No Value: BRYAN TRUJILLO, et al vs. STEPHEN MAGEE, et al

On April 17, 2018 a No Value 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.

Preview
1 GARRY L. MONTANARI, State Bar No. 89790
WESLEY S. WENIG, State Bar No. 162351
2 JOHN H. MOON, State Bar No. 253811
MICHAELIS, MONTANARI & JOHNSON, P.C.
3 4333 Park Terrace Dr. #100
Westlake Village, CA 91361
4 Telephone No.: (818) 865-0444

5 Attorneys for Defendants, STEPHEN MAGEE
and SAC AERO FLYING CLUB, INC.
6

8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SAN MATEO
10

11
BRYAN TRUJILLO and CINDY ) Case No.: 18CIV01901
12
TRUJILLO, ) Honorable Nancy Fineman; Dept. 4
) DEFENDANTS' SUPPLEMENTAL
13 Plaintiffs, ) BRIEF RE ELECTION AND BURDEN
) OF PROOF ISSUES; MEMORANDUM
14 vs. ) OF POINTS AND AUTHORITIES;
) DECLARATION OF GARRY L.
15 ) MONTANARI
STEPHEN MAGEE, SAC AERO FLYING ) Date: January 31, 2022
16 CLUB, INC. and DOES I - 50, ) Time: 2:00 p.m.
) Dept.: 4
17 Defendants. ) Complaint filed: April 17, 2018
) Trial Date: TBD
18
19 TO THE HONORABLE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD:

20 Defendants STEPHEN MAGEE and SAC AERO FLYING CLUB, INC. (collectively,

21 "defendants") hereby submit their supplemental brief for the following three (3) issues:

22 (1) whether plaintiffs made a pre-trial election to treat the nuisance as continuing thereby

23 foreclosing plaintiffs from now electing to treat the nuisance as permanent;

24 (2) if it is determined that plaintiffs have not made a pre-trial election to treat the nuisance

25 as continuing, may plaintiffs make a pre-trial election between permanent and continuing nuisance

26 under a ''reasonable" standard versus a "doubtful" standard to be determined by the trier of fact; and

27 (3) if plaintiffs are permitted to make a pre-trial election of permanent nuisance, do plaintiffs
28 have the burden to prove that the nuisance cannot be abated.
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1 TABLE OF CONTENTS

2 I. PLAINTIFFS' PRE-TRIAL ELECTION OF A CONTINUING NUISANCE
FORECLOSES PLAINTIFFS FROM NOW ELECTING TO TREAT
3 THE NUISANCE AS PERMANENT ...................................... 5

4 A. Pertinent Factual Background ........................................ 5

5 1. Knowledgeable election: property appraisals and advised by counsel ......... 5
2. Unequivocal election: plaintiffs' admissions and actions of seeking abatement .. 7
6 3. Completed abatement ............................................... 7

7 B. Plaintiffs Should Be Estopped From Now Electing A Permanent Nuisance Because
Of Their Pre-Trial Election .......................................... 8
8
1. Plaintiffs' election was knowledgeable ................................. 9
9 2. Plaintiffs' election was unequivocal .................................. 11
3. Defendants' pecuniary burden is substantial evidence of plaintiffs' advantage
10 over defendants; plaintiffs occasioning defendants damage; and prejudice
to defendants .................................................... 12
11 4. The published data is irrefutable evidence of a completed abatement ......... 13

12 a. The air pollution was attributable to outdoor air ........................ 15
b. There are no detectable contamination levels ........................... 15
13 c. There is no unacceptable risks to human health or the environment for current
or future use. . ................................................... 16
14 d. The limited spill does not rise to the level of a permanent nuisance .......... 18

15 II. THE DOUBTFUL STANDARD HAS LONG BEEN APPLIED IN DETERMINING
ELECTION MATTERS ................................................ 19
16

17 A. Well Established Case Law Prescribes Applying The Doubtful Standard ..... 19

18 B. Plaintiffs Were Required And Failed To Present Supporting Evidence
Of Doubt ....................................................... 19
19
III. AS PART OF THEIR PRIMA FACIE CASE. PLAINTIFFS ARE REQUIRED TO
20 PROVE THE NUISANCE CANNOT BE ABATED ......................... 21

