Preview
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
TRUJILLO, ) Honorable Nancy Fineman; Dept. 4
12
)
13 Plaintiffs, ) DEFENDANTS' RESPONSES TO
) PLAINTIFFS' REQUESTED
vs. ) REVISIONS TO TENTATIVE
14
) DECISION AND PROPOSED
15 ) STATEMENT OF DECISION
STEPHEN MAGEE, SAC AERO FLYING ) Date: July 7 and 8, 2022
16 CLUB, INC. and DOES 1 - 50, ) Time: 9:00 a.m.
) Dept.: 4
17 Defendants. ) Complaint filed: April 17, 2018
) Trial Date: July 7 and 8, 2022
18
19 Defendants STEPHEN MAGEE and SAC AERO FLYING CLUB, INC. (collectively,
2o "defendants") submit their responses to plaintiffs BRYAN TRUJILLO's and CINDY TRUJILLO's
21 (collectively, "plaintiffs") requested revisions to the tentative decision and proposed statement of
22 decision ("tentative").
23 I. DEFENDANTS OBJECT TO PLAINTIFFS' EXHIBIT, WHICH WAS NOT
24 ADMITTED AT TRIAL
25 Exhibit A attached to plaintiffs' requested revisions is the same exhibit attached to plaintiffs'
26 closing brief. (Compare Plaintiffs' closing brief, Exhibit B, with plaintiffs' requested revisions,
27 Exhibit A.) This exhibit was not admitted at trial, and the Court noted that this exhibit was not a
28 court filing. Defendants objected when plaintiffs attached this exhibit to their closing brief.
-1-
DEFENDANTS' RESPONSES TO PLAINTIFFS' REQUESTED REVISIONS TO TENTATIVE DECISION AND
STATEMENT OF DECISION
1 (Defendants' objection to tentative, 4:5-14.) Defendants renew their objection as to this exhibit,
2 which is now attached as Exhibit A to plaintiffs' requested revisions. Defendants further object to
3 any improper exhibit plaintiffs may attach to their response to defendant's objection to the tentative.
4 Considering evidence not received at trial is improper. (Bragg v. Auburn (1967) 253 Cal.App.2d
5 50, 54.) Accordingly, defendants request the Court to disregard plaintiffs' Exhibit A to their
6 requested revision or any other improper exhibit, if any, to plaintiffs' response to defendants'
7 objections to the tentative.
s II. PLAINTIFFS' REQUESTED REVISIONS NOS. 1AND2 SHOULD BE REJECTED
9 SINCE THERE IS AN INSUFFICIENT AMBIGUITY OR OMISSION
1o Plaintiffs' requested revisions/objections were limited to the following.three (3) issues.
11 A. OFFSET
12 An objection to a proposed statement of decision alerts the court ofinconsistencies between
13 the court's ruling and the document intended to explain the ruling. (Heaps v. Heaps (2004) 124
14 Cal.App.4th 286, 292 ("Heaps").) Plaintiffs have not identified a sufficient ambiguity or omission,
15 arising from an offset, as referenced in the tentative. Plaintiffs raise issue with the tentative' s
16 identification of defendant's right to an offset. Plaintiffs allege defendants have not claimed offset
17 and plaintiffs lacked the opportunity to adequately address this issue, where no decision was reached
18 on this issue. These contentions are misleading and erroneous.
19 Defendants claimed an offset/credit. (Defendants' second amended answer, if 12 (Twelfth
2o Affirmative Defense).)
21 During the in limine proceedings, plaintiffs raised this issue in order to exclude insurer
22 payments. (Plaintiffs' notice of motion and motion in limine No. 8 to exclude evidence regarding
23 payments by insurers.) Defendants' opposition indicated defendants had a right to an offset, where
24 subrogation modifies the collateral source rule. (Opposition to plaintiffs' motion in limine No. 8 to
25 exclude evidence regarding payments by insurers.) The Court subsequently ruled in favor of
26 defendants. (February 24, 2021 Tentative Rulings re Motions in Limine, 6:17-24.) After
27 determining defendants were entitled to an offset, the only remaining issue was whether a jury or the
28 Court would calculate the offset amount. (Id.) Thus, a decision was reached as to this issue and to
-2-
DEFENDANTS' RESPONSES TO PLAlNTIFFS' REQUESTED REVISIONS TO TENTATIVE DECISION AND
STATEMENT OF DECISION
1 permit briefing (as suggested by plaintiffs) would be procedurally improper.
