Document for 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

2|| GOODMAN NEUMAN HAMILTON LLP
417 Montgomery Street, 10" Floor FEES TRONIEAEEY,
3 || San Francisco, California 94104 FILED
Telephone: (415) 705-0400 Superior Court of Catifornia,
4|| Facsimile: (415) 705-0411 eee
OB Oe 12047,
5 || Attorneys for Defendant er of ielCou
CARRIE WILSON, individually and in her capacity as Pee beeaey clerk
6|| Trustee of the WILSON FAMILY TRUST
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8
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA.
9
IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO
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3 PHILLIP GARCIA, Case No. CGC-14-538560
1
Plaintiff, DEFENDANTS' OPPOSITION TO
3 PLAINTIFF'S MOTION IN LIMINE
vs. NO. 2 TO COMPEL THE
14 7 ATTENDANCE OF CARRIE WILSON
CARRIE WILSON, in her capacity as AT TRIAL AND PRODUCTION OF
5 || Trustee of the WILSON FAMIL THINGS
TRUST, et al,
16 Action Filed: April 10, 2014
Defendants.
7 Trial Date: August 7, 2017
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9 I. INTRODUCTION
20 CARRIE WILSON is an 86 year-old woman suffering from dementia, as well as

21 || other physical and cognitive impairments that prevent her from travelling and disqualify
22 || her as a witness. Defendant also resides in Georgia. Plaintiff personally served

23 || Defendant with a Notice to Attend Trial under Code of Civil Procedure § 1987 at her

24 || February 13, 2017 deposition, and served her counsel with the same. It is well
established that a §1987 Notice to Attend Trial is insufficient to command the presence of
an out-of-state witness, even where the witness is a party. Code Civ. Proc. § 1989;

Amoco Chemical Co. v. Certain Underwriters at Lloyd's of London, 34 Cal.App.4th 554

(1995),

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Defendant Carrie Wilson’s Opposition to Plaintiffs Motion In Limine No. #2Goodman

Neaman

Hamilton LLP.

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Plaintiff offers no legal support for his contention that an out-of-state party who
objects to providing their address in discovery need not be properly served with a
subpoena for their appearance at trial to be required. Even if Ms. Wilson had been
properly subpoenaed, defense counsel would have immediately filed a motion to quash as
Ms. Wilson's health prevents her from travelling to California for trial and her cognitive
impairments preclude her from offering testimony as a witness. This Motion should be
denied.

Hi. BACKGROUND

A. RELEVANT FACTS
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 Defendant and managed by ANGELO WILSON. ANGELO
WILSON brought an unlawful detainer action against PHILLIP GARCIA. During the
initial action ANGELO WILSON introduced 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
basis of Plaintiff's privacy claims in the present lawsuit. The unlawful detainer action
was unsuccessful—the Court found that Mr. Wilson failed to meet his burden of proof—
and resulted in a judgment for attorney's fees being awarded against ANGELO WILSON.

On April 10, 2014 Plaintiff filed this action against ANGELO WILSON, CARRIE
WILSON in her capacity as Trustee of the WILSON FAMILY TRUST, SHAWN
MARKHAM, and others. On February 10, 2017, Plaintiff amended the complaint to add
CARRIE WILSON as a Defendant in her personal capacity. The operative complaint
asserts causes of action for tenant harassment, invasion of privacy, wrongful eviction, and
"enforcement of judgment”. ANGELO WILSON filed a petition for bankruptcy on April
20, 2015.

B. MS. WILSON'S INABILITY TO TRAVEL AND GIVE TESTIMONY AS A WITNESS
CARRIE WILSON is 86 years old and suffers from multiple medical issues

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preventing her from traveling to San Francisco and testifying in this action. Due to her
incapacity a Guardian ad litem has been appointed to represent her interests in this action.
Ms. Wilson's primary care physician Dr. Crystal Brown opined that Ms. Wilson would be
unable to sit for deposition. Ms. Wilson was evaluated by Elizabeth Socty, M.D., who is
a clinical psychologist specializing in neuropsychological testing and counseling. Dr.
Soety concluded that Ms. Wilson is suffering from dementia. Further, due to Ms.
Wilson's declining mental health, she has difficulty understanding and producing
language, which is exacerbated by stress and can result in her being unable to
communicate at all: Dr. Soety stated these findings in a letter, which is submitted
herewith. (Knight Decl., Ex. B.)

