Gp Vincent II v. the Estate of Edgar Beard

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

GP VINCENT II, a Delaware limited No. 21-16555
liability company,
D.C. No.
Plaintiff-Appellant, 3:20-cv-00745-
VC
v.

THE ESTATE OF EDGAR BEARD, OPINION
DECEASED, an individual; THE
ESTATE OF NORMA BEARD,
DECEASED, an individual; ETCH-
TEK, INC., a dissolved California
corporation,

Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Vince Chhabria, District Judge, Presiding

Argued and Submitted October 20, 2022
San Francisco, California

Filed May 17, 2023

Before: Michael Daly Hawkins, Carlos T. Bea, and
Jacqueline H. Nguyen, Circuit Judges.
2 GP VINCENT II V. THE ESTATE OF BEARD

Opinion by Judge Hawkins;
Concurrence by Judge Bea

SUMMARY *

Environmental Law

The panel reversed the district court’s dismissal, as
barred by claim preclusion, of claims brought under the
Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 (“CERCLA”), and remanded for
further proceedings.
GP Vincent II, the current owner of environmentally
contaminated real property, brought CERCLA cost recovery
claims against the Estates of Norma and Edgar Beard and
Etch-Tek, Inc., the once-removed prior owners and tenant of
the property, respectively. Mayhew Center, LLC, had
purchased the property from the Beards. Walnut Creek
Manor, LLC, owner and operator of a retirement community
adjacent to the property, sued Mayhew. The district court
concluded that Mayhew’s property was the source of the
tetrachloroethylene, or PCE, found on Walnut Creek
Manor’s site and held Mayhew liable under CERCLA and
the California Hazardous Substance Account Act for any
future response costs. While post-trial motions were
pending in the Walnut Creek Manor action, Mayhew sued
Norma Beard, asserting cost recovery and contribution
claims under CERCLA and other claims seeking to hold her

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 GP VINCENT II V. THE ESTATE OF BEARD 3

liable for the judgment against it in the Walnut Creek Manor
action and the contamination on both properties. The district
court consolidated the two actions, and the parties settled.
Mayhew defaulted on its mortgage, and the property was
placed in a state court receivership. GP Vincent took title to
the property and began cleaning it up under an agreement it
had entered into with the Regional Water Quality Control
Board-San Francisco pursuant to the California Land Reuse
and Revitalization Act (“CLRRA”). GP Vincent sued the
Beard Estates, Etch-Tak, and others for CERCLA cost
recovery, CLRRA contribution, and declaratory relief
regarding future response costs. The district court
concluded that the claims against the Beard Estates and
Etch-Tek were barred by claim preclusion.
Reversing, the panel applied the federal law of claim
preclusion, which bars litigation of claims that were raised
or could have been raised in prior litigation if the prior action
(1) reached a final judgment on the merits, (2) involved the
same claim or cause of action as the later lawsuit, and (3)
involved the same parties or their privies. The panel
concluded that the Mayhew/Beard action ended in a final
judgment on the merits. As to identity of claims, however,
the panel concluded that claim preclusion did not apply
because the CERCLA claims asserted in the prior litigation
covered costs and obligations distinct from those underlying
the claims GP Vincent brought because the Mayhew/Beard
action resolved CERCLA liability to remediate the Walnut
Creek Manor property, rather than the property owned by GP
Vincent. Mayhew’s CERCLA claim, which sought
apportionment of the liability stemming from the Walnut
Creek Manor action, was distinct from GP Vincent’s
CERCLA claim, which sought reimbursement for costs
4 GP VINCENT II V. THE ESTATE OF BEARD

incurred in connection with remediation of GP Vincent’s
property’s own contamination.
Concurring in the judgment, Judge Bea wrote that he
would reverse the district court’s res judicata ruling on the
different grounds that GP Vincent was not, and could not be,
in privity with Mayhew, the prior owner. Judge Bea wrote
that, in his view, an owner of a polluted plot of land cannot
pass on its liability for remediation of pollution on that land
under CERCLA to a future owner by mere transfer of title
because CERCLA imposes that liability in personam,
against the person or persons who owned the land, not in
rem, against the property.

COUNSEL

John R. Till (argued), Brian R. Paget, and Melanie A.
Mariotti, Paladin Law Group LLP, Walnut Creek,
California, for Plaintiff-Appellant.

Matthew G. Kleiner (argued) and Steven B. Bitter, Gordon
and Rees Scully Mansukhani LLP, San Diego, California,
for Defendants-Appellees the Estate of Edgar Beard and the
Estate of Norma Beard.

Edward L. Seidel (argued), Womble Bond Dickinson (US)
LLP, San Francisco, California; Scott M. McLeod and Keith
Casto, Cooper White & Cooper LLP, San Francisco,
California; for Defendant-Appellee Etch-Tek Inc.
 GP VINCENT II V. THE ESTATE OF BEARD 5

OPINION

HAWKINS, Circuit Judge:

In this decade-old environmental litigation, we face this
question: Does a final judgment resolving a contribution
claim under the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (“CERCLA”)
between two prior owners of environmentally contaminated
real property bar a subsequent purchaser, who takes title with
full knowledge of the condition of the land and that
judgment, from pursuing a CERCLA cost recovery claim
against a prior owner released under the earlier judgment?
The district court answered that question in the affirmative
and dismissed CERCLA claims brought by GP Vincent II,
the current owner of environmentally contaminated real
property located at 3313 Vincent Road in Pleasant Hill,
California (the “Property”), against the Estates of Norma and
Edgar Beard (the “Beard Estates”) and Etch-Tek, Inc., the
once-removed prior owners and tenant of the Property,
respectively. We have jurisdiction under 28 U.S.C.
§ 1292(b). Because we conclude the CERCLA claims
asserted in the prior litigation covered costs and obligations
distinct from those underlying the claims GP Vincent now
brings, we reverse and remand.
I. BACKGROUND
Norma and Edgar Beard owned the Property in the 1970s
and 1980s. From at least 1973 to 1981, Etch-Tek, a company
run by Edgar, manufactured printed circuit boards at a
facility located on the Property. It is believed that Etch-
Tek’s manufacturing activities resulted in the release of the
hazardous substance tetrachloroethylene (also known as
“PCE”) into the Property’s soil and groundwater.
6 GP VINCENT II V. THE ESTATE OF BEARD

By 1992, Etch-Tek had relocated its facilities, and
Mayhew Center, LLC, a limited liability company managed
by Dean Dunivan (collectively with Mayhew Center, LLC,
“Mayhew”), purchased the Property. According to Mayhew,
it used the Property primarily for office and storage space
and did not conduct any activities involving PCE. At some
point around 2004, Mayhew secured a promissory note with
the Property. Shortly thereafter, litigation ensued.
A. Walnut Creek Manor, LLC v. Mayhew Center, LLC
(the “Walnut Creek Manor Action”).
By 2007, Walnut Creek Manor, LLC, the owner and
operator of a retirement community adjacent to the Property,
learned that the soil beneath its retirement community near
the Mayhew property line was contaminated with PCE, and
its investigations indicated that the PCE contamination
emanated from the Property. Walnut Creek Manor sued
Mayhew and the then-defunct Etch-Tek in federal court.
Walnut Creek Manor, LLC v. Mayhew Ctr., LLC, No. 4:07-
cv-5664-CW (N.D. Cal.). Walnut Creek Manor sought to
hold Mayhew liable for the contamination of its property
and, to that end, asserted numerous claims, including
CERCLA cost recovery, nuisance, trespass, and negligence,
against Mayhew and Etch-Tek.
Walnut Creek Manor prevailed in the action. A jury
awarded Walnut Creek Manor $350,000 in past damages and
$1,597,000 in future damages. With regard to Walnut Creek
Manor’s claims under CERCLA and the California
Hazardous Substance Account Act, the district court
concluded that the Property was the source of the PCE found
on Walnut Creek Manor’s property and held that Mayhew
“is 100 percent liable for any future response costs that are
 GP VINCENT II V. THE ESTATE OF BEARD 7

