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Matthew K. Wisinski (SBN 195535)
Joyce E. Clifford (SBN 197654)
Katelyn M. Knight (SBN 264573)
MURCHISON & CUMMING, LLP FILED.
275 Battery Street, Suite 550
San Francisco, California 94111 i coins bean mamceeo ft
Telephone: (415) 524-4300 11/10/2015
Facsimile: (415) 391-2058 Gle-k of ne Court
E-Mail: — mwisinski@murchisonlaw.com BY:WILLIAM TRUPEK
jclifford@murchisonlaw.com Deputy Clerk
kknight@murchisonlaw.com
Attorneys for Defendants ANGELO WILSON
and CARRIE WILSON in her capacity as
Trustee of the WILSON FAMILY TRUST
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
PHILLIP GARCIA, CASE NO. CGC-14-538560
Plaintiff, DEFENDANT CARRIE WILSON IN HER
CAPAGITY AS TRUSTEE OF THE
vs. WILSON FAMILY TRUST'S
OPPOSITION TO PLAINTIFF'S MOTION
CARRIE WILSON, in her capacity as TO COMPEL FURTHER DISCOVERY
trustee of THE WILSON FAMILY TRUST, | RESPONSES
SHAUN MARKHAM, ERIKA MARKHAM,
and ANGELO WILSON, and DOES 1-20, Date: November 9, 2015
Time: 9:30 a.m.
Defendants. Dept.: 501
Action Filed: April 10, 2014
Trial Date: None Set
I
INTRODUCTION
The present motion is a result of Plaintiffs counsel's unwillingness to provide an
extension of Defendant's deadline to serve responses to discovery. Ms. Wilson is an
eighty-four year old woman suffering from multiple ongoing health problems, including
osteoarthritis and a degenerative disc disorder. Prior to her deadline to provide responses to
Plaintiff's discovery, defense counsel learned that Ms. Wilson's had suffered a fall and was on
1 Seat
DEFENDANT CARRIE WILSON IN HER CAPACITY AS TRUSTEE OF THE WILSON FAMILY TRUST'S
OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER DISCOVERY RESPONSES
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pain medication and would shortly be undergoing surgery to repaid a detached retina, she
would therefore be unable to provide timely responses. Defense counsel requested a thirty-
day extension to provide responses. Plaintiff's counsel would not grant any extension. To
avoid waiving her objections under Code Civ. Proc. § 2030.290(a), Defendant served
objection-only responses to the discovery and began working on a set of substantive
supplemental responses. Those supplemental responses have been provided to Plaintiff,
however additional time is needed for Ms. Wilson to review and verify the responses.
Defendant requests that the present motion be denied and that Ms. Wilson be given an
additional thirty days to review and verify the discovery responses prepared by counsel.
i.
BACKGROUND
A. Factual Background
This is a landlord-tenant case arising from an alleged failure to respond to noise
complaints and invasion of privacy in connection with a prior unlawful detainer action.
Plaintiff PHILLIP GARCIA entered into a lease agreement to lease property at 1665 Hayes
Street, San Francisco. The Property was owned at the time by the WILSON FAMILY TRUST
and managed by ANGELO WILSON. In response to noise complaints made by fellow resident
SHAUN MARKHAM, ANGELO WILSON brought an unlawful detainer action against PHILLIP
GARCIA. The unlawful detainer action was supported by video and audio recordings
obtained by Mr. Markham. The Court found that ANGELO WILSON failed to carry his burden
of proof in the unlawful detainer action and entered judgment in favor of Plaintiff on November
21, 2013. The judgment included an award of prevailing party attorneys’ fees pursuant to a
provision in the lease agreement.
PHILIP GARCIA filed the present action on April 10, 2014 against CARRIE WILSON in
her capacity as Trustee of the WILSON FAMILY TRUST, ANGELO WILSON, SHAWN
MARKHAM, and ERIKA MARKHAM. The Complaint alleges that the video and audio
recordings used to support the unlawful detainer action were obtained at the direction and
with the knowledge of ANGELO WILSON, and that the recordings constitute an actionable
2 Soo
DEFENDANT CARRIE WILSON IN HER CAPACITY AS TRUSTEE OF THE WILSON FAMILY TRUST'S
OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER DISCOVERY RESPONSESoO ON ODO HO RB WN
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invasion of Plaintiff's privacy and an attempted wrongful eviction. Plaintiff also seeks an order
permitting the judgment he obtained against ANGELO WILSON to be enforced against
CARRIE WILSON in her capacity as Trustee of the WILSON FAMILY TRUST.
