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1 GARRY L. MONTANARI, State Bar No. 89790
WESLEY S. WENIG, State Bar No. 162351
2 JOHN H. MOON, State Bar No. 253 811 4/08/2022
MICHAELIS, MONTANARI & JOHNSON, P.C.
3 4333 Park Terrace Dr. #100
Westlake Village, CA 91361
4 Telephone No.: (818) 865-0444
5 Attorneys for Defendants, STEPHEN MAGEE
and SAC AERO FL YING CLUB, INC.
6
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SAN MA TEO
10
11
BRYAN TRUJILLO and CINDY ) Case No.: 18CIVOl901
12
TRUJILLO, ) Honorable Nancy Fineman; Dept. 4
) DEFENDANTS' OBJECTIONS TO
13
Plaintiffs, ) PLAINTIFFS' REPLY TO
) DEFENDANTS' OPPOSITION TO
14 vs. ) PLAINTIFFS' DEMURRER TO
) DEFENDANTS' SECOND AMENDED
15 ) ANSWER
STEPHEN MAGEE, SAC AERO FL YING ) Date: April 12, 2022
16
CLUB, INC. and DOES 1 - 50, ) Time: 2:00 p.m.
) Dept.: 4
17 Defendants. ) Complaint filed: April 17, 2018
) Trial Date: TBD
18
19 Defendants STEPHEN MAGEE and SAC AERO FLYING CLUB, INC. (collectively,
2o "defendants") hereby object to plaintiffs BRYAN and CINDY TRUJILLO' s (collectively,
21 "plaintiffs") reply to defendants' opposition to plaintiffs' demurrer to defendants' second amended
22 answer on the following grounds.
23 I. EXTRINSIC EVIDENCE IS DISREGARDED
24 A demurrer challenges only defects on face of the pleading or on matters that are judicially
25 noticeable. (Code Civ. Proc.,§ 430.30(a).) Extrinsic evidence-like plaintiffs' counsel declaration
26 and attached exhibits - cannot be considered. (Weil & Brown et al., CAL. PRAC. GUIDE: CIV.
27 PRO. BEFORE TRIAL (The Rutter Group 2021), p. 7(1)-6, 'if 7:8; see also, People ex rel. Dept. of
28 Parks & Recreation v. West-A-Rama, Inc. (1973) 35 Cal.App.3d 786, 795 (error to receive extrinsic
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DEFENDANTS' OBJECTION TO PLAINTIFFS' REPLY TO DEFENDANTS' OPPOSITION TO PLAINTIFl'S'
)EMURRER TO DEFENDANTS' SECOND AMENDED ANSWER
1 evidence in sustaining a demurrer).) The extrinsic evidence' is also irrelevant, conceded by plaintiffs
2 as pertaining to a "separate matter." (Cal. Evid. Code§ 210.)
3 II. NEW ARGUMENTS ARE NOT PERMITTED IN REPLY
4 "[P]oints raised in a reply brieffor the first time will not be considered unless good cause is
5 shown for the failure to present them before." (Balboa Ins. Co. Vv. Aguirre (1983) 149 Cal.App.3d
6 1002, 1010.) Plaintiffs' "delay" argument is new since it was not raised in the demurrer. (See,
7 plaintiffs' Demurrer, pp. 7-8.) This violates defendants' due process rights and plaintiffs have not
8 established any good cause allowing it. The procedural history reveals plaintiffs' "delay" argument
9 is untenable - plaintiffs did not file any opposition whatsoever to defendants' motion for leave to
10 amend, served in 2021. By virtue of being served, plaintiffs were well aware defendants were
11 asse1iing the equitable estoppel defense in 2021 and only now raise a purported "delay" argument
12 for the first time in the reply. Denying leave to amend is also an abuse of discretion where there is
13 a reasonable possibility a defendant can state an affirmative defense. (Bounds v. Superior Court
14 (2014) 229 Cal.App.4th 468, 484.)