necessary and consistent with the national contingency
plan.”
B. Mayhew Center, LLC v. Norma Beard (the
“Mayhew/Beard Action”).
While post-trial motions were pending in the Walnut
Creek Manor Action, Mayhew sued Norma Beard seeking
contribution for the judgment against it. Mayhew Center,
LLC v. Norma Beard, Case No. 4:10-cv-00527-CW (N.D.
Cal.). By that time, Edgar Beard was deceased and Etch-
Tek had been dissolved, so Mayhew named only Norma
Beard as a defendant.
In relevant part, Mayhew alleged that Etch-Tek
discharged pollutants, including PCE, into the Property’s
soil during its manufacturing operations. Norma, along with
her husband, were the property owners at the time of the
contamination, and Edgar “actively participated in the
design and operation of Etch-Tek” such that the Beards “had
full and complete knowledge of Etch-Tek’s handling and
disposal practices.” Mayhew further alleged that it had been
held “liable for $1.974 million in past and future damages to
Walnut Creek Manor and for 100% contribution to the cost
of any cleanup to either property.” Mayhew asserted cost
recovery and contribution claims under CERCLA as well as
several other common law and statutory claims by which it
sought to hold Norma liable for the judgment against it in
the Walnut Creek Manor Action and the contamination on
both properties. Ultimately, Mayhew sought damages; an
order requiring “Beard to remediate the Mayhew Center
property and Walnut Creek Manor property”; and a
judgment “declaring Beard liable for the costs of
investigating, litigating and remedying the release of
8 GP VINCENT II V. THE ESTATE OF BEARD

hazardous substances at and in the vicinity of the Mayhew
Center property and the Walnut Creek Manor property.”
Before Norma filed an answer to the complaint, the
district court consolidated the Mayhew/Beard Action with
the Walnut Creek Manor Action and referred both cases to a
magistrate judge for a settlement conference.
C. Settlement of the Walnut Creek Manor Action
and Mayhew/Beard Action.
Over the next few months, the parties in the Walnut
Creek Manor Action and Mayhew/Beard Action (i.e.,
Walnut Creek Manor, Mayhew, Etch-Tek, and Norma
Beard) participated in settlement conferences and in October
2010 reached a settlement (the “Settlement Agreement”).
The Settlement Agreement was entered into by Walnut
Creek Manor; Mayhew; Truck Insurance Exchange, insurer
of Norma Beard; Norma Beard, “individually and as
successor-in-interest to the Estate of Edgar Beard”; “and her
sons, Kenneth, Richard, and Ronald Beard, RKR
Investments, Inc., Etch-Tek, and Etch-Tek, Inc.” Under the
terms of the Settlement Agreement, Walnut Creek Manor
was to be paid $400,000 in satisfaction of the jury’s award
of past damages and costs. Those funds were provided by
Truck Insurance, on behalf of its insured Norma Beard. In
place of the jury’s award of future damages, the parties
agreed to create an escrow account funded with
$1,150,000—$300,000 contributed by Truck Insurance, on
behalf of Norma Beard; $150,000 contributed by Norma
Beard herself; and $700,000 contributed by Mayhew—from
which Mayhew could draw on pursuant to an Escrow
Agreement that was attached as an exhibit to the Settlement
Agreement. The Settlement Agreement tasked Mayhew
with all cleanup responsibilities and contained a series of
 GP VINCENT II V. THE ESTATE OF BEARD 9

releases and indemnification obligations. The Escrow
Agreement only allowed disbursements to be made for
remediation of the Walnut Creek Manor property and a
certain portion of the Mayhew Center property that was
“along the boundary with the [Walnut Creek Manor]
property.”
Following the settlement, the district court approved and
entered a stipulated order dismissing the Mayhew/Beard
Action with prejudice and a stipulated order and injunction
in the Walnut Creek Manor Action. The stipulated order and
injunction in the Walnut Creek Manor Action outlined the
parties’ payment obligations and Mayhew’s remediation
obligations. The court ordered Mayhew to “cleanup and
abate all PCE in soil vapor, soil and groundwater at and
beneath the WCM Remediation Area to concentration levels
at or below the residential standards for PCE.” The WCM
Remediation Area included portions of Walnut Creek Manor
abutting Mayhew Center, including Walnut Creek Manor’s
“Maintenance Building, apartment building numbers 20, 21,
22, 23, 26, 27, 28, 29 and Laundry Rooms 6 and 7, and any
soil vapor, soil and groundwater at or beneath” that area.
Mayhew failed to remediate all contamination at the
WCM Remediation Area by the agreed-upon November
2012 deadline, and Walnut Creek Manor moved for
sanctions and disbursement of the remaining escrow funds.
The district court found Mayhew in contempt and ordered it
to complete its cleanup and abatement obligations and
release all remaining escrow funds to Walnut Creek Manor.
Eventually, Mayhew defaulted on its mortgage, and the
Property was placed in a state court receivership. That is
when GP Vincent stepped in.
10 GP VINCENT II V. THE ESTATE OF BEARD

D. GP Vincent’s Acquisition of the Property.
GP Vincent was formed in 2016 for the purpose of
purchasing, cleaning up, and developing the Property. Prior
to acquiring the Property, GP Vincent entered into an
agreement with the Regional Water Quality Control Board–
San Francisco under which GP Vincent assumed the
obligation to clean up the Property pursuant to the California
Land Reuse and Revitalization Act (“CLRRA”). The
agreement indicates that GP Vincent would be “entitled to
the immunities provided for in CLRRA” upon entry of the
agreement and acquisition of title to the Property.
In February 2017, GP Vincent purchased the promissory
note secured by the Property and foreclosed on and took title
to the Property. GP Vincent then began cleaning up the
Property pursuant to its CLRRA Agreement.
II. PROCEDURAL HISTORY
GP Vincent initiated the underlying litigation in January
2020. The operative complaint asserts three claims against
the Beard Estates, 1 Etch-Teck, Mayhew, and others. The
claims include: (1) CERCLA cost recovery, (2) CLRRA
contribution, and (3) declaratory relief regarding future
response costs.
The Beard Estates and Etch-Tek moved under Federal
Rule of Civil Procedure 12(b)(6) to dismiss the claims
against them on the basis of claim preclusion. The district
court granted the motion. The district court assumed that GP
Vincent’s claim arose under a different CERCLA provision
than Mayhew’s prior claim but nonetheless concluded the

1
GP Vincent is suing the Estates of Norma and Edgar Beard pursuant to
California Probate Code Section 550 only “to the extent of [their] estate’s
insurance assets.”
 GP VINCENT II V. THE ESTATE OF BEARD 11

claims were the same because both regarded the Property’s
PCE contamination. The court also found that (1) Edgar
Beard and Etch-Tek were in privity with Norma Beard, such
that they could benefit from the final judgment in the
Mayhew/Beard Action; and (2) GP Vincent was in privity
with Mayhew, such that it could be bound by the final
judgment in the Mayhew/Beard Action. GP Vincent timely
appealed.
III. STANDARD OF REVIEW
We review de novo an order dismissing a complaint on
claim preclusion grounds. Media Rts. Techs., Inc. v.
Microsoft Corp., 922 F.3d 1014, 1020 (9th Cir. 2019). “We
take the factual allegations in the complaint as true and
construe them in the light most favorable to the plaintiff.”
Whittaker Corp. v. United States, 825 F.3d 1002, 1006 (9th
Cir. 2016). Because we are analyzing the preclusive effect
of a federal court judgment, we apply the federal law of
claim preclusion. Tahoe-Sierra Pres. Council, Inc. v. Tahoe
Reg’l Plan. Agency, 322 F.3d 1064, 1077 n.10 (9th Cir.
2003).
IV. DISCUSSION
“Res judicata, also known as claim preclusion, bars
litigation in a subsequent action of any claims that were
raised or could have been raised in the prior action.” Owens
v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713 (9th
Cir. 2001) (citation omitted). The doctrine applies if the
earlier litigation (1) reached a final judgment on the merits,
(2) involved the same claim or cause of action as the later
lawsuit, and (3) involved the same parties or their privies.
Mpoyo v. Litton Electro-Optical Sys., 430 F.3d 985, 987 (9th
Cir. 2005).
12 GP VINCENT II V. THE ESTATE OF BEARD

