Preview
Electronically
by perior Court of Call ~ ounty of San Mateo
ON 9/24/2021
GARRY L. MONTANARI, State Bar No. 89790 By. /s/ Alex Yeung
JOHN H. MOON, State Bar No. 253811 Deputy Clerk
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
FOR THE COUNTY OF SAN MATEO
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BRYAN TRUJILLO and CINDY Case No.: 18CIV01901
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TRUJILLO, Honorable Nancy Fineman; Dept. 4
13 Plaintiffs, NOTICE OF MOTION AND MOTION
FOR LEAVE TO FILE SECOND
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VS. AMENDED ANSWER;
MEMORANDUM OF POINTS AND
15 AUTHORITIES; DECLARATION OF
STEPHEN MAGEE, SAC AERO FLYING GARRY L. MONTANARI IN SUPPORT
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CLUB, INC. and DOES 1 - 50, THEREOF
17 Defendants. Date: December 14, 2021
Time: 2:00 p.m.
18 Dept.: 4
13 Complaint filed: April 17, 2018
Trial Date: TBD
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21 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD.
22 PLEASE TAKE NOTICE that on December 14, 2021 at 2:00 p.m., or as soon thereafter as
23 the matter may be heard in Department 4 of the above-entitled court, located at 1050 Mission Road,
24 South San Francisco, CA 94080, defendants STEPHEN MAGEE and SAC AERO CLUB FLYING,
25 INC. will and hereby do move pursuant to Code of Civil Procedure section 473 for an order granting
26 them leave to file a second amended answer so that it may assert the affirmative defenses of
27 “estoppel” and double recovery, pursuant to California Evidence Code section 623 and case
28 authority.
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NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED ANSWER; MEMORANDUM.
OF POINTS AND AUTHORITIES; DECLARATION OF GARRY L, MONTANARI IN SUPPORT THEREOF
This motion will be made on the grounds that during the course of addressing motions in
limine (MILs), ithas become apparent that plaintiffs are seeking “double recovery” having requested
and received remedies for a continuing nuisance/trespass and now secking remedies for a permanent
nuisance/trespass. Defendants seek to plead the defenses of double recovery and estoppel based on
detrimental reliance on plaintiffs’ prior request for continuing nuisance/trespass remedies. There is
a strong public policy to liberally permit amendments to pleadings, particularly for answers, and that
the interests of justice and judicial economy would be promoted by the granting of this motion.
There is no current trial date. The proposed Second Amended Answer is attached hereto as
Exhibit A. The Court is requested to order that this proposed second amended answer be deemed
10 the amended answer and that it be deemed filed and served as of the date of the filing of this motion.
11 This motion will be based upon this notice, the attached memorandum of points and
12 authorities, the declaration of Garry L. Montanari and all exhibits attached thereto, all files and
13 records of this case and upon any oral argument that may be presented at the hearing.
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15 DATED: September 23, 2021 MICHAELIS, MONTANARI & JOHNSON
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17 By KI
GARR)
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ONTA
IY AM
ARI
LA
18 Attorn vf Hes Defendants,
STEPHEN MAGEE and SAC AERO
19 FLYING CLUB, INC.
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OTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED ANSWER; MEMORANDUM.
DF POINTS AND AUTHORITIES; DECLARATION OF GARRY L. MONTANARI IN SUPPORT THEREOF
MEMORANDUM OF POINTS AND AUTHORITIES
L INTRODUCTION
This lawsuit arises out of an aircraft accident which took place near the approach end of
Runway 12 at Half Moon Bay Airport on November 18, 2016, Defendant STEPHEN MAGEE
(“MAGEE”) was piloting a single-engine aircraft owned by defendant SAC AERO FLYING CLUB,
INC. “SAC AERO”) (collectively, “defendants”) when MAGEE encountered wind shear turbulence
while on approach for landing, The turbulence caused a loss of control at low altitude and MAGEE
was forced to make an emergency landing, which resulted in damage to the plaintiffs BRYAN
TRUJILLO’s and CINDY TRUJILLO’s (collectively, “plaintiffs”) property.
10 A central issue in this action is whether the 38 gallons of the spilled aviation gasoline
11 constitutes a permanent or continuing nuisance. After seeking and obtaining remedies for a
12 continuing nuisance, plaintiffs now contend that this is a permanent nuisance and seek different
13 remedies. Defendants contend that the nuisance is continuing having been abated at the expenses
14 of defendants. Defendants contend they should be permitted leave to amend their answer in order
15 to assert the affirmative defenses of equitable estoppel and double recovery related to plaintiffs’
16 statements and conduct of requesting defendants to abate and pay for the spilled fuel.
17 Within days of the accident, plaintiffs demanded that the spill be abated. On or about
18 December 20, 2016, the County of San Mateo (“County”) issued an opening site letter to plaintifis
19 — as property owners — indicating that they were potential “responsible parties.” Pursuant to
ao California Health and Safety Code section 101480, in order to initiate the abatement of aviation
al gasoline from a property, the County requires designation of a “responsible party” along with a
22 “remedial action agreement.” (Cal. Health & Saf. Code, §101480, subds, (a)-(c).) The Health and
23 Safety Code strictly prohibits commencing abatement activities without a “responsible party” first
24 entering into a “remedial action agreement.” (Cal. Health & Saf. Code, §101480, subd. (c).) (Decl.
25 of Montanari, §3.)
26 Rather than being designated as the “responsible party,” plaintiffs requested defendants do
27 so in order to commence the abatement of the aviation fuel from their property. Defendants agreed
28 and consequently entered into the “remedial action agreement” with the County. Defendants
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NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED ANSWER; MEMORANDUM
DF POINTS AND AUTHORITIES; DECLARATION OF GARRY L. MONTANARI IN SUPPORT THEREOF
commenced and completed the abatement, as evidenced by the County’s correspondence, dated
November 12, 2020. (The “completed” abatement status for plaintiffs’ property is also established
on GeoTracker— California’s database, providing online access to environmental data.) The County
issued a site closure memorandum, showing various non-detectable contamination levels from a
2018 sampling, where all monitoring wells on plaintiffs’ property were subsequently destroyed.
Throughout the entire process plaintiffs did not oppose and supported defendants’ abatement of the
spilled fuel. Defendants have either directly, or by settlement of the intervenor’s action of plaintiffs’
insurer, paid about $250,000 to abate the spill. (Decl. of Montanari, 74.)
Now plaintiffs want to “elect” remedies for a permanent nuisance after defendants have
10 already paid for abatement. Defendants contend that plaintiffs’ statements and conduct leading up
11 to, during, and at the completion of the abatement serve as the basis for defendants’ affirmative
12 defenses of equitable estoppel and double recovery. This only became apparent as the parties have
13 been arguing MILs.
14 Defendants seek leave to amend their answer to include double recovery and estoppel
15 affirmative defenses, which are related to a number of other issues in this matter, such as the
16 nuisance character, plaintiffs’ election of remedies, prohibition on double recovery, and evidentiary
17 presumptions, among others. Plaintiffs will suffer no prejudice if defendants are granted leave to
18 amend their answer to include these defenses since plaintiffs are aware that defendants intended to
19 assert those defenses by way of the MIL proceedings.
20 Defendants’ supplemental briefing for defendants’ Motion in Limine No. 4 for excluding
21 evidence of diminution in value of plaintiffs’ property provided extensive briefing regarding the
22 estoppel defense and double recovery issues. (See defendants’ Request for Judicial Notice (“RIN”),
23 Exhibit A, pp. 17-19.) The estoppel and double recovery defenses are also a subject of defendants’
24 proposed jury instructions. The procedural history of this case and extensive MIL briefing precludes
25 any claim of surprise and/or prejudice. (Decl. of Montanari, 7.)
26 In light of California’s liberal policy on granting leave to amend pleadings (particularly for
27 answers) and since plaintiffs will suffer no prejudice, defendants should be granted leave to amend
28 their answer to include the affirmative defenses of estoppel and double recovery.
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(OTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED ANSWER; MEMORANDUM
DF POINTS AND AUTHORITIES; DECLARATION OF GARRY L. MONTANARI IN SUPPORT THEREOF
I. AMENDMENT
The second amended answer includes a thirteenth affirmative defense prohibiting double
recovery and fourteenth affirmative defense asserting estoppel. (Cal. Rules of Ct., Rule 3.1324(a).)
Requirements under California Rules of Court, Rule 3.1324(b) have been satisfied since the second
amended answer is attached as Exhibit A to the declaration of Garry L. Montanari, Defendants will
amend their answer to assert estoppel and double recovery, based on plaintiffs’ statements and
conduct pertaining to their request that defendants commence, complete and pay for the abatement
of spilled aviation fuel from their property.
The second amended answer is necessary and proper in furtherance of the interest of justice
10 since defendants will be deprived of asserting an equitable affirmative defense.
11 Ii. GRANTING LEAVE TO AMEND ITS ANSWER WOULD FURTHER JUSTICE
12 AND WOULD NOT PREJUDICE PLAINTIFFS IN ANY MANNER
13 A The Court’s Authority To Grant Leave To Amend
14 A trial court has the authority to allow a defendant to amend their answer. Pursuant to Code
15 of Civil Procedure section 473,
16 “[t]he court may, in furtherance of justice, and on any terms as may
17 be proper, allow a party to amend any pleading . . . by correcting...
