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LAW OFFICES OF BENNY MARTIN
Benjamin Martin (SBN 257452)
3245 Geary Street
PO Box 591477
San Francisco, CA 94118
Phone: 510.227.4406
Email: knowyourightsinsf@ gmail.com
Attorneys for Plaintiff Phillip Garcia
ELECTRONICALLY
FILED
Supertor Court of Caiffornia,
County of San Francisco
O2/11/2016
Clerk of the Court
BY-WILLIAM TRUPEK
Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
UNLIMITED JURISDICTION
PHILLIP GARCIA, an individual,
Plaintiff,
vs.
CARRIE WILSON, in her capacity as trustee of
THE WILSON FAMILY TRUST, SHAUN
MARKHAM, an individual, ERIKA
MARKHAM, an individual, and ANGELO
WILSON, an individual, and DOES 1-20.
Defendants.
} Case No. CGC-14-538560
} PLAINTIFF PHILLIP GARCIA‘S
) SEPARATE STATEMENT OF
) UNDISPUTED MATERIAL FACT IN
) SUPPORT OF MOTION TO
) SUMMARILY ADJUDICATE HIS
} SIXTH CAUSE OF ACTION
)
) Date: April 11, 2016
Time: 9:30 a.m.
} Dept: 501
Pursuant to CRC Rule 3.1345, and CCP § 437c, Plaintiff Garcia submits the following
Separate Statement of Disputed Material Facts in Support of Motion to Summarily Adjudicate
His Sixth Cause of Action:
PLAINTIFF PHILLIP GARCIA‘S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACT IN.
SUPPORT OF MOTION TO SUMMARILY ADJUDICATE HIS SIXTH CAUSE OF ACTION27
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UNDISPUTED MATERIAL FACTS COMMON TO ALL ISSUES
MOVING PARTY’S UNDISPUTED
MATERIAL FACTS AND SUPPORTING
EVIDENCE
OPPOSING PARTY’S RESPONSE TO
SUPPORTING EVIDENCE
1. On May 31, 1994, Carrie and Frankie
Wilson in their individual capacities
transferred 1665 Hayes Street, San
Francisco, CA (“Subject Premises”) to
their themselves in their capacities as
trustees of the Wilson Family Trust
(“Trust”).
The Subject Prmeises was sold in or about
May 2014.
Certified Copy, Individual Grant Deed, San
Francisco Recorder’s Office, attached as
Exhibit B the 2nd Amended Complaint
(“SAC”), Request for Judicial Notice in
Support of Plaintiff’s Motion to Summarily
Adjudicate His Sixth Cause of Action
(“Request for Judicial Notice”), 96, Exhibit E;
Vol. I of the Deposition fo Angelo Wilson,
August 7, 2014, (“Wilson Depo. Vol. I”),
attached as Exhibit E, Declaration of
Plaintiff’s Counsel Benny Martin in Support
of Plaintiff's Motion to Summarily
Adjudication His Sixth cause of Action,
(“Martin Decl.) 910, 85:19-86:4; 92:1-5.
2. Defendant Angelo Wilson was the
property manager for the Subject Premises
during the life of Mr. Garcia’s tenancy,
and until the Subject Prmeises was sold in
or about May 2014.
Exhibit E, Martin Decl. 910, Wilson Depo.
Vol. I, 20:3-7; 22:4-5; 41:8-42:13; 69:21-24;
92:1-3; 92:25-93:2; 97:21-98:8
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PLAINTIFF PHILLIP GARCIA‘S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACT IN.
SUPPORT OF MOTION TO SUMMARILY ADJUDICATE HIS SIXTH CAUSE OF ACTION27
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MOVING PARTY’S UNDISPUTED
MATERIAL FACTS AND SUPPORTING
EVIDENCE
OPPOSING PARTY’S RESPONSE TO
SUPPORTING EVIDENCE
3. On behalf of the Trustees, Defendant
Angelo Wilson entered into a written lease
agreement as “authorized agent” on July
30, 2010.
Exhibit A to Request for Judicial Notice, $6,
Exhibit E, (Bates No. Wilson 19, lease
signature page); Exhibit E, Martin Decl. §10,
Wilson Depo. Vol. I, 41:4-43:12.
4. On May 3, 2013, the Defendant Angelo
Wilson filed an unlawful detainer action
against Mr. Garcia, Case No. CUD-13-
645240 in San Francisco Superior Court.
Defendant Angelo Wilson verified under
the penalty of perjury that his interest in
the Subject Premises was as “Property
Manager.”
Exhibit A, Request for Judicial Notice, 1, at
94.
5. After a seven (7) day bench trial,
Judgment was entered in favor of Mr.
Garcia on November 21, 2013, Mr. Garcia
filed his cost bill on November 25, 2013,
upon which $7,210.95 was awarded, and
pursuant to the lease’s attorney’s fee
provision, on February 14, 2014,
attorney’s fees in the amount of $42,500
were awarded against Defendant Angelo
Wilson.
Exhibits B-D, Request for Judicial Notice,
993-5.
