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GARRY L. MONTANARI,
WESLEY S. WENIG,
State Bar N0.
State Bar N0.
MICHAELIS, MONTANARI & JOHNSON, P.C.
4333 Park Terrace Dr. #1 10
Westlake Village, CA 91 361
Telephone N0.:
Attorneys for Defendants,
and
(8 1 8) 865-0444
SAC AERO FLYING CLUB, INC.
STEPHEN MAGEE
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY 0F SAN MATEO
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BRYAN TRUJILLO and CINDY Case N0.: 18CIV01901
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TRUJILLO,
NOTICE OF MOTION AND MOTION
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Plaintiffs, FOR SUMMARY JUDGMENT
AGAINST PLAINTIFFS AND
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VS. PLAINTIFFS— IN—INTERVENTION;
MEMORANDUM OF POINTS AND
15 AUTHORITIES IN SUPPORT -
STEPHEN MAGEE, SAC AERO FLYING THEREOF
CLUB, INC. and DOES 1 -
50, [Filed separately but concurrently
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herewith:
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Defendants. 1. Separate Statement 0f Undisputed
Material Facts;
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ALLIED PROPERTY AND CASUALTY 2. Declaration of Wesley S. Wenig and
INSURANCE COMPANY; AMCO Exhibits .
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INSURANCE COMPANY, 3. Request for Judicial Notice]
20 Plaintiffs~in—Interventi0n, Date: October 7, 2019
Time: 9:00 a.m.
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VS. Dept: Law and Motion
22 Complaint filed: April 17, 20 1 8
STEPHEN MAGEE, SAC AERO FLYING Trial Date: November 4, 20 1 9
23 CLUB, INC; AND DOES 1 -
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Defendants.
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26 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
2'7 PLEASE TAKE NOTICE that on October 7, 2019 at 9:00 a.m., 0r soon thereafter as the
28 matter may be heard in the Law and Motion Department 0f the above—entitled Court located at 400
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NT 0F MOTION AND MOTION FOR SUN[MARY IUDGMENT; MEMO OF POINTS AND AUTHORITIES
County Center, Redwood City, CA 94063, defendants STEPHEN MAGEE and SAC AERO
FLYING CLUB, INC. will and hereby do move this Court for summary judgment in their favor and
against plaintiffs BRYAN TRUJILLO and CINDY TRUJILLO and plaintiffs-in-intervention,
ALLIED PROPERTY AND CASUALTY INSURANCE COMPANY; AMCO INSURANCE
COMPANY, pursuant to Code of Civil Procedure section 43 7c on the following grounds:
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1. The first causes ofaction ofplaintiffs and plaintiffs-in—intervention for negligence are
barred because there isn0 negligence liability 0f a pilot for unforeseen, sudden changes in weather
and the doctrine of imminent péril prohibits a determination of negligence in this action;
2. The second causes of action 0f plaintiffs and plaintifTs—in-intervention for trespass
lO are barred because there is 110evidence that defendant STEPHEN MAGEE engaged in conduct that
ll was intentional, reckless, 01' as a result 0f an extra—hazardous activity and, furthermore, as t0 alleged
12 negligent tre spass, because there is n0 liability 0f a pilot for unfores een, sudden changes in weather,
l3 and the doctrine 0f imminent peril applies, a determination of negligence is prohibited in this action;
14: 3. The third causes 0f action 0f plaintiffs and plaintiffs-in—intervention for private
15 nuisance are barred because there is n0 evidence that STEPHEN MAGEE engaged in conduct that
l6 was intentional or reckless and, as to negligence, because there is 110 liability 0f a pilot for
l7 unforeseen, sudden changes in weather, and the doctrine of imminent peril applies, a determination
18 0f negligence isprohibited in this action;
l9 4. The fourth causes 0f action 0f plaintiffs and p1aintiffs—in—intervention for owner
20 liability for permissive use are barred because they are based 011 the Vicarious liability 0f SAC A-ERO
21 FLYING CLUB, INC. for the actions 0f defendant STEPHEN MAGEE and there is'
n0 underlying
22 liability of defendant STEPHEN MAGEE.
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NT OF MOTION AND MOTION FOR SUMNIARY JUDGMENT; MEMO OF POINTS AND AUTI-IORITIES—HH'
This motion is based on this Notice, the attached Membrandum 0f Points and Authorities,
the Separate Statement ofUndisputed Material Facts submitted herewith, the Declaration 0f Wesley
S(Wenig and Exhibits, the Request for Judicial Notice, all files and records of this case, and upon.
any oral argument that may be presented at the hearing.
DATED: July 19, 2019 MICHAELIS, MONTANARI & JOHNSON
(
By: .
WESLEY S. WENIG '
v”
Attorneys for Defendants .
STEPHEN MAGEE and SAC AERO
lO FLYING CLUB, INC.
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NT 0F MOTION AND MOTION FOR SWARY JUDGMENT; WMO OF POINTS AND AUTHORITIES
TABLE 0F CONTENTS
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I. INTRODUCTION ....................................................... 6
II. STATEMENT 0F FACTS .................. ..... ,......................... 7
LEGAL ARGUMENT
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III. ........................ ........................... 10
'A.
SUMMARY JUDGMENT IS APPROPRIATE WHEN THERE IS A COMPLETE
DEFENSE TO A CAUSE 0F ACTION ............................... 10
B. THE NECES SARY ELEMENT OF NEGLIGENCE CANNOT BE ESTABLISHED
BY PLAINTIFFS AND PLAINTIFFS—IN—INTERVENTION
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lO IV. C0NCLUSION...........- ................................. ............ 16
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NT OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMO OF POINTS AND AUTHORITIES
TABLE OF AUTHORITIES
Case
Egg
Buehler v. Afpha Beta C0. (1990) 224 Ca1.App.3d 729, 733 ........................... 11
Kohler AspenAz'rwayS, 17-1
v. Inc. (1985) Cal.App.3d 1193, 1201 ....................... 13 _
Lussz'er v. San Lorenzo Valiey Water Dist. (1988) 206 Ca1.App.3d 92, 100 ................ 12
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Perry v. Bakewezz'Hawrhome, LLC (2017) 2 Ca1.5th 536, 542 .................... ...... 10
San Diego Gas & Electric C0. v.Superior Court (1996) 13 Ca1.4th 893, 937 .............. 12
Sangster v. Paez‘kau (1998) 68 Cal.App.4th 151, 163 ....... _.
. .. ... ..
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Schuitz v. Mathias (1970) 3 Ca1.App.3d 904, 912—913 ................................ 14
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Staples v. Hoefke (1987) 189 Ca1.App.3d 1397, 1406 ......................... ........ 11
lO .CQ_D.E_S
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ll Code Civ. Proc. §437c(c) ............ ........................................... 10
.12 Code Civ. Proc. §437, subsection (p)(2) ........................................... 11
13 CACI 401 ................................................................... 11
14 'CACI 452 ................................................................... 14
15 14 CFR section 91.3(b) ............. .
