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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
) DEFENDANTS' REPLY TO
13 Plaintiffs, ) PLAINTIFFS' OPPOSITION TO
) DEFENDANTS' MOTION IN LIMINE
14 vs. ) NO. 13 TO EXCLUDE PERMANENT
) NUISANCE DAMAGES
15 ) [AUTHORIZED BY JUDGE
STEPHEN MAGEE, SAC AERO FLYING ) FINEMAN]
16 CLUB, INC. and DOES 1 - 50, ) Date: February 21, 2023
)' Time: 2:00 p.m.
17 ) Dept.: 4
Defendants. ) Complaint filed: April 17, 2018
18 ) Trial Date: May 3, 2023
19 TO ALL PARTIES AND THEIR COUNSEL OF RECORD:
20 Defendants STEPHEN MAGEE and SAC AERO FLYING CLUB, INC. (collectively,
21 "defendants") hereby submit their reply to Plaintiffs BRYAN TRUJILLO's and CINDY
22 TRUJILLO's (collectively, "plaintiffs") opposition to defendants' motion in limine No. 13 to
23 exclude permanent nuisance damages, pursuant to CACI No. 3903F. This reply is submitted after
24 the Court's tentative ruling of February 9, 2023.
25 II I
26 II I
27 I II
28 I II
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DEFENDANTS' REPLY TO PLAINTfFFS' OPPOSITION TO DEFENDANTS' MOTION IN LIMINE NO. 13
1 TABLE OF CONTENTS
2 I. INTRODUCTION ....................................................... 4
3 II. LEGAL ARGUMENT .................................................... 5
4 A. Tentative Ruling ................................................... 5
5 B. Plaintiffs' Opposition Offers Insufficient Factual And Legal Support ......... 5
6 1. The stipulation is immaterial to the analysis on relevance .................. 5
7 2. Courts routinely reject the insistence of absolutes as "semantic" arguments .... 6
8 3. Evidentiary rules preclude plaintiffs from presenting inadmissible evidence .... 9
9 III. CONCLUSION ........................................................ 10
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DEFENDANTS' REPLY TO PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION IN LIM!NE NO. 13
1 TABLE OF AUTHORITIES
Case Page
2 Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) 39 Cal.3d 862, 872 ......... 4
3 Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160 .. 8
4 Capogeannis v. Superior Court (1993) 12 Cal.App.4th 668, 682-683 ................... 6, 7
5 Casey v. Overhead Door Corp. (1999) 74 Cal.App.4th 112, 123 .................... 5, 9, 10
6 Coshow v. City ofEscondido (2005) 132 Cal.App.4th 687, 701 .......................... 6
7 Heninger v. Dunn (1980) 101 Cal.App.3d 858 ....................................... 8
8 In re Marriage ofDavenport (2011) 194 Cal.App.4th 1507, 1526-1527 ................... 5
9 Jimenez v. Superior Court (2002) 29 Cal.4th 473, 478 ................................. 6
10 Mangini v. Aerojet General Corp (1996)12 Cal.4th 1087, 1098 ........................ 7, 8
11 Merchant Shippers Assa. v. Kellogg Express & Draying Co. (1946) 28 Cal.2d 594 .......... 9
12 People v. Jones (2003) 112 Cal.App.4th 341, 350 .................................... 6
13 People v. Morris (1991) 53 Cal.3d 152, 188 ......................................... 4
14 People v. Stanley (1995) 10 Cal.4th 764, 793 ........................................ 9
15 People v. Warner (1969) 270 Cal.App.2d 900, 908 ................................... 6
16 Redevelopment Agency v. Tobriner (1st Dist. 1989) 215 Cal.App.3d 1087, 1097, fn. 5 ........ 9
17 Salazar v. Matejcek (2016) 245 Cal.App.4th 634 ..................................... 8
18
19 MISCELLANEOUS
2o Rest.2d Torts, § 929, com. b ..................................................... 8
21 Wegner, Fairbank, Epstein & Chernow, Cal. Prac. Guide: Civil Trials & Evidence
(The Rutter Group 2022) ..................................................... 4, 9
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23 CACI No. 3903F ............................................................ 4, 5
24 CACI No. 3903J ............................................................... 9
25 Cal. Evid. Code §350 ........................................................... 9
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DEFENDANTS' REPLY TO PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION IN LIMINE NO. 13
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 Plaintiffs cite the Case Closure Memorandum ("Memorandum"), which shows a gas spill of
4 about 34 gallons, roughly the size of the gas tank in a Ford F250. This case does not involve an
5 underground storage tank holding tens of thousands of gallons. In Baker v. Burbank-
6 Glendale-Pasadena Airport Authority (1985) 39 Cal.3d 862, 872, the Supreme Court warned:" ...
7 we should be particularly cautious not to enlarge the category of permanent nuisance beyond those
8 structures or conditions that truly are permanent." The Memorandum shows site closure was based
9 on sufficient abatement. (Defendants' Request for Judicial Notice ("RJN"), Ex. 5, Tr. Ex. 1042, 3b)
1o ("Clean-up standards (Tier 1 ESLs) have been met for residential land use").)