18 a mistake in any... respect .. The court may likewise, in its
19 discretion, after notice to the adverse party, allow, upon any terms as
20 may be just, an amendment to any pleading or proceeding in other
21 particulars; and may upon like terms allow an answer to be made after
22 the time limited by this code.”
23 (Cal. Code of Civ. Proc. §473(a)(1).)
24 B. California Particularly Fayors Liberally Granting Leaye To Amend Answers, Absent
a5 Prejudice
26 “The rule is that courts will be liberal in allowing an amendment to a pleading when it does
27 not seriously impair the rights of the opposite party—and particularly an amendment to an answer.”
28 (Eng v. Brown (2018) 21 Cal.App.5th 675, 701 (emphasis added).) With respect to a defendant’s
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IOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED ANSWER; MEMORANDUM
F POINTS AND AUTHORITIES; DECLARATION OF GARRY L. MONTANARI IN SUPPORT THEREOF
request to amend its answer to assert a new affirmative defense, an appellate court emphasized, in
pertinent part, as follows:
“[slection 473 permits the trial court in its discretion to allow
amendments to pleadings in furtherance ofjustice. Ordinarily, courts
should ‘exercise liberality’ in permitting amendments at any stage of
the proceeding. In particular, liberality should be displayed in
allowing amendments to answers, for a défendant denied leave to
amend is permanently deprived of a defense.”
(Hulsey v. Koehler (1990) 218 Cal.App.3d. 1150, 1159 (“Hulsey”), internal citations omitted.)
10 In light of California’s liberal policy, denying leave to amend is the exception to the rule.
11 Instances justifying a trial court’s denial of leave to amend are limited. (Armenta Ex Rel. City of
12 Burbank y, Mueller Co, (2006) 142 Cal.App.4th 636, 642.)
13 Cc Plaintiffs Will Suffer No Prejudice Since They Were Aware Of Defendants’ Double
14 Recovery and Estoppel Defenses
is California Courts apply a policy of great liberality allowing amended answers “at any stage
16 of the proceedings, up to and including trial,” absent prejudice. (Atkinson v. Elk Corp. (2003) 109
17 Cal.App.4th 739, 761 (“Atkinson”), internal quotes omitted (emphasis added).) Delay alone is
18 insufficient grounds for denial and it is an abuse of discretion to deny leave even if leave is sought
19 as late as the time of trial. (Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-565.) Simply
20 because an amendment includes an additional legal theory that would make admissible evidence
21 damaging to an adverse party is not the kind of prejudice the court considers. (Hirsa v. Sup. Ct.
22 (1981) 118 Cal.App.3d 486, 490.) Prejudice is not synonymous with detriment. (Gonzales v.
23 Brennan (1965) 238 Cal.App.2d 69, 75-76.)
24 Examples of prejudice include delays of trial, loss of critical evidence, added costs of
25 preparation, increased burden of discovery, among other things. (Magpali v. Farmers Group, Ine.
26 (1996) 48 Cal.App.4h 471, 486-488.) None of these examples—or any other indications of prejudice
27 — are present here.
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|OTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED ANSWER; MEMORANDUM
F POINTS AND AUTHORITIES; DECLARATION OF GARRY L. MONTANARI IN SUPPORT THEREOF
Plaintiffs will suffer no prejudice since plaintiffs are (and have been) aware of defendants’
estoppel and double recovery defenses since raised in defendants’ supplemental brief and argued
before this Court. Defendants extensively briefed these defenses, contending that by seeking
abatement of the spilled fuel, plaintiffs were estopped from claiming a permanent nuisance and were
seeking double recovery. (RJN, Ex. A, pp. 17-19.) Plaintiffs raised no objections or any other
opposition to defendants’ defenses in either their supplemental brief or at the time of the hearing.
Defendants’ defenses ate purely legal issues related to plaintiffs’ statements and conduct.
The public records related to the abatement, designation of a “responsible party,” and “remedial
action agreement” are published on GeoTracker and have been the subject of discovery. These
10 records have been and still are readily available to all parties. ‘Trial has not been set, which
1. necessarily removes any risk of delay of trial. There are no added costs of preparation since
12 plaintiffs were well aware of their request that defendants abate the aviation fuel from their property
13 and are-well aware of defendants’ intent to present these defenses. In light of the circumstances,
14 defendants should not be “permanently deprived of [this] defense.” (Hulsey, supra, 218 Cal.App.3d.
15 at 1159.) Accordingly, since there is no evidence of prejudice, great liberality prevails and
16 defendants should be granted leave to amend their answer to include the affirmative defenses of
17 estoppel and double recovery. (Hong Sang Market, Inc. v. Peng (Cal. App. Ist Dist. 2018) 20
18 Cal.App.Sth 474, 488.)
19 D. Defendants’ Request Is Timely
20 Permitting a defendant leave to amend an answer is appropriate “at any stage of the
21 proceedings,” absent prejudice. (Atkinson, supra, 109 Cal.App.4th at 761.)
22 As discussed above, the need to assert these defenses only became necessary when plaintiffs
23 expressed an intent to “elect” the remedies for permanent nuisance during MIL argument.
24 Defendants’ request is timely since no trial date has been set. (See Williams v. The Pep Boys Manny
25 Moe & Jack of California (Cal. App. 1st Dist. 2018) 27 Cal.App.5th 225, 232 (request for leave to
26 amend brought orally on the fourth day of trial was proper since there was no prejudice); Serian
27 Bros., Inc. vy. Agri-Sun Nursery (1994) 25 Cal.App.4th 306, 309 (leave to amend granted on day of
28 trial even though case pending for almost 5 years).)
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NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED ANSWER; MEMORANDUM
OF POINTS AND AUTHORITIES; DECLARATION OF GARRY L, MONTANARI IN SUPPORT THEREOF
E. Granting Defendants Leave To Amend Is Appropriate
Plaintiffs demanded that the gasoline spill be remediated. Defendants did so at a cost of
about $250,000. California Evidence Code section 623 provides that “[w]henever a party has, by
his own statement or conduct, intentionally and deliberately led another to believe a particular thing
true and to act upon such belief, he is not, in any litigation arising out of such statement or conduct,
permitted to contradict it.” (Cal. Evid. Code §623.)
California law prohibits a plaintiff from obtaining diminution in value damages for a
continuing nuisance since a “[p]laintiff would obtain a double recovery if she could recover for the
depreciation in value and also have the cause of that depreciation removed.” (Spaulding v. Cameron
10 (1952) 38 Cal.2d 265, 269 (“Spaulding”).) An appellate court analyzing Spaulding held that in
11 addition to double recovery barring diminution in value damages for a continuing nuisance, another
12 reason diminution in value damages is not permitted for a continuing nuisance is “if the defendant
13 is willing and able to abate the nuisance, it is unfair to award damages on the theory that it will
14 continue.” (Gehr v. Baker Hughes Oil Field Operations, Inc. (2008) 165 Cal.App.4th 660, 668
15 (emphasis added), citing Spaulding, supra, 38 Cal.2d at 268.)
16 It would be patently unfair to permanently deprive defendants of these defenses since
17 defendants are contending that “the cause of that depreciation [has been] removed.” (Spaulding,
18 supra, 38 Cal.2d at 269.) Double or duplicative recovery for the same items of damage amounts to
19 overcompensation and is therefore prohibited. (Roby v. McKesson Corp. (2009) 47 Cal.4th 686,
20 702.) In ruling on the MILs, this Court has already concluded that if plaintiffs obtain permanent
al nuisance damages, defendants are entitled to an offset or credit.
22 There are also evidentiary presumptions related to defendants’ defenses, which further
23 supports granting defendants leave. As stated earlier, the County precludes commencing abatement
24 until a “remedial action agreement” is entered into. (Cal. Health & Saf. Code, §101480, subd. (c).)
25 Defendants entered into the “remedial action agreement” with the County due to plaintiffs’
26 statements and conduct. These are undisputed facts evidenced by the public records and have
27 remained unchanged. The abatement oversight process is an official duty of the County, which
28 raises a presumption that it has been regularly performed. (Cal. Evid. Code §664,.) The County’s
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IOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED ANSWER; MEMORANDUM
IF POINTS AND AUTHORITIES; DECLARATION OF GARRY L. MONTANARI IN SUPPORT THEREOF
letter, which is a public record published on GeoTracker, certifies that abatement was completed.
(Cal. Health & Saf. Code, §101480, subd. (e).) This public record is presumed to be true. (Godshalk
v, City of San Diego (1971) 16 Cal.App.3d 459, 469.) This presumption also applies in the context
of abating a nuisance. (Romero v. County of Santa Clara (Cal. App. 1st Dist. 1970) 3 Cal.App.3d
700, 705, citing Cal. Evid. Code §664.)
Iv. CONCLUSION
Based on the foregoing, the Court is requested to grant leave to the defendants to file its
proposed second amended answer to allege as its thirteenth and fourteenth affirmative defenses.
Additionally, the Court is requested that the proposed second amended answer submitted herewith
10 as Exhibit A be deemed the operative amended answer and that it be deemed filed and served as of
11 the date of the filing of this motion.
