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LAW OFFICES OF BENNY MARTIN FILED
Benjamin Martin (SBN 257452) Superior Court of California,
647 Santa Clara Ave. County of San Francisco
Venice, CA 90291 06/23/2017
Phone: (510) 227-4406 Clerk ot ne court
Email: knowyourightsinsf@ gmail.com . Deputy Clerk
Attorneys for Plaintiff Phillip Garcia
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
UNLIMITED JURISDICTION
PHILLIP GARCIA, an individual, : Case No, CGC-14-538560
Plaintiff, } OPPOSITION OF PLAINTIFF PHILLIP
) GARCIA TO DEFENDANTS’ MOTION
FOR A FURTHER TRIAL
eee } CONTINUANCE
CARRIE WILSON, in her individual capacity, :
and in her capacity as trustee of THE WILSON )
FAMILY TRUST, et. al., and DOES 1-20. ) Date: June 26, 2017
: Time: 9:30 a.m.
) Dept.: 206
Defendants. )
) Trial Date: June 26, 2017
) Original Complaint Filed: April 9, 2014
)
INTRODUCTION
Plaintiff Phillip Garcia (“Plaintiff”) vigorously opposes this instant motion, which constitutes
defendants 6" request to delay trial in this matter in the last four (4) months. Defendants last trial
continuance request — premised on exactly the same purported conflict of interest - was granted by
Presiding Judge Terri L. Jackson in an Order entered on April 12, 2017, on the condition: “if any
other additional defense counsel is brought into this case, counsel shall be ready to proceed with
trial on 06/26/17.” This motion violates Presiding Judge Jackson’s April 12, 2017, Order.
After Judge Jackson’s April 12,2017, Order, Plaintiffs counsel requested on three (3)
occasions from May 5 through May 15, an update on the appointing new counsel to address
OPPOSITION OF PLAINTIFF PHILLIP GARCIA TO DEFENDANTS’ MOTION FOR A FURTHER TRIAL
CONTINUANCE
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defendants’ claimed conflict. After the third attempt, defense counsel refused to respond on the basis
of attorney-client privilege.
One of the new counsel brought into the case — Mr. Gregory de la Pena representing
defendant Shawn Markham — requested another trial continuance via email on May 17, 2017, on the
basis that Mr. de la Pena had a scheduling conflict with another trial in Sonoma County. Prospective
new counsel for Carrie Wilson, Mr. Joshua Goodman, claims a trial continuance to at least August 7,
2017 is needed to familiarize himself with this case since he was first asked to represent Ms. Wilson
only on June 15, 2017—two (2) months after Judge Jackson’s April 12,2017, Order. Prospective
guardian ad litem for Ms. Wilson, Mr. Michael Goodman, claims a trial continuance of at least thirty
(30) days is needed to interview Ms. Wilson before accepting the role. Joshua and Michael Goodman]
now put forth before this Court the ultimatum that unless Judge Jackson’s April 12, 2017, Order is
disregarded, and another trial continuance is granted, neither will participate in this case. Instead of
using the 2.5 months since April 12, 2017, to find new counsel actually prepared to proceed with trial
according to Judge Jackson’s Order, and instead of filing a proper withdraw motion, defense counsel
ask for yet another trial delay to Plaintiff’s extraordinary and unaddressed prejudice.
On May 18, 2017, Plaintiff counsel Mr. Benny Martin transmitted a letter to defense counsel
informing them that trial in the correlating federal bankruptcy proceedings was continued to track the
continuance Judge Jackson’s April 12, 2017, Order set in this matter. A judgment against defendant
Angelo Wilson in this case would res judicata bankruptcy proceedings because debts arising from a
wrongful eviction are nondischargeable in Chapter 7. The bankruptcy judge continued trial from May
31, 2017, to September 11, 2017, to allow this trial to proceed, and to allow sufficient time to file a
dispositive res judicata motion in bankruptcy court after judgment is entered in these proceedings.
Mr. Martin’s May 18, 2017, letter described in detail the related bankruptcy proceedings, and the
connection between the trial dates in the two (2) venues:
When trial in this case was continued to June 26, 2017, trial in bankruptcy court was
continued to September 11, 2017. [See attached order— May 4, 2017 docket entry].
The trial dates track one another because judgment as to Angelo Wilson in this case
will res judicata the issues in bankruptcy court—whatever the outcome in this case.
OPPOSITION OF PLAINTIFF PHILLIP GARCIA TO DEFENDANTS’ MOTION FOR A FURTHER TRIAL
CONTINUANCE
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If the June 26, 2017, trial is again continued, Mr. Garcia will have insufficient time to
bring a res judicata motion, and will have to try the [federal bankruptcy] case. This
will cost Mr. Garcia many thousands of dollars...
