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LAW OFFICES OF BENNY MARTIN
Benjamin Martin (SBN 257452) ELECTRONICALLY
195 41st Street FILED
P.O. Box 11120 ‘Supertor Court of California,
Oakland, CA 94611 County of San Francisco
Phone: 510.227.4406 11/16/2015
Email: knowyourightsinsf@gmail.com Clerk of the Court
BY:CAROL BALISTRERI
Deputy Clerk
Attorneys for Plaintiff Garcia
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
) MEMORANDUM OF POINTS AND
vs. ) AUTHORITIES IN SUPPORT OF
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.
WILSON FAMILY TRUST’S MOTION
TO SUMMARILY ADJUDICATE
SEVENTH CAUSE OF ACTION
Defendants.
“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 SEVENTH CAUSE OF ACTION
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I. DEFENDANT’S MOTION FOR SUMMARY ADJUDICATION SHOULD BE DENIED
BECAUSE DEFENDANT HAS NOT COMPLIED WITH ITS DISCOVERY
OBLIGATIONS.
Courts may deny a motion for summary adjudication when the moving party’s delinquent
discovery responses deprive the opposing party of “facts essential to justify opposition may exist but
cannot, for reasons stated, then be presented.” CCP § 437c(h). Here, there are two pending motions
to compel further responses to Plaintiff's propounded written discovery, the hearing dates for which
are currently set for November 17, 2015. The outstanding written discovery pertains directly to the
issues underlying Plaintiff's Seventh Cause of Action, i.e. agency and authority. For example,
Defendant the Trust has not produced a single document in response to any of Plaintiffs document
requests, including Request No. 5, “All DOCUMENTS or COMMUNICATIONS between YOU and
Angelo Wilson in connection with the SUBJECT PREMISES, the renting or occupancy of any unit
the SUBJECT PREMISES, the maintenance or management of SUBJECT PREMISES, or the selling
of the SUBJECT PREMISES,” and Request No. 12, “All COMMUNICATIONS between YOU and
Angelo Wilson regarding preparing the SUBJECT PREMISES for sale.” Defendant the Trust also
improperly responded to Special Interrogatories Nos. 2, 3, 6, 7, 8, 20, 25, 33, 34, either partially, or
not at all, nor were Form Interrogatories Nos. 15.1, 17.1, dealing particularly with contentions
support denials of Plaintiffs allegations (including agency and employment allegations) properly
responded to. Declaration of Plaintiff's Counsel Benny Martin in Support of Opposition to
Defendant The Wilson Family Trust’s MSA (“Martin Decl. Opp”) 3. Plaintiffs discovery efforts as
to agency and employment status have been frustrated as a result. As a result, this motion should be
denied.
Il. THE DOCTRINE OF JUDICIAL ESTOPPEL PRECLUDES ANGELO WILSON
FROM CLAIMING IN THE DECLARATION FILED IN SUPPORT OF THIS
MOTION THAT HE WAS NOT ACTING AS THE AGENT AND/OR EMPLOYEE OF|
CARRIE WILSON IN THE UNDERLYING UD ACTION.
The doctrine of judicial estoppel, sometimes called the doctrine of “preclusion of inconsistent
positions” [Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 181 (Jackson)] 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
“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 SEVENTH CAUSE OF ACTION
aoenD
Co. (2005) 36 Cal.4th 412, 422 (MW Erectors). 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] of the orderly administration of justice and regard for the dignity of
judicial proceedings.” Judicial estoppel is “intended to protect against a litigant playing ‘fast and
loose with the courts’ [Internal citation omitted] ...[i]t 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.” [Internal citation omitted]. Jackson, 60 Cal-App.4th at 181; Swahn Group, Inc. v,
Segal (2010) 183 Cal.App.4th 831, 841 (Swahn).
“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.” [Citation.]” (Aguilar v. Lerner (2004) 32 Cal.4th 974, 986-987; accord, MW Erectors,
supra, 36 Cal.4th at p. 422.)
