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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. 253811
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 FLYING CLUB, INC.
6
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SAN MATEO
10
11
BRYAN TRUJILLO and CINDY ) Case No.: 18CIV01901
12 TRUJILLO, ) Honorable Nancy Fineman; Dept. 4
)
13 Plaintiffs, ) OPPOSITION TO PLAINTIFFS'
) NOTICE OF MOTION AND MOTION
14 vs. ) IN LIMINE NO. 1 TO EXCLUDE THE
) TESTIMONY OF DON HONIGMAN
15 ) AND DAVID DIETRICH
STEPHEN MAGEE, SAC AERO FLYING )
16 CLUB, INC. and DOES 1 - 50, ) Date: July 7 and 8, 2022
) Time: 9:00 a.m.
17 Defendants. ) Dept.: 4
) Complaint filed: April 17, 2018
18 ) Trial Date: July 7 and 8, 2022
)
19
20 Defendants STEPHEN MAGEE and SAC AERO FLYING CLUB, INC. (collectively,
21 "defendants") hereby submit their opposition to plaintiffs BRYAN and CINDY TRUJILLO's
22 "collectively, "plaintiffs") motion in limine No. 1 to exclude the testimonies of Don Honigman
23 ("Honigman") and David Dietrich ("Dietrich").
24 I. INTRODUCTION
25 Plaintiffs' motion in limine fails to identify any sufficient basis in law or fact to support the
26 exclusion of the highly relevant testimonies of Dietrich, plaintiffs' appraiser, and Honigman,
27 defendants' first attorney. Both are ordinary fact witnesses. Plaintiffs also cannot show undue
28 prejudice since plaintiffs waived any claim of discovery. In response to plaintiffs' request on June
-1-
OPPOSITION TO PLAINTIFFS' MOTION IN LIM!NE NO. l TO EXCLUDE THE TESTIMONY OF DON
ONIGMAN AND DAVID DIETRICH
1 30, 2022, defendants advised of the nature of the anticipated testimony of these witnesses on July
2 1, 2022.
3 II. PLAINTIFFS' CONCESSION OF RELEVANCE AND FAILURE TO SHOW
4 UNDUE PREJUDICE IS GROUNDS TO DENY PLAINTIFFS' MOTION
5 A motion in limine that lacks factual support is grounds to deny the motion. (Kelly v. New
6 West Fed. Sav. (1996) 49 cal.App.4th 659, 670.)
7 '"Relevant evidence' means evidence, including evidence relevant to the credibility of a
8 witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact
9 that is of consequence to the detennination of the action." (Cal. Evid. Code, § 210.) Plaintiffs do
10 not contend the witnesses' testimonies lack relevance and therefore concede the relevant
11 nature of their respective testimonies.
12 "The court in its discretion may exclude evidence if its probative value is substantially
13 outweighed by the probability that its admission will (a) necessitate undue consumption of time or
14 (b) create substantial danger of undue prejudice, ofconfusing the issues, or of misleading the jury."
15 (Cal. Evid. Code, § 352.) Plaintiffs further concede the probative value of evidence here is not
16 substantially outweighed by any probability of undue time consumption.
17 Substantively, Dietrich was the first appraiser hired by plaintiffs. At no time did
18 defendants have control over him (other than compelling his appearance at trial via a subpoena).
19 Dietrich's anticipated trial testimony is go over property valuation figures, which Dietrich prepared
20 in March 2017 at plaintiffs' request. There is simply no basis to assert a claim of "surprise" when
21 an opposing party's appraiser is subpoenaed for trial for the opposing party's real property damage
22 claim. Plaintiffs' designated appraiser expert and defendants' appraiser reviewed Dietrich's
23 valuations of plaintiffs' property, as testified in their respective depositions.