The effects of Ms. Wilson's condition were seen at her February 13, 2017
deposition. The Court reporter was unable to swear Ms. Wilson in as a witness, as Ms.
Wilson was unable to understand and respond. Plaintiff's counsel proceeded to question
Ms. Wilson for three hours without response. Defense counsel requested that the
deposition be halted on the basis that Ms. Wilson was not qualified to testify as a witness
under Evidence Code § 701. Plaintiff's counsel refused to halt the deposition. (Knight
Decl., § 3.)

i. ARGUMENT
Plaintiff's argues that Ms. Wilson should be compelled to appear for trial because

she objected to providing her home address in discovery. The only case law cited in

support of his argument is the case of Campain v. Safeway Stores, Inc., 29 Cal.App.3d
362, 366 (1972), which does not stand for this proposition. Instead, Campain involves a
reversal where the Plaintiff was erroneously permitted to make a claim for loss of
earnings despite verified discovery responses indicating that no claim for loss of earnings
was being made. The case is not analogous or in any way applicable here.

Plaintiff also argues that Defendant should be estopped from claiming that she is a
non-resident of California because she objected to providing her home address in

discovery, Plaintiff similarly offers no legal authority to support his position. Plaintiff's

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remedy on encountering a discovery objection he believed to be improper was a motion
compelling a further response. At this late stage, 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).

Plaintiff next argues that Defendant was properly served with a Notice to Attend
Trial pursuant to under Code of Civil Procedure § 1987, however it is well established
that notice pursuant to Section 1987 is not sufficient to compel the attendance of a party
who resides out of state. Code of Civil Procedure § 1989 provides that "[a] witness,
including a witness specified in subdivision (b) of Section 1987, is not obliged to attend
as a witness before any court, judge, justice or any other officer, unless the witness is a

resident within the state at the time of service." The term "witness" includes a witness

who also happens to be a party to the action. Zwin Lock, Inc. v. Superior Court, 52
Cal.2d 754, 759 (1959). The application of Section 1989 to a non-resident defendant was

considered by the Court in Amoco Chemical Co. v. Certain Underwriters at Lloyd's of

London, 34 Cal.App.4th 554 (1995). The Court unequivocally held that "section 1989 of
the Code of Civil Procedure means what it says--a witness is not obliged to appear in
court in California unless he is a resident of the state at the time of service. For this
reason, a notice to attend trial and bring documents (§ 1987, subds. (b), (c)) served on the
custodian of records of a nonresident party is void and unenforceable." Id. at 555.
Defendant is not a resident of the State of California. As such, the Notice to Appear at
Trial served on Ms. Wilson is void and unenforceable.

Plaintiff attempts to distinguish Amoco Chemical Co. v. Certain Underwriters at
Lloyd's of London on the basis that the case involved a notice served on the parties'

counsel, rather than personally served, and cites Target National Bank v. Rocha, 216

Cal.App.4th Supp. 1, 2 (2013) for the proposition that a personally served Notice to

4.

“Defendant Carrie Wilson’s Opposition to Plaintiff's Motion In Limine No. #2Coe I A

Attend Trial is the only way to compel a non-resident to appear at trial. Target National
Bank v. Rocha does not stand for the proposition that a non-resident party may be
compelled to appear at trial when personally served with a Notice to Appear under

Section 1987. The Court in Target National Bank v. Rocha held that a declaration under

Code of Civil Procedure § 98 was inadmissible at trial where the declarant was not
available for service within 150 miles of the courthouse. The Court also rejected
counsel's argument that the witness could have been compelled to attend trial by service
of a Notice to Appear at Trial under Section 1987 because the witness was not a party.
The case has nothing to do with the issue at hand and it is not clear why Plaintiff cited it
as pertinent authority.

Plaintiff was not prejudiced by not having Ms. Wilson's home address for two
reasons: First, Ms. Wilson personally appeared for her deposition on February 13, 2017.
At that time, she was personally served with a Notice to Attend Trial. Plaintiff could
have just as easily served a subpoena instead. He chose not to. Second, even if Plaintiff
had served Ms. Wilson with a subpoena to attend trial, counsel would have moved on her
behalf to quash the subpoena due to her inability to travel and lack of capacity to give
testimony as a witness under Evidence Code § 701.

IV. CONCLUSION
Defendant respectfully requests that Plaintiff's Motion to compel Defendant to trial

be denied.
DATED: August 5, 2017 GOODMAN NEUMAN HAMILTON LLP

By: :
JOSHUA S. GOOIM
AAMES F. HETHERINGTON
/ Attorneys for Defendant
CARRIE WILSON, individually and in
her capacity as Trustee of the Wilson
Family Trust

“Se

Defendant Carrie Wilson’s Opposition to Plaintiff's Motion In Limine No. #2PROOF 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:

DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 2 TO
COMPEL THE ATTENDANCE OF CARRIE WILSON AT TRIAL AND
PRODUCTION OF THINGS

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