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.

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1 MICHAEL S. DANKO, ESQ. (SBN 111359)
mdanko@dankolaw.com
2 MICHAEL S. SMITH, ESQ. (SBN 268756)
msmith@dankolaw.com
3 DANKO MEREDITH
333 Twin Dolphin Drive, Suite 145
4 Redwood Shores, CA 94065
Telephone: (650) 453-3600
5 Facsimile: (650) 394-8672

6 Attorneys for Plaintiffs
BRYAN TRUJILLO and CINDY TRUJILLO
7

8 SUPERIOR COURT OF THE STATE OF CALIFORNIA

9 IN AND FOR THE COUNTY OF SAN MATEO

10 UNLIMITED CIVIL JURISDICTION

11 BRYAN TRUJILLO and CINDY TRUJILLO, Case No. 18CIV01901
Honorable Nancy Fineman, Dept.4
12 Plaintiffs,
PLAINTIFFS’ SUPPLEMENTAL BRIEF RE
13 v. ELECTION AND BURDEN OF PROOF
ISSUE; MEMORANDUM OF POINTS AND
14 STEPHEN MAGEE, SAC AERO FLYING AUTHORITIES; DECLARATION OF
CLUB, INC., AND DOES 1 - 50, MICHAEL S. SMITH
15
Defendants
16 Date: January 31, 2022
Time: 2:00 p.m.
17 Dept.: 4

18 Complaint filed: April 17, 2018
Trial Date: TBD
19

21 TO THE HONORABLE COURT, DEFENDANTS STEPHEN MAGEE, SAC FLYING

22 CLUB, INC. AND THEIR ATTORNEYS OF RECORD:

23 Plaintiffs BRYAN TRUJILLO and CINDY TRUJILLO hereby submit their supplemental

24 brief on the pre-trial issue rulings as to plaintiffs’ nuisance claims.

25 1) All parties ask this Court to rule on the singular issue of whether plaintiffs may

26 proceed to trial on a permanent or continuing nuisance theory

27 In making this determination, the court, and not the jury, should agree to consider and rule on:

28
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1 2) Whether Plaintiffs’ pre-litigation actions constitute an irrevocable election to treat

2 the nuisance as continuing, thereby foreclosing plaintiffs from now electing the

3 remedy for permanent nuisance.

4 3) Whether the nuisance can reasonably be characterized as permanent; such that

5 plaintiffs may now elect, pre-trial, the remedy for permanent nuisance.

6 Assuming that the court’s answers to these questions allow plaintiffs to elect, pre-trial, the remedy

7 for permanent nuisance, then the parties ask the Court to agree to rule on:

8 4) Whether plaintiffs must prove to the jury anything concerning the nature of the

9 nuisance (other than as set forth in the nuisance CACI instructions) to maintain their

10 election and, conversely, whether defendants may offer at trial evidence tending to

11 negate the propriety of plaintiffs’ election – specifically, evidence tending to prove

12 that it is not reasonable to consider the nuisance to be permanent.

14 There appears to be some confusion on the Court’s instructions during the December 7, 2021

15 pre-trial conference. Plaintiff’s counsel understood this Court as asking for briefing on just the legal

16 issues of whether these questions should be determined by this Court or the jury. Defendants’ brief

17 appears to assume that, inter alia, this Court has already agreed to rule on all of these issues and thus

18 presents lengthy and detailed factual arguments. In the event plaintiffs’ counsel misunderstood the

19 thrust of the court’s instructions at the December 7, 2021 pre-trial conference, plaintiffs apologize

20 and ask the parties be given the opportunity to provide further factual argument and supporting

21 evidence should it please the Court.

22 MEMORANDUM OF POINTS AND AUTHORITIES

23 I. Introduction

24 Statutory law, the Judicial Counsel’s Jury Instructions, which are deemed statements of the

25 law, case law, and judicial economy all support Plaintiffs’ right to elect to proceed to trial on the

26 their chosen theory of permanent nuisance, and not to require or allow irrelevant argument or

27 evidence on causes of action that plaintiffs have not asserted, namely continuing nuisance.

