Makallon Atlanta Huntington Beach, LLC v. Chevron Land and Development Co.

Full title: MAKALLON ATLANTA HUNTINGTON BEACH, LLC, Plaintiff and Appellant, v…

Court: California Court of Appeals, Fourth District, Third Division

Date published: Mar 14, 2011

No. G042413 (Cal. Ct. App. Mar. 14, 2011)

Opinion

NOT TO BE PUBLISHED

Appeal from judgments of the Superior Court of Orange County No. 06CC06961, Stephen J. Sundvold, Judge.

Loeb & Loeb, Saul D. Brenner and Albert M. Cohen; Law Offices of George S. Burns, George S. Burns and John C. Ashby for Plaintiff and Appellant Makallon Atlanta Huntington Beach, LLC.

Jones Day, Paul F. Rafferty and Christopher A. Bauer for Defendants and Respondents Chevron Land and Development Company, Huntington Beach Company, Chevron U.S.A., Inc. and ChevronTexaco.

Schaffer, Lax, McNaughton & Chen and Russell A. Franklin for Defendant and Respondent Blasland, Bouck & Lee, Inc.

Morris Polich & Purdy, Douglas C. Purdy, Richard H. Nakamura, Jr., and Mark E. Hellenkamp for Defendant and Respondent MACTEC Engineering and Consulting, Inc.

OPINION

MOORE, ACTING P. J.

Makallon Atlanta Huntington Beach, LLC (Makallon) filed suit against Chevron Land and Development Company (Chevron Land), the Huntington Beach Company, and Chevron U.S.A., Inc. (collectively, the Chevron Defendants), as sellers of contaminated real property, and against Blasland, Bouck & Lee, Inc. (BBL) and MACTEC Engineering and Consulting, Inc. (MACTEC), as environmental engineering firms hired by Chevron Land to perform testing and remediation services on the property after close of escrow. The causes of action against the Chevron Defendants were based in both contract and tort. The cause of action against BBL and MACTEC was for negligent performance of the contracts between those firms and Chevron Land. Makallon asserts that the trial court erred in granting summary judgment in favor of each defendant.

Makallon had no privity of contract with either BBL or MACTEC. Makallon contends that, this notwithstanding, each of the two firms owed it a duty of care that would support a cause of action in tort, based on the factors described in Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370 (Bily) and Biakanja v. Irving (1958) 49 Cal.2d 647 (Biakanja), and additional case law. It maintains that the trial court erred in concluding otherwise. We disagree. The court was correct in its analysis and properly granted summary judgment in favor of each of BBL and MACTEC.

Makallon also contends that the trial court erred in granting summary judgment in favor of the Chevron Defendants, for a number of reasons. Makallon says it raised triable issues of material fact with respect to whether the Chevron Defendants: (1) should be estopped to deny that, after consummation of the sale, they assumed the obligation to search for and remediate all lead on the property; (2) breached their contractual obligations in the performance of lead remediation in 1997; (3) breached their contractual obligations in the performance of soils testing in 1999; (4) could be held liable for failure to comply with the disclosure requirements of Health and Safety Code section 25359.7; and (5) could be held liable for continuing nuisance or continuing trespass despite contractual limitations and “as is” clauses. After considerable review of the record, we conclude Makallon has failed to demonstrate on appeal that it raised a triable issue of material fact with respect to these and many sub-issues. We affirm the summary judgment in favor of the Chevron Defendants.

I

FACTS

Except where otherwise indicated, the following facts are undisputed.

A. PURCHASE AND SALE:

On December 7, 1995, a Land Development Properties Asset Sale Agreement (1995 Agreement) was executed by Chevron Land, Pacific Coast Homes, the Huntington Beach Company, Mansion Properties, Inc., and Chevron U.S.A., Inc., as “Sellers, ” and MS Vickers L.P. and PLC, as “Buyer.” The sale included many real properties itemized on seven pages of schedules. The purchase price was $174,316,515, subject to certain adjustments. Reductions to the purchase price, aggregating $7,924,972, were itemized in a May 8, 1996 Land Development Properties Joint Closing Agreement (the Joint Closing Agreement).

Among the properties sold was the one at issue before us. The particular property changed hands several times before being acquired by Makallon. It was first transferred to MS Vickers II, LLC by grant deeds recorded on May 8, 1996. MS Vickers II, LLC thereafter transferred the property, subject to matters of record, to Shea Vickers Development LLC by grant deed recorded August 9, 1996. Shea Vickers Development LLC, in turn, conveyed the property, subject to matters of record, to Atlanta Huntington Beach, LLC, by grant deed recorded April 6, 1998. Atlanta Huntington Beach, LLC changed its name to Makallon Atlanta Huntington Beach, LLC in February 2001.

Under the 1995 Agreement, the Buyer acknowledged that the properties sold included oil fields that might be contaminated with oil and other hydrocarbon products, as well as other forms of hazardous waste. Consequently, the agreement contained lengthy provisions concerning the obligations of the parties to bring the properties into compliance with environmental laws.

The Buyer was required to remediate oily dirt. The cost of that remediation effort was to be borne by the parties together according to a sliding scale. Once the cost of remediation of oily dirt hit $30 million, the remaining cost was to be borne completely by the Sellers. The Sellers then had the choice of paying the cost of the Buyer’s remediation efforts, or undertaking performance of the remediation efforts themselves, at their own cost.

In addition, the Buyer had five years from the date of the closing of the purchase and sale transaction to complete all investigation of the property and inform the Sellers of any hazardous substances on the property other than oily dirt. The Sellers were required, at their own cost, to remediate those hazardous substances, upon receipt of notice from the Buyer within the five-year period.

B. 1996 PHASE II INVESTIGATION:

MS Vickers II, LLC hired Hazard Management Consulting, Inc. (Hazard Management) to oversee the performance of the Buyer’s corrective action under the 1995 Agreement. Under section 12.5(b)(i)(1) of the 1995 Agreement, the first step of the Buyer’s corrective action was the performance of a comprehensive Phase II evaluation. In June 1996, Hazard Management, on behalf of MS Vickers II, LLC, hired Harding Lawson Associates (Harding Lawson)¹, an engineering and environmental services firm, to perform certain environmental work on the property. Harding Lawson thereafter delivered a “Phase II Investigation Report/Remediation Plan, ” dated December 18, 1996.

1 In its respondent’s brief, MACTEC indicates that Harding Lawson and Harding ESE are its predecessors-in-interest. In its motion for summary judgment, MACTEC represented more particularly that Harding Lawson “later became Harding ESE, ” which MACTEC thereafter acquired. The parties to this appeal differ in their manner of referring to the three entities-whether individually or collectively and if collectively by what collective designation. We choose to refer to each of the three entities individually.

As reflected in that document, the field program of Harding Lawson “consisted of a significant sampling and analytical effort to investigate the presence of hazardous material and areas suspected of containing more than incidental quantities of oily soil.” To effectuate the program, Harding Lawson collected more than 60 soil samples. The investigation showed that there was both oily soil and lead on the property. “Lead-impacted soil was detected in the southeastern portion of Area 1, in the vicinity of Sample 2-T-20-5-3.” Five hand-auger samples were taken in the vicinity of sample 2-T-20-5-3 “to further delineate the extent of lead-impacted soil.” The lead concentration from sample HA-4-2 exceeded the maximum permitted concentration. The document stated: “Further investigation and remediation of the lead-impacted soil will be conducted by Chevron and will be documented in a separate report at that time. The maximum expected volume of lead-impacted soil is approximately 10 cubic yards..., based on the hand-auger sample locations....”

C. 1997 LEAD REMEDIATION:

In January 1997, the Huntington Beach Fire Department approved, subject to certain conditions, the remediation plan contained in the December 18, 1996 “Phase II Investigation Report/Remediation Plan” (the 1997 HBFD Approved Remediation Plan). In April 1997, Chevron Land hired BBL to remove and dispose of the lead impacted soil.

According to its July 11, 1997 report to Chevron Land, BBL excavated an area approximately 12 feet long, 7 feet wide and 4 feet deep. Approximately 10 cubic yards of soil was excavated. BBL collected four soil samples from the open excavation after the soil was removed. It took one sample from each of three side walls and one from the bottom of the excavation pit. BBL explained that it did not take a sample from the fourth wall, because that was the spot where Harding Lawson had already taken two clean samples. BBL reported that each of the four samples contained soluble lead at a concentration below the action level of 5 ppm as expressed in Title 22, Division 4.5 of the California Code of Regulations.

D. CHEVRON LAND’S ASSUMPTION OF OILY DIRT REMEDIATION OBLIGATIONS IN 1998:

On October 1, 1997, Jerry R. Bischoff, vice president of Chevron Land, wrote to Hazard Management and PLC: “As you know, the Article 12 costs are rapidly approaching the $30 Million mark. In compliance with Article 12.5(c)(iii), Chevron wishes to advise Buyer of its intention to assume responsibility for all of Buyer’s Corrective Action at the time the $30 Million is expended.” Chevron Land observed that its action was a cost containment measure, given the high cost of oily soil remediation to date. On February 5, 1998, Bischoff wrote to MS Vickers LLP and PLC: “On October 1, 1997, I sent a letter... indicating our intention to take over the Article 12 activities when the total expenditure reached $30MM. It appears that we are now very near that point.” Bischoff expressed a desire to coordinate the turnover of the activities.

E. CHEVRON LAND’S OILY DIRT INVESTIGATION BEGINNING 1999:

In February 1999, Chevron Land hired Harding Lawson to perform an environmental assessment or related services on the property. According to Richard Blackmer of Harding Lawson, the company was hired to determine the vertical and lateral extent of certain oily soil to be remediated. Harding Lawson performed a soil investigation from July 1999 to September 1999. The soil samples were analyzed for oily dirt.

During trenching activities to determine the extent of oily dirt, buried trash was discovered, in August 1999. That month, Capital Pacific Holdings, LLC, a member of Atlanta Huntington Beach, LLC, hired Professional Archeologist Services to investigate the site, designated Archeological Issue No. 2. Between August 1999 and 2004, Professional Archeologist Services performed its investigation and the site was placed off limits to others. Trenching activities ceased in Archeological Issue No. 2 and Chevron Land was not permitted to work in the area until it was released by the archeologists in 2004.

However, trenching activities continued in other areas, as described in BBL’s November 11, 2003 “Work Plan Supplemental Soil Investigation, Atlanta Site, ” prepared for Chevron Environmental Management Company. According to that document, in January 2001, Harding ESE prepared a plan to address the remediation of oily dirt identified during the previous site investigations. “[I]n February 2002, Harding ESE performed a limited soil investigation to evaluate the depth of petroleum hydrocarbon-impacted soil near groundwater beneath the Atlanta site.” The 2001 remediation plan was thereafter revised by Harding ESE in March 2002 and then again in May 2002. In the latter half of 2002, “BBL personnel with Chevron-EMC’s subcontractor, Reliable Equipment, performed crude-oil impacted soil removal. All impacted soils were excavated and remediated in accordance with the Remediation Plan, Revision 3, Atlanta Site... prepared by Harding ESE, dated May 22, 2002. Oily soil was surgically removed from the remediation areas using backhoes and/or excavators.”

F. DISCOVERY OF ADDITIONAL LEAD CONTAMINATION IN 2004:

On November 11, 2003, BBL provided its “Work Plan Supplemental Soil Investigation, Atlanta Site” to the Huntington Beach Fire Department. The supplemental work plan contained a history of prior investigations on the site. The purpose of the supplemental work plan was to address four data gaps: (1) the determination of “the character and nature of potential contaminants in soils situated in areas not addressed in the previous site investigations”; (2) the assessment of the presence, nature, and character of impacted areas that were previously identified but not fully evaluated; (3) the confirmation of “the results of soil investigations and remediation performed by others” in certain areas; and (4) the assessment of “areas of potential environmental impacts associated with oil wells located throughout the site.” The supplemental work plan described the particular investigatory activities to be taken upon approval of the supplemental work plan by the Huntington Beach Fire Department.

On April 26, 2004, Chevron Land and BBL entered into a General Agreement for Professional Services. Later on, in October 2004, BBL reported having performed a “Supplemental Phase II soil investigation” in July and August 2004 and having discovered elevated concentrations of total recoverable hydrocarbons, lead and other hazardous substances on the property.

Makallon thereafter requested that the Chevron Defendants remediate the lead, but the Chevron Defendants refused. According to the Chevron Defendants, their refusal was based on the provisions of the 1995 Agreement.

G. PROCEDURAL HISTORY:

(1) Second Amended Complaint

Makallon filed a second amended complaint against the Chevron Defendants, BBL and MACTEC. Makallon asserted the following causes of action: (1) failure to provide notice of hazardous substance; (2) breach of contract; (3) negligent performance of contract; (4) continuing nuisance; (5) continuing trespass; (6) declaratory relief; (7) promissory estoppel; and (8) declaratory relief.

At issue was a 31-acre parcel of property in Huntington Beach, which Makallon then referred to as the “Pacific City Property, ” but which the parties currently refer to as the “Atlanta Property.” According to Makallon’s allegations, the Huntington Beach Company had owned the property for decades, had operated approximately 20 oil wells thereon, and had engaged in drilling and refining activities until the 1980’s. Makallon also alleged that before, during and after the period of the Huntington Beach Company’s ownership, there was a dump site on the property. Purportedly, activities at the dump site resulted in the release of lead into the soil, and, the Huntington Beach Company ultimately buried the dump site. According to Makallon, the Huntington Beach Company sold the Atlanta Property to MS Vickers LP pursuant to the 1995 Agreement.

Makallon alleged that Chevron Land entered into an agreement with BBL to remediate lead contaminated soil that had been discovered by MS Vickers. According to Makallon, in May 1997, BBL represented that the lead had been properly remediated, but that this was untrue and BBL and Chevron Land had failed in their remediation and disclosure obligations.

Makallon further alleged that Harding Lawson and Harding ESE, Inc. (collectively, Harding), now known as MACTEC, took more than 200 soil samples in 1999 but failed to test those samples for hazardous substances, as required by the 1995 Agreement and the government agencies supervising the remediation. In addition, Harding allegedly did test some samples, but neither it nor Chevron Land disclosed the results to Makallon or the applicable government agencies.

In October 2004, Chevron Land purportedly told Makallon that it had discovered lead during routine soil sampling activities. However, Chevron Land allegedly took the position that it was not responsible for remediating that lead contamination because it had not been given notice of the same within five years of selling the property.

A year later, Makallon began remediating the lead contamination unearthed in 2004. In doing so, Makallon purportedly discovered that the soil BBL had remediated in 1997 had not been remediated properly.

Also in 2005, Makallon learned that certain abandoned oil wells on the Atlanta Property did not comply with applicable legal requirements. Makallon asserted that Chevron USA, Inc. was the current operator of the wells and was required to re-abandon the wells in accordance with applicable statutes and regulations. Purportedly, Chevron USA, Inc. refused to comply with the applicable statutory and regulatory requirements.²

2 On appeal, Makallon makes no argument with respect to the alleged need to re-abandon the oil wells. Consequently any arguments with respect to the need to re-abandon the wells are deemed waived. (Tanner v. Tanner (1997) 57 Cal.App.4th 419, 422, fn. 2.)

In its first cause of action, Makallon alleged that the Huntington Beach Company and Chevron Land knew or had reason to know of the lead contamination on the Atlanta Property at the time of the 1995 Agreement and failed to provide to the buyer of the property a notice of hazardous substance as required by Health and Safety Code section 25359.7. Makallon further alleged that it was foreseeable that the original buyer of the property would resell it and that a subsequent purchaser would rely on the nondisclosure.

Makallon’s second cause of action was for breach of contract, against the Huntington Beach Company, Chevron Texaco and Chevron USA, Inc. Makallon alleged that those defendants failed to comply with their continuing remediation obligations under the 1995 Agreement, in many respects.

The third cause of action, for negligent performance of contract, was against BBL and Harding. Makallon raised issues with respect to BBL’s 1997 contract to remediate a specified portion of the property and Harding’s 1999 contract pertaining to the investigation of the property. Makallon asserted the BBL and Harding contracts with Chevron Land were made for the benefit of the owner of the Atlanta Property. It further alleged that BBL and Harding were each negligent in the performance of their contracts in numerous particulars, including, but not limited to, negligently implementing remediation plans. Makallon alleged that the negligence of BBL and Harding was a direct cause of Makallon’s inability to locate and identify hazardous substances and give notice of the same to Chevron Land within the five-year window period.

