NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

GRIMES, J.

Plaintiff NavCom Defense Electronics, Inc. (NDE) brought this action against Gould Electronics Inc. (Gould), the former owner of real property in El Monte, California, (the NavCom site) and several insurers to establish insurance coverage for environmental cleanup costs. The appeals now before us arise from summary judgments entered in favor of three insurers on the authority of A. C. Label Co. v. Transamerica Ins. Co. (1996) 48 Cal.App.4th 1188 (A. C. Label), which held that a liability insurer could not be required to defend or indemnify an insured for liabilities arising from property the insured did not own during the policy period. Plaintiff contends A. C. Label does not apply to this case and the judgments should be reversed. We follow the principle established in A. C. Label and, finding no material disputed facts, affirm the judgments.

BACKGROUND

The fifth, sixth and seventh causes of action of the third amended complaint sought declaratory relief and damages against defendants Continental Casualty Company and The Continental Insurance Company (collectively CNA), Fireman's Fund Insurance Company (Fireman's Fund), and OneBeacon American Insurance Company (OneBeacon). Plaintiff alleged it was entitled to coverage under primary or excess policies of liability insurance issued by the defendants between 1962 and 1988 to Gould or its predecessor Hoffman Electronics, Inc. (Hoffman). Plaintiff did not claim to have been a named insured under any of the policies but claimed that either the policies had been assigned to plaintiff when it acquired the NavCom site in December 1988 or plaintiff was a third party beneficiary of the policies.

These are the undisputed facts on which defendants CNA and OneBeacon obtained summary judgment. CNA issued policies to Hoffman for policy periods between 1962 and 1973. CNA issued policies to Gould for policy periods beginning in 1977, and the last policy expired on March 1, 1988. All of the CNA policies expired no later than March 1, 1988.

Plaintiff sued OneBeacon as the successor in interest to certain policies alleged to be issued by Employers Surplus Lines Insurance Co. (ESLI). ESLI issued policies to Hoffman for policy periods between 1961 and 1973. ESLI did not insure Gould. All of the ESLI policies assigned to OneBeacon expired no later than 1973.

Hoffman operated at the NavCom site for many years and discharged hazardous substances during its operations. In 1978, Hoffman merged into Gould, which continued to operate at the site. In 1988, Gould transferred and assigned some assets to a new, wholly owned subsidiary. NCM Holdings, Inc., bought all the stock of the subsidiary and then merged into plaintiff NDE in December 1988. By these transactions, plaintiff first became the owner of the NavCom site in December 1988.

In June 2005, Gould sued plaintiff in federal court seeking to recover some or all of the costs Gould incurred under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (42 U.S.C. § 9601 et seq.) to clean up the hazardous waste caused by Hoffman at the NavCom site. The federal court found no evidence that plaintiff discharged any pollutants but held plaintiff liable under CERCLA, as the current owner of the NavCom site, to pay 60 percent of the future cleanup costs. Under CERCLA, a landowner may be liable or potentially liable to contribute to the costs of cleaning property that was environmentally damaged long before the current owner had any involvement with the site. (42 U.S.C. § 9607(a); Western Properties Service Corp. v. Shell Oil Co. (9th Cir. 2004) 358 F.3d 678, 688.) Plaintiff contends in this lawsuit that its liability in the federal lawsuit was based solely on plaintiff's ownership of the NavCom site.

Plaintiff offered additional facts in opposition to the motions. The trial court sustained defendant's objections to some of plaintiff's evidence, and plaintiff does not argue on appeal that the trial court abused its discretion in so ruling. Defendants objected that plaintiff's remaining additional facts were irrelevant and did not raise a material factual dispute. Plaintiff's additional evidence described the insurance policies issued to Hoffman and Gould, the premiums paid, historic tenders by Gould to CNA of the defense of environmental litigation involving the NavCom site before plaintiff acquired it, and CNA's denial of the defense of plaintiff in the lawsuit Gould filed in federal court.

