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hyEuumcumunm-nmcnunqumm
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GARRY L. MONTANARI,
WESLEY S. WENIG,
State Bar No.
State Bar N0.
39790 w—MWMMI—
162351
MICHAELIS, MONTANARI & JOHNSON, P.C.
4333 Park Terrace Dr. #1 10
Westlake Village, CA 91361
Telephone N0.: (-8 1 8) 865-0444
Attorneys for Defendants, STEPHEN MAGEE
and SAC AERO FLYING CLUB, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY 0F SAN MATEO
lO
ll
BRYAN TRUJTLLO and CINDY Case N0.: 1 SCIVO 1 901
TRUJILLO,
12
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DEFENDANTS’ RESPONSE TO
13
Plaintiffs, PLAINTIFFS’ SUPPLEMENTAL
STATEMENT 0F UNDISPUTED
l4
VS. MATERIAL FACTS IN OPPOSITION
TO MOTION FOR SUMMARY
15 JUDGMENT
STEPHEN MAGEE, SAC AERO FLYING
CLUB, INC. and DOES 1 -
50,
l6
_ Date: October 7, 2019
1'?
Defendants. Time: 9:00 a.m.
Dept: Law and Motion
ALLIED PROPERTY AND CASUALTY
18 vvvvvvvvvvvvvvvvvvvvvvvvvvv
INSURANCE COMPANY; AMCO Complaint filed: April 17, 2018
l9
INSURANCE COMPANY, Trial Date: November 4, 201 9
P1aintiffs—in—Intervention,
20
VS.
21
22
STEPHEN MAGEE, SAC AERO FLYING
CLUB, INC; AND DOES 1 —
20,
23
Defendants.
24
25
26 Defendants STEPHEN MAGEE and SAC AERO FLYING CLUB, INC. hereby submit the
27 following response to plaintiffs’ Supplemental Statement 0f Undisputed Material Facts in Support
28. 0f Opposition t0 Defendants’ Motion for Summary Judgment:
-1-
RESPONSE TO PLAINTIFFS’ SUPPLEMENTAL STATEMENT OF UNDISPUTED MATERIAL FACTS IN OPP
Plaintiffs’ Undisputed Material Facts and Defendant? Responses and Supporting
Supporting Evidence Evidence
1. While on his final approach t0 Half Moon Undisputed.
Bar Airport, MAGEE set full flaps.
[MAGEE Decl., 1110.]
2. On final approach after setting the full Disputed. MAGEE “felt very light
flaps, MAGEE felt light turbulence. [MAGEE turbulence.”
Dec1., 1T1 0.] [MAGEE Decl., 'fll 0.]
3. When MAGEE felt light turbulence, he Disputed. MAGEE “felt very light
10
became concerned about itseffect on his turbulence.” MAGEE’S “concern” was in
ll
landing. [MAGEE Decl., 1110] that context, which was alleviated by
12 retracting flaps and adding power as the
13 Cessna 172 Pilot Operating Handbook
l4 (POH) recommended.
15 [MAGEE Decl., W5, 10.]
16
l7
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l9
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-2-
RESPONSE TO PLAINTIFFS’ SUPPLEMENTAL STATENIENT OF UNDISPUTED MATERIAL FACTS IN OPP
Plaintiffs’ UndiSputed Material Facts and Defendants’ Responses and Supporting
Supporting Evidence Evidence
4. Whenever landing conditions are not Disputed. Objection: Plaintiffs have failed
to designate Cameron Rolfe as an expert
satisfactory, a pilot should perform a “g0 witness in their exchange 0f expert witness
information (Code CiV.Proc. §2034.260)
around,” rather than continue with the landing. which was served before their opposition to
this motion for summary judgment.
[Rolfe Decl., 'fl6. Exhibit E.] Therefore, Mr. Rolfe’s declaration is
inadmissible and cannot be considered in
connection with this motion for summary
judgment. (Perry v. Bakeweil Hawthorne,
LLC (2017) 2 Ca1.5th 536, 538.)
Lack 0f foundation as t0 expert’s analysis,
qualifications, and training t0 draw
conclusions 0r opinions concerning the
lO aircraft Magee was flying and the conditions
he encountered at the time and location of
ll the incident. (Evid. Code §720);
Confusing, misleading and speculative.
12 There are n0 facts specific to the subj ect
incident that make these generalizations
l3 probative. (Evid. Code §352);
Lack of foundation. (Evid. Code §801);
14 Improper opinion testimony. (Evid. Code
§300);
15 Opinion based on improper matter. (Evid.
Code §803);
16 Additionally, this is irrelevant because it has
not, and cannot, be established that Magee
l7 should have 0r needed t0 conduct a “g0-
around” afler encountering the initial “very
18 light” turbulence. His conduct was what was
called for by the Cessna 172 Pilot Operating
19 Handbook and it was the immediate
subsequent encounter With specific 10W level
20 wind shear that caused the incident.