Here, on the basis of judicial estoppel, Plaintiff objects to the Declaration of Angelo Wilson,
attached as exhibit B to the ‘Notice of Lodgment of Evidence’ Defendant the Trust filed in support of|
this motion. Angelo Wilson took the position in the UD action that he was the property manager that
acted as Carrie Wilson’s agent and/or employee in bringing the action. Plaintiff's Separate Statement
of Undisputed Material Fact in Support of Plaintiff's Motion to Summarily Adjudicate his Seventh
Cause of Action (“UMF”), Nos. 15-19. The UD action was a judicial proceeding, and Angelo
Wilson was only had standing to bring the action based upon his allegation that he was authorized to
do so as the property manager. Claiming to be authorized to bring the UD action as a property
manager in the UD action, and to be the “agent or employee” of Carrie Wilson in bringing the UD
action is inconsistent with the claim in position he takes in his declaration, and upon which Defendant
the Trust relies upon in moving herein, i.e. that Angelo Wilson had “sole control of the unlawful
detainer action. Defendant’s Separate Statement UMF Nos. 16-17. There is no indication that Mr.
Wilson was ignored on his agency and/or employment status when he either testified in his depositio
in this case, or served verified discovery responses in the UD action pertaining to his role in bringing
“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 SEVENTH CAUSE OF ACTION
23 -nD
19
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the UD action. According, judicial estoppel should preclude Angelo Wilson from claiming in his
declaration, upon which Defendant Trust exclusively relies in its accompanying separate statement
that Angelo Wilson, and not the Trust, had “sole control of the unlawful detainer action.”
Il. DEFENDANT IS NOT ENTITLED TO SUMMARY ADJUDICATION ON
PLAINTIFF’S SEVENTH CAUSE OF ACTION AS A MATTER OF LAW.
For the reasons set forth in Plaintiffs Memorandum of Points and Authorities in Support of
Plaintiff's Motion for Summary Adjudication on his Seventh Cause of Action, which we refer to by
reference for economy and efficiency purposes in lieu of reciting again here, Defendant is not entitled
to summary adjudication as a matter of law.
VI. CONCLUSION.
Based on the foregoing, Plaintiff requests that Defendant’s motion for summary adjudication
be denied, and that his motion for summary adjudication be granted, and that he be awarded
$59,065.11.
Respectfully Submitted. LAW OFFICES OF BENNY MARTIN
Dated: November 16, 2015
By:
Benny Martin,
Counsel for Plaintiff Phillip Garcia
“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 SEVENTH CAUSE OF ACTION
cag
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LAW OFFICES OF BENNY MARTIN Benjamin Martin (SBN 257452) ELECTRONICALLY 195 41st Street FILED P.O. Box 11120 ‘Supertor Court of California, Oakland, CA 94611 County of San Francisco Phone: 510.227.4406 11/16/2015 Email: knowyourightsinsf@gmail.com Clerk of the Court BY:CAROL BALISTRERI Deputy Clerk Attorneys for Plaintiff Garcia 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 ) MEMORANDUM OF POINTS AND vs. ) AUTHORITIES IN SUPPORT OF 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. WILSON FAMILY TRUST’S MOTION TO SUMMARILY ADJUDICATE SEVENTH CAUSE OF ACTION Defendants. “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 SEVENTH CAUSE OF ACTION - ienD 19 20 21 I. DEFENDANT’S MOTION FOR SUMMARY ADJUDICATION SHOULD BE DENIED BECAUSE DEFENDANT HAS NOT COMPLIED WITH ITS DISCOVERY OBLIGATIONS. Courts may deny a motion for summary adjudication when the moving party’s delinquent discovery responses deprive the opposing party of “facts essential to justify opposition may exist but cannot, for reasons stated, then be presented.” CCP § 437c(h). Here, there are two pending motions to compel further responses to Plaintiff's propounded written discovery, the hearing dates for which are currently set for November 17, 2015. The outstanding written discovery pertains directly to the issues underlying Plaintiff's Seventh Cause of Action, i.e. agency and authority. For example, Defendant the Trust has not produced a single document in response to any of Plaintiffs document requests, including Request No. 5, “All DOCUMENTS or COMMUNICATIONS between YOU and Angelo Wilson in connection with the SUBJECT PREMISES, the renting or occupancy of any unit the SUBJECT PREMISES, the maintenance or management of SUBJECT PREMISES, or the selling of the SUBJECT PREMISES,” and Request No. 12, “All COMMUNICATIONS