2 Plaintiffs' claim ofnot having an opportunity to adequately address this issue is disingenuous
3 in light of the fact that they presented it first, in the context of the in Iimine proceedings. As such,
4 the Court's in limine ruling is substantial evidence this issue has been adjudicated as to defendants'
5 right to an offset. The Court should reject plaintiffs' requested revision and deny any request for
6 briefing on the offset issue.
7 B. ALLOWING DEFENDANTS TO PRESENT ABATEMENT EVIDENCE IN
8 THE NEXT TRIAL (IF NECESSARY) COMPORTS WITH CASE LAW AND
9 THE COURT'S PRIOR RULINGS
1o Plaintiffs' reference to Exhibit A is the third attempt to introduce a rejected exhibit: (1) the
11 Court denied plaintiffs' request to admit it at trial,noting that it was not a court filing; (2)
12 defendants' objected to it being attached to plaintiffs' closing brief since it was not received at trial;
13 and (3) defendants further object to it being attached to plaintiffs' requested revision on that same
14 basis. Defendants request the Court sustain defendants' objections to this improper exhibit.
15 Plaintiffs have not identified a sufficient ambiguity or omission, arising from the Court's
16 statement pertaining to defendants' right to present evidence, which makes plaintiffs' request
17 improper. (Heaps, supra, 124 Cal.App.4th at 292.) Defendants' right to present evidence is
18 established by a California Supreme Court decision and another appellate decision, as cited in the
19 tentative. Thus, the statement is proper. Plaintiffs have not shown any omission or ambiguity
2o arising from this general principle and there is no confusion that arises from the plain language of
21 the statement. Moreover, any attempt to reevaluate evidence previously submitted by defendants that
22 were admitted at trial should be rejected.
23 Plaintiffs claim they were not afforded an opportunity to adequately address the issue of
24 treating the nuisance as permanent or continuing. This misrepresents both facts and the extensive
25 procedural history in this matter.
26 Plaintiffs had ample opportunity to brief this issue and have done so. (Plaintiffs
27 supplemental brief in support of plaintiffs' motions in limine excluding evidence that the subject
28 nuisance is of a continuing and/or has been abated, filed March 22, 2021.) The Court subsequently
-3-
DEFENDANTS' RESPONSES TO PLAINTIFFS' REQUESTED REVISIONS TO TENTATCVE DECISION AND
STATEMENT OF DECISION
1 issued a ruling for the in limine proceedings. (Further tentative ruling re motion in limine related
2 to continuing vs. permanent nuisance/trespass ("Further Tentative"), 2:16-6:14.) 1 The Court
3 concluded defendants' evidence of abatement was admissible. (Id., 6:15-7:9.) In so doing,
4 requirements of plaintiffs' prima facie case were identified and, more importantly, the Court found
5 a fair trial requires allowing defendants to offer evidence for the material issue of continuing versus
6 permanent nuisance. (Id.)
7 Accordingly, plaintiffs' request to remove the language pertaining to defendants' right to
8 present evidence at the next phase of trial (if necessary) should be denied.
9 c. IDENTIFICATION OF NEXT TRIALS
1o To preclude any ambiguities for the record, defendants suggest that the tentative include in
11 the trial setting conference reference (if necessary) a statement that the bifurcated trial will continue,
12 pursuant to the Court's order, into the next phase, which will determine whether the nuisance is
13 continuing or permanent. A further trial setting conference will be held after the nuisance character
14 is determined, at which time the date for the jury trial will be scheduled. The jury trial will proceed
15 on issues not tried before the Court, such as liability, and any appropriate jury instructions based on
16 the Court's findings from the bench trial will be issued accordingly.