Next, Makallon, in its fourth cause of action, asserted that Chevron Land and Chevron USA, Inc. were liable for creating a continuing nuisance on the Atlanta Property. The nuisance was in the form of lead and substandard oil wells remaining on the property. Makallon sought, in addition to damages, declaratory and injunctive relief with respect to abatement of the nuisances.

The fifth cause of action, for continuing trespass, was against Chevron Land, Chevron Texaco and Chevron USA, Inc. This cause of action was also based on lead and substandard oil wells remaining on the Atlanta Property.

The sixth and eighth causes of action, for declaratory relief, were asserted against Chevron Land. Makallon sought a judicial determination of the respective obligations of Chevron Land and itself arising out of the 1995 Agreement, Chevron Land’s postclosing assumption of obligations, and applicable law.

Finally, Makallon also brought its seventh cause of action, for promissory estoppel, against Chevron Land. Makallon contended that when Chevron Land informed MS Vickers LLP and PLC that it was assuming certain remediation activities because costs had exceeded $30 million, Chevron Land thereupon assumed all obligations described in article 12 of the 1995 Agreement. According to Makallon, Chevron Land thereby became obligated to remediate all lead discovered on the Atlanta Property, including the lead purportedly discovered in October 2004.

(2) Motions for Summary Judgment and Rulings

Makallon filed a motion for summary adjudication of its eighth cause of action, which was denied. The Chevron Defendants, BBL and MACTEC each filed a motion for summary judgment and/or summary adjudication. Summary judgment was granted in favor of each defendant.

II

SUMMARY JUDGMENT REVIEW

“Under summary judgment law, any party to an action, whether plaintiff or defendant, ‘may move’ the court ‘for summary judgment’ in his [or her] favor on a cause of action... or defense (Code Civ. Proc., § 437c, subd. (a)) - a plaintiff ‘contend[ing] ... that there is no defense to the action, ’ a defendant ‘contend[ing] that the action has no merit’ (ibid.). The court must ‘grant[]’ the ‘motion’ ‘if all the papers submitted show’ that ‘there is no triable issue as to any material fact’ (id., § 437c, subd. (c)) - that is, there is no issue requiring a trial as to any fact that is necessary under the pleadings and, ultimately, the law [citations] - and that the ‘moving party is entitled to a judgment as a matter of law’ (Code Civ. Proc., § 437c, subd. (c)).” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)

“[I]n moving for summary judgment, a ‘defendant... has met’ his [or her] ‘burden of showing that a cause of action has no merit if’ he [or she] ‘has shown that one or more elements of the cause of action... cannot be established, or that there is a complete defense to that cause of action. Once the defendant... has met that burden, the burden shifts to the plaintiff... to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto....’ (Code Civ. Proc., § 437c, subd. (o)(2).)”³ (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 849.)

3 See now Code of Civil Procedure section 437c, subdivision (p)(2).

“‘“‘[T]he propriety of the application of [summary judgment to] declaratory relief lies in the trial court’s function to render such a judgment when only legal issues are presented for its determination.’” [Citations.]’ [Citation.] When summary judgment is appropriate, the court should decree only that plaintiffs are not entitled to the declarations in their favor. [Citations.] Thus, in a declaratory relief action, the defendant’s burden is to establish the plaintiff is not entitled to a declaration in its favor. It may do this by establishing (1) the sought-after declaration is legally incorrect; (2) undisputed facts do not support the premise for the sought-after declaration; or (3) the issue is otherwise not one that is appropriate for declaratory relief.” (Gafcon, Inc. v. Ponsor & Associates (2002) 98 Cal.App.4th 1388, 1401-1402.)

On review of a summary judgment, we “examine the record de novo and independently determine whether [the] decision is correct. [Citation.]” (Colarossi v. Coty U.S. Inc. (2002) 97 Cal.App.4th 1142, 1149.)

III

DISCUSSION: BBL

A. BACKGROUND:

(1) BBL’s Agreement with Chevron Land

In spring of 1997, Chevron Land hired BBL to remove and dispose of the lead impacted soil. BBL prepared a scope of work and proposal, dated April 16, 1997, based on its review of information from Chevron Land concerning the Phase II investigation. In the scope of work and proposal, BBL noted that samples 2-T-20-5-3 and HA-4-2, which were taken five feet apart, had been found to contain actionable levels of lead. BBL proposed to take an additional soil sample in the same location as sample 2-T-20-5-3 and test it for characterization as a RCRA or non-RCRA waste for purposes of disposal.⁴ Once the characterization was obtained, a determination would be made as to the proper method of disposal. BBL would obtain an EPA temporary identification number for hazardous waste manifest purposes.

4 “RCRA” refers to the Resource Conservation and Recovery Act of 1976 (42 U.S.C. § 6901 et seq.). (People v. Union Pacific Railroad Co. (2006) 141 Cal.App.4th 1228, 1240.)

BBL further proposed to excavate an area approximately 6 feet wide, 11 feet long and 4 feet deep, constituting approximately 15 tons. Once the area was excavated, BBL would take four confirmation samples of the side walls and bottom of the excavated area. The samples would be tested for lead and BBL would provide a written report concerning the field work. Chevron Land accepted the proposal and capped at $15,000 the amount to be paid to BBL for the work. BBL performed the work as described in section I.C. of the discussion above.

(2) BBL’s Motion for Summary Judgment

Makallon’s sole cause of action against BBL, as noted above, was for negligent performance of the contract between BBL and Chevron Land. BBL, in its motion for summary judgment, argued it owed no legal duty to Makallon, it performed all of its obligations according to the standard of care, it did not cause Makallon’s damages, and Makallon’s claim was barred by the Code of Civil Procedure section 337 four-year statute of limitations pertaining to actions on contract.

(3) Opposition to BBL’s Motion for Summary Judgment

In its opposition to BBL’s motion, Makallon maintained that BBL did indeed owe it a duty of care. It acknowledged that a professional who only gives advice may owe no duty to a property owner, but insisted that BBL owed a duty to Makallon as the property owner because the service BBL performed included the supervision of the actual work on the property. Makallon cited Weseloh Family Ltd. Partnership v. K.L. Wessel Construction Co., Inc. (2005) 125 Cal.App.4th 152, 161-162 (Weseloh) in support of its position, and claimed BBL’s duty to perform competently extended to both the property owner and the successor property owner. Makallon stated that it was not only the successor property owner, but also a direct contractual beneficiary of the work. In addition, Makallon stated that an analysis of the factors enunciated in Bily, supra, 3 Cal.4th 370 and Biakanja, supra, 49 Cal.2d 647 favored imposition of liability on an environmental engineer who left poison in the ground.

Makallon also claimed that BBL performed its work negligently. Makallon observed that the 1996 Phase II investigation revealed hazardous levels of lead in sample 2-T-20-5-3. So, Harding Lawson dug five hand auger borings, five feet from the location of sample 2-T-20-5-3, to ascertain the approximate horizontal and vertical extent of the lead contamination. Makallon emphasized that the 1997 HBFD Approved Remediation Plan stated that Chevron would perform a further investigation to ascertain the extent of the lead contamination.

However, according to Makallon, BBL failed to conduct such further investigation. Moreover, Makallon noted that the Huntington Beach Soil Clean-up Standard City Specification 431-92 (Specification 431-92) required all remediation plans to be approved by the Huntington Beach Fire Department before implementation, but that BBL failed to obtain approval. It also asserted that BBL had failed to submit a required confirmation sampling plan to the Huntington Beach Fire Department. Makallon impliedly argued that if BBL had complied with Specification 431-92, the Huntington Beach Fire Department would have required further investigatory efforts of BBL and additional lead contamination would have been found.

Indeed, Makallon represented that in “September of 2004, extensive amounts of lead were found in this same area of the site that BBL had supposedly remediated. Not surprisingly, the lead contamination was not limited to that 10 x 10 sliver of dirt that BBL purportedly tested and remediated. Rather, the lead ash contaminated a much broader area of the southeast portion of the property.... In fact the lead contamination completely surrounded the tiny square of lead contaminated soil that BBL purportedly remediated in 1997.... As a result, years later, [Makallon] was compelled to remove this very same Pre Closing Contamination that Chevron failed to remediate in 1997....”

In addition to the foregoing, Makallon stated that BBL took an insufficient number of confirmation samples once the area in question had been excavated. Purportedly, BBL erred in failing to take a sample from one of the four sidewalls of the excavated area. Furthermore, Makallon contended that BBL had erred in filling the hole it had dug up with untested soil transported from another portion of the property. There was no telling whether that soil may also have been contaminated with lead.

Finally, Makallon stated that the statute of limitations had not run on its claim against BBL because the statute did not begin to run until the plaintiff knew or should have known of the breach. In other words, the statute did not begin to run until Makallon should have discovered that BBL had negligently performed its work.

(4) Ruling on BBL’s Motion for Summary Judgment

The court granted BBL’s motion for summary judgment. It held that the burden of proof had shifted to Makallon to demonstrate the existence of any triable issue of fact as to liability on the part of BBL in connection with any of the work it had performed, and that Makallon had failed to meet its burden.

The court stated there was no evidence to support the suggestion of Makallon’s expert witness Gary E. Hokkanen⁵ that BBL was obligated, by contract or otherwise, to conduct a search for lead outside of the area it remediated in 1997. It said that Hokkanen’s references to “industry standard” notwithstanding, he did not support the assertion that such standard requires a firm hired to remediate a specified area to broaden the search beyond the designated site. The court held that to impose such a view would be to rewrite the contract. In addition, the court held that, in applying the principles of Bily, supra, 3 Cal.4th 370 and Biakanja, supra, 49 Cal.2d 647, it declined to impose a tort duty on the part of BBL owing to Makallon.

5 In support of its opposition, Makallon provided the declarations of Gary E. Hokkanen and David M. Henry. BBL objected to portions of the declarations. The court sustained BBL’s objections 1-6 and 9-19 pertaining to Hokkanen’s declaration and objections 1-3 pertaining to Henry’s declaration. On appeal, Makallon claims the court erred in these rulings. This is a matter we need not decide, since our analysis would be the same even taking the full declarations of Hokkanen and Henry into consideration.

B. ANALYSIS:

(1) Introduction

On appeal, Makallon argues the court erred in holding that BBL owed no duty to Makallon. It also argues that BBL breached its duty and Makallon was thereby damaged. Finally, Makallon asserts that the statute of limitations is no bar to its claim. For reasons we shall show, we agree that BBL owed no duty of care to Makallon. Consequently, we need not address Makallon’s other arguments.

(2) Negligence Liability

“The California Supreme Court has stated, ‘“[n]egligence is conduct which falls below the standard established by law for the protection of others.” [Citation.] “Every one is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself.” [Citation.] [¶] The threshold element of a cause of action for negligence is the existence of a duty to use due care toward an interest of another that enjoys legal protection against unintentional invasion. [Citations.] Whether this essential prerequisite to a negligence cause of action has been satisfied in a particular case is a question of law to be resolved by the court. [Citation.] [¶]... “Courts... have invoked the concept of duty to limit generally ‘the otherwise potentially infinite liability which would follow from every negligent act....’”’ [Citation.]” (Weseloh, supra, 125 Cal.App.4th at pp. 163-164.)

(3) Existence of Duty

“The Supreme Court in Bily, supra, 3 Cal.4th 370, 397-398, citing Biakanja, supra, 49 Cal.2d 647, 650, stated: ‘We have employed a checklist of factors to consider in assessing legal duty in the absence of privity of contract between a plaintiff and a defendant.... “The determination whether in a specific case the defendant will be held liable to a third person not in privity is a matter of policy and involves the balancing of various factors, among which are [1] the extent to which the transaction was intended to affect the plaintiff, [2] the foreseeability of harm to him, [3] the degree of certainty that the plaintiff suffered injury, [4] the closeness of the connection between the defendant’s conduct and the injury suffered, [5] the moral blame attached to the defendant’s conduct, and [6] the policy of preventing future harm.”’ [Citation....]” (Weseloh, supra, 125 Cal.App.4th at pp. 164-165.) In addition to these six factors, the Supreme Court in Bily, supra, 3 Cal.4th 370 considered several more, including whether liability would be out of proportion to fault, the prospect of private ordering, and the effect of professional services provider liability to third persons. (Weseloh, supra, 125 Cal.App.4th at pp. 169-172.)

We begin our analysis with the first Biakanja factor-the extent to which the transaction was intended to affect the plaintiff. Makallon maintains that the lead removal was intended to benefit the property owner, not Chevron Land. In support of its position, Makallon says that the Chevron Defendants assigned all of their rights against BBL to Makallon after receiving a closure letter from the Huntington Beach Fire Department. Although Makallon does not cite any portion of the record in support of its assertion regarding an assignment, we observe that section 12.7(c) of the 1995 Agreement provides: “After completion of Sellers’ Corrective Action, Sellers shall be deemed to have assigned to Buyer all assignable rights of Sellers against contractors or other third parties under contracts... relating thereto or otherwise.”⁶

6 In its third cause of action, Makallon alleged that the contract between BBL and Chevron Land was made for the express benefit of the landowner. Section 12.7(c) of the 1995 Agreement notwithstanding, Makallon does not argue that it is suing as an assignee of Chevron Land’s rights.

Section 12.7(c) of the 1995 Agreement provides an indication that, as between the parties to that contract, the remediation done on the property was intended at least in part to benefit the Buyer. However, the question here is whether, in the contract between BBL and Chevron Land, there was an intention to benefit Makallon or its predecessor. As BBL points out, its contract with Chevron Land did not identify either Makallon (who did not then even own the property), or Makallon’s predecessor, as a third party beneficiary. Indeed, the contract did not even disclose that Chevron Land was not the property owner. Just as in Weseloh, supra, 125 Cal.App.4th 152, where we concluded that the primary benefit was to the hiring party, not the property owner, there was no indication in the contract at issue here that there was an intention to benefit anyone other than the hiring party. (Id. at p. 167.) Moreover, where in Weseloh the defendants knew the property was owned by one of the plaintiffs (ibid.), here there is no indication that the defendant even knew that the hiring party was not the property owner. These points are indicative of a lack of intent, in the contract between BBL and Chevron Land, to benefit Makallon or its predecessor.

At the same time, in Weseloh, supra, 125 Cal.App.4th 152, the defendants were only engaged in design work and did not actually perform services on the property. (Id. at pp. 159-160.) Here, however, BBL actually directed the excavation on the property and took soil samples on the property.⁷ These activities reflect an intent to affect the property owner.

7 On a related point, Makallon, citing Oakes v. McCarthy Co. (1968) 267 Cal.App.2d 231, says it raised a triable issue of material fact as to whether BBL supervised work on the property (as opposed to whether it just rendered professional advice). To the contrary, in its motion for summary judgment and in its separate statement of material fact, BBL readily admitted that it supervised the excavation and that it took soil samples on the property. The question, as addressed above, is whether, given those undisputed facts, BBL owed a duty to Makallon.

We turn now to the second Biakanja factor-the foreseeability of harm to Makallon. How was it foreseeable that by excavating the particular plot of dirt BBL was hired to excavate, and taking soil samples from the bottom of the excavated pit and the three side walls that BBL was hired to sample, injury would be suffered by Makallon because of lead located elsewhere? In discussing the Biakanja factors, Makallon skips over this one. If it was foreseeable that lead could have been located outside the perimeters of the designated excavation site, then the question is whether Chevron Land should have hired BBL to either excavate a larger area or do more extensive sampling. But the question before us is not whether Chevron Land should have hired BBL to do more, but rather whether it was foreseeable that by performing the contract it was hired to perform BBL could have caused Makallon to suffer the injury of unremediated soil elsewhere. We think not.

This leads us directly to the third and fourth Biakanja factors-the degree of certainty that the plaintiff suffered injury and the closeness of the connection between the defendant’s conduct and the injury suffered. In support of its opposition to BBL’s motion for summary judgment, Makallon provided the declaration of David M. Henry, an associate of Hazard Management. Henry declared that his company had supervised the implementation of remediation at the property from approximately March 1996 through March 1998 and had supervised lead removal on behalf of Makallon from October 2004 through July 2007. Henry stated that he was familiar with BBL’s 1997 lead remediation activities. Comparing certain diagrams prepared by BBL and a diagram depicting his team’s own lead remediation efforts in 2005, he concluded that “the BBL lead remediation activity was carried out either directly within, or no more [than] 15 feet away from, an area where our team years later removed substantial amounts of actionable levels of lead impacted soil.”