6. On August 20, 2014, the San Francisco
Sheriff's Office created a Memorandum of
Garnishee reflecting that Defendant
Angelo Wilson’s bank account was levied
for $2,537.25 on the $49,710.95 judgment,
leaving $47,173.70 unsatisfied.
Exhibit B, Martin Decl. 93.
3
PLAINTIFF PHILLIP GARCIA‘S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACT IN.
SUPPORT OF MOTION TO SUMMARILY ADJUDICATE HIS SIXTH CAUSE OF ACTION27
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MOVING PARTY’S UNDISPUTED
MATERIAL FACTS AND SUPPORTING
EVIDENCE
OPPOSING PARTY’S RESPONSE TO
SUPPORTING EVIDENCE
7. On January 30, 2015, Mr. Garcia’s
counsel filed on his behalf a
Memorandum of Costs After Judgment,
and Declaration of Accrued Interest.
$7,620.00 in post-judgment costs/fees
were claimed.
Exhibit F, Request for Judicial Notice, {7
8. Defendant Angelo Wilson’s counsel filed
a motion to tax costs on the claimed
$7,620.00 in costs/fees.
On March 27, 2015, the Court granted in
part the motion to tax costs, reduceding
the post-judgment costs/fees claimed to
$3,245.00.
Exhibit G, Request for Judicial Notice, 98.
9. Interest on the $49,710.95 judgment
accrued at $13.62/day
Exhibit C, Martin Decl. $4; C.C_P. 8§
685.010; 685.020.
10. From February 15, 2014, through August
19, 2014 (the day before Defendant
Angelo Wilson’s bank account was
levied for $2,537.25) is 186 days, 10%
interest on the 49,710,95 judgment at
$13.62/day is $2,533.22.
Martin Decl. 95; C.C.P. $§ 685.010; 685.020.
11. Interest is calculated only on the
unsatisfied portion of the judgment, and
compound interest is prohibited. Thus,
interest accrued from August 21, 2014,
on the unsatisfied portion of the judgment
in the amount of $47,173.70.
Martin Decl. $6; C.C.P. $§ 685.030(c).
4
PLAINTIFF PHILLIP GARCIA‘S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACT IN.
SUPPORT OF MOTION TO SUMMARILY ADJUDICATE HIS SIXTH CAUSE OF ACTION27
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MOVING PARTY’S UNDISPUTED
MATERIAL FACTS AND SUPPORTING
EVIDENCE
OPPOSING PARTY’S RESPONSE TO
SUPPORTING EVIDENCE
12. From August 21, 2014 through April 11,
2016, the hearing date on this Motion is
599 days, and 10% interest on the
$47,173.70 unsatisfied portion judgment
at $12.92/day equals $7,739.08.
Martin Decl. 97; C.C.P. $§ 685.010; 685.020
13. As of the hearing date on this Motion,
April 11,2016, Angelo Wilson’s debt to
Mr. Garcia in connection to the unlawful
detainer action is exactly $60,691.00.
Martin Decl. 98.
14. Aside from the fees and costs incurred in
bringing his Sixth Cause of Action for
enforcement of debt, as of the hearing
date in this Motion, April 11,2016, The
Wilson Family Trust’s debt to Mr. Garcia
in connection to the unlawful detainer
action is exactly $60.691.00.
ISSUE NO. 1:
PLAINTIFF IS ENTITLED TO ADJUDICATION OF HIS SIXTH
CAUSE OF ACTION BECAUSE THE WILSON FAMILY TRUST
MUST INDEMNIFY ANGELO WILSON AS ITS EMPLOYEE FOR
DEBTS INCURRED IN THE COURSE OF EMPLOYMENT.
MOVING PARTY’S UNDISPUTED
MATERIAL FACTS AND SUPPORTING
EVIDENCE
OPPOSING PARTY’S RESPONSE TO
SUPPORTING EVIDENCE
15. Trustee Carrie Wilson directed Defendant
Angelo Wilson to file an unlawful
detainer action against Plaintiff Garcia.
Exhibit E, Martin Decl. §10, Wilson Depo.
Vol. 1, 97:14-98:10.
PLAINTIFF PHILLIP GARCIA‘S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACT IN.
SUPPORT OF MOTION TO SUMMARILY ADJUDICATE HIS SIXTH CAUSE OF ACTION27
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MOVING PARTY’S UNDISPUTED
MATERIAL FACTS AND SUPPORTING
EVIDENCE
OPPOSING PARTY’S RESPONSE TO
SUPPORTING EVIDENCE
16. In the unlawful detainer action, Mr. Garcia
propounded the interrogatory: “At the
time of the INCIDENT were you acting as
an agent or employee of any PERSON?”
Defendant Angelo Wilson verified under
the penalty of perjury the response “Yes, I
manage the property for Carrie Wilson”.
Exhibit D, Martin Decl. $9.
