Motion for Summary Adjudication in PHILLIP GARCIA VS. CARRIE WILSON, IN HER CAPACITCY AS TRUSTEE OF THE et al| Trellis.Law

On April 10, 2014 a Motion,Ex Parte was filed involving a dispute between Garcia, Phillip, and Carrie Wilson, In Her Capacitcy As Trustee Of The, Does 1 To 20, Markham, Erika, Markham, Shaun, Markham, Shawn, Wilson, Angelo, Wilson, Carrie, for civil in the District Court of San Francisco County.

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LAW OFFICES OF BENNY MARTIN
Benjamin Martin (SBN 257452)
195 41st Street ELECTRONICALLY
P.O. Box 11120
Oakland, CA 94611 FILED
Phone: (510_227-4406 Superior Court of California,
County of San Francisco
Email: knowyourightsinsf@ gmail.com
10/08/2015
Clerk of the Court
Attorneys for Plaintiff Phil Garcia BY:ROMY RISK
Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
UNLIMITED JURISDICTION

PHILLIP GARCIA, an individual, ) Case No. CGC-14-538560
10
Plaintiff, } PLAINTIFF’S PHILLIP GARCIA‘S
11 ) SEPARATE STATEMENT OF
vs. ) UNDISPUTED MATERIAL FACT IN
12 ) SUPPORT OF MOTION TO
CARRIE WILSON, in her capacity as trustee of SUMMARILY ADJUDICATE HIS
13 THE WILSON FAMILY TRUST, SHAUN )J SEVENTH CAUSE OF ACTION
MARKHAM, an individual, ERIKA
14
MARKHAM, an individual, and ANGELO } Date: December 7, 2015
WILSON, an individual, and DOES 1-20. Time: 9:30 a.m.
) Dept: 501
16
)
17
Defendants. )
)
)
18

20
Pursuant to CRC Rule 3.1345, and CCP § 437c, Plaintiff Garcia submits the following

Separate Statement of Disputed Material Facts in Support of Motion to Summarily Adjudicate
22 His Seventh Cause of Action:
23

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1
ne PLAINTIFF’S PHILLIP GARCIA‘S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACT IN
UPPORT OF MOTION TO SUMMARILY ADJUDICATE HIS SEVENTH CAUSE OF ACTION
UNDISPUTED MATERIAL FACTS COMMON TO ALL ISSUES

MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE TO
MATERIAL FACTS AND SUPPORTING SUPPORTING EVIDENCE
EVIDENCE
1 On May 31, 1994, Carrie and Frankie
Wilson in their individual capacities
transferred 1665 Hayes Street, San
Francisco, CA (“Subject Premises”) to
their themselves in their capacities as
trustees of the Wilson Family Trust
(“Trust”).
The Subject Prmeises was sold in or about
10
May 2014.
11 Certified Copy, Individual Grant Deed, San
Francisco Recorder’s Office, attached as
12 Exhibit B the First Amended Complaint
13 (“FAC”), Request for Judicial Notice in
Support of Plaintiff’s Motion to Summarily
14 Adjudicate His Seventh Cause of Action
(“Request for Judicial Notice”), 96, Exhibit E;
Vol. I of the Deposition fo Angelo Wilson,
August 7, 2014, (“Wilson Depo. Vol. I”),
16
attached as Exhibit E, Declaration of
17 Plaintiff’s Counsel Benny Martin in Support
of Plaintiff's Motion to Summarily
18 Adjudication His Seventh cause of Action,
(“Martin Decl.) 910, 85:19-86:4; 92:1-5.
19 2 Defendant Angelo Wilson was the
property manager for the Subject Premises
20
during the life of Mr. Garcia’s tenancy,
21 and until the Subject Prmeises was sold in
or about May 2014.
22
Exhibit E, Martin Decl. 910, Wilson Depo.
23 Vol. 1, 20:3-7; 22:4-5; 41:8-42:13; 69:21-24;
92:1-3; 92:25-93:2; 97:21-98:8
24

27
2
ne PLAINTIFF’S PHILLIP GARCIA‘S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACT IN
SUPPORT OF MOTION TO SUMMARILY ADJUDICATE HIS SEVENTH CAUSE OF ACTION
MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE TO
MATERIAL FACTS AND SUPPORTING SUPPORTING EVIDENCE
EVIDENCE
3 On behalf of the Trustees, Defendant
Angelo Wilson entered into a written lease
agreement as “authorized agent” on July
30, 2010.
Exhibit A to Request for Judicial Notice, $6,
Exhibit E, (Bates No. Wilson 19, lease
signature page); Exhibit E, Martin Decl. §10,
Wilson Depo. Vol. I, 41:4-43:12.