11 Plaintiffs' evidence of diminution in value damages are unrecoverable, pursuant to CACI No.
12 3903F, and must be excluded, as matter of law. (Cal. Evid. Code§ 350 (only relevant evidence
13 admissible); accord, Wegner, Fairbank, Epstein & Chernow, Cal. Prac. Guide: Civil Trials &
14 Evidence (The Rutter Group 2022) ("Cal. Prac. Guide") p. 8B-29, ii 8:180 (irrelevant evidence is
15 inadmissible).) Defendants' motion is appropriate since it prevents inadmissible evidence and
16 permits a more careful consideration of evidentiary issues. (Cal. Prac. Guide, supra, at p. 4-55, ii
17 4:218.)
18 Granting defendants' motion will enhance trial efficiency and promote settlement, which
19 malces it proper. (People v. Morris (1991) 53 Cal.3d 152, 188 ("Morris").) Applying CACI No.
2o 3903F's recovery limitation will result in the following: irrelevant evidence, which caunot support
21 a judgment (Cal. Prac. Guide, supra, at 8B-27, ii 8:171) will be excluded; this matter will proceed
22 onto the liability phase materially advancing the conclusion of the litigation; the extent of
23 recoverable damages for nuisance will be established, lessening the burden on the jury; certain jury
24 instructions will not require modification, resulting in straightforward instructions; and the jury will
25 not need to be instructed as to the nuances of a permanent nuisance for the liability phase. 1 The
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27 1
The April 22, 2021 tentative ruling established "as Plaintiffs' burden, that to prove a
28 permanent nuisance and trespass, Plaintiffs must prove that they caunot be abated," which requires
defining "abatement," among other related terms. (Defendants' Request for Judicial Notice, Ex.
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DEFENDANTS' REPLY TO PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION IN UMINE NO. 13
1 parties, jury, and Court will benefit from precluding admissions of irrelevant evidence.
2 II. LEGAL ARGUMENT
3 A. Tentative Ruling
4 The tentative ruling ("ruling") states there is evidence the cost of repair exceeds the
5 diminution in value. Inadmissible evidence, however, was relied on in making this evidentiary
6 ruling. (See, Defendants' Request For Judicial Notice In Support of Defendants' Reply, Ex. 1 (trial
7 exhibit 1053 was not admitted).) Evidence deemed inadmissible may not support a decision. (In
8 re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1526-1527.) Furthermore, the cited
9 evidence suggest the cost of repair cannot exceed the diminution in value amount since the absolutes
1o insisted by plaintiffs have been rejected, discussed infra.
11 B. Plaintiffs' Opposition Offers Insufficient Factual And Legal Support
12 1. The stipulation is immaterial to the analysis on relevance
13 The stipulation is immaterial to this analysis since the central issue pertains to whether
14 plaintiffs' diminution in value evidence is relevant. Therefore, this issue is outside of the scope of
15 the stipulation. Specifically, the stipulation does not establish the relevance of the challenged
16 evidence, and the stipulation does not (and should not) allow plaintiffs to circumvent evidentiary
17 rules, which preclude admitting irrelevant evidence.
18 The crux of this issue is whether plaintiffs diminution in value claim is recoverable, in light
19 of CACI's limitation only allowing recovery of the lesser amount. (CACI No. 3903F.) If damages
2o are unrecoverable, they are deemed irrelevant and inadmissible. (Casey v. Overhead Door Corp.
21 (1999) 74 Cal.App.4th 112, 123 ("Casey"), disapproved on other grounds by Jimenez v. Superior
22 Court (2002) 29 Cal.4th 473, 478.) A trial court has wide discretion in deciding relevancy. (People
23 v. Warner (1969) 270 Cal.App.2d 900, 908.) As a gatekeeper, a trial court excludes irrelevant
24 evidence. (People v. Jones (2003) 112 Cal.App.4th 341, 350.) A trial court also has inherent power
25 to control litigation. (Coshow v. City ofEscondido (2005) 132 Cal.App.4th 687, 701.)
26 As the case law shows, when agency demands are met the nuisance has been deemed abated,
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1, p. 8:13-14.)
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DEFENDANTS' REPLY TO PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION IN LIMINE NO. 13
1 which means evidence pertaining to wholly removing the contamination is irrelevant since trial
2 courts do not insist upon absolutes that remediation overseeing agencies do not require, discussed
3 infra.
4 2. Courts routinely reject the insistence of absolutes as "semantic" arguments
5 Plaintiffs' argue the contamination cannot be wholly removed and therefore the nuisance
6 must be deemed permanent. Over thirty (30) years ago the court in Capogeannis v. Superior Court
7 (1993) 12 Cal.App.4th 668 rejected such arguments as "semantic." The context in which
8 Capogeannis was decided is instructive. Abatement in Capogeannis, pursuant to agency demands,
9 had not yet commenced.
1o "In support of their position the Capogeannises submitted the
declaration of a registered geologist and registered environmental
11 assessor, who stated that the soil and groundwater remained
contaminated but that the contamination 'is abatable through
12 environmental remediation. The soil may be remediated through
implementing a vapor extraction system or by excavation. The
13 groundwater may be remediated through implementing a groundwater
pump and treat system, bioremediation, or a combination of both
14 technologies.' In a footnote to their points and authorities the
Capogeannises acknowledged that their complaint did not 'specify
15 whether the nuisance is continuing or permanent,' but offered to
amend their complaint 'to allege continuing nuisance ... if the court
16 so requires.'