So, Makallon’s evidence to support its assertion that it was injured by BBL’s lead remediation efforts was that the company Makallon hired to do remediation years later found lead at an uncertain distance away from the discreet site BBL was paid to excavate and remediate. Comparing diagrams, Henry said, it looked as though the later discovered lead could possibly have been in the same location, or then again might have been in a location 15 feet away. One cannot construe this declaration as providing any certainty at all that BBL left lead in the small plot of dirt it worked on and that this resulted in injury to Makallon.

Makallon argues that if BBL had tested farther out from the sides of the excavation site, it would have discovered more lead. We reject this argument because it is purely speculative. If BBL had tested five or 10 feet farther out, would it have found lead 15 feet away? Besides, to require BBL to test outside of the perimeter of the excavation site would, as the trial court said, be to expand the scope of work beyond what BBL was hired to do.

For similar reasons, in applying the fifth Biakanja factor, we do not see what moral blame attaches to BBL on account of its conduct in excavating the area it was hired to excavate, performing the tests it was hired to perform, having those tests come back clean, and filling in the excavation site. However, Makallon asserts that BBL violated industry standards in the performance of its work and “failed to remove carcinogenic poison from the land of future home sites.” In support of these assertions, Makallon cites Hokkanen’s December 5, 2008 declaration, which we discuss in detail in section V.B(2) of this opinion. Nothing in that declaration raised a triable issue of material fact to show that BBL left carcinogenic poison in the plot of dirt it was hired to excavate. Furthermore, Hokkanen’s opinions on industry standards do not demonstrate moral blame on the part of BBL, for reasons we discuss in section V.B(2) of this opinion and do not repeat here.

Finally, Makallon has not shown how imposing a duty on BBL in favor of subsequent property owners would promote a policy of preventing future harm-the sixth Biakanja factor. Here, as in Weseloh, supra, 125 Cal.App.4th 152, the plaintiff has not “provided any evidence supporting an argument that greater care in [lead remediation] would result from expanded liability.” (Id. at p. 170.) Furthermore, if indeed Makallon had suffered any harm because of BBL’s actions, Makallon would not be without a remedy. BBL was acting on behalf of Chevron Land, one of the Sellers under the 1995 Agreement, and the Buyer under that agreement could pursue Chevron Land in connection with any damages suffered due to BBL’s actions. As we know, Makallon is in fact pursuing Chevron Land, presumably a deeper pocket than BBL, in the underlying litigation. And, if the parties to the comprehensive 1995 Agreement had wanted to increase the number of parties the Buyer could pursue with respect to any harm suffered, they could have required the Sellers to include in their contracts provisions identifying the Buyer or its transferees as intended beneficiaries. (Ibid.) They did not choose to do so.

On balance, we must conclude that the six Biakanja factors do not support a duty in favor of Makallon. We turn now to the three additional Bily factors we addressed in Weseloh, supra, 125 Cal.App.4th 152-whether liability would be out of proportion to fault, the prospect of private ordering, and the effect of professional services provider liability to third persons. (Weseloh, supra, 125 Cal.App.4th at pp. 169-172.)

First, we look at whether liability would be out of proportion to fault. Here, BBL was engaged to excavate an area approximately 11 feet long, 6 feet wide, and 4 feet deep, constituting approximately 15 tons, and to take four confirmation samples. The price it was to be paid for its work was not to exceed $15,000. In carrying out its contract, BBL actually excavated a slightly larger area, approximately 12 feet long, 7 feet wide and 4 feet deep.

Makallon seeks to have BBL shoulder the costs incurred to remediate lead located elsewhere on the 31-acre property, because some of that lead was purportedly discovered no more than 15 feet away from the area BBL excavated. Makallon represents that it paid over $3 million to clean up the lead on the property due to “BBL’s failure to delineate the extent of the lead contamination.” To impose a $3 million liability on BBL for the costs of lead remediation on portions of the property it was not hired to remediate would be out of proportion to any fault on its part.

Second, we look at the prospect of private ordering. In a case having to do with auditor liability, the court in Bily, supra, 3 Cal.4th 370 explained: “In contrast to the ‘presumptively powerless consumer’ in product liability cases, the third party in an audit negligence case has other options-he or she can ‘privately order’ the risk of inaccurate financial reporting by contractual arrangements with the client. [Citation.] For example, a third party might expend its own resources to verify the client’s financial statements or selected portions of them that were particularly material to its transaction with the client. Or it might commission its own audit or investigation.... In addition, it might bargain with the client for special security or improved terms in a... transaction. Finally, the third party could... [insist] that an audit be conducted on its behalf or [establish] direct communications with the auditor with respect to its transaction with the client. [Citation.] [¶] As a matter of economic and social policy, third parties should be encouraged to rely on their own prudence, diligence, and contracting power, as well as other informational tools.” (Id. at p. 403.)

So, we consider the extent to which the Buyer under the 1995 Agreement had an opportunity to “privately order” the risks associated with the remediation of any lead discovered on the property. Clearly the Buyer had a substantial opportunity to engage in private ordering. The parties to the purchase and sale of not only the 31-acre property at issue, but all of the other oil properties that were the subject of the 1995 Agreement, were sophisticated parties. They negotiated a massive agreement that included 40 pages of remediation provisions alone, set forth in article 12 of the 1995 Agreement. They had every opportunity to include, for example, provisions for one party to verify the actions of another party or its contractors, for one party to provide insurance coverage for another party, for one party to be named as a third party beneficiary in any agreements between another party and its contractors, or for one party to assign its rights against its contractors to another party. In this case, the Buyer and the Sellers included in section 12.7(c) of the 1995 Agreement a provision regarding the assignment to the Buyer of the Sellers’ rights against their contractors, as we have mentioned previously.

Furthermore, BBL “did not have complete control over the creation of the product, ” that is, the remediation of lead on the entire 31-acre property. (Weseloh, supra, 125 Cal.App.4th at pp. 171-172.) Rather, the parties to the 1995 Agreement were the ones who had control over the remediation of lead on the 31-acre property and those parties ordered their obligations at length. They agreed that the obligation to seek out pre-closing contamination such as lead was on the Buyer. They further agreed that once the Buyer discovered pre-closing contamination and notified the Sellers of the same, within the five-year window period, the obligation to remediate the identified pre-closing contamination was on the Sellers. The parties did not agree that any environmental engineering firm hired by the Sellers to remediate a spot of pre-closing contamination would thereafter become obliged to remediate the entire 31-acre property. And, of course, by agreeing to remediate the specifically identified area of lead contamination, BBL did not undertake to remediate all other lead found on the property ever after. The prospect of private ordering clearly does not support the imposition of a duty on BBL in favor of Makallon.

Third, we turn to the effect of professional services provider liability to third persons. (Weseloh, supra, 125 Cal.App.4th at p. 172.) Makallon argues that imposing a duty on BBL in favor of Makallon would have no adverse consequences on the remediation industry and that failing to impose such a duty would allow remediation companies to perform negligently, leaving the property owners to suffer the risk. Yet here, Makallon was not left to suffer risk without remedy. Makallon had the formidable Sellers of oil property to pursue if they failed in any way to comply with their remediation obligations as expressed in the massive 1995 Agreement. Moreover, if a provider of $15,000 worth of remediation services with respect to a 12-by-7-by-4-foot plot of dirt were found to have a duty to a transferee of contaminated oil property to remediate 31 acres of that property, the number of environmental engineering firms willing to provide services on a such a facially discreet project would likely dwindle.

In conclusion, Makallon has not shown that the trial court erred in declining to impose a duty in tort on BBL.

IV

DISCUSSION: MACTEC

A. BACKGROUND:

(1) Agreement with Chevron Land

On February 24, 1998, Chevron Land and Harding Lawson entered into a General Agreement for Professional Services, with the scope of services to be specified at later dates pursuant to supplemental agreements or authorizations. On February 25, 1999, the parties executed an authorization in which the scope of services was defined as: “Contractor to provide manpower, equipment and other services to support environmental assessment, remediation, or other related services at the Atlanta property in Huntington Beach, California.” Harding Lawson was to complete its work by December 30, 1999 and was to be paid an amount not to exceed $50,000.

Harding Lawson performed soil investigation from July 1999 to September 1999, cutting approximately 44 trenches through the southeastern portion of the site. It collected multiple soil samples in each trench, for a total of 219 soil samples. The “soil samples were analyzed for total recoverable petroleum hydrocarbons....”

As mentioned previously, during the trenching activities, Archaeological Issue No. 2 was located in August 1999. An archeological hold was put in effect for the area and trenching activities there ceased. However, trenching activities continued in other areas.

By letter of October 12, 1999 addressed to Chevron Land, Harding Lawson reported on its soils investigation. Harding Lawson stated: “The soil investigation identified several environmental issues that will need to be addressed prior to the development and submittal of a remediation plan for the oily soil present on the Site.” The identified issues included Archeological Issue No. 2, located in the southeastern portion of the property. With reference to Archeological Issue No. 2, the letter observed that old trash had been found in certain trenches and that the issue needed “to be resolved prior to development and implementation of any remediation activities.”

(2) MACTEC’s Motion for Summary Judgment

MACTEC, the successor to Harding Lawson, moved for summary judgment on the ground that it owed no duty to Makallon to prevent it from incurring economic losses in connection with the remediation of pre-existing lead contamination on the property. MACTEC stated that Chevron⁸ had hired Harding Lawson to perform environmental consulting services with respect to the property. In 1999, Harding Lawson discovered trash buried on the property and informed Chevron of the same. Within two days, Makallon learned of the trash site from its own environmental consultants and its archeologist placed an archeological hold on the site, thus barring Harding Lawson and Chevron from entering the area. Harding Lawson concluded its work for Chevron in 2002, when the archeological hold was still in place. Lead was found in the area of the trash site in 2004, after the archeological hold was lifted.

8 In its motion for summary judgment, MACTEC was nonspecific as to the particular Chevron entity to which it referred.

In denying the existence of any duty in favor of Makallon, MACTEC said: “(1) neither the original buyer nor Makallon was an express third party beneficiary of [Harding Lawson’s] contract with Chevron; (2) [Harding Lawson’s] contract prohibited it from disclosing to any third party such as Makallon any information [Harding Lawson] acquired during the performance of its contract; (3) Chevron’s and Makallon’s interest in the remediation conflicted; (4) Makallon is a sophisticated commercial enterprise which, to protect its own interests, contracted with its own environmental consultant who made recommendations for site assessment and investigation; and (5) the buyer and seller anticipated the remediation costs at issue, and the buyer, rather than seller, allegedly incurred them only because of the ‘five-year’ clause in a contract to which [Harding Lawson] was not even a party.” In arguing that MACTEC owed no duty to Makallon, MACTEC cited numerous authorities, including Biakanja, supra, 49 Cal.2d 647, Bily, supra, 3 Cal.4th 370, and Weseloh, supra, 125 Cal.App.4th 152.

(3) Opposition to MACTEC’s Motion for Summary Judgment

In its opposition, Makallon asserted that Chevron had hired Harding Lawson “to dig up, test and remove contaminated soil from the Atlanta site” and to “perform[] these services to fulfill the obligations its principal, Chevron, owed [Makallon] to remediate the site.” Makallon asserted that the 1995 Agreement and related documents required Chevron, and thus Harding Lawson, to test certain oily dirt samples for lead, and also contended that Harding Lawson had failed to fulfill these obligations. Purportedly, because of Harding Lawson’s negligence, Makallon had to remediate tons of lead contaminated soil.

Makallon argued that Biakanja, supra, 49 Cal.2d 647, Bily, supra, 3 Cal.4th 370, and other cases clearly showed that Harding Lawson owed it a duty of care in the performance of its work on the site. To bolster its assertion that Harding Lawson owed it a duty of care, Makallon stated that Chevron had required Harding Lawson to have Makallon named as an additional insured on its insurance policies and that, pursuant to the 1995 Agreement, once Chevron’s corrective actions at the property were completed, Chevron’s rights against its contractors were deemed assigned to the buyer of the property. Makallon argued that “[w]hile a mere engineer who issues a report or creates design drawings may not have a duty, a contractor who actually performs work on [a] site absolutely is liable in negligence [for] negligent performance of its contract.”

(4) Ruling on MACTEC’s Motion for Summary Judgment

The court granted MACTEC’s motion for summary judgment. It held that the burden of proof had shifted to Makallon to demonstrate the existence of any triable issue of fact as to liability on the part of MACTEC in connection with any of the work its predecessor, Harding Lawson, had performed, and that Makallon had failed to meet its burden. It stated there was no evidence showing either that Harding Lawson had any duty to report to Makallon or that Chevron had undertaken to remediate the entire Atlanta property for hazardous substances.

The court further stated there was no evidence to confirm the suggestion of Makallon’s expert witness Gary E. Hokkanen⁹ that Harding Lawson was obligated to conduct a broad search for lead contamination during its consulting work with respect to oily dirt remediation. In addition, the court observed there was no evidence to support the speculation that if Harding Lawson had tested for lead contamination in 1999 it would have found it. Furthermore, the court stated that Hokkanen’s references to “industry standard” notwithstanding, he did not support the assertion that such standard requires a company hired to investigate oily dirt to broaden the investigation to include testing for lead. The court held that to impose such a view would be to rewrite the contract.

9 Makallon supported its opposition with the December 6, 2008 declaration of Gary E. Hokkanen. In addition, in its opposition to MACTEC’s separate statement of undisputed material facts, Makallon relied on the deposition testimony of Schaun M. Smith. MACTEC filed objections to the declaration of Hokkanen, as well as the declarations of John C. Ashby and George S. Burns, each of whom relied on the transcript of Smith’s deposition. The court sustained some of MACTEC’s objections to Hokkanen’s declaration, as well as certain objections to the Ashby and Burns declarations. Makallon contends that the rulings with respect to the Ashby and Burns declarations had the effect of precluding consideration of Smith’s deposition testimony. On appeal, Makallon claims that the court erred in making each of the aforementioned evidentiary rulings. This we need not decide, for even were we to consider in full Hokkanen’s declaration and Smith’s deposition testimony, our conclusion would remain the same.

Finally, the court held that, in applying the principles of Biakanja, supra, 49 Cal.2d 647 and Bily, supra, 3 Cal.4th 370, it declined to impose a tort duty on the part of Harding Lawson owing to Makallon.

B. ANALYSIS:

On appeal, Makallon maintains that the court erred in holding MACTEC did not owe it a duty of care. Its first line of attack, based on Oakes v. McCarthy Co., supra, 267 Cal.App.2d 231, is to say that whether Harding Lawson merely gave professional advice or whether it supervised the actual work on the property is a question of fact precluding summary judgment.

We disagree. There is no issue of disputed material fact here. In both its motion for summary judgment and its separate statement of undisputed material facts, MACTEC readily admitted that in 1999 Harding Lawson supervised the excavation of a series of trenches on the property and took soil samples from the property and tested them for petroleum hydrocarbons. The question here is not whether Harding Lawson supervised the actual work on the property. Given that MACTEC admits that Harding Lawson did so, the question is whether Harding Lawson owed a duty to Makallon. As to this issue, Makallon continues to argue that the factors enunciated in Biakanja, supra, 49 Cal.2d 647 and Bily, supra, 3 Cal.4th 370, and applied in Weseloh, 125 Cal.App.4th 152 and other cases, show that Harding Lawson did owe it a duty of care.

Once again, we start our analysis with the first Biakanja factor-the extent to which the transaction was intended to affect the plaintiff. Makallon argues that Harding Lawson’s work on the property was intended to affect the property owner because: (1) Harding Lawson was hired to fulfill Chevron Land’s obligation under article 12 of the 1995 Agreement to obtain a closure letter enabling Makallon to develop the property; and (2) Chevron Land required Harding Lawson to name Makallon as an additional insured on its insurance policy.

Makallon cites no portion of the record in support of its first argument. Therefore, we do not consider that argument. (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768.) In support of its second argument, Makallon cites portions of the record showing that Chevron Land, in its 1999 authorization to proceed, required Harding Lawson to name Atlanta Huntington Beach, LLC as an additional insured, and that Atlanta Huntington Beach, LLC changed its name to Makallon Atlanta Huntington Beach, LLC in 2001.

Makallon says that under Weseloh, supra, 125 Cal.App.4th 152, the requirement that the plaintiff be named as an additional insured on an insurance policy is a “key indicia of whether a transaction was designed to affect [the] plaintiff.” That is not what we said in Weseloh. In Weseloh we observed, when addressing the Bily factor pertaining to the prospect of private ordering, that the property owners “could have required they be named as additional insureds on all insurance policies covering the risks of defective workmanship of subcontractors.” (Weseloh, supra, 125 Cal.App.4th at p. 172.) Although Makallon has been imprecise in its characterization of our analysis in Weseloh, the fact that the authorization to proceed required Harding Lawson to name Atlanta Huntington Beach, LLC as an additional insured demonstrates that there was an intention to provide some protection to the property owner against liabilities arising out of Harding Lawson’s work and provides an indication that Harding Lawson may have been aware that Chevron Land did not own the property.

