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Matthew K. Wisinski (SBN 195535)
Dana L. Tom (SBN 263313)
Katelyn M. Knight (SBN 264573)
MURCHISON & CUMMING, LLP
275 Battery Street, Suite 850
San Francisco, California 94111
Telephone: (415) 524-4486
(415) 524-4313
(415) 524-0477
Facsimile: (415) 391-2058
E-Mail: = mwisinski@murchisonlaw.com
dtom@murchisonlaw.com
kknight@murchisonlaw.com
Attorneys for Defendants
ANGELO WILSON, CARRIE WILSON in her
capacity as Trustee of the WILSON FAMILY
TRUST, and SHAWN MARKHAM
SUPERIOR COURT OF T
ELECTRONICALLY
FILED
Superior Court of California,
County of San Francisco
03/23/2017
Clerk of the Court
BY-JUDITH NUNEZ
Deputy Clerk
HE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
PHILLIP GARCIA,
Plaintiff,
vs.
CARRIE WILSON, in her capacity as
trustee of THE WILSON FAMILY TRUST,
SHAUN MARKHAM, ERIKA MARKHAM,
and ANGELO WILSON, and DOES 1-20,
Defendants.
CASE NO. CGC-14-538560
DECLARATION OF KATELYN M.
KNIGHT IN SUPPORT OF
DEFENDANTS’ EX PARTE
APPLICATION FOR TRIAL
CONTINUANCE AND ORDER
REOPENING DISCOVERY
Date: March 23, 2017
Time: 11:00 a.m.
Dept.: 206
Action Filed: April 10, 2014
Trial Date: March 27, 2017
|, Katelyn M. Knight, declare and state:
| am an attorney-at-law licensed to practice in the State of California and | am an
associate with Murchison & Cumming LLP, c
ounsel of record herein for Defendants. | am
one of the attorneys at our firm responsible for handling the defense of this matter on behalf
of Defendants, and, on this basis, and upon such other bases set forth below, | have
4
DECLARATION OF KATELYN M. KNIGHT IN SUPPORT OF DEFENDANTS' EX PARTE APPLICATION
FOR TRIAL CONTINUANCE AND ORDER REOPENING DISCOVERYo ON Oo oOo kk WO ND =
10
personal knowledge of the matters set forth in this Declaration, except where stated on
information and belief, and could and would competently testify to them under oath if called
as a witness.
1. Trial in this matter is set for March 27, 2017. On January 12, 2017, Plaintiff
filed a motion for leave to amend his complaint to name Carrie Wilson as a Defendant in
her personal capacity, or in the alternative to substitute Carrie Wilson as Doe 1. Plaintiff
argued that the amendment was justified because he had recently discovered facts
showing that the WILSON FAMILY TRUST is a fraudulent entity and that Carrie Wilson
bears personal liability. On February 8, 2017, the Court granted Plaintiff leave to file an
amended complaint naming Carrie Wilson as a Defendant and indicated in its tentative
ruling that Defendants may seek a trial continuance as needed. Shortly thereafter Plaintiff
amended the Complaint to name Carrie Wilson in her individual capacity. On February 10,
2017, Defendants brought an ex parte application to continue the trial date, however that
application was denied without prejudice to bring a regularly noticed motion. Defendants
consequently filed a regularly noticed motion for trial continuance.
2. After evaluating the claims as to Carrie Wilson in her individual capacity, |
determined that a demurrer on statute of limitations grounds should be brought and
proceeded to meet and confer with Plaintiffs counsel as required. After considering the
legal authority presented by Plaintiffs counsel and conducting further research into the
legal bases for opposition raised, | determined that an answer should be filed instead. An
answer was filed on behalf of Carrie Wilson in her individual capacity on March 15, 2017.
3. Defendants’ motion for trial continuance was filed a heard on March 21, 2017.
The Court denied the motion on the basis that the moving papers were not supported by a
declaration. | inquired at the hearing whether the Court would consider the merits of the
request for continuance on an ex parte basis. The Court indicated that it would not give
any legal advice but that | should proceed to do what | believed | could do and that any
further submissions must be compliant with the rules of court. | understood this to mean
that the denial was not with prejudice to bring an ex parte application.