15 III. PLAINTIFFS' REPLY VIOLATES THE PAGE LIMITATION RULE
16 No reply brief may exceed ten (10) pages. (Cal. Rules of Crt., Rule 3. l 113(d).) Here,
l 7 plaintiffs' reply is twelve (12) pages and is considered a late-filed paper. (Cal. Rules ofCrt., Rule
18 3. l 1l3(g).) The Cami has the authority to disregard it in its entirety. (Cal. Rules of Crt., Rule
19 3.1113(g).)
20
21 DATED: April 8, 2022 MICHAELIS, MONT AN ARI & JOHNSON
Ry,(~~tr}
22
23
24 Attorneys for Defendants,
STEPHEN MAGEE and SAC AERO
25 FL YING CLUB, INC.
N:\17517\pld\pRopp.pltf,detnurrer.obj.wpd
26
27
1
Plaintiffs claim a briefing schedule was ordered at the January 31, 2022 hearing. The
28 transcript establishes this, mnong many other things plaintiffs were contending, was incorrect.
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DEFENDANTS' OBJECTION TO PLAINTIFFS' REPLY TO DEFENDANTS' OPPOSITION TO PLAINTIFFS'
EMURRER TO DEFENDANTS' SECOND AMENDED ANSWER
1 PROOF OF SERVICE
2 STATE OF CALIFORNIA )
) S.S.
3 COUNTY OF LOS ANGELES )
4 I am employed in the County of Los Angeles, State of California. I am over the age of 18
and not a party to the within action; my business address is 4333 Park Terrace Dr. # 100, Westlake
5 Village, California 91361 .
6 On April 8, 2022, I served the forego ing document described as DEFENDANTS'
OBJECTIONS TO PLAINTIFFS' REPLY TO DEFENDANTS' OPPOSITION TO
7 PLAINTIFFS' DEMURRER TO DEFENDANTS' SECOND AMENDED ANSWER on the
interested parties in this action by placing a true copy thereof in a sealed envelope with postage
8 thereon fully prepaid in the United States mail at Westlake Village, Cal ifornia, addressed as fo ll ows :
9 Michael S. Danko, Esq. Attorneys for Plaintiffs
Michael Smith, Esq.
10 Danko Meredith
333 Twin Dolphin Dr. # 145
11 Redwood Shores, CA 94065
tel: (65 0) 453-3600; fax: (650) 394-8672
12 Email: mdanko@dankolaw.com; rnsmith@dankolaw.com
13 [X] (MAIL) I deposited such envelope addressed in the mail at Westlake Village, Cal iforni a.
The envelope was mailed with postage thereon fully prepaid. I am " readily familiar" with firm ' s
14 practice of collection and processing correspondence for mailing. It is deposited with U.S . postal
service on that same day in the ordinary course of business . I am aware that on motion of party
15 served, service is presumed invalid if postal cancellation date or postage meter date is more than 1
day after date of deposit for mailing in affidavit.
16
17 [X] (ELECTRONIC TRANSFER) I caused all of the pages of the above-entitled document to
be sent to the recipient noted above via electronic transfer (email) at the respective email addresses
18 indicated above because of the COVID-1 9 virus.
19 [] (FEDERAL EXPRESS) I deposited such envelope addressed at the Federal Express office
located at Westlake Village, Californ ia. The envelope was mailed fully prepaid. I am "readily
20 familiar" with firm 's practice of collection and processing correspondence for mailing with Federal
Express. It is deposited with the Westlake Village Federal Express service on that same day in the
21 ordinary course of business. I am aware that on motion of party served, service is presumed invalid
if cancellation date is more than 1 day after date of deposit for overnight mailing in affidavit.
22
23 I declare under penalty of pe1jury under the laws of the State of California that the foregoing
is true and correct.
