Family Matters: PHILLIP GARCIA VS. CARRIE WILSON, IN HER CAPACITCY AS TRUSTEE OF THE et al

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                                LAW OFFICES OF BENNY MARTIN
Benjamin Martin (SBN 257452)

3245 Geary Street ELECTRONICALLY

PO Box 591477

San Francisco, CA 94118 eee

Phone: 510.227.4406 County of San Francisco

Email: knowyourightsinsf@gmail.com 03/25/2016
Clerk of the Court

Attorneys for Plaintiff Phillip Garcia ee Sem Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
UNLIMITED JURISDICTION

PHILLIP GARCIA, an individual, } Case No. CGC-14-538560
Plaintiff, } PLAINTIFF’S PHILLIP GARCIA‘S
) OBJECTION TO THE DECLARATION
vs. ) OF DEFENDANT ANGELO WILSON

) FILED IN SUPPORT OF DEFENDANT

CARRIE WILSON, in her capacity as trustee of THE WILSON FAMILY TRUST’S

THE WILSON FAMILY TRUST, SHAUN MOTION TO SUMMARILY
MARKHAM, an individual, ERIKA ADJUDICATE PLAINTIFF’S SIXTH
MARKHAM, an individual, and ANGELO CAUSE OF ACTION

WILSON, an individual, and DOES 1-20.
Date: April 11, 2016
Time: 9:30 a.m.
D

Defendants. ept: 501

Pursuant to CRC Rule 3.1354, and CCP § 437c, Plaintiff submits the following Objections to
Defendant The Wilson Family Trust’s Evidence Submitted in Support of Its Motion for Summary
Adjudication of Plaintiff's Sixth Cause of Action.

Mh

MW

~~ OBJECTIONS TO THE DECL. OF DEFENDANT ANGELO WILSON FILED ISO DEFENDANT THE
WILSON FAMILY TRUST’S MOTION SUMMARILY ADJUDICATE PLAINTIFF’S SIXTH COA
-1-nD

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Material Objected To:

Grounds for Objections:

[Ruling on the

discovery responses.

D'Amico v. Board Of Medical Examiners
(1974) 11 Cal.3d 1, 21-22; Benavidez v. San
Jose Police Dept. (1999) 71 Cal.App.4th 853,
862-863 (the Court disregard a party’s
declaration where it and the party’s deposition
testimony or discovery responses are
“contradictory and mutually exclusive”);
Mikialian v. City of Los Angeles (1978) 79
Cal.App.3d 150, 162 (applying the D’Amico
rule where the declaration contradicts
“unequivocal admissions” in discovery).

Paragraph 3 contradicts Angelo Wilson’s
deposition testimony wherein he admits that
the Trustee directed him to bring the UD
action, and that Angelo Wilson is merely “a
lieutenant” that “If I’m asked to do it, I do it. I
did it. Exhibit E, Martin Decl. 410, Wilson
Depo. Vol. I, 94:17-98:11; UMF, No. 17.

Paragraph 3 contradicts Angelo Wilson’s
sworn discovery responses wherein he
admitted to acting as the Trustee’s “agent or
employee” in bringing the UD action. Exhibit
D, Martin Decl. 49; UMF No.16.

[Objection
DECLARATION OF ANGELO WILSON
Entire Declaration Deficiencies in Form — the declaration is
undated, and the location of execution is Sustained
omitted.
Overruled.

California Code of Civil Procedure § 2015.5
Violates “The D’Amico Rule” — A party may
not seek or defeat summary judgment by Sustained
means of a declaration that contradicts that
declarant’s deposition testimony or sworn Overruled.

Judicial Estoppel or “the Doctrine of
“Preclusion of Inconsistent Positions” —

a

WILSON FAMILY TRUST’S MOTION SUMMARILY ADJUDICATE PLAINTIFF’S SIXTH COAnD

MW Erectors, Inc. v. Niederhauser
Ornamental and Metal Works Co. (2005) 36
Cal.4th 412, 422 (a party may not obtain an
advantage by asserting one position, and then
seeking a second advantage by asserting an
incompatible position.

“The doctrine applies when ‘(1) the same
party has taken two positions; (2) the
positions were taken in judicial or quasi-
judicial administrative proceedings; (3) the
party was successful in asserting the first
position (i.e., the tribunal adopted the position
or accepted it as true); (4) the two positions
are totally inconsistent; and (5) the first
position was not taken as a result of
ignorance, fraud, or mistake’”

Mr. Wilson took the position in the UD action
that he was the property manager acting as
Carrie Wilson’s agent and/or employee in
bringing and maintaining the UD action. UMF|
Nos. 15-19 [Requirement No. 1]; the UD
action was a judicial proceeding
[Requirement No. 2]; Angelo Wilson
successfully brought the UD action
exclusively based upon his allegation that he
was authorized to do so as the property
manager, and was the Trust’s “agent or
employee” and that he initiated the UD action
because “If I’m asked to do it, I do it. I did it”
and that he merely “went along with it,
though, because I was asked to” after the
Trustee directed him to initiate the UD action
over the course of months [Requirement No.
3]; these positions are entirely inconsistent
with the positions he takes in Paragraph 3 of
his declaration wherein he claims “I decided
to initiate the unlawful detainer action,” “I did
not consult Carrie Wilson or any
representative of the Wilson Family Trust at
any point during the unlawful detainer
action,” “[nJeither Carrie Wilson nor any
representative of the Wilson Family Trust

WILSON FAMILY TRUST’S MOTION SUMMARILY ADJUDICATE PLAINTIFF’S SIXTH COA
anD

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exercised control over the litigation”
[Requirement No. 4]; and, there is no
evidence — or event the allegation or argument|
by any defendant - the first position was
taken as a result of ignorance, fraud, or
mistake’” [Requirement No. 5].

Judicial estoppel must preclude Angelo
Wilson from claiming in his declaration, and
upon which Defendant Trust exclusively
relies in its accompanying separate statement
in support of its MSA, that “neither Carrie
Wilson not any representative of the Wilson
Family Trust participated in the unlawful
detainer action” [Defendant's UMF, No. 14];
that “neither Carrie Wilson not any
representative of the Wilson Family Trust was|
kept apprised of the proceedings in the
unlawful detainer action” [Defendant's UMF,
No. 15]; that “neither Carrie Wilson not any
representative of the Wilson Family Trust had
any control over the unlawful detainer action”
[Defendant's UMF, No. 16]; and most
importantly, that “Angelo Wilson had sole
control of the unlawful detainer action.”
Defendant's UMF, No. 17

: March 23, 2016

Respectfully Submitted,
LAW OFFICES OF BENNY MARTIN

BENNY MARTIN
Attorney for Plaintiff Garcia

WILSON FAMILY TRUST’S MOTION SUMMARILY ADJUDICATE PLAINTIFF’S SIXTH COA

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