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NT O'F MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMO OF POINTS AND AUTHORITIES
MEMORANDUM 0F POINTS AND AUTHORITIES
I. INTRODUCTION
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Genuine issues ofmaterial fact cannot be demonstrated When undisputed facts and applicable
law establish that a pilot cannot be liable based 0n a negligence theory when sudden unforeseen
changes in weather while the aircraft is on an approach t0 land at an airport cause an injury. This
is especially true when the doctrine 0f imminent peril applies and the pilot in the emergency took
the only course of action that a standard man in that emergency could have taken.
This lawsuit arises out of an aircraft accident which took place near the approach end 0f
Runway 12 atHalf M0 0n Bay Airport 0n Novemb er 18, 20 1 6. Defendant STEPHEN MAGEE was
10 piloting a single-engine aircraft owned by defendant SAC AERO FLYING CLUB, INC. (“SAC
ll AERO”) When he encountered wind shear turbulence while he was 0n approach for landing. The
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12 turbulence caused-a loss 0f control at 10w altitude and MAGEE made an emergency landing which
13 damaged the TRUJILLO plaintiffs’ property. Mr. MAGEE’S wife, a passenger in the aircraft,
14 suffered fatal injuries in the accident. Both plaintiffs BRYAN TRUJILLO and CINDY TRUJILLO
15 and plaintiffs~in—i11tervention ALLIED PROPERTY AND CASUALTY INSURANCE COMPANY
l6 and AMCO INSURANCE COMPANY have alleged four identical causes of action: 1.Negligence;
l7 2. Trespass; 3. Private Nuisance; 4. Owner liability for permissive use.
18 There is n0 evidence 0f conduct by pilot STEPHEN MAGEE that was intentional, reckless,
l9 0r the result of an extra—hazardous activity. Accordingly, the first three causes 0f actiofi alleged
20 against defendant STEPHEN MAGEE must be based 0n a negligence theory, which isbarred as
21 indicated above. There are no independent allegations 0f negligence against SAC AERO in. either
22 complaint, such as negligent entrustment 0r any other theory. Therefore, the fofirth cause of action
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against SAC AERO is based on the vicar'iO-us liability of the owner ofthe aircraft and if there is n0
24 underlying liability fornegligence 0f defendant MAGEE, there is n0 vicarious liability 0f defendant
25 SAC AERO.
26 Accordingly, plaintiffs” and plaintiffs-in-intervention’s claims against defendants in this
2'7 lawsuit are barred and the Court is requested to grant summary judgment in favor of STEPHEN
28 MAGEE and SAC AERO.
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NT OF MOTION AND MOTION FOR SUMMARY JUDGMENT; NIEMO 0F POINTS AND AUTHORITIES
II. STATEMENT OF FACTS
On November 18, 2016, STEPHEN MAGEE was a pilot involved in an aircraft accident
Which took place in Moss Beach, California while he was 0n final approach t0 land at Half Moon
Bay Airport (“HAF”). (See Separate Statement ofUndisputed Material Facts (“UMF”) No. 1.)The
aircraft MAGEE was piloting at the time 0f the accident was a single-engine, high Wing, fixed
landing gear, 4-seat Cessna 172N, FAA registration No. 66 1 0D (“accident aircraft”). (UMF 2.) The
accident aircraft was owned by SAC AERO FLYING CLUB, INC. (“SAC AERO”). (UMF 3.)
At the time of the accident, MAGEE held a private pilot certificate with ratings for airplane
single-engine land and instrument airplane, issued by the Federal Aviation Administration (“FAA”).
10 (UMF 4.) MAGEE had 1,145 total hours 0f flight experience, with 884 hours in the same aircraft
ll make and model he was flying at the time of the accident. (UMF 5.) MAGEE’S most recent flight
12 review before the accident was conducted 0n July 21, 2015, in the same make and model as the
l3 aircraft he was flyifig at the time 0fthe accident. (UMP 6.) At the time of the accident, MAGEE held
14 a third-class FAA medical certificate, issued as 0f April 15, 2O 1 5. (UMF 7.) Both MAGEE’S FAA
15 medical certificate and flight review requirements were current under the FAA’S regulations at the
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l6 time 0f the accident. (UMF 8.)
1'7 The Pilot Operating Handbook (P OH) for the accident aircraft estimates that the aircraft Will
18 stall between 31 knots calibrated air Speed (KCAS) and 40 KCAS, depending 0n the aircraft’s flap
19 position and bank angle. (UMF 9.) The accident aircraft’s POH recommends “a slightly higher
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approach speed under turbulent air conditions.” (UMF 10.) The POH for the accident aircraft states
21 that the degree t0 which the flaps should be extended during a cross—wind approach and landing vary
22 With the aircraft’s handling characteristics, as well as the wind velocity. (UMF 11.)
23 Before MAGEE headed to his home airport 0n the morning of the accident, he verified that
24 the forecast for Half Moon Bay Airport (HAF) that he had been obsefiing were accurate by using
25 ForeFlight. (UMF 12.) The METAR weather report forecasted clear W-eafller‘with winds from the
26 southeast. (UMF 13.) After takeoff, MAGEE climbed t0 4,500 feet mean sea lev'el (MSL) and‘the
27 cruise was smooth and clear. (UMF 14.) As MAGEE neared HAF, he radioed the I-IAF Common
28 Traffic Advisory Frequency (CTAF), stated his location and asked for traffic information. (UMP
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15 .) The response on the CTAF stated “winds from the southeast up to 15 knots and Runway'l 2 was
the last runway used.” (UMF 16,) The information in the CTAF rBSponse agreed with what
ForeFlight was reporting and at the time the sky was clear With visibility at approximately 10 miles.
(UMF 17.)
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As MAGEE crossed the HAF runway over the “1 2” numbers to enter the upwind leg 0f his
landing approach, the weather was clear and the air was smooth. (UMF 18.) As MAGEE continued
his descent 0n the crosswind and downwind legs 0f his approach, MAGEE did not encounter any
turbulencé. (UMF 19 .) After making his turn onto the final approach and having descended to about
500 feet MSL, MAGEE first felt very light turbulence. (UMF 20.) MAGEE was concerned that if
10 the turbulence continued during his approach, he would be vulnerable to strong buffeting at the
ll normal approach speed, leading t0 a rough landing. As a countermeasure, he elected t0 land at a
12 higher airspeed. (UMF 21.) MAGEE decreased his flaps to less than 20 degrees and applied
l3 additional pOWer t0 stay 0n the glide slope. (UMF 22.) Immediately after making these adjustments,
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l4 MAGEE felt strong turbulence Violently rock the aircraft. His wings dipped first to the left and then
l5 t0 the fight. Simultaneously, he felt a strong downdraft leaving the aircraft in a very steep right bank.
l6 (UMF 23 .)
1'7 MAGEE fought to level the wings and gain altitude by applying full power, slight back
18 pressure 0n the yoke and left aileron and left rudder, but nothing seemed t0 correct the descent and
l9 steep right bank 0fthe aircraft. (UMF 24 .) MAGEE knew that ifhe could not gain altitude he would
20 have t0 make an emergency landing. (UMF 25.) The runway of HAF was out of his reach due to
21 his 10w altitude. (UMF 26.) He felt the banking wings of his aircraft beginning t0 correct, but he
22 noticed large trees come into view on his right and, wanting {0 avoid the trees, tried t0 drag his
23 aircraft tail into the ground. (UMF 27.)