21 A. Plaintiffs Have The Burden Of Proving The Nuisance Is Not Abatable ....... 21

22 B. Defendants' Fundamental Right In Presenting Evidence .................. 22

23 IV. CONCLUSION ....................................................... 22

28
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1 TABLE OF AUTHORJTIES
Case Page
2 Arnaudo Brothers, L.P. v. Agricultural Labor Relations Bd (2018) 22 Cal.App.5th 1213 .... 11

3 Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) 39 Cal.3d 862, 872 ..... 18, 19
4 Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th
1160, 1217 ............................................................ 19, 20, 21
5
Capogeannis v. Superior Court (1993) 12 Cal.App.4th 668, 683 ........... 14, 17, 19, 21, 22,
6
Chevron US.A. Inc. v. Superior Court (1994) 44 Cal.App.4th 1009, 1014 ................ 19
7
Fass berg Construction Co. v. Housing Authority of City ofLos Angeles (2007)
8 152 Cal.App.4th 720, 758-759 ................................................ 8, 12
9 Gehr v. Baker Hughes Oil Filed Operations, Inc. (2008) 165 Cal.App.4th 660, 663 ......... 10

10 Godshalkv. City ofSan Diego (1971) 16 Cal.App.3d 459, 469 ......................... 18
11 Kornoffv. Kingsburg Cotton Oil Co. (1955) 45 Cal.2d 265, 271 ........................ 19
12 Mangini v. Aerojet-General Corp. (1996) 12 Cal.4th 1087, 1097 ........... 10, 14, 18, 19, 21
13 Oakland Raiders v. Oakland-Alameda County Coliseum, Inc. (2006) 144 Cal.App.4th 1175 .. 12

14 Romero v. County ofSanta Clara (1970) 3 Cal.App.3d 700, 705 ..................... 18, 19
15 Roam v. Koop (1974) 41 Cal.App.3d 1035 ....................................... 9, 12

16 Santa Fe P'ship v. Arco Prods. Co. (1996) 46 Cal.App.4th 967, 974 ..................... 19
17 Slater v. Shell Oil Co. (1943) 58 Cal.App.2d 864, 871 ................................ 12
18 Spar v. Pac. Bell (1991) 235 Cal.App.3d 1480 ................................... 20, 21
19 Spaulding v. Cameron (1952) 38 Cal.2d 265, 269 ............................. 12, 13, 19

2O Squaw Valley Land & Livestock Co. v. Avery (1956) 142 Cal.App.2d 820, 822 ............. 11

21 Steiner v. Rowley (1950) 35 Cal.2d 713 ............................................ 9
22 Wilshire Westwood Associates v. Atlantic Richfield Co. (1993) 20 Cal.App.4th 732,
744-745 .............................................................. 14, 18, 19
23

24
MISCELLANEOUS
25 Health & Saf. Code§ 101480(e) ............................................... 6, 14

26 Health and Safety Code section 101480 ....................................... 5, 7, 13
27 Health&Saf.Code§l01480(c) .................................................. 6
28 Health & Saf. Code,§ 101480 (a)(5) ............................................... 6
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1 13 Witkin, Sum. Of Cal. Law (11th Ed. 2017) Equity, §215(4) .......................... 8

2 3 Witkin, Cal. Evid. 5th Presentation § 3 (2020) ..................................... 22

3 3 Witkin, Cal. Proc. (6th ed. 2021) Actions,§ 191(5) ................................. 12

4 3 Witkin, Cal. Proc. (6th ed. 2021) Actions, §196 .................................... 12

5 CACI No. 3903F ............................................................. 10
6

28
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1 MEMORANDUM OF POINTS AND AUTHORITIES

2 Defendants contend by seeking pre-trial remediation and monitoring, plaintiffs BRYAN

3 TRUJILLO and CINDY TRUJILLO (collectively, "plaintiffs") have elected to treat the nuisance as

4 continuing and are estopped from now claiming it is permanent. Defendants incorporate by

5 reference the facts, contentions, and supporting authority cited in their prior supplemental brief.

