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LAW OFFICES OF BENNY MARTIN
Benjamin Martin (SBN 257452)
195 41st Street
P.O. Box 11120
Oakland, CA 94611
Phone: (510) 227-4406
Email: knowyourightsinsf@ gmail.com
Attorneys for Plaintiff Phillip Garcia
ELECTRONICALLY
FILED
Supertor Court of Caiffornia,
County of San Francisco
10/29/2015
Clerk of the Court
BY:CAROL BALISTRERI
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 REPLY
) TO DEFENDANT THE WILSON FAMILY
) TRUST’S OPPOSITION TO PLAINTIFF'S
) MOTION TO COMPEL FURTHER
) RESPONSES TO DISCOVERY AND
) REQUESTS FOR MONETARY
) SANCTIONS
)
)
} Date: November 9, 2015
) Time: 9:30 a.m.
) Dept: 501
)
)
PLAINTIFF PHILLIP GARCIA’S REPLY TO DEFENDANT THE WILSON FAMILY TRUST’S OPPOSITION
-1-I. DEFENDANT CANNOT MOVE FOR AN EXTENSION TO RESPOND TO
DISCOVERY IN ITS OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL.
Defendant’s Opposition seems to admit that “an affirmative motion seeking to expand
Defendant’s deadline to respond to discovery” was required, but offers that it was exempt therefrom
because “there was not sufficient time to have such motion heard before Ms. Wilson’s responses
came due.” Opposition, 6:5-10. To this point, we highlight that Dr. Jones’ note is dated September
25, 2015, which was a day after Defendant’s discovery objections were served!, and more than three
(3) weeks before this motion was brought on October 16, 2015. Defendant does not explain why it
did not move for an extension under CCP $§ 2030.260, 2031.260, 2033.250, at any time from
September 25, 2015 through October 16, 2015.
Further, this Court regularly issues orders shortening time, and provides other appropriate
relief surrounding discovery deadlines when sought. The problem with Defendant’s position is that it
did not move for an extension, or for an order staying discovery pending the result thereof. Instead,
Defendant served objections with the expressed intent of delay, which is a per se misuse of the
discovery process. Korea Data Systems Co., Ltd, v. Sup. Ct. (1997) 51 Cal. App. 4th 1513, 1416
(making frivolous boilerplate objections for the exclusive purpose of delay is sanctionable as a
misuse of the discovery process).
In its Opposition, Defendant seeks an extension, and attaches a note from Dr. J. Gregory
Jones in support, which states Ms. Wilson has “poor vision” and “should not drive” due to cataract
surgery in one (1) eye, and has “an old retina detachment.” Clifford Decl. Ex. E. This note speaks to
no medical condition occurring prior to the date discovery responses were due. Thus, there is no
evidence Ms. Wilson had a health condition that impeded her ability to timely fulfill her discovery
obligations. Dr. J. Gregory Jones note referencing an “an old retina detachment” does not tell us how
or why Ms. Wilson was unable to speak to her counsel on the telephone and answer questions at any
time from August 11, 2015 (when discovery was served) to September 22, 2015 (when objections
were served). Indeed, Defendant’s Opposition admits that Ms. Wilson communicates with her family
members, “she is only reachable through family caring for her.” Defendant’s Opposition 6:23-25. If
Dr. J. Gregory Jones’ note says that the cataract surgery occurred “yesterday,” or on September 23,
2015. However, Defendant served it responses to all discovery requests on September 22, 2015. Dr.
J. Gregory Jones’ note evinces eye surgery on a cataract that occurred after discovery responses were
due and were served.
PLAINTIFF PHILLIP GARCIA’S REPLY TO DEFENDANT THE WILSON FAMILY TRUST’S OPPOSITION
-2-Ms. Wilson currently communicates through her family, why could Ms. Wilson not comply with her
discovery obligations through her family?
Defendant’s Opposition also indicated Ms. Wilson was on pain medication due to a fall, but
no doctor’s note, or any other evidence is offered in support. Perhaps the absence of this evidence is
why Defendant did not move for a discovery extension under CCP $$ 2030.260, 2031.260, 2033.250,
i.e. so moving would require Defendant to present evidence of the claim health issues, and allow this
Court to evaluate whether relief from discovery obligations is necessary.
II. .DEFENDANT’S BELATED SUPPLEMENTAL RESPONSES ARE DEFICIENT.
Defendant’s lawyers provided supplemental discovery responses eleven (11) days after this
motion was filed. Defendant’s Opposition explains that verifications were not served because of Ms.
Wilsons’ health condition. No explanation is provided for why these responses were not originally
served. Below is a list of Defendant’s discovery responses that are still deficient.
a. Document Requests.
No documents were produced in response to any of the document requests. This is
particularly troubling in light of Defendants Supplemental Response to Form Interrogatory No. 12.4,
15.1(c), in which “41 photographs and 19 sound and video recording” and many other documents
were identified.
