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GARRY L. MONTANARI, State Bar No. 89790 by Superior Court of California, County of San Mateo:
WESLEY S. WENIG, State Bar No. 162351 ON 2/18/2021
JOHN H. MOON, State Bar No, 253811 /s/ Crystal Swords
MICHAELIS, MONTANARI & JOHNSON, P.C. By.
Deputy Cle:
4333 Park Terrace Dr. #100
Westlake Village, CA 91361
Telephone No.: (818) 865-0444
Attorneys for defendants, STEPHEN MAGEE and
SAC AERO FLYING CLUB, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN MATEO
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BRYAN TRUJILLO and CINDY Case No.: 18CIV01901
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TRUJILLO, Honorable Nancy L. Fineman; Dept. 4
DEFENDANTS’ MOTION IN LIMINE
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Plaintiffs, NO. 4 RE: EXCLUDING EVIDENCE
OF DIMINUTION IN VALUE AND
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VS. CLAIMS IN CONNECTION WITH
PLAINTIFFS’ REAL PROPERTY;
MEMORANDUM OF POINTS AND
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STEPHEN MAGEE, SAC AERO FLYING AUTHORITIES; DECLARATION OF
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CLUB, INC. and DOES 1 - 50, GARRY MONTANARI FILED
SEPARATELY
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Defendants. Date: March 8, 2021
Time: 1:30 p.m.
Dept.: 4
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Complaint filed: April 17, 2018
19 Trial Date: TBD
20 TO ALL PARTIES AND THEIR COUNSEL OF RECORD:
21 PLEASE TAKE NOTICE that on March 8, 2021 at 1:30 p.m., or as soon thereafter the
22 matter may be heard in Department 4of the above-entitled Court, located at 1050 Mission Road,
23 South San Francisco, CA 94080, defendants STEPHEN MAGEE and SAC AERO FLYING CLUB,
24 INC., will and hereby do move in limine for an order excluding evidence of diminution in value and
25 claims concerning any alleged diminution in value of plaintiffs BRYAN TRUJILLO’s and CINDY
26 TRUJILLO’s (collectively, “plaintifis”) property in connection with the aircraft accident in this case,
27 This motion is brought on the following grounds: (1) the alleged trespass/nuisance involved in this
28 action is “continuing” (and not permanent), which precludes a diminution in value claim; and (2)
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NOTICE OF MOTION AND MOTION IN LIMINE NO. 4 RE: EXCLUDING DIMINUTION IN VALUE AND
-LAIMS IN CONNECTION WITH PLAINTIFFS’ REAL PROPERTY; MEMO, POINTS AND AUTHORITIES
even if diminution in value is allowed, the cost of restoration/abatement is less and has been paid
by defendants.
Specifically, defendants hereby move this Court for an order, in limine, prohibiting any and
all counsel, parties, and witnesses from introducing into evidence, contending, mentioning, or
making reference to a diminution in value of plaintiffs’ property.
This motion is based on this notice of motion and motion, the accompanying memorandum
of points and authorities, the pleadings, records, and files in this matter and such further evidence
or argument as may be presented at the hearing on the motion.
10 DATED: February 11, 2021 MICHAELIS, MONTANARI & JOHNSON
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12 By:
GAR L. MONTANARI
13 Attorn s for Defendants STEPHEN MAGEE
and SAC AERO FLYING CLUB, INC.
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NOTICE OF MOTION AND MOTION IN LIMINE NO. 4 RE; EXCLUDING DIMINUTION IN VALUE AND
CLAIMS IN CONNECTION WITH PLAINTIFFS’ REAL PROPERTY; MEMO. POINTS AND AUTHORITIES
MEMORANDUM OF POINTS AND AUTHORITIES
I INTRODUCTION
This lawsuit arises out of an aircraft accident which took place near the approach end of
Runway 12 at Half Moon Bay Airport (SHAF”) on November 18, 2016. Defendant STEPHEN
MAGEE was piloting a single-engine aircrafl owned by defendant SAC AERO FLYING CLUB,
INC. (collectively, “defendants”) when he encountered unforecast wind shear turbulence while about
400 feet above the ground on approach for landing. The turbulence caused a loss of control at low
altitude and created a sudden and unexpected emergency, MAGEE tried to regain control but ended
up coming down on a street, a neighbor’s property and then coming to rest on BRYAN TRUJILLO’s
10 and CINDY TRUJILLO’s (collectively, “plaintiffs”) property. Mr, MAGEE’s wife, a passenger in
il the aircrafi, suffered fatal injuries. Plaintiffs’ residence is located approximately 300 yards from the
12 approach end of Runway 12.
13 About 38 gallons of the aviation gasoline (like automotive gasoline) spilled from the subject
14 aircraft onto plaintiffs’ car parking pad. Plaintiffs’ lot was sloped towards the master bedroom so
1s the gasoline flowed in that direction. About 83 tons of soil were removed and air, soil and
16 groundwater was tested over the next two years.
17 The cleanup of the gasoline spill was overseen by the San Mateo County Environmental
18 Health Department (“County”). The County required sampling of indoor and outdoor air, soil, soil
19 vapor and groundwater. This was supervised by Rick Railsback at CURA out of Plano, Texas, who
20 retained Orion Environmental in California. Orion tested soil, groundwater and air to comply with
21 the requirements imposed by the County. The plaintiff's do not get their water from wells, rathe
22 from a public water supply system. The plaintiffs did not pay for any of this monitoring.
23 By letter of April 9, 2019, the County recommended closure of the site. The County allowed
24 60 days for any person to comment or object to site closure. No one objected to site closure,
25 including the plaintiffs or any experts retained by the plaintiffs for this case. On November [2, 2020,
26 the County declared that the site was permanently remediated under Health and Safety Code section
27 101480(e).
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NOTICE OF MOTION AND MOTION IN LIMINE NO. 4 RE: EXCLUDING DIMINUTION IN VALUE AND
-LAIMS IN CONNECTION WITH PLAINTIFFS’ REAL PROPERTY; MEMO. POINTS AND AUTHORITIES
Despite the facts, plaintiffs’ expert Eric Risberg will attempt to testify about the reduction
in value of plaintiffs’ property based on his estimate of what the repair costs would be as of the time
of the accident. Such testimony would be contrary to reality and the fact that the property has already
been repaired/abated/ remediated, Accordingly, we do not need any such estimate. We know
exactly what the remediation/monitoring costs are, $249,098.59, none of which was paid by
plaintiffs and all of which were paid by defendants, either directly or by settling with intervenors.
Moreover, the County is not requiring any further testing and they did not issue any deed restriction
due to any potential unabatable contamination.
Yet, plaintiffs still claim through the testimony of Eric Risberg damages for diminution in
10 value of $688,350, or 53% of the value of their home in prestigious Seal Cove of Moss Beach. Mr.
11 Risberg’s diminution in value opinion specifically includes estimated costs to repair (abate) the
12 contamination and assumes that the property is in its unabated/unrepaired state. This, obviously,
13 is contrary to the actual facts and to allow such diminution in value damages based on a fictional
14 unabated/unrepaired condition of the property would result in a double recovery prohibited by
15 California law.
16 As set forth below, plaintiffs’ recovery of damages for diminution of value under the facts
17 of this case is prohibited by California law. Accordingly, the Court is requested to bar all evidence,
18 argument, and requests for damages regarding alleged diminution in value of plaintiffs’ property.
19 II. THE COURT HAS AUTHORITY TO GRANT
20 PRETRIAL MOTIONS BASED UPON ITS INHERENT
2. AUTHORITY TO PROVIDE FOR ORDERLY
22 PROCEEDINGS
23 Code of Civil Procedure section 128 provides, in pertinent part: “(a) Every court shall have
24 the power to do all of the following: .. (3) To provide for the orderly conduct of proceedings before
25 it, or its officers . . .(8) To amend and control its process and orders so as to make them conform to
26 law and justice...” (Code of Civ. Proc. §128.)
27 Every court has the inherent power to regulate the proceedings or matter before it, and to
28 effect the orderly disposition of the issues presented. (Cooper v. Superior Court (1961) 55 cal.2d
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NOTICE OF MOTION AND MOTION IN LIMINE NO. 4 RE: EXCLUDING DIMINUTION IN VALUE AND
(LAIMS IN CONNECTION WITH PLAINTIFFS’ REAL PROPERTY; MEMO. POINTS AND AUTHORITIES
291. Courts enjoy broad discretion with respect to the exclusion of evidence in ruling on motions
in limine. (Cuevas v. Contra Costa County (2017) 11 Cal.App.5th 163.) Thus, the Court’s power to
grant a pretrial motion, such as a motion in limine, is found in the Court’s inherent power to provide
for orderly conduct of the proceedings before it.
