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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
Superior Court of California,
County of San Francisco
03/25/2016
Clerk of the Court
BY:ROMY RISK
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’S PHILLIP GARCIA‘S
) MEMORANDUM OF POINTS AND
) AUTHORITIES IN SUPPORT OF
) OPPOSITION TO DEFENDANT THE
WILSON FAMILY TRUST’S MOTION
TO SUMMARILY ADJUDICATE
SIXTH CAUSE OF ACTION
Date: April 11, 2016
Time: 9:30 a.m.
Dept: 501
MEMO. OF POT
SUMMARILY ADJUDICATE SIXTH CAUSE OF ACTION
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I. INTRODUCTION.
Many of the arguments below are repetitive of those Plaintiff Phillip Garcia (“Plaintiff”)
makes in support of his cross motion for summary adjudication (“MSA”) on his Sixth Cause of
Action (“COA”), to be heard concurrently with instant motion on April 11, 2016. Defendant The
Wilson Family Trust’s (“Trust”) is not entitled to summary adjudication on Plaintiffs Sixth COA for
the same reasons Plaintiff is so entitled. Thus, the separate statement Plaintiff prepared in opposition
to Defendant’s MSA (filed and served herewith) cites to evidence attached to the declarations and
request of judicial notice filed in support of Plaintiff's MSA; however, in this memorandum of points
and authorities, Plaintiff cites to the separate statement prepared in opposition to Defendant’s MSA.
II. PLAINTIFF DOES NOT SEEK TO “MODIFY” THE UD JUDGMENT.
Defendant’s MSA incorrectly argues Plaintiff seeks to “modify” the UD action judgment to
“[s]Jummarily add[] a third party to an existing judgment,” which the Trust argues violates the its due
process rights. Defendant’s MSA, 2:4-6; 4:12-5:3. P ief. Nor does
Plaintiff seek to modify the underlying UD judgment to add the Trust under “alter ego” principles.
Defendant's MSA, 5:4-12. It would have been unlawful — and still is now - to add the Trust or any
third party to the underlying UD action because that is a summary proceeding in which only one
COA for possession may be brought—defendant-tenants are prohibited from bringing any
“counterclaim or cross-complaint.” Miller and Starr California Real Estate 3D, 7 Cal. Real Est. §
19:223 (3d ed.).' Defendant also complains the Trust “had no opportunity to present evidence in her
defense against Phillip Garcia’s claims when they were made in that [UD] action,” which makes no
sense because defendant-tenants do not make claims in UD proceedings—they defendant against the
plaintiff-landlord’s claim for possession. Thus, Plaintiff did not, and could not have brought a claim
against any party in the UD action; Plaintiff was required’ to bring this action to enforce the UD
Judgment against the Trust, which is precisely what Plaintiff's Sixth COA seeks.
Mt
1 “Neither a cross-complaint nor a counterclaim may be properly filed in a suit for unlawful detention of property, even
though the alleged cause therein contained grows out of the subject-matter involved in the original suit because unlawful
detainer actions adjudicate the issue of possession.”
? In addition to the prohibition of counterclaims or cross-complaints, the court lacked jurisdiction to enter the contractual
fees and cost award against the Trust in the UD action as it was not a party thereto. C.C.P. §§ 410.50; 1917.
MEMO. OF POINTS & AUTHORITIES ISO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO
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Il. PLAINTIFF DOES NOT SEEK TO ENFORCE THE UD JUDGMENT AGAINST THE
TRUST’S INSURER UNDER INSURANCE CODE § 11580.
Curiously, Defendant’s MSA attempts to address “Plaintiff's anticipated argument” under
Insurance Code § 11580, Defendant's MSA, 8:6-9:3. Defendant conflates Insurance Code § 11580
with Labor Code § 2808 to argue that Mr. Garcia may not pursue an indemnification claim against
the Trust as Angelo Wilson’s employer under Labor Code § 2808. Plaintiff does not seek this relief.
In Boyer v. Jensen, an injured plaintiffs action against the employer of a negligent employee
was dismissed due to the statute of limitations, after the negligent employee was dismissed because
of a bankruptcy discharge. Boyer v. Jensen (2005) 129 Cal.App.4th 62, 66 (“Valley Mechanical was
dismissed on statute of limitations grounds”). Plaintiff's Sixth COA is brought against the Trust
(employer) and not Angelo Wilson (the employee), and as more fully set forth below, this distinction
renders Boyer inapposite.
On appeal, the injured plaintiff cited Labor Code § 2802 to argue that Insurance Code §
11580 allows injured parties to recover from an employer’s insurer:
With respect to appellant’s apparent intent to use a judgment in Jensen’s [the
employee] name to recover from Valley Mechanical’s [the employer] insurer,
several cases have interpreted section 2802 as creating no rights between
employees sued by an injured third party and the employer's insurance
company.”
(Emphasis added). /d. at 73. The Boyer Court compared Labor Code § 2802 with Insurance Code §
11580, which creates a COA against an insurer in a subsequent action after the insured’s liability is
established in a prior action:
Procedure under Insurance Code section 11580 requires the injured party to bring
two lawsuits to collect a judgment from the liability insurer: first against the
insured and then, after judgment is obtained in the first suit, a separate action
against the insurer.
Id. The Boyer court then rejected the injured plaintiff's attempted to analogize the two statutes:
Appellant cites Labor Code section 2802 in an attempt to convince us that a
similar procedure is triggered when an injured party seeks to hold an employer
liable under a theory of respondeat superior... There are significant differences
between an insurer and an employer/indemnitor.
(Emphasis added). /d. at 73. Plaintiff agrees there are significant differences between “an insurer and|
an employer” liability, and thus does not seek indemnity from the Trust’s insurer under /nsurance
SUMMARILY ADJUDICATE SIXTH CAUSE OF ACTION
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Code § 11580 or any other statute. Plaintiff's Sixth COA is against the Trust (employer), not the
Trust’s insurer, nor Angelo Wilson (employee). Accordingly, the portion of Boyer upon which
Defendant’s MSA relies is inapplicable, i.e. “Labor Code section 2802’s provisions...promise the
employee he will be indemnified by the employer. They do not provide access to the employer’s or
its insurer's pocketbook through a third party suit against the employee.” Defendant's MSA, 8:27-9:3.
(Emphasis added).* Again, Plaintiff's Sixth COA is not against the employee (Angelo Wilson), but is
against the employer (the Trust), whereas the employer in Boyer was dismissed on a statue of
limitations defense. This distinction is fatal to Defendant’s suggested application to this case.
