Filed 11/3/22 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE TRAVELERS INDEMNITY CO.,

Plaintiff and Appellant,

v.

RICARDO LARA, as Insurance Commissioner, etc.

,

Defendant and Respondent ;

ADIR INTERNATIONAL, LLC,

Real Party in Interest

. B306897

(Los Angeles County Super. Ct. No. 19STCP0087 7 )

APPEAL from a judgment and postjudgment order of the Superior Court of Los Angeles County , James C. Chalfant, Judge.
Affirmed. Gordon & Reese, Asim K. Desai, Margaret M. Drugan; Gibson, Dunn & Crutcher, Blane H. Evanson and Samuel Eckman for Plaintiff and Appellant. Rob Bonta, Attorney General, Tamar Pachter, Senior
Assi stant Attorney General, Lisa W. Chao, Supervising Deputy2

Attorney General, and John C. Keith, Deputy Attorney General, for Defendant and Respondent

. Klapach & Klapach and Joseph S. Klapach for Real Party
in Interest.

_________________ The Travelers I ndemnity C ompany appeals the judgment
entered after the superior court denied Travelers ’ petition for a
writ of administrative mandate challenging the Insurance Commissioner’s decision that certain agreements relating to workers’ compensatio n insurance policies issued to Adir International, LLC were unenforceable. Travelers contends Adir’s lawsuit in the trial court , which included a request for a declaratory judgment the agreements were void, barred the
Commissioner , under the doctrine of exclusive concurrent jurisdiction, from exercising jurisdiction while that lawsuit was pending. Travelers also appeals the postjudgment order granting Adir’s motion for attorney fees , contending attorney fees were not
authorized

. We affirm the order and judgment denying Travelers’ s petition. The exclusive concurrent jurisdiction doctrine does not apply in this context to proceedings pending before the trial court and an administrative agency; and, in any event, it was
reasonable and consistent with the primary jurisdiction doctrine for the trial court to defer to the Commissioner’s determination of the validity of the agreement at issue. In addition, because Adir’s administrative claim fell within the agreement’s attorney fee pr ovision, we affirm the postjudgment order awarding Adir attorney fees.3 FACTUAL AND PROCEDURAL BACKGROUND

1. The Workers’ Compensation Insurance Policies Adir operates the Curacao chain of retai l department

stores. B etween 2004 to 201 1 Travelers issued Adir annual guaranteed cost workers’ compensation insurance policies

. Each policy was filed with the Workers Compensation Rating Bureau (WCRB) pursuant to Insurance Code section 11658 1 and specified
the rates to be charged to Adir. In addition, e a c h pol icy included a general purpose endorsement , stating “the insured and the insurer have mutually agreed to a large risk alternative rating option retrospective rating plan.”
Unlike the polic ies , which contain ed a fixed premium for the policy period, the a lternative rating option retrospective rating plan provided for an adjust ment of the premium after the policy period ended based on losses suffered during the policy period

. The endorsement did not set forth the method for

1 Insurance Code s ection 11658 provides in part , “ (a) A workers ’ compensation insurance policy or endorsement shall not be issued by an insurer to any person in this state unless the insurer files a copy of the form or endorsement with the [ WCRB] pursuant to subdivision (e) of Section 11750.3 and 30 days have expired from the date the form or endorsement is received by the commissioner from the rating organization without notice from the commissioner, unless the commissioner gives written approval of the form or endorsement prior to that time. [ ¶] (b) If the commissioner notifies the insurer that the filed form or endorsement does not comply with the requirements of law, specifying the reasons for his or her opinion, it is unlawful for the insurer to issue any policy or endorsement in that form. ” Undesignated statutory references are to the Insurance Code except in part 4 of the Discussion

.4

premium calculation, definitions, terms, rates or the parties’ obligations under the alternative rating option. Those provisions

were contained in a separate side agreement that also included an arbitration provision. U nlike the guaranteed cost policies, th e side agreements were not filed with the WCRB for review by the
Commissioner. In 2012 Adir did not renew its workers’ compensation insurance with Travelers and refused to pay Travelers’ post

policy period adjusted premium s as required by the side

agr eements.
2. Travelers’ Arbitration Request; Adir’s Lawsuit After negotiations to recover premiums Adir owned under the large risk alternative rating plan failed

, Travelers in 2014
served Adir with an arbitration demand

. In response Adir filed an action in Los Angeles County Superior Court ( L

. A

. S .C.
No. BC575513 ) against Travelers and its insurance broker

, Grosslight Insurance, asserting claims for breach of contract, tortious breach of the implied covenant of good faith and fair dealing and fraud

, primarily alleging Travelers had engaged in improper claims

- handling and settlement practices that increased Travelers’ costs of administering claims and , in turn, the amount of Adir’s retrospective premiums

. Adir ’s complaint
also included a claim for declaratory relief

, seeking a judicial
de termination the side agreements, in particular the arbitration provision, were void because they had not been filed with the
WCRB as required by sections 11658 and 11735. 2

2 Section 11735 provides in part, “ (a) Every insurer shall file with the commissioner all rates and supple mentary rate information that are to be used in this state. . . . [¶] (b) Rates5 Shortly after filing the lawsuit Adir asked the trial court to declare the arbitration agreement unenforceable. 3 The court denied the motion, ruling the enforceability of the arbitration provision in the side agreement s was a matter for the arbitrator