Additionally, the steps Magee took were
21 consistent with initiating a “go-around” if .
necessary. He retracted the flaps and added
22 power, which was what he would have
needed t0 d0 for a “go-around” if the initial
23 turbulence proved problematic. (Evid. Code
§350)
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_3_
RESPONSE TO PLAINTIFFS’ SUPPLEMENTAL STATEIvIENT OF UNDISPUTED MATERIAL FACTS IN OPP
Plaintiffs’ Undisputed Material Facts and Defendants’ Responses and Supporting
Supporting Evidence Evidence
5. A “go—around” is a standard and safe Disputed. Objection: Plaintiffs have failed
maneuver pilots make when they encounter t0 designate Cameron Rolfe as an expert
-
wind shear andfor turbulence as they approach witness in their exchange 0f expert witness
the runway. [Rolfe Decl., 1[6. Exhibit E.] information (Code CiV.Proc. §2034.260)
Which was served before their opposition to
this motion for summary judgment.
Therefore, Mr. Rolfe’s declaration is
inadmissible and cannot be considered in
connection with this motion for summary
judgment. (Perry v. Bakewell Hawthorne,
LLC (2017) 2 Ca1.5th 536, 538.)
Lack of foundation as t0 expert’s analysis,
qualifications, and training t0 draw
conclusions 0r opinions concerning the
10 aircraft Magee was flying and the conditions
he encountered at the time and location of
ll the incident. (Evid. Code §720);
Confusing, misleading and speculative.
12 There are no facts specific to the subj ect
incident that make these generalizations
13 probative. (Evid. Code §352);
Lack of foundation. (Evid. Code §801);
14 Improper opinion testimony. (EVid. Code
§800);
15 Opinion based 0n imprOper matter. (Evid.
Code §803);
l6 Additionally, this is irrelevant because it has
not, and cannot, be established that Magee
1'7
should have or needed to conduct a “g0-
around” after encountering the initial “very
18 light” turbulence. His conduct was What was
called for by the Cessna 172 Pilot Operating
19 Handbook and it was the immediate
subsequent encounter With sudden severe
20 10w level wind shear that caused the
incident. Additionally, the steps Magee took
21 were consistent with initiating a “go—around”
if necessary. He retracted the flaps and
22 added power, which was what he would have
needed to do for a “go-around” if the initial
23 turbulence proved problematic. (Evid. Code
§3SOJ
241:
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-4- .
RESPONSE TO PLAINTIFFS’ SUPPLEMENTAL STATEMENT OF UNDISPUTED MATERIAL FACTS IN OPP
Plaintiffs’ Undisputed Material Facts and Defendants’ Responses and Supporting
Supporting Evidence Evidence
6. In a “go-around,” the approach to landing Disputed. Obj ection: Plaintiffs have failed
is discontinued and the pilot climbs back t0 a to designate Cameron Rolfe as an expert
safe speed and altitude and circle back for witness in their exchange 0f expert witness
another approach t0 the runway. information (Code CiV.Proc. §2034.260)
[Rolfe Decl., 116. Exhibit E.] Which was served before their opposition to
this motion for summary judgment.
Therefore, Mr. Rolfe’s declaration is
inadmissible and cannot be considered in
connection with this motion for summary
judgment. (Perry v. Bakeweil Hawthorne,
LLC (2017) 2 Ca1.5th 536, 538.)
Lack 0f foundation as to expert’s analysis,
qualifications, and training to draw
conclusions 0r opinions concerning the
10 aircraft Magee was flying and the conditions
he encountered at the time and location 0f
ll the incident. (Evid. Code §720);
Confusing, misleading and speculative.
12 There are no facts specific t0 the subject
incident that make these generalizations
13 probative. (Evid. Code §352);
Lack 0f foundation. (Evid. Code §801);
l4 Improper opinion testimony. (Evid. Code
§800);
15 Opinion based 0n improper matter. (Evid.
Code §803);
l6 Additionally, this is irrelevant because ithas
not, and cannot, be established that Magee
l7 should have 0r needed t0 conduct a “g0-
.around” after encountering the initial “very
18 light” turbulence. His conduct was what was
called for by the Cessna 172 Pilot Operating
l9 Handbook and itwas the immediate
subsequent encounter with sudden severe
20 10W level wind shear that caused the
incident. Additionally, the steps Magee took
21 were consistent with initiating a “go-around”
if necessary. He retracted the flaps and
22 added power, which was what he would have
needed t0 do for a “go-around” if the initial
23 turbulence proved problematic. (Evid. Code
§350J
24
7 . MAGEE was concerned when he felt Disputed. This is incomplete and misstates
25
turbulence during his final approach. MAGEE’S testimony.