28
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PLAINTIFFS’ SUPPLEMENTAL BRIEF RE ELECTION AND BURDEN OF PROOF ISSUE;
MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF MICHAEL S. SMITH
1 I. Case Information

2 A. Facts of the Case

3 On November 18, 2016, at about 11:17 a.m., defendant Stephen Magee (“Magee”) was

4 piloting a Cessna 172N, attempting to land at Half Moon Bay Airport. On final approach, he

5 encountered turbulence. As a result, the aircraft sank. Magee attempted to salvage the approach. The

6 aircraft banked right. Magee lost control of the aircraft and it continued its descent into the

7 neighbor’s property before finally crashing into plaintiffs Bryan and Cindy Trujillo’s residence at

8 1065 Park Way, Moss Beach. Magee survived the crash; his wife died on the Trujillos’ property.

9 Stephen Magee was flying the airplane with the permission of defendant Sac Aero Flying

10 Club, Inc., the registered owner of the plane.

11 The crash resulted in spilling and splattering of aviation fuel and fluids (petroleum

12 hydrocarbons) on the Trujillo property, including in the master bedroom and the soil surrounding the

13 master bedroom. It is estimated that about 45-46 gallons of fuel and about 6-7 quarts of engine oil

14 were spilled as a result of the crash. Because of the environmental impact of the chemical spill, San

15 Mateo County Environmental Health assumed the role as the regulatory oversight agency for the

16 attempted abatement of the spill.

17 On December 11, 2016, an initial shallow surface soil sampling and testing showed that the

18 concentrations of petroleum hydrocarbons were above the environmental screening levels

19 established by the SF Bay Regional Water Quality Control Board (RWQCB). In December of 2016

20 and January of 2017, 83 tons of soil was excavated from the Trujillo property. Testing of the

21 excavation samples indicated that there were toluene concentrations adjacent to the master bedroom

22 that exceeded the RWQCB’s environmental screening levels (ESL) for leaching to drinking water.

23 One of the samples contained concentrations of gasoline petroleum hydrocarbons exceeding ESL for

24 odor nuisance.

25 An additional site assessment took place in July 2017, which included soil sampling, water

26 sampling, soil vapor sampling, indoor and outdoor air sampling. The additional site assessment

27 report indicated that there was still gasoline petroleum hydrocarbons and toluene concentrations four

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1 times greater than ESL in the groundwater. Further, concentrations of benzene detected in indoor and

2 outdoor air samples were greater than ESL. The concentrations of gasoline petroleum hydrocarbons

3 were as high as twenty times ESL in some indoor air samples.

4 Further air sampling in February 2018 indicated that concentrations of benzene in indoor air

5 were higher than the July/August 2017 results. The petroleum hydrocarbons in the indoor air

6 samples were higher than the outdoor air samples. As a result, San Mateo County Environmental

7 Health requested an additional round of indoor and outdoor air sampling. Because their residence

8 was uninhabitable, the Trujillos could not move back into their residence for more than two years

9 after the crash.

10 B. Procedural History

11 This lawsuit was filed by plaintiffs on April 17, 2018. The current controversy arose from a

12 motion in limine filed by plaintiffs on February 10, 2020. Motion in Limine No. 8 requested that the

13 court prevent defendants from introducing any evidence “regarding the amounts plaintiffs received

14 under their insurance policy.” Plaintiffs argued that “All such evidence should be precluded because

15 plaintiffs do not seek to recover the amounts paid by their insurer in an effort to abate the

16 contamination.” On February 17, 2021, Defendants filed Opposition to Plaintiffs’ Motion in Limine

17 No. 8 arguing that payments in excess of $106,000 made to remediate the gasoline spill were

18 relevant as an offset to any damages that plaintiffs might recover.