As in Weseloh, supra, 125 Cal.App.4th 152, the defendant here did not work for or contract with the plaintiff, and Makallon has cited no portion of the record to show that the contract contained a third-party beneficiary clause per se. However, unlike the situation in Weseloh, the defendant here did actually perform work on the property, may have been aware that the hiring party was not the property owner, and was in fact required to provide insurance with respect to the potential liability of the property owner. This is evidence of an intent to affect the property owner.

That is not the end of our inquiry, however. We now take a look at the second Biakanja factor-the foreseeability of harm to Makallon. Makallon contends that the harm to it was foreseeable because Chevron Land required Harding Lawson to comply with all applicable environmental laws and adhere to industry standards, but Harding Lawson failed to do so. As we discuss more fully in section V.B(3) of this opinion, however, Makallon has not raised a triable issue of material fact to show that Harding Lawson failed to perform in accordance with environmental laws and industry standards. In any event, the parties do not dispute the fact that, at the $30 million mark, Chevron Land took over the Buyer’s obligations under the 1995 Agreement with respect to oily dirt, and the fact that Harding Lawson, pursuant to its contract with Chevron Land, performed extensive trenching and testing of soils for oily dirt. It was not foreseeable that when Harding Lawson searched the property for oily dirt, as it was hired to do, the property owner would be injured because Harding Lawson did not also search the property for lead. Pursuant to the 1995 Agreement, the property owner was at all times free to search the property for hazardous substances, so that it could report any hazardous substances to Chevron Land within the five-year window period.

Next, we consider the third through fifth Biakanja factors-the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, and the moral blame attached to the defendant’s conduct. With respect to damages, Makallon states: “If [Harding Lawson] had followed the procedures required by (a) industry standards, (b) the Remediation Plan and (c) HBFD’s soil testing protocol, it would have found lead contaminated soil in Archeological [Issue No.] 2 in 1999. [Record references.] That discovery would have required Chevron to clean up the contamination under Article 12 within 5 years of closing. Instead, MACTEC hid the results of its 1999 Phase II investigation from Makallon for five years, forcing Makallon to not only bring this action but also pay over $3 million to clean up the lead.” (Italics added.) Makallon also says that Harding Lawson’s failure to follow industry standards, soil sampling protocols and city regulations made it morally blameworthy.

In support of these assertions, Makallon cites portions of the record dealing with the locations of subsequent lead discoveries vis-à-vis the locations where Harding Lawson did trenching and testing in 1999. The record references do not identify which industry standards, remediation plan, soil testing protocols, or Huntington Beach Fire Department or city requirements are at issue. Furthermore, they do not provide support for the assertion that Harding Lawson hid the results of its testing from Makallon.

Boiled to its essence, however, Makallon claims that Harding Lawson’s failure to test for lead in 1999 caused Makallon over $3 million in damages because Makallon was not made aware, during the five-year window period, of the existence of the lead it ultimately had to remediate. Accepting for discussion purposes the representation that Makallon paid over $3 million to remediate lead, Makallon was clearly damaged by being unaware of the lead during the five-year window period.

However, the issue here is the closeness of the connection between that damage and Harding Lawson’s conduct. Chevron Land undertook to remediate oily dirt and Harding Lawson, on behalf of Chevron Land, performed a soils investigation with respect to oily dirt. Makallon has cited no evidence to show that Chevron Land hired Harding Lawson to test the soil for substances other than total recoverable petroleum hydrocarbons. As far as the argument that industry standards, a remediation plan, soil testing protocols, or the requirements of the Huntington Beach Fire Department or the City of Huntington Beach required that Harding Lawson do more than Chevron Land required it to do, we dispose of this and related arguments in our discussion contained in section V.B(3) of this opinion and do not repeat that discussion here. Inasmuch as Makallon has not cited evidence sufficient to raise a triable issue of material fact showing that Harding Lawson should have tested for lead in the locations where Makallon later remediated lead, there is little connection between Harding Lawson’s conduct and Makallon’s injury and no evidence of moral blameworthiness.

As for the sixth Biakanja factor, Makallon has not demonstrated how imposing a duty on Harding Lawson in favor of subsequent property owners would promote a policy of preventing future harm. Once again, Makallon has not provided any evidence to show that greater care in soils investigations would result from expanded liability. (Weseloh, supra, 125 Cal.App.4th at p. 170.) Furthermore, where harm to Makallon is concerned, Makallon has the right to pursue Chevron Land for the allegedly inadequate 1999 soils investigation and is pursuing that right.

Now, we turn our attention to whether liability would be out of proportion to fault, the prospect of private ordering, and the effect of professional services provider liability to third persons. (Bily, supra, 3 Cal.4th at pp. 399-407; Weseloh, supra, 125 Cal.App.4th at pp. 169-172.) As for whether liability would be out of proportion to fault, we observe that Harding Lawson was paid no more than $50,000 to perform a soils investigation in which it tested soils for total recoverable petroleum hydrocarbons. There is no evidence to show that Harding Lawson failed to do what it was hired to do. Makallon seeks to hold Harding Lawson responsible for over $3 million in lead remediation costs because it did not, in its oily dirt investigation, discover lead. The obligation to seek out pre-closing contamination such as lead, and report it to the Sellers within the five-year window period, was on the Buyer. Because the Buyer did not seek out and discover lead within that five-year window, it seeks to shift the $3-million-plus costs for lead remediation to Harding Lawson. A liability of that magnitude would be out of proportion to any conceivable fault on Harding Lawson’s part in this matter.

As for the prospect of private ordering, Harding Lawson, just as BBL, “did not have complete control over the creation of the product”-in this context, the remediation of all hazardous substances on the entire 31-acre property. (Weseloh, supra, 125 Cal.App.4th at pp. 171-172.) Rather, the parties to the 1995 Agreement were the ones who had control over that remediation effort and those parties documented their respective obligations in detail. They agreed that the obligation to seek out and remediate oily dirt was on the Buyer, subject to cost sharing, until such time as the Sellers chose to undertake the obligations with respect to oily dirt after costs hit $30 million. They did not state, in the 1995 Agreement, that if the Sellers chose to undertake the oily dirt obligations they, and/or any environmental engineering firms they hired, thereupon became obligated to perform soils investigations with respect to lead.

The Buyer and the Sellers did choose, as Makallon points out, to provide in section 12.7(c) of the 1995 Agreement that after the Sellers completed their corrective action, they would be deemed to have assigned to the Buyer their rights against their contractors with respect to such corrective action. Rather than supporting Makallon’s arguments concerning private ordering, this provision undermines it. The provision only goes to show that it is unnecessary for the courts to impose a duty in tort in favor of the property owner when sophisticated parties can choose, and in this case did choose, to confer contract rights and remedies in favor of that property owner.

Cognizant of its potential liability with respect to the soils investigation, Chevron Land provided both itself and the property owner with an additional layer of protection by requiring Harding Lawson to name the property owner as an additional insured. If the parties to the comprehensive 1995 Agreement had wanted, in addition, to require the Sellers to include in their contracts provisions identifying the Buyer or its transferees as third party beneficiaries, they could have done so. But they did not.

Finally, we disagree with Makallon’s assertion that imposing a duty on Harding Lawson in this context would not have an adverse impact on the environmental remediation industry. While Makallon says to impose a duty on Harding Lawson would only be to require environmental remediation firms to comply with environmental laws and industry standards, we disagree. In this context, to impose a duty on Harding Lawson would be to shift one party’s lead discovery obligations, documented in a voluminous written agreement between sophisticated buyers and sellers of oil property, to an environmental engineering firm hired by a different party to that agreement. What better way to make environmental engineering firms shy away from providing services or to make the costs of their services skyrocket?

We conclude, on balance, that neither the Biakanja factors nor the supplemental Bily factors discussed in Weseloh, supra, 125 Cal.App.4th 152 support the imposition of a duty on Harding Lawson, now MACTEC, in this context. The trial court did not err.

V

DISCUSSION: CHEVRON DEFENDANTS

A. BACKGROUND:

(1) Chevron Defendants’ Motion for Summary Judgment

In their motion for summary judgment, the Chevron Defendants represented that the 1995 Agreement governed the sale of “thousands of acres of oil field properties located throughout California.” They emphasized that the 1995 Agreement made the Sellers responsible for lead contamination clean-up costs, as long as the Buyer gave written notice of the contamination within five years of the original sale date. In 2004, almost 10 years after the original sale, Makallon demanded that the Chevron Defendants reimburse it for lead contamination clean-up costs, but the Chevron Defendants refused.

The Chevron Defendants pointed out that the real property sales under the 1995 Agreement were expressly made “as is, ” and that both the 1995 Agreement and the recorded grant deeds contained contamination warnings. They stated that California law provides that a buyer who purchases property “as-is” is precluded from bringing causes of action for continuing nuisance, continuing trespass and violations of Health and Safety Code section 25359.7. The Chevron Defendants said, in addition, that the claims regarding the dump site on the property were barred not only by the “as-is” language in the 1995 Agreement and Makallon’s own purchase contract, but also the Civil Code section 1542 waiver clauses contained in each of those documents, as well as the notices contained in the recorded deeds.

At the same time, the Chevron Defendants asserted that Makallon was not an assignee of the Buyer’s rights under the 1995 Agreement and had no standing to enforce that agreement. They also contended, as discussed more fully in section V.B(1)(b) of this opinion, that Makallon’s promissory estoppel claim was contrary to the 1995 Agreement and the evidence, and barred by the parol evidence rule.¹⁰

10 The Chevron Defendants also made arguments concerning the allegation that they did not properly abandon certain oil wells and raised defensive arguments concerning the statute of limitations. Makallon opposed these arguments. We need not discuss any of the parties’ arguments on these points inasmuch as Makallon does not address them in its opening brief. (Schubert v. Reynolds (2002) 95 Cal.App.4th 100, 108.)

(2) Opposition to Chevron Defendants’ Motion for Summary Judgment

In its opposition to the Chevron Defendants’ motion for summary judgment, Makallon argued that the Chevron Defendants’ assertion that it was not an assignee of the 1995 Agreement and had no standing to enforce it was contrary to the Chevron Defendants’ own admissions, pleadings and correspondence. It also asserted, as discussed more fully in section V.B(1)(c) of this opinion, that the consideration of its evidence with respect to the promissory estoppel claim was not barred by the parol evidence rule, and that it relied to its detriment on Chevron Land’s promise to seek out and remediate all lead on the property.

Makallon argued at length that the Chevron Defendants had breached their contractual obligations under the 1995 Agreement. It asserted, inter alia, that the Chevron Defendants had failed in their obligations under the 1995 Agreement to complete corrective actions, minimize delay, and remediate pre-closing contamination after receipt of notice of the same. It also contended that the Chevron Defendants were obligated by law to test soil samples taken in 1999 for lead, but failed to test for lead until 2004.

Makallon also argued that, contrary to the Chevron Defendants’ contention, the sale of the property pursuant to the 1995 Agreement was not an “as-is” sale. This, it argued, was the case notwithstanding “as-is” language contained in section 7.3 of the 1995 Agreement, the Civil Code section 1542 release contained in the 1995 Agreement, and the “as-is” language contained in certain deeds. Makallon stated that the “as-is” clause of section 7.3 was subject to section 8.2 and article 12 of the 1995 Agreement, and that article 12 required the Chevron Defendants to remediate any pollution discovered. In addition, Makallon contended that no “as-is” clause could bar a claim for a statutory violation, here the alleged violation of Health and Safety Code section 25359.7, and further that a claim for the violation of that statute could not be waived. Furthermore, Makallon asserted that the federal case law the Chevron Defendants cited, in support of their argument that claims for nuisance and trespass are unavailable when property is sold “as-is, ” was non-binding and poorly reasoned.

(3) Ruling on Chevron Defendants’ Motion for Summary Judgment

The court found that the Chevron Defendants had met their burden to show that Makallon could not establish at least one element of each of its causes of action. The court further held that the burden had shifted to Makallon to raise a triable issue of material fact as to the elements in question.

With respect to the contract causes of action, the court found that it was up to the Buyer of the property to investigate the location of hazardous substances on the property and to provide notice to the Chevron Defendants within the five-year period of any hazardous substances that required remediation. More specifically, the court found that Makallon had failed to raise any triable issue of material fact that the Chevron Defendants or their consultants were obligated to investigate the area surrounding the 1997 excavation to see if any of those surrounding areas also required remediation.

The court further found that Makallon had failed to raise any triable issue of material fact to show that when, in 1998, the Chevron Defendants assumed the obligation to remediate oily dirt, the 1995 Agreement was modified so as to relieve the Buyer of its obligation to locate any hazardous substances on the property and notify the Chevron Defendants of the need for remediation with respect to those substances. Similarly, the court found that Makallon had not raised any triable issue of material fact to show that the Chevron Defendants had assumed the obligation to remediate hazardous substances after high lead concentrations were discovered at the trash site on the property in 2004.

The court concluded that summary judgment should be granted in favor of the Chevron Defendants with respect to the second, sixth, seventh, and eighth causes of action, based on contract.

Turning to the non-contract causes of action, the court found that section 12.13(a) of the 1995 Agreement provided that the parties’ exclusive obligations and remedies with respect to environmental liabilities were set forth in the remediation provisions of that agreement and that all other rights and remedies provided by law were waived. In addition, the court found that Makallon had both actual and constructive notice of the fact that unknown hazardous substances could be discovered on the property after acquisition. The court held that the evidence of such actual and constructive knowledge barred Makallon’s non-contract claims and that Makallon had failed to raise any triable issue of material fact to the contrary. Moreover, the court found that Makallon had met is burden to demonstrate that it was an assignee of the 1995 Agreement, and held that it was, therefore, bound by its terms. Consequently, Makallon was not entitled to bring claims prohibited by section 12.13(a) of that agreement.

B. ANALYSIS:

(1) Promissory Estoppel

(a) Makallon’s pleading

In its cause of action for promissory estoppel, Makallon contended that when Chevron Land informed MS Vickers LLP and PLC that it was assuming certain remediation activities because costs had exceeded $30 million, it thereupon assumed all obligations enumerated in article 12 of the 1995 Agreement. According to Makallon, Chevron Land thereby became obligated to remediate all lead discovered on the property, including the lead discovered in 2004. Makallon alleged that, in reliance on Chevron Land’s assumption of all article 12 activities, it stopped searching for hazardous substances.

(b) Chevron Defendants’ motion for summary judgment

In their motion for summary judgment, the Chevron Defendants characterized Makallon’s promissory estoppel cause of action as a claim “that in 1998, Chevron inexplicably assumed the buyer’s responsibility to find hazardous substances, and consequently, Makallon didn’t bother looking for or notifying Chevron of hazardous substances within the five-year limitations period.” They argued that Makallon had, in essence, asserted that the 1995 Agreement had been modified to impose upon Chevron Land the obligation to search for lead. The Chevron Defendants contended that Makallon’s modification theory was plainly barred by the terms of the 1995 Agreement and the parol evidence rule, and was unsupported by the evidence. They supported their motion with citations, in their separate statement of undisputed material facts, to section 12.5(c)(iii) of the 1995 Agreement, the October 1, 1997 letter, the February 5, 1998 letter, and section 13.12 of the 1995 Agreement.

Section 12.5(c)(iii) of the 1995 Agreement provides in pertinent part: “When and if the costs of Buyer’s Corrective Action equal or exceed $30 million, Sellers may, at their option on sixty (60) days’ written notice, assume responsibility for all or part of Buyer’s Corrective Action not completed in which case the portion for which [Sellers have] elected to assume responsibility shall be deemed to be Sellers’ Corrective Action for all purposes hereunder....” Section 12.1(c) of the 1995 Agreement defined the term “Buyer’s Corrective Action” to mean “the action required to satisfy the applicable Minimum Legal Requirements for Remediation of Oily Dirt located in, on or under the Designated Properties, or any portion thereof.”

The October 1, 1997 letter from Jerry B. Bischoff of Chevron Land to Jeff Rulon of PLC and Dave Henry of Hazard Management provides in pertinent part: “As you know, the Article 12 costs are rapidly approaching the $30 Million mark. In compliance with Article 12.5(c)(iii), Chevron wishes to advise Buyer of its intention to assume responsibility for all of Buyer’s Corrective Action at the time the $30 Million is expended. [¶] Accordingly, Chevron will not reimburse Buyer for any Article 12 work performed on or after the later of (1) December 1, 1997 (the 60 day notice period), or (2) the date the $30 Million is exceeded.... [¶] While it was not anticipated that there would be a need to invoke this clause when Article 12 was originally drafted, Chevron feels it has no choice but to take control of the process in order to contain what have become expenditures far in excess of the budget for oily soil remediation.”