Hi. UNDER CALIFORNIA LAW. DAMAGES FOR
DIMINUTION IN VALUE FOR A CONTINUING AND
ABATABLE NUISANCE OR TRESPASS ARE NOT
RECOVERABLE
‘The analysis for determining whether a trespass is permanent or continuing is the same as
10 for a nuisance cause of action. (Capogeannis v. Superior Court (1993) 12 Cal.App.4th 668, 675
11 (“Capogeannis”); Starrh & Starrh Cotton Growers v. Aera Energy LLC (2007) 153 Cal. App. 4th
12 583, 594 (“Starrh”) (generally, principles governing the permanent or continuing nature of'a trespass
13 or nuisance are the same).) As such, the terms “trespass” and “nuisance” will be referred to
14 interchangeably for purposes of this motion.
1 55 If a nuisance/trespass is not permanent and can be abated, the plaintiff cannot recover
16 diminution in value. In such cases, plaintiffs’ damages are limited to the temporary loss in the rental
1? or use value of the premises during the existence of the nuisance. (Spaulding v. Cameron (1954)
18 127 Cal.App.2d 698, 704-706; Pahl v. Ribero (1961) 193 Cal. App.2d 154, 164; Rhodes v, San Mateo
19 Inv. Co, (1955) 130 Cal.App.2d 116, 118.) To have the cause ofdepreciation removed and at the
20 same time recover for depreciation in value would amount to a double recovery. (Spaulding v.
21 Cameron (1952) 38 Cal.2d 265, 269; Rhodes v. San Mateo Inv. Co., supra, 130 Cal.App.2d at 118;
22 Alexander v. McKnight (1992) 7 Cal.App.4th 973, 979 (recovery for future loss in resale value of
23 plaintiffs’ homes due to disclosure of “difficult” neighbors was improper where neighbors were
24 ordered to cease offensive activities); Santa Fe Partnership y. ARCO Products Co. (1996) 46
25 Cal.App.4th 967, 975 (citing Spaulding v. Cameron, supra, for proportion a plaintiff-landowner
26 cannot recover diminution in value where the nuisance is continuing and abatable); also, see Witkin,
27 13 Summary of California Law, Equity, §74, p. 510.)
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NOTICE OF MOTION AND MOTION IN LIMINE NO, 4 RE: EXCLUDING DIM{NUTION IN VALUE AND
LAIMS IN CONNECTION WITH PLAINTIFFS’ REAL PROPERTY; MEMO, POINTS AND AUTHORITIES
Thus, “[u]nder California law, damages for diminution in value may only be recovered for
permanent, not continuing, nuisances.” (Gehr v, Baker Hughes Oil Field Operations, Inc. (2008)
165 Cal.App.4th 660, 663 (Emphasis added); See also, Santa Fe Partnership, supra, 46 Cal.App.4th
at 975 (plaintiff cannot recover diminution in value damages for a continuing nuisance claim).)
The Court of Appeal in Gehr explained, in pertinent part, as follows:
“One reason a plaintiff in a continuing nuisance case may not recover
diminution in value damages is that ‘the [p]laintiff would obtain a
double recovery if she could recover for the depreciation in value and
also have the cause of that depreciation removed.’ (Citation omitted.)
10 Another reason is that ‘if the defendant is willing and able to abate
i. the nuisance, it is unfair to award damages on the theory that it will
12 continue. [Citations.]’”
13 (Gehr, supra, 165 Cal.App.4th at 668.)
14 Substantial evidence shows that the trespass/nuisance alleged by Plaintiffs has been abated
15 in accordance with government standards, This has been ratified by plaintiffs’ conduct of choosing
16 not to object to site closure and moving back into the property consistent with the recommendation.
17 of their consultant. Therefore, diminution in value damages are not permitted in this case under
18 California law.
19 JV. BECAUSE THE TRUJILLOS’ PROPERTY HAS
20 ALREADY BEEN REPAIRED/ABATED, AND THE
21 COST OF ABATEMENT HAS BEEN PAID _ BY
22 DEFENDANTS, DIMINUTION IN VALUE CANNOT
23 BE RECOVERED
24 The test most often used by courts in contamination cases to determine whether a trespass/
25 nuisance is “continuing” is whether the condition can be abated. (See Wilshire Westwood Associates
26 y. Atlantic Richfield Co. (1993) 20 Cal.App.4th 732, 744 (“Wilshire®); Capogeannis, supra, 12 Cal.
27 App. 4th 668, and Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 1146.)
28 “Abatement is simply another word for restoration.” (Starrh, supra, 153 Cal.App.4th at 599.) A
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NOTICE OF MOTION AND MOTION IN LIMINE NO, 4 RE: EXCLUDING DIMINUTION IN VALUE AND
CLAIMS IN CONNECTION WITH PLAINTIFFS’ REAL PROPERTY; MEMO. POINTS AND AUTHORITIES
claimant “may recover the costs of restoration . .. only if cleaning up the contamination is possible
ot economically practical.” (Jd) As stated by the Supreme Court, “‘abatable’ means that the
nuisance can be remedied at a reasonable cost by reasonable means.” (Mangini ». Aerojei-General
Corp. (1996) 12 Cal.4th 1087, 1103.) “[S]omething less than total decontamination may suffice to
show abatability.” (/d. at 1098.) In this case, the facts are that the County has already determined
that the fuel spill was abated, the waste permanently remediated and the site closed, The County’s
determination of abatement demonstrates that the condition of the TRUJILLOS?’ property has been
remediated at a “reasonable” or “practical” cost by a “reasonable” means. As set forth below, case
law concerning such conclusions by government agencies supports this determination as a matter
10 of law.
11 In Capogeannis, the plaintiffs argued that the nuisance was permanent, not “continuing,”
12 because remediation would take considerable time and not wholly remove the contamination. The
13 Court of Appeal rejected this argument and held that if plaintiffs were able to remediate to levels
14 acceptable by public agencies, then such a finding by a public agency was sufficient to show
15 abatability. (/d.) In finding that the nuisance was “continuing,” the Court of Appeal stated “we are
16 satisfied to presume that cleanup standards set by responsible public agencies sufficiently reflect
17 expert appraisal of the best that can be done to abate contamination in particular cases. As judges
18 we will not presume to insist upon absolutes these agencies do not require.” (Capogeannis, supra,
19 12 Cal. App. 4th at 682-683. (Emphasis added).)
20 In a case involving a subterranean oil leak, in which trespass and nuisance causes of action
21 were asserted, a Court of Appeal stated “[c]leaning up contamination to a level acceptable to or
22 ordered by a government agency may suffice to establish that a trespass or nuisance is abatable and
23 therefore continuing.” (Holdgrafer v, Unocal Corp. (2008) 160 Cal.App.4th 907, 926-7, citing
24 Mangini, supra, 12 Cal.Ath at 1102.)
25 Similarly, in Cottle v. Superior Court (Oxnard Shores Co.) (1992) 3 Cal.App.4th 1367
26 (“Cottle”), the Court of Appeal affirmed the trial court’s exclusion of evidence concerning injuries
27 related to the exposure to chemicals from the site. The Court of Appeal and the trial court relied on
28 a public agency conclusion that the chemicals did not pose any significant threat to the health of the
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NOTICE OF MOTION AND MOTION IN LIMINE NO, 4 RE: EXCLUDING DIMINUTION IN VALUE AND
CLAIMS IN CONNECTION WITH PLAINTIFFS’ REAL PROPERTY; MEMO. POINTS AND AUTHORITIES
plaintiffs. (/d. at 1372.) The Court of Appeal also noted that the public agency determined that no
further action was required and closed the case. (Jd, at 1383.)
In Carson Harbor Vill, Ltd. v. Unocal Corp. (C.D, Cal. 2003) 287 F.Supp.2d 1118, the court
applied California law to dismiss plaintiffs’ permanent nuisance claim based on lead contamination
when “{t]he [Regional Water Quality Board] issued a clean closure report... which stated that all
appropriate remedial measures had been taken [and] Carson Harbor has not presented adinissible
evidence that a sufficient degree of contamination presently remains at the site that it constitutes a
permanent nuisance . . .” (d. at 1203-1204.) The site closure by San Mateo County likewise
precludes plaintiffs’ claims for diminution in value based on permanent nuisance.
10 Also in accord is Wilshire, in which the Court of Appeal held that the Department of Health
il Services’ findings, set forth in a correspondence, that the cleanup of a gas spill was complete and
12 adequate was conclusive that the nuisance was abatable, (Wilshire, supra, 20 Cal.App.4th at 744-
13 745.)
14 When a nuisance is eliminated, the cause of the diminution in value will also be eliminated,
15 making an award of damages for future harm unnecessary and unjust. (Gehr, supra, 165 Cal.App.4th
16 at 667, fn. 7.)
