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LAW OFFICES OF BENNY MARTIN
Benjamin Martin (SBN 257452)
195 41st Street
P.O. Box 11120
Oakland, CA 94611
Phone: (415) 558-1760
Email: knowyourightsinsf@ gmail.com
Attorneys for Plaintiff Phil Garcia
ELECTRONICALLY
FILED
Superior Court of California,
County of San Francisco
12/09/2014
Clerk of the Court
BY:ANNIE PASCUAL
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
) NOTICE OF MOTION AND MOTION
) TO DEEM CARRIE WILSON IN HER
) CAPACITY OF TRUSTEE OF THE
) WILSON FAMILY TRUST SERVED;
; PROOF OF SERVICE
)
) Date: January 7, 2014
) Time: 9:30 a.m.
) Dept: 501
TO DEFENDANTS AND THEIR COUNSEL: YOU ARE HEREBY NOTIFIED THAT on
January 7, 2014 at 9:30 a.m. or as soon as this matter may be heard, in Department 501 of this Court
located at 400 McAllister Street, San Francisco, California, Plaintiff Phillip Garcia will and hereby
does move the Court for an order to have Carrie Wilson deemed served with the summons and
complaint in this action in her capacity as trustee of The Wilson Family Trust pursuant to Cal.C.C.P.
§ 416.90.
HER CAPACITY OF TRUSTEE OF THE WILSON FAMILY TRUST SERVED
-.1-The motion will be based upon this notice, the memorandum in support of filed and served
herewith, the declaration of Plaintiffs counsel Benny Martin filed and served herewith, and upon
further evidence and arguments as may be presented prior to or at the time of hearing.
Respectfully submitted.
Dated: December 9, 2014 LAW OFFICES OF BENNY MARTIN
By:
Benny Martin
Attorney for Plaintiff Garcia
HER CAPACITY OF TRUSTEE OF THE WILSON FAMILY TRUST SERVED
~-2-27
28
I. INTRODUCTION.
In this motion, Plaintiff Phillip Garcia is seeking to have Carrie Wilson deemed served with
the summons and complaint in this action in her capacity as trustee of The Wilson Family Trust
pursuant to Cal.C.C.P. § 416.90.
Il. STATEMENT OF FACTS.
Defendant Angelo Wilson executed the written lease agreement the governs the landlord-
tenant relationship between tenant Plaintiff Phillip Garcia and landlord Defendant The Wilson Family
Trust as “authorized agent.” See Declaration of Benny Martin in Support of Motion to Compel, § 2,
Ex. B, attached written lease.
During his August 7, 2014 deposition, Angelo Wilson testified:
Q. Okay. Have you ever signed a contract on behalf of Carrie Wilson?
A. Yeah, that -- I probably have. I don't recall exactly which one or what, but probably as --
like, attorney or something or other? Power of attorney on specific things. For example -- no -- yeah,
probably.
Q. Do you have power of attorney over Carrie Wilson?
A. No.
Q. So you mentioned power of attorney. What did you mean by that? In what context?
A. Particular business things, dealings.
Q. So you entered into contracts on behalf of Carrie Wilson on particular business dealings?
A. Certain business dealings, yes.
Q. Which business dealings?
A. I don't recall.
Q. When was the last time you signed a contract on behalf of Carrie Wilson?
A. Couple of years ago; maybe year ago, couple years ago.
Q. For what business was that?
A. I was power of attorney. I'm trying to remember what it was. Could have been this lawsuit,
could have been this past lawsuit, it could have been --it could have been -- I'm trying to think what
else. There's something else. I don't recall. I really don't.
Q. You mentioned power of attorney, again, sir. What did you mean by that?
HER CAPACITY OF TRUSTEE OF THE WILSON FAMILY TRUST SERVED
~3-A. Given that she is in Georgia, she can't sometimes make it to San Francisco. Certain
business dealings, or whatever, have to be taken care of. Somebody here has to do it, so she will have
something drawn up for me to sign a particular something. It doesn't -- it's not a general power, or
whatever. I don't know what it's called. It doesn't overlap everything; it would be specific to whatever
it is she needs taken care of at the time.