19 Prior to commencing their action, plaintiffs commenced remediation efforts and requested

20 defendants enter into a remedial action agreement with the County for remediation and monitoring of

21 the nuisance on plaintiffs’ property, and defendants did so and paid for same. 1

22 Plaintiffs subsequently filed their action against defendants on or about April 17, 2018,

23 alleging four (4) Causes of Action against defendants for: 1) Negligence; 2) Trespass; 3) Private

24 Nuisance; and 4) Owner Liability for Permissive Use.

25 On or about February 21, 2019, plaintiffs’ insurer, Nationwide Mutual Insurance Company

27 1
The terms remediation and abatement are used synonymously. (Gehr v. Baker Hughes Oil Field Operations, Inc.
(2008) 165 Cal.App.4th 660, 667, fn. 7 (“Gehr”); see also Starrh & Starrh Cotton Growers v. Aera Energy LLC (2007)
28 153 Cal.app.4th 583, 599 (“Starrh”) (abatement is another term for restoration).)
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1 (“Nationwide”) filed a plaintiff-in-intervention complaint, alleging the same four (4) Causes of

2 Action against defendants and seeking approximately $505,000 in subrogation including the costs to

3 excavate 83 tons of soil. Defendants settled the subrogation action with Nationwide. Defendants

4 separately spent about $250,000 on remediation.

5 Plaintiffs and defendants (collectively, “parties”) subsequently filed their respective motions

6 in limine on February 10, 2020. The controversy arises from the parties’ respective motions in

7 limine, including defendants’ motions to preclude plaintiffs from seeking diminution in value and

8 stigma damages.

9 The Court issued a preliminary tentative ruling on February 24, 2021, noting that “the real

10 question though is whether plaintiffs are entitled to diminution in value damages, which relates to the

11 question of whether the trespass and nuisance are continuing or permanent.” Resolution of the

12 nuisance issue would be determinative of damages, among other things, since plaintiffs were

13 claiming a permanent nuisance and diminution in value damages, while defendants were claiming

14 that the nuisance was continuing, which precludes a claim for diminution in value damages. The

15 court heard oral arguments on March 9, 2021 and requested additional briefing on the issue of

16 permanent and continuing nuisance. The parties submitted their respective briefs and the Court

17 issued a further tentative ruling on April 22, 2021, and discussed the ruling with parties on April 28,

18 2021. During those discussions, the parties decided to submit special jury instructions in compliance

19 with the court’s tentative order. The parties drafted and exchanged special jury instructions and met

20 with the Court on September 28, 2021 and again on December 7, 2021 in which the parties and

21 Court agreed that this case presented new issues in which an appellate court ruling would be helpful.

22 An agreement was reached to brief the Court on these issues

24 II. All parties ask this Court to rule on the singular issue of whether plaintiffs may elect to
proceed to trial on a permanent or continuing nuisance theory
25

26 As all parties are now clearly asking the Court to make such a ruling, this should hopefully not

27 long detain us. Plaintiffs join entirely with Defendants’ statement and legal authority:

28 Defendants contend that the election issue is a pretrial threshold issue that should be decided
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1 by the Court to determine whether plaintiffs should be allowed to present a permanent
nuisance theory to the jury. Defendants argue the Court has inherent authority to make a pre-
2 trial ruling as to this threshold election issue. (People v. Superior Court (Cal Cartage
Transortation Express, LLC) (2020) 57 Cal.App.5th 619, 627, fn. 7, citing Amtower v. Photon
3 Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1595 (trial courts have inherent authority to
decide matters during in limine proceedings); accord Cal. Code of Civ. Proc. §
4 128.) Defendants indicate there is no case law that authorizes a jury to decide the election
issue.
5
Plaintiffs’ Request for Judicial Notice in Support of Plaintiff’s Supplemental Brief, Exhibit 1, pg. 14,
6 lines 3-10.

7 See also, defense counsel Garry Montanari’s email to the Court on November 30, 2021:

8 In our discussions, the parties have realized that we both agree that the court should rule on
whether the nuisance is continuing or permanent, as this would greatly narrow the issues for
9 the jury at trial. We would brief this issue further. We would like to discuss this with you
further at the upcoming Conference on December 7.
10 Plaintiffs’ Request for Judicial Notice in Support of Plaintiff’s Supplemental Brief, Exhibit 2.

12 II. The Court, and not the jury, should rule on the issue of whether Plaintiffs’ pre-litigation
actions constitute an irrevocable election to treat the nuisance as continuing, thereby
13 foreclosing plaintiffs from now electing the remedy for permanent nuisance.