24 Honigman was defendants' first attorney beforeretiringin late2017/early2018. Honigman's
25 anticipated testimony involves interactions with plaintiffs' insurance attorney, Ron Cook; plaintiffs'
26 environmental attorney, Tamara Gabel ("Gabel"); as well as plaintiffs' request that defendants
27 agree to be the "responsible party'' in remediating plaintiffs' property; and communications with San
28 Mateo County ("County'') representatives. Honigman was involved in the Remedial Action
-2-
OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE NO. I TO EXCLUDE THE TESTIMONY OF DON
ONIGMAN AND DAVID DIETRlCH
1 Agreement, designating the "responsible party" in order for County to commence remediation
2 oversight and consequently issue the remediation certification notice. Defendants' understanding
3 is Honigrnan is traveling and scheduled to return on July 7.
4 Procedurally, plaintiffs' "misuse of discovery" argument is nnsupported. As stated above,
5 there is no "surprise" as to Dietrich - the first appraiser plaintiffs hired. This holds equally true for
6 Honigrnan, as his anticipated testimony involves facts showing an election of remedies.
7 Plaintiffs cannot establish prejudice, much less undue prejudice. "[A]ll evidence is
8 prejudicial, but only unduly prejudicial evidence is excludable under Ev. C. § 352 ... " (Wegner,
9 Fairbank, Epstein & Chernow, Cal. Prac. Guide: Civil Trials & Evidence (The Rutter Group 2021 ),
10 pp. 4-87-88, if4:295.2 (emphasis in the original).) Plaintiffs have provided no facts to show how or
11 why plaintiffs will be unduly prejudiced, beyond a claim of "surprise," which has been negated
12 above.
13 Around April 2021, defendants raised affirmative defenses of equitable estoppel and double
14 recovery. Defendants subsequently sought leave to amend its answer to include these defenses,
15 which was unopposed by plaintiffs and granted in 2021. Defendants then opposed plaintiffs'
16 demurrer to defendants' amended answer, asserting the equitable estoppel affirmative defense.
17 Throughout this period, numerous pretrial conferences were held along with supplemental brief
18 submissions all related to defendants' equitable estoppel affirmative defense. The demurrer was
19 heard in December 2021 and given the tentative to overrule the demurrer, plaintiffs did not appear.
20 At no time during (or after) any of these proceedings did plaintiffs move to reopen discovery.
21 Accordingly, there is insufficient undue prejudice against plaintiffs to support excluding the
22 highly relevant testimonies that go to the heart of the issue at trial.
23 III. CONCLUSION
24 Based on the foregoing, the Court is respectfully requested to deny plaintiffs' motion in
25 limine No. 1 in its entirety.
DATED: July 1, 2022
26 By:_-=-~~~~~~.l'I ~pi~~L__
27
28 N :\l 7517\pld\tdal\MIL -optJositions\p-opp.tnil.cq.es.1. wpd
-3-
OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE NO. I TO EXCLUDE THE TESTIMONY OF DON
ONIGMAN AND DAVID DIETRICH
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 July 1, 2022, I served the foregoing document described as OPPOSITION TO
PLAINTIFFS' NOTICE OF MOTION AND MOTION IN LIMINE NO. 1 TO EXCLUDE
7 THE TESTIMONY OF DON HONIGMAN AND DAVID DIETRICH on the interested parties
in this action by placing a true copy thereof in a sealed envelope with postage thereon fully prepaid
8 in the United States mail at Westlake Village, California, addressed as follows:
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: (650) 453-3600; fax: (650) 394-8672
12 Email: mdanko@dankolaw.com; msmith@dankolaw.com
13 [] (MAIL) I deposited such envelope addressed in the mail at Westlake Village, California.
The envelope was mailed with postage thereon fully prepaid. I am "readily familiar" with finn ' 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-19 virus.
19 [] (FEDERAL EXPRESS) I deposited such envelope addressed at the Federal Express office
located at Westlake Village, California. 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 1 declare under penalty of perjury under the laws of the State of California that the foregoing
is true and correct.
