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. 19STCP00877)

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 

Assistant Attorney General, Lisa W. Chao, Supervising Deputy 
2

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 Indemnity Company 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’ compensation 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 provision, 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 retail department 

stores. Between 2004 to 2011 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 116581and specified 

the rates to be charged to Adir. In addition, each policy 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 policies, which contained a fixed premium for 

the policy period, the alternative rating option retrospective 

rating plan provided for an adjustment 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 section 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. Unlike the guaranteed cost policies, the

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’ postpolicy period adjusted premiums as required by the side 

agreements. 

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 

determination 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 supplementary rate 

information that are to be used in this state. . . . [¶] (b) Rates 
5

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 agreements was a matter for the arbitrator. 

The court stayed Adir’s action and ordered the matter to 

arbitration. 

What happened next in both the arbitration proceeding and 

the trial court is detailed 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 the arbitration panel also found the side 

agreements did not violate sections 11658 or 11735. However, 

before 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 thenrecent 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 distinguish it from the “superior court,” which heard Travelers’ 

petition for writ of administrative mandate. 
6

sections 11658 and 11735, the court reconsidered its earlier 

ruling and found the arbitration agreement void and 

unenforceable. We affirmed the trial court’s order reconsidering 

its prior ruling and denying arbitration of Adir’s lawsuit. (Adir 

International, supra, B293415 [pp. 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 allowed the insured to 

challenge Travelers’ interpretation and application of specified 

aspects of the policy and, if dissatisfied with Travelers’ 

resolution, to seek review before the Department of Insurance. 

Travelers denied Adir’s complaint and request 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 system 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 11737, subdivision (f), provides, “Every insurer or 

rating organization shall provide within this state a reasonable 

means whereby any person 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 applied in connection with the insurance afforded or 

offered.” If the insurer or rating 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 

misapplied 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 

Commissioner 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, concluding the 

Department of Insurance had “exclusive jurisdiction [pursuant to 

section 11737, subdivision (f)], to adjudicate [Adir]’s claim that 

Travelers’ unfiled Side Agreements misapplied Travelers’ filed 

rating plan by violating Insurance Code sections 11658 and 

11735, as well as California 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 use any policy form, 

endorsement 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, rejecting 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 Commissioner, the 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 contest 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 without, 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 supported 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 (2018)

28 Cal.App.5th 26, 34) and the agency’s legal determinations

de novo (Sky Posters, at p. 660; Schmid v. City 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 our 

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 longstanding, consistent, and contemporaneous interpretations”].) 

2. The Doctrine of Exclusive Concurrent Jurisdiction Does 

Not Apply; 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 exclusive 

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 jurisdiction 

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 when 
11

Adir filed its lawsuit seeking a declaration they 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 “an

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 constituted unfiled endorsements in violation of 

sections 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 jurisdiction over Adir’s lawsuit and ordered the matter to 

arbitration. 

As a preliminary matter, there 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 acknowledged 

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 was 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 here. The “judge-made rule” of 

exclusive concurrent jurisdiction “is based upon the public 

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 judicial 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 rule 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 arbitration 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 245, 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. If not, the court had 

jurisdiction, and the Industrial Accident Commission did not. 

(Scott, supra, 46 Cal.2d at pp. 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 

jurisdiction 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. 81 [“[t]he issue is not one of simultaneous exercise 

of general 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 has 
14

the power to make a determination of jurisdiction which, when 

final, will be conclusive upon the other”].) Nonetheless, in 

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 Court 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 Scott’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. Since the trial court 

and the Commissioner enjoyed concurrent jurisdiction over the 

threshold issue of the validity of the side agreements, Travelers 

contends, the trial court should have priority to consider that 

issue. In seeking an alternative forum following an adverse 

ruling in the trial court (the order granting Travelers’ petition for 

arbitration), Travelers continues, Adir engaged in precisely the 

type of forum shopping the doctrine of exclusive concurrent 

jurisdiction is intended 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 acknowledged the Commissioner had

exclusive jurisdiction to consider 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, even if Travelers were correct that 

the trial court could have 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 validity 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; primary 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 lacked 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 uniform 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 an 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 jurisdiction 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 that, in denying Travelers’ petition for a writ 

of prohibition to stay the administrative action while the action 

in the trial court was 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.

