Preview
Case Number: 18-CIV-01901
SUPERIOR COURT OF SAN MATEO COUNTY
400 County Center 1050 Mission Road
Redwood City, CA 94063 South San Francisco, CA 94080
www.sanmateocourt.org
Minute Order
BRYAN TRUJILLO, et al vs. STEPHEN MAGEE, et al 18-CIV-01901
10/07/2019 9:00 AM
Motion for Summary Judgment
Hearing Result: Held
Judicial Officer: Davis, III, Leland Location: Courtroom 4C
Courtroom Clerk: Ashmika Segran-Teo Courtroom Reporter: Annette Jaycox
Parties Present
DANKO, MICHAEL S. Attorney
MONTANARI, GARRY L Attorney
Minutes
Journals
- Matter is called at: 9:06 am.
Above-noted counsel present.
Argument presented by counsel. Matter submitted.
The court finds/orders: Tentative ruling to be adopted.
Hearing concluded.
Case Events
- Tentative ruling adopted and becomes order:
DEFENDANTS STEPHEN MAGEE'S AND SAC AERO FLYING CLUB, INC.'S MOTION FOR SUMMARY
JUDGMENT
Defendants Stephen Magee's and SAC Aero Flying Club, Inc.'s Motion for Summary Judgment, filed 9-23-
19, is DENIED. Code Civ. Proc. §437c.
A motion for summary judgment shall be granted if all the papers submitted show there is no triable
issue as to any material fact and the moving party is entitled to judgment as a matter of law. Code Civ.
Proc. § 437c(c). A defendant has met the burden of showing that a cause of action has no merit if that
party has shown that one or more elements of the cause of action cannot be established, or that there is
a complete defense to that cause of action. Code Civ. Proc. § 437c(p)(2). Once the defendant has met
that burden, the burden shifts to plaintiff to show that a triable issue of one or more material facts exists
to that cause of action or a defense thereto. Id. On summary judgment, the court considers all of the
evidence and all of the inferences reasonably drawn therefrom, and views such evidence and inferences
in the light most favorable to the opposing party. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,
843-856. Any doubts as to the propriety of granting the motion are normally resolved in favor of the
party opposing the motion. Id.
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Case Number: 18-CIV-01901
Here, Defendants have moved for summary judgment, but not, in the alternative, for summary
adjudication. See 7-19-19 Notice of Motion. Thus, the existence of a triable issue of fact relevant to any
asserted claim requires a denial of the motion. Homestead Savings v. Sup.Ct. (1986) 179 Cal.App.3d 494,
498; Gonzales v. Sup.Ct. (1987) 189 Cal.App.3d 1542, 1546.
The Court finds that Defendants did not meet their initial burden under Code Civ. Proc. § 437c(p)(2) of
demonstrating negligence cannot be established, or that Defendants have a complete defense to each of
the asserted claims. Defendants argue all four asserted claims hinge on the allegation of negligence,
which they contend cannot be established because, as a matter of law, Mr. Magee acted reasonably
under the circumstances. With respect to negligence, the formulation of the standard of care is a
question of law for the court. Ramirez v. Plough, Inc., 6 Cal. 4th 539, 546 (1993). In most cases, courts
have fixed no standard of care for tort liability more precise than that of a reasonably prudent person
under like circumstances. Id. Once the court has formulated the standard, its application to the facts of
the case is a task for the trier of fact if reasonable minds might differ as to whether the defendant's
conduct has conformed to the standard. Id. Citing CACI 452, Defendants argue the evidence
conclusively demonstrates Magee acted as a "reasonably careful person would have acted in similar
circumstances." (Quoting CACI 452). However, as with the question of reasonableness itself, "[w]hether
the conditions for application of the imminent peril doctrine exist is itself a question of fact to be
submitted to the jury." Damele v. Mack Trucks, Inc. (1990) 219 Cal.App.3d, 29, 37.