14 Permanent and continuing nuisances are not mutually exclusive. The category of close or

15 doubtful cases includes any nuisance which could be reasonably characterized as both a permanent

16 nuisance and a continuing nuisance. If a nuisance may reasonably be characterized as either

17 permanent or continuing, then a plaintiff may elect how to characterize the nuisance at trial. See,

18 Polin v. Chung Cho (1970) 8 Cal. App.3d 673, 677 [the rule of permanent nuisance “is for the

19 benefit of plaintiff, plaintiff should not be compelled to treat a condition as ‘permanent’ when

20 plaintiff prefers not to so treat it"].

21 Factually, plaintiffs cannot be considered to have made any such “election” since the efforts

22 to clean up the hazardous site was required by law. That is no real choice at all. If we accept

23 Defendants’ argument, that would mean that the Trujillos could only recover for the diminution of

24 value of their property if they fought for and succeeded in halting all clean up efforts. Clearly, the

25 law cannot require or promote such a preposterous situation.

26 As stated by the County of San Mateo Health Department’s February 24, 2017 letter, the

27 Trujillos’ home was opened as a cleanup site because there was an “Illegal release of hazard

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1 materials [in violation of] CA Health and Safety Code [and] the CA Water Code.” The Trujillos had

2 no real choice. It was let the government try to cleanup the hazardous site, or face “enforce[ment] on

3 the violation(s).” Declaration of Michael S. Smith, ¶4, Exhibit A.

4 Of course the Trujillo wanted as much hazardous waste cleaned from their home as possible,

5 but it was the County of San Mateo Health Department that was driving the cleanup efforts. First, by

6 notifying all involved that there were violations of law and threatening “enforcement” and then

7 subsequently coordinating and overseeing the clean up attempt: “Dear Sac Aero Flying Company:

8 […] The [Groundwater Protection Program] requests that you prepare a work plan to assess the

9 lateral and vertical extent of contamination in all impacted media.” Declaration of Michael S. Smith,

10 ¶5, Exhibit B.

11 Defendants make issue of the fact that the Trujillos did not want to be named as “Responsible

12 Parties” for the hazardous spill. That is both true and accurate. The defendants were solely

13 “responsible” for the hazardous spill. This is not disputed. Yes, the defendants are twisting that into

14 a legally binding election for a continuing nuisance claim. It exceeds all bounds of logic and fairness

15 to argue that the Trujillo should be deprived of a remedy because they refused to be named the

16 “Responsible Party” for a problem they did not create.

17 Lastly, defendants attempt to smear plaintiffs as attempting to double-dip on their recovery for

18 damages cannot go unrefuted. Defendants devote fourteen out of seventeen pages of their citation-

19 heavy memorandum to argue an estoppel argument that was just recently pled in their second

20 amended answer and is the subject of a pending demurrer. In all of their argument, defendants never

21 once dispute the validity of the fact that the Trujillo property has suffered a diminution of value. For

22 good reason; it is a real and substantial loss. The Trujillos did not deceive or bait anyone into paying

23 twice for the same damages, or to gain “an advantage over defendants [or] occasioning defendants

24 damage.” Defendants’ Supplement Brief, pg. 12: lines 19-20. The Trujillos are not asking the

25 defendants to pay twice for remediation – that would be a proper grounds for an estoppel argument.

26 Rather, they did not want to be labeled as the ‘Responsible Party’ for causing the spill, and they

27 accepted the government’s determination that the spill had been cleaned up to the extent possible.

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1 The Trujillos allowed the government and those who caused the hazardous spill to do what they

2 could to clean up, rather than face additional fines and/or “enforcement” for violating California

3 health and water laws. But, their home has still been forever changed, in their hearts and minds and

4 in market value.

6 III. The Court, and not the jury, should rule on the issue of whether the nuisance can
reasonably be characterized as permanent; such that plaintiffs may now elect, pre-trial, the
7 remedy for permanent nuisance.

8 While the parties disagree whether the Court should apply the “reasonableness” standard, or

9 the “doubtful” standard, the parties do agree that Plaintiffs may elect to characterize the nuisance as

10 permanent or continuing so long as that standard is met. (Spar v. Pacific Bell (1991) 235 Cal.App.3d

11 1480, 1492.) However, defendants quizzically argue that plaintiffs do not meet either standard since

12 they “have produced no evidence whatsoever in support of their permanent nuisance claim,” and

13 therefore should be barred from asserting it. Defendants’ Supplemental Brief, pg. 20, lines 2-3. This

14 argument disregards the fact that plaintiffs have obtained two property value appraisals which

15 defendants admit “were to establish diminution in value.” Id. at pg. 5:24-6:3.