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13 DATED: September 23, 2021 MICHAELIS, MONTANARI & JOHNSON
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15 By
GARR’ » MONTANARI
16 Attorne! for Defendants,
STEPHEN MAGEE and SAC AERO
17 FLYING CLUB, INC.
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NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED ANSWER; MEMORANDUM
PE POINTS AND AUTHORITIES; DECLARATION OF GARRY L. MONTANARI IN SUPPORT THEREOF
DECLARATION OF GARRY L. MONTANARI
I, GARRY L. MONTANARL, declare:
1 Tam an attorney at law duly licensed to practice before all the Courts of the State of
California. ] am a partner of the law firm of Michaelis, Montanari & Johnson, counsel of record for
defendants STEPHEN MAGEE and SAC AERO CLUB FLYING, INC. (collectively referred to as
“defendants”). I have personal knowledge of the matters set forth below and could testify thereto
in any proceeding in this litigation.
2. Attached hereto marked Exhibit A and incorporated herein by reference is defendants’
second amended answer.
10 3 On or about December 20, 2016, the County of San Mateo (“County”) issued an.
11 opening site letter to plaintiffs - as property owners - indicating that they were potential
12 “responsible parties.” (Attached as Exhibit B.) Pursuant to California Health and Safety Code
13 section 101480, in order to initiate the abatement of aviation gasoline from a property, the County
14 requires designation of a “responsible party” along with a “remedial action agreement.” (Cal. Health
15 & Saf. Code, § 101480, subds. (a)-(c).) The Health and Safety Code strictly prohibits commencing
16 abatement activities without a “responsible party” first entering into a “remedial action agreement.”
17 (Cal, Health & Saf. Code, § 101480, subd. (c).)
18 4 Rather than being designated as the “responsible party,” plaintiffs requested
19 defendants do so in order to commence the abatement of the aviation fuel from their property.
20 Defendants agreed and consequently entered into a “remedial action agreement” with the County,
21 attached as Exhibit C. Defendants commenced and completed the abatement. (The “completed”
22 abatement status for plaintiffs’ property is also established on GeoTracker -- California’s database,
23 providing online access to environmental data.) The County issued a letter of November 12, 2020
24 to SAC AERO confirming the site was permanently remediated pursuant to Health and Safety Code
25 section 101480(e), attached as Exhibit D. Throughout the entire process plaintiffs did not oppose
26 and supported defendants’ abatement of the spilled fuel. In response to plaintiffs demands,
27 defendants have cither directly, or by settlement of the intervenor’s action of plaintiffs’ insurer, paid
28 about $250,000 to abate the spill.
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|OTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED ANSWER; MEMORANDUM
DF POINTS AND AUTHORITIES; DECLARATION OF GARRY L. MONTANARI IN SUPPORT THEREOF
5 Defendants have amended their answer to assert estoppel and double recovery against
plaintiffs, based on plaintiffs’ conduct and statements pertaining to their request that defendants
abate the spilled aviation gasoline from plaintiffs’ property. Defendants contend that plaintiffs are
estopped and barred from claiming diminution in value damages, among other things, based on their
statements and conduct related to the abatement.
6 The second amended answer is necessary and proper in furtherance of the interest of
justice since defendants will be permanently deprived of their right to assert these defenses based
on plaintiffs’ conduct and statements, if leave to amend is not granted.
7 Defendants raised these defenses in its supplemental briefing for the hearing on
190 defendants’ Motion in Limine No. 4 for excluding evidence of diminution in value of plaintiffs’
11 property. (See defendants’ Request for Judicial Notice, Exhibit A.) ‘Thus, these defenses are no
12 surprise, Plaintiffs will suffer no prejudice since no trial date has been set and the parties are in the
13 process of drafting jury instructions.
14 8 Defendants’ proposed jury instructions include these defenses.
15 9 This case has not been set for a new trial date.
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17 Ideclare under penalty of perjury under the laws of the State of California that the foregoing
18 is true and correct.
19 Executed this 23rd day of September, 2021 at Westlake Village, California.
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GARRY; ONTAN.
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IOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED ANSWER; MEMORANDUM.
DF POINTS AND AUTHORITIES; DECLARATION OF GARRY L. MONTANARI IN SUPPORT THEREOF
EXHIBIT A
GARRY L. MONTANAREL State Bar No. 89790
WESLEY 8S. WENIG, State Bar No. 162351
JOHN H. MOON, State Bar No. 253811
MICHAELIS, MONTANARI & JOHNSON, P.C.
4333 Park Terrace Dr. #100
Westlake Village, CA 91361
Telephone No.: (818) 865-0444
Attorneys for defendants, STEPHEN MAGEE and
SAC AERO FLYING CLUB, INC,
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN MATEO
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BRYAN TRUJILLO and CINDY Case No.: 18CTV01901
TRUJILLO, Honorable Nancy Fineman; Dept. 4
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Plaintiffs,
DEFENDANTS STEPHEN MAGEE
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VS. AND SAC AERO FLYING CLUB,
INC,’S SECOND AMENDED ANSWER
15 TO UNVERIFIED COMPLAINT;
STEPHEN MAGEE, SAC AERO FLYING DEMAND FOR JURY TRIAL
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CLUB, INC. and DOES 1 - 50,
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Defendants. Complaint filed: April 17, 2018
Trial Date:
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19 ‘The Complaint in the above matter being unverified, these answering defendants STEPHEN
20 MAGEE and SAC AERO FLYING CLUB, INC., pursuant to Code of Civil Procedure section
21 431.30, generally deny each and every allegation of this Complaint and further deny that the
22 plaintiffs were injured or damaged in the sum and manner alleged or in any sum or manner,
23 Defendants state the following facts as separate affirmative defenses to plaintiffs’ Complaint
24 (“complaint”), as follows:
25 FIRST AFFIRMATIVE DEFE
26 (Contributory Negligence)
27 1 As a separate and affirmative defense, defendants allege that any and all events and
28 occurrences, injuries and damages, if any, alleged in the complaint, were proximately caused and
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DEFENDANTS’ SECOND AMENDED ANSWER TO UNVERIFIED COMPLAINT; DEMAND FOR JURY TRIAL
contributed to by the negligence and fault of the plaintiffs, in that plaintiffs did not exercise ordinary
care in their own behalf at the times and places referred to, and therefore, plaintiffs are completely
barred from recovery or, in the alternative, said act of plaintiffs reduce plaintiffs’ right to recover
herein by that percentage of negligence attributable to plaintiffs.
SECOND AFFIRMATIVE DEFENSE
(Comparative Fault)
2 Asa separate and affirmative defense, defendants allege that ifit should be found that
these answering defendants are in any manner legally responsible for the alleged injury or damages,
if any, sustained by plaintiffs, which supposition is not admitted but merely stated for the purpose
10 of this defense, that any such injuries and damages found to have been incurred or suffered by
ii plaintiffs in this action were proximately caused or contributed to by other defendants in this case,
12 whether served or not served, and/or by other persons or entities not parties to this action, and it is
13 necessary that the proportionate degree of negligence or fault of each said other persons or entities,
14 whether made parties to this action or not, be determined and proportioned, and that any judgment
15 rendered against these answering defendants be reduced not only by that percentage of negligence
16 attributable to plaintiffs, but also as to the total of that percentage of negligence and/or fault
17 attributable to said other persons or entities.
18 THIRD AFFIRMATIVE DEFENSE.
19 (Assumption of Risk)
20 3. As a separate and affirmative defense, defendants allege that at all times mentioned
21 in the complaint, plaintiffs had actual knowledge of all of the circumstances and particular dangers
22 and an appreciation of the risks involved and the magnitude thereof, proceeded to encounter aknown.
23 risk, and voluntarily assumed the risks of the accident, injury and damages alleged in the complaint,
24 barring or reducing plaintiffs’ claim for damages herein.
25 FOURTH AFFIRMATIVE DEFENSE
26 (Fails to State a Cause of Action)
27 4 Asa separate and affirmative defense, defendants allege that the complaint, and cach
28 cause of action therein, does not state facts sufficient to constitute a cause of action against these
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DEFENDANTS’ SECOND AMENDED ANSWER TO UNVERIFIED COMPLAINT; DEMAND FOR JURY TRIAL.
answering defendants.
FIFTH AFFIRMATIVE DEFENSE
(Proposition 51)
5 As a separate and affirmative defense, that the Fair Responsibility Act of 1986,
commonly known as Proposition 51, be given full force and effect per California Civil Code,
sections 1431, 1431.1 through 1431.5. Specifically, it is asserted by these answering defendants that
in the event a judgment is rendered against it and in favor of plaintiffs, that it can be held
responsible, ifat all, for only that proportion of “non-economic” damages for whichit is found liable
by jury determination and that the rule of joint and several liability not apply under such
10 circumstances.
11 SIXTH AFFIRMATIVE DEFENSE
12 (Statute of Limitations)
13 6 As a separate and affirmative defense, defendants allege that the complaint and each
14 cause of action thereof is barred by the applicable statutes of limitations,
15 SEVENTH AFFIRMATIVE DEFENSE
16 (Laches)
17 7 As a separate and affirmative defense, defendants allege that plaintiffs’ claims are
18 barred by the doctrine of laches because plaintiffs inexcusably and unreasonably delayed in filing
1g and serving the complaint, to the prejudice of defendants.
20 EIGHTH AFFIRMATIVE DEFENSE
21 (Failure to Mitigate)
22 8 As a separate and affirmative defense, plaintiffs have failed to mitigate their
23 damages.
24 NINTH AFFIRMATIVE DEFENSE
25 (Necessity)
26 9 As a separate and affirmative defense, defendants allege that plaintiffs’ claims are
27 barred by the doctrine of necessity in that any act of the defendants was to prevent a threatened injury
28 from some force of nature, or some other independent cause not connected with the plaintiffs, so as
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DEFENDANTS’ SECOND AMENDED ANSWER TO UNVERIFIED COMPLAINT; DEMAND FOR JURY TRIAL
to protect members of the public.