A. Final Judgment on the Merits.
The Mayhew/Beard Action ended in a judgment
dismissing all claims with prejudice—a form of judgment
generally deemed preclusive. Headwaters Inc. v. U.S.
Forest Serv., 399 F.3d 1047, 1052 (9th Cir. 2005) (“[A]
stipulated dismissal of an action with prejudice in a federal
district court generally constitutes a final judgment on the
merits and precludes a party from reasserting the same
claims in a subsequent action in the same court.”); Int’l
Union of Operating Engineers-Emps. Const. Indus. Pension,
Welfare & Training Tr. Funds v. Karr, 994 F.2d 1426, 1429
(9th Cir. 1993) (“The dismissal of the action with prejudice
constitutes a final judgment on the merits.”).
GP Vincent’s argument that Mayhew breached the terms
of its lending agreement by entering into a settlement and
stipulating to the dismissal of its claims without the
permission of its lender has no bearing on the finality of the
judgment. Cf. Federated Dep’t Stores, Inc. v. Moitie, 452
U.S. 394, 398 (1981) (“[A]n erroneous conclusion reached
by the court in the first suit does not deprive the defendants
in the second action of their right to rely upon the plea of res
judicata.” (internal quotation marks and citation omitted)).
B. Identity of Claims.
We next examine whether the claims asserted below are
the same as the claims asserted in the Mayhew/Beard Action.
To do so, we consider four factors: (1) whether the rights or
interests established by the prior judgment would be
destroyed or impaired by prosecution of the second action,
(2) whether substantially the same evidence is presented in
the two actions, (3) whether the two suits involve
infringement of the same right, and (4) whether the two suits
arise out of the same transactional nucleus of facts. Mpoyo,
 GP VINCENT II V. THE ESTATE OF BEARD 13

430 F.3d at 987. We have often deemed the fourth factor the
most important. See Turtle Island Restoration Network v.
U.S. Dep’t of State, 673 F.3d 914, 918 (9th Cir. 2012).
The nature of CERCLA claims and remedies makes the
inquiry before us a difficult one, so we begin with an
overview of the statutory scheme. “Congress enacted
CERCLA in 1980 to facilitate the remediation of hazardous
waste sites and the resolution of liability for the related
costs” by, among other things, allowing parties to seek
reimbursement for costs associated with the remediation of
hazardous waste. Whittaker, 825 F.3d at 1006.
To that end, CERCLA “provides two mechanisms for
private parties to recoup their cleanup costs: cost-recovery
actions under § 107(a), 42 U.S.C. § 9607(a), and
contribution actions under § 113(f), id. § 9613(f).” 2 Arconic,
Inc. v. APC Inv. Co., 969 F.3d 945, 951 (9th Cir. 2020). A
§ 107 claim allows a party that has incurred costs in
connection with the investigation and remediation of
environmental contamination to seek reimbursement of “a
wide range of expenses” from other potentially liable parties.
Whittaker, 825 F.3d at 1006. “In the lingo of CERCLA
litigation, a polluter who might be liable under a § 107 cost
recovery action is called a ‘potentially responsible party’ or
‘PRP.’” Id. (quoting Chubb Custom Ins. Co. v. Space
Sys./Loral, Inc., 710 F.3d 946, 956 (9th Cir. 2013)). A cost
recovery action imposes strict liability, and “a successful §
107(a) claim generally results in [a PRP] being held jointly
and severally liable for all cleanup costs sought in the suit,
even those attributable, at least in part, to [other PRPs].”

2
We employ the common convention of referring to the Public Law
section numbers of CERCLA and citing to the United States Code.
14 GP VINCENT II V. THE ESTATE OF BEARD

Arconic, 969 F.3d at 951. Thus, CERCLA also provides for
contribution actions under which PRPs that have been held
liable for more than their fair share may “force [other PRPs]
to shoulder their share of the burden.” Id. “[A] claim for
contribution, unlike one for cost recovery, turns on a party
first facing or incurring liability to a third party.” Id. In other
words, “[a] party uses contribution to get reimbursed for
being made to pay more than its fair share to someone else,
and uses cost recovery to get reimbursed for its own
voluntary cleanup costs.” Whittaker, 825 F.3d at 1007.
With CERCLA’s structure in mind, we turn to the facts
of the Mayhew/Beard Action and GP Vincent’s underlying
claims. At a high level, both lawsuits arise out of the events
involving release of PCE on the Property and responsibility
for that contamination. Both cases necessarily involve an
examination of the conduct of the Beards and Etch-Tek and
their roles in causing the PCE contamination. The district
court adopted this broad construction of the operative claims
and concluded that the lawsuits involved (1) the same
evidence—“whether and to what degree the Beards and
Etch-Tek are responsible for the contamination based on
their actions in the 1970s and 1980s”; (2) the same right—
the right to ensure that the costs of cleanup are borne by
those responsible for the contamination; (3) the same
recovery—damages arising from the contamination-causing
conduct; and (4) the same nucleus of facts—the discharge of
pollutants into the Property’s soil at a particular time and the
costs associated with cleaning up that contamination.
However, when the factual bases of these claims are
construed more specifically, it becomes apparent that the
prior litigation resolved CERCLA liability to remediate the
Walnut Creek Manor property rather than the Property at
issue here. The Mayhew/Beard Action sought contribution
 GP VINCENT II V. THE ESTATE OF BEARD 15

for liability imposed by the Walnut Creek Manor Action
judgment, which pertained to the damage to and remediation
of Walnut Creek Manor’s property. Although the
Mayhew/Beard complaint purported to seek both § 113(f)
contribution for the Walnut Creek Manor Action judgment
and § 107 cost recovery for expenses related to PCE “under
and emanating from [the] Mayhew Center property,” the
Settlement Agreement and stipulated injunction order
focused on the Walnut Creek Manor property. Specifically,
the Escrow Agreement, which was incorporated by the
Settlement Agreement and the injunction order, only
allowed money from the settlement-created escrow account
to be used for remediating the Walnut Creek Manor property
and a portion of the Property adjacent to the Walnut Creek
Manor property. Further, the stipulated injunction order
entered by the district court required Mayhew to remediate
only the “WCM REMEDIATION AREA.” 3 That the court
released all escrow funds to Walnut Creek Manor after
holding Mayhew in contempt bolsters this conclusion.
The Mayhew/Beard Action thus involved a comparative
analysis of Norma Beard and Mayhew’s roles in causing
PCE contamination on Walnut Creek Manor’s property, not
the Property at issue here. That inquiry would most likely
involve evidence regarding Norma Beard’s role in the PCE
contamination of the Property itself and any conduct on

3
As noted earlier, the “WCM REMEDIATION AREA” included “the
Maintenance Building, apartment building numbers 20, 21, 22, 23, 26,
27, 28, 29 and Laundry Rooms 6 and 7”—all within Walnut Creek
Manor’s property.
16 GP VINCENT II V. THE ESTATE OF BEARD

Mayhew’s part that caused the contamination to spread. 4
Resolution of that contribution action solidified the parties’
responsibilities for paying the damages awarded to Walnut
Creek Manor and costs associated with remediating the
contamination on Walnut Creek Manor’s property. GP
Vincent’s cost recovery claims, in comparison, regard the
costs GP Vincent has incurred remediating the
contamination on the Property itself and seek to assess strict
liability for those costs—a determination that focuses
exclusively on the Property’s contamination and would not
undermine a resolution regarding liability for the Walnut
Creek Manor judgment.
Several considerations counsel in favor of adopting a
narrower construction of the claims here. First, as we have
noted, Mayhew’s contribution claim was triggered by the
judgment in the Walnut Creek Manor Action. Beyond
denying Mayhew’s cross claims and thereby establishing
that Walnut Creek Manor was not responsible for any PCE
contamination or liable to Mayhew for any future response
costs, the judgment did not directly involve costs relating to
contamination on Mayhew’s own property. 5 Cf. Arconic,