. The court stayed Adir’s action and order ed t he matter to arbitration. What happened next in both the arbitration proceeding and
the trial court is detail ed in our nonpublished opinion Adir
International

, LLC v. The Travelers Indemnity Co. (Dec. 30, 2020, B293415)

. In brief

, the arbitration panel found the arbitration provision was severable from the side agreement, did not constitute an “ endorsement ” as defined in the Insurance Code
and did not need to be filed with the WCRB to be enforceable. Following a hearing t he arbitration panel also found the side agreements did not violate section s 11658 or 117 35

. However,
b efore the arbitration panel could issue its final award , the trial

court in June 2018 agreed to hear Adir’s renewed motion to declare the arbitration agreement unenforceable . Citing a then

recent court of appeal decision ( Nielsen Contracting, Inc. v. Applied Underwriters, Inc. (2018) 22 Cal.App.5th 1096 ) and a precedential ruling from the Commissioner ( Matter of Shasta Linen Supply, Inc. (June 20, 2016) Cal. Insurance Commissioner,
No. AHB

- WCA

- 14

- 31) ( Matter of Shasta Linen ) ) that arbitration agreements must be filed with the WCRB to comply with

filed pursuant to this section shall be filed in the form and manner prescribed by the commissioner. ”

3 We refer to the “trial court” when discussing Adir’s lawsuit to distin guish it from the “superior court,” which heard Travelers’ petition for writ of administrative mandate.6

section s 11 658 and 11735, the court reconsidered its earlier ruling and found the arbitration agreement void and
unenforceable

. We affirmed th e trial court’s order reconsidering
its prior ruling and denying arbitration of Adir’s la wsuit. ( Adir International, supra, B293415 [ p p

. 18

- 20 ] .)
3. Adir’s Administrative Complaint
While the arbitration was pending, Adir on February 17,
2016 filed with Travelers a request for action under the policy’s dispute resolution provision , which allow ed the insured to challenge Travelers’ interpretation and application of specified aspects of the policy and, if dissat i sfied with Travelers’ resolution, to seek review before the Department of Insurance.
Travelers denied Adir’s complaint and reques t for action.
Adir on April 22, 2016 filed an administrative appeal (and on June 2, 2016 a supplemental appeal) with the Department of
Insurance pursuant to section 11737, subdivision (f ) , which authorizes a person aggrieved by application of a rating sy stem to appeal to the Commissioner. 4 Adir contended the side agreements constituted an “unfiled rating plan ” in violation of
sections 16358 and 11735. According to Adir, by relying on the

4 Section 11 7 37, subdivision (f), provides, “Every insurer or rating organization shall provide within this state a reasonable means whereby any perso n aggrieved by the application of its filings may be heard by the insurer or rating organization on written request to review the manner in which the rating system has been ap plied in connection with the insurance afforded or offered.” If the insurer or r ating organization rejects the grievance, the party aggrieved “may appeal . . . to the commissioner

, ” who, after holding a noticed hearing, “may affirm, modify, or reverse” that action by the insurer.7

invalid side agreement to calculate premiums, Travelers had misap plied its rating system to Adir

. In response Travelers petitioned for a writ of prohibition in
the pending trial court action requesting the court stay the administrative hearing while the lawsuit was pending. The court
denied the petition.
At the administrative hearing Travelers , relying on the doctrine of exclusive concurrent jurisdiction, argued the Commission er lacked jurisdiction to consider the merits of Adir’s administrative complaint under section 11737, subdivision (f),
while the action in the trial court was still pending . The Commissioner rejected that argument, conclud ing the Department of Insurance h ad “ exclusive jurisdiction [ pursuant to section 11737 , subdivision (f) ] , to adjudicate [Adir]’s claim that Travelers’ unfiled S ide A greements misapplied Travelers’ filed rating plan by violating Insurance Code sections 11658 and
11735
, as well as Californi a Code of Regulations, title 10,

section 2268

. ” 5 On the merits the Commissioner ruled Travelers’ side agreements were void because they had not been filed with
the WCRB as required and constituted a misapplication of Travelers’ filed rating plan in violation of sections 11658 and
11735.

5 California Code of Regulations , title 10, section 2268, provides, “(a) An insurer shall not us e any policy form,

e ndorsement form, or ancillary agreement unless attached to and made a part of the policy. . . . [¶] (b) An insurer shall not use a policy form, endorsement form, or ancillary agreement except those filed and approved by the Commissioner in accordance with these regulations.”8 4. Travelers’ Petition for Writ of Administrative Mandate Travelers filed a petition for a writ of administrative mandate challenging the Commissioner’s decision. The superior
court denied Travelers’ petition

, rej ecting Travelers’ contention
the Commissioner lacked jurisdiction to consider Adir’s administrative complaint while the trial court action, which included a claim for declaratory relief invalidating the side agreements
, was still pending

. Like the Commiss ioner, t he court also rejected Travelers’ alternative jurisdictional argument that Adir’s administrative complaint did not challenge a “rating system” and thus did not fall within the jurisdiction of the Commissioner under section 11737, subdivision (f).
5. The Court’s Postjudgment Fee Order Following entry of judgment denying Travelers’ petition for writ of administrative mandate, Adir moved pursuant to an attorney fee provision in the side agreements and Civil Code
section 1717 to recover its attorney fees as the prevailing party in
the action