B. The Present Dispute
This motion pertains to Plaintiffs first set of form interrogatories, special
interrogatories, requests for admission, and inspection demands to Defendant CARRIE
WILSON as Trustee of the WILSON FAMILY TRUST, which were served on August 18, 2015.
CARRIE WILSON is eighty-four years old. She resides in Georgia with various family
members. Defendant's counsel Joyce Clifford contacted Plaintiff's counsel to inform him that
Ms. Wilson would require some accommodations for her deposition due to her advanced age
and deteriorating health. (Clifford Decl., | 1.) Ms. Clifford also provided a letter from Ms.
Wilson's family physician. The letter indicated that Ms. Wilson has a history of osteoarthritis,
degenerative disc disease, and osteoporosis causing her difficulties with mobility that have
increased with her age. Ms. Wilson experiences pain in her hips, feet and ankles and has
difficulty standing erect due to degenerative disc disease in her thoracic-lumbar spine. She
has difficulty with sitting or standing for long periods of time, prolonged walking, and climbing
stairs and is at risk for falls. (Clifford Decl., Ex. A.)
On September 15, 2015, Ms. Clifford wrote an e-mail to Mr. Martin indicating that Ms.
Wilson's health had taken a turn for the worse and she would not be able to respond to
outstanding discovery at that time. Ms. Clifford indicated that she would contact Ms. Wilson's
family to obtain more information regarding her health. (Clifford Decl., Ex. B.) Mr. Martin
responded on September 16, 2015 indicating that he expected all discovery obligations to be
timely met and suggesting that the Trust be passed on to a new Trustee. (Clifford Decl., Ex.
C.)
Ms. Clifford responded the same day with the additional information that Ms. Wilson
had a recent fall resulting in a hip injury and would be undergoing surgery at the end of the
month for a detached retina. As a consequence, Ms. Wilson was on pain medication and not
in a condition to respond to discovery. Ms. Clifford noted that there were outstanding
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DEFENDANT CARRIE WILSON IN HER CAPACITY AS TRUSTEE OF THE WILSON FAMILY TRUST'S
OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER DISCOVERY RESPONSESoon Oa RF WN B
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discovery requests due on September 24, 2015 and asked an extension of at least one month
to respond in light of Ms. Wilson's health situation. Ms. Clifford reiterated that Ms. Wilson
would absolutely respond to discovery and appear for deposition, but that more time was
needed. (Clifford Decl., Ex. D.) Ms. Wilson's doctor provided a further note indicating that she
had just had cataracts surgery and her vision was very poor due to a detached retina. (Clifford
Decl., Ex. E.)
Mr. Martin indicated that he would provide an extension for the discovery only if
Ms. Wilson's counsel would accept service on behalf of the other named Defendants
SHAWN MARKHAM and ERICA MARKHAM, provide Ms. Wilson's home address, and agree
to provide verified responses to all discovery by October 24, 2015. (Clifford Decl., Ex. F.) This
is not the first time that Mr. Martin has asked defense counsel to accept service on behalf of
the remaining defendants. Ms. Clifford responded that she could not agree to those terms and
so would be serving objections to the discovery. (Clifford Decl., Ex. G.) Responses to the
discovery containing Ms. Wilson's objections were served on September 22, 2015. Mr. Martin
wrote back on October 1, 2015 asking for further information regarding Ms. Wilson's health
and arguing, among other things, that Ms. Clifford should be able to provide some of the
information requested without Ms. Wilson's input and demanded further unverified responses
by October 12". (Clifford Decl., Ex. H.) Ms. Clifford responded the same day that Ms. Wilson
had surgery the prior week and that further discovery responses would be provided as soon as
she recovered, but that she could not provide a firm date. (Clifford Decl., Ex. |.)