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24 When MAGEE chécked weather forecasts before his flight t0 HAF, {here were n0 wind shear
25 warnings 0r reports. (UMF 28 .) When MAGEE radioed HAF CTAF as he prepared t0 make his final
26 approach, n0 wind shear reports 0r warnings were given before he commenced with his approach.
2'7 (UMF 29.) Wind shear conditions were not reported t0 MAGEE before the incident and he could
28 not independently make any 0b servation ofany condition which indicated the presence ofwind shear
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NT OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMO OF POINTS AND AUTHORITIES
at that time. (UMF 30.) The presence of wind shear was invisible to MAGEE at the time of the
accident. (UMF 3 1 .)When MAGEE encountered the wind shear downdraft, it created an unpredicted
emergency situation when MAGEE was only about 450 feet MSL and only seconds clap sed between
the loss of control and the time 0fthe forced landing. (UMF 32.) MAGEE’ s Unexpected encounter
With wind shear occurred too 10w on the glide path t0 complete his attempts t0 make a recovery.
(UMF 3 3 .)
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FAA Advisory Circular 00-6B(AC-00-06B), section 17.2.3.1, describes how areas near
temperature inversions are favored for wind shear conditions. The AC advises that “strong wind
shears often occur across temperature inversion layers, Which can generate turbulence.” (UMF 34.)
10 Strong wind shear at 10w altitude prevents a recovery by the pilot. (UMF 35.)
ll At the time and location 0f the subj ect aircraft accident, meteorological data correctly
12 supports the 1 100 PST HRRR sounding indicating an unstable layer 0f air between the surface and
l3 335 feet with a conditionally unstable layer between 33S and 611 feet. (UMF 36.) '11:
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.14 meteorolo gically correct that with the rise in terrain west and southwest 0fthe airp ort (HAF) by 100
15 to 200' feet and a stable layer 0f air at 0r above 611 feet that any wind traveling over the terrain
16 would have allowed for the creation of an environment favorable for updrafts and downdrafts with
l7 a strength 0f 100 to 200 feet per minute. (UMF 37.)
18 . The meteorological data from the 1200 PST HRRR sounding correctly supports the
l9 conclusion that there was an unstable layer of air between the surface and 363 feet with a
20 c'onditionally unstable layer between 363 feet and 611 feet. (UMF 38.) With reSpect to the 1200
21 PST HRRR sounding, just like in the 1100 PST HRRR sounding, with the rise in terrain west and
22 southwest 0f the airport by 100 t0 200 feet and the stable layer of air at 0r above 61 1 feet,any wind
23 traveling over the terrain would have allowed for the creation 0f an environment favorable for
24 updrafts and domdrafts with a strength 0f 100 t0 200 feet per minute. (UMF 39.)
25 The data from the 1200 PST HRRR sounding supports the existence of 10w level wind Shear
26 below 500 feet at the time and location ofthe subject aircraft accident. (UMF 40.)
'27 Both the 1100 PST HRRR sounding and the 1200 PST HRRR sounding show that clear air
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28 turbulence was present at the site 0fthe subj ect aircraft accident. (UMF 4 1 .)The 1200 PST HRRR
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sounding shows clear airturbulence present at a_lower level than the 1100 PST HRRR sounding.
These findings suggest that during this hour the clear air turbulence was increasing at lower levels.
(UMF 42.)
The meteorological data supports a conclusion t0 a reasonable degree of meteorological
certainty that “a weak temperature inversion was present near the accident site at the accident time
between 400 and 600 feet MSL (Figures 11 and 12) at 1100 and 1200 PST When the vertical
enviroifiment changed from an unstable layer t0 a stable layer. The stable layer trapped any updrafts
0r downdrafts created by the wind flowing over the rise in the terrain t0 the west and southwest of
the airport. These environmental changes created an environment favorable for 10W level Wind shear
10 and turbulence below 600 feet MSL.” (UMF 43.) To a reasonable degree of meteorological
ll certainty the conclusions from section 16.0 0f the NTSB Weather Study concerning the subject
12 accident are correct. (UMP 44.)
l3 Eyewitness accounts that are part ofthe NTSB’ s official investigation 0fthe subject accident
14 show that from about 10 minutes t0 45 minutes after the time 0f the subj ect accident three other
15 aircraft experienced turbulent conditions while 0n final approach and within the area where Mr.
16 MAGEE most likely experienced the inflight upset. (UMF 45.) The eyewitness information
l7 provides visual corroboration 0fturbulence consistent With the meteorological n10 deling identifying
18 the presence of turbulence at the time and location ofithe subj ect accident. (UMF 46.)
l9 III. LEGAL ARGUMENT
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20 A. SUMMARY JUDGMENT IS APPROPRIATE WHEN THERE IS A COMPLETE
21 DEFENSE TO A CAUSE 0F ACTION
'22 Summary judgment is a “particularly suitable means t0 test the sufficiency” 0f a plaintiff s
23 case. (Perry v. Bakewell Hawthorne, LLC (2017) 2 CaLSth 536, 542.) Its purpose is t0 “provide
24 courts with a mechanism t0 cut through the parties” pleadings in order to determine whether, despite
25 their allegations, trial is in fact necessary t0 resolve their dispute.” (Id, emphasis added.)
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A trial court may properly grant summary judgment when there are n0 triable issues 0f
2'7 material fact and the moving party is entitled t0 judgment as a matter 0f law. (Code Civ. Proc.
28 §43 70(0).) A cause 0f action has n0 merit if one or more of the elements 0f the cause. 0f action
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NT OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMO OF POINTS AND AUTHORITIES
cannot be separately established, even ifthat element is separately pleaded. Under subsection (p)(2),
once a defendant shows that one or more elements of a cause 0f action cannot be established, or that
thére is a complete defense t0 that cause 0f action, the burden shifts f0 the plaintiff t0 show that a
triable issue 0f material fact exists. An opposition t0 Summary judgment is insufficient when “it is
essentially conclusory, argumentative 0r based 0n conj ecture or speculation.” (Buehier v. Alpha Beta
Co. (1 990) 224 Ca1.App.3d 729, 733.) T0 establish a triable issue of material fact, the party
opposing summary judgment must produce “substantial” responsive evidence. (Sangster v.
Paetkau (1998) 68 Cal.App.4th 151, 163-.)
Each 0f plaintiffs and plaintiffs-in—intervention’s causes of action are based on theories 0f
10 negligence. Defendants contend, among other things, that liability 0n a negligence theory cannot be
ll established against a pilot when an injury arises from unforeseen, sudden changes in weather.
12 Furthermore, the doctrifie of imminefit peril applies and there is 110 factual dispute that pilot MAGEE
13 did in fact take a course of action that' a standard man in that emergency might have taken.
l4 Accordingly, the Court is requestéd to grant summary judgment in favor of defendants.