6 (See, Declaration of Garry L. Montanari ("Deel."), Exhibit A, pertinent portions of defendants'

7 Supplemental Brief re Motion in Limine No. 4, pp. 17-19.) Defendants further contend the

8 "doubtful" standard is appropriate for election matters where no authority approves applying a

9 "reasonable" standard. Lastly, for plaintiffs' prima facie case, plaintiffs have the burden of proving

10 the nuisance cannot be abated and, therefore, defendants should be permitted to introduce evidence

11 of abatement.

12 I. PLAINTIFFS' PRE-TRIAL ELECTION OF A CONTINUING NUISANCE

13 FORECLOSES PLAINTIFFS FROM NOW ELECTING TO TREAT THE

14 NUISANCE AS PERMANENT

15 It would be inequitable to allow plaintiffs to obtain the benefit ofhaving their property abated

16 and then later abandon a continuing nuisance claim for a more remunerative permanent nuisance

17 recovery. Plaintiffs made a pre-trial election of a continuing nuisance by seeking abatement and

18 abatement was completed. The data shows either no detectable levels of contan1ination on plaintiffs'

19 property or the levels are below the most conservative screening levels and attenuating. Abatement

20 completion was certified by the local oversight agency, citing California Health and Safety Code

21 section 101480.

22 A. Pertinent Factual Background

23 1. Knowledgeable election: property appraisals and advised by com1Sel

24 Before commencing their action against defendants, plaintiffs had their property appraised

25 by a certified residential appraiser, David D. Dietrich ("Dietrich"). Dietrich created two (2) appraisal

26 reports for plaintiffs' property. (Deel., Exhibit B - Deposition of Bryan Trujillo ("Ex. B"), 114:7-18,

27 116:6-19.) The first appraisal prepared on March 16, 2017 was a valuation "as of' November 17,

28 2016 (the day before the accident) while the second prepared on March 30, 2017 was a valuation "as
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1 of' November 18, 2016 (the date of the accident). (Ibid.; Deel., Exs. G, H.) The appraisal "as of'

2 November 18, 2016 accounted for stigma and the released aviation fuel. These appraisals were to

3 establish diminution in value.

4 Notwithstanding having appraisals performed, plaintiffs subsequently elected to abate their

5 property by retaining two (2) attorneys. Plaintiffs submitted a claim with plaintiffs' insurer to

6 commence abatement "as soon as possible" and plaintiffs were anxious to do so in order to return

7 to their residence. (Deel., Exhibit C- Deposition ofCindyTrnjillo ("Ex. C"), 42:14-17, 45:4-5.)

8 In prosecuting their abatement claim with their insurer, plaintiffs hired attorney Ron Cook. (Deel.,

9 Ex. B, 60:24-61 :2, 61 :19-23 .) Plaintiffs subsequently hired attorney Tamara Gabel to coordinate the

1O abatement with the County of San Mateo ("County'') - the local oversight agency. (Deel., Ex. C,

11 62:16-18, 62:23-25.) Notably, Ms. Gabel is a member of the California Lawyers Association
0

12 Environmental Law group. (Request for Judicial Notice ("RJN"), Exhibit 1.)

13 Plaintiffs also communicated with the County in pursuing abatement. Before the County can

14 commence oversight of abating a property numerous procedural steps must be satisfied. A

15 responsiblepartymustbedesignated. (Cal. Health & Saf. Code,§ 101480 (a)(5).) The responsible

16 party must then enter into a remedial action agreement where the County's oversight is conducted

17 "only pursuant to a remedial action agreement entered into by a local officer and a responsible

18 party." (Cal. Health & Saf. Code§ 101480(c).) The remedial action agreement ("agreement")

19 identifies the abatement goals. (Id.) If the goals are met, the abatement constitutes "a permanent

20 remedy" and a case closure letter ("certification letter") may be issued by the County. (Cal. Health

21 & Saf. Code § 101480(e). ) The California Health and Safety Code provides that this letter serves

22 as a certification of abatement. (Ibid.)