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DECLARATION OF KATELYN M. KNIGHT IN SUPPORT OF DEFENDANTS’ EX PARTE APPLICATION
FOR TRIAL CONTINUANCE AND ORDER REOPENING DISCOVERYo ON Oo oOo kk WO ND =
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4. With the addition of Carrie Wilson as a defendant in her individual capacity,
Plaintiff has raised a new claim of fraud and exposed Ms. Wilson to personal liability.
Fraud has never been an issue in this case. Basic special interrogatories seeking the facts,
witnesses and evidence supporting Plaintiff's claims against Ms. Wilson in her individual
capacity were propounded, and responses were received on March 21, 2017. Although
the responses have not been fully analyzed and evaluated yet, the alleged facts supporting
Plaintiff's claims raise several issues requiring investigation and further discovery. For
example, Plaintiff asserts that the existence of the Trust was not disclosed to him at any
point before or after he entered into his lease agreement, and that his fellow tenants made
rent payments directly to Carrie Wilson. Plaintiff also refused to respond to some of the
interrogatories, which will require a meet and confer. My office needs time to fully analyze
Plaintiff's responses, conduct follow up discovery, gather evidence, and prepare a defense
with respect to Plaintiff's claim that CARRIE WILSON has engaged in fraud and bears
personal liability.
5. On March 21, 2017, | sent an e-mail to Plaintiff's counsel giving notice of
intent to appear on March 23, 2017 and apply ex parte for a trial continuance and order
reopening discovery as to Carrie Wilson. | inquired whether Plaintiff would oppose the
application. Plaintiff's counsel indicated that he would appear and oppose and would seek
sanctions on the basis that the application is, in reality, a motion for reconsideration.
6. The Court recently issued an order imposing issue sanctions on the Wilson
Family Trust only following a motion by Plaintiff. A true and correct copy of that order is
attached hereto as Exhibit A.
7. Good cause exists for the granting of a trial continuance. Absent a trial
continuance, Carrie Wilson will suffer severe prejudice in that she will be forced to proceed
with trial without the opportunity to conduct discovery into plaintiffs new claims and
formulate a defense. This severe prejudice can only be alleviated by a trial continuance.
Thus, the interests of justice are best served by a continuance. Moreover, the continuance
3
DECLARATION OF KATELYN M. KNIGHT IN SUPPORT OF DEFENDANTS’ EX PARTE APPLICATION
FOR TRIAL CONTINUANCE AND ORDER REOPENING DISCOVERYrequested is not lengthy. Defendants request a continuance of 90 to 180 days to permit
Carrie Wilson to conduct basic discovery and prepare for trial.
| declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Executed this 23rd day of March, 2017, at San Francisco, California.
Katelyn M. Knight
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DECLARATION OF KATELYN M. KNIGHT IN SUPPORT OF DEFENDANTS' EX PARTE APPLICATION
FOR TRIAL CONTINUANCE AND ORDER REOPENING DISCOVERYo ON Oo oOo kk WO ND =
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EXHIBIT A
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DECLARATION OF KATELYN M. KNIGHT IN SUPPORT OF DEFENDANTS’ EX PARTE APPLICATION
FOR TRIAL CONTINUANCE AND ORDER REOPENING DISCOVERYSUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO,
PHILLIP GARCIA, an individual, Case No. CGC-14-538560
Plaintiff, DISCOVERY MOTION
v. fLROPOSED} ORDER ON
PLAINTIFF’S MOTION TO COMPEL
CARRIE WILSON, an individual, and in her RESPONSES TO DISCOVERY AND
capacity as trustee of THE WILSON FAMILY REQUESTS FOR SANCTIONS
TRUST; SHAUN MARKHAM an individual;
ERIKA MARKHAM, an individual; ANGELO Date: March 16, 2017
WILSON, and individual; and DOES 1-20, Time: 9:00 a.m.
Dept: 301
Defendants. Judge: B. Douglas Robbins (PT)
Action Filed: April 10, 2014
Trial Date: Match 27, 2017
Plaintiff Phillip Garcia’s (“Garcia”) MOTION TO COMPEL RESPONSES TO
DISCOVERY AND REQUESTS FOR MONETARY AND NONMONETARY SANCTIONS came
before this Court upon a regularly noticed motion on March 16, 2017 in Dept. 301 of the Superior
Court of San Francisco. Attorneys Benny Martin appeared for Garcia. Matthew Wisinski appeared
for Defendant Carrie Wilson in her individual capacity and in her capacity as trustee of The Wilson
ORDER RE MOTION FOR MONETARY AND NONMONETARY SANCTIONS
-1-Family Trust (collectively “Wilson”). The Parties stipulated to the authority of the Judge Pro Tem,
Douglas Robbins.
