Motion-Secondary: PHILLIP GARCIA VS. CARRIE WILSON, IN HER CAPACITCY AS TRUSTEE OF THE et al

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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

Supertor Court of Caltfornia,
County of San Francisco

02/10/2017
Clerk of the Court
BY:BOWMAN LIU
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,

CASE NO. CGC-14-538560

DEFENDANTS MEMORANDUM OF
POINTS & AUTHORITIES IN SUPPORT
OF EX PARTE APPLICATION FOR
TRIAL CONTINUANCE, OR IN THE
ALTERNATIVE FOR ORDER
SHORTENING TIME

and ANGELO WILSON, and DOES 1-20, Date: February 10, 2017
Time: 11:00 a.m.
Defendants. Dept.: 206
Action Filed: April 10, 2014
Trial Date: March 27, 2017
I.
INTRODUCTION

On February 8, 2017, the Court granted Plaintiff leave to amend the complaint to

name Carrie Wilson in her individual capacity as a new defendant. Trial in this matter is set

to go forward in 45 days on March 27, 2017.

While Plaintiff will protest that the only change

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DEFENDANTS MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF EX PARTE
APPLICATION FOR TRIAL CONTINUANCE, Pe MEoe ALTERNATIVE FOR ORDER SHORTENINGo ON Oo oOo kk WO ND =

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to the complaint was the addition of Ms. Wilson as an individual, the amended complaint
has not even been filed yet and defense counsel has had no opportunity to evaluate
Plaintiff's claims against Ms. Wilson personally and counsel anticipates at least a statute of
limitations defense may be asserted by motion. Once the pleadings are at issue, defense
counsel must conduct written discovery to determine all facts, evidence and witnesses
supporting Plaintiff's claims against Ms. Wilson personally and supporting his position that
the WILSON FAMILY TRUST is a fraudulent entity, perform any follow-up discovery, and
prepare for trial. Defendants also seek an order permitting Ms. Wilson's deposition—which
was previously ordered to take place before next Tuesday based on the March 27, 2017
trial date—to take place after the pleadings have been resolved.
I.
BACKGROUND

This is a landlord-tenant and invasion of privacy case arising from PHILIP GARCIA's
tenancy at 1665 Hayes Street in San Francisco, California. Plaintiff initiated this action on
April 10, 2014 by filing a Complaint for damages against SHAWN MARKHAM, Erica
Markham', ANGELO WILSON, and CARRIE WILSON as Trustee of the WILSON FAMILY
TRUST. The Complaint has been amended twice to allege new facts and causes of action.
The Second Amended Complaint was filed January 14, 2016. The Second Amended
Complaint alleges that Plaintiff's noise complaints were not properly addressed during his
tenancy, that fellow tenant SHAWN MARKHAM invaded his privacy by making video and
audio recordings from outside his unit (allegedly at the direction of the Property Manager),
and that a judgment obtained against ANGELO WILSON in a prior action should be
enforced against the WILSON FAMILY TRUST.

At the time of Plaintiffs tenancy, the property was managed by ANGELO WILSON
and owned by Frankie Wilson and Carrie Wilson as Trustees of the WILSON FAMILY

' Erica Markham was later dismissed as a Defendant

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DEFENDANTS MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF EX PARTE
APPLICATION FOR TRIAL CONTINUANCE, Pe MEoe ALTERNATIVE FOR ORDER SHORTENINGo ON Oo oOo kk WO ND =

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TRUST. The WILSON FAMILY TRUST was established many years ago by Carrie's late
husband, Frankie Wilson. Because Mr. Wilson handled the couple's finances and matters
related to the TRUST, Ms. Wilson has relatively little knowledge of it and has been unable to|
locate the TRUST documents. She believes that they may have been lost or misplaced
when the family moved to Georgia.

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. 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.

Il.
ARGUMENT
A. Legal Standard
A request for continuance of trial is addressed to the sound discretion of the Court
and may be granted upon a showing of good cause. California Rules of Court, Rule 3.1332;

Pilot Rock Creek Canal Co. v. Chapman, 11 Cal. 161 (1858). The addition of a new party

who has not had an opportunity to complete discovery constitutes good cause for a
continuance. California Rules of Court, Rule 3.1332(c)(5). Other factors to be considered
by the Court include the proximity of the trial date, length of continuance requested, whether|
all parties have stipulated, whether granting the continuance would be in the interests of
justice, and any other fact or circumstance relevant to the fair determination of the
application. California Rules of Court, Rule 3.1332(d).

