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oo oN Oo oO FB YS DN
Matthew K. Wisinski (SBN 195535)
Katelyn M. Knight (SBN 264573)
Dea Hanen oie Sete nea ce ELECTRONICALLY
attery Street, Suite
San Francisco, California 94111 et eee
Telephone: (415) 524-4300 County of San Francisco
Facsimile: (415) 391-2058 05/31/ 2017
E-Mail; — mwisinski@murchisonlaw.com Clerk of the Court
kknight@murchisonlaw.com BY: VANESSA WU
Deputy Clerk
Attorneys for Defendants
ANGELO WILSON, CARRIE WILSON individually and in her
capacity as Trustee of the WILSON FAMILY
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
PHILLIP GARCIA, CASE NO. CGC-14-538560
Plaintiff, DECLARATION OF KATELYN M.
KNIGHT IN SUPPORT OF EX PARTE
vs. APPLICATION
CARRIE WILSON, in her capacity as Date: June 1, 2017
trustee of THE WILSON FAMILY TRUST, Time: 11:00 a.m.
SHAUN MARKHAM, ERIKA MARKHAM, Dept.: 501
and ANGELO WILSON, and DOES 1-20,
Action Filed: April 10, 2014
Defendants. Trial Date: June 26, 2017
|, Katelyn M. Knight, declare and state:
| am an attorney-at-law licensed to practice in the State of California and | am an
associate with Murchison & Cumming LLP, counsel of record herein for Carrie Wilson in her
individual capacity and as Trustee of the Wilson Family Trust, and Angelo Wilson. | am one
of the attorneys at our firm responsible for handling the defense of this matter on behalf of
Carrie Wilson in her individual capacity and as Trustee of the Wilson Family Trust, and
Angelo Wilson, and, on this basis, and upon such other bases set forth below, | have
personal knowledge of the matters set forth in this Declaration, except where stated on
information and belief, and could and would competently testify to them under oath if called
as a witness.
eee 4 :
DECLARATION OF KATELYN M. KNIGHT IN SUPPORT OF EX PARTE APPLICATIONoo oO N OOH OP BOON
Rw NM RNY NYY NY NY NY & B& & B 2B 2B Ba aA A
on OW GH F&F WOW NH |= OG O© BN DW HF BF WO ND =
1. Carrie Wilson is 85 years old and suffers from Osteoarthritis, Osteoporosis,
and Degenerative Disc Disease. Over the course of this action, Ms. Wilson underwent hip
surgery and surgery for a detached retina. While recovering from surgery, Ms. Wilson
developed a severe shingles infection. Ms. Wilson's primary care physician Dr. Crystal
Brown opined that Ms. Wilson would be unable to sit for deposition during her recovery from
the surgeries and provided multiple letters to that effect. While Ms. Wilson's shingles
infection was raging, Dr. Brown strongly advised against proceeding with a deposition as
sitting for even two hours would be extremely difficult, and she estimated that Ms. Wilson
would only be able to be attentive and respond to questions for perhaps 15 minutes due to
her ongoing pain, discomfort, fatigue, and medications. The deposition was put off multiple
times to allow Ms. Wilson time to heal from her surgeries and for her condition to improve,
and in each instance was based on the medical opinion of her treating physician.
2, Carrie Wilson's health has deteriorated over the course of this action. . Ms.
Wilson was recently evaluated by Elizabeth Soety, M.D., who is a clinical psychologist
specializing in neuropsychological testing and counseling. Dr. Soety concluded that Ms.
Wilson is suffering from dementia and lacks capacity to make legal decisions. 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. Attached hereto as Exhibit A is a true and correct copy of the
declaration of Dr. Elizabeth Soety. Attached hereto as Exhibit B is a letter from Dr.
Elizabeth Soety regarding Carrie Wilson's condition.