To the contrary, a closer reading of Boyer suggests the opposite result:
Labor Code section 2802 does not mandate that an action by an injured first party
must first be brought against the employee or that third parties may pursue the
employer only after obtaining a judgment against the employee.
(Emphasis added). Boyer at 73. This language suggests that in order to pursue an employer under
Labor Code § 2802, a third party need not first obtain a judgment against an employee. This finding
is directly premised upon the viability of a Labor Code § 2802 claim by a third party against an
employer, which Boyer found need not follow a judgment against an employee. In this way too,
Boyer does not assist Defendant.
To be clear: Plaintiff's Sixth COA seeks to impose liability against the Trust for damages
arising from Angelo Wilson’s performance of his property manager duties* vicariously through
agency and respondeat superior principles, and directly through contract principles as the Trust is the
signatory party to the lease containing the prevailing party provision upon which the Court awarded
Mr. Garcia awarded attorney’s fees and costs.
Mt
IV. DEFENDANT’S MSA MUST BE DENIED FOR FOUR (4) ADDITIONAL REASONS.
For the four (4) reasons set forth below, Defendant’s MSA must also be denied.
3 However, Boyer is instructive in one important way: a bankruptcy discharge as to the employee/judgment debtor does
not preclude subsequent litigation against the employer under respondeat superior theories of recovery. Boyer v. Jensen
(2005) 129 Cal.App.4th 62, 77-78
* Bringing UD actions and serving notices to quit were within Angelo Wilson’s property manager duties. See, Plaintiff's
Separate Statement of Undisputed Material fact in Support of his Opposition to Defendant's Motion for Summary
Adjudication (“UMF”), Nos. 16, 17.
MEMO. OF POINTS & AUTHORITIES ISO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO
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1. The Trust is Liable to Ms. Garcia Because Angelo Wilson was Acting Within the
Course and Scope of His Employment in Bringing the UD Action.
The Labor Code presumes an employee-employer relationship “unless the principle
[employer] affirmatively proves otherwise.” Yellow Cab Cooperative v. Workers Compensation
Appeals Board (1991) 226 Cal.App.3d 1288, 1294, citing Labor Code § 3357. In addition, Labor
Code § 2750.5 creates the presumption of employee status for positions for which a license is
required. A real estate license is required in California to lease apartments and to collect rent. MKB
Management, Inc. v. Melikian (2010) 184 Cal.App.4th 796, 803 (“A broker’s license was required for|
offering for lease and leasing apartment units and collecting rents.”). Here, Angelo Wilson entered
into the lease agreement on behalf of the Trust, which calls for delivery of rent checks to Mr. Wilson.
UMF, No. 1. Mr. Garcia delivered his rent checks to Mr. Wilson, who deposited them into the
Trustee’s account. UMF, No. 1. Mr. Wilson has never held a real estate license. UMF, Nos. 16, 17.
Under Labor Code § 2750.5, Angelo Wilson was the Trust’s employee.
Further, the Trust had the right to control Mr. Wilson’s work, which is one of the primary
considerations in finding an employee-employer relationship. S.G. Borello & Sons v. Department of
Industrial Relations (1989) 48 Cal.3d 341, 357. Here, Ms. Wilson is a self-described “lieutenant,”
who brought the UD action because “If I’m asked to do it, I do it. I did it,” and that he “went along
with it, though, because I was asked to.” [UMF, Nos. 16, 17]. Angelo Wilson admitted that he was
neither the imitator, nor the decision maker regarding the UD action. This demonstrates the Trust
exercised control over Angelo Wilson’s work.
As his employer, under California Labor Code § 2802(a) (the phrase “shall” is used), the
Trust is required to indemnify Angelo Wilson for debt incurred in carrying out his employment.
“Section 2802 thus requires an employer to indemnify an employee who is sued by third persons for
conduct in the course and scope of his or her employment, including paying any judgment entered
and attorney’s fees and costs incurred in defending the action.” Cassady v. Morgan, Lewis & Bockius
LLP (2006) 145 Cal.App.4th 220, 230, citing, Jacobus v. Krambo Corp. (2000) 78 Cal.App.4th 1096,
1101. Here, Angelo Wilson admitted in discovery that he was acting as “employee or agent” for the
Trustee in bringing the UD action. UMF, Nos. 16, 17. Angelo Wilson admitted in his deposition the
Trust regularly reimbursed him for expenditures incurred in the court of his property management
SUMMARILY ADJUDICATE SIXTH CAUSE OF ACTION
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duties [UMF, Nos. 16, 17], because that’s what employers are required to do. Mr. Wilson was acting
within the course and scope of his employment when he incurred the fees and costs in the UD action.
2. The Trust is Liable to Mr. Garcia Because Angelo Wilson Was Acting Within the
Course and Scope of His Agency Relationship With the Trust.
According to the Rutter Group, “Owner’s liability for manager’s acts: First, the principal
(owner) is almost always liable to third persons for the misfeasance of its agent (the property
manager). [Cal.Civ.Code §§ 2330, 2338, 2339...” (Emphasis added) Cal. Prac. Guide Real Prop.
Trans. Ch. 10-B, (The Rutter Group 2014) §10:67. This is because principles are bound by agents’
acts within ostensible authority [Cal.Civil Code §§ 2330, 2334], including negligent acts. Civil Code
§ 2338. Here, Angelo Wilson admitted he was acting as “employee or agent” for the Trust in the UD
action. UMF, Nos. 16, 17. Thus, under agency principles, the Trust is liable to Mr. Garcia for the
debt Angelo Wilson incurred in bringing the UD action.
3. The Trust is Liable for the Fees and Costs Awarded in Connection to the UD
Action As a Signatory Party to the Lease Agreement With Mr. Garcia.
The Trust is liable to Mr, Garcia as contracting party to the lease. The Trustee (Carrie
Wilson, as “owner”) and Mr. Garcia (as “tenant”) are the contracting parties to the lease. Angelo
Wilson signed the lease for the Trustee as her “authorized agent.” UMF, No. 1.
Paragraph 22 awards attorney’s fees and costs to the prevailing party “involving a dispute
between Tenant and Owner arising out of the execution of this Agreement.” UMF, No. 1. Mr.
Garcia moved for and was awarded fees and costs in the underlying UD action pursuant to Civil Code|
§ 1717. Thus, the Trust is directly liable for those attorney’s fees and costs awarded as contracting
party. Diamond Heights Village Ass'n, Inc. v. Financial Freedom Senior Funding Corp. (2011) 196
Cal.App.4th 290, 307 (“Civil Code § 1717 covers signatories to a contract containing a fee provision
and those who are sued as alleged parties to the contract or otherwise alleged to be bound by its
terms.”) (Emphasis added).
