On April 17, 2018 a
Motion-Secondary
was filed
involving a dispute between
Trujillo, Bryan,
Trujillo, Cindy,
and
Does 1-20,
Does 1-50,
Magee, Stephen,
Sac Aero Flying Club, Inc.,
for (23) Unlimited Other PI/PD/WD
in the District Court of San Mateo County.
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1 MICHAEL S. DANKO, ESQ. SBN 111359
mdankoSdanko law. corn
2 DANKO MEREDITH 02/26/2021
333 Twin Dolphin Drive, Suite 145
3 Redwood Shores, CA 94065
Telephone: (650) 453-3600
4 Facsimile: (650) 394-8672
5 Attorneys for Plaintiffs
BRYAN TRUJILLO and CINDY TRUJILLO
6
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN MATEO
UNLIMITED CIVIL JURISDICTION
10
11 BRYAN TRUJILLO and CINDY TRUJILLO, Case No. 18CIV01901
12 Plaintiffs, PLAINTIFFS'PPOSITION TO
DEFENDANTS'OTIOÃJÃLIMINK NO. 10
13 v. RE: TO ADMIT EVIDENCE OF CONDUCT
BY PLAINTIFFS-IN-INTERVENTION IN
14 STEPHEN MAGEE, SAC AERO FLYING HANDLING THE PLAINTIFFS'ROPERTY
CLUB, INC., AND DOES 1 - 50, DAMAGE AND REMEDIATION CLAIMS
15
Defendants Date: March 8, 2021
16 Time: 1:30 p.m.
Dept.: 4
17
18 Complaint filed: April 17, 2018
19
20
I. INTRODUCTION
21
Nationwide was plaintiffs'omeowners'nsurance carrier. By their motion, defendants seek
22
leave to argue that Nationwide failed to adjust plaintiffs'laim properly. In particular, defendants
23
contend that Nationwide's delay in responding to the claim made the remediation more costly and
24
thus constituted a failure to mitigate. Defendants also contend that plaintiffs'motional distress was
25
not the result of the defendants'ircraft crashing into their home without warning, leaving one
26
person dead, damaging their home and their auto, and contaminating their soil and groundwater with
27
28
-1-
PLAINTIFFS'PPOSITION TO DEFENDANTS'OTION IN LIMINE NO. 10 RE: TO ADMIT
EVIDENCE OF CONDUCT BY PLAINTIFFS-IN-INTERVENTION IN HANDLING THE
PLAINTIFFS'ROPERTY DAMAGE AND REMEDIATION CLAIMS
1 toxic aviation gasoline and oil. Rather, it was the result of Nationwide's response to the catastrophe
2 defendants created.
3 Defendants'otion should be denied, and they should be precluded from seeking to lay
4 blame for the damages plaintiffs seek on Nationwide.
6 II. LEGAL ARGUMENT
7 First, Nationwide is not the same entity as plaintiffs. No act or omission of Nationwide can
8 be attributed to plaintiffs as a failure to mitigate. That would be akin to saying that, in a car v.
9 pedestrian case, the orthopedic surgeon's malpractice constituted a failure to mitigate on the part of
10 the pedestrian. The argument makes no sense and there is no law to support it.
11 Second, no expert has been designated as to claims handling procedures. Without expert
12 testimony, defendants will not be able to establish that Nationwide's claim handling was negligent or
13 otherwise fell below the standard of care owed by an insurer in a situation such as this. Nor is there
14 any expert testimony establishing that Nationwide's alleged delay resulted in any additional damages
15 being sought in the litigation.
16 Finally, having to deal with geologists, contractors, attorneys, county workers, regulatory
17 authorities and insurers is stressful and annoying. Insurers especially. The law of trespass and
18 nuisance allows plaintiffs to recover for that stress and annoyance because plaintiffs would not have
19 had to deal with that annoyance but for defendants crashing their plane into plaintiffs'ome.
20 Defendants may not properly blame the geologists, attorneys, or insurers who tried to clean up the
21 mess defendants created, while defendants and their own insurer sat idly by and did nothing. At
22 least defendant may not do so absent evidence that (1) Nationwide's claims handling fell below the
23 applicable industry standards, and (2) Nationwide caused harm that would not otherwise have
24 suffered as a foreseeable result of a defendants'ort.
25 Defendants cannot make the required showing. Accordingly, defendants'otion should be
26 denied and defendants should be precluded from arguing that plaintiffs'istress is not due to their
27 own negligence but rather to Nationwide's failure to move more quickly in cleaning up the mess that
28 -2-
PLAINTIFFS'PPOSITION TO DEFENDANTS'OTION IN LIMINE NO. 10 RK: TO ADMIT
EVIDENCE OF CONDUCT BY PLAINTIFFS-IN-INTERVENTION IN HANDLING THE
PLAINTIFFS'ROPERTY DAMAGE AND REMEDIATION CLAIMS
1 defendants left on plaintiffs'roperty.
3 III. CONCLUSION
4 For the foregoing reasons, plaintiffs respectfully suggest Defendant's Motion in Limine No.
5 10 should be denied.
