Exxon Mobil Corporation, a New Jersey corporation v. NEW WEST PETROLEUM, LP, a California limited partnership;

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EXXON MOBIL CORPORATION, a
New Jersey corporation,
Plaintiff- cross-defendant -
Appellant,
v.
NEW WEST PETROLEUM, LP, a
California limited partnership; et al.,
Defendants-cross-claimants -
Appellees,
and
SARTAJ SINGH BAINS,
Third-party-defendant-
counter-claimant - Appellee.
No. 08-17651
D.C. No. 2:03-cv-02222-WBS-
EFB
MEMORANDUM *
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, District Judge, Presiding
Argued and Submitted February 8, 2010
San Francisco, California
FILED
MAR 04 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Before: GOODWIN, BERZON and IKUTA, Circuit Judges.
The Purchase & Sale Agreement generally makes Exxon Mobil Corporation
(“ExxonMobil”) responsible for contamination caused by ExxonMobil’s
operations. See generally Purchase & Sale Agreement Sections 12, 19. Relevant
here, Section 11(b) of the Purchase & Sale Agreement provides that if the
applicable governmental authority requires further assessments and remediation of
petroleum hydrocarbons, as it did in this case, and such petroleum hydrocarbons
were caused by ExxonMobil’s operations, then (1) the Baseline Condition of the
Property is modified based on the results of such assessments; and (2) ExxonMobil
is responsible for addressing the modified Baseline Condition pursuant to Section
12. Contrary to ExxonMobil’s argument, New West’s agreement in Section 18 of
the Agreement to “hold harmless” ExxonMobil for specified issues does not allow
ExxonMobil to sue New West for indemnity for contamination caused by
ExxonMobil’s prior operations. See Queen Villas Homeowners Ass'n v. TCB Prop.
Mgmt., 56 Cal. Rptr. 3d 528, 534 (Cal. Ct. App. 2007). Accordingly, the district
court correctly determined that under the Purchase & Sale Agreement,
ExxonMobil agreed to take responsibility for the costs of remediating the
contamination at issue, provided that it was caused by ExxonMobil’s operations.

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The district court did not clearly err in finding that ExxonMobil failed to
prove, by a preponderance of the evidence, that the reported increases in
contamination were not caused by ExxonMobil’s operations prior to the Closing
Date. This finding was supported by evidence that the MtBE concentrations
increased while the Northgate station was closed for upgrades, that the subsequent
lessees of the Northgate Property took substantial measures to prevent and detect
releases, and that no post-Closing Date MtBE release of the magnitude necessary
to produce the reported results was detected. While ExxonMobil presented
evidence to the contrary, the district court’s finding is “plausible in light of the
record viewed in its entirety.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma
GmbH & Co., 571 F.3d 873, 878 (9th Cir. 2009) (quotation marks omitted). In
light of this factual finding, the district court correctly concluded that ExxonMobil
was responsible for the contamination at issue under the Purchase & Sale
Agreement. Because this conclusion was not clearly erroneous, the district court’s
decision on damages was also not clear error.
Finally, the district court did not abuse its discretion in refusing to grant
ExxonMobil declaratory judgment. See Principal Life Ins. Co. v. Robinson, 394
F.3d 665, 669 (9th Cir. 2005). The district court was not required to entertain the
declaratory judgment claim, see Gov’t Employees Ins. Co. v. Dizol, 133 F.3d 1220,

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1223 (9th Cir. 1998) (en banc), and the court’s conclusion that its decision on the
breach of contract claim resolved the declaratory relief claim is consonant with our
direction that district courts may refuse to exercise their discretion where the
declaratory action will not “serve a useful purpose in clarifying the legal relations
at issue,” id. at 1225 n.5.
AFFIRMED.

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