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EAST BAY MUN. UTILITY DIST. V. 357 <br />RICHMOND REDEVELOPMENT AGENCY <br />93 Cal.App.3d 346: — Cal.Rptr. —. <br />(1962) 204 Cal.App.2d 747, 752 [22 Cal.Rptr. 540]; Rest., Contracts. <br />§§ 133, subds. (1), (2), 135, 136; 4 Corbin on Contracts (1951) § 774). <br />Since EBMUD here was clearly not a donee beneficiary, it can recover <br />under the grant contract only if it qualifies as a creditor beneficiary. <br />(5) Under well settled law, a person cannot be a creditor beneficiary <br />unless the promisor's performance of the contract will discharge some <br />form of legal duty owed to the beneficiary by the promisee (Martinez v. <br />Socoma Companies, Inc. (1974) 11 Cal.3d 394, 400 [113 Cal.Rptr. 585, 521 <br />P.2d 8411; Hartman Ranch Co. v. Associated Oil Co. (1937) 10 Cal.2d 232, <br />244 [73 P.2d 1163]; Rest., Contracts, § 133, subd. (1)(b)). <br />To apply the above definition to the instant case, it means that <br />EBMUD would be entitled to recover under the Grant Contract only if <br />the federal government (the promisee to said contract) bore a legal duty <br />toward EBMUD to pay compensation for the relocation of its water <br />facilities. Respondent utterly failed to demonstrate that such duty existed <br />on the part of the federal government. Quite to the contrary, section 707 <br />of the terms and conditions, forming part Il4 of the Grant Contract, <br />explicitly bars the claim of any third party against the government by <br />providing that "Nothing contained in this Contract shall create or justify <br />any claim against the Government by any third person with whom the Local <br />Public Agency may have contracted or may contract relative to any land or <br />any Local Grant -in -Aid or for the purchase of materials, supplies, or <br />equipment or the furnishing or performance of any work or services with <br />respect to the Project or any other projects." (Italics added.) <br />That portion of the judgment appealed from is reversed. <br />Rouse. J., and Miller, J., concurred. <br />4We take judicial notice of part 11 of the Grant Contract, pursuant to Evidence Code, <br />sections 452 and 459. <br />[May 19791 <br />