. The court awarded Adir $ 321,338.54 in reasonable attorney fees incurred in the administrative hearing and this
administrative mandamus action and rejected Adir’s requests for additional attorney fees as the prevailing party on its declaratory relief claim in the trial court action

. The court ruled any prevailing party determination in the trial court action was premature and not within the court’s jurisdictional purview in any event

. (Adir does not con test the propriety of that order

. ) Travelers filed notices of appeal from both the judgment and the postjudgment attorney fee order. We ordered the appeals
consolidated.9 DISCUSSION
1. Standard of Review
Code of Civil Procedure section 1094.5 specifies the procedure for review of administrative orders and decisions. Subdivision (b) of that section provides the superior court’s inquiry in administrative mandamus “shall extend to the questions whether the respondent [administrative entity] has proceeded witho ut, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion,” which is established when the “the respondent has not proceeded in the manner required by law, the order or decision is not suppo rted by the findings, or the findings are not supported by the evidence.” On appeal from the judgment on a petition for writ of
administrative mandate in a case , as here, not involving fundamental vested rights

, 6 we review the agency ’ s findings, not
the superior court’s decision, for substantial evidence ( Sky Posters Inc. v. Department of Transportation (2022) 78 Cal.App.5th 644, 660; Doe v. University of Southern California (201 8 )
28 Cal.App.5th 26, 34 ) and the agency’s legal determinations
de novo ( Sky Posters, at p. 660; Schmid v. C ity and County of
San Francisco (2021) 60 Cal.App.5th 470, 485 ; Valero Refining
Co.

— California v. Bay Area Air Quality Management Dist

. Hearing Bd

. (2020) 49 Cal.App.5th 618, 637 ). In conducting o ur de novo review, we accord “great weight and respect” to an administrative construction of a controlling statute. ( Boling v. Public Employment Relations Bd

. (2018) 5 Cal.5th 898, 911
,

6 Both Travelers and Adir acknowledge the issue presented does not involve a fundamental vested right.10

[when an agency is interpreting a controlling statute or regulation, “[t]he appropriate mode of review . . . is one in which the judiciary, although taking ultimate responsibility for the construction of the statute, accords great weight and respect to the administrative construction,” cleaned up]; American Coatings
Assn. v . South Coast Air Quality Management Dist. (2012)
54 Cal.4th 446, 461

- 462 [same] ; see McHugh v. Protective Life
Ins. Co . (2021) 12 Cal.5th 213, 227 [“[w]e also extend some
deference to [ the Department of Insurance]’s interpretations of
the Insurance Code, to the extent that those interpretations are embodied in quasi

- legislative regulations or constitute long

standing, consistent, and contemporaneous interpretations”] .)

2. The D octrine of E

xclusive C

oncurrent Ju risdiction D oes N ot A pply ; Even If the Court Erred, Travelers Has Not Demonstrated Any Prejudice

Travelers contends the Commissioner acted in excess of his jurisdiction by deciding Adir’s administrative appeal while Adir’s
trial court action was pending. Citing the rule of exclu sive

concurrent jurisdiction applicable between two judicial tribunals (see Browne v. Superior Court (1940) 16 Cal.2d 593, 597 [“where several courts have concurrent jurisdiction of a certain type of proceeding, the first one to assume and exercise such ju risdiction in a particular case acquires an exclusive jurisdiction”]; Franklin & Franklin v. 7

- Eleven Owners for Fair Franchising (2000)
85 Cal.App.4th 1168, 1175 [“where two (or more) courts possess concurrent subject matter jurisdiction over a cause, the court that first asserts jurisdiction assumes it to the exclusion of all others, thus rendering ‘concurrent’ jurisdiction ‘exclusive’ with the first court”]), Travelers contends the trial court, the first tribunal to assume jurisdiction over the validity of the side agreements when11

Adir filed its lawsuit seeking a declaration the y were void

, had

concurrent , and thus priority

, jurisdiction to consider the matter; and the Commissioner erred in concluding he had “exclusive jurisdiction” under section 11737, subdivision (f). Travelers concedes on appeal , as it did in the arbitration

, 7 the Commissioner has exclusive jurisdiction to consider “ a n appropriate ” claim pursuant to section 11737, subdivision (f),
that an insurer has misapplied its rating system to an insured. However, Travelers argues Adir’s administrative complaint challenged the legal validity of a rating system

, not its application to Adir

. It is over that threshold issue

— whether the side agreements containing the rating system Travelers applied
to Adir c onstituted unfiled endorsements in violation of
section s 11658 and 11735 and the governing regulation

— that the
trial court and the Commissioner enjoyed concurrent jurisdiction

, Travelers argues . And, Travelers continues, the trial court ’s concurrent jurisdiction over that threshold issue became exclusive when, prior to the administrative appeal, it exercised its jurisd iction over Adir’s lawsuit and ordered the matter to
arbitration.
A s a preliminary matter, th ere is some question whether by seeking arbitration of the claims alleged in Adir’s lawsuit,