3. Carrie Wilson appeared for her deposition on February 13, 2017 pursuant to a
prior Court order. The Court reporter attempted to swear Ms. Wilson in as a witness,
however Ms. Wilson was unable to understand and respond and so the oath was never
administered. Despite this, Plaintiff's counsel proceeded to question Ms. Wilson, who
continued to be unable to understand and respond to questions. During a break, defense
counsel Dana Tom conferred with Plaintiff's counsel by phone and requested that the
deposition be halted on the basis that Ms. Wilson was not qualified to testify as a witness
2 = pe
DECLARATION OF KATELYN M. KNIGHT IN SUPPORT OF EX PARTE APPLICATIONunder Evidence Code § 701, which provides that a witness is disqualified from providing
testimony under oath where the witness is either incapable of expressing herself concerning
the matter so as to be understood, or incapable of understanding the duty of a witness to tell
the truth. Plaintiffs counsel refused to halt the deposition. Defense counsel's objection was
put on the record and Plaintiff's counsel continued his questioning without any response. |
was in Ms. Tom's office during her meet and confer with Plaintiffs counsel and when she
put the objection on the record.
4, On March 17, 2017, the Court granted the motion in part and denied it in part.
A true and correct copy of the sanctions order is attached hereto as Exhibit C. At the time
the sanctions order was issued, trial in this matter was set for March 27, 2017. Defendant
filed a writ of mandate, which was denied on procedural grounds. Trial was reset to April
10, 2017 as a consequence of the writ
5. On May 30", 1 sent an e-mail to Plaintiff's counsel giving notice of the relief
sought by this ex parte application and the date, time, location where it would be presented.
Plaintiff's counsel indicated that he could not determine whether or not he would appear and
oppose before seeing the moving papers. | spoke with counsel for Shawn Markham by
telephone, who indicated that he does not oppose the application.
| declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Executed this 31st day of May, 2017, at San Francisco, California.
Cth pK
Ratelyn M. Knight ~ =
re eee 3
DECLARATION OF KATELYN M. KNIGHT IN SUPPORT OF EX PARTE APPLICATION=
o ON Oo nO F&F WS DN
10
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO
At the time of service,| was over 18 years of age and not a party to this action. | am
employed in the County of San Francisco, State of California. My business address is 275
Battery Street, Suite 850, San Francisco, California 94111.
On May 31, 2017, | served true copies of the following document(s) described as
DECLARATION OF KATELYN M. KNIGHT IN SUPPORT OF EX PARTE APPLICATION
on the interested parties in this action as follows:
BY ELECTRONIC SERVICE VIA FILE & SERVEXPRESS: | electronically served the
document(s) described above via File & ServeXpress, on the recipients designated on the
Transaction Receipt located on the File & ServeXpress website
(https:secure.fileandservexpress.com) pursuant to the Court Order establishing the case
website and authorizing service of documents.
| declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Executed on May 31, 2017, at San Francisco, ee
/
f ve
Ae
if
‘Meuy S. Sabthao
DECLARATION OF KATELYN M, KNIGHT IN SUPPORT OF EX PARTE APPLICATIONEXHIBIT A4 || Matthew K. Wisinski (SBN 195535)
FE
E-Mait
San Franc
Telephone: (415) 524-4300
Facsimile, (415) 391-2058
Katelyn M. Knight (SBN 264573)
2 || MURGHISON & CUMMING, LLP
i 275 Battery Street, Suite 850
3
0, California 94747
mwisinski@murchisoniaw.com
kknight @murchisoniaw.com
Attorneys for Defendants
ANGELO WILSON, CARRIE WILSON individually and in her
7 | capacity as Trustee of the WILSON FAMILY
TRUST
a}
9 | SUPERIOR COURT OF THE STATE OF CALIFORNIA
40 | COUNTY OF SAN FRANCISCO
H
141]
12 i PHILLIP GARCIA, CASE NO, CGC-14-538560
43 i Plaintiff, | DECLARATION OF ELIZABETH M.