Before bringing the motions for summary judgment under review on this appeal, defendants had moved for summary judgment on other grounds, including that plaintiff was not insured under any of the policies issued to Hoffman or Gould. Plaintiff never claimed to have been a named insured under any of the policies but claimed that either the policies had been assigned to plaintiff when it acquired the NavCom site or plaintiff was a third party beneficiary of the policies. The trial court denied the earlier motions for summary judgment, finding material factual disputes.

We mention the earlier summary judgment motions only because plaintiff has referred extensively in this appeal to the facts that were before the trial court and the trial court's analysis and rulings on those earlier motions. Defendants apparently felt compelled to respond to plaintiff's arguments despite also contending they are not part of the record on this appeal. Plaintiff replied by accusing defendants of impermissibly reciting facts that were not included in their separate statements of undisputed facts while arguing that by so doing, defendants conceded the materiality of disputed facts that are not in the record but essential to the proper resolution of this appeal. We will confine our analysis to the facts and law that apply to the judgments that are the subjects of this appeal.

The summary judgments that are presently on appeal were entered on an entirely different ground than those asserted in the earlier motions for summary judgment. In the motions for summary judgment presently under review, defendants did not dispute plaintiff's claim that it was insured under the policies issued to Hoffman and Gould. Defendants argued the policies did not cover plaintiff's liability to clean up the NavCom site because plaintiff's liability arose solely from its ownership of the site, and plaintiff did not acquire the site until after the policies expired. Fireman's Fund did not bring its own summary judgment motion, but plaintiff and Fireman's Fund stipulated to entry of judgment in favor of Fireman's Fund on the same grounds, since any policy issued by Fireman's Fund also expired before 1988, for purposes of facilitating this appeal.

DISCUSSION

1. Standard of Review.

The standard of review of an order granting summary judgment is well-established. Our review is de novo. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) We independently review the entire record, except as to evidence to which objections were timely made and sustained, in the same manner as the trial court. (Ibid.) First, we review the issues framed by the operative pleadings to determine the scope of material issues. We then determine if the moving party has discharged its initial movant's burden of production. If we determine the moving party made the requisite prima facie showing of the nonexistence of a triable issue of fact, we then review the opposing party's submissions to determine if a material triable issue exists. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851 (Aguilar); Todd v. Dow (1993) 19 Cal.App.4th 253, 258.)

"In performing our de novo review, we must view the evidence in a light favorable to plaintiff as the losing party [citation], liberally construing [his or] her evidentiary submission while strictly scrutinizing [defendant's] own showing, and resolving any evidentiary doubts or ambiguities in plaintiff's favor." (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768; accord, Aguilar, supra, 25 Cal.4th at p. 843.) "The trial judge's stated reason for granting summary judgment is not binding on us because we review its ruling, not its rationale." (Reliance Nat. Indemnity Co. v. General Star Indemnity Co. (1999) 72 Cal.App.4th 1063, 1074.)

Summary judgment is appropriate where "all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. . . ." (Code Civ. Proc., § 437c, subd. (c).) As mentioned above, plaintiff raises numerous arguments on appeal that are unrelated to the papers submitted on the motions for summary judgment. Plaintiff recites evidence that is not in the moving, opposing or reply papers on these motions for summary judgment. Further, plaintiff recites evidence that we may not consider, because the trial court sustained defendants' objections to that evidence and plaintiff made no argument on appeal that the trial court abused its discretion in sustaining the objections.

Our independent review of the entire record is confined to the papers that were before the trial court on the summary judgment motions that are the subject of this appeal. To determine whether the parties have met their respective burdens, we consider "`all of the evidence set forth in the [supporting and opposition] papers, except that to which objections have been made and sustained by the court, and all [uncontradicted] inferences reasonably deducible from the evidence.'" (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 612.) We will confine our discussion to those facts and ignore the citations to evidence that was not before the trial court on the summary judgment motions under review here.

