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

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Matthew K. Wisinski (SBN 195535)
Dana L. Tom (SBN 263313)
Katelyn M. Knight (SBN 264573)

MURCHISON & CUMMING, LLP ELECTRONICALLY

275 Battery Street, Suite 850 FILED

San Francisco, California 94111 Superior Court of California,

Telephone: (415) 524-4486 County of San Francisco
(415) 489-4798 03/28/2016
(415) 524-4477 Clerk ore Court

Facsimile: (415) 391-2058 D

E-Mail: — mwisinski@murchisonlaw.com —-

dtom@murchisonlaw.com
kknight@murchisonlaw.com

Attorneys for Defendant CARRIE WILSON in
her capacity as Trustee of the WILSON
FAMILY TRUST

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO

PHILLIP GARCIA, CASE NO. CGC-14-538560
Plaintiff, DEFENDANT CARRIE WILSON IN HER
CAPACITY AS TRUSTEE OF THE
vs. WILSON FAMILY TRUST'S NOTICE OF
LODGMENT OF EVIDENCE IN
CARRIE WILSON, in her capacity as OPPOSITION TO PLAINTIFF'S MOTION

trustee of THE WILSON FAMILY TRUST, | FOR SUMMARY ADJUDICATION
SHAUN MARKHAM, ERIKA MARKHAM,
and ANGELO WILSON, and DOES 1-20, Date: April 11, 2016
Time: 9:30 a.m.

Defendants. Dept.: 501
Action Filed: April 10, 2014
Trial Date: None Set

Defendant CARRIE WILSON in her capacity as Trustee of the WILSON FAMILY
TRUST hereby lodges the following exhibits in support of her Opposition to Plaintiffs
Motion for Summary Adjudication.

Exhibit A A true and correct copy of the lease agreement between the parties.

Exhibit B The Order on Philip Garcia's Motion for Attorney's fees in the unlawful

detainer action, Case No. CUD-13-645240.

: 4
DEFENDANT CARRIE WILSON IN HER CAPACITY AS TRUSTEE OF THE WILSON FAMILY TRUST'S
NOTICE OF LODGMENT OF EVIDENCE IN eS PLAINTIFF'S MOTION FOR SUMMARYoo ODN OO aA Rk WOW DS =

ExhibitC |= The Second Amended Complaint filed in the present action.

ExhibitD Excerpts from the Deposition of Angelo Wilson (22:10-24:2; 25:9-26:13,
57:25-58:21, 60:7-10, 94:17-19, 95:5-10, 97:23-98:4, and 98:7-99:7).
ExhibitE |= The Complaint filed by Angelo Wilson in the unlawful detainer action,
Case No. CUD-13-645240.

Exhibit F The Judgment in the unlawful detainer action, Case No. CUD-13-645240.

ExhibitG The Declaration of Angelo Wilson.
ExhibitH — Philip Garcia's Motion for Attorney's fees filed in the unlawful detainer
action, Case No. CUD-13-645240.

DATED: March 28, 2016 MURCHISON & CUMMING, LLP
Sf

By: «

Matthew K-\Wisinski

Dana L. Tom

Katelyn M. Knight

Attorneys for Defendant CARRIE WILSON in
her capacity as Trustee of the WILSON
FAMILY TRUST

2
DEFENDANT CARRIE WILSON IN HER CAPACITY AS TRUSTEE OF THE WILSON FAMILY TRUST'S
NOTICE OF LODGMENT OF EVIDENCE en PLAINTIFF'S MOTION FOR SUMMARY. ‘THis FORM FOR USE

HeauroRa ty
RESIDENTIAL LEASE-RENTAL AGREEMENT
AND DEPOSIT RECEIPT roster Wi

AGENCY RELATIONSHIP CONFIRMATION. The following agenoy relationship is hereby confirmed for this transaction and supersedes any
prior agency election (If no-agency relationship insert NONE")

LISTING AGENT; a _is the agent of (check one):

a (Prin Firm Nemo) A
(the owner exclusively; or [both the Tenant and the Owner.
LEASING AGENT: ___. Davis Realty Company Inc._____{if nol the same as the Listing Agent) is the agent of (check one):

(Print Firm Neme) \
(the Tenant exclusively; or (}the Owner exclusively; or (Ciboth the Tenant and the Owner,

Note: This confirmation DOES NOT take the place of the AGENCY DISCLOSURE form (such as P.P. Form 110.42 CAL) required by

law if the term exceeds one yoar’

RECEIVED FROM Philp Garcia ee horeinafter referred to as Tenant,
lhe sum of $4,200.00 (. —— J ___Four thousand two hundreds iL
dollars), evidenced by cashier's check or cash "as a deposit, Upon acceptance of this Agreement, he Owner of the

promises, will apply the deposit as follows:

RECEIVED BALANCE OUE PRIOR TO OCCUPANCY
Rent for the period from __6-1-10._to_ 8-34-40 $ $ 2,400.00
Security deposit (not applicable toward last month's rent)... 8 3 100.00
Other Nd $ $
TOTAL iprssssssvsvee een a $4200.00 § 4,200.00

in the event this Agreement Is not accepted by the Owner, within__3__ days, the total deposit received willbe refunded,
Tenant offers to rent from the Owner the premises situated in the Cily of San Francisco cae
County of San Franciseo | State of California, commonly known as 1655 Hayes Streel, San Francisco, California, 94417,

being a three bedroom flal with stove, refrigerator, carpets and draperies :
upon the following terms and conditions:

4, TERM. The term will commence on August 1.2040 , and continue (check one of the two following alternatives):
CILBASE until at ae , for a jotal rent of $, ¢
dollars).