| | SOETY, PH.D,
14) vs. |
| Action Filed: April 10, 2014
15 || CARRIE WILSON, in her capacity as | Trial Date: dune 26, 2017
| trustee of THE WILSON FAMILY TRUST, |
16 || SHAUN MARKHAM, ERIKA MARKHAM, |
and ANGELO WILSON, and DOES 1-20. |
17} |
{ Defendants. i
SB eae eet eel et ea
19] 1, Elizabeth M. Soety, Ph.D., declare as follows
a 4. jar clinical psychologist with fifteen years of experience in the field. { have
21 1 personal knowiedge of the facts set forth herein, which are known by nie to be true and
22" correct, and if called as a witness, | could and would competently testify thereto,
it
23) 2
t recently compisted a newropsychological evaluation of Carrie Wilson, a party
24 4 to this action. As part of the evaluation, | interviewed Ms. Wilson and administered standard)
25 | AMNART and RBANS tests to determine her verbal iq and cognitive abilities. Based on my
26 | examination and evaluation, Ms. Wilson has experienced significant cognitive declined in
27 || her cognitive functioning, including memory, attention, and executive/self-reguiatory ability
|
28 || and clearly meets the criteria for Major Neurocognitive Disorder with Behavioral
army Tie
DECLARATION OF ELIZABETH M. SOETY. PH.D.
|8
a7
Disturbance. Ms, Wilson has difficulties with both understanding and producing language,
affecting her ability to communicate. These moderate deficits are further worsened by
stress, potentially leading to a lack of any communication from Ms. Wilson.
3. jtis my expert opinion that Ms. Wilson is unable to manage her financial
resources and is not competent to participate in legal proceedings.
| Geclare under penalty of perjury under ihe laws of the State of Georgia that the
foregoing is true and correct.
Executed May /{:, 2017, at Centerville, Georgia.
BECLARATION GF Biz heaniw soety: neeEXHIBIT BNeuropsychological Testing and Counseling, 1.).C
Elizabeth M. Soety, Ph.D.
102 Gunn Road
Centerville, GA 31028
(478) 953-0083
February 27,2017
‘To Wham It May Concern:
Per my evaluation. Mrs. Wilson clearly met criteria for Major Neurocognitive Disorder with Behavioral
Disturbance which means that she is suffering from dementia. This diagnosis is based on her severe
disturbance in momory and language, She has difficulties with both understanding language and
producing language. Stated in lay terms, this means her ability to communicate, understand, respond and
speak are all effected. Moreover, these moderate deficits are further worsened by stress, potentially
{eading to lack of communication.
it is also important to note that she was not oriented to place or time, making her incompetent to engage
in legal proceedings. This was documented in the evaluation completed in January of this year,
Clinibal PsychologistEXHIBIT CSUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
PHILLIP GARCIA, an individual, | Case No, CGC-14-538560
Plaintiff, | DISCOVERY MOTION
¥. [PROPOSED] ORDER ON
PLAINTIFF'S MOTION TO COMPEL
CARRIE WILSON, an individual, and in her RESPONSES TO DISCOVERY AND
vapacily as lustee of THE WILSON FAMILY REQUESTS FOR SANCTIONS
TRUST; SHAUN MARKHAM an individual;
ERIKA MARKHAM, an individual; ANGELO Date: March 16, 2017
WILSON, and individual; and DOES 1-20, Time: 9:00 a.m,
| Dept.: 301
Defendants, Judge: B. Douglas Robbins (PT)
Action Filed: April 10, 2014
Trial Date: March 27, 2017
Plaintiff Phillip Gareia’s (“Garcia”) MOTION TO COMPEL RESPONSES TO
DISCOVERY AND REQUESTS FOR MONETARY AND NONMONBETARY 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
=f.i
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 |
| 7 considered oral argument of counsel and the entire record of this case, the Court hereby FINDS AS
* | roLLows:
. FINDINGS
7 Issue. At issue are three discovery events. Firsi, Wilson failed to provide substantive
: responses to Special Interrogatories, Set Fout, offering only objections. Second, Wilson failed to
‘ | provide responses of any kind at her lawfully noticed deposition of February 14, 2017. Third Wilson
i failed to provide documents requested at that deposition,
2 Written Discovery. Garcia fails to move, nor notice a motion to compel the production of
aa Il documents or further responses to special interrogatories, As such this Court has no authority to
a compel those remedies,
a Garcia does notice and does move for terminating and issue sanctions (declining to move for
16 evidentiary sanctions). But except in extraordinary circumstances, not presented here, the Coutt is
17 || without authority to issue those kinds of sanctions absent violation of a prior court order. See Biles vy,
ag || Bxxon Mobil Corp., 124 Cal. App. 4th 1315, 1327 (2004). The only orders offered by Garcia in
19 |} evidence are those issued by Judge Quiduchay on February 8, 2016, February 9, 2016, and November
20 |} 1, 2016. None of these three court orders compe! Wilson to produce documents in compliance with a
21 || deposition notice, And none of them compel Wilson to respond to Special Interrogatories Set Four,
22 || As such this Court is without authority to impose non-monetary sanctions as to those discovery
23 |/ issues, And since Garcia declines to move for other relief~nor provide a code compliant separate
24 || statement seeking other relief for that matter—the Count has no authority to grant any other remedy
25 || on these issues.