4
For example, in the Walnut Creek Manor Action, the district court
found that Mayhew engaged in slant boring near the lot line that created
a pathway that allowed contaminants to migrate into Walnut Creek
Manor’s soil.
5
The stipulated injunction order entered in the Walnut Creek Manor
Action describes Mayhew’s complaint in the Mayhew/Beard Action as
“seeking, among other things, recovery of the damages awarded by the
jury to [Walnut Creek Manor].” The Settlement Agreement similarly
describes the Mayhew/Beard Action as “seeking indemnity and
contribution from Beard, as a prior owner of the Mayhew Center
property, for the damages that [Mayhew] incurred in the [Walnut Creek
Manor] Action.”
 GP VINCENT II V. THE ESTATE OF BEARD 17

969 F.3d at 954 (explaining settlement of plaintiff’s claims
against de minimis polluters did not trigger limitations
period for contribution claim because it did not resolve a suit
against plaintiff or impose costs on plaintiff). And it is
unclear whether Mayhew had voluntarily incurred any costs
in connection with cleaning up the Property that would have
supported a separate cost recovery claim. 6 See United States
v. Atl. Rsch. Corp., 551 U.S. 128, 139 (2007).
Second, CERCLA expressly contemplates successive
cost recovery actions because § 107 permits recovery only
of those costs already incurred. See Stanton Rd. Assocs. v.
Lohrey Enters., 984 F.2d 1015, 1021 (9th Cir. 1993).
Indeed, CERCLA mandates that district courts enter
declaratory judgments as to future liability and dictates that
those liability determinations will be binding in subsequent
actions involving later-incurred costs. See 42 U.S.C. §
9613(g)(2)(B) (“In any such action [for the recovery of costs
under § 107], the court shall enter a declaratory judgment on
liability for response costs or damages that will be binding
on any subsequent action or actions to recover further
response costs or damages.”); see also Media Rts. Techs.,
922 F.3d at 1021 (explaining that claim preclusion does not
bar claims that accrue after the filing of the operative
complaint).
And we have recognized the viability of successive
CERCLA claims regarding separate obligations. See
Arconic, 969 F.3d at 953–54 (explaining that settlement

6
In fact, the district court found that “the prior Mayhew Center lawsuit
must be understood as a section 113 action.” The statutory vehicle itself
is not dispositive in this case, but it is relevant to our understanding of
the factual basis of Mayhew’s claim and the scope of obligations covered
in the prior litigation.
18 GP VINCENT II V. THE ESTATE OF BEARD

regarding costs to remediate original plume did not give rise
to contribution claim for costs relating to remediation of
additional plume, formed when the contamination migrated
into neighboring land downgradient of the original plume);
Whittaker, 825 F.3d at 1013 (recognizing plaintiff could
pursue § 107 cost recovery claim for costs incurred in
cleaning up property that were separate from the costs for
which it was liable under settlement resolving earlier
litigation); ASARCO, LLC v. Celanese Chem. Co., 792 F.3d
1203, 1215 (9th Cir. 2015) (noting “that there is no limit in
the statute to prevent a party in an early settlement from
seeking contribution related to a later settlement, so long as
those settlements cover separate obligations).
Finally, when interpreting CERCLA, we must take care
to construe the statute “to effectuate its two primary goals:
(1) to ensure the prompt and effective cleanup of waste
disposal sites, and (2) to assure that parties responsible for
hazardous substances [bear] the cost of remedying the
conditions they created.” United States v. Sterling
Centrecorp Inc., 977 F.3d 750, 756 (9th Cir. 2020) (internal
quotation marks and citation omitted). There is no doubt that
the Mayhew/Beard Action resolved Norma Beard’s
CERCLA liability for the judgment in the Walnut Creek
Manor Action and the cleanup of Walnut Creek Manor’s
property. However, we cannot say, on the current record,
that the judgment in the Walnut Creek Manor Action
resolved her CERCLA liability for the remediation of the
Property’s own contamination—the sole focus of GP
Vincent’s instant claims.
Consequently, we conclude, on this record, that
Mayhew’s CERCLA claim—which sought apportionment
of the liability stemming from the Walnut Creek Manor
Action—is distinct from GP Vincent’s CERCLA claim—
 GP VINCENT II V. THE ESTATE OF BEARD 19

which seeks reimbursement for costs incurred in connection
with remediation of the Property’s own contamination. 7 In
so concluding, we do not hold that the distinctions between
§ 107 and § 113 CERCLA claims are dispositive, only that
the record and facts of this case lead to the conclusion that
the prior litigation concerned different liability than the
present litigation.
C. Privity.
Because we conclude that Mayhew’s § 113 contribution
claim regarding contamination of the Walnut Creek Manor
property is distinct from the § 107 cost recovery claim GP
Vincent asserts here, we need not decide whether GP
Vincent is in privity with Mayhew or whether a final
judgment regarding responsibility for the contamination and
restoration of the Property would be binding on a subsequent
property owner.
We do note that the district court erred, at a minimum, in
determining on the pleadings that the judgment against
Norma Beard, the sole defendant in the Mayhew/Beard
Action, also barred any claims against Edgar Beard and
Etch-Tek, non-parties to the Mayhew/Beard Action.
“Generally speaking, the pursuit of a claim against one
individual will not bar the pursuit of the same claim against
another.” See F.T.C. v. Garvey, 383 F.3d 891, 898 n.6 (9th
Cir. 2004) (citing Restatement (Second) of Judgments § 49
(1982)). Although non-party preclusion may apply where
the non-party is adequately represented by someone with the
same interests who was a party to the prior litigation, Taylor

7
The district court dismissed GP Vincent’s CLRRA claim, concluding
it was largely duplicative of the CERCLA claim and subject to the same
res judicata analysis. Therefore, we also reverse and remand the
dismissal of the CLRRA claim.
20 GP VINCENT II V. THE ESTATE OF BEARD

v. Sturgell, 553 U.S. 880, 894 (2008), that is a fact-intensive
inquiry in this case best determined outside the confines of a
Rule 12(b)(6) motion.
V. CONCLUSION
Because we conclude there is not a sufficient identity of
claims, it was error to dismiss the complaint on claim
preclusion grounds. We reverse and remand to the district
court for further proceedings consistent with this opinion.
REVERSED AND REMANDED.

BEA, Circuit Judge, concurring in the judgment:

I concur in the majority’s judgment, which reverses the
district court’s dismissal of GP Vincent II’s (“GP Vincent”)
claims under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (“CERCLA”)
against Etch-Tek, Inc. (“Etch-Tek”) and the Estates of
Norma and Edgar Beard (collectively “Defendants”) as
barred by res judicata. But I do so on the quite different
grounds that GP Vincent, which owns the real property
located at 3313 Vincent Road, Pleasant Hill, California (the
“Mayhew Center Property”), is not—and cannot be—in
privity with the prior owner, Mayhew Center, LLC
(“Mayhew”). Thus, Defendants’ claim of res judicata does
not bar GP Vincent’s action.
In my view, an owner of a polluted plot of land cannot
pass on its liability for remediation of pollution on that land
under CERCLA to a future owner by mere transfer of title.
That is so because CERCLA imposes that liability in
personam—against the person or persons who owned the
land—not in rem—against the property. And a future owner
 GP VINCENT II V. THE ESTATE OF BEARD 21

