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 2/18/2021
JOHN H. MOON, State Bar No, 253811 ON
MICHAELIS, MONTANARI & JOHNSON, P.C. By. /s/ Crystal Swords
4333 Park Terrace Dr. #100 Deputy Clerk
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
Plaintiffs, NO. 5 RE: EXCLUDING IMPROPER
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CUMULATIVE EXPERT WITNESS
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VS. OPINIONS ON REMEDIATION AND
MONITORING COSTS;
15 MEMORANDUM OF POINTS AND
STEPHEN MAGEE, SAC AERO FLYING AUTHORITIES; DECLARATION OF
16
CLUB, INC. and DOES 1 - 50, GARRY MONTANARI FILED
SEPARATELY
Defendants, Date: March 8, 2021
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Time: 1:30 p.m.
18 Dept.: 4
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 4 of 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 excluding improper cumulative expert witness opinions on
25 remediation and monitoring costs regarding plaintiffs’ property. Opinion testimony by experts as
26 to such cost is improper since the actual costs of remediation/monitoring are known - $249,098.59
27 were paid by directly by defendants or through settlement with intervenor. Five (5) experts giving
28 opinions on known costs is improper and needlessly cumulative.
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MOTION IN LIMINE NO, 5RE; EXCLUDING IMPROPER CUMULATIVEEXPERT
WITNESS OPINIONS ON REMEDIATION
[AND MONITORING COSTS; MEMORANDUM OF POINTS AND AUTHORITIES
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 properly made be presented at the hearing on the motion.
DATED: February 11, 2021 MICHAELIS, MONTANARI & JOHNSON
By:
ARRY ¥/ Mt ‘ANARI
Attorneys for Defendants STEPHEN MAGEE
and SAC AERO FLYING CLUB, INC.
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MOTION INLIMINE NO, 5 RE: EXCLUDING [IMPROPER CUMULATIVE EXPERT WITNESS OPINIONS ON REMEDIATION
AND MONITORING COSTS; MEMORANDUM OF POINTS AND AUTHORITIES
MEMORANDUM OF POINTS AND AUTHORITIES
I, INTRODUCTION
This is a property damage action brought by the plaintiffs against defendants STEPHEN
MAGEE and SAC AERO FLYING CLUB, INC. arising out of the damage sustained by the
TRUJILLOS’ house when it was impacted by an aircraft operated by STEPHEN MAGEE.
One of the items of claimed damage to the property is the leakage of about 38 gallons of fuel
from the aircraft into the soil surrounding the TRUJILLOS?’ house. The soil was remediated at a cost
of $106,029.55 paid by plaintiffs’ homeowners’ insurer, Nationwide, who sought reimbursement in
a settled subrogation action. The soil was monitored under the guidance of the San Mateo County
10 Environmental Health Department (“County”) with SAC AERO as the responsible party. The
11 monitoring costs and fees to County were approximately $143,069.94
12 Plaintiffs have designated the following testifying expert witnesses on environmental costs:
13 Eric L. Risberg, Aaron Stessman, Benjamin Berman, and John T. DeWitt. (Decl. Montanari,
14 Plaintiffs’ Expert Disclosure, attached as Exhibit A.) Additionally, Pearl Pereira has been designated
15 as a non-retained expert witness by defendants, As a result of the depositions of the aforementioned
16 experts taken during the expert witness discovery phase, plaintiff's will be attempting to introduce
17 opinions on a cost which is known. Such opinions have been given by each of these five witnesses.
18 (Decl. Montanari, Exhibits B-D for opinions of Stessman, DeWitt, and Risberg [Pearl Pereira and
19 Berman only providing a verbal opinion].) Those opinions are as follows:
20 Stessman - costs were reasonable
21 Berman $100,000 to $500,000
22 Pereira $250,000 to $500,000
23 DeWitt $330,000 to $340,000
24 Risberg - $688,350
25 Defendants contend that five experts providing the same opinions on a known fact is
26 improperly cumulative and unduly prejudicial.
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M( OTION
IN LIMINE NO. 5 RE: EXCLUDING IMPROPER CUMULATIVE EXPERT WITNESS OPINIONS ON REMEDIATION
ND MONITORING COSTS, MEMORANDUM OF POINTS AND AUTHORITIES
THE COURT SHOULD RESTRICT PLAINTIFFS’
EVIDENCE REGARDING THE COST FOR
REMEDIATING AND MONITORING PLAINTIFFS’
PROPERTY TO A SINGLE EXPERT WITNESS
Pursuant to Evidence Code section 352, the Court may exclude evidence when its probative
value is substantially outweighed by the probability that its admission will consume undue time or
create substantial danger of undue prejudice, confusion of the issues, or misleading the jury.
Furthermore, the Court may limit the number of expert witnesses to be called by any party pursuant
to Evidence Code section 723.
10 In Belfiore-Braman v. Rotenberg (2018) 25 Cal.App.5th 234, a patient and her husband filed
a1 aimedical malpractice action against an orthopedic surgeon. The trial court entered a ruling in limine
12 that excluded certain medical opinion testimony from plaintiffs’ recently designated non-retained
13 medical expert witness. The trial court determined that the proposed testimony on causation and
14 damage would be unduly duplicative within the meaning of Evidence Code section 723 and the
15 Court of Appeal affirmed the judgment. (See, e.g., Jd. at 249-250.)
16 In Scalere v, Stenson (1989) 211 Cal.App.3d 1146, 1154, the Court of Appeal stated that it
17 was proper for a trial court to restrict a second expert witness’ testimony to “any ‘area that hasn’t
18 been gone into,’”” The Court of Appeal in Belfiore-Braman cited Scalere and held that the trial court
19 had the discretion to limit the plaintiffs’ non-retained expert witness from testifying in view of the
20 previous expert designations that were made. (Belfiore-Braman, supra, 25 Cal.App.Sth at 249-250.)
21 The Court reasoned that if a plaintiff cannot show she was unfaitly deprived of the opportunity to
22 present evidence on the relevant elements of her negligence case, or that a different result was
23 probable if the disputed evidence had been admitted, the trial court properly exercises its discretion
24 to prohibit cumulative evidence from being admitted. (/d.)
25 Defendants have filed a separate action in limine confirming that diminution in value is not
26 a proper measure of damages in this action. Jf plaintiffs can introduce such evidence, plaintiffs will
27 have the ability to offer an opinion from one of their expert witnesses on what the remediation and
28 monitoring costs would have been at the time of the accident. Similar testimony from four other
-4.
