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Matthew K. Wisinski (SBN 195535)
Dana L. Tom (SBN 263313) ELECTRONICALLY
Katelyn M. Knight (SBN 264573) FILED
MURCHISON & CUMMING, LLP Superior Court of Caltfornia,
275 Battery Street, Suite 850 County of San Francisco
San Francisco, California 94111 01/27/2017
Telephone: (415) 524-4486 Clerk of the Court
(41 5) 524-431 3 BY-=SANDRA SCHIRO
Facsimile: (415) 391-2058 ee
E-Mail: — mwisinski@murchisonlaw.com
dtom@murchisonlaw.com
kknight@murchisonlaw.com
Attorneys for Defendants, CARRIE WILSON
in her capacity as Trustee of the WILSON
FAMILY TRUST and SHAWN MARKHAM
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
PHILLIP GARCIA, CASE NO. CGC-14-538560
Plaintiff, DEFENDANTS’ OPPOSITION TO
PLAINTIFF'S MOTION FOR LEAVE TO
vs. AMEND THE COMPLAINT TO NAME
CARRIE WILSON IN HER INDIVIDUAL
CARRIE WILSON, in her capacity as CAPACITY AS A DEFENDANT, OR IN
trustee of THE WILSON FAMILY TRUST, | THE ALTERNATIVE TO SUBSTITUTE
SHAUN MARKHAM, ERIKA MARKHAM, MS. WILSON AS DOE 1
and ANGELO WILSON, and DOES 1-20,
Date: February 8, 2017
Defendants. Time: 9:30 a.m.
Dept.: 501
Action Filed: April 10, 2014
Trial Date: March 27, 2017
I.
INTRODUCTION
Plaintiff seeks leave to amend his complaint to name Carrie Wilson in her individual
capacity the month before this case is set for trial. In support of his Motion, Plaintiff claims
that new facts have come to light establishing that the TRUST is fictional, however Plaintiff
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DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO AMEND THE COMPLAINT TO
NAME CARRIE WILSON IN HER INDIVIDUAL CAPACITY AS A DEFENDANT, OR IN THE
ALTERNATIVE TO SUBSTITUTE MS. WILSON AS DOE 1o ON Oo oOo kk WO ND =
10
relies on discovery responses served almost a full year ago on February 11, 2016 indicating
that the TRUST documents have been lost or misplaced, and public records searches of an
unspecified nature performed at an unspecified time. The fact that Ms. Wilson has been
unable to locate the TRUST documents does not establish that the TRUST does not exist.
Indeed, the grant deed for the property establishes that the WILSON FAMILY TRUST
owned the apartment building where Plaintiff lived at the time of his tenancy. In reality,
Plaintiff is seeking leave to assert a new theory of alter ego liability the month before trial.
Permitting him to do so would be incredibly prejudicial to Defendant and this Motion should
be denied.
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 in her capacity 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 Plaintiffs 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 Plaintiff's tenancy, the property was managed by ANGELO WILSON
and owned by Frankie Wilson and Carrie Wilson as Trustees of the WILSON FAMILY
TRUST. (Knight Decl., Ex. A.) The WILSON FAMILY TRUST was established many years
' Erica Markham was later dismissed as a Defendant
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DEFENDANTS! OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO AMEND THE COMPLAINT TO
NAME CARRIE WILSON IN HER INDIVIDUAL CAPACITY AS A DEFENDANT, OR IN THE
ALTERNATIVE TO SUBSTITUTE MS. WILSON AS DOE 1o ON Oo oOo kk WO ND =
10
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. (Knight Decl., Ex. B.)
Trial in this matter is set for March 27, 2017. On January 9, 2017, Plaintiff filed an ex
parte application for leave to substitute Carrie Wilson in her individual capacity as Doe 1.
The Court found that Plaintiff failed to make a showing of good cause for hearing on an ex
parte basis and denied the application without prejudice. On January 12, 2017, Plaintiff filed
the present motion to amend his complaint, or in the alternative to substitute Carrie Wilson
in her individual capacity as Doe 1.
I.
ARGUMENT
A. Legal Standard
The decision to allow or disallow amendments is within the court's discretion. Cal.
Code Civ. Proc. § 473(a). Courts should require some showing to justify exercise of their
discretionary power to allow amendments to pleadings, however. Baxter v. Riverside
Portland Cement Co., 22 Cal App 199 (1913). "Inexcusable delay in presenting a proposed
amendment...constitutes grounds for denial of leave to amend." Young v. Berry Equip.
