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1 MICHAELS. DANKO, ESQ. SBN 111359
mdanko@dankola w.com
2 MICHAEL S. SMITH, ESQ. SBN 268756
msmith@dankolaw .com
3 DANKO MEREDITH
333 Twin Dolphin Drive, Suite 145
4 Redwood Shores, CA 94065
Telephone: (650) 453-3600
5 Facsimile: (650) 394-8672
6 Attorneys for Plaintiffs
BRYAN TRUJILLO and CINDY TRUJILLO
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8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
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IN AND FOR THE COUNTY OF SAN MATEO
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UNLIMITED CIVIL JURISDICTION
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12 BRYAN TRUJILLO and CINDY TRUJILLO, Case No. 18CIV01901
13 Plaintiffs, PLAINTIFFS' NOTICE OF MOTION AND
MOTION IN LIM/NE NO. 2 TO EXCLUDE
14 V. TESTIMONY OR EVIDENCE OF ANY
MITIGATION EFFORTS NOT INVOLVING
15 STEPHEN MAGEE, SAC AERO FL YING CLUB, DEFENDANTS AND MITIGATION
INC., AND DOES 1 - 50, RESULTS
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Defendants Trial Date: July 7, 2022
17 Time: 9:00 a.m.
Dept.: 4
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Complaint filed: April 17, 2018
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20 TO DEFENDANTS AND TO THEIR ATTORNEYS OF RECORD:
21 PLEASE TAKE NOTICE that Plaintiffs hereby move this Court for an order in limine
22 excluding any testimony or evidence on the efforts that were taken to mitigate the toxic spill and
23 plaintiffs' other damages, despite the fact that defendants were not involved nor even knew of such
24 efforts. This includes evidence about the results of such mitigation efforts, such as that the toxic
25 spill on the Trujillos' property has been "cleaned up," or is "safe," or that the contaminate levels
26 found on their property poses no threat to the health of individuals occupying or visiting the
27 property, or that the government, by setting a permitted maximum amount of contaminate not
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PLAINTIFFS' NOTICE OF MOTION AND MOTION IN LIM/NE NO. 2 TO EXCLUDE TESTIMONY OR EVIDENCE OF
ANY MITIGATION EFFORTS NOT INVOLVING DEFENDANTS AND MITIGATION RESULTS
1 requiring remediation, thereby declares that lower levels are "safe."
2 This/these topic(s) is outside of the scope of this bifurcated trial, where the sole issue is the
3 defendants' fourteenth affirmative defense of equitable estoppel. Any time spent on the presentation
4 of evidence or testimony on the above topic(s) are irrelevant and therefore would be a waste of
5 judicial resources.
6 This Motion is based on Evidence Code §352, this Notice of Motion and Motion, all the other
7 pleadings and papers on file in this action, any such other evidence as may be presented, and, if the
8 court desires, oral argument. The parties exchange witness lists on June 30, 2022, the same day that
9 any motions in limine ("pre-trial documents") were due. If a more complete briefing is required by
10 the Court, Plaintiffs will promptly provide on short notice.
11 MEMORADUM OF POINTS AND AUTHORITIES
12 This bifurcated trial is to adjudicate one and only one issue, defendants' fourteenth affirmative
13 defense of equitable estoppel. The elements of which are: "The elements of equitable estoppel are:
14 (1) the party to be estopped must be apprised of the facts; (2) that party must intend that his or her
15 conduct be acted on, or must so act that the party asserting the estoppel had a right to believe it was
16 so intended; (3) the party asserting the estoppel must be ignorant of the true state of facts; and (4) the
17 party asserting the estoppel must reasonably rely on the conduct to his or her injury." Honig v. San
18 Francisco Planning Dept. (2005) 127 Cal.App.4th 520, 529.
19 Defendants' witness and exhibit list indicates that they will seek to present irrelevant evidence
20 as to the efforts that were taken to mitigate the toxic spill and plaintiffs' other damages, despite the
21 fact that defendants were not involved in, nor knew of such efforts by plaintiffs', plaintiffs' insurer,
22 contractors and government officials. Unless defendants can show that they knew about plaintiffs'
23 actions, and further that plaintiffs intended defendants to know and rely on plaintiffs' actions, then
24 any such evidence is wholly irrelevant. For example, an email string between plaintiffs and their
25 insurer, Nationwide, about the mitigation effort, in which the defendants were not included or
26 otherwise even knew about, has no bearing on any of the elements of their equitable estoppel
27 defense.