17. According to Defendant Angelo Wilson,
he was instructed to initiate eviction
proceedings against Mr. Garcia: “If
somebody says, ‘This is what’s going to
happen,’ this is what happens. I'm just a
lieutenant,” and “If I'm asked to do it, I do
it. I did it.”
Exhibit E, Martin Decl. 10, Wilson Depo.
Vol. I, 94:17-98:11
18. With regard to initiating eviction
proceedings. Defendant Angelo Wilson
“went along with it, though, because I was
asked to.”
Exhibit E, Martin Decl. $10, Wilson Depo.
Vol. I , 94:17-20.
19. Over the course of months, Trustee Carrie
Wilson directed Defendant Angelo Wilson
to initiate eviction proceedings against
Mr. Garcia.
Exhibit E, Martin Decl. §10, Wilson Depo.
Vol. I, 98:14-99:7
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PLAINTIFF PHILLIP GARCIA‘S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACT IN.
SUPPORT OF MOTION TO SUMMARILY ADJUDICATE HIS SIXTH CAUSE OF ACTION27
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MOVING PARTY’S UNDISPUTED
MATERIAL FACTS AND SUPPORTING
EVIDENCE
OPPOSING PARTY’S RESPONSE TO
SUPPORTING EVIDENCE
20. There are two applicable presumptions of
employee status set forth in the California
Labor Code:
No. 1: Labor Code § 3357 presumes the
existence of an employee-employer
relationship.
Labor Code § 3357
21. Presumption of employee status No. 2:
Persons in positons for which a license is
required are presumed to be employees.
Cal.Labor Code § 2750.5
22. Angelo Wilson was required to have a
licnese as property manager of the Subject
Prmeises in order to enter into the written
lease with Philip Garcia on behalf of the
Trust, and in order to collect rents from
Mr. Garcia.
Cal.Bus. & Prof.Code § 10131(b); Miller and
Starr California Real Estate, 2 Cal. Real Est.
§ 4:10 (3d ed.); MKB Management, Inc. v.
Melikian (2010) 184 Cal.App.4th 79 (“A
broker’s license was required for offering for
lease and leasing apartment units and
collecting rents.””)
23. Angelo Wilson has never held a real estate
license in the State of California.
Exhibit F, Martin Decl. §11
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PLAINTIFF PHILLIP GARCIA‘S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACT IN.
SUPPORT OF MOTION TO SUMMARILY ADJUDICATE HIS SIXTH CAUSE OF ACTION27
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MOVING PARTY’S UNDISPUTED
MATERIAL FACTS AND SUPPORTING
EVIDENCE
OPPOSING PARTY’S RESPONSE TO
SUPPORTING EVIDENCE
23. Paragraph 2 of the lease calls for Mr.
Garcia to pay rent to the Trustee, and to
deliver his rent checks for collection to
Angelo Wilson at 1673 Hayes Street, San
Francisco, CA.
Exhibit E, Martin Decl. §10, Wilson Depo.
Vol. I, 68:16-69:17; Declaration of Phillip
Garcia in Support §2; Exhibit A to Request
for Judicial Notice, 96, at J2
24. The Trustee reimbursed for incurred
expenditures in carrying out his property
management duties, and receives
compensation from the Trust in the form
of a discount in his monthly rent in the
amount of $1,500.
Exhibit E, Martin Decl. §10, Wilson Depo.
Vol. I, 24:4-12.
8
PLAINTIFF PHILLIP GARCIA‘S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACT IN.
SUPPORT OF MOTION TO SUMMARILY ADJUDICATE HIS SIXTH CAUSE OF ACTION27
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ISSUE NO.2: PLAINTIFF IS ENTITLED TO ADJUDICATION OF HIS SIXTH
CAUSE OF ACTION BECAUSE ANGELO WILSON WAS THE
WILSON FAMILY TRUST’S AGENT WHEN ANGELO WILSON
INCURRED THE DEBT TO PHILLIP GARCIA.
MOVING PARTY’S UNDISPUTED
MATERIAL FACTS AND SUPPORTING
EVIDENCE
OPPOSING PARTY’S RESPONSE TO
SUPPORTING EVIDENCE
25. The Trustee directed Angelo Wilson to
initiate eviciton proceedings against Mr.
Garcia.
UME Nos. 15-19, above.
26. Angelo Wilson was the agent of his
principle the Wilson Family Trust, and
was acting within the course and scope
thereof when he initiated the eviciton
proceedings against Mr. Garcia.
Cal.Civ.Code §§ 2295, 2304, 2307, 2330,
2338, 2339; Cal. Prac. Guide Real Prop.
Trans. Ch. 10-B, 910-67: “the principal
(owner) is almost always liable to third
persons for the misfeasance of its agent (the
property manager)”; Exhibit E, Martin Decl.
§10, Wilson Depo. Vol. I, 20:3-7; 22:4-5;
41:8-42:13; 69:21-24; 92:25-93:2; 97:21-98:8
ISSUE NO.3: PLAINTIFF IS ENTITLED TO ADJUDICATION OF HIS SIXTH
CAUSE OF ACTION BECAUSE THE WILSON FAMILY TRUST IS
THE PARTY WITH WHOM PHILLIP GARCIA CONTRACTED
UNDER WHICH FEES AND COSTS WERE AWARDED.