17 To counter the Capogeannises' contention that the asserted nuisance
was continuing, the Spences and Tri-Pallet were now required to
18 establish as a matter of law either that the nuisance was in fact
permanent or that the Capogeannises had irreversibly bound
19 themselves to a theory of permanent nuisance. The Spences' reply to
the Capogeannises' opposition appears to have advanced both
2O arguments.
21 To establish that the nuisance was in fact permanent the Spences
submitted the declaration oftheir own expert that '[a]lthough the soil
22 and groundwater contamination might be remediated to a level
acceptable to the Santa Clara Valley Water District and the Central
23 Coast Regional Water Quality Control Board, the contamination is
not entirely abatable because there will always be some residual
24 contan1ination regardless of the technology or combination of
teclmologies used.' On the basis of their expert's declaration the
25 Spences argued that the nuisance must be characterized as permanent:
'The subject property will remain contaminated indefinitely since the
26 contamination will never be entirely eradicated or abated despite the
best cleanup efforts."'
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28 (Capogeannis, supra, 12 Cal.App.4th at 680, emphasis added.)
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DEFENDANTS' REPLY TO PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION IN LJMINE NO. 13
1 The appellate court rejected the "semantic" argument that remaining contamination equated
2 to evidence of a permanent nuisance.
3 "We are not persuaded by the [plaintiffs'] essentially semantic
4 argument that because it does not appear the contamination can ever
5 be wholly removed the nuisance must be deemed permanent. We are
6 satisfied to presume that cleanup standards set by responsible public
7 agencies sufficiently reflect expert appraisal of the best that can be
s done to abate contamination in particular cases. Asjudges we will not
9 presume to insist upon absolutes these agencies do not require."
10 (Id. at 682-683, emphasis added.)
11 The appellate court indicated meeting agency demands suffice to show abatement.
12 "Obviously, environmental contamination is no respecter of property
13 lines and is a legitimate subject of grave concern to society as a
14 whole; the Capogeannises appear to question neither the right of the
15 regulatory agencies to demand cleanup nor their own duty to respond
16 to the demand. But at least as a practical matter the only impact of the
17 contamination upon the Capogeam1ises is by way of the regulatory
18 agencies demands. When those demands have been met, so far as
19 the Capogeannises are concerned the nuisance will be abated."
20 (Id. at 683, emphasis added.)
21 Thus, even where abatement had not yet commenced, the record in Capogeannis "would
22 support a legal conclusion this was a continuing nuisance." (Id., emphasis added.) How much more
23 so when agency demands have been met; where plaintiffs have returned to their property over four
24 ( 4) years ago; and naturally attenuating remnants are below Tier 1 levels - the most conservative
25 level? The determinative fact showing plaintiffs' evidence to be irrelevant is derived from the
26 Memorandum, which plaintiffs cite.
27 The California Supreme Court adopted this reasoning. "We accept the general proposition
28 that something less than total decontamination may suffice to show abatability." (Mangini v. Aerojet
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DEFENDANTS' REPLY TO PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION IN LIMINE NO. 13
1 General Corp (1996)12 Cal.4th 1087, 1098, referring to Capogeannis.)
2 In its tentative ruling, this Court attempts to distinguish Capogeannis as "a summary
3 adjudication case." The very same argument was advanced by the Spences expert as by the plaintiff
4 in this opposition, i.e., there will always be some residual contamination. The court in Capogeannis
5 concluded as a matter oflaw that defendants' premises do not compel a conclusion the nuisance
6 is permanent. (Capogeannis, supra, 12 Cal.App.4th at 682 [Emphasis added].)
7 Beck Development Co. v. Southern Pacific Transportation Co. ( 1996) 44 Cal.App.4th 1160
B ("Beel?') is also inapposite as to plaintiffs' opposition. In Beck, remediation had not yet occurred,
9 pursuant to agency demands, and abatement would far exceed the property value by many multiples.
1o "The monetary expense of remediation was not established with
exactitude, in part because the lack of the characterization precluded
11 assessment of all that would be required. Kleinfelder gave Beck an
estimate that indicated remediation as demanded by Beck could cost
12 between$ 6.5 million and$ 16.2 million. It was generally agreed that
the cost of remediation would greatly exceed the value of the land
13 after remediation. In considering the relative benefits and burdens of
remediation, the comparison must be between the costs of
14 remediation and the actual detriment to the plaintiff from a failure to
remediate. While the record does not include an assessment of the
15 actual detriment Beck would suffer from a failure to remediate, it is
clear that the costs of remediation would far exceed, by many
16 multiples, the actual detriment that would be suffered if remediation
is denied."
17
18 (Id. at 1222, emphasis added.)
