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

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JOSHUA S. GOODMAN, ESQUIRE - State Bar #116576
JAMES F. HETHERINGTON, ESQUIRE - State Bar #151331

GOODMAN NEUMAN HAMILTON LLP
417 Montgomery Street, 10"" Floor Bre ONE ee
San Francisco, California 94104 FILED
Telephone: (415) 705-0400 Superior Court of California,
Facsimile: (415) 705-0411 eu OF er sanetece
OR OR Le eoun
Attorneys for Defendant er of ielCou
CARRIE WILSON, individually and in her capacity as eee beeaey clerk
Trustee of the WILSON FAMILY TRUST
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO
PHILLIP GARCIA, Case No. CGC-14-538560
Plaintiff, DEFENDANT’S OPPOSITION TO
PLAINTIFF'S MOTION IN LIMINE
vs. NO. 1 TO EXCLUDE EVIDENCE OR
FACTS NOT DISCLOSED IN
CARRIE WILSON, in her capacity as DISCOVERY)
Trustee of the WILSON FAMIL
TRUST, et al, Action Filed: April 10, 2014
Defendants. Trial Date: August 7, 2017
IL. INTRODUCTION
Plaintiffs motion in limine is an improper attempt to seek evidentiary sanctions at
trial for purported defects in Defendant’s discovery responses. Plaintiff improperly seeks

to preclude the Defendant Carrie Wilson from offering any evidence of matters covered
by the extensive discovery in this case. Defendant has no objection to an order precluding
introduction of matters requested but not disclosed in discovery in general. Indeed,
Defendant has made a similar in limine motion. However Defendant opposes the specific
relief requested by Plaintiff, including exclusion of evidence contained within
Defendant’s prior discovery responses, or evidence produced by other parties in this

action.

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Defendant Carrie Wilson’s Opposition to Plaintiff's Motion In Limine No. #1Il. BACKGROUND
This is a landlord-tenant and invasion of privacy action arising from Plaintiff
PHILLIP GARCIA's tenancy at 1665 Hayes Street, San Francisco (the "Property"). The
property was owned by the Defendant and managed by ANGELO WILSON. ANGELO
WILSON brought an unlawful detainer action against PHILLIP GARCIA in 2013.
During this initial action ANGELO WILSON disclosed video and audio recordings taken
by SHAWN MARKHAM (another tenant) from outside Mr. Garcia's apartment to

demonstrate excessive noise by Plaintiff. These audio and video recordings form the

asis of Plaintiff's privacy claims in the present lawsuit. The unlawful detainer action

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10 |] was unsuccessful, as the Court found that Mr. Wilson failed to meet his burden of proof.
11 | A judgment for attorney's fees was awarded against ANGELO WILSON.

12 On April 10, 2014 Plaintiff filed this action against ANGELO WILSON, CARRIE
13 || WILSON in her capacity as TRUSTEE OF THE WILSON FAMILY TRUST, SHAWN
14|| MARKHAM, and others. On February 10, 2017, Plaintiff amended the complaint to add
15 || CARRIE WILSON as a Defendant in her personal capacity. The operative complaint

16 || asserts causes of action for tenant harassment, invasion of privacy, wrongful eviction, and
17] "enforcement of judgment" of the attorney fee award from the prior action.

18 I. ARGUMENT
Orders barring the introduction of writings and/or witnesses not identified in the

course of discovery are commonly issued and protect the propounding party from
oppression otherwise flowing from subsequent introduction of such evidence at trial.

Thoran v. Johnston & Washer, 29 Cal. App. 3d 270, 274 (1972). Rather than seeking an

order to exclude matters not produced in discovery, Plaintiff seeks to preclude Defendant
from offering "any evidence on matters for which unverified, or improperly verified
responses to discovery were provided." (MIL at 4:4-6.) Because Plaintiff contends that

Gooden ag almost none of the verifications provided by the Defendant were proper, Plaintiff's

Hamilton L

Motion seeks to preclude Defendant from offering evidence on any of the matters

covered in four of the five sets of discovery propounded in this action.