16 To be clear, plaintiffs claim that they are entitled to damages in the amount of the diminution

17 in value the real property suffered as calculated by subtracting the post-crash appraised value from

18 the pre-crash appraised value. The diminution in value is $635,000.00. Declaration of Michael S.

19 Smith, ¶¶6, 7, Exhibit C, Exhibit D. The spill of toxic chemicals on the Trujillo property is a matter

20 of public record and will be a matter of public record in perpetuity. Moreover, because the

21 passenger died on the property, the property suffers a further diminution in value as a result of that as

22 well.

23 The other issue is whether the Court or the jury should rule on plaintiffs’ election. Again,

24 plaintiffs and defendants are in agreement: “It is appropriate for the Court to make this determination

25 as a gatekeeping function…[t]he Court, the parties and a jury should not be required to go through

26 the entire presentation of plaintiffs’ case[…] Defendants’ Supplemental Brief, pg. 20:28 to 21:7-8

27 (emphasis added).

28 Both parties agree that the Spar case is good law and it holds that is it the Court’s role to
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1 perform the analysis, whether it is the “reasonable” or “abatement” tests, of whether plaintiff’s are

2 entitled to an election, so that the parties and jury are not needlessly burdened with irrelevant

3 argument and evidence at trial.

4 The CACI instructions do not differentiate between whether the nuisance/trespass is

5 continuing or permanent. Further evidence that the nature of the trespass is not a question for the

6 jury, but for the court. (See, e.g., CACI No. 2021 (May 2020) Private Nuisance – Essential Factual

7 Elements, p. 1225; See, e.g., CACI No. 2000 (May 2020) Trespass – Essential Factual Elements, p.

8 1202.) The only time the distinction between permanent and continuing nuisance is to be submitted

9 to the jury is where the defendant contends plaintiffs have missed the statute for permanent trespass

10 or nuisance. (See CACI No. 2030 (May 2020) Affirmative Defense—Statute of Limitations—

11 Trespass or Private Nuisance p. 1238.) Because the plaintiffs in this case have filed a timely claim,

12 CACI 2030 cannot be read and the jury need not hear arguments on that issue.

14 IV. Whether plaintiffs must prove to the jury anything concerning the nature of the nuisance
(other than as set forth in the nuisance CACI instructions) to maintain their election and,
15 conversely, whether defendants may offer at trial evidence tending to negate the propriety of
plaintiffs’ election – specifically, evidence tending to prove that it is not reasonable to consider
16 the nuisance to be permanent.
17 To prevail, plaintiffs must prove a nuisance or trespass. The applicable jury instructions for

18 this case do not include an element requiring plaintiffs to prove whether the nuisance/trespass is

19 continuing or permanent. (See, e.g., CACI No. 2021 (May 2020) Private Nuisance – Essential

20 Factual Elements, p. 1225; See, e.g., CACI No. 2000 (May 2020) Trespass – Essential Factual

21 Elements, p. 1202.) Because this is not a required element for plaintiff’s case in chief, the jury

22 should not hear arguments on this issue.

23 This was no accidental omission, but a purposeful decision by the Judicial Counsel, which

24 included the elements of a continuing trespass/nuisance in the jury instructions for the statute of

25 limitation affirmative defense. (See CACI No. 2030 (May 2020) Affirmative Defense—Statute of

26 Limitations—Trespass or Private Nuisance p. 1238.) Because there is no statute of limitation

27 affirmative defense in this case, the jury should not hear arguments on that issue.