19 Plaintiffs' cited authority provide insufficient support. In Heninger v. Dunn ( 1980) 101
2o Cal.App.3d 858 ("Heninger"), the First District Court of Appeal concluded that "[c]ourts will
21 normally not award costs of restoration if they exceed the diminution in the value of the property;
22 the plaintijfmay be awarded the lesser of the two amounts. ( Rest.2d Torts,§ 929, com. b.) It has
23 been said that the rule in California is the same." (Heninger, supra, at 862, emphasis added.) The
24 personal reason exception was analyzed in Heninger, which only pertains to allowing a higher
2s recovery for cost of repair, not diminution in value. (Id. at 864.) Nowhere in Heninger did the
26 appellate court hold that the determinative factor rests on whether the repair can truly restore the
27 property to its original condition. This is similar for Salazar v. Matejcek (2016) 245 Cal.App.4th
2B 634, which analyzed the personal reason exception and only allowed an exception for repair costs,
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DEFENDANTS' REPLY TO PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION IN LIMINE NO. 13
1 not diminution in value. (Id. at 644.) The determinative factor was not whether repair can truly
2 restore the property. Thus, no case stands for the proposition that recovery is contingent upon
3 whether repairs can fully restore a property, and a contention that is not supported by authority
4 should not be considered. (People v. Stanley (1995) 10 Cal.4th 764, 793 (arguments without citation
5 of authorities are treated as waived, and courts should "pass it without consideration").)
6 Recovery of the lesser amount being "inequitable" is also erroneous. Plaintiffs cite Merchant
7 Shippers Asso. v. Kellogg Express & Draying Co. (1946) 28 Cal.2d 594 ("Merchant") in support of
8 their inequitable argument, however Merchant concerns a personal property issue. "This is an
9 appeal from a judgment for damages which the court found plaintiff had sustained by reason of
1o defendant's handling of a piece of machinery in the course of delivery to its destination." (Id. at
11 595, emphasis added.) Since Merchant adjudicated a personal property issue it is inapposite as to
12 plaintiffs' real property claim.
13 No authority holds that the "spirit" of CACI No. 3903F permits recovery of the higher
14 diminution in value that exceeds the cost of repair. Plaintiffs mingle personal property recovery
15 allowances (see, CACI No. 3903J) with real property recovery limitations (see, CACI No. 3903F).
16 Thus, defendants' motion is an approved method in challenging the relevance of plaintiffs'
17 diminution in value evidence. (Cal. Prac. Guide, supra, at p. 4-55, iJ 4:218.)
18 3. Evidentiarv rules preclude plaintiffs from presenting inadmissible evidence
19 Plaintiffs' contention of proceeding under any theory is of no moment here. When evidence
2o is challenged on the grounds of relevance, a stipulation does not relieve a party from complying with
21 fundamental evidentiary rules, nor does it supplant the requirement to conduct a relevance hearing.
22 Courts routinely conduct in limine hearings in excluding irrelevant evidence. (Redevelopment
23 Agencyv. Tobriner(lstDist.1989)215Cal.App.3d1087, 1097,fu. 5.)
24 Plaintiffs have cited no authority that allows them to disregard such well established rules
25 of establishing relevance in light of the abatement where agency demands have been met and where
26 trial courts do not insist upon absolutes. This malces plaintiffs' evidence irrelevant. Relevance must
27 be established before presenting the challenged evidence at trial. (Cal. Evid. Code § 350 ("No
28 evidence is admissible except relevant evidence").)
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DEFENDANTS' REPLY TO PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION IN LIMINE NO. 13
1 Plaintiffs' contention also conflicts with Casey, which holds that evidence of unrecoverable
2 damages is irrelevant and properly excluded. (Casey, supra, 74 Cal.App.4th at 123.) Plaintiffs have
3 provided no explanation as to why Casey should be disavowed, or why the guidance provided by the
4 practice guide (which also cites to Casey) should be rejected. Applying Casey's holding here with
5 the applicable CACI, showing that plaintiffs' evidence of diminution in value damages is
6 inadmissible, will advance this matter since certain issues will become moot. For instance, double
7 recovery will no longer be an issue, as to plaintiffs' obtaining the benefit of having their property
8 repaired while simultaneously seeking diminution in value damages. Plaintiffs concede they have
9 been in their property for over four (4) years now without objection. Defendants produced records
1o showing the (paid) repair costs, which were admitted at the prior proceeding. (Defendants' RJN,
11 Exs. 2, 3, and 5.) The repairs resulted in San Mateo County issuing a no further action letter in this
12 matter, to which no party objected when afforded the opportunity to do so. As an accompaniment
13 to that letter, San Mateo County published the Case Closure Memorandum, which was also admitted
14 into evidence at the prior proceeding (Id ) without objection by plaintiffs (Id., at Ex. 2, p. 122:19-
15 22).
16 III. CONCLUSION
17 Based on the foregoing, defendants request the Court to grant defendants' motion in limine
18 No. 13 to exclude plaintiffs' permanent nuisance damages and related claims.
19
20 DATED: February 13, 2023 MICHAELIS, MONTANARI & JOHNSON
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DEFENDANTS' REPLY TO PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION IN LIMINE NO. 13
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 Tenace Dr. #100, Westlake
5 Village, California 913 61 .
6 On February 13, 2023 , I served the foregoing document described as DEFENDANTS'
REPLY TO PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION IN LIMINE NO.
7 13 TO EXCLUDE PERMANENT NUISANCE DAMAGES on the interested parties in this
action by placing a true copy thereof in a sealed envelope with postage thereon fully prepaid in the
8 United 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 fim1 ' 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 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 perjury under the laws of the State of California that the foregoing
is true and con ect.