On October 14, 2015, Mr. Martin indicated that he would be filing a motion to compel
that day if he did not receive further discovery responses. Ms. Clifford responded that she was
working on supplemental responses and should be able to provide them by the end of the
following week. Mr. Martin asked if it would be possible to provide them sooner, stating that
he needed the discovery to support his opposition to Defendant's Motion for Summary
Adjudication, which was due November 16". Ms. Clifford noted that the case is still not at
issue and there is no need for the urgency; she suggested that the parties respective Motions
for Summary Adjudication be continued to January or February, which would provide more
4
DEFENDANT CARRIE WILSON IN HER CAPACITY AS TRUSTEE OF THE WILSON FAMILY TRUST'S
OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER DISCOVERY RESPONSESoN Oa PF WN
time. Mr. Martin declined and indicated that he would file the motion to compel and would
simply take it off calendar if compliant responses were subsequently provided. (Clifford Decl.,
Ex. J.)
On October 27, 2015, defense counsel served supplemental unverified responses to
Plaintiff's discovery, which are attached to the declaration of Joyce Clifford as Exhibit K.
Il.
ARGUMENT
A. Legal Standard
A party may move to compel a further discovery response on the basis that the
response provided is evasive or incomplete. Code Civ. Proc. § 2030.300(a). To prevail ona
motion to compel, the moving party must demonstrate that a reasonable and good faith
attempt at an informal resolution of each issue presented by the motion was made before the
motion was filed. Code Civ. Proc. § 2016.040.
B. Defendant has Provided Supplemental Responses and Requests an
Additional 30 Days to Obtain Verifications
The present motion is a result of Plaintiffs counsel's unwillingness to provide an
extension of Defendant's deadline to serve responses to discovery. On September 15, 2015,
Ms. Clifford wrote an e-mail to Mr. Martin indicating that she had been informed Ms. Wilson's
health had taken a turn for the worse and was seeking more information, but that Ms. Wilson
would be unable to respond to discovery at this time. Mr. Martin responded that he expected
all discovery obligations to be met. Subsequently, Ms. Clifford learned and conveyed to Mr.
Martin that Ms. Wilson was recovering from a recent hip injury due to a fall and was scheduled
for surgery to repair a detached retina in the first week of October. Ms. Clifford consequently
asked for an extension of thirty days to provide responses. Mr. Martin would not provide the
extension. Or rather, he indicated that he would provide the extension, but only if Ms. Wilson's
counsel agreed to accept service on behalf of two named Defendants she does not represent.
(Clifford Decl., Ex. F.) Discovery extensions are common and typically provided as a matter of
courtesy. For example, Ms. Clifford previously granted Plaintiff multiple extensions to provide
OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER DISCOVERY RESPONSESdiscovery responses totaling approximately two months. (Clifford Decl., {] 3.) Plaintiff's
unwillingness to provide any extension under the circumstances was not reasonable, and left
defense counsel no choice to but to preserve Ms. Wilson's objections to the discovery and
provide supplemental responses at a later date.
Plaintiff argues that Defendant should have filed an affirmative motion seeking to
expand Defendant's deadline to respond to discovery, however there was not sufficient time to
have such motion heard before Ms. Wilson's responses came due. By the time that defense
counsel learned Ms. Wilson would be unable to review and verify discovery responses, the
deadline to provide responses was less than two weeks away. A motion seeking relief must
be filed a served at least 16 court days prior to the scheduled hearing. Code Civ. Proc. §
1005. Any motion to expand the time in which to respond would not have been heard until
after Ms. Wilson's deadline to provide responses, at which point her objections to discovery
would have been waived. Code Civ. Proc. § 2030.290(a)("The party to whom the
interrogatories are directed waives. ..any objection to the interrogatories, including one based
on privilege or on the protection for work product...").
Defendant has acted transparently and in good faith at all times, keeping Plaintiff
apprised of the situation and seeking an extension so that full and complete substantive
responses could be provided rather than just objections. Further, defense counsel has
prepared supplemental responses based on information gathered from sources other than Ms.
Wilson. Those responses have been provided to Plaintiff and are attached to declaration of
Joyce Clifford filed herewith. Defendant requests an additional thirty days to provide
verifications for the responses. Ms. Wilson had eye surgery just three weeks ago and is still
recovering. She is only reachable through family caring for her and does not have access to
e-mail or a fax machine. Defense counsel has sent the supplemental discovery requests and
responses to Ms. Wilson by U.S. mail. Once received they will need to be read to her by a
family member. Assuming she has no corrections and is able to sign the verifications, those
will be returned by mail.
