim
for breach of implied covenant against encumbrances. First, they assert the court erred in


                                               31
relying on the PSA, rather than on the deed itself, in determining the terms of the
conveyance. Second, they assert that, even if the court properly considered the PSA, the
agreement did not contain an express provision clarifying that their title was subject to
unrecorded mechanics liens claims.

                      a. Summary of relevant terms in the PSA
       Each Group 1 owner entered into a PSA with Wilshire stating that, once executed
by both parties, the document would “constitute a binding agreement between Buyer and
Seller for the purchase and sale of the hereinafter described real property and shall also
constitute instructions to [the escrow holder].” The agreement further stated that “For the
consideration herein stated, Buyer agrees to purchase and Seller agrees to sell
Condominium Unit [ ] as shown on the Condominium Plan . . . and other real property as
described in the grant deed (“Grant Deed”) attached here to as Exhibit “A” and
incorporated herein by this reference . . .”
       The PSA included a section entitled “Title” that stated, in relevant part: “Buyer
agrees to pay in to Escrow the balance of the Purchase Price prior to the date scheduled
for the Close of Escrow. Seller will hand Escrow Holder a Grant Deed conveying title to
the Property to Buyer, and Buyer and Seller will timely deliver to Escrow Holder all
additional funds and documents required of them . . . to enable Escrow Holder to comply
with these joint escrow instructions and to consummate this transaction. Escrow Holder
is authorized to use and/or deliver all such delivered items when all provisions and
conditions of this escrow have been complied with and Escrow Holder holds in this
Escrow the money and documents called for under these instructions and can obtain a
title company’s standard CTLA Owners Policy of title insurance with a liability limit
equal to the Purchase Price . . . , subject only to . . . : [listing several exceptions to which
the title would be subject].” The exceptions to which the title would be subject included,
in part: the covenants, conditions and restrictions that were to be recorded in connection
with the project; any easements and other matters reserved to the seller in the attached




                                               32
and incorporated grant deed; and non-delinquent real and personal property taxes and
assessments.
       The PSA contained a separate section entitled “Close of Escrow.” The section
stated, in relevant part: “This escrow shall not close, funds shall not be released and title
shall not be conveyed to Buyer until each of the following conditions has been met:
(a)    Any and all blanket encumbrances, as defined in California Business and
Professions Code section 11013, affecting the Property have been released and the
statutory period for recordation of all mechanic’s lien claims has expired, or the Title
Policy shall include an endorsement insuring Buyer and the Association against
unrecorded mechanic’s liens; and [¶] . . . [¶]
(c)    All common facilities and improvement in the Project have been completed, as
evidence by a Notice of Completion (as defined in Civil Code Section 3093) being
recorded covering all the foregoing improvements; and either (i) the statutory period for
recordation of all mechanic’s liens has expired, or (ii) the Buyer and the Association are
provided with policies of title insurance with endorsements against mechanic’s liens; OR
[¶] Buyer’s funds may be released from Escrow after conveyance of title to him, upon
completion of all such common facilities and improvement, but prior to expiration of the
statutory period of mechanic’s lien claims pertinent to said Project if Seller has provided
that each such purchaser of a Unit shall receive a policy of title insurance with provision
guaranteeing the purchaser against any mechanic’s liens affecting the purchaser’s
property that may raise during the applicable statutory mechanic’s lien period . . .”

                     b. The trial court did not err in considering the terms of the PSA
       The Group 1 unit owners first argue the trial court erred by considering the terms
of the PSA when determining whether Wilshire had conveyed title to the property subject
to unrecorded mechanics lien claims.17 The unit owners contend that, under the plain


17    For the purposes of appeal, we will assume the “the inchoate right to assert [a]
mechanics lien” constitutes an encumbrance on property within the meaning of Civil
Code section 1113.