BARENTAL on a month-to-month basis, until elther party leminates this Agreement by giving the other party wrillen notice as
“required by law.
2, RENT. Rent will be $2,109.00. _, per month, payeblo in advance by personal check, cashier's check, cash or money order, on
the tet. day of each calendar month to Owner or his or her authorized agent, by mall or personal delivery to the foliowing address
oo Frankie of Carrie Wilson, 1675 Hayes Sreel, San Francisca, California 94117 _Angelo Wilson 260-2682
oral auch olher place as may be designated by Owner in writing from time to time, Payment by personal delivery may be mace (check
‘one):(-) Monday through Friday, 8:00 a.m. to 5:00 p.m. or[_Jat the following times: —___ 7
in the event rent is not received by Ownarin full within 8 days alterdue
Gate, Tenant agrees hat ilwould be impracticable or extremely difficult to fx the actual damages to Owner caused by that failure, and
Tenant agreos to pay a late chargo of $_105.00__, Tenant furthar agrees to pay $ 25,00 for sach dishonored bank check. Al late fees
and returned check fees will be considered additional rent, The late charge period is not a grace-period, and Owner Is eniitled (o make
written demand for any rent if not paid when dve and to coliéct interest thereon, Any unpaid balance Including late charges, will bear
interest at 10% pet annum, or the maximum rate allowed by law, whichever is less.
3, MULTIPLE OCCUPANGY. It is expressly understood that this Agreement Is between the Owner and each signatory jolntly and severally.
Each signatory will be responsible for timely payment of renl and performance of all olher provisions of this Agreement.
4, UTILITIES. Tenant will be responsible for the payment of all ullitlas and services, except: weler and garbage __
: _ which will be paid by Owner,
5, USE. The premises will be used exclusively as a residence for no more than __1.__ parsons, Guests staylng more than a tolal of
40. days Ina calendar year without written consent of Owner will constitule @ violation of this Agreement, Tenant shall park.
Sperable automobiles in assigned spaces only, Trailers, boats, campers, and inoperable vehicles are not allowed without the written
consent of Owner, Tenant may not repair rotor vehicles on the leased premises,
ANIMALS, No onima’s will be broughl on the premises withoilt the prlor consent of the Owner; except 0. nels :
RULES AND REGULATIONS, In the event that the premises is a portion of a building containing more than one unit, or is located in @
common inlerest development, Tenant agrees to abide by all applicable rules, whether adopted before or after the date of this
Agreement, incjuding rules with respect to noise, odors, disposal of refuse, animals, parking, andl use of common areas, Tenant wil

a

7

Tenant Lee VL iL Jt } has read this page.

CAUTION: The copyright laws of the United States forbid the unauthorlzed reproduction of this form by any means Incluting

scormning or computerized formals

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FORM 108.1 GAL. (6-209) COPYRIGHT BY PROFESSIONAL PUBLISHING, NOVATO, CA PROFESSIONAL
nies UBLISHING

Form ganecatedby: True Fors” — wwew.TruaForms.com 800-409-9612 PUBLISHIN!

Wilson 016Property Address __ 4665 Haves Sireet_ _____ San Fransisco, California 94147

poy any penalties , Including attorney fees, imposed by homeowners’ association for violations by tenant or tenant's quests,

8, ORDINANCES AND STATUTES. Tenant will comply with all statules, ordinances, and requirements of ali municipal, state and federal
Suthorities now in fores, or which may iaier be in force. regarding the use of the premises. Tenant will nol use the premises for any
Unlawful purpose including, but not limited to, using, storing or selling prohibited drugs. If the premises are located in a rent contol
area, the Tenant should contact the Rent and Abitration Board for his or her legal rights.

9, ASSIGNMENT AND SUBLETTING. Tenant will not assign this Agreement or sublet any portion of the premises without prior waitten
consent of the Owner.

40, MAINTENANCE, REPAIRS, OR ALTERATIONS, Tenant acknowledges that, unless the Owner is notified immediately upon occupancy,
the premises, including the furniture, furnishings and appliances, including all electrical, gas and plumbing fixtures, are in good working
onder and repsir, Tenant will keep the premises In a clean ard sanitary condition, and will immediately natify Owner of any damago
fo the premises or lis contents, of any Inoperable equipment or appliances, Tenant will surrender the premises, et lermination, in a8
good condition as received, normal wear and tear excepted, Tenant will be responsible for any damage, repalfs of replacements,
catised by Tenant's negligence and that of the tenant's family, Invitees, and guests, except ordinary wear and tear, Verification of the
working order and the maintenance of the smoke detector is the responsibility of the Tenant, Tensnt will nol commit any waste upon the
premises, or any nuisance or act which may disturb the quiet enjoyment of any neighbors. Tenant will not paint, paper or olherwise
Fedecorate or make alterations to the premises without the prior wrillen consent of the Owner, Tenant will irrigate and mainiain any
Surrounding grounds, Including lawns ard shrubbery, If they are for the Tenants exclusive use. It Is understood that Owner's
Insurance does not cover Tenant's personal property,

44, INVENTORY. Any furnishings and/or equipment to be furnished by Owner willbe listed in a special Inventory. ‘The inventory will ve
signed by both Tenant and Owner concurrently with this Lease, Tenant will keep the furnishings and equipment in good condition and
repair, and will be responsible for aay damage to (hem other than normal wear and tear, Tenant acknowledges receipt of _3__ sels of
keys, 0 garage door openers, other: NA i iat

42, DAMAGES TO PREMISES. if the premises are damaged by fre, earthquake or other casually which renders the premises (otaly oF
partially uninhabitable, either party will have the right to terminate this Agreement as of the dale on which the damage occurs, Writlen
Fatice of termination will be given to the olher party within fifteen (18) days after occurrence of such damage, Should such damage or
destruction occur as the result of the negigence of Tenant, or his or her invitees, hen only the Owner will have the fighl (o terminate.
Should this right be exercised by either Over or Tenant, rentfor the current month willbe prorated between the parlios as of the dale the
damage occurred. Any prepaid fent and nused security deposit willbe refunded to Tenant. f this Agreoment Is not terminated, Owner wil
promptly repair the premises and there will be a proporticnate reduction of rent until the premises are repaired and ready for Tenant's
Sucupancy. The proportionate reduction will be based on the extent which repairs interfere with Tenants reasonable use of he premises.