6
DEFENDANT CARRIE WILSON IN HER CAPACITY AS TRUSTEE OF THE WILSON FAMILY TRUST'S
OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER DISCOVERY RESPONSESThe time-pressure identified by Plaintiff is artificial and can be easily addressed. The
case is not yet at issue. No trial date has been set. Plaintiff argues that discovery is needed
to prepare his opposition to Defendant's Motion for Summary Adjudication, due on November
16, 2015, however Defendant is perfectly willing to continue the hearing date on the two
outstanding Motions for Summary Adjudication to give Plaintiff more time to respond. Indeed,
the only reason that the parties' respective Motions for Summary Adjudication are set for
hearing so soon is because Plaintiff insisted on having the Motions filed and heard as soon as
possible—Defendant had proposed hearing dates in January. Plaintiff's argument that Ms.
Wilson evaded service of process for a year is completely without merit. Declining to accept
service through counsel is not an evasion of service. Plaintiff's argument that Ms. Wilson's
health problems call for expedited proceedings also fails. As Plaintiff pointed out, Ms. Wilson
is being sued only in her capacity as Trustee of the Wilson Family Trust. Further, her declining
health is the reason that more time is needed to provide verified discovery responses, it does
not support the position that she should be given less time to review and verify the responses.
Finally, Plaintiff argues that the present discovery is needed to locate the whereabouts of
Defendants SHAWN and ERIKA MARKHAM, however counsel understands that Ms. Wilson
does not have knowledge of either's location.
Cc. Imposition of Sanctions in this Instance Would be Unjust
Discovery sanctions may be imposed only on a finding that the actions of the one
subject to the sanction were not substantially justified, and that imposition of the sanction
would not be unjust under the circumstances. Code Civ. Proc. § 2030.300. Here, Defendant
is an eighty-four year old woman suffering from multiple health ongoing health problems,
including osteoarthritis and degenerative disc disease. She suffered a fall and hip injury, had
cataracts surgery, and then had surgery to repair a detached retina. As a consequence of
these problems, Ms. Wilson was unable to provide timely discovery responses. Defense
counsel diligently notified Plaintiff's counsel of Ms. Wilson's inability to provide timely
substantive responses due to her health and sought an extension prior to the deadline to
provide responses. Plaintiff would not grant an extension. Accordingly, counsel served
7
DEFENDANT CARRIE WILSON IN HER CAPACITY AS TRUSTEE OF THE WILSON FAMILY TRUST'S
OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER DISCOVERY RESPONSESoOo On OO A F&F Ww HY =
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objections to preserve Ms. Wilson's rights and worked to prepare substantive supplemental
responses. Counsel has gathered as much information as possible from other sources and
provided supplemental responses. Contrary to Plaintiffs assertion, there has been no
gamesmanship involved. Defendant has acted in good faith at all times and her actions are
substantially justified.
IV.
CONCLUSION
For the reasons discussed herein, Defendant respectfully requests that the present
motion be denied
DATED: October ¢ 7 , 2015 MURCHISON & CUMMING, LLP
Matthew K.Wiginski SD
Joyce E. Clifford
Katelyn M. Knight
Attorneys for Defendants ANGELO WILSON
and CARRIE WILSON in her capacity as
Trustee of the WILSON FAMILY TRUST
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DEFENDANT CARRIE WILSON IN HER CAPACITY AS TRUSTEE OF THE WILSON FAMILY ERUST'S
OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER DISCOVERY RESPONSPROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO
At the time of service, | was over 18 years of age and not a party to this action. | am
employed in the County of San Francisco, State of California. My business address is 275
Battery Street, Suite 550, San Francisco, California 94111.
On October 27, 2015, | served true copies of the following document(s) described
as DEFENDANT CARRIE WILSON IN HER CAPACITY AS TRUSTEE OF THE WILSON
FAMILY TRUST'S OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER
DISCOVERY RESPONSES on the interested parties in this action as follows:
SEE ATTACHED LIST
BY ELECTRONIC SERVICE VIA FILE & SERVEXPRESS: | electronically served the
document(s) described above via File & ServeXpress, on the recipients designated on the
Transaction Receipt located on the File & ServeXpress website
(https:secure. fileandservexpress.com) pursuant to the Court Order establishing the case
website and authorizing service of documents.
| declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Executed on October 27, 2015, at San Francisco, California.
