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ELECTRONICALLY
FILED
JOSHUA 8. GOODMAN, ESQUIRE - State Bar #116576 Superior Court of California,
JAMES F. HETHERINGTON, ESQUIRE - State Bar #151331 7
GOODMAN NEUMAN HAMILTON LLP 08/15/2017,
417 Montgomery Street, 10" Floor BY Chane Rei deranea
San Francisco, California 94104 Deputy Clerk
Telephone: (415) 705-0400
Facsimile: (415) 705-0411
Attorneys for Defendant
CARRIE WILSON, individually and in her capacity as
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, Declaration of James Hetherington in
Support of Motion in Limine No. 13 to
vs. Vacate Issue Sanction
CARRIE WILSON, in her capacity as Action Filed: April 10, 2014
Trustee of the WILSON FAMILY
TRUST, et al, Trial Date: August 7, 2017
Defendants.
J, JAMES F. HETHERINGTON, declare as follows:
1. Jama partner of Goodman Neuman Hamilton LLP, counsel for Defendant
CARRIE WILSON, individually and in her capacity as Trustee of the WILSON FAMILY
TRUST in this matter. I am familiar with the events below either through my own
personal experience or from my review of documents provided to me and attached hereto.
Therefore, I am able to competently testify to the following:
2. Attached as Exhibit A is a true and correct copy of a declaration by Crystal
Brown, MD, Defendant Carrie Wilson’s treating physician, dated August 4, 2017,
executed under penalty of perjury.
3. Attached as Exhibit B is a true and correct copy of a declaration by
ale
“HETHERINGTON DECLARATIONCoe NHN DH Bw Ww
Elizabeth M. Soety, Ph.D., dated May 26, 2017, executed under penalty of perjury.
4. Attached as Exhibit C is a true and correct copy of a declaration by Dana
Tom, dated March 2, 2017, executed under penalty of perjury.
5. Attached as Exhibit D is a true and correct copy of a declaration by Cynthia
Markham, Carrie Wilson’s daughter, dated August 4, 2017, executed under penalty of
perjury
6. Attached as Exhibit E is a true and correct copy of the March 27, 2017
Order.
I declare under penalty of perjury that the foregoing is true and correct and that this
f
ON eee
By: za) | NGTON”
2-EXHIBIT “A”JOSHUA S. GOODMAN, ESQUIRE - State Bar #116576
JAMES F. HETHERINGTON, ESQUIRE - State Bar #151331
GOODMAN NEUMAN HAMILTON LLP
417 Montgomery Street, 10" Floor
San Francisco, California 94104
Telephone: (415) 705-0400
Facsimile: (415) 705-0411
Attorneys for Defendant
CARRIE WILSON, individually and in her capacity as
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
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PHILLIP GARCIA, Case No. CGC-14-538560
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Plaintiff, Declaration of Crystal Brown, MD
vs. Action Filed: April 10, 2014
CARRIE WILSON, IN HER Trial Date: August 7, 2017
CAPACITY AS TRUSTEE OF THE
THE WILSON FAMILY TRUST, ET
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Defendants.
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TO ALL PARTIES AND TO THEIR RESPECTIVE ATTORNEYS OF RECORD:
I, Crystal L. Brown MD, declare as follows:
mo yy
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1, Thave been Carrie Wilson's primary care physician for 11 years.
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2. Ms. Wilson is 86 years old. She has significant decline in visual and audio
23 capability. She is deaf in one ear and losing sight in both eyes. She has
24 decreased memory, attention span, and cognitive function. She is no longer
able to read, write and struggles with speech formation and comprehension.
She needs assistance completing activities of daily living and instrumental
activities of daily living. She has history of dementia. After exhibiting
‘sine
Tels (41S) T05-0800 9g worsening of memory and decline in cognitive functions, she was referred to aGoodman
Neuman Hamilton
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417 Montgomery St.
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Neurologist for evaluation and treatment.
3. Itis my professional opinion that Ms. Wilson is not able to make financial
decisions. She is not competent to participate in legal proceedings or trial. She
cannot travel without the help of caretakers.