TENTH AFFIRMATIVE DEFENSE
(Imminent Peril)
10. As a separate and affirmative defense, defendants allege that plaintiffs’ claims are
barred by the doctrine of imminent peril or sudden emergency.
ELEVENTH AFFIRMATIVE DEFENSE
(Dissolved Corporation)
1, Asa separate and affirmative defense, defendant SAC AERO FLYING CLUB, INC.
is a dissolved corporation and is protected from judgment as set forth in the Corporations Code.
10 TWELFTH AFFIRMATIVE DEFENSE
11 (Setoff/Credit)
12 12. As a separate and affirmative defense, defendants contend a recovery, if any, by
13 plaintiffs be subject to setoff and/or credit. Defendants are entitled to have plaintiffs’ recovery, if
14 any, reduced by the amount defendants have paid to repair/restore plaintiffs’ residence including but
15 not limited to monitoring and oversight as well as the entire amount of the claim payments made by
16 plaintiffs” insurers and sought in a complaint-in-intervention which has been settled by defendants.
17 THIRTEENTH AFFIRMATIVE DEFENSE
18 (Double Recovery)
19 13. As a separate and affirmative defense, plaintiffs are prohibited from seeking double
20 or duplicative recovery.
21 FOURTEENTH AFFIRMATIVE DEFENSE
22 (Estoppel)
23 14. As aseparate and affirmative defense, defendants contend that plaintiffs’ complaint,
24 each cause of action thereof and/or remedies sought are barred by the doctrine of estoppel.
25 JURY DEMAND
26 Defendants demand a trial jury.
27
28 WHEREFORE, defendants pray for judgment as follows:
4.
DEFENDANTS’ SECOND AMENDED ANSWER TO UNVERIFIED COMPLAINT; DEMAND FOR JURY TRIAL
1 1 That judgment be entered in favor of defendants and that the complaint be dismissed;
2 2. For costs of suit incurred herein; and,
3 3 For such other and further relief as the Court may deem just and proper.
4
5 || DATED: September 23, 2021 MICHAELIS, MONTANARI & JOHNSON
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GARRY L, ANARI
8 Attorneys for Defendants STEPHEN MAGEE
and SAC AERO FLYING CLUB, INC.
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DEFENDANTS’ SECOND AMENDED ANSWER TO UNVERIFIED COMPLAINT; DEMAND FOR JURY TRIAL.
EXHIBIT B
COUNTYor SAN MATEO Heather Forshey, MS, REHS
tC
HEALTH SYSTEM
Enviranmental Health
r
wou smchealth org
www. facebook .com/smchealth
December 20, 2016
SMCo Case #019048
APN 037-226-100
Sent via Certified Mail
Bryan and Cindy Trujillo (cindytrujillo@yahoo.com)
1065 Park Way
Moss Beach, CA 94038
SUBJECT: 1065 PARK WAY, MOSS BEACH, CALIFORNIA
Dear Mr. and Mrs. Trujillo:
IRC Environmental Consulting LLC report was submitted to San Mateo County Health System
Comprehensive Unified Program Agency by yourself. The results indicate the soil at the above
referenced property has concentrations of petroleum hydrocarbons and related compounds above
Environmental Screening Levels (ESLs) established by the Regional Water Quality Control
Board (RWQCB). Having concentrations of contaminants above ESLs does not necessarily
indicate an unacceptable risk to human health or the environment; however, it does indicate
additional investigation is warranted. No other information such as an incident report of the
plane crash has been forwarded to San Mateo County Health System to date.
GPP staff is identifying Mr. and Mrs. Trujillo as a potential responsible party for soil
contamination at the above referenced site based on the concentration of petroleum hydrocarbons
and related compounds detected in the soil samples collected at the site that you are the property
owner at the time the contamination was discovered. You may become a responsible party under
Sections 101480 and 25260 of the California Health and Safety Code. Should further
information become available which may allow other parties being identified as additional
potential responsible parties, then please submit that information to GPP staff at any time.
Should you or any of the other potential responsible parties chose not to voluntarily agree to
perform the duties of a responsible party, then GPP will transfer this case to the Department of
Toxic Substances Control.
Because the source of the contamination does not appear to be an identifiable underground
storage tank, this site will be opened under San Mateo County’s Voluntary Cleanup Program.
The RWQCB and the Department of Toxic Substances Control (DTSC) will be notified and
given the opportunity to take the lead oversight responsibilities. You can also request either the
RWQCB or DTSC to be the lead agency through the Site Designation Process or the
Brownfields Memorandum of Agreement process. Please contact Tom Lanphar of the DTSC at
(510) 540-3776 regarding the Site Designation process or Randy Lee of the RWQCB at (510)
622-2375 regarding the Brownfields Memorandum of Agreement process should you desire to
have another agency be the lead for this site.
Voluntary cleanup sites require reimbursement to the lead government agency for all of the
oversight time. Currently, GPP staff is billing at a rate of $182 per hour. Shortly, a Remedial
Action Agreement letter will be sent to you requesting a signature acknowledging among other
things the reimbursement responsibility.
GPP staff requests a meeting with you to clarify your roles and responsibilities as a responsible
party and GPP staff's role as the oversight agency. Please respond back to this letter by January
20, 2017 to provide accurate contact information and discuss the best date and time to have a
meeting. I appreciate your cooperation. If you have any questions, please call me at (650) 399-
6911.
Sincerely,
(Aub. See,
Charles Ice, P.G.
Hazardous Materials Specialist
Groundwater Protection Program
cc: Ben Berman, IRC Environmental, ircenvironmental@gmail.com
Jolanta Uchman, RWQCB, Jolanta. Uchman@waterboards.ca.go
Julie Pettijohn, DTSC, Julie.Pettijohn@dtsc.ca.gov
EXHIBIT C
COUNTY or SAN MATEO 1 Ft shiey, 1S, RENS
HEALTH SYSTEM
Envi neal Th tit
fchealth.org.
REMEDIAL ACTION AGREEMENT facebook.comsmchealth
February 10, 2017 CERTIFIED MAIL
GPP Site 019048
Sae Aero Flying Club, Ine, APN 037-226-100
c/o: Donald S. Honigman (dsh@rarmlaw.com)
315 Montgomery Street, Suite 800
San Francisco, CA 94014
Dear Sac Aero Flying Club Inc.:
SUBJECT: VOLUNTARY OVERSIGHT OF REMEDIAL ACTION
INVESTIGATION, TRUJILLO RESIDENCE,
1065 PARK WAY, MOSS BEACH, CA
Based on the December 11, 2016 IRC Environmental! Consulting LLC Near Surface Shallow Soil
Sampling report for the subject site, there are allegations that a discharge of waste’, has occurred
at the subject site, which requires further characterization and potential remediation as a
significant potential threat to human health or the environment.
San Mateo County Environmental Health (Environmental Health) has assumed the role as the
regulatory oversight agency for characterization and potential remediation of the released waste
as allowed by Section 101480 of the California Health and Safet Code. Sac Aero Flying Club,
Inc. is choosing to meet the legal definition of Responsible Party” for this alleged release of waste
at this time in order to proceed with oversight by and compensation for oversight by
Environmental Health . By entering this agreement, the responsible party is not admitting to any
liability associated with this alleged release of waste. By entering into this Remedial Action
Agreement, Sac Aero Flying Club, Inc. agrees to the following conditions:
e All subsequent directives and written agreements from Environmental Health regarding
testing, monitoring, and analysis to determine the nature, extent, and risk of
contamination, potential remedial action lo be taken, and cleanup goals (including
deadlines for required submittals), collectively referred to as Corrective Action, will be
considered a part of this Remedial Action Agreement,
All Corrective Action activities will follow San Mateo County Groundwater Protection
Program Guidelines, Policies and Procedures, available at www.smh Ith.or;
4 oF Say
tA
1 Waste as defined in Health and Safety Code Section 101075, and Water Code Section 13050,
2 Responsible Party as defined in Sections 25260(h) (2) of the Health and Safety Code,
SupoRe
Sac Aero Flying Club, Inc.
Date
Page 2
Regardless of the level of oversight from Environmental Health, the Responsible Party is
responsible for the timely reporting, investigation, and any mutually agreed cleanup of
soil and ground water pollution such that the beneficial uses of waters of the State are
protected, and in compliance with appropriate laws, regulations and policies, Compliance
will also take into account any new laws or regulations that may be applicable during the
term of this agreement.
If, at any time, the Responsible Party is not in compliance with directives from
Environmental Health that constitute a portion of this Remedial Action Agreement,
Environmental Health can, with adequate notice, withdraw from the agreement. The
Responsible Party can , with adequate notice, withdraw from the agreement at any time.
If the agreement is terminated prior to adequate completion of the Remedial Action
Agreement directives, the case will, at the discretion of San Mateo County, either be
transferred to the Corrective Action Unified Program Agency program or referred to the
Department of Toxic Substance Control (DTSC) or Regional Water Quality Control
Board (RWQCB) for issuance of a State Corrective Action Order, Cleanup and
Abatement Order, or other order or enforceable agreement, as appropriate, for further
remedial action directives.