36 Deposition. Garcia moves for issue or terminating sanctions against Defendant as a
27 || consequence of het failing to appear and testify at her lawfully noticed deposition (declining to seek
28 |)
“ORDER Ri MOTION FOR MONETARY AND NONMONETARY SANCTIONS
+2.
i
“33616 |
vy
8
evidentiary sanctions), Unlike the written discovery, Wilson was, in fact, compelled by court order to
j 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
II 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 tial 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 bave a court order compelling Wilson’s appearance at deposition. She appeared but
she did not testify. This failure to testify is sufficient to find violation of the order. Wilson argues,
however, that her disobedience of the order was not willful because she suffers feom 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
“3
337.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
la 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, Cede § 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, Hach 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 UNSOQUGHT,
4. Motion to compel further responses to written discovery is DENIED AS UNSOUGHT.
ORDER RE MOTION FOR MONETARY AND NONMONETARY SANCTIONS5. Garcia’s motion for issue sanctions is GRANTED as follows.
a, Attrial, 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
atlempting 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
ORDER RE MOTION FOR MONETARY AND NONMONETARY SANCTIONS
«8
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= oo oN Oo oO FB YS DN Matthew K. Wisinski (SBN 195535) Katelyn M. Knight (SBN 264573) Dea Hanen oie Sete nea ce ELECTRONICALLY attery Street, Suite San Francisco, California 94111 et eee Telephone: (415) 524-4300 County of San Francisco Facsimile: (415) 391-2058 05/31/ 2017 E-Mail; — mwisinski@murchisonlaw.com Clerk of the Court kknight@murchisonlaw.com BY: VANESSA WU Deputy Clerk Attorneys for Defendants ANGELO WILSON, CARRIE WILSON individually and in her capacity as Trustee of the WILSON FAMILY SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO PHILLIP GARCIA, CASE NO. CGC-14-538560 Plaintiff, DECLARATION OF KATELYN M. KNIGHT IN SUPPORT OF EX PARTE vs. APPLICATION CARRIE WILSON, in her capacity as Date: June 1, 2017 trustee of THE WILSON FAMILY TRUST, Time: 11:00 a.m. SHAUN MARKHAM, ERIKA MARKHAM, Dept.: 501 and ANGELO WILSON, and DOES 1-20, Action Filed: April 10, 2014 Defendants. Trial Date: June 26, 2017 |, Katelyn M. Knight, declare and state: | am an attorney-at-law licensed to practice in the State of California and | am an associate with Murchison & Cumming LLP, counsel of record herein for Carrie Wilson in her individual capacity and as Trustee of the Wilson Family Trust, and Angelo Wilson. | am one of the attorneys at our firm responsible for handling the defense of this matter on behalf of Carrie Wilson in her individual capacity and as Trustee of the Wilson Family Trust, and Angelo Wilson, and, on this basis, and upon such other bases set forth below, | have personal knowledge of the matters set forth in this Declaration, except where stated on information and belief, and could and would competently testify to them under oath if called as a witness. eee 4 : DECLARATION OF KATELYN M. KNIGHT IN SUPPORT OF EX PARTE APPLICATIONoo oO N OOH OP BOON Rw NM RNY NYY NY NY NY & B& & B 2B 2B Ba aA A on OW GH F&F WOW NH |= OG O© BN DW HF BF WO ND = 1. Carrie Wilson is 85 years old and suffers from Osteoarthritis, Osteoporosis, and Degenerative Disc Disease. Over the course of this action, Ms. Wilson underwent hip surgery and surgery for a detached retina. While recovering from surgery, Ms. Wilson developed a severe shingles infection. Ms. Wilson's primary care physician Dr. Crystal Brown opined that Ms. Wilson would be unable to sit for deposition during her recovery from the surgeries and provided multiple letters to that effect. While Ms. Wilson's shingles infection was raging, Dr. Brown strongly advised against proceeding with a deposition as sitting for even two hours would be extremely difficult, and she estimated that Ms. Wilson would only be able to be attentive and respond to questions for perhaps 15 minutes due to her ongoing pain, discomfort, fatigue, and medications. The deposition was put off multiple times to allow Ms. Wilson time to heal from her surgeries and for her condition to improve, and in each instance was based on the medical opinion of her treating physician. 