43, ENTRY AND INSPECTION, Owner and owners agents will have the right to enter the prernises: (2) in case of emergency; (b) to make
necessary or agreed repairs, decorations, allerations, Improvemenis, supply necessary or agreed services, inspect the concilion of Ihe
properly, show the premises to prospeclive or actual purchasers, lenders, tenants, woikers, or contractors; (c) when tenant has
fpandoned or surrendered the premises, Except under (a) and (0), entry may be mace only during normal business hours, and with at
east 24 hours prior written nolice to Tenant including the date, approximate time, and purpose of entry.

if the purpose of the entry Is to exhibit the dwelling unit to prospective or actual purchasers, the nolice may be given orally, n person
cor by telephone, if the owner or his or he: agent has notfied the fenantin welling within 120 days of the oral notice that the property Is far
gale. Al the tlme of entry, the Owner or agent shall leave written evidence of the entry inside the unit,

44, INDEMNIFICATION, Owner will not be liable for any damage or injury lo Tenant, or any othar person, or to any property, occurring on
the premises, or in’ common areas, unless such damage is the legal result of the negligence of willful misconduct of Owner, his of her
agents, or employees. Tenant agrees to told Owner harmless from any claims for damages, no matter how caused, excepl for Injury or
damages caused by negligence or willful misconduct of Owner, his or her agents or employeos,

45, PHYSICAL POSSESSION. If Owner is unable to detiver possession of ihe premises at the commencement date set forth above, Owner
will not be liable for any damage caused, nor will this Agreement be void or voldable, but Tenant will not be liable for any rent until
possossion ie dalivered, Tenant may torminate this Agreement i possession is not delvered within __O_. days of the commencement
of the term in item 1.

46, DEFAULT, if Tenant fails to pay rant when due, or perform any provision of this Agreement, after not less than three (3) days written
notice of such default given in the manner required by law, the ‘Owner, at his or her option, may terminate all rights of Tenant, unless
Tenant, within sald lime, cures such default, If Tenanl abandons or vacates the property while In default of the payment of rent, Owner
may consider any property left on the premises to be abandoned and may dispose of the same In any manner alioved by tow. in the
Qvent the Ownet reasonably believes that such abandoned property has no value, It may be discarded. All property on the premises
will be subject to a lien for the benefit of Owner securing the payment of all sums due, to the maximum extent allowed by tow.

in the event of a default by Tenant, Owner may lect to: (a) continue the lease in effect and enferce all his righls and remedies,
including the right to recover the rent as It becomes due, provided thal Owner's consent to assignment or subletting by the Tenant wil
hol be unfeasonably withheld; or (b) at any time, terminate all of Tenant's rights and recover (rom Tenant all damagas he or she moy
incur by reason of the broach of the lease, including the cost of recovering the premises, and including the worth at the lime of such
termination, or at the {ime of an award if suit be instituted to enforce this provision, of th amount by which the unpaid rent (or the bel
ance of the term exceeds the amount of such rental loss which the Tenant proves could be reasonably avoided

Tenant L CG Jt JL. JL ] has read this page.

CAUTION: The copyright laws of th United States forbld the unauthorized reproduction of this form by any means InelulIng
scanning or computterized formats.

Page 2 014
FORM 105,2 CAL {6-2008) COPYRIGHT BY PROFESSIONAL PUBLISHING, NOVATO, CA

Fora gonersted by."PrueFonns” — vewweTrueFormseom 800.408.9812

a PROFESSIONAL
PUBLISHING

Wilson 017Property Address _1665 Hayes Street San Frangisoo, Califomia 94117__.

1%, SECURITY, The security deposit will secure the performance of Tenant's obligations. Owner may, but will not be obligated lo, apply all
portions of seid deposit on account of Tenents oblgalios, pny bolence remaining will be retuned to Tenant, together with an
accounting of any disbursements, 24 calendar days afier the Tenani has vaca premises, of earlier if required by jaw, Ta
not have the right lo apply the securlly deposit in payment of the last month's rent, No interest will be paid to Tenant on account of the
security deposit, unless required by local ordinance,

48, WAIVER, Failure of Owner to enforce any provision of this Agreement will nol be deemed a waiver, The acceptance of renl by Owner
will nol walve his or her right to enforce any provision of this Agreement.

49, NOTICES, Unless otherwise provided, any notice which either party may give or is required to give, must be in writing, may be given
personally or by mailing the same, postage prepald, to Tenant at the premises or to Owner or Owner's authorized agent al the address
shown In the signature block or at such other places as may be designated by the parties from time to time. Notice will be deemed
effective three (3) days after mailing, or on personal delivery, or when receipt is acknowledged in writing

20, HOLDING OVER. Any holding over after expiralion of this Agreement will be (check one):

1 with the consent of owner, a month-to-month tenancy at a monthly rent of $__. . payable in advance and otherwise
subject to the terme of this Agreement and local ordinance, as applicable, until elther party terminates the tenancy by giving the other
party thirty (30) days (or longer if required by law) writlen notice; or

(2 if the property is subject to a local rent control ordinance, the halding over wil be @ month-to-month tenancy with the rent and

termination provisions as mandated by the ordinance.

24. TIME. Time Is of the essence of this Agreement,

22. ATTORNEY'S FEES, In any aclion or proceeding involving a dispute between Tenant and Owner arising out of the execution of this
‘Agreement, whether for (ort or for breach of contract, and whether or not brought to trial or final judgment, the prevailing party wil be
entitled fo receive from the other party a reasonable allomney fee, expert wilness fees, and cosis to be determined by the court or
arbitrator(s),

23. SUBROGATION. To Ihe maximum extent permitted by insurance policies which may be owned by the parties, Lessor and Lessee waive
any and all rights of subrogation against each other which might otherwise exist

24, FAIR HOUSING. Owner and Tenanl understand that the slate and federal housing laws prohibit discrimination in the sale, rental, appralsal,
financing or advertising of housing on the basis of race, color, religion, sex, sexual ofientation, rnarital status, national origin, ancestry,
familial status, source of income, age, mental or physical disabliity, immigration or citizenship status, In addilion, California Civil Code
§1940.3 prohibils a landlord from making any inquiry regarding the Immigration or citizenship status of any tenant oF prospective tenant,