4. On May 3, 2013, the Defendant Angelo
Wilson filed an unlawful detainer action
against Mr. Garcia, Case No. CUD-13-
645240 in San Francisco Superior Court.
10
Defendant Angelo Wilson verified under
11 the penalty of perjury that his interest in
the Subject Premises was as “Property
12 Manager.”
13 Exhibit A, Request for Judicial Notice, 1, at
94.
14
5 After a seven (7) day bench trial,
Judgment was entered in favor of Mr.
Garcia on November 21, 2013, Mr. Garcia
16 filed his cost bill on November 25, 2013,
upon which $7,210.95 was awarded, and
17
pursuant to the lease’s attorney’s fee
18 provision, on February 14, 2014,
attorney’s fees in the amount of $42,500
19 were awarded against Defendant Angelo
Wilson.
20
Exhibits B-D, Request for Judicial Notice,
21 993-5.
6. On August 20, 2014, the San Francisco
22 Sheriff's Office created a Memorandum of
23 Garnishee reflecting that Defendant
Angelo Wilson’s bank account was levied
24 for $2,537.25 on the $49,710.95 judgment,
leaving $47,173.70 unsatisfied.
25
Exhibit B, Martin Decl. 93.
26

27
3
ne PLAINTIFF’S PHILLIP GARCIA‘S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACT IN
SUPPORT OF MOTION TO SUMMARILY ADJUDICATE HIS SEVENTH CAUSE OF ACTION
MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE TO
MATERIAL FACTS AND SUPPORTING SUPPORTING EVIDENCE
EVIDENCE
7
On January 30, 2015, Mr. Garcia’s
counsel filed on his behalf a
Memorandum of Costs After Judgment,
and Declaration of Accrued Interest.
$7,620.00 in post-judgment costs/fees
were claimed.
Exhibit F, Request for Judicial Notice, {7

8 Defendant Angelo Wilson’s counsel filed
a motion to tax costs on the claimed
$7,620.00 in costs/fees.
On March 27, 2015, the Court granted in
10 part the motion to tax costs, reduceding
the post-judgment costs/fees claimed to
11 $3,245.00.

12 Exhibit G, Request for Judicial Notice,
98.
9. Interest on the $49,710.95 judgment
13
accrued at $13.62/day
14 Exhibit C, Martin Decl. $4; C.C_P. 8§
685.010; 685.020.
10. From February 15, 2014, through August
16 19, 2014 (the day before Defendant
Angelo Wilson bank account was
17
levied for $2,537.25) is 186 days, 10%
18 interest on the 49,710,95 judgment at
$13 .62/day is $2,533.22.
19
Martin Decl. 95; C.C.P. $§ 685.010; 685.020.
20 11. Interest is calculated only on the
unsatisfied portion of the judgment, and
21
compound interest is prohibited. Thus,
22 interest accrued from August 21, 2014,
on the unsatisfied portion of the judgment
23 in the amount of $47,173.70.

24 Martin Decl. $6; C.C.P. $§ 685.030(c).
25

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4
ne PLAINTIFF’S PHILLIP GARCIA‘S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACT IN
SUPPORT OF MOTION TO SUMMARILY ADJUDICATE HIS SEVENTH CAUSE OF ACTION
MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE TO
MATERIAL FACTS AND SUPPORTING SUPPORTING EVIDENCE
EVIDENCE
12. From August 21, 2014 through December
7, 2015 the hearing date on this Motion is
473 days, 10% interest on the $47,173.70
unsatisfied portion judgment at
$12.92/day equals $6,113.19.
Martin Decl. 97; C.C.P. $§ 685.010; 685.020
13. As of the hearing date on this Motion,
December 7, 2015, Angelo Wilson’s debt
to Mr. Garcia in connection to the
unlawful detainer action is exactly
$59,065.11.

10 Martin Decl. 98.
14. Aside from the fees and costs incurred in
11
bringing his Seventh Cause of Action for
12 enforcement of debt, as of the hearing
date in this Motion, December 7, 2015,
13 The Wilson Family Trust’s debt to Mr.
Garcia in connection to the unlawful
14 detainer action is exactly $59,065.11.

17 ISSUE NO. 1: PLAINTIFF IS ENTITLED TO ADJUDICATION OF HIS SEVENTH
CAUSE OF ACTION BECAUSE THE WILSON FAMILY TRUST
18 MUST INDEMNIFY ANGELO WILSON AS ITS EMPLOYEE FOR
19 DEBTS INCURRED IN THE COURSE OF EMPLOYMENT.

20
MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE TO
21 MATERIAL FACTS AND SUPPORTING SUPPORTING EVIDENCE
EVIDENCE
22 15. Trustee Carrie Wilson directed Defendant
Angelo Wilson to file an unlawful
23 detainer action against Plaintiff Garcia.
24 Exhibit E, Martin Decl. §10, Wilson Depo.
Vol. I, 97:14-98:10.
25

27
57
ne PLAINTIFF’S PHILLIP GARCIA‘S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACT IN
UPPORT OF MOTION TO SUMMARILY ADJUDICATE HIS SEVENTH CAUSE OF ACTION
MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE TO
MATERIAL FACTS AND SUPPORTING SUPPORTING EVIDENCE
EVIDENCE
16. In the unlawful detainer action, Mr. Garcia
propounded the interrogatory: “At the
time of the INCIDENT were you acting as
an agent or employee of any PERSON?”

Defendant Angelo Wilson verified under
the penalty of perjury the response “Yes, I
manage the property for Carrie Wilson”
Exhibit D, Martin Decl. $9.
17. According to Defendant Angelo Wilson,
he was instructed to initiate eviction
proceedings against Mr. Garcia: “If
10 somebody says, ‘This is what’s going to
happen,’ this is what happens. I'm just a
11 lieutenant,” and “If I'm asked to do it, I do
it. I did it.”
12
Exhibit E, Martin Decl. §10, Wilson Depo.
13 Vol.1, 94:17-98:11
14 18. With regard to initiating eviction
proceedings. Defendant Angelo Wilson
“went along with it, though, because I was
asked to.”
16

17 Exhibit E, Martin Decl. $10, Wilson Depo.
Vol.I , 94:17-20.
18
19. Over the course of months, Trustee Carrie
19 Wilson directed Defendant Angelo Wilson
to initiate eviction proceedings against
20 Mr. Garcia.

21 Exhibit E, Martin Decl. §10, Wilson Depo.
Vol. I, 98:14-99:7
22

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6
ne PLAINTIFF’S PHILLIP GARCIA‘S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACT IN
SUPPORT OF MOTION TO SUMMARILY ADJUDICATE HIS SEVENTH CAUSE OF ACTION
MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE TO
MATERIAL FACTS AND SUPPORTING SUPPORTING EVIDENCE
EVIDENCE
20. There are two applicable presumptions of
employee status set forth in the California
Labor Code:

No. 1: Labor Code § 3357 presumes the
existence of an employee-employer
relationship.
Labor Code § 3357

21. Presumption of employee status No. 2:
Persons in positons for which a license is
required are presumed to be employees.

10 Cal.Labor Code § 2750.5
22. Angelo Wilson was required to have a
11
licnese as property manager of the Subject
12 Prmeises in order to enter into the written
lease with Philip Garcia on behalf of the
13 Trust, and in order to collect rents from
Mr. Garcia.
14
Cal.Bus. & Prof.Code § 10131(b); Miller and
Starr California Real Estate, 2 Cal. Real Est.
§ 4:10 (3d ed.); MKB Management, Inc. v.
16 Melikian (2010) 184 Cal.App.4th 79 (“A
broker’s license was required for offering for
17
lease and leasing apartment units and
18 collecting rents.””)
23. Angelo Wilson has never held a real estate
19
license in the State of California.
20 Exhibit F, Martin Decl. 911;

27
7
ne PLAINTIFF’S PHILLIP GARCIA‘S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACT IN
SUPPORT OF MOTION TO SUMMARILY ADJUDICATE HIS SEVENTH CAUSE OF ACTION
MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE TO
MATERIAL FACTS AND SUPPORTING SUPPORTING EVIDENCE
EVIDENCE
23. Paragraph 2 of the lease calls for Mr.
Garcia to pay rent to the Trustee, and to
deliver his rent checks for collection to
Angelo Wilson at 1673 Hayes Street, San
Francisco, CA.

Exhibit E, Martin Decl. §10, Wilson Depo.
Vol. I, 68:16-69:17; Declaration of Phillip
Garcia in Support §2; Exhibit A to Request
for Judicial Notice, 96, at J2
24. The Trustee reimbursed for incurred
10 expenditures in carrying out his property
management duties, and receives
11 compensation from the Trust in the form
of a discount in his monthly rent in the
12 amount of $1,500.
13 Exhibit E, Martin Decl. §10, Wilson Depo.
Vol. I, 24:4-12.
14

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8
ne PLAINTIFF’S PHILLIP GARCIA‘S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACT IN
SUPPORT OF MOTION TO SUMMARILY ADJUDICATE HIS SEVENTH CAUSE OF ACTION
ISSUE NO. 2: PLAINTIFF IS ENTITLED TO ADJUDICATION OF HIS SEVENTH
CAUSE OF ACTION BECAUSE ANGELO WILSON WAS THE
WILSON FAMILY TRUST’S AGENT WHEN ANGELO WILSON
INCURRED THE DEBT TO PHILLIP GARCIA.

MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE TO
MATERIAL FACTS AND SUPPORTING SUPPORTING EVIDENCE
EVIDENCE
25. The Trustee directed Angelo Wilson to
initiate eviciton proceedings against Mr.
Garcia.
UME Nos. 15-19, above.

26. Angelo Wilson was the agent of his
principle the Wilson Family Trust, and
was acting within the course and scope
10 thereof when he initiated the eviciton
11 proceedings against Mr. Garcia.
Cal.Civ.Code §§ 2295, 2304, 2307, 2330,
12 2338, 2339; Cal. Prac. Guide Real Prop.
13
Trans. Ch. 10-B, §10:67: “the principal
(owner) is almost always liable to third
14 persons for the misfeasance of its agent (the
property manager)”; Exhibit E, Martin Decl.
§10, Wilson Depo. Vol. I, 20:3-7; 22:4-5;
41:8-42:13; 69:21-24; 92:25-93:2; 97:21-98:8
16

17
ISSUE NO. 3: PLAINTIFF IS ENTITLED TO ADJUDICATION OF HIS SEVENTH
CAUSE OF ACTION BECAUSE THE WILSON FAMILY TRUST IS
19 THE PARTY WITH WHOM PHILLIP GARCIA CONTRACTED
UNDER WHICH FEES AND COSTS WERE AWARDED.
20
MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE TO
MATERIAL FACTS AND SUPPORTING SUPPORTING EVIDENCE
22 EVIDENCE
27. Angelo Wilson executed the lease over the
23 words, “signature of owner or authorized
agent.”
24
Exhibit A to Request for Judicial Notice, §6,
25 Exhibit E, (Bates No. Wilson 19, lease
signature page).
26

27
9
ne PLAINTIFF’S PHILLIP GARCIA‘S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACT IN
UPPORT OF MOTION TO SUMMARILY ADJUDICATE HIS SEVENTH CAUSE OF ACTION
MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE TO
MATERIAL FACTS AND SUPPORTING SUPPORTING EVIDENCE
EVIDENCE
28. When the lease was executed, the owner
was the Trust, and the Trustees at that
time were Frankie Wilson and Carrie
Wilson.
Exhibit E, Request for Judicial Notice, §6, at
Ex. B, (Bates Wilson 19, signature page)
29. Trustees may contract on behalf of trust
without naming or identifying the trust in
the contract.
C.CP. § 369(a)(2).
30. Paragraph 22 of the lease provides:
10
“In any action or proceeding involving a
11
dispute between Tenant and Owner arising
12 out of the execution of this Agreement,
whether for tort or for breach of contract,
13 and whether or not brought to tiral or final
judgment, the prevailing party will be
14 entitled to receive from the other party a
reasonable attorney fee, expert witness
fee, and costs to be determined by the
16 court or arbirator(s).”

17 Exhibit E, Request for Judicial Notice,96, at
Ex. B,at 922.
18

27
10
ne PLAINTIFF’S PHILLIP GARCIA‘S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACT IN
SUPPORT OF MOTION TO SUMMARILY ADJUDICATE HIS SEVENTH CAUSE OF ACTION
31. Pursuant to paragraph 22 of the lease,
Phillip Garcia was awarded attorney’s fees
and costs as prevailing party in the
underlying unlawful detainer action.
Thus, the debt Angelo Wilson incurred
arises exclusively from the lease between
Phillip Garica and Defendant Trust.
Exhibits B-D, Request for Judicial Notice,
993-5.
32. Defendant Angelo Wilson entered into the
lease with Mr. Garcia on behalf of the
Trust, which calls for Mr. Garcia to make
the Trustee the payee, but to deliver the
rent checks to Defendant Angelo Wilson
at 1673 Hayes Street, San Francisco, CA.
10

11
UME No. 3; Vol. I of the Deposition fo
12 Angelo Wilson, August 7, 2014, (“Wilson
Depo. Vol. I”), 68:16-96:17; Declaration of
13 Phillip Garcia in Support §2: Lease, §2

ISSUE NO. 4: THE WILSON FAMILY TRUST IS COLLATERALLY ESTOPPED
FROM OPPOSING THE ATTORNEY’S FEE AND COST AWARD
BECAUSE IT WAS FULLY LITIGATED IN THE UNDERLYING
17
UNLAWFUL DETAINER ACTION.
18

19
MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE TO
20 MATERIAL FACTS AND SUPPORTING SUPPORTING EVIDENCE
EVIDENCE
21 33. The issue to be adjudicated here is
identical to the issue decided in the
22 unlawful detainer action: who was the
23 prevailing party and the amount of
attorney’s fees and costs reasonably
24 incurred by the prevailing party in
connection to the unlawful detainer action.
25

27
11
ne PLAINTIFF’S PHILLIP GARCIA‘S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACT IN
SUPPORT OF MOTION TO SUMMARILY ADJUDICATE HIS SEVENTH CAUSE OF ACTION
MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE TO
MATERIAL FACTS AND SUPPORTING SUPPORTING EVIDENCE
EVIDENCE
34. The issue was actually litigated: there was
a full adversarial trial lasting seven (7) full
court days, with approximately 40
witnesses, both percipient and expert, with
more than one hundred (100) exhibits
offered into evidence at trial.

After prevailing at trial, Mr. Garcia moved
for a determination of prevailing party,
and moved for attorney’s fees. Counsel
for Angelo Wilson filed an opposition,
and appeared at the February 14, 2014
hearing on the motion.
10
Request for Judicial Notice, §2, Exhibit Lists,
11 and Minute Orders on Exhibits and
Witnesses.
12
35. The decision in the unlawful detainer
13 action was final and was on the merits.
14 36. The Trust in privity with Angelo Wilson
to the prior proceeding.
37 Angelo Wilson was represented by
16 experienced counsel in all pre-trial
matters, at trial, in post-trial fees and costs
17 motions in 2014, and in post-trial motion
to tax costs in 2015.
18
Exhibits A-D, Request for Judicial Notice,
19 992-5.
20 38. The lawyer prosecuting the unlawful
detainer action used the existence of the
21 attorney’s fee provision to pressure Mr.
Garcia to vacate his home prior to trial.
22

23 Martin Decl. §2, Ex. A

24 39. The Trust is collaterally estopped from
opposing the attorney’s fees and costs
25 awarded to Mr. Garcia in the underlying
unlawful detainer action.
26

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12
ne PLAINTIFF’S PHILLIP GARCIA‘S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACT IN
SUPPORT OF MOTION TO SUMMARILY ADJUDICATE HIS SEVENTH CAUSE OF ACTION
Dated: October 7, 2015
LAW OFFICES OF BENNY MARTIN

BENNY MARTIN
Attorney for Plaintiff Phillil Garcia
10

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13
ne PLAINTIFF’S PHILLIP GARCIA‘S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACT IN
SUPPORT OF MOTION TO SUMMARILY ADJUDICATE HIS SEVENTH CAUSE OF ACTION

Case Info

Judge

Charlene P. Kiesselbach Track Judge’s New Case

Case No.

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Document Filed Date

October 08, 2015

Case Filing Date

April 10, 2014

County

Parties

CARRIE WILSON, IN HER CAPACITCY AS TRUSTEE OF THE Defendant
CLIFFORD, JOYCE E Attorney for the Defendant
DE LA PENA, GREGORY RAMON Attorney for the Defendant
DELAPENA, GREGORY RAMON Attorney for the Defendant
DOES 1 TO 20 Defendant
GARCIA, PHILLIP Plaintiff
GOODMAN, JOSHUA SETH Attorney for the Defendant
MARKHAM, ERIKA Defendant
MARKHAM, SHAUN Defendant
MARKHAM, SHAWN Defendant
MARTIN, BENJAMIN Attorney for the Plaintiff
MEJIA, MATTHEW Attorney for the Defendant
WILSON, ANGELO Defendant
WILSON, CARRIE Defendant
WINSINKI, MATTHEW K Attorney for the Defendant
Katelyn Knight Attorneys for Defendants
Lorena Matei Attorneys for Defendants
Michael Raifsnider Attorney
Dana Tom Attorneys for Defendants
Scott Loeding Attorneys for Plaintiffs
Duy Thai Attorneys for Plaintiffs
David Smyth Attorneys for Defendants
Bennie Martinez Attorney
Thomas Burns Attorney
Steven MacDonald Attorney
Olivia Dopler Attorneys for Plaintiffs
Russell Stanaland Attorneys for Plaintiffs
Stuart Harrington Attorneys for Plaintiffs

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Motion,Ex Parte: PHILLIP GARCIA VS. CARRIE WILSON, IN HER CAPACITCY AS TRUSTEE OF THE et al

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