2. There Is No Coverage for a Landowner's Liability to Pay Costs to Clean Property That Was Damaged During the Policy Period When the Landowner Acquired the Property After the Policy Expired.

Defendants' motions rested on three opinions of the California Court of Appeal, each holding that an insured has no coverage for pollution liability when the insured first became liable for cleanup costs after the policy expired. (Tosco Corp. v. General Ins. Co. (2000) 85 Cal.App.4th 1016 (Tosco); FMC Corp. v. Plaisted & Companies (1998) 61 Cal.App.4th 1132 (FMC); A. C. Label, supra, 48 Cal.App.4th 1188.) All three cases concerned whether there was insurance coverage for CERCLA liability to contribute to the cleanup costs of property the insured acquired after the policy expired. In each case, the insured was found not entitled to coverage for the cleanup costs, even though the contamination occurred during the policy period, because the insured acquired the property after the policy expired.

Each opinion found it was not reasonable to require an insurer to cover liabilities based on facts that did not happen until after the policy period, and likewise, the insured could not have reasonably expected coverage for a loss that was not a liability of the insured at any time during the policy period. (Tosco, supra, 85 Cal.App.4th 1016 [following A. C. Label, finding no coverage for environmental cleanup costs because plaintiff did not own or have any relationship to any of the contaminated properties until after the policy period expired]; FMC, supra, 61 Cal.App.4th at pp. 1154-1155 ["it is neither reasonable nor consonant with the terms of the general liability policies before us to require such insurers to cover liabilities based on facts which did not occur until after the policy period. A general liability insurer . . . cannot be required to be clairvoyant as to the infinite possible future permutations of facts, fundamental to the very existence of coverage but not in existence during the policy period, once the policy period has expired" (italics omitted)]; A. C. Label, supra, 48 Cal.App.4th at p. 1194 ["No reasonable policyholder could have believed that a [commercial general liability] policy issued for a policy period in 1981 and 1982 would provide coverage for a loss which was not a liability of the policyholder at any time prior to 1984. Any expectation that plaintiffs may have had that this liability insurance policy would apply to after-acquired liability with which they had no connection during the policy period was unreasonable as a matter of law and therefore cannot support an interpretation of this policy in favor of coverage."].)

These cases establish an insured may have coverage for cleanup costs the insured became liable to pay during the policy period, but no coverage for costs the insured first became liable to pay after the polluting activity and the policy ended. In A. C. Label, FMC and Tosco, the insureds had policies that did not cover the contaminated land because the insureds did not own the property until after the policies expired. The contamination happened during the policy period, but since the insureds were strangers to the property during both the contamination and the policy period, and they neither caused nor contributed to it, they had no insurable liability during the period of contamination. Their liability attached when they bought the land, not because they continued to pollute it; indeed, despite never having contributed to the pollution, the present owner, under CERCLA, is liable to pay cleanup costs solely by virtue of owning contaminated land.

Plaintiff argues A. C. Label, FMC and Tosco are distinguishable because the defendants here insured against pollution on the NavCom site during the years it was contaminated, whereas the insurers in A. C. Label, FMC and Tosco had no opportunity to assess or underwrite the liabilities associated with the polluted properties because the properties were unknown to the insurers and the insureds during the contamination. Plaintiff argues that since defendants considered the risks of underwriting the NavCom site and collected substantial premiums, it is not unfair to require them to indemnify plaintiff for the very risks they insured. But there is no evidence that defendants assessed the risk to defend and indemnify two or more wholly unrelated insureds — the one that owned the land and paid the premium during the policy period, plus everyone else who might acquire the property along with the liability to clean it after the policies expired.

The principle of A. C. Label and its progeny applies equally here. Defendants do not owe plaintiff any duty to indemnify and defend, because plaintiff had no connection with the property during the years defendants insured against contamination. Plaintiff did not incur liability to pay cleanup costs until after the policies expired. It makes no difference that defendants insured against liability for contamination to the NavCom site before plaintiff became liable to clean it. Plaintiff's liability attached only when it became the owner of the NavCom site in December 1988, and by then, all the policies under which plaintiff claims coverage rights had expired.