2, Carrie Wilson's health has deteriorated over the course of this action. . Ms. Wilson was recently evaluated by Elizabeth Soety, M.D., who is a clinical psychologist specializing in neuropsychological testing and counseling. Dr. Soety concluded that Ms. Wilson is suffering from dementia and lacks capacity to make legal decisions. 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. Attached hereto as Exhibit A is a true and correct copy of the declaration of Dr. Elizabeth Soety. Attached hereto as Exhibit B is a letter from Dr. Elizabeth Soety regarding Carrie Wilson's condition. 3. Carrie Wilson appeared for her deposition on February 13, 2017 pursuant to a prior Court order. The Court reporter attempted to swear Ms. Wilson in as a witness, however Ms. Wilson was unable to understand and respond and so the oath was never administered. Despite this, Plaintiff's counsel proceeded to question Ms. Wilson, who continued to be unable to understand and respond to questions. During a break, defense counsel Dana Tom conferred with Plaintiff's counsel by phone and requested that the deposition be halted on the basis that Ms. Wilson was not qualified to testify as a witness 2 = pe DECLARATION OF KATELYN M. KNIGHT IN SUPPORT OF EX PARTE APPLICATIONunder Evidence Code § 701, which provides that a witness is disqualified from providing testimony under oath where the witness is either incapable of expressing herself concerning the matter so as to be understood, or incapable of understanding the duty of a witness to tell the truth. Plaintiffs counsel refused to halt the deposition. Defense counsel's objection was put on the record and Plaintiff's counsel continued his questioning without any response. | was in Ms. Tom's office during her meet and confer with Plaintiffs counsel and when she put the objection on the record. 4, On March 17, 2017, the Court granted the motion in part and denied it in part. A true and correct copy of the sanctions order is attached hereto as Exhibit C. At the time the sanctions order was issued, trial in this matter was set for March 27, 2017. Defendant filed a writ of mandate, which was denied on procedural grounds. Trial was reset to April 10, 2017 as a consequence of the writ 5. On May 30", 1 sent an e-mail to Plaintiff's counsel giving notice of the relief sought by this ex parte application and the date, time, location where it would be presented. Plaintiff's counsel indicated that he could not determine whether or not he would appear and oppose before seeing the moving papers. | spoke with counsel for Shawn Markham by telephone, who indicated that he does not oppose the application. | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 31st day of May, 2017, at San Francisco, California. Cth pK Ratelyn M. Knight ~ = re eee 3 DECLARATION OF KATELYN M. KNIGHT IN SUPPORT OF EX PARTE APPLICATION= o ON Oo nO F&F WS DN 10 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO At the time of service,| was over 18 years of age and not a party to this action. | am employed in the County of San Francisco, State of California. My business address is 275 Battery Street, Suite 850, San Francisco, California 94111. On May 31, 2017, | served true copies of the following document(s) described as DECLARATION OF KATELYN M. KNIGHT IN SUPPORT OF EX PARTE APPLICATION on the interested parties in this action as follows: BY ELECTRONIC SERVICE VIA FILE & SERVEXPRESS: | electronically served the document(s) described above via File & ServeXpress, on the recipients designated on the Transaction Receipt located on the File & ServeXpress website (https:secure.fileandservexpress.com) pursuant to the Court Order establishing the case website and authorizing service of documents. | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on May 31, 2017, at San Francisco, ee / f ve Ae if ‘Meuy S. Sabthao DECLARATION OF KATELYN M, KNIGHT IN SUPPORT OF EX PARTE APPLICATIONEXHIBIT A4 || Matthew K. Wisinski (SBN 195535) FE E-Mait San Franc Telephone: (415) 524-4300 Facsimile, (415) 391-2058 Katelyn M. Knight (SBN 264573) 2 || MURGHISON & CUMMING, LLP i 275 Battery Street, Suite 850 3 0, California 94747 mwisinski@murchisoniaw.com kknight @murchisoniaw.com Attorneys for Defendants ANGELO WILSON, CARRIE WILSON individually and in her 7 | capacity as Trustee of the WILSON FAMILY TRUST a} 9 | SUPERIOR COURT OF THE STATE OF CALIFORNIA 40 | COUNTY OF SAN FRANCISCO H 141] 12 i PHILLIP GARCIA, CASE NO, CGC-14-538560 43 i Plaintiff, | DECLARATION OF ELIZABETH M. | | SOETY, PH.D, 14) vs. | | Action Filed: April 10, 2014 15 || CARRIE WILSON, in her capacity as | Trial Date: dune 26, 2017 | trustee of THE WILSON FAMILY TRUST, | 16 || SHAUN MARKHAM, ERIKA MARKHAM, | and ANGELO WILSON, and DOES 1-20. | 17} | { Defendants. i SB eae eet eel et ea 19] 1, Elizabeth M. Soety, Ph.D., declare as follows a 4. jar clinical psychologist with fifteen years of experience in the field. { have 21 1 personal knowiedge of the facts set forth herein, which are known by nie to be true and 22" correct, and if called as a witness, | could and would competently testify thereto, it 23) 2 t recently compisted a newropsychological evaluation of Carrie Wilson, a party 24 4 to this action. As part of the evaluation, | interviewed Ms. Wilson and administered standard) 25 | AMNART and RBANS tests to determine her verbal iq and cognitive abilities. Based on my 26 | examination and evaluation, Ms. Wilson has experienced significant cognitive declined in 27 || her cognitive functioning, including memory, attention, and executive/self-reguiatory ability | 28 || and clearly meets the criteria for Major Neurocognitive Disorder with Behavioral army Tie DECLARATION OF ELIZABETH M. SOETY. PH.D. |8 a7 Disturbance. Ms, Wilson has difficulties with both understanding and producing language, affecting her ability to communicate. These moderate deficits are further worsened by stress, potentially leading to a lack of any communication from Ms. Wilson. 3. jtis my expert opinion that Ms. Wilson is unable to manage her financial resources and is not competent to participate in legal proceedings. | Geclare under penalty of perjury under ihe laws of the State of Georgia that the foregoing is true and correct. Executed May /{:, 2017, at Centerville, Georgia. BECLARATION GF Biz heaniw soety: neeEXHIBIT BNeuropsychological Testing and Counseling, 1.).C Elizabeth M. Soety, Ph.D. 102 Gunn Road Centerville, GA 31028 (478) 953-0083 February 27,2017 ‘To Wham It May Concern: Per my evaluation. Mrs. Wilson clearly met criteria for Major Neurocognitive Disorder with Behavioral Disturbance which means that she is suffering from dementia. This diagnosis is based on her severe disturbance in momory and language, She has difficulties with both understanding language and producing language. Stated in lay terms, this means her ability to communicate, understand, respond and speak are all effected. Moreover, these moderate deficits are further worsened by stress, potentially {eading to lack of communication. it is also important to note that she was not oriented to place or time, making her incompetent to engage in legal proceedings. This was documented in the evaluation completed in January of this year, Clinibal PsychologistEXHIBIT CSUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO PHILLIP GARCIA, an individual, | Case No, CGC-14-538560 