                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 04 2010

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




                            FOR THE NINTH CIRCUIT



EXXON MOBIL CORPORATION, a                       No. 08-17651
New Jersey corporation,
                                                 D.C. No. 2:03-cv-02222-WBS-
             Plaintiff- cross-defendant -        EFB
Appellant,

  v.                                             MEMORANDUM *

NEW WEST PETROLEUM, LP, a
California limited partnership; et al.,

             Defendants-cross-claimants -
Appellees,

  and

SARTAJ SINGH BAINS,

            Third-party-defendant-
counter-claimant - Appellee.



                    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


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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.



                                        -2-
      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,


                                           -3-
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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