4. It is also my professional opinion that as of February 13, 2017 Ms. Wilson was
not able to participate in legal proceedings, including testifying under oath. Ms.
Wilson has suffered from these conditions described in this declaration since at
least January 2017.
T declare under the penalty of perjury under the laws of the State Of California,
that the foregoing is true and correct. This declaration was executed in Fort Valley,
Georgia on August 4 2017.
Cota Boil)
Crystat Brown, MD, Family Medical PhysicianEXHIBIT “B”orn & @ & YO NV =
mp ww he bh yoo. & 2 @e 2 ee SB Se
BBERBRRERBRE BR Bee 5 bw BF & BR FS
Matttiow K. Wisinski (SBN 195535)
Katelyn M:. Knight (SBN 264573)
MURCHISON & CUMMING, LLP
275 Battery Street, Suite 850
San Franthseo, California 94111
Téleptiona: (4718) §24-4300
Faosimile; (445) 301-2058
E-Mail: mwisinski@murchisontaw.com
kknight@murchisoniaw.com
Attorneys for. Defendants
ANGELG WILSON, CARRIE WILSON individually and in her
‘capaclty as Trustee of tha WILSON FAMILY
TRUST
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
PHILLIP GARCIA, CASE NO: CGC-14-538660
Plaintiff, DECLARATION OF ELIZABETH M.
SOETY, PH.D.
vs.
: : Action Filed: April 19, 2044
CARRIE WILSON, in her capacity as Trial Date: une 26, 2017
trustea of THE WiIlSON FAMILY TRUST,
SHAUN MARKHAM, ERIKA MARKHAM,
and ANGELO WILSON, and DOES 1-20,
Defendant.
|, Elizabeth Ml. Soety; Ph.D., declare as follows:
4, (am clinical psychologist with fitesn years of experience In the field. | have
personal knowledge of the facts set forth hardin, which are. known by me to be true and
correct, and if called as a witness, | could and would competently teatiy thereto.
2 | recantly completed a nauropsychological evaluation of Catre Wilson, a party
tothis action. As part of the evaluation, | interviewed Ms. Wilson and administered standard
AMNART and RBANS tests to determine her verbal iq and cognitive abilities, Based on my
| examination and evaluation, Ms: Wilson has experianced significant cognitive declined in
her cognitive functioning, including memory, attention, and executive/self-regulatory ability
and clearly meets the criteria for Major Neurocognitive Disorder with Behavioral
Pee eee DECLARATION OF ELIZABETH M, BOETY, PHD,eo mp Yt RP aA PF wD KH A
2
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Disturbance. Ms, Wilson has.difficulties with both understanding-and producing language,
affecting her ability to-communicate, These moderate deficits ato further worsened by
stress, potentially leading to a lack of any communication from Ms. Wilson,
3. It is my expert apinion that Ms. Wilson is unable to manage her financial
resources and'is not competent to participate in legal proceedings.
| declare under penalty of perjury under the laws of the State of Georgia that tha
foregoing is rue and correct.
Executed May2(¢., 2017, at Centerville, Georgia.
05 5/26 | 2017
pith
ei
DECLARATION GF ELIZABETH, ¢
ingsEXHIBIT “C”|
1 || Matthew K. Wisinski (SBN 198535)
Dana L. Tom (SBN 263313) ELECTRONICALLY
2|| Katelyn M. Knight (SBN 264573) FILED
MURCHISON & CUMMING, LLP Supertor Court of Caltromie,
3 || 275 Battery Street, Suite 850 Se ee eee.
|| San Francisco, California 94111 03/03/2017
4 || Telephone: (415) 524-4486 Clerk OF the Court
(415) 524-4313 earn
5 (415) 524-0477 ee
Facsimile: (415) 391-2058
6 |, E-Mail: — mwisinski@murchisonlaw.com
dtom@murchisonlaw.com
7 kknight@murchisonlaw.com
8 || Attorneys for Defendants
ANGELO WILSON, CARRIE WILSON individually and in her
9 || capacity as Trustee of the WILSON FAMILY
40 TRUST, and SHAWN MARKHAM
11 SUPERIOR COURT OF THE STATE OF CALIFORNIA
12 COUNTY OF SAN FRANCISCO
13
14 || PHILLIP GARCIA, | CASE NO. CGC-14-538560
15 | Plaintiff, DECLARATION OF DANA TOM IN
| OPPOSITION TO MOTION TO COMPEL
16) vs. AND IMPOSE SANCTIONS
17} | CARRIE WILSON, in her capacity as Date: March 16, 2017
| trustee of THE WILSON FAMILY TRUST, | Time: 9:00 a.m.