17 III. CONCLUSION
18 Based on the foregoing, defendants request that the Court deny plaintiffs' requests for
19 revisions Nos. 1 and 2, and modify the tentative to reference the Court's bifurcation order and the
2o trial setting conference for the jury trial.
21 DATED: August29, 2022 MICHAELIS, MONTANARI & JOHNSON
22
23 By•~~~« GAim/ L. MO TANARI
Attoln'eys for Defendants,
24 STEPHEN MAGEE and SAC AERO
FL YING CLUB, INC.
25 N:\17517\pld\trial\p-dcf.rcsp.pltf.rcv.tent.stmt.dec.wpd
26
1
27 Defendants contend an election must be supported by evidence that makes it reasonable and
the case must be doubtful, pursuant to Beck Development Co. v. Southern Pacific Transportation
28 Co. (1996) 44 Cal.App.4th 1160, 1217.
-4-
DEFENDANTS' RESPONSES TO PLAINTIFFS' REQUESTED REVISIONS TO TENTATIVE DECISION AND
STATEMENT OF DECISION
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 August 29, 2022, I served the foregoing document described as DEFENDANTS'
RESPONSES TO PLAINTIFFS' REQUESTED REVISIONS TO TENTATIVE DECISION
7 AND PROPOSED ST ATEMENT OF DECISION on the interested parties in this action by
placing a true copy thereof in a sealed envelope with postage thereon fully prepaid in the United
8 States mail at Westlake Village, California, addressed as follows:
9 Michael S. Danko, Esq. Attorneys for Plaintiffs
Michael Smith, Esq.
1O 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
2O familiar" with firm's practice of collection and processing c01Tespondence 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 August 29, 2022 at Westlake Vill'1, California. _~
26 0a,Jd1:(_a.
;;;> \
, ~4..--:?~
•
Barbara Haussmann, CCLS
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. 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 TRUJILLO, ) Honorable Nancy Fineman; Dept. 4 12 ) 13 Plaintiffs, ) DEFENDANTS' RESPONSES TO ) PLAINTIFFS' REQUESTED vs. ) REVISIONS TO TENTATIVE 14 ) DECISION AND PROPOSED 15 ) STATEMENT OF DECISION STEPHEN MAGEE, SAC AERO FLYING ) Date: July 7 and 8, 2022 16 CLUB, INC. and DOES 1 - 50, ) Time: 9:00 a.m. ) Dept.: 4 17 Defendants. ) Complaint filed: April 17, 2018 ) Trial Date: July 7 and 8, 2022 18 19 Defendants STEPHEN MAGEE and SAC AERO FLYING CLUB, INC. (collectively, 2o "defendants") submit their responses to plaintiffs BRYAN TRUJILLO's and CINDY TRUJILLO's 21 (collectively, "plaintiffs") requested revisions to the tentative decision and proposed statement of 22 decision ("tentative"). 23 I. DEFENDANTS OBJECT TO PLAINTIFFS' EXHIBIT, WHICH WAS NOT 24 ADMITTED AT TRIAL 25 Exhibit A attached to plaintiffs' requested revisions is the same exhibit attached to plaintiffs' 26 closing brief. (Compare Plaintiffs' closing brief, Exhibit B, with plaintiffs' requested revisions, 27 Exhibit A.) This exhibit was not admitted at trial, and the Court noted that this exhibit was not a 28 court filing. Defendants objected when plaintiffs attached this exhibit to their closing brief. -1- DEFENDANTS' RESPONSES TO PLAINTIFFS' REQUESTED REVISIONS TO TENTATIVE DECISION AND STATEMENT OF DECISION 1 (Defendants' objection to tentative, 4:5-14.) Defendants renew their objection as to this exhibit, 2 which is now attached as Exhibit A to plaintiffs' requested revisions. Defendants further object to 3 any improper exhibit plaintiffs may attach to their response to defendant's objection to the tentative. 4 Considering evidence not received at trial is improper. (Bragg v. Auburn (1967) 253 Cal.App.2d 5 50, 54.) Accordingly, defendants request the Court to disregard plaintiffs' Exhibit A to their 6 requested revision or any other improper exhibit, if any, to plaintiffs' response to defendants' 7 objections to the tentative. s II. PLAINTIFFS' REQUESTED REVISIONS NOS. 1AND2 SHOULD BE REJECTED 9 SINCE THERE IS AN INSUFFICIENT AMBIGUITY OR OMISSION 1o Plaintiffs' requested revisions/objections were limited to the following.three (3) issues. 