28 Defendants point to the case of Mangini v. Aeroject-General Corp. (1996) 12 Cal.4th 1087 as
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1 “highly instructive” but the plaintiff in that case did not file a nuisance claim within the three-year

2 statutory period and thus sought relief under the theory that the nuisance was continuing. In

3 Mangini, the California Supreme Court had the opportunity to elaborate on its holding in Spaulding

4 v. Cameron stating, “in doubtful cases the plaintiff should have an election to treat the nuisance as

5 either permanent or not.” (Mangini v. Aerojet-General Corp, supra, 12 Cal.4th 1087, 1106-7, citing

6 Spaulding v. Cameron, supra, 38 Cal.2d 265, 268.) The Mangini Court clarified that, “we express no

7 opinion on the question whether a plaintiff who has filed a timely nuisance action is required to

8 prove that abatement can be accomplished at a "reasonable cost" in order to be entitled to an

9 injunction requiring the wrongdoing party to remedy the damage to the property.” (Id. at 1090.

10 Emphasis added) The Supreme Court then went on to hold that “we emphasize, however, that our

11 ruling in this case is confined to the statute of limitations issue before us.” (Id.) Indeed, even under

12 the “abatable” standard that defendants champion, no case has held that a plaintiff who has complied

13 with the statute of limitations and elects a permanent nuisance theory must prove whether or not the

14 nuisance/trespass in abatable. Therefore, the holding in Spaulding remains intact and plaintiffs who

15 file a timely claim have the right to pursue the remedies available for permanent nuisance.

16 The statute of limitations has significant implications. A plaintiff who files a timely claim

17 may elect between permanent and continuing nuisance, while a plaintiff that fails to file a lawsuit

18 within the limitations period must prove that the nuisance is continuing because it cannot be abated.

19 Thus, the courts impose the burden to show that the nuisance is continuing on plaintiffs only if the

20 statute of limitations has run. The reasoning for this rule is obvious: if a plaintiff’s election were

21 entitled to the same deference in cases where the statute of limitations has run as it is when plaintiff’s

22 claim was timely filed, the statute of limitations would be eviscerated. See, Santa Fe Partnership v.

23 ARCO Products Co., (1996) 46 Cal. App. 4th 967, 980 [“To accept [plaintiffs'] reasoning would

24 permit parties seeking recovery for time-barred. . . claims to avoid the statute of limitations simply

25 by recharacterizing them as. . . continuing nuisance claims”].)

26 In Kornoff v. Kingsburg Cotton Oil Co., 45 Cal.2d 265, 266 – 267, plaintiffs filed a claim

27 within the statute of limitations for a nuisance caused by defendant’s nearby ginning mill. The mill

28
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1 would run during part of the year, causing dust, lint, and waste to spill onto plaintiffs’ property. At

2 the first trial, plaintiffs were awarded damages to real property, but not for injuries to their persons.

3 A new trial was granted on the grounds that the evidence was insufficient to support the jury’s

4 conclusion. A second trial was granted to determine the limited issue of the correct damages award.

5 When plaintiff was awarded damages, defendant appealed the jury’s verdict.

6 In the second trial, the jury was instructed to award the lesser of either diminution in value or

7 the cost to repair and restore the property.

8 “The jury was instructed at defendant's request that plaintiffs had suffered a trespassory
invasion "(more or less continuous in nature during the cotton ginning season)" and, also at
9 defendant's request, that the sum which would reasonably compensate plaintiffs for the
damage to their real property was the "sum equal to the difference in the fair market value of
10 the real property immediately before and after the injury; provided, however, that if the injury
has been repaired, or be capable of repair, so as to restore the fair market value of plaintiffs'
11 real property as it existed immediately before the injury, at an expense less than such
difference in value, then the measure of damage is the expense of such repair rather than such
12 difference in value."
13 Kornoff, supra, 45 Cal.2d 265, 267 - 268.

14 Plaintiffs requested damages for permanent nuisance, which included past, present, and all

15 future damages. Defendants argued that damages for continuing nuisance should be awarded, that is,

16 damages only for past and present harms and that future damages were not recoverable. However,

17 “no instruction was given the jury concerning the distinction between permanent and continuing

18 trespass.” Id. at 268 (emphasis added). The following statements were made by the presiding Judge

19 and the plaintiffs’ attorney in the presence of the jury, notably the court first raised issue this outside

20 the jury’s presense:

21 "Now, I'll repeat a question, Mr. Say, that I asked you in the absence of the jury. Is it the
contention of your clients, Mr. and Mrs. Kornoff, that the alleged damage that they complain
22 of in this suit is permanent and that it will continue in the future and that they are asking
damages now for all of the adverse effects which have happened in the past and which may
23 happen in the future from the operation of this gin of the defendant's?"
24 "Mr. Say: Yes, your Honor, I think the word which I may put into the record, that we are
asking for damages for past, future, present and prospective damages."
25
"The Court: Will you proceed with your case, Mr. Barrett."
26
Kornoff, supra, 45 Cal.2d 265, 268 (emphasis added).
27
The court held that "it has been recognized that in doubtful cases the plaintiff should have an
28
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1 election to treat the nuisance as either permanent or not.” Kornoff, supra, 45 Cal.2d 265, 271. Noting

2 that “It appears that here plaintiffs elected to sue for all damages past, present and future and that

3 such damages are recoverable under the rule heretofore set forth. Kornoff, supra, 45 Cal.2d 265, 271

4 citing (Spaulding v. Cameron, supra, 38 Cal.2d 265).

5 The Court then noted that it was reasonable to treat the nuisance as permanent because “In the

6 present case, defendant's ginning mill is lawfully operated in a location properly zoned therefor and

7 need not, or may not, be abated.” The court in Kornoff did not require plaintiffs to prove that it was

8 impossible to abate the nuisance.

9 Plaintiffs in this case are similarly situated. They have filed a claim within the statute of

10 limitations and have elected to treat the nuisance as permanent. It is reasonable to characterize the

11 nuisance as permanent and plaintiffs should not be required to disprove defendants’ claim that the

12 nuisance is abatable. Noting that the court in Kornoff, did not state that it was a requirement of

13 plaintiff’s case that they prove that the nuisance could not be abated.

14 Furthermore, the Kornoff court stated:

15 If plaintiffs are not permitted to sue for all damages, past, present and future, then they must
bring successive actions each year at the close of each ginning season with the attendant risk
16 that the court may determine that the trespass occurring the previous year was a permanent
one for which plaintiffs had been theretofore adequately compensated.
17
Kornoff, supra, 45 Cal.2d 265, 271.
18
Likewise, in this case, plaintiffs further argue that they must be allowed to make a reasonable
19
election as to how to characterize the nuisance, so they are not prevented from recovery of future
20
damages if a court in a subsequent lawsuit determines that the nuisance was permanent all along.
21
Defendant should be precluded from presenting evidence at trial that the nuisance should be
22
characterized as continuing. Furthermore, the jury should be instructed on the elements of trespass as
23
stated in CACI No. 2000. Because defendants have no evidence or argument suggesting that the
24
statute of limitations has run, the court cannot read CACI No. 2030. CACI No. 2030 is the only
25
instruction that makes the distinction between permanent and continuing nuisances and is not
26
applicable here. Thus, such distinction is irrelevant to the trial. Therefore, the court should properly
27
exclude all evidence that the nuisance is continuing as such evidence would be irrelevant, confusing,
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1 and prejudicial.

3 DATED: January 21, 2022 DANKO MEREDITH

5 By:____ __________________________
6 MICHAEL S. DANKO
MICHAEL S. SMITH
7 Attorneys for Plaintiffs
BRYAN TRUJILLO and CINDY TRUJILLO
8

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MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF MICHAEL S. SMITH
1 DECLARATION OF MICHAEL S. SMITH REGARDING COMPLIANCE WITH MEET
AND CONFER REQUIREMENTS OF CODE OF CIVIL PROCEDURE § 430.41
2