In this case, even if the Court were to disregard both the NTSB's Final Report (see 49 U.S.C. 1154(b)) and
the opinions in the 9-23-19 Rolfe Declaration (see Perry v. Bakewell Hawthorne LLC (2017) 2 Cal.5th 536,
538), the evidence still does not demonstrate that negligence cannot be shown. Although the evidence
suggests Mr. Magee had no prior notice of wind shears in the area, and although wind shears can occur
without warning, factual questions still exist as to (1) whether the plane was too low at the time the
shear hit to permit a recovery, (2) whether the shear was strong enough to overcome the plane's
performance capability, such as any attempt at a "go-around," and (3) whether Mr. Magee reacted
"reasonably" under the circumstances when he retracted the wing flaps, which may have been a causal
factor in the crash. See 7-19-19 Wenig Decl., Ex. D (FAA publication on wind shears at 1-7, suggesting a
strong shear at a low altitude can in some cases prevent recovery, even without pilot error). This inquiry
appears to involve a fact intensive analysis upon which reasonable minds could differ. See also RJN, Ex.
4 at 8 (quoting the Pilot Operating Handbook (POH), to which Mr. Magee's declaration refers) (the POH
"advises that retraction of the wing flaps during an approach for landing 'suddenly decreases lift and
causes the airplane to sink rapidly.'"); Rolfe Decl., Ex. F (FAA Flying Handbook, page 8-5) ("Never retract
the flaps to correct for undershooting since that suddenly decreases the lift and causes the airplane to
sink rapidly.").
Even disregarding Mr. Rolfe opinions, presumably the documents cited in his declaration would still
potentially be admissible at trial. See Sweetwater Union High School Dist. V. Gilbane Building Co. (2019)
6 Cal.5th 931, 948-49 (even where an expert's opinions are excluded, the documents/evidence on which
the expert planned to rely may still be admissible at trial); Magee Decl., ¶¶5, 10 (stating he decreased
the wing flaps to less than 20 degrees, and that "The POH states that the degree to which the flaps
should be extended during a cross-wind approach and landing vary with the airplane's handling
characteristics, as well as the wind velocity.").
In short, the reasonableness of Defendants' actions under the circumstances cannot be resolved on
summary judgment. In so ruling, the Court takes no position on the ultimate merit(s) of the asserted
claims, including the allegation of negligence. Defendants may indeed have the better argument on this
point. However, viewing the evidence in a light favorable to the non-moving parties, the Court declines
to adjudicate these claims as a matter of law.
Defendants' 10-2-19 Objections to the Rolfe Decl., ¶¶ 4-9, are SUSTAINED-IN-PART. Defendants object
to Mr. Rolfe's opinions on multiple grounds. The Objections to his opinions are SUSTAINED on grounds
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Case Number: 18-CIV-01901
Mr. Rolfe was not timely disclosed as an expert. Perry v. Bakewell Hawthorne LLC, supra, 2 Cal.5th at
538; 10-2-19 Wenig Decl., Ex. E. To the extent the Objections extend to the attached exhibits, however,
the objection(s) is not sufficiently explained, and is OVERRULED.
Defendants' 7-19-19 unopposed Request for Judicial Notice is GRANTED as to Exhibits 1-2 (Evid. Code
452(c)) and Exhibit 3 (Evid. Code 452(b)).
Defendants also requested judicial notice of the NTSB's Final Report (see RJN, Ex. 4). In their Opposition
brief, Plaintiffs note that the NTSB Report itself identifies potential pilot error as a partial cause of the
accident, arguing this Report in itself creates a triable issue that precludes summary judgment. In their
Reply brief, Defendants responded by citing 49 U.S.C. 1154(b)), arguing the Court cannot consider the
NTSB Report-despite having asked the Court to take judicial notice of it. Based on 1154(b), the Court
declines to take judicial notice of the Report. However, as stated, the evidence nonetheless does not
permit the granting of summary judgment.