26
[MAGEE Decl. 111 0.]
27
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_5_
RESPONSE TO PLAINTIFFS’ SUPPLEMENTAL STATEMENT OF UNDISPUTED MATERIAL FACTS IN OPP
Plaintiffs’ Undisputed Material Facts and Defendants’ Responses and Supporting
Supporting Evidence Evidence
8. Instead of performing a “go-around,” Disputed. Obj action: Plaintiffs have failed
MAGEE continued the approach to landing. to designate Cameron Rolfe as an expert
[MAGEE Decl. filo, 11. Rolfe Decl. {[6] Witness in their exchange 0f expert witness
information (Code Civ.Proc. §2034.260)
Which was served before their opposition t0
this motion for summary judgment.
Therefore, Mr. Rolfe’s declaration is
inadmissible and cannot be considered in
connection With this motion for summary
judgment. (Perry v. Bakeweil Hawthorne,
LLC (2017) 2 Ca1.5th 536, 538.)
Lack 0f foundation as to expert’s analysis,
qualifications, and training t0 draw
conclusions or opinions concerning the
lO aircraft Magee was flying and the conditions
he encountered at the time and location 0f
ll the incident. (Evid. Code §720);
Confusing, misleading and speculative.
12 There are no facts specific t0 the subj ect
incident that make these generalizations
l3 probative. (Evid. Code §352);
Lack 0f foundation. (Evid. Code §801);
14 Improper opinion testimony. (Evid. Code
§800);
15 Opinion based 0n improper matter. (Evid.
Code §803);
l6 Additionally, this is irrelevant because ithas
not, and cannot, be established that Magee
l7 should have 0r needed t0 conduct a “g0-
around” after encountering the initial
18 turbulence. His conduct was what was
called for by the Cessna 172 Pilot Operating
19 Handbook and it was the immediate
subsequent encounter with 10w level Wind
20 shear that caused the incident. Additionally,
the steps Magee took were consistent with
2]. initiating a “go-around” if necessary. He
retracted the flaps and added power, which
22 was what he would have needed to do for a
“go-around” if the initial turbulence proved
23 problematic. (Evid. Code §350.)
24
25
26
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28
-5-
RESPONSE TO PLAINTIFFS’ SUPPLENEENTAL STATEMENT OF UNDISPUTED MATERIAL FACTS IN OPP
Plaintiffs’ Undisputed Material Facts and Defendants’ Responses and Supporting
Supporting Evidence Evidence
9. While close to the ground 0n approach t0 Disputed. Obj ection: Plaintiffs have failed
to designate Cameron Rolfe as an expert
landing a pilot should avoid retracting flaps. witness in their exchange 0f expert witness
information (Code Civ.Proc. §2034.260)
[Rolfe Deal. 1W. Exhibit F.] which was served before their opposition to
this motion for summary judgment.
Therefore, Mr. Rolfe’s declaration is
inadmissible and cannot be considered in
connection with this motion for summary
judgment. (Perry v. Bakewefl Hawthorne,
LLC (2017) 2 Ca1.5th 536, 538.)
Lack of foundation as t0 expert’s analysis,
qualifications, and training to draw
conclusions 0r opinions concerning the
10 aircraft Magee was flying and the conditions
he encountered at the time and location 0f
11 the incident. (Evid. Code §720);
Confusing, misleading and speculative.
12 (Evid. Code §352);
Lack 0f foundation. There are n0 facts
13 connecting this to the Specific aircraft or
conditions involved at the time and place 0f
14 the subject accident. (Evid. Code §801);
Improper opinion testimony. (Evid. Code
15 §800);
Opinion based on improper matter. (Evid.
15 Code §803);
This irrelevant because ithas not, and
17 cannot, be established that Magee merely
retracted the flaps. He also added power.
18 What he did was what was called for in his
aircraft’s POH. Additionally, this opinion
19 only references general information not
specific to the actual aircraft 0r actual
20 conditions. (Evid. Code §350.)
[MAGEE Decl., ‘WS, 10.] _
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RESPONSE TO PLAINTIFFS’ SUPPLEMENTAL STATEMENT OF UNDISPUTED MATERIAL FACTS IN OPP
Plaintiffs’ Undisputed Material Facts and Defendants’ Responses and Supporting
Supporting Evidence Evidence
10. Retracting flaps suddenly decreases the Disputed. Obj action: Plaintiffs have failed
lifi and causes the aircraft t0 sink rapidly. to designate Cameron Rolfe as an expert
[Rolfe Decl., 1W, Exhibit F.] witness in their exchange 0f expert witness
information (Code CiV.Proc. §2034.260)
which was served before their opposition to
this motion for summary judgment.