...Mr. Garcia will also be prejudiced procedurally in bankruptcy court proceedings in
having to litigate issues that would be established in the instant matter but for the trial
continuance...
...] urge counsel to work together with the carrier to retain additional counsel now,
rather then move the court for a trial continuance yet again. Whether it be Mr.
Markham that needs new counsel because Mr. de la Pefia is unavailable, or that
Angelo Wilson/Carrie Wilson/The Wilson Family Trust need new counsel because of
a conflict of interest—there is time now to act.
It falls upon your shoulders to manage your representation of the defendants in this
case. You have 39 days to resolve any issue. Please do not waste any time.
Mr. Martin’s May 18, 2017, letter went unanswered.
x * *
Should this Court disregard its April 12, 2017, Order, the Court’s trial calendar, the trial
calendar of bankruptcy court in the Northern District of California, the prejudice Plaintiff in the
federal proceedings, the drastic increase litigation costs in this case, and continue trial to
accommodate defense counsel’s inability to meet the trial readiness deadline set by Judge Jackson on
April 12,2017? The resounding answer is no—this case should be sent out to trial forthwith.
STATEMENT OF RELEVANT FACT
I. The Parties and Plaintiff's Claims.
This is a landlord-tenant dispute. There is one (1) Plaintiff and three (3) non-dismissed
defendants:
Phillip Garcia — the tenant and Plaintiff in this action;
Angelo Wilson — a former property manager during all relevant times; he filed for bankruptcy
in April 2015;
OPPOSITION OF PLAINTIFF PHILLIP GARCIA TO DEFENDANTS’ MOTION FOR A FURTHER TRIAL
CONTINUANCE
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Carrie Wilson — the former property owner; defendant in this action in her capacity as Trustee
and in her individual capacity. The Wilson Family Trust is not a separate defendant because a trust
does not have the legal capacity to sue or to be sued. To sue a trust, the trustee is the named party.
Portico Management Group, LLC y. Harrison, (2011) 202 Cal. App. 4th 464, 473 (“In contrast to a
corporation, which the law often deems a person, a trust is not a person but rather a fiduciary
relationship with respect to property...the trustee is the real party in interest with standing to sue and
defend on the trust's behalf.”).
Shawn Markham — the former resident property manager and Mr. Garcia’s upstairs neighbor.
Erika Markham — a former property manager. She was dismissed as a defendant in May
2016.
This landlord-tenant dispute spans 3 cases. In chronological order, the first ease was a UD
action filed by Angelo Wilson against Phillip Garcia in San Francisco Superior Court in May 2013.
The grounds of the UD action was a noise-based nuisance. Mr. Garcia prevailed and was awarded
his attorney’s fees and costs against Angelo Wilson.
In April 2014, Mr. Garcia filed this action — the second case - consisting of causes of action
arising from 2 classes of unlawful acts undertaken by the property owner and managers to coerce
Plaintiff to abandon his rent-controlled apartment. Mr. Garcia brought this wrongful eviction action
with, tenant harassment causes of action under the San Francisco Administrative Code, and statutory,
common law, and California constitution-based causes of action for invasion of privacy. Mr. Garcia
also brought a cause of action to enforce the UD judgment against the property owners who refused
to satisfy it.
On April 20, 2015, Defendant Angelo Wilson filed for Chapter 7 bankruptcy. Mr. Garcia
filed an adversary proceeding in bankruptcy court — the third case — seeking to show that the UD
action debt was nondischargeable. Debts arising from a wrongful eviction are nondischargeable.
Coen v. Zick 458 F.2d 326 (9th Cir. 1972).
II. Procedural Posture.
Relevant to this motion are defendants’ representations of Carrie Wilson’s health cognitive
condition, defendants’ repeated attempts to delay trial, and the fact that trial in the instant matter is
tethered to trial in related federal court bankruptcy proceedings.
OPPOSITION OF PLAINTIFF PHILLIP GARCIA TO DEFENDANTS’ MOTION FOR A FURTHER TRIAL
CONTINUANCE
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a. Carrie Wilson's Cognitive Capacity.
Due to cancellations of depositions over Carrie Wilson’s physical health, Plaintiff moved for
trial preference on the ground that Ms. Wilson might not survive to trial. Defendant opposed on the
grounds that Defense counsel received assurances from Ms. Wilson’s treating physicians Dr. Crystal
Brown reported that Ms. Wilson would be “attentive and respond to questions” upon examination,
and Ms, Wilson’s treating physicians “indicated that Ms. Wilson's condition is expected to improve,
however, as she recovers from hip surgery and shingles.” Exhibit A.