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PLAINTIFFS' NOTICE OF MOTION AND MOTION IN LIM/NE NO. 2 TO EXCLUDE TESTIMONY OR EVIDENCE OF
ANY MITIGATION EFFORTS NOT INVOLVING DEFENDANTS AND MITIGATION RESULTS
1 Further, defendants also include they will seek to present irrelevant evidence about the results
2 of such mitigation efforts, such as that the toxic spill on the Trujillos' property has been "cleaned
3 up," or is "safe," or that the contaminate levels found on their property poses no threat to the health
4 of individuals occupying or visiting the property, or that the government, by setting a permitted
5 maximum amount of contaminate not requiring remediation, thereby declares that lower levels are
6 "safe." Even assuming arguendo, that the mediation and clean-up efforts restored plaintiffs'
7 property to exactly its pre-crash condition, this has no bearing on defendants' equitable estoppel
8 defense.
9 It will be a waste of this court's, the witnesses', and the parties' resources if defendants are
10 allowed to submit witnesses and documents all seeking to prove an irrelevant issue.
11 Plaintiffs believe that defendants will seek testimony about the mitigation efforts and results
12 and/or the condition of the plaintiffs' property from Cynthia Trujillo, Bryan Trujillo, Benjamin
13 Berman, David Dietrich, Brian Gwinn, Tamara Gabel, Rick Railsback, and Don Honigman. Any
14 such testimony is irrelevant and should be excluded.
15 Similarly, defendants are attempting to admit Exhibits 1001, 1002, 1003, 1004, 1005, 1006,
16 1007, 1008, 1009, 1010, 1011, 1012, 1013, 1014, 1015, 1016, 1017, 1019, 1026, 1027, 1028, 1030,
17 1031, 1032, 1033, 1035, 1036, 1037, 1038, 1039, 1048, 1049, 1051, 1052, 1058thataren otrelevant
18 to any element of their equitable estoppel defense and so should be excluded.
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21 DATED: June 30, 2022 DANKO MEREDITH
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By: ~ -
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MICHAELS.DANKO
24 MICHAEL S. SMITH
Attorneys for Plaintiffs
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PLAINTIFFS' NOTICE OF MOTION AND MOTION IN LIM/NE NO. 2 TO EXCLUDE TESTIMONY OR EVIDENCE OF
ANY MITIGATION EFFORTS NOT INVOLVING DEFENDANTS AND MITIGATION RESULTS
1 PROOF OF SERVICE
2 Trujillo, et al. v.Magee, et al.
San Mateo County Superior Court Case No. 18CIV01901
3
I, the undersigned, declare:
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I am employed in the County of San Mateo, State of California. I am over the age of eighteen
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and not a party to this action. My business address is 333 Twin Dolphin Drive, Suite 145, Redwood
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Shores, CA 94065. On June 30, 2022, I served the foregoing documents:
7
PLAINTIFFS' NOTICE OF MOTION AND MOTION IN LIM/NE NO. 2 TO EXCLUDE
8 TESTIMONY OR EVIDENCE OF ANY MITIGATION EFFORTS NOT INVOLVING
DEFENDANTS AND MITIGATION RESULTS
9
on the parties to this action, addressed as follows, in the manner described below:
10
11 D BY U.S. MAIL - I enclosed the documents in a sealed envelope or package addressed
to the persons at the address(es) below and (specify one):
12
D deposited the sealed envelope with the U.S. Postal Service, with postage fully
13 prepaid.