Mr. Garcia is also entitled to recover fees from the Trust because of the reciprocity nature of
Civil Code § 1717. Property owners are beneficiaries of leases because they are entitled to receive
rent. Loduca v. Polyzos (2007) 153 Cal.App.4th 334. The Trust benefited from Mr. Garcia’s rent.
UMF, No. 23. Had Angelo Wilson prevailed in the UD action, as a beneficiary, the Trust would have
been entitled to recover attorney’s fees under Civil Code § 1717 from Mr. Garcia. Reynolds Metals
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Co. v. Alperson (1979) 25 Cal. 3d 124, 128. The Trust would have also been entitled to recover
attorney’s fees from nonsignatory occupants of the subject premises, such as subtenants. Reynolds,
25 Cal. 3d at 128; see also Sessions Payroll Management, Inc. v. Noble Const. Co., Inc. (2000) 84
Cal.App. 4th 671, 679-680 (“the reciprocity principles of Civil Code § 1717 will be applied in
actions involving signatory and non-signatory parties.”)
Civil Code § 1717 therefore entitles Mr. Garcia to recover his attorney’s fees from the Trust
because the Trust would have been so entitled to its attorney’s fees had it prevailed in the UD action.
Real Property Services Corp. v. City of Pasadena (1994) 25 Cal.App.4th 375, 383-384.
4. The Reasonable Fees and Costs Incurred By Mr. Garcia as Prevailing Party
Were Fully Litigated in the Underlying UD Action, and the Trust is Collaterally
Estopped from Relitigating Those Issues in This Action.
i. Collateral Estoppel Law.
The doctrine of res judicata “is a proper ground upon which to grant a summary judgment."
Lederer v. Rohrbasser (1986) 179 Cal.App.3d 290, 296. Res judicata, also known as collateral
estoppel, “precludes a party to an action from relitigating in a second proceeding matters litigated and
determined in a prior proceeding.” People v. Damon (1996) 51 Cal.App.4th 958, 968; Branson v.
Sun-Diamond Growers (1994) 24 Cal.App.4th 327, 339-34; Rest.2d Judgments, §§ 18-19, 27.
“{SJummary adjudication appropriately disposes of a cause of action because “the doctrine of
collateral estoppel refutes all triable issues of fact suggested by the pleadings and supporting
documents.” Southwell, M.D. v. Mallery, Stern & Warford, et al. (1987) 194 Cal.App.3d 140, 144.
CCP § 1908 codifies the collateral estoppel doctrine. Collateral estoppel bars the relitigating
an issue that was previously adjudicated if five (5) elements are satisfied: (1) the issue is identical to
an issue decided in a prior proceeding; (2) the issue was actually litigated; (3) the issue was
necessarily decided; (4) the decision in the prior proceeding is final and on the merits, and; (5) the
party against whom collateral estoppel is asserted was a party to the prior proceeding or in privity
with a party to the prior proceeding. Lucido v. Superior Court (1990) 51 Cal.3d 335, 342.
ii. All Collateral Estoppel Elements Are Satisfied.
First Element: identical issue. The ‘identical issue’ requirement addresses whether “identical
factual allegations” are at stake in the two proceedings, not whether the ultimate issues or
dispositions are the same. Lucido, 51 Cal.3d at 342. Here, the factual allegations in the underlying
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UD action and in Mr. Garcia’s Sixth COA are identical: in the UD action, fees/costs owed to Mr.
Garcia were determined as prevailing party pursuant to the underlying lease agreement, as of April
11, 2016, is exactly $60,691.00.. In these proceedings, the identical issue is that the fees/costs owed
to Mr. Garcia as prevailing party pursuant to the underlying lease agreement, as of April 11, 2016, is
exactly $60,691.00. UMF No. 24.
Second Element: the issue was actually litigated. In the UD proceeding, there was a full
adversarial trial lasting seven (7) court days, with approximately forty (40) witnesses, both percipient
and expert, with more than one hundred (100) exhibits offered into evidence. UMF, No. 25. Angelo
Wilson was represented by experienced counsel in all pre-trial matters, at trial, in post-trial fees and
costs motions in 2014, and 2015. Motions to quash were brought; written discovery was propounded
and responded to by both sides; motions to compel further responses to written discovery were
brought, depositions were taken; a motion for summary judgment was brought; motions in limine
were brought; and parties were represented by trial counsel at trial. In 2014 post-trial matters,
Angelo Wilsons filed an opposition to Mr. Garcia’s motion for attorney’s fees, and at the hearing, a
lawyer appeared and opposed Mr. Garcia’s attorney’s fees request. In 2015 post-judgment
enforcement matters, Angelo Wilsons brought motions to tax costs. Not only was the underlying UD
actually litigated, it was the subject of adversarial proceedings in this Court for more than two (2)
years. UMF, No. 28.
Third Element: the issue was necessarily decided. The “necessarily decided” requirement
means that the resolution of the issue cannot have been “entirely unnecessary” to the judgment in the
prior proceeding. Lucido, at 342. At bar, the issues of possession was necessarily decided in the UD
proceedings, and Phillip Garcia was determined to be the prevailing party entitled to fees and costs
under the lease agreement. Possession, and entitlement to attorney’s fees in the underlying lease are
always necessary issues when UD actions are brought pursuant to leases containing attorney’s fees
provisions. UMF, No. J. The issue of determining the amount of fees and costs to which Mr. Garcia
is entitled was necessarily decided on March 27, 2015. Accrued interest is a matter of arithmetic, not
litigation. Thus, the debt owed to Mr. Garcia of exactly $60,691.00 as of April 11, 2016 was
necessarily decided.
Fourth Element: the decision in the prior proceeding is final and on the merits. Finality to
invoke collateral estoppel is not achieved until the time to appeal has expired. Producers Dairy
MEMO. OF POINTS & AUTHORITIES ISO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO
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Delivery Co. y. Sentry Ins. Co. (1986) 41 Cal.3d 903, 910-911. It being almost two (2) years since
entry of UD judgment, and more than one (1) year since the March 27, 2015 Order on Angelo
Wilson’s motion to tax costs, the time to appeal cither the judgment, or any post-judgment order has
expired. Cal.Rules of Court, Rule 8.104(a)(2), (3). UMF, No. 26.