17 Here, the County’s findings set forth in its correspondences serve as dispositive evidence that
18 plaintiffs’ nuisance/trespass claim is continuing, and nof permanent, since the aviation fuel spill has
19 been abated. On April 9, 2019, the County sent a second letter recommending case closure, finding
20 that any minimal residual contaminants would naturally attenuate. (Decl. Montanari, Ex. A.) On
24 November 12, 2020, County sent a letter (Decl. Montanari, Ex. B) confirming no further action
22 related to the release of waste at the site is required. The notice expressly complies with Health and
23 Safety Code section 101480(e) attesting that a permanent remedy for the release of waste has been
24 achieved. The County’s findings are conclusive evidence that the nuisance/trespass has been abated,
25 Gee, e.g., Wilshire, supra, 20 Cal.App.4th at 744-745.)
26 Defendants anticipate Plaintiffs raising an impracticality argument that the nuisance/trespass
27 is permanent and not completely remediated. Case law, however, makes clear that judges will not
28 insist upon supplemental requirements not set forth by the public agency. (Capogeannis, supra, 12
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NOTICE OF MOTION AND MOTION IN LIMINE NO. 4 RE: EXCLUDING DIMINUTION IN VALUE AND
(LATMS IN CONNECTION WITH PLAINTIFFS’ REAL PROPERTY; MEMO. POINTS AND AUTHORITIES
Cal. App. 4th at 682-683.) The Sixth District Court of Appeal has already rejected the argument
concerning disregarding the public agency’ s findings in an attempt to set forth an additional standard
involving wholly removing the contamination. (/d.) Since the County has recommended “case
closure,” and plaintiffs’ expert recommended immediate re-occupation of the property, no additional
remediation work is necessary. (Decl. Montanari, Ex. B.)
As stated by the Supreme Court in Mangini, abating a nuisance occurs when it is done by
reasonable means at a reasonable cost. (Mangini, supra, 12 Cal.4th at 1103.) So plaintiffs’ claims
for unreasonable damages for an unreasonable level of abatement beyond what the County has found
necessary are not permissible. “It is black-letter law that damages which are speculative, remote,
10 imaginary, contingent or merely possible cannot serve asa legal basis for recovery.” (Mozzetti v. City
dl of Brisbane (1977) 67 Cal.App.3d 565, 577, citation omitted.)
12 Accordingly, the Court should exclude Plaintiffs’ diminution in value claim along with any
13 and all related evidence because the nuisance/trespass is continuing, was repaired/abated at
14 plaintiffs’ request, has already been completely and reasonably abated, and any evidence to the
15 contrary is based on speculation.
16 Vv EVEN IF PLAINTIFFS ARE ONLY ENTITLED TO
a7 DIMINUTION IN VALUE, REASONABLE COST OF
18 REPAIR/ABATEMENT IS LESS AND HAS BEEN PAID
19 BY DEFENDANTS
20 “The general rule is that if the cost of repairing the injury and
21 restoring the premises to their original condition amounts to less than
22 the diminution in value of the property, such cost is the proper
23 measure of damages; and if the cost of restoration will exceed such
24 diminution in value, then the diminution in value of the property is
25 the proper measure [citation.]”
26 (Starrh & Starrh Cotton Growers y, Aera Energy LLC (2007) 153 Cal. App.4th 583, 599.)
27 The damage inquiry turns on which of the two is the lesser amount: $688,350 alleged
28 diminution in value or approximately $249,098.59 for the cost of restoration/abatement that has
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NOTICE OF MOTION AND MOTION IN LIMINE NO. 4 RE: EXCLUDING DIMINUTION IN VALUE AND
CLAIMS IN CONNECTION WITH PLAINTIFFS’ REAL PROPERTY; MEMO. POINTS AND AUTHORITIES
already been paid by defendants. (Decl. Montanari, Exhibit D.) Since restoration/abatement is the
lesser amount this would be the proper measure of damages.
Vi. CONCLUSIO)
Based on the foregoing, the Court should exclude plaintiffs’ diminution in value damages
claim and any and all related evidence, as set forth in the Notice of Motion.
DATED: February 11, 2021 MICHAELIS, MONTANARI & JOHNSON
By
ARRY ONTANARI
10 Attorneys i Defendants STEPHEN MAGEE
and SAC AERO FLYING CLUB, INC.
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NOTICE OF MOTION AND MOTION IN LIMINE NO. 4 RE: EXCLUDING DIMINUTION IN VALUE AND
LAIMS IN CONNECTION WITH PLAINTIFFS’ REAL PROPERTY; MEMO. POINTS AND AUTHORITIES
PROOF OF SERVICE
STATE OF CALIFORNIA )
S.S.
COUNTY OF LOS ANGELES )
Tam employed in the County of Los Angeles, State of California. I am over the age of 18
and not a party to the within action; my business address is 4333 Park Terrace Dr. #100, Westlake
Village, California 91361.
On February 11, 2021, I served the foregoing document described as DEFENDANTS’
MOTION IN LIMINE NO. 4 RE: EXCLUDING EVIDENCE OF DIMINUTION IN VALUE
AND CLAIMS IN CONNECTION WITH PLAINTIFFS’ REAL PROPERTY;
MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF GARRY
MONTANARI FILED SEPARATELY on the interested parties in this action by placing a true
copy thereof in a sealed envelope with postage thereon fully prepaid in the United States mail at
Westlake Village, California, addressed as follows:
10 Michael S$. Danko, Esq. Attorneys for Plaintiffs
Shawn Miller, Esq.
di, Danko Meredith
333. Twin Dolphin Dr. #145
12 Redwood Shores, CA 94065
tel: (650) 453-3600; fax: (650) 394-8672
bed Email: mdanko@dankolaw.com; smiller@dankolaw.com
14 [Xx] (MAIL) I deposited such envelope addressed in the mail at Westlake Village, California.
The envelope was mailed with postage thereon fully prepaid. 1 am “readily familiar” with firm’s
15 practice of collection and processing correspondence for mailing. It is deposited with U.S. postal
service on that same day in the ordinary course of business. I am aware that on motion of party
16 served, service is presumed invalid if postal cancellation date or postage meter date is more than 1
day after date of deposit for mailing in affidavit.
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18 [Xx] (ELECTRONIC TRANSFER) | caused all of the pages of the above-entitled document to
be sent to the recipient noted above via electronic transfer (email) at the respective email addresses
LG: indicated above because of the COVID-19 virus.
20 0 (FEDERAL EXPRESS) I deposited such envelope addressed at the Federal Express office
located at Westlake Village, California. The envelope was mailed fully prepaid. I am “readily
21 familiar” with firm’s practice of collection and processing correspondence for mailing with Federal
Express. It is deposited with the Westlake Village Federal Express service on that same day in the
22 ordinary course of business. I am aware that on motion of party served, service is presumed invalid
if cancellation date is more than | day after date of deposit for overnight mailing in affidavit.
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24 I declare under penalty of perjury under the laws of the State of California that the foregoing
is true and correct.
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26 Executed on February 11, 2021 at Westlake Village, California.
27 f
Barbara Haussménn,
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GARRY L. MONTANARI, State Bar No. 89790
WESLEY S. WENIG, State Bar No. 162351
JOHN H. MOON, State Bar No. 253811
MICHAELIS, MONTANARI & JOHNSON, P.C.
4333 Park Terrace Dr. #100
Westlake Village, CA 91361
Telephone No.: (818) 865-0444
Attorneys for defendants, STEPHEN MAGEE and
SAC AERO FLYING CLUB, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN MATEO
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BRYAN TRUJILLO and CINDY Case No.: 18CTV01901
TRUJILLO, Honorable Nancy L. Fineman; Dept. 4
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DECLARATION OF GARRY L,
Plaintiffs, MONTANARI IN SUPPORT OF
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MOTION IN LIMINE NO. 4 RE:
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VS. EXCLUDING EVIDENCE OF
DIMINUTION IN VALUE AND
15 CLAIMS IN CONNECTION WITH
STEPHEN MAGEE, SAC AERO FLYING PLAINTIFFS’ REAL PROPERTY
16 CLUB, INC, and DOES 1 - 50,
Date: March 8, 2021
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Defendants. Time: 1:30 p.m.
Dept.: 4
18 Complaint filed: April 17, 2018
Trial Date: TBD, 2021
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20 I, GARRY L. MONTANARIL, declare and state:
21 1 Tam an attorney at law duly licensed to practice before all the Courts of the State of
22 California, | am a partner with the law firm of Michaelis, Montanari & Johnson, counsel of record
23 for defendants STEPHEN MAGEE and SAC AERO FLYING CLUB, INC. I have personal
24 knowledge of the matters set forth below and could testify thereto in any proceeding in this litigation
25 2. Attached hereto, marked ExhibitA and incorporated herein by reference, is a true and
26 correct copy of April 9, 2019 correspondence from the San Mateo County Environmental Health
27 Department “(County”), Significantly, in the County’s letter, the County recommends the site for
28 “case closure.” It provides that any residual contaminants will cithcr “naturally attenuate” or are not
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DEC. MONTANARL IN SUPPORT OF MOTION IN LIMINE NO. 4 RE: EXCLUDING EVIDENCE OF DIMINUTION IN
‘ALUE AND CLAIMS IN CONNECTION WITH PLAINTIFFS’ REAL PROPERTY
anticipated to be encountered.
