                                                                            FILED
                           NOT FOR PUBLICATION                              MAY 15 2015

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


INSTRUMENTATION LABORATORY                       No. 13-55914
CO.,
                                                 D.C. No. 3:11-cv-00965-DMS-
              Plaintiff - Appellee,              KSC

 v.
                                                 MEMORANDUM*
WALTER BINDER, individually and as
Trustee of the 1998 Binder Family Living
Trust, dated June 1, 1998; et al.,

              Defendants - Appellants.



INSTRUMENTATION LABORATORY                       No. 13-56785
CO.,
                                                 D.C. No. 3:11-cv-00965-DMS-
              Plaintiff - Appellee,              KSC

 v.

WALTER BINDER, individually and as
Trustee of the 1998 Binder Family Living
Trust, dated June 1, 1998; et al.,

              Defendants - Appellants.


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

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                    Appeal from the United States District Court
                       for the Southern District of California
                     Dana M. Sabraw, District Judge, Presiding

                         Argued and Submitted May 4, 2015
                               Pasadena, California

Before: FISHER, BEA, and FRIEDLAND, Circuit Judges.

      Defendants Walter Binder, David Gustafson, Donna Gustafson, Charles

Manganaro and Brys Myers and associated trusts (“Binder”) appeal the district

court’s grant of summary judgment to plaintiff Instrumentation Laboratory

Company (“ILC”) in this diversity action. We affirm.

                                           I.

      ILC claims its contractual rights were violated by Binder’s refusal to

indemnify ILC for the money paid by Inova in litigating the Euro-Diagnostica

actions. ILC has standing to bring this breach of contract claim because it is

asserting its own contractual rights, which are not derivative of Inova’s contractual

rights. ILC is the real party in interest for its own contractual claims, and the

contract does not operate as an assignment of Inova’s claims to ILC. Finally,

because Inova does not claim an interest in the action, it is not a necessary party.

FED. R. CIV. P. 19(a)(1)(B).


                                           2
                                            II.

       The contract unambiguously gives ILC the right to recover repayment for

litigation expenses incurred and paid by Inova. “The question whether an

indemnity agreement covers a given case turns primarily on contractual

interpretation, and it is the intent of the parties as expressed in the agreement that

should control.” Zalkind v. Ceradyne, Inc., 194 Cal. App. 4th 1010, 1024 (2011)

(quotation marks and brackets omitted). Here, the contract provides that “[e]ach

Seller. . . agrees to indemnify, defend, protect and hold harmless Buyer and its . . .

assigns, successors and Affiliates . . . (individually, a “Buyer Indemnified Party” . .

. ) from, against, and in respect of all Liabilities, losses, claims, damages . . .

suffered, sustained, incurred or paid by any Buyer Indemnified Party” on account

of a misrepresentation by the Sellers. (Emphasis added). This language

unambiguously contemplates the indemnity of one Buyer Indemnified Party (such

as ILC) for damages incurred by another Buyer Indemnified Party (such as Inova).

The district court did not err by giving the contractual language its plain meaning.

                                            III.

       The district court did not abuse its discretion when it concluded that it would

have been impracticable for ILC to retain a firm other than Peterson’s new firm to

work on all aspects of the litigation, nor when it concluded that the relevant market

                                             3
rate for Los Angeles attorneys was to be determined by examination of Los

Angeles rates. The district court also did not abuse its discretion by using a

corporate attorney billing rate for Marks.

      For these reasons, the district court’s grant of summary judgment to the

plaintiff and its attorney fee award are

      AFFIRMED.




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