23 Although plaintiffs were requested by the County to be designated as the "responsible party,"

24 plaintiffs refused to do so. (Deel., Ex. C, 60: 13-16, 22-24.) Rather, plaintiffs requested defendants

25 to be the "responsible party." At plaintiffs' request, defendants were designated the "responsible

26 party," which necessitated defendants entering into the agreement with County. (RJN, Ex. 2.) The

27 agreement imposed a number of burdens on defendants, including but not limited to a pecuniary

28 burden. From the outset of abatement, the agreement contained a fee provision, permitting the
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1 County to invoice defendants to recover oversight costs which already accrued. (Id. at p. 3.) The

2 agreement also outlined various abatement requirements, such as compliance with County

3 Groundwater Protection Program ("GPP") guidelines. (Id. at p. 1.)

4 2. Unequivocal election: plaintiffs' admissions and actions of seeking abatement

5 Plaintiffs' depositions were replete with admissions of unequivocally seeking abatement.

6 (Deel. Ex. C, 52:6-9 (contemplation of needing someone to abate the soil); 54:8-13 (willingness to

7 pay out-of-pocket surcharge to commence abatement); 62: 16-18, 62:23-25 (hiring an environmental

8 attorney to designate a responsible party to commence abatement); 66:8-12, 66:21-23 (having

9 approximately 80 tons of soil removed and having testing, remediating, and monitoring performed);

10 and 75:1-9 (attempting to test and remediate for a long time). (See also, Deel., Ex. B, 64:4-9

11 (plaintiffs' urgency to begin abatement); 77:8-10 (plaintiffs "scrambling" to start abatement).)

12 Defendants (at plaintiffs' request) were designated the "responsible party" in order for the

13 County to commence abatement oversight of plaintiffs' property and defendants entered into the

14 agreement wherein defendants were invoiced by the County forthe abatement. Defendants have also

15 made payments related to the abatement of plaintiffs' property either directly or by virtue of the

16 settlement of the subrogation action with plaintiffs' insurer and plaintiffs had no out-of-pocket costs

17 (Deel., Ex. B, 134:7-10). Plaintiffs did not object to defendants abating plaintiffs' property and

18 plaintiffs did not request defendants or the County to discontinue any abatement efforts.

19 3. Completed abatement

20 Plaintiffs were represented by counsel throughout the entire abatement process and aware of

21 the legal consequences arising from their decisions, such as requesting defendants be the responsible

22 party, defendants entering into the agreement with County, and completed abatement. (RJN, Exs.

23 4, 6.) The County requested further testing after reviewing the 2017 data. (RJN, Ex. 7.) Defendants

24 subsequently conducted further testing and the data revealed a contamination decrease of 88 to 99

25 percent from July 2017 to June 2018. (RJN, Ex. 8, p. 5-1.) There is no evidence contradicting the

26 2018 data, which substantiates contamination removal and attenuation. (Deel., Ex. D, 72:3-7, Ex.

27 E; RJN, Ex. 6.) The County relied on this data in issuing the certification letter for plaintiffs'

28 property, pursuant to California Health and Safety Code section 101480. (Deel., Ex F.)
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1 Prior to the County's issuance of the certification letter and accompanying closure

2 memorandum ("closure memo") - which contains data supporting the County's rationale for

3 abatement certification and site closure - plaintiffs had an opportunity to object to the site closure

4 but did not do so, while being represented by counsel. (Deel., Ex. E.) Plaintiffs elected to destroy

5 all monitoring wells on their property and permitted defendants access to their property to do so.
6 (Deel., Ex. E; RJN, Ex. 6.)

7 After abatement was completed, the County published the closure memo providing the

8 supporting data and rationale for determining abatement completion. (RJN, Ex. 5.) The data

9 revealed no detectable levels of contamination or the (attenuating) levels were below screening

10 levels. (Id.) The County's GPP website provides that the County works with various other agencies,

11 such as the Environmental Agency Protection and Water Quality Control Boards, ensuring abatement
12 complies with all State and local laws. (RJN, Ex. 3.)