MOTIONIN LIMINE NO. 5 RE: EXCLUDING IMPROPER CUMULATIVE EXPERT WITNESS OPINIONS ON REMEDIATION
ND MONITORING COSTS; MEMORANDUM OF POINTS AND AUTHORITIES,
retained and non-retained experts on this same subject should be prohibited as cumulative and
unduly prejudicial. Plaintiffs must be required to use only one witness to present this information.
Iii. EXPERT OPINION TESTIMONY MUST BE BASED ON EVIDENCE
Assumptions which are not grounded in fact cannot serve as the basis for expert’s opinion:
the expert’s opinion may not be based ae on assumptions of fact without evidentiary support
[citation], or on speculative or conjectural matters ...”.” (Sargon Enterprises, Inc. v. University of
Southern California (2012) 55 Cal.4th 747, 770.)
Plaintiffs’ five (5) experts purport to provide hypothetical opinions about the cost of
remediating 38 gallons of aviation gasoline spilled on gravel and dirt on plaintiffs’ property. The
10 range of those estimates, from $100,000 to $688,350, demonstrates the speculative and conjectural
11 nature of the opinions. More problematic, those opinions are not based on fact. The remediation
12 and monitoring has been accomplished, the site closed and those actual costs are known to be
13 $249,098.59 (Decl. Montanari, Exhibit E.) Thus, the opinions of all five (5) experts are without
14 evidentiary support, speculative and conjectural and should be excluded.
15 Iv. CONCLUSION
16 For the foregoing reasons, the Court is requested to issue an order which prohibits plaintiffs
17 from offering testimony from more than one expert witness on the subject of what plaintiffs’ costs
18 were at the time of the accident to remediate and monitor their property as a result of the aircraft fuel
19 leak.
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21 DATED: February 11, 2021 MICHAELIS, MONTANARI & JOHNSON
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By:
TARRY Lf MONTANARI
24 Attorneys for Defendants STEPHEN MAGEE
and SAC AERO FLYING CLUB, INC,
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MOTIONIN LIMINENO, 5 RE: EXCLUDING IMPROPER CUMULATIVE EXPERT WITNESS OPINIONS ON REMEDIATION
ND MONITORING COST: IEMORANDUM OF 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. 5 RE: EXCLUDING IMPROPER CUMULATIVE EXPERT
WITNESS OPINIONS ON REMEDIATION AND MONITORING COSTS;
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.
11 Danko Meredith
333 Twin Dolphin Dr. #145
12 Redwood Shores, CA 94065
tel: (650) 453-3600; fax: (650) 394-8672
13: 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
LS: 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
1:9: indicated above because of the COVID-19 virus.
20 ] (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 1 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.
ef
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Barbara Haussnfann, CCLS
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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.: 18CIV01901
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TRUSILLO, Honorable Nancy L, Fineman; Dept, 4
DECLARATION OF GARRY L.
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Plaintiffs, MONTANARI IN SUPPORT OF
MOTION IN LIMINE NO. 5 RE:
14
VS. EXCLUDING IMPROPER
CUMULATIVE EXPERT WITNESS
15 OPINIONS ON REMEDIATION AND
STEPHEN MAGEE, SAC AERO FLYING MONITORING COSTS
16
CLUB, INC. and DOES 1 - 50, Date: March 8, 2021
Time: 1:30 p.m.
17
Defendants. Dept.: 4
Complaint filed: April 17, 2018
18 Trial Date: TBD, 2021
19 I, GARRY L. MONTANARI, declare and state:
20 1 Tam an attorney at law duly licensed to practice before all the Courts of the State of
21 California. I am a partner with the law firm of Michaelis, Montanari & Johnson, counsel of record
22 for defendants STEPHEN MAGEE and SAC AERO FLYING CLUB, INC. I have personal
23 knowledge of the matters set forth below and could testify thereto in any proceeding in this litigation
24 2 Attached hereto, marked Exhibit A and incorporated herein by reference, is a true and
25 correct copy of the plaintiffs’ Designation of Experts.
26 3 Attached hereto, marked Exhibits B, C, and D and incorporated herein by reference,
27 are true and correct copies of opinions of plaintiffs’ experts, Stessman, DeWitt and Risberg.
28 it
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DEC. MONTANARI IN SUPPORT OF MOTION IN LIMINE NO, 5 RE: EXCLUDING IMPROPER CUMULATIVE
EXPERT WITNESS OPINIONS ON REMEDIATION AND MONITORING COSTS
1 4 Attached hereto, marked Exhibit E is a list of actual remediation/monitoring costs for
2 || plaintiffs’ residence.
3
4 I declare under penalty of perjury under the laws of the State of California that the foregoing
5 is true and correct,
6 Executed this 11th day of February, 2021, at Westlake Village, California.
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TARRY ONTAI
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DEC. MONTANARTI IN SUPPORT OF MOTION IN LIMINE NO, 5 RE: EXCLUDING IMPROPER CUMULATIVE
EXPERT WITNESS OPINIONS ON REMEDIATION AND MONITORING COSTS
EXHIBIT A
MICHAEL S. DANKO, SBN 111359 n
mdanko@dankolaw.com
SHAWN R. MILLER, SBN 238447 HS
smiller@dankolaw.com oe
DANKO MEREDITH
rt 1S
333 Twin Dolphin Drive, Suite 145 i
Redwood Shores, CA 94065
Telephone: (650) 453-3600
Facsimile: {650) 394-8672
Attorneys for Plaintiffs
BRYAN TRUJILLO and CINDY TRUJILLO
SUPERIOR COURT OF CALIFORNIA OF THE STATE-OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN MATEO
10 BRYAN TRUJILLO and CINDY Case No. 18CIVO01901
TRUJILLO,
1] PLAINTIFIS! EXCHANGE OF EXPERT
Plaintiffs, WITNESS INFORMATION
12 vs. [Code Civ. Proc., § 2034.260]
13 STEPHEN MAGEE, SAC AEBRO FLYING
CLUB, INC., and DOES 1-50,
Complaint Filed: 04/17/2018
14 Trial Date: 11/04/2019
Defendants,
15
NATIONWIDE MUTUAL INSURANCE
16 COMPANY,
17 Plaintiff-in-
Intervention.
18
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19 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD:
20 Pursuant to Code of Civil Procedure, § § 2034.210, et seq.,
2] plaintiffs in this action hereby submit their list of expert
22 witnesses who may be called upon to testify at trial in this action.
23 Plaintiffs may call upon the following retained expert
24 witnesses:
25 1. Bric L. Risberg, MAK, ASA,
Advanced Appraisal International, Inc.