If, upon further characterization, Environmental Health determines that the alleged
release of waste that is the subject of this Remedial Action Agreement is sufficiently
complex, may present such a significant potential hazard te human health or the
environment to warrant it, or may not be in the best interest of the County to continue as
lead agency, the case may be referred to DISC or RWQCB for further action,
Pursuant to Section 25262 of the Health and Safety Code, a Responsible Party may
request the designation of an administering or lead agency other than Environmental
Heaith when required to conduct corrective action. Please contact Environmental Health
for further information about the State Site Designation Committee process.
This case is subject to California regulations for e
Preview
Electronically by perior Court of Call ~ ounty of San Mateo ON 9/24/2021 GARRY L. MONTANARI, State Bar No. 89790 By. /s/ Alex Yeung JOHN H. MOON, State Bar No. 253811 Deputy Clerk 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 FOR THE COUNTY OF SAN MATEO 10 11 BRYAN TRUJILLO and CINDY Case No.: 18CIV01901 12 TRUJILLO, Honorable Nancy Fineman; Dept. 4 13 Plaintiffs, NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND 14 VS. AMENDED ANSWER; MEMORANDUM OF POINTS AND 15 AUTHORITIES; DECLARATION OF STEPHEN MAGEE, SAC AERO FLYING GARRY L. MONTANARI IN SUPPORT 16 CLUB, INC. and DOES 1 - 50, THEREOF 17 Defendants. Date: December 14, 2021 Time: 2:00 p.m. 18 Dept.: 4 13 Complaint filed: April 17, 2018 Trial Date: TBD 20 21 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD. 22 PLEASE TAKE NOTICE that on December 14, 2021 at 2:00 p.m., or as soon thereafter as 23 the matter may be heard in Department 4 of the above-entitled court, located at 1050 Mission Road, 24 South San Francisco, CA 94080, defendants STEPHEN MAGEE and SAC AERO CLUB FLYING, 25 INC. will and hereby do move pursuant to Code of Civil Procedure section 473 for an order granting 26 them leave to file a second amended answer so that it may assert the affirmative defenses of 27 “estoppel” and double recovery, pursuant to California Evidence Code section 623 and case 28 authority. 1 NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED ANSWER; MEMORANDUM. OF POINTS AND AUTHORITIES; DECLARATION OF GARRY L, MONTANARI IN SUPPORT THEREOF This motion will be made on the grounds that during the course of addressing motions in limine (MILs), ithas become apparent that plaintiffs are seeking “double recovery” having requested and received remedies for a continuing nuisance/trespass and now secking remedies for a permanent nuisance/trespass. Defendants seek to plead the defenses of double recovery and estoppel based on detrimental reliance on plaintiffs’ prior request for continuing nuisance/trespass remedies. There is a strong public policy to liberally permit amendments to pleadings, particularly for answers, and that the interests of justice and judicial economy would be promoted by the granting of this motion. There is no current trial date. The proposed Second Amended Answer is attached hereto as Exhibit A. The Court is requested to order that this proposed second amended answer be deemed 10 the amended answer and that it be deemed filed and served as of the date of the filing of this motion. 11 This motion will be based upon this notice, the attached memorandum of points and 12 authorities, the declaration of Garry L. Montanari and all exhibits attached thereto, all files and 13 records of this case and upon any oral argument that may be presented at the hearing. 14 15 DATED: September 23, 2021 MICHAELIS, MONTANARI & JOHNSON 16 i; 17 By KI GARR) Z-4, ONTA IY AM ARI LA 18 Attorn vf Hes Defendants, STEPHEN MAGEE and SAC AERO 19 FLYING CLUB, INC. 20 NA17517\pld\p-min. leave. file.2nd.amend.answer,wpd 21 22 23 24 25 26 27 28 2 OTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED ANSWER; MEMORANDUM. DF POINTS AND AUTHORITIES; DECLARATION OF GARRY L. MONTANARI IN SUPPORT THEREOF MEMORANDUM OF POINTS AND AUTHORITIES L INTRODUCTION This lawsuit arises out of an aircraft accident which took place near the approach end of Runway 12 at Half Moon Bay Airport on November 18, 2016, Defendant STEPHEN MAGEE (“MAGEE”) was piloting a single-engine aircraft owned by defendant SAC AERO FLYING CLUB, INC. “SAC AERO”) (collectively, “defendants”) when MAGEE encountered wind shear turbulence while on approach for landing, The turbulence caused a loss of control at low altitude and MAGEE was forced to make an emergency landing, which resulted in damage to the plaintiffs BRYAN TRUJILLO’s and CINDY TRUJILLO’s (collectively, “plaintiffs”) property. 10 A central issue in this action is whether the 38 gallons of the spilled aviation gasoline 11 constitutes a permanent or continuing nuisance. After seeking and obtaining remedies for a 12 continuing nuisance, plaintiffs now contend that this is a permanent nuisance and seek different 13 remedies. Defendants contend that the nuisance is continuing having been abated at the expenses 14 of defendants. Defendants contend they should be permitted leave to amend their answer in order 15 to assert the affirmative defenses of equitable estoppel and double recovery related to plaintiffs’ 16 statements and conduct of requesting defendants to abate and pay for the spilled fuel. 17 Within days of the accident, plaintiffs demanded that the spill be abated. On or about 18 December 20, 2016, the County of San Mateo (“County”) issued an opening site letter to plaintifis 19 — as property owners — indicating that they were potential “responsible parties.” Pursuant to ao California Health and Safety Code section 101480, in order to initiate the abatement of aviation al gasoline from a property, the County requires designation of a “responsible party” along with a 22 “remedial action agreement.” (Cal. Health & Saf. Code, §101480, subds, (a)-(c).) The Health and 23 Safety Code strictly prohibits commencing abatement activities without a “responsible party” first 24 entering into a “remedial action agreement.” (Cal. Health & Saf. Code, §101480, subd. (c).) (Decl. 25 of Montanari, §3.) 26 Rather than being designated as the “responsible party,” plaintiffs requested defendants do 27 so in order to commence the abatement of the aviation fuel from their property. Defendants agreed 28 and consequently entered into the “remedial action agreement” with the County. Defendants 3 NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED ANSWER; MEMORANDUM DF POINTS AND AUTHORITIES; DECLARATION OF GARRY L. MONTANARI IN SUPPORT THEREOF commenced and completed the abatement, as evidenced by the County’s correspondence, dated November 12, 2020. (The “completed” abatement status for plaintiffs’ property is also established on GeoTracker— California’s database, providing online access to environmental data.) The County issued a site closure memorandum, showing various non-detectable contamination levels from a 2018 sampling, where all monitoring wells on plaintiffs’ property were subsequently destroyed. Throughout the entire process plaintiffs did not oppose and supported defendants’ abatement of the spilled fuel. Defendants have either directly, or by settlement of the intervenor’s action of plaintiffs’ insurer, paid about $250,000 to abate the spill. (Decl. of Montanari, 74.) Now plaintiffs want to “elect” remedies for a permanent nuisance after defendants have 10 already paid for abatement. Defendants contend that plaintiffs’ statements and conduct leading up 11 to, during, and at the completion of the abatement serve as the basis for defendants’ affirmative 12 defenses of equitable estoppel and double recovery. This only became apparent as the parties have 13 been arguing MILs. 14 Defendants seek leave to amend their answer to include double recovery and estoppel 15 affirmative defenses, which are related to a number of other issues in this matter, such as the 16 nuisance character, plaintiffs’ election of remedies, prohibition on double recovery, and evidentiary 17 presumptions, among others. Plaintiffs will suffer no prejudice if defendants are granted leave to 18 amend their answer to include these defenses since plaintiffs are aware that defendants intended to 19 assert those defenses by way of the MIL proceedings. 20 Defendants’ supplemental briefing for defendants’ Motion in Limine No. 4 for excluding 21 evidence of diminution in value of plaintiffs’ property provided extensive briefing regarding the 22 estoppel defense and double recovery issues. (See defendants’ Request for Judicial Notice (“RIN”), 23 Exhibit A, pp. 17-19.) The estoppel and double recovery defenses are also a subject of defendants’ 24 proposed jury instructions. The procedural history of this case and extensive MIL briefing precludes 25 any claim of surprise and/or prejudice. (Decl. of Montanari, 7.) 26 In light of California’s liberal policy on granting leave to amend pleadings (particularly for 27 answers) and since plaintiffs will suffer no prejudice, defendants should be granted leave to amend 28 their answer to include the affirmative defenses of estoppel and double recovery. 4 (OTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED ANSWER; MEMORANDUM DF POINTS AND AUTHORITIES; DECLARATION OF GARRY L. MONTANARI IN SUPPORT THEREOF I. AMENDMENT The second amended answer includes a thirteenth affirmative defense prohibiting double recovery and fourteenth affirmative defense asserting estoppel. (Cal. Rules of Ct., Rule 3.1324(a).) Requirements under California Rules of Court, Rule 3.1324(b) have been satisfied since the second amended answer is attached as Exhibit A to the declaration of Garry L. Montanari, Defendants will amend their answer to assert estoppel and double recovery, based on plaintiffs’ statements and conduct pertaining to their request that defendants commence, complete and pay for the abatement of spilled aviation fuel from their property. The second amended answer is necessary and proper in furtherance of the interest of justice 10 since defendants will be deprived of asserting an equitable affirmative defense. 