Having read the moving papers, the opposing papers, and the reply papers, as well as having
considered oral argument of counsel and the entire record of this case, the Court hereby FINDS AS
FOLLOWS:
FINDINGS
Issue. At issue are three discovery events, First, Wilson failed to provide substantive
responses to Special Interrogatories, Set Four, offering only objections. Second, Wilson failed to
provide responses of any kind at her lawfully noticed deposition of February 14, 2017. Third Wilson
failed to provide documents requested at that deposition.
Written Discovery. Garcia fails to move, nor notice a motion to compel the production of
documents or further responses to special interrogatories. As such this Court has no authority to
compel those remedies.
Garcia does notice and does move for terminating and issue sanctions (declining to move for
evidentiary sanctions). But except in extraordinary circumstances, not presented here, the Court is
without authority to issue those kinds of sanctions absent violation of a prior court order. See Biles v.
Exxon Mobil Corp., 124 Cal. App. 4th 1315, 1327 (2004). The only orders offered by Garcia in
evidence are those issued by Judge Quidachay on February 8, 2016, February 9, 2016, and November,
1, 2016. None of these three court orders compel Wilson to produce documents in compliance with a
deposition notice. And none of them compel Wilson to respond to Special Interrogatories Set Four.
As such this Court is without authority to impose non-monetary sanctions as to those discovery
issues. And since Garcia declines to move for other relief—nor provide a code compliant separate
statement seeking other relief for that matter—the Court has no authority to grant any other remedy
on these issues,
Deposition. Garcia moves for issue or terminating sanctions against Defendant as a
consequence of her failing to appear and testify at her lawfully noticed deposition (declining to seek
ORDER RE MOTION FOR MONETARY AND NONMONETARY SANCTIONS
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evidentiary sanctions), Unlike the written discovery, Wilson was, in fact, compelled by court order to
appear at her deposition. See Order Denying Philip Garcia’s Motion for Trial Preference, at 1, Nov. 1
2016 (ordering “defendant Carrie Wilson’s deposition to be completed by February 14, 2017). Parties!
agree that Ms. Wilson appeared at her lawfully noticed deposition but failed to take the oath and did
not respond to questions, The open question is why.
Garcia argues that Wilson refused to answer questions for tactical reasons, Wilson’s counsel
argues that Ms. Wilson was unable to respond to deposition questions for medical reasons. Wilson
offers letters from physicians in support. The first is from Elizabeth Soety, a clinical psychologist
who opines that Ms. Wilson suffers from “dementia.” The remaining letters are authored by Dr.
Crystal Brown who opines that Ms. Wilson suffers from a variety of physical ailments such as
osteoarthritis, degenerative disc diseases, osteoporosis, and zoster. The Crystal Brown letters do not
speak to mental capacity. The Soety letter is somewhat vague, failing to clearly state that Ms. Wilson
is incompetent or incapable of testifying. More problematic, neither letter is signed under penalty of
perjury. Garcia timely objected to the letters based upon hearsay. Wilson’s counsel conceded at
hearing the letters are hearsay. Accordingly, Garcia’s objection is SUSTAINED and the letters are
struck as hearsay.
“A trial court has broad discretion to impose discovery sanctions, but two facts are generally
prerequisite to the imposition of nonmonetary sanctions . . . : (1) absent unusual circumstances, there
must be a failure to comply with a court order, and (2) the failure must be willful.” Biles v. Exxon
Mobil Corp., 124 Cal. App. 4th 1315, 1327 (2004).