18 | SHAUN MARKHAM, ERIKA MARKHAM, | Dept.: 301/302
and ANGELO WILSON, and DOES 1-20,
49 | Action Filed: April 10, 2014
| Defendants. Trial Date: March 27, 2017
20) = et J
211)
22 I, Dana L. Tom, declare and state:
23 am an attorney-at-law licensed to practice in the State of California and lam an
24] associate with Murchison & Cumming LLP, counsel of record herein for Defendant Carrie
25 Wilson. |am one of the attorneys at our firm responsible for handling the defense of this
26 | matter on behalf of Defendant Carrie Wilson, and, on this basis, and upon such other bases
27 || set forth below, | have personal knowledge of the matters set forth in this Dectaration,
28
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DECLARATION OF DANA TOM IN OPPOSITION TO MOTION TO COMPEL AND IMPOSE SANCTIONSexcept where stated on information and belief, and could and would competently testify to
them under oath if called as a witness.
1. Carrie Wilson appeared for her noticed deposition on February 13, 2017 in
compliance with the Court's prior order. On appearing, it quickly became clear that Ms.
Wilson could not understand and verbalize a response to questioning. | met and conferred
with Plaintiffs counsel during a break in the deposition and 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 and proceeded to ask questions with no response,
| 2. | reviewed all document requests included in Ms. Wilson's notice of deposition
ill requests either sought documents that had already been produced in response to
| discovery, were equally available to the Plaintiff, subject to privilege, or were not in the
possession, custody or control of Ms. Wilson. As such, there was nothing to produce for
deposition.
3. Rather than produce copies of responsive documents, Plaintiff made such
documents available to defense counsel to inspect and copy. The documents were
returned to Plaintiff at his recent deposition.
| declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Executed this 2nd day of March, 2017, at San Francisco, California.
pen So
Dana L. Tom
cell 2
DECLARATION OF DANA TOM IN OPPOSITION TO MOTION TO COMPEL AND IMPOSE SANCTIONSEXHIBIT “D”Goodman
Neuman Hamilton
iP.
“AT Montgomery St.
1
San Francisco, CA
94104
“Feb. (a18) 705-0400
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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
San Francisco, California 94104
Telephone: (415) 705-0400
Facsimile: (415) 705-0411
Attorneys for Defendant
CARRIE WILSON, individually and in her capacity as
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, Declaration of Cynthia Markham
vs. Action Filed: April 10, 2014
CARRIE WILSON, in her capacity as Trial Date: August 7, 2017
‘Trustee of the WILSON FAMILY. ee
TRUST, et al,
Defendants.
TO ALL PARTIES AND TO THEIR RESPECTIVE ATTORNEYS OF RECORD:
I, Cynthia Markham, declare as follows:
1. Iam the daughter of Carrie Wilson. I attended in person the February 13, 2017
deposition of my mother, which was conducted in Macon, Georgia. I also
attended a pre-deposition meeting with my mother and her counsel, Dana Tom,
on February 10, 2017. Ms. Tom attended the pre-deposition meeting
telephonically.
2. At the time of the pre-deposition meeting on February 10, 2017 I advised Ms.
Tom that Carrie Wilson was unable to answer questions posed to her regarding
this lawsuit. Ms. Tom attempted to ask questions to my mother; my motherGoodman
Neuman Hamilton
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“417 Monzgomery St_
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‘94104
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was unable to communicate. Ms. Tom told me the deposition would have to
proceed on February 13, 2017 because Plaintiff counsel had obtained an order
compelling Ms. Wilson’s appearance for deposition.