3 Attached hereto, marked Exhibit B and incorporated herein by reference, is atrue and
correct copy of a letter from the County dated November 12, 2020 confirming the site has been
permanently remediated under Health and Safety Code section 101480(e).
4 Attached hereto, marked Exhibit C and incorporated herein by reference, is atrue and
correct copy of excerpts of deposition of CINDY TRUJILLO taken on August 28, 2019, page 77,
lines 18-21 confirming plaintiffs moved back into the residence on January 15, 2019.
5 Attached hereto, marked Exhibit D and incorporated herein by reference, is a list of
costs to remediate and monitor the plaintiffs’ property paid either directly by defendants or through
10 settlement with the intervenor.
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12 I declare under penalty of perjury under the laws of the State of California that the foregoing
13 is true and correct.
14 Executed this 1 ith day of February, 2021, at estlake Village, California.
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GARRY/Li MONTANARI
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DEC. MONTANARI IN SUPPORT OF MOTION IN LIMINE NO. 4 RE: EXCLUDING EVIDENCE OF DIMINUTION IN
‘ALUE AND CLAIMS IN CONNECTION WITH PLAINTIFFS’ REAL PROPERTY,
EXHIBIT A
« Forshay, MS, REHS
COUNTY or SAN MATEO Environmental Health Services
San Mateo County Health
2000 Alarneda de las Pu'gas
Suite LOO
San Mateo, CA 94403
smehealth.org
April 9, 2019
SMCo Case #019048 / RO #2261
APN: 037-226-100
Bryan C and C L Trujillo Trs
PO Box 458
Moss Beach, CA 94038
(via cindytrujillo@yahoo.com)
SUBJECT: PENDING CASE CLOSURE, TRUJILLO RESIDENCE,
1065 PARK WAY, MOSS BEACH, CA 94038
Dear Mr. and Mrs. Trujillo,
As you are aware, the above referenced property, to which you are the recorded owner, has been
undergoing environmental investigations regarding aviation gas in soil, soil gas, and groundwater
in the location where a small aircraft came to rest after crashing on approach toHalf Moon Bay
Airport. Atuthi: time; Count De partnentGra ndw ev Protection) Program:
pp
Aayeresidualscontaminants:
rea son
aTeaso le amoui
mbes land us This is based on resolutions
issued by the State Water Resources ControlBoard.
As part of GPP’s public participation, you are notified when site closure is proposed. You are
being notified of a 60-day comment period to the case closure recommendation for this site.
Should you have any questions, please contact me at (650) 272-4590 or bgwinn(@smegov.org.
Sincerely,
BG
Brian Gwinn, PG
Hazardous Materials Specialist
Groundwater Protection Program
hes NEUE Va ae)
ue Oy POU NINA: as
EXHIBIT B
a Heather Forshey, iS, RENS
Director
COUNT Yor SAN MATEQ Envitmmnental Health Services
Rte San Mateo County Health
2000 Alameda de Jas Pulgas
Suite 100
San Mateo, CA 94403
smehealth.org
November 12, 2020
SMCo #019048 / RO #2261
APN: 037-226-100
Sac Aero Flying Company
c/o Garry Montanari (gmontanari@mmijlaw.net)
Michaelis, Montanari & Johnson
4333 Park Terrace Drive, Suite 110
Westlake Village, CA 91361
SUBJECT: TRUJILLO RESIDENCE, 1065 PARK WAY, MOSS BEACH, CA 94038
Dear Sac Acro Flying Company:
This letter confirms the completion of site investigation and remedial action activities for the
release of waste formerly located at the above-described location. Thank you for your
cooperation throughout this investigation. Your willingness and promptness in responding to our
inquiries concerning the release of waste are greatly appreciated.
Based on information in the above-referenced file, and with the provision that the information
provided to this agency was accurate and representative of site conditions, this agency finds that
the site investigation and remedial action cartied out at the above-referenced site satisfies the
cleanup goal requiremenis of the remedial action agreement between the responsible party and
San Mateo County Environmental Health as.outlined in Section 101480 of the Health and Safety
Code, and that no further action related to the release of waste at the site is required.
This notice is issued pursuant to subdivision (e) of Section 101480 of the Health and Safety
Code. Please contact our office if you have any questions regarding this matter.
Sincerely,
ital nod Sanda st FS
Bt. Cte geen For
Date zea az 1s7
ott
Heather Forshey, MS, REHS
Director, Environmental Health
Lb STE)
OC ae ea ais
SMCo Site #019048 (1065 Park Way, Moss Beach)
November 12, 2020
Page 2 of 2
CC: State GeoTracker database
Bryan and Cindy Trujillo, cindytrujillo@yahoo.com
Tamara Gabel, tamara@elmconsulting,com
Scott Stromberg, Orion Environmental Inc., stromberg@orionenv.com
Anita Smith, Allied P&C Insurance, smitha24@nationwide.com
Rick Railsback, CURA, rick@curases.com
EXHIBIT C
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN MATEO
BRYAN TRUJILLO and CINDY
TRUJILLO,
Plaintiffs,
vs. CASE NO. 18CIV91901
STEPHEN MAGEE, SAC AERO FLYING
CLUB, INC, , and DOES 1-50,
Defendants.
ALLIED PROPERTY AND CASUALTY
INSURANCE COMPANY; AMCO
10 INSURANCE COMPANY,
11 Plaintiffs-in-Intervention,
12 vs.
13 STEPHEN MAGEE, SAC AERO FLYING
CLUB, INC.; and DOES 1-20,
14
Defendants.
15
16
17
VIDEOTAPED DEPOSITION OF
18
Redwood City, California
19
Thursday, August 29, 2019
20
21
22
Reported by:
23 LYDIA ZINN
RPR, FCRR, CSR No. 9223
24 Job No. CA 3478869
25 PAGES 1 = 129
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MR. MONTANARI: Bes IT use the same numbers 09:31:25
from yesterday. So this is going to be 19.
(Deposition Exhibit 19 received in evidence.)
BY MR. MONTANARI
Q I want to direct your attention to Exhibit A, 09:31:53
which asks for seven categories of documents. Do
you -- just look through them. Do you believe you have
given all of the documents responsive to these seven
categories to your attorney?
10 A Th. 09:32:43
it Q Okay. Which ones haven't you given your attorney?
12 A There are some e-mails on Number 7 back and forth
13 to Nationwide that we haven't had a chance to send to
14 you.
15 MR. CHOO: Mm-hm. 09:32:58
16 THE WITNESS: Look those over.
17 BY MR. MONTANART
18 Q Are these recent e-mails?
19 A I think since -- was it February? I believe
20 probably in the last six to eight months, I'm going to 09:33:09
21 say.
22 Q Has that been since you moved back into your home?
23 A Some before, and some since. Yes.
24 Q ‘Okay. xy
25 ‘Correct? 09:33:31
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A —_ 09:33:31
Q Do you know what these e-mails involve? Is there
a general topic; or they're just all to do with the
claim?
A Yes. Trying to get our house repaired -- our 09:33:42
house and yard repaired.
Q Okay. Before we get into that, I don't recall
ever getting a copy of your Complaint to the Department
of Insurance. Do you still have that?
10 A I would have to look back in my files. I don't -- 09:34:05
11 I believe I gave our attorneys all the files I had
12 regarding anything that would have been made to the
13 California Department of Insurance.
14 Q Tell me what you recall putting in the Complaint.
15 What were the complaints you made against Nationwide? 09:34:29
16 A Well, we felt that Nationwide was not responding
17 quickly enough to the chemical damage that was done --
18 gasoline spill done to our house. We didn't -- we
19 needed help.
20 Q How long do you feel that Nationwide delayed in 09:35:16
21 responding to the chemical spill at your house? One
22 month? Two months? Five months? Ten months?
23 A I believe it was probably one to two months'
24 delay. There was no immediate action, once we realized
25 what had happened, from Nationwide. 09:35:52
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EXHIBIT D
COSTS TO REMOVE (REMEDIATION)
AND TESTING OF AIR, SOIL AND GROUNDWATER (MONITORING).
Ee
SERA
R
AC
move an
dispose of soil
where gas
spilled
Plaintiffs' Homeowner
PT& ¢ Forensics $ 2,591.44
Insurer
Plaintiffs’ Homeowner
Balch Petroleum 60,942.70
Insurer
Plaintiffs’ Homeowner
IRC Environmental $ 32,070.00
Insurer
Plaintiffs' Homeowner
ECC Horizon Pollution 5,009.04
Insurer
Receipts for Plaintiffs' Homeowner
5,416.37
materials/expenses Insurer
( \ Subtotal
7
106,029.55
Testing of air,
soil and
groundwater
Cura 16,532.89 Defendants
Orion Environmental 115,359.15 Defendants
Subtotal 131,892.04
Government
Approval
San Mateo County
11,177.00 Defendants
Health Dept.
Subtotal 11,177.00
GRAND TOTAL 49 50
PROOF OF SERVICE
STATE OF CALIFORNIA )
S.S.