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Verifications from Ms. Wilson prior to receiving Plaintiff's discovery requests.
Responses to Plaintiff's discovery requests were prepared and sent to Ms. Wilson to
review along with a verification to sign each time Plaintiff propounded discovery.
(Knight Decl., 1.) Prior defense counsel has fax confirmation sheets showing that the
verifications dated for 2015 were sent to counsel in 2016. (Knight Decl., Ex. A.) With
respect to the more recently-served discovery for which no verification was provided, the
responses were objection-only and required no verification. Cal. Code Civ. Proc. §
2030.250(a).

Contrary to Plaintiff's claim, he will not be surprised or prejudiced if the facts and
evidence identified in Defendant's responses are introduced at trial. Plaintiff admits he
has received the responses at issue in his motion. Plaintiff offers no legal support for his
assertion that a typo in the date of a verification renders the verification and
corresponding discovery responses invalid. Defendant properly responded to discovery
and provided verifications for those responses.

Such purported defects are the subject of a Motion to Compel, not an exclusion of
evidence provided to Plaintiff in response to discovery. Plaintiff's deadline to compel
discovery responses has expired. "Unless notice of this motion is given within 45 days of
the service of the response, or any supplemental response, or on or before any specific
later date to which the propounding party and the responding party have agreed in
writing, the propounding party waives any right to compel a further response to the
interrogatories." Cal. Code Civ. Proc. § 2030.300(c). Further, it has been held that an
objection based on failure to properly verify a pleading is waived if not raised before

trial. See Zavala v. Board of Trustees, 16 Cal.App.4th 1755, 1761 (1993). The same

policy considerations apply here. Plaintiff had plenty of opportunities to raise this issue
prior to trial. He cannot preclude Defendant from offering any relevant evidence by
raising the issue as a surprise on the eve of trial.

IV. CONCLUSION
Defendant respectfully requests the Court deny Plaintiff's motion and his specific

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Defendant Carrie Wilson’s Opposition to Plaintiff's Motion In Limine No. #1Goodman

Neuman
_Hamilton LLP
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requests for exclusion for the reasons discussed herein.
DATED: August 5, 2017 GOODMAN NEUMAN HAMILTON LLP

OSHUA S. GOODM.
/JAMES F. HETHERINGTON
* Attorneys for Defendant
CARRIE WILSON, individually and in
her capacity as Trustee of the Wilson
Family Trust

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Defendant Carrie Wilson's Opposition to Plaintiff's Motion In Limine No. #1PROOF OF SERVICE
CASE NAME: Phillip Garcia v. Carrie Wilson, et al.
CASE NUMBER: CGC-14-538560
DATE OF SERVICE: August 8, 2017
DESCRIPTION OF DOCUMENTS SERVED:

DEFENDANT'S OPPOSITION TO P LANTIFF'S MOTION IN LIMINE NO. 1 TO
EXCLUDE EVIDENCE OR FACTS NOT DISCLOSED IN DISCOVERY

SERVED ON THE FOLLOWING:

[See File & ServeXpress Service List]

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lam over the age of 18 years and not a party to or interested in the above-named
case. Iam an employee of Goodman Neuman Hamilton LLP, and my business address is
417 Montgomery Street, 10” Floor, San Francisco, CA 94104. On the date stated above,
I served a true copy of the document(s) described above, by E-Mail or Electronic
Transmission: Based on a court order or an agreement of the parties to accept service by
e-mail or electronic transmission, I caused the documents to be sent to the person(s) at the
e-mail address(es) listed above. I did not receive, within a reasonable time after the
transmission, any electronic message or other indication that the transmission was
unsuccessful.

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I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct and that this declaration was executed on the date stated

above.
Alesia DeCamp hue"

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PROOF OF SERVICE