between YOU and Angelo Wilson regarding preparing the SUBJECT PREMISES for sale.” Defendant the Trust also improperly responded to Special Interrogatories Nos. 2, 3, 6, 7, 8, 20, 25, 33, 34, either partially, or not at all, nor were Form Interrogatories Nos. 15.1, 17.1, dealing particularly with contentions support denials of Plaintiffs allegations (including agency and employment allegations) properly responded to. Declaration of Plaintiff's Counsel Benny Martin in Support of Opposition to Defendant The Wilson Family Trust’s MSA (“Martin Decl. Opp”) 3. Plaintiffs discovery efforts as to agency and employment status have been frustrated as a result. As a result, this motion should be denied. Il. THE DOCTRINE OF JUDICIAL ESTOPPEL PRECLUDES ANGELO WILSON FROM CLAIMING IN THE DECLARATION FILED IN SUPPORT OF THIS MOTION THAT HE WAS NOT ACTING AS THE AGENT AND/OR EMPLOYEE OF| CARRIE WILSON IN THE UNDERLYING UD ACTION. The doctrine of judicial estoppel, sometimes called the doctrine of “preclusion of inconsistent positions” [Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 181 (Jackson)] 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 “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 SEVENTH CAUSE OF ACTION aoenD Co. (2005) 36 Cal.4th 412, 422 (MW Erectors). 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] of the orderly administration of justice and regard for the dignity of judicial proceedings.” Judicial estoppel is “intended to protect against a litigant playing ‘fast and loose with the courts’ [Internal citation omitted] ...[i]t 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.” [Internal citation omitted]. Jackson, 60 Cal-App.4th at 181; Swahn Group, Inc. v, Segal (2010) 183 Cal.App.4th 831, 841 (Swahn). “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.” [Citation.]” (Aguilar v. Lerner (2004) 32 Cal.4th 974, 986-987; accord, MW Erectors, supra, 36 Cal.4th at p. 422.) Here, on the basis of judicial estoppel, Plaintiff objects to the Declaration of Angelo Wilson, attached as exhibit B to the ‘Notice of Lodgment of Evidence’ Defendant the Trust filed in support of| this motion. Angelo Wilson took the position in the UD action that he was the property manager that acted as Carrie Wilson’s agent and/or employee in bringing the action. Plaintiff's Separate Statement of Undisputed Material Fact in Support of Plaintiff's Motion to Summarily Adjudicate his Seventh Cause of Action (“UMF”), Nos. 15-19. The UD action was a judicial proceeding, and Angelo Wilson was only had standing to bring the action based upon his allegation that he was authorized to do so as the property manager. Claiming to be authorized to bring the UD action as a property manager in the UD action, and to be the “agent or employee” of Carrie Wilson in bringing the UD action is inconsistent with the claim in position he takes in his declaration, and upon which Defendant the Trust relies upon in moving herein, i.e. that Angelo Wilson had “sole control of the unlawful detainer action. Defendant’s Separate Statement UMF Nos. 16-17. There is no indication that Mr. Wilson was ignored on his agency and/or employment status when he either testified in his depositio in this case, or served verified discovery responses in the UD action pertaining to his role in bringing “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 SEVENTH CAUSE OF ACTION 23 -nD 19 20 21 the UD action. According, judicial estoppel should preclude Angelo Wilson from claiming in his declaration, upon which Defendant Trust exclusively relies in its accompanying separate statement that Angelo Wilson, and not the Trust, had “sole control of the unlawful detainer action.” Il. DEFENDANT IS NOT ENTITLED TO SUMMARY ADJUDICATION ON PLAINTIFF’S SEVENTH CAUSE OF ACTION AS A MATTER OF LAW. For the reasons set forth in Plaintiffs Memorandum of Points and Authorities in Support of Plaintiff's Motion for Summary Adjudication on his Seventh Cause of Action, which we refer to by reference for economy and efficiency purposes in lieu of reciting again here, Defendant is not entitled to summary adjudication as a matter of law. VI. CONCLUSION. Based on the foregoing, Plaintiff requests that Defendant’s motion for summary adjudication be denied, and that his motion for summary adjudication be granted, and that he be awarded $59,065.11. Respectfully Submitted. LAW OFFICES OF BENNY MARTIN Dated: November 16, 2015 By: Benny Martin, Counsel for Plaintiff Phillip Garcia “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 SEVENTH CAUSE OF ACTION cag