MOVING PARTY’S UNDISPUTED
MATERIAL FACTS AND SUPPORTING
EVIDENCE
OPPOSING PARTY’S RESPONSE TO
SUPPORTING EVIDENCE
27. Angelo Wilson executed the lease over the
words, “signature of owner or authorized
agent.”
Exhibit A to Request for Judicial Notice, §6,
Exhibit E, (Bates No. Wilson 19, lease
signature page).
9
PLAINTIFF PHILLIP GARCIA‘S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACT IN.
SUPPORT OF MOTION TO SUMMARILY ADJUDICATE HIS SIXTH CAUSE OF ACTION27
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MOVING PARTY’S UNDISPUTED
MATERIAL FACTS AND SUPPORTING
EVIDENCE
OPPOSING PARTY’S RESPONSE TO
SUPPORTING EVIDENCE
28. When the lease was executed, the owner
was the Trust, and the Trustees at that
time were Frankie Wilson and Carrie
Wilson.
Exhibit E, Request for Judicial Notice, §6, at
Ex. B, (Bates Wilson 19, signature page)
29. Trustees may contract on behalf of trust
without naming or identifying the trust in
the contract.
C.CP. § 369(a)(2).
30. Paragraph 22 of the lease provides:
“In any action or proceeding involving a
dispute between Tenant and Owner arising
out of the execution of this Agreement,
whether for tort or for breach of contract,
and whether or not brought to tiral or final
judgment, the prevailing party will be
entitled to receive from the other party a
reasonable attorney fee, expert witness
fee, and costs to be determined by the
court or arbirator(s).”
Exhibit E, Request for Judicial Notice, 96, at
Ex. B, at $22.
10
PLAINTIFF PHILLIP GARCIA‘S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACT IN.
SUPPORT OF MOTION TO SUMMARILY ADJUDICATE HIS SIXTH CAUSE OF ACTION27
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31. Pursuant to paragraph 22 of the lease,
and costs as prevailing party in the
underlying unlawful detainer action.
Thus, the debt Angelo Wilson incurred
Phillip Garica and Defendant Trust.
Exhibits B-D, Request for Judicial Notice,
993-5.
Phillip Garcia was awarded attorney’s fees
arises exclusively from the lease between
lease with Mr. Garcia on behalf of the
the Trustee the payee, but to deliver the
rent checks to Defendant Angelo Wilson
UME No. 3; Vol. I of the Deposition fo
Angelo Wilson, August 7, 2014, (“Wilson
Depo. Vol. I”), 68:16-96:17; Declaration of
Phillip Garcia in Support §2: Lease, §2
32. Defendant Angelo Wilson entered into the
Trust, which calls for Mr. Garcia to make
at 1673 Hayes Street, San Francisco, CA.
ISSUE NO. 4: THE WILSON FAMILY TRUST IS COLLATERALLY ESTOPPED
FROM OPPOSING THE ATTORNEY’S FEE AND COST AWARD
BECAUSE IT WAS FULLY LITIGATED IN THE UNDERLYING
UNLAWFUL DETAINER ACTION.
MOVING PARTY’S UNDISPUTED
MATERIAL FACTS AND SUPPORTING
EVIDENCE
OPPOSING PARTY’S RESPONSE TO
SUPPORTING EVIDENCE
33. The issue to be adjudicated here is
identical to the issue decided in the
unlawful detainer action: who was the
prevailing party and the amount of
attorney’s fees and costs reasonably
incurred by the prevailing party in
connection to the unlawful detainer action.
11
PLAINTIFF PHILLIP GARCIA‘S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACT IN.
SUPPORT OF MOTION TO SUMMARILY ADJUDICATE HIS SIXTH CAUSE OF ACTION27
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MOVING PARTY’S UNDISPUTED
MATERIAL FACTS AND SUPPORTING
EVIDENCE
OPPOSING PARTY’S RESPONSE TO
SUPPORTING EVIDENCE
34. The issue was actually litigated: there was
a full adversarial trial lasting seven (7) full
court days, with approximately 40
witnesses, both percipient and expert, with
more than one hundred (100) exhibits
offered into evidence at trial.
After prevailing at trial, Mr. Garcia moved
for a determination of prevailing party,
and moved for attorney’s fees. Counsel
for Angelo Wilson filed an opposition,
and appeared at the February 14, 2014
hearing on the motion.
Request for Judicial Notice, §2, Exhibit Lists,
and Minute Orders on Exhibits and
Witnesses.
35. The decision in the unlawful detainer
action was final and was on the merits.
36. The Trust in privity with Angelo Wilson
to the prior proceeding.
37. Angelo Wilson was represented by
experienced counsel in all pre-trial
matters, at trial, in post-trial fees and costs
motions in 2014, and in post-trial motion
to tax costs in 2015.
Exhibits A-D, Request for Judicial Notice,
992-5.