24
25 Executed on April 8, 2022 at Westlake Village, California.
26 //k ,rka dk~
- Barbara Haussnhl111>Ccis
27 California Certified Legal Secretary
28
Preview
1 GARRY L. MONTANARI, State Bar No. 89790 WESLEY S. WENIG, State Bar No. 162351 2 JOHN H. MOON, State Bar No. 253 811 4/08/2022 MICHAELIS, MONTANARI & JOHNSON, P.C. 3 4333 Park Terrace Dr. #100 Westlake Village, CA 91361 4 Telephone No.: (818) 865-0444 5 Attorneys for Defendants, STEPHEN MAGEE and SAC AERO FL YING CLUB, INC. 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SAN MA TEO 10 11 BRYAN TRUJILLO and CINDY ) Case No.: 18CIVOl901 12 TRUJILLO, ) Honorable Nancy Fineman; Dept. 4 ) DEFENDANTS' OBJECTIONS TO 13 Plaintiffs, ) PLAINTIFFS' REPLY TO ) DEFENDANTS' OPPOSITION TO 14 vs. ) PLAINTIFFS' DEMURRER TO ) DEFENDANTS' SECOND AMENDED 15 ) ANSWER STEPHEN MAGEE, SAC AERO FL YING ) Date: April 12, 2022 16 CLUB, INC. and DOES 1 - 50, ) Time: 2:00 p.m. ) Dept.: 4 17 Defendants. ) Complaint filed: April 17, 2018 ) Trial Date: TBD 18 19 Defendants STEPHEN MAGEE and SAC AERO FLYING CLUB, INC. (collectively, 2o "defendants") hereby object to plaintiffs BRYAN and CINDY TRUJILLO' s (collectively, 21 "plaintiffs") reply to defendants' opposition to plaintiffs' demurrer to defendants' second amended 22 answer on the following grounds. 23 I. EXTRINSIC EVIDENCE IS DISREGARDED 24 A demurrer challenges only defects on face of the pleading or on matters that are judicially 25 noticeable. (Code Civ. Proc.,§ 430.30(a).) Extrinsic evidence-like plaintiffs' counsel declaration 26 and attached exhibits - cannot be considered. (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. 27 PRO. BEFORE TRIAL (The Rutter Group 2021), p. 7(1)-6, 'if 7:8; see also, People ex rel. Dept. of 28 Parks & Recreation v. West-A-Rama, Inc. (1973) 35 Cal.App.3d 786, 795 (error to receive extrinsic -1- DEFENDANTS' OBJECTION TO PLAINTIFFS' REPLY TO DEFENDANTS' OPPOSITION TO PLAINTIFl'S' )EMURRER TO DEFENDANTS' SECOND AMENDED ANSWER 1 evidence in sustaining a demurrer).) The extrinsic evidence' is also irrelevant, conceded by plaintiffs 2 as pertaining to a "separate matter." (Cal. Evid. Code§ 210.) 3 II. NEW ARGUMENTS ARE NOT PERMITTED IN REPLY 4 "[P]oints raised in a reply brieffor the first time will not be considered unless good cause is 5 shown for the failure to present them before." (Balboa Ins. Co. Vv. Aguirre (1983) 149 Cal.App.3d 6 1002, 1010.) Plaintiffs' "delay" argument is new since it was not raised in the demurrer. (See, 7 plaintiffs' Demurrer, pp. 7-8.) This violates defendants' due process rights and plaintiffs have not 8 established any good cause allowing it. The procedural history reveals plaintiffs' "delay" argument 9 is untenable - plaintiffs did not file any opposition whatsoever to defendants' motion for leave to 10 amend, served in 2021. By virtue of being served, plaintiffs were well aware defendants were 11 asse1iing the equitable estoppel defense in 2021 and only now raise a purported "delay" argument 12 for the first time in the reply. Denying leave to amend is also an abuse of discretion where there is 13 a reasonable possibility a defendant can state an affirmative defense. (Bounds v. Superior Court 14 (2014) 229 Cal.App.4th 468, 484.) 