26 268 Bush Street, #2100
27 San Francisco, CA 94104
415) 531-1414
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1
PLAINTIFFS’ EXCHANGE OF EXPERT WIENESS INFORMATION
[Code Civ, Proc., § 2034.260]
2, Jan Null, CCM
P.d, Box 3071
Saratoga, CA 95070-1071
(408) 379-7500
3. John T. DeWitt, P.E.
577 Airport Blvd. Suite 500
Burlingame, CA 94010
(650) 292-9100
4. Douglas R. Herlihy
1220 PO Box
Goldendale, WA 98620
(360) 834-7827
5. Eric Meyer
10 Wreck Check of California
6530-46" Avenue SE
I St. Cloud, MN 56304
12 (320) 558-7615
13 6. Benjamin Berman
IRC Environmental Consulting, LLC
14 1067 Foxhurst Way
San Jose, CA 95120
15 (408) 313-9376
16
Te Aaron Stessman
17 CSS Environmental Services,-Inc.
100 Galli Dr #1
18 Novato, CA 94949
(415) 883-6203
19
20 Plaintiffs reserve the right to call and to offer the opinion
21 testimony of any witness identified in other parties’ disclosure
22. of expert witnesses, both retained and non-retained experts.
23 Plaintiffs also reserve the right to call and to offer any person
24 as an expert witness of any percipient witness who may qualify as
an expert witness but whose qualifications are presently unknown
to plaintifés, Further, plaintiffs reserve the right to call and
27 to offer any party or employee of a party in this action who may
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PLAINTINTS’ EXCHANGE OF EXPERT WETNESS INFORMATION
[Coda Civ. Proc., § 2034.260]
qualify as an expert witness but whose qualifications are
presently unknewn to plaintiffs. ‘
As discovery is ongoing, plaintiffs hereby reserve the right
to further supplement this list should further information present
itself and resulting circumstances deem such further disclosure
appropriate. Plaintiffs reserve the right to call, as their own,
any and all experts (retained and non-retained) designated by the
parties participating in this exchange. Plaintiffs also reserve
the right to call any expert witness they deemed necessary to
10 rebut or impeach the testimony of any other expert.
11 the prospective expert witnesses disclosed above can be
12 contacted through counsel for plaintiffs. The California Code of
13 Civil Procedure § 2034.260(c) expert witness declaration in
14 support of this statement is being served simultaneously herewith.
DATED: September 16, 2019 DANKO MEREDITH
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By:
17 ICHAEL S.
Attorneys for Plaintiffs
18 BRYAN and CINDY TRUJILLO
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PLAINTIFFS’ EXCHANGE OF EXPERT WITNESS INFORMATION
[Code Civ. Proa., § 2034.260]
PROOF OF SERVICE
Trujillo et al. v. Magee, San Mateo Superior Court, Case No. 18CIV01901
I, the undersigned, declare:
I am employed in the County of San Mateo, State of California, 1 am over the age of
eighteen and nota party to this action, My business address is 333 Twin Dolphin Drive, Suite
145, Redwood Shores, California 94065.
Oni September 16, 2019, I served the foregoing document:
PLAINTIFFS’ EXCHANGE OF EXPERT WITNESS INFORMATION
on the parties to this action, addressed as follows, in the manner described below:
10 BY U.S. MAIL — I enclosed the documents in a sealed envelope or package addtessed
to the persons at the address(es) below and (specify one):
11
C1 deposited the sealed envelope with the U.S. Postal Service, with postage fully
12 prepaid.
placed the envelope for collection and mailing, following our ordinary business
13
practices. I am readily familiar with this business’s practice for collecting and
14 processing correspondence for mailing. On the same day that correspondence is
placed for collection and mailing, it is deposited in the ordinary course of
1s business with the U.S. Postal Service, in a scaled envelope with postage fully
prepaid.
16
BY OVERNIGHT DELIVERY ~ I enclosed the document(s) in an envelope or
17 package provided by an overnight delivery carrier and addressed to the person(s) at the
address(es) below. I placed the envelope or package for collection and ovemight
18 delivery at an office or a regularly utilized drop box of the overnight delivery carrier,
19 BY PERSONAL DELIVERY — I placed the above-listed document(s) in a sealed
envelope and personally delivered to the address(es) set forth below.
26
BY MESSENGER DELIVERY — | served the documents by placing them in an
al envelope or package addressed to the person(s) at the address(es) listed below and
providing them to a professional messenger service for service.
22
BY FAX TRANSMISSION -~ Based on an agreement of the parties to accept service
23 by fax transmission, I faxed the document(s) to the person(s) at the fax number(s) listed
below. No error was reported by the fax machine that I used. A copy of tho record of
the fax transmission, which was printed out, is attached.
25 BY ELECTRONIC SERVICE — Based on a court order or an agreement of the parties
to accept electronic service, I caused the document(s) to be sent to the persons at the
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electronic service address(es) listed below,
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PROOF OF SERVICE
Addressed to:
Garry L. Montanari, Esq. Ashley E. Bauerle, Esq.
Wesley S. Wenig, Esq. Cozen 0° connor
Michaelis, Montanari & Johnson, P.C. 301 West Broadway, Suite 1610
4333 Park Terrace Drive, Suite 110 San Diego, CA 92101
Westlake Village, CA 91361 abauerle@cozen.com,
ginontanari@mmijlaw.net
Attorneys for Plaintiff-in-Intervention
ALLIED PROPERTY AND CASUALTY
Aitorneys for Defendant INSURANCE COMPANY; AMCO
STEPHEN MAGEE and SAC AERO FLYING INSURANCE COMPANY
CLUB, INC.
I declare under penalty of perjury that the foregoing is true and correct, Executed on
10 September 16, 2019, at Redwood Shores, California.
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PROOF OF SERVICE
MICHAEL 8S, DANKO, SBN 111359,
mdanko@dankolaw.com
SHAWN R. MILLER, SBN 238447 ny i
smiller@dankolaw.com
DANKO MEREDITH alc iMah Ha&
333 Twin Dolphin Drive, Suite 145
Redwood Shores, CA 94065
Telephone: {650) 453-3600
Facsimile: (650) 394-8672
Attorneys for Plaintiffs
BRYAN TRUJILLO and CINDY TRUJILLO
SUPERIOR COURT OF CALIFORNIA OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN MATEO
10 BRYAN TRUJILLO and CINDY Case No. 18CIVO1901
TRUJILLO,
i
DECLARATION OF MICHAEL S. DANKO
Plaintifts, IN SUPPORT OF PLAINTIFES
12 VS.
DISCLOSURE OF EXPERT WITNESS
13 STEPHEN MAGEE, SAC AERO FLYING INFORMATION
CLUB, INC., and DOES 1-50, [Code Civ, Pron. § 2034.260]
4
Defendants, Complaint Filed: 04/17/2018
15 Trial Date: 11/04/2019
NATIONWIDE MUTUAL INSURANCE
16 COMPANY,
17 Plaintiff-in-
Intervention.