Notably, Defendant claims that it does not have copies of Mr. Garcia’s rent checks deposited
into Defendant’s bank account, although Defendant’s bank certainly would. Plaintiff motion to
compel the name of the bank into check Mr. Garcia’s rent checks were deposited was denied by this
Court on January 7, 2015. Plaintiff alleges in his FAC that Defendant refused to cash his rent checks
after the UD action. FAC 946,19. The Trust cannot be escape producing copies of Mr. Garcia’s rent
checks—banks keep copies of deposited checks. Either Defendant has not request them, or has, and
is concealing them.
b. Special Interrogatories.
Nos. 2, 3, 6, 7, 8, 20, 25, 33, 34 do not respond to the interrogatory, either at all, or
completely.
c. Form Interrogatories.
Nos. 15.1, 17.1.
PLAINTIFF PHILLIP GARCIA’S REPLY TO DEFENDANT THE WILSON FAMILY TRUST’S OPPOSITION
-3-d. Request for Admissions.
No. 1, 2, 6.
Plaintiff will meet and confer on the deficiencies outlined above, and hopefully will obtain compliant
responses without the need for another motion to compel.
IH. URGENCY SURROUNDING DEFENDANT’S DISCOVERY RESPONSES.
Without this motion, Defendant would not have served its supplemental discovery responses.
Acknowledging remaining deficiencies, Defendant asks for another thirty (30) days to further
respond. Another thirty (30) days would deprive Plaintiff Garcia of documents needed to respond to
the OSC re: dismissal, and Defendant’s MSA. These impending dispositive events belie Defendant’s
contention in its Opposition that there is no urgency.
IV. Plaintiff is Entitled to Monetary Sanctions.
Sanctions are appropriately levied against counsel of the offending party when the requested
discovery is provided after a motion to compel is filed. Rules of Court, Rule 3.1348(a). Here, there
is no reason Defendant’s lawyers could not provided unverified responses within the statutory period,
and there is no reason for its failure to seek an extension if that was untenable in some way.
Simply put: this motion was necessary for Plaintiff to obtain Defendant’s supplemental
discovery responses (without verifications without documents produced).
Thus, Plaintiff requests sanctions against the Trustee and her counsel in the amount of
$6,987.50, which consists of the amount of attorney's fees and costs incurred in bringing this
necessary motion to compel. Martin Decl. § 20.
VI. CONCLUSION.
Based on the foregoing, Plaintiff requests that this motion be granted and that sanctions be
imposed in the amount of $6,987.50.
Date: October 29, 2015 LAW OFFICES OF BENNY MARTIN
By:
Benny Martin,
Counsel for Plaintiff Phillip Garcia
PLAINTIFF PHILLIP GARCIA’S REPLY TO DEFENDANT THE WILSON FAMILY TRUST’S OPPOSITION
-4-
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LAW OFFICES OF BENNY MARTIN Benjamin Martin (SBN 257452) 195 41st Street P.O. Box 11120 Oakland, CA 94611 Phone: (510) 227-4406 Email: knowyourightsinsf@ gmail.com Attorneys for Plaintiff Phillip Garcia ELECTRONICALLY FILED Supertor Court of Caiffornia, County of San Francisco 10/29/2015 Clerk of the Court BY:CAROL BALISTRERI 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 REPLY ) TO DEFENDANT THE WILSON FAMILY ) TRUST’S OPPOSITION TO PLAINTIFF'S ) MOTION TO COMPEL FURTHER ) RESPONSES TO DISCOVERY AND ) REQUESTS FOR MONETARY ) SANCTIONS ) ) } Date: November 9, 2015 ) Time: 9:30 a.m. ) Dept: 501 ) ) PLAINTIFF PHILLIP GARCIA’S REPLY TO DEFENDANT THE WILSON FAMILY TRUST’S OPPOSITION -1-I. DEFENDANT CANNOT MOVE FOR AN EXTENSION TO RESPOND TO DISCOVERY IN ITS OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL. Defendant’s Opposition seems to admit that “an affirmative motion seeking to expand Defendant’s deadline to respond to discovery” was required, but offers that it was exempt therefrom because “there was not sufficient time to have such motion heard before Ms. Wilson’s responses came due.” Opposition, 6:5-10. To this point, we highlight that Dr. Jones’ note is dated September 25, 2015, which was a day after Defendant’s discovery objections were served!, and more than three (3) weeks before this motion was brought on October 16, 2015. Defendant does not explain why it did not move for an extension under CCP $§ 2030.260, 2031.260, 2033.250, at any time from September 25, 2015 through October 16, 2015. Further, this Court regularly issues orders shortening time, and provides other appropriate relief surrounding discovery deadlines when sought. The problem with Defendant’s position is that it did not move for an extension, or for an order staying discovery pending the result thereof. Instead, Defendant served objections with the expressed intent of delay, which is a per se misuse of the discovery process. Korea Data Systems Co., Ltd, v. Sup. Ct. (1997) 51 Cal. App. 4th 1513, 1416 (making frivolous boilerplate objections for the exclusive purpose of delay is sanctionable as a misuse of the discovery process). In its Opposition, Defendant seeks an extension, and attaches a note from Dr. J. Gregory Jones in support, which states Ms. Wilson has “poor vision” and “should not drive” due to cataract surgery in one (1) eye, and has “an old retina detachment.” Clifford