Carrie Wilson has executed verifications to all discovery propounded upon her in her capacity
as trustee of The Wilson Family Trust. The most recent verification was executed on February 10,
2016. Exhibit B.
b. Defendants’ Efforts to Delay Trial.
This instant motion constitutes defendants 6" effort to continue or stay trial in this matter,
which is reflected in the registry of action in this case [Exhibit C]:
1st Attempt: On February 10, 2017, defendants filed an ex parte application to continue trial. It was
denied.
2™ Attempt: On February 15, 2017, defendants filed a regularly noticed motion to continue trial. It
was denied on March 21, 2017.
3" Attempt: On March 23, 2017, defendants filed another ex parte application to continue trial. It
was denied.
4" Attempt. On March 24, 2017, defendants filed a writ of mandate in the First District Court of
Appeal, and requested an emergency stay of the March 27, 2017, trial date. The court of appeal
granted the stay on March 24, 2017, which dissolved when the writ was denied on March 30, 2017.
Trial call was re-set to April 10, 2017.
5 Attempt: On April 10, 2017, defendants filed moved for another trial continuance, and filed briefs|
alleging conflicts of interest, inabilities to obtain waivers from the defendants, and the need for a trial
continuance to substitute new counsel.
Mr. de la Pena (counsel for defendant Shawn Markham) argued more time was needed to
prepare an adequate defense since he was retained by the carrier before meeting his new client:
OPPOSITION OF PLAINTIFF PHILLIP GARCIA TO DEFENDANTS’ MOTION FOR A FURTHER TRIAL
CONTINUANCE
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De la Pefia & Holiday, LLP was retained in this matter in the afternoon of Friday, April 7,
2017 and was advised that there was a conflict of interest involving the law firm of Murchison &
Cumming, LLP's representation of Mr. Markham. Counsel filed a substitution of counsel on the
moring of April 10, 2017, the first day of trial. Counsel did not have an opportunity to even meet
with the client until the morning of April 10, 2017. Counsel has just obtained the file on this
matter and needs the opportunity to review multiple depositions, discovery responses, document
productions, videos, photographs and the entire Unlawful Detainer file. Counsel requests a
continuance in order to adequately prepare and provide Mr. Markham with competent and diligent
representation of counsel.
Exhibit D. Mr. Wisinski of Murchison & Cumming argued more time was needed to substitute in
new counsel or to obtain conflict waivers form the clients, which the clients had refused to provide.
Defendants’ desire for a conflict waiver or an execution of a substitute of counsel form is not new to
this motion. Defense counsel argued its concern that Carrie Wilson “may not have the capacity to
knowingly sign a waiver” justified a trial continuance:
The conflict issues that exist between The Wilson Family Trust and Shawn
Markham, are mirrored between The Wilson Family Trust and Angelo Wilson, and The
Wilson Family Trust and Carrie Wilson, individually. We have been unable to obtain a
waiver as between Angelo Wilson and The Wilson Family Trust, and Carrie Wilson
individually and The Wilson Family Trust. There is also the concern that Carrie Wilson may
not have the capacity to knowingly sign a waiver. As a result, in the absence of a conflict
waiver, our firm, having had attorney-client communications with all defendants, may be
completely conflicted out and unable to represent any of the defendants. Consequently, a
continuance is required to enable our firm to either obtain the necessary conflict waiver
forthwith, or have new counsel substituted in for each of the defendants.
Exhibit E. Judge Jackson considered defendants’ conflict argument, and over Plaintiff’s objection on
the waste of financial resources invested with the expectation that trial could commence on April 10,
2017, the Judge Jackson generously gave defendants until June 26, 2017.
AFTER HEARING ORAL ARGUMENT ON THE ISSUE RE CONFLICTS, THE
COURT FOUND GOOD CAUSE TO CONTINUE THE TRIAL DATE. THE TRIAL
OPPOSITION OF PLAINTIFF PHILLIP GARCIA TO DEFENDANTS’ MOTION FOR A FURTHER TRIAL
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DATE IS CONTINUED TO 06/26/17. PLAINTIFF'S COUNSEL TO FILE A
DECLARATION BY 06/22/17 RE EXPENSES INCURRED UP TO TODAY,
04/12/17, WITH THE EXPECTATION THAT THE CASE WAS GOING TO BE
ASSIGNED OUT TO TRIAL ON 04/10/17. PARTIES WILL MEET & CONFER
PRIOR TO THE TRIAL DATE IN AN EFFORT TO RESOLVE THE EXPENSE
ISSUE, OTHERWISE THE COURT WILL ADDRESS THE MATTER AT TRIAL
CALL ON 06/26/17. IF ANY OTHER ADDITIONAL DEFENSE COUNSEL IS
BROUGHT INTO THIS CASE, COUNSEL SHALL BE READY TO PROCEED
WITH TRIAL ON 06/26/17.