Others
Comments:
Future Hearings and Vacated Hearings
October 10, 2019 1:30 PM Mandatory Settlement Conference
Grandsaert, John L.
Courtroom 2D
November 04, 2019 9:00 AM Jury Trial
Master Calendar, -
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Preview
Case Number: 18-CIV-01901 SUPERIOR COURT OF SAN MATEO COUNTY 400 County Center 1050 Mission Road Redwood City, CA 94063 South San Francisco, CA 94080 www.sanmateocourt.org Minute Order BRYAN TRUJILLO, et al vs. STEPHEN MAGEE, et al 18-CIV-01901 10/07/2019 9:00 AM Motion for Summary Judgment Hearing Result: Held Judicial Officer: Davis, III, Leland Location: Courtroom 4C Courtroom Clerk: Ashmika Segran-Teo Courtroom Reporter: Annette Jaycox Parties Present DANKO, MICHAEL S. Attorney MONTANARI, GARRY L Attorney Minutes Journals - Matter is called at: 9:06 am. Above-noted counsel present. Argument presented by counsel. Matter submitted. The court finds/orders: Tentative ruling to be adopted. Hearing concluded. Case Events - Tentative ruling adopted and becomes order: DEFENDANTS STEPHEN MAGEE'S AND SAC AERO FLYING CLUB, INC.'S MOTION FOR SUMMARY JUDGMENT Defendants Stephen Magee's and SAC Aero Flying Club, Inc.'s Motion for Summary Judgment, filed 9-23- 19, is DENIED. Code Civ. Proc. §437c. A motion for summary judgment shall be granted if all the papers submitted show there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. Code Civ. Proc. § 437c(c). A defendant has met the burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action cannot be established, or that there is a complete defense to that cause of action. Code Civ. Proc. § 437c(p)(2). Once the defendant has met that burden, the burden shifts to plaintiff to show that a triable issue of one or more material facts exists to that cause of action or a defense thereto. Id. On summary judgment, the court considers all of the evidence and all of the inferences reasonably drawn therefrom, and views such evidence and inferences in the light most favorable to the opposing party. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843-856. Any doubts as to the propriety of granting the motion are normally resolved in favor of the party opposing the motion. Id. 1 Case Number: 18-CIV-01901 Here, Defendants have moved for summary judgment, but not, in the alternative, for summary adjudication. See 7-19-19 Notice of Motion. Thus, the existence of a triable issue of fact relevant to any asserted claim requires a denial of the motion. Homestead Savings v. Sup.Ct. (1986) 179 Cal.App.3d 494, 498; Gonzales v. Sup.Ct. (1987) 189 Cal.App.3d 1542, 1546. The Court finds that Defendants did not meet their initial burden under Code Civ. Proc. § 437c(p)(2) of demonstrating negligence cannot be established, or that Defendants have a complete defense to each of the asserted claims. Defendants argue all four asserted claims hinge on the allegation of negligence, which they contend cannot be established because, as a matter of law, Mr. Magee acted reasonably under the circumstances. With respect to negligence, the formulation of the standard of care is a question of law for the court. Ramirez v. Plough, Inc., 6 Cal. 4th 539, 546 (1993). In most cases, courts have fixed no standard of care for tort liability more precise than that of a reasonably prudent person under like circumstances. Id. Once the court has formulated the standard, its application to the facts of the case is a task for the trier of fact if reasonable minds might differ as to whether the defendant's conduct has conformed to the standard. Id. Citing CACI 452, Defendants argue the evidence conclusively demonstrates Magee acted as a "reasonably careful person would have acted in similar circumstances." (Quoting CACI 452). However, as with the question of reasonableness itself, "[w]hether the conditions for application of the imminent peril doctrine exist is itself a question of fact to be submitted to the jury." Damele v. Mack Trucks, Inc. (1990) 219 Cal.App.3d, 29, 37. In this case, even if the Court were to disregard both the NTSB's Final Report (see 49 U.S.C. 