Document for BRYAN TRUJILLO, et al vs. STEPHEN MAGEE, et al

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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 FL YING CLUB, INC.
    6

    7

    8                       SUPERIOR COURT OF THE STATE OF CALIFORNIA
    9                                      COUNTY OF SAN MATEO
10

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            BRYAN TRUJILLO and CINDY                      )   Case No.: 18CIV01901
12
            TRUJILLO,                                     )   Honorable Nancy L. Fineman; Dept. 4
                                                          )
13                      Plaintiffs,                       )   DEFENDANTS'SUPPLEMENTAL
                                                          )   TRIAL BRIEF, PHASE TWO RE
14               vs.                                      )   STANDARD OF ABATEMENT
                                                          )
15                                                        )
            STEPHEN MAGEE, SAC AERO FLYING                )
16          CLUB, INC. and DOES 1 - 50,                   ) Complaint filed: April 17, 2018
                                                          ) Trial Date:      October 11-13, 2023
17                      Defendants.                       )
                                                          )
18
19      TO THE COURT, ALL PARTIES, AND THEIR COUNSEL OF RECORD:

2o              Defendants STEPHEN MAGEE ("MAGEE") and SAC AERO FL YING CLUB ("SAC

21      AERO") (collectively, "defendants") hereby submit their supplemental trial brief to assist the Court

22      in the second phase of the bifurcated trial, pertaining to plaintiffs BRYAN TRUJILLO' sand CINDY

23      TRUJILLO's (collectively, "plaintiffs") nuisance claim. The Court, sitting as trier of fact, will
24      determine whether the nuisance here is continuing or permanent.

25              Case law holds the following as to a continuing nuisance determination:

26      •       "If Unocal could abate the contamination, then the injury was continuing as opposed to

27              permanent. As a result, Plaintiffs would not be entitled to recover damages for the

2   s           diminished value of their property." (Holdgrafer v. Unocal Corp. (2008) 160 Cal.App.4th

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              DEFENDANTS' SUPPLEMENTAL TRIAL BRIEF, PHASE TWO RE STANDARD OF ABATEMENT
 1         907, 926 ("Holdgrafer"), citing Santa Fe Partnership v. ARCO Products Co. (1996) 46

 2         Cal.App.4th 967, 968-969 ("Santa Fe").)

 3   •     "Cleaning up contamination to a level acceptable to or ordered by a governmental agency

 4         may suffice to establish that a trespass or nuisance is abatable and therefore continuing."

 5         (Holdgrafer, supra, 160 Cal.App.4th907, 926-927, citingManginiv. Aerojet-General Corp.

 6         (1996) 12 Cal.4th 1087, 1102 ("Mangini"), quoting Capogeannis v. Superior Court (1993)

 7         12 Cal.App.4th 668, 683 ('"We are satisfied to presume that cleanup standards set by

 8         responsible public agencies sufficiently reflect expert appraisal of the best that can be done

 9         to abate contamination in particular cases."').)

10   •     Carson Harbor Vil!., Ltd v. Unocal Corp. (C.D.Cal. Aug. 8, 2003) 2003 U.S.Dist.LEXIS

11         14482 ("Carson") is an annotated case in the California nuisance statute. (See, Cal. Civ.

12         Code§ 3479, Notes to Decisions, if 23: Nuisance Acts: Pollution.)

13         Carson was a matter where partial summary judgment was granted, finding a continuing

14         nuisance based on a closure report.

15         "Carson Harbor contends that, despite its remediation efforts, lead remains present at the site,
           and thus injury to the property is permanent. In any event, it asserts, 'whether contamination
16         is a permanent or continuing nuisance is generally a question of fact' (Citation), and the
           evidence it has adduced raises a triable issue as to whether a permanent nuisance exists.
17
           The evidence in the record does not substantiate Carson Harbor's claim. The RWQCB issued
18         a clean closure report on October 18, 1995, which stated that all appropriate remedial
           measures had been taken. Carson Harbor has not presented admissible evidence that a
19         sufficient degree of contamination presently remains at the site that it constitutes a permanent
           nuisance, or that the remediation did not completely halt any diminution in value the property
20         might otherwise have suffered. Given this absence of evidence, the court cannot find that
           Carson Harbor has raised a triable issue of fact regarding the existence of a continuing
21         nuisance on the property. Accordingly, the court grants the Partnership Defendants' motion
           for partial summary judgment on Carson Harbor's claim for diminution in value damages
22         under a permanent nuisance theory."