24
25
26
-Barbara Hca~ssmann:P~alegal, 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 12 TRUJILLO, ) Honorable Nancy Fineman; Dept. 4 ) DEFENDANTS' REPLY TO 13 Plaintiffs, ) PLAINTIFFS' OPPOSITION TO ) DEFENDANTS' MOTION IN LIMINE 14 vs. ) NO. 13 TO EXCLUDE PERMANENT ) NUISANCE DAMAGES 15 ) [AUTHORIZED BY JUDGE STEPHEN MAGEE, SAC AERO FLYING ) FINEMAN] 16 CLUB, INC. and DOES 1 - 50, ) Date: February 21, 2023 )' Time: 2:00 p.m. 17 ) Dept.: 4 Defendants. ) Complaint filed: April 17, 2018 18 ) Trial Date: May 3, 2023 19 TO ALL PARTIES AND THEIR COUNSEL OF RECORD: 20 Defendants STEPHEN MAGEE and SAC AERO FLYING CLUB, INC. (collectively, 21 "defendants") hereby submit their reply to Plaintiffs BRYAN TRUJILLO's and CINDY 22 TRUJILLO's (collectively, "plaintiffs") opposition to defendants' motion in limine No. 13 to 23 exclude permanent nuisance damages, pursuant to CACI No. 3903F. This reply is submitted after 24 the Court's tentative ruling of February 9, 2023. 25 II I 26 II I 27 I II 28 I II -1- DEFENDANTS' REPLY TO PLAINTfFFS' OPPOSITION TO DEFENDANTS' MOTION IN LIMINE NO. 13 1 TABLE OF CONTENTS 2 I. INTRODUCTION ....................................................... 4 3 II. LEGAL ARGUMENT .................................................... 5 4 A. Tentative Ruling ................................................... 5 5 B. Plaintiffs' Opposition Offers Insufficient Factual And Legal Support ......... 5 6 1. The stipulation is immaterial to the analysis on relevance .................. 5 7 2. Courts routinely reject the insistence of absolutes as "semantic" arguments .... 6 8 3. Evidentiary rules preclude plaintiffs from presenting inadmissible evidence .... 9 9 III. CONCLUSION ........................................................ 10 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- DEFENDANTS' REPLY TO PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION IN LIM!NE NO. 13 1 TABLE OF AUTHORITIES Case Page 2 Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) 39 Cal.3d 862, 872 ......... 4 3 Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160 .. 8 4 Capogeannis v. Superior Court (1993) 12 Cal.App.4th 668, 682-683 ................... 6, 7 5 Casey v. Overhead Door Corp. (1999) 74 Cal.App.4th 112, 123 .................... 5, 9, 10 6 Coshow v. City ofEscondido (2005) 132 Cal.App.4th 687, 701 .......................... 6 7 Heninger v. Dunn (1980) 101 Cal.App.3d 858 ....................................... 8 8 In re Marriage ofDavenport (2011) 194 Cal.App.4th 1507, 1526-1527 ................... 5 9 Jimenez v. Superior Court (2002) 29 Cal.4th 473, 478 ................................. 6 10 Mangini v. Aerojet General Corp (1996)12 Cal.4th 1087, 1098 ........................ 7, 8 11 Merchant Shippers Assa. v. Kellogg Express & Draying Co. (1946) 28 Cal.2d 594 .......... 9 12 People v. Jones (2003) 112 Cal.App.4th 341, 350 .................................... 6 13 People v. Morris (1991) 53 Cal.3d 152, 188 ......................................... 4 14 People v. Stanley (1995) 10 Cal.4th 764, 793 ........................................ 9 15 People v. Warner (1969) 270 Cal.App.2d 900, 908 ................................... 6 16 Redevelopment Agency v. Tobriner (1st Dist. 1989) 215 Cal.App.3d 1087, 1097, fn. 5 ........ 9 17 Salazar v. Matejcek (2016) 245 Cal.App.4th 634 ..................................... 8 18 19 MISCELLANEOUS 2o Rest.2d Torts, § 929, com. b ..................................................... 8 21 Wegner, Fairbank, Epstein & Chernow, Cal. Prac. Guide: Civil Trials & Evidence (The Rutter Group 2022) ..................................................... 4, 9 22 23 CACI No. 3903F ............................................................ 4, 5 24 CACI No. 3903J ............................................................... 9 25 Cal. Evid. Code §350 ........................................................... 9 26 27 28 -3- DEFENDANTS' REPLY TO PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION IN LIMINE NO. 13 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 Plaintiffs cite the Case Closure Memorandum ("Memorandum"), which shows a gas spill of 4 about 34 gallons, roughly the size of the gas tank in a Ford F250. This case does not involve an 5 underground storage tank holding tens of thousands of gallons. In Baker v. Burbank- 6 Glendale-Pasadena Airport Authority (1985) 39 Cal.3d 862, 872, the Supreme Court warned:" ... 7 we should be particularly cautious not to enlarge the category of permanent nuisance beyond those 8 structures or conditions that truly are permanent." The Memorandum shows site closure was based 9 on sufficient abatement. (Defendants' Request for Judicial Notice ("RJN"), Ex. 5, Tr. Ex. 1042, 3b) 1o ("Clean-up standards (Tier 1 ESLs) have been met for residential land use").) 11 Plaintiffs' evidence of diminution in value damages are unrecoverable, pursuant to CACI No. 12 3903F, and must be excluded, as matter of law. (Cal. Evid. Code§ 350 (only relevant evidence 13 admissible); accord, Wegner, Fairbank, Epstein & Chernow, Cal. Prac. Guide: Civil Trials & 14 Evidence (The Rutter Group 2022) ("Cal. Prac. Guide") p. 8B-29, ii 8:180 (irrelevant evidence is 15 inadmissible).) Defendants' motion is appropriate since it prevents inadmissible evidence and 16 permits a more careful consideration of evidentiary issues. (Cal. Prac. Guide, supra, at p. 4-55, ii 17 4:218.) 