7 During the arbitration Travelers told the arbitrators Adir had begun administrative proceedings under section 11737, subdivision (f). When the arbitration panel suggested Travelers could not contract out of Adir’s right to pursue statutorily authorized administrative proceedings, Travelers a cknowledged the Commissioner had jurisdiction to consider Adir’s section 11737, subdivision (f), claim: “ [Adir’s c] ounsel is correct that Travelers cannot avoid and does not seek to avoid the regulatory process of California.”12

including for declaratory relief

, Travelers forfeited any argument
the trial court wa s the proper tribunal to consider the question of the validity of the agreements

. Had the arbitration proceeded to a final award, the court’s jurisdiction would have been limited to vacating or confirming the award without deciding the legal question of the validity of the side agreements. 8

There is also some doubt whether the rule of exclusive

concurrent jurisdiction applies her e

. The “ judge

- made rule ” of exclusive concurrent jurisdiction “is based upon the pub lic policies of avoiding conflicts that might arise between courts if they were free to make contradictory decisions or awards relating to the same controversy and preventing vexatious litigation and multiplicity of suits. [Citation.] The rule is ‘a judi cial rule of priority or preference and is not jurisdictional in the traditional sense of the word,’ in that it ‘does not divest a court, which otherwise had jurisdiction of an action, of jurisdiction. ’ [Citation.]
Because it is a policy rule, application of the ru l e depends upon the balancing of countervailing policies.” ( Shaw v. Superior

8 Once a petition to compel arbitration is granted and the lawsuit stayed, “ ‘the action at law sits in the twilight zone of abatement with the trial court retaining merely vestigial jurisdiction over matters submitted to arbitration.’ [Citation.] During that time, under its ‘vestigial’ jurisdiction, a court may: appoint arbitrators if the method selected by the parties fails (§ 1281.6); grant a provisional remedy ‘but only upon the ground that the award to which an applicant may be entitled may be rendered ineffectual without provisional relief’ (§ 1281.8, subd. (b)); and confirm, correct or vacate the arbitr ation award (§ 1285).” ( Titan/Value Equities Group, Inc. v. Superior Court (1994) 29 Cal.App.4th 482, 487

- 488; accord, Optimal Markets, Inc. v. Salant (2013) 221 Cal.App.4th 912, 923

- 924 .)13

Court (2022) 78 Cal.App.5th 24 5 , 255

- 256 ; accord, BBBB Bonding Corp. v. Caldwell (2021) 73 Cal.App.5th 349, 374.) Here, the two tribunals at issue are not two courts of general jurisdiction but a court and a state agency

. Relying on Scott v. Industrial Accident Commission (1956) 46 Cal.2d 76 ( Scott ) and other workers’ compensation cases, Travelers
contends the doctrine is equally applicable in this context

. In Scott the plaintiff filed a lawsuit for personal injuries

. While that lawsuit was pending

, the plaintiff also filed a claim before the Industrial Accident Commission (the precursor to the Workers’ Compensation Appeals Board) for the same injury

. The defendant sought a writ of prohibition to “suspend” the administrative action until the superior court action was final. At issue in both actions was whether the plaintiff had suffered
the injuries in the course and scope of his employment. If he did, workers’ compensation provided the exclusive remedy

, and the
trial court lacked jurisdiction over the claim

. I f not, the court had jurisdiction

, and the Industrial Accident Commission did not. ( Scott, supra

, 46 Cal.2d at p p

. 80

- 81.) The question presented to the Scott Court was which tribunal had priority to determine that
threshold jurisdictional issue.
The Supreme Court began by recognizing

— as Travelers
does not

— the question was not one of exclusive concurrent jurisdictio n because it involved a court of general jurisdiction and an agency of limited jurisdiction, with the jurisdiction of the

two tribunals exclusive of each other. ( See Scott, supra

, 46 Cal.2d at p. 8 1 [ “ [ t ] he issue is not one of simultaneous exercise of gen eral concurrent jurisdiction; it is rather, the right of proceeding simultaneously in two tribunals, the jurisdiction of which is essentially exclusive of the other

, but each of which has14

the power to make a determination of jurisdiction which, when final, will be conclusive upon the other”].) Nonetheless, i n determining which tribunal, the trial court or the Industrial Accident Commission, had “jurisdiction to determine jurisdiction,” the Court held it made most sense to apply “the general rule long recognized as governing tribunals whose jurisdiction is generally concurrent

. ” ( Id. at p. 89 [the first court to assume jurisdiction has priority jurisdiction ] ; accord, Hollingsworth v. Superior Court (2019) 37 Cal.App.5th 927, 929

- 930 [“[t]he Supreme Cou rt has made clear [in Scott ] that when a civil action and a workers’ compensation proceeding are concurrently pending, ‘the tribunal first assuming jurisdiction’ should determine exclusive jurisdiction”].)
Travelers asserts there is no reason to limit Sco tt’s ruling to the workers’ compensation context and the peculiar circumstance that the only concurrent jurisdiction shared by the trial court and the agency is the authority to determine which tribunal has exclusive jurisdiction over the controversy . Sin ce the trial court and the Commissioner enjoyed concurrent jurisdiction over the
threshold issue of the validity of the side agreement s , Travelers contends, the trial court should have priority to consider that
issue

. In seeking an alternative forum following an adverse
rulin g in the trial c ourt (the order granting Travelers’ petition for
arbitration )

, Travelers continues

, Adir engaged in precisely t he type of forum shopping the doctrine of exclusive concurrent jurisdiction is intend ed to forestall. Travelers offers no authority
for this extension of the Scott analysis to other situations involving actions pending before an agency and the trial court