11 Ii. GRANTING LEAVE TO AMEND ITS ANSWER WOULD FURTHER JUSTICE 12 AND WOULD NOT PREJUDICE PLAINTIFFS IN ANY MANNER 13 A The Court’s Authority To Grant Leave To Amend 14 A trial court has the authority to allow a defendant to amend their answer. Pursuant to Code 15 of Civil Procedure section 473, 16 “[t]he court may, in furtherance of justice, and on any terms as may 17 be proper, allow a party to amend any pleading . . . by correcting... 18 a mistake in any... respect .. The court may likewise, in its 19 discretion, after notice to the adverse party, allow, upon any terms as 20 may be just, an amendment to any pleading or proceeding in other 21 particulars; and may upon like terms allow an answer to be made after 22 the time limited by this code.” 23 (Cal. Code of Civ. Proc. §473(a)(1).) 24 B. California Particularly Fayors Liberally Granting Leaye To Amend Answers, Absent a5 Prejudice 26 “The rule is that courts will be liberal in allowing an amendment to a pleading when it does 27 not seriously impair the rights of the opposite party—and particularly an amendment to an answer.” 28 (Eng v. Brown (2018) 21 Cal.App.5th 675, 701 (emphasis added).) With respect to a defendant’s 5 IOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED ANSWER; MEMORANDUM F POINTS AND AUTHORITIES; DECLARATION OF GARRY L. MONTANARI IN SUPPORT THEREOF request to amend its answer to assert a new affirmative defense, an appellate court emphasized, in pertinent part, as follows: “[slection 473 permits the trial court in its discretion to allow amendments to pleadings in furtherance ofjustice. Ordinarily, courts should ‘exercise liberality’ in permitting amendments at any stage of the proceeding. In particular, liberality should be displayed in allowing amendments to answers, for a défendant denied leave to amend is permanently deprived of a defense.” (Hulsey v. Koehler (1990) 218 Cal.App.3d. 1150, 1159 (“Hulsey”), internal citations omitted.) 10 In light of California’s liberal policy, denying leave to amend is the exception to the rule. 11 Instances justifying a trial court’s denial of leave to amend are limited. (Armenta Ex Rel. City of 12 Burbank y, Mueller Co, (2006) 142 Cal.App.4th 636, 642.) 13 Cc Plaintiffs Will Suffer No Prejudice Since They Were Aware Of Defendants’ Double 14 Recovery and Estoppel Defenses is California Courts apply a policy of great liberality allowing amended answers “at any stage 16 of the proceedings, up to and including trial,” absent prejudice. (Atkinson v. Elk Corp. (2003) 109 17 Cal.App.4th 739, 761 (“Atkinson”), internal quotes omitted (emphasis added).) Delay alone is 18 insufficient grounds for denial and it is an abuse of discretion to deny leave even if leave is sought 19 as late as the time of trial. (Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-565.) Simply 20 because an amendment includes an additional legal theory that would make admissible evidence 21 damaging to an adverse party is not the kind of prejudice the court considers. (Hirsa v. Sup. Ct. 22 (1981) 118 Cal.App.3d 486, 490.) Prejudice is not synonymous with detriment. (Gonzales v. 23 Brennan (1965) 238 Cal.App.2d 69, 75-76.) 24 Examples of prejudice include delays of trial, loss of critical evidence, added costs of 25 preparation, increased burden of discovery, among other things. (Magpali v. Farmers Group, Ine. 26 (1996) 48 Cal.App.4h 471, 486-488.) None of these examples—or any other indications of prejudice 27 — are present here. 28 Ati 6 |OTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED ANSWER; MEMORANDUM F POINTS AND AUTHORITIES; DECLARATION OF GARRY L. MONTANARI IN SUPPORT THEREOF Plaintiffs will suffer no prejudice since plaintiffs are (and have been) aware of defendants’ estoppel and double recovery defenses since raised in defendants’ supplemental brief and argued before this Court. Defendants extensively briefed these defenses, contending that by seeking abatement of the spilled fuel, plaintiffs were estopped from claiming a permanent nuisance and were seeking double recovery. (RJN, Ex. A, pp. 17-19.) Plaintiffs raised no objections or any other opposition to defendants’ defenses in either their supplemental brief or at the time of the hearing. Defendants’ defenses ate purely legal issues related to plaintiffs’ statements and conduct. The public records related to the abatement, designation of a “responsible party,” and “remedial action agreement” are published on GeoTracker and have been the subject of discovery. These 10 records have been and still are readily available to all parties. ‘Trial has not been set, which 1. necessarily removes any risk of delay of trial. There are no added costs of preparation since 12 plaintiffs were well aware of their request that defendants abate the aviation fuel from their property 13 and are-well aware of defendants’ intent to present these defenses. In light of the circumstances, 14 defendants should not be “permanently deprived of [this] defense.” (Hulsey, supra, 218 Cal.App.3d. 15 at 1159.) Accordingly, since there is no evidence of prejudice, great liberality prevails and 16 defendants should be granted leave to amend their answer to include the affirmative defenses of 17 estoppel and double recovery. (Hong Sang Market, Inc. v. Peng (Cal. App. Ist Dist. 2018) 20 18 Cal.App.Sth 474, 488.) 19 D. Defendants’ Request Is Timely 20 Permitting a defendant leave to amend an answer is appropriate “at any stage of the 21 proceedings,” absent prejudice. (Atkinson, supra, 109 Cal.App.4th at 761.) 22 As discussed above, the need to assert these defenses only became necessary when plaintiffs 23 expressed an intent to “elect” the remedies for permanent nuisance during MIL argument. 24 Defendants’ request is timely since no trial date has been set. (See Williams v. The Pep Boys Manny 25 Moe & Jack of California (Cal. App. 1st Dist. 2018) 27 Cal.App.5th 225, 232 (request for leave to 26 amend brought orally on the fourth day of trial was proper since there was no prejudice); Serian 27 Bros., Inc. vy. Agri-Sun Nursery (1994) 25 Cal.App.4th 306, 309 (leave to amend granted on day of 28 trial even though case pending for almost 5 years).) 7 NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED ANSWER; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF GARRY L, MONTANARI IN SUPPORT THEREOF E. Granting Defendants Leave To Amend Is Appropriate Plaintiffs demanded that the gasoline spill be remediated. Defendants did so at a cost of about $250,000. California Evidence Code section 623 provides that “[w]henever a party has, by his own statement or conduct, intentionally and deliberately led another to believe a particular thing true and to act upon such belief, he is not, in any litigation arising out of such statement or conduct, permitted to contradict it.” (Cal. Evid. Code §623.) California law prohibits a plaintiff from obtaining diminution in value damages for a continuing nuisance since a “[p]laintiff would obtain a double recovery if she could recover for the depreciation in value and also have the cause of that depreciation removed.” (Spaulding v. Cameron 10 (1952) 38 Cal.2d 265, 269 (“Spaulding”).) An appellate court analyzing Spaulding held that in 11 addition to double recovery barring diminution in value damages for a continuing nuisance, another 12 reason diminution in value damages is not permitted for a continuing nuisance is “if the defendant 13 is willing and able to abate the nuisance, it is unfair to award damages on the theory that it will 14 continue.” (Gehr v. Baker Hughes Oil Field Operations, Inc. (2008) 165 Cal.App.4th 660, 668 15 (emphasis added), citing Spaulding, supra, 38 Cal.2d at 268.) 16 It would be patently unfair to permanently deprive defendants of these defenses since 17 defendants are contending that “the cause of that depreciation [has been] removed.” (Spaulding, 18 supra, 38 Cal.2d at 269.) Double or duplicative recovery for the same items of damage amounts to 19 overcompensation and is therefore prohibited. (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 20 702.) In ruling on the MILs, this Court has already concluded that if plaintiffs obtain permanent al nuisance damages, defendants are entitled to an offset or credit. 22 There are also evidentiary presumptions related to defendants’ defenses, which further 23 supports granting defendants leave. As stated earlier, the County precludes commencing abatement 24 until a “remedial action agreement” is entered into. (Cal. Health & Saf. Code, §101480, subd. (c).) 25 Defendants entered into the “remedial action agreement” with the County due to plaintiffs’ 26 statements and conduct. These are undisputed facts evidenced by the public records and have 27 remained unchanged. The abatement oversight process is an official duty of the County, which 28 raises a presumption that it has been regularly performed. (Cal. Evid. Code §664,.) The County’s 8 IOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED ANSWER; MEMORANDUM IF POINTS AND AUTHORITIES; DECLARATION OF GARRY L. MONTANARI IN SUPPORT THEREOF letter, which is a public record published on GeoTracker, certifies that abatement was completed. (Cal. Health & Saf. Code, §101480, subd. (e).) This public record is presumed to be true. (Godshalk v, City of San Diego (1971) 16 Cal.App.3d 459, 469.) This presumption also applies in the context of abating a nuisance. (Romero v. County of Santa Clara (Cal. App. 1st Dist. 1970) 3 Cal.App.3d 700, 705, citing Cal. Evid. Code §664.) Iv. CONCLUSION Based on the foregoing, the Court is requested to grant leave to the defendants to file its proposed second amended answer to allege as its thirteenth and fourteenth affirmative defenses. Additionally, the Court is requested that the proposed second amended answer submitted herewith 10 as Exhibit A be deemed the operative amended answer and that it be deemed filed and served as of 11 the date of the filing of this motion. 