13 The County categorized plaintiffs' property as "low-risk" (RJN, Ex. 5 - Closure Rationale)

14 and concluded "a significant release of contamination has not occurred and the shallow waters have

15 not been significantly impacted." (RJN, Ex. 5 - Recommendations (emphasis added).)

16 Accordingly, comprehensive analyzed data establishes that abatement was completed, and
17 the County certified abatement by issuing the closure letter.
18 B. Plaintiffs Should Be Estopped From Now Electing A Permanent Nuisance Because Of
19 Their Pre-Trial Election

20 Plaintiffs' pre-trial acts demonstrate that plaintiffs made a knowledgeable and unequivocal

21 election of a continuing nuisance, whereby plaintiffs gained an advantage over defendants and

22 occasioned defendants damage. The modem view is to treat election of remedies as a question of

23 estoppel. (13 Witkin, Sum. Of Cal. Law (11th Ed. 2017) Equity, §215(4).) Questions of estoppel

24 are decided by the court. (See generally 13 Witkin, Summary of Cal. Law (11th ed. 2017) Equity,

25 § 213(3)-(4) (trial courts decide and resolve the equitable estoppel issue where a party has no right

26 to a jury determination of whether equitable estoppel applies); see also, Fassberg Construction Co.

27 v. Housing Authority ofCity a/Los Angeles (2007) 152 Cal.App.4th 720, 758-759 ("Fassberg") (the

28 court decides the equitable estoppel issue in the first instance before trial).)
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1 In Steiner v. Rowley (1950) 35 Cal.2d 713, the California Supreme Court held that a positive

2 act would constitute an election of remedies and serve as an estoppel, precluding a plaintiff from
3 pursuing the alternative remedy. (Id. at 720.) The appellate court in Roam v. Koop (1974) 41
4 Cal.App.3d 1035 ("Roam") explained that the doctrine of election of remedies was based on the
5 principle of estoppel:

6 "[b ]roadly speaking, election of remedies is the act of choosing

7 between two or more concurrent but inconsistent remedies based
8 upon the same state of facts. Ordinarily a plaintiff need not elect, and
9 cannot be compelled to elect, between inconsistent remedies during

10 the course of trial prior to judgment. However, if a plaintiff has
11 unequivocally and knowledgeably elected to proceed on one of the

12 remedies he is pursuing, he may be barred recourse to the other. It is

13 to such a situation that the doctrine of election ofremedies pertains.

14 The doctrine of election of remedies acts as a bar precluding a
15 plaintiff from seeking an inconsistent remedy as the result of his
16 previous conduct or election. In California the doctrine is theorized

17 on the principle of estoppel. 'Whenever a party entitled to enforce
18 two remedies either institutes an action upon one of such remedies

19 or performs any act in the pursuit of such remedy, whereby he has
20 gained any advantage over the other party, or he has occasioned the

21 other party any damage, he will be held to have made an election of

22 such remedy, and will not be entitled to pursue any other remedy for
23 the enforcement of his right."'

24 (Id. at 1039-1040 (internal citations omitted, emphasis added).)
25 I. Plaintiffs' election was knowledgeable

26 Plaintiffs' lmowledgeable election is evidenced by plaintiffs obtaining appraisals for their
27 property and by retaining counsel in pursuing abatement. Plaintiffs appraised their property for

28 purpose of establishing diminution in value. A diminution in value claim is only permitted for
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1 permanent nuisances. (Gehr v. Baker Hughes Oil Filed Operations, Inc. (2008) 165 Cal.App.4th

2 660, 663 ("Gehr").) In order to determine the alleged diminution in value, a plaintiff must determine

3 the fair market value of plaintiffs' property before the hann occurred and then subtract the fair

4 market value of the property immediately after the harm occurred. (CACI No. 3903F - Damage to

5 Real Property.) Plaintiffs' pre-trial acts are consistent with obtaining knowledge to make this
6 detennination.

7 Plaintiffs hired Dietrich - a certified residential appraiser - who evaluated plaintiffs'

8 property, resulting in two (2) appraisals: (!)an appraisal "as of' the date before accident; and (2) an