. Moreover, Travelers acknowledge d the Commissioner ha d exclusive jurisdiction to c onsider a “proper” section 11737,15

subdivision (f), claim

. 9 If the trial court lacked jurisdiction to consider the section 11737, subdivision (f), claim, it was not forum shopping for Adir to bring that claim before the
Commissioner

. More fundamentally, e ven if Travelers were correct that
the trial court could ha ve required the Commissioner to defer further action while it considered the validity of the side agreements as part of Adir’s lawsuit

, nothing precluded the court from invoking the doctrine of primary jurisdiction to allow the
Commissioner to decide the v alidity of the side agreements in the
first instance

. (See Farmers Ins. Exchange v. Superior Court (1992) 2 Cal.4th 377, 390

- 391 ( Farmers ) [the concept of primary jurisdiction applies when both the court and a state agency have concurrent jurisdiction; pr imary jurisdiction applies “where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views,” italics and internal quotation marks omitted]; see Villanueva v. Fidelity National Title Co. (2021) 11 Cal.5th 104, 126, fn. 12 [under the doctrine of primary jurisdiction, “an initial suit in court is permitted, although the trial court may thereafter choose to stay the action and solicit the agency’s views”]; Jonathan Neil &
Assoc

., Inc. v. Jones (2004) 33 Cal.4th 917, 931

- 932 [same].)

9 Travelers’ argument in the alternative that the Commissioner la cked jurisdiction to consider any aspect of Adir’s administrative complaint is addressed in section 3.16 “[T] he primary jurisdiction doctrine advances two related policies: it enhances court decisionmaking and efficiency by allowing courts to take advantage of administrative expertise, and it helps assure unif orm application of regulatory laws. [Citations.] [¶] No rigid formula exists for applying the primary jurisdiction doctrine . [Citation.] Instead, resolution generally hinges on a court ’ s determination of the extent to which the policies noted above are implicated in a given case. [Citation.] This discretionary approach leaves courts with considerable flexibility to avoid application of the doctrine in appropriate situations, as required by the interests of justice. ” ( Farmers,

supra , 2 Cal.4th at pp. 391

- 392, fns. omitted; see id. at p. 397 [“questions involving insurance rate making” pose issues involving agency expertise; “[i]t is readily apparent that a court would benefit immensely, and uniformity of decisions would be greatly enhanced, by having a n expert administrative analysis available before attempting to grapple with such a potentially
broad

- ranging and technical question of insurance law”].)
Travelers acknowledges the trial court may well have had
discretion under the doctrine of primary j urisdiction to stay the contract action pending the Commissioner’s ruling on the
section 11737, subdivision (f), claim , and defer to the
Commissioner the threshold question whether the side agreements were enforceable ; but that decision

, Travelers argues, belonged to the trial court in the first instance . The trial court presiding over Adir’s lawsuit never made that decision

, nor should it have, Travelers asserts, because no particular expertise

was needed to determine whether the governing statutes required the side agreements to be filed with the WCRB to be valid and enforceable. (Cf. Farmers, supra, 2 Cal.4th at p. 396.)17 Adir responds th at
, in denying Travelers’ petition for a writ of prohibition to stay the administrative action while the action
in the trial court w as pending

, the trial court effectively deferred to the expertise of the Commissioner to decide the threshold question whether the side agreements needed to be filed with the
WCRB

. W hether the trial court impliedly invoked the primary jurisdiction doctrine when it denied Travelers’ request for a writ of prohibition is far from clear

. Significantly, n either Travelers’ petition for a writ of prohibition n or the trial court’s order denying th e petition is included in the record on appeal. D uring the administrative mandamus action, Travelers attributed the
trial court’s denial of its petition for a writ of prohibition to a procedural defect

— the petition was not verified

— an explanation
the superior court in the mandamus action observed had been offered “without citation to record evidence

. ” Th e absence of a clear record supports a ruling against Travelers on the point. ( See Jameson v. Desta (2018) 5 Cal.5th 594, 609 [“ [ the appellant ] has the burden of providing an adequate record [ ; f]ailure to provide an adequate record on an issue requires that the issue be resolved against [the appellant] ” ].) Moreover, contrary to Travelers’ argument, it would have been quite reasonable for the tr ial court to have intended to defer
to the Commissioner’s determination of the validity of Travelers’
side agreements and, for that reason, to have denied the petition for writ of prohibition . Th e Commissioner’s precedential decision affected all Traveler s policy holders with unfiled side agreements

, creating the very uniformity of decision for Travelers’ insureds
that the primary jurisdiction doctrine is intended to ensure. ( See Jonathan Neil & Assoc., Inc. v. Jones

, supra, 33 Cal.4th at18

pp. 932

- 933 [“‘c onsiderations of judicial economy, and concerns for uniformity in application of the complex insurance regulations here involved, strongly militate in favor of a stay to await action by the Insurance Commissioner in the present case’”]; Farmers,

supra, 2 C al.4th at p. 396.) Finally, e ven under Travelers’ own theory of exclusive concurrent jurisdiction, error by the superior court is reversible only where the error results in a miscarriage of justice or prejudice to the party asserting the rule. ( Cal. Const., art. VI, § 13 ; People ex rel. Garamendi v. American Autoplan, Inc. (1993)
20 Cal.App.4th 760, 772 ( Garamendi ) .) As the Gar amendi court characterized the question when addressing the effect of the court’s alleged error in its application of the doctrine of exclusive concurrent jurisdiction, “‘ Is it too late to lock the stable now that the horse has been stolen?’ ” ( Garamendi, at p. 772 .) “ ‘ [ What ] purpose would be served by reversing the judgment entered in this case and remanding the case so that the litigation can proceed in an orderly manner with priority in the [ court which had priority jurisdiction[?] ] If there are no errors in this record, and the evidence compels the result which has been obtained, such a reversal would appear frivolous.’” ( Id. at pp. 772