(Emphasis added). The instant motion seeks another trial continuance based upon the same issues
presented to Judge Jackson. Plaintiff's counsel anticipated this tactic, and after the April 12,2017,
Order, he requested on three (3) occasions from May 5 through May 15, an update on the appointing
new counsel to address defendants’ claimed conflict. Defense counsel refused to respond on the basis
of attorney-client privilege. Exhibit F. On May 18,2017, Mr. Benny Martin transmitted a letter to
defense counsel informing them that trial in related federal bankruptcy proceedings was continued to
track the continuance Judge Jackson’s April 12,2017, Order set in this matter. Exhibit G.
c. The Bankruptcy Proceedings and Tethered to Trial in the Instant Matter.
On May 4, 2017, the bankruptcy court granted Mr. Garcia’s motion to continue trial in the
adversary proceedings to allow trial in this matter to commence and conclude. The audio file of the
May 4, 2017, hearing contains the bankruptcy court’s reasoning in continuing the adversary
proceedings:
In any event I am prepared to rule. | am going to grant the motion to continue the trial.
But I will say I am granting it because I do find that the issues to be tried in the state
court action are sufficiently close to those that might be relevant to the 536(a)(6) that I
think the state court trial should proceed and conclude before this trial begins.’
The bankruptcy court agreed with Mr. Garcia that trial in the instant matter might res judicata the
bankruptcy adversary proceedings. Mr. Garcia moved to continue the bankruptcy adversarial trial
from May 31, 2017, to September 11, 2017, because the defendants in this action persuaded
Presiding Judge Jackson to continue this trial to June 26, 2017, due to purported conflicts of interests.
The bankruptcy court continued trial to account for the trial delay here.
' The audio file is Docket Entry No. 85 in Garcia v. Wilson, (N.D. Cal. Bk.) 15-03064. Plaintiff's
counsel has paid for the file and will play it for the reviewing judge.
OPPOSITION OF PLAINTIFF PHILLIP GARCIA TO DEFENDANTS’ MOTION FOR A FURTHER TRIAL
CONTINUANCE
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III. Defendants’ Prior Ex Parte Guardian ad Litem Application.
On May 31, 2017, department 501 denied defendants’ ex parte application for appointment of
a guardian ad litem. The application violated Local Rules 14.14(1) because it did not include “A
capacity declaration executed by a physician who is familiar with the person with the disability.” The
application was also deficient because it was presented to the incorrect department, was not made via
the mandatory judicial council form, included no proposed guardian ad litem, and did include a proof
of service showing personal service of the application.
In the alternative, defendant sought to withdraw from the case. That relief was denied
because defendant did not serve the application upon real party in interest Carrie Wilson.
IV. The Carrier Has Denied Coverage on Plaintiff’s Claims.
On November 11, 2016, insurance defense counsel from Murchison & Cumming emailed
Plaintiff's counsel notification that there is no coverage of Plaintiff's claims. Exhibit H.
APPLICABLE LAW
I. Defendants have Failed to Show a Need for a Guardian Ad Litem.
Under Cal. Civ. Code § 372(a)(1),
The guardian or conservator of the estate or guardian ad litem so appearing for any
minor, person who lacks legal capacity to make decisions, or person for whom a
conservator has been appointed shall have power, with the approval of the court in
which the action or proceeding is pending, to compromise the same, to agree to the
order or judgment to be entered therein for or against the ward or conservatee, and to
satisfy any judgment or order in favor of the ward or conservatee or release or
discharge any claim of the ward or conservatee pursuant to that compromise.
Here, there is no insurance coverage of Plaintiffs claims, so there is no possibility of any settlement.
Plaintiff will not seek a stipulated judgment because Plaintiff has issue sanctions establishing
liability.
Further, Carrie Wilson does not appear to want substituted counsel. Defense counsel do not
communicate directly with Ms. Carrie Wilson because Mr. Wilson refuses to participate in this case.
OPPOSITION OF PLAINTIFF PHILLIP GARCIA TO DEFENDANTS’ MOTION FOR A FURTHER TRIAL
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Ms. Wilson’s family members communicate with defense counsel.’ Ms. Wilson’s family members
do not wish that a guardian ad litem be appointed or any conservatorship for Carrie Wilson.