Here, we have a court order compelling Wilson’s appearance at deposition. She appeared but
she did not testify. This failure to testify is sufficient to find violation of the order. Wilson argues,
however, that her disobedience of the order was not willful because she suffers from dementia which
prevented her from testifying. But there is no admissible evidence of this. To the contrary Wilson has
historically taken the position—in motion for trial preference for example—that she was well enough
to appear at trial, only getting healthier by the day. Other documentary evidence on the question has
ORDER RE MOTION FOR MONETARY AND NONMONETARY SANCTIONS
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28
been struck as hearsay. Thus the Court is left with these basic facts, Wilson appeared, was asked
questions at deposition but she did not answer those questions. The Court is without evidence to
presume anything more about Wilson’s health, These facts in conjunction with Wilson’s historical
failure to execute verifications in support of her discovery responses is sufficient to find willfulness.
Wilson argues that Garcia’s motion fails to comply with the Rules of Court for separate
statements, A separate statement is required under the rules for “Any motion involving the content of
a discovery request or the responses to such a request . . . [involving] issue or evidentiary sanctions.”
Cal. R. Ct. 3.1345(a). But a “separate statement is not required when no response has been provided
to the request for discovery.” Cal. R. Ct. 3.1345(b). Here Wilson provided no response to any
question at deposition. There is nothing to include in the separate statement. No separate statement is
required.
Monetary Sanctions. Under the Discovery Act, “the court shall impose a monetary sanction .
. against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel . .
. unless it finds that the one subject to the sanction acted with substantial justification or that other
circumstances make the imposition of the sanction unjust.” Cal. Civ. Proc. Code § 2030.290(c)
(interrogatories); Cal. Civ. Proc. Code § 2031.300(c) (request for production of documents); Cal. Civ,
Proc. Code § 2025.480(j) (further responses during oral deposition). Here Garcia has prevailed on
certain parts of the Instant Motion while Wilson has prevailed on other parts. Each Party prevailed in
some sense. Imposition of monetary sanctions would be unjust.
ORDER
For the forgoing reasons the Court ORDERS as FOLLOWS:
1, The Motion is GRANTED IN PART AND DENIED IN PART.
2, Garcia’s motion for terminating sanctions is DENIED.
3. Evidentiary sanctions are DENIED AS UNSOUGHT.
4. Motion to compel further responses to written discovery is DENIED AS UNSOUGHT.
ORDER RE MOTION FOR MONETARY AND NONMONETARY SANCTIONS
-4-5. Garcia’s motion for issue sanctions is GRANTED as follows.
a. At trial, on Garcia’s wrongful eviction cause of action, it shall be taken as
established that Defendant, The Wilson Family Trust’s motive for seeking to
recover possession of Garcia’s rental unit was not one of the grounds enumerated
in San Francisco Administrative Code § 37.9(a) or (b). The issue of Defendant,
The Wilson Family Trust’s, motive for seeking to recover possession of Garcia’s
rental unit in knowing violation of San Francisco Administrative Code § 37.9 shall
be established.
b. At trial on Garcia’s tenant harassment cause of action, it shall be taken as
established that Defendant, The Wilson Family Trust acted in bad faith in
attempting to coerce Garcia to vacate his rental housing unit. The issue of
Defendant The Wilson Family Trust’s bad faith in knowing violation of San
Francisco Administrative Code § 37.9 shall be established.
c, All other elements continue to be at issue.
6. All Parties’ requests for monetary sanctions are DENIED.
IT IS SO ORDERED,
Dated: March 17, 2017 Tou b——
Judge Pro ‘em B. Douglas Robbins,
THE SUPHRIOR COURT OF CALIFORNIA
SAN F CISCO COUNTY
ORDER RE MOTION FOR MONETARY AND NONMONETARY SANCTIONS
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PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO
At the time of service, | was over 18 years of age and not a party to this action. | am
employed in the County of San Francisco, State of California. My business address is 275
Battery Street, Suite 850, San Francisco, California 94111.
On March 23, 2017, | served true copies of the following document(s) described as
DECLARATION OF KATELYN M. KNIGHT IN SUPPORT OF DEFENDANTS' EX PARTE
APPLICATION FOR TRIAL CONTINUANCE AND ORDER REOPENING DISCOVERY on
the interested parties in this action as follows:
BY ELECTRONIC SERVICE VIA FILE & SERVEXPRESS: | electronically served the
document(s) described above via File & ServeXpress, on the recipients designated on the
Transaction Receipt located on the File & ServeXpress website
(https:secure.fileandservexpress.com) pursuant to the Court Order establishing the case
website and authorizing service of documents.
| declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Executed on March 23, 2017, at San Francisco, California.