Therefore, Mr. Rolfe’s declaration is
inadmissible and cannot be considered in
connection with this motion for summary
judgment. (Perry v. Bakewell Hawthorne,
LLC (2017) 2 Ca1.5th 536, 538.)
Lack of foundation as to expert’s analysis,
qualifications, and training t0 draw
conclusions 0r opinions concerning the
10 aircraft Magee was flying and the conditions
he encountered at the time and. location of
ll the incident. (Evid. Code §720);
Confusing, misleading and speculative.
12 (Evid. Code §352);
Lack 0f foundation. There are no facts
13 connecting this t0 the specific aircraft 0r
conditions involved at the time and place 0f
14 the subject accident. (Evid. Code §801);
Improper opinion testimony. (Evid. Code
.15
§800);
Opinion based on impr0per matter. (Evid.
16 Code §803);
This is. irrelevant because it has not, and
l7 cannot, be established that Magee merely
retracted the flaps. He also added power.
18 What he did was what was called for in his
aircraft’s POH. Additionally, this opinion
l9 only references general information not
specific t0 the actual aircraft or actual
20 conditions. (Evid. Code §350.)
[MAGEE Decl., MS, 10.]
21
11. MAGEE retracted the flaps on his Disputed. This isincomplete and misstates
22 approach t0 landing and close t0 the ground. MAGEE’S testimony. MAGEE also added
[MAGEE Dec]. 1110.]
'
power and was acting in accordance with his
23 aircraft’s POH.
[MAGEE Decl., W5, 10.]
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_8_
RESPONSE TO PLAINTIFFS’ SUPPLEMENTAL STATEMENT OF UNDISPUTED MATERIAL FACTS 1N OPP
Plaintiffs’ Undisputed Material Facts and Defendants’ Responses and Supporting
Supporting Evidence Evidence
12. The aircraft sank rapidly immediately Disputed. This is incomplete and misstates
after MAGEE retracted the flaps.'
[MAGEE MAGEE’S testimony. After he retracted his
Decl., 1110-1 1.] flaps and added power, he felt strong
turbulence Violently rock the airplane. His
Wings dipped 1:0 the left and right and he felt
a strong downdraft. Accordingly, the only
evidence is the aircraft lost altitude due t0
severe low level wind shear, not a mere
retraction of flaps.
[MAGEE Decl., 111110 and 11.]
13. MAGEE lost control 0f his aircraft Disputed. This is incomplete and misstates
immediately after he retracted the flaps. MAGEE’S testimony. After he retracted his
[MAGEE Decl. 111 0-1 1.] flaps and added power, he felt strong
lO turbulence violently rock the airplane. His
wings dipped to the left and right and he felt
ll a strong downdraft. Accordingly, the only
evidence is the aircraft lost altitude due t0
l2 severe 10w level wind shear, not a mere
retraction 0f flaps.
13 [MAGEE Decl., 11111 0 and 1 1.]
14. The aircraft continued itsdescent after Undisputed.
14
MAGEE lost the control 0f the aircraft, and
eventually crashed into plaintiffs’ residence
15
property in Moss Beach, California. [MAGEE
Decl. 112, 111 0~1 1.]
l6
l7
l8
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RESPONSE TO PLAINTIFFS’ SUPPLEMENTAL STATEMENT OF UNDISPUTED MATERIAL FACTS 1N OPP
Plaintiffs’ Undisputed Material Facts and Defendants’ Responses and Supporting
Supporting Evidence Evidence
15. Before beginning a flight, regulation Disputed. Obj action: Plaintiffs have failed
requires that a pilot must become familiar with t0 designate Cameron Rolfe as an expert
“all available information” concerning that witness in their exchange of expert witness
'
flight. [Rolfe Decl. 1[3.] information (Code Civ.Proc. §2034.260)
which was served before their opposition to
this motion for summary judgment.
Therefore, MI. Rolfe’s declaration is
inadmissible and cannot be considered in
connection with this motion for summary
judgment. (Perry v. Bakeweli Hawthorne,
LLC (2017) 2 Cal.5th 536, 538.)
Lack of foundation as to expert’s analysis,
qualifications, and training t0 draw
conclusions or opinions concerning the
10 aircraft Magee was flying and the conditions
he encountered at the time and location 0f
ll the incident. (Evid. Code §720);
Confusing, misleading and Speculative.
12 (Evid. Code §352);
.
Lack 0f foundation. (Evid. Code §801);
13 Improper opinion testimony. (Evid. Code
§800);
14 Opinion based 0n impr0per matter. (Evid.
Code §803);
15 Additionally, this is irrelevant because it has
not, and cannot, be established that the
l6 general description 0f “unexpected turbulent
conditions” referred to in Airport Directory
l7 Information overrides the specific weather
forecast for the specific day and location of
l8 the subj ect incident obtained by Magee
before he commenced his flight.