23         (Carson, supra, 2003 U.S.Dist.LEXIS 14482, at *231-233.)

24   •     The footnote in Carson also indicates that evidence of remaining contamination does not

25         raise a triable issue of material fact in light of the RWQCB's consideration and closure

26         issuance, where a claim of remaining contamination is not substantial evidence. (Carson,

27         supra, 2003 U.S.Dist.LEXIS 14482, at *232, fn. 289.)

28   •     "We accept the general proposition that something less than total decontamination may

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         DEFENDANTS' SUPPLEMENTAL TRIAL BRIEF, PHASE TWO RE STANDARD OF ABATEMENT
 1              suffice to show abatability." (Mangini, supra, 12 Cal.4th at 1098.)

 2              Based on the above authority, defendants contend that the standard for determining a
 3   continuing nuisance is whether it is abatable, which is "the test most often stated in contamination

 4   cases, that is, whether the nuisance can be abated at any time." (Beck Development Co. v. Southern
 5   Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1219.)

 6              Contrary to the statement of Mr. DeWitt, abatement does not require removing residual

 7   contamination, if any, with "certainty." Demolishing the house to allegedly achieve "certainty" is
 B   not substantial evidence.

 9

10   DATED: October 11, 2023                                                        MICHAELIS, MONTANARJ & JOHNSON

11                                                                                                 <),     ,
12                                                                      By: _ _     G~ARR=Y~~:~~lb'
13                                                                                           Del~a::iiSSTEPHEN
                                                                                    Attorneys for               MAGEE
                                                                                    and SAC AERO FLYING CLUB, INC.
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           DEFENDANTS' SUPPLEMENTAL TRIAL BRIEF, PHASE TWO RE STANDARD OF ABATEMENT
Barbara Haussmann


From: John H. Moon
Sent: We.dnesday, October 11, 2023 9:43 PM
To: nflnernan@sanmateocourt.org; Dept4 
Cc: Garry l.Montanari; Michael Smith ; Mike Danko

Subject: Defendants' Supplemental Brief

Dear Judge Fineman:

Please find defendants' supplemental brief. Thank you.

John H. Moon
Michael ls, Montanari & Johnson
4333 Patk Terrace Drive, Suite 100
Westlake Village, CA 91361
www.mmilaw.net

This e~mall and any attachments are confidentlal and also may be privtleged. If you are not_ the named recipient, or have otherwise received this
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                                                                           1
1                                           PROOF OF SERVICE

2    STA TE 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 withjn action; my business address is 4333 Park Te1Tace Dr. # 100, Westlake
5    Village, California 9136 1.

 6        On November 3, 2023, I served the foregoing document described as DEFENDANTS'
     SUPPLEMENTAL TRIAL BRIEF, PHASE TWO RE ST AND ARD OF ABATEMENT on the
 7   interested parties in this action by plac ing a true copy thereof in a sealed envelope with postage
     thereon fully prepaid in the United States mail at Westlake Village, California, addressed as follows:
 8

 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   Emrul: mdanko@dankolaw.com; msmith@.dankolaw.com

13   []      (MAIL) I deposited such envelope addressed in the mail at Westlake V illage, California.
     The envelope was ma iled 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 and agreement with counsel.

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   fam iliar" with firm 's practice of collection and processing correspondence for mailing with Federal
     Express. It is deposited with the Westlake Vi llage 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 November 3, 2023 at Westlake Village, California.

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                                                             Bal-ladb«a ~
                                                             Barbara Haussmann, Paralegal/CCLS
                                                             California Certified Legal Secretary
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