Katelyn M. Knight
DECLARATION OF KATELYN M. KNIGHT IN SUPPORT OF DEFENDANTS' EX PARTE APPLICATION
FOR TRIAL CONTINUANCE AND ORDER REOPENING DISCOVERY
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o ON Oo oOo kk WO ND = 10 Matthew K. Wisinski (SBN 195535) Dana L. Tom (SBN 263313) Katelyn M. Knight (SBN 264573) MURCHISON & CUMMING, LLP 275 Battery Street, Suite 850 San Francisco, California 94111 Telephone: (415) 524-4486 (415) 524-4313 (415) 524-0477 Facsimile: (415) 391-2058 E-Mail: = mwisinski@murchisonlaw.com dtom@murchisonlaw.com kknight@murchisonlaw.com Attorneys for Defendants ANGELO WILSON, CARRIE WILSON in her capacity as Trustee of the WILSON FAMILY TRUST, and SHAWN MARKHAM SUPERIOR COURT OF T ELECTRONICALLY FILED Superior Court of California, County of San Francisco 03/23/2017 Clerk of the Court BY-JUDITH NUNEZ Deputy Clerk HE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO PHILLIP GARCIA, Plaintiff, vs. CARRIE WILSON, in her capacity as trustee of THE WILSON FAMILY TRUST, SHAUN MARKHAM, ERIKA MARKHAM, and ANGELO WILSON, and DOES 1-20, Defendants. CASE NO. CGC-14-538560 DECLARATION OF KATELYN M. KNIGHT IN SUPPORT OF DEFENDANTS’ EX PARTE APPLICATION FOR TRIAL CONTINUANCE AND ORDER REOPENING DISCOVERY Date: March 23, 2017 Time: 11:00 a.m. Dept.: 206 Action Filed: April 10, 2014 Trial Date: March 27, 2017 |, Katelyn M. Knight, declare and state: | am an attorney-at-law licensed to practice in the State of California and | am an associate with Murchison & Cumming LLP, c ounsel of record herein for Defendants. | am one of the attorneys at our firm responsible for handling the defense of this matter on behalf of Defendants, and, on this basis, and upon such other bases set forth below, | have 4 DECLARATION OF KATELYN M. KNIGHT IN SUPPORT OF DEFENDANTS' EX PARTE APPLICATION FOR TRIAL CONTINUANCE AND ORDER REOPENING DISCOVERYo ON Oo oOo kk WO ND = 10 personal knowledge of the matters set forth in this Declaration, except where stated on information and belief, and could and would competently testify to them under oath if called as a witness. 1. Trial in this matter is set for March 27, 2017. On January 12, 2017, Plaintiff filed a motion for leave to amend his complaint to name Carrie Wilson as a Defendant in her personal capacity, or in the alternative to substitute Carrie Wilson as Doe 1. Plaintiff argued that the amendment was justified because he had recently discovered facts showing that the WILSON FAMILY TRUST is a fraudulent entity and that Carrie Wilson bears personal liability. On February 8, 2017, the Court granted Plaintiff leave to file an amended complaint naming Carrie Wilson as a Defendant and indicated in its tentative ruling that Defendants may seek a trial continuance as needed. Shortly thereafter Plaintiff amended the Complaint to name Carrie Wilson in her individual capacity. On February 10, 2017, Defendants brought an ex parte application to continue the trial date, however that application was denied without prejudice to bring a regularly noticed motion. Defendants consequently filed a regularly noticed motion for trial continuance. 2. After evaluating the claims as to Carrie Wilson in her individual capacity, | determined that a demurrer on statute of limitations grounds should be brought and proceeded to meet and confer with Plaintiffs counsel as required. After considering the legal authority presented by Plaintiffs counsel and conducting further research into the legal bases for opposition raised, | determined that an answer should be filed instead. An answer was filed on behalf of Carrie Wilson in her individual capacity on March 15, 2017. 3. Defendants’ motion for trial continuance was filed a heard on March 21, 2017. The Court denied the motion on the basis that the moving papers were not supported by a declaration. | inquired at the hearing whether the Court would consider the merits of the request for continuance on an ex parte basis. The Court indicated that it would not give any legal advice but that | should proceed to do what | believed | could do and that any further submissions must be compliant with the rules of court. | understood this to mean that the denial was not with prejudice to bring an ex parte application. 