\
“DEFENDANT CARRIE WILSON IN HER CAPACITY AS TRUSTEE O
OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHE
F THE WILSON FAMILY TRUST'S —
R DISCOVERY RESPONSES
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oo ON Oo Hn FF Ww NY = = = ao Matthew K. Wisinski (SBN 195535) Joyce E. Clifford (SBN 197654) Katelyn M. Knight (SBN 264573) MURCHISON & CUMMING, LLP FILED. 275 Battery Street, Suite 550 San Francisco, California 94111 i coins bean mamceeo ft Telephone: (415) 524-4300 11/10/2015 Facsimile: (415) 391-2058 Gle-k of ne Court E-Mail: — mwisinski@murchisonlaw.com BY:WILLIAM TRUPEK jclifford@murchisonlaw.com Deputy Clerk kknight@murchisonlaw.com Attorneys for Defendants ANGELO WILSON and CARRIE WILSON in her capacity as Trustee of the WILSON FAMILY TRUST SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO PHILLIP GARCIA, CASE NO. CGC-14-538560 Plaintiff, DEFENDANT CARRIE WILSON IN HER CAPAGITY AS TRUSTEE OF THE vs. WILSON FAMILY TRUST'S OPPOSITION TO PLAINTIFF'S MOTION CARRIE WILSON, in her capacity as TO COMPEL FURTHER DISCOVERY trustee of THE WILSON FAMILY TRUST, | RESPONSES SHAUN MARKHAM, ERIKA MARKHAM, and ANGELO WILSON, and DOES 1-20, Date: November 9, 2015 Time: 9:30 a.m. Defendants. Dept.: 501 Action Filed: April 10, 2014 Trial Date: None Set I INTRODUCTION The present motion is a result of Plaintiffs counsel's unwillingness to provide an extension of Defendant's deadline to serve responses to discovery. Ms. Wilson is an eighty-four year old woman suffering from multiple ongoing health problems, including osteoarthritis and a degenerative disc disorder. Prior to her deadline to provide responses to Plaintiff's discovery, defense counsel learned that Ms. Wilson's had suffered a fall and was on 1 Seat DEFENDANT CARRIE WILSON IN HER CAPACITY AS TRUSTEE OF THE WILSON FAMILY TRUST'S OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER DISCOVERY RESPONSES ° z= oo ON Oo An Fk WwW DN 10 pain medication and would shortly be undergoing surgery to repaid a detached retina, she would therefore be unable to provide timely responses. Defense counsel requested a thirty- day extension to provide responses. Plaintiff's counsel would not grant any extension. To avoid waiving her objections under Code Civ. Proc. § 2030.290(a), Defendant served objection-only responses to the discovery and began working on a set of substantive supplemental responses. Those supplemental responses have been provided to Plaintiff, however additional time is needed for Ms. Wilson to review and verify the responses. Defendant requests that the present motion be denied and that Ms. Wilson be given an additional thirty days to review and verify the discovery responses prepared by counsel. i. BACKGROUND A. Factual Background This is a landlord-tenant case arising from an alleged failure to respond to noise complaints and invasion of privacy in connection with a prior unlawful detainer action. Plaintiff PHILLIP GARCIA entered into a lease agreement to lease property at 1665 Hayes Street, San Francisco. The Property was owned at the time by the WILSON FAMILY TRUST and managed by ANGELO WILSON. In response to noise complaints made by fellow resident SHAUN MARKHAM, ANGELO WILSON brought an unlawful detainer action against PHILLIP GARCIA. The unlawful detainer action was supported by video and audio recordings obtained by Mr. Markham. The Court found that ANGELO WILSON failed to carry his burden of proof in the unlawful detainer action and entered judgment in favor of Plaintiff on November 21, 2013. The judgment included an award of prevailing party attorneys’ fees pursuant to a provision in the lease agreement. PHILIP GARCIA filed the present action on April 10, 2014 against CARRIE WILSON in her capacity as Trustee of the WILSON FAMILY TRUST, ANGELO WILSON, SHAWN MARKHAM, and ERIKA MARKHAM. The Complaint alleges that the video and audio recordings used to support the unlawful detainer action were obtained at the direction and with the knowledge of ANGELO WILSON, and that the recordings constitute an actionable 2 Soo DEFENDANT CARRIE WILSON IN HER CAPACITY AS TRUSTEE OF THE WILSON FAMILY TRUST'S OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER DISCOVERY RESPONSESoO ON ODO HO RB WN = invasion of Plaintiff's privacy and an attempted wrongful eviction. Plaintiff also seeks an order permitting the judgment he obtained against ANGELO WILSON to be enforced against CARRIE WILSON in her capacity as Trustee of the WILSON FAMILY TRUST. B. The Present Dispute This motion pertains to Plaintiffs first set of form interrogatories, special interrogatories, requests for admission, and inspection demands to Defendant CARRIE WILSON as Trustee of the WILSON FAMILY TRUST, which