The February 5, 1998 follow-up letter from Bischoff to PLC and MS Vickers LLP states in pertinent part: “On October 1, 1997 I sent a letter to Jeff Rulon and Dave Henry indicating our intention to take over the Article 12 activities when the total expenditure reached $30MM. It appears that we are now very near that point.”

Section 13.12 of the 1995 Agreement provides in pertinent part: “This Agreement, including the schedules, exhibits and other writings referred to herein..., constitutes the entire agreement between Sellers and Buyer with respect to the subject matter hereof and supersedes all prior oral or written agreements, commitments or understandings with respect thereto. No amendment or waiver of the terms of this Agreement shall be binding on the parties unless in writing and signed by authorized representatives of all parties hereto....”

(c) Makallon’s opposition

In its opposition to the motion, Makallon, without citation to legal authority, challenged the assertion that consideration of the February 5, 1998 letter was barred by the parol evidence rule. According to Makallon, the letter was not parol evidence being used to vary the 1995 Agreement. Rather, as a notice given pursuant to the 1995 Agreement, it became a part of the 1995 Agreement itself and defined the parties’ obligations thereunder. In addition, Makallon stated that it relied to its detriment on the promise contained in the February 5, 1998 letter.

Furthermore, Makallon, in its separate statement of undisputed material facts in opposition to the Chevron Defendants’ motion, stated that the Chevron Defendants’ copy of the February 5, 1998 letter was incomplete. It referenced the declaration of Henry, an associate of Hazard Management, who indicated that he had attended a February 5, 1998 meeting at which he received a copy of the letter together with two attachments. The first attachment was captioned “Article 12 Expenditures” and itemized certain points to be included in the minutes of a February 5, 1998 remediation meeting. One sentence of the attachment read: “It is our intention to assume responsibility for all future Article 12 remediation activities once expenditures exceed $30MM.” The second attachment was a copy of the October 1, 1997 letter.

(d) order on Chevron Defendants’ motion

In its order granting summary judgment in favor of the Chevron Defendants, the court found “that the Chevron Defendants’ assumption of Buyer’s Oily Dirt remediation in 1998 did not modify the 1995 Contract and relieve Buyer from its obligation to find and notify the Chevron Defendants of Hazardous Substances within the 5-year window if Buyer wanted the Chevron Defendants to be financially responsible for clean up.” The court further found Makallon had not provided any evidence to raise a triable issue of material fact to demonstrate that “the Chevron Defendants [had] modified the 1995 Contract to assume the responsibility to find or to remediate Hazardous Substances on the 31-acre Atlanta Property except as the 1995 Contract provided. Specifically, Plaintiff’s efforts to rely on the October 1, 1997 and February 5, 1998 letters from Mr. Jerry Bischoff fail since said letters expressly reference ‘Article 12 remediation, ’ implying that the 1995 Contract was to be followed, not changed. Also, given that the funds at issue in the Bischoff letters pertained to testing for and remediation of ‘Oily Dirt, ’ the letters do not create a triable issue that the Chevron Defendants assumed Hazardous Substance remediation. The Bischoff letters specifically rely on the provision in the 1995 Contract that addresses assumption of Buyer’s Corrective Action, which relates only to Oily Dirt remediation, and there is no triable issue that the Bischoff letters mean anything other than the Chevron Defendants were exercising their option to assume Buyer’s Corrective Action for Oily Dirt under section 12.5(c)(iii) of the 1995 Contract.”

(e) Makallon’s arguments on appeal

On appeal, Makallon contends the court erred in its ruling on the promissory estoppel cause of action. First, it says that the court concluded section 12.16 of the 1995 Agreement barred the cause of action. Makallon expresses dismay at this conclusion because, in its view, the Chevron Defendants had relied in their motion not on section 12.16, but on the parol evidence rule, which did not support their position in any event. Second, Makallon argues that since Chevron Land promised to search for and remediate lead, it should be estopped from denying that promise. Third, Makallon claims it presented evidence sufficient to raise a triable issue of material fact as to whether that promise was enforceable.

(f) analysis

At the outset, we must note that the order granting summary judgment does not make mention of section 12.16 of the 1995 Agreement.¹¹ Consequently, Makallon’s claim of error based on section 12.16 is completely unsupported. Also, Makallon’s citations to legal authority do not address the parol evidence rule, so we also do not address it. (Roden v. AmerisourceBergen Corp. (2010) 186 Cal.App.4th 620, 648-649.)

11 Perhaps Makallon intended to refer to section 12.13 of the 1995 Agreement, which is mentioned on the page of the order that Makallon cites. However, the court discusses section 12.13 of the 1995 Agreement as applied to the first, fourth and fifth causes of action, not the seventh cause of action for promissory estoppel.

We turn now to the law of promissory estoppel. “‘Promissory estoppel is “a doctrine which employs equitable principles to satisfy the requirement that consideration must be given in exchange for the promise sought to be enforced.” [Citation.]’ [Citation.] Because promissory estoppel is an equitable doctrine to allow enforcement of a promise that would otherwise be unenforceable, courts are given wide discretion in its application. [Citations.]” (US Ecology, Inc. v. State of California (2005) 129 Cal.App.4th 887, 901-902.) “The elements of a promissory estoppel claim are ‘(1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) [the] reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance.’ [Citation.]” (Id. at p. 901.)

Here, the trial court in essence found that the first element-a clear and unambiguous promise-was lacking. That is, it found that Makallon had failed to raise a triable issue of material fact to show that the Chevron Defendants had promised to find and remediate lead on the 31-acre property. More specifically, it stated “there [was] no triable issue that the Bischoff letters [meant] anything other than the Chevron Defendants were exercising their option to assume Buyer’s Corrective Action for Oily Dirt under section 12.5(c)(iii) of the 1995 Contract.”

Makallon disagrees. In support of its assertion that it presented evidence sufficient to raise a triable issue of material fact, Makallon points to the February 5, 1998 letter, a September 2008 declaration of Timothy E. Hamilton, September 2008 and December 2008 declarations of Ethen Thacher, and certain attachments to the foregoing.¹²

12 Makallon indicates that it filed the September 2008 Thacher and Hamilton declarations not in opposition to the motion for summary judgment filed by the Chevron Defendants, but rather in support of its own motion for summary adjudication. It explains that it just referred to those declarations in its separate statement of undisputed material facts in opposition to the Chevron Defendants’ motion instead of burdening the court with duplicate copies of the declarations. The Chevron Defendants filed objections to the declarations on numerous grounds. The court sustained the objections. Makallon claims the court erred in doing so. This is a matter we need not decide. Even were we to consider the declarations, we would not conclude that Makallon had raised a triable issue of material fact with respect to the promissory estoppel cause of action or any of the other causes of action.

As Makallon points out, in its separate statement of undisputed material facts in opposition to the Chevron Defendants’ motion, it provided five additional material disputed facts, purportedly bearing on detrimental reliance, that were supported by either the September 2008 Thacher declaration or the September 2008 Hamilton declaration. Additional material facts Nos. 40, 60, 61 and 62 were supported by references to the September 2008 Thacher declaration, but none of those additional material facts pertained to whether the February 5, 1998 letter constituted a promise made by Chevron Land to the Buyer to search out and remediate lead.¹³

13 Additional material fact No. 40 states: “In its [June 2000] application [for a coastal development permit], Chevron represented that the area it had investigated was not a hazardous substance site.” Additional material fact No. 60 provides: “In July 2002, Chevron submitted a Storm Water Pollution Protection Plan to the City in which Chevron again directly promised that ‘any hazardous waste encountered will be properly labeled, sampled, classified, and treated/disposed of in an approved facility in accordance with all local, state, and federal regulations’.” Additional material fact No. 61 states: “In October, 2004, after Chevron discovered lead deposits at the site, it again submitted a report to the City. Once again, Chevron unequivocally stated that it would test for any ‘material found to be hazardous under Title 22’, perform ‘arsenic sampling’, and that, following that testing, ‘any areas previously identified as Hazardous under Title 22 (CS 431-92) will be surgically removed as appropriate.’” Additional material fact No. 62 provides: “In connection with issuing and obtaining plaintiff’s approval for that October, 2004 plan, Chevron’s senior environmental consultant directly confirmed in writing to plaintiff that Chevron would remediate the ‘levels of lead’ that Chevron had recently ‘discovered’.” (Boldface omitted.) In support of that statement, Makallon cited paragraph 17 of Thacher’s September 2008 declaration and exhibit 5 thereto. In paragraph 17, Thacher declared: “On September 24, 2004, I received an E-mail from Schaun Smith, who worked for BBL, in which he informed me that BBL had discovered non-hazardous levels of lead on the Atlanta Property, which required further testing.” In the September 24, 2004 e-mail, attached as exhibit 5, Smith stated: “Non-RCRA hazardous levels of lead have been discovered. More testing is being performed to verify that soil to be utilized as fill meets regulatory specifications.”

Additional material fact No. 64 states: “Makallon did not undertake any such testing of the soil at the site (which surely would have disclosed this pollution) based on Chevron’s express assurances that it had exercised its right to take over the entire performance of Article 12....” In support of that additional material fact, Makallon cited paragraphs 8 and 9 of the September 2008 Hamilton declaration.

Hamilton declared that he had been employed at Capital Pacific Holdings, Inc., which, together with the St. Clair Company, formed Atlanta Huntington Beach, LLC to acquire the property. He explained that Capital Pacific Holdings, Inc. was the managing member of Capital Pacific Holdings, LLC, which was, in turn, the non-managing member of Atlanta Huntington Beach, LLC.

In paragraph 8 of his declaration, Hamilton stated: “Before Atlanta Huntington Beach acquired the Atlanta Property, I was provided with a copy of [a] February 5, 1998 letter from Jerry Bischoff of Chevron... to Christopher Gibbs and Brian Carr. In the attachment to that letter, Chevron stated: ‘It is our intention to assume responsibility for all future Article 12 remediation activities once expenditures exceed $30MM.’... I was aware of the ‘Article 12: agreement and knew that it concerned the respective rights and obligations of Chevron and the purchaser of the property concerning remediation of the property. In purchasing the Atlanta Property, I and the other members of the [Capital Pacific Holdings, Inc.] Management team relied on that representation when [Capital Pacific Holdings, Inc.] agreed to purchase the property.”

In paragraph 9 of his declaration, Hamilton said: “From late 1998 through to April, 2003, the end of my tenure at [Capital Pacific Holdings, Inc.], I knew that Chevron’s remediation contractors were performing clean up activities on the property. Based on that knowledge, as well as the Jerry Bischoff February 5, 1998 letter, I concluded and at all times believed that Chevron had assumed responsibility for all remediation activities on the Atlanta Property. Therefore, after close of escrow, [Capital Pacific Holdings, Inc.] did not undertake its own testing or clean up activities at the site, as we relied on Chevron’s promise that it had assumed all these obligations.”

We observe that nothing in the Hamilton declaration could affect whether or not the February 5, 1998 letter and attachments constituted a modification of the 1995 Agreement. Neither Atlanta Huntington Beach, LLC nor Capital Pacific Holdings, Inc. was the addressee of the letter and, as of the date of the letter, neither entity was an owner of the property. At most, Hamilton’s declaration would show that he himself had reached a legal conclusion about whether a modification had previously taken place and then relied on the legal conclusion so formed. His declaration did not suffice to raise a triable issue of material fact as to whether the February 5, 1998 letter and attachments constituted a modification of the 1995 Agreement.

On appeal, Makallon cites certain pages of Thacher’s September 2008 declaration as proof that it presented sufficient evidence to raise a triable issue of material fact as to whether the Chevron Defendants had made an enforceable promise to find and remediate lead on the 31-acre property. Thacher said that in December 1998, he met with certain representatives of Chevron Land. He declared: “These Chevron representatives discussed the remediation efforts to date on the Atlanta Property. They told us that... Article 12 originally divided remediation responsibilities between Chevron and Makar, but that Chevron had previously exercised its right under Article 12 to assume all remediation responsibilities for the Atlanta Property, and would perform all remediation work on the Atlanta Property.” All this shows is that representatives of Chevron Land acknowledged that Chevron Land had exercised its right under section 12.5(c)(iii) of the 1995 Agreement to assume the Buyer’s corrective action with respect to the remediation of oily dirt at the $30 million mark.

Finally, in order to show detrimental reliance, Makallon now cites four pages of the December 2008 declaration of Thacher. Those four pages mention meetings Thacher attended and documents he reviewed, and also reference a number of exhibits. Makallon does not draw our attention to any specific portion of the declaration that we should consider. This court is not required to scour the record on behalf of a party to find support for its point. (Del Real v. City of Riverside, supra, 95 Cal.App.4th at p. 768.) Consequently, Makallon’s citation to those pages is unavailing. In any event, a promissory estoppel claim has four elements, and a showing of reliance alone is insufficient to establish such a claim. (US Ecology, Inc. v. State of California, supra, 129 Cal.App.4th at p. 901.)

In sum, the Chevron Defendants met their burden of showing that the promissory estoppel cause of action had no merit inasmuch as they showed that one of the elements of the cause of action, a clear and unambiguous promise to find and remediate lead on the entire 31-acre site, could not be established. Once they met that burden, the burden shifted to Makallon to show that a triable issue of one or more material facts existed as to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) The trial court did not err in concluding that Makallon had failed to meet its burden.

(2) Breach of Contract Arising out of 1997 Remediation

Makallon asserts that the Chevron Defendants are liable for the actions of their agent, BBL, in the performance of lead remediation in 1997, and argues that the court erred in holding that the performance of lead remediation in 1997 complied with article 12 of the 1995 Agreement. More specifically, Makallon says that instead of merely removing the lead identified by Harding Lawson in its 1996 Phase II investigation, BBL should have conducted a further investigation, beyond that performed by Harding Lawson, to determine the extent of the lead contamination. Makallon claims that if BBL had done so, it would have discovered more lead only 15 feet away from its lead removal site.

However, Makallon cites no portion of the 1995 Agreement stating that once the Buyer identifies pre-closing lead contamination, the Sellers are required to test for lead within a particular radius around the location of the contaminated soil. And, we have come across no such provision in article 12 of the 1995 Agreement, which contains 40 pages of comprehensive remediation provisions. We observe that section 12.5(a) of the 1995 Agreement contains more than five pages of provisions devoted to the performance of Sellers’ corrective action once the Buyer informs the Sellers that it has located pre-closing contamination. Section 12.5(a)(i)(1) requires the Sellers to remediate the identified pre-closing contamination to below Title 22 levels; it does not require remediation of any portion of the property other than that identified by the Buyer. Furthermore, section 12.5(a)(i)(2) requires the Sellers to provide the Buyer with a preliminary corrective action plan within 20 days of receipt of notice of pre-closing contamination, and section 12.5(a)(i)(4) gives the Buyer an opportunity to review and, if applicable, disagree with the preliminary corrective action plan. Makallon does not address these provisions, does not mention whether the Chevron Defendants provided a preliminary corrective action plan, whether any such plan specified a testing radius, or whether the Buyer responded to any such plan. Makallon simply has not demonstrated that the 1995 Agreement itself required testing in a 15-foot radius, or any other particular radius, around the location of the detected lead.

Furthermore, in Makallon’s opposition to BBL’s separate statement of undisputed material facts, Makallon asserted, as an additional material fact, that BBL “took confirmation samples from three side walls and the bottom of its excavation during its 1997 lead removal action.” In support of this, Makallon cited, as it cites again on appeal, the July 11, 1997 letter from BBL to Chevron Land reporting on its activities.¹⁴ Contrary to Makallon’s characterization, the evidence Makallon itself cited in the trial court and cites again on appeal shows that BBL did in fact do further testing around the two spots where Harding Lawson located lead. This testing simply did not reveal any additional lead contamination.

14 In the July 11, 1997 letter, BBL stated: “A total of four confirmatory soil samples were collected from the open excavation following the removal of the impacted soil (Figure 2). Three samples... were collected from the southern, eastern, and western sidewalls, respectively. A sample was not collected from the northern sidewall as two samples... had previously been collected in this area and adequately defined the hazardous concentrations of lead. One additional sample... was collected from the base of the excavation at a depth of 4 feet.... [¶]... All samples contained soluble lead at concentrations below the Title 22 STLC action level of 5 ppm.” Figure 2 depicted sampling points 2-T-20-5-3 and HA-4-2, the perimeter of the excavation area surrounding those two sampling points, and the locations where clean samples were taken to the north, south, east and west of sampling points 2-T-20-5-3 and HA-4-2, and in between sampling points 2-T-20-5-3 and HA-4-2, but at a lower depth.