3. Iwas present at Carrie Wilson’s deposition on February 13, 2017. My mother
was not able to be sworn under oath by the Court reporter due to her inability
to communicate. My mother was unable to respond to questions posed by
Benny Martin, from the start of the deposition at approximately 12:09 p.m.
until it was adjourned at approximately 2:59 p.m. due to her inability to
communicate.
I declare under the penalty of perjury under the laws of the State Of California,
that the foregoing is true and correct. This declaration was executed ir Qomerke.
Georgia on August You.EXHIBIT “E”SUPERIOR COURT OF THE STATE OF CALIFORNIA.
IN AND FOR THE COUNTY OF SAN FRANCISCO
PHILLIP GARCIA, an individual,
Plaintiff,
ve
CARRIE WILSON, an individual, and in her
capacity as trustee of THE WILSON FAMILY
TRUST; SHAUN MARKHAM an individual;
ERIKA MARKHAM, an individual; ANGELO
WILSON, and individual; and DOES 1-20,
Defendants.
Case No. CGC-14-538560
DISCOVERY MOTION
eatin ORDER ON
PLAINTIFF’S MOTION TO COMPEL
RESPONSES TO DISCOVERY AND
REQUESTS FOR SANCTIONS
Date: March 16, 2017
Time: 9:00 a.m.
Dept.: 301
Judge: B. Douglas Robbins (JPT)
Action Filed: April 10, 2014
Trial Date: March 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
~1-27
28
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 Novemb:
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
=2s27
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
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-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
=ds5. Gareia’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 b—
“Laoag
Judge Pro ‘em B. Douglas Robbins,
THE suPghlon COURT OF CALIFORNIA
SAN F CISCO COUNTY
ORDER RE MOTION FOR MONETARY AND NONMONETARY SANCTIONS
~5eSuperior Court of California
County of San Francisco
PHILLIP GARCIA
Plaintiff(s) Case Number: CGC-14-538560
vs.
* CARRIE WILSON, AN INDIVIDUAL, AND IN HER CERTIFICATE OF MAILING
CAPACITY AS TRUSTEE OF THE WILSON (CCP 1013a (4) )
FAMILY TRUST; SHAUN MARKHAM AN :
INDIVIDUAL; ANGELO WILSON, AND
INDIVIDUAL; AND DOES 1- 20,
Defendant(s)
I, Johnny Sengmany, a Deputy Clerk of the Superior Court of the County of San
Francisco, certify that I am not a party to the within action, :
On March 27, 2017, I served the attached ORDER ON PLAINTIFF’S MOTION TO
COMPEL RESPONSES TO DISCOVERY AND REQUEST FOR SANCTIONS, placing a
copy thereof in a sealed envelope, addressed as follows:
MATTHEW K WINSINKI BENJAMIN MARTIN
MURCHISON & CUMMING LLP LAW OFFICES OF BENNY MARTIN
275 BATTERY ST, STE 550 675 SANTA CLARA AVE
SAN FRANCISCO CA 94111 VENICE CA 90291
and, I then placed the sealed envelopes in the outgoing mail at 400 McAllister Street, San Francisco,
CA. 94102 on the date indicated above for collection, attachment of required prepaid postage, andGoodman
Neuman
Hamilton LLP
PROOF OF SERVICE
CASE NAME: Phillip Garcia v. Carrie Wilson, et al.
CASE NUMBER: CGC-14-538560
DATE OF SERVICE: August 4, 2017
DESCRIPTION OF DOCUMENTS SERVED:
DECLARATION OF JAMES F. HETHERINGTON IN SUPPORT OF MOTION IN
LIMINE NO. 13 TO VACATE ISSUE SANCTION
SERVED ON THE FOLLOWING:
[See File & ServeXpress Service List]
lam over the age of 18 years and not a party to or interested in the above-named
case. Tam 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.
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.