The court, on its own motion or on application for an order shortening time supported b

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DEFENDANTS MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF EX PARTE
APPLICATION FOR TRIAL CONTINUANCE, Pe MEoe ALTERNATIVE FOR ORDER SHORTENINGo ON Oo oOo kk WO ND =

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a declaration showing good cause, may prescribe shorter times for the filing and service of
papers than the times specified in Code of Civil Procedure section 1005. Cal. Rules of Court
Rule 3.1300(b). The court is vested with inherent power to control the processes and
proceedings before it by Code of Civil Procedure § 128, which provides in relevant part:

(a) Every court shall have the power to do all the following:

(1)To preserve and enforce order in its immediate process.

(2)To enforce order in the proceedings before it...

(3)To provide for the orderly conduct of the proceedings before it or its
officers.

(4) To amend and control its process and orders so as to make them
conform to law and justice...

B. A Trial Continuance Should be Granted to Provide Time for Defense Counsel to
Evaluate Plaintiff's Claims Against Carrie Wilson in her Personal Capacity,
Respond to the Complaint, Conduct Discovery, and Prepare a Defense
Carrie Wilson will be extremely prejudiced if a continuance of trial is not granted.

Trial is currently set to go forward on March 27, 2017, just 45 days from today. The

amended complaint has not yet been filed. Defense counsel has had no opportunity to

evaluate the new complaint to determine what defenses may be asserted by Ms. Wilson in
her personal capacity, however counsel anticipates that a demurrer on statute of limitations
grounds may be appropriate given that it has been more than three years since the events
giving rise to Plaintiff's claims. Once the pleadings have been resolved and all viable
causes of action against Ms. Wilson are at issue, defense counsel needs time to propound
written discovery on the Plaintiff to determine all facts and evidence supporting his
contention that Carrie Wilson is personally liable for his alleged damages, as well as any
witnesses, perform follow-up discovery, and propound discovery on third parties as
necessary. Because this case has been pending for three years and Ms. Wilson's personal
liability has never been at issue, defense counsel will need to start from ground zero to
evaluate Plaintiff's claims against Ms. Wilson and build a defense. It is not possible to do so

competently with trial 45 days away.

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DEFENDANTS MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF EX PARTE
APPLICATION FOR TRIAL CONTINUANCE, OR IN THE ALTERNATIVE FOR ORDER SHORTENINGo ON Oo oOo kk WO ND =

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Defendants also request an order permitting Ms. Wilson's deposition to take place
after February 14, 2017. The Court previously ordered that Ms. Wilson's deposition go
forward no later than February 14, 2017 based on the March 27, 2017 trial date. Ms.
Wilson's deposition was set for February 13, 2017 in compliance with that order, however
Ms. Wilson is 85 years old and suffers from Osteoarthritis, Osteoporosis, and Degenerative
Disc Disease. She has also undergone hip surgery and surgery for a detached retina
during the course of this action and sitting for deposition poses an extreme burden.
Accordingly, Defendants request that Ms. Wilson's deposition take place after she has had
an opportunity to respond to the complaint and all viable causes of action against her are at
issue.

It is anticipated that Plaintiff will argue Defendants lack standing to seek a trial
continuance based on the addition of Carrie Wilson in her personal capacity as a defendant.
It is well established that a party need not be directly implicated by a proceeding to file

opposing papers. See Aguilar v. Atlantic Richfield Co., 25 Cal.4th 826, 843 (2001)(holding

that any adverse party may oppose a summary judgment motion regardless of whether their
pleadings are at issue). Further, the addition of a new party who has not had a chance to
complete discovery impacts all parties and preparation of the case for trial. Defendants
have sufficient interest to seek a continuance of trial.

Good cause exists to grant relief on an ex parte basis in light of the trial date of
March 27, 2017 and deposition of Ms. Wilson in her capacity as Trustee set to go forward
on Monday. In the alternative, Defendants seek an order shortening time to hear and
respond to the present motion. Any regularly-noticed motion could not be heard until two
weeks before trial. This leaves insufficient time to file any motions pertaining to the
amended complaint and conduct basic discovery needed to present a defense.

IV.
CONCLUSION

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DEFENDANTS MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF EX PARTE
APPLICATION FOR TRIAL CONTINUANCE, Pe MEoe ALTERNATIVE FOR ORDER SHORTENINGo ON Oo oOo kk WO ND =

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For the foregoing reasons, Defendants respectfully request that the Court issue an
order continuing the present trial date and allowing the deposition of Ms. Wilson to be take
after February 14, 2017, or in the alternative an order shortening time to hear and respond
to a motion for trial continuance.

DATED: February __, 2017 MURCHISON & CUMMING, LLP

Dana L. Tom

Katelyn M. Knight

Attorneys for Defendants ANGELO WILSON,
CARRIE WILSON in her capacity as Trustee
of the WILSON FAMILY TRUST, and
SHAWN MARKHAM

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DEFENDANTS MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF EX PARTE
APPLICATION FOR TRIAL CONTINUANCE, Pe MEoe ALTERNATIVE FOR ORDER SHORTENING