were served on August 18, 2015. CARRIE WILSON is eighty-four years old. She resides in Georgia with various family members. Defendant's counsel Joyce Clifford contacted Plaintiff's counsel to inform him that Ms. Wilson would require some accommodations for her deposition due to her advanced age and deteriorating health. (Clifford Decl., | 1.) Ms. Clifford also provided a letter from Ms. Wilson's family physician. The letter indicated that Ms. Wilson has a history of osteoarthritis, degenerative disc disease, and osteoporosis causing her difficulties with mobility that have increased with her age. Ms. Wilson experiences pain in her hips, feet and ankles and has difficulty standing erect due to degenerative disc disease in her thoracic-lumbar spine. She has difficulty with sitting or standing for long periods of time, prolonged walking, and climbing stairs and is at risk for falls. (Clifford Decl., Ex. A.) On September 15, 2015, Ms. Clifford wrote an e-mail to Mr. Martin indicating that Ms. Wilson's health had taken a turn for the worse and she would not be able to respond to outstanding discovery at that time. Ms. Clifford indicated that she would contact Ms. Wilson's family to obtain more information regarding her health. (Clifford Decl., Ex. B.) Mr. Martin responded on September 16, 2015 indicating that he expected all discovery obligations to be timely met and suggesting that the Trust be passed on to a new Trustee. (Clifford Decl., Ex. C.) Ms. Clifford responded the same day with the additional information that Ms. Wilson had a recent fall resulting in a hip injury and would be undergoing surgery at the end of the month for a detached retina. As a consequence, Ms. Wilson was on pain medication and not in a condition to respond to discovery. Ms. Clifford noted that there were outstanding 3 7 DEFENDANT CARRIE WILSON IN HER CAPACITY AS TRUSTEE OF THE WILSON FAMILY TRUST'S OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER DISCOVERY RESPONSESoon Oa RF WN B NN NY NY NY NY NY NY YD B@ B&B Ba Ba ew a a a a aon Oo nH FF BW NH |= 0 O86 8B NN DW ODO FF Ww NY = CS discovery requests due on September 24, 2015 and asked an extension of at least one month to respond in light of Ms. Wilson's health situation. Ms. Clifford reiterated that Ms. Wilson would absolutely respond to discovery and appear for deposition, but that more time was needed. (Clifford Decl., Ex. D.) Ms. Wilson's doctor provided a further note indicating that she had just had cataracts surgery and her vision was very poor due to a detached retina. (Clifford Decl., Ex. E.) Mr. Martin indicated that he would provide an extension for the discovery only if Ms. Wilson's counsel would accept service on behalf of the other named Defendants SHAWN MARKHAM and ERICA MARKHAM, provide Ms. Wilson's home address, and agree to provide verified responses to all discovery by October 24, 2015. (Clifford Decl., Ex. F.) This is not the first time that Mr. Martin has asked defense counsel to accept service on behalf of the remaining defendants. Ms. Clifford responded that she could not agree to those terms and so would be serving objections to the discovery. (Clifford Decl., Ex. G.) Responses to the discovery containing Ms. Wilson's objections were served on September 22, 2015. Mr. Martin wrote back on October 1, 2015 asking for further information regarding Ms. Wilson's health and arguing, among other things, that Ms. Clifford should be able to provide some of the information requested without Ms. Wilson's input and demanded further unverified responses by October 12". (Clifford Decl., Ex. H.) Ms. Clifford responded the same day that Ms. Wilson had surgery the prior week and that further discovery responses would be provided as soon as she recovered, but that she could not provide a firm date. (Clifford Decl., Ex. |.) On October 14, 2015, Mr. Martin indicated that he would be filing a motion to compel that day if he did not receive further discovery responses. Ms. Clifford responded that she was working on supplemental responses and should be able to provide them by the end of the following week. Mr. Martin asked if it would be possible to provide them sooner, stating that he needed the discovery to support his opposition to Defendant's Motion for Summary Adjudication, which was due November 16". Ms. Clifford noted that the case is still not at issue and there is no need for the urgency; she suggested that the parties respective Motions for Summary Adjudication be continued to January or February, which would provide more 4 DEFENDANT CARRIE WILSON IN HER CAPACITY AS TRUSTEE OF THE WILSON FAMILY TRUST'S OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER DISCOVERY RESPONSESoN Oa PF WN time. Mr. Martin