15 B. THE NECESSARY ELEMENT 0F NEGLIGENCE CANNOT BE ESTABLISHED
l6 BY PLAINTIFFS AND PLAINTIFFS—IN—INTERVENTION
1'7 The complaints 0f plaintiffs and. plaintiffs-in—intervention allege four identical causes of
18 action for (1) negligence; (2) trespass; (3) prifiate nuisance and (4) owner liability for permissive use.
l9 The first causes 0f action for negligence are alleged only against pilot STEPHEN MAGEE, alleging, .
20 in essence, pilot error. A person is negligent ifhe does something that a reasonably careful person
21 would not d0 in the same situation 0r fails t0 do something that a reasonably careful person would
22 d0 in the same situation. (CACI 401 .)
23 The second causes of action for trespasses are also alleged only against pilot STEPHEN
24 MAGEE. Liability for trespass is not “strict liability.” Liability may be impOsed for conduct that
25 is intentional, reckless, negligent, 0r the result 0f an exfra—hazardous activity. (Stapies v. Hoefke
26 (1987) 189 Ca1.App.3d 1397, 1406.) In this case, there is absolutely n0 evidence which would
2'7 support trespass based upon an intentional or reckless act or extra—hazardous activity. Accordingly,
28 plaintiffs will have t0 attempt t0 satisfy the elements 0ftrespass by showing that pilot MAGEE was
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negligent.
The third causes of action for private nuisance are also alleged only against pilot MAGEE.
Privaté nuisance depends on some sort 0f conduct by the defendant that either directly and
unreasonably interferes with the plaintiffs” property 0r creates a condition that does so. (Lussz’er v.
San Lorenzo Valley Water Dist. (1 988) 206 Cal.App.3d 92, 100.) “In distinction to trespass, liability
for nuisance does not require proof of damage t0 the plaintiff s property; proof 0f interference with
the plaintiff’s use and enj oynient of that property is sufficient.” (San Diego Gas & Electric Co. v.
Superior Court (1996) 13 Cal.4th 893, 937.) Plaintiffs’ private nuisance cause 0f action is based in
large part 0n the spill, leak, release andfor migration 0f hazardous substances as a result 0f the
10 aircraft accident and the subsequent mitigation efforts which temporarily displaced plaintiffs from
11 their home. The act that causes the interference with the plaintiffs’ property may be unintentional
l2 but caused by negligent 0r reckless conduct, just like trespass. (Lussz'er, supra, 206 Ca1.App.3d at
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l3 100.) Because there is n0 intentional or reckless conduct by MAGEE, plaintiffs and plaintiffs-in-
14 intervention must establish this cause of action based 0n a negligence theory. .
15 The fourth causes 0f action for owner liability for permissive use were only alleged against
l6 defendant SAC AERO. The fourth causes 0f aCtion d0 not contain any allegations 0f independent
l7 negligence 0f SAC AERO, such as negligent entrustment. The fact that n0 separate cause of action
18 for negligence, 01"any other theory ofliability isbeing alleged against SAC AERO, indicates that
19 plaintiffs and p1aintiffs—in—intervention are only alleging a vicarious liability theory against it. In any
20 event, the undisputed facts and eVidence submitted herewith demonstrate as a matter 0f law that
21 there was n0 negligent entrustment and that pilot MAGEE was very experienced in the make and
22 model of the subj ect aircraft and was current with respect to his qualifications and experience.
23 The Final Report of the National Transportation Safety Board (NTSB) indicates that this
24: accident was due t0 10w level wind shear and turbulence during pilot MAGEE’ s final approach for
25 landing. (See Request for Judicial Notice, N0. 4.) This is supported by the NTSB’s Weather Study
thii's
26 pérformed during its ifivestigation 0f accident and by the findings and opinions 0f Certified
Consulting Meteorologist, James K. Purpura. Mr. MAGEE’S own testimony shows that the was
28 trained, exp erienced and prepared with the make and mo del aircraft he was flying and meticulously
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prepared for landing at HAP before and during the flight by seeking out and confirming weather
.reports. Specifically, he began preparation for his flight that day by researching weather forecasts
and obtaining weather briefings before he ever left home. The METAR weather reports forecasted
clear weather with winds from the southeast. There was no forecast of potential Wind shear or
turbulence. Before .Mr. MAGEE made his final approach to land at the Half Moon Bay Airport, he
radioed the Half Moon Bay Airport’s Common Traffic Advisory Frequency (CTAF) and the
response did not include any reports 0r warnings ofturbulence or wind shear. Additionally, the wind
shear conditions on approach to Half Moon Bay Airport were completely invisible when pilot
MAGEE commenced his approach. Thus, When Mr. MAGEE encountered wind shear and lost
10 control 0f his aircraft at 10w altitude, the cause ofhis forced landing was sudden, unexpected weather
ll conditions which were not forecast nor reasonably foreseeable to Mr. MAGEE.
12 Case law holds that with respect t0 the operation of an aircraft, thefe is n0 liability for
l3 unforeseen, sudden changes in weather:
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l4 Sudden changes in meteorological conditions I.Which cause the
15 atmosphere to be disturbed, t0 Become choppy and rough and its
16 motion irregular, whether referred t0 as turbulence 0r by any other
l7 nomenclature, cannot be anticipated or avoided. The lurching,
18 dipping 0r bumping of an aircraft when such sudden unexpected air
l9 currents are suddenly encountered certainly d0 not spell out
20 negligence 0n the part 0fthe plane” s operator. (Sanchez v. American
21 Airlines (1981) 106 Misc.2d 1010, 1013-14 [436 N.Y.D.2d 824])”
22 (Kohler v.Aspen Airways, Inc. (1985) 171 Ca1.App.3d 1193, 1201.)
23 The undiSputed facts which establish that this aircraft accident was caused by an unforeseen,
24 sudden change in weather also support a complete defense under the doctrine 0f imminent peril.
25 This doctrine provides that a defendant may show that he was not negligent became he acted with
26 reasonable care in an emergency situation. It Will be determined that he was not negligent ifhe
2'7 proves all 0f the following:
28 1. That there was a sudden and unexpected emergency situation in which someone was
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in actual or apparent danger 0f immediate injury;
2. That he did not cause the emergency; and
3. That he acted as a reasonable careful person would have acted in similar
circumstances, évgn if it appears later that a different course 0f action would have been safer.
(CACI 452 -
Sudden Emergency.)
The exigent nature 0f the circumstances effectively lowers the standard 0f care: “‘The test
is whether the actor took one of the courses 0f action in which a stande man in that emergency
might have taken, find such a course is not negligent even though it led t0 an injury which might have
been plievented by adopting an alternative course 0f action.’ ..