25, ADDITIONAL TERMS AND CONDITIONS.
Tenant agrees to be very careful with water usage. San Francisco water is very expensive, Tenant wil be allowed to have two Sulb-
Fenants living with him. ‘Tenant wil submit rental applications from both Sub-Tenants and a Sud-Tenant agreemen|, Tenant understands thal
Landlord will not accep! rent checks from the Sub-Tenant. The rent checks must come from the Masler Tenant. If the Master Tenant moves
out, the Sub-Tenants must move out with him. Tenant agrees to Keep the property in e clean and orderly manner at all limes, Tena agiese
there will be no smoking in of around the property at anylime, Tenant understands that the Landlord's insurance does not cover his __
possessions and he has been advised to have Renter's Insurance,

26, SQ This unit |s subject to rent control and the agency responsible to adjudicate claims is: San Francisco Rent Board -
27 ENTIRE AGREEMENT. The foregoing constitutes the entire agreement between the parties and inay be modified only in writing signed
by all parties, This Agreement and any modifications, Including any photocopy or facsimile, may bs signed in one or more counter
parts, each of which will be deemed an criginal and all of which taken together will constilule one and the same instrument. The following
addenda, If checked, have been made a pari of this Agreement before the parties’ execution:
DJAddendum + Lead-Based Paint Disclosure (Required by Law for Rental Property Built Prior fo 1978)
BAddendum : Regarding Mold Contamination and Agreement to Maintain Premises.
BxlAddendum _____: Atlached Addendum c
[JaAddendum 7
NOTICE: Pursuant to Section 290.46 of the Penal Code, Information about specified registered sex offenders is made available to
the public via an Internet Web site maintained by the Department of Justice at http:/vww.meganslaw.ca.gov, Depending on an
offender's criminal history, this information will Inchide either the address at which the offender resides or the community of
residence and ZIP Code in which he or she resides.

renant L_V CS 41 it ML } hes read this page.

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PROFESSIONAL

Paye 2 of 4
FORM 1053 CAL [5-2009) COPYRIGHT 8Y PROFESSIONAL PUBLISHING, NOVATO, CA PUBLISHING

om goneatedy;‘TraeForms" — vowwn'TrveFerms.com 800-490-8542 Wilson 018Property Address 1965 hayes Street San rranetseo, Califosnia 94447.

Phillip Garcla.

(Please Print Name) (Please Print Name)

pote POSI-LO. telephone ROS-97O~ 6bUF pate Tolephone

Address

San Francisco, California 9411 I
Emal_ PWC Serie ® aynor), LOWS

Tenant = Eee Tenant
gnatureh Tipnaiurey
= (Piease Prini Name) (Please Print Name) -
Date Telephone Date sane Telephone
Address ot Soe Address 7
a Email =e

‘The undersigned Owner accepts the foregoing offer and agrees to lease the premises on the terms and conditions set forth above.

4
owner Lee hor Liles Owner

ie a Oumar oF Mad Age) Satay

Lo Frankie and Carrie Wilson ae
7 (Please Print Name) (Please Pint Name)

pate LL BOLLO : Date
‘Telephone’ (4s.r60-4440 Fax 7 Telephone _ Fax 7
Address _1873 Hayes Street 7 Address 7

San Francisco, California 94.117
Email a . Email ——

for deposit acknowledged by Date
=e
7

Tenant acknowledges receipt of a copy of the necepted lease on (dato 7
(els 1 it st \ A

initials,

CAUTION: The copyright laws of the United States forbid the unauthorized reproduction of this form by any means tnetuding
scanning of computerized formats,

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FORM 105.4 CAL (6-2009) COPYRIGHT 8Y PROFESSIONAL PUBLISHING, NOVATO, CA PROFESSIONAL

Form gorersted by: TrucFoims” — wresTrueForms.com 400-499-9512

- Wilson 019ENDOMSE

LAW OFFICES OF BENNY MARTIN “PL oe BD
Benjamin Martin (SBN 257452) San Francisca Counts taperior Court
2831 Telegraph Avenue

Oakland, California 94609 FEB 4 20M
Phone: (415) 268-8592

Fax: (415) 272-0711 CLERK OF THE Cl

knowyourzighisins[@gmail.com oy. KEVIN £1, DO
Attorney for Defendant,
PRILLIP GARCIA

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FORTHE COUNTY OF SAN FRANCISCO
LIMITED JURISDICTION

ANGELO WILSON, an individual Case No. CGC-12-523347
Plaintiff, [PROPOSED] ORDER
Vs,
PHILLIP GARCIA, et. al, Date: February 14, 2014
‘Time; 2:30 pm
Defendants. Department: 514

Defendant Phillip Garcia's Motion for Determination of Prevailing Party and for an Award of
Reasonable Attorney’s Feos as Prevailing Party came before the Court on a regularly noticed motion,
jn department 514 on February 14, 2014 in the above-entitled court, Benny Martin appeared for
Defendant, Michael Raifsnider appeared fox Plaintiff, Having considered the moving papers, the ex
parte application for relief from late filing, and the entire file, the Court rules as follows: Defendant’s!
Motion is GRANTED as follows:

1. Defendant Phillip Garcia is determined to be the prevailing party to this unlawful detainer
action;
2. Th onable amount of hours Defendant’s counsel Benny Martin spent in this case was

_f / oO hours.

+f te
PROPOSED ORDERa

he
Defendant’s Counsel Benny Marti billing rate is determined to be $. 2.5 houryanda.