9 appraisal "as of' the date after the accident. (Deel. Exs. G, H.) These appraisals are substantial

10 evidence of plaintiffs' knowledge of the permanent nuisance claim since they show a purported fair

11 market determination. The after-the-accident appraisal also includes factors that are exclusive to a

12 permanent nuisance claim, such as diminished value and stigma. As such, plaintiffs were

13 knowledgeable about a permanent nuisance claim. In light of this knowledge, however, plaintiffs

14 elected to pursue a continuing nuisance claim by abating their property, which makes their election

15 knowledgeable. (Mangini v. Aerojet-General Corp. (1996) 12 Cal.4th 1087, 1097 ("Mangini") (in

16 contamination cases, the crucial test for determining the nuisance's character is whether it can
17 abated).)

18 Plaintiffs also sought out representation in pursuing abatement, which is substantial evidence

19 of their knowledgeable election. Plaintiffs retained two (2) attorneys in pursuing abatement: (1) Mr.

2O Cook, who represented plaintiffs in their claim against their insurer in order to commence abatement;

21 and (2) Ms. Gabel, who represented plaintiffs in the County's oversight ofthe abatement. Ms. Gabel

22 specializes in environmental law, was involved in the commencement of the County's abatement

23 oversight, and advised plaintiffs throughout the abatement process until abatement completion where

24 plaintiffs elected to have all monitoring wells on their property destroyed. (RJN, Ex. 4, 6.) While

25 being represented by Ms. Gabel, plaintiffs also did not to object to site closure when they had the

26 opportunity to do so. (Deel., Ex. E.) Plaintiffs' designated expert was also hired by Ms. Gabel.

27 (Deel., Exhibit D - Deposition of John De Witt ("Ex. D"), 10:11-14.) By virtue of this

28 representation, plaintiffs made a knowledgeable election of a continuing nuisance.
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1 Plaintiffs' interaction with the County throughout the abatement process further establishes

2 a knowledgeable election. Although plaintiffs emphasized they wanted to commence abatement "as

3 soon as possible" plaintiffs categorically rejected the County's request of being designated the

4 "responsible party." Rather than take on this role, plaintiffs instead requested defendants be

5 designated the "responsible party." (Deel., Ex. C, 60: 13-16, 22-24.) Plaintiffs' actions with the

6 County and calculated rejection and resulting delay in commencing abatement serves as additional

7 evidence of a knowledgeable election.

8 2. Plaintiffs' election was uneguivocal

9 Plaintiffs' actions substantiate an unequivocal election of a continuing nuisance. From

10 commencement to completion, plaintiffs raised no objections whatsoever to defendants abating their

11 property or the County overseeing said abatement. A party is deemed to have consented to the

12 continued trespass or nuisance by suing for prospective damages. (Squaw Valley Land & Livestock

13 Co. v. Avery (1956) 142 Cal.App.2d 820, 822.) There is no evidence that plaintiffs consented to the

14 nuisance. To the contrary, plaintiffs' actions in pursuing abatement show plaintiffs did not consent

15 to the nuisance and acted contrary to pursuing prospective damages.

16 Plaintiffs' numerous admissions is irrefutable evidence of an unequivocally election.

17 Plaintiffs conceded they wanted to abate their property as soon as possible. (Deel., Ex. C, 42: 14-17.)

18 Plaintiffs admitted there was an urgency to commence abatement(Decl., Ex. B, 64:4-9) and plaintiffs

19 were scrambling to do so (Id. at 77:8-10). Plaintiffs contemplated theabatement (Deel., Ex. C, 52:6-

20 9) and expressed a willingness to pay an out-of-pocket expenses to commence abatement (Id. at

21 54:8-13); plaintiffs hired an environmental law attorney to designate a responsible party, among

22 other things (Id. at 62:16-18, 62:23-25); plaintiffs proceeded with abatement by having

23 approximately 80 tons of soil removed and having testing, remediating, and monitoring performed

24 (Id. at 66:8-12, 66:21-23); and plaintiffs conceded they were attempting to test and remediate for an
25 extended period of time (Id. at 75: 1-9). These admissions are consistent with pursuing a continuing

26 nuisance claim to the exclusion of a pennanent nuisance.