Defendants’ M&Ps in Support of Motion to Continue Trial, 9:11-14. Defendants’ motion seeks to
circumvent these wishes, and exaggerates or fabricates Ms. Wilson’s cognitive disorder “dementia”
in connection thereto. The evidence shows Ms. Wilson’s health is just as her treating physician
reported in October 2016, according to the sworn statements of defense counsel Katelyn Knight:
On October 14, 2016, I contacted Ms. Wilson's treating physician, Dr. Crystal Brown,
by phone to determine the status of her condition and ability to sit for deposition. Dr.
Brown indicated that Ms. Wilson has one of the worst cases of shingles she has ever
seen, and that the viral infection would likely take six months to a year to resolve
given Ms. Wilson's age. Although Ms. Wilson is able to travel short distances, sitting
for even two hours would be extremely difficult, and Dr. Brown estimated that Ms.
Wilson would only be able to be attentive and respond to questions for perhaps 15
minutes due to her ongoing pain, discomfort, fatigue, and medications. Dr. Brown
indicated that Ms. Wilson's condition is expected to improve, however, as she
recovers from hip surgery and shingles.
(Emphasis added). Exhibit A. This sworn statements supports Ms. Wilson’s execution of discovery
verification throughout this case, the last of which occurred in February 2016. Exhibit B. Contrary to
defendants’ contention, the evidence suggests Ms. Wilson’s cognitive health is fine, and that she
simply no longer desire to participate in this case. That is, of course, her right. If defendants’
counsel wishes to usurp the decision-making power of Ms. Wilson and her family, they must follow
the law and present a sufficient guardian ad litem application. This has not been done.
On May 31, 2017, department 501 denied defendants’ application for appointment of a
guardian ad litem. The application violated Local Rules 14.14(1) because it did not include “A
> “Defense counsel has been working closely with Ms. Wilson's family members, care givers and
treating physicians to provide Plaintiff with discovery...” Exhibit I.
OPPOSITION OF PLAINTIFF PHILLIP GARCIA TO DEFENDANTS’ MOTION FOR A FURTHER TRIAL
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capacity declaration executed by a physician who is familiar with the person with the disability.”> We
can reasonably deduce that Ms. Wilson’s treating physician simply does not agree with the
assessment of defense counsel’s psychologist that Ms. Wilson meets the DMS criteria for dementia.
Perhaps that is why the defendants have been unable to present the required treating physician
declaration in support of a guardian ad litem application to the correct department.
And although defendants’ motion purports an intent to make a subsequent guardian ad litem
application if this Court jumps through Mr. Goodman’s hoops, no similar intent is described for the
required “Retention of Litigation Counsel” Petition required under Local Rule 14.14()).
And the Court must fulfill its role to ensure Ms. Wilson’s rights to control the litigation is not
unduly usurped. Jn re A.U. (2006) 141 Cal App 4th 326, the appellate could held the trial court erred
in appointing a guardian ad litem for a person with a history of mental illness without notice to the
person, and without an inquiry into whether she understood the nature of the proceedings and could
assist counsel in protecting her rights. Jn re A.U. (2006) 141 Cal.App. 4th 326, 338; Code Civ. Proc.,
§ 372. Defendants do not suggest that they intend to bring Ms. Wilson before the court to make this
determination.
In sum, defendants presented a defective guardian ad litem application to the wrong
department and without evidence of the disability from Ms. Wilson’s physician. It was denied, and no}
subsequent application has presented to this department. Defendants have expressed a tentative intent
to do so, but have not expressed an intent to make a “Retention of Litigation Counsel” Petition
required under Local Rule 14.14(J). Ms. Wilson executed discovery verifications in 2016 and
according to defense counsel’s swore statements on Ms. Wilson’s prognosis from her treating
physician Dr. Crystal Brown, Ms. Wilson is “attentive and [able] to respond to questions” with
frequent breaks as an accommodation for “ongoing pain, discomfort, fatigue, and medications”
relating to a series of physical ailments. The evidence suggests defendants’ untimely attempt to make
anew guardian ad litem is a thinly-veiled attempt by defense counsel to remedy their failure to secure
* The application was also deficient because it was presented to the incorrect department, was not
made via the mandatory judicial council form, included no proposed guardian ad litem, and did
include a proof of service showing personal service of the application.