                                              33
language of Civil Code section 1113, the implied covenant against encumbrances may be
restrained only by express terms that “appear in [the] conveyance [instrument] – i.e., the
Grant Deed themselves.”
       In Campbell v. Miller (1928) 205 Cal. 22 (Campbell), the California Supreme
Court considered and rejected a similar argument. In Campbell, the buyer agreed to
purchase real property that was then subject to a lease which was to continue two years
beyond the date of purchase. Although the grant deed made no reference to the lease, the
parties had previously entered into escrow instructions in which the buyer had expressly
agreed to “waive [the] securing lease through escrow.” (Id. at p. 22.) After taking
possession of the property, the buyer filed a complaint alleging the seller had breached
the implied covenant against encumbrances because the grant deed did not reference the
lease. The trial court entered judgment against the buyer, ruling he had taken title to the
premises subject to the terms of the lease.
       The Supreme Court affirmed, explaining that the “the transfer of the property from
[seller] to [buyer] was consummated through [an] escrow [agreement]” that contained
“an express waiver” regarding the lease. (Campbell, supra, 205 Cal. at p. 23.) Although
the Court noted there was considerable evidence the buyer had prior knowledge of the
lease, it “refer[red] particularly to the written escrow instructions, which were signed by
the parties and under which the grant deed to [buyer] was prepared and executed . . . and
contain[ed] an express waiver [regarding the lease].” (Id. at p. 24.)
       The Court rejected the buyer’s argument “that he was entitled to rest upon his
grant deed and the implied covenant therein against encumbrances suffered by the
grantor,” explaining: “Ordinarily this would be so, but in the present instance, by an
agreement in writing under which the deed was drawn and thereafter executed and
delivered, he expressly waived this implied covenant and agreed to accept the title to the
property subject to the lease.” (Campbell, supra, 205 Cal. at p. 25; see also 54 Cal. Jur.
3d Real Estate § 249 [“a purchaser may waive the implied covenant against
encumbrances . . . . in a separate, written instrument such as escrow instructions”]; cf.
Katemis v. Westerlind (1953) 120 Cal.App.2d 537, 542 [“where the terms of an executory

                                              34
agreement for the sale of real property are clarified and elucidated by the provisions
contained in escrow instructions, both instruments are to be considered together in
arriving at the total understanding of the contracting parties and in fixing their correlative
rights and obligations”].)
       As in Campbell, the grant deeds Wilshire delivered to the unit owners were drawn,
executed and delivered under the terms set forth in the PSA. Indeed, the PSAs
specifically included a copy of the grant deeds that would be delivered and recorded at
the close of escrow, and incorporated the deed into the agreement. Under Campbell, the
trial court did not err in considering the terms of the PSA in assessing the validity of the
unit owners’ implied covenant claim.
       The unit owners disagree, asserting that “Campbell does not support [Wilshire’s]”
argument that “the implied covenants of title can be waived by a separate document.”
According to the unit owners, Campbell is inapplicable “because it implicated a clear,
express waiver in the escrow instructions [¶] . . . [¶] In contrast here, neither the PSA nor
the Grand Deeds included a waiver, let alone one as clear and express as that in
Campbell.” This argument, however, fails to explain why Campbell does not support
Wilshire’s argument that the implied covenant can be waived in a separate document,
such as escrow instructions. Regardless of whether the PSA included a “clear and
express” waiver regarding unrecorded mechanics liens (an issue we examine below),
under the holding in Campbell, the court was permitted to consider the agreement in
determining the terms of the parties’ conveyance.18




18      The unit owners also assert Campbell is inapplicable here because “of the long
time gap between the PSAs and the Grant deeds which were executed a year or more
later.” The unit owners have cited no authority suggesting that the amount of time that
passes between the execution of a sales agreement under which a deed is drawn and the
actual recording of the deed has any relevance in determining whether a court may
consider the sales agreement in construing the intended terms of the parties’ conveyance.

                                              35
                     c. The PSA contains express provisions demonstrating that title was
                        taken subject to unrecorded mechanics liens