18
19 I, Michael S$. Danko, declare as follows:
20 1. Iam an attorney duly licensed to practice law before
aL ail courts of the State of California. My law firm, Danko
22 Meredith, is counsel for plaintiffs BRYAN TRUJILLO and CINDY
23 TRUJILLO in this action. I have personal knowledge of the
following matters and if called as a witness herein, I can and
will competently testify thereto.
2. Pursuant to California Code of Civil Procedure §
27 2034.260, I represent as follows:
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DECLARATION OF MICHAEY, §. DANKO IN SUPPORT OF PLAINTIFFS’ DISCLOSURE OF EXPERT
WITNESS INFORMATION [Coda Civ. Proc. § 2034.260]
I am informed and believe that Eric Risberg, a
designated expert for plaintiffs, is qualified to
testify as an expert in this litigation. Mr.
Risberg is a real estate appraiser with over 25
years of experience. He has agreed to testify at
the time of trial, is sufficiently familiar with
the pending action, and will submit to a meaningful
oral deposition prior to trial regarding his
.
opinions and basis thereof.
10 b, Qualifications: Mr, Risberg is a Certified General
11 Real Estate Appraiser and a Real Estate Broker in
12 the State of California. He is a member of the
13 Appraisal Institute, the American Society of
14 Appraisers, the California Association of Realtors,
15 and other organizations.
16 General Substance of Testimony: Mr. Risberg is
17 expected to provide opinions on subjects to
18 include, but not limited to, liability, causation
19 and danages, and daljpabeieillay concerning ene
20 nature and extent of plaintiffs’
real estate
21 economic damages.
22 Deposition Fee: Mr. Risberg’s fee for deposition
23 testimony is $500.00 an hour.
24 Mr. Risberg’s CV is available upon request
25 3. Pursuant to Code of Civil Procedure § 2034.260, I
26 represent the following:
27 a I am informed and believe that Jan Null, CCM, a
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DECLARATION OF MICHAEL S. DANKO IN SUPPORT OF PLAINTIFFS’ DISCLOSURE OF EXPERT
WITNESS INFORMATION [Code Civ. Proc. § 2034.260]
designated expert for plaintiffs, is qualified to
testify as an expert in this litigation. Mr. Null
is a certified consulting meteorologist with over
30 years of experience. He has agreed to testify at
the time of trial, is sufficiently familiar with
the pending action, and will submit to a meaningful
oral deposition prior to trial regarding his
opinions and basis thereof.
b, Qualifications: Mr. Null is a lecturer and adjunct
10 professor of meteorology at San Jose State
1 University. He is a member of the American
12 Meteorological Society, American Association of
13 State Climatologist, and other organizations.
4 Cc. General Substance of Testimony: Mr. Null is
15 expected to provide opinions on subjects to
16 include, but not limited to, liability, causation
17 and damages, and in particular the meteorological
18 conditions on the day of the subject incident.
19 qd. Deposition Fee: Mr. Null’s fee for deposition
testimony is $425.00 an hour with a 1.5-hour
21 minimum.
Mr. Null’s CV is available upon request.
23 4. Pursuant to Code of Civil Precedure § 2034.260, I
24 represent as follows:
25 a, I am informed and believe that Douglas R. Herlihy,
26 a designated expert for plaintiffs, 1s qualified to
27 testify as an expert in this litigation, Mr.
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DECLARATION OF MICHAEL S. DANKO IN SUPPORT CE PLAINTIVFS’ DISCLOSURE OF EXPERT
WITNESS INFORMATION [Code Civ. Proc, § 2034.260]
Herlihy is a recognized air safety consultant and
former National Transportation Safety Board
investigator. He has agreed to testify at the time
of trial, is sufficiently familiar with the pending
action, and will submit to a meaningful oral
deposition prior to trial regarding his opinions
and basis thereof.
b, Qualifications: Mr. Herlihy is an experienced pilot
in large aircrafts, light single, twin-engine and
10 tailwheel airplanes. He is the 2016 recipient of
il the FAA Wright Brothers Master Pilot Award,
12 ce General Substance of Testimony: Mr. Herlihy is
1B expected to provide opinions on subjects to
14 include, but not limited to, liability, causation
15 and damages, and in particular pilot standard of
16 care,
7 Deposition Fee: Mr. Herlihy fee for deposition
18 testimony is $200.00 an hour with a four-hour
19 minimum.
20 Mx. Herlihy’s CV is available upon request.
21 5. Pursuant to Code of Civil Procedure § 2034.260, I
22 represent as follows:
23 a. I am informed and believe that John T. DeWitt,
P.&., a designated expert for plaintiffs, is
25 qualified to testify as an expert in this
26 litigation, Mr. DeWitt is an environmental engineer
27 with over 27 years of wide-ranging experience in
28
4
DECLARATION OF MICHAWI, 8. DANKO IN SUPPORT OF PLAINTIFFS’ DISCLOSURE OF EXPERI!
WITNESS INFORMATION [Code Civ. Proc. § 2034.260] '
water, wastewater, and hazardous waste projects. He
has agreed to testify at the time of trial, is
sufficiently familiar with the pending action, and
will submit to a meaningful oral deposition prior
to trial regarding his opinions and basis thereof.
b. Qualifications: Mr. DeWitt is a licensed
professional civil engineer in California and in
Oregon. He graduated from Stanford University in
1989 with a Bachelor of Science in Applied Farth
10 Sciences, and a Master of Science in Civil
1] Engineering, Environmental Engineering and Science
12 in 1991. He is an experienced environmental
13 engineer specializing in commercial and residential
14 environmental remediation projects.
15 c General Substance of Testimony: Mr. DeWitt is
16 expected to provide opinions on subjects to
17 include, but not limited to, liability, causation
18 and damages, th environmental
19 impact and
20 d Deposition Fee: Mr. DeWitt’s fee for depowivion
21 testimony is $429.00 an hour.
22 Mr. DeWitt’s CV is available upon request.
23 6 Pursuant to Code of Civil Procedure § 2034.260, I
24 represent as follows:
25 a I am
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 2/18/2021 JOHN H. MOON, State Bar No, 253811 ON MICHAELIS, MONTANARI & JOHNSON, P.C. By. /s/ Crystal Swords 4333 Park Terrace Dr. #100 Deputy Clerk 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.: 18CIV01901 12 TRUJILLO, Honorable Nancy L. Fineman; Dept. 4 DEFENDANTS’ MOTION IN LIMINE Plaintiffs, NO. 5 RE: EXCLUDING IMPROPER 13 CUMULATIVE EXPERT WITNESS 14 VS. OPINIONS ON REMEDIATION AND MONITORING COSTS; 15 MEMORANDUM OF POINTS AND STEPHEN MAGEE, SAC AERO FLYING AUTHORITIES; DECLARATION OF 16 CLUB, INC. and DOES 1 - 50, GARRY MONTANARI FILED SEPARATELY Defendants, Date: March 8, 2021 17 Time: 1:30 p.m. 18 Dept.: 4 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 4 of 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 excluding improper cumulative expert witness opinions on 25 remediation and monitoring costs regarding plaintiffs’ property. Opinion testimony by experts as 26 to such cost is improper since the actual costs of remediation/monitoring are known - $249,098.59 27 were paid by directly by defendants or through settlement with intervenor. Five (5) experts giving 28 opinions on known costs is improper and needlessly cumulative. -J- MOTION IN LIMINE NO, 5RE; EXCLUDING IMPROPER CUMULATIVEEXPERT WITNESS OPINIONS ON REMEDIATION [AND MONITORING COSTS; MEMORANDUM OF POINTS AND AUTHORITIES 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 properly made be presented at the hearing on the motion. DATED: February 11, 2021 MICHAELIS, MONTANARI & JOHNSON By: ARRY ¥/ Mt ‘ANARI Attorneys for Defendants STEPHEN MAGEE and SAC AERO FLYING CLUB, INC. 10 NAU?517ipkd\trial\MIL - new\p-mnt.limine opinions.5.wpd 11 12 13 14 15 16 17 18 19 20 2) 22 23 24 25 26 27 28 2. MOTION INLIMINE NO, 5 RE: EXCLUDING [IMPROPER CUMULATIVE EXPERT WITNESS OPINIONS ON REMEDIATION AND MONITORING COSTS; MEMORANDUM OF POINTS AND AUTHORITIES MEMORANDUM OF POINTS AND AUTHORITIES I, INTRODUCTION This is a property damage action brought by the plaintiffs against defendants STEPHEN MAGEE and SAC AERO FLYING CLUB, INC. arising out of the damage sustained by the TRUJILLOS’ house when it was impacted by an aircraft operated by STEPHEN MAGEE. One of the items of claimed damage to the property is the leakage of about 38 gallons of fuel from the aircraft into the soil surrounding the TRUJILLOS?’ house. The soil was remediated at a cost of $106,029.55 paid by plaintiffs’ homeowners’ insurer, Nationwide, who sought reimbursement in a settled subrogation action. The soil was monitored under the guidance of the San Mateo County 10 Environmental Health Department (“County”) with SAC AERO as the responsible party. The 11 monitoring costs and fees to County were approximately $143,069.94 12 Plaintiffs have designated the following testifying expert witnesses on environmental costs: 13 Eric L. Risberg, Aaron Stessman, Benjamin Berman, and John T. DeWitt. (Decl. Montanari, 14 Plaintiffs’ Expert Disclosure, attached as Exhibit A.) Additionally, Pearl Pereira has been designated 15 as a non-retained expert witness by defendants, As a result of the depositions of the aforementioned 16 experts taken during the expert witness discovery phase, plaintiff's will be attempting to introduce 17 opinions on a cost which is known. Such opinions have been given by each of these five witnesses. 18 (Decl. Montanari, Exhibits B-D for opinions of Stessman, DeWitt, and Risberg [Pearl Pereira and 19 Berman only providing a verbal opinion].) Those opinions are as follows: 20 Stessman - costs were reasonable 21 Berman $100,000 to $500,000 22 Pereira $250,000 to $500,000 23 DeWitt $330,000 to $340,000 24 Risberg - $688,350 25 Defendants contend that five experts providing the same opinions on a known fact is 26 improperly cumulative and unduly prejudicial. 27 ‘it 28 Hi | 3 M( OTION IN LIMINE NO. 5 RE: EXCLUDING IMPROPER CUMULATIVE EXPERT WITNESS OPINIONS ON REMEDIATION ND MONITORING COSTS, MEMORANDUM OF POINTS AND AUTHORITIES THE COURT SHOULD RESTRICT PLAINTIFFS’ EVIDENCE REGARDING THE COST FOR REMEDIATING AND MONITORING PLAINTIFFS’ PROPERTY TO A SINGLE EXPERT WITNESS Pursuant to Evidence Code section 352, the Court may exclude evidence when its probative value is substantially outweighed by the probability that its admission will consume undue time or create substantial danger of undue prejudice, confusion of the issues, or misleading the jury. Furthermore, the Court may limit the number of expert witnesses to be called by any party pursuant to Evidence Code section 723. 10 In Belfiore-Braman v. Rotenberg (2018) 25 Cal.App.5th 234, a patient and her husband filed a1 aimedical malpractice action against an orthopedic surgeon. The trial court entered a ruling in limine 12 that excluded certain medical opinion testimony from plaintiffs’ recently designated non-retained 13 medical expert witness. The trial court determined that the proposed testimony on causation and 14 damage would be unduly duplicative within the meaning of Evidence Code section 723 and the 15 Court of Appeal affirmed the judgment. (See, e.g., Jd. at 249-250.) 16 In Scalere v, Stenson (1989) 211 Cal.App.3d 1146, 1154, the Court of Appeal stated that it 17 was proper for a trial court to restrict a second expert witness’ testimony to “any ‘area that hasn’t 18 been gone into,’”” The Court of Appeal in Belfiore-Braman cited Scalere and held that the trial court 19 had the discretion to limit the plaintiffs’ non-retained expert witness from testifying in view of the 20 previous expert designations that were made. (Belfiore-Braman, supra, 25 Cal.App.Sth at 249-250.) 21 The Court reasoned that if a plaintiff cannot show she was unfaitly deprived of the opportunity to 22 present evidence on the relevant elements of her negligence case, or that a different result was 23 probable if the disputed evidence had been admitted, the trial court properly exercises its discretion 24 to prohibit cumulative evidence from being admitted. (/d.) 25 Defendants have filed a separate action in limine confirming that diminution in value is not 26 a proper measure of damages in this action. Jf plaintiffs can introduce such evidence, plaintiffs will 27 have the ability to offer an opinion from one of their expert witnesses on what the remediation and 28 monitoring costs would have been at the time of the accident. Similar testimony from four other -4. MOTIONIN LIMINE NO. 5 RE: EXCLUDING IMPROPER CUMULATIVE EXPERT WITNESS OPINIONS ON REMEDIATION ND MONITORING COSTS; MEMORANDUM OF POINTS AND AUTHORITIES, retained and non-retained experts on this same subject should be prohibited as cumulative and unduly prejudicial. Plaintiffs must be required to use only one witness to present this information. Iii. EXPERT OPINION TESTIMONY MUST BE BASED ON EVIDENCE Assumptions which are not grounded in fact cannot serve as the basis for expert’s opinion: the expert’s opinion may not be based ae on assumptions of fact without evidentiary support [citation], or on speculative or conjectural matters ...”.” (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 770.) Plaintiffs’ five (5) experts purport to provide hypothetical opinions about the cost of remediating 38 gallons of aviation gasoline spilled on gravel and dirt on plaintiffs’ property. The 10 range of those estimates, from $100,000 to $688,350, demonstrates the speculative and conjectural 11 nature of the opinions. More problematic, those opinions are not based on fact. The remediation 12 and monitoring has been accomplished, the site closed and those actual costs are known to be 13 $249,098.59 (Decl. Montanari, Exhibit E.) Thus, the opinions of all five (5) experts are without 14 evidentiary support, speculative and conjectural and should be excluded. 15 Iv. CONCLUSION 16 For the foregoing reasons, the Court is requested to issue an order which prohibits plaintiffs 17 from offering testimony from more than one expert witness on the subject of what plaintiffs’ costs 18 were at the time of the accident to remediate and monitor their property as a result of the aircraft fuel 19 leak. 20 21 DATED: February 11, 2021 MICHAELIS, MONTANARI & JOHNSON 22 23 By: TARRY Lf MONTANARI 24 Attorneys for Defendants STEPHEN MAGEE and SAC AERO FLYING CLUB, INC, 25 N:ML75 1 7\pld\riahMIL, - new\p-mt.limine.opinions.5.wpd 26 27 28 5. MOTIONIN LIMINENO, 5 RE: EXCLUDING IMPROPER CUMULATIVE EXPERT WITNESS OPINIONS ON REMEDIATION ND MONITORING COST: IEMORANDUM OF 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. 5 RE: EXCLUDING IMPROPER CUMULATIVE EXPERT WITNESS OPINIONS ON REMEDIATION AND MONITORING COSTS; 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. 11 Danko Meredith 333 Twin Dolphin Dr. #145 12 Redwood Shores, CA 94065 tel: (650) 453-3600; fax: (650) 394-8672 13: 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 LS: 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 1:9: indicated above because of the COVID-19 virus. 20 ] (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 1 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. ef 27 ne Barbara Haussnfann, CCLS 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.: 18CIV01901 12 TRUSILLO, Honorable Nancy L, Fineman; Dept, 4 DECLARATION OF GARRY L. 13 Plaintiffs, MONTANARI IN SUPPORT OF MOTION IN LIMINE NO. 5 RE: 14 VS. EXCLUDING IMPROPER CUMULATIVE EXPERT WITNESS 15 OPINIONS ON REMEDIATION AND STEPHEN MAGEE, SAC AERO FLYING MONITORING COSTS 16 CLUB, INC. and DOES 1 - 50, Date: March 8, 2021 Time: 1:30 p.m. 17 Defendants. Dept.: 4 Complaint filed: April 17, 2018 18 Trial Date: TBD, 2021 19 I, GARRY L. MONTANARI, declare and state: 20 1 Tam an attorney at law duly licensed to practice before all the Courts of the State of 21 California. I am a partner with the law firm of Michaelis, Montanari & Johnson, counsel of record 22 for defendants STEPHEN MAGEE and SAC AERO FLYING CLUB, INC. I have personal 23 knowledge of the matters set forth below and could testify thereto in any proceeding in this litigation 24 2 Attached hereto, marked Exhibit A and incorporated herein by reference, is a true and 25 correct copy of the plaintiffs’ Designation of Experts. 26 3 Attached hereto, marked Exhibits B, C, and D and incorporated herein by reference, 27 are true and correct copies of opinions of plaintiffs’ experts, Stessman, DeWitt and Risberg. 28 it -l- DEC. MONTANARI IN SUPPORT OF MOTION IN LIMINE NO, 5 RE: EXCLUDING IMPROPER CUMULATIVE EXPERT WITNESS OPINIONS ON REMEDIATION AND MONITORING COSTS 1 4 Attached hereto, marked Exhibit E is a list of actual remediation/monitoring costs for 2 || plaintiffs’ residence. 3 4 I declare under penalty of perjury under the laws of the State of California that the foregoing 5 is true and correct, 6 Executed this 11th day of February, 2021, at Westlake Village, California. 7 8 TARRY ONTAI 9 LO |} NAI7517%\plditrial’MIL. - new\p-mt.limins.opinions.5.dec.wpd LL 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 a7 28 -2- DEC. MONTANARTI IN SUPPORT OF MOTION IN LIMINE NO, 5 RE: EXCLUDING IMPROPER CUMULATIVE EXPERT WITNESS OPINIONS ON REMEDIATION AND MONITORING COSTS EXHIBIT A MICHAEL S. DANKO, SBN 111359 n mdanko@dankolaw.com SHAWN R. MILLER, SBN 238447 HS smiller@dankolaw.com oe DANKO MEREDITH rt 1S 333 Twin Dolphin Drive, Suite 145 i Redwood Shores, CA 94065 Telephone: (650) 453-3600 Facsimile: {650) 394-8672 Attorneys for Plaintiffs BRYAN TRUJILLO and CINDY TRUJILLO SUPERIOR COURT OF CALIFORNIA OF THE STATE-OF CALIFORNIA IN AND FOR THE COUNTY OF SAN MATEO 10 BRYAN TRUJILLO and CINDY Case No. 18CIVO01901 TRUJILLO, 1] PLAINTIFIS! EXCHANGE OF EXPERT Plaintiffs, WITNESS INFORMATION 12 vs. [Code Civ. Proc., § 2034.260] 13 STEPHEN MAGEE, SAC AEBRO FLYING CLUB, INC., and DOES 1-50, Complaint Filed: 04/17/2018 14 Trial Date: 11/04/2019 Defendants, 15 NATIONWIDE MUTUAL INSURANCE 16 COMPANY, 17 Plaintiff-in- Intervention. 18 i 19 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: 20 Pursuant to Code of Civil Procedure, § § 2034.210, et seq., 2] plaintiffs in this action hereby submit their list of expert 22 witnesses who may be called upon to testify at trial in this action. 23 Plaintiffs may call upon the following retained expert 24 witnesses: 25 1. Bric L. Risberg, MAK, ASA, Advanced Appraisal International, Inc. 26 268 Bush Street, #2100 27 San Francisco, CA 94104 415) 531-1414 28 1 PLAINTIFFS’ EXCHANGE OF EXPERT WIENESS INFORMATION [Code Civ, Proc., § 2034.260] 2, Jan Null, CCM P.d, Box 3071 Saratoga, CA 95070-1071 (408) 379-7500 3. John T. DeWitt, P.E. 577 Airport Blvd. Suite 500 Burlingame, CA 94010 (650) 292-9100 4. Douglas R. Herlihy 1220 PO Box Goldendale, WA 98620 (360) 834-7827 5. Eric Meyer 10 Wreck Check of California 6530-46" Avenue SE I St. Cloud, MN 56304 12 (320) 558-7615 13 6. Benjamin Berman IRC Environmental Consulting, LLC 14 1067 Foxhurst Way San Jose, CA 95120 15 (408) 313-9376 16 Te Aaron Stessman 17 CSS Environmental Services,-Inc. 100 Galli Dr #1 18 Novato, CA 94949 (415) 883-6203 19 20 Plaintiffs reserve the right to call and to offer the opinion 21 testimony of any witness identified in other parties’ disclosure 22. of expert witnesses, both retained and non-retained experts. 23 Plaintiffs also reserve the right to call and to offer any person 24 as an expert witness of any percipient witness who may qualify as an expert witness but whose qualifications are presently unknown to plaintifés, Further, plaintiffs reserve the right to call and 27 to offer any party or employee of a party in this action who may 28 2 PLAINTINTS’ EXCHANGE OF EXPERT WETNESS INFORMATION [Coda Civ. Proc., § 2034.260] qualify as an expert witness but whose qualifications are presently unknewn to plaintiffs. ‘ As discovery is ongoing, plaintiffs hereby reserve the right to further supplement this list should further information present itself and resulting circumstances deem such further disclosure appropriate. Plaintiffs reserve the right to call, as their own, any and all experts (retained and non-retained) designated by the parties participating in this exchange. Plaintiffs also reserve the right to call any expert witness they deemed necessary to 10 rebut or impeach the testimony of any other expert. 11 the prospective expert witnesses disclosed above can be 12 contacted through counsel for plaintiffs. The California Code of 13 Civil Procedure § 2034.260(c) expert witness declaration in 14 support of this statement is being served simultaneously herewith. DATED: September 16, 2019 DANKO MEREDITH 15 16 By: 17 ICHAEL S. Attorneys for Plaintiffs 18 BRYAN and CINDY TRUJILLO 9 20 ai 23 24 25 26 27 28 3 PLAINTIFFS’ EXCHANGE OF EXPERT WITNESS INFORMATION [Code Civ. Proa., § 2034.260] PROOF OF SERVICE Trujillo et al. v. Magee, San Mateo Superior Court, Case No. 18CIV01901 I, the undersigned, declare: I am employed in the County of San Mateo, State of California, 1 am over the age of eighteen and nota party to this action, My business address is 333 Twin Dolphin Drive, Suite 145, Redwood Shores, California 94065. Oni September 16, 2019, I served the foregoing document: PLAINTIFFS’ EXCHANGE OF EXPERT WITNESS INFORMATION on the parties to this action, addressed as follows, in the manner described below: 10 BY U.S. MAIL — I enclosed the documents in a sealed envelope or package addtessed to the persons at the address(es) below and (specify one): 11 C1 deposited the sealed envelope with the U.S. Postal Service, with postage fully 12 prepaid. placed the envelope for collection and mailing, following our ordinary business 13 practices. I am readily familiar with this business’s practice for collecting and 14 processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of 1s business with the U.S. Postal Service, in a scaled envelope with postage fully prepaid. 16 BY OVERNIGHT DELIVERY ~ I enclosed the document(s) in an envelope or 17 package provided by an overnight delivery carrier and addressed to the person(s) at the address(es) below. I placed the envelope or package for collection and ovemight 18 delivery at an office or a regularly utilized drop box of the overnight delivery carrier, 19 BY PERSONAL DELIVERY — I placed the above-listed document(s) in a sealed envelope and personally delivered to the address(es) set forth below. 26 BY MESSENGER DELIVERY — | served the documents by placing them in an al envelope or package addressed to the person(s) at the address(es) listed below and providing them to a professional messenger service for service. 22 BY FAX TRANSMISSION -~ Based on an agreement of the parties to accept service 23 by fax transmission, I faxed the document(s) to the person(s) at the fax number(s) listed below. No error was reported by the fax machine that I used. A copy of tho record of the fax transmission, which was printed out, is attached. 25 BY ELECTRONIC SERVICE — Based on a court order or an agreement of the parties to accept electronic service, I caused the document(s) to be sent to the persons at the 26 electronic service address(es) listed below, 27 28 1 PROOF OF SERVICE Addressed to: Garry L. Montanari, Esq. Ashley E. Bauerle, Esq. Wesley S. Wenig, Esq. Cozen 0° connor Michaelis, Montanari & Johnson, P.C. 301 West Broadway, Suite 1610 4333 Park Terrace Drive, Suite 110 San Diego, CA 92101 Westlake Village, CA 91361 abauerle@cozen.com, ginontanari@mmijlaw.net Attorneys for Plaintiff-in-Intervention ALLIED PROPERTY AND CASUALTY Aitorneys for Defendant INSURANCE COMPANY; AMCO STEPHEN MAGEE and SAC AERO FLYING INSURANCE COMPANY CLUB, INC. I declare under penalty of perjury that the foregoing is true and correct, Executed on 10 September 16, 2019, at Redwood Shores, California. 11 2 13 14 15 16 17 18 19 20 2A 22 23 25 27 28 2 PROOF OF SERVICE MICHAEL 8S, DANKO, SBN 111359, mdanko@dankolaw.com SHAWN R. MILLER, SBN 238447 ny i smiller@dankolaw.com DANKO MEREDITH alc iMah Ha& 333 Twin Dolphin Drive, Suite 145 Redwood Shores, CA 94065 Telephone: {650) 453-3600 Facsimile: (650) 394-8672 Attorneys for Plaintiffs BRYAN TRUJILLO and CINDY TRUJILLO SUPERIOR COURT OF CALIFORNIA OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN MATEO 10 BRYAN TRUJILLO and CINDY Case No. 18CIVO1901 TRUJILLO, i DECLARATION OF MICHAEL S. DANKO Plaintifts, IN SUPPORT OF PLAINTIFES 12 VS. DISCLOSURE OF EXPERT WITNESS 13 STEPHEN MAGEE, SAC AERO FLYING INFORMATION CLUB, INC., and DOES 1-50, [Code Civ, Pron. § 2034.260] 4 Defendants, Complaint Filed: 04/17/2018 15 Trial Date: 11/04/2019 NATIONWIDE MUTUAL INSURANCE 16 COMPANY, 17 Plaintiff-in- Intervention. 