COUNTY OF LOS ANGELES )
Preview
Electronically GARRY L. MONTANARI, State Bar No. 89790 by Superior Court of California, County of San Mateo: WESLEY S. WENIG, State Bar No. 162351 ON 2/18/2021 JOHN H. MOON, State Bar No, 253811 /s/ Crystal Swords MICHAELIS, MONTANARI & JOHNSON, P.C. By. Deputy Cle: 4333 Park Terrace Dr. #100 Westlake Village, CA 91361 Telephone No.: (818) 865-0444 Attorneys for defendants, STEPHEN MAGEE and SAC AERO FLYING CLUB, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO 10 a1 BRYAN TRUJILLO and CINDY Case No.: 18CIV01901 12 TRUJILLO, Honorable Nancy L. Fineman; Dept. 4 DEFENDANTS’ MOTION IN LIMINE 13 Plaintiffs, NO. 4 RE: EXCLUDING EVIDENCE OF DIMINUTION IN VALUE AND 14 VS. CLAIMS IN CONNECTION WITH PLAINTIFFS’ REAL PROPERTY; MEMORANDUM OF POINTS AND 15 STEPHEN MAGEE, SAC AERO FLYING AUTHORITIES; DECLARATION OF 16 CLUB, INC. and DOES 1 - 50, GARRY MONTANARI FILED SEPARATELY 17 Defendants. Date: March 8, 2021 Time: 1:30 p.m. Dept.: 4 18 Complaint filed: April 17, 2018 19 Trial Date: TBD 20 TO ALL PARTIES AND THEIR COUNSEL OF RECORD: 21 PLEASE TAKE NOTICE that on March 8, 2021 at 1:30 p.m., or as soon thereafter the 22 matter may be heard in Department 4of the above-entitled Court, located at 1050 Mission Road, 23 South San Francisco, CA 94080, defendants STEPHEN MAGEE and SAC AERO FLYING CLUB, 24 INC., will and hereby do move in limine for an order excluding evidence of diminution in value and 25 claims concerning any alleged diminution in value of plaintiffs BRYAN TRUJILLO’s and CINDY 26 TRUJILLO’s (collectively, “plaintifis”) property in connection with the aircraft accident in this case, 27 This motion is brought on the following grounds: (1) the alleged trespass/nuisance involved in this 28 action is “continuing” (and not permanent), which precludes a diminution in value claim; and (2) -1- NOTICE OF MOTION AND MOTION IN LIMINE NO. 4 RE: EXCLUDING DIMINUTION IN VALUE AND -LAIMS IN CONNECTION WITH PLAINTIFFS’ REAL PROPERTY; MEMO, POINTS AND AUTHORITIES even if diminution in value is allowed, the cost of restoration/abatement is less and has been paid by defendants. Specifically, defendants hereby move this Court for an order, in limine, prohibiting any and all counsel, parties, and witnesses from introducing into evidence, contending, mentioning, or making reference to a diminution in value of plaintiffs’ property. This motion is based on this notice of motion and motion, the accompanying memorandum of points and authorities, the pleadings, records, and files in this matter and such further evidence or argument as may be presented at the hearing on the motion. 10 DATED: February 11, 2021 MICHAELIS, MONTANARI & JOHNSON 11 12 By: GAR L. MONTANARI 13 Attorn s for Defendants STEPHEN MAGEE and SAC AERO FLYING CLUB, INC. 14 15 NAITS17pld\bial\MLL - new\p-mt.limine,dim.val.4.wpd 16 17 18 19 20 21 22 23 24 25 26 27 28 2- NOTICE OF MOTION AND MOTION IN LIMINE NO. 4 RE; EXCLUDING DIMINUTION IN VALUE AND CLAIMS IN CONNECTION WITH PLAINTIFFS’ REAL PROPERTY; MEMO. POINTS AND AUTHORITIES MEMORANDUM OF POINTS AND AUTHORITIES I INTRODUCTION This lawsuit arises out of an aircraft accident which took place near the approach end of Runway 12 at Half Moon Bay Airport (SHAF”) on November 18, 2016. Defendant STEPHEN MAGEE was piloting a single-engine aircrafl owned by defendant SAC AERO FLYING CLUB, INC. (collectively, “defendants”) when he encountered unforecast wind shear turbulence while about 400 feet above the ground on approach for landing. The turbulence caused a loss of control at low altitude and created a sudden and unexpected emergency, MAGEE tried to regain control but ended up coming down on a street, a neighbor’s property and then coming to rest on BRYAN TRUJILLO’s 10 and CINDY TRUJILLO’s (collectively, “plaintiffs”) property. Mr, MAGEE’s wife, a passenger in il the aircrafi, suffered fatal injuries. Plaintiffs’ residence is located approximately 300 yards from the 12 approach end of Runway 12. 13 About 38 gallons of the aviation gasoline (like automotive gasoline) spilled from the subject 14 aircraft onto plaintiffs’ car parking pad. Plaintiffs’ lot was sloped towards the master bedroom so 1s the gasoline flowed in that direction. About 83 tons of soil were removed and air, soil and 16 groundwater was tested over the next two years. 17 The cleanup of the gasoline spill was overseen by the San Mateo County Environmental 18 Health Department (“County”). The County required sampling of indoor and outdoor air, soil, soil 19 vapor and groundwater. This was supervised by Rick Railsback at CURA out of Plano, Texas, who 20 retained Orion Environmental in California. Orion tested soil, groundwater and air to comply with 21 the requirements imposed by the County. The plaintiff's do not get their water from wells, rathe 22 from a public water supply system. The plaintiffs did not pay for any of this monitoring. 23 By letter of April 9, 2019, the County recommended closure of the site. The County allowed 24 60 days for any person to comment or object to site closure. No one objected to site closure, 25 including the plaintiffs or any experts retained by the plaintiffs for this case. On November [2, 2020, 26 the County declared that the site was permanently remediated under Health and Safety Code section 27 101480(e). 28 ii -3- NOTICE OF MOTION AND MOTION IN LIMINE NO. 4 RE: EXCLUDING DIMINUTION IN VALUE AND -LAIMS IN CONNECTION WITH PLAINTIFFS’ REAL PROPERTY; MEMO. POINTS AND AUTHORITIES Despite the facts, plaintiffs’ expert Eric Risberg will attempt to testify about the reduction in value of plaintiffs’ property based on his estimate of what the repair costs would be as of the time of the accident. Such testimony would be contrary to reality and the fact that the property has already been repaired/abated/ remediated, Accordingly, we do not need any such estimate. We know exactly what the remediation/monitoring costs are, $249,098.59, none of which was paid by plaintiffs and all of which were paid by defendants, either directly or by settling with intervenors. Moreover, the County is not requiring any further testing and they did not issue any deed restriction due to any potential unabatable contamination. Yet, plaintiffs still claim through the testimony of Eric Risberg damages for diminution in 10 value of $688,350, or 53% of the value of their home in prestigious Seal Cove of Moss Beach. Mr. 11 Risberg’s diminution in value opinion specifically includes estimated costs to repair (abate) the 12 contamination and assumes that the property is in its unabated/unrepaired state. This, obviously, 13 is contrary to the actual facts and to allow such diminution in value damages based on a fictional 14 unabated/unrepaired condition of the property would result in a double recovery prohibited by 15 California law. 16 As set forth below, plaintiffs’ recovery of damages for diminution of value under the facts 17 of this case is prohibited by California law. Accordingly, the Court is requested to bar all evidence, 18 argument, and requests for damages regarding alleged diminution in value of plaintiffs’ property. 19 II. THE COURT HAS AUTHORITY TO GRANT 20 PRETRIAL MOTIONS BASED UPON ITS INHERENT 2. AUTHORITY TO PROVIDE FOR ORDERLY 22 PROCEEDINGS 23 Code of Civil Procedure section 128 provides, in pertinent part: “(a) Every court shall have 24 the power to do all of the following: .. (3) To provide for the orderly conduct of proceedings before 25 it, or its officers . . .(8) To amend and control its process and orders so as to make them conform to 26 law and justice...” (Code of Civ. Proc. §128.) 27 Every court has the inherent power to regulate the proceedings or matter before it, and to 28 effect the orderly disposition of the issues presented. (Cooper v. Superior Court (1961) 55 cal.2d 4. NOTICE OF MOTION AND MOTION IN LIMINE NO. 4 RE: EXCLUDING DIMINUTION IN VALUE AND (LAIMS IN CONNECTION WITH PLAINTIFFS’ REAL PROPERTY; MEMO. POINTS AND AUTHORITIES 291. Courts enjoy broad discretion with respect to the exclusion of evidence in ruling on motions in limine. (Cuevas v. Contra Costa County (2017) 11 Cal.App.5th 163.) Thus, the Court’s power to grant a pretrial motion, such as a motion in limine, is found in the Court’s inherent power to provide for orderly conduct of the proceedings before it. Hi. UNDER CALIFORNIA LAW. DAMAGES FOR DIMINUTION IN VALUE FOR A CONTINUING AND ABATABLE NUISANCE OR TRESPASS ARE NOT RECOVERABLE ‘The analysis for determining whether a trespass is permanent or continuing is the same as 10 for a nuisance cause of action. (Capogeannis v. Superior Court (1993) 12 Cal.App.4th 668, 675 11 (“Capogeannis”); Starrh & Starrh Cotton Growers v. Aera Energy LLC (2007) 153 Cal. App. 4th 12 583, 594 (“Starrh”) (generally, principles governing the permanent or continuing nature of'a trespass 13 or nuisance are the same).) As such, the terms “trespass” and “nuisance” will be referred to 14 interchangeably for purposes of this motion. 