2 DECLARATION OF KATELYN M. KNIGHT IN SUPPORT OF DEFENDANTS’ EX PARTE APPLICATION FOR TRIAL CONTINUANCE AND ORDER REOPENING DISCOVERYo ON Oo oOo kk WO ND = 10 4. With the addition of Carrie Wilson as a defendant in her individual capacity, Plaintiff has raised a new claim of fraud and exposed Ms. Wilson to personal liability. Fraud has never been an issue in this case. Basic special interrogatories seeking the facts, witnesses and evidence supporting Plaintiff's claims against Ms. Wilson in her individual capacity were propounded, and responses were received on March 21, 2017. Although the responses have not been fully analyzed and evaluated yet, the alleged facts supporting Plaintiff's claims raise several issues requiring investigation and further discovery. For example, Plaintiff asserts that the existence of the Trust was not disclosed to him at any point before or after he entered into his lease agreement, and that his fellow tenants made rent payments directly to Carrie Wilson. Plaintiff also refused to respond to some of the interrogatories, which will require a meet and confer. My office needs time to fully analyze Plaintiff's responses, conduct follow up discovery, gather evidence, and prepare a defense with respect to Plaintiff's claim that CARRIE WILSON has engaged in fraud and bears personal liability. 5. On March 21, 2017, | sent an e-mail to Plaintiff's counsel giving notice of intent to appear on March 23, 2017 and apply ex parte for a trial continuance and order reopening discovery as to Carrie Wilson. | inquired whether Plaintiff would oppose the application. Plaintiff's counsel indicated that he would appear and oppose and would seek sanctions on the basis that the application is, in reality, a motion for reconsideration. 6. The Court recently issued an order imposing issue sanctions on the Wilson Family Trust only following a motion by Plaintiff. A true and correct copy of that order is attached hereto as Exhibit A. 7. Good cause exists for the granting of a trial continuance. Absent a trial continuance, Carrie Wilson will suffer severe prejudice in that she will be forced to proceed with trial without the opportunity to conduct discovery into plaintiffs new claims and formulate a defense. This severe prejudice can only be alleviated by a trial continuance. Thus, the interests of justice are best served by a continuance. Moreover, the continuance 3 DECLARATION OF KATELYN M. KNIGHT IN SUPPORT OF DEFENDANTS’ EX PARTE APPLICATION FOR TRIAL CONTINUANCE AND ORDER REOPENING DISCOVERYrequested is not lengthy. Defendants request a continuance of 90 to 180 days to permit Carrie Wilson to conduct basic discovery and prepare for trial. | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 23rd day of March, 2017, at San Francisco, California. Katelyn M. Knight 4 DECLARATION OF KATELYN M. KNIGHT IN SUPPORT OF DEFENDANTS' EX PARTE APPLICATION FOR TRIAL CONTINUANCE AND ORDER REOPENING DISCOVERYo ON Oo oOo kk WO ND = 10 EXHIBIT A 5 DECLARATION OF KATELYN M. KNIGHT IN SUPPORT OF DEFENDANTS’ EX PARTE APPLICATION FOR TRIAL CONTINUANCE AND ORDER REOPENING DISCOVERYSUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO, PHILLIP GARCIA, an individual, Case No. CGC-14-538560 Plaintiff, DISCOVERY MOTION v. fLROPOSED} ORDER ON PLAINTIFF’S MOTION TO COMPEL CARRIE WILSON, an individual, and in her RESPONSES TO DISCOVERY AND capacity as trustee of THE WILSON FAMILY REQUESTS FOR SANCTIONS TRUST; SHAUN MARKHAM an individual; ERIKA MARKHAM, an individual; ANGELO Date: March 16, 2017 WILSON, and individual; and DOES 1-20, Time: 9:00 a.m. Dept: 301 Defendants. Judge: B. Douglas Robbins (PT) Action Filed: April 10, 2014 Trial Date: Match 27, 2017 Plaintiff Phillip Garcia’s (“Garcia”) MOTION TO COMPEL RESPONSES TO DISCOVERY AND REQUESTS FOR MONETARY AND NONMONETARY SANCTIONS came before this Court upon a regularly noticed motion on March 16, 2017 in Dept. 301 of the Superior Court of San Francisco. Attorneys Benny Martin appeared for Garcia. Matthew Wisinski appeared for Defendant Carrie Wilson in her individual capacity and in her capacity as trustee of The Wilson ORDER RE MOTION FOR MONETARY AND NONMONETARY SANCTIONS -1-Family Trust (collectively “Wilson”). The Parties stipulated to the authority of the Judge Pro Tem, Douglas Robbins. Having read the moving papers, the opposing papers, and the reply papers, as well as having considered oral argument of counsel and the entire record of this