is not precluded from maintaining a cost-recovery action to
recoup its remediation costs even when the prior owners
were previously embroiled in CERCLA litigation over the
same polluted land (and even when they had entered into a
settlement agreement amongst themselves, which settlement
was reduced to a judgment).
Simply put, GP Vincent’s current CERCLA pollution
remediation cost-recovery action against Defendants, the
previous owners and operator of the Mayhew Center
Property, is not precluded by the terms of the stipulated
dismissal of Mayhew’s prior CERCLA litigation claims
regarding the Mayhew Center Property, to which stipulated
dismissal GP Vincent was not a party. The lack of privity
between GP Vincent and Mayhew is fatal to Defendants’
claimed res judicata defense as to GP Vincent’s present
action. For this reason, I concur in the majority’s judgment
that the district court’s decision to dismiss this case must be
reversed.
I. BACKGROUND
I agree in large part with the majority’s recitation of the
facts and history of this case. But there are some details the
majority does not discuss that are essential to the resolution
of this appeal. Thus, I will summarize the case’s background
with a particular focus on those details before I turn to the
legal issues it raises.
The Mayhew Center Property was initially owned by
Norma and Edgar Beard, whose interests are represented in
this appeal by their respective estates. Etch-Tek, a now-
defunct California corporation owned by Edgar Beard,
leased the Mayhew Center Property as lessee during the
1980’s to manufacture circuit boards. It is presumed that
Etch-Tek’s manufacturing is the likely source of the
22 GP VINCENT II V. THE ESTATE OF BEARD

tetrachloroethylene (“PCE”) pollution currently on the
Mayhew Center Property. In 1992, Mayhew purchased the
Mayhew Center Property from the Beards. GP Vincent
alleges that while Mayhew owned the Mayhew Center
Property—purportedly in 2004 1—Mayhew secured a loan
through a mortgage note, which mortgage note encumbered
the Mayhew Center Property. Mayhew owned the Mayhew
Center Property until foreclosure proceedings began
sometime between 2014 and 2017 on the mortgage note
Mayhew had executed.
As the majority recounts, Walnut Creek Manor, LLC
(“Walnut Creek Manor”) was the owner of land adjacent to
the Mayhew Center Property. Walnut Creek Manor sued
Mayhew in 2007 in federal court under CERCLA to recover
for the costs of remediation for the PCE pollution on Walnut
Creek Manor’s land it suspected had seeped from the
Mayhew Center Property (the “Walnut Creek Manor
Action”). After a jury trial, Walnut Creek Manor obtained a
judgment against Mayhew for past and future damages
arising from the contamination on Walnut Creek Manor’s
land. Mayhew was adjudged “100 percent liable for any
future response costs” under CERCLA for the remediation
of the Walnut Creek Manor property.
To fund its anticipated CERCLA-related liability,
Mayhew then sued prior owner Norma Beard (the “Mayhew-

1
The date of recordation is not in the record. I suggest the note was
recorded in 2004 because that is what GP Vincent claims in its appellate
briefing. I accept this as true for two reasons. First, my analysis does
not depend on when the note was secured by the Mayhew Center
Property or whether it was recorded. See infra Part II. Second,
Defendants’ briefing appears to accept that the note pre-dates the Walnut
Creek Manor initiated CERCLA litigation involving the Mayhew Center
Property.
 GP VINCENT II V. THE ESTATE OF BEARD 23

Beard Suit”). Mayhew asserted three claims for relief that
are relevant to this appeal: Mayhew brought a (1) CERCLA
§ 107 cost-recovery claim against Norma Beard to recover
for remediation of pollution on both the Mayhew Center and
Walnut Creek Manor properties; (2) a CERCLA § 113
contribution claim against Norma Beard for the anticipated
costs of Mayhew’s remediation of both the Mayhew Center
and Walnut Creek Manor properties; and (3) a claim for
declaratory relief to absolve Mayhew of responsibility for
the PCE contamination on both properties. The district court
consolidated the Mayhew-Beard Suit with the now-post
judgment Walnut Creek Manor Action. The parties to both
actions were then ordered to attend settlement conferences
before a magistrate.
These conferences resulted in a global settlement
agreement that was signed by the parties to the consolidated
actions in October 2010. The signatories included Walnut
Creek Manor, Mayhew, Norma Beard, Norma Beard’s
insurer, and representatives of Etch-Tek. 2 The global
settlement apportioned costs among the parties to facilitate
the clean-up of both the Mayhew Center Property and
Walnut Creek Manor’s land. The agreement’s recitals stated
that the settlement “compensate[d] [Walnut Creek Manor]
for its past damages,” “establish[ed] an escrow fund,” and
confirmed that Mayhew was “responsible for and w[ould]
perform necessary cleanup of the PCE contamination
existing at the [Mayhew Center] and [Walnut Creek Manor]
properties.” The parties gave this agreement teeth as among

2
Only Norma Beard purported to represent another’s interest: she signed
“individually and as successor-in-interest to Estate of Edgar Beard.”
Mayhew, in contrast, signed only in its individual capacity as “Mayhew
Center LLC, a limited liability company organized under California
law.”
24 GP VINCENT II V. THE ESTATE OF BEARD

themselves. But the agreement was silent as to the
imposition of any covenants running with the Mayhew
Center Property or the creation of any interests secured by
the land to guarantee the obligations described in the
settlement agreement. And the record does not contain any
evidence that the settlement agreement was recorded with
the local county recorder’s office, so as to give notice to
persons interested in the land.
Because of this settlement, the parties stipulated to a
dismissal with prejudice in the Mayhew-Beard Suit, which
the district court approved. And they stipulated to the entry
of a proposed injunction order in the Walnut Creek Manor
Action. The district court approved and entered the
injunction order on November 23, 2010. The injunction
order incorporated the parties’ recitals, which announced
that the settlement agreement “compensate[d] [Walnut
Creek Manor] for its past damages and cost award,
establish[ed] an escrow fund[,] . . . [and resolved that
Mayhew was] responsible for and w[ould] perform
necessary clean up of the PCE contamination existing at the
[Mayhew Center] and [Walnut Creek Manor] properties.”
The parties’ filings evinced their unanimous agreement
that the global settlement obligated Mayhew to remediate the
PCE pollution on both the Mayhew Center and Walnut
Creek Manor properties. Yet, Mayhew failed to do so. As a
result, Mayhew was found in contempt for its violation of
the Walnut Creek Manor Action injunction order. Mayhew
was then ordered on February 12, 2014, to “release all
remaining escrow funds to [Walnut Creek Manor]
immediately.” Mayhew subsequently defaulted on the 2004
mortgage note. As a result of the default, the Mayhew
Center Property was placed in a “state court receivership” by
judicial foreclosure proceedings initiated by Mayhew’s
 GP VINCENT II V. THE ESTATE OF BEARD 25

then-mortgagee. The timing of both the default and the
receivership estate’s creation are unclear from the record. 3
Enter GP Vincent stage right. GP Vincent alleges that
on February 1, 2017, it purchased the non-performing
mortgage note from Mayhew’s initial mortgagee. One day
later, GP Vincent alleges it initiated nonjudicial foreclosure
proceedings to gain title to the Mayhew Center Property. As
the highest bidder at the consequent foreclosure sale, GP
Vincent obtained title to the Mayhew Center Property. Cal.
Civ. Code §§ 2924g–2924h. GP Vincent began to remediate
the Mayhew Center Property and then sued Defendants (and
several others not party to this appeal) for cost-recovery.
Defendants moved to dismiss GP Vincent’s claims as barred
by res judicata. The district court found that GP Vincent
was in privity with Mayhew and that there was an identity of
claims between those settled in the Mayhew-Beard Suit and
those GP Vincent alleged in its complaint. It therefore
dismissed GP Vincent’s claims with prejudice. GP Vincent
timely appealed.
II. LACK OF PRIVITY
The question before us is whether Defendants can bar GP
Vincent’s current suit under the doctrine of res judicata.
Defendants argue that GP Vincent, as the current owner of