However, Makallon notes that section 12.1(u) of the 1995 Agreement required the Sellers to satisfy minimum legal requirements under applicable environmental laws, in the performance of the Sellers’ corrective action. It contends that BBL failed to comply with applicable environmental laws or adhere to industry standards in the performance of its work, and consequently, it breached article 12 of the 1995 Agreement.

Makallon represents that after the Chevron Defendants were notified of the lead contamination, they “informed [the Huntington Beach Fire Department] that [they] would further investigate the extent of lead contamination.” Makallon maintains that the Chevron Defendants failed to conduct the further investigation as represented and that this constituted a failure to comply with applicable environmental laws.

In support of its assertion that the Chevron Defendants represented to the Huntington Beach Fire Department that they would conduct a further investigation of lead contamination, Makallon relies largely on the 1997 HBFD Approved Remediation Plan prepared by Harding Lawson on behalf of MS Vickers II, LLC. Harding Lawson stated therein: “Lead-impacted soil was detected in the southeastern portion of Area 1, in the vicinity of Sample 2-T-20-5-3. Further investigation and remediation of the lead-impacted soil will be conducted by Chevron and will be documented in a separate report at that time.” This does not constitute a representation made by the Chevron Defendants to the Huntington Beach Fire Department. In any event, as noted previously, the evidence Makallon cites shows that BBL did in fact conduct further investigation.

Makallon also relies on page 9 of the remediation plan agreed to by the Buyer and the Sellers as part of the Joint Closing Agreement (Joint Closing Agreement Remediation Plan).¹⁵ The material addressed on that page falls under the topic heading, “Implementation of Approved Corrective Action Plan.” (Capitalization omitted.) We observe that page 9 contains the following language: “Seller will excavate and transport for off-site treatment... or disposal all Hazardous Substances above Minimum Legal Requirements identified during the Phase II investigation (or otherwise)..., except for statistically insignificant amounts of Hazardous Substances that do not exceed Title 22 levels and that appropriate analysis, as reviewed and approved by the Lead Environmental Agency, demonstrates will not result in concentrations above Minimum Legal Requirements after normal grading.” Although this language refers to both minimum legal requirements and lead environmental agency requirements, it does not constitute a representation by the Chevron Defendants to the Huntington Beach Fire Department that it will perform testing in a certain radius around the lead contamination that Harding Lawson identified in 1996. It does not even provide elucidation as to what the applicable environmental laws or the Huntington Beach Fire Department policies require.

15 Section 12.1(s) of the 1995 Agreement defines the “Remediation Plan” as “the plan for the performance of Corrective Action required to satisfy the applicable Minimum Legal Requirements for Remediation of Oily Dirt and Pre-Closing Contamination located in, on, under or migrating from the Designated Properties, taking into account Buyer’s development plans, which Remediation Plan Buyer and Sellers (i) agree to mutually develop in good faith between the date hereof and the Closing pursuant to Section 12.2(d), (ii) acknowledge will only be a good faith objective of the parties and (iii) acknowledge that as Buyer’s development work proceeds and Corrective Action is undertaken after Closing, will require regular contact between Buyer and Seller[s] and subsequent modification.”

In addition to the foregoing, Makallon cites Hokkanen’s December 5, 2008 declaration, filed in opposition to BBL’s motion for summary judgment.¹⁶ Hokkanen opined that industry standards required BBL to do further testing to determine the extent of the lead contamination around the two lead-impacted sites identified by Harding Lawson. However, his opinion as to industry standards cannot be used to expand the contractual duties to which the parties agreed in the 1995 Agreement. As noted previously, the Buyer and the Sellers negotiated a detailed 40-page set of provisions, comprising article 12, expressing the parties’ obligations with respect to remediation. Section 12.5(a)(i)(4) gave the Buyer the opportunity to comment upon the scope of the Sellers’ proposed corrective action plan. If the Buyer did not feel that the proposed corrective action plan satisfied industry standards, it had an opportunity to say so. Makallon cites no provision of article 12 to suggest that the scope of the Sellers’ corrective action could be retroactively expanded by a professional’s postmortem expression of opinion as to industry standards.

16 As noted above, BBL filed numerous objections to Hokkanen’s declaration, the majority of which the court sustained. Makallon claims the court abused its discretion in sustaining the objections. This is a matter we need not decide, since our analysis would be the same even taking the full declaration of Hokkanen into consideration.

Hokkanen also stated that BBL failed to comply with Specification 431-92 in several respects. He said the specification required BBL to submit, to the Huntington Beach Fire Department, both a plan for the removal of the lead and a confirmation sampling plan, but that BBL failed to submit either one. Hokkanen also stated that the specification required BBL to test the soil it used for backfill, but it also failed to do that. In support of his declaration, Hokkanen attached a copy of the seven-page specification. He cited only one sentence of that specification, appearing under the topic heading “On-Site Remediation.” (Capitalization and underscoring omitted.) That sentence reads: “A testing plan shall be submitted to the Fire Department for approval as well as a final report which shall summarize the remediation efforts and post remediation test results.”

Hokkanen did not explain why the requirement to submit testing plans fell on BBL, as opposed to the property owner. Makallon also does not explain the point or cite any portion of the specification that imposes the obligation on the contractor performing the remediation. However, we noticed that, under the topic “Site Assessment and Laboratory Specifications” (capitalization and underscoring omitted), the specification provides: “The Sampling Protocol, both in terms of site specific targets and other random sampling should be formulated in cooperation with the Fire Department. The burden of demonstrating soil clean-up to established limits of contamination shall be the responsibility of the land owner. The Fire Department’s approval of a Sampling Protocol shall be required.”

We also noticed some interesting portions of the December 2008 declaration of Henry, filed in support of Makallon’s opposition to BBL’s motion for summary judgment, as well as communications between the Huntington Beach Fire Department and Hazard Management, copies of which were attached to the declaration. Henry declared that from March 1996 through March 1998, Hazard Management supervised the implementation of remediation on the property. He further declared that in August 1996, he received from the Huntington Beach Fire Department a conditional approval letter concerning the Phase II Investigation Plan, and that in January 1997, he received another conditional approval letter, this one pertaining to Harding Lawson’s Phase II Investigation Report/Remediation Plan.

The first letter, dated August 23, 1996, was from Tim Greaves, of the Huntington Beach Fire Department, to Henry, of Hazard Management, and stated that Greaves had completed the Phase II Investigation Plan review and required three specified revisions for plan approval. The second letter, dated January 8, 1997, from Greaves to Henry, stated as follows: “Analytical data and proposed remediation activities submitted within the Phase II Investigation Report/Remediation Plan Atlanta Areas by Harding Lawson Associates, follows the intent of the City’s cleanup criteria as outlined in the City of Huntington Beach’s Soil Cleanup Standard, City Specification 431-92. The Fire Department hereby approves the Plan with the following requirements: [¶]... [¶] When appropriate, submit two (2) proposed confirmation sampling plans so HBFD PetroChem staff may add HBFD Random Sample locations....” (Underscoring omitted.) This shows that Hazard Management, which was the representative of MS Vickers II, LLC, was the party obtaining necessary approvals from the Huntington Beach Fire Department.

Hokkanen also declared that Specification 431-92 required BBL to test the soil it used for backfill, but that BBL failed to do so. Hokkanen cited no provision of the specification on the point. Makallon cites page four of the specification, but does not quote any particular portion of that page.¹⁷ The language we find on that page that would appear to be most nearly apposite pertains to the testing, remediation and reuse of contaminated soil that has been stockpiled on the site. However, Makallon cites no portion of the record to show that the soil BBL used for backfill was contaminated soil that had been stockpiled for remediation and reuse.

17 Makallon also cites page 8722 of the appellant’s appendix. That page is illegible and we do not even know the nature of the document. The burden is upon the appellant to provide an adequate record on appeal. (Dawson v. Toledano (2003) 109 Cal.App.4th 387, 402.)

As the foregoing discussion shows, Makallon failed to raise a triable issue of material fact to show that the 1997 lead remediation did not comply with article 12 of the 1995 Agreement.

(3) Breach of Contract Arising out of 1999 Soils Investigation

(a) introduction

Makallon also argues the court erred in holding that the Chevron Defendants did not breach article 12 of the 1995 Agreement in failing to test for lead in 1999. It says Chevron is liable for the acts of its agent, Harding Lawson, in the performance of the 1999 soils investigation, which Makallon calls a “Phase II Investigation.”

Makallon contends that after lead was discovered on the property in late 1996, all samples of oily dirt were required by the Joint Closing Agreement Remediation Plan to be tested for lead, including the samples taken in 1999. Makallon also says it presented evidence to show that a Huntington Beach Fire Department conditional approval letter, and industry standards, also required all soil samples taken in 1999 to be tested for lead. Makallon asserts that if Harding Lawson had tested the samples it took from Archeological Issue No. 2 for lead, the lead discovered in Archeological Issue No. 2 in 2004 would have been discovered instead in 1999, within the five-year period. Makallon maintains that the failure to test the oily dirt samples for lead breached section 12.5(a) and section 12.5(b) of the 1995 Agreement.

In addressing these arguments, we must take a number of documents into consideration: (1) Specification 431-92, dated July 30, 1992; (2) the 1995 Agreement; (3) the Joint Closing Agreement Remediation Plan; (4) Harding Lawson’s July 26, 1996 “Phase II Investigation Plan”; (5) the Huntington Beach Fire Department’s August 23, 1996 conditional approval of the Phase II Investigation Plan; (6) Harding Lawson’s December 18, 1996 “Phase II Investigation Report/Remediation Plan;” (7) the 1997 HBFD Approved Remediation Plan; (8) Harding Lawson’s January 9, 1997 proposed sampling protocol for fill soils; (9) Harding Lawson’s October 12, 1999 report to Chevron Land pertaining to the 1999 soils investigation; and (10) various other documents prepared by one or more of the Chevron Defendants or their contractors after 1999.

(b) 1995 Agreement and Joint Closing Agreement Remediation Plan

In order to assess Makallon’s claims, we must review several provisions of the 1995 Agreement. Section 12.2(d) thereof required the Buyer and the Sellers to attempt to agree upon a remediation plan prior to close of escrow. Among other things, the remediation plan would break the property into “areas” for remediation, estimate the time of completion for remediation with respect to each area, and establish probable remediation methods for each of Buyer’s corrective action and Sellers’ corrective action for each area. According to section 12.1(s) of the 1995 Agreement, the Buyer and the Sellers acknowledged that the remediation plan would “only be a good faith objective of the parties” and would “require regular contact between Buyer and Seller[s] and subsequent modification.” Pursuant to sections 12.5(a) and 12.5(b), the Buyer and the Sellers each expressed their “good faith intention” to perform their respective corrective actions “consistently with the good faith objectives established in the Remediation Plan....”

Section 12.5(b)(i) addressed the steps to be followed in the performance of the Buyer’s corrective action, in other words, the remediation of oily dirt. Step one, set forth in Section 12.5(b)(i)(1), required “[a] comprehensive Phase II evaluation of the Area [to] be performed by Buyer to identify Oily Dirt to be excavated.” Step two, set forth in Section 12.5(b)(i)(2), required the Buyer to “excavate as much identified Oily Dirt as feasible for the evaluated Area.... Upon excavation, Oily Dirt [was] to be segregated into stockpiles according to the anticipated disposition of such Oily dirt. It [was] anticipated that stockpiles [would] include Oily Dirt ready for roadbeds or to be transported for bioremediation, Oily Dirt to be screened, Oily Dirt which [had] been screened and tailings therefrom and Oily Dirt... which [was] to be transported off-site for treatment or disposal....” Step three addressed the handling of the excavated and evaluated oily dirt in orders of priority. The orders of priority were: (1) the placement of oily dirt in roadbeds; (2) the blending of oily dirt to reduce contamination levels to the minimum legal requirement; (3) the transportation of oily dirt to another area for placement in roadbeds or for blending; (4) the bioremediation of oily dirt; and (5) the transportation of oily dirt for off-site treatment or disposal.

The Joint Closing Agreement Remediation Plan contained many parallels to article 12 of the 1995 Agreement, but with more detail. The first sentence of section III of that remediation plan stated: “Buyer and Seller will work together assessing both Hazardous Substances and Oily Dirt.” Section III then stated that a Phase I assessment would be performed, including a review of the Sellers’ records. It further stated that the Buyer and the Sellers together would submit both a Phase I assessment and a Phase II proposal to the lead environmental agency for approval.

As Makallon notes, section III.C of the Joint Closing Agreement Remediation Plan specified that one purpose of the Phase II investigation was “[t]o identify the locations and quantify the volumes and concentrations of Oily Dirt and Hazardous Substances in order to minimize the need for remedial excavation during grading.” Section III.C also stated that the Phase II investigation was to be performed by the Buyer’s consultants. Section V.A provided that the Buyer and the Sellers would work together to prepare a draft corrective action plan and submit it to the lead environmental agency for approval. It also stated that the draft corrective action plan would address the items required by article 12 of the 1995 Agreement, as well as general remediation methods and other matters.

The implementation of the approved corrective action plan was addressed in section VI of the Joint Closing Agreement Remediation Plan. Section VI.A.1 provided that the Buyer would “excavate as much identified Oily Dirt as feasible prior to mass grading.” Section VI.A.2 provided: “Upon excavation, Oily Dirt is to be segregated into stockpiles according to the anticipated disposition of such Oily Dirt....” Section VI.A.3 set forth the same general priorities as described in section 12.5(b)(i)(2) of the 1995 Agreement with regard to the placement of oily dirt in roadbeds, the blending of oily dirt to reduce contamination levels, the transportation of oily dirt to another area, the bioremediation of oily dirt, and the transportation of oily dirt for off-site treatment or disposal.

After describing those priorities for the use of excavated, stockpiled soil, section VI.A.4 of the Joint Closing Agreement Remediation Plan provided: “Confirmation samples to establish that applicable Minimum Legal Requirements will be met will be taken at each location where Oily Dirt is excavated, placed or blended at the time the excavation, placement or blending in that location is completed. Samples will be tested for the compounds detected during the Phase II investigation, ... or as otherwise required by the Lead Environmental Agency. The number of samples taken will be as provided in the Approved Corrective Action Plan, or as additionally required to establish that applicable Minimum Legal Requirements and Lead Environmental Agency requirements are met.”

Makallon argues that section VI.A.4 required that any oily dirt the Sellers trenched and excavated for testing purposes had to be tested for lead. We disagree. Read in context, the testing requirements of section VI.4.A apply to oily dirt that has been previously identified as such, and then excavated and stockpiled pursuant to section VI.A.1-2. The entire process described in section VI, the implementation of the approved corrective action plan, corresponds to the process described in section 12.5(b)(i)(2) of the 1995 Agreement. In other words, these are the activities that are performed after the oily dirt has been identified, as in step one of section 12.5(b)(i)(1) of the 1995 Agreement.

In 1999, Harding Lawson performed investigative work to locate oily dirt. Makallon has cited no portion of the record to show that Harding Lawson was also engaged in the corrective action required after oily dirt was located, or more particularly, that it excavated previously identified oily dirt, stockpiled it, or remediated it for reuse. In short, Makallon has not shown that section VI.A.4 of the Joint Closing Agreement Remediation Plan governed Harding Lawson’s 1999 soils investigation activities.

Finally, Makallon cites section VI.B.1 of the Joint Closing Agreement Remediation Plan, which provides: “Seller and Buyer will make reasonable efforts to find Hazardous Substances prior to grading.” Taken in context, and consistent with section III.C, this language expressed a timing component of the intended remediation efforts. That is to say, the Buyer and the Sellers desired to locate and excavate hazardous substances prior to grading, so as to try to avoid the need to disturb soils once graded. It did not express an intention to eviscerate the negotiated allocation of duties as expressed in article 12 of the 1995 Agreement, and shift the duty to locate pre-closing contamination from the Buyer to the Sellers.

