Instrumentation Laboratory Co. v. Walter Binder, individually

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
INSTRUMENTATION LABORATORY
CO.,
Plaintiff - Appellee,
v.
WALTER BINDER, individually and as
Trustee of the 1998 Binder Family Living
Trust, dated June 1, 1998; et al.,
Defendants - Appellants.
No. 13-55914
D.C. No. 3:11-cv-00965-DMS-
KSC
MEMORANDUM*
INSTRUMENTATION LABORATORY
CO.,
Plaintiff - Appellee,
v.
WALTER BINDER, individually and as
Trustee of the 1998 Binder Family Living
Trust, dated June 1, 1998; et al.,
Defendants - Appellants.
No. 13-56785
D.C. No. 3:11-cv-00965-DMS-
KSC
FILED
MAY 15 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).
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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
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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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