FILED

NOT FOR PUBLICATION

MAY 16 2019

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RLI INSURANCE COMPANY, No. 18-15668

Plaintiff-counter- D.C. No. defendant-Appellee, 1:17-cv-01205-LJO-EPG

v.

MEMORANDUM*

CITY OF VISALIA,

Defendant-counter-claimant- Appellant,

ZURICH AMERICAN INSURANCE

COMPANY; THE RIVERSTONE

GROUP,

Counter-defendants- Appellees.

Appeal from the United States District Court for the Eastern District of California Lawrence J. O’Neill, Chief Judge, Presiding

Submitted May 14, 2019** San Francisco, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Before: WALLACE and IKUTA, Circuit Judges, and MOLLOY,*** District Judge.

The City of Visalia appeals from the district court’s judgment on the

pleadings for RLI Insurance Company. We have jurisdiction under 28 U.S.C.

§ 1291.

Subsection (f)(2) of the excess insurance policy between RLI and Visalia

excludes coverage “for the cost of removing, nullifying or cleaning up substances

described in [(f)](1) above.” The substances described in subsection (f)(1) are

“smoke, vapors, soot, acids, alkalis, toxic chemicals, solids, liquids or gases, waste

materials, or other irritants, contaminants or pollutants.” Unlike subsection (f)(1),

subsection (f)(2) does not include an exception to its exclusion for a “discharge,

dispersal, release or escape” of such substances that “is sudden and accidental.”

Because the complaint in the underlying action sought recovery only for the costs

of removing, nullifying, or cleaning up contaminants or pollutants, RLI has no duty

to defend or indemnify Visalia in that action. See L.A. Lakers, Inc. v. Fed. Ins. Co.,

869 F.3d 795, 805–06 (9th Cir. 2017).1

AFFIRMED.

*** The Honorable Donald W. Molloy, United States District Judge for the District of Montana, sitting by designation. 1 The district court did not err in rejecting Visalia’s request for judicial notice as irrelevant. 2