3
I, Michael S. Smith, declare as follows:
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1. I am an attorney duly admitted to practice law before the courts of the State of
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California and an associate with the Danko Meredith Law firm, attorneys of record for plaintiffs
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BRYAN TRUJILLO and CINDY TRUJILLO in the above-captioned action.
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2. Upon Information and belief, the underlying facts of the case are: on November 18,
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2016, at about 11:17 a.m., defendant Stephen Magee (“Magee”) was piloting a Cessna 172N,
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attempting to land at Half Moon Bay Airport. On final approach, he encountered turbulence. As a
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result, the aircraft sank. Magee attempted to salvage the approach. The aircraft banked right. Magee
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lost control of the aircraft and it continued its descent into the neighbor’s property before finally
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crashing into plaintiffs Bryan and Cindy Trujillo’s residence at 1065 Park Way, Moss Beach. Magee
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survived the crash; his wife died on the Trujillos’ property.
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Stephen Magee was flying the airplane with the permission of defendant Sac Aero Flying
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Club, Inc., the registered owner of the plane.
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The crash resulted in spilling and splattering of aviation fuel and fluids (petroleum
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hydrocarbons) on the Trujillo property, including in the master bedroom and the soil surrounding the
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master bedroom. It is estimated that about 45-46 gallons of fuel and about 6-7 quarts of engine oil
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were spilled as a result of the crash. Because of the environmental impact of the chemical spill, San
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Mateo County Environmental Health assumed the role as the regulatory oversight agency for the
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attempted abatement of the spill.
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On December 11, 2016, an initial shallow surface soil sampling and testing showed that the
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concentrations of petroleum hydrocarbons were above the environmental screening levels
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established by the SF Bay Regional Water Quality Control Board (RWQCB). In December of 2016
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and January of 2017, 83 tons of soil was excavated from the Trujillo property. Testing of the
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excavation samples indicated that there were toluene concentrations adjacent to the master bedroom
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that exceeded the RWQCB’s environmental screening levels (ESL) for leaching to drinking water.
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PLAINTIFFS’ SUPPLEMENTAL BRIEF RE ELECTION AND BURDEN OF PROOF ISSUE;
MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF MICHAEL S. SMITH
1 One of the samples contained concentrations of gasoline petroleum hydrocarbons exceeding ESL for

2 odor nuisance.

3 An additional site assessment took place in July 2017, which included soil sampling, water

4 sampling, soil vapor sampling, indoor and outdoor air sampling. The additional site assessment

5 report indicated that there was still gasoline petroleum hydrocarbons and toluene concentrations four

6 times greater than ESL in the groundwater. Further, concentrations of benzene detected in indoor and

7 outdoor air samples were greater than ESL. The concentrations of gasoline petroleum hydrocarbons

8 were as high as twenty times ESL in some indoor air samples.

9 Further air sampling in February 2018 indicated that concentrations of benzene in indoor air

10 were higher than the July/August 2017 results. The petroleum hydrocarbons in the indoor air

11 samples were higher than the outdoor air samples. As a result, San Mateo County Environmental

12 Health requested an additional round of indoor and outdoor air sampling. Because their residence

13 was uninhabitable, the Trujillos could not move back into their residence for more than two years

14 after the crash.

15 3. Upon Information and belief, the procedural history of the issue currently before this court are:

16 this lawsuit was filed by plaintiffs on April 17, 2018. The current controversy arose from a motion in

17 limine filed by plaintiffs on February 10, 2020. Motion in Limine No. 8 requested that the court

18 prevent defendants from introducing any evidence “regarding the amounts plaintiffs received under

19 their insurance policy.” Plaintiffs argued that “All such evidence should be precluded because

20 plaintiffs do not seek to recover the amounts paid by their insurer in an effort to abate the

21 contamination.” On February 17, 2021, Defendants filed Opposition to Plaintiffs’ Motion in Limine

22 No. 8 arguing that payments in excess of $106,000 made to remediate the gasoline spill were

23 relevant as an offset to any damages that plaintiffs might recover.

24 Prior to commencing their action, plaintiffs commenced remediation efforts and requested

25 defendants enter into a remedial action agreement with the County for remediation and monitoring of

26 the nuisance on plaintiffs’ property, and defendants did so and paid for same. 2

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2
The terms remediation and abatement are used synonymously. (Gehr v. Baker Hughes Oil Field Operations, Inc.
28 (Footnote continued)
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PLAINTIFFS’ SUPPLEMENTAL BRIEF RE ELECTION AND BURDEN OF PROOF ISSUE;
MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF MICHAEL S. SMITH
1 Plaintiffs subsequently filed their action against defendants on or about April 17, 2018,

2 alleging four (4) Causes of Action against defendants for: 1) Negligence; 2) Tr

Case Info

Judge

Fineman, Nancy L. Track Judge’s New Case

Case No.

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Document Filed Date

January 22, 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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