Fifth Element: the party against whom collateral estoppel is asserted was in privity with a
party to the prior proceeding. “Under California law, the court may find privity as a matter of law.”
McAlister v. Essex Property Trust (2007) 504 F.Supp.2d 903, 912. “Privity exists where the nonpart
was closely related to the party in the prior action. See Lynch v. Glass, (1975) 44 Cal.App.3d 943. I
addition, a nonparty's due process rights protect it from being bound by litigation in which its interest
was not adequately represented or by which the nonparty could not reasonably have expected to be
bound...privity can be found and due process rights respected where (1) a nonparty had a proprietary
or financial interest in and control of the prior action or (2) the unsuccessful party in the first action
acted in a representative capacity for a nonparty.” Jd. “Thus, the question of privity has been
restated in terms of whether a nonparty was ‘sufficiently close’ to an unsuccessful party in a prior
action as to justify the application of collateral estoppel[.]” Lynch, 44 Cal.App.3d at 948.
In McAlister, privity was found between a property owner and a property manager in an
underlying UD action for purposes of litigating the tenant’s reasonable accommodation rights in the
subsequent action. In the prior UD action brought by the manager, the tenant prevailed on the
affirmative defense that the landlord failed to provide a reasonable accommodation. In the
subsequent action, the Court found that because the manager “acted as authorized agent [the owner]
during the prior action,” there was privity, and the owner was collaterally estopped from opposing the
finding that the tenant’s reasonable accommodation rights were denied. Similarly, at bar, the Trust
owed the Subject Premises; Angelo Wilson brought the UD action under a lease he executed as the
Trust’s “authorized agent”; was directed to initiate the UD action after months of discussions with the}
Trustee; brought the UD action as “property manager”; admitted in discovery he was the Trustee’s
“agent or employee”; and he testified, “I'm just a lieutenant,” and “If I’m asked to do it, I do it. I did
it,” and that he “went along with it, though, because I was asked to.” Angelo Wilson and the Trust’s
relationship is “sufficiently close” [Lynch at 948] so that the Trust is bound by the underlying UD
action.
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The Trust also had a proprietary interest in the outcome of UD because had Mr. Garcia been
evicted, the Trust would be entitled to an unlimited monthly rental increase. Civ. Code § 1954.53. As
the Trust directed Mr, Wilson to initiate the UD action, had a proprietary/financial interest in the
outcome, and had notice thereof, there is privity under CCP § /908, and the Trust is collaterally
estopped from defending against the Sixth COA. UMF, No. 27.
Vv. ANGELO WILSON’S DECLARATION VIOLATES THE D’AMATO RULE.
Plaintiff respectfully refers the Court to Plaintiff Phillip Garcia’s 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 (“Plaintiff's Objections”) No. 2.
The California Supreme Court holds that a party may not seek or defeat summary judgment
by means of a declaration that contradict the same declarant’s deposition testimony or sworn
discovery responses. D'Amico v. Board Of Medical Examiners (1974) 11 Cal.3d 1, 21-22; see also
Shin v. Ahn (2007) 42 Cal.4th 482, 500, fn. 12; Rodenberry v. Rodenberry (1996) 44 Cal.App.4th
634, 653-654.) This is known as “the D'Amico Rule,” sometimes called “pre-trial estoppel.” Jogani
v. Jogani (2006) 141 Cal.App.4th 158, 177. The D’Amico Rule calls for trial courts to disregard a
declaration on a motion for summary judgment where it and the declarant’s deposition testimony or
discovery responses are “contradictory and mutually exclusive” (Benavidez v. San Jose Police Dept.
(1999) 71 Cal.App.4th 853, 862-863) or where the declaration contradicts “unequivocal admissions”
in discovery. Mikialian v. City of Los Angeles (1978) 79 Cal.App.3d 150, 162.
Paragraph 3 of Angelo Wilson’s declaration fabricates, “I did not consult Carrie Wilson nor
any representative of the Wilson Family Trust at any point during the unlawful detainer
action...neither Carrie Wilson nor any representative of the Wilson Family Trust exercised control
over the litigation,” which is directly contracted by Angelo Wilson deposition testimony and sworn
discovery responses. Under the D'Amato Rule, Paragraph 3 of Angelo Wilson’s declaration cannot
be relied upon to summarily adjudicate Mr. Garcia’s Sixth COA. And because Angelo Wilson’s
declaration is the only evidence upon which the Trust relies in its MSA relating to the Trust’s control
over Mr. Wilson Defendant’s MSA should be denied.
VI. ANGELO WILSON’S DECLARATION VIOLATES THE DOCTRINE OF JUDICIAL
ESTOPPEL.
Plaintiff respectfully refers to Plaintiff's Objections, No. 3.
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Judicial estoppel, also called the doctrine of “preclusion of inconsistent positions,” [Jackson v,
County of Los Angeles (1997) 60 Cal.App.4th 171, 181] precludes a party from obtaining an
advantage by asserting one position, and then seeking a second advantage by asserting an
incompatible position. MW Erectors, Inc. v. Niederhauser Ornamental and Metal Works Co. (2005)
36 Cal.4th 412, 422. The doctrine is applied “to prevent a party from changing its position over the
course of judicial proceedings when such positional changes have an adverse impact on the judicial
process... The policies underlying preclusion of inconsistent positions are “general consideration[s] off
the orderly administration of justice and regard for the dignity of judicial proceedings.” “It seems
patently wrong to allow a person to abuse the judicial process by first [advocating] one position, and
later, if it becomes beneficial, to assert the opposite.” Jackson, 60 Cal.App.4th at 181; Swahn Group,
Inc. v. Segal (2010) 183 Cal.App.4th 831, 841. Judicial estoppel precludes Wilson from claiming he
was not acting as Carrie Wilson’s agent and/or employee in the UD Action.
The absence of any other evidence in support of these essentially factual elements is fatal to
Defendant’s MSA, and requires denial as a matter of law. CCP §437c(c). (“In determining whether
the papers show that there is no triable issue as to any material fact the court shall consider all of the
evidence set forth in the papers, except that to which objections have been made and sustained by the
court, and all inferences reasonably deducible from the evidence.”).
VII. CONCLUSION.
Based on the foregoing, Plaintiff requests that Defendant’s MSA be denied. Also based on the
foregoing, in conjunction with the moving papers and evidence in support of Plaintiff's own MSA,
Plaintiff's MSA should be granted.
Respectfully Submitted. LAW OFFICES OF BENNY MARTIN
Dated: March 24, 2016
By:
Benny Martin, Esq.