case, the Court hereby FINDS AS FOLLOWS: FINDINGS Issue. At issue are three discovery events, First, Wilson failed to provide substantive responses to Special Interrogatories, Set Four, offering only objections. Second, Wilson failed to provide responses of any kind at her lawfully noticed deposition of February 14, 2017. Third Wilson failed to provide documents requested at that deposition. Written Discovery. Garcia fails to move, nor notice a motion to compel the production of documents or further responses to special interrogatories. As such this Court has no authority to compel those remedies. Garcia does notice and does move for terminating and issue sanctions (declining to move for evidentiary sanctions). But except in extraordinary circumstances, not presented here, the Court is without authority to issue those kinds of sanctions absent violation of a prior court order. See Biles v. Exxon Mobil Corp., 124 Cal. App. 4th 1315, 1327 (2004). The only orders offered by Garcia in evidence are those issued by Judge Quidachay on February 8, 2016, February 9, 2016, and November, 1, 2016. None of these three court orders compel Wilson to produce documents in compliance with a deposition notice. And none of them compel Wilson to respond to Special Interrogatories Set Four. As such this Court is without authority to impose non-monetary sanctions as to those discovery issues. And since Garcia declines to move for other relief—nor provide a code compliant separate statement seeking other relief for that matter—the Court has no authority to grant any other remedy on these issues, Deposition. Garcia moves for issue or terminating sanctions against Defendant as a consequence of her failing to appear and testify at her lawfully noticed deposition (declining to seek ORDER RE MOTION FOR MONETARY AND NONMONETARY SANCTIONS -2-27 28 evidentiary sanctions), Unlike the written discovery, Wilson was, in fact, compelled by court order to appear at her deposition. See Order Denying Philip Garcia’s Motion for Trial Preference, at 1, Nov. 1 2016 (ordering “defendant Carrie Wilson’s deposition to be completed by February 14, 2017). Parties! agree that Ms. Wilson appeared at her lawfully noticed deposition but failed to take the oath and did not respond to questions, The open question is why. Garcia argues that Wilson refused to answer questions for tactical reasons, Wilson’s counsel argues that Ms. Wilson was unable to respond to deposition questions for medical reasons. Wilson offers letters from physicians in support. The first is from Elizabeth Soety, a clinical psychologist who opines that Ms. Wilson suffers from “dementia.” The remaining letters are authored by Dr. Crystal Brown who opines that Ms. Wilson suffers from a variety of physical ailments such as osteoarthritis, degenerative disc diseases, osteoporosis, and zoster. The Crystal Brown letters do not speak to mental capacity. The Soety letter is somewhat vague, failing to clearly state that Ms. Wilson is incompetent or incapable of testifying. More problematic, neither letter is signed under penalty of perjury. Garcia timely objected to the letters based upon hearsay. Wilson’s counsel conceded at hearing the letters are hearsay. Accordingly, Garcia’s objection is SUSTAINED and the letters are struck as hearsay. “A trial court has broad discretion to impose discovery sanctions, but two facts are generally prerequisite to the imposition of nonmonetary sanctions . . . : (1) absent unusual circumstances, there must be a failure to comply with a court order, and (2) the failure must be willful.” Biles v. Exxon Mobil Corp., 124 Cal. App. 4th 1315, 1327 (2004). Here, we have a court order compelling Wilson’s appearance at deposition. She appeared but she did not testify. This failure to testify is sufficient to find violation of the order. Wilson argues, however, that her disobedience of the order was not willful because she suffers from dementia which prevented her from testifying. But there is no admissible evidence of this. To the contrary Wilson has historically taken the position—in motion for trial preference for example—that she was well enough to appear at trial, only getting healthier by the day. Other documentary evidence on the question has ORDER RE MOTION FOR MONETARY AND NONMONETARY SANCTIONS -3-27 28 been struck as hearsay. Thus