                                                                           FILED
                            NOT FOR PUBLICATION                             AUG 01 2011

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



HINDS INVESTMENTS, L.P.,                         No. 10-15607

              Plaintiff - Appellant,             D.C. No. 1:07-cv-00703-LJO-GSA

PATRICIA MCLAUGHLIN, Trustee of
the Thomas F. Hinds and Mary Jane Hinds          MEMORANDUM *
Living Trust,

              Plaintiff-counter-defendant -
Appellant,

  v.

ALBERT ANGIOLI; BURNELL
ANGIOLI,

              Defendants,

  and

MULTIMATIC CORPORATION;
MULTIMATIC DRY CLEANING
MACHINE CORPORATION;
MULTIMATIC LLC; KIRRBERG
CORPORATION; HOYT
CORPORATION; R.R. STREET & CO.,
INC.,



        *
         This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
             Defendants - Appellees,

TEAM ENTERPRISES, INC.,

             Defendant-cross-claimant -
Appellee,

 v.

CSK AUTO, INC., DBA Kragen Auto
Parts; COOPER INDUSTRIES LTD,

             Third-party-defendant.



HINDS INVESTMENTS, L.P.,                     No. 10-15951

             Plaintiff - Appellant,          D.C. No. 1:07-cv-00703-LJO-GSA

PATRICIA MCLAUGHLIN, Trustee of
the Thomas F. Hinds and Mary Jane Hinds
Living Trust,

             Plaintiff-counter-defendant -
Appellant,

 v.

ALBERT ANGIOLI; BURNELL
ANGIOLI; MULTIMATIC
CORPORATION; MULTIMATIC DRY
CLEANING MACHINE
CORPORATION; MULTIMATIC LLC;
KIRRBERG CORPORATION; HOYT
CORPORATION; R.R. STREET & CO.,
INC.,

             Defendants - Appellees,
TEAM ENTERPRISES, INC.,

              Defendant-cross-claimant -
Appellee,

  v.

CSK AUTO, INC., DBA Kragen Auto
Parts; COOPER INDUSTRIES LTD,

              Third-party-defendant.



                   Appeal from the United States District Court
                       for the Eastern District of California
                   Lawrence J. O’Neill, District Judge, Presiding

                       Argued and Submitted May 13, 2011
                            San Francisco, California

Before: O’SCANNLAIN and GOULD, Circuit Judges, and ST. EVE, District
Judge.**

       Hinds Investments, L.P. and Patricia MacLaughlin (collectively, “Hinds”)

appeal the district court’s dismissal of their statutory and common law claims

against dry cleaning equipment manufacturers Multimatic Corporation, Multimatic

Dry Cleaning Corporation, and Multimatic successor in interest Kirrberg

Corporation; R. R. Street & Co.; and the Hoyt Corporation (collectively,


       **
          The Honorable Amy J. St. Eve, U.S. District Judge for the Northern
District of Illinois, sitting by designation.

                                           3
“Defendants”). Because the facts are known to the parties, we repeat them only as

necessary to explain our decision. We have jurisdiction pursuant to 28 U.S.C. §

1291. We affirm.

       Hinds seeks to hold Defendants liable as “arrange[rs]” under the

Comprehensive Environmental Response, Compensation, and Liability Act

(“CERCLA”). See 42 U.S.C. § 9607(a)(3). The district court properly found that

Hinds’s allegations, taken as true, do not state claims for CERCLA arranger

liability against Defendants. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)

(“To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007))). Hinds has not

alleged facts showing that Defendants sold dry cleaning equipment for the purpose

of disposing of perchlorethylene or that Defendants exercised control over the

disposal process. See Team Enters., LLC v. W. Inv. Real Estate Trust, No. 10-

16916, — F.3d — (9th Cir. 2011); see also Burlington N. & Santa Fe Ry. Co. v.

United States, 129 S. Ct. 1870, 1880 (2009). Because Hinds does not assert valid

CERCLA claims against Defendants, Hinds’s claims under the California

Carpenter-Presley-Tanner Hazardous Substance Account Act also fail. See Cal.

Health & Safety Code § 25323.5(a)(1).


                                             4
      The district court also did not err in dismissing Hinds’s nuisance claims

against Defendants. Under California law, defendants “who t[ake] affirmative

steps directed toward the improper discharge of solvent wastes . . . may be liable”

for nuisance. City of Modesto Redev. Agency v. Superior Court, 13 Cal. Rptr. 3d

865, 876 (Ct. App. 2004). “While liability for nuisance is broad, however, it is not

unlimited.” Id. at 872. Hinds alleges that Defendants are liable for nuisance based

on their machines’ design, but these allegations sound in products liability, for

which “the law of nuisance is not intended to serve as a surrogate.” Id. at 873; see

City of San Diego v. U.S. Gypsum Co., 35 Cal. Rptr. 2d 876, 883 (Ct. App. 1994).

Hinds also alleges that Defendants are liable because their instruction manuals

stated that waste water from their machines “must flow into an open drain,”“may

be drained into a container or piped directly to a floor drain,” or “should be piped

into an open sewer.” These waste disposal recommendations fall short of the kinds

of “affirmative acts or instructions [that] could support a finding that [D]efendants

assisted in creating a nuisance.” City of Modesto, 13 Cal. Rptr. 3d at 874; see

Team Enters., LLC, slip. op. at __.

      Hinds similarly does not state a claim that satisfies the narrower definition of

trespass. See Capogeannis v. Superior Court, 15 Cal. Rptr. 2d 796, 799 (Ct. App.

1993) (“California’s definition of trespass is considerably narrower than its


                                          5
definition of nuisance.”). Hinds’s claim that Defendants advised dry cleaning

operators to dispose of waste water down the drain and into the sewer depends on

alleged physical disposal by Hinds’s tenants. As Hinds’s tenants consented to the

process whereby the contamination entered Hinds’s property, Hinds cannot bring a

claim against Defendants for trespass. See Cnty. of Santa Clara v. Atl. Richfield

Co., 40 Cal. Rptr. 3d 313, 332 (Ct. App. 2006) (“The flaw in the proposed trespass

cause of action is that plaintiffs’ pleadings indisputably establish that the

[hazardous substance] was placed on plaintiffs’ property by plaintiffs or with their

consent.” (emphasis in original)).

      AFFIRMED.1




      1
       Hinds also appeals the dismissal of its claims brought under the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. §§ 6901 et seq. In a separate
opinion filed simultaneously with this memorandum disposition, we affirm the
dismissal of those claims.

                                            6