Counsel for Plaintiff Phillip Garcia
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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 Superior Court of California, County of San Francisco 03/25/2016 Clerk of the Court BY:ROMY RISK 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’S PHILLIP GARCIA‘S ) MEMORANDUM OF POINTS AND ) AUTHORITIES IN SUPPORT OF ) OPPOSITION TO DEFENDANT THE WILSON FAMILY TRUST’S MOTION TO SUMMARILY ADJUDICATE SIXTH CAUSE OF ACTION Date: April 11, 2016 Time: 9:30 a.m. Dept: 501 MEMO. OF POT SUMMARILY ADJUDICATE SIXTH CAUSE OF ACTION anD I. INTRODUCTION. Many of the arguments below are repetitive of those Plaintiff Phillip Garcia (“Plaintiff”) makes in support of his cross motion for summary adjudication (“MSA”) on his Sixth Cause of Action (“COA”), to be heard concurrently with instant motion on April 11, 2016. Defendant The Wilson Family Trust’s (“Trust”) is not entitled to summary adjudication on Plaintiffs Sixth COA for the same reasons Plaintiff is so entitled. Thus, the separate statement Plaintiff prepared in opposition to Defendant’s MSA (filed and served herewith) cites to evidence attached to the declarations and request of judicial notice filed in support of Plaintiff's MSA; however, in this memorandum of points and authorities, Plaintiff cites to the separate statement prepared in opposition to Defendant’s MSA. II. PLAINTIFF DOES NOT SEEK TO “MODIFY” THE UD JUDGMENT. Defendant’s MSA incorrectly argues Plaintiff seeks to “modify” the UD action judgment to “[s]Jummarily add[] a third party to an existing judgment,” which the Trust argues violates the its due process rights. Defendant’s MSA, 2:4-6; 4:12-5:3. P ief. Nor does Plaintiff seek to modify the underlying UD judgment to add the Trust under “alter ego” principles. Defendant's MSA, 5:4-12. It would have been unlawful — and still is now - to add the Trust or any third party to the underlying UD action because that is a summary proceeding in which only one COA for possession may be brought—defendant-tenants are prohibited from bringing any “counterclaim or cross-complaint.” Miller and Starr California Real Estate 3D, 7 Cal. Real Est. § 19:223 (3d ed.).' Defendant also complains the Trust “had no opportunity to present evidence in her defense against Phillip Garcia’s claims when they were made in that [UD] action,” which makes no sense because defendant-tenants do not make claims in UD proceedings—they defendant against the plaintiff-landlord’s claim for possession. Thus, Plaintiff did not, and could not have brought a claim against any party in the UD action; Plaintiff was required’ to bring this action to enforce the UD Judgment against the Trust, which is precisely what Plaintiff's Sixth COA seeks. Mt 1 “Neither a cross-complaint nor a counterclaim may be properly filed in a suit for unlawful detention of property, even though the alleged cause therein contained grows out of the subject-matter involved in the original suit because unlawful detainer actions adjudicate the issue of possession.” ? In addition to the prohibition of counterclaims or cross-complaints, the court lacked jurisdiction to enter the contractual fees and cost award against the Trust in the UD action as it was not a party thereto. C.C.P. §§ 410.50; 1917. MEMO. OF POINTS & AUTHORITIES ISO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO SUMMARILY ADJUDICATE SIXTH CAUSE OF ACTION ~ 32nD 19 20 21 Il. PLAINTIFF DOES NOT SEEK TO ENFORCE THE UD JUDGMENT AGAINST THE TRUST’S INSURER UNDER INSURANCE CODE § 11580. Curiously, Defendant’s MSA attempts to address “Plaintiff's anticipated argument” under Insurance Code § 11580, Defendant's MSA, 8:6-9:3. Defendant conflates Insurance Code § 11580 with Labor Code § 2808 to argue that Mr. Garcia may not pursue an indemnification claim against the Trust as Angelo Wilson’s employer under Labor Code § 2808. Plaintiff does not seek this relief. In Boyer v. Jensen, an injured plaintiffs action against the employer of a negligent employee was dismissed due to the statute of limitations, after the negligent employee was dismissed because of a bankruptcy discharge. Boyer v. Jensen (2005) 129 Cal.App.4th 62, 66 (“Valley Mechanical was dismissed on statute of limitations grounds”). Plaintiff's Sixth COA is brought against the Trust (employer) and not Angelo Wilson (the employee), and as more fully set forth below, this distinction renders Boyer inapposite. On appeal, the injured plaintiff cited Labor Code § 2802 to argue that Insurance Code § 11580 allows injured parties to recover from an employer’s insurer: With respect to appellant’s apparent intent to use a judgment in Jensen’s [the employee] name to recover from Valley Mechanical’s [the employer] insurer, several cases have interpreted section 2802 as creating no rights between employees sued by an injured third party and the employer's insurance company.” (Emphasis added). /d. at 73. The Boyer Court compared Labor Code § 2802 with Insurance Code § 11580, which creates a COA against an insurer in a subsequent action after the insured’s liability is established in a prior action: Procedure under Insurance Code section 11580 requires the injured party to bring two lawsuits to collect a judgment from the liability insurer: first against the insured and then, after judgment is obtained in the first suit, a separate action against the insurer. Id. The Boyer court then rejected the injured plaintiff's attempted to analogize the two statutes: Appellant cites Labor Code section 2802 in an attempt to convince us that a similar procedure is triggered when an injured party seeks to hold an employer liable under a theory of respondeat superior... There are significant differences between an insurer and an employer/indemnitor. (Emphasis added). /d. at 73. Plaintiff agrees there are significant differences between “an insurer and| an employer” liability, and thus does not seek indemnity from the Trust’s insurer under /nsurance SUMMARILY ADJUDICATE SIXTH CAUSE OF ACTION [aonD Code § 11580 or any other statute. Plaintiff's Sixth COA is against the Trust (employer), not the Trust’s insurer, nor Angelo Wilson (employee). Accordingly, the portion of Boyer upon which Defendant’s MSA relies is inapplicable, i.e. “Labor Code section 2802’s provisions...promise the employee he will be indemnified by the employer. They do not provide access to the employer’s or its insurer's pocketbook through a third party suit against the employee.” Defendant's MSA, 8:27-9:3. (Emphasis added).* Again, Plaintiff's Sixth COA is not against the employee (Angelo Wilson), but is against the employer (the Trust), whereas the employer in Boyer was dismissed on a statue of limitations defense. This distinction is fatal to Defendant’s suggested application to this case. To the contrary, a closer reading of Boyer suggests the opposite result: Labor Code section 2802 does not mandate that an action by an injured first party must first be brought against the employee or that third parties may pursue the employer only after obtaining a judgment against the employee. (Emphasis added). Boyer at 73. This language suggests that in order to pursue an employer under Labor Code § 2802, a third party need not first obtain a judgment against an employee. This finding is directly premised upon the viability of a Labor Code § 2802 claim by a third party against an employer, which Boyer found need not follow a judgment against an employee. In this way too, Boyer does not assist Defendant. To be clear: Plaintiff's Sixth COA seeks to impose liability against the Trust for damages arising from Angelo Wilson’s performance of his property manager duties* vicariously through agency and respondeat superior principles, and directly through contract principles as the Trust is the signatory party to the lease containing the prevailing party provision upon which the Court awarded Mr. Garcia awarded attorney’s fees and costs. Mt IV. DEFENDANT’S MSA MUST BE DENIED FOR FOUR (4) ADDITIONAL REASONS. For the four (4) reasons set forth below, Defendant’s MSA must also be denied. 3 However, Boyer is instructive in one important way: a bankruptcy discharge as to the employee/judgment debtor does not preclude subsequent litigation against the employer under respondeat superior theories of recovery. Boyer v. Jensen (2005) 129 Cal.App.4th 62, 77-78 * Bringing UD actions and serving notices to quit were within Angelo Wilson’s property manager duties. See, Plaintiff's Separate Statement of Undisputed Material fact in Support of his Opposition to Defendant's Motion for Summary Adjudication (“UMF”), Nos. 16, 17. MEMO. OF POINTS & AUTHORITIES ISO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO SUMMARILY ADJUDICATE SIXTH CAUSE OF ACTION coynD 19 20 21 1. The Trust is Liable to Ms. Garcia Because Angelo Wilson was Acting Within the Course and Scope of His Employment in Bringing the UD Action. The Labor Code presumes an employee-employer relationship “unless the principle [employer] affirmatively proves otherwise.” Yellow Cab Cooperative v. Workers Compensation Appeals Board (1991) 226 Cal.App.3d 1288, 1294, citing Labor Code § 3357. In addition, Labor Code § 2750.5 creates the presumption of employee status for positions for which a license is required. A real estate license is required in California to lease apartments and to collect rent. MKB Management, Inc. v. Melikian (2010) 184 Cal.App.4th 796, 803 (“A broker’s license was required for| offering for lease and leasing apartment units and collecting rents.”). Here, Angelo Wilson entered into the lease agreement on behalf of the Trust, which calls for delivery of rent checks to Mr. Wilson. UMF, No. 1. Mr. Garcia delivered his rent checks to Mr. Wilson, who deposited them into the Trustee’s account. UMF, No. 1. Mr. Wilson has never held a real estate license. UMF, Nos. 16, 17. Under Labor Code § 2750.5, Angelo Wilson was the Trust’s employee. Further, the Trust had the right to control Mr. Wilson’s work, which is one of the primary considerations in finding an employee-employer relationship. S.G. Borello & Sons v. Department of Industrial Relations (1989) 48 Cal.3d 341, 357. Here, Ms. Wilson is a self-described “lieutenant,” who brought the UD action because “If I’m asked to do it, I do it. I did it,” and that he “went along with it, though, because I was asked to.” [UMF, Nos. 16, 17]. Angelo Wilson admitted that he was neither the imitator, nor the decision maker regarding the UD action. This demonstrates the Trust exercised control over Angelo Wilson’s work. As his employer, under California Labor Code § 2802(a) (the phrase “shall” is used), the Trust is required to indemnify Angelo Wilson for debt incurred in carrying out his employment. “Section 2802 thus requires an employer to indemnify an employee who is sued by third persons for conduct in the course and scope of his or her employment, including paying any judgment entered and attorney’s fees and costs incurred in defending the action.” Cassady v. Morgan, Lewis & Bockius LLP (2006) 145 Cal.App.4th 220, 230, citing, Jacobus v. Krambo Corp. (2000) 78 Cal.App.4th 1096, 1101. Here, Angelo Wilson admitted in discovery that he was acting as “employee or agent” for the Trustee in bringing the UD action. UMF, Nos. 16, 17. Angelo Wilson admitted in his deposition the Trust regularly reimbursed him for expenditures incurred in the court of his property management SUMMARILY ADJUDICATE SIXTH CAUSE OF ACTION [eenD 19 20 21 duties [UMF, Nos. 16, 17], because that’s what employers are required to do. Mr. Wilson was acting within the course and scope of his employment when he incurred the fees and costs in the UD action. 2. The Trust is Liable to Mr. Garcia Because Angelo Wilson Was Acting Within the Course and Scope of His Agency Relationship With the Trust. According to the Rutter Group, “Owner’s liability for manager’s acts: First, the principal (owner) is almost always liable to third persons for the misfeasance of its agent (the property manager). [Cal.Civ.Code §§ 2330, 2338, 2339...” (Emphasis added) Cal. Prac. Guide Real Prop. Trans. Ch. 10-B, (The Rutter Group 2014) §10:67. This is because principles are bound by agents’ acts within ostensible authority [Cal.Civil Code §§ 2330, 2334], including negligent acts. Civil Code § 2338. Here, Angelo Wilson admitted he was acting as “employee or agent” for the Trust in the UD action. UMF, Nos. 16, 17. Thus, under agency principles, the Trust is liable to Mr. Garcia for the debt Angelo Wilson incurred in bringing the UD action. 