1 55 If a nuisance/trespass is not permanent and can be abated, the plaintiff cannot recover 16 diminution in value. In such cases, plaintiffs’ damages are limited to the temporary loss in the rental 1? or use value of the premises during the existence of the nuisance. (Spaulding v. Cameron (1954) 18 127 Cal.App.2d 698, 704-706; Pahl v. Ribero (1961) 193 Cal. App.2d 154, 164; Rhodes v, San Mateo 19 Inv. Co, (1955) 130 Cal.App.2d 116, 118.) To have the cause ofdepreciation removed and at the 20 same time recover for depreciation in value would amount to a double recovery. (Spaulding v. 21 Cameron (1952) 38 Cal.2d 265, 269; Rhodes v. San Mateo Inv. Co., supra, 130 Cal.App.2d at 118; 22 Alexander v. McKnight (1992) 7 Cal.App.4th 973, 979 (recovery for future loss in resale value of 23 plaintiffs’ homes due to disclosure of “difficult” neighbors was improper where neighbors were 24 ordered to cease offensive activities); Santa Fe Partnership y. ARCO Products Co. (1996) 46 25 Cal.App.4th 967, 975 (citing Spaulding v. Cameron, supra, for proportion a plaintiff-landowner 26 cannot recover diminution in value where the nuisance is continuing and abatable); also, see Witkin, 27 13 Summary of California Law, Equity, §74, p. 510.) 28 ‘ti -5- NOTICE OF MOTION AND MOTION IN LIMINE NO, 4 RE: EXCLUDING DIM{NUTION IN VALUE AND LAIMS IN CONNECTION WITH PLAINTIFFS’ REAL PROPERTY; MEMO, POINTS AND AUTHORITIES Thus, “[u]nder California law, damages for diminution in value may only be recovered for permanent, not continuing, nuisances.” (Gehr v, Baker Hughes Oil Field Operations, Inc. (2008) 165 Cal.App.4th 660, 663 (Emphasis added); See also, Santa Fe Partnership, supra, 46 Cal.App.4th at 975 (plaintiff cannot recover diminution in value damages for a continuing nuisance claim).) The Court of Appeal in Gehr explained, in pertinent part, as follows: “One reason a plaintiff in a continuing nuisance case may not recover diminution in value damages is that ‘the [p]laintiff would obtain a double recovery if she could recover for the depreciation in value and also have the cause of that depreciation removed.’ (Citation omitted.) 10 Another reason is that ‘if the defendant is willing and able to abate i. the nuisance, it is unfair to award damages on the theory that it will 12 continue. [Citations.]’” 13 (Gehr, supra, 165 Cal.App.4th at 668.) 14 Substantial evidence shows that the trespass/nuisance alleged by Plaintiffs has been abated 15 in accordance with government standards, This has been ratified by plaintiffs’ conduct of choosing 16 not to object to site closure and moving back into the property consistent with the recommendation. 17 of their consultant. Therefore, diminution in value damages are not permitted in this case under 18 California law. 19 JV. BECAUSE THE TRUJILLOS’ PROPERTY HAS 20 ALREADY BEEN REPAIRED/ABATED, AND THE 21 COST OF ABATEMENT HAS BEEN PAID _ BY 22 DEFENDANTS, DIMINUTION IN VALUE CANNOT 23 BE RECOVERED 24 The test most often used by courts in contamination cases to determine whether a trespass/ 25 nuisance is “continuing” is whether the condition can be abated. (See Wilshire Westwood Associates 26 y. Atlantic Richfield Co. (1993) 20 Cal.App.4th 732, 744 (“Wilshire®); Capogeannis, supra, 12 Cal. 27 App. 4th 668, and Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 1146.) 28 “Abatement is simply another word for restoration.” (Starrh, supra, 153 Cal.App.4th at 599.) A -6- NOTICE OF MOTION AND MOTION IN LIMINE NO, 4 RE: EXCLUDING DIMINUTION IN VALUE AND CLAIMS IN CONNECTION WITH PLAINTIFFS’ REAL PROPERTY; MEMO. POINTS AND AUTHORITIES claimant “may recover the costs of restoration . .. only if cleaning up the contamination is possible ot economically practical.” (Jd) As stated by the Supreme Court, “‘abatable’ means that the nuisance can be remedied at a reasonable cost by reasonable means.” (Mangini ». Aerojei-General Corp. (1996) 12 Cal.4th 1087, 1103.) “[S]omething less than total decontamination may suffice to show abatability.” (/d. at 1098.) In this case, the facts are that the County has already determined that the fuel spill was abated, the waste permanently remediated and the site closed, The County’s determination of abatement demonstrates that the condition of the TRUJILLOS?’ property has been remediated at a “reasonable” or “practical” cost by a “reasonable” means. As set forth below, case law concerning such conclusions by government agencies supports this determination as a matter 10 of law. 11 In Capogeannis, the plaintiffs argued that the nuisance was permanent, not “continuing,” 12 because remediation would take considerable time and not wholly remove the contamination. The 13 Court of Appeal rejected this argument and held that if plaintiffs were able to remediate to levels 14 acceptable by public agencies, then such a finding by a public agency was sufficient to show 15 abatability. (/d.) In finding that the nuisance was “continuing,” the Court of Appeal stated “we are 16 satisfied to presume that cleanup standards set by responsible public agencies sufficiently reflect 17 expert appraisal of the best that can be done to abate contamination in particular cases. As judges 18 we will not presume to insist upon absolutes these agencies do not require.” (Capogeannis, supra, 19 12 Cal. App. 4th at 682-683. (Emphasis added).) 20 In a case involving a subterranean oil leak, in which trespass and nuisance causes of action 21 were asserted, a Court of Appeal stated “[c]leaning up contamination to a level acceptable to or 22 ordered by a government agency may suffice to establish that a trespass or nuisance is abatable and 23 therefore continuing.” (Holdgrafer v, Unocal Corp. (2008) 160 Cal.App.4th 907, 926-7, citing 24 Mangini, supra, 12 Cal.Ath at 1102.) 25 Similarly, in Cottle v. Superior Court (Oxnard Shores Co.) (1992) 3 Cal.App.4th 1367 26 (“Cottle”), the Court of Appeal affirmed the trial court’s exclusion of evidence concerning injuries 27 related to the exposure to chemicals from the site. The Court of Appeal and the trial court relied on 28 a public agency conclusion that the chemicals did not pose any significant threat to the health of the ~I- NOTICE OF MOTION AND MOTION IN LIMINE NO, 4 RE: EXCLUDING DIMINUTION IN VALUE AND CLAIMS IN CONNECTION WITH PLAINTIFFS’ REAL PROPERTY; MEMO. POINTS AND AUTHORITIES plaintiffs. (/d. at 1372.) The Court of Appeal also noted that the public agency determined that no further action was required and closed the case. (Jd, at 1383.) In Carson Harbor Vill, Ltd. v. Unocal Corp. (C.D, Cal. 2003) 287 F.Supp.2d 1118, the court applied California law to dismiss plaintiffs’ permanent nuisance claim based on lead contamination when “{t]he [Regional Water Quality Board] issued a clean closure report... which stated that all appropriate remedial measures had been taken [and] Carson Harbor has not presented adinissible evidence that a sufficient degree of contamination presently remains at the site that it constitutes a permanent nuisance . . .” (d. at 1203-1204.) The site closure by San Mateo County likewise precludes plaintiffs’ claims for diminution in value based on permanent nuisance. 10 Also in accord is Wilshire, in which the Court of Appeal held that the Department of Health il Services’ findings, set forth in a correspondence, that the cleanup of a gas spill was complete and 12 adequate was conclusive that the nuisance was abatable, (Wilshire, supra, 20 Cal.App.4th at 744- 13 745.) 14 When a nuisance is eliminated, the cause of the diminution in value will also be eliminated, 15 making an award of damages for future harm unnecessary and unjust. (Gehr, supra, 165 Cal.App.4th 16 at 667, fn. 7.) 