14
D placed the envelope for collection and mailing, following our ordinary business
practices. I am readily familiar with this business's practice for collecting and
15 processing correspondence for mailing. On the same day that correspondence is
placed for collection and mailing, it is deposited in the ordinary course of
16 business with the U.S. Postal Service, in a sealed envelope with postage fully
prepaid.
17
0 BY OVERNIGHT DELIVERY -I enclosed the document(s) in an envelope or
18 package provided by an overnight delivery carrier and addressed to the person(s) at the
address( es) below. I placed the envelope or package for collection and overnight
19 delivery at an office or a regularly utilized drop box of the overnight delivery carrier.
20 0 BY PERSONAL DELIVERY - I placed the above-listed document(s) in a sealed
envelope and personally delivered to the address(es) set forth below.
21
0 BY MESSENGER DELIVERY - I served the documents by placing them in an
22 envelope or package addressed to the person(s) at the address(es) listed below and
providing them to a professional messenger service for service.
23
D BY FAX TRANSMISSION -Based on an agreement of the parties to accept service
24 by fax transmission, I faxed the document(s) to the person(s) at the fax number(s) listed
below. No error was reported by the fax machine that I used. A copy of the record of
25 the fax transmission, which was printed out, is attached.
26 [g] BY ELECTRONIC SERVICE-Based on a court order or an agreement of the parties
to accept electronic service, I caused the document(s) to be sent to the persons at the
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electronic service address(es) listed below.
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PROOF OF SERVICE
1 Garry L. Montanari, Esq.
John Moon, Esq.
2 Michaelis, Montanari & Johnson, P .C.
4333 Park Terrace Drive, Suite 110
3 Westlake Village, CA 91361
gmontanari@mmj law.net
4 Attorneys for Defendant
STEPHEN MAGEE and SAC AERO FLYING
5 CLUB, INC
6
7 I declare under penalty of perjury that the foregoing is true and correct. Executed on
8 June 30, 2022, at Redwood Shores, California.
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PROOF OF SERVICE
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1 MICHAELS. DANKO, ESQ. SBN 111359 mdanko@dankola w.com 2 MICHAEL S. SMITH, ESQ. SBN 268756 msmith@dankolaw .com 3 DANKO MEREDITH 333 Twin Dolphin Drive, Suite 145 4 Redwood Shores, CA 94065 Telephone: (650) 453-3600 5 Facsimile: (650) 394-8672 6 Attorneys for Plaintiffs BRYAN TRUJILLO and CINDY TRUJILLO 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF SAN MATEO 10 UNLIMITED CIVIL JURISDICTION 11 12 BRYAN TRUJILLO and CINDY TRUJILLO, Case No. 18CIV01901 13 Plaintiffs, PLAINTIFFS' NOTICE OF MOTION AND MOTION IN LIM/NE NO. 2 TO EXCLUDE 14 V. TESTIMONY OR EVIDENCE OF ANY MITIGATION EFFORTS NOT INVOLVING 15 STEPHEN MAGEE, SAC AERO FL YING CLUB, DEFENDANTS AND MITIGATION INC., AND DOES 1 - 50, RESULTS 16 Defendants Trial Date: July 7, 2022 17 Time: 9:00 a.m. Dept.: 4 18 Complaint filed: April 17, 2018 19 20 TO DEFENDANTS AND TO THEIR ATTORNEYS OF RECORD: 21 PLEASE TAKE NOTICE that Plaintiffs hereby move this Court for an order in limine 22 excluding any testimony or evidence on the efforts that were taken to mitigate the toxic spill and 23 plaintiffs' other damages, despite the fact that defendants were not involved nor even knew of such 24 efforts. This includes evidence about the results of such mitigation efforts, such as that the toxic 25 spill on the Trujillos' property has been "cleaned up," or is "safe," or that the contaminate levels 26 found on their property poses no threat to the health of individuals occupying or visiting the 27 property, or that the government, by setting a