24
25 Executed on July I, 2022 at Westlake Village, 7J1=~
26 Fxdlz , ~
--"Barbara Haus mann, CCLS
27 California Certified Legal Secretary
28
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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. 253811 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 FLYING CLUB, INC. 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SAN MATEO 10 11 BRYAN TRUJILLO and CINDY ) Case No.: 18CIV01901 12 TRUJILLO, ) Honorable Nancy Fineman; Dept. 4 ) 13 Plaintiffs, ) OPPOSITION TO PLAINTIFFS' ) NOTICE OF MOTION AND MOTION 14 vs. ) IN LIMINE NO. 1 TO EXCLUDE THE ) TESTIMONY OF DON HONIGMAN 15 ) AND DAVID DIETRICH STEPHEN MAGEE, SAC AERO FLYING ) 16 CLUB, INC. and DOES 1 - 50, ) Date: July 7 and 8, 2022 ) Time: 9:00 a.m. 17 Defendants. ) Dept.: 4 ) Complaint filed: April 17, 2018 18 ) Trial Date: July 7 and 8, 2022 ) 19 20 Defendants STEPHEN MAGEE and SAC AERO FLYING CLUB, INC. (collectively, 21 "defendants") hereby submit their opposition to plaintiffs BRYAN and CINDY TRUJILLO's 22 "collectively, "plaintiffs") motion in limine No. 1 to exclude the testimonies of Don Honigman 23 ("Honigman") and David Dietrich ("Dietrich"). 24 I. INTRODUCTION 25 Plaintiffs' motion in limine fails to identify any sufficient basis in law or fact to support the 26 exclusion of the highly relevant testimonies of Dietrich, plaintiffs' appraiser, and Honigman, 27 defendants' first attorney. Both are ordinary fact witnesses. Plaintiffs also cannot show undue 28 prejudice since plaintiffs waived any claim of discovery. In response to plaintiffs' request on June -1- OPPOSITION TO PLAINTIFFS' MOTION IN LIM!NE NO. l TO EXCLUDE THE TESTIMONY OF DON ONIGMAN AND DAVID DIETRICH 1 30, 2022, defendants advised of the nature of the anticipated testimony of these witnesses on July 2 1, 2022. 3 II. PLAINTIFFS' CONCESSION OF RELEVANCE AND FAILURE TO SHOW 4 UNDUE PREJUDICE IS GROUNDS TO DENY PLAINTIFFS' MOTION 5 A motion in limine that lacks factual support is grounds to deny the motion. (Kelly v. New 6 West Fed. Sav. (1996) 49 cal.App.4th 659, 670.) 7 '"Relevant evidence' means evidence, including evidence relevant to the credibility of a 8 witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact 9 that is of consequence to the detennination of the action." (Cal. Evid. Code, § 210.) Plaintiffs do 10 not contend the witnesses' testimonies lack relevance and therefore concede the relevant 11 nature of their respective testimonies. 12 "The court in its discretion may exclude evidence if its probative value is substantially 13 outweighed by the probability that its admission will (a) necessitate undue consumption of time or 14 (b) create substantial danger of undue prejudice, ofconfusing the issues, or of misleading the jury." 15 (Cal. Evid. Code, § 352.) Plaintiffs further concede the probative value of evidence here is not 16 substantially outweighed by any probability of undue time consumption. 17 Substantively, Dietrich was the first appraiser hired by plaintiffs. At no time did 18 defendants have control over him (other than compelling his appearance at trial via a subpoena). 19 Dietrich's anticipated trial testimony is go over property valuation figures, which Dietrich prepared 20 in March 2017 at plaintiffs' request. There is simply no basis to assert a claim of "surprise" when 21 an opposing party's appraiser is subpoenaed for trial for the opposing party's real property damage 22 claim. Plaintiffs' designated appraiser expert and defendants' appraiser reviewed Dietrich's 23 valuations of plaintiffs' property, as testified in their respective depositions. 