.”. (Schultz v. Mathias (1970) 3
10 Ca1.App.3d 904, 912-913.) In this casé, the undisputed facts regarding the unforeseen, sudden
11 change in weather conditions, i.e.,turbulence caused by 10w level wind shear, establish the first
12 element. This was a sudden, unexpected event. MAGEE sought weather information at H
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GARRY L. MONTANARI, WESLEY S. WENIG, State Bar N0. State Bar N0. MICHAELIS, MONTANARI & JOHNSON, P.C. 4333 Park Terrace Dr. #1 10 Westlake Village, CA 91 361 Telephone N0.: Attorneys for Defendants, and (8 1 8) 865-0444 SAC AERO FLYING CLUB, INC. STEPHEN MAGEE 162351 89790 um BfW Electmnitally hyEuumcumunm-nmcnuwu 5.“ 1mm. 7/ 1 9/201 9 Drpml-flflk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY 0F SAN MATEO 10 ll BRYAN TRUJILLO and CINDY Case N0.: 18CIV01901 12 TRUJILLO, NOTICE OF MOTION AND MOTION l3 Plaintiffs, FOR SUMMARY JUDGMENT AGAINST PLAINTIFFS AND l4: ' VS. PLAINTIFFS— IN—INTERVENTION; MEMORANDUM OF POINTS AND 15 AUTHORITIES IN SUPPORT - STEPHEN MAGEE, SAC AERO FLYING THEREOF CLUB, INC. and DOES 1 - 50, [Filed separately but concurrently l6 herewith: 1'7 Defendants. 1. Separate Statement 0f Undisputed Material Facts; 18 ALLIED PROPERTY AND CASUALTY 2. Declaration of Wesley S. Wenig and INSURANCE COMPANY; AMCO Exhibits . 19 INSURANCE COMPANY, 3. Request for Judicial Notice] 20 Plaintiffs~in—Interventi0n, Date: October 7, 2019 Time: 9:00 a.m. 21 VS. Dept: Law and Motion 22 Complaint filed: April 17, 20 1 8 STEPHEN MAGEE, SAC AERO FLYING Trial Date: November 4, 20 1 9 23 CLUB, INC; AND DOES 1 - 20, Defendants. 24 25 26 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 2'7 PLEASE TAKE NOTICE that on October 7, 2019 at 9:00 a.m., 0r soon thereafter as the 28 matter may be heard in the Law and Motion Department 0f the above—entitled Court located at 400 _1_ NT 0F MOTION AND MOTION FOR SUN[MARY IUDGMENT; MEMO OF POINTS AND AUTHORITIES County Center, Redwood City, CA 94063, defendants STEPHEN MAGEE and SAC AERO FLYING CLUB, INC. will and hereby do move this Court for summary judgment in their favor and against plaintiffs BRYAN TRUJILLO and CINDY TRUJILLO and plaintiffs-in-intervention, ALLIED PROPERTY AND CASUALTY INSURANCE COMPANY; AMCO INSURANCE COMPANY, pursuant to Code of Civil Procedure section 43 7c on the following grounds: ' 1. The first causes ofaction ofplaintiffs and plaintiffs-in—intervention for negligence are barred because there isn0 negligence liability 0f a pilot for unforeseen, sudden changes in weather and the doctrine of imminent péril prohibits a determination of negligence in this action; 2. The second causes of action 0f plaintiffs and plaintifTs—in-intervention for trespass lO are barred because there is 110evidence that defendant STEPHEN MAGEE engaged in conduct that ll was intentional, reckless, 01' as a result 0f an extra—hazardous activity and, furthermore, as t0 alleged 12 negligent tre spass, because there is n0 liability 0f a pilot for unfores een, sudden changes in weather, l3 and the doctrine 0f imminent peril applies, a determination of negligence is prohibited in this action; 14: 3. The third causes 0f action 0f plaintiffs and plaintiffs-in—intervention for private 15 nuisance are barred because there is n0 evidence that STEPHEN MAGEE engaged in conduct that l6 was intentional or reckless and, as to negligence, because there is 110 liability 0f a pilot for l7 unforeseen, sudden changes in weather, and the doctrine of imminent peril applies, a determination 18 0f negligence isprohibited in this action; l9 4. The fourth causes 0f action 0f plaintiffs and p1aintiffs—in—intervention for owner 20 liability for permissive use are barred because they are based 011 the Vicarious liability 0f SAC A-ERO 21 FLYING CLUB, INC. for the actions 0f defendant STEPHEN MAGEE and there is' n0 underlying 22 liability of defendant STEPHEN MAGEE. 23 f I / 24 / f / 25 JH 26 HI 2'7 H! 28 H/' -2- NT OF MOTION AND MOTION FOR SUMNIARY JUDGMENT; MEMO OF POINTS AND AUTI-IORITIES—HH' This motion is based on this Notice, the attached Membrandum 0f Points and Authorities, the Separate Statement ofUndisputed Material Facts submitted herewith, the Declaration 0f Wesley S(Wenig and Exhibits, the Request for Judicial Notice, all files and records of this case, and upon. any oral argument that may be presented at the hearing. DATED: July 19, 2019 MICHAELIS, MONTANARI & JOHNSON ( By: . WESLEY S. WENIG ' v” Attorneys for Defendants . STEPHEN MAGEE and SAC AERO lO FLYING CLUB, INC. ll N:\1 75 17\p1d\msj\p—msj. 1b.wpd 12 13 l4 15 16 1'7 18 l9 2O 21 22 23 24 25 26 2'7 28 -3- NT 0F MOTION AND MOTION FOR SWARY JUDGMENT; WMO OF POINTS AND AUTHORITIES TABLE 0F CONTENTS - Egg I. INTRODUCTION ....................................................... 6 II. STATEMENT 0F FACTS .................. ..... ,......................... 7 LEGAL ARGUMENT ' III. ........................ ........................... 10 'A. SUMMARY JUDGMENT IS APPROPRIATE WHEN THERE IS A COMPLETE DEFENSE TO A CAUSE 0F ACTION ............................... 10 B. THE NECES SARY ELEMENT OF NEGLIGENCE CANNOT BE ESTABLISHED BY PLAINTIFFS AND PLAINTIFFS—IN—INTERVENTION ' .............. 1 1 ' lO IV. C0NCLUSION...........- ................................. ............ 16 ll 12 13 l4 15 l6 l7 18 l9 20 21 22 23 24 25 26 27 28 -4- NT OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMO OF POINTS AND AUTHORITIES TABLE OF AUTHORITIES Case Egg Buehler v. Afpha Beta C0. (1990) 224 Ca1.App.3d 729, 733 ........................... 11 Kohler AspenAz'rwayS, 17-1 v. Inc. (1985) Cal.App.3d 1193, 1201 ....................... 13 _ Lussz'er v. San Lorenzo Valiey Water Dist. (1988) 206 Ca1.App.3d 92, 100 ................ 12 ' Perry v. Bakewezz'Hawrhome, LLC (2017) 2 Ca1.5th 536, 542 .................... ...... 10 San Diego Gas & Electric C0. v.Superior Court (1996) 13 Ca1.4th 893, 937 .............. 12 Sangster v. Paez‘kau (1998) 68 Cal.App.4th 151, 163 ....... _. . .. ... .. .- ................ 11 Schuitz v. Mathias (1970) 3 Ca1.App.3d 904, 912—913 ................................ 14 I Staples v. Hoefke (1987) 189 Ca1.App.3d 1397, 1406 ......................... ........ 11 lO .CQ_D.E_S I ll Code Civ. Proc. §437c(c) ............ ........................................... 10 .12 Code Civ. Proc. §437, subsection (p)(2) ........................................... 11 13 CACI 401 ................................................................... 11 14 'CACI 452 ................................................................... 14 15 14 CFR section 91.3(b) ............. . ........................................... 