19 Furthermore, the term “turbulent conditions”
is irrelevant because its meaning and effect
20
Preview
Electmnitally hyEuumcumunm-nmcnunqumm cm 1 0/2/201 9 GARRY L. MONTANARI, WESLEY S. WENIG, State Bar No. State Bar N0. 39790 w—MWMMI— 162351 MICHAELIS, MONTANARI & JOHNSON, P.C. 4333 Park Terrace Dr. #1 10 Westlake Village, CA 91361 Telephone N0.: (-8 1 8) 865-0444 Attorneys for Defendants, STEPHEN MAGEE and SAC AERO FLYING CLUB, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY 0F SAN MATEO lO ll BRYAN TRUJTLLO and CINDY Case N0.: 1 SCIVO 1 901 TRUJILLO, 12 _ DEFENDANTS’ RESPONSE TO 13 Plaintiffs, PLAINTIFFS’ SUPPLEMENTAL STATEMENT 0F UNDISPUTED l4 VS. MATERIAL FACTS IN OPPOSITION TO MOTION FOR SUMMARY 15 JUDGMENT STEPHEN MAGEE, SAC AERO FLYING CLUB, INC. and DOES 1 - 50, l6 _ Date: October 7, 2019 1'? Defendants. Time: 9:00 a.m. Dept: Law and Motion ALLIED PROPERTY AND CASUALTY 18 vvvvvvvvvvvvvvvvvvvvvvvvvvv INSURANCE COMPANY; AMCO Complaint filed: April 17, 2018 l9 INSURANCE COMPANY, Trial Date: November 4, 201 9 P1aintiffs—in—Intervention, 20 VS. 21 22 STEPHEN MAGEE, SAC AERO FLYING CLUB, INC; AND DOES 1 — 20, 23 Defendants. 24 25 26 Defendants STEPHEN MAGEE and SAC AERO FLYING CLUB, INC. hereby submit the 27 following response to plaintiffs’ Supplemental Statement 0f Undisputed Material Facts in Support 28. 0f Opposition t0 Defendants’ Motion for Summary Judgment: -1- RESPONSE TO PLAINTIFFS’ SUPPLEMENTAL STATEMENT OF UNDISPUTED MATERIAL FACTS IN OPP Plaintiffs’ Undisputed Material Facts and Defendant? Responses and Supporting Supporting Evidence Evidence 1. While on his final approach t0 Half Moon Undisputed. Bar Airport, MAGEE set full flaps. [MAGEE Decl., 1110.] 2. On final approach after setting the full Disputed. MAGEE “felt very light flaps, MAGEE felt light turbulence. [MAGEE turbulence.” Dec1., 1T1 0.] [MAGEE Decl., 'fll 0.] 3. When MAGEE felt light turbulence, he Disputed. MAGEE “felt very light 10 became concerned about itseffect on his turbulence.” MAGEE’S “concern” was in ll landing. [MAGEE Decl., 1110] that context, which was alleviated by 12 retracting flaps and adding power as the 13 Cessna 172 Pilot Operating Handbook l4 (POH) recommended. 15 [MAGEE Decl., W5, 10.] 16 l7 18 l9 20 21 22 23 24 25 26 2'7 28 -2- RESPONSE TO PLAINTIFFS’ SUPPLEMENTAL STATENIENT OF UNDISPUTED MATERIAL FACTS IN OPP Plaintiffs’ UndiSputed Material Facts and Defendants’ Responses and Supporting Supporting Evidence Evidence 4. Whenever landing conditions are not Disputed. Objection: Plaintiffs have failed to designate Cameron Rolfe as an expert satisfactory, a pilot should perform a “g0 witness in their exchange 0f expert witness information (Code CiV.Proc. §2034.260) around,” rather than continue with the landing. which was served before their opposition to this motion for summary judgment. [Rolfe Decl., 'fl6. Exhibit E.] Therefore, Mr. Rolfe’s declaration is inadmissible and cannot be considered in connection with this motion for summary judgment. (Perry v. Bakeweil Hawthorne, LLC (2017) 2 Ca1.5th 536, 538.) Lack 0f foundation as t0 expert’s analysis, qualifications, and training t0 draw conclusions 0r opinions concerning the lO aircraft Magee was flying and the conditions he encountered at the time and location of ll the incident. (Evid. Code §720); Confusing, misleading and speculative. 12 There are n0 facts specific to the subj ect incident that make these generalizations l3 probative. (Evid. Code §352); Lack of foundation. (Evid. Code §801); 14 Improper opinion testimony. (Evid. Code §300); 15 Opinion based on improper matter. (Evid. Code §803); 16 Additionally, this is irrelevant because it has not, and cannot, be established that Magee l7 should have 0r needed t0 conduct a “g0- around” afler encountering the initial “very 18 light” turbulence. His conduct was what was called for by the Cessna 172 Pilot Operating 19 Handbook and it was the immediate subsequent encounter With specific 10W level 20 wind shear that caused the incident. Additionally, the steps Magee took were 21 consistent with initiating a “go-around” if . necessary. He retracted the flaps and added 22 power, which was what he would have needed t0 d0 for a “go-around” if the initial 23 turbulence proved problematic. (Evid. Code §350) 24 25 26 27 28 _3_ RESPONSE TO PLAINTIFFS’ SUPPLEMENTAL STATEIvIENT OF