38. The lawyer prosecuting the unlawful
detainer action used the existence of the
attorney’s fee provision to pressure Mr.
Garcia to vacate his home prior to trial.
Martin Decl. §2, Ex. A
39. The Trust is collaterally estopped from
opposing the attorney’s fees and costs
awarded to Mr. Garcia in the underlying
unlawful detainer action.
12
PLAINTIFF PHILLIP GARCIA‘S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACT IN.
SUPPORT OF MOTION TO SUMMARILY ADJUDICATE HIS SIXTH CAUSE OF ACTION27
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Dated: January 20, 2016 LAW OFFICES OF BENNY MARTIN
BENNY MARTIN
Attorney for Plaintiff Phillil Garcia
13
PLAINTIFF PHILLIP GARCIA‘S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACT IN.
SUPPORT OF MOTION TO SUMMARILY ADJUDICATE HIS SIXTH CAUSE OF ACTION
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27 ne LAW OFFICES OF BENNY MARTIN Benjamin Martin (SBN 257452) 3245 Geary Street PO Box 591477 San Francisco, CA 94118 Phone: 510.227.4406 Email: knowyourightsinsf@ gmail.com Attorneys for Plaintiff Phillip Garcia ELECTRONICALLY FILED Supertor Court of Caiffornia, County of San Francisco O2/11/2016 Clerk of the Court BY-WILLIAM TRUPEK Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO UNLIMITED JURISDICTION PHILLIP GARCIA, an individual, Plaintiff, vs. CARRIE WILSON, in her capacity as trustee of THE WILSON FAMILY TRUST, SHAUN MARKHAM, an individual, ERIKA MARKHAM, an individual, and ANGELO WILSON, an individual, and DOES 1-20. Defendants. } Case No. CGC-14-538560 } PLAINTIFF PHILLIP GARCIA‘S ) SEPARATE STATEMENT OF ) UNDISPUTED MATERIAL FACT IN ) SUPPORT OF MOTION TO ) SUMMARILY ADJUDICATE HIS } SIXTH CAUSE OF ACTION ) ) Date: April 11, 2016 Time: 9:30 a.m. } Dept: 501 Pursuant to CRC Rule 3.1345, and CCP § 437c, Plaintiff Garcia submits the following Separate Statement of Disputed Material Facts in Support of Motion to Summarily Adjudicate His Sixth Cause of Action: PLAINTIFF PHILLIP GARCIA‘S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACT IN. SUPPORT OF MOTION TO SUMMARILY ADJUDICATE HIS SIXTH CAUSE OF ACTION27 ne UNDISPUTED MATERIAL FACTS COMMON TO ALL ISSUES MOVING PARTY’S UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE OPPOSING PARTY’S RESPONSE TO SUPPORTING EVIDENCE 1. On May 31, 1994, Carrie and Frankie Wilson in their individual capacities transferred 1665 Hayes Street, San Francisco, CA (“Subject Premises”) to their themselves in their capacities as trustees of the Wilson Family Trust (“Trust”). The Subject Prmeises was sold in or about May 2014. Certified Copy, Individual Grant Deed, San Francisco Recorder’s Office, attached as Exhibit B the 2nd Amended Complaint (“SAC”), Request for Judicial Notice in Support of Plaintiff’s Motion to Summarily Adjudicate His Sixth Cause of Action (“Request for Judicial Notice”), 96, Exhibit E; Vol. I of the Deposition fo Angelo Wilson, August 7, 2014, (“Wilson Depo. Vol. I”), attached as Exhibit E, Declaration of Plaintiff’s Counsel Benny Martin in Support of Plaintiff's Motion to Summarily Adjudication His Sixth cause of Action, (“Martin Decl.) 910, 85:19-86:4; 92:1-5. 2. Defendant Angelo Wilson was the property manager for the Subject Premises during the life of Mr. Garcia’s tenancy, and until the Subject Prmeises was sold in or about May 2014. Exhibit E, Martin Decl. 910, Wilson Depo. Vol. I, 20:3-7; 22:4-5; 41:8-42:13; 69:21-24; 92:1-3; 92:25-93:2; 97:21-98:8 2 PLAINTIFF PHILLIP GARCIA‘S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACT IN. SUPPORT OF MOTION TO SUMMARILY ADJUDICATE HIS SIXTH CAUSE OF ACTION27 ne MOVING PARTY’S UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE OPPOSING PARTY’S RESPONSE TO SUPPORTING EVIDENCE 3. On behalf of the Trustees, Defendant Angelo Wilson entered into a written lease agreement as “authorized agent” on July 30, 2010. Exhibit A to Request for Judicial Notice, $6, Exhibit E, (Bates No. Wilson 19, lease signature page); Exhibit E, Martin Decl. §10, Wilson Depo. Vol. I, 41:4-43:12. 4. On May 3, 2013, the Defendant Angelo Wilson filed an unlawful detainer action against Mr. Garcia, Case No. CUD-13- 645240 in San Francisco Superior Court. Defendant Angelo Wilson verified under the penalty of perjury that his interest in the Subject Premises was as “Property Manager.” Exhibit A, Request for Judicial Notice, 1, at 94. 