1154(b)) and the opinions in the 9-23-19 Rolfe Declaration (see Perry v. Bakewell Hawthorne LLC (2017) 2 Cal.5th 536, 538), the evidence still does not demonstrate that negligence cannot be shown. Although the evidence suggests Mr. Magee had no prior notice of wind shears in the area, and although wind shears can occur without warning, factual questions still exist as to (1) whether the plane was too low at the time the shear hit to permit a recovery, (2) whether the shear was strong enough to overcome the plane's performance capability, such as any attempt at a "go-around," and (3) whether Mr. Magee reacted "reasonably" under the circumstances when he retracted the wing flaps, which may have been a causal factor in the crash. See 7-19-19 Wenig Decl., Ex. D (FAA publication on wind shears at 1-7, suggesting a strong shear at a low altitude can in some cases prevent recovery, even without pilot error). This inquiry appears to involve a fact intensive analysis upon which reasonable minds could differ. See also RJN, Ex. 4 at 8 (quoting the Pilot Operating Handbook (POH), to which Mr. Magee's declaration refers) (the POH "advises that retraction of the wing flaps during an approach for landing 'suddenly decreases lift and causes the airplane to sink rapidly.'"); Rolfe Decl., Ex. F (FAA Flying Handbook, page 8-5) ("Never retract the flaps to correct for undershooting since that suddenly decreases the lift and causes the airplane to sink rapidly."). Even disregarding Mr. Rolfe opinions, presumably the documents cited in his declaration would still potentially be admissible at trial. See Sweetwater Union High School Dist. V. Gilbane Building Co. (2019) 6 Cal.5th 931, 948-49 (even where an expert's opinions are excluded, the documents/evidence on which the expert planned to rely may still be admissible at trial); Magee Decl., ¶¶5, 10 (stating he decreased the wing flaps to less than 20 degrees, and that "The POH states that the degree to which the flaps should be extended during a cross-wind approach and landing vary with the airplane's handling characteristics, as well as the wind velocity."). In short, the reasonableness of Defendants' actions under the circumstances cannot be resolved on summary judgment. In so ruling, the Court takes no position on the ultimate merit(s) of the asserted claims, including the allegation of negligence. Defendants may indeed have the better argument on this point. However, viewing the evidence in a light favorable to the non-moving parties, the Court declines to adjudicate these claims as a matter of law. Defendants' 10-2-19 Objections to the Rolfe Decl., ¶¶ 4-9, are SUSTAINED-IN-PART. Defendants object to Mr. Rolfe's opinions on multiple grounds. The Objections to his opinions are SUSTAINED on grounds 2 Case Number: 18-CIV-01901 Mr. Rolfe was not timely disclosed as an expert. Perry v. Bakewell Hawthorne LLC, supra, 2 Cal.5th at 538; 10-2-19 Wenig Decl., Ex. E. To the extent the Objections extend to the attached exhibits, however, the objection(s) is not sufficiently explained, and is OVERRULED. Defendants' 7-19-19 unopposed Request for Judicial Notice is GRANTED as to Exhibits 1-2 (Evid. Code 452(c)) and Exhibit 3 (Evid. Code 452(b)). Defendants also requested judicial notice of the NTSB's Final Report (see RJN, Ex. 4). In their Opposition brief, Plaintiffs note that the NTSB Report itself identifies potential pilot error as a partial cause of the accident, arguing this Report in itself creates a triable issue that precludes summary judgment. In their Reply brief, Defendants responded by citing 49 U.S.C. 1154(b)), arguing the Court cannot consider the NTSB Report-despite having asked the Court to take judicial notice of it. Based on 1154(b), the Court declines to take judicial notice of the Report. However, as stated, the evidence nonetheless does not permit the granting of summary judgment. Others Comments: Future Hearings and Vacated Hearings October 10, 2019 1:30 PM Mandatory Settlement Conference Grandsaert, John L. Courtroom 2D November 04, 2019 9:00 AM Jury Trial Master Calendar, - 3