17 Here, the County’s findings set forth in its correspondences serve as dispositive evidence that 18 plaintiffs’ nuisance/trespass claim is continuing, and nof permanent, since the aviation fuel spill has 19 been abated. On April 9, 2019, the County sent a second letter recommending case closure, finding 20 that any minimal residual contaminants would naturally attenuate. (Decl. Montanari, Ex. A.) On 24 November 12, 2020, County sent a letter (Decl. Montanari, Ex. B) confirming no further action 22 related to the release of waste at the site is required. The notice expressly complies with Health and 23 Safety Code section 101480(e) attesting that a permanent remedy for the release of waste has been 24 achieved. The County’s findings are conclusive evidence that the nuisance/trespass has been abated, 25 Gee, e.g., Wilshire, supra, 20 Cal.App.4th at 744-745.) 26 Defendants anticipate Plaintiffs raising an impracticality argument that the nuisance/trespass 27 is permanent and not completely remediated. Case law, however, makes clear that judges will not 28 insist upon supplemental requirements not set forth by the public agency. (Capogeannis, supra, 12 -8- NOTICE OF MOTION AND MOTION IN LIMINE NO. 4 RE: EXCLUDING DIMINUTION IN VALUE AND (LATMS IN CONNECTION WITH PLAINTIFFS’ REAL PROPERTY; MEMO. POINTS AND AUTHORITIES Cal. App. 4th at 682-683.) The Sixth District Court of Appeal has already rejected the argument concerning disregarding the public agency’ s findings in an attempt to set forth an additional standard involving wholly removing the contamination. (/d.) Since the County has recommended “case closure,” and plaintiffs’ expert recommended immediate re-occupation of the property, no additional remediation work is necessary. (Decl. Montanari, Ex. B.) As stated by the Supreme Court in Mangini, abating a nuisance occurs when it is done by reasonable means at a reasonable cost. (Mangini, supra, 12 Cal.4th at 1103.) So plaintiffs’ claims for unreasonable damages for an unreasonable level of abatement beyond what the County has found necessary are not permissible. “It is black-letter law that damages which are speculative, remote, 10 imaginary, contingent or merely possible cannot serve asa legal basis for recovery.” (Mozzetti v. City dl of Brisbane (1977) 67 Cal.App.3d 565, 577, citation omitted.) 12 Accordingly, the Court should exclude Plaintiffs’ diminution in value claim along with any 13 and all related evidence because the nuisance/trespass is continuing, was repaired/abated at 14 plaintiffs’ request, has already been completely and reasonably abated, and any evidence to the 15 contrary is based on speculation. 16 Vv EVEN IF PLAINTIFFS ARE ONLY ENTITLED TO a7 DIMINUTION IN VALUE, REASONABLE COST OF 18 REPAIR/ABATEMENT IS LESS AND HAS BEEN PAID 19 BY DEFENDANTS 20 “The general rule is that if the cost of repairing the injury and 21 restoring the premises to their original condition amounts to less than 22 the diminution in value of the property, such cost is the proper 23 measure of damages; and if the cost of restoration will exceed such 24 diminution in value, then the diminution in value of the property is 25 the proper measure [citation.]” 26 (Starrh & Starrh Cotton Growers y, Aera Energy LLC (2007) 153 Cal. App.4th 583, 599.) 27 The damage inquiry turns on which of the two is the lesser amount: $688,350 alleged 28 diminution in value or approximately $249,098.59 for the cost of restoration/abatement that has -9- NOTICE OF MOTION AND MOTION IN LIMINE NO. 4 RE: EXCLUDING DIMINUTION IN VALUE AND CLAIMS IN CONNECTION WITH PLAINTIFFS’ REAL PROPERTY; MEMO. POINTS AND AUTHORITIES already been paid by defendants. (Decl. Montanari, Exhibit D.) Since restoration/abatement is the lesser amount this would be the proper measure of damages. Vi. CONCLUSIO) Based on the foregoing, the Court should exclude plaintiffs’ diminution in value damages claim and any and all related evidence, as set forth in the Notice of Motion. DATED: February 11, 2021 MICHAELIS, MONTANARI & JOHNSON By ARRY ONTANARI 10 Attorneys i Defendants STEPHEN MAGEE and SAC AERO FLYING CLUB, INC. 11 12 NAL751 Apld\tcial\MIL - newip-mt.limine.dim.val.4.wpd 13 14 15 16 17 18 19 20 21 22 23 24 25 26 at 28 -10- NOTICE OF MOTION AND MOTION IN LIMINE NO. 4 RE: EXCLUDING DIMINUTION IN VALUE AND LAIMS IN CONNECTION WITH PLAINTIFFS’ REAL PROPERTY; MEMO. POINTS AND AUTHORITIES PROOF OF SERVICE STATE OF CALIFORNIA ) S.S. COUNTY OF LOS ANGELES ) Tam employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 4333 Park Terrace Dr. #100, Westlake Village, California 91361. On February 11, 2021, I served the foregoing document described as DEFENDANTS’ MOTION IN LIMINE NO. 4 RE: EXCLUDING EVIDENCE OF DIMINUTION IN VALUE AND CLAIMS IN CONNECTION WITH PLAINTIFFS’ REAL PROPERTY; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF GARRY MONTANARI FILED SEPARATELY on the interested parties in this action by placing a true copy thereof in a sealed envelope with postage thereon fully prepaid in the United States mail at Westlake Village, California, addressed as follows: 10 Michael S$. Danko, Esq. Attorneys for Plaintiffs Shawn Miller, Esq. di, Danko Meredith 333. Twin Dolphin Dr. #145 12 Redwood Shores, CA 94065 tel: (650) 453-3600; fax: (650) 394-8672 bed Email: mdanko@dankolaw.com; smiller@dankolaw.com 14 [Xx] (MAIL) I deposited such envelope addressed in the mail at Westlake Village, California. The envelope was mailed with postage thereon fully prepaid. 1 am “readily familiar” with firm’s 15 practice of collection and processing correspondence for mailing. It is deposited with U.S. postal service on that same day in the ordinary course of business. I am aware that on motion of party 16 served, service is presumed invalid if postal cancellation date or postage meter date is more than 1 day after date of deposit for mailing in affidavit. 17 18 [Xx] (ELECTRONIC TRANSFER) | caused all of the pages of the above-entitled document to be sent to the recipient noted above via electronic transfer (email) at the respective email addresses LG: indicated above because of the COVID-19 virus. 20 0 (FEDERAL EXPRESS) I deposited such envelope addressed at the Federal Express office located at Westlake Village, California. The envelope was mailed fully prepaid. I am “readily 21 familiar” with firm’s practice of collection and processing correspondence for mailing with Federal Express. It is deposited with the Westlake Village Federal Express service on that same day in the 22 ordinary course of business. I am aware that on motion of party served, service is presumed invalid if cancellation date is more than | day after date of deposit for overnight mailing in affidavit. 23 24 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 25 26 Executed on February 11, 2021 at Westlake Village, California. 27 f Barbara Haussménn, 28 GARRY L. MONTANARI, State Bar No. 89790 WESLEY S. WENIG, State Bar No. 162351 JOHN H. MOON, State Bar No. 253811 MICHAELIS, MONTANARI & JOHNSON, P.C. 4333 Park Terrace Dr. #100 Westlake Village, CA 91361 Telephone No.: (818) 865-0444 Attorneys for defendants, STEPHEN MAGEE and SAC AERO FLYING CLUB, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO 10 11 BRYAN TRUJILLO and CINDY Case No.: 18CTV01901 TRUJILLO, Honorable Nancy L. Fineman; Dept. 4 12 DECLARATION OF GARRY L, Plaintiffs, MONTANARI IN SUPPORT OF 13 MOTION IN LIMINE NO. 4 RE: 14 VS. EXCLUDING EVIDENCE OF DIMINUTION IN VALUE AND 15 CLAIMS IN CONNECTION WITH STEPHEN MAGEE, SAC AERO FLYING PLAINTIFFS’ REAL PROPERTY 16 CLUB, INC, and DOES 1 - 50, Date: March 8, 2021 17 Defendants. Time: 1:30 p.m. Dept.: 4 18 Complaint filed: April 17, 2018 Trial Date: TBD, 2021 19 20 I, GARRY L. MONTANARIL, declare and state: 21 1 Tam an attorney at law duly licensed to practice before all the Courts of the State of 22 California, | am a partner with the law firm of Michaelis, Montanari & Johnson, counsel of record 23 for defendants STEPHEN MAGEE and SAC AERO FLYING CLUB, INC. I have personal 24 knowledge of the matters set forth below and could testify thereto in any proceeding in this litigation 25 2. Attached hereto, marked ExhibitA and incorporated herein by reference, is a true and 26 correct copy of April 9, 2019 correspondence from the San Mateo County Environmental Health 27 Department “(County”), Significantly, in the County’s letter, the County recommends the site for 28 “case closure.” It provides that any residual contaminants will cithcr “naturally attenuate” or are not -l- DEC. MONTANARL IN SUPPORT OF MOTION IN LIMINE NO. 4 RE: EXCLUDING EVIDENCE OF DIMINUTION IN ‘ALUE AND CLAIMS IN CONNECTION WITH PLAINTIFFS’ REAL PROPERTY anticipated to be encountered. 