7
Dated: February IQ, 2021 Respectfully submitted,
8
DANKO MEREDITH
10
''HAEL S. DANKO
ttorneys for Plaintiffs
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PLAINTIFFS'PPOSITION TO DEFENDANTS'OTION IN LIMINE NO. 10 RE: TO ADMIT
EVIDENCE OF CONDUCT BY PLAINTIFFS-IN-INTERVENTION IN HANDLING THK
PLAINTIFFS'ROPERTY DAMAGE AND REMEDIATION CLAIMS
Document Filed Date
February 26, 2021
Case Filing Date
April 17, 2018
Category
(23) Unlimited Other PI/PD/WD
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1 MICHAEL S. DANKO, ESQ. SBN 111359 mdankoSdanko law. corn 2 DANKO MEREDITH 02/26/2021 333 Twin Dolphin Drive, Suite 145 3 Redwood Shores, CA 94065 Telephone: (650) 453-3600 4 Facsimile: (650) 394-8672 5 Attorneys for Plaintiffs BRYAN TRUJILLO and CINDY TRUJILLO 6 SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN MATEO UNLIMITED CIVIL JURISDICTION 10 11 BRYAN TRUJILLO and CINDY TRUJILLO, Case No. 18CIV01901 12 Plaintiffs, PLAINTIFFS'PPOSITION TO DEFENDANTS'OTIOÃJÃLIMINK NO. 10 13 v. RE: TO ADMIT EVIDENCE OF CONDUCT BY PLAINTIFFS-IN-INTERVENTION IN 14 STEPHEN MAGEE, SAC AERO FLYING HANDLING THE PLAINTIFFS'ROPERTY CLUB, INC., AND DOES 1 - 50, DAMAGE AND REMEDIATION CLAIMS 15 Defendants Date: March 8, 2021 16 Time: 1:30 p.m. Dept.: 4 17 18 Complaint filed: April 17, 2018 19 20 I. INTRODUCTION 21 Nationwide was plaintiffs'omeowners'nsurance carrier. By their motion, defendants seek 22 leave to argue that Nationwide failed to adjust plaintiffs'laim properly. In particular, defendants 23 contend that Nationwide's delay in responding to the claim made the remediation more costly and 24 thus constituted a failure to mitigate. Defendants also contend that plaintiffs'motional distress was 25 not the result of the defendants'ircraft crashing into their home without warning, leaving one 26 person dead, damaging their home and their auto, and contaminating their soil and groundwater with 27 28 -1- PLAINTIFFS'PPOSITION TO DEFENDANTS'OTION IN LIMINE NO. 10 RE: TO ADMIT EVIDENCE OF CONDUCT BY PLAINTIFFS-IN-INTERVENTION IN HANDLING THE PLAINTIFFS'ROPERTY DAMAGE AND REMEDIATION CLAIMS 1 toxic aviation gasoline and oil. Rather, it was the result of Nationwide's response to the catastrophe 2 defendants created. 3 Defendants'otion should be denied, and they should be precluded from seeking to lay 4 blame for the damages plaintiffs seek on Nationwide. 6 II. LEGAL ARGUMENT 7 First, Nationwide is not the same entity as plaintiffs. No act or omission of Nationwide can 8 be attributed to plaintiffs as a failure to mitigate. That would be akin to saying that, in a car v. 9 pedestrian case, the orthopedic surgeon's malpractice constituted a failure to mitigate on the part of 10 the pedestrian. The argument makes no sense and there is no law to support it. 11 Second, no expert has been designated as to claims handling procedures. Without expert 12 testimony, defendants will not be able to establish that Nationwide's claim handling was negligent or 13 otherwise fell below the standard of care owed by an insurer in a situation such as this. Nor is there 14 any expert testimony establishing that Nationwide's alleged delay resulted in any additional damages 15 being sought in the litigation. 16 Finally, having to deal with geologists, contractors, attorneys, county workers, regulatory 17 authorities and insurers is stressful and annoying. Insurers especially. The law of trespass and 18 nuisance allows plaintiffs to recover for that stress and annoyance because plaintiffs would not have 19 had to deal with that annoyance but for defendants crashing their plane into plaintiffs'ome. 20 Defendants may not properly blame the geologists, attorneys, or insurers who tried to clean up the 21 mess defendants created, while defendants and their own insurer sat idly by and did nothing. At 22 least defendant may not do so absent evidence that (1) Nationwide's claims handling fell below the 23 applicable industry standards, and (2) Nationwide caused harm that would not otherwise have 24 suffered as a foreseeable result of a defendants'ort. 25 Defendants cannot make the required showing. Accordingly, defendants'otion should be 26 denied and defendants should be precluded from arguing that plaintiffs'istress is not due to their 27 own negligence but rather to Nationwide's failure to move more quickly in cleaning up the mess that 28 -2- PLAINTIFFS'PPOSITION TO DEFENDANTS'OTION IN LIMINE NO. 10 RK: TO ADMIT EVIDENCE OF CONDUCT BY PLAINTIFFS-IN-INTERVENTION IN HANDLING THE PLAINTIFFS'ROPERTY DAMAGE AND REMEDIATION CLAIMS 1 defendants left on plaintiffs'roperty. 3 III. CONCLUSION 4 For the foregoing reasons, plaintiffs respectfully suggest Defendant's Motion in Limine No. 5 10 should be denied. 7 Dated: February IQ, 2021 Respectfully submitted, 8 DANKO MEREDITH 10 ''HAEL S. DANKO ttorneys for Plaintiffs 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- PLAINTIFFS'PPOSITION TO DEFENDANTS'OTION IN LIMINE NO. 10 RE: TO ADMIT EVIDENCE OF CONDUCT BY PLAINTIFFS-IN-INTERVENTION IN HANDLING THK PLAINTIFFS'ROPERTY DAMAGE AND REMEDIATION CLAIMS