UNDISPUTED MATERIAL FACTS IN OPP Plaintiffs’ Undisputed Material Facts and Defendants’ Responses and Supporting Supporting Evidence Evidence 5. A “go—around” is a standard and safe Disputed. Objection: Plaintiffs have failed maneuver pilots make when they encounter t0 designate Cameron Rolfe as an expert - wind shear andfor turbulence as they approach witness in their exchange 0f expert witness the runway. [Rolfe Decl., 1[6. Exhibit E.] information (Code CiV.Proc. §2034.260) Which was served before their opposition to this motion for summary judgment. Therefore, Mr. Rolfe’s declaration is inadmissible and cannot be considered in connection with this motion for summary judgment. (Perry v. Bakewell Hawthorne, LLC (2017) 2 Ca1.5th 536, 538.) Lack of foundation as t0 expert’s analysis, qualifications, and training t0 draw conclusions 0r opinions concerning the 10 aircraft Magee was flying and the conditions he encountered at the time and location of ll the incident. (Evid. Code §720); Confusing, misleading and speculative. 12 There are no facts specific to the subj ect incident that make these generalizations 13 probative. (Evid. Code §352); Lack of foundation. (Evid. Code §801); 14 Improper opinion testimony. (EVid. Code §800); 15 Opinion based 0n imprOper matter. (Evid. Code §803); l6 Additionally, this is irrelevant because it has not, and cannot, be established that Magee 1'7 should have or needed to conduct a “g0- around” after encountering the initial “very 18 light” turbulence. His conduct was What was called for by the Cessna 172 Pilot Operating 19 Handbook and it was the immediate subsequent encounter With sudden severe 20 10w level wind shear that caused the incident. Additionally, the steps Magee took 21 were consistent with initiating a “go—around” if necessary. He retracted the flaps and 22 added power, which was what he would have needed to do for a “go-around” if the initial 23 turbulence proved problematic. (Evid. Code §3SOJ 241: 25 26 2'7 28 -4- . RESPONSE TO PLAINTIFFS’ SUPPLEMENTAL STATEMENT OF UNDISPUTED MATERIAL FACTS IN OPP Plaintiffs’ Undisputed Material Facts and Defendants’ Responses and Supporting Supporting Evidence Evidence 6. In a “go-around,” the approach to landing Disputed. Obj ection: Plaintiffs have failed is discontinued and the pilot climbs back t0 a to designate Cameron Rolfe as an expert safe speed and altitude and circle back for witness in their exchange 0f expert witness another approach t0 the runway. information (Code CiV.Proc. §2034.260) [Rolfe Decl., 116. Exhibit E.] Which was served before their opposition to this motion for summary judgment. Therefore, Mr. Rolfe’s declaration is inadmissible and cannot be considered in connection with this motion for summary judgment. (Perry v. Bakeweil Hawthorne, LLC (2017) 2 Ca1.5th 536, 538.) Lack 0f foundation as to expert’s analysis, qualifications, and training to draw conclusions 0r opinions concerning the 10 aircraft Magee was flying and the conditions he encountered at the time and location 0f ll the incident. (Evid. Code §720); Confusing, misleading and speculative. 12 There are no facts specific t0 the subject incident that make these generalizations 13 probative. (Evid. Code §352); Lack 0f foundation. (Evid. Code §801); l4 Improper opinion testimony. (Evid. Code §800); 15 Opinion based 0n improper matter. (Evid. Code §803); l6 Additionally, this is irrelevant because ithas not, and cannot, be established that Magee l7 should have 0r needed t0 conduct a “g0- .around” after encountering the initial “very 18 light” turbulence. His conduct was what was called for by the Cessna 172 Pilot Operating l9 Handbook and itwas the immediate subsequent encounter with sudden severe 20 10W level wind shear that caused the incident. Additionally, the steps Magee took 21 were consistent with initiating a “go-around” if necessary. He retracted the flaps and 22 added power, which was what he would have needed t0 do for a “go-around” if the initial 23 turbulence proved problematic. (Evid. Code §350J 24 7 . MAGEE was concerned when he felt Disputed. This is incomplete and misstates 25 turbulence during his final approach. MAGEE’S testimony. 26 [MAGEE Decl. 111 0.] 