- 773.)
Travelers has not identified, let alone demonstrated

, any prejudice from the Commissioner’s exercise of his jurisdiction to consider Adir’s administrative claim

. To the contrary, Travelers
concedes , as it did in the arbitration proceeding, the Commissioner has exclusive jurisdiction over a “proper”
section 11737 claim and asserts Adir may still bring its cl aim before the Commissioner after resolution of the t r ial court action, at which time the court’s determination, under principles of issue preclusion, would govern the issue of the validity of the side19

agreements. In essence, Travelers argues prejudice ex ists
because the court would have decided the issue differently, not because of any identified unfairness in the administrative proceedings

. Quite a part from whether our holding in Adir
International

, LLC v. The Travelers Indemnity Co., supra , B293415 , and the application of the law of the case doctrine effectively foreclosed any possibility that Travelers could prevail
on that issue in the trial court, the potential for a different outcome, alone, is not prejudic e given the nature of the error
asserted here

. ( See Garamendi

, supra , 20 Cal.App.4th at p. 775 .)

3. Travelers’ Argument in the A lternative the Commissioner Lacked J urisdiction T o C onsider Adir’s Section 11737 Claim At All Is Also W ithout M erit

Travelers argues in the alternative that the Commissioner did not have jurisdiction at all , concurrent or otherwise, to decide Adir’s administrative claim under section 11737, subdivision (f)

. According to this argument, Adir’s administrative complaint , at its heart, is a dispute over the legal validity of a contract, not the particular application of Travelers ’ rating system

, and thus
outside both the purpose and jurisdictional purview of
section 11737, subdivision (f). To reinforce this point, Travelers emphasizes that subdivision (a) of section 11737 authorizes the Commissioner to “dis ap prove a rate if the insurer fails to comply with the filing requirements under Section 11735.” In other words, Travelers argues, its failure to comply with the filing requirements may result in an enforcement action by the Commissioner , but not an administrative claim by the insured

. As t he Commissioner observed when he rejected this argument, Adir’s complaint specifically alleged Travelers was not using the ra ting system on file with the WCRB but a wholly20

separate rating system that had not been approved , resulting in a misapplication of the rating system to Adir. The Commissioner found such an argument fell squarely within the jurisdiction of the Department o f Insurance under section 11737, subdivision (f),

as the Commissioner had previously concluded in his precedential decision Matter of Shasta Linen

. Subdivision (a) of
section 11737 does not undermine that analysis. To the contrary, as the Commissioner ’s decision explains , subdivision s (a) through (e) reflect the Legislature’s decision to vest the Commissioner with the authority to bring an enforcement action

. Subdivision (f), in contrast, affords an insured aggrieved by the misapplication of the insured’ s rating system the ability to appeal that decision to the Commissioner, who acts in that capacity not as an enforcer, but as an adjudicator of the claim. Nothing in section 11737, subdivision (a), supports Travelers’ dubious (and in light of its statements at the arbitration, seemingly disingenuous) assertions the Commissioner had no authority to
hear Adir’s administrative claim

. 4. The Court Did Not Err in Granting in Part Adir’s Postjudgment Motion for Attorney Fees The side agreements that Adir challenged in the administrative hearing, and which the Commissioner ruled were not enforceable, containe d an attorney fee clause that provided, “Within five (5) days of our demand, you shall reimburse us for any and all costs and expenses, including, but not limited to, attorneys’ fees incurred by us in connection with the collection or enforcement of any of your Obligations to us.” “Obligation” is
defined in the side agreements as “any indebtedness or liability of any kind owed by [ Adir ] to [ Travelers ] .”21 Although t he agreement by its terms limits recovery of attorney fees to Travelers

, Civil Code section 1717 (section 1717)

, when applicable, makes a fee provision reciprocal: “ (a) In any action on a contract, where the contract specifically provides that attorney ’ s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney ’ s fees in addition to other c osts. ” This reciprocal
mandate was adopted by the Legislature to “ ‘ e stablish mutuality of remedy where [a] contractual provision makes recovery of attorney’s fees available for one party,

. . . and to prevent oppressive use of one

- sided attorney ’s fee s provisions. ’ ” ( Tract 19051 Homeowners Assn. v. Kemp (2015) 60 Cal.4th 1135, 1146; accord, Eden Township Healthcare Dist. v. Eden Medical Center (2013) 220 Cal.App.4th 418, 429 ( Eden Township ) .)
T he court ruled Adir , as the prevailing party in the administrative mandamus action, was entitled to its reasonable attorney fees in curred in th is ac tion , including at the administrative hearing

. Travelers contends attorney fee s w ere beyond the scope of the side agreements and, in any event, were not authorized by section 1717 because Adir , whose lawsuit is still pending in the trial court, is not the prevailing party in an
action “on a contract