(c) approval of 1996 Phase II Investigation Plan

Makallon also cites Hokkanen’s December 6, 2008 declaration, filed in support of Makallon’s opposition to MACTEC’s motion for summary judgment.¹⁸ Hokkanen opined that the Huntington Beach Fire Department’s August 23, 1996 letter to Henry, providing a conditional approval for the Phase II Investigation Plan, required Harding Lawson, in 1999, to test the most contaminated soil sample per acre, with total recoverable petroleum hydrocarbons exceeding 500 ppm, for lead.¹⁹ He also opined that the failure to do so breached industry standards. Hokkanen neither attached a copy of the August 23, 1996 letter to his declaration nor quoted from it. However, we have reviewed the copy of the letter as attached to Henry’s December 2008 declaration in opposition to BBL’s motion for summary judgment.

18 As noted previously, Makallon claims the court abused its discretion in sustaining certain of MACTEC’s objections to Hokkanen’s declaration. This is a matter we need not decide, for even were we to consider Hokkanen’s entire declaration, our conclusion would remain the same.

19 As further support for this requirement, Makallon cites page 7417 of the appellant’s appendix, which we observe is page A1-3 of attachment 1 to a document entitled “Process for Evaluating and Remediating Burn Dump Sites.” We further observe that the document is attached as exhibit 7 to the declaration of Attorney Dennis J. Cooley, who declared that he downloaded the document from the California Integrated Waste Management Board’s Web site. Makallon fails to either draw our attention to any particular language in the document that we should take into consideration or explain how the document is relevant to the matter before us. Consequently, Makallon has failed to demonstrate that this document imposed a burden on Harding Lawson to test all soil samples for lead in 1999.

The August 23, 1996 letter stated that Greaves had “completed the Phase II Investigation Plan review” and required certain revisions for plan approval. Item No. 3 read: “The most contaminated sample per acre, if it’s above 500 ppm TRPH/TPH, must be analyzed for CCR Metals, pH, VOC’s, and PNA’s....” All indications are that the letter was a conditional approval of the Phase II Investigation Plan that Harding Lawson later carried out, resulting in its December 18, 1996 “Phase II Investigation Report/Remediation Plan.”

Hokkanen did not explain why the requirements of the Huntington Beach Fire Department, with respect to the Phase II investigation carried out in 1996, should be applied to Harding Lawson’s oily dirt investigation in 1999. However, he did state that, in his opinion, the soils investigation Harding Lawson performed in 1999 constituted a Phase II investigation, inasmuch as Harding Lawson’s October 12, 1999 report on the matter stated that the purpose of the investigation was “[t]o develop future remediation requirements.” Hokkanen opined that a soils investigation performed to develop remediation requirements “is generally called a Phase II Investigation.”

However, the October 12, 1999 report made clear that in furtherance of the stated purpose “soil samples were analyzed for total recoverable petroleum hydrocarbons.” In addition, the report noted certain matters that needed to be “addressed prior to the development and submittal of a remediation plan for the oily soil present on the Site.” (Emphasis added.) In other words, the report shows that Harding Lawson searched for oily dirt, in furtherance of Chevron Land’s obligation to remediate the same, not that it performed a second Phase II investigation to identify all hazardous substances on the property.

In support of the assertion that Harding Lawson, in 1999, performed a Phase II investigation that required testing for lead, Makallon cites a portion of its opposition to MACTEC’s separate statement of undisputed material facts in which Harding Lawson’s activities were characterized as “excavation.” MACTEC’s undisputed material facts Nos. 40-43 read in pertinent part as follows: “40. In 1999, [Atlanta Huntington Beach, LLC] implemented a grading plan for the northern portion of the Atlanta Property by which approximately 200, 000 cubic yards of sand material was removed and exported to a nearby property.... [Chevron Land]... retained and directed [Harding Lawson] to determine, both visually and by testing of soil samples, the extent to which the material exposed after the excavation and exportation of the sand material contained oily dirt at a level which [Chevron Land] would be obligated to remediate.... [¶] 41. Also in 1999, ... [Chevron Land] authorized and directed [Harding Lawson] to excavate a series of trenches in the southeastern portion of the Atlanta Property where Oily Dirt had been found during [Harding Lawson’s] 1996 investigation and to test soil samples taken from the trenches for petroleum hydrocarbons for the purpose of delineating in advance of actual remediation the vertical and lateral extent of the Oily Dirt to be remediated in that area.... [¶]... [¶] 43. During the month of August, 1999, [Harding Lawson] oversaw the excavation of trenches and tested soil samples taken from those trenches pursuant to [Chevron Land’s authorization]. All of the soil samples were tested for petroleum hydrocarbons....” Makallon marked each of these material facts as “undisputed, ” although it also stated that material fact No. 40 was immaterial.

The foregoing underscores the fact that Harding Lawson was assigned the task of investigating oily dirt, to enable Chevron Land to fulfill its assumed obligation to remediate the same. Makallon, like Hokkanen, fails to explain why the August 23, 1996 conditional approval letter pertaining to the Phase II Investigation Plan prepared by Harding Lawson in 1996 would apply to Harding Lawson’s subsequent oily dirt investigation in 1999, no matter what descriptive label is placed on that investigation. Moreover, an after-the-fact characterization of Harding Lawson’s 1999 activities cannot serve to expand the contractual obligations the Buyer and the Sellers negotiated and documented at length. Makallon cites no portion of article 12 of the 1995 Agreement stating that upon assumption of the Buyer’s corrective action with respect to oily dirt, the Sellers are required to perform a second Phase II investigation to discover any remaining hazardous substances on the property.

Furthermore, after the Huntington Beach Fire Department approved Harding Lawson’s Phase II Investigation Plan, Harding Lawson completed the work described in that plan. It thereafter prepared its December 18, 1996 “Phase II Investigation Report/Remediation Plan.” As noted previously, the Huntington Beach Fire Department thereafter approved the remediation plan contained therein, subject to certain conditions. Makallon does not explain why subsequent work performed with respect to oily soils would be governed by the Phase II Investigation Plan, which was performed to completion in 1996, rather than the 1997 HBFD Approved Remediation Plan.

(d) Harding Lawson’s January 1997 proposed soil sampling plan

Makallon, in its opposition to MACTEC’s separate statement of undisputed material facts, stated as an additional material fact: “On January 9, 1997, [Harding Lawson] submitted a soil sampling plan for fill [soil] in which it would test half of the soil samples for Title 22 Metals.” In support of that statement, Makallon cited a January 9, 1997 letter from Harding Lawson to the Huntington Beach Fire Department. That letter was dated the day after the approval of the 1997 HBFD Approved Remediation Plan.

In its letter, Harding Lawson proposed a soil sampling plan with respect to screened soil for Atlanta Property Area 1 and Area 2. The letter explained that the 1996 Phase II investigation had revealed four areas that required soil removal and that a minimum of 2, 656 cubic yards of impacted soil would be removed from those areas. The letter also stated that Harding Lawson personnel would take samples from stockpiled soil to be used to backfill the excavation sites, and the samples would be tested for total recoverable petroleum hydrocarbons. In addition, the letter provided that half of the soil samples would be tested for additional matters including Title 22 metals.

The foregoing does not show all that Makallon claims. It shows that, in January 1997, Harding Lawson proposed that certain soils, to be used as backfill in specific locations, be tested in a particular manner. That included the testing of half of the soil samples in question for Title 22 metals. This is not the same as saying that the testing of any soils, anywhere on the property, that took place for any purpose ever after, would be required to include testing for Title 22 metals. Makallon has not shown that Harding Lawson, when hired by Chevron Land to perform testing for oily dirt in 1999, was testing soils to be used as backfill, as described in Harding Lawson’s January 1997 letter. Consequently, that letter is irrelevant in connection with the analysis of the testing for oily dirt that took place in 1999.

Makallon also cites, once again, the December 6, 2008 declaration of Hokkanen. Hokkanen opined that because Harding Lawson knew the Phase II investigation had disclosed lead on the property, industry standards required that it test almost all subsequent soil samples for lead. He also opined that Harding Lawson’s January 9, 1997 proposed soil sampling plan for fill material showed Harding Lawson “was concerned about metal (lead) contamination on the Atlanta Property, ” that Harding Lawson should have followed that proposed plan in 1999, and that the failure to do so violated industry standards. However, Hokkanen failed to cite any portion of the proposed plan to show that it was applicable to Harding Lawson’s oily dirt investigation in 1999. Furthermore, as we have already stated, a post facto expression of opinion as to industry standards cannot supplant the 40-pages of remediation provisions that the Buyer and the Sellers negotiated and documented as article 12 of the 1995 Agreement.

(e) Specification 431-92

In its appellant’s reply brief, Makallon says that even if the Chevron Defendants were not required to comply with the Joint Closing Agreement Remediation Plan, they still had to comply with the law. It states broadly that Specification 431-92 required soil samples to be tested for Title 22 metals, including lead. However, Makallon fails to quote any particular language of the seven-page specification in support of its point.

Although we are not required to search the record in support of authority for an appellant’s argument (Del Real v. City of Riverside, supra, 95 Cal.App.4th at p. 768), in this case we nonetheless reviewed the entire specification on our own. We did find one sentence to the effect that certain “[a]nalyses performed during site assessments of oil fields... should include... CAM Metals....”²⁰ (Italics added.) However, we did not find a definition of the term “site assessment” within the body of the specification. Consequently, it is unclear to us that the quoted sentence applies during an effort to determine the lateral and vertical extent of oily dirt, following a completed Phase II investigation of the nature performed by Harding Lawson in 1996. Moreover, even if the quoted sentence applied, it only says that analyses “should” include CAM metals, not that each analysis must include CAM metals in every event. “The word[]... ‘should’ [is] ordinarily permissive....” (Kucera v. Lizza (1997) 59 Cal.App.4th 1141, 1152.)

20 In his declaration in support of BBL’s motion for summary judgment, engineer Ulf M. Lindmark explained that “CAM” stands for “California Assessment Manual” and that “CAM is a methodology for testing the presence of hazardous substances, such as lead

In addition to failing to address the language of the specification itself, Makallon does not explain how the requirement contained in the quoted sentence fits into the chronology of events before us. Here, the Huntington Beach Fire Department approved a Phase II Investigation Plan that was based on the requirements of the specification and included testing for metals. Harding Lawson’s Phase II investigation was performed thereafter and the report of that investigation stated that Harding Lawson had tested for Title 22 metals. The 1997 HBFD Approved Remediation Plan followed. That plan spelled out what further sampling was to be done during remediation activities in order to satisfy the requirements of the specification. Thereafter, the Huntington Beach Fire Department approved Harding Lawson’s January 9, 1997 soil sampling plan for fill soil. The record reflects that additional plans were submitted to the Huntington Beach Fire Department thereafter. Makallon has not raised a triable issue of material fact to show that the Chevron Defendants failed to adhere to the provisions of any of the plans that were approved by the Huntington Beach Fire Department in order to ensure compliance with the specification.

(f) Chevron Defendants’ post-1999 activities

Undaunted, Makallon further contends that the post 1999 conduct of the Chevron Defendants shows that they knew they had to test for lead. In support of this contention, Makallon cites what it describes as the Chevron Defendants’ representations made to the City of Huntington Beach well after 1999. First, it cites the “Remediation Plan, Rev. 3, Atlanta Site” prepared by Harding ESE on May 22, 2002, on behalf of Chevron Land, in connection with certain conditional use and coastal development permits. The document was accepted by the City of Huntington Beach Public Works Department on September 11, 2002.

We observe that, in the introduction to that document, Harding ESE stated that the laboratory results flowed from a soils investigation it had performed. In section 3.1 of the document, Harding ESE expressed the remediation goals in terms of the target cleanup levels for total recoverable petroleum hydrocarbons. In section 3.3, it addressed the “remediation approach for oily soil.” Makallon cites page 18 of the document, wherein Harding ESE noted that the remediation activities would be geared to achieve compliance with Specification 431-92. Next, Makallon cites the entire seven-page specification, without pointing out any particular provision tying the May 22, 2002 oily soil remediation plan in to any particular requirements in the specification. These citations do not show that the Chevron Defendants breached article 12 of the 1995 Agreement because of Harding Lawson’s actions in 1999.

Similarly, Makallon cites the July 2002 “Revised Storm Water Pollution Prevention Plan” that Harding ESE prepared on behalf of Chevron Environmental Management Company. In section 1.2 of that plan, Harding ESE stated that Chevron was responsible for storm water management in connection with its remediation activities. Makallon cites section 5.2.5 of the plan, which provides: “Only nonhazardous materials are anticipated on this site. No hazardous materials, petroleum products, or waste materials will be stored onsite. Any hazardous waste encountered will be properly labeled, sampled, classified, and treated/disposed of in an approved facility in accordance with all local, state, and federal regulations.” This language concerning the handling of any hazardous waste Chevron might encounter in 2002 does not demonstrate that Harding Lawson erred in its soils investigation activities in 1999.

In its appellant’s reply brief, Makallon also offers citations to Harding ESE’s July 2002 Revised Storm Water Pollution Prevention Plan, Atlanta Site, a letter to area neighbors regarding activities on the property, and a July 20, 2000 letter from Chevron Environmental Management Company to Amy Wolfe. These citations are also unavailing.

Of greater interest are Makallon’s citations to BBL’s November 11, 2003 Work Plan Supplemental Soil Investigation, Atlanta Site, prepared for Chevron Environmental Management Company, and to BBL’s October 2004 Remedial Action Plan, Pacific City Property, prepared for Chevron Land. The work plan, as correctly noted in Makallon’s opposition to MACTEC’s separate statement of undisputed material facts, was designed to address data gaps. It included a plan to test certain soil samples for not only total recoverable petroleum hydrocarbons, but also CAM Metals.

In the remedial action plan, as well as October 25, 2004 correspondence with the Huntington Beach Fire Department, BBL reported having discovered lead on the property. In the remedial action plan BBL also stated: “It is the intent of this [remedial action plan] to mitigate crude-oil impacted soil to levels acceptable to HBFD and in compliance with CS 431-92.” However, another obvious intent of the remedial action plan was to obtain the Huntington Beach Fire Department’s approval of site closure. Under the topic heading “Documentation and Closure Reporting, ” the document stated: “As required by the HBFD, prior to submission of the final closure report, two copies of a final verification sampling plan with maps... will be submitted to the HBFD.... The HBFD will then review these maps and randomly select additional sampling points for further fill verification. It is understood that this additional sampling may include any or all of the following tests:... CAM Metals.”

In its appellant’s reply brief, Makallon asks: “If Chevron truly believed that Article 12 did not require it to test for lead in its 1999 Phase II investigation, why did it test for lead in 2004?” The Chevron Defendants had no opportunity to respond to this question, inasmuch as it was contained in the appellant’s reply brief. However, the Chevron Defendants mention that BBL’s November 11, 2003 Work Plan Supplemental Soil Investigation, Atlanta Site and certain other documents “represent plans required by the City and acknowledge or imply that Hazardous Substances should be remediated, but they do not say that Chevron would do it.” As noted above, BBL’s October 2004 remedial action plan indicated that it was made in furtherance of site closure. There is no reason to speculate that the testing requirements the Huntington Beach Fire Department imposed to close data gaps in advance of site closure were identical to the requirements it imposed in 1999. The documentation in existence at the time of Harding Lawson’s testing in 1999 indicates to the contrary. The 2003 supplemental work plan and the October 2004 remedial action plan are not documents contemporaneous to the 1999 testing and are insufficient to raise a triable issue of material fact with respect to testing requirements in place in 1999.

(4) Health and Safety Code Violation

Makallon contends the court erred in holding that article 12 of the 1995 Agreement and certain “as-is” clauses entitled the Chevron Defendants to summary judgment on the cause of action for violation of Health and Safety Code section 25359.7. We disagree.

Subdivision (a) of Health and Safety Code section 25359.7 provides: “Any owner of nonresidential real property who knows, or has reasonable cause to believe, that any release of hazardous substance has come to be located on or beneath that real property shall, prior to the sale... of the real property..., give written notice of that condition to the buyer.... Failure of the owner to provide written notice... to the buyer... shall subject the owner to actual damages and any other remedies provided by law. In addition, where the owner has actual knowledge of the presence of any release of a material amount of a hazardous substance and knowingly and willfully fails to provide written notice to the buyer, ... the owner is liable for a civil penalty not to exceed five thousand dollars ($5,000) for each separate violation.” To determine whether the Sellers complied with this statute, we take a look at certain disclosure provisions contained in the 1995 Agreement.