3
We are first informed of Mayhew’s default and state court receivership
over the Mayhew Center Property on January 31, 2017, when these
details were recited in GP Vincent’s agreement with the California
Regional Water Quality Control Board that outlined GP Vincent’s plan
to remediate the Mayhew Center Property. The contempt order dated
February 12, 2014, implied Mayhew still possessed the Mayhew Center
Property as of that date. Thus, Mayhew’s default and the imposition of
a receivership estate on the Mayhew Center Property occurred at some
time between February 12, 2014, and January 31, 2017.
26 GP VINCENT II V. THE ESTATE OF BEARD

the Mayhew Center Property, is Mayhew’s ‘successor-in-
interest.’ They believe this necessarily implies GP Vincent
is bound, as was Mayhew, to the stipulated dismissal of the
Mayhew-Beard Suit. For a suit to be barred by res judicata,
there must be (1) an identity of claims between the current
suit and the prior litigation, (2) a final judgment on the merits
in the prior suit, and (3) the same parties or their privies in
both cases. Mpoyo v. Litton Electro-Optical Sys., 430 F.3d
985, 987 (9th Cir. 2005).
A. Applicable Legal Standard
Res judicata prevents “successive litigation of the very
same claim, whether or not relitigation of the claim raises the
same issues as the earlier suit.” New Hampshire v. Maine,
532 U.S. 742, 748 (2001). Defendants rely on the rule that
“preceding and succeeding owners of property” may be
bound to the same judgment. Taylor v. Sturgell, 553 U.S.
880, 894 (2008). Because first Mayhew and then GP
Vincent owned the Mayhew Center Property, Defendants
contend GP Vincent is the ‘succeeding’ Mayhew Center
Property owner and cannot ‘re-litigate’ the CERCLA claims
Mayhew brought against Norma Beard in the Mayhew-
Beard Suit.
But mere successive-in-time property ownership is not
so talismanic. That two parties who owned the same
property at different times bring lawsuits with similar claims
does not automatically mean the succeeding owner’s claims
are barred by res judicata because the first owner’s claims
resulted in a judgment against him. The rule that succeeding
property owners can be bound by the doctrine of res judicata
“originate[s] . . . from the needs of property law” and
protects the finality of a judgment in litigation over those
rights associated with the property itself. Id. at 894
 GP VINCENT II V. THE ESTATE OF BEARD 27

(emphasis added) (citation omitted). This application of res
judicata does not apply if the litigation does not adjudicate a
party’s interests in the property itself. 4 Postal Telegraph
Cable Co. v. City of Newport, 247 U.S. 464, 474–75 (1918)
(“The ground upon which, and upon which alone, a
judgment against a prior owner is held conclusive against his
successor in interest, is that the estoppel runs with the
property, that the grantor can transfer no better right or title
than he himself has, and that the grantee takes cum onere.” 5
(emphasis added)); Minn. Mining Co. v. Nat’l Mining Co.,
70 U.S. (3 Wall.) 332, 334 (1865) (“Where questions arise
which affect titles to land it is of great importance to the
public that when they are once decided they should no longer

4
To illustrate the difference, take the following comparison. Assume a
property owner loses a quiet title action, which affirms his neighbor’s
easement to walk across the owner’s land. The owner cannot defeat the
judicially established easement through a conveyance of the property
that does not mention the easement to a third party. That is exactly the
context where courts apply the rule that successive owners of property
are in privity. The successor owner takes the land subject to the
easement. But this would not be true for the purchaser of a chair that the
prior owner had used to batter his neighbor. Even were the chair’s
purchaser aware of the chair’s role in the battery, he would not be on the
hook just because the chair was involved in—indeed essential to—the
tort action between the original owner and his neighbor. The interests of
property law as to who owns the chair, or whether the chair is liened, are
not involved in the battery claim. A battery claim holds the original chair
owner personally and individually liable for his actions. It does not
define what it means for the owner or subsequent chair purchaser to own
the chair in question. The key distinction that follows is that the
successor property owner is his predecessor’s privy only when the prior
legal judgment affected the property—in rem liability—rather than the
individual—in personam liability.
5
“With the burden; subject to an incumbrance or charge.” Cum onere,
Black’s Law Dictionary (2d ed. 1910).
28 GP VINCENT II V. THE ESTATE OF BEARD

be considered open. Such decisions become rules of
property, and many titles may be injuriously affected by
their change.” (emphasis added)).
Defendants’ argument simply puts the question: did the
prior judgment in the Mayhew-Beard Suit involve an
adjudication of Mayhew’s property interests in the Mayhew
Center Property (i.e., in rem liability) or Mayhew’s personal
rights (i.e., in personam liability)? As will appear, the
answer is the prior judgment involved only Mayhew’s
personal rights, not any interests in the Mayhew property.
The Mayhew-Beard Suit involved Mayhew’s rights and
liabilities under CERCLA. To hold GP Vincent bound by
Mayhew’s stipulated dismissal of that suit, we must first
determine what kind of liability CERCLA imposes: in rem
liability that runs with the polluted land or instead in
personam liability imposed on the owner or owners to clean
up the pollution. If CERCLA creates in rem liability,
Defendants have a colorable claim that Mayhew and GP
Vincent are in privity and that GP Vincent is bound to the
stipulated dismissal of the Mayhew-Beard Suit. But if
instead CERCLA creates only in personam liability,
Mayhew and GP Vincent are not in privity and GP Vincent
is not precluded from pursuing its CERCLA claims.
B. CERCLA Creates In Personam Liability
CERCLA imposes in personam liability. Thus, there is
a lack of privity between GP Vincent and Mayhew. And GP
Vincent is not bound by the doctrine of res judicata to the
stipulated dismissal of the Mayhew-Beard Suit resulting
from the global settlement. GP Vincent’s suit can proceed
on its merits.
 GP VINCENT II V. THE ESTATE OF BEARD 29

To show why this is the case, let us start with the statute
in question. CERCLA was enacted in 1980, “in response to
the serious environmental and health risks posed by
industrial pollution.” Burlington N. & Santa Fe Ry. Co. v.
U.S., 556 U.S. 599, 602 (2009). It is structured “to promote
the timely cleanup of hazardous waste sites and to ensure
that the costs of such cleanup efforts were borne by those
responsible for the contamination.” Id. (internal quotation
marks and citation omitted). To satisfy this policy goal,
“CERCLA imposes strict liability for environmental
contamination upon” certain classes of individuals
denominated potentially responsible parties (“PRPs”). Id. at
608. These PRPs include all current owners and operators
of the contaminated property and those who were owners
and operators of the property at the time the contamination
occurred. CERCLA § 107(a)(1)–(2). 6 “Once an entity is
identified as a PRP, it may be compelled to clean up a
contaminated area or [to] reimburse the Government [or the
party remediating the property] for [all] past and future
response costs.” Burlington, 556 U.S. at 609.
PRPs can recoup clean-up costs via “cost-recovery
actions under § 107(a) [or] contribution actions under
§ 113(f).” Arconic, Inc. v. APC Inv. Co., 969 F.3d 945, 951
(9th Cir. 2020) (citations omitted). Cost-recovery actions
enable PRPs to recoup “incurred ‘response’—i.e., cleanup—
costs,” whereas contribution actions “force other[ PRPs] to
shoulder their [apportioned] share of the burden.” Id.
Under both provisions, CERCLA imposes obligations on
individual persons and entities. CERCLA § 107(a) refers to

6
CERCLA is found in Title 42 of the U.S. Code. See 42 U.S.C. §§ 9601
et seq. Title 42 is not positive law, so I will cite only to the relevant
section(s) of CERCLA.
30 GP VINCENT II V. THE ESTATE OF BEARD

“the owner and operator” or “any person who . . . owned or
operated” a facility when it delimits who may incur costs
related to remediation. Similarly, CERCLA § 113(f)
(emphasis added) authorizes “[a]ny person” to initiate a
contribution action against “any other person who is liable
or potentially liable” under § 107(a). This focus on the
individual parties is not surprising. CERCLA contains
“broad power t[hat] command[s] government agencies and
private parties to clean up hazardous waste sites.” Key
Tronic Corp. v. U.S., 511 U.S. 809, 814 (1994). And given
how CERCLA is structured “to facilitate the remediation of
hazardous waste sites,” it forces parties to take specific
actions to remove hazardous materials from polluted
locations. Whittaker Corp. v. U.S., 825 F.3d 1002, 1006 (9th
Cir. 2016) (emphasis added). The entire purpose of the cost-
recovery and contribution actions is to “encourage private
parties to assume the financial responsibility of cleanup by
allowing them to seek recovery from others.” Arconic, 969
F.3d at 951 (alteration omitted) (emphasis added) (quoting
Key Tronic, 511 U.S. at 819 n.13).
There is nothing about CERCLA’s liability-sharing
provisions or its requirement that PRPs take remedial action
to abate and to remediate contamination that affects a PRP’s
property interests in its polluted land. 7 The clear import of