declined and indicated that he would file the motion to compel and would simply take it off calendar if compliant responses were subsequently provided. (Clifford Decl., Ex. J.) On October 27, 2015, defense counsel served supplemental unverified responses to Plaintiff's discovery, which are attached to the declaration of Joyce Clifford as Exhibit K. Il. ARGUMENT A. Legal Standard A party may move to compel a further discovery response on the basis that the response provided is evasive or incomplete. Code Civ. Proc. § 2030.300(a). To prevail ona motion to compel, the moving party must demonstrate that a reasonable and good faith attempt at an informal resolution of each issue presented by the motion was made before the motion was filed. Code Civ. Proc. § 2016.040. B. Defendant has Provided Supplemental Responses and Requests an Additional 30 Days to Obtain Verifications The present motion is a result of Plaintiffs counsel's unwillingness to provide an extension of Defendant's deadline to serve responses to discovery. On September 15, 2015, Ms. Clifford wrote an e-mail to Mr. Martin indicating that she had been informed Ms. Wilson's health had taken a turn for the worse and was seeking more information, but that Ms. Wilson would be unable to respond to discovery at this time. Mr. Martin responded that he expected all discovery obligations to be met. Subsequently, Ms. Clifford learned and conveyed to Mr. Martin that Ms. Wilson was recovering from a recent hip injury due to a fall and was scheduled for surgery to repair a detached retina in the first week of October. Ms. Clifford consequently asked for an extension of thirty days to provide responses. Mr. Martin would not provide the extension. Or rather, he indicated that he would provide the extension, but only if Ms. Wilson's counsel agreed to accept service on behalf of two named Defendants she does not represent. (Clifford Decl., Ex. F.) Discovery extensions are common and typically provided as a matter of courtesy. For example, Ms. Clifford previously granted Plaintiff multiple extensions to provide OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER DISCOVERY RESPONSESdiscovery responses totaling approximately two months. (Clifford Decl., {] 3.) Plaintiff's unwillingness to provide any extension under the circumstances was not reasonable, and left defense counsel no choice to but to preserve Ms. Wilson's objections to the discovery and provide supplemental responses at a later date. Plaintiff argues that Defendant should have filed an affirmative motion seeking to expand Defendant's deadline to respond to discovery, however there was not sufficient time to have such motion heard before Ms. Wilson's responses came due. By the time that defense counsel learned Ms. Wilson would be unable to review and verify discovery responses, the deadline to provide responses was less than two weeks away. A motion seeking relief must be filed a served at least 16 court days prior to the scheduled hearing. Code Civ. Proc. § 1005. Any motion to expand the time in which to respond would not have been heard until after Ms. Wilson's deadline to provide responses, at which point her objections to discovery would have been waived. Code Civ. Proc. § 2030.290(a)("The party to whom the interrogatories are directed waives. ..any objection to the interrogatories, including one based on privilege or on the protection for work product..."). Defendant has acted transparently and in good faith at all times, keeping Plaintiff apprised of the situation and seeking an extension so that full and complete substantive responses could be provided rather than just objections. Further, defense counsel has prepared supplemental responses based on information gathered from sources other than Ms. Wilson. Those responses have been provided to Plaintiff and are attached to declaration of Joyce Clifford filed herewith. Defendant requests an additional thirty days to provide verifications for the responses. Ms. Wilson had eye surgery just three weeks ago and is still recovering. She is only reachable through family caring for her and does not have access to e-mail or a fax machine. Defense counsel has sent the supplemental discovery requests and responses to Ms. Wilson by U.S. mail. Once received they will need to be read to her by a family member. Assuming she has no corrections and is able to sign the verifications, those will be returned by mail. 6 DEFENDANT CARRIE WILSON IN HER CAPACITY AS TRUSTEE OF THE WILSON FAMILY TRUST'S OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER DISCOVERY RESPONSESThe time-pressure identified by Plaintiff is artificial and can be easily addressed. The case is not yet at issue. No trial