the Court is left with these basic facts, Wilson appeared, was asked questions at deposition but she did not answer those questions. The Court is without evidence to presume anything more about Wilson’s health, These facts in conjunction with Wilson’s historical failure to execute verifications in support of her discovery responses is sufficient to find willfulness. Wilson argues that Garcia’s motion fails to comply with the Rules of Court for separate statements, A separate statement is required under the rules for “Any motion involving the content of a discovery request or the responses to such a request . . . [involving] issue or evidentiary sanctions.” Cal. R. Ct. 3.1345(a). But a “separate statement is not required when no response has been provided to the request for discovery.” Cal. R. Ct. 3.1345(b). Here Wilson provided no response to any question at deposition. There is nothing to include in the separate statement. No separate statement is required. Monetary Sanctions. Under the Discovery Act, “the court shall impose a monetary sanction . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel . . . unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” Cal. Civ. Proc. Code § 2030.290(c) (interrogatories); Cal. Civ. Proc. Code § 2031.300(c) (request for production of documents); Cal. Civ, Proc. Code § 2025.480(j) (further responses during oral deposition). Here Garcia has prevailed on certain parts of the Instant Motion while Wilson has prevailed on other parts. Each Party prevailed in some sense. Imposition of monetary sanctions would be unjust. ORDER For the forgoing reasons the Court ORDERS as FOLLOWS: 1, The Motion is GRANTED IN PART AND DENIED IN PART. 2, Garcia’s motion for terminating sanctions is DENIED. 3. Evidentiary sanctions are DENIED AS UNSOUGHT. 4. Motion to compel further responses to written discovery is DENIED AS UNSOUGHT. ORDER RE MOTION FOR MONETARY AND NONMONETARY SANCTIONS -4-5. Garcia’s motion for issue sanctions is GRANTED as follows. a. At trial, on Garcia’s wrongful eviction cause of action, it shall be taken as established that Defendant, The Wilson Family Trust’s motive for seeking to recover possession of Garcia’s rental unit was not one of the grounds enumerated in San Francisco Administrative Code § 37.9(a) or (b). The issue of Defendant, The Wilson Family Trust’s, motive for seeking to recover possession of Garcia’s rental unit in knowing violation of San Francisco Administrative Code § 37.9 shall be established. b. At trial on Garcia’s tenant harassment cause of action, it shall be taken as established that Defendant, The Wilson Family Trust acted in bad faith in attempting to coerce Garcia to vacate his rental housing unit. The issue of Defendant The Wilson Family Trust’s bad faith in knowing violation of San Francisco Administrative Code § 37.9 shall be established. c, All other elements continue to be at issue. 6. All Parties’ requests for monetary sanctions are DENIED. IT IS SO ORDERED, Dated: March 17, 2017 Tou b—— Judge Pro ‘em B. Douglas Robbins, THE SUPHRIOR COURT OF CALIFORNIA SAN F CISCO COUNTY ORDER RE MOTION FOR MONETARY AND NONMONETARY SANCTIONS -5-o ON Oo oOo kk WO ND = 10 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO At the time of service, | was over 18 years of age and not a party to this action. | am employed in the County of San Francisco, State of California. My business address is 275 Battery Street, Suite 850, San Francisco, California 94111. On March 23, 2017, | served true copies of the following document(s) described as DECLARATION OF KATELYN M. KNIGHT IN SUPPORT OF DEFENDANTS' EX PARTE APPLICATION FOR TRIAL CONTINUANCE AND ORDER REOPENING DISCOVERY on the interested parties in this action as follows: BY ELECTRONIC SERVICE VIA FILE & SERVEXPRESS: | electronically served the document(s) described above via File & ServeXpress, on the recipients designated on the Transaction Receipt located on the File & ServeXpress website (https:secure.fileandservexpress.com) pursuant to the Court Order establishing the case website and authorizing service of documents. | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on March 23, 2017, at San Francisco, California. Katelyn M. Knight DECLARATION OF KATELYN M. KNIGHT IN SUPPORT OF DEFENDANTS' EX PARTE APPLICATION FOR TRIAL CONTINUANCE AND ORDER REOPENING DISCOVERY