27 An action is unequivocal when there is no doubt as to a particular course of action. (Arnaudo

28 Brothers, L.P. v. Agricultural Labor Relations Bd. (2018) 22 Cal.App.5th 1213, 1231.) There was
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1 no doubt here as to plaintiffs' election of a continuing nuisance. Guided by environmental attorneys
2 and experts and armed with the diminution in value appraisals, plaintiffs demanded remediation.

3 At no time did plaintiffs request defendants or the County to stop the testing, monitoring, and/or
4 abatement. (Deel., Ex. A, 19:9-13.) While represented by counsel, plaintiffs did not object to the
5 site closure when they had the noticed opportunity to do so. (Deel., Ex. E.) Plaintiffs also elected

6 to destroy all monitoring wells and allowed defendants onto their property to do so. (RJN, Ex. 6.)
7 Assuming arguendo that plaintiffs were compelled by the County to begin abatement (which

8 they were not), plaintiffs nevertheless made an unequivocal election of a continuing nuisance by
9 rejecting the County's request ofbeingdesignated the ''responsible party." (Deel., Ex. C, 60: 13-16,
1O 22-24.) Plaintiffs' request to defendants oftaking on that role entailed a significant pecuniary burden

11 on defendants and plaintiffs' acts in avoiding this serve as an unequivocal implied waiver through
12 conduct, among other things. (Oakland Raiders v. Oakland-Alameda County Coliseum, Inc. (2006)
13 144 Cal.App.4th 1175, 1189 (a waiver is a knowledgeable relinquishment of a known right).)
14 Plaintiffs relinquished any rights in asserting any claims contrary to abatement or, in other words,

15 a continuing nuisance by rejecting the County's request. (Id. at 1194 (underlying principle of
16 estoppel and implied waiver are the same where party's conduct raises presumption of waiver).)

17 3. Defendants' pecuniary burden is substantial evidence of plaintiffs' advantage over

18 defendants; plaintiffs occasioning defendants damage; and prejudice to defendants
19 Defendants' abatement-related payments are wholly attributable to plaintiffs' actions and

20 serve as substantial evidence of plaintiffs gaining an advantage over defendants and plaintiffs
21 occasioning defendants damage. (Roam, supra, 41 Cal.App.3d at 1039-1040.) The election of

22 remedies doctrine is based on equitable estoppel, holding that a plaintiff who elects one (1) of two
23 (2) inconsistent remedies and gains an advantage over a defendant is precluded from pursuing the

24 alternative remedy. (Fassberg, supra, 152 Cal.App.4th at 759.) Ifthe change prejudices defendant,

25 plaintiff will be deemed as having made an election and will be estopped. (3 Witkin, Cal. Proc. (6th

26 ed. 2021) Actions, §196.) A plaintiff is required to make an election of rights as to a continuing

27 trespass/nuisance. (3 Witkin, Cal. Proc. (6th ed. 2021) Actions, § 191 (5) "Required Election of
28 Rights," citing Slater v. Shell Oil Co. (1943) 58 Cal.App.2d 864, 871; and (Spaulding v. Cameron
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1 (1952) 38 Cal.2d 265, 269 ("Spaulding") (plaintiff cannot have permanent nuisance damages and

2 removal of a continuing nuisance).)

3 Plaintiffs concede that they cannot seek damages for both continuing and permanent

4 nuisance, which is evidence of inconsistent remedies. This necessarily means that by making a pre-

5 trial election of seeking abatement is to the exclusion of subsequently asserting a permanent nuisance

6 claim. Spaulding identified the issue stemming from this inconsistency where a "[p ]laintiff would

7 obtain a double recovery if she could recover for the depreciation in value and also have the cause

8 of that depreciation removed." (Spaulding, supra, 38 Cal.2d at 269.)