5. After a seven (7) day bench trial, Judgment was entered in favor of Mr. Garcia on November 21, 2013, Mr. Garcia filed his cost bill on November 25, 2013, upon which $7,210.95 was awarded, and pursuant to the lease’s attorney’s fee provision, on February 14, 2014, attorney’s fees in the amount of $42,500 were awarded against Defendant Angelo Wilson. Exhibits B-D, Request for Judicial Notice, 993-5. 6. On August 20, 2014, the San Francisco Sheriff's Office created a Memorandum of Garnishee reflecting that Defendant Angelo Wilson’s bank account was levied for $2,537.25 on the $49,710.95 judgment, leaving $47,173.70 unsatisfied. Exhibit B, Martin Decl. 93. 3 PLAINTIFF PHILLIP GARCIA‘S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACT IN. SUPPORT OF MOTION TO SUMMARILY ADJUDICATE HIS SIXTH CAUSE OF ACTION27 ne MOVING PARTY’S UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE OPPOSING PARTY’S RESPONSE TO SUPPORTING EVIDENCE 7. On January 30, 2015, Mr. Garcia’s counsel filed on his behalf a Memorandum of Costs After Judgment, and Declaration of Accrued Interest. $7,620.00 in post-judgment costs/fees were claimed. Exhibit F, Request for Judicial Notice, {7 8. Defendant Angelo Wilson’s counsel filed a motion to tax costs on the claimed $7,620.00 in costs/fees. On March 27, 2015, the Court granted in part the motion to tax costs, reduceding the post-judgment costs/fees claimed to $3,245.00. Exhibit G, Request for Judicial Notice, 98. 9. Interest on the $49,710.95 judgment accrued at $13.62/day Exhibit C, Martin Decl. $4; C.C_P. 8§ 685.010; 685.020. 10. From February 15, 2014, through August 19, 2014 (the day before Defendant Angelo Wilson’s bank account was levied for $2,537.25) is 186 days, 10% interest on the 49,710,95 judgment at $13.62/day is $2,533.22. Martin Decl. 95; C.C.P. $§ 685.010; 685.020. 11. Interest is calculated only on the unsatisfied portion of the judgment, and compound interest is prohibited. Thus, interest accrued from August 21, 2014, on the unsatisfied portion of the judgment in the amount of $47,173.70. Martin Decl. $6; C.C.P. $§ 685.030(c). 4 PLAINTIFF PHILLIP GARCIA‘S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACT IN. SUPPORT OF MOTION TO SUMMARILY ADJUDICATE HIS SIXTH CAUSE OF ACTION27 ne MOVING PARTY’S UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE OPPOSING PARTY’S RESPONSE TO SUPPORTING EVIDENCE 12. From August 21, 2014 through April 11, 2016, the hearing date on this Motion is 599 days, and 10% interest on the $47,173.70 unsatisfied portion judgment at $12.92/day equals $7,739.08. Martin Decl. 97; C.C.P. $§ 685.010; 685.020 13. As of the hearing date on this Motion, April 11,2016, Angelo Wilson’s debt to Mr. Garcia in connection to the unlawful detainer action is exactly $60,691.00. Martin Decl. 98. 14. Aside from the fees and costs incurred in bringing his Sixth Cause of Action for enforcement of debt, as of the hearing date in this Motion, April 11,2016, The Wilson Family Trust’s debt to Mr. Garcia in connection to the unlawful detainer action is exactly $60.691.00. ISSUE NO. 1: PLAINTIFF IS ENTITLED TO ADJUDICATION OF HIS SIXTH CAUSE OF ACTION BECAUSE THE WILSON FAMILY TRUST MUST INDEMNIFY ANGELO WILSON AS ITS EMPLOYEE FOR DEBTS INCURRED IN THE COURSE OF EMPLOYMENT. MOVING PARTY’S UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE OPPOSING PARTY’S RESPONSE TO SUPPORTING EVIDENCE 15. Trustee Carrie Wilson directed Defendant Angelo Wilson to file an unlawful detainer action against Plaintiff Garcia. Exhibit E, Martin Decl. §10, Wilson Depo. Vol. 1, 97:14-98:10. PLAINTIFF PHILLIP GARCIA‘S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACT IN. SUPPORT OF MOTION TO SUMMARILY ADJUDICATE HIS SIXTH CAUSE OF ACTION27 ne MOVING PARTY’S UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE OPPOSING PARTY’S RESPONSE TO SUPPORTING EVIDENCE 16. In the unlawful detainer action, Mr. Garcia propounded the interrogatory: “At the time of the INCIDENT were you acting as an agent or employee of any PERSON?” Defendant Angelo Wilson verified under the penalty of perjury the response “Yes, I manage the property for Carrie Wilson”. Exhibit D, Martin Decl. $9. 17. According to Defendant Angelo Wilson, he was instructed to initiate eviction proceedings against Mr. Garcia: “If somebody says, ‘This is what’s going to happen,’ this is what happens. I'm just a lieutenant,” and “If I'm asked to do it, I do it. I did it.” Exhibit E, Martin Decl. 10, Wilson Depo. Vol. I, 94:17-98:11 18. With regard to initiating eviction proceedings. Defendant Angelo Wilson “went along with it, though, because I was asked to.” Exhibit E, Martin Decl. $10, Wilson Depo. Vol. I , 94:17-20. 