date has been set. Plaintiff argues that discovery is needed to prepare his opposition to Defendant's Motion for Summary Adjudication, due on November 16, 2015, however Defendant is perfectly willing to continue the hearing date on the two outstanding Motions for Summary Adjudication to give Plaintiff more time to respond. Indeed, the only reason that the parties' respective Motions for Summary Adjudication are set for hearing so soon is because Plaintiff insisted on having the Motions filed and heard as soon as possible—Defendant had proposed hearing dates in January. Plaintiff's argument that Ms. Wilson evaded service of process for a year is completely without merit. Declining to accept service through counsel is not an evasion of service. Plaintiff's argument that Ms. Wilson's health problems call for expedited proceedings also fails. As Plaintiff pointed out, Ms. Wilson is being sued only in her capacity as Trustee of the Wilson Family Trust. Further, her declining health is the reason that more time is needed to provide verified discovery responses, it does not support the position that she should be given less time to review and verify the responses. Finally, Plaintiff argues that the present discovery is needed to locate the whereabouts of Defendants SHAWN and ERIKA MARKHAM, however counsel understands that Ms. Wilson does not have knowledge of either's location. Cc. Imposition of Sanctions in this Instance Would be Unjust Discovery sanctions may be imposed only on a finding that the actions of the one subject to the sanction were not substantially justified, and that imposition of the sanction would not be unjust under the circumstances. Code Civ. Proc. § 2030.300. Here, Defendant is an eighty-four year old woman suffering from multiple health ongoing health problems, including osteoarthritis and degenerative disc disease. She suffered a fall and hip injury, had cataracts surgery, and then had surgery to repair a detached retina. As a consequence of these problems, Ms. Wilson was unable to provide timely discovery responses. Defense counsel diligently notified Plaintiff's counsel of Ms. Wilson's inability to provide timely substantive responses due to her health and sought an extension prior to the deadline to provide responses. Plaintiff would not grant an extension. Accordingly, counsel served 7 DEFENDANT CARRIE WILSON IN HER CAPACITY AS TRUSTEE OF THE WILSON FAMILY TRUST'S OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER DISCOVERY RESPONSESoOo On OO A F&F Ww HY = Nn NNN NY NY NHN NY KY |S BB BoB Ba a a a a wn aon OW A FPF WHKH SFP TFT HAN DH BF Ww DY = BD objections to preserve Ms. Wilson's rights and worked to prepare substantive supplemental responses. Counsel has gathered as much information as possible from other sources and provided supplemental responses. Contrary to Plaintiffs assertion, there has been no gamesmanship involved. Defendant has acted in good faith at all times and her actions are substantially justified. IV. CONCLUSION For the reasons discussed herein, Defendant respectfully requests that the present motion be denied DATED: October ¢ 7 , 2015 MURCHISON & CUMMING, LLP Matthew K.Wiginski SD Joyce E. Clifford Katelyn M. Knight Attorneys for Defendants ANGELO WILSON and CARRIE WILSON in her capacity as Trustee of the WILSON FAMILY TRUST oe 8 ae DEFENDANT CARRIE WILSON IN HER CAPACITY AS TRUSTEE OF THE WILSON FAMILY ERUST'S OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER DISCOVERY RESPONSPROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO At the time of service, | was over 18 years of age and not a party to this action. | am employed in the County of San Francisco, State of California. My business address is 275 Battery Street, Suite 550, San Francisco, California 94111. On October 27, 2015, | served true copies of the following document(s) described as DEFENDANT CARRIE WILSON IN HER CAPACITY AS TRUSTEE OF THE WILSON FAMILY TRUST'S OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER DISCOVERY RESPONSES on the interested parties in this action as follows: SEE ATTACHED LIST BY ELECTRONIC SERVICE VIA FILE & SERVEXPRESS: | electronically served the document(s) described above via File & ServeXpress, on the recipients designated on the Transaction Receipt located on the File & ServeXpress website (https:secure. fileandservexpress.com) pursuant to the Court Order establishing the case website and authorizing service of documents. | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on October 27, 2015, at San Francisco, California. \ “DEFENDANT CARRIE WILSON IN HER CAPACITY AS TRUSTEE O OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHE F THE WILSON FAMILY TRUST'S — R DISCOVERY RESPONSES