9 Plaintiffs gained an advantage over defendants and occasioned defendants damage since

10 plaintiffs rejected the County's request and instead requested defendants be designated as the

11 "responsible party." As a consequence, defendants were prejudiced and damaged by carrying a

12 significant pecuniary burden related to the abatement. For instance, defendants were invoiced for

13 the abatement work, among other abatement related expenses, as identified in the agreement itself.

14 (RJN, Ex. 2, p. 3 (County's 2017 letter indicated "approximately 7 hours have already been worked,

15 and will be included in the first invoice ... ") The County's hourly rate was $182 per hour and late

16 fees would be assessed for untimely payments. (Ibid.) Subsequently, either directly or by virtue of

17 settling with plaintiffs' insurer, defendants have paid hundreds ofthousands of dollars in abatement-

18 related costs. (Deel., Ex. A, 17:23-26.) Plaintiffe, however, have not paid any out-of-pocket costs

19 whatsoever. (Deel. Ex. B, 134:7-10) This is substantial evidence that plaintiffs gained an advantage

2O over defendants and occasioned defendant damages. It establishes that defendants have been

21 prejudiced and plaintiffs should be estopped from claiming a more remunerative permanent nuisance

22 claim after obtaining the benefit of abatement. (3 Witkin, Cal. Proc. (6th ed. 2021) Actions, §196.)

23 4. The published data is irrefutable evidence of a completed abatement

24 Evidence of plaintiffs' advantage over defendants is also shown by plaintiffs' abated

25 property. It has been approximately three (3) years since plaintiffs have returned to their residence.

26 Such actions are consistent with an abated property. The County issued a certification letter of

27 abatement, citing California Health and Safety Code section 101480. (Deel., Ex F, p. !.) That

28 Health and Safety Code section provides that the County may issue such a letter when a permanent
-13-

DEFENDANTS' SUPPLEMENTAL BRIEF RE ELECTION AND BURDEN OF PROOF ISSUES; MEMORANDUM OF POINTS
& AUTHORITIES; DECLARATION OF GARRY L. MONTANARI
1 remedy has been achieved and the letter certifies that abatement was accomplished. (See, Cal.

2 Health and Safety Code§ 101480(e).) The certification letter was addressed to defendants as the

3 "responsible party'' and sent to plaintiffs and sent to plaintiffs' environmental law attorney. (Deel.,

4 Ex F.) The certification letter provides a synopsis of the "CSM report for public noticing," justifying

5 the County's conclusions in certifying abatement completion. (Id.) The 2018 data referenced in the

6 synopsis shows there are no detectable levels of contamination on plaintiffs' property. (Ibid.) In

7 stark contrast, plaintiffs cannot produce any negating evidence since there is no other

Case Info

Judge

Fineman, Nancy L. Track Judge’s New Case

Case No.

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Document Filed Date

January 08, 2022

Case Filing Date

April 17, 2018

County

Parties

ALLIED PROPERTY AND CASUALTY INSURANCE COMPANY Intervenor
AMCO INSURANCE COMPANY Intervenor
BAUERLE, ASHLEY E. Attorneys for Plaintiffs
CHOO, CLAIRE Attorney for the Plaintiff
DANKO, MICHAEL S. Attorney for the Plaintiff
DOES 1-20 Defendant
DOES 1-50 Defendant
MAGEE, STEPHEN Defendant
MONTANARI, GARRY L Attorney for the Defendant
SAC AERO FLYING CLUB, INC. Defendant
TRUJILLO, BRYAN Plaintiff
TRUJILLO, CINDY Plaintiff
WENIG, WESLEY S. Attorney for the Defendant
Michael Smith Attorneys for Plaintiffs
John Moon Attorneys for Defendants
Shawn Miller Attorneys for Plaintiffs
Tamara Gabel Attorney
Kyounghwa Lee Attorneys for Plaintiffs
Claire Yazigi Attorneys for Plaintiffs
David Meredith Attorney
Michael Sherman Attorneys for Plaintiffs
Renee White Attorney
Thomas Le Attorney
James Michaelis Attorneys for Defendants
Ashley Eickhof Attorneys for Plaintiffs

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No Value: BRYAN TRUJILLO, et al vs. STEPHEN MAGEE, et al

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