       The Group 1 owners also argue the court erred in concluding the terms of the PSA
restrained Wilshire’s implied covenant that it would provide title free of any unrecorded
mechanics lien claims.
       “There can be no implied covenant [under section 1113] where the subject matter
is expressly agreed upon by the parties to the contrary.” (Babb, supra, 225 Cal.App.2d at
p. 552.) In this case, the PSA expressly stated that “title shall not be conveyed to Buyer
until” either “the statutory period for recordation of all mechanic’s lien claims has
expired, or the Title Policy shall include an endorsement insuring Buyer . . . against
unrecorded mechanic’s liens.” The PSA includes a similar provision regarding the
common areas of the condominium project, stating that “title shall not be conveyed to the
Buyer” until “All common facilities and improvement in the Project have been
completed, as evidence by a Notice of Completion . . . being recorded covering all the
foregoing improvements; and either (i) the statutory period for recordation of all
mechanic’s liens has expired, or (ii) the Buyer and the Association are provided with
policies of title insurance with endorsements against mechanic’s liens.”
       Thus, each unit owner was expressly informed that title would not be conveyed
until either the statutory period for recording a mechanics lien had expired, or Wilshire
provided a title insurance policy protecting against mechanics liens. It is difficult to
understand what the parties could have meant by this language other than to clarify that if
title was conveyed prior to the expiration of the mechanics lien period, unit owners would
be protected against the possibility of a currently unrecorded mechanics lien claim
through the provision of title insurance.
       The unit owners, however, contend the above provisions did not adequately notify
them of the possibility of unrecorded mechanics lien claims because the provisions did
not appear in the section of the PSA pertaining to “Title,” but rather appeared in a section
entitled “Close of Escrow.” The unit owners argue that that the “Title” section included
seven express exceptions to which title would be subject and did not list unrecorded

                                             36
mechanics liens. The unit owners further contend the “Close of Escrow” portion of the
agreement merely informed the escrow holder when it was permitted to deliver the grant
deed.
        This argument cannot prevail. Regardless of where in the PSA the provisions
regarding mechanics liens appeared, they clearly state that “title shall not be conveyed”
unless the time to file a mechanics lien had expired, or title insurance was provided that
included coverage for mechanics liens. Thus, the unit owners were expressly informed
that, in the event they received title insurance including an endorsement against
mechanics liens, the title they received might be subject to a future mechanics lien claim.

        D. The Unit Owners Have Failed to State a Claim for Equitable Indemnity
        The unit owners argue that the trial court erred in granting summary adjudication
on their claim for equitable indemnity, which alleges that: “[If found] liable to [Webcor]
. . . . [the unit owners] are entitled to be indemnified . . . under the principles of equitable
indemnity by [Wilshire,] . . . either from all the damages or from a percentage based upon
principles of comparative fault. . . .” The trial court ruled that because Webcor had not
filed any tort claim against the unit owners or Wilshire, the unit owners had “no basis to
sue for equitable indemnity.”
        On appeal, the unit owners admit their claim for equitable indemnity is “based
entirely on Wilshire’s contract with Webcor.” They argue, however, that equitable
indemnity is not limited to claims predicated on tort liability, and “includes within its
purview the concept of implied contractual indemnity.” Based on these statements, the
unit owners appear to be arguing that the doctrine of equitable indemnity may be applied
where the basis for liability against the indemnitor is predicated on the indemnitor’s
breach of a contract with a third party.
        Equitable indemnity has two forms: (1) “traditional equitable indemnity,” which
“‘is premised on a joint legal obligation to another for damages’”; and (2) “implied
contractual indemnity,” which is “indemnity implied from a contract not specifically
mentioning indemnity.” (Prince v. Pacific Gas & Electric Co. (2009) 45 Cal.4th 1151,