Section 12.11 of the 1995 Agreement provides as follows: “Prior Use. Buyer understands and acknowledges that (i) portions of the Real Property were previously used by former owners as oil production fields and/or oil storage tank farms; (ii) Buyer may at its cost be obligated, in connection with its intended use of the Real Property to provide for venting of abandoned oil wells, methane vapor venting of portions of the Real Property and/or placement of vapor barriers/membranes beneath the improvements Buyer intends to construct on the Real Property; (iii) oil and other hydrocarbon products of possible hazardous nature may be present on, in, under or about the Real Property; (iv) the Real Property may contain Hazardous Substances and buried pipe lines, oil production facilities and equipment; and (v) Sellers do not have the requisite information beyond the reports and information furnished to Buyer to determine the exact nature or condition of the Real Property nor the effect any such use has had on the physical condition of the Property.”

Section 12.13(a) of the 1995 Agreement further provides: “Limitation of Claims Generally. It is the parties’ intent that the foregoing provisions set forth Buyer’s and Sellers’ exclusive obligations to and remedies against each other with respect to liabilities associated with the environmental condition of the Designated Properties, and Buyer and Sellers specifically waive all other rights against each other related to such environmental conditions of such Designated Properties, including, without limitation, rights otherwise provided by Law or under any common law theory.”

The disclosures contained in the 1995 Agreement were not the only disclosures of record. The grant deeds to MS Vickers II, LLC, recorded on May 8, 1996, and the grant deed from Shea Vickers Development LLC to Atlanta Huntington Beach, LLC, recorded on April 6, 1998, also contained substantial disclosures.²¹

21 The grant deeds to MS Vickers II, LLC contained the following disclosure: “Grantee acknowledges that the real property has been used by former owners for oil field production operations and/or as an oil storage tank farm for the storage of crude oils and petroleum products; that residual contamination is commonly found on properties that have been in such use; and that these residual substances include chemicals known to the State of California to cause cancer, birth defects, or other reproductive harm.” The grant deed from Shea Vickers Development LLC to Atlanta Huntington Beach, LLC contained lengthy disclaimers concerning environmental issues and property condition. The disclaimer language provided in part: “GRANTEE REPRESENTS THAT IT IS A KNOWLEDGEABLE PURCHASER OF REAL ESTATE AND THAT IT IS RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF GRANTEE’S CONSULTANTS IN PURCHASING THE PROPERTY AND THAT GRANTEE HAS CONDUCTED SUCH INSPECTIONS AND INVESIGATIONS OF THE PROPERTY AS GRANTEE DEEMED NECESSARY, INCLUDING, BUT NOT LIMTED TO, THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF, AND IS RELYING UPON SAME. BY ITS ACCEPTANCE OF THIS GRANT DEED GRANTEE ASSUMES THE RISK THAT ADVERSE MATTERS, INCLUDING, BUT NOT LIMITED TO, ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN REVEALED BY GRANTEE’S INSPECTIONS AND INVESTIGATIONS. BY ITS ACCEPTANCE OF THIS GRANT DEED GRANTEE ACKNOWLEDGES THAT GRANTOR IS CONVEYING TO GRANTEE AND GRANTEE IS ACCEPTING THE PROPERTY ‘AS IS, WHERE IS, ’ WITH ALL FAULTS. BY ITS ACCEPTANCE OF THIS GRANT DEED GRANTEE FURTHER ACKNOWLEDGES AND AGREES THAT THERE ARE NO ORAL AGREEMENTS, WARRANTIES, OR REPRESENTATIONS, COLLATERAL TO OR AFFECTING THE PROPERTY BY GRANTOR, ANY AGENT OF GRANTOR OR ANY THIRD PARTY.”

Makallon argues that the disclosures contained in the grant deeds to MS Vickers II, LLC do not satisfy the requirements of the statute, because the disclosures were made contemporaneously with the sale, not prior to it. It also argues that a disclosure of oil field activities is not tantamount to a disclosure of lead on the property, and that the Chevron Defendants were obligated to specifically disclose the likelihood of lead contamination in a dump site on the property. Finally, Makallon maintains that the exculpatory clauses contained in the 1995 Agreement and the deeds could not excuse a violation of the statute, because one cannot contract away liability for violations of statutory law.

While the various deeds were in fact recorded either contemporaneously with the consummation of the sale or afterward, disclosures were also contained in the 1995 Agreement itself, which the parties signed well before the consummation of the sale. A closer examination of section 12.11 of the 1995 Agreement shows that adequate disclosure was made. Section 12.11 provides in pertinent part: “Buyer understands and acknowledges that... (iv) the Real Property may contain Hazardous Substances....” Section 12.1(h) of the 1995 Agreement contains a very lengthy definition of the term “Hazardous Substances.” The last sentence of that definition reads: “Notwithstanding the foregoing, Hazardous Substances shall not include Oily Dirt.” The 1995 Agreement clearly disclosed that the property might contain hazardous substances other than oily dirt. Makallon has not raised an issue of triable material fact to show that the requirements of the statute were not met.

(5) Nuisance and Trespass

Makallon’s causes of action for continuing nuisance and continuing trespass were based on the allegation that the Chevron Defendants had left lead and substandard oil wells on the property. On appeal, Makallon argues the court erred in holding that article 12 of the 1995 Agreement and certain “as-is” clauses entitled the Chevron Defendants to summary judgment on those two causes of action.

The 1995 Agreement contained numerous “as-is, ” disclosure and limitation of liability clauses. Of particular importance is section 12.13 (quoted in section V.B(4) of this opinion), which made clear that the parties had negotiated out the environmental remediation obligations, that their remedies consisted of the enforcement of those contractual obligations, and that they had waived any other remedies otherwise available under the law in connection with environmental matters. In addition, sections 6.13 and 7.3²² emphasized that the sale was made “as-is” and that the Buyer had the opportunity to perform environmental investigations before the consummation of the sale. Furthermore, section 8.2²³ gave the Buyer the opportunity to notify the Sellers of any environmental conditions discovered during the investigation and to either negotiate an amendment to the agreement or terminate the agreement altogether on account of such discovery.

22 Section 6.13 provided: “DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE PROPERTY IS SOLD BY SELLERS ‘AS-IS’ AND ‘WITH ALL FAULTS, ’ AND SELLERS MAKE NO WARRANTY, EXPRESS OR IMPLIED IN FACT OR BY LAW, WHETHER OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, CONDITION OR OTHERWISE, CONCERNING THE PROPERTY.”

23 Section 8.2 provided: “Property Approval Periods. [¶] (a) Buyer may, at Buyer’s expense investigate: (i) the environmental, geotechnical and structural condition of the Real Property.... [¶] (b) If Buyer’s investigation above described reveals any fact... which materially reduces the economic value of the Property, or which may subject the owner of the Property to material risk of liability or expense, or which may materially increase the cost of development of the Property, then Buyer shall have the right to bring the results of its investigation to the attention of Sellers by written notice within the time periods above described.... For any Material Discovery, the parties agree to discuss appropriate remedial actions or adjustments to this Agreement to take into account the Material Discovery. If the parties cannot agree on an appropriate amendment to this Agreement..., then Buyer shall have the right to terminate this Agreement....”

In their motion for summary judgment, the Chevron Defendants cited Shapiro v. Hu (1986) 188 Cal.App.3d 324 and Galen v. Mobil Oil Corp. (C.D.Cal. 1996) 922 F.Supp. 318, as they do again on appeal. The court in Shapiro v. Hu, supra, 188 Cal.App.3d 324 stated: “[A]ny sale of property ‘as is’ is a sale of the property in its ‘present or existing condition’; the use of the phrase ‘as is’ relieves a seller of real property from liability for defects in that condition.” (Id. at p. 333.) The Chevron Defendants contend that because this was an “as-is” sale, they have no liability for any continuing environmental issues associated with the property. Their only liability was to fulfill their obligations under the 1995 Agreement, which they contend they have done.

Furthermore, the Chevron Defendants say Galen v. Mobil Oil Corp., supra, 922 F.Supp. 318 is “virtually identical” to the case before us. In Galen, Mobil sold property on which there was a concealed “sump full of oil field waste, tree trunks, construction waste, and trash.” (Id. at pp. 320-321.) The sale was made “‘as is’ and ‘with all faults, ’” for $3 million. (Ibid.) The estate of the purchaser sued Mobil on numerous grounds, including nuisance and trespass. The district court granted Mobil’s summary judgment motion. (Id. at p. 319.)

The district court in Galen v. Mobil Oil Corp., supra, 922 F.Supp. 318 quoted the above-referenced language from Shapiro v. Hu, supra, 188 Cal.App.3d 324 in reaching its decision. (Galen v. Mobil Oil Corp., supra, 922 F.Supp. at p. 324.) It further stated: “The Shapiro court reasoned that ‘an “as is” provision in any sale puts potential buyers on notice that the seller makes no warranties about the quality or condition of the thing sold.’ [Citation.] It is a ‘red flag’ that warns ‘the buyer that the goods or property to be sold may not be in perfect condition or of ideal quality.’ [Citation.]” (Galen v. Mobil Oil Corp., supra, 922 F.Supp. at p. 324.) The district court concluded: “The Estate’s nuisance and trespass claims seek damages for the sump, which was a defect in the condition of the tract at the time of the sale. The ‘as is’ language relieves Mobil of liability for this defect of condition and therefore precludes recovery on the nuisance and trespass claims.” (Ibid.)

We agree with the Chevron Defendants that Galen v. Mobil Oil Corp., supra, 922 F.Supp. 318 and Shapiro v. Hu, supra, 188 Cal.App.3d 324 are properly applied to this case. The 1995 Agreement contained several “as is” clauses and extensive remediation provisions. These two cases show that Makallon was not entitled to press continuing nuisance and continuing trespass claims in addition to pursuing its contractual claims.

Makallon disagrees. It contends that Galen v. Mobil Oil Corp., supra, 922 F.Supp. 318 and Shapiro v. Hu, supra, 188 Cal.App.3d 324 are each distinguishable because in neither of those cases did the sales contracts contain extensive post-closing obligations such as those contained in article 12 of the 1995 Agreement. That’s exactly right. In the case before us, the Buyer got more than did the buyers in either Galen v. Mobil Oil Corp., supra, 922 F.Supp. 318 or Shapiro v. Hu, supra, 188 Cal.App.3d 324. Here, the Buyer had the benefit of the article 12 remediation provisions and the right to enforce those provisions. However, it did not have, in addition, the right to recover for continuing nuisance and continuing trespass.

Makallon also contends that Galen v. Mobil Oil Corp., supra, 922 F.Supp. 318 is poorly reasoned legal authority that this court should not follow, because the district court in Galen cited no legal authority for the proposition that an “as is” clause precludes claims for nuisance and trespass. What the Galen court did was apply Shapiro v. Hu, supra, 188 Cal.App.3d 324 to the facts before it. (Galen v. Mobil Oil Corp., supra, 922 F.Supp. at p. 324.) While Shapiro involved claims for breach of contract, rescission, fraud and misrepresentation, the point of the matter was that the sales contract contained an “as is” clause. (Shapiro v. Hu, supra, 188 Cal.App.3d at p. 326.) The Galen court did not overstretch the law by applying the principles enunciated in Shapiro to nuisance and trespass claims.

Makallon endeavors to shift this court’s attention away from the principles governing “as is” sales to another set of principles, set forth in Civil Code section 1668. Civil Code section 1668 provides: “All contracts which have for their object, directly or indirectly, to exempt any one from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.” “While courts have often observed that the application of section 1668 is not as broad as its language suggests, they have nonetheless held that under the statute, ‘a party [cannot] contract away liability for his fraudulent or intentional acts....’ [Citation.]” (Health Net of California, Inc. v. Department of Health Services (2003) 113 Cal.App.4th 224, 227.)

Here, Makallon claims that is exactly what the Chevron Defendants have tried to do-to contract away liability for the intentional torts of continuing nuisance and continuing trespass. However, as the court in YMCA of Metropolitan Los Angeles v. Superior Court (1997) 55 Cal.App.4th 22, a case addressing Civil Code section 1668, stated: “‘[N]o public policy opposes private, voluntary transactions in which one party, for a consideration, agrees to shoulder a risk which the law would otherwise have placed upon the other party....’ [Citation.]” (Id. at p. 27.) Here, the parties negotiated a lengthy agreement to address environmental issues. That included giving the Buyer an opportunity to investigate the property before consummating the sale and to address any environmental defects with the Sellers. The Buyer even had the opportunity to seek an amendment to the 1995 Agreement or to terminate it altogether if, after investigation, it determined that the environmental condition of the property did not suit its purposes. If it chose to proceed with the purchase, then it agreed to limit its remedies to those set forth in many pages of remediation provisions. If the Buyer believed the Sellers did not perform their post-closing obligations in accordance with article 12 of the 1995 Agreement, then the Buyer’s remedy was to seek enforcement of those obligations. Civil Code section 1668 did not preclude the parties from negotiating the extensive contractual provisions at issue here.

(6) Evidentiary Rulings

Makallon concludes its arguments by adding that the court erred in a plethora of evidentiary rulings. Makallon’s assertions of error with respect to the various evidentiary rulings are unavailing, for reasons we shall show.

First, Makallon, on page 50 of its opening brief, states: “Chevron’s objections violated California Rule [of] Court 3.1354(b), because it failed to number its objections. The general objections to the declarations of Ethen Thacher, George S. Burns, Timothy Hamilton, Michael Gagnet and John C. Ashby violated CRC 3.1354(b), because those general objections failed to state the specific evidence objected to. Therefore, the lower court abused its discretion in sustaining the general objections.” Makallon fails to cite any portion of the 10, 000-page record in support of this argument. Consequently, the argument is waived. (Del Real v. City of Riverside, supra, 95 Cal.App.4th at p. 768.)

Next, Makallon says the court abused its discretion in sustaining the Chevron Defendants’ authenticity objection to the paragraph of a declaration of Henry wherein he stated he had received a copy of the February 5, 1998 letter. Makallon complains that the evidence was critical to its position with regard to the promissory estoppel cause of action. We need not address whether the court erred in its ruling, for even taking the February 5, 1998 letter into consideration, we do not reach a determination favorable to Makallon on that cause of action.

In addition, Makallon claims the court erred in sustaining certain objections to portions of the declarations of Ashby and Burns which made reference to the deposition testimony of Schaun M. Smith. Makallon says Smith worked for BBL and “was critical of Chevron’s/MACTEC’s 1999 Phase II Investigation and believed that MACTEC should have tested soil samples for lead.” Makallon claims the rulings on the objections to the Ashby and Burns declarations prejudiced it because the trial court refused to consider Smith’s testimony. Whether the court erred in its rulings is a matter we need not decide. Even were we to consider Smith’s deposition testimony, it would not change our determination of the issues herein.

Similarly, Makallon asserts that the court abused its discretion in sustaining objections to a portion of the Burns declaration wherein he referenced a “copy of the Report of Soil Investigation Proposed Huntington Shores Motel prepared by LeRoy Crandell & Associates, dated May 15, 1959... on the grounds that Burns lacked personal knowledge to authenticate the report and that the contents of the document was hearsay.” Makallon claims that it was prejudiced by the exclusion of the 1959 report because it showed that the Chevron Defendants “knew about the dump in 1959.” Again, we need not address whether the court erred in its ruling, inasmuch as consideration of the 1959 report would not change any of the determinations in this opinion.

Makallon further contends the court erred in sustaining objections to a portion of the Burns declaration wherein he referenced the deposition testimony of Douglas Ely, who authenticated the “Chevron Land and Development Company’s Environmental Assessment and Remediation Protocols” dated November 1, 1995. Makallon states that these remediation protocols were the ones mentioned in article 12 of the 1995 Agreement. We observe that section 12.1(t) of the 1995 Agreement provides: “‘Remediation Protocol’ means Chevron Land and Development Company’s Environmental Assessment and Remediation Protocols dated November 1, 1995 (Final) a copy of which has been provided to Buyer.” We need not address whether the court erred in its ruling on these matters, since consideration of the remediation protocols would not change any of our determinations in this case.

Finally, Makallon challenges the court’s rulings with respect to objections to the Thacher and Hamilton declarations. As we have already stated, consideration of those declarations would not change our conclusions as expressed in this opinion.

VI

DISPOSITION

The judgments are affirmed. The respondents are entitled to recover their costs on appeal.

WE CONCUR: FYBEL, J., IKOLA, J.

....”

Section 7.3 stated in pertinent part: “Acceptance of Property. Subject to... the provisions of Section 8.2 and Article 12: (1) Buyer accepts the Property ‘AS IS’ and ‘WITH ALL FAULTS;’ (2) Buyer acknowledges that it (a) has the right to make such inspection of the Property... as it deems appropriate;... and (e) has the right to make such investigations of the... condition, status under environmental laws and any other aspects of the Property... as may be necessary or appropriate, and (3) Buyer assumes the risk that adverse physical and environmental conditions may not have been revealed by its own investigation....”