11 A. OFFSET 12 An objection to a proposed statement of decision alerts the court ofinconsistencies between 13 the court's ruling and the document intended to explain the ruling. (Heaps v. Heaps (2004) 124 14 Cal.App.4th 286, 292 ("Heaps").) Plaintiffs have not identified a sufficient ambiguity or omission, 15 arising from an offset, as referenced in the tentative. Plaintiffs raise issue with the tentative' s 16 identification of defendant's right to an offset. Plaintiffs allege defendants have not claimed offset 17 and plaintiffs lacked the opportunity to adequately address this issue, where no decision was reached 18 on this issue. These contentions are misleading and erroneous. 19 Defendants claimed an offset/credit. (Defendants' second amended answer, if 12 (Twelfth 2o Affirmative Defense).) 21 During the in limine proceedings, plaintiffs raised this issue in order to exclude insurer 22 payments. (Plaintiffs' notice of motion and motion in limine No. 8 to exclude evidence regarding 23 payments by insurers.) Defendants' opposition indicated defendants had a right to an offset, where 24 subrogation modifies the collateral source rule. (Opposition to plaintiffs' motion in limine No. 8 to 25 exclude evidence regarding payments by insurers.) The Court subsequently ruled in favor of 26 defendants. (February 24, 2021 Tentative Rulings re Motions in Limine, 6:17-24.) After 27 determining defendants were entitled to an offset, the only remaining issue was whether a jury or the 28 Court would calculate the offset amount. (Id.) Thus, a decision was reached as to this issue and to -2- DEFENDANTS' RESPONSES TO PLAlNTIFFS' REQUESTED REVISIONS TO TENTATIVE DECISION AND STATEMENT OF DECISION 1 permit briefing (as suggested by plaintiffs) would be procedurally improper. 2 Plaintiffs' claim ofnot having an opportunity to adequately address this issue is disingenuous 3 in light of the fact that they presented it first, in the context of the in Iimine proceedings. As such, 4 the Court's in limine ruling is substantial evidence this issue has been adjudicated as to defendants' 5 right to an offset. The Court should reject plaintiffs' requested revision and deny any request for 6 briefing on the offset issue. 7 B. ALLOWING DEFENDANTS TO PRESENT ABATEMENT EVIDENCE IN 8 THE NEXT TRIAL (IF NECESSARY) COMPORTS WITH CASE LAW AND 9 THE COURT'S PRIOR RULINGS 1o Plaintiffs' reference to Exhibit A is the third attempt to introduce a rejected exhibit: (1) the 11 Court denied plaintiffs' request to admit it at trial,noting that it was not a court filing; (2) 12 defendants' objected to it being attached to plaintiffs' closing brief since it was not received at trial; 13 and (3) defendants further object to it being attached to plaintiffs' requested revision on that same 14 basis. Defendants request the Court sustain defendants' objections to this improper exhibit. 15 Plaintiffs have not identified a sufficient ambiguity or omission, arising from the Court's 16 statement pertaining to defendants' right to present evidence, which makes plaintiffs' request 17 improper. (Heaps, supra, 124 Cal.App.4th at 292.) Defendants' right to present evidence is 18 established by a California Supreme Court decision and another appellate decision, as cited in the 19 tentative. Thus, the statement is proper. Plaintiffs have not shown any omission or ambiguity 2o arising from this general principle and there is no confusion that arises from the plain language of 21 the statement. Moreover, any attempt to reevaluate evidence previously submitted by defendants that 22 were admitted at trial should be rejected. 