Rentals, Inc., 55 Cal.App.3d 35, 39 (1976). Denial of a motion for leave to amend is even
more justified where the moving party has been dilatory and the amendment would result in
prejudice to the opposing party. Hirsa v. Superior Court, 118 Cal. App. 3rd 486, 490 (1981);
Nelson v. Specialty Records, Inc., 11 Cal. App. 3d 126 (1970)(unexcused delay may be the
basis for denying permission to amend pleadings, particularly where the proposed
amendment interjects a new issue that may require further investigation or discovery
procedures).
H/T
Hl
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DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO AMEND THE COMPLAINT TO
NAME CARRIE WILSON IN HER INDIVIDUAL CAPACITY AS A DEFENDANT, OR IN THE
ALTERNATIVE TO SUBSTITUTE MS. WILSON AS DOE 1B. Plaintiff's Request for Leave to Amend his Complaint the Month Before Trial
Should be Denied
Plaintiff's Motion should be denied because he has inexcusably delayed filing any
sort of motion seeking leave to amend until January 9, 2017, knowing that the parties had a
trial date of March 27, 2017. Plaintiff's counsel asserts that the amendment is based on
“recently uncovered facts indicating that Defendant The Wilson Family Tryst is a fraudulent
Trust, and Plaintiff's true landlord is Carrie Wilson." (Notice of Motion at 2:9-11.) However,
a close perusal of his Motion reveals that no new facts have been uncovered. Plaintiff relies
on the discovery responses of CARRIE WILSON in her capacity as Trustee of the WILSON
FAMILY TRUST indicating that no TRUST documents could be located, but those discovery
responses were served on February 11, 2016. (Knight Decl., Ex. B.) The only other "fact"
Plaintiff relies upon is a search of public records supposedly ordered by Plaintiff that
revealed the TRUST does not exist. (Motion at 2:15-18.) Plaintiff does not state what type
of search was performed other than to identify it as a search of public records, or what the
results of the search were. Importantly, Plaintiff also does not state when the search was
performed. Plaintiff has had almost three years in which to conduct discovery into the
TRUST. His decision to seek leave to amend the Complaint right before trial cannot be
justified.
Contrary to Plaintiff's argument, Carrie Wilson will be prejudiced if named as a
defendant in her individual capacity the month before trial. In addition to defending against
Plaintiff's substantive claims of liability, Ms. Wilson would also need to prepare a defense
based on her not being a proper Defendant in her individual capacity. The property owner
at the time of Plaintiff's tenancy was the WILSON FAMILY TRUST. There is no basis for
Ms. Wilson's personal liability as an individual. The close of discovery is February 25, 2017.
Even if Plaintiff is willing to waive the cutoff or respond to written discovery on shortened
time, the trial date leaves insufficient time for Ms. Wilson to seek discovery from non-parties.
HII
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DEFENDANTS! OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO AMEND THE COMPLAINT TO
NAME CARRIE WILSON IN HER INDIVIDUAL CAPACITY AS A DEFENDANT, OR IN THE
ALTERNATIVE TO SUBSTITUTE MS. WILSON AS DOE 1o ON Oo oOo kk WO ND =
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Cc. Plaintiff Does not Meet the Requirements of Section 474 and Therefore Cannot
Substitute Ms. Wilson as a Doe Defendant
Plaintiff cannot substitute Carrie Wilson in her individual capacity as a Doe
Defendant. Code of Civil Procedure § 474 allows a Plaintiff who is ignorant of the identity of
a defendant to sue that individual by a fictitious name, thereby avoiding the statute of
limitations bar. Davis v. Marin, 80 Cal.App.4th 380, 386-387 (2000). Substitution of a Doe
defendant may be challenged on the basis that the plaintiff was not ignorant of the identity
of the proposed defendant at the time the Complaint was filed. Optical Surplus, Inc. v.
Superior Court, 228 Cal.App.3d 776, 783-784 (1991); Maier Brewing Co. v. Flora Crane
Serv., Inc., 270 Cal.App.2d 873, 875 (1969).
Although he may have knowledge of a fictitiously-named defendant's true name, "the
plaintiff is ‘ignorant’ within the meaning of the statute if he lacks knowledge of that person's
connection with the case or with his injuries." GM Corp. v. Superior Court, 48 Cal.App.4th
580, 594 (1996)(emphasis added); See also Breceda v. Gamsby, 267 Cal.App.2d 167 (1968).