Plaintiff, | DISCOVERY MOTION ¥. [PROPOSED] ORDER ON PLAINTIFF'S MOTION TO COMPEL CARRIE WILSON, an individual, and in her RESPONSES TO DISCOVERY AND vapacily as lustee of THE WILSON FAMILY REQUESTS FOR SANCTIONS TRUST; SHAUN MARKHAM an individual; ERIKA MARKHAM, an individual; ANGELO Date: March 16, 2017 WILSON, and individual; and DOES 1-20, Time: 9:00 a.m, | Dept.: 301 Defendants, Judge: B. Douglas Robbins (PT) Action Filed: April 10, 2014 Trial Date: March 27, 2017 Plaintiff Phillip Gareia’s (“Garcia”) MOTION TO COMPEL RESPONSES TO DISCOVERY AND REQUESTS FOR MONETARY AND NONMONBETARY 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 =f.i 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 | | 7 considered oral argument of counsel and the entire record of this case, the Court hereby FINDS AS * | roLLows: . FINDINGS 7 Issue. At issue are three discovery events. Firsi, Wilson failed to provide substantive : responses to Special Interrogatories, Set Fout, offering only objections. Second, Wilson failed to ‘ | provide responses of any kind at her lawfully noticed deposition of February 14, 2017. Third Wilson i failed to provide documents requested at that deposition, 2 Written Discovery. Garcia fails to move, nor notice a motion to compel the production of aa Il documents or further responses to special interrogatories, As such this Court has no authority to a compel those remedies, a Garcia does notice and does move for terminating and issue sanctions (declining to move for 16 evidentiary sanctions). But except in extraordinary circumstances, not presented here, the Coutt is 17 || without authority to issue those kinds of sanctions absent violation of a prior court order. See Biles vy, ag || Bxxon Mobil Corp., 124 Cal. App. 4th 1315, 1327 (2004). The only orders offered by Garcia in 19 |} evidence are those issued by Judge Quiduchay on February 8, 2016, February 9, 2016, and November 20 |} 1, 2016. None of these three court orders compe! Wilson to produce documents in compliance with a 21 || deposition notice, And none of them compel Wilson to respond to Special Interrogatories Set Four, 22 || As such this Court is without authority to impose non-monetary sanctions as to those discovery 23 |/ issues, And since Garcia declines to move for other relief~nor provide a code compliant separate 24 || statement seeking other relief for that matter—the Count has no authority to grant any other remedy 25 || on these issues. 36 Deposition. Garcia moves for issue or terminating sanctions against Defendant as a 27 || consequence of het failing to appear and testify at her lawfully noticed deposition (declining to seek 28 |) “ORDER Ri MOTION FOR MONETARY AND NONMONETARY SANCTIONS +2. i “33616 | vy 8 evidentiary sanctions), Unlike the written discovery, Wilson was, in fact, compelled by court order to j 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 II 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 tial 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 bave a court order compelling Wilson’s appearance at deposition. She appeared but she did not testify. This failure to testify is sufficient to find violation of the order. Wilson argues, however, that her disobedience of the order was not willful because she suffers feom 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 “3 337.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 la 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, Cede § 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, Hach 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 UNSOQUGHT, 4. Motion to compel further responses to written discovery is DENIED AS UNSOUGHT. ORDER RE MOTION FOR MONETARY AND NONMONETARY SANCTIONS5. Garcia’s motion for issue sanctions is GRANTED as follows. a, Attrial, 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 atlempting 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 ORDER RE MOTION FOR MONETARY AND NONMONETARY SANCTIONS «8