(trl
Alesia DeCamp te
PROOF OF SERVICE
Preview
COU Oe NY DH RF wD NY HE 12 ELECTRONICALLY FILED JOSHUA 8. GOODMAN, ESQUIRE - State Bar #116576 Superior Court of California, JAMES F. HETHERINGTON, ESQUIRE - State Bar #151331 7 GOODMAN NEUMAN HAMILTON LLP 08/15/2017, 417 Montgomery Street, 10" Floor BY Chane Rei deranea San Francisco, California 94104 Deputy Clerk Telephone: (415) 705-0400 Facsimile: (415) 705-0411 Attorneys for Defendant CARRIE WILSON, individually and in her capacity as 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, Declaration of James Hetherington in Support of Motion in Limine No. 13 to vs. Vacate Issue Sanction CARRIE WILSON, in her capacity as Action Filed: April 10, 2014 Trustee of the WILSON FAMILY TRUST, et al, Trial Date: August 7, 2017 Defendants. J, JAMES F. HETHERINGTON, declare as follows: 1. Jama partner of Goodman Neuman Hamilton LLP, counsel for Defendant CARRIE WILSON, individually and in her capacity as Trustee of the WILSON FAMILY TRUST in this matter. I am familiar with the events below either through my own personal experience or from my review of documents provided to me and attached hereto. Therefore, I am able to competently testify to the following: 2. Attached as Exhibit A is a true and correct copy of a declaration by Crystal Brown, MD, Defendant Carrie Wilson’s treating physician, dated August 4, 2017, executed under penalty of perjury. 3. Attached as Exhibit B is a true and correct copy of a declaration by ale “HETHERINGTON DECLARATIONCoe NHN DH Bw Ww Elizabeth M. Soety, Ph.D., dated May 26, 2017, executed under penalty of perjury. 4. Attached as Exhibit C is a true and correct copy of a declaration by Dana Tom, dated March 2, 2017, executed under penalty of perjury. 5. Attached as Exhibit D is a true and correct copy of a declaration by Cynthia Markham, Carrie Wilson’s daughter, dated August 4, 2017, executed under penalty of perjury 6. Attached as Exhibit E is a true and correct copy of the March 27, 2017 Order. I declare under penalty of perjury that the foregoing is true and correct and that this f ON eee By: za) | NGTON” 2-EXHIBIT “A”JOSHUA S. GOODMAN, ESQUIRE - State Bar #116576 JAMES F. HETHERINGTON, ESQUIRE - State Bar #151331 GOODMAN NEUMAN HAMILTON LLP 417 Montgomery Street, 10" Floor San Francisco, California 94104 Telephone: (415) 705-0400 Facsimile: (415) 705-0411 Attorneys for Defendant CARRIE WILSON, individually and in her capacity as 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 oC me ND MH BF WN Boe - Oo PHILLIP GARCIA, Case No. CGC-14-538560 — N Plaintiff, Declaration of Crystal Brown, MD vs. Action Filed: April 10, 2014 CARRIE WILSON, IN HER Trial Date: August 7, 2017 CAPACITY AS TRUSTEE OF THE THE WILSON FAMILY TRUST, ET ae YD wn Bw Defendants. eos Oo © TO ALL PARTIES AND TO THEIR RESPECTIVE ATTORNEYS OF RECORD: I, Crystal L. Brown MD, declare as follows: mo yy _ Oo 1, Thave been Carrie Wilson's primary care physician for 11 years. N N 2. Ms. Wilson is 86 years old. She has significant decline in visual and audio 23 capability. She is deaf in one ear and losing sight in both eyes. She has 24 decreased memory, attention span, and cognitive function. She is no longer able to read, write and struggles with speech formation and comprehension. She needs assistance completing activities of daily living and instrumental activities of daily living. She has history of dementia. After exhibiting ‘sine Tels (41S) T05-0800 9g worsening of memory and decline in cognitive functions, she was referred to aGoodman Neuman Hamilton Pe 417 Montgomery St. Sen Francisca, CA, ‘4104 Tel: (415) 705-0400 co Oo ND NM BF WN & NY NN NN He HB ee ee ee eR A BF BN S§ SO we AY DAA FB HH KH S 26 27 28 Neurologist for evaluation and treatment. 