3 Attached hereto, marked Exhibit B and incorporated herein by reference, is atrue and correct copy of a letter from the County dated November 12, 2020 confirming the site has been permanently remediated under Health and Safety Code section 101480(e). 4 Attached hereto, marked Exhibit C and incorporated herein by reference, is atrue and correct copy of excerpts of deposition of CINDY TRUJILLO taken on August 28, 2019, page 77, lines 18-21 confirming plaintiffs moved back into the residence on January 15, 2019. 5 Attached hereto, marked Exhibit D and incorporated herein by reference, is a list of costs to remediate and monitor the plaintiffs’ property paid either directly by defendants or through 10 settlement with the intervenor. a1 12 I declare under penalty of perjury under the laws of the State of California that the foregoing 13 is true and correct. 14 Executed this 1 ith day of February, 2021, at estlake Village, California. 15 16 GARRY/Li MONTANARI 17 18 19 NAI7S17\pld\tria\MIL - newAp-mt.limine.dim.val.4.dee.wpd 20 21 22 23 24 a5 26 27 28 2. DEC. MONTANARI IN SUPPORT OF MOTION IN LIMINE NO. 4 RE: EXCLUDING EVIDENCE OF DIMINUTION IN ‘ALUE AND CLAIMS IN CONNECTION WITH PLAINTIFFS’ REAL PROPERTY, EXHIBIT A « Forshay, MS, REHS COUNTY or SAN MATEO Environmental Health Services San Mateo County Health 2000 Alarneda de las Pu'gas Suite LOO San Mateo, CA 94403 smehealth.org April 9, 2019 SMCo Case #019048 / RO #2261 APN: 037-226-100 Bryan C and C L Trujillo Trs PO Box 458 Moss Beach, CA 94038 (via cindytrujillo@yahoo.com) SUBJECT: PENDING CASE CLOSURE, TRUJILLO RESIDENCE, 1065 PARK WAY, MOSS BEACH, CA 94038 Dear Mr. and Mrs. Trujillo, As you are aware, the above referenced property, to which you are the recorded owner, has been undergoing environmental investigations regarding aviation gas in soil, soil gas, and groundwater in the location where a small aircraft came to rest after crashing on approach toHalf Moon Bay Airport. Atuthi: time; Count De partnentGra ndw ev Protection) Program: pp Aayeresidualscontaminants: rea son aTeaso le amoui mbes land us This is based on resolutions issued by the State Water Resources ControlBoard. As part of GPP’s public participation, you are notified when site closure is proposed. You are being notified of a 60-day comment period to the case closure recommendation for this site. Should you have any questions, please contact me at (650) 272-4590 or bgwinn(@smegov.org. Sincerely, BG Brian Gwinn, PG Hazardous Materials Specialist Groundwater Protection Program hes NEUE Va ae) ue Oy POU NINA: as EXHIBIT B a Heather Forshey, iS, RENS Director COUNT Yor SAN MATEQ Envitmmnental Health Services Rte San Mateo County Health 2000 Alameda de Jas Pulgas Suite 100 San Mateo, CA 94403 smehealth.org November 12, 2020 SMCo #019048 / RO #2261 APN: 037-226-100 Sac Aero Flying Company c/o Garry Montanari (gmontanari@mmijlaw.net) Michaelis, Montanari & Johnson 4333 Park Terrace Drive, Suite 110 Westlake Village, CA 91361 SUBJECT: TRUJILLO RESIDENCE, 1065 PARK WAY, MOSS BEACH, CA 94038 Dear Sac Acro Flying Company: This letter confirms the completion of site investigation and remedial action activities for the release of waste formerly located at the above-described location. Thank you for your cooperation throughout this investigation. Your willingness and promptness in responding to our inquiries concerning the release of waste are greatly appreciated. Based on information in the above-referenced file, and with the provision that the information provided to this agency was accurate and representative of site conditions, this agency finds that the site investigation and remedial action cartied out at the above-referenced site satisfies the cleanup goal requiremenis of the remedial action agreement between the responsible party and San Mateo County Environmental Health as.outlined in Section 101480 of the Health and Safety Code, and that no further action related to the release of waste at the site is required. This notice is issued pursuant to subdivision (e) of Section 101480 of the Health and Safety Code. Please contact our office if you have any questions regarding this matter. Sincerely, ital nod Sanda st FS Bt. Cte geen For Date zea az 1s7 ott Heather Forshey, MS, REHS Director, Environmental Health Lb STE) OC ae ea ais SMCo Site #019048 (1065 Park Way, Moss Beach) November 12, 2020 Page 2 of 2 CC: State GeoTracker database Bryan and Cindy Trujillo, cindytrujillo@yahoo.com Tamara Gabel, tamara@elmconsulting,com Scott Stromberg, Orion Environmental Inc., stromberg@orionenv.com Anita Smith, Allied P&C Insurance, smitha24@nationwide.com Rick Railsback, CURA, rick@curases.com EXHIBIT C SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO BRYAN TRUJILLO and CINDY TRUJILLO, Plaintiffs, vs. CASE NO. 18CIV91901 STEPHEN MAGEE, SAC AERO FLYING CLUB, INC, , and DOES 1-50, Defendants. ALLIED PROPERTY AND CASUALTY INSURANCE COMPANY; AMCO 10 INSURANCE COMPANY, 11 Plaintiffs-in-Intervention, 12 vs. 13 STEPHEN MAGEE, SAC AERO FLYING CLUB, INC.; and DOES 1-20, 14 Defendants. 15 16 17 VIDEOTAPED DEPOSITION OF 18 Redwood City, California 19 Thursday, August 29, 2019 20 21 22 Reported by: 23 LYDIA ZINN RPR, FCRR, CSR No. 9223 24 Job No. CA 3478869 25 PAGES 1 = 129 Page 1 Veritext Legal Solutions 866 299-5127 —— _ MR. MONTANARI: Bes IT use the same numbers 09:31:25 from yesterday. So this is going to be 19. (Deposition Exhibit 19 received in evidence.) BY MR. MONTANARI Q I want to direct your attention to Exhibit A, 09:31:53 which asks for seven categories of documents. Do you -- just look through them. Do you believe you have given all of the documents responsive to these seven categories to your attorney? 10 A Th. 09:32:43 it Q Okay. Which ones haven't you given your attorney? 12 A There are some e-mails on Number 7 back and forth 13 to Nationwide that we haven't had a chance to send to 14 you. 15 MR. CHOO: Mm-hm. 09:32:58 16 THE WITNESS: Look those over. 17 BY MR. MONTANART 18 Q Are these recent e-mails? 19 A I think since -- was it February? I believe 20 probably in the last six to eight months, I'm going to 09:33:09 21 say. 22 Q Has that been since you moved back into your home? 23 A Some before, and some since. Yes. 24 Q ‘Okay. xy 25 ‘Correct? 09:33:31 Page 22 Veritext Legal Solutions 866 299-5127 — A —_ 09:33:31 Q Do you know what these e-mails involve? Is there a general topic; or they're just all to do with the claim? A Yes. Trying to get our house repaired -- our 09:33:42 house and yard repaired. Q Okay. Before we get into that, I don't recall ever getting a copy of your Complaint to the Department of Insurance. Do you still have that? 10 A I would have to look back in my files. I don't -- 09:34:05 11 I believe I gave our attorneys all the files I had 12 regarding anything that would have been made to the 13 California Department of Insurance. 14 Q Tell me what you recall putting in the Complaint. 15 What were the complaints you made against Nationwide? 09:34:29 16 A Well, we felt that Nationwide was not responding 17 quickly enough to the chemical damage that was done -- 18 gasoline spill done to our house. We didn't -- we 19 needed help. 20 Q How long do you feel that Nationwide delayed in 09:35:16 21 responding to the chemical spill at your house? One 22 month? Two months? Five months? Ten months? 23 A I believe it was probably one to two months' 24 delay. There was no immediate action, once we realized 25 what had happened, from Nationwide. 09:35:52 Page 23 Veritext Legal Solutions 866 299-5127 EXHIBIT D COSTS TO REMOVE (REMEDIATION) AND TESTING OF AIR, SOIL AND GROUNDWATER (MONITORING). Ee SERA R AC move an dispose of soil where gas spilled Plaintiffs' Homeowner PT& ¢ Forensics $ 2,591.44 Insurer Plaintiffs’ Homeowner Balch Petroleum 60,942.70 Insurer Plaintiffs’ Homeowner IRC Environmental $ 32,070.00 Insurer Plaintiffs' Homeowner ECC Horizon Pollution 5,009.04 Insurer Receipts for Plaintiffs' Homeowner 5,416.37 materials/expenses Insurer ( \ Subtotal 7 106,029.55 Testing of air, soil and groundwater Cura 16,532.89 Defendants Orion Environmental 115,359.15 Defendants Subtotal 131,892.04 Government Approval San Mateo County 11,177.00 Defendants Health Dept. Subtotal 11,177.00 GRAND TOTAL 49 50 PROOF OF SERVICE STATE OF CALIFORNIA ) S.S. COUNTY OF LOS ANGELES )