NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HONG JACQUELINE NGUYEN 

GARDNER, Trustee of Avalon Nguyen 

Gardner Trust UTA Dated 8/17/2010 

Plaintiff-Appellant, 

 v. 

CHEVRON CAPITAL CORPORATION, 

DBA Chevron Texaco Capital Corporation 

Defendant-Appellee.

No. 16-16911 

D.C. No. 

3:15-cv-01514-JD

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

James Donato, District Judge, Presiding

Argued and Submitted March 15, 2018 

San Francisco, California

Before: WATFORD and FRIEDLAND, Circuit Judges, and RAKOFF,** Senior 

District Judge.

Plaintiff Hong Jacqueline Nguyen Gardner appeals the district court’s 

dismissal, with prejudice, of her claims under the Comprehensive Environmental 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Jed S. Rakoff, Senior United States District Judge for 

the Southern District of New York, sitting by designation.

FILED

MAR 21 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
 2 

Response, Compensation and Liability Act (“CERCLA”). CERCLA allows private 

parties to recover the costs of cleaning up contamination caused by polluters. See 

generally 42 U.S.C. § 9607(a). Gardner claims that her property was contaminated 

by a gas station that defendant allegedly operated there until 1973. Specifically, 

Gardner alleges that the gas station left both “unadulterated petroleum fractions 

and those which have been contaminated during use” in her soil. Gardner attached 

to her complaint a “Site Investigation Report and Closure Request” (“Site Report”) 

that Chevron submitted to the Alameda County Environmental Health Department 

in 2014 and incorporates its findings in her complaint.

To survive a motion to dismiss, a plaintiff bringing suit under CERCLA

must plausibly allege, inter alia, that the relevant contaminant is a “hazardous 

substance” as defined in § 9601(14). That section of CERCLA contains a so-called 

“petroleum exception,” under which “petroleum, including crude oil or any 

fraction thereof which is not otherwise specifically listed or designated as a 

hazardous substance” is not a hazardous substance for which plaintiffs can recover. 

Id. “If a specifically listed hazardous substance is indigenous to petroleum and is 

present as a result of the release of petroleum, such substance will fall within the 

petroleum exclusion unless it is present at a concentration level that exceeds the 

concentration level that naturally occurs in the petroleum product.” Cose v. Getty 

Oil Co., 4 F.3d 700, 704 (9th Cir. 1993). Such indigenous petroleum substances
 3 

include xylene. See Wilshire Westwood Assocs. v. Atl. Richfield Corp., 881 F.2d 

801, 803, 810 (9th Cir. 1989).

We review de novo the district court's dismissal for failure to state a claim.

Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010). We accept as 

true all plausible allegations of material fact and construe them in the light most 

favorable to the plaintiff. “We are not, however, required to accept as true 

allegations that contradict exhibits attached to the Complaint or matters properly 

subject to judicial notice, or allegations that are merely conclusory, unwarranted 

deductions of fact, or unreasonable inferences.” Id.

The district court determined, and our de novo review confirms, that Gardner 

has not stated a claim because she has plausibly alleged pollution of her soil only 

by substances that fall within the petroleum exception. Gardner argues on appeal 

that the district court erred by holding that xylene from sources other than 

petroleum, contaminated petroleum, and contaminated recycled oil and hydraulic 

fluid fall under the petroleum exception.1 But the district court did not so hold; it 

instead correctly found that Gardner’s conclusory allegations as to the presence of 

these pollutants were not plausible. Gardner stated that “[t]he xylene is a non-

 

1 We have not yet addressed whether substances that would otherwise fall under 

the petroleum exception no longer do if they are contaminated. See Wilshire 

Westwood Assocs., 881 F.2d at 805 n.5. We need not reach that question here.
 4 

petroleum source,” but the xylene identified in the Site Report was found in the 

context of petroleum pollution from the gas station, and she offers no other 

allegations about how defendant caused the xylene to be in the soil. Likewise, 

Gardner asserted that she found “hydraulic fluids [and] recycled oil products” that 

were “contaminated during use,” but she offers no details about what contaminants 

were in those substances, nor how they came to be contaminated. Nor does 

Gardner offer any details to support her claim that the petroleum found on her 

property was itself contaminated. The lack of detail renders her claim implausible, 

particularly in light of the fact that none of the studies that she attaches to her 

complaint and on which she relies found such contaminants. See Bell Atl. Corp. v. 

Twombly, 550 U.S. 554, 570 (2007) (explaining that a complaint must contain 

“enough facts to state a claim to relief that is plausible on its face”). Dismissal of 

Gardner’s CERCLA claims was therefore appropriate.

Gardner also appeals the district court’s decision to dismiss her CERCLA 

claims with prejudice. Although leave to amend should be freely given, Fed. R. 

Civ. P. 15(a), “repeated failure to cure deficiencies by amendments previously 

allowed” justifies dismissal with prejudice, Foman v. Davis, 371 U.S. 178, 182

(1962); see also Sisseton–Wahpeton Sioux Tribe v. United States, 90 F.3d 351, 355 

(9th Cir. 1996) (“The district court’s discretion to deny leave to amend is 

particularly broad where plaintiff has previously amended the complaint.” (quoting 
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Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990))). This was 

Gardner’s third attempt to state a claim, and she twice received specific instruction 

from the district court regarding the deficiencies in her pleadings. Yet she is no 

closer now to curing those deficiencies than she was on her first attempt. 

Moreover, Gardner’s counsel made clear at oral argument that plaintiff has no

good faith basis to make any new allegations that could cure these deficiencies. 

The district court therefore did not abuse its discretion by denying leave to amend.

AFFIRMED.