Decl. Ex. E. This note speaks to no medical condition occurring prior to the date discovery responses were due. Thus, there is no evidence Ms. Wilson had a health condition that impeded her ability to timely fulfill her discovery obligations. Dr. J. Gregory Jones note referencing an “an old retina detachment” does not tell us how or why Ms. Wilson was unable to speak to her counsel on the telephone and answer questions at any time from August 11, 2015 (when discovery was served) to September 22, 2015 (when objections were served). Indeed, Defendant’s Opposition admits that Ms. Wilson communicates with her family members, “she is only reachable through family caring for her.” Defendant’s Opposition 6:23-25. If Dr. J. Gregory Jones’ note says that the cataract surgery occurred “yesterday,” or on September 23, 2015. However, Defendant served it responses to all discovery requests on September 22, 2015. Dr. J. Gregory Jones’ note evinces eye surgery on a cataract that occurred after discovery responses were due and were served. PLAINTIFF PHILLIP GARCIA’S REPLY TO DEFENDANT THE WILSON FAMILY TRUST’S OPPOSITION -2-Ms. Wilson currently communicates through her family, why could Ms. Wilson not comply with her discovery obligations through her family? Defendant’s Opposition also indicated Ms. Wilson was on pain medication due to a fall, but no doctor’s note, or any other evidence is offered in support. Perhaps the absence of this evidence is why Defendant did not move for a discovery extension under CCP $$ 2030.260, 2031.260, 2033.250, i.e. so moving would require Defendant to present evidence of the claim health issues, and allow this Court to evaluate whether relief from discovery obligations is necessary. II. .DEFENDANT’S BELATED SUPPLEMENTAL RESPONSES ARE DEFICIENT. Defendant’s lawyers provided supplemental discovery responses eleven (11) days after this motion was filed. Defendant’s Opposition explains that verifications were not served because of Ms. Wilsons’ health condition. No explanation is provided for why these responses were not originally served. Below is a list of Defendant’s discovery responses that are still deficient. a. Document Requests. No documents were produced in response to any of the document requests. This is particularly troubling in light of Defendants Supplemental Response to Form Interrogatory No. 12.4, 15.1(c), in which “41 photographs and 19 sound and video recording” and many other documents were identified. Notably, Defendant claims that it does not have copies of Mr. Garcia’s rent checks deposited into Defendant’s bank account, although Defendant’s bank certainly would. Plaintiff motion to compel the name of the bank into check Mr. Garcia’s rent checks were deposited was denied by this Court on January 7, 2015. Plaintiff alleges in his FAC that Defendant refused to cash his rent checks after the UD action. FAC 946,19. The Trust cannot be escape producing copies of Mr. Garcia’s rent checks—banks keep copies of deposited checks. Either Defendant has not request them, or has, and is concealing them. b. Special Interrogatories. Nos. 2, 3, 6, 7, 8, 20, 25, 33, 34 do not respond to the interrogatory, either at all, or completely. c. Form Interrogatories. Nos. 15.1, 17.1. PLAINTIFF PHILLIP GARCIA’S REPLY TO DEFENDANT THE WILSON FAMILY TRUST’S OPPOSITION -3-d. Request for Admissions. No. 1, 2, 6. Plaintiff will meet and confer on the deficiencies outlined above, and hopefully will obtain compliant responses without the need for another motion to compel. IH. URGENCY SURROUNDING DEFENDANT’S DISCOVERY RESPONSES. Without this motion, Defendant would not have served its supplemental discovery responses. Acknowledging remaining deficiencies, Defendant asks for another thirty (30) days to further respond. Another thirty (30) days would deprive Plaintiff Garcia of documents needed to respond to the OSC re: dismissal, and Defendant’s MSA. These impending dispositive events belie Defendant’s contention in its Opposition that there is no urgency. IV. Plaintiff is Entitled to Monetary Sanctions. Sanctions are appropriately levied against counsel of the offending party when the requested discovery is provided after a motion to compel is filed. Rules of Court, Rule 3.1348(a). Here, there is no reason Defendant’s lawyers could not provided unverified responses within the statutory period, and there is no reason for its failure to seek an extension if that was untenable in some way. Simply put: this motion was necessary for Plaintiff to obtain Defendant’s supplemental discovery responses (without verifications without documents produced). Thus, Plaintiff requests sanctions against the Trustee and her counsel in the amount of $6,987.50, which consists of the amount of attorney's fees and costs incurred in bringing this necessary motion to compel. Martin Decl. § 20. VI. CONCLUSION. Based on the foregoing, Plaintiff requests that this motion be granted and that sanctions be imposed in the amount of $6,987.50. Date: October 29, 2015 LAW OFFICES OF BENNY MARTIN By: Benny Martin, Counsel for Plaintiff Phillip Garcia PLAINTIFF PHILLIP GARCIA’S REPLY TO DEFENDANT THE WILSON FAMILY TRUST’S OPPOSITION -4-