OPPOSITION OF PLAINTIFF PHILLIP GARCIA TO DEFENDANTS’ MOTION FOR A FURTHER TRIAL
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a conflict waiver at the outset of its representation of all defendants in this case. It does not appear a
guardian ad litem in the best interests of, or desired by Carrie Wilson.
Il. There is Not Good Cause to Continue Trial.
Trial continuances are disfavored. Cal. Rule Ct., Rule 3.1332(b). To obtain a trial
continuance, the moving party must make an affirmative showing of good cause. Cal. Rule Ct., Rule
3.1332(c). This Court’s Local Rules clearly state that:
No continuance will be granted except for good cause shown, such as serious accident,
illness or death, or unanticipated unavailability of parties or witnesses.
Rule 6.0 B., Local Rules of Court.
The basis of defendants’ 6" request to delay trial is that a two-fold conflict prevents
Murchison & Cumming from representing Carrie Wilson.
a. First Conflict Claim: Confidential Information.
Because “Murchison &Cumming jointly represented all four Defendants from the inception off
this case. In doing so, the attorneys handling the defense of this matter obtained extensive
confidential information from each of the defendants.” Defendants’ M&Ps in Support of Motion to
Continue Trial, 9:11-14, In support of this claim, defendants argue,
Rule 3-310(e) of the Rules of Professional Conduct precludes defense counsel from
any representation adverse to a former client where counsel has obtained confidential
information by reason of the former employment. Under these circumstances, the
conflict is not waivable.
(Original emphasis). Defendants’ M&Ps in Support of Motion to Continue Trial, 9:8-11. Contrary to
defendants’ contention, Rule 3-310(e) of the Rules of Professional Conduct expressly authorizes
written waiver of any conflict created by obtaining confidential information:
A member shall not, without the informed written consent of the client or former
client, accept employment adverse to the client or former client where, by reason of
the representation of the client or former client, the member has obtained confidential
information material to the employment.
And Rule 3-310(c) of the Rules of Professional Conduct specifically provides,
OPPOSITION OF PLAINTIFF PHILLIP GARCIA TO DEFENDANTS’ MOTION FOR A FURTHER TRIAL
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A member shall not, without the informed written consent of each client:
(1) Accept representation of more than one client in a matter in which the interests
of the clients potentially conflict; or
(2) Accept or continue representation of more than one client in a matter in which
the interests of the clients actually conflict:
Defendants’ claim its purported conflict is not waivable is 100% false. The real issue is that
Murchison & Cumming undertook representation of all four (4) defendants in this action without first
obtaining a conflict waiver—and ask this court to save it from this omission to Plaintiff's great
prejudice. The relationship between defendants is agent-principle or employee-employer. There is
absolutely nothing about the nature of the defendants’ relationship that made a potential conflict
“unanticipated,” which Rule 6.0 B., Local Rules of Court requires in order to overcome the
disfavored status of trial continuances.
Defendants’ first claim of conflict also violates Rules of Court 3.1332(b), which requires a
trial continuance motion to be made “as soon as reasonably practical once the necessity for the
continuance is discovered.” Since Murchison & Cumming has represented all defendants since the
outset of this case in April 2014, the purported conflict underlying this motion to continue trial has
existed for years. Defendants’ motion does even attempt to satisfy Rules of Court 3.1332(b), by
describing state when Murchison & Cumming “obtained extensive confidential information,” from
which defendant, or articulate how acquisition of confidential information from one defendant
compromises the interests and created a conflict with any other defendant.
At the very least, this Court should conduct an in-camera review of any purported confidential
information collected by Shawn Markham or Angelo Wilson, and assess Murchison & Cumming’s
possession of the information upon Murchison & Cumming’s representation of Carrie Wilson. The
declarations filed in support of the instant motion do not describe how any purported disclosure of
client confidential information by one defendant impacts representation of the other defendants.
b. Second Conflict Claim: Issue Sanction Order.
The second basis of defendants’ 6" request to delay trial is that “The sanctions order against
The WILSON FAMILY TRUST creates an actual conflict of interest between the parties and
OPPOSITION OF PLAINTIFF PHILLIP GARCIA TO DEFENDANTS’ MOTION FOR A FURTHER TRIAL
CONTINUANCE
- 12 -precludes Murchison &Cumming, LLP's continued representation of any of the parties.” Defendants’
M&Ps in Support of Motion to Continue Trial, 8:28-9:2. Defendants’ motion does not explain why
this “actual conflict” exists since — as of this writing - new counsel has been appointed for the other
two (2) defendants: Mr. de la Pena for Shawn Markham; Mr. Matthew Mejia for Angelo Wilson].