Q. Do you know what the phrase "power of attorney" means?
17 A. Yeah. I'm able to represent her.
See Declaration of Benny Martin in Support of Motion to Compel, ¥ 9, Ex. H, Wilson
Deposition,39:1-40:17.
Accordingly, Defendant Angelo Wilson was the authorized agent that executed the written
lease agreement governing the parties’ landlord-tenant relationship on behalf of Carrie Wilson in her
capacity as trustee of The Wilson Family Trust; and during his deposition, Defendant Angelo Wilson
testified he was Carrie Wilson’s power of attorney for purposes of litigation, which “[c]ould have
been this lawsuit, could have been this past lawsuit.”
Il. THE CALIFORNIA CODE OF CIVIL PROCEDURE AUTHORIZES SERVICE OF
PROCESS ON DEFENDANT ANGELO WILSON ON BEHALF OF CARRIE
WILSON AS TRUSTEE OF DEFENDANT THE WILSON FAMILY TRUST.
“A summons may be served on a person not otherwise specified in this article by delivering a
copy of the summons and of the complaint to such person or to a person authorized by him to receive
service of process.” Cal.C.C.P. § 416.90. The Judicial Council’s Comment to Cal.C.C.P. § 416.90
states: “A specific appointment is not required, but the principal-agent relationship must be close and
enduring enough to make it highly probable that the defendant will receive actual notice.”
“This statement by the draftsmen of s 416.90 is in accord with their expressed intention that
the recently enacted statutes governing service of process “. . . should be liberally construed to
effectuate service and uphold the jurisdiction of the court if actual notice has been received by the
defendant, and in the last analysis the question of service should be resolved by considering each
situation from a practical standpoint.” Warner Bros. Records, Inc. v. Golden West Music Sales (1974)
36 Cal.App.3d 1012, 1017, citing, Pasadena Medi-Center Associates v. Superior Court, (1973) 9
Cal.3d 773, 778.
HER CAPACITY OF TRUSTEE OF THE WILSON FAMILY TRUST SERVED
-4-The essential factor is whether relationship with defendants of person who received service
was sufficiently close and enduring to make it reasonably certain that defendants would be apprised
of service. Warner Bros. Records, Inc. v. Golden West Music Sales (1974) 36 Cal.App.3d 1012.
At bar, the following factors demonstrate that Angelo Wilson is the authorized agent for
Carrie Wilson regarding the landlord-tenant relationship between landlord Carrie Wilson as trustee of
The Wilson Family Trust, and tenant Phillip Garcia:
* Angelo Wilson entered into the subject lease agreement as “authorized agent” on behalf of Carrie
Wilson as trustee of The Wilson Family Trust;
¢ Angelo Wilson brought the underlying unlawful detainer action in San Francisco Superior Court
against Mr. Garcia as the property manager on behalf of Carrie Wilson as trustee of The Wilson
Family Trust;
¢ Angelo Wilson indicated in his deposition that Carrie Wilson as trustee of Carrier Wilson as
trustee of The Wilson Family Trust, has given power of attorney to Angelo Wilson regarding this
litigation [39:18-25];
* Angelo Wilson testified in his deposition that because Carrie Wilson lives in Georgia, when
“Given that she is in Georgia, she can't sometimes make it to San Francisco. Certain business, or
whatever, need to be taken care of. Somebody has to do it, so she will have something drawn up
for me to sign a particular something.” [40:6-7].
¢ Angelo Wilson indicated in his deposition that Carrie Wilson as trustee of The Wilson Family
Trust directed him to bring the underlying unlawful detainer action against Phillip Garcia [97:11-
98:11];
¢ Angelo Wilson receives mail for Carrie Wilson at 1677 Hayes Street, which is Angelo Wilson’s
home address in San Francisco. [66:14-23];
¢ Angelo Wilson testified in his deposition that Carrie Wilson has instructed him not to disclose her
address for purposes of this lawsuit. [30:12-14].