18 Granting defendants' motion will enhance trial efficiency and promote settlement, which 19 malces it proper. (People v. Morris (1991) 53 Cal.3d 152, 188 ("Morris").) Applying CACI No. 2o 3903F's recovery limitation will result in the following: irrelevant evidence, which caunot support 21 a judgment (Cal. Prac. Guide, supra, at 8B-27, ii 8:171) will be excluded; this matter will proceed 22 onto the liability phase materially advancing the conclusion of the litigation; the extent of 23 recoverable damages for nuisance will be established, lessening the burden on the jury; certain jury 24 instructions will not require modification, resulting in straightforward instructions; and the jury will 25 not need to be instructed as to the nuances of a permanent nuisance for the liability phase. 1 The 26 27 1 The April 22, 2021 tentative ruling established "as Plaintiffs' burden, that to prove a 28 permanent nuisance and trespass, Plaintiffs must prove that they caunot be abated," which requires defining "abatement," among other related terms. (Defendants' Request for Judicial Notice, Ex. -4- DEFENDANTS' REPLY TO PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION IN UMINE NO. 13 1 parties, jury, and Court will benefit from precluding admissions of irrelevant evidence. 2 II. LEGAL ARGUMENT 3 A. Tentative Ruling 4 The tentative ruling ("ruling") states there is evidence the cost of repair exceeds the 5 diminution in value. Inadmissible evidence, however, was relied on in making this evidentiary 6 ruling. (See, Defendants' Request For Judicial Notice In Support of Defendants' Reply, Ex. 1 (trial 7 exhibit 1053 was not admitted).) Evidence deemed inadmissible may not support a decision. (In 8 re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1526-1527.) Furthermore, the cited 9 evidence suggest the cost of repair cannot exceed the diminution in value amount since the absolutes 1o insisted by plaintiffs have been rejected, discussed infra. 11 B. Plaintiffs' Opposition Offers Insufficient Factual And Legal Support 12 1. The stipulation is immaterial to the analysis on relevance 13 The stipulation is immaterial to this analysis since the central issue pertains to whether 14 plaintiffs' diminution in value evidence is relevant. Therefore, this issue is outside of the scope of 15 the stipulation. Specifically, the stipulation does not establish the relevance of the challenged 16 evidence, and the stipulation does not (and should not) allow plaintiffs to circumvent evidentiary 17 rules, which preclude admitting irrelevant evidence. 18 The crux of this issue is whether plaintiffs diminution in value claim is recoverable, in light 19 of CACI's limitation only allowing recovery of the lesser amount. (CACI No. 3903F.) If damages 2o are unrecoverable, they are deemed irrelevant and inadmissible. (Casey v. Overhead Door Corp. 21 (1999) 74 Cal.App.4th 112, 123 ("Casey"), disapproved on other grounds by Jimenez v. Superior 22 Court (2002) 29 Cal.4th 473, 478.) A trial court has wide discretion in deciding relevancy. (People 23 v. Warner (1969) 270 Cal.App.2d 900, 908.) As a gatekeeper, a trial court excludes irrelevant 24 evidence. (People v. Jones (2003) 112 Cal.App.4th 341, 350.) A trial court also has inherent power 25 to control litigation. (Coshow v. City ofEscondido (2005) 132 Cal.App.4th 687, 701.) 26 As the case law shows, when agency demands are met the nuisance has been deemed abated, 27 28 1, p. 8:13-14.) -5- DEFENDANTS' REPLY TO PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION IN LIMINE NO. 13 1 which means evidence pertaining to wholly removing the contamination is irrelevant since trial 2 courts do not insist upon absolutes that remediation overseeing agencies do not require, discussed 3 infra. 4 2. Courts routinely reject the insistence of absolutes as "semantic" arguments 5 Plaintiffs' argue the contamination cannot be wholly removed and therefore the nuisance 6 must be deemed permanent. Over thirty (30) years ago the court in Capogeannis v. Superior Court 7 (1993) 12 Cal.App.4th 668 rejected such arguments as "semantic." The context in which 8 Capogeannis was decided is instructive. Abatement in Capogeannis, pursuant to agency demands, 9 had not yet commenced. 1o "In support of their position the Capogeannises submitted the declaration of a registered geologist and registered environmental 11 assessor, who stated that the soil and groundwater remained contaminated but that the contamination 'is abatable through 12 environmental remediation. The soil may be remediated through implementing a vapor extraction system or by excavation. The 13 groundwater may be remediated through implementing a groundwater pump and treat system, bioremediation, or a combination of both 14 technologies.' In a footnote to their points and authorities the Capogeannises acknowledged that their complaint did not 'specify 15 whether the nuisance is continuing or permanent,' but offered to amend their complaint 'to allege continuing nuisance ... if the court 16 so requires.' 17 To counter the Capogeannises' contention that the asserted nuisance was continuing, the Spences and Tri-Pallet were now required to 18 establish as a matter of law either that the nuisance was in fact permanent or that the Capogeannises had irreversibly bound 19 themselves to a theory of permanent nuisance. The Spences' reply to the Capogeannises' opposition appears to have advanced both 2O arguments. 