27 28 _5_ RESPONSE TO PLAINTIFFS’ SUPPLEMENTAL STATEMENT OF UNDISPUTED MATERIAL FACTS IN OPP Plaintiffs’ Undisputed Material Facts and Defendants’ Responses and Supporting Supporting Evidence Evidence 8. Instead of performing a “go-around,” Disputed. Obj action: Plaintiffs have failed MAGEE continued the approach to landing. to designate Cameron Rolfe as an expert [MAGEE Decl. filo, 11. Rolfe Decl. {[6] Witness in their exchange 0f expert witness information (Code Civ.Proc. §2034.260) Which was served before their opposition t0 this motion for summary judgment. Therefore, Mr. Rolfe’s declaration is inadmissible and cannot be considered in connection With this motion for summary judgment. (Perry v. Bakeweil Hawthorne, LLC (2017) 2 Ca1.5th 536, 538.) Lack 0f foundation as to expert’s analysis, qualifications, and training t0 draw conclusions or opinions concerning the lO aircraft Magee was flying and the conditions he encountered at the time and location 0f ll the incident. (Evid. Code §720); Confusing, misleading and speculative. 12 There are no facts specific t0 the subj ect incident that make these generalizations l3 probative. (Evid. Code §352); Lack 0f foundation. (Evid. Code §801); 14 Improper opinion testimony. (Evid. Code §800); 15 Opinion based 0n improper matter. (Evid. Code §803); l6 Additionally, this is irrelevant because ithas not, and cannot, be established that Magee l7 should have 0r needed t0 conduct a “g0- around” after encountering the initial 18 turbulence. His conduct was what was called for by the Cessna 172 Pilot Operating 19 Handbook and it was the immediate subsequent encounter with 10w level Wind 20 shear that caused the incident. Additionally, the steps Magee took were consistent with 2]. initiating a “go-around” if necessary. He retracted the flaps and added power, which 22 was what he would have needed to do for a “go-around” if the initial turbulence proved 23 problematic. (Evid. Code §350.) 24 25 26 2’7 28 -5- RESPONSE TO PLAINTIFFS’ SUPPLENEENTAL STATEMENT OF UNDISPUTED MATERIAL FACTS IN OPP Plaintiffs’ Undisputed Material Facts and Defendants’ Responses and Supporting Supporting Evidence Evidence 9. While close to the ground 0n approach t0 Disputed. Obj ection: Plaintiffs have failed to designate Cameron Rolfe as an expert landing a pilot should avoid retracting flaps. witness in their exchange 0f expert witness information (Code Civ.Proc. §2034.260) [Rolfe Deal. 1W. Exhibit F.] which was served before their opposition to this motion for summary judgment. Therefore, Mr. Rolfe’s declaration is inadmissible and cannot be considered in connection with this motion for summary judgment. (Perry v. Bakewefl Hawthorne, LLC (2017) 2 Ca1.5th 536, 538.) Lack of foundation as t0 expert’s analysis, qualifications, and training to draw conclusions 0r opinions concerning the 10 aircraft Magee was flying and the conditions he encountered at the time and location 0f 11 the incident. (Evid. Code §720); Confusing, misleading and speculative. 12 (Evid. Code §352); Lack 0f foundation. There are n0 facts 13 connecting this to the Specific aircraft or conditions involved at the time and place 0f 14 the subject accident. (Evid. Code §801); Improper opinion testimony. (Evid. Code 15 §800); Opinion based on improper matter. (Evid. 15 Code §803); This irrelevant because ithas not, and 17 cannot, be established that Magee merely retracted the flaps. He also added power. 18 What he did was what was called for in his aircraft’s POH. Additionally, this opinion 19 only references general information not specific to the actual aircraft 0r actual 20 conditions. (Evid. Code §350.) [MAGEE Decl., ‘WS, 10.] _ 21 22 23 24 25 25' 27 28 -7- RESPONSE TO PLAINTIFFS’ SUPPLEMENTAL STATEMENT OF UNDISPUTED MATERIAL FACTS IN OPP Plaintiffs’ Undisputed Material Facts and Defendants’ Responses and Supporting Supporting Evidence Evidence 10. Retracting flaps suddenly decreases the Disputed. Obj action: Plaintiffs have failed lifi and causes the aircraft t0 sink rapidly. to designate Cameron Rolfe as an expert [Rolfe Decl., 1W, Exhibit F.] witness in their exchange 0f expert witness information (Code CiV.Proc. §2034.260) which was served before their opposition to this motion for summary judgment. Therefore, Mr. Rolfe’s declaration is inadmissible and cannot be considered in connection with this motion for summary judgment. (Perry v. Bakewell Hawthorne, LLC (2017) 2 Ca1.5th 536, 538.) Lack of foundation as to expert’s analysis, qualifications, and training t0 draw conclusions 0r opinions concerning the 10 aircraft Magee was flying and the conditions he encountered at the time and. location of ll the incident. (Evid. Code §720); Confusing, misleading and speculative. 