Accordingly, Defendant Angelo Wilson is authorized to be served as authorized agent of
Carrie Wilson in her capacity as trustee of The Wilson Family Trust under Cal.C.C.P. § 416.90.
HER CAPACITY OF TRUSTEE OF THE WILSON FAMILY TRUST SERVED
~5-VI. CONCLUSION.
Based on the foregoing, Plaintiff requests that Defendant’s Motion be denied, and sanctions
awarded for causing unwarranted delay.
Date: December 9, 2014 LAW OFFICES OF BENNY MARTIN
By:
Benny Martin,
Counsel for Plaintiff Phillip Garcia
HER CAPACITY OF TRUSTEE OF THE WILSON FAMILY TRUST SERVED
-~6-PROOF OF SERVICE
I, BENNY MARTIN, declare as follows:
I reside in the United States, am over the age of eighteen years and not a party to the within entitled
action. I am not a registered California process server. I work at 195 41st Street, P.O. Box 11120
Oakland, CA 94611. On DECEMBER 9, 2014, I served the attached:
PLAINTIFF'S PHILLIP GARCIA‘S NOTICE OF MOTION AND MOTION TO DEEM
CARRIE WILSON IN HER CAPACITY OF TRUSTEE OF THE WILSON FAMILY
TRUST SERVED; PROOF OF SERVICE
on the interested parties in said action, by placing a true copy thereof in sealed envelope(s) addressed
as follows:
Joyce Clifford
MURCHISON & CUMMING, LLP
275 BATTERY ST, STE. 550
SAN FRANCISCO, CA 94111
And served the named document in the manner indicated below:
BY MAIL: I caused true and correct copies of the above documents, by following ordinary business
practices, to be placed and sealed in envelope(s) addressed to the addresses(s), at the United States
Postal Service mail box on the corner in Oakland for the collection and mailing with the United
States Postal Service, and in the ordinary course of business, correspondence placed for collection on
a particular day is deposited with the United States Postal Service that same day.
I declare under the penalty of perjury under the laws of the state of California that the foregoing is true
and correct.
Executed DECEMBER 9, 2014 at Los Angeles, California.
BENNY MARTIN
HER CAPACITY OF TRUSTEE OF THE WILSON FAMILY TRUST SERVED
-7-
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LAW OFFICES OF BENNY MARTIN Benjamin Martin (SBN 257452) 195 41st Street P.O. Box 11120 Oakland, CA 94611 Phone: (415) 558-1760 Email: knowyourightsinsf@ gmail.com Attorneys for Plaintiff Phil Garcia ELECTRONICALLY FILED Superior Court of California, County of San Francisco 12/09/2014 Clerk of the Court BY:ANNIE PASCUAL 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 ) NOTICE OF MOTION AND MOTION ) TO DEEM CARRIE WILSON IN HER ) CAPACITY OF TRUSTEE OF THE ) WILSON FAMILY TRUST SERVED; ; PROOF OF SERVICE ) ) Date: January 7, 2014 ) Time: 9:30 a.m. ) Dept: 501 TO DEFENDANTS AND THEIR COUNSEL: YOU ARE HEREBY NOTIFIED THAT on January 7, 2014 at 9:30 a.m. or as soon as this matter may be heard, in Department 501 of this Court located at 400 McAllister Street, San Francisco, California, Plaintiff Phillip Garcia will and hereby does move the Court for an order to have Carrie Wilson deemed served with the summons and complaint in this action in her capacity as trustee of The Wilson Family Trust pursuant to Cal.C.C.P. § 416.90. HER CAPACITY OF TRUSTEE OF THE WILSON FAMILY TRUST SERVED -.1-The motion will be based upon this notice, the memorandum in support of filed and served herewith, the declaration of Plaintiffs counsel Benny Martin filed and served herewith, and upon further evidence and arguments as may be presented prior to or at the time of hearing. Respectfully submitted. Dated: December 9, 2014 LAW OFFICES OF BENNY MARTIN By: Benny Martin Attorney for Plaintiff Garcia HER CAPACITY OF TRUSTEE OF THE WILSON FAMILY TRUST SERVED ~-2-27 28 I. INTRODUCTION. In this motion, Plaintiff Phillip Garcia is seeking to have Carrie Wilson deemed served with the summons and complaint in this action in her capacity as trustee of The Wilson Family Trust pursuant to Cal.C.C.P. § 416.90. Il. STATEMENT OF FACTS. Defendant Angelo Wilson executed the