We do not agree with plaintiff that our holding in any way departs from or abrogates the opinion of the Supreme Court in Henkel Corp. v. Hartford Accident & Indemnity Co. (2003) 29 Cal.4th 934 (Henkel). In that case, Henkel acquired and merged with a corporation that had previously assumed the liabilities of its predecessor. Henkel agreed to assume the liabilities of the company it acquired. When Henkel was sued for product liability, it sought coverage under the policies issued to the predecessor of the company Henkel acquired with which Henkel had merged. Henkel argued that because it incurred liability as a matter of law for defective products manufactured by the predecessor of the company Henkel acquired, Henkel also should receive the benefit of the liability policies issued to the predecessor as a matter of law. The trial court entered summary judgment for the insurance companies, finding the predecessor did not agree to assign benefits to Henkel, and there was no evidence the insurance companies consented to any assignment of benefits. The Court of Appeal reversed, and the Supreme Court reversed the judgment of the Court of Appeal.

The Supreme Court declined to decide whether a corporate successor which may be liable for the torts of a predecessor as a matter of law should be entitled as a matter of law to the predecessor's insurance protection, because the court found Henkel's liability was not imposed involuntarily by law but was voluntarily assumed by contract. (Henkel, supra, 29 Cal.4th at p. 941.) Since the insurance policies provided that any assignment of benefits was invalid without the insurer's consent endorsed on the policy, and the insurance companies never consented to an assignment of benefits to Henkel, the Supreme Court found Henkel had not shown entitlement to benefits under the policies. (Id. at pp. 945-946.)

The analysis in Henkel does not in any way apply to our analysis in this case. The Henkel court considered plaintiff's claim to insurance coverage for product liability under the laws of corporate succession. In discussing Henkel's argument that it was entitled to coverage as a matter of law, the court found Henkel did not fall within any of the three situations in which a buyer of corporate assets may be liable for the torts of a predecessor even without agreeing to assume liability. One of the three situations the court mentioned was statutory liability, notably CERCLA, which may "impose liability upon successor corporations without regard to contract." (Henkel, supra, 29 Cal.4th at pp. 941-942.)

This case does not involve a successor corporation's liability for injuries caused by a predecessor's manufacture of defective products, but the entirely different question of a landowner's liability under CERCLA to contribute to the cleanup of contaminated land arising solely from ownership of the land. As plaintiff repeatedly reminds us, no case is authority for a proposition not considered by the court. (Agnew v. State Bd. of Equalization (1999) 21 Cal.4th 310, 332.) The Henkel court expressly declined to decide any theory of coverage for liability imposed by law, such as CERCLA liability, since the court found Henkel's case did not fall within the category of cases for which liability is imposed by law.

DISPOSITION

We affirm the judgments in favor of defendants and against plaintiff. Defendants are to recover their costs on appeal.

I CONCUR:

BIGELOW, P. J.

RUBIN, J. — DISSENT.

I respectfully dissent.

This is an appeal from the trial court's order granting summary judgment in favor of respondent insurance companies. Respondents argued, and the trial court agreed, that respondents did not owe a duty to indemnify for, or defend, an environmental cleanup claim against appellant because appellant had no ownership interest in the subject property during the policy period. Respondents relied at trial, as they do on appeal now, on three cases they argue compel the result reached by the trial court. Those cases are Tosco Corp. v. General Ins. Co. (2000) 85 Cal.App.4th 1016 (Tosco), FMC Corp. v. Plaisted & Companies (1998) 61 Cal.App.4th 1132 (FMC), and A. C. Label Co. v. Transamerica Ins. Co. (1996) 48 Cal.App.4th 1188 (A. C. Label). The majority opinion acknowledges in its introductory paragraph that it "follow[s] the principle established in A. C. Label" and that it affirms the summary judgment order on that authority.