If this conflict was truly a concern, why did defense counsel not properly move to withdraw
as counsel for Carrie Wilson under Cal. Code Civ. Proc § 284 when the sanction order was entered
on March 17, 2017—more than ten (10) weeks ago? Defendants filed an ex parte application to
withdraw as an alternative form of relief —and did not even bother to serve Carrie Wilson, the real
party in interest on the motion. Now, defendants’ counsel seeks a tremendously burdensome trial
continuance to perform a “substitution” of counsel, which would shift the financial, evidential, and
procedural burden upon Plaintiff, this Court’s trial calendar, and the trial calendar of federal
bankruptcy court. The equities in this motion do not favor the defendants’ lack of diligence, or
failure to adequately consider the rights of Carrie Wilson.
CONCLUSION
This Court should not disregard Judge Jackson’s April 12,2017, Order, establishing the
timeline to address the purported conflicts defense counsel claims. For Plaintiff, the prejudice is not
merely that he wishes to move on from this ordeal, which began in 2012; or that any further trial
continuance will drastically increase litigation costs in this case. The prejudice defendants ignore is
that Plaintiff will be forced to spend thousands of dollars to try the related cases in bankruptcy court
in the Northern District of California, and will be deprived of the ability to bring a dispositive res
judicata motion in federal court—the procedure specifically contemplated by the federal court in
continuing trial to allow the instant matter to commence and conclude.
If
Mi
At
OPPOSITION OF PLAINTIFF PHILLIP GARCIA TO DEFENDANTS’ MOTION FOR A FURTHER TRIAL
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The needs of the prospective new counsel for Carrie Wilson and prospective guardian ad
litem do not override Judge Jackson’s April 12, 2017, Order, this Court’s trial calendar, the trial
calendar of bankruptcy court, or the prejudice outlined above to Plaintiff. There is no good cause to
continue trial.
LAW OFFICES OF BENNY MARTIN
By:
Benny Martin
Attomey for Plaintiff Garcia
OPPOSITION OF PLAINTIFF PHILLIP GARCIA TO DEFENDANTS’ MOTION FOR A FURTHER TRIAL
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10
Matthew K. Wisinski (SBN 195535)
Dana L. Tom (SBN 263313)
Katelyn M. Knight (SBN 264573)
MURCHISON & CUMMING, LLP
275 Battery Street, Suite 850
San Francisco, California 94111
Telephone: (415) 524-4486
(415) 524-4313
Facsimile: (415) 391-2058
E-Mail: — mwisinski@murchisonlaw.com
dtom@murchisonlaw.com
kknight@murchisonlaw.com
Attorneys for Defendants, CARRIE WILSON
in her capacity as Trustee of the WILSON
FAMILY TRUST and SHAWN MARKHAM
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
PHILLIP GARCIA, CASE NO. CGC-14-538560
Plaintiff, DECLARATION OF KATELYN M.
KNIGHT IN SUPPORT OF OPPOSITION
vs. TO MOTION FOR TRIAL PREFERENCE
CARRIE WILSON, in her capacity as Date: October 28, 2016
trustee of THE WILSON FAMILY TRUST, Time: 9:00 a.m.
SHAUN MARKHAM, ERIKA MARKHAM, Dept.: 206
and ANGELO WILSON, and DOES 1-20,
Action Filed: April 10, 2014
Defendants. Trial Date: March 27, 2017
|, Katelyn M. Knight, declare and state:
| am an attorney-at-law licensed to practice in the State of California and | am an
associate with Murchison & Cumming LLP, counsel of record herein for Carrie Wilson in her
capacity as Trustee of the Wilson Family Trust and Shawn Markham. | am one of the
attorneys at our firm responsible for handling the defense of this matter on behalf of Carrie
Wilson in her capacity as Trustee of the Wilson Family Trust and Shawn Markham, and, on
this basis, and upon such other bases set forth below, | have personal knowledge of the
1
DECLARATION OF KATELYN M. KNIGHT IN SUPPORT OF OPPOSITION TO MOTION FOR TRIAL
PREFERENCEo ON Oo oOo kk WO ND =
10
matters set forth in this Declaration, except where stated on information and belief, and
could and would competently testify to them under oath if called as a witness.
1. On October 14, 2016, | contacted Ms. Wilson's treating physician, Dr. Crystal
Brown, by phone to determine the status of her condition and ability to sit for deposition. Dr.
Brown indicated that Ms. Wilson has one of the worst cases of shingles she has ever seen,
and that the viral infection would likely take six months to a year to resolve given Ms.