21 To establish that the nuisance was in fact permanent the Spences submitted the declaration oftheir own expert that '[a]lthough the soil 22 and groundwater contamination might be remediated to a level acceptable to the Santa Clara Valley Water District and the Central 23 Coast Regional Water Quality Control Board, the contamination is not entirely abatable because there will always be some residual 24 contan1ination regardless of the technology or combination of teclmologies used.' On the basis of their expert's declaration the 25 Spences argued that the nuisance must be characterized as permanent: 'The subject property will remain contaminated indefinitely since the 26 contamination will never be entirely eradicated or abated despite the best cleanup efforts."' 27 28 (Capogeannis, supra, 12 Cal.App.4th at 680, emphasis added.) -6- DEFENDANTS' REPLY TO PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION IN LJMINE NO. 13 1 The appellate court rejected the "semantic" argument that remaining contamination equated 2 to evidence of a permanent nuisance. 3 "We are not persuaded by the [plaintiffs'] essentially semantic 4 argument that because it does not appear the contamination can ever 5 be wholly removed the nuisance must be deemed permanent. We are 6 satisfied to presume that cleanup standards set by responsible public 7 agencies sufficiently reflect expert appraisal of the best that can be s done to abate contamination in particular cases. Asjudges we will not 9 presume to insist upon absolutes these agencies do not require." 10 (Id. at 682-683, emphasis added.) 11 The appellate court indicated meeting agency demands suffice to show abatement. 12 "Obviously, environmental contamination is no respecter of property 13 lines and is a legitimate subject of grave concern to society as a 14 whole; the Capogeannises appear to question neither the right of the 15 regulatory agencies to demand cleanup nor their own duty to respond 16 to the demand. But at least as a practical matter the only impact of the 17 contamination upon the Capogeam1ises is by way of the regulatory 18 agencies demands. When those demands have been met, so far as 19 the Capogeannises are concerned the nuisance will be abated." 20 (Id. at 683, emphasis added.) 21 Thus, even where abatement had not yet commenced, the record in Capogeannis "would 22 support a legal conclusion this was a continuing nuisance." (Id., emphasis added.) How much more 23 so when agency demands have been met; where plaintiffs have returned to their property over four 24 ( 4) years ago; and naturally attenuating remnants are below Tier 1 levels - the most conservative 25 level? The determinative fact showing plaintiffs' evidence to be irrelevant is derived from the 26 Memorandum, which plaintiffs cite. 27 The California Supreme Court adopted this reasoning. "We accept the general proposition 28 that something less than total decontamination may suffice to show abatability." (Mangini v. Aerojet -7- DEFENDANTS' REPLY TO PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION IN LIMINE NO. 13 1 General Corp (1996)12 Cal.4th 1087, 1098, referring to Capogeannis.) 2 In its tentative ruling, this Court attempts to distinguish Capogeannis as "a summary 3 adjudication case." The very same argument was advanced by the Spences expert as by the plaintiff 4 in this opposition, i.e., there will always be some residual contamination. The court in Capogeannis 5 concluded as a matter oflaw that defendants' premises do not compel a conclusion the nuisance 6 is permanent. (Capogeannis, supra, 12 Cal.App.4th at 682 [Emphasis added].) 7 Beck Development Co. v. Southern Pacific Transportation Co. ( 1996) 44 Cal.App.4th 1160 B ("Beel?') is also inapposite as to plaintiffs' opposition. In Beck, remediation had not yet occurred, 9 pursuant to agency demands, and abatement would far exceed the property value by many multiples. 1o "The monetary expense of remediation was not established with exactitude, in part because the lack of the characterization precluded 11 assessment of all that would be required. Kleinfelder gave Beck an estimate that indicated remediation as demanded by Beck could cost 12 between$ 6.5 million and$ 16.2 million. It was generally agreed that the cost of remediation would greatly exceed the value of the land 13 after remediation. In considering the relative benefits and burdens of remediation, the comparison must be between the costs of 14 remediation and the actual detriment to the plaintiff from a failure to remediate. While the record does not include an assessment of the 15 actual detriment Beck would suffer from a failure to remediate, it is clear that the costs of remediation would far exceed, by many 16 multiples, the actual detriment that would be suffered if remediation is denied." 17 18 (Id. at 1222, emphasis added.) 19 Plaintiffs' cited authority provide insufficient support. In Heninger v. Dunn ( 1980) 101 2o Cal.App.3d 858 ("Heninger"), the First District Court of Appeal concluded that "[c]ourts will 21 normally not award costs of restoration if they exceed the diminution in the value of the property; 22 the plaintijfmay be awarded the lesser of the two amounts. ( Rest.2d Torts,§ 929, com. b.) It has 23 been said that the rule in California is the same." (Heninger, supra, at 862, emphasis added.) The 24 personal reason exception was analyzed in Heninger, which only pertains to allowing a higher 2s recovery for cost of repair, not diminution in value. (Id. at 864.) Nowhere in Heninger did the 26 appellate court hold that the determinative factor rests on whether the repair can truly restore the 27 property to its original condition. This is similar for Salazar v. Matejcek (2016) 245 Cal.App.4th 2B 634, which analyzed the personal reason exception and only allowed an exception for repair costs, -8- DEFENDANTS' REPLY TO PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION IN LIMINE NO. 13 1 not diminution in value. (Id. at 644.) The determinative factor was not whether repair can truly 2 restore the property. Thus, no case stands for the proposition that recovery is contingent upon 3 whether repairs can fully restore a property, and a contention that is not supported by authority 4 should not be considered. (People v. Stanley (1995) 10 Cal.4th 764, 793 (arguments without citation 5 of authorities are treated as waived, and courts should "pass it without consideration").) 