, ” and neither the administrative mandate hearing nor the administrative hearing before the Department of
Insurance was an “action” within the meaning of section 1717

. None of these arguments has merit.22 a. The attorney fee order was within the scope of the attorney fee authorization in the side agreement

“ ‘ B efore section 1717 comes into play, it is necessary to determine whether the parties entered an agreement for the payment of attorney fees and

, if so, the scope of the attorney fee agreement

. ’ ” ( Mountain Air Enterprises, LLC v. Sundowner Towers, LLC (2017) 3 Cal.5th 744, 752 ( Mountain Air ) ; accord, Santisas v. Goodin (1998) 17 Cal.4th 599, 608.) In determining
the scope of an attorney fee provision, the rules of contract interpretation apply: We interpret the words of the contract in
their “ ‘ ordinary and popular sense, ’ unless ‘ used by the parties in a technical sense or a special meaning is given to them by

usage

. ’ ” ( Mountain Air

, at p. 752; see Civ. Code

, § § 16 38, 1644, 1647.) If the action is outside the scope of the attorney fee provision, that is the end of the matter; section 1717 does not apply. ( Mountain Air

, at p. 752.) Relying on Mountain Air, supra, 3 Cal.5th 7 44
, Travelers contends the scope of the attorney fee provision in the side agreements is expressly limited to the “enforcement of Adir’s obligations to Travelers .” B ecause the administrative proceeding
Adi r initiated was no t an action by Travelers to enforce Adir’s obligations under the side agreements, Travelers argues,
Travelers could not have recovered its attorney fees had it prevailed on Adir’s administrative claim

, and neither can Adir

. In Mountain Air, supra, 3 Cal.5th 7 44 the seller brought an action against prospective purchaser s for breach of a repurchase agreement . The prospective purchasers asserted in defense that a subsequent option agreement had created a novation of the
initial re purchase agreement, granting them the right, but not the obligation, to purchase the property. The prospective23

purchasers prevailed at trial and moved to recover their attorney fees based on a provision in the option agreement that authorized attorney fee s and costs to the prevailing party in any legal action or proceeding “ ‘ brought for the enforcement of this Agreement or because of an alleged dispute, breach, default, or misrepresentation in connection with any provision of this Agreement

. ’ ” ( Id. at p. 752 , italics omitted .) At issue was
whether the prospective purchasers’ affirmative defens e to the enforcement of the repurchase agreement

— that a separate option agreement had created a novation of the repurchase agreement

— constituted an action or proc eeding “brought” to enforce the option agreement

. The sellers argued , and the Court agreed, the assertion of the option contract as a defense in an action to enforce a separate contract was not synonymous with “ ‘ bringing

an “ action ” or “ proceeding ”’ ” to enforce the option agreement

. (See id. at p p . 753 , 755

- 756.) 10 According to Travelers, Adir’s administrative claim that the side agreements were not enforceable was akin to the affirmative
defense the prospective purchasers asserted in Mountain Air. That is, Travelers did not bring an enforcement action. (Had it done so, and lost, Travelers admits, it would be responsible for

10 The Mountain Air Court held , however, th e sellers did bring the action because of an alleged dispute in connection with the repurchase agreement, an alternative basis for attorney fees in the option agreement. Because the option agreement was properly construed together with the repurchase agreement as one agreement , the Court held the sellers would have been entitled to their attorney fees had they prevailed . ( Mountain Air,

supra , 3 Cal.5th at pp. 759

- 760.)24

attorney fees

. ) Rather, Adir raised an affirmative claim that the side agreements were not enforceable.
Trav elers’ reliance on Mountain Air is misplaced. The
Mountain Air Court held an affirmative defense that relied on a n option contract distinct from the repurchase agreement the
sellers had sought to enforce in the action was not, in itself, an

“ action or proceeding” to enforce the option contract. That is a very different matter from what occurred here. The language of
the side agreement s authorized attorney fees in connection with Travelers’ enforcement of Adir’s obligations under the very contracts Adir argued were illegal and void. Had Travelers prevailed on Adir’s administrative claim

, Travelers would have
been entitled to recover its attorney fees despite the absence of an affirmative enforcement claim. (S ee Eden Township , supra, 220 Cal.App.4th at pp. 425, 430 [ in a n action in which complaining party unsuccessfully asserts that the underlying contract is illegal and invalid

, the party who successfully defends

on the ground the contract is valid may recover its attorney fees

,

“ regardless of whether the [ party ] previously had asserted its own affirmative claim to enforce the contract ” ] ; accord, California

- American Water Co. v. Marin a Coast Water Dist. ( 2017) 18 Cal.App.5th 571, 577

- 578 [same, citing Eden Township ].) Accordingly, so too is Adir.

b. The mandamus action was “on the contract”

Travelers’ related contention the reciprocal mandate of
section 1717 does not apply because the administrative complaint involved a matter of statutory interpretation (whether the side agreements were endorsements that were required to be filed under various Insurance Code provisions) and thus was not an action “on a c ontract” (see § 1717) is also without merit. As25

discussed, Adir successfully obtained a n administrative ruling and then a judgment in the mandamus action that its contractual obligations under the side agreements were unenforceable. That is unquestionabl y an action “on a contract.” (See California

