Navarro v. Exxon Mobil Corporation

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 14 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE NAVARRO, No. 23-3274 D.C. No. Plaintiff - Appellant, 2:17-cv-02477-DSF-SK v. MEMORANDUM*

EXXON MOBIL CORPORATION, a New Jersey corporation, et al.,

Defendants - Appellees.

Appeal from the United States District Court for the Central District of California Dale S. Fischer, District Judge, Presiding

Argued and Submitted March 24, 2025 Pasadena, California

Before: BOGGS**, FRIEDLAND, and BRESS, Circuit Judges.

Plaintiff Jose Navarro appeals the district court’s dismissal on the pleadings of his trespass claim, grant of summary judgment to Defendants on his nuisance claims, and decertification of the Ground and Air Subclasses. We have jurisdiction

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

under 28 U.S.C. § 1291. We reverse the district court’s dismissal on the pleadings of Navarro’s individual trespass claim and vacate its decertification of the Ground Subclass, and we remand for further proceedings consistent with this decision. We affirm the district court’s grant of summary judgment as to Navarro’s individual nuisance claims and do not reach Navarro’s appeal of the decertification of the Air Subclass.

1. “We review de novo the district court’s dismissal of plaintiff’s complaint for failure to state a claim under [Federal Rule of Civil Procedure] 12(b)(6).” Prodanova v. H.C. Wainwright & Co., LLC, 993 F.3d 1097, 1105 (9th Cir. 2021) (quoting Lipton v. Pathogenesis Corp., 284 F.3d 1027, 1035 (9th Cir. 2002)). Navarro’s trespass claim, as alleged in the operative Corrected Third Amended Complaint, Dist. Ct. Dkt. 260, was based on groundwater and soil contamination as well as resulting soil vapor, and Navarro did not narrow the claim to be based solely on soil vapor. The reply in support of the motion to appoint Navarro as class representative, Dist. Ct. Dkt. 266, which stated that “[t]he trespass claim . . . is premised on evidence that subsurface contamination from the Refinery poses a vapor intrusion risk to the structures in the class area,” is consistent with the theory advanced in the operative complaint that groundwater or soil contamination constitutes a trespass and the soil vapors are part of the alleged harm resulting from that trespass. That reply further stated that the trespass claim was “unchanged” from prior complaints, which had set forth a broader theory of trespass than just soil-vapor intrusion. Similarly, although Navarro’s opposition to Defendants’ motion for judgment on the pleadings, Dist. Ct. Dkt. 297, argued that soil vapor alone could support a trespass claim, it did not waive a trespass theory based also on soil and groundwater contamination.

Under California law, soil and groundwater contamination such as Navarro alleges here can support a claim for trespass. See, e.g., Newhall Land & Farming Co. v. Super. Ct., 23 Cal. Rptr. 2d 377, 383-84 (Cal. Ct. App. 1993) (holding that plaintiffs could state a trespass claim based on allegations of soil and groundwater contamination from petroleum products); KFC W., Inc. v. Meghrig, 28 Cal. Rptr. 2d 676, 685-86 (Cal. Ct. App. 1994) (same). The district court’s dismissal on the pleadings of Navarro’s individual trespass claim was based on an overly narrow interpretation of Navarro’s trespass allegations and is therefore reversed.

Because the district court’s decertification of the Ground Subclass was similarly predicated on its narrow construction of Navarro’s and other class members’ trespass claims, the decertification of the Ground Subclass is vacated and remanded for reconsideration under the broader trespass theory.

2. We review de novo the district court’s decision to grant summary

judgment. Desire, LLC v. Manna Textiles, Inc., 986 F.3d 1253, 1259 (9th Cir. 2021). We must determine, viewing the evidence in the light most favorable to the nonmoving party, “whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law.” Soc. Techs. LLC v. Apple Inc., 4 F.4th 811, 816 (9th Cir. 2021) (quoting KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 408 F.3d 596, 602 (9th Cir. 2005)). Under California law, proving a nuisance claim requires showing, inter alia, that “the invasion of the plaintiff’s interest in the use and enjoyment of the land [is] substantial, i.e., that it cause[s] the plaintiff to suffer substantial actual damage.” San Diego Gas & Elec. Co. v. Super. Ct., 13 Cal. 4th 893, 938 (1996) (internal quotation marks omitted). Here, Navarro did not create a triable issue regarding substantial harm because he did not explain why the evidence that he presented of health risks from air pollution—which showed risk at levels that trigger publicnotice requirements but not mandatory regulatory action—constitutes substantial harm. The potentially stronger arguments that Navarro now raises on appeal about the risks from exposure to ground contamination were not adequately presented to the district court and thus did not create a triable issue.

Because Navarro’s individual nuisance claims fail, he “cannot represent others who may have” such claims, and his “bid to serve as a class representative must fail.” Lierboe v. State Farm Mut. Auto. Ins. Co., 350 F.3d 1018, 1022 (9th Cir. 2003). That principle “is dispositive of the appeal of the class certification,” so we have no need to consider Navarro’s appeal of the decertification of the Air Subclass. Id. at 1022-23.

AFFIRMED in part, REVERSED in part, VACATED in part, and REMANDED for further proceedings consistent with this decision.

Footnotes

[2] 23-3274

[3] 23-3274

[4] 23-3274

[5] 23-3274