3. Itis my professional opinion that Ms. Wilson is not able to make financial decisions. She is not competent to participate in legal proceedings or trial. She cannot travel without the help of caretakers. 4. It is also my professional opinion that as of February 13, 2017 Ms. Wilson was not able to participate in legal proceedings, including testifying under oath. Ms. Wilson has suffered from these conditions described in this declaration since at least January 2017. T declare under the penalty of perjury under the laws of the State Of California, that the foregoing is true and correct. This declaration was executed in Fort Valley, Georgia on August 4 2017. Cota Boil) Crystat Brown, MD, Family Medical PhysicianEXHIBIT “B”orn & @ & YO NV = mp ww he bh yoo. & 2 @e 2 ee SB Se BBERBRRERBRE BR Bee 5 bw BF & BR FS Matttiow K. Wisinski (SBN 195535) Katelyn M:. Knight (SBN 264573) MURCHISON & CUMMING, LLP 275 Battery Street, Suite 850 San Franthseo, California 94111 Téleptiona: (4718) §24-4300 Faosimile; (445) 301-2058 E-Mail: mwisinski@murchisontaw.com kknight@murchisoniaw.com Attorneys for. Defendants ANGELG WILSON, CARRIE WILSON individually and in her ‘capaclty as Trustee of tha WILSON FAMILY TRUST SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO PHILLIP GARCIA, CASE NO: CGC-14-538660 Plaintiff, DECLARATION OF ELIZABETH M. SOETY, PH.D. vs. : : Action Filed: April 19, 2044 CARRIE WILSON, in her capacity as Trial Date: une 26, 2017 trustea of THE WiIlSON FAMILY TRUST, SHAUN MARKHAM, ERIKA MARKHAM, and ANGELO WILSON, and DOES 1-20, Defendant. |, Elizabeth Ml. Soety; Ph.D., declare as follows: 4, (am clinical psychologist with fitesn years of experience In the field. | have personal knowledge of the facts set forth hardin, which are. known by me to be true and correct, and if called as a witness, | could and would competently teatiy thereto. 2 | recantly completed a nauropsychological evaluation of Catre Wilson, a party tothis action. As part of the evaluation, | interviewed Ms. Wilson and administered standard AMNART and RBANS tests to determine her verbal iq and cognitive abilities, Based on my | examination and evaluation, Ms: Wilson has experianced significant cognitive declined in her cognitive functioning, including memory, attention, and executive/self-regulatory ability and clearly meets the criteria for Major Neurocognitive Disorder with Behavioral Pee eee DECLARATION OF ELIZABETH M, BOETY, PHD,eo mp Yt RP aA PF wD KH A 2 = vv Disturbance. Ms, Wilson has.difficulties with both understanding-and producing language, affecting her ability to-communicate, These moderate deficits ato further worsened by stress, potentially leading to a lack of any communication from Ms. Wilson, 3. It is my expert apinion that Ms. Wilson is unable to manage her financial resources and'is not competent to participate in legal proceedings. | declare under penalty of perjury under the laws of the State of Georgia that tha foregoing is rue and correct. Executed May2(¢., 2017, at Centerville, Georgia. 05 5/26 | 2017 pith ei DECLARATION GF ELIZABETH, ¢ ingsEXHIBIT “C”| 1 || Matthew K. Wisinski (SBN 198535) Dana L. Tom (SBN 263313) ELECTRONICALLY 2|| Katelyn M. Knight (SBN 264573) FILED MURCHISON & CUMMING, LLP Supertor Court of Caltromie, 3 || 275 Battery Street, Suite 850 Se ee eee. || San Francisco, California 94111 03/03/2017 4 || Telephone: (415) 524-4486 Clerk OF the Court (415) 524-4313 earn 5 (415) 524-0477 ee Facsimile: (415) 391-2058 6 |, E-Mail: — mwisinski@murchisonlaw.com dtom@murchisonlaw.com 7 kknight@murchisonlaw.com 8 || Attorneys for Defendants ANGELO WILSON, CARRIE WILSON individually and in her 9 || capacity as Trustee of the WILSON FAMILY 40 TRUST, and SHAWN MARKHAM 