written lease agreement the governs the landlord- tenant relationship between tenant Plaintiff Phillip Garcia and landlord Defendant The Wilson Family Trust as “authorized agent.” See Declaration of Benny Martin in Support of Motion to Compel, § 2, Ex. B, attached written lease. During his August 7, 2014 deposition, Angelo Wilson testified: Q. Okay. Have you ever signed a contract on behalf of Carrie Wilson? A. Yeah, that -- I probably have. I don't recall exactly which one or what, but probably as -- like, attorney or something or other? Power of attorney on specific things. For example -- no -- yeah, probably. Q. Do you have power of attorney over Carrie Wilson? A. No. Q. So you mentioned power of attorney. What did you mean by that? In what context? A. Particular business things, dealings. Q. So you entered into contracts on behalf of Carrie Wilson on particular business dealings? A. Certain business dealings, yes. Q. Which business dealings? A. I don't recall. Q. When was the last time you signed a contract on behalf of Carrie Wilson? A. Couple of years ago; maybe year ago, couple years ago. Q. For what business was that? A. I was power of attorney. I'm trying to remember what it was. Could have been this lawsuit, could have been this past lawsuit, it could have been --it could have been -- I'm trying to think what else. There's something else. I don't recall. I really don't. Q. You mentioned power of attorney, again, sir. What did you mean by that? HER CAPACITY OF TRUSTEE OF THE WILSON FAMILY TRUST SERVED ~3-A. Given that she is in Georgia, she can't sometimes make it to San Francisco. Certain business dealings, or whatever, have to be taken care of. Somebody here has to do it, so she will have something drawn up for me to sign a particular something. It doesn't -- it's not a general power, or whatever. I don't know what it's called. It doesn't overlap everything; it would be specific to whatever it is she needs taken care of at the time. Q. Do you know what the phrase "power of attorney" means? 17 A. Yeah. I'm able to represent her. See Declaration of Benny Martin in Support of Motion to Compel, ¥ 9, Ex. H, Wilson Deposition,39:1-40:17. Accordingly, Defendant Angelo Wilson was the authorized agent that executed the written lease agreement governing the parties’ landlord-tenant relationship on behalf of Carrie Wilson in her capacity as trustee of The Wilson Family Trust; and during his deposition, Defendant Angelo Wilson testified he was Carrie Wilson’s power of attorney for purposes of litigation, which “[c]ould have been this lawsuit, could have been this past lawsuit.” Il. THE CALIFORNIA CODE OF CIVIL PROCEDURE AUTHORIZES SERVICE OF PROCESS ON DEFENDANT ANGELO WILSON ON BEHALF OF CARRIE WILSON AS TRUSTEE OF DEFENDANT THE WILSON FAMILY TRUST. “A summons may be served on a person not otherwise specified in this article by delivering a copy of the summons and of the complaint to such person or to a person authorized by him to receive service of process.” Cal.C.C.P. § 416.90. The Judicial Council’s Comment to Cal.C.C.P. § 416.90 states: “A specific appointment is not required, but the principal-agent relationship must be close and enduring enough to make it highly probable that the defendant will receive actual notice.” “This statement by the draftsmen of s 416.90 is in accord with their expressed intention that the recently enacted statutes governing service of process “. . . should be liberally construed to effectuate service and uphold the jurisdiction of the court if actual notice has been received by the defendant, and in the last analysis the question of service should be resolved by considering each situation from a practical standpoint.” Warner Bros. Records, Inc. v. Golden West Music Sales (1974) 36 Cal.App.3d 1012, 1017, citing, Pasadena Medi-Center Associates v. Superior Court, (1973) 9 Cal.3d 773, 778. HER CAPACITY OF TRUSTEE OF THE WILSON FAMILY TRUST SERVED -4-The