12 (Evid. Code §352); Lack 0f foundation. There are no facts 13 connecting this t0 the specific aircraft 0r conditions involved at the time and place 0f 14 the subject accident. (Evid. Code §801); Improper opinion testimony. (Evid. Code .15 §800); Opinion based on impr0per matter. (Evid. 16 Code §803); This is. irrelevant because it has not, and l7 cannot, be established that Magee merely retracted the flaps. He also added power. 18 What he did was what was called for in his aircraft’s POH. Additionally, this opinion l9 only references general information not specific t0 the actual aircraft or actual 20 conditions. (Evid. Code §350.) [MAGEE Decl., MS, 10.] 21 11. MAGEE retracted the flaps on his Disputed. This isincomplete and misstates 22 approach t0 landing and close t0 the ground. MAGEE’S testimony. MAGEE also added [MAGEE Dec]. 1110.] ' power and was acting in accordance with his 23 aircraft’s POH. [MAGEE Decl., W5, 10.] 24 25 26 2'? 28 _8_ RESPONSE TO PLAINTIFFS’ SUPPLEMENTAL STATEMENT OF UNDISPUTED MATERIAL FACTS 1N OPP Plaintiffs’ Undisputed Material Facts and Defendants’ Responses and Supporting Supporting Evidence Evidence 12. The aircraft sank rapidly immediately Disputed. This is incomplete and misstates after MAGEE retracted the flaps.' [MAGEE MAGEE’S testimony. After he retracted his Decl., 1110-1 1.] flaps and added power, he felt strong turbulence Violently rock the airplane. His Wings dipped 1:0 the left and right and he felt a strong downdraft. Accordingly, the only evidence is the aircraft lost altitude due t0 severe low level wind shear, not a mere retraction of flaps. [MAGEE Decl., 111110 and 11.] 13. MAGEE lost control 0f his aircraft Disputed. This is incomplete and misstates immediately after he retracted the flaps. MAGEE’S testimony. After he retracted his [MAGEE Decl. 111 0-1 1.] flaps and added power, he felt strong lO turbulence violently rock the airplane. His wings dipped to the left and right and he felt ll a strong downdraft. Accordingly, the only evidence is the aircraft lost altitude due t0 l2 severe 10w level wind shear, not a mere retraction 0f flaps. 13 [MAGEE Decl., 11111 0 and 1 1.] 14. The aircraft continued itsdescent after Undisputed. 14 MAGEE lost the control 0f the aircraft, and eventually crashed into plaintiffs’ residence 15 property in Moss Beach, California. [MAGEE Decl. 112, 111 0~1 1.] l6 l7 l8 19 20 21 22 23 24 25 26 2'7 28 H9- RESPONSE TO PLAINTIFFS’ SUPPLEMENTAL STATEMENT OF UNDISPUTED MATERIAL FACTS 1N OPP Plaintiffs’ Undisputed Material Facts and Defendants’ Responses and Supporting Supporting Evidence Evidence 15. Before beginning a flight, regulation Disputed. Obj action: Plaintiffs have failed requires that a pilot must become familiar with t0 designate Cameron Rolfe as an expert “all available information” concerning that witness in their exchange of expert witness ' flight. [Rolfe Decl. 1[3.] information (Code Civ.Proc. §2034.260) which was served before their opposition to this motion for summary judgment. Therefore, MI. Rolfe’s declaration is inadmissible and cannot be considered in connection with this motion for summary judgment. (Perry v. Bakeweli Hawthorne, LLC (2017) 2 Cal.5th 536, 538.) Lack of foundation as to expert’s analysis, qualifications, and training t0 draw conclusions or opinions concerning the 10 aircraft Magee was flying and the conditions he encountered at the time and location 0f ll the incident. (Evid. Code §720); Confusing, misleading and Speculative. 12 (Evid. Code §352); . Lack 0f foundation. (Evid. Code §801); 13 Improper opinion testimony. (Evid. Code §800); 14 Opinion based 0n impr0per matter. (Evid. Code §803); 15 Additionally, this is irrelevant because it has not, and cannot, be established that the l6 general description 0f “unexpected turbulent conditions” referred to in Airport Directory l7 Information overrides the specific weather forecast for the specific day and location of l8 the subj ect incident obtained by Magee before he commenced his flight. 19 Furthermore, the term “turbulent conditions” is irrelevant because its meaning and effect 20