Wilson's age. Although Ms. Wilson is able to travel short distances, sitting for even two
hours would be extremely difficult, and Dr. Brown estimated that Ms. Wilson would only be
able to be attentive and respond to questions for perhaps 15 minutes due to her ongoing
pain, discomfort, fatigue, and medications. Dr. Brown indicated that Ms. Wilson's condition
is expected to improve, however, as she recovers from hip surgery and shingles.
2. On September 2, 2016, my office served sets of very specific special
interrogatories, document requests, and requests for admission on Phillip Garcia along with
Form Interrogatory No. 17.1 on behalf of Shawn Markham. No responses were received.
My colleague Dana Tom sent a meet and confer e-mail and Plaintiff's counsel stated in
response that he never received the discovery. Ms. Tom e-mailed copies of the discovery
and requested responses by November 18, 2016. | was sent a copy of and reviewed each
e-mail.
| declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Executed this 19th day of October, 2016, at San Francisco, California.
Katelyn M. Knight
2
DECLARATION OF KATELYN M. KNIGHT IN SUPPORT OF OPPOSITION TO MOTION FOR TRIAL
PREFERENCEEXHIBIT BoO NN ODO HM A wD NM =o
bso es a ew ew ew Bw nt en
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VERIFICATION
STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO
| have read the foregoing SUPPLEMENTAL RESPONSES Of CARRIE WILSON IN
HER CAPACITY AS TRUSTEE FOR THE WILSON FAMILY TRUST TO FORM
Corer: SET ONE, AND SPECIAL INTERROGATORIES, SET ONE and
now their contents.
| am Trustee for Wilson Family Trust of The Wilson Family Trust, a party to this
action, and am authorized to make this verification for and on its behalf, and | make this
verification for that reason. These responses were assembled by our counsel of record and
{am informed and believe that the responses are true and complete.
Executed on 2-10 , 2016, at Lizella, Georgia.
! declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
poe
Carrie Wilson «
Print Name of Signator
SignatureEXHIBIT CCase info
https://webapps.sftc.org/ci/Caseinfo.dll?CaseNum=CGC145385608SessionID=ASECOSFED81434E246A2021A4CFEGD50972545A3,
THE SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO:
Case Number: CGC 14538560
Title: PHILLIP GARCIA VS. CARRIE WILSON, IN HER CAPACITCY AS TRUSTEE OF THE et al
Cause of Action: WRONGFUL EVICTION
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Date Proceedings Document Fee
2017-06-21 NOTICE OF ENTRY OF ORDER/NOTICE OF RULING FILED SHORTENING TIME RE: MOTION FOR TRIAL View
CONTINUANCE (TRANSACTION ID # 60762466) FILED BY DEFENDANT CARRIE WILSON, IN HER CAPACITCY AS
TRUSTEE OF THE WILSON FAMILY TRUST WILSON, ANGELO WILSON, CARRIE , INDIVIDUALLY
2017-06-21 ORDER SHORTENING TIME RE: MOTION FOR TRIAL CONTINUANCE (HEARING: TO BE SET FOR 06/26/17 AT View
9:30AM; OPP. DUE BY 9AM 06/23/17; REPLY WAIVED)
2017-08-21 DECLARATION OF JOSHUA S. GOODMAN IN SUPPORT OF EX PARTE APPLICATION (TRANSACTION 1D # View
60759544) FILED BY DEFENDANT WILSON, CARRIE , INDIVIDUALLY
2017-06-21 DECLARATION OF MICHAEL J. GOLDMAN IN SUPPORT OF EX PARTE APPLICATION (TRANSACTION ID # View
60759544) FILED BY DEFENDANT WILSON, CARRIE , INDIVIDUALLY
2017-08-21 DECLARATION OF MATTHEW K. WISINSKI IN SUPPORT OF EX PARTE APPLICATION (TRANSACTION ID #
60759544} FILED BY DEFENDANT WILSON, CARRIE , INDIVIDUALLY
2017-06-21 DECLARATION OF KATELYN M. KNIGHT IN SUPPORT OF EX PARTE APPLICATION FOR CONTINUANCE, OR IN View
THE ALTERNATIVE FOR ORDER SHORTENING TIME (TRANSACTION ID # 60759544) FILED BY DEFENDANT
WILSON, CARRIE , INDIVIDUALLY
2017-08-21 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PATE APPLICATION FOR TRIAL View
CONTINUANCE, OR IN THE ALTERNATIVE FOR ORDER SHORTENING TIME (TRANSACTION ID # 60759544) FILED
BY DEFENDANT WILSON, CARRIE , INDIVIDUALLY
2017-0621 EX PARTE APPