Preview
FILE?
SAN MATEO COUNTY
FEB 2 4 2021
SUPERIOR COURT OF CALIFORNIA
COUNTY 0F SAN MATEO r
1o
’11
-12
J13 BRYAN TRUJILLo et 41., 'Case No.: 18Civ01901
'14 Plaintiffs, Assigned for all to the Hon. Nancy
L. Fineman purposes
15 VS.
TENTATIVE RULINGS RE MOTIONS
16
STEPHEN MAGEE et aL, IN LIMINE
17 Defendants. ~
Date: March 952021-
»
Time: 1:30 pm.
18 Dept: 4
vvvvvvvvvvvvvv
,
Hon. Nancy L. Fineman
.19
20
’21
22
r
23
2'4
25
26
27
28
TENTATIVE RULINGs RE MOTIONS IN LIMINE -
Pursuant to the agreemént of the 'parties, in limines and
the parties s11bmiited the1r mot1or1
t6 this Court _i_n trial. The Court has reviewed the binders reeeived oh
_oppositi}):ns advancg bf
.
February 19, 2021 and issues the following tentative rulings;
These rulings are tentative only
‘
v
and subject to change.—
PLAINTIFFS’ MOTIONS ‘IN LIMINE
A
‘
INu'rnbervl
Basetl onlD‘efen‘dants’ that Faravelli own independent work, the
representation did his
motion is denied on the that Faravelli relied v. Leon
issue on.inadrnissible hearsay. People
10
' (2,015) 61 Cal.4thu5h6‘9, 603 (“It is also clear that testirnony relating the testifying expert's own,
l
11 v
independently- eonceived opinion is not obj ectionahle, even if that ’Opinioniis' Based on
12 b l
13
inadmissible hearsay”).
The Court needs further information on whether P000'5—61' were produced in discovery
14 '
‘15‘ rather than solely at
mediation.
16 The heart of the motion is Whether Faravelli can testify the value of theproperty as
about
"'17, of April 2019 if Plaintiffs are allowed to recover stigma based diminution1n value x
upon
18
damages. Thisissue impactsseveral otherl'motions1n limine and will determinethe type of
l
19
damages that Plaintiffs can recover if is
20 liability established.
The short ansWer is that if Plaintiffs can recover value then the amount is
21 diminution1n
the fair market value of the real property before the harm om
22 measured by subtracting from
23 the value aer the harm. CACI 3903F. HoWever, CACI 39Q3F also that
‘
immediately provides
24
plaintiff recovers the lesser amount of the reduction1n the property‘s value or the reasonable
A
25
cost of repairing the harm. Defendants cite'no case which allOWs-the current market value, or
26 '
the v‘aluekafter the abatement, to be intrOduced into evidence.
Therefore; to the extent that
27
evidence of diminution in value i_s allowed, Faravelli cannot testify regarding the
diminution in
28
p
’
TENTATIVEIRULMGS Rui‘MOTIONsIN LIMINE _-
-
r .
.
71 _
'
valug a'sof April 2019 for ah accident which occurred in 2016. Defehdants though-can
A
introduce evidence that the costcf repair is less than the diminution in vaiue.
The real question though is whether Plaintiffs are, entitled to diminution in value
UV7-h;
damages, which relates to the question on whether the trespass and nuisance are continuing c )1‘
'
permanent.1 “Generally, whether a trespass is continuing or permanent is _a question of fact
dx
to the jUry. (Citation)? Starrh & Starrh Cottoh Growers v. Aera Energy
properly submitted
LLC (2007) 153 Cal. App. 4th 583, 597 Plaintiffs that they are entitled to elect whether to
a:
argue
~o
a permanent versus nuisance, groundwater contamination cases are always
p
pursue continuing
.
10
permanent, and that they are proceeding under a permanent nuisance/trespass theory. Plainti ffs
11
-
cite to Santa Fe Partnership‘v. ARCO Products C0. (1996) 46 Ca1.-App.4th 967 which explai n5}
12
InMangini v. Aerojet—General Corp. (Mangz'ni II) (1996) 12 Cal. 4th 1087 [51
13 Cal.Rptr 2d 272, 912 P. 2d our. Court held the landoWners' m OI'e
1220] Supreme suit, led
than three years aer their property had been contaminated by toxic wastes, was time-
14_ barred based on their failure to present evidence the contamination could be
‘ characterized as a continuing nuisance, i. e. ,proof the contamination was remediable at a
'15
reasonable cost. (12 Cal. 4th at p. 1090. ) The Manginz' court limited its decision to the
16 statute of limitations1ssue and expressly declined the opportunity to reach the related
“whether a plaintiff- landowner has a pewer to elect whether to characterize a
f17 issues
nuisance as continuing or permanent for statute of limitations purposes and whether th
,,
same characterization should apply for both limitations and (12
is damages purposes...
Cal.
4th at p. 1104,
fn.
omitted. ) ~
‘19
However, past decisions of our Supreme Court have specied the types of damages
20 allowed in nuisance actions depend .on whether the nuisance‘is characterized as
permanent or continuing. These-decisions have determined the typesof remedies
21
I
available in each action based on principles of fairness, public policy and judicial
22 economy. Perhaps the most articulate expression of these principles is found in Justice
Traynor's opinion for the court in Spdulding v; Cameron (1952) 38 Cal.2d 265 [239 P. 2d.<
_
23 625]. In Spaulding the plaintiff‘s property was inundated with mud from looSe ll her
neighbor had pushed over the side of a slope While leVeling his property. The trial cou rt
j 24 awarded an amount for physical damage to plaintiffs home and a separate amount for
‘
diminution1n value due to the threat of future inundations. The trial court also ordered
25
the defendant to abate the nuisance. The Supreme Court held the damages awarded we I'e
'26 inconsistent and thereforeunproper.
'
27»
1
The case law dOes not distinguish between nuiSanCe and trespass in discussing perman ent
versus COntinuing. & Starrh Cotton Growers v. Aera LLC (2007) 153 Cal. App. 4th
594. Starrh Energy
28 583,
TENTATIVE RULINGS RE MOTIONS 1N LIMINE
the' defendant to aba‘te the nuisance. The Supreme Court held the damages awarded were
inconsistent and therefore improper. -
“In early decisions of this court it washeld that it should not be presumed that a nuisance
would continue, and damages Were not allowed for a decrease in market value caused by
the existence of the nuisance but were limited to the actual physicalinjury suffered
before commencement of the action. [Citation's. ]The remedy for a continuing nuisance
was either a suit for injunctive relief or successive actions for damages as new injuries
occurred. Situations arose, however, where inJunctive relief was not appropriate or where
successive actions were undesirable either to the plaintiff or the defendant or both.
Accordingly, it‘was recognized that some 'types ofnuisances should be considered
permanent, and m such cases recovery ofpast and anticipatedfuture damages were
allowedzn one action. [Citations ]
. “The clearest case of a permanent nuisance or trespass is the- one where the offending
structure or conditionis maintained as a necessary part of the operations of a public
V
10 '
utility. 'Since such conditions are ordinarily of indenite duration and since the utility by
11 making compensation is entitled'to continue them, it is appropriate that only one action
should be allowed to recover for all the damages inicted. It would be unfair to the
injured party if he were not
'
12 utility to subject it to succeSSive suits and unfair to the
'
allowed to recover all of his probable at
once. [Citation]
13 damages
“A more difcult problem1s presented, however, if the defendantis not privileged to
'
14
continue the nuisance or trespass but its abatementls impractical or the plaintiffls
.
15 willing that it continueif he can secure full compensation for both past and anticipated
future injuries. To attempt categorically to classifysuch a nuisance as either permanent .
16 or not may leadto serious injustice to one or the other of the parties. Thus, if the plaintiff
assumes it is not permanent and sues only for past damages, he may be met with the plea
'17 ‘
of res judicata-in a later action for additional injury if the court then decides the nuisance
18
was permanent in character om itsinception. [Citation]. Similarly, ifthe initial injury is
slight and plaintiff delays suit until he has suffered substantial damage and the court then
19 determines that the nuisance was permanent, the defendant may be able to raise the
defense that the statute of limitations ran from the time of the initial injury. [Citation]
,20 0n the other hand, ifthe defendant iswilling and able t0 abate the nuisance, it is unfair
t0 award damages on the theory that it will continue. [Citations]
‘21
22
“Because of these difculties it has been recOgnized that in doubtful cases the plaintiff
‘
should have an election to treat the nuisance as either permanent or not. [Citations] If the
23 defendant islvnot privileged to continue the nuisance and is able to abate it, he cannot
complain ifthe plaintiffelects to bring successive actions as damages accrue until
24 abatement takes place. [Citations] _On the other hand, if it appears improbable’as a
practical matter that the nuisance can or will be abated, the plaintiff should not be left to
25
the troublesome remedy of successive actions. [Citations.]” (Spaulding v. Cameron,
'
26 supra, 38 Cal.2d at pp. 267—269, italics added.)
_
27 Based on these characterizations of a nuisance as either permanentorcontinuing, and the
types of remedies available to a plaintiff in each of these centexts, the Supreme Court
28 concluded the trial court erred “in bothOrdering thefdefenda'nt to abate the nuisance
TENTATIVE RULINGs RE MOTIONS 1N LIMINE . 3
(impliedly'nding the nuisance was abatable and therefore of a continuing nature) and in
awarding damages for diminution in Value (appropriate only in a situation where the
nuisance is unabatable as a practical matter and is therefore deemed to be permanent). ‘
“The ndings and conclusions of the trial court on these conicting cOntentions are
inconsistent. The court found that plaintiff‘s property had been permanently damaged
'because of the continuing threat of future1njUry. It also found, h0wever, that this threat
would continue unless corrective measures were taken, and by ordering that such
'
It1s clear that plaintiff cannot
x'oooq'oxm-h
measures be taken impliedly found that they were feasible.
have both remedies. If defendant obeys the injunction and takes such meaSures that” 'the
property of the plaintiff will not be endangered or threatened by the existence of sUch
' “
deposits of loose dirt, there will no longer be a threat to depreciatethe value of the
property. Plaintiwould obtaina double recovery ifshe could recoverfor the
depreciation in value and also have the cause ofthat depreciation removed.”(Spaulding ’
v. Cameron, supra, 38 Cal. 3d at p. 269, italics added.) -’
The Supreme Court remanded the matter for a determination whether the nature of the
10
nuisance was permanent or and to relief accordingly.
continuing fashion
1'1
'
Thus, the decision1n Spaulding v. Cameron, supra, 38 Cal. 2d 265 stands for the
12 proposition aplaintiff--landowner cannot recover damages for future o_r prospective harm, i
including damages for diminution 1n value, ina case where the nuisance is deemed to be
:13 ‘
continuing and abatable.
14 Santa Fe Partnership, 46 Cal.App.4th at 973—975 (emphasis in original).
‘
1,5
Since Plaintiff seeks to elect-a 'but Defendants contend that
16 permanent nuisance/trespass,
since the has abated, the parties, the Court discuss theissue With the parties
i7 property been will
’
on March 9, 2021. parties should be preparedto discuss whether they wish to
18
Specifically, the
19 enter into a on theissue,
whether
theJury should decide thelssue, orwhether the
stipulation
20_ should decide it. The parties shall have case law to back up their position. Until this
Court
21
issue is resolved, the Court1s unable to make tentative rulings on certain of the Motions1n
.
.
22
Limine.
23
'-’NuI'nbel'rZ
24 i
‘ The fact that there are‘changes inlan expert’s deposition from the time he was deposed
25
for to being deposed alter being disclosed as an-expert does not
26 summary judgment purposes
27 that the new testimony is inadmissible. It certainly can be the subj ect of cross-
mean
28 examination. The issue then becomes whether Purpura-can rely on information thathe
'
‘
TENTATIVE RULINGS RE MOTIONS IN LIMINE
k
4
:
claimthat PUrpura is n_ot basing his opiron on this coversation, but rather the soware, which
is used by as’ a regular partyof their prefession, which wOuld be admiséible;
meteerologiets‘
People v. Veamatahau (2020) 9 Cal. 5th 16, 29 (“[A]n
expert
may consult specic sources in u
case — a. textbook, a treatise, or an academic paper — and supply information found
the
UI
therein to the as information without running afoul of the hearsay rules.’ ’); see
\13-0
Jury background
’
California Evidence Manual §§ The Court
'
4: 23, 4. 31 (Thomson Reuters 2021).
‘
Simons,
oo,
"cannot determine the for based upon the The
foundation the opinion information provided.
\o
Court is inclined to hold a' 402 hearing unless the information can be presented by brieng.-
. 1 i
10
Nuinber 3
-
11
1f eyidence is admitted about abatement, then the, motion is as the
denied‘as long
12
documents other
-.13 evidencing the county’s
actiOns' or testimony reaching the same conclusion” l
are admitted into The Court nds the to opinions based
14 evidence. eXpert qualied provide
15 upon his education and experience, his teaching classes and his
specically environmental
‘
16 supervising different toxic investigations.
17 -
Number 4',
18 '
The motion is__d.eni_edl,as to'precluding‘Magee from providing his perception of what
f9 i
' occurred. To theiexte‘nt thatthe Magee uses the term “Wind shear,” there is to be a foundation
20
" established for how he1s using the term.If Plaintiffs wish any limiting instruction, they should
21
22 meet-and— confer before presentingone to the Court.
with Defendants
i
23 Number 5
..24. motion is
The granted
to the extent that Schiff cannot offer any‘opinio'n about the
25
, credibility of Mageel' or that'he should be given the benet of the doubt. People v. Long (2005)
26 ’
126
Cal;App.4th 865,
871 (“The expert is not allowedto give an opinion on whether a witness. a
27
is telling the truth because the determination. of credibility is not a subj ect sufciently beyond
28
’
A
TENTATIVE RULINGS RE MOTIONS 1N LIMINE
~ a -
-.
,
. .
_5
.. . _
3.3.“.
common expériénce that the exbert's bpinion would assist the trier of fact. ”). Based .upon
a‘
proper foundation, S'chiff may that the pilot wind or turbulence. If
opine experienced shear
I
>
there needs to be a 402 hearing on the foundation, the parties should notify the Court when
they:
‘
would like that‘hearing.
Number._6 t r
The motion is denied. v. Clark (2009) 1_7l 'Clal.App.4th 772, 780, The expert
Etisterby
said that he wou1d do more Work if
r
notied counsel that
asked, defenseeOunsel ‘Plaintiflf’s’
:niore'vyork
was
being perforrned
and offered to make they expert ayailable for deposition. ‘If
‘10-
j-Plaintiffs wish to further Shall make him available
depose- 'SchifiDrefendants
V
forairther
11, A
'
deposition;
~12 i
Number 7
13
The motion is denied. New Albertsons, Inc. v. Superior Court 168 Cal. App. 4th
14 (2008)
15 1403; Jahn v. Bricke'y (1985) 168 Cal. App.
3d 399, 405..- This Court granted Defendants
'
.16 permission to- arriend the request for admission.
-
17 Number :8,
18
I ‘
‘It appears‘that Defendants are entitled to an offset, but in the. case Defendants cite,
19' '
earbell v. Cqng1$.Hardw503§,
Inc. (201 1) ,1931Ca1;A15p.4th 1572,: the tri‘ai coda «
‘ 1563, _
20
calculated the‘offset aerthe jury reached its verdict; It is unclear-to,
the. Court
if Defendants
21
22 "arere‘questing that the jury calculate this amount. If they are makingthe request, theyshould
' '7
23 provide authoty‘supporting‘-this position. Otherwise,
,
anyl=offsetwill be deCided'by the Co'urt
j
24 after the' jury verdict andthe evidence is not to bepresentedfto the jury. ~
25'
‘
26
27
/// -
28
TENTATIVE RULING'S‘REMOTIONS 1N LIMINE - r
~
13
I
6
Number 9 j
Beforé ruli11g on this mo1ion, the Court needs to kow if Piair1tiff is claiming
reimbursement foi these hoiel expenses. Further, if tlhe ease is pro—ceeding on a permanent
nnisanee/trespass theory,
then expenses for less of se ere not recoverable, Mangini v. Aerojet—
\iamAu,N
.
General Corp, {19.96) 12’ACa1.4th 1087, 1103, andthephotographs .woulti-not tie relevant and.
*are thus inadmissibie. If the evidence is releilant, the Court needs more facts to decide if the
-
t
evidence should be excluded pursuant to Evidence Code § 352;
D‘EFENDAnTs’ MOTIONS- 1N LIMINE i
10
'Number 1-
11
Both-Plaintiffs and Defendants agree that the National TranspOrtation Safety Board’s
"12
(N-TSB) Probable Cause Reports are notadmissible ‘Both sides rely'on tacts from the NTSB’s
13
‘
’14 FaCtualefR‘ep‘ort. Therefore, the Court grants the motion to preclude'evidence from the Probable
'
15 Cause Report but
not facts 'omthe
Factual Report. If there is a disagreementiregarding
16> specic portions of the report, the parties should le ajointibriefiaddressing
.the specic
i
l I i
i
17 '
evidence.
18
Number: .
19
‘ The motion is denied. v.‘Jimenez (2019) 40 Gal‘.App.t5th_48'2, 494, reh'g
Fernandez
20
denied (Oct. 23,2019), review denied (Jan. 2, 2020) citing'Beagle v." Vasold (1966) 65 Cal.2d
"21’
Cal. Prdctice Guide.“ Civil Enidence (The Rutter
22 166, 170—l7l;
Wegneriet' all; Trials and
23 ‘éroupv2020‘) 1m 5:3V1 1, 15:312, p. 5-74.) (“Jurors may b'e informed :of the bdamagesa plaintiff
.
l I I
i
i
r24' seeks”).
25
NuinberB
26
TheCOilrt reserves ruling. Siee ruling on Plaintiffs’ Motion in'Limi'ne'No. 1.
1
Stigma
21
damages are oril'y alloWed ifn‘the trespass/nuisanee is permanent.
28
i
TENTATIVE RULINGS RE MOTIONS 1N LIMINE ,
'
_
_
7
N11mber 4
The Court réséfves ruling. 'See ruling on Plaintiffs’ Motion in Limino No. 1. Stigma
damages are only allowed if the trespass/nuisance is permanent.
l
Number 5
U!
Based
unon
the evidence submitted, the court cannot tell if Plaintiffs’ experts are
O\
cumulative. The Court suggests that the parties meet-and-confer to see if they can stipulate to
This issue can be discussed
'
certain facts so'that ve (5) Plaintiffs’ experts are not necessary.
\O
on March 9, 2021.1
10
i
Number. 6‘
11
(The
motion-isvdenied
as to eicluding Eric L. Risberg for lack of qualications. He isa
12
certied appraiser and Defendants have failed t_oshow that he is required to have any type of
13
environmental issues impacting the value of the house.
14 certication to opine regarding i
15 Defendants
can
challenge his expertise on cross-examination.
16 Based upon Plaintiffs" opposition that Risherg relied upon a textbook by Randall Bell for
17 his methodology, it
appears
that the methodology
isgenerally accepted in the industry as the
18
_“gold standard” for appraising distressed properties. Therefore, the motion to exclude because I.
' 19
he is relying onvan undisclosed expert is denied. People v, Veainatahuu (2020) 9 Cal.5th 16, 29
20
_ (“[A]n expert may consult specic sources in a case — a textbook, a treatise, ori‘an academic-
21
— and
,22 paper supply the information found therein to the jury as background information
23 without running afoul of the hearsay rules”); see Simons, California Evidence Manual §§ 4:23,
24 4:31 (Thomson Reuters 2021).
‘25
26
27
///.
2‘8.
TENTATIVE RULINGS RE MOTIONS IN LINIlNE . a
-
.
'
8
Number 7
No oppoéitidn is in the binderl If Flaintiffs oppose the motion, they should email the
opposition to Dept4@sanmeteocou.org by March 3, 2021 and meke sure that a complete copy
'
of the has been led
and
served.
oppoeition
UI
Number 8
O\
The Court netes that page 2 of the motion is missing and should be emailed to
'
00
2021‘ and make sure that a complete
Dept4@sanmateOCourt.org-by-March 3, copy has been
-
\O
r
led
and served. The motion is granted with conditions. v. Green (1956) 47 Cal.2d
People
1
Preview
FILE? SAN MATEO COUNTY FEB 2 4 2021 SUPERIOR COURT OF CALIFORNIA COUNTY 0F SAN MATEO r 1o ’11 -12 J13 BRYAN TRUJILLo et 41., 'Case No.: 18Civ01901 '14 Plaintiffs, Assigned for all to the Hon. Nancy L. Fineman purposes 15 VS. TENTATIVE RULINGS RE MOTIONS 16 STEPHEN MAGEE et aL, IN LIMINE 17 Defendants. ~ Date: March 952021- » Time: 1:30 pm. 18 Dept: 4 vvvvvvvvvvvvvv , Hon. Nancy L. Fineman .19 20 ’21 22 r 23 2'4 25 26 27 28 TENTATIVE RULINGs RE MOTIONS IN LIMINE - Pursuant to the agreemént of the 'parties, in limines and the parties s11bmiited the1r mot1or1 t6 this Court _i_n trial. The Court has reviewed the binders reeeived oh _oppositi}):ns advancg bf . February 19, 2021 and issues the following tentative rulings; These rulings are tentative only ‘ v and subject to change.— PLAINTIFFS’ MOTIONS ‘IN LIMINE A ‘ INu'rnbervl Basetl onlD‘efen‘dants’ that Faravelli own independent work, the representation did his motion is denied on the that Faravelli relied v. Leon issue on.inadrnissible hearsay. People 10 ' (2,015) 61 Cal.4thu5h6‘9, 603 (“It is also clear that testirnony relating the testifying expert's own, l 11 v independently- eonceived opinion is not obj ectionahle, even if that ’Opinioniis' Based on 12 b l 13 inadmissible hearsay”). The Court needs further information on whether P000'5—61' were produced in discovery 14 ' ‘15‘ rather than solely at mediation. 16 The heart of the motion is Whether Faravelli can testify the value of theproperty as about "'17, of April 2019 if Plaintiffs are allowed to recover stigma based diminution1n value x upon 18 damages. Thisissue impactsseveral otherl'motions1n limine and will determinethe type of l 19 damages that Plaintiffs can recover if is 20 liability established. The short ansWer is that if Plaintiffs can recover value then the amount is 21 diminution1n the fair market value of the real property before the harm om 22 measured by subtracting from 23 the value aer the harm. CACI 3903F. HoWever, CACI 39Q3F also that ‘ immediately provides 24 plaintiff recovers the lesser amount of the reduction1n the property‘s value or the reasonable A 25 cost of repairing the harm. Defendants cite'no case which allOWs-the current market value, or 26 ' the v‘aluekafter the abatement, to be intrOduced into evidence. Therefore; to the extent that 27 evidence of diminution in value i_s allowed, Faravelli cannot testify regarding the diminution in 28 p ’ TENTATIVEIRULMGS Rui‘MOTIONsIN LIMINE _- - r . . 71 _ ' valug a'sof April 2019 for ah accident which occurred in 2016. Defehdants though-can A introduce evidence that the costcf repair is less than the diminution in vaiue. The real question though is whether Plaintiffs are, entitled to diminution in value UV7-h; damages, which relates to the question on whether the trespass and nuisance are continuing c )1‘ ' permanent.1 “Generally, whether a trespass is continuing or permanent is _a question of fact dx to the jUry. (Citation)? Starrh & Starrh Cottoh Growers v. Aera Energy properly submitted LLC (2007) 153 Cal. App. 4th 583, 597 Plaintiffs that they are entitled to elect whether to a: argue ~o a permanent versus nuisance, groundwater contamination cases are always p pursue continuing . 10 permanent, and that they are proceeding under a permanent nuisance/trespass theory. Plainti ffs 11 - cite to Santa Fe Partnership‘v. ARCO Products C0. (1996) 46 Ca1.-App.4th 967 which explai n5} 12 InMangini v. Aerojet—General Corp. (Mangz'ni II) (1996) 12 Cal. 4th 1087 [51 13 Cal.Rptr 2d 272, 912 P. 2d our. Court held the landoWners' m OI'e 1220] Supreme suit, led than three years aer their property had been contaminated by toxic wastes, was time- 14_ barred based on their failure to present evidence the contamination could be ‘ characterized as a continuing nuisance, i. e. ,proof the contamination was remediable at a '15 reasonable cost. (12 Cal. 4th at p. 1090. ) The Manginz' court limited its decision to the 16 statute of limitations1ssue and expressly declined the opportunity to reach the related “whether a plaintiff- landowner has a pewer to elect whether to characterize a f17 issues nuisance as continuing or permanent for statute of limitations purposes and whether th ,, same characterization should apply for both limitations and (12 is damages purposes... Cal. 4th at p. 1104, fn. omitted. ) ~ ‘19 However, past decisions of our Supreme Court have specied the types of damages 20 allowed in nuisance actions depend .on whether the nuisance‘is characterized as permanent or continuing. These-decisions have determined the typesof remedies 21 I available in each action based on principles of fairness, public policy and judicial 22 economy. Perhaps the most articulate expression of these principles is found in Justice Traynor's opinion for the court in Spdulding v; Cameron (1952) 38 Cal.2d 265 [239 P. 2d.< _ 23 625]. In Spaulding the plaintiff‘s property was inundated with mud from looSe ll her neighbor had pushed over the side of a slope While leVeling his property. The trial cou rt j 24 awarded an amount for physical damage to plaintiffs home and a separate amount for ‘ diminution1n value due to the threat of future inundations. The trial court also ordered 25 the defendant to abate the nuisance. The Supreme Court held the damages awarded we I'e '26 inconsistent and thereforeunproper. ' 27» 1 The case law dOes not distinguish between nuiSanCe and trespass in discussing perman ent versus COntinuing. & Starrh Cotton Growers v. Aera LLC (2007) 153 Cal. App. 4th 594. Starrh Energy 28 583, TENTATIVE RULINGS RE MOTIONS 1N LIMINE the' defendant to aba‘te the nuisance. The Supreme Court held the damages awarded were inconsistent and therefore improper. - “In early decisions of this court it washeld that it should not be presumed that a nuisance would continue, and damages Were not allowed for a decrease in market value caused by the existence of the nuisance but were limited to the actual physicalinjury suffered before commencement of the action. [Citation's. ]The remedy for a continuing nuisance was either a suit for injunctive relief or successive actions for damages as new injuries occurred. Situations arose, however, where inJunctive relief was not appropriate or where successive actions were undesirable either to the plaintiff or the defendant or both. Accordingly, it‘was recognized that some 'types ofnuisances should be considered permanent, and m such cases recovery ofpast and anticipatedfuture damages were allowedzn one action. [Citations ] . “The clearest case of a permanent nuisance or trespass is the- one where the offending structure or conditionis maintained as a necessary part of the operations of a public V 10 ' utility. 'Since such conditions are ordinarily of indenite duration and since the utility by 11 making compensation is entitled'to continue them, it is appropriate that only one action should be allowed to recover for all the damages inicted. It would be unfair to the injured party if he were not ' 12 utility to subject it to succeSSive suits and unfair to the ' allowed to recover all of his probable at once. [Citation] 13 damages “A more difcult problem1s presented, however, if the defendantis not privileged to ' 14 continue the nuisance or trespass but its abatementls impractical or the plaintiffls . 15 willing that it continueif he can secure full compensation for both past and anticipated future injuries. To attempt categorically to classifysuch a nuisance as either permanent . 16 or not may leadto serious injustice to one or the other of the parties. Thus, if the plaintiff assumes it is not permanent and sues only for past damages, he may be met with the plea '17 ‘ of res judicata-in a later action for additional injury if the court then decides the nuisance 18 was permanent in character om itsinception. [Citation]. Similarly, ifthe initial injury is slight and plaintiff delays suit until he has suffered substantial damage and the court then 19 determines that the nuisance was permanent, the defendant may be able to raise the defense that the statute of limitations ran from the time of the initial injury. [Citation] ,20 0n the other hand, ifthe defendant iswilling and able t0 abate the nuisance, it is unfair t0 award damages on the theory that it will continue. [Citations] ‘21 22 “Because of these difculties it has been recOgnized that in doubtful cases the plaintiff ‘ should have an election to treat the nuisance as either permanent or not. [Citations] If the 23 defendant islvnot privileged to continue the nuisance and is able to abate it, he cannot complain ifthe plaintiffelects to bring successive actions as damages accrue until 24 abatement takes place. [Citations] _On the other hand, if it appears improbable’as a practical matter that the nuisance can or will be abated, the plaintiff should not be left to 25 the troublesome remedy of successive actions. [Citations.]” (Spaulding v. Cameron, ' 26 supra, 38 Cal.2d at pp. 267—269, italics added.) _ 27 Based on these characterizations of a nuisance as either permanentorcontinuing, and the types of remedies available to a plaintiff in each of these centexts, the Supreme Court 28 concluded the trial court erred “in bothOrdering thefdefenda'nt to abate the nuisance TENTATIVE RULINGs RE MOTIONS 1N LIMINE . 