                                              37
1157-1158 [explaining that “implied contractual indemnity is now viewed simply as “a
form of equitable indemnity”]; see also Jocer Enterprises, Inc. v. Price (2010) 183
Cal.App.4th 559, 573 [“equitable indemnity . . . embraces ‘traditional equitable
indemnity’ and implied contractual indemnity”].) The unit owners have failed to state a
claim for either form of equitable indemnity.
       Traditional equitable indemnity “permit[s] a concurrent tortfeasor to obtain partial
indemnity from other concurrent tortfeasors on a comparative fault basis.” (American
Motorcycle Assn. v. Superior Court (1975) 20 Cal.3d 578, 598.) “The doctrine
applies only among defendants who are jointly and severally liable to the plaintiff.
[Citation.] . . . [Although] joint and several liability in the context of [traditional]
equitable indemnity is fairly expansive[,] . . . . [¶] [o]ne factor is necessary[:] . . . With
limited exception, there must be some basis for tort liability against the proposed
indemnitor. . . . ” (BFGC Architects Planners, Inc. v. Forcum/Mackey Construction
(2004) 119 Cal.App.4th 848, 852.) Thus, a claim for traditional equitable indemnity will
not lie where the “allegations of defendants’ misconduct are based on their alleged breach
of contract.” (Id. at p. 853.) As stated above, in this case, the unit owners admit their
indemnification claim is predicated on liability arising from Wilshire’s alleged breach of
its contract with Webcor.
       The right to implied contractual indemnity is “predicated on the indemnitor’s
breach of contract with the indemnitee.” (Garlock Sealing Technologies, LLC v. NAK
Sealing Technologies Corp. (2007) 148 Cal.App.4th 937, 968 (Garlock).) In contrast to
traditional equitable indemnity, “‘[a]n action for implied contractual indemnity is not a
claim for contribution from a joint tortfeasor; it is not founded upon a tort or upon any
duty which the indemnitor owes to the injured third party. It is grounded upon the
indemnitor’s breach of duty owing to the indemnitee to properly perform its contractual
duties.’ [Citation.]” (West v. Superior Court (1994) 27 Cal.App.4th 1625, 1633.)
       The unit owners’ cross-complaint does not include a claim for implied contractual
indemnity, nor does it include any reference to the doctrine of implied contractual
indemnity. They never referred to the doctrine in their opposition to Wilshire’s motion

                                               38
for summary judgment and they did not mention it at the motion hearing. “‘“[I]t is
fundamental that a reviewing court will ordinarily not consider claims made for the first
time on appeal which could have been but were not presented to the trial court.” . . .
“Generally, issues raised for the first time on appeal which were not litigated in the trial
court are waived. [Citations.]”’ [Citation.]” (Bank of America, N.A. v. Roberts (2013)
217 Cal.App.4th 1386, 1399.) Because the unit owners did not raise a claim for implied
contractual indemnity in the trial court, they have forfeited their right to assert the claim
on appeal.
       Even if the unit owners had not forfeited the claim, they have not identified any
conduct on behalf of Wilshire that would support a claim for implied contractual
indemnity. As explained above, implied contractual indemnity is “predicated on the
indemnitor’s breach of contract with the indemnitee.” (Garlock, supra, 148 Cal.App.4th
at p. 968.) The unit owners have not identified any breach of contract that Wilshire
committed against them. Instead, their indemnity claim asserts that “if [they are found to
be] liable to Webcor, then [Wilshire] should account for that liability because it is based
entirely on Wilshire’s contract with Webcor.” Wilshire’s alleged breach of a contract
with a third party does not support a claim for implied contractual indemnity.19



19      The theory of recovery set forth by the unit owners, which effectively seeks
repayment of a debt for which Wilshire was allegedly responsible, appears to sound in
equitable subrogation. (See Caito v. United California Bank (1978) 20 Cal.3d 694, 704
[“‘[T]he 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’”]; see also Roylance v. Doelger (1962) 57 Cal.2d 255, 257-258,
262 [insurer permitted to file cross-complaint for declaratory relief seeking a
determination it would have subrogation rights against third parties in the event it was
found liable on original complaint].) The unit owners did allege a claim for equitable
subrogation in their cross-complaint, which the trial court dismissed on summary
adjudication. The unit owners, however, have not addressed their subrogation claim in
their appeal briefs. Accordingly, the claim has been abandoned. (See Ante, fn. 5; Wall
Street, supra, 164 Cal.App.4th at p. 1177 [“Generally, appellants forfeit or abandon
contentions of error regarding the dismissal of a cause of action by failing to raise or

                                              39
                                     DISPOSITION

       The judgments in favor of the Cross-Defendants against the Group 2 unit owners
and the Group 3 unit owners are affirmed. The judgment in favor of Cross-Defendants
against the Group 1 owners is reversed and the matter remanded for further proceedings
consistent with this opinion. The parties shall bear their own costs on appeal.




                                                 ZELON, J.
We concur:




       PERLUSS, P. J.




       SEGAL, J.




address the contentions in their briefs on appeal. [Citations.] Thus, failure to address
summary adjudication of a claim on appeal constitutes abandonment of that claim”].)

        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

                                            40