18 19 I, Michael S$. Danko, declare as follows: 20 1. Iam an attorney duly licensed to practice law before aL ail courts of the State of California. My law firm, Danko 22 Meredith, is counsel for plaintiffs BRYAN TRUJILLO and CINDY 23 TRUJILLO in this action. I have personal knowledge of the following matters and if called as a witness herein, I can and will competently testify thereto. 2. Pursuant to California Code of Civil Procedure § 27 2034.260, I represent as follows: 28 1 DECLARATION OF MICHAEY, §. DANKO IN SUPPORT OF PLAINTIFFS’ DISCLOSURE OF EXPERT WITNESS INFORMATION [Coda Civ. Proc. § 2034.260] I am informed and believe that Eric Risberg, a designated expert for plaintiffs, is qualified to testify as an expert in this litigation. Mr. Risberg is a real estate appraiser with over 25 years of experience. He has agreed to testify at the time of trial, is sufficiently familiar with the pending action, and will submit to a meaningful oral deposition prior to trial regarding his . opinions and basis thereof. 10 b, Qualifications: Mr, Risberg is a Certified General 11 Real Estate Appraiser and a Real Estate Broker in 12 the State of California. He is a member of the 13 Appraisal Institute, the American Society of 14 Appraisers, the California Association of Realtors, 15 and other organizations. 16 General Substance of Testimony: Mr. Risberg is 17 expected to provide opinions on subjects to 18 include, but not limited to, liability, causation 19 and danages, and daljpabeieillay concerning ene 20 nature and extent of plaintiffs’ real estate 21 economic damages. 22 Deposition Fee: Mr. Risberg’s fee for deposition 23 testimony is $500.00 an hour. 24 Mr. Risberg’s CV is available upon request 25 3. Pursuant to Code of Civil Procedure § 2034.260, I 26 represent the following: 27 a I am informed and believe that Jan Null, CCM, a 28 2 DECLARATION OF MICHAEL S. DANKO IN SUPPORT OF PLAINTIFFS’ DISCLOSURE OF EXPERT WITNESS INFORMATION [Code Civ. Proc. § 2034.260] designated expert for plaintiffs, is qualified to testify as an expert in this litigation. Mr. Null is a certified consulting meteorologist with over 30 years of experience. He has agreed to testify at the time of trial, is sufficiently familiar with the pending action, and will submit to a meaningful oral deposition prior to trial regarding his opinions and basis thereof. b, Qualifications: Mr. Null is a lecturer and adjunct 10 professor of meteorology at San Jose State 1 University. He is a member of the American 12 Meteorological Society, American Association of 13 State Climatologist, and other organizations. 4 Cc. General Substance of Testimony: Mr. Null is 15 expected to provide opinions on subjects to 16 include, but not limited to, liability, causation 17 and damages, and in particular the meteorological 18 conditions on the day of the subject incident. 19 qd. Deposition Fee: Mr. Null’s fee for deposition testimony is $425.00 an hour with a 1.5-hour 21 minimum. Mr. Null’s CV is available upon request. 23 4. Pursuant to Code of Civil Precedure § 2034.260, I 24 represent as follows: 25 a, I am informed and believe that Douglas R. Herlihy, 26 a designated expert for plaintiffs, 1s qualified to 27 testify as an expert in this litigation, Mr. 28 3 DECLARATION OF MICHAEL S. DANKO IN SUPPORT CE PLAINTIVFS’ DISCLOSURE OF EXPERT WITNESS INFORMATION [Code Civ. Proc, § 2034.260] Herlihy is a recognized air safety consultant and former National Transportation Safety Board investigator. He has agreed to testify at the time of trial, is sufficiently familiar with the pending action, and will submit to a meaningful oral deposition prior to trial regarding his opinions and basis thereof. b, Qualifications: Mr. Herlihy is an experienced pilot in large aircrafts, light single, twin-engine and 10 tailwheel airplanes. He is the 2016 recipient of il the FAA Wright Brothers Master Pilot Award, 12 ce General Substance of Testimony: Mr. Herlihy is 1B expected to provide opinions on subjects to 14 include, but not limited to, liability, causation 15 and damages, and in particular pilot standard of 16 care, 7 Deposition Fee: Mr. Herlihy fee for deposition 18 testimony is $200.00 an hour with a four-hour 19 minimum. 20 Mx. Herlihy’s CV is available upon request. 21 5. Pursuant to Code of Civil Procedure § 2034.260, I 22 represent as follows: 23 a. I am informed and believe that John T. DeWitt, P.&., a designated expert for plaintiffs, is 25 qualified to testify as an expert in this 26 litigation, Mr. DeWitt is an environmental engineer 27 with over 27 years of wide-ranging experience in 28 4 DECLARATION OF MICHAWI, 8. DANKO IN SUPPORT OF PLAINTIFFS’ DISCLOSURE OF EXPERI! WITNESS INFORMATION [Code Civ. Proc. § 2034.260] ' water, wastewater, and hazardous waste projects. He has agreed to testify at the time of trial, is sufficiently familiar with the pending action, and will submit to a meaningful oral deposition prior to trial regarding his opinions and basis thereof. b. Qualifications: Mr. DeWitt is a licensed professional civil engineer in California and in Oregon. He graduated from Stanford University in 1989 with a Bachelor of Science in Applied Farth 10 Sciences, and a Master of Science in Civil 1] Engineering, Environmental Engineering and Science 12 in 1991. He is an experienced environmental 13 engineer specializing in commercial and residential 14 environmental remediation projects. 15 c General Substance of Testimony: Mr. DeWitt is 16 expected to provide opinions on subjects to 17 include, but not limited to, liability, causation 18 and damages, th environmental 19 impact and 20 d Deposition Fee: Mr. DeWitt’s fee for depowivion 21 testimony is $429.00 an hour. 22 Mr. DeWitt’s CV is available upon request. 23 6 Pursuant to Code of Civil Procedure § 2034.260, I 24 represent as follows: 25 a I am