3 (impliedly'nding the nuisance was abatable and therefore of a continuing nature) and in awarding damages for diminution in Value (appropriate only in a situation where the nuisance is unabatable as a practical matter and is therefore deemed to be permanent). ‘ “The ndings and conclusions of the trial court on these conicting cOntentions are inconsistent. The court found that plaintiff‘s property had been permanently damaged 'because of the continuing threat of future1njUry. It also found, h0wever, that this threat would continue unless corrective measures were taken, and by ordering that such ' It1s clear that plaintiff cannot x'oooq'oxm-h measures be taken impliedly found that they were feasible. have both remedies. If defendant obeys the injunction and takes such meaSures that” 'the property of the plaintiff will not be endangered or threatened by the existence of sUch ' “ deposits of loose dirt, there will no longer be a threat to depreciatethe value of the property. Plaintiwould obtaina double recovery ifshe could recoverfor the depreciation in value and also have the cause ofthat depreciation removed.”(Spaulding ’ v. Cameron, supra, 38 Cal. 3d at p. 269, italics added.) -’ The Supreme Court remanded the matter for a determination whether the nature of the 10 nuisance was permanent or and to relief accordingly. continuing fashion 1'1 ' Thus, the decision1n Spaulding v. Cameron, supra, 38 Cal. 2d 265 stands for the 12 proposition aplaintiff--landowner cannot recover damages for future o_r prospective harm, i including damages for diminution 1n value, ina case where the nuisance is deemed to be :13 ‘ continuing and abatable. 14 Santa Fe Partnership, 46 Cal.App.4th at 973—975 (emphasis in original). ‘ 1,5 Since Plaintiff seeks to elect-a 'but Defendants contend that 16 permanent nuisance/trespass, since the has abated, the parties, the Court discuss theissue With the parties i7 property been will ’ on March 9, 2021. parties should be preparedto discuss whether they wish to 18 Specifically, the 19 enter into a on theissue, whether theJury should decide thelssue, orwhether the stipulation 20_ should decide it. The parties shall have case law to back up their position. Until this Court 21 issue is resolved, the Court1s unable to make tentative rulings on certain of the Motions1n . . 22 Limine. 23 '-’NuI'nbel'rZ 24 i ‘ The fact that there are‘changes inlan expert’s deposition from the time he was deposed 25 for to being deposed alter being disclosed as an-expert does not 26 summary judgment purposes 27 that the new testimony is inadmissible. It certainly can be the subj ect of cross- mean 28 examination. The issue then becomes whether Purpura-can rely on information thathe ' ‘ TENTATIVE RULINGS RE MOTIONS IN LIMINE k 4 : claimthat PUrpura is n_ot basing his opiron on this coversation, but rather the soware, which is used by as’ a regular partyof their prefession, which wOuld be admiséible; meteerologiets‘ People v. Veamatahau (2020) 9 Cal. 5th 16, 29 (“[A]n expert may consult specic sources in u case — a. textbook, a treatise, or an academic paper — and supply information found the UI therein to the as information without running afoul of the hearsay rules.’ ’); see \13-0 Jury background ’ California Evidence Manual §§ The Court ' 4: 23, 4. 31 (Thomson Reuters 2021). ‘ Simons, oo, "cannot determine the for based upon the The foundation the opinion information provided. \o Court is inclined to hold a' 402 hearing unless the information can be presented by brieng.- . 1 i 10 Nuinber 3 - 11 1f eyidence is admitted about abatement, then the, motion is as the denied‘as long 12 documents other -.13 evidencing the county’s actiOns' or testimony reaching the same conclusion” l are admitted into The Court nds the to opinions based 14 evidence. eXpert qualied provide 15 upon his education and experience, his teaching classes and his specically environmental ‘ 16 supervising different toxic investigations. 17 - Number 4', 18 ' The motion is__d.eni_edl,as to'precluding‘Magee from providing his perception of what f9 i ' occurred. To theiexte‘nt thatthe Magee uses the term “Wind shear,” there is to be a foundation 20 " established for how he1s using the term.If Plaintiffs wish any limiting instruction, they should 21 22 meet-and— confer before presentingone to the Court. with Defendants i 23 Number 5 ..24. motion is The granted to the extent that Schiff cannot offer any‘opinio'n about the 25 , credibility of Mageel' or that'he should be given the benet of the doubt. People v. Long (2005) 26 ’ 126 Cal;App.4th 865, 871 (“The expert is not allowedto give an opinion on whether a witness. a 27 is telling the truth because the determination. of credibility is not a subj ect sufciently beyond 28 ’ A TENTATIVE RULINGS RE MOTIONS 1N LIMINE ~ a - -. , . . _5 .. . _ 3.3.“. common expériénce that the exbert's bpinion would assist the trier of fact. ”). Based .upon a‘ proper foundation, S'chiff may that the pilot wind or turbulence. If opine experienced shear I > there needs to be a 402 hearing on the foundation, the parties should notify the Court when they: ‘ would like that‘hearing. Number._6 t r The motion is denied. v. Clark (2009) 1_7l 'Clal.App.4th 772, 780, The expert Etisterby said that he wou1d do more Work if r notied counsel that asked, defenseeOunsel ‘Plaintiflf’s’ :niore'vyork was being perforrned and offered to make they expert ayailable for deposition. ‘If ‘10- j-Plaintiffs wish to further Shall make him available depose- 'SchifiDrefendants V forairther 11, A ' deposition; ~12 i Number 7 13 The motion is denied. New Albertsons, Inc. v. Superior Court 168 Cal. App. 4th 14 (2008) 15 1403; Jahn v. Bricke'y (1985) 168 Cal. App. 3d 399, 405..