24 Honigman was defendants' first attorney beforeretiringin late2017/early2018. Honigman's 25 anticipated testimony involves interactions with plaintiffs' insurance attorney, Ron Cook; plaintiffs' 26 environmental attorney, Tamara Gabel ("Gabel"); as well as plaintiffs' request that defendants 27 agree to be the "responsible party'' in remediating plaintiffs' property; and communications with San 28 Mateo County ("County'') representatives. Honigman was involved in the Remedial Action -2- OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE NO. I TO EXCLUDE THE TESTIMONY OF DON ONIGMAN AND DAVID DIETRlCH 1 Agreement, designating the "responsible party" in order for County to commence remediation 2 oversight and consequently issue the remediation certification notice. Defendants' understanding 3 is Honigrnan is traveling and scheduled to return on July 7. 4 Procedurally, plaintiffs' "misuse of discovery" argument is nnsupported. As stated above, 5 there is no "surprise" as to Dietrich - the first appraiser plaintiffs hired. This holds equally true for 6 Honigrnan, as his anticipated testimony involves facts showing an election of remedies. 7 Plaintiffs cannot establish prejudice, much less undue prejudice. "[A]ll evidence is 8 prejudicial, but only unduly prejudicial evidence is excludable under Ev. C. § 352 ... " (Wegner, 9 Fairbank, Epstein & Chernow, Cal. Prac. Guide: Civil Trials & Evidence (The Rutter Group 2021 ), 10 pp. 4-87-88, if4:295.2 (emphasis in the original).) Plaintiffs have provided no facts to show how or 11 why plaintiffs will be unduly prejudiced, beyond a claim of "surprise," which has been negated 12 above. 13 Around April 2021, defendants raised affirmative defenses of equitable estoppel and double 14 recovery. Defendants subsequently sought leave to amend its answer to include these defenses, 15 which was unopposed by plaintiffs and granted in 2021. Defendants then opposed plaintiffs' 16 demurrer to defendants' amended answer, asserting the equitable estoppel affirmative defense. 17 Throughout this period, numerous pretrial conferences were held along with supplemental brief 18 submissions all related to defendants' equitable estoppel affirmative defense. The demurrer was 19 heard in December 2021 and given the tentative to overrule the demurrer, plaintiffs did not appear. 20 At no time during (or after) any of these proceedings did plaintiffs move to reopen discovery. 21 Accordingly, there is insufficient undue prejudice against plaintiffs to support excluding the 22 highly relevant testimonies that go to the heart of the issue at trial. 23 III. CONCLUSION 24 Based on the foregoing, the Court is respectfully requested to deny plaintiffs' motion in 25 limine No. 1 in its entirety. DATED: July 1, 2022 26 By:_-=-~~~~~~.l'I ~pi~~L__ 27 28 N :\l 7517\pld\tdal\MIL -optJositions\p-opp.tnil.cq.es.1. wpd -3- OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE NO. I TO EXCLUDE THE TESTIMONY OF DON ONIGMAN AND DAVID DIETRICH 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 July 1, 2022, I served the foregoing document described as OPPOSITION TO PLAINTIFFS' NOTICE OF MOTION AND MOTION IN LIMINE NO. 1 TO EXCLUDE 7 THE TESTIMONY OF DON HONIGMAN AND DAVID DIETRICH on the interested parties in this action by placing a true copy thereof in a sealed envelope with postage thereon fully prepaid 8 in the United States mail at Westlake Village, California, addressed as follows: 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: (650) 453-3600; fax: (650) 394-8672 12 Email: mdanko@dankolaw.com; msmith@dankolaw.com 13 [] (MAIL) I deposited such envelope addressed in the mail at Westlake Village, California. The envelope was mailed with postage thereon fully prepaid. I am "readily familiar" with finn ' 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-19 virus. 19 [] (FEDERAL EXPRESS) I deposited such envelope addressed at the Federal Express office located at Westlake Village, California. 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 1 declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 24 25 Executed on July I, 2022 at Westlake Village, 7J1=~ 26 Fxdlz , ~ --"Barbara Haus mann, CCLS 27 California Certified Legal Secretary 28