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SAN FRANCISCO 13 14 || PHILLIP GARCIA, | CASE NO. CGC-14-538560 15 | Plaintiff, DECLARATION OF DANA TOM IN | OPPOSITION TO MOTION TO COMPEL 16) vs. AND IMPOSE SANCTIONS 17} | CARRIE WILSON, in her capacity as Date: March 16, 2017 | trustee of THE WILSON FAMILY TRUST, | Time: 9:00 a.m. 18 | SHAUN MARKHAM, ERIKA MARKHAM, | Dept.: 301/302 and ANGELO WILSON, and DOES 1-20, 49 | Action Filed: April 10, 2014 | Defendants. Trial Date: March 27, 2017 20) = et J 211) 22 I, Dana L. Tom, declare and state: 23 am an attorney-at-law licensed to practice in the State of California and lam an 24] associate with Murchison & Cumming LLP, counsel of record herein for Defendant Carrie 25 Wilson. |am one of the attorneys at our firm responsible for handling the defense of this 26 | matter on behalf of Defendant Carrie Wilson, and, on this basis, and upon such other bases 27 || set forth below, | have personal knowledge of the matters set forth in this Dectaration, 28 4 DECLARATION OF DANA TOM IN OPPOSITION TO MOTION TO COMPEL AND IMPOSE SANCTIONSexcept where stated on information and belief, and could and would competently testify to them under oath if called as a witness. 1. Carrie Wilson appeared for her noticed deposition on February 13, 2017 in compliance with the Court's prior order. On appearing, it quickly became clear that Ms. Wilson could not understand and verbalize a response to questioning. | met and conferred with Plaintiffs counsel during a break in the deposition and 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 and proceeded to ask questions with no response, | 2. | reviewed all document requests included in Ms. Wilson's notice of deposition ill requests either sought documents that had already been produced in response to | discovery, were equally available to the Plaintiff, subject to privilege, or were not in the possession, custody or control of Ms. Wilson. As such, there was nothing to produce for deposition. 3. Rather than produce copies of responsive documents, Plaintiff made such documents available to defense counsel to inspect and copy. The documents were returned to Plaintiff at his recent deposition. | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 2nd day of March, 2017, at San Francisco, California. pen So Dana L. Tom cell 2 DECLARATION OF DANA TOM IN OPPOSITION TO MOTION TO COMPEL AND IMPOSE SANCTIONSEXHIBIT “D”Goodman Neuman Hamilton iP. “AT Montgomery St. 1 San Francisco, CA 94104 “Feb. (a18) 705-0400 Co Oo NA A BR WN 25 26 27 28 JOSHUA S. GOODMAN, ESQUIRE - State Bar #116576 JAMES F. HETHERINGTON, ESQUIRE - State Bar #151331 GOODMAN NEUMAN HAMILTON LLP 417 Montgomery Street, 10" Floor San Francisco, California 94104 Telephone: (415) 705-0400 Facsimile: (415) 705-0411 Attorneys for Defendant CARRIE WILSON, individually and in her capacity as 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, Declaration of Cynthia Markham vs. Action Filed: April 10, 2014 CARRIE WILSON, in her capacity as Trial Date: August 7, 2017 ‘Trustee of the WILSON FAMILY. ee TRUST, et al, Defendants. TO ALL PARTIES AND TO THEIR RESPECTIVE ATTORNEYS OF RECORD: I, Cynthia Markham, declare as follows: 1. Iam the daughter of Carrie Wilson. I attended in person the February 13, 2017 deposition of my mother, which was conducted in Macon, Georgia. I also attended a pre-deposition meeting with my mother and her counsel, Dana Tom, on February 10, 2017. Ms. Tom attended the pre-deposition meeting telephonically. 