15 16 1'7 18 19 20 21 22 23 24 25 26 2’7 28 -5- NT O'F MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMO OF POINTS AND AUTHORITIES MEMORANDUM 0F POINTS AND AUTHORITIES I. INTRODUCTION - Genuine issues ofmaterial fact cannot be demonstrated When undisputed facts and applicable law establish that a pilot cannot be liable based 0n a negligence theory when sudden unforeseen changes in weather while the aircraft is on an approach t0 land at an airport cause an injury. This is especially true when the doctrine 0f imminent peril applies and the pilot in the emergency took the only course of action that a standard man in that emergency could have taken. This lawsuit arises out of an aircraft accident which took place near the approach end 0f Runway 12 atHalf M0 0n Bay Airport 0n Novemb er 18, 20 1 6. Defendant STEPHEN MAGEE was 10 piloting a single-engine aircraft owned by defendant SAC AERO FLYING CLUB, INC. (“SAC ll AERO”) When he encountered wind shear turbulence while he was 0n approach for landing. The ‘ 12 turbulence caused-a loss 0f control at 10w altitude and MAGEE made an emergency landing which 13 damaged the TRUJILLO plaintiffs’ property. Mr. MAGEE’S wife, a passenger in the aircraft, 14 suffered fatal injuries in the accident. Both plaintiffs BRYAN TRUJILLO and CINDY TRUJILLO 15 and plaintiffs~in—i11tervention ALLIED PROPERTY AND CASUALTY INSURANCE COMPANY l6 and AMCO INSURANCE COMPANY have alleged four identical causes of action: 1.Negligence; l7 2. Trespass; 3. Private Nuisance; 4. Owner liability for permissive use. 18 There is n0 evidence 0f conduct by pilot STEPHEN MAGEE that was intentional, reckless, l9 0r the result of an extra—hazardous activity. Accordingly, the first three causes 0f actiofi alleged 20 against defendant STEPHEN MAGEE must be based 0n a negligence theory, which isbarred as 21 indicated above. There are no independent allegations 0f negligence against SAC AERO in. either 22 complaint, such as negligent entrustment 0r any other theory. Therefore, the fofirth cause of action .23 against SAC AERO is based on the vicar'iO-us liability of the owner ofthe aircraft and if there is n0 24 underlying liability fornegligence 0f defendant MAGEE, there is n0 vicarious liability 0f defendant 25 SAC AERO. 26 Accordingly, plaintiffs” and plaintiffs-in-intervention’s claims against defendants in this 2'7 lawsuit are barred and the Court is requested to grant summary judgment in favor of STEPHEN 28 MAGEE and SAC AERO. -5. NT OF MOTION AND MOTION FOR SUMMARY JUDGMENT; NIEMO 0F POINTS AND AUTHORITIES II. STATEMENT OF FACTS On November 18, 2016, STEPHEN MAGEE was a pilot involved in an aircraft accident Which took place in Moss Beach, California while he was 0n final approach t0 land at Half Moon Bay Airport (“HAF”). (See Separate Statement ofUndisputed Material Facts (“UMF”) No. 1.)The aircraft MAGEE was piloting at the time 0f the accident was a single-engine, high Wing, fixed landing gear, 4-seat Cessna 172N, FAA registration No. 66 1 0D (“accident aircraft”). (UMF 2.) The accident aircraft was owned by SAC AERO FLYING CLUB, INC. (“SAC AERO”). (UMF 3.) At the time of the accident, MAGEE held a private pilot certificate with ratings for airplane single-engine land and instrument airplane, issued by the Federal Aviation Administration (“FAA”). 10 (UMF 4.) MAGEE had 1,145 total hours 0f flight experience, with 884 hours in the same aircraft ll make and model he was flying at the time of the accident. (UMF 5.) MAGEE’S most recent flight 12 review before the accident was conducted 0n July 21, 2015, in the same make and model as the l3 aircraft he was flyifig at the time 0fthe accident. (UMP 6.) At the time of the accident, MAGEE held 14 a third-class FAA medical certificate, issued as 0f April 15, 2O 1 5. (UMF 7.) Both MAGEE’S FAA 15 medical certificate and flight review requirements were current under the FAA’S regulations at the I l6 time 0f the accident. (UMF 8.) 1'7 The Pilot Operating Handbook (P OH) for the accident aircraft estimates that the aircraft Will 18 stall between 31 knots calibrated air Speed (KCAS) and 40 KCAS, depending 0n the aircraft’s flap 19 position and bank angle. (UMF 9.) The accident aircraft’s POH recommends “a slightly higher .20 approach speed under turbulent air conditions.” (UMF 10.) The POH for the accident aircraft states 21 that the degree t0 which the flaps should be extended during a cross—wind approach and landing vary 22 With the aircraft’s handling characteristics, as well as the wind velocity. (UMF 11.) 23 Before MAGEE headed to his home airport 0n the morning of the accident, he verified that 24 the forecast for Half Moon Bay Airport (HAF) that he had been obsefiing were accurate by using 25 ForeFlight. (UMF 12.) The METAR weather report forecasted clear W-eafller‘with winds from the 26 southeast. (UMF 13.) After takeoff, MAGEE climbed t0 4,500 feet mean sea lev'el (MSL) and‘the 27 cruise was smooth and clear. (UMF 14.) As MAGEE neared HAF, he radioed the I-IAF Common 28 Traffic Advisory Frequency (CTAF), stated his location and asked for traffic information. (UMP ,7- NT OF MOTION AND MOTION FOR SUMMARY JUDGMENT; IWEMO OF POINTS AND AUTHORITIES 15 .) The response on the CTAF stated “winds from the southeast up to 15 knots and Runway'l 2 was the last runway used.” (UMF 16,) The information in the CTAF rBSponse agreed with what ForeFlight was reporting and at the time the sky was clear With visibility at approximately 10 miles. (UMF 17.) _ As MAGEE crossed the HAF runway over the “1 2” numbers to enter the upwind leg 0f his landing approach, the weather was clear and the air was smooth. (UMF 18.) As MAGEE continued his descent 0n the crosswind and downwind legs 0f his approach, MAGEE did not encounter any turbulencé. (UMF 19 .) After making his turn onto the final approach and having descended to about 500 feet MSL, MAGEE first felt very light turbulence. (UMF 20.) MAGEE was concerned that if 10 the turbulence continued during his approach, he would be vulnerable to strong buffeting at the ll normal approach speed, leading t0 a rough landing. As a countermeasure, he elected t0 land at a 12 higher airspeed. (UMF 21.) MAGEE decreased his flaps to less than 20 degrees and applied l3 additional pOWer t0 stay 0n the glide slope. (UMF 22.) Immediately after making these adjustments, I l4 MAGEE felt strong turbulence Violently rock the aircraft. His wings dipped first to the left and then l5 t0 the fight. Simultaneously, he felt a strong downdraft leaving the aircraft in a very steep right bank. l6 (UMF 23 .) 1'7 MAGEE fought to level the wings and gain altitude by applying full power, slight back 18 pressure 0n the yoke and left aileron and left rudder, but nothing seemed t0 correct the descent and l9 steep right bank 0fthe aircraft. (UMF 24 .) MAGEE knew that ifhe could not gain altitude he would 20 have t0 make an emergency landing. (UMF 25.) The runway of HAF was out of his reach due to 21 his 10w altitude. (UMF 26.) He felt the banking wings of his aircraft beginning t0 correct, but he 22 noticed large trees come into view on his right and, wanting {0 avoid the trees, tried t0 drag his 23 aircraft tail into the ground. (UMF 27.) I 24 When MAGEE chécked weather forecasts before his flight t0 HAF, {here were n0 wind shear 25 warnings 0r reports. (UMF 28 .) When MAGEE radioed HAF CTAF as he prepared t0 make his final 26 approach, n0 wind shear reports 0r warnings were given before he commenced with his approach. 