7
In CERCLA itself, Congress appears to have clearly understood the
distinction between in personam and in rem liability. Under CERCLA
§ 107(l), the federal government is given a federal lien on any polluted
property that is subject to CERCLA remediation. This ensures the
government can recover “[a]ll costs and damages for which a person is
liable to the United States.” Id. (emphasis added); see also id. § 107(m)
(creating a similar federal maritime lien for vessels subject to CERCLA
remediation). Thus, the federal government may initiate an in rem action
 GP VINCENT II V. THE ESTATE OF BEARD 31

these provisions is to impose personal obligations on PRPs.
They must either take certain actions regarding the pollution
or pay their fair share of the costs of remediation. This is the
definition of in personam liability. The statute imposes
obligations on individual parties and assigns costs to be
shared among those actors that have engaged in
malfeasance. A failure to remediate may result in the
imposition of penalties on a landowner. And a judgment for
failure to remediate may be satisfied by the sale of the land
if a judgment lien is recorded, and then executed, on the
property. But CERCLA cost-recovery or contribution
actions do not affect who owns what interest in the land.
Thus, one owner subject to CERCLA’s requirements does
not transfer a proverbial CERCLA liability stick in the
bundle of property interests he conveys to the next owner.
Successive owners are not in privity for CERCLA liability
purposes.
Defendants’ contrary assumption that CERCLA’s in
personam liability is conveyed with the polluted land
overlooks two key features of CERCLA’s structure.
First, while it is true that under CERCLA §§ 107 and
113, owners of polluted land have remediation obligations
as to that polluted land, these statutory obligations do not
derive from the extent of the PRPs’ property interests. A
party’s landowning status is CERCLA’s criterion for

to recover remediation costs should the PRP fail to pay. Id. § 107(l)(4).
Congress’s express choice to authorize in rem actions only for the federal
government’s right to recover remediation costs from PRPs who have
not yet paid the remediation costs strongly implies that it deliberately
chose to impose in rem liability in only that very limited scenario.
Bartenwerfer v. Buckley, 143 S. Ct. 665, 673 (2023). And this bolsters
the conclusion that CERCLA liability, by default, constitutes only in
personam liability.
32 GP VINCENT II V. THE ESTATE OF BEARD

determining who—that is to say, which person(s) or
entity(ies)—is (are) liable for the property’s remediation
costs. This means CERCLA says nothing about the extent
of the owner’s proprietary rights in the land itself nor the
extent to which the other possible owners’ proprietary rights
in the land are affected by CERCLA-imposed
responsibilities.
Nor is this unusual. In tort law, premises liability
imposes obligations on a property owner in personam to take
certain actions regarding his property to protect third parties
from harm. See generally Hoffmann v. Young, 515 P.3d 635,
640–42 (Cal. 2022). Under premises liability, the tort law
identifies which parties have a duty to take these actions
based on their landowning status. But just because the tort
law relies on property ownership to impose responsibility for
taking due care does not mean such obligations are charged
against the property itself or affect its ownership. It is the
landowner who has a personal duty to act in accordance with
the age-old maxim sic utere tuo, ut alienum non laedas—use
your own property so as not to injure the rights of another.
Cf. Hayes v. Mich. Cent. R.R. Co., 111 U.S. 228, 234–35
(1884) (“[A]t common law, the question is always whether,
under the circumstances of the particular case, the railroad
has been constructed or operated with such reasonable
precautions for the safety of others, not in fault, as is required
by the maxim, sic utere tuo, ut non alienum loedas.”
(emphasis added)). Hence, a plaintiff who obtains a
judgment against a negligent defendant landowner acquires
no interest in the land upon which his injury occurred, unless
and until he levies the judgment through a judicial sale of the
property. Just the same with CERCLA. CERCLA relies on
a party’s ownership status, as an owner of a contaminated
site, to ascertain who must bear, in personam, the costs of
 GP VINCENT II V. THE ESTATE OF BEARD 33

remediation. How that owner bears those costs of
remediation—from his pocketbook or from suffering a
judicial sale of his property—is up to the judgment debtor.
Second, under CERCLA, preceding and succeeding
property owners are placed in adverse postures to one
another. Because any past or current owner of a polluted site
who may have caused the contamination constitutes a PRP,
CERCLA § 107(a)(1), (2), whenever it is uncertain when the
contamination occurred, 8 every party who held title may be
liable for an apportioned share of the remediation costs
under CERCLA. 9 Burlington, 556 U.S at 609, 613–15. If
CERCLA obligations were to inhere in the property itself,
the conflicting interests of successive property owners
would not occur. A successor owner stands in the shoes of
his predecessor-in-interest with respect to the property in
question. 10 Headwaters Inc. v. U.S. Forrest Serv., 399 F.3d

8
There is almost certainly going to be uncertainty over the timing of the
contamination in every CERCLA case. Pollution discharge is normally
a long-tail harm that occurs without the owner’s full awareness. Kenneth
S. Abraham, The Rise and Fall of Commercial Liability Insurance, 87
Va. L. Rev. 85, 94–96 (2001).
9
In this case, the timing of the contamination is uncertain. Although
Mayhew had alleged in the Mayhew-Beard Suit that all discharge of PCE
on the Mayhew Center Property ceased when Mayhew purchased it in
1992, this factual question was never litigated. Thus, Mayhew is still a
PRP who stands adverse to GP Vincent, given GP Vincent is entitled to
seek recovery of its remediation costs from Mayhew under CERCLA
§ 107(a)(2).
10
That CERCLA liability is not associated with an owner’s property
rights in his polluted site is most obvious in the adverse possession
context. If GP Vincent obtained the polluted land by adverse possession,
it would take no property right from Mayhew; GP Vincent’s title would
be created by the operation of law. E.g., Marriage v. Keener, 31 Cal.
34 GP VINCENT II V. THE ESTATE OF BEARD

1047, 1052–53 (9th Cir. 2005) (“Privity [] ar[ises] from a []
number of legal relationships in which two parties have
identical or transferred rights with respect to a particular
legal interest.”); accord Grondal v. United States, 21 F.4th
1140, 1163 (9th Cir. 2021) (holding in an ejectment action
that a lessor of Indian lands was not in privity with its lessee
because there was a misalignment of property interests).
Given a preceding owner may demand payment from a
succeeding owner, and vice versa, for each party’s respective
portions of the remediation costs, their interests are not
aligned under CERCLA. Hence, a PRP’s remediation
obligations are not conveyed to the subsequent owner via the
property’s title. 11

Rptr. 2d 511, 514 (Cal. Ct. App. 1994) (“Fee simple title vests in the
adverse possessor by operation of law.” (quoting Williams v. Rogier,
611 N.E.2d 189, 196 (Ind. Ct. App. 1993))). Yet, GP Vincent would still
have an obligation to remediate the land under CERCLA § 107(a). And
GP Vincent could still sue the previous parties who held title to recoup
its remediation costs under CERCLA §§ 107(a) and 113(f). Regardless
how GP Vincent took title, it faces the exact same CERCLA liability.
The means that CERCLA’s remediation obligations and the attendant
rights to cost recovery and contribution are statutorily created interests
that attach to property owners, regardless how the ownership interest is
created—they do not transfer by the grant of a fee simple deed.
11
One final, passing observation. Given that successive owners have
conflicting interests under CERCLA, a preceding owner could not
represent a future owner’s interests in settlement negotiations without
the future owner’s consent. Moreover, Mayhew’s signature on the
settlement agreement implies Mayhew was not aware it represented any
other party’s interest—let alone the interests of a future owner of the
Mayhew Center Property. Unlike Norma Beard, Mayhew did not
purport to represent another. See supra note 2. This implies it is unlikely
that even Mayhew intended to have its obligations run with the Mayhew
Center Property. See FTC v. Garvey, 383 F.3d 891, 898 (9th Cir. 2004)
 GP VINCENT II V. THE ESTATE OF BEARD 35