essential factor is whether relationship with defendants of person who received service was sufficiently close and enduring to make it reasonably certain that defendants would be apprised of service. Warner Bros. Records, Inc. v. Golden West Music Sales (1974) 36 Cal.App.3d 1012. At bar, the following factors demonstrate that Angelo Wilson is the authorized agent for Carrie Wilson regarding the landlord-tenant relationship between landlord Carrie Wilson as trustee of The Wilson Family Trust, and tenant Phillip Garcia: * Angelo Wilson entered into the subject lease agreement as “authorized agent” on behalf of Carrie Wilson as trustee of The Wilson Family Trust; ¢ Angelo Wilson brought the underlying unlawful detainer action in San Francisco Superior Court against Mr. Garcia as the property manager on behalf of Carrie Wilson as trustee of The Wilson Family Trust; ¢ Angelo Wilson indicated in his deposition that Carrie Wilson as trustee of Carrier Wilson as trustee of The Wilson Family Trust, has given power of attorney to Angelo Wilson regarding this litigation [39:18-25]; * Angelo Wilson testified in his deposition that because Carrie Wilson lives in Georgia, when “Given that she is in Georgia, she can't sometimes make it to San Francisco. Certain business, or whatever, need to be taken care of. Somebody has to do it, so she will have something drawn up for me to sign a particular something.” [40:6-7]. ¢ Angelo Wilson indicated in his deposition that Carrie Wilson as trustee of The Wilson Family Trust directed him to bring the underlying unlawful detainer action against Phillip Garcia [97:11- 98:11]; ¢ Angelo Wilson receives mail for Carrie Wilson at 1677 Hayes Street, which is Angelo Wilson’s home address in San Francisco. [66:14-23]; ¢ Angelo Wilson testified in his deposition that Carrie Wilson has instructed him not to disclose her address for purposes of this lawsuit. [30:12-14]. Accordingly, Defendant Angelo Wilson is authorized to be served as authorized agent of Carrie Wilson in her capacity as trustee of The Wilson Family Trust under Cal.C.C.P. § 416.90. HER CAPACITY OF TRUSTEE OF THE WILSON FAMILY TRUST SERVED ~5-VI. CONCLUSION. Based on the foregoing, Plaintiff requests that Defendant’s Motion be denied, and sanctions awarded for causing unwarranted delay. Date: December 9, 2014 LAW OFFICES OF BENNY MARTIN By: Benny Martin, Counsel for Plaintiff Phillip Garcia HER CAPACITY OF TRUSTEE OF THE WILSON FAMILY TRUST SERVED -~6-PROOF OF SERVICE I, BENNY MARTIN, declare as follows: I reside in the United States, am over the age of eighteen years and not a party to the within entitled action. I am not a registered California process server. I work at 195 41st Street, P.O. Box 11120 Oakland, CA 94611. On DECEMBER 9, 2014, I served the attached: PLAINTIFF'S PHILLIP GARCIA‘S NOTICE OF MOTION AND MOTION TO DEEM CARRIE WILSON IN HER CAPACITY OF TRUSTEE OF THE WILSON FAMILY TRUST SERVED; PROOF OF SERVICE on the interested parties in said action, by placing a true copy thereof in sealed envelope(s) addressed as follows: Joyce Clifford MURCHISON & CUMMING, LLP 275 BATTERY ST, STE. 550 SAN FRANCISCO, CA 94111 And served the named document in the manner indicated below: BY MAIL: I caused true and correct copies of the above documents, by following ordinary business practices, to be placed and sealed in envelope(s) addressed to the addresses(s), at the United States Postal Service mail box on the corner in Oakland for the collection and mailing with the United States Postal Service, and in the ordinary course of business, correspondence placed for collection on a particular day is deposited with the United States Postal Service that same day. I declare under the penalty of perjury under the laws of the state of California that the foregoing is true and correct. Executed DECEMBER 9, 2014 at Los Angeles, California. BENNY MARTIN HER CAPACITY OF TRUSTEE OF THE WILSON FAMILY TRUST SERVED -7-