For example, in the case of Oakes v. McCarthy Co., 267 Cal.App.2d 231 (1968) the plaintiff
homebuyers brought suit against several parties based on improperly filled soil beneath their
homes, which had moved and caused damage to the house. The plaintiffs were permitted to
substitute as a DOE defendant the soil engineer who had performed the alleged negligent
work. Although the plaintiffs knew the name of an individual and had been told that he did
some kind of engineering work and prepared a written report, they did not know that the
individual was in fact a soil engineer who had performed the original cutting, filling, and
compacting processes. Id. at 253
In this case, Plaintiff was aware of both CARRIE WILSON's identity and of the facts
supporting his claims against her at the time the Complaint was filed in this action. Plaintiffs
theory that the TRUST is a fraudulent entity is essentially an alter ego claim, not a new "fact"
that has come to light.
D. In the Alternative, Defendant Seeks a Continuance of Trial
In the event that the Court grants Plaintiff's ex parte application and permits the
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DEFENDANTS! OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO AMEND THE COMPLAINT TO
NAME CARRIE WILSON IN HER INDIVIDUAL CAPACITY AS A DEFENDANT, OR IN THE
ALTERNATIVE TO SUBSTITUTE MS. WILSON AS DOE 1o ON Oo oOo kk WO ND =
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substitution, Defendant requests that the Court also vacate the current trial date of March
27, 2017 to allow a new trial date to be set. As noted above, Ms. Wilson would need to
obtain discovery not just from Plaintiff regarding his new theory that she is liable in her
personal capacity, but also potentially from third parties to allow for preparation of a
defense. This cannot be accomplished before the present trial date, let alone before the
discovery cutoff.
IV.
CONCLUSION
For the foregoing reasons, Defendant respectfully requests that Plaintiff's Motion be
denied.
DATED: January 26, 2017 MURCHISON & CUMMING, LLP
ow Falck Poiglt
Dana L. Tom
Katelyn M. Knight
Attorneys for Defendants, CARRIE WILSON
in her capacity as Trustee of the WILSON
FAMILY TRUST and SHAWN MARKHAM
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DEFENDANTS! OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO AMEND THE COMPLAINT TO
NAME CARRIE WILSON IN HER INDIVIDUAL CAPACITY AS A DEFENDANT, OR IN THE
ALTERNATIVE TO SUBSTITUTE MS. WILSON AS DOE 1
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o ON Oo oOo kk WO ND = 10 Matthew K. Wisinski (SBN 195535) Dana L. Tom (SBN 263313) ELECTRONICALLY Katelyn M. Knight (SBN 264573) FILED MURCHISON & CUMMING, LLP Superior Court of Caltfornia, 275 Battery Street, Suite 850 County of San Francisco San Francisco, California 94111 01/27/2017 Telephone: (415) 524-4486 Clerk of the Court (41 5) 524-431 3 BY-=SANDRA SCHIRO Facsimile: (415) 391-2058 ee E-Mail: — mwisinski@murchisonlaw.com dtom@murchisonlaw.com kknight@murchisonlaw.com Attorneys for Defendants, CARRIE WILSON in her capacity as Trustee of the WILSON FAMILY TRUST and SHAWN MARKHAM SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO PHILLIP GARCIA, CASE NO. CGC-14-538560 Plaintiff, DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO vs. AMEND THE COMPLAINT TO NAME CARRIE WILSON IN HER INDIVIDUAL CARRIE WILSON, in her capacity as CAPACITY AS A DEFENDANT, OR IN trustee of THE WILSON FAMILY TRUST, | THE ALTERNATIVE TO SUBSTITUTE SHAUN MARKHAM, ERIKA MARKHAM, MS. WILSON AS DOE 1 and ANGELO WILSON, and DOES 1-20, Date: February 8, 2017 Defendants. Time: 9:30 a.m. Dept.: 501 Action Filed: April 10, 2014 Trial Date: March 27, 2017 I. INTRODUCTION Plaintiff seeks leave to amend his complaint to name Carrie Wilson in her individual capacity the month before this case is set for trial. In support of his Motion, Plaintiff claims that new facts have come to light establishing that the TRUST is fictional, however Plaintiff 1 DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO AMEND THE COMPLAINT TO NAME CARRIE WILSON IN HER INDIVIDUAL CAPACITY AS A DEFENDANT, OR IN THE ALTERNATIVE TO SUBSTITUTE MS. WILSON AS DOE 1o ON Oo oOo kk WO ND = 10 relies on discovery responses served almost a full year ago on February 11, 2016 indicating that the TRUST documents have been lost or misplaced, and public records searches of an unspecified nature performed at an unspecified time. The fact that Ms. Wilson has been unable to locate the TRUST documents does not establish that the TRUST does not exist. Indeed, the grant deed for the property establishes that the WILSON FAMILY TRUST owned the apartment building where Plaintiff lived at the time of his tenancy. In reality, Plaintiff is seeking leave to assert a new theory of alter ego liability the month before trial. Permitting him to do so would be incredibly prejudicial to Defendant and this Motion should be denied. 