19. Over the course of months, Trustee Carrie Wilson directed Defendant Angelo Wilson to initiate eviction proceedings against Mr. Garcia. Exhibit E, Martin Decl. §10, Wilson Depo. Vol. I, 98:14-99:7 6 PLAINTIFF PHILLIP GARCIA‘S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACT IN. SUPPORT OF MOTION TO SUMMARILY ADJUDICATE HIS SIXTH CAUSE OF ACTION27 ne MOVING PARTY’S UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE OPPOSING PARTY’S RESPONSE TO SUPPORTING EVIDENCE 20. There are two applicable presumptions of employee status set forth in the California Labor Code: No. 1: Labor Code § 3357 presumes the existence of an employee-employer relationship. Labor Code § 3357 21. Presumption of employee status No. 2: Persons in positons for which a license is required are presumed to be employees. Cal.Labor Code § 2750.5 22. Angelo Wilson was required to have a licnese as property manager of the Subject Prmeises in order to enter into the written lease with Philip Garcia on behalf of the Trust, and in order to collect rents from Mr. Garcia. Cal.Bus. & Prof.Code § 10131(b); Miller and Starr California Real Estate, 2 Cal. Real Est. § 4:10 (3d ed.); MKB Management, Inc. v. Melikian (2010) 184 Cal.App.4th 79 (“A broker’s license was required for offering for lease and leasing apartment units and collecting rents.””) 23. Angelo Wilson has never held a real estate license in the State of California. Exhibit F, Martin Decl. §11 7 PLAINTIFF PHILLIP GARCIA‘S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACT IN. SUPPORT OF MOTION TO SUMMARILY ADJUDICATE HIS SIXTH CAUSE OF ACTION27 ne MOVING PARTY’S UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE OPPOSING PARTY’S RESPONSE TO SUPPORTING EVIDENCE 23. Paragraph 2 of the lease calls for Mr. Garcia to pay rent to the Trustee, and to deliver his rent checks for collection to Angelo Wilson at 1673 Hayes Street, San Francisco, CA. Exhibit E, Martin Decl. §10, Wilson Depo. Vol. I, 68:16-69:17; Declaration of Phillip Garcia in Support §2; Exhibit A to Request for Judicial Notice, 96, at J2 24. The Trustee reimbursed for incurred expenditures in carrying out his property management duties, and receives compensation from the Trust in the form of a discount in his monthly rent in the amount of $1,500. Exhibit E, Martin Decl. §10, Wilson Depo. Vol. I, 24:4-12. 8 PLAINTIFF PHILLIP GARCIA‘S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACT IN. SUPPORT OF MOTION TO SUMMARILY ADJUDICATE HIS SIXTH CAUSE OF ACTION27 ne ISSUE NO.2: PLAINTIFF IS ENTITLED TO ADJUDICATION OF HIS SIXTH CAUSE OF ACTION BECAUSE ANGELO WILSON WAS THE WILSON FAMILY TRUST’S AGENT WHEN ANGELO WILSON INCURRED THE DEBT TO PHILLIP GARCIA. MOVING PARTY’S UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE OPPOSING PARTY’S RESPONSE TO SUPPORTING EVIDENCE 25. The Trustee directed Angelo Wilson to initiate eviciton proceedings against Mr. Garcia. UME Nos. 15-19, above. 26. Angelo Wilson was the agent of his principle the Wilson Family Trust, and was acting within the course and scope thereof when he initiated the eviciton proceedings against Mr. Garcia. Cal.Civ.Code §§ 2295, 2304, 2307, 2330, 2338, 2339; Cal. Prac. Guide Real Prop. Trans. Ch. 10-B, 910-67: “the principal (owner) is almost always liable to third persons for the misfeasance of its agent (the property manager)”; Exhibit E, Martin Decl. §10, Wilson Depo. Vol. I, 20:3-7; 22:4-5; 41:8-42:13; 69:21-24; 92:25-93:2; 97:21-98:8 ISSUE NO.3: PLAINTIFF IS ENTITLED TO ADJUDICATION OF HIS SIXTH CAUSE OF ACTION BECAUSE THE WILSON FAMILY TRUST IS THE PARTY WITH WHOM PHILLIP GARCIA CONTRACTED UNDER WHICH FEES AND COSTS WERE AWARDED. MOVING PARTY’S UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE OPPOSING PARTY’S RESPONSE TO SUPPORTING EVIDENCE 27. Angelo Wilson executed the lease over the words, “signature of owner or authorized agent.” Exhibit A to Request for Judicial Notice, §6, Exhibit E, (Bates No. Wilson 19, lease signature page). 