American Water Co. v. Marina Coast Water Dist., supra,
18 Cal.App.5th at p. 576 [a complaint alleging a contract is void under Government Code section 1090 is an action “on a contract” for purposes of section 1 717 regardless of whether contract claims are alleged]; Eden Township

, supra , 220 Cal.App.4th at p. 427 [“it is difficult to think of an action that is more likely to be characterized as an ‘action on a contract’ than one in which the party bringing the ac tion explicitly seeks to have the subject contract declared void and invalid in its entirety”]; see generally
Hsu v. Abbara (1995) 9 Cal.4th 863, 870 [“[i]t is now settled [law] that a party is entitled to attorney fees under section 1717 ‘even when the pa rty prevails on grounds the contract is inapplicable, invalid, unenforceable or nonexistent, if the other party would have been entitled to attorney’s fees had it prevailed’”].)

c. Adir was the prevailing party in the administrative mandamus action
R elying o n DisputeSuite.com

, LLC v. Scoreinc.com (2017)
2 Cal.5th 968 ( DisputeSuite )

, Travelers contends in the
alternative that any award of attorney fees in this mandamus
action was premature because Adir’s trial court action

, including
its claim for declaratory relief regarding the validity of the side agreements
, is still pending, making Adir’s victory in the
administrative action an interim one

. In DisputeSuite the Supreme Court considered whether a defendant was entitled to an award of attorney fees pursuant section 1717 after obtain ing a dismiss al of the plaintiff’s contract action because the parties’26

agreement contained a forum selection clause specifying the courts of another jurisdiction . Th e trial court concluded there

was no t yet a prevailing party . The DisputeSuite Court affirmed that decision, holding the defendant’s victory in moving the litigation to Florida did not make it the prevailing party as a matter of law, and t he trial court had acted within its discretion in denying the motion for attorney fees: “ Considering that the action had already been refiled in the chosen jurisdiction and the parties ’ substantive disputes remained unresolved, the [trial] court could reasonably conclude neither party had yet achieved its litig ation objectives to an extent warranting an award of fees. ” ( Id. at p. 971; see Hsu v. Abbara

, supra, 9 Cal.4th at p. 876 [prevailing party determination is to be made by comparing the parties ’ relative degrees of success “upon final resolution of the contract claims”].) DisputeSuite does not assist Travelers. Adir’s success
before the Commissioner and in the administ rative mandamus proceeding constitutes a final determination on the merits of its challenge to the validity of the side agreements, not simply a procedural victory in an ongoing lawsuit, as was the case in DisputeSuite . That litigation is complete, and Ad ir is unquestionably the prevailing party.
Travelers next contends the court erred when it ignored Adir’s “obvious forum shopping” and determined it “ was not inequitable ” to apply section 1717 ’s reciprocal mandate and award Adir attorney fees . That argume nt, too, is without merit.
A s the Supreme Court has explained

, w hile there are certainly
occasions when the court must balance the equities in determining whether a party has prevailed ( s ee Hsu v. Abbara,

supra , 9 Cal.4th at p. 877 [ “ [ w ] e agree that in determining27

litigation success , courts should respect substance rather than form, and to this extent should be guided by ‘equitable
considerations ’ ” ])

, “ when one party obtains a ‘simple, unqualified win,’” “the trial court may not invoke eq uitable considerations
unrelated to litigation success,” except as expressly authorized by statute. ( I

bid. ) To consider the equities unrelated to litigation

success “would convert the attorney fees motion from a relatively uncomplicated evaluation of the parties’ comparative litigation success into a formless, limitless attack on the ethics and character of every party who seeks attorney fees under
section 1717. We find no evidence that the Legislature intended that the prevailing party determination be made in this way.” ( Hsu, at p. 877 .) Because it would have been improper to deny Adir attorney fees based on equitable considerations unrelated to litigation success, the court’s no

- inequity finding is immaterial

. Finally, citing no legal authority, Travelers contends

, at the very least, the award of attorney fees should be reduced to
exclude fees incurred by Adir in prosecuting the administrative proceeding in the Department of Insurance, which it contends was not “an action” within the me aning of section 1717

. As discussed, under the broad scope of the attorney fee provision in the side agreements, Travelers would have be en entitled to its fees had it prevailed in the administrative proceeding as “fees incurred by us in connection with th e collection or enforcement” of Adir’s contractual obligations

. W e have no difficulty concluding section 1717’s reciproc al fee mandate regarding fees incurred “in an action ” on a contract applies equally to the fees
incurred by Adir in the administrative proceeding giving rise to
the mandamus action

. ( Cf. Edna Valley Watch v. County of
San Luis Obispo (2011) 197 Cal.App.4th 1312

, 131 9 [ in Code of28

Civil Procedure section 1021.5’s authorization of attorney fees to a successful party “in any action” that results in the enforcement of an important right affecting the public interest, the term “action” includes not simply the mandamus proceeding but also
the administrative proceeding g iving rise to it] ; see generally Santisas v. Goodin , supra, 17 Cal.4th at p. 610 [“[t]he primary purpose of section 1717 is to ensure mutuality of remedy for attorney fee claims under contractual attorney fee provisions” ]. )

DISPOSITION The judgment and po stjudgment order are affirmed. Adir
is to recover its costs on appeal.

PERLUSS, P. J.
We concur:

SEGAL J.

FEUER, J.