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 in her capacity 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 Plaintiffs 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 Plaintiff's tenancy, the property was managed by ANGELO WILSON and owned by Frankie Wilson and Carrie Wilson as Trustees of the WILSON FAMILY TRUST. (Knight Decl., Ex. A.) The WILSON FAMILY TRUST was established many years ' Erica Markham was later dismissed as a Defendant 2 DEFENDANTS! OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO AMEND THE COMPLAINT TO NAME CARRIE WILSON IN HER INDIVIDUAL CAPACITY AS A DEFENDANT, OR IN THE ALTERNATIVE TO SUBSTITUTE MS. WILSON AS DOE 1o ON Oo oOo kk WO ND = 10 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. (Knight Decl., Ex. B.) Trial in this matter is set for March 27, 2017. On January 9, 2017, Plaintiff filed an ex parte application for leave to substitute Carrie Wilson in her individual capacity as Doe 1. The Court found that Plaintiff failed to make a showing of good cause for hearing on an ex parte basis and denied the application without prejudice. On January 12, 2017, Plaintiff filed the present motion to amend his complaint, or in the alternative to substitute Carrie Wilson in her individual capacity as Doe 1. I. ARGUMENT A. Legal Standard The decision to allow or disallow amendments is within the court's discretion. Cal. Code Civ. Proc. § 473(a). Courts should require some showing to justify exercise of their discretionary power to allow amendments to pleadings, however. Baxter v. Riverside Portland Cement Co., 22 Cal App 199 (1913). "Inexcusable delay in presenting a proposed amendment...constitutes grounds for denial of leave to amend." Young v. Berry Equip. Rentals, Inc., 55 Cal.App.3d 35, 39 (1976). Denial of a motion for leave to amend is even more justified where the moving party has been dilatory and the amendment would result in prejudice to the opposing party. Hirsa v. Superior Court, 118 Cal. App. 3rd 486, 490 (1981); Nelson v. Specialty Records, Inc., 11 Cal. App. 3d 126 (1970)(unexcused delay may be the basis for denying permission to amend pleadings, particularly where the proposed amendment interjects a new issue that may require further investigation or discovery procedures). H/T Hl 3 DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO AMEND THE COMPLAINT TO NAME CARRIE WILSON IN HER INDIVIDUAL CAPACITY AS A DEFENDANT, OR IN THE ALTERNATIVE TO SUBSTITUTE MS. WILSON AS DOE 1B. Plaintiff's Request for Leave to Amend his Complaint the Month Before Trial Should be Denied Plaintiff's Motion should be denied because he has inexcusably delayed filing any sort of motion seeking leave to amend until January 9, 2017, knowing that the parties had a trial date of March 27, 2017. Plaintiff's counsel asserts that the amendment is based on “recently uncovered facts indicating that Defendant The Wilson Family Tryst is a fraudulent Trust, and Plaintiff's true landlord is Carrie Wilson." (Notice of Motion at 2:9-11.) However, a close perusal of his Motion reveals that no new facts have been uncovered. Plaintiff relies on the discovery responses of CARRIE WILSON in her capacity as Trustee of the WILSON FAMILY TRUST indicating that no TRUST documents could be located, but those discovery responses were served on February 11, 2016. (Knight Decl., Ex. B.) The only other "fact" Plaintiff relies upon is a search of public records supposedly ordered by Plaintiff that revealed the TRUST does not exist. (Motion at 2:15-18.) Plaintiff does not state what type of search was performed other than to identify it as a search of public records, or what the results of the search were. Importantly, Plaintiff also does not state when the search was performed. Plaintiff has had almost three years in which to conduct discovery into the TRUST. His decision to seek leave to amend the Complaint right before trial cannot be justified. Contrary to