9 PLAINTIFF PHILLIP GARCIA‘S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACT IN. SUPPORT OF MOTION TO SUMMARILY ADJUDICATE HIS SIXTH CAUSE OF ACTION27 ne MOVING PARTY’S UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE OPPOSING PARTY’S RESPONSE TO SUPPORTING EVIDENCE 28. When the lease was executed, the owner was the Trust, and the Trustees at that time were Frankie Wilson and Carrie Wilson. Exhibit E, Request for Judicial Notice, §6, at Ex. B, (Bates Wilson 19, signature page) 29. Trustees may contract on behalf of trust without naming or identifying the trust in the contract. C.CP. § 369(a)(2). 30. Paragraph 22 of the lease provides: “In any action or proceeding involving a dispute between Tenant and Owner arising out of the execution of this Agreement, whether for tort or for breach of contract, and whether or not brought to tiral or final judgment, the prevailing party will be entitled to receive from the other party a reasonable attorney fee, expert witness fee, and costs to be determined by the court or arbirator(s).” Exhibit E, Request for Judicial Notice, 96, at Ex. B, at $22. 10 PLAINTIFF PHILLIP GARCIA‘S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACT IN. SUPPORT OF MOTION TO SUMMARILY ADJUDICATE HIS SIXTH CAUSE OF ACTION27 ne 31. Pursuant to paragraph 22 of the lease, and costs as prevailing party in the underlying unlawful detainer action. Thus, the debt Angelo Wilson incurred Phillip Garica and Defendant Trust. Exhibits B-D, Request for Judicial Notice, 993-5. Phillip Garcia was awarded attorney’s fees arises exclusively from the lease between lease with Mr. Garcia on behalf of the the Trustee the payee, but to deliver the rent checks to Defendant Angelo Wilson UME No. 3; Vol. I of the Deposition fo Angelo Wilson, August 7, 2014, (“Wilson Depo. Vol. I”), 68:16-96:17; Declaration of Phillip Garcia in Support §2: Lease, §2 32. Defendant Angelo Wilson entered into the Trust, which calls for Mr. Garcia to make at 1673 Hayes Street, San Francisco, CA. ISSUE NO. 4: THE WILSON FAMILY TRUST IS COLLATERALLY ESTOPPED FROM OPPOSING THE ATTORNEY’S FEE AND COST AWARD BECAUSE IT WAS FULLY LITIGATED IN THE UNDERLYING UNLAWFUL DETAINER ACTION. MOVING PARTY’S UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE OPPOSING PARTY’S RESPONSE TO SUPPORTING EVIDENCE 33. The issue to be adjudicated here is identical to the issue decided in the unlawful detainer action: who was the prevailing party and the amount of attorney’s fees and costs reasonably incurred by the prevailing party in connection to the unlawful detainer action. 11 PLAINTIFF PHILLIP GARCIA‘S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACT IN. SUPPORT OF MOTION TO SUMMARILY ADJUDICATE HIS SIXTH CAUSE OF ACTION27 ne MOVING PARTY’S UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE OPPOSING PARTY’S RESPONSE TO SUPPORTING EVIDENCE 34. The issue was actually litigated: there was a full adversarial trial lasting seven (7) full court days, with approximately 40 witnesses, both percipient and expert, with more than one hundred (100) exhibits offered into evidence at trial. After prevailing at trial, Mr. Garcia moved for a determination of prevailing party, and moved for attorney’s fees. Counsel for Angelo Wilson filed an opposition, and appeared at the February 14, 2014 hearing on the motion. Request for Judicial Notice, §2, Exhibit Lists, and Minute Orders on Exhibits and Witnesses. 35. The decision in the unlawful detainer action was final and was on the merits. 36. The Trust in privity with Angelo Wilson to the prior proceeding. 37. Angelo Wilson was represented by experienced counsel in all pre-trial matters, at trial, in post-trial fees and costs motions in 2014, and in post-trial motion to tax costs in 2015. Exhibits A-D, Request for Judicial Notice, 992-5. 38. The lawyer prosecuting the unlawful detainer action used the existence of the attorney’s fee provision to pressure Mr. Garcia to vacate his home prior to trial. Martin Decl. §2, Ex. A 39. The Trust is collaterally estopped from opposing the attorney’s fees and costs awarded to Mr. Garcia in the underlying unlawful detainer action. 12 PLAINTIFF PHILLIP GARCIA‘S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACT IN. SUPPORT OF MOTION TO SUMMARILY ADJUDICATE HIS SIXTH CAUSE OF ACTION27 ne Dated: January 20, 2016 LAW OFFICES OF BENNY MARTIN BENNY MARTIN Attorney for Plaintiff Phillil Garcia 13 PLAINTIFF PHILLIP GARCIA‘S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACT IN. SUPPORT OF MOTION TO SUMMARILY ADJUDICATE HIS SIXTH CAUSE OF ACTION