23 Plaintiffs claim they were not afforded an opportunity to adequately address the issue of 24 treating the nuisance as permanent or continuing. This misrepresents both facts and the extensive 25 procedural history in this matter. 26 Plaintiffs had ample opportunity to brief this issue and have done so. (Plaintiffs 27 supplemental brief in support of plaintiffs' motions in limine excluding evidence that the subject 28 nuisance is of a continuing and/or has been abated, filed March 22, 2021.) The Court subsequently -3- DEFENDANTS' RESPONSES TO PLAINTIFFS' REQUESTED REVISIONS TO TENTATCVE DECISION AND STATEMENT OF DECISION 1 issued a ruling for the in limine proceedings. (Further tentative ruling re motion in limine related 2 to continuing vs. permanent nuisance/trespass ("Further Tentative"), 2:16-6:14.) 1 The Court 3 concluded defendants' evidence of abatement was admissible. (Id., 6:15-7:9.) In so doing, 4 requirements of plaintiffs' prima facie case were identified and, more importantly, the Court found 5 a fair trial requires allowing defendants to offer evidence for the material issue of continuing versus 6 permanent nuisance. (Id.) 7 Accordingly, plaintiffs' request to remove the language pertaining to defendants' right to 8 present evidence at the next phase of trial (if necessary) should be denied. 9 c. IDENTIFICATION OF NEXT TRIALS 1o To preclude any ambiguities for the record, defendants suggest that the tentative include in 11 the trial setting conference reference (if necessary) a statement that the bifurcated trial will continue, 12 pursuant to the Court's order, into the next phase, which will determine whether the nuisance is 13 continuing or permanent. A further trial setting conference will be held after the nuisance character 14 is determined, at which time the date for the jury trial will be scheduled. The jury trial will proceed 15 on issues not tried before the Court, such as liability, and any appropriate jury instructions based on 16 the Court's findings from the bench trial will be issued accordingly. 17 III. CONCLUSION 18 Based on the foregoing, defendants request that the Court deny plaintiffs' requests for 19 revisions Nos. 1 and 2, and modify the tentative to reference the Court's bifurcation order and the 2o trial setting conference for the jury trial. 21 DATED: August29, 2022 MICHAELIS, MONTANARI & JOHNSON 22 23 By•~~~« GAim/ L. MO TANARI Attoln'eys for Defendants, 24 STEPHEN MAGEE and SAC AERO FL YING CLUB, INC. 25 N:\17517\pld\trial\p-dcf.rcsp.pltf.rcv.tent.stmt.dec.wpd 26 1 27 Defendants contend an election must be supported by evidence that makes it reasonable and the case must be doubtful, pursuant to Beck Development Co. v. Southern Pacific Transportation 28 Co. (1996) 44 Cal.App.4th 1160, 1217. -4- DEFENDANTS' RESPONSES TO PLAINTIFFS' REQUESTED REVISIONS TO TENTATIVE DECISION AND STATEMENT OF DECISION 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 August 29, 2022, I served the foregoing document described as DEFENDANTS' RESPONSES TO PLAINTIFFS' REQUESTED REVISIONS TO TENTATIVE DECISION 7 AND PROPOSED ST ATEMENT OF DECISION on the interested parties in this action by placing a true copy thereof in a sealed envelope with postage thereon fully prepaid in the United 8 States mail at Westlake Village, California, addressed as follows: 9 Michael S. Danko, Esq. Attorneys for Plaintiffs Michael Smith, Esq. 1O 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 2O familiar" with firm's practice of collection and processing c01Tespondence 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 August 29, 2022 at Westlake Vill'1, California. _~ 26 0a,Jd1:(_a. ;;;> \ , ~4..--:?~ • Barbara Haussmann, CCLS 27 California Certified Legal Secretary 28