2. At the time of the pre-deposition meeting on February 10, 2017 I advised Ms. Tom that Carrie Wilson was unable to answer questions posed to her regarding this lawsuit. Ms. Tom attempted to ask questions to my mother; my motherGoodman Neuman Hamilton up “417 Monzgomery St_ t0* Floor San Francisco, CA, ‘94104 ‘Tal. (415) 705-0400 oe IND HA RB WN RN NN Ye ee ee ee ee & WH &=— OO 0 Oo I KH WH & Ww HH —= CS 25 26 27 28 was unable to communicate. Ms. Tom told me the deposition would have to proceed on February 13, 2017 because Plaintiff counsel had obtained an order compelling Ms. Wilson’s appearance for deposition. 3. Iwas present at Carrie Wilson’s deposition on February 13, 2017. My mother was not able to be sworn under oath by the Court reporter due to her inability to communicate. My mother was unable to respond to questions posed by Benny Martin, from the start of the deposition at approximately 12:09 p.m. until it was adjourned at approximately 2:59 p.m. due to her inability to communicate. I declare under the penalty of perjury under the laws of the State Of California, that the foregoing is true and correct. This declaration was executed ir Qomerke. Georgia on August You.EXHIBIT “E”SUPERIOR COURT OF THE STATE OF CALIFORNIA. IN AND FOR THE COUNTY OF SAN FRANCISCO PHILLIP GARCIA, an individual, Plaintiff, ve CARRIE WILSON, an individual, and in her capacity as trustee of THE WILSON FAMILY TRUST; SHAUN MARKHAM an individual; ERIKA MARKHAM, an individual; ANGELO WILSON, and individual; and DOES 1-20, Defendants. Case No. CGC-14-538560 DISCOVERY MOTION eatin ORDER ON PLAINTIFF’S MOTION TO COMPEL RESPONSES TO DISCOVERY AND REQUESTS FOR SANCTIONS Date: March 16, 2017 Time: 9:00 a.m. Dept.: 301 Judge: B. Douglas Robbins (JPT) Action Filed: April 10, 2014 Trial Date: March 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 ~1-27 28 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 Novemb: 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 =2s27 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 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-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 =ds5. Gareia’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 b— “Laoag Judge Pro ‘em B. Douglas Robbins, THE suPghlon COURT OF CALIFORNIA SAN F CISCO COUNTY ORDER RE MOTION FOR MONETARY AND NONMONETARY SANCTIONS ~5eSuperior Court of California County of San Francisco PHILLIP GARCIA Plaintiff(s) Case Number: CGC-14-538560 vs. * CARRIE WILSON, AN INDIVIDUAL, AND IN HER CERTIFICATE OF MAILING CAPACITY AS TRUSTEE OF THE WILSON (CCP 1013a (4) ) FAMILY TRUST; SHAUN MARKHAM AN : INDIVIDUAL; ANGELO WILSON, AND INDIVIDUAL; AND DOES 1- 20, Defendant(s) I, Johnny Sengmany, a Deputy Clerk of the Superior Court of the County of San Francisco, certify that I am not a party to the within action, : On March 27, 2017, I served the attached ORDER ON PLAINTIFF’S MOTION TO COMPEL RESPONSES TO DISCOVERY AND REQUEST FOR SANCTIONS, placing a copy thereof in a sealed envelope, addressed as follows: MATTHEW K WINSINKI BENJAMIN MARTIN MURCHISON & CUMMING LLP LAW OFFICES OF BENNY MARTIN 275 BATTERY ST, STE 550 675 SANTA CLARA AVE SAN FRANCISCO CA 94111 VENICE CA 90291 and, I then placed the sealed envelopes in the outgoing mail at 400 McAllister Street, San Francisco, CA. 94102 on the date indicated above for collection, attachment of required prepaid postage, andGoodman Neuman Hamilton LLP PROOF OF SERVICE CASE NAME: Phillip Garcia v. Carrie Wilson, et al. CASE NUMBER: CGC-14-538560 DATE OF SERVICE: August 4, 2017 DESCRIPTION OF DOCUMENTS SERVED: DECLARATION OF JAMES F. HETHERINGTON IN SUPPORT OF MOTION IN LIMINE NO. 13 TO VACATE ISSUE SANCTION SERVED ON THE FOLLOWING: [See File & ServeXpress Service List] lam over the age of 18 years and not a party to or interested in the above-named case. Tam 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. 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. (trl Alesia DeCamp te PROOF OF SERVICE