2'7 (UMF 29.) Wind shear conditions were not reported t0 MAGEE before the incident and he could 28 not independently make any 0b servation ofany condition which indicated the presence ofwind shear H3- NT OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMO OF POINTS AND AUTHORITIES at that time. (UMF 30.) The presence of wind shear was invisible to MAGEE at the time of the accident. (UMF 3 1 .)When MAGEE encountered the wind shear downdraft, it created an unpredicted emergency situation when MAGEE was only about 450 feet MSL and only seconds clap sed between the loss of control and the time 0fthe forced landing. (UMF 32.) MAGEE’ s Unexpected encounter With wind shear occurred too 10w on the glide path t0 complete his attempts t0 make a recovery. (UMF 3 3 .) _ FAA Advisory Circular 00-6B(AC-00-06B), section 17.2.3.1, describes how areas near temperature inversions are favored for wind shear conditions. The AC advises that “strong wind shears often occur across temperature inversion layers, Which can generate turbulence.” (UMF 34.) 10 Strong wind shear at 10w altitude prevents a recovery by the pilot. (UMF 35.) ll At the time and location 0f the subj ect aircraft accident, meteorological data correctly 12 supports the 1 100 PST HRRR sounding indicating an unstable layer 0f air between the surface and l3 335 feet with a conditionally unstable layer between 33S and 611 feet. (UMF 36.) '11: is .14 meteorolo gically correct that with the rise in terrain west and southwest 0fthe airp ort (HAF) by 100 15 to 200' feet and a stable layer 0f air at 0r above 611 feet that any wind traveling over the terrain 16 would have allowed for the creation of an environment favorable for updrafts and downdrafts with l7 a strength 0f 100 to 200 feet per minute. (UMF 37.) 18 . The meteorological data from the 1200 PST HRRR sounding correctly supports the l9 conclusion that there was an unstable layer of air between the surface and 363 feet with a 20 c'onditionally unstable layer between 363 feet and 611 feet. (UMF 38.) With reSpect to the 1200 21 PST HRRR sounding, just like in the 1100 PST HRRR sounding, with the rise in terrain west and 22 southwest 0f the airport by 100 t0 200 feet and the stable layer of air at 0r above 61 1 feet,any wind 23 traveling over the terrain would have allowed for the creation 0f an environment favorable for 24 updrafts and domdrafts with a strength 0f 100 t0 200 feet per minute. (UMF 39.) 25 The data from the 1200 PST HRRR sounding supports the existence of 10w level wind Shear 26 below 500 feet at the time and location ofthe subject aircraft accident. (UMF 40.) '27 Both the 1100 PST HRRR sounding and the 1200 PST HRRR sounding show that clear air I 28 turbulence was present at the site 0fthe subj ect aircraft accident. (UMF 4 1 .)The 1200 PST HRRR -9- NT OF MOTION AND MOTION FOR SUMNIARY JUDGMENT; BIEMO OF POINTS AND AUTHORITIES sounding shows clear airturbulence present at a_lower level than the 1100 PST HRRR sounding. These findings suggest that during this hour the clear air turbulence was increasing at lower levels. (UMF 42.) The meteorological data supports a conclusion t0 a reasonable degree of meteorological certainty that “a weak temperature inversion was present near the accident site at the accident time between 400 and 600 feet MSL (Figures 11 and 12) at 1100 and 1200 PST When the vertical enviroifiment changed from an unstable layer t0 a stable layer. The stable layer trapped any updrafts 0r downdrafts created by the wind flowing over the rise in the terrain t0 the west and southwest of the airport. These environmental changes created an environment favorable for 10W level Wind shear 10 and turbulence below 600 feet MSL.” (UMF 43.) To a reasonable degree of meteorological ll certainty the conclusions from section 16.0 0f the NTSB Weather Study concerning the subject 12 accident are correct. (UMP 44.) l3 Eyewitness accounts that are part ofthe NTSB’ s official investigation 0fthe subject accident 14 show that from about 10 minutes t0 45 minutes after the time 0f the subj ect accident three other 15 aircraft experienced turbulent conditions while 0n final approach and within the area where Mr. 16 MAGEE most likely experienced the inflight upset. (UMF 45.) The eyewitness information l7 provides visual corroboration 0fturbulence consistent With the meteorological n10 deling identifying 18 the presence of turbulence at the time and location ofithe subj ect accident. (UMF 46.) l9 III. LEGAL ARGUMENT _ 20 A. SUMMARY JUDGMENT IS APPROPRIATE WHEN THERE IS A COMPLETE 21 DEFENSE TO A CAUSE 0F ACTION '22 Summary judgment is a “particularly suitable means t0 test the sufficiency” 0f a plaintiff s 23 case. (Perry v. Bakewell Hawthorne, LLC (2017) 2 CaLSth 536, 542.) Its purpose is t0 “provide 24 courts with a mechanism t0 cut through the parties” pleadings in order to determine whether, despite 25 their allegations, trial is in fact necessary t0 resolve their dispute.” (Id, emphasis added.) 26 - A trial court may properly grant summary judgment when there are n0 triable issues 0f 2'7 material fact and the moving party is entitled t0 judgment as a matter 0f law. (Code Civ. Proc. 28 §43 70(0).) A cause 0f action has n0 merit if one or more of the elements 0f the cause. 0f action H10- NT OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMO OF POINTS AND AUTHORITIES cannot be separately established, even ifthat element is separately pleaded. Under subsection (p)(2), once a defendant shows that one or more elements of a cause 0f action cannot be established, or that thére is a complete defense t0 that cause 0f action, the burden shifts f0 the plaintiff t0 show that a triable issue 0f material fact exists. An opposition t0 Summary judgment is insufficient when “it is essentially conclusory, argumentative 0r based 0n conj ecture or speculation.” (Buehier v. Alpha Beta Co. (1 990) 224 Ca1.App.3d 729, 733.) T0 establish a triable issue of material fact, the party opposing summary judgment must produce “substantial” responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163-.) Each 0f plaintiffs and plaintiffs-in—intervention’s causes of action are based on theories 0f 10 negligence. Defendants contend, among other things, that liability 0n a negligence theory cannot be ll established against a pilot when an injury arises from unforeseen, sudden changes in weather. 12 Furthermore, the doctrifie of imminefit peril applies and there is 110 factual dispute that pilot MAGEE 13 did in fact take a course of action that' a standard man in that emergency might have taken. l4 Accordingly, the Court is requestéd to grant summary judgment in favor of defendants. 15 B. THE NECESSARY ELEMENT 0F NEGLIGENCE CANNOT BE ESTABLISHED l6 BY PLAINTIFFS AND PLAINTIFFS—IN—INTERVENTION 1'7 The complaints 0f plaintiffs and. plaintiffs-in—intervention allege four identical causes of 18 action for (1) negligence; (2) trespass; (3) prifiate nuisance and (4) owner liability for permissive use. l9 The first causes 0f action for negligence are alleged only against pilot STEPHEN MAGEE, alleging, . 