3,

4, Defendant is awarded in total se g 4
Angelo Wilson, and-ftom-Erankie-end-Garr
which is hereby included to the Judgment in this matter entered by the Court on November

“Th reasonable attorney’s fees jeisety from

-Wilson-as-Erastecs-of- Phe Wtsor Farnily“Frnst,

21, 2013,

Ir 18 SO ORDERED

Date: February 14, 2014

“~2-
PROPOSED ORDER

yLAW OFFICES OF BENNY MARTIN

Benjamin Martin (SBN 257452) ELECTRONICALLY
195 41st Street FILED
P.O. Box 11120 Superior Court of California,
Oakland, CA 94611 County of San Francisco
knowyourrightsinsf@gmail.com 01/14/2016

Clerk of the Court
Attorney for Plaintiff, Phillip Garcia PEE bee tion

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF SAN FRANCISCO
UNLIMITED JURISDICTION

PHILLIP GARCIA, an individual, } Case # CGC-14-538560
Plaintiff )
cL 7 } PLAINTIFF’S SECOND AMENDED
COMPLAINT
VS, )
)
CARRIE WILSON, in her capacity as trustee 3

of THE WILSON FAMILY TRUST, SHAUN } yURY TRIAL REQUESTED
MARKHAM, an individual, ERIKA.
MARKHAM, an individual, and ANGELO
WILSON, an individual, and DOES 1-20,

Defendants.

me

NOW HERE COMES PLAINTIFF, PHILLIP GARCIA (Plaintiff) WHO ALLEGES:
INTRODUCTION
1. This action arises out of a landlord-tenant relationship between Plaintiff Phil Garcia, the tenant,
and The Wilson Family Trust, the landlord. The subject premises located at 1665 Hayes Street,

San Francisco, CA 94117 (“subject premises”),

N

Plaintiff sues Defendants for breaches of the written 2010 lease entered into between Mr. Garcia
and The Wilson Family Trust (attached as Exhibit A) for refusing to address Mr. Garcia’s noise
complaints; for invading Defendant’s privacy by filming Mr. Garcia inside his residence through
an open window curtain at night, as well as recording audio of Plaintiff in his residence without
his knowledge or consent; and to enforce the award of attorney’s fees and costs entered against
Defendant Angelo Wilson in the matter of Wilson v. Garcia, CUD-13- 645240 against The
Wilson Family Trust, which were incurred to defend against Defendants’ frivolous unlawful

detainer.

Pa ee
PLAINTIFF’S SECOND AMENDED COMPLAINT27

28

. On November 21, 2013, the Court entered judgment in favor of Mr. Garcia in the unlawful

detainer matter.
On February 14, 2014, Mr. Garcia was awarded $42,500 in attorney’s fees, pursuant to an
attorney’s fee provision in the 2008 lease entered into between Mr. Garcia and The Wilson
Family Trust. Costs were also awarded to Mr. Garcia, so that the judgment was for a total of
$49,710.95. The trial Court refused to include The Wilson Family Trust in the award because
The Wilson Family Trust was not a named party and therefore the Court had no jurisdiction to do
so, despite the fact that The Wilson Family Trust is the party to the 2010 providing for the award
of attorney’s fees and costs to the prevailing party.
Plaintiff emphasizes at the outset that this action is in not in retaliation for any Defendant’s
exercise of a First Amendment Right such as the service of a notice to quit or a UD complaint—it
is based in the obscene and offensive manner in which Defendants sought to fabricate evidence of
Plaintiffs “nuisance”: recording audio and video of Mr. Garcia in the privacy of his home,
including instances of Mr. Garcia being sexually intimate with third parties.

PARTIES
Carrie Wilson is the trustee of The Wilson Family Trust, owner and landlord of the subject
premises. She entered into the 2010 lease as trustee of The Wilson Family Trust, a California
citizen (Exhibit B is a true and correct copy of My 1994 grant deed transferring title of the
Subject Premises from Carrie Wilson as an individual to Carrie Wilson as Trustee of The Wilson
Family Trust).
Carrie Wilson, hired Erika Markham and Angelo Wilson to be the off-site managers of the subject
premises. Angelo Wilson is a citizen of California. Erika Markham is recently a citizen of
Georgia.
Carrie Wilson, Erika Markham and Angelo Wilson thereafter hired Shaun Markham to be the on-
site manager that was tasked with “keep tabs” on other tenants, and “keep an eye on tenants,”
which included filming video inside Plaintiff's flat at night through open curtains and windows,

and recording audio and video.

. Plaintiff has a judgment against Defendant Angelo Wilson in the amount of $49,710.95—and

Plaintiff seeks to enforce this judgment against The Wilson Family Trust as owners and landlord
of the subject premises, and as the actual party with whom Mr. Garcia entered into the lease

agreement,

<9 t=
PLAINTIFF’S SECOND AMENDED COMPLAINTll.

16,

17.

. Plaintiffs do not know the names and capacities of any unnamed defendants sued herein as DOES

. This Court has personal jurisdiction over Plaintiff because at all times mentioned herein each

. This court has subject-matter jurisdiction because the accident occurred in San Francisco, and

. Venue is proper in the Superior of San Francisco because Defendants, or some of them, operate

. Throughout 2012 and 2013, Defendant’s ignored Plaintiff’s noise complaints against his upstairs

1-20. Plaintiffs will amend this Complaint when the true names and capacities of Defendants
have been ascertained.

This Court has personal jurisdiction over all Defendants because each Defendant committed the
wrongs set forth herein or is a resident of, and/or is domiciled in and/or does business in, the State|

of California.

Plaintiff lived in the City and County of San Francisco.

because the amount-in-controversy exceeds $25,000.

and/or own a business in the County and because all the alleged wrongs and events herein

occurred in the County of San Francisco.
GENERAL FACTUAL ALLEGATIONS

neighbor, Defendant Shaun Markham. Instead, Defendants instituted a frivolous UD action
against Plaintiff based on noise.

In April 2013, to manufacture evidence to be used against Mr. Garcia at the UD trial, Defendant
Shaun Markham violated Plaintiff's privacy by filming into Mr. Garcia’s residence at night at
times when Mr. Garcia was sexually intimate with a third party, in addition to recording audio.
Defendant Shaun Markham admitted in his deposition that he did so at the direction and with the
knowledge of the other Defendants, and that Defendant Shaun Markham had previously invaded
the privacy of other tenants in the building in the same way, and under the same direction of the
other Defendants, also for the purpose of manufacturing evidence to use against other tenants in
the building in support of prospective eviction actions. Thus, Defendants had a policy of invading
tenants’ privacy toward the goal of coercing rent-controlled tenants to abandon their tenancies in
order to sell the subject premises with no rent-controlled apartment is obtain a higher selling
price.