The bottom line: all roads lead to the conclusion that
CERCLA liability is personal and is not conveyed by the
transfer of title to a contaminated site. GP Vincent and
Mayhew therefore are not privies for the purposes of this
CERCLA suit as GP Vincent was not a party to the
settlement agreement reduced to judgment in the prior,
consolidated action. And this lack of privity means GP
Vincent’s action is not barred by res judicata.
III. IDENTITY OF CLAIMS
Because GP Vincent is not Mayhew’s privy, res judicata
does not bar GP Vincent’s suit. And given the lack of
privity, it is unnecessary for me to reach the other elements
of res judicata. But, because my friends in the majority
conclude there is a lack of an identity of claims, I will briefly
address the issue, lest one think that I agree with them on this
point.
As noted above, for res judicata to apply, a defendant
must demonstrate there is an identity of claims between the
current suit and the prior litigation. Mpoyo, 430 F.3d at 987.
An identity of claims exists if the current lawsuit raises
issues that were or could have been raised in a prior suit
because the causes arise from the same transaction or
occurrence. Id.; Stewart v. U.S. Bancorp, 297 F.3d 953, 956
(9th Cir. 2002). In other words, two suits litigate the same
claim if they request relief for the same alleged legal harm.
Mpoyo, 430 F.3d at 987–88 (finding an identity of claims
because two lawsuits arose from defendant’s “conduct while
Mpoyo was an employee and specifically from the events

(holding that privity does not exist if a party “is sued for its own actions,”
“not [] as an indemnitor for the acts of another,” and had not “act[ed] in
its capacity as indemnitor” in the prior action).
36 GP VINCENT II V. THE ESTATE OF BEARD

leading to his termination”). This means two suits can have
an identity of claims regardless whether the litigants
requested the same relief in each case. McClain v. Apodaca,
793 F.2d 1031, 1034 (9th Cir. 1986) (holding that there was
an identity of claims despite plaintiff’s request for different
contractual remedies in each suit because “[w]hat is at issue
[] is the preclusiveness of the judgment in the previous action
as to the legal harm for which McClain seeks redress in his
second action.” (emphasis added)).
There is an identity of claims between GP Vincent’s
current suit and the Mayhew-Beard Suit. GP Vincent’s
complaint requests apportionment of the costs of
remediation of the PCE contamination on the Mayhew
Center Property among the PRPs under CERCLA. This was
the exact harm Mayhew raised in the Mayhew-Beard Suit:
Mayhew claimed Norma Beard was “absolutely and strictly
liable for all necessary costs of response to investigate and
[to] litigate and [to] remediate the release of, or threat of
release of, hazardous substances at the Mayhew Center
property.” (emphasis added). Because both suits demand
the court adjudicate the PRPs’ respective CERCLA
liabilities for the same legal harm, they raise the same
claims. 12

12
The majority resists this conclusion by fixating on language drawn
from the terms of the agreement governing the escrow fund as well as
the injunction order entered in the Walnut Creek Manor Action. But the
majority wrongly focuses on how the parties settled the consolidated
actions. Under the caselaw, there is an identity of claims if the claims in
the current suit “were raised or could have been raised in a prior action.”
Stewart, 297 F.3d at 956 (emphasis added) (internal quotation marks and
citation omitted). To assess whether the Mayhew-Beard Suit raised the
same claims as the current action, we look to the beginning of the
 GP VINCENT II V. THE ESTATE OF BEARD 37

For this simple reason, my colleagues’ conclusion that
there is no identity of claims is in error. The majority
contends that its “narrow[] construction of the [Mayhew-
Beard Suit] claims” is bolstered by the fact that the Mayhew-
Beard Suit, purportedly a CERCLA § 113 contribution
action, and GP Vincent’s current suit, purportedly a
CERCLA § 107 cost-recovery action, implicate distinct
statutory vehicles. The majority theorizes that the different
statutory mechanisms to recoup remediation costs, while not
“dispositive,” motivates a conclusion that the suits involve
different claims. This argument unfortunately ignores the
broader prayer for relief evidenced by the plain language of
Mayhew’s own complaint against Norma Beard. See supra
note 12. And its premise is incorrect: §§ 107 and 113 are

action—Mayhew’s complaint against Norma Beard—not the end—how
those claims were settled. As quoted above, Mayhew sought to recover
from Norma Beard for all pollution on the Mayhew Center Property, not
just for the PCE pollution that had seeped from the Mayhew Center
Property onto the Walnut Creek Manor property. Certainly, sections of
the Mayhew Center Property cannot conduct pollution onto the Walnut
Creek Manor property because of their distance or because of geological
formations under the land. But Mayhew did not so limit its complaint:
“Plaintiffs are informed and belief [sic] and thereon allege that the
defendant[, Norma Beard,] owned the Mayhew Center property where
hazardous substances, including PCE, have been discharged and[/]or
released and have been found to have migrated into the environment on
and under the Mayhew Center property and the property of Walnut
Creek Manor.” (emphasis added). A plain reading of Mayhew’s
complaint reveals that Mayhew’s CERCLA cost-recovery claim against
Norma Beard encompassed all pollution on the Mayhew Center
Property, whether connected to the pollution remediation of the Walnut
Creek Manor Action or not. Thus, the majority’s reliance on specific
provisions in the global settlement causes it to ignore the fact that
Mayhew raised the same claims in its complaint in the Mayhew-Beard
Suit that GP Vincent seeks to litigate in this current suit. Simply, the
record belies the majority’s erroneous identity of claims analysis.
38 GP VINCENT II V. THE ESTATE OF BEARD

simply different mechanisms for PRPs to recover their
remediation costs from one another—not different claims.
As the Supreme Court itself recognized, “§§ 107(a) and
113(f) provide [PRPs] two [] distinct,” U.S. v. Atlantic
Research Corp., 551 U.S. 128, 138 (2007) (internal
quotation marks and citation omitted), yet “similar and
somewhat overlapping remed[ies],” Key Tronic, 511 U.S. at
816. But whether one pays up front and seeks cost-recovery
under § 107 (akin to the legal remedy for damages) or
instead foresees what the costs will be and demands
contribution under § 113 (akin to the equitable remedy for
contribution among tortfeasors), the right to obtain payment
from other PRPs under CERCLA depends on the claimant’s
proving the relative culpability of all involved for the
contamination. Simply, reliance on either § 107 or § 113 as
a remedy does not mean different claims are at stake. Thus,
even though Mayhew purportedly used a different
mechanism to recover its remediation costs than GP Vincent,
the harm alleged is the same: the proper allocation of
responsibility among the PRPs under CERLCA for the
contamination on the Mayhew Center Property. GP
Vincent’s current suit and the Mayhew-Beard Suit raise
identical claims.
As a result, I disagree with the majority’s conclusion that
GP Vincent’s suit and the Mayhew-Beard Suit involve
different claims. Were it necessary for me to reach issue, I
would conclude that there is an identity of claims.
IV. CONCLUSION
Despite my disagreement with the majority’s mistaken
identity of claims analysis, I agree that reversal is required.
CERCLA imposes no in rem obligations, which means
Mayhew’s individual CERCLA obligations were not
 GP VINCENT II V. THE ESTATE OF BEARD 39

conveyed with the transfer of title to the land. Because
Mayhew and GP Vincent are not in privity with one another,
GP Vincent is not bound by res judicata to the prior
litigation’s judgment involving Mayhew. GP Vincent’s
right to prosecute this CERCLA action must be sustained.
The district court erred when it held otherwise.
On that basis alone, I concur in the judgment.