These three cases stand for a very reasonable proposition: in the absence of an express provision in the insurance contract, an insurance company that sells a general liability coverage policy has no duty to defend or indemnify its insured for events that took place before the policy was in effect.

The problem is that is not our case.

The present dispute does not deal with claims by an insured against its insurance carrier, which was the setting in A. C. Label, Tosco, and FMC. In those cases the defendant insurance companies had not insured against the losses in question, which occurred before there was an insurer-insured relationship between the plaintiff and the defendant. Three different Courts of Appeal stated it would be unreasonable to impose a duty based on events that proceeded the coverage period because such coverage could not have been in the reasonable contemplation of the parties at the time they entered the insurance contract. (See, e.g., A. C. Label, supra, 48 Cal.App.4th at p. 1194.)

This case presents a significantly different insurance relationship. Appellant has not sued its insurance carrier. Rather, respondent insurance companies insured the contaminated site when it was owned by other parties — their insureds Gould Electronics, Inc. (Gould), and Hoffman Electronics, Inc. (Hoffman). From 1962 through 1988 respondents insured the property against environmental damage of the sort at issue here. In 1988, appellant bought the property from Gould.

Thus, the question properly presented is whether an insurance company that has insured against the loss in question during the time the policy was in effect has a duty to defend and indemnify an entity who succeeded to the ownership of the insured property. I believe this issue was not properly presented to the trial court, and has not been properly presented on appeal. The reliance on A. C. Label, Tosco and FMC is misplaced. Because the sole basis for the trial court's ruling is the inapplicable first party insurance line of authority, the trial court's summary judgment order should be reversed.

The case that is far more relevant to the real issue before us is Henkel Corporation v. Hartford Accident & Indemnity Co. (2003) 29 Cal.4th 934 (Henkel), a case decided well after A. C. Label, Tosco, and FMC. The trial court did not cite Henkel in its ruling granting summary judgment, and respondents attempt to distinguish it.1 Henkel is not on all fours. It is a products liability case, and the issue there was whether the plaintiff was contractually entitled to assume the benefits of its predecessors' insurance policies. Nevertheless, I believe Henkel is critical to the analysis of appellant's interest in the insurance written by respondents.

What Henkel is about and why it stands apart from A. C. Label, Tosco, and FMC is that, like the present case, Henkel involves claims not against a party's own insurance carrier but against a predecessor's carrier.

As the Supreme Court framed the issue:

The trial court in Henkel had entered summary judgments in favor of the defendant insurance companies because no document assigned to Henkel Corporation the benefits under its predecessor's policies and the insurance companies did not consent to any assignment. The trial court rejected Henkel Corporation's claim to the policy benefits because it "found Henkel responsible for Amchem No. 1's torts, not as a matter of law, but because Henkel had voluntarily assumed that liability." (Henkel, supra, 29 Cal.4th at p. 940.) Without an assignment there was no contractual basis to compel the insurer to defend or indemnify. (Ibid.) The Court of Appeal reversed, finding that consent was not necessary. It reasoned that the right to indemnity followed the underlying liability imposed initially on the predecessor and not on the policy itself. (Ibid.) Thus, the lack of an assignment was legally beside the point.

The Supreme Court reversed the Court of Appeal. It stated Henkel Corporation's burden as follows: "Henkel's argument why it should be entitled to Amchem No. 1's insurance protection as a matter of law depends on a showing that Henkel's tort liability was imposed upon it by law." (Henkel, supra, 29 Cal.4th at p. 941.) And it held that Henkel had failed to make that showing. (Ibid.)

The Supreme Court thus stated the rule most applicable to the present dispute: If there is no valid contractual assignment of insurance benefits, a successor owner is entitled to its predecessor's insurance coverage only by showing "that [the successor's] tort liability was imposed upon it by law." (Henkel, supra, 29 Cal.4th at p. 941.)