Thus, the above-described filming of tenants in their residences is part of Defendants’ modus
operendi of violating tenants privacy rights to maximize both monthly rental rates; and upon
selling the building, to maximize sale value (a building fee of rent controlled tenants sells at a

Caer
PLAINTIFF'S SECOND AMENDED COMPLAINT18.

19,

20.
21

22,

23,

significantly higher rate), Defendants’ policy and practice of recording and filming Defendant

inside his residence at night without consent violate California's Invasion of Privacy Act, the

California Constitution, and the San Francisco Administrative Code.

Further, Defendants’ refusal to address Plaintiffs noise complaints was part of Defendants’

overall plan to harass Plaintiff into abandoning his rent-controlled apartment. Plaintiff is also

informed and believes that Defendants have refused to cash his rent checks toward this end.

When the videos showing Mr. Garcia in his apartment at night (sometimes while being intimate

with third parties) were produced in discovery in the UD case, Mr. Garcia became extremely

upset and suffered emotional distress. Defendants has greatly diminished their quiet enjoyment o:

their rent controlled apartments, and has made Plaintiff feel like a monitored person in his own

home.
FIRST CAUSE OF ACTION
(Tenant Harassment Against All Defendants, Pursuant to the San Francisco Administrative
Code § 37.10B)

. Plaintiffs reallege and reincorporate by this reference the allegations in above paragraphs.

. This cause of action does not arise from any negligent act by any Defendant. This cause of action|

action arises solely from the intentional acts as described herein that were carried out in bad faith

for the specific purpose of injuring Plaintiff, harassing him into abandoning his rent-controlled
apartment.

Defendants’ breach of its statutory duties and obligations to Plaintiffs described above was done

intentionally and in bad faith and thereby violated San Francisco Administrative Code §

37.10B(a).

Defendants thereby harassment Plaintiffs, and intentionally and knowingly or with a reckless

disregard of San Francisco Administrative Code § 37.10B.

. As a direct and proximately result of this harassment, Plaintiffs were damaged in an amount to be
proven at trial.

. Plaintiffs bring this Cause of Action under San Francisco Administrative Code § 37.10B(c)(3),
and seek treble damages, emotional distress damages, reasonable attorneys’ fees, and punitive
damages against Defendants pursuant to San Francisco Administrative Code § 37.10B(c)(5).

. Defendants, each of them, knew the extent and egregiousness of the conduct alleged in this
Complaint, and knew that such conduct would likely cause physical, mental, and emotional
distress to Plaintiffs, that the alleged conduct did, in fact, cause mental, and emotional distress to

the Plaintiffs, yet without regard to the rights, health, and safety of Plaintiffs chose to engage in
-~4-
PLAINTIFF’S SECOND AMENDED COMPLAINT27

28

27.

28.
29.

30.

31.

32,
33,

34,

35,

the alleged conduct intentionally, with malice, and in bad faith, Defendants’ conduct was
despicable, thus entitling Plaintiffs to an award of punitive damages.
The above-described conduct is part of Defendants’ intended business plan to violate Plaintiff's
privacy rights in his own home, and in bad faith, to harass Plaintiff to the point where he would
abandon his rent-controlled apartment.
SECOND CAUSE OF ACTION
(Common Law Invasion of Privacy)
Plaintiff realleges and incorporates by reference the above Paragraphs, as though set forth in full.
Defendants, and each of them, by way of their aforesaid conduct, intruded upon the privacy of
Plaintiff in a manner that was highly offensive to a reasonable person.
As a result of Defendants’ conduct, and each of them, Plaintiff has suffered damages in an
amount of no less than $25,000.00.
Defendants’ conduct and each of them, was intentional, malicious, fraudulent and oppressive, and
in conscious disregard of Plaintiff's rights. Plaintiff is accordingly entitled to recover punitive
and/or exemplary damages from Defendants pursuant to the terms of California Civil Code
Section 3294, in a sum sufficient to punish Defendants and deter such conduct in the future.
THIRD CAUSE OF ACTION
(invasion of Privacy Under Civil Code § 1708.8(b))
Plaintiff realleges and incorporates by reference the above Paragraphs, as though set forth in full.
Defendants, and each of them, by way of their aforesaid conduct, intruded upon the privacy of
Plaintiff in a manner that was highly offensive to a reasonable person.
Pursuant to California Civil Code § 1708.8(b): “A person is liable for constructive invasion of
privacy when the defendant attempts to capture, in a manner that is offensive to a reasonable
person, any type of visual image, sound recording, or other physical impression of the plaintiff
engaging in a private, personal, or familial activity, through the use of any device, regardless of
whether there is a physical trespass, if this image, sound recording, or other physical impression
could not have been achieved without a trespass unless the device was used.”
Pursuant to California Civil Code § 1708.8(d): “A person who commits any act described in
subdivision (a), (b), or (c) is liable for up to three times the amount of any general and special
damages that are proximately caused by the violation of this section. This person may also be
liable for punitive damages, subject to proof according to Section 3294. If the plaintiff proves that

the invasion of privacy was committed for a commercial purpose, the defendant shall also be

TP sLe

PLAINTIFF’S SECOND AMENDED COMPLAINT27

28

36.

37.

38,

39.
40.

Al.

subject to disgorgement to the plaintiff of any proceeds or other consideration obtained as a result
of the violation of this section. A person who comes within the description of this subdivision is
also subject to a civil fine of not less than five thousand dollars ($5,000) and not more than fifty
thousand dollars ($50,000).” Plaintiff seeks these remedies.

Pursuant to California Civil Code § 1708.8(e) “A person who directs, solicits, actually induces, or}
actually causes another person, regardless of whether there is an employer-employee relationship,
to violate any provision of subdivision (a), (b), or (c) is liable for any general, special, and
consequential damages resulting from each said violation. In addition, the person that directs,
solicits, actually induces, or actually causes another person, regardless of whether there is an
employer-employee relationship, to violate this section shall be liable for punitive damages to the
extent that an employer would be subject to punitive damages pursuant to subdivision (b) of
Section 3294. A person who comes within the description of this subdivision is also subject to a
civil fine of not less than five thousand dollars ($5,000) and not more than fifty thousand dollars
($50,000).” Plaintiff seeks these remedies.