3. The Trust is Liable for the Fees and Costs Awarded in Connection to the UD Action As a Signatory Party to the Lease Agreement With Mr. Garcia. The Trust is liable to Mr, Garcia as contracting party to the lease. The Trustee (Carrie Wilson, as “owner”) and Mr. Garcia (as “tenant”) are the contracting parties to the lease. Angelo Wilson signed the lease for the Trustee as her “authorized agent.” UMF, No. 1. Paragraph 22 awards attorney’s fees and costs to the prevailing party “involving a dispute between Tenant and Owner arising out of the execution of this Agreement.” UMF, No. 1. Mr. Garcia moved for and was awarded fees and costs in the underlying UD action pursuant to Civil Code| § 1717. Thus, the Trust is directly liable for those attorney’s fees and costs awarded as contracting party. Diamond Heights Village Ass'n, Inc. v. Financial Freedom Senior Funding Corp. (2011) 196 Cal.App.4th 290, 307 (“Civil Code § 1717 covers signatories to a contract containing a fee provision and those who are sued as alleged parties to the contract or otherwise alleged to be bound by its terms.”) (Emphasis added). Mr. Garcia is also entitled to recover fees from the Trust because of the reciprocity nature of Civil Code § 1717. Property owners are beneficiaries of leases because they are entitled to receive rent. Loduca v. Polyzos (2007) 153 Cal.App.4th 334. The Trust benefited from Mr. Garcia’s rent. UMF, No. 23. Had Angelo Wilson prevailed in the UD action, as a beneficiary, the Trust would have been entitled to recover attorney’s fees under Civil Code § 1717 from Mr. Garcia. Reynolds Metals SUMMARILY ADJUDICATE SIXTH CAUSE OF ACTION [gonD 19 20 21 Co. v. Alperson (1979) 25 Cal. 3d 124, 128. The Trust would have also been entitled to recover attorney’s fees from nonsignatory occupants of the subject premises, such as subtenants. Reynolds, 25 Cal. 3d at 128; see also Sessions Payroll Management, Inc. v. Noble Const. Co., Inc. (2000) 84 Cal.App. 4th 671, 679-680 (“the reciprocity principles of Civil Code § 1717 will be applied in actions involving signatory and non-signatory parties.”) Civil Code § 1717 therefore entitles Mr. Garcia to recover his attorney’s fees from the Trust because the Trust would have been so entitled to its attorney’s fees had it prevailed in the UD action. Real Property Services Corp. v. City of Pasadena (1994) 25 Cal.App.4th 375, 383-384. 4. The Reasonable Fees and Costs Incurred By Mr. Garcia as Prevailing Party Were Fully Litigated in the Underlying UD Action, and the Trust is Collaterally Estopped from Relitigating Those Issues in This Action. i. Collateral Estoppel Law. The doctrine of res judicata “is a proper ground upon which to grant a summary judgment." Lederer v. Rohrbasser (1986) 179 Cal.App.3d 290, 296. Res judicata, also known as collateral estoppel, “precludes a party to an action from relitigating in a second proceeding matters litigated and determined in a prior proceeding.” People v. Damon (1996) 51 Cal.App.4th 958, 968; Branson v. Sun-Diamond Growers (1994) 24 Cal.App.4th 327, 339-34; Rest.2d Judgments, §§ 18-19, 27. “{SJummary adjudication appropriately disposes of a cause of action because “the doctrine of collateral estoppel refutes all triable issues of fact suggested by the pleadings and supporting documents.” Southwell, M.D. v. Mallery, Stern & Warford, et al. (1987) 194 Cal.App.3d 140, 144. CCP § 1908 codifies the collateral estoppel doctrine. Collateral estoppel bars the relitigating an issue that was previously adjudicated if five (5) elements are satisfied: (1) the issue is identical to an issue decided in a prior proceeding; (2) the issue was actually litigated; (3) the issue was necessarily decided; (4) the decision in the prior proceeding is final and on the merits, and; (5) the party against whom collateral estoppel is asserted was a party to the prior proceeding or in privity with a party to the prior proceeding. Lucido v. Superior Court (1990) 51 Cal.3d 335, 342. ii. All Collateral Estoppel Elements Are Satisfied. First Element: identical issue. The ‘identical issue’ requirement addresses whether “identical factual allegations” are at stake in the two proceedings, not whether the ultimate issues or dispositions are the same. Lucido, 51 Cal.3d at 342. Here, the factual allegations in the underlying SUMMARILY ADJUDICATE SIXTH CAUSE OF ACTION aenD UD action and in Mr. Garcia’s Sixth COA are identical: in the UD action, fees/costs owed to Mr. Garcia were determined as prevailing party pursuant to the underlying lease agreement, as of April 11, 2016, is exactly $60,691.00.. In these proceedings, the identical issue is that the fees/costs owed to Mr. Garcia as prevailing party pursuant to the underlying lease agreement, as of April 11, 2016, is exactly $60,691.00. UMF No. 24. Second Element: the issue was actually litigated. In the UD proceeding, there was a full adversarial trial lasting seven (7) court days, with approximately forty (40) witnesses, both percipient and expert, with more than one hundred (100) exhibits offered into evidence. UMF, No. 25. Angelo Wilson was represented by experienced counsel in all pre-trial matters, at trial, in post-trial fees and costs motions in 2014, and 2015. Motions to quash were brought; written discovery was propounded and responded to by both sides; motions to compel further responses to written discovery were brought, depositions were taken; a motion for summary judgment was brought; motions in limine were brought; and parties were represented by trial counsel at trial. In 2014 post-trial matters, Angelo Wilsons filed an opposition to Mr. Garcia’s motion for attorney’s fees, and at the hearing, a lawyer appeared and opposed Mr. Garcia’s attorney’s fees request. In 2015 post-judgment enforcement matters, Angelo Wilsons brought motions to tax costs. Not only was the underlying UD actually litigated, it was the subject of adversarial proceedings in this Court for more than two (2) years. UMF, No. 28. Third Element: the issue was necessarily decided. The “necessarily decided” requirement means that the resolution of the issue cannot have been “entirely unnecessary” to the judgment in the prior proceeding. Lucido, at 342. At bar, the issues of possession was necessarily decided in the UD proceedings, and Phillip Garcia was determined to be the prevailing party entitled to fees and costs under the lease agreement. Possession, and entitlement to attorney’s fees in the underlying lease are always necessary issues when UD actions are brought pursuant to leases containing attorney’s fees provisions. UMF, No. J. The issue of determining the amount of fees and costs to which Mr. Garcia is entitled was necessarily decided on March 27, 2015. Accrued interest is a matter of arithmetic, not litigation. Thus, the debt owed to Mr. Garcia of exactly $60,691.00 as of April 11, 2016 was necessarily decided. Fourth Element: the decision in the prior proceeding is final and on the merits. Finality to invoke collateral estoppel is not achieved until the time to appeal has expired. Producers Dairy MEMO. OF POINTS & AUTHORITIES ISO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO SUMMARILY ADJUDICATE SIXTH CAUSE OF ACTION 3nD Delivery Co. y. Sentry Ins. Co. (1986) 41 Cal.3d 903, 910-911. It being almost two (2) years since entry of UD judgment, and more than one (1) year since the March 27, 2015 Order on Angelo Wilson’s motion to tax costs, the time to appeal cither the judgment, or any post-judgment order has expired. Cal.Rules of Court, Rule 8.104(a)(2), (3). UMF, No. 26. Fifth Element: the party against whom collateral