The court explained that there were three situations in which a buyer of corporate assets may be liable for the torts of its predecessor, notwithstanding the purchaser's failure to assume liability by contract. First, liability may attach in cases of consolidation or merger. Second, a company that acquires another's product line may be liable for the predecessor's defective products if the acquisition spells the virtual destruction of a potential plaintiff's remedies against the original manufacturer. Third, and of particular importance to the case before us, is where a statute imposes liability upon the successor corporation without regard to contract. (Henkel, supra, 29 Cal.4th at pp. 941-942.) The Supreme Court specifically mentioned the statute on which liability was imposed on appellant here: The Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. § 9601 et seq.) (CERCLA). (Henkel, at p. 942.)

The court also explained why none of the three situations applied to the case before it. First, there was no merger or consolidation, nor was one corporation the "mere continuation" of another. Second, the predecessor continued to exist after its sale of the business to Henkel Corporation and therefore there was no "virtual destruction" of any claim that might be asserted by someone injured by a defective product.2 Third, there was no CERCLA or comparable statute in play in Henkel. (Henkel, supra, 29 Cal.4th at pp. 941-942.)

Because none of the three situations applied to Henkel Corporation, the corporation was not entitled to insurance benefits that had not been agreed to by contract. Henkel Corporation was nevertheless responsible for its predecessor's liability because it had assumed them by contract. The court then found the predecessors' insurance companies had no duty to Henkel Corporation because they had not consented to any assignment of benefits. In his dissent, Justice Moreno agreed with the analysis by the Court of Appeal in Henkel that once a loss had occurred, the insurance benefits were assignable without consent. (Henkel, supra, 29 Cal.4th at p. 947 et seq. (dis. opn. of Moreno, J.).)

Significantly, Henkel does not even mention A. C. Label, Tosco, or FMC for what I believe is an obvious reason. The Supreme Court was considering whether a successor owner obtains insurance benefits from its predecessor's insured. A. C. Label, Tosco, and FMC all dealt with claims against an insured's own insurance company.

What Henkel does say is that the analysis of whether successors may obtain coverage from its predecessor's insurance policies changes when the successor's liability is imposed by law. The example the Supreme Court gave was the statute at issue here — CERCLA.

There is no dispute that appellant's underlying liability in the federal litigation has been imposed by law under CERCLA and does not rest on contract or notions of successor or merged corporations. The trial court so found:

Respondents' argument on appeal is predicated on this undisputed fact, which it discusses in the opening part of the Argument section of its appellate brief. The majority opinion agrees that appellant's liability in the underlying CERCLA action was not based on evidence that appellant had polluted the site but only on its status as the current owner of the property. (Maj. opn. ante, at p. 3.) CERCLA liability may be imposed on the current owner of the property even if the current owner did not discharge pollutants. The federal statute, section 9607, subdivision (a)(1), of title 42 of the United States Code "imposes liability without fault on present and former owners of hazardous waste disposal sites, transporters of hazardous wastes, and those who arrange for the transport and disposal of hazardous wastes." (Montrose Chemical Corp. v. Superior Court (1993) 6 Cal.4th 287, 292; see also Western Properties Service Corp. v. Shell Oil Co. (9th Cir. 2004) 358 F.3d 678, 688; State of N.Y. v. Shore Realty Corp. (1985) 759 F.2d 1032, 1044.)

The rule expressed in Henkel makes sense, especially in the present context. Respondent insurance companies insured Gould and Hoffman on the same property and for the same toxic pollution claims at issue here. They were paid premiums for that insurance. If Gould and/or Hoffman still owned the property, there would be coverage. Denying the benefits of that insurance to appellant, who bought the property from the original insureds and who, by law, is placed in their shoes, does nothing more than create a windfall for the insurance companies. In this case, the windfall could be significant because the court in the underlying CERCLA action found appellant was responsible for 60 percent of the future cleanup costs.

The rule expressed in A. C. Label, Tosco, and FMC also makes sense. An insurance company should not by law be responsible for claims against its insured at property it did not insure or for events that took place before the policy went into effect.

But that is not this case.

I would reverse the judgment of the trial court.