12 13 DATED: September 23, 2021 MICHAELIS, MONTANARI & JOHNSON 14 15 By GARR’ » MONTANARI 16 Attorne! for Defendants, STEPHEN MAGEE and SAC AERO 17 FLYING CLUB, INC. 18 19 20 21 22 23 24 25 26 27 28 9 NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED ANSWER; MEMORANDUM PE POINTS AND AUTHORITIES; DECLARATION OF GARRY L. MONTANARI IN SUPPORT THEREOF DECLARATION OF GARRY L. MONTANARI I, GARRY L. MONTANARL, declare: 1 Tam an attorney at law duly licensed to practice before all the Courts of the State of California. ] am a partner of the law firm of Michaelis, Montanari & Johnson, counsel of record for defendants STEPHEN MAGEE and SAC AERO CLUB FLYING, INC. (collectively referred to as “defendants”). I have personal knowledge of the matters set forth below and could testify thereto in any proceeding in this litigation. 2. Attached hereto marked Exhibit A and incorporated herein by reference is defendants’ second amended answer. 10 3 On or about December 20, 2016, the County of San Mateo (“County”) issued an. 11 opening site letter to plaintiffs - as property owners - indicating that they were potential 12 “responsible parties.” (Attached as Exhibit B.) Pursuant to California Health and Safety Code 13 section 101480, in order to initiate the abatement of aviation gasoline from a property, the County 14 requires designation of a “responsible party” along with a “remedial action agreement.” (Cal. Health 15 & Saf. Code, § 101480, subds. (a)-(c).) The Health and Safety Code strictly prohibits commencing 16 abatement activities without a “responsible party” first entering into a “remedial action agreement.” 17 (Cal, Health & Saf. Code, § 101480, subd. (c).) 18 4 Rather than being designated as the “responsible party,” plaintiffs requested 19 defendants do so in order to commence the abatement of the aviation fuel from their property. 20 Defendants agreed and consequently entered into a “remedial action agreement” with the County, 21 attached as Exhibit C. Defendants commenced and completed the abatement. (The “completed” 22 abatement status for plaintiffs’ property is also established on GeoTracker -- California’s database, 23 providing online access to environmental data.) The County issued a letter of November 12, 2020 24 to SAC AERO confirming the site was permanently remediated pursuant to Health and Safety Code 25 section 101480(e), attached as Exhibit D. Throughout the entire process plaintiffs did not oppose 26 and supported defendants’ abatement of the spilled fuel. In response to plaintiffs demands, 27 defendants have cither directly, or by settlement of the intervenor’s action of plaintiffs’ insurer, paid 28 about $250,000 to abate the spill. 10 |OTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED ANSWER; MEMORANDUM DF POINTS AND AUTHORITIES; DECLARATION OF GARRY L. MONTANARI IN SUPPORT THEREOF 5 Defendants have amended their answer to assert estoppel and double recovery against plaintiffs, based on plaintiffs’ conduct and statements pertaining to their request that defendants abate the spilled aviation gasoline from plaintiffs’ property. Defendants contend that plaintiffs are estopped and barred from claiming diminution in value damages, among other things, based on their statements and conduct related to the abatement. 6 The second amended answer is necessary and proper in furtherance of the interest of justice since defendants will be permanently deprived of their right to assert these defenses based on plaintiffs’ conduct and statements, if leave to amend is not granted. 7 Defendants raised these defenses in its supplemental briefing for the hearing on 190 defendants’ Motion in Limine No. 4 for excluding evidence of diminution in value of plaintiffs’ 11 property. (See defendants’ Request for Judicial Notice, Exhibit A.) ‘Thus, these defenses are no 12 surprise, Plaintiffs will suffer no prejudice since no trial date has been set and the parties are in the 13 process of drafting jury instructions. 14 8 Defendants’ proposed jury instructions include these defenses. 15 9 This case has not been set for a new trial date. 16 17 Ideclare under penalty of perjury under the laws of the State of California that the foregoing 18 is true and correct. 19 Executed this 23rd day of September, 2021 at Westlake Village, California. 20 21 GARRY; ONTAN. 22 23 24 NA17517\pld\p-mtn. leave. file.2nd.amend.answer.wpd 25 26 27 28 1 IOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED ANSWER; MEMORANDUM. DF POINTS AND AUTHORITIES; DECLARATION OF GARRY L. MONTANARI IN SUPPORT THEREOF EXHIBIT A GARRY L. MONTANAREL State Bar No. 89790 WESLEY 8S. 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 il BRYAN TRUJILLO and CINDY Case No.: 18CTV01901 TRUJILLO, Honorable Nancy Fineman; Dept. 4 12 13 Plaintiffs, DEFENDANTS STEPHEN MAGEE 14 VS. AND SAC AERO FLYING CLUB, INC,’S SECOND AMENDED ANSWER 15 TO UNVERIFIED COMPLAINT; STEPHEN MAGEE, SAC AERO FLYING DEMAND FOR JURY TRIAL 16 CLUB, INC. and DOES 1 - 50, 17 Defendants. Complaint filed: April 17, 2018 Trial Date: 18 19 ‘The Complaint in the above matter being unverified, these answering defendants STEPHEN 20 MAGEE and SAC AERO FLYING CLUB, INC., pursuant to Code of Civil Procedure section 21 431.30, generally deny each and every allegation of this Complaint and further deny that the 22 plaintiffs were injured or damaged in the sum and manner alleged or in any sum or manner, 23 Defendants state the following facts as separate affirmative defenses to plaintiffs’ Complaint 24 (“complaint”), as follows: 25 FIRST AFFIRMATIVE DEFE 26 (Contributory Negligence) 27 1 As a separate and affirmative defense, defendants allege that any and all events and 28 occurrences, injuries and damages, if any, alleged in the complaint, were proximately caused and -1- DEFENDANTS’ SECOND AMENDED ANSWER TO UNVERIFIED COMPLAINT; DEMAND FOR JURY TRIAL contributed to by the negligence and fault of the plaintiffs, in that plaintiffs did not exercise ordinary care in their own behalf at the times and places referred to, and therefore, plaintiffs are completely barred from recovery or, in the alternative, said act of plaintiffs reduce plaintiffs’ right to recover herein by that percentage of negligence attributable to plaintiffs. SECOND AFFIRMATIVE DEFENSE (Comparative Fault) 2 Asa separate and affirmative defense, defendants allege that ifit should be found that these answering defendants are in any manner legally responsible for the alleged injury or damages, if any, sustained by plaintiffs, which supposition is not admitted but merely stated for the purpose 10 of this defense, that any such injuries and damages found to have been incurred or suffered by ii plaintiffs in this action were proximately caused or contributed to by other defendants in this case, 12 whether served or not served, and/or by other persons or entities not parties to this action, and it is 13 necessary that the proportionate degree of negligence or fault of each said other persons or entities, 14 whether made parties to this action or not, be determined and proportioned, and that any judgment 15 rendered against these answering defendants be reduced not only by that percentage of negligence 16 attributable to plaintiffs, but also as to the total of that percentage of negligence and/or fault 17 attributable to said other persons or entities. 18 THIRD AFFIRMATIVE DEFENSE. 19 (Assumption of Risk) 20 3. As a separate and affirmative defense, defendants allege that at all times mentioned 21 in the complaint, plaintiffs had actual knowledge of all of the circumstances and particular dangers 22 and an appreciation of the risks involved and the magnitude thereof, proceeded to encounter aknown. 23 risk, and voluntarily assumed the risks of the accident, injury and damages alleged in the complaint, 24 barring or reducing plaintiffs’ claim for damages herein. 25 FOURTH AFFIRMATIVE DEFENSE 26 (Fails to State a Cause of Action) 27 4 Asa separate and affirmative defense, defendants allege that the complaint, and cach 28 cause of action therein, does not state facts sufficient to constitute a cause of action against these -2- DEFENDANTS’ SECOND AMENDED ANSWER TO UNVERIFIED COMPLAINT; DEMAND FOR JURY TRIAL. answering defendants. FIFTH AFFIRMATIVE DEFENSE (Proposition 51) 5 As a separate and affirmative defense, that the Fair Responsibility Act of 1986, commonly known as Proposition 51, be given full force and effect per California Civil Code, sections 1431, 1431.1 through 1431.5. Specifically, it is asserted by these answering defendants that in the event a judgment is rendered against it and in favor of plaintiffs, that it can be held responsible, ifat all, for only that proportion of “non-economic” damages for whichit is found liable by jury determination and that the rule of joint and several liability not apply under such 10 circumstances. 11 SIXTH AFFIRMATIVE DEFENSE 12 (Statute of Limitations) 13 6 As a separate and affirmative defense, defendants allege that the complaint and each 14 cause of action thereof is barred by the applicable statutes of limitations, 15 SEVENTH AFFIRMATIVE DEFENSE 16 (Laches) 17 7 As a separate and affirmative defense, defendants allege that plaintiffs’ claims are 18 barred by the doctrine of laches because plaintiffs inexcusably and unreasonably delayed in filing 1g and serving the complaint, to the prejudice of defendants. 20 EIGHTH AFFIRMATIVE DEFENSE 21 (Failure to Mitigate) 22 8 As a separate and affirmative defense, plaintiffs have failed to mitigate their 23 damages. 