Plaintiff's argument, Carrie Wilson will be prejudiced if named as a defendant in her individual capacity the month before trial. In addition to defending against Plaintiff's substantive claims of liability, Ms. Wilson would also need to prepare a defense based on her not being a proper Defendant in her individual capacity. The property owner at the time of Plaintiff's tenancy was the WILSON FAMILY TRUST. There is no basis for Ms. Wilson's personal liability as an individual. The close of discovery is February 25, 2017. Even if Plaintiff is willing to waive the cutoff or respond to written discovery on shortened time, the trial date leaves insufficient time for Ms. Wilson to seek discovery from non-parties. HII //1 4 DEFENDANTS! OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO AMEND THE COMPLAINT TO NAME CARRIE WILSON IN HER INDIVIDUAL CAPACITY AS A DEFENDANT, OR IN THE ALTERNATIVE TO SUBSTITUTE MS. WILSON AS DOE 1o ON Oo oOo kk WO ND = 10 Cc. Plaintiff Does not Meet the Requirements of Section 474 and Therefore Cannot Substitute Ms. Wilson as a Doe Defendant Plaintiff cannot substitute Carrie Wilson in her individual capacity as a Doe Defendant. Code of Civil Procedure § 474 allows a Plaintiff who is ignorant of the identity of a defendant to sue that individual by a fictitious name, thereby avoiding the statute of limitations bar. Davis v. Marin, 80 Cal.App.4th 380, 386-387 (2000). Substitution of a Doe defendant may be challenged on the basis that the plaintiff was not ignorant of the identity of the proposed defendant at the time the Complaint was filed. Optical Surplus, Inc. v. Superior Court, 228 Cal.App.3d 776, 783-784 (1991); Maier Brewing Co. v. Flora Crane Serv., Inc., 270 Cal.App.2d 873, 875 (1969). Although he may have knowledge of a fictitiously-named defendant's true name, "the plaintiff is ‘ignorant’ within the meaning of the statute if he lacks knowledge of that person's connection with the case or with his injuries." GM Corp. v. Superior Court, 48 Cal.App.4th 580, 594 (1996)(emphasis added); See also Breceda v. Gamsby, 267 Cal.App.2d 167 (1968). For example, in the case of Oakes v. McCarthy Co., 267 Cal.App.2d 231 (1968) the plaintiff homebuyers brought suit against several parties based on improperly filled soil beneath their homes, which had moved and caused damage to the house. The plaintiffs were permitted to substitute as a DOE defendant the soil engineer who had performed the alleged negligent work. Although the plaintiffs knew the name of an individual and had been told that he did some kind of engineering work and prepared a written report, they did not know that the individual was in fact a soil engineer who had performed the original cutting, filling, and compacting processes. Id. at 253 In this case, Plaintiff was aware of both CARRIE WILSON's identity and of the facts supporting his claims against her at the time the Complaint was filed in this action. Plaintiffs theory that the TRUST is a fraudulent entity is essentially an alter ego claim, not a new "fact" that has come to light. D. In the Alternative, Defendant Seeks a Continuance of Trial In the event that the Court grants Plaintiff's ex parte application and permits the 5 DEFENDANTS! OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO AMEND THE COMPLAINT TO NAME CARRIE WILSON IN HER INDIVIDUAL CAPACITY AS A DEFENDANT, OR IN THE ALTERNATIVE TO SUBSTITUTE MS. WILSON AS DOE 1o ON Oo oOo kk WO ND = 10 substitution, Defendant requests that the Court also vacate the current trial date of March 27, 2017 to allow a new trial date to be set. As noted above, Ms. Wilson would need to obtain discovery not just from Plaintiff regarding his new theory that she is liable in her personal capacity, but also potentially from third parties to allow for preparation of a defense. This cannot be accomplished before the present trial date, let alone before the discovery cutoff. IV. CONCLUSION For the foregoing reasons, Defendant respectfully requests that Plaintiff's Motion be denied. DATED: January 26, 2017 MURCHISON & CUMMING, LLP ow Falck Poiglt Dana L. Tom Katelyn M. Knight Attorneys for Defendants, CARRIE WILSON in her capacity as Trustee of the WILSON FAMILY TRUST and SHAWN MARKHAM 6 DEFENDANTS! OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO AMEND THE COMPLAINT TO NAME CARRIE WILSON IN HER INDIVIDUAL CAPACITY AS A DEFENDANT, OR IN THE ALTERNATIVE TO SUBSTITUTE MS. WILSON AS DOE 1