Defendant Shawn Markham violated this law as the principle actor under subsection (b), and
Defendant Angelo Wilson and Erika Markham and The Wilson Family Trust are liable under
subsection (e) because they approved, ratified, consented, induced, caused or directed Defendant

Shaun Markham’s misconduct, who was their agent.

Defendants, and each of them, by way of their aforesaid conduct, intruded upon the privacy of
Plaintiff in a manner that was highly offensive to a reasonable person. Defendants’ conduct and
each of them, was intentional, malicious, fraudulent and oppressive, and in conscious disregard of]
Plaintiff's rights. Plaintiff is accordingly entitled to recover punitive and/or exemplary damages
from Defendants pursuant to the terms of California Civil Code Section 3294, in a sum sufficient
to punish Defendants and deter such conduct in the future.
FOURTH CAUSE OF ACTION

(Invasion of Privacy Under Article 1, § 1 of the California Constitution)

Plaintiff realleges and incorporates by reference the above Paragraphs, as though set forth in full.
Defendants, and each of them, by way of their aforesaid conduct, intruded upon the privacy of
Plaintiff in a manner that was highly offensive to a reasonable person.

Plaintiff had a constitutionally protected interest in the privacy of his home without observation,

intrusion, or interference by Defendants, and each of them.

CegEe
PLAINTIFF’S SECOND AMENDED COMPLAINT42. As a result of Defendants’ conduct, and each of them, Plaintiff has suffered damages in an
amount of no less than $25,000.00.

43. Defendants’ conduct and each of them, was intentional, malicious, fraudulent and oppressive, and|
in conscious disregard of Plaintiff's rights. Plaintiff is accordingly entitled to recover punitive
and/or exemplary damages from Defendants pursuant to the terms of California Civil Code
Section 3294, in a sum sufficient to punish Defendants and deter such conduct in the future.

FIFTH CAUSE OF ACTION
(Breach of Contract)

44. Plaintiff realleges and incorporates by reference the above Paragraphs, as though set forth in full.

45. The parties had a valid Lease for the Plaintiff's tenancy at the Subject Premises.

46. Defendants breached the Lease by failing to honor their obligation to address Plaintiff's noise
complaint against Defendant Shaun Markham, Defendants breached the lease by failing to cash
Plaintiff's rent checks.

47. Defendants furthered breach the Lease's written and implied covenant of quiet enjoyment by
failing to honor their obligation to address Plaintiffs noise complaint against Defendant Shaun
Markham.

48. Asa result of Defendants’ breach of the Lease, Plaintiff was damaged by the loss of value of his
tenancy at the Subject Premises in an amount to be proven at trial.

SIXTH CAUSE OF ACTION
(To Enforce Debt Incurred Pursuant to Defendants’ Breach Against Defendant The Wilson
Family Trust)

49. Plaintiff realleges and incorporates by reference the above Paragraphs, as though set forth in full.

50. The parties had a valid Lease for the Plaintiff's tenancy at the Subject Premises, which contains a
provision providing for an award of reasonable attorney’s fees and costs to the prevailing party to
the UD action. Mr. Garcia prevailing and incurrent significant attorney’s fees and costs.

51. In this cause of action, Plaintiff seeks to enforce the award of attorney’s fees and costs against the
contracting party with whom Mr. Garcia entered the Lease in 2010 for possession of the Subject
Premises: The Wilson Family Trust.

SEVENTH CAUSE OF ACTION
(Wrongful Eviction under the San Francisco Administrative Code)
52. Plaintiff realleges and incorporates by reference the above Paragraphs, as though set forth in full.
53. Defendants wrongfully endeavored to recover possession of the Subject Premises in violation of

Sections 37.9 or, in the alternative, 37.10 of the San Francisco Administrative Code.
-7-
PLAINTIFF'S SECOND AMENDED COMPLAINT54, Defendants, each of them, acted in knowing violation of, or in reckless disregard of Sections 37.9
or, in the alternative, 37.10A of the San Francisco Administrative Code. Plaintiff sustained
emotions distress damages in addition to the above-described damages. Plaintiff seeks these
trebled damages pursuant to San Francisco Administrative Code Section 37.9(f).

Wherefore, Plaintiff requests judgment against Defendants as set forth:

1. For general and special damages in an amount according to proof under San Francisco
Administrative Code § 37.10B(c)(5);

2. For punitive damages allowed by law and in an amount sufficient to punish and deter defendants

from engaging in similar misconduct in the future and to punish them for their misconduct under

San Francisco Administrative Code § 37.10B(c)(5) and California Civil Code § 3294;

For damages under California Penal Code § 637.2, 674;

For loss of use damages, where appropriate;

Trebled damages under San Francisco Administrative Code Section 37.9(f);

For interest at the legal rate, including prejudgment interest,

For costs of suit incurred;

ern ® LY

For attorney’s fees allowed by law under; San Francisco Administrative Code §§ 37.9,
37.10B(c)(5); and under the leasehold agreement;

9. For all additional remedies under Cal.C.C.P. § 1029.8 against The Wilson Family Trust and
Angelo Wilson;

10. For such other and further relief as the Court deems just and equitable.

DATED: January 13, 2016 LAW OFFICES OF BENNY MARTIN

BENJAMIN MARTIN
Attorney for Plaintiff

-B-
PLAINTIFF’S SECOND AMENDED COMPLAINTEXHIBITATHIS FORK FOR USE

IN CALIFORNIA ONLY
RESIDENTIAL LEASE-RENTAL AGREEMENT
AND DEPOSIT RECEIPT RealEsie Fame

AGENCY RELATIONSHIP CONFIRMATION. The following agency relationship is hereby confirmed for this transaction and supersedes any
prior agency election (If no agency relationship insert “NONE"):
LISTING AGENT: is the agent of (check one):

(Print Firm Name)
the Owner exclusively; or (_]both the Tenant and the Owner.