24 NINTH AFFIRMATIVE DEFENSE 25 (Necessity) 26 9 As a separate and affirmative defense, defendants allege that plaintiffs’ claims are 27 barred by the doctrine of necessity in that any act of the defendants was to prevent a threatened injury 28 from some force of nature, or some other independent cause not connected with the plaintiffs, so as 3- DEFENDANTS’ SECOND AMENDED ANSWER TO UNVERIFIED COMPLAINT; DEMAND FOR JURY TRIAL to protect members of the public. TENTH AFFIRMATIVE DEFENSE (Imminent Peril) 10. As a separate and affirmative defense, defendants allege that plaintiffs’ claims are barred by the doctrine of imminent peril or sudden emergency. ELEVENTH AFFIRMATIVE DEFENSE (Dissolved Corporation) 1, Asa separate and affirmative defense, defendant SAC AERO FLYING CLUB, INC. is a dissolved corporation and is protected from judgment as set forth in the Corporations Code. 10 TWELFTH AFFIRMATIVE DEFENSE 11 (Setoff/Credit) 12 12. As a separate and affirmative defense, defendants contend a recovery, if any, by 13 plaintiffs be subject to setoff and/or credit. Defendants are entitled to have plaintiffs’ recovery, if 14 any, reduced by the amount defendants have paid to repair/restore plaintiffs’ residence including but 15 not limited to monitoring and oversight as well as the entire amount of the claim payments made by 16 plaintiffs” insurers and sought in a complaint-in-intervention which has been settled by defendants. 17 THIRTEENTH AFFIRMATIVE DEFENSE 18 (Double Recovery) 19 13. As a separate and affirmative defense, plaintiffs are prohibited from seeking double 20 or duplicative recovery. 21 FOURTEENTH AFFIRMATIVE DEFENSE 22 (Estoppel) 23 14. As aseparate and affirmative defense, defendants contend that plaintiffs’ complaint, 24 each cause of action thereof and/or remedies sought are barred by the doctrine of estoppel. 25 JURY DEMAND 26 Defendants demand a trial jury. 27 28 WHEREFORE, defendants pray for judgment as follows: 4. DEFENDANTS’ SECOND AMENDED ANSWER TO UNVERIFIED COMPLAINT; DEMAND FOR JURY TRIAL 1 1 That judgment be entered in favor of defendants and that the complaint be dismissed; 2 2. For costs of suit incurred herein; and, 3 3 For such other and further relief as the Court may deem just and proper. 4 5 || DATED: September 23, 2021 MICHAELIS, MONTANARI & JOHNSON 6 7 B GARRY L, ANARI 8 Attorneys for Defendants STEPHEN MAGEE and SAC AERO FLYING CLUB, INC. 9 10 |] NAI751Apld\p-answer.amended.2.wpd a1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5- DEFENDANTS’ SECOND AMENDED ANSWER TO UNVERIFIED COMPLAINT; DEMAND FOR JURY TRIAL. EXHIBIT B COUNTYor SAN MATEO Heather Forshey, MS, REHS tC HEALTH SYSTEM Enviranmental Health r wou smchealth org www. facebook .com/smchealth December 20, 2016 SMCo Case #019048 APN 037-226-100 Sent via Certified Mail Bryan and Cindy Trujillo (cindytrujillo@yahoo.com) 1065 Park Way Moss Beach, CA 94038 SUBJECT: 1065 PARK WAY, MOSS BEACH, CALIFORNIA Dear Mr. and Mrs. Trujillo: IRC Environmental Consulting LLC report was submitted to San Mateo County Health System Comprehensive Unified Program Agency by yourself. The results indicate the soil at the above referenced property has concentrations of petroleum hydrocarbons and related compounds above Environmental Screening Levels (ESLs) established by the Regional Water Quality Control Board (RWQCB). Having concentrations of contaminants above ESLs does not necessarily indicate an unacceptable risk to human health or the environment; however, it does indicate additional investigation is warranted. No other information such as an incident report of the plane crash has been forwarded to San Mateo County Health System to date. GPP staff is identifying Mr. and Mrs. Trujillo as a potential responsible party for soil contamination at the above referenced site based on the concentration of petroleum hydrocarbons and related compounds detected in the soil samples collected at the site that you are the property owner at the time the contamination was discovered. You may become a responsible party under Sections 101480 and 25260 of the California Health and Safety Code. Should further information become available which may allow other parties being identified as additional potential responsible parties, then please submit that information to GPP staff at any time. Should you or any of the other potential responsible parties chose not to voluntarily agree to perform the duties of a responsible party, then GPP will transfer this case to the Department of Toxic Substances Control. Because the source of the contamination does not appear to be an identifiable underground storage tank, this site will be opened under San Mateo County’s Voluntary Cleanup Program. The RWQCB and the Department of Toxic Substances Control (DTSC) will be notified and given the opportunity to take the lead oversight responsibilities. You can also request either the RWQCB or DTSC to be the lead agency through the Site Designation Process or the Brownfields Memorandum of Agreement process. Please contact Tom Lanphar of the DTSC at (510) 540-3776 regarding the Site Designation process or Randy Lee of the RWQCB at (510) 622-2375 regarding the Brownfields Memorandum of Agreement process should you desire to have another agency be the lead for this site. Voluntary cleanup sites require reimbursement to the lead government agency for all of the oversight time. Currently, GPP staff is billing at a rate of $182 per hour. Shortly, a Remedial Action Agreement letter will be sent to you requesting a signature acknowledging among other things the reimbursement responsibility. GPP staff requests a meeting with you to clarify your roles and responsibilities as a responsible party and GPP staff's role as the oversight agency. Please respond back to this letter by January 20, 2017 to provide accurate contact information and discuss the best date and time to have a meeting. I appreciate your cooperation. If you have any questions, please call me at (650) 399- 6911. Sincerely, (Aub. See, Charles Ice, P.G. Hazardous Materials Specialist Groundwater Protection Program cc: Ben Berman, IRC Environmental, ircenvironmental@gmail.com Jolanta Uchman, RWQCB, Jolanta. Uchman@waterboards.ca.go Julie Pettijohn, DTSC, Julie.Pettijohn@dtsc.ca.gov EXHIBIT C COUNTY or SAN MATEO 1 Ft shiey, 1S, RENS HEALTH SYSTEM Envi neal Th tit fchealth.org. REMEDIAL ACTION AGREEMENT facebook.comsmchealth February 10, 2017 CERTIFIED MAIL GPP Site 019048 Sae Aero Flying Club, Ine, APN 037-226-100 c/o: Donald S. Honigman (dsh@rarmlaw.com) 315 Montgomery Street, Suite 800 San Francisco, CA 94014 Dear Sac Aero Flying Club Inc.: SUBJECT: VOLUNTARY OVERSIGHT OF REMEDIAL ACTION INVESTIGATION, TRUJILLO RESIDENCE, 1065 PARK WAY, MOSS BEACH, CA Based on the December 11, 2016 IRC Environmental! Consulting LLC Near Surface Shallow Soil Sampling report for the subject site, there are allegations that a discharge of waste’, has occurred at the subject site, which requires further characterization and potential remediation as a significant potential threat to human health or the environment. San Mateo County Environmental Health (Environmental Health) has assumed the role as the regulatory oversight agency for characterization and potential remediation of the released waste as allowed by Section 101480 of the California Health and Safet Code. Sac Aero Flying Club, Inc. is choosing to meet the legal definition of Responsible Party” for this alleged release of waste at this time in order to proceed with oversight by and compensation for oversight by Environmental Health . By entering this agreement, the responsible party is not admitting to any liability associated with this alleged release of waste. By entering into this Remedial Action Agreement, Sac Aero Flying Club, Inc. agrees to the following conditions: e All subsequent directives and written agreements from Environmental Health regarding testing, monitoring, and analysis to determine the nature, extent, and risk of contamination, potential remedial action lo be taken, and cleanup goals (including deadlines for required submittals), collectively referred to as Corrective Action, will be considered a part of this Remedial Action Agreement, All Corrective Action activities will follow San Mateo County Groundwater Protection Program Guidelines, Policies and Procedures, available at www.smh Ith.or; 4 oF Say tA 1 Waste as defined in Health and Safety Code Section 101075, and Water Code Section 13050, 2 Responsible Party as defined in Sections 25260(h) (2) of the Health and Safety Code, SupoRe Sac Aero Flying Club, Inc. Date Page 2 Regardless of the level of oversight from Environmental Health, the Responsible Party is responsible for the timely reporting, investigation, and any mutually agreed cleanup of soil and ground water pollution such that the beneficial uses of waters of the State are protected, and in compliance with appropriate laws, regulations and policies, Compliance will also take into account any new laws or regulations that may be applicable during the term of this agreement. If, at any time, the Responsible Party is not in compliance with directives from Environmental Health that constitute a portion of this Remedial Action Agreement, Environmental Health can, with adequate notice, withdraw from the agreement. The Responsible Party can , with adequate notice, withdraw from the agreement at any time. If the agreement is terminated prior to adequate completion of the Remedial Action Agreement directives, the case will, at the discretion of San Mateo County, either be transferred to the Corrective Action Unified Program Agency program or referred to the Department of Toxic Substance Control (DTSC) or Regional Water Quality Control Board (RWQCB) for issuance of a State Corrective Action Order, Cleanup and Abatement Order, or other order or enforceable agreement, as appropriate, for further remedial action directives. If, upon further characterization, Environmental Health determines that the alleged release of waste that is the subject of this Remedial Action Agreement is sufficiently complex, may present such a significant potential hazard te human health or the environment to warrant it, or may not be in the best interest of the County to continue as lead agency, the case may be referred to DISC or RWQCB for further action, Pursuant to Section 25262 of the Health and Safety Code, a Responsible Party may request the designation of an administering or lead agency other than Environmental Heaith when required to conduct corrective action. Please contact Environmental Health for further information about the State Site Designation Committee process. This case is subject to California regulations for e