estoppel is asserted was in privity with a party to the prior proceeding. “Under California law, the court may find privity as a matter of law.” McAlister v. Essex Property Trust (2007) 504 F.Supp.2d 903, 912. “Privity exists where the nonpart was closely related to the party in the prior action. See Lynch v. Glass, (1975) 44 Cal.App.3d 943. I addition, a nonparty's due process rights protect it from being bound by litigation in which its interest was not adequately represented or by which the nonparty could not reasonably have expected to be bound...privity can be found and due process rights respected where (1) a nonparty had a proprietary or financial interest in and control of the prior action or (2) the unsuccessful party in the first action acted in a representative capacity for a nonparty.” Jd. “Thus, the question of privity has been restated in terms of whether a nonparty was ‘sufficiently close’ to an unsuccessful party in a prior action as to justify the application of collateral estoppel[.]” Lynch, 44 Cal.App.3d at 948. In McAlister, privity was found between a property owner and a property manager in an underlying UD action for purposes of litigating the tenant’s reasonable accommodation rights in the subsequent action. In the prior UD action brought by the manager, the tenant prevailed on the affirmative defense that the landlord failed to provide a reasonable accommodation. In the subsequent action, the Court found that because the manager “acted as authorized agent [the owner] during the prior action,” there was privity, and the owner was collaterally estopped from opposing the finding that the tenant’s reasonable accommodation rights were denied. Similarly, at bar, the Trust owed the Subject Premises; Angelo Wilson brought the UD action under a lease he executed as the Trust’s “authorized agent”; was directed to initiate the UD action after months of discussions with the} Trustee; brought the UD action as “property manager”; admitted in discovery he was the Trustee’s “agent or employee”; and he testified, “I'm just a lieutenant,” and “If I’m asked to do it, I do it. I did it,” and that he “went along with it, though, because I was asked to.” Angelo Wilson and the Trust’s relationship is “sufficiently close” [Lynch at 948] so that the Trust is bound by the underlying UD action. SUMMARILY ADJUDICATE SIXTH CAUSE OF ACTION -9-nD 19 20 21 The Trust also had a proprietary interest in the outcome of UD because had Mr. Garcia been evicted, the Trust would be entitled to an unlimited monthly rental increase. Civ. Code § 1954.53. As the Trust directed Mr, Wilson to initiate the UD action, had a proprietary/financial interest in the outcome, and had notice thereof, there is privity under CCP § /908, and the Trust is collaterally estopped from defending against the Sixth COA. UMF, No. 27. Vv. ANGELO WILSON’S DECLARATION VIOLATES THE D’AMATO RULE. Plaintiff respectfully refers the Court to Plaintiff Phillip Garcia’s 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 (“Plaintiff's Objections”) No. 2. The California Supreme Court holds that a party may not seek or defeat summary judgment by means of a declaration that contradict the same declarant’s deposition testimony or sworn discovery responses. D'Amico v. Board Of Medical Examiners (1974) 11 Cal.3d 1, 21-22; see also Shin v. Ahn (2007) 42 Cal.4th 482, 500, fn. 12; Rodenberry v. Rodenberry (1996) 44 Cal.App.4th 634, 653-654.) This is known as “the D'Amico Rule,” sometimes called “pre-trial estoppel.” Jogani v. Jogani (2006) 141 Cal.App.4th 158, 177. The D’Amico Rule calls for trial courts to disregard a declaration on a motion for summary judgment where it and the declarant’s deposition testimony or discovery responses are “contradictory and mutually exclusive” (Benavidez v. San Jose Police Dept. (1999) 71 Cal.App.4th 853, 862-863) or where the declaration contradicts “unequivocal admissions” in discovery. Mikialian v. City of Los Angeles (1978) 79 Cal.App.3d 150, 162. Paragraph 3 of Angelo Wilson’s declaration fabricates, “I did not consult Carrie Wilson nor any representative of the Wilson Family Trust at any point during the unlawful detainer action...neither Carrie Wilson nor any representative of the Wilson Family Trust exercised control over the litigation,” which is directly contracted by Angelo Wilson deposition testimony and sworn discovery responses. Under the D'Amato Rule, Paragraph 3 of Angelo Wilson’s declaration cannot be relied upon to summarily adjudicate Mr. Garcia’s Sixth COA. And because Angelo Wilson’s declaration is the only evidence upon which the Trust relies in its MSA relating to the Trust’s control over Mr. Wilson Defendant’s MSA should be denied. VI. ANGELO WILSON’S DECLARATION VIOLATES THE DOCTRINE OF JUDICIAL ESTOPPEL. Plaintiff respectfully refers to Plaintiff's Objections, No. 3. SUMMARILY ADJUDICATE SIXTH CAUSE OF ACTION - 10 -nD 19 20 21 Judicial estoppel, also called the doctrine of “preclusion of inconsistent positions,” [Jackson v, County of Los Angeles (1997) 60 Cal.App.4th 171, 181] precludes a party from obtaining an advantage by asserting one position, and then seeking a second advantage by asserting an incompatible position. MW Erectors, Inc. v. Niederhauser Ornamental and Metal Works Co. (2005) 36 Cal.4th 412, 422. The doctrine is applied “to prevent a party from changing its position over the course of judicial proceedings when such positional changes have an adverse impact on the judicial process... The policies underlying preclusion of inconsistent positions are “general consideration[s] off the orderly administration of justice and regard for the dignity of judicial proceedings.” “It seems patently wrong to allow a person to abuse the judicial process by first [advocating] one position, and later, if it becomes beneficial, to assert the opposite.” Jackson, 60 Cal.App.4th at 181; Swahn Group, Inc. v. Segal (2010) 183 Cal.App.4th 831, 841. Judicial estoppel precludes Wilson from claiming he was not acting as Carrie Wilson’s agent and/or employee in the UD Action. The absence of any other evidence in support of these essentially factual elements is fatal to Defendant’s MSA, and requires denial as a matter of law. CCP §437c(c). (“In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence.”). VII. CONCLUSION. Based on the foregoing, Plaintiff requests that Defendant’s MSA be denied. Also based on the foregoing, in conjunction with the moving papers and evidence in support of Plaintiff's own MSA, Plaintiff's MSA should be granted. Respectfully Submitted. LAW OFFICES OF BENNY MARTIN Dated: March 24, 2016 By: Benny Martin, Esq. Counsel for Plaintiff Phillip Garcia SUMMARILY ADJUDICATE SIXTH CAUSE OF ACTION -ill-