permitted maximum amount of contaminate not 28 -1- PLAINTIFFS' NOTICE OF MOTION AND MOTION IN LIM/NE NO. 2 TO EXCLUDE TESTIMONY OR EVIDENCE OF ANY MITIGATION EFFORTS NOT INVOLVING DEFENDANTS AND MITIGATION RESULTS 1 requiring remediation, thereby declares that lower levels are "safe." 2 This/these topic(s) is outside of the scope of this bifurcated trial, where the sole issue is the 3 defendants' fourteenth affirmative defense of equitable estoppel. Any time spent on the presentation 4 of evidence or testimony on the above topic(s) are irrelevant and therefore would be a waste of 5 judicial resources. 6 This Motion is based on Evidence Code §352, this Notice of Motion and Motion, all the other 7 pleadings and papers on file in this action, any such other evidence as may be presented, and, if the 8 court desires, oral argument. The parties exchange witness lists on June 30, 2022, the same day that 9 any motions in limine ("pre-trial documents") were due. If a more complete briefing is required by 10 the Court, Plaintiffs will promptly provide on short notice. 11 MEMORADUM OF POINTS AND AUTHORITIES 12 This bifurcated trial is to adjudicate one and only one issue, defendants' fourteenth affirmative 13 defense of equitable estoppel. The elements of which are: "The elements of equitable estoppel are: 14 (1) the party to be estopped must be apprised of the facts; (2) that party must intend that his or her 15 conduct be acted on, or must so act that the party asserting the estoppel had a right to believe it was 16 so intended; (3) the party asserting the estoppel must be ignorant of the true state of facts; and (4) the 17 party asserting the estoppel must reasonably rely on the conduct to his or her injury." Honig v. San 18 Francisco Planning Dept. (2005) 127 Cal.App.4th 520, 529. 19 Defendants' witness and exhibit list indicates that they will seek to present irrelevant evidence 20 as to the efforts that were taken to mitigate the toxic spill and plaintiffs' other damages, despite the 21 fact that defendants were not involved in, nor knew of such efforts by plaintiffs', plaintiffs' insurer, 22 contractors and government officials. Unless defendants can show that they knew about plaintiffs' 23 actions, and further that plaintiffs intended defendants to know and rely on plaintiffs' actions, then 24 any such evidence is wholly irrelevant. For example, an email string between plaintiffs and their 25 insurer, Nationwide, about the mitigation effort, in which the defendants were not included or 26 otherwise even knew about, has no bearing on any of the elements of their equitable estoppel 27 defense. 28 -2- PLAINTIFFS' NOTICE OF MOTION AND MOTION IN LIM/NE NO. 2 TO EXCLUDE TESTIMONY OR EVIDENCE OF ANY MITIGATION EFFORTS NOT INVOLVING DEFENDANTS AND MITIGATION RESULTS 1 Further, defendants also include they will seek to present irrelevant evidence about the results 2 of such mitigation efforts, such as that the toxic spill on the Trujillos' property has been "cleaned 3 up," or is "safe," or that the contaminate levels found on their property poses no threat to the health 4 of individuals occupying or visiting the property, or that the government, by setting a permitted 5 maximum amount of contaminate not requiring remediation, thereby declares that lower levels are 6 "safe." Even assuming arguendo, that the mediation and clean-up efforts restored plaintiffs' 7 property to exactly its pre-crash condition, this has no bearing on defendants' equitable estoppel 8 defense. 9 It will be a waste of this court's, the witnesses', and the parties' resources if defendants are 10 allowed to submit witnesses and documents all seeking to prove an irrelevant issue. 