15 III. PLAINTIFFS' REPLY VIOLATES THE PAGE LIMITATION RULE 16 No reply brief may exceed ten (10) pages. (Cal. Rules of Crt., Rule 3. l 113(d).) Here, l 7 plaintiffs' reply is twelve (12) pages and is considered a late-filed paper. (Cal. Rules ofCrt., Rule 18 3. l 1l3(g).) The Cami has the authority to disregard it in its entirety. (Cal. Rules of Crt., Rule 19 3.1113(g).) 20 21 DATED: April 8, 2022 MICHAELIS, MONT AN ARI & JOHNSON Ry,(~~tr} 22 23 24 Attorneys for Defendants, STEPHEN MAGEE and SAC AERO 25 FL YING CLUB, INC. N:\17517\pld\pRopp.pltf,detnurrer.obj.wpd 26 27 1 Plaintiffs claim a briefing schedule was ordered at the January 31, 2022 hearing. The 28 transcript establishes this, mnong many other things plaintiffs were contending, was incorrect. -2- DEFENDANTS' OBJECTION TO PLAINTIFFS' REPLY TO DEFENDANTS' OPPOSITION TO PLAINTIFFS' EMURRER TO DEFENDANTS' SECOND AMENDED ANSWER 1 PROOF OF SERVICE 2 STATE OF CALIFORNIA ) ) S.S. 3 COUNTY OF LOS ANGELES ) 4 I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 4333 Park Terrace Dr. # 100, Westlake 5 Village, California 91361 . 6 On April 8, 2022, I served the forego ing document described as DEFENDANTS' OBJECTIONS TO PLAINTIFFS' REPLY TO DEFENDANTS' OPPOSITION TO 7 PLAINTIFFS' DEMURRER TO DEFENDANTS' SECOND AMENDED ANSWER on the interested parties in this action by placing a true copy thereof in a sealed envelope with postage 8 thereon fully prepaid in the United States mail at Westlake Village, Cal ifornia, addressed as fo ll ows : 9 Michael S. Danko, Esq. Attorneys for Plaintiffs Michael Smith, Esq. 10 Danko Meredith 333 Twin Dolphin Dr. # 145 11 Redwood Shores, CA 94065 tel: (65 0) 453-3600; fax: (650) 394-8672 12 Email: mdanko@dankolaw.com; rnsmith@dankolaw.com 13 [X] (MAIL) I deposited such envelope addressed in the mail at Westlake Village, Cal iforni a. The envelope was mailed with postage thereon fully prepaid. I am " readily familiar" with firm ' s 14 practice of collection and processing correspondence for mailing. It is deposited with U.S . postal service on that same day in the ordinary course of business . I am aware that on motion of party 15 served, service is presumed invalid if postal cancellation date or postage meter date is more than 1 day after date of deposit for mailing in affidavit. 16 17 [X] (ELECTRONIC TRANSFER) I caused all of the pages of the above-entitled document to be sent to the recipient noted above via electronic transfer (email) at the respective email addresses 18 indicated above because of the COVID-1 9 virus. 19 [] (FEDERAL EXPRESS) I deposited such envelope addressed at the Federal Express office located at Westlake Village, Californ ia. The envelope was mailed fully prepaid. I am "readily 20 familiar" with firm 's practice of collection and processing correspondence for mailing with Federal Express. It is deposited with the Westlake Village Federal Express service on that same day in the 21 ordinary course of business. I am aware that on motion of party served, service is presumed invalid if cancellation date is more than 1 day after date of deposit for overnight mailing in affidavit. 22 23 I declare under penalty of pe1jury under the laws of the State of California that the foregoing is true and correct. 24 25 Executed on April 8, 2022 at Westlake Village, California. 26 //k ,rka dk~ - Barbara Haussnhl111>Ccis 27 California Certified Legal Secretary 28