Whether the trial court impliedly invoked the primary 

jurisdiction doctrine when it denied Travelers’ request for a writ 

of prohibition is far from clear. Significantly, neither Travelers’

petition for a writ of prohibition nor the trial court’s order 

denying the petition is included in the record on appeal. During

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.” The 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 trial 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. The Commissioner’s precedential decision 

affected all Travelers 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 at 
18

pp. 932-933 [“‘considerations 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 Cal.4th at p. 396.) 

Finally, even 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 Garamendi 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 claim 

before the Commissioner after resolution of the trial court action, 

at which time the court’s determination, under principles of issue 

preclusion, would govern the issue of the validity of the side 
19

agreements. In essence, Travelers argues prejudice exists 

because the court would have decided the issue differently, not 

because of any identified unfairness in the administrative 

proceedings. Quite apart 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 prejudice given the nature of the error 

asserted here. (See Garamendi, supra, 20 Cal.App.4th at p. 775.)

3. Travelers’ Argument in the Alternative the Commissioner 

Lacked Jurisdiction To Consider Adir’s Section 11737 

Claim At All Is Also Without Merit

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 “disapprove 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 the Commissioner observed when he rejected this 

argument, Adir’s complaint specifically alleged Travelers was not 

using the rating system on file with the WCRB but a wholly 
20

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 of 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, subdivisions (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, contained 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 the 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 costs.” This reciprocal 

mandate was adopted by the Legislature to “‘establish 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 fees 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).) 

The court ruled Adir, as the prevailing party in the 

administrative mandamus action, was entitled to its reasonable 

attorney fees incurred in this action, including at the 

administrative hearing. Travelers contends attorney fees were

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

“‘Before 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, §§ 1638, 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 744, 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.” Because the administrative proceeding 

Adir initiated was not 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 744 the seller brought an 

action against prospective purchasers for breach of a repurchase 

agreement. The prospective purchasers asserted in defense that 

a subsequent option agreement had created a novation of the 

initial repurchase agreement, granting them the right, but not 

the obligation, to purchase the property. The prospective 
23

purchasers prevailed at trial and moved to recover their attorney 

fees based on a provision in the option agreement that authorized 

attorney fees 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 defense to the 

enforcement of the repurchase agreement—that a separate option 

agreement had created a novation of the repurchase agreement—

constituted an action or proceeding “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 pp. 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, the 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. 

Travelers’ reliance on Mountain Air is misplaced. The 

Mountain Air Court held an affirmative defense that relied on an

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 agreements 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. (See Eden Township, supra, 

220 Cal.App.4th at pp. 425, 430 [in an 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. Marina 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 contract” (see § 1717) is also without merit. As 
25

discussed, Adir successfully obtained an administrative ruling 

and then a judgment in the mandamus action that its contractual 

obligations under the side agreements were unenforceable. That 

is unquestionably an action “on a contract.” (See CaliforniaAmerican 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 1717 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 action 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 party 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

Relying on 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 obtaining a 

dismissal of the plaintiff’s contract action because the parties’ 
26

agreement contained a forum selection clause specifying the 

courts of another jurisdiction. The trial court concluded there 

was not 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 the 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 litigation 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 administrative 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 Adir 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 argument, too, is without merit. 

As the Supreme Court has explained, while there are certainly 

occasions when the court must balance the equities in 

determining whether a party has prevailed (see Hsu v. Abbara, 

supra, 9 Cal.4th at p. 877 [“[w]e agree that in determining 
27

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 equitable considerations 

unrelated to litigation success,” except as expressly authorized by 

statute. (Ibid.) 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 meaning of section 1717. As 

discussed, under the broad scope of the attorney fee provision in 

the side agreements, Travelers would have been entitled to its 

fees had it prevailed in the administrative proceeding as “fees 

incurred by us in connection with the collection or enforcement” 

of Adir’s contractual obligations. We have no difficulty 

concluding section 1717’s reciprocal 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, 1319 [in Code of 
28

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 giving 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 postjudgment order are affirmed. Adir 

is to recover its costs on appeal.

PERLUSS, P. J. 

We concur:

SEGAL J.

FEUER, J.