11 Plaintiffs believe that defendants will seek testimony about the mitigation efforts and results 12 and/or the condition of the plaintiffs' property from Cynthia Trujillo, Bryan Trujillo, Benjamin 13 Berman, David Dietrich, Brian Gwinn, Tamara Gabel, Rick Railsback, and Don Honigman. Any 14 such testimony is irrelevant and should be excluded. 15 Similarly, defendants are attempting to admit Exhibits 1001, 1002, 1003, 1004, 1005, 1006, 16 1007, 1008, 1009, 1010, 1011, 1012, 1013, 1014, 1015, 1016, 1017, 1019, 1026, 1027, 1028, 1030, 17 1031, 1032, 1033, 1035, 1036, 1037, 1038, 1039, 1048, 1049, 1051, 1052, 1058thataren otrelevant 18 to any element of their equitable estoppel defense and so should be excluded. 19 20 21 DATED: June 30, 2022 DANKO MEREDITH 22 By: ~ - 23 MICHAELS.DANKO 24 MICHAEL S. SMITH Attorneys for Plaintiffs 25 26 27 28 -3- PLAINTIFFS' NOTICE OF MOTION AND MOTION IN LIM/NE NO. 2 TO EXCLUDE TESTIMONY OR EVIDENCE OF ANY MITIGATION EFFORTS NOT INVOLVING DEFENDANTS AND MITIGATION RESULTS 1 PROOF OF SERVICE 2 Trujillo, et al. v.Magee, et al. San Mateo County Superior Court Case No. 18CIV01901 3 I, the undersigned, declare: 4 I am employed in the County of San Mateo, State of California. I am over the age of eighteen 5 and not a party to this action. My business address is 333 Twin Dolphin Drive, Suite 145, Redwood 6 Shores, CA 94065. On June 30, 2022, I served the foregoing documents: 7 PLAINTIFFS' NOTICE OF MOTION AND MOTION IN LIM/NE NO. 2 TO EXCLUDE 8 TESTIMONY OR EVIDENCE OF ANY MITIGATION EFFORTS NOT INVOLVING DEFENDANTS AND MITIGATION RESULTS 9 on the parties to this action, addressed as follows, in the manner described below: 10 11 D BY U.S. MAIL - I enclosed the documents in a sealed envelope or package addressed to the persons at the address(es) below and (specify one): 12 D deposited the sealed envelope with the U.S. Postal Service, with postage fully 13 prepaid. 14 D placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this business's practice for collecting and 15 processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of 16 business with the U.S. Postal Service, in a sealed envelope with postage fully prepaid. 17 0 BY OVERNIGHT DELIVERY -I enclosed the document(s) in an envelope or 18 package provided by an overnight delivery carrier and addressed to the person(s) at the address( es) below. I placed the envelope or package for collection and overnight 19 delivery at an office or a regularly utilized drop box of the overnight delivery carrier. 20 0 BY PERSONAL DELIVERY - I placed the above-listed document(s) in a sealed envelope and personally delivered to the address(es) set forth below. 21 0 BY MESSENGER DELIVERY - I served the documents by placing them in an 22 envelope or package addressed to the person(s) at the address(es) listed below and providing them to a professional messenger service for service. 23 D BY FAX TRANSMISSION -Based on an agreement of the parties to accept service 24 by fax transmission, I faxed the document(s) to the person(s) at the fax number(s) listed below. No error was reported by the fax machine that I used. A copy of the record of 25 the fax transmission, which was printed out, is attached. 26 [g] BY ELECTRONIC SERVICE-Based on a court order or an agreement of the parties to accept electronic service, I caused the document(s) to be sent to the persons at the 27 electronic service address(es) listed below. 28 PROOF OF SERVICE 1 Garry L. Montanari, Esq. John Moon, Esq. 2 Michaelis, Montanari & Johnson, P .C. 4333 Park Terrace Drive, Suite 110 3 Westlake Village, CA 91361 gmontanari@mmj law.net 4 Attorneys for Defendant STEPHEN MAGEE and SAC AERO FLYING 5 CLUB, INC 6 7 I declare under penalty of perjury that the foregoing is true and correct. Executed on 8 June 30, 2022, at Redwood Shores, California. 10 9 ~~~;i 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 PROOF OF SERVICE