- This Court granted Defendants ' .16 permission to- arriend the request for admission. - 17 Number :8, 18 I ‘ ‘It appears‘that Defendants are entitled to an offset, but in the. case Defendants cite, 19' ' earbell v. Cqng1$.Hardw503§, Inc. (201 1) ,1931Ca1;A15p.4th 1572,: the tri‘ai coda « ‘ 1563, _ 20 calculated the‘offset aerthe jury reached its verdict; It is unclear-to, the. Court if Defendants 21 22 "arere‘questing that the jury calculate this amount. If they are makingthe request, theyshould ' '7 23 provide authoty‘supporting‘-this position. Otherwise, , anyl=offsetwill be deCided'by the Co'urt j 24 after the' jury verdict andthe evidence is not to bepresentedfto the jury. ~ 25' ‘ 26 27 /// - 28 TENTATIVE RULING'S‘REMOTIONS 1N LIMINE - r ~ 13 I 6 Number 9 j Beforé ruli11g on this mo1ion, the Court needs to kow if Piair1tiff is claiming reimbursement foi these hoiel expenses. Further, if tlhe ease is pro—ceeding on a permanent nnisanee/trespass theory, then expenses for less of se ere not recoverable, Mangini v. Aerojet— \iamAu,N . General Corp, {19.96) 12’ACa1.4th 1087, 1103, andthephotographs .woulti-not tie relevant and. *are thus inadmissibie. If the evidence is releilant, the Court needs more facts to decide if the - t evidence should be excluded pursuant to Evidence Code § 352; D‘EFENDAnTs’ MOTIONS- 1N LIMINE i 10 'Number 1- 11 Both-Plaintiffs and Defendants agree that the National TranspOrtation Safety Board’s "12 (N-TSB) Probable Cause Reports are notadmissible ‘Both sides rely'on tacts from the NTSB’s 13 ‘ ’14 FaCtualefR‘ep‘ort. Therefore, the Court grants the motion to preclude'evidence from the Probable ' 15 Cause Report but not facts 'omthe Factual Report. If there is a disagreementiregarding 16> specic portions of the report, the parties should le ajointibriefiaddressing .the specic i l I i i 17 ' evidence. 18 Number: . 19 ‘ The motion is denied. v.‘Jimenez (2019) 40 Gal‘.App.t5th_48'2, 494, reh'g Fernandez 20 denied (Oct. 23,2019), review denied (Jan. 2, 2020) citing'Beagle v." Vasold (1966) 65 Cal.2d "21’ Cal. Prdctice Guide.“ Civil Enidence (The Rutter 22 166, 170—l7l; Wegneriet' all; Trials and 23 ‘éroupv2020‘) 1m 5:3V1 1, 15:312, p. 5-74.) (“Jurors may b'e informed :of the bdamagesa plaintiff . l I I i i r24' seeks”). 25 NuinberB 26 TheCOilrt reserves ruling. Siee ruling on Plaintiffs’ Motion in'Limi'ne'No. 1. 1 Stigma 21 damages are oril'y alloWed ifn‘the trespass/nuisanee is permanent. 28 i TENTATIVE RULINGS RE MOTIONS 1N LIMINE , ' _ _ 7 N11mber 4 The Court réséfves ruling. 'See ruling on Plaintiffs’ Motion in Limino No. 1. Stigma damages are only allowed if the trespass/nuisance is permanent. l Number 5 U! Based unon the evidence submitted, the court cannot tell if Plaintiffs’ experts are O\ cumulative. The Court suggests that the parties meet-and-confer to see if they can stipulate to This issue can be discussed ' certain facts so'that ve (5) Plaintiffs’ experts are not necessary. \O on March 9, 2021.1 10 i Number. 6‘ 11 (The motion-isvdenied as to eicluding Eric L. Risberg for lack of qualications. He isa 12 certied appraiser and Defendants have failed t_oshow that he is required to have any type of 13 environmental issues impacting the value of the house. 14 certication to opine regarding i 15 Defendants can challenge his expertise on cross-examination. 16 Based upon Plaintiffs" opposition that Risherg relied upon a textbook by Randall Bell for 17 his methodology, it appears that the methodology isgenerally accepted in the industry as the 18 _“gold standard” for appraising distressed properties. Therefore, the motion to exclude because I. ' 19 he is relying onvan undisclosed expert is denied. People v, Veainatahuu (2020) 9 Cal.5th 16, 29 20 _ (“[A]n expert may consult specic sources in a case — a textbook, a treatise, ori‘an academic- 21 — and ,22 paper supply the information found therein to the jury as background information 23 without running afoul of the hearsay rules”); see Simons, California Evidence Manual §§ 4:23, 24 4:31 (Thomson Reuters 2021). ‘25 26 27 ///. 2‘8. TENTATIVE RULINGS RE MOTIONS IN LINIlNE . a - . ' 8 Number 7 No oppoéitidn is in the binderl If Flaintiffs oppose the motion, they should email the opposition to Dept4@sanmeteocou.org by March 3, 2021 and meke sure that a complete copy ' of the has been led and served. oppoeition UI Number 8 O\ The Court netes that page 2 of the motion is missing and should be emailed to ' 00 2021‘ and make sure that a complete Dept4@sanmateOCourt.org-by-March 3, copy has been - \O r led and served. The motion is granted with conditions. v. Green (1956) 47 Cal.2d People 1