LEASING AGENT: Davis Realty Company Ing, (if not the same as the Listing Agent) is the agent of (check one):
(Print Firm Name) |

[the Tenant exclusively; or (]the Owner exclusively; or []both the Tenant and the Owner.

Note: This confirmation DOES NOT take the place of the AGENCY DISCLOSURE form (such as P.P. Form 110.42 CAL) required by

Jaw if the term exceeds one year.

RECEIVED FROM Phillip Garcia , hereinafter referred to as Tenant,
the sum of $ 4.20000 (. Fi usan indred-———
dollars), evidenced by it -—_-__ 48 a deposit. Upon acceptance of this Agreement, the Owner of the
premises, will apply the deposit as follows:
TOTAL RECEIVED BALANCE DUE PRIOR TO OCCUPANCY
Rent for the period from 8-1-40 to 8-34-40 $. 2,100.00 $. 8. —_—2.100.00
Security deposit (not applicable toward last month's rent) $. 2,100.00 $. § 2,400.00
Other. : N/A $ $. $.
Fee led lethal lesiletettle bd cslacbedale $ 4,200.00 $. $ 4,200.00
In the event this Agreement is not accepted by the Owner, within 3 days, the total deposit received will be refunded.
Tenant offers to rent from the Owner the premises situated in the City of an Francisco r
County of San Francisco , State of California, commonly known as 1665 Hayes Street, San Francisco, California, 04117
ing a thre ve, reftiger: and draperi :
upon the following terms and conditions:
4. TERM. The term will commence on August 1, 2010 » and continue (check one of the two following alternatives):
(LEASE until __., for a total rent of §. (
dollars).

EXIRENTAL on @ month-to-month basis, until either party terminates this Agreement by giving the other party written notice as
required by law,

2. RENT, Rent will be $__2.100.00_._, per month, payable in advance by personal check, cashier's check, cash or money order, on
“the __1st__ day of each calendar month to Owner or his or her authorized agent, by mail or personal delivery to the following address
ikie OF rie Hi; ret 94 682

or at such other place as may be designated by Owner in writing from time to time, Payment by personal delivery may be mace (check

one): [] Monday through Friday, 9:00 a.m. to 5:00 p.m., orl Jat the following times:

. Inthe event rent is not received by Owner in full within_5 days after due
date, Tenant agrees that it would be impracticable or extremely difficult to fix the actual damages to Owner caused by that failure, and
Tenant agrees to pay a late charge of $__105,00__. Tenant further agrees to Pay $ 25.00 for each dishonored bank check. Alll late fees
and retumed check fees will be considered additional rent. The late charge period is not a grace-period, and Owner is entitled to make
written demand for any rent if not paid when due and to collect interest thereon. Any unpaid balance including late charges, will bear
interest at 10% per annum, or the maximum rate allowed by law, whichever Is less.

3. MULTIPLE OCCUPANCY, It is expressly understood that this Agreement is between the Owner and each signatory jointly and severally,
Each signatory will be responsible for timely payment of rent and performance of all other provisions of this Agreement,

4, UTILITIES. Tenant will be responsible for the payment of all utlties and services, except: water and garbage _

, which will be paid by Owner.

5. USE. The premises will be used exclusively as a residence for no more than 4 persons, Guests staying more than a total of

0 days in a calendar year without written consent of Owner will constitute a violation of this Agreement. Tenant shall park,

operable automobiles in assigned spaces only. Trailers, boats, campers, and inoperable vehicles are not allowed without the written
consent of Owner. Tenant may not repair motor vehicles on the leased premises.

6, ANIMALS. No animals will be brought on the premises without ihe prior consent of the Owner; except no pets .

7. RULES AND REGULATIONS. In the event that the premises is a portion of a building containing more than one unit, or is located in a
common interest development, Tenant agrees to abide by all applicable rules, whether adopted before or after the date of this
Agreement, including rules with respect to noise, odors, disposal of refuse, animals, parking, and use of common areas. Tenant will

Tenant LCO™ Ti iL ] has read this page.

CAUTION: The copyright laws of the United States forbid the unauthorized reproduction of this form by any means Including
scanning or computerized fonnats.

Page 1 of 4
FORM 105.1 CAL (6-2008] COPYRIGHT BY PROFESSIONAL PUBLISHING, NOVATO, CA. PROFESSIONAL

Form generated by: TrueForms”  www.TrueForms.com 800-499-9612 PUBLISHING

Wilson 016Property Address 41665 Haves Street __San Francisco, California 9444

pay any penalties , including attorney fees, imposed by homeowners’ association for violations by tenant or tenant's guests.

8. ORDINANCES AND STATUTES. Tenant will comply with all statutes, ordinances, and requirements of all municipal, state and federal
authorities now in force, or which may laier be in force, regarding the use of the premises. Tenant will nol use (he premises for any
unlawful purpose including, but not limited to, using, storing or selling prohibited drugs. If the premises are located in a rent control
area, the Tenant should contact the Rent and Arbitration Board for his or her legal rights.

9, ASSIGNMENT AND SUBLETTING. Tenant will not assign this Agreement or sublet any portion of the premises without prior written
consent of the Owner.

10. MAINTENANCE, REPAIRS, OR ALTERATIONS. Tenant acknowledges that, unless the Owner is notified immediately upon occupancy,
the premises, including the furniture, furnishings and appliances, including all electrical, gas and plumbing fixtures, are in good working
order and repair. Tenant will keep the premises in a clean and sanitary condition, and will immediately notify Owner of any damage
to the premises or its contents, or any inoperable equipment or appliances. Tenant will surrender the premises, at termination, in as
good condition as received, normal wear and tear excepted. Tenant will be responsible for any damage, repairs or replacernents,
caused by Tenant's negligence and that of the tenant's family, invitees, and guests, except ordinary wear and tear. Verification of the
working order and the maintenance of the smoke detector is the responsibility of the Tenant. Tenant will not commit any waste u