20 in essence, pilot error. A person is negligent ifhe does something that a reasonably careful person 21 would not d0 in the same situation 0r fails t0 do something that a reasonably careful person would 22 d0 in the same situation. (CACI 401 .) 23 The second causes of action for trespasses are also alleged only against pilot STEPHEN 24 MAGEE. Liability for trespass is not “strict liability.” Liability may be impOsed for conduct that 25 is intentional, reckless, negligent, 0r the result 0f an exfra—hazardous activity. (Stapies v. Hoefke 26 (1987) 189 Ca1.App.3d 1397, 1406.) In this case, there is absolutely n0 evidence which would 2'7 support trespass based upon an intentional or reckless act or extra—hazardous activity. Accordingly, 28 plaintiffs will have t0 attempt t0 satisfy the elements 0ftrespass by showing that pilot MAGEE was -11- NT OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMO 0F POINTS AND AUTHORITIES negligent. The third causes of action for private nuisance are also alleged only against pilot MAGEE. Privaté nuisance depends on some sort 0f conduct by the defendant that either directly and unreasonably interferes with the plaintiffs” property 0r creates a condition that does so. (Lussz’er v. San Lorenzo Valley Water Dist. (1 988) 206 Cal.App.3d 92, 100.) “In distinction to trespass, liability for nuisance does not require proof of damage t0 the plaintiff s property; proof 0f interference with the plaintiff’s use and enj oynient of that property is sufficient.” (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 937.) Plaintiffs’ private nuisance cause 0f action is based in large part 0n the spill, leak, release andfor migration 0f hazardous substances as a result 0f the 10 aircraft accident and the subsequent mitigation efforts which temporarily displaced plaintiffs from 11 their home. The act that causes the interference with the plaintiffs’ property may be unintentional l2 but caused by negligent 0r reckless conduct, just like trespass. (Lussz'er, supra, 206 Ca1.App.3d at I l3 100.) Because there is n0 intentional or reckless conduct by MAGEE, plaintiffs and plaintiffs-in- 14 intervention must establish this cause of action based 0n a negligence theory. . 15 The fourth causes 0f action for owner liability for permissive use were only alleged against l6 defendant SAC AERO. The fourth causes 0f aCtion d0 not contain any allegations 0f independent l7 negligence 0f SAC AERO, such as negligent entrustment. The fact that n0 separate cause of action 18 for negligence, 01"any other theory ofliability isbeing alleged against SAC AERO, indicates that 19 plaintiffs and p1aintiffs—in—intervention are only alleging a vicarious liability theory against it. In any 20 event, the undisputed facts and eVidence submitted herewith demonstrate as a matter 0f law that 21 there was n0 negligent entrustment and that pilot MAGEE was very experienced in the make and 22 model of the subj ect aircraft and was current with respect to his qualifications and experience. 23 The Final Report of the National Transportation Safety Board (NTSB) indicates that this 24: accident was due t0 10w level wind shear and turbulence during pilot MAGEE’ s final approach for 25 landing. (See Request for Judicial Notice, N0. 4.) This is supported by the NTSB’s Weather Study thii's 26 pérformed during its ifivestigation 0f accident and by the findings and opinions 0f Certified Consulting Meteorologist, James K. Purpura. Mr. MAGEE’S own testimony shows that the was 28 trained, exp erienced and prepared with the make and mo del aircraft he was flying and meticulously -12- NT OF MOTION AND MOTION FOR SUWARY JUDGMENT; MEMO OF POINTS AND AUTHORITIES . prepared for landing at HAP before and during the flight by seeking out and confirming weather .reports. Specifically, he began preparation for his flight that day by researching weather forecasts and obtaining weather briefings before he ever left home. The METAR weather reports forecasted clear weather with winds from the southeast. There was no forecast of potential Wind shear or turbulence. Before .Mr. MAGEE made his final approach to land at the Half Moon Bay Airport, he radioed the Half Moon Bay Airport’s Common Traffic Advisory Frequency (CTAF) and the response did not include any reports 0r warnings ofturbulence or wind shear. Additionally, the wind shear conditions on approach to Half Moon Bay Airport were completely invisible when pilot MAGEE commenced his approach. Thus, When Mr. MAGEE encountered wind shear and lost 10 control 0f his aircraft at 10w altitude, the cause ofhis forced landing was sudden, unexpected weather ll conditions which were not forecast nor reasonably foreseeable to Mr. MAGEE. 12 Case law holds that with respect t0 the operation of an aircraft, thefe is n0 liability for l3 unforeseen, sudden changes in weather: “‘ l4 Sudden changes in meteorological conditions I.Which cause the 15 atmosphere to be disturbed, t0 Become choppy and rough and its 16 motion irregular, whether referred t0 as turbulence 0r by any other l7 nomenclature, cannot be anticipated or avoided. The lurching, 18 dipping 0r bumping of an aircraft when such sudden unexpected air l9 currents are suddenly encountered certainly d0 not spell out 20 negligence 0n the part 0fthe plane” s operator. (Sanchez v. American 21 Airlines (1981) 106 Misc.2d 1010, 1013-14 [436 N.Y.D.2d 824])” 22 (Kohler v.Aspen Airways, Inc. (1985) 171 Ca1.App.3d 1193, 1201.) 23 The undiSputed facts which establish that this aircraft accident was caused by an unforeseen, 24 sudden change in weather also support a complete defense under the doctrine 0f imminent peril. 25 This doctrine provides that a defendant may show that he was not negligent became he acted with 26 reasonable care in an emergency situation. It Will be determined that he was not negligent ifhe 2'7 proves all 0f the following: 28 1. That there was a sudden and unexpected emergency situation in which someone was -13- NT 0F MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMO OF POINTS AND AUTHORITIES in actual or apparent danger 0f immediate injury; 2. That he did not cause the emergency; and 3. That he acted as a reasonable careful person would have acted in similar circumstances, évgn if it appears later that a different course 0f action would have been safer. (CACI 452 - Sudden Emergency.) The exigent nature 0f the circumstances effectively lowers the standard 0f care: “‘The test is whether the actor took one of the courses 0f action in which a stande man in that emergency might have taken, find such a course is not negligent even though it led t0 an injury which might have been plievented by adopting an alternative course 0f action.’ .. .”. (Schultz v. Mathias (1970) 3 10 Ca1.App.3d 904, 912-913.) In this casé, the undisputed facts regarding the unforeseen, sudden 11 change in weather conditions, i.e.,turbulence caused by 10w level wind shear, establish the first 12 element. This was a sudden, unexpected event. MAGEE sought weather information at H