6 Recovery of the lesser amount being "inequitable" is also erroneous. Plaintiffs cite Merchant 7 Shippers Asso. v. Kellogg Express & Draying Co. (1946) 28 Cal.2d 594 ("Merchant") in support of 8 their inequitable argument, however Merchant concerns a personal property issue. "This is an 9 appeal from a judgment for damages which the court found plaintiff had sustained by reason of 1o defendant's handling of a piece of machinery in the course of delivery to its destination." (Id. at 11 595, emphasis added.) Since Merchant adjudicated a personal property issue it is inapposite as to 12 plaintiffs' real property claim. 13 No authority holds that the "spirit" of CACI No. 3903F permits recovery of the higher 14 diminution in value that exceeds the cost of repair. Plaintiffs mingle personal property recovery 15 allowances (see, CACI No. 3903J) with real property recovery limitations (see, CACI No. 3903F). 16 Thus, defendants' motion is an approved method in challenging the relevance of plaintiffs' 17 diminution in value evidence. (Cal. Prac. Guide, supra, at p. 4-55, iJ 4:218.) 18 3. Evidentiarv rules preclude plaintiffs from presenting inadmissible evidence 19 Plaintiffs' contention of proceeding under any theory is of no moment here. When evidence 2o is challenged on the grounds of relevance, a stipulation does not relieve a party from complying with 21 fundamental evidentiary rules, nor does it supplant the requirement to conduct a relevance hearing. 22 Courts routinely conduct in limine hearings in excluding irrelevant evidence. (Redevelopment 23 Agencyv. Tobriner(lstDist.1989)215Cal.App.3d1087, 1097,fu. 5.) 24 Plaintiffs have cited no authority that allows them to disregard such well established rules 25 of establishing relevance in light of the abatement where agency demands have been met and where 26 trial courts do not insist upon absolutes. This malces plaintiffs' evidence irrelevant. Relevance must 27 be established before presenting the challenged evidence at trial. (Cal. Evid. Code § 350 ("No 28 evidence is admissible except relevant evidence").) -9- DEFENDANTS' REPLY TO PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION IN LIMINE NO. 13 1 Plaintiffs' contention also conflicts with Casey, which holds that evidence of unrecoverable 2 damages is irrelevant and properly excluded. (Casey, supra, 74 Cal.App.4th at 123.) Plaintiffs have 3 provided no explanation as to why Casey should be disavowed, or why the guidance provided by the 4 practice guide (which also cites to Casey) should be rejected. Applying Casey's holding here with 5 the applicable CACI, showing that plaintiffs' evidence of diminution in value damages is 6 inadmissible, will advance this matter since certain issues will become moot. For instance, double 7 recovery will no longer be an issue, as to plaintiffs' obtaining the benefit of having their property 8 repaired while simultaneously seeking diminution in value damages. Plaintiffs concede they have 9 been in their property for over four (4) years now without objection. Defendants produced records 1o showing the (paid) repair costs, which were admitted at the prior proceeding. (Defendants' RJN, 11 Exs. 2, 3, and 5.) The repairs resulted in San Mateo County issuing a no further action letter in this 12 matter, to which no party objected when afforded the opportunity to do so. As an accompaniment 13 to that letter, San Mateo County published the Case Closure Memorandum, which was also admitted 14 into evidence at the prior proceeding (Id ) without objection by plaintiffs (Id., at Ex. 2, p. 122:19- 15 22). 16 III. CONCLUSION 17 Based on the foregoing, defendants request the Court to grant defendants' motion in limine 18 No. 13 to exclude plaintiffs' permanent nuisance damages and related claims. 19 20 DATED: February 13, 2023 MICHAELIS, MONTANARI & JOHNSON 21 22 23 SAC AERO 24 25 26 N:\17517\pld\trial\Trial - May 202J\p-mt.liminc.caci3903F.reply. l.wpd 27 28 -10- DEFENDANTS' REPLY TO PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION IN LIMINE NO. 13 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 Tenace Dr. #100, Westlake 5 Village, California 913 61 . 6 On February 13, 2023 , I served the foregoing document described as DEFENDANTS' REPLY TO PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION IN LIMINE NO. 7 13 TO EXCLUDE PERMANENT NUISANCE DAMAGES on the interested parties in this action by placing a true copy thereof in a sealed envelope with postage thereon fully prepaid in the 8 United 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 fim1 ' 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 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 perjury under the laws of the State of California that the foregoing is true and con ect. 24 25 26 -Barbara Hca~ssmann:P~alegal, CCLS 27 California Certified Legal Secretary 28