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

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LAW OFFICES OF BENNY MARTIN
Benjamin Martin (SBN 257452)

1665 Hayes Street,

San Francisco CA 94117 FEES TRONICALEY
Phone: (510) 227-4406 FILED

-_ oa el . Superior Court of California,
Email: knowyourightsinsf@ gmail.com County of San Francisco

08/07/2017

Attorneys for Plaintiff Phillip Garcia Clerk of the Court
BY:RONNIE OTERO

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

PHILLIP GARCIA, an individual, Case No. CGC-14-538560

PLAINTIFF PHILLIP GARCIA’S
OPPOSITION TO DEFENDANTS’
MOTION IN LIMINE NO. 14: TO
EXCLUDE ALL EVIDENCE OF

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Plaintiff, }
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} DEFENDANTS?’ ACTIONS PRIOR TO
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vs.

ANGELO WILSON, an individual, et. al. STATUTE OF LIMITATIONS

Defendants.

While providing no authority, Defendant Markham’s motion in limine seeks to exclude all
evidence of matters occurring outside the one-year statute of limitations under Evid. Code § 352.

Incredibly, in this wrongful eviction action, Defendant seeks to exclude evidence as “irrelevant” on

all matters establishing the “why,” “how,” “when,” and “who” as occurring before the eviction notice

underlying the wrongful eviction was served on Mr. Garcia.’ This includes prior eviction notices
referenced in the relevant eviction notice, letters and e-mails from the defendants, the lease
agreement, as well as defendants’ conduct—all of which evince defendants’ plan to wrongfully evict

Mr. Garcia and to coerce Mr. Garcia into abandon his rent-controlled apartment.

' The limitations period on a wrongful eviction action under section 37.9 of the San Francisco
Administrative Code begins to run upon service of the eviction notice. Menefee v. Ostawari (1991)
228 Cal. App. 3d 239, 245-246. The eviction notice authored by attorney Raifsnider was served on
April 18, 2013. Plaintiff's wrongful eviction action was timely filed on April 10, 2014—8 days
before the statutory period ran.
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PLAINTIFF PHILLIP GARCIA’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO. 11: TO PRECLUDE

TESTIMONY OF EXPERT BRIAN GREYnD

Primarily, all statutes of limitations are tolled during the time when a defendant is outside the
State of California. C.C.P. §357. Carrie Wilson was always outside the state according to the
defendants, so the statute was constantly tolled for Defendant Trust and Carrie Wilson. Mr. Markham
spent significant time going back and forth from Georgia to California during the statutory period.
Defendant’s motion thus appears to be directed at Defendant Angelo Wilson only.

Defendant’s motion in limine is baseless, as demonstrated by the following example. Conside
in the abstract the tortfeasor who completely formulates a plan to commit a tort one (1) year and one
(1) day before committing the tort, which has a one-year statute of limitations. Defendant would
contend evidence of the tortfeasor’s plan is irrelevant and inadmissible as entirely occurring outside
the limitation period. If such were the law on statutes of limitation, the sophisticated tortfeasor would
simply finish planning the tort one (1) year and one (1) day before committing the tort, and evidence
of the plan would become inadmissible. Also consider the tortfeasor who repeats the tort one (1) year
and one (1) day for ten (10) consecutive years. Defendant’s motion in /imine contends evidence of the|
prior torts is irrelevant to the issue of recidivism for purposes of assessing punitive damages.

The law is predictably quite the contrary.

Evidence is not made irrelevant or inadmissible because it occurred outside the statute of
limitations period. This is because the scope of relevant evidence is different than accrual of a cause
of action from which the statute of limitations runs. Livett v. F. C. Financial Associates, Ltd. (1981)
124 Cal.App.3d 413, 421. In fact, matters occurring outside the statutory period are very often.
relevant to unlawful conduct occurring inside the statutory period.

1. For modus operendi, whereby the tortfeasor manifests intent to perform the bad act before doing
the act from which the relevant statute of limitations runs. Lyons v. England (9th Cir. 2002) 307
F.3d 1092, 1112 (evidence of matters occurring outside statutory period admissible to show intent|
as to timely unlawful act). Plaintiffs theory of liability on the wrongful eviction is that the
defendant-landlords served eviction notices on for all their rent-controlled tenants — on the same
day — as part of their plan to sell the property at a significantly higher dollar amount. Plaintiff's
complaint specifically alleged this modus operendi. (Second Amended Complaint, §17.) So long
as the cause of action is brought within the accrual time period prescribed by the statute of
limitations, the action is proper and all relevant evidence of defendants’ nefarious plan is
admissible. Evid. Code § 351 (declaring that all relevant evidence is admissible.) [See Roman

Catholic Archbishop of Los Angeles v. Superior Court (2005) 131 Cal.App.4th 417, 458

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PLAINTIFF PHILLIP GARCIA’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO. 11: TO PRECLUDE
TESTIMONY OF EXPERT BRIAN GREYnD

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(“admissible ‘other crimes’ evidence is not restricted by the statute of limitations[]); and People v|
Ewoldt (1994) 7 Cal.4th 380, 401-402 (evidence of a defendant’s misconduct outside the statute
of limitations is relevant where misconduct occurring inside the statute of limitations is
sufficiently similar to support the inference that they are manifestations of a common design or
plan under Evidence Code § 1101(b); United Air Lines v. Evans, 431 U.S. 553, 558 (evidence of
matters outside the statutory period “may constitute relevant background evidence in a

proceeding in which the status of a current practice is at issue.”)

. For punitive damages purposes. According to the California Supreme Court, evidence that the

defendants are repeat offenders is relevant to establishing the degree of reprehensibility of the
defendants’ conduct in the context of Plaintiff's punitive damages claim. Johnson v. Ford Motor
Co., (2005) 35 Cal. 4th 1191, 1202. Evidence of past conduct tends to prove that the tortfeasor
was full aware that similar conduct would cause injury, and acted either with the intent to cause
injury or with a willful and conscious disregard of the injury person’s rights. Weeks v. Baker &
McKenzie (1998) 63 Cal.App.4th 1128, 1163.) In this case, Plaintiff seeks punitive damages
against each defendant.

To rebut defendants’ affirmative statute of limitations defense. Fulton v. Webb (1940) 39
Cal.App.2d 509, 511; 344 Cal. Jur. Fraud and Deceit § 94.

To “show background, to establish a foundation for other evidence, and... would likely be
admissible to show Plaintiff's vulnerable state of mind to establish the extent of general
damages.” Joseph v. J.J. Mac Intyre Companies, L.L.C., 281 F.Supp.2d 1156, 1162 (N.D. Cal.
2003).

Lege

PLAINTIFF PHILLIP GARCIA’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO. 11: TO PRECLUDE

TESTIMONY OF EXPERT BRIAN GREYnD

Mr. Garcia needed only to bring his wrongful eviction and harassment causes of action within
the one-year statutory period. CCP § 340. He did that—nothing more was required for statutory

limitations purposes.
If. CONCLUSION.
For the reasons above-stated, Plaintiff respectfully requests that this Court deny Defendant

Markham’s Motion in Limine No. 14.

DATE: August 4, 2017 LAW OFFICES OF BENNY MARTIN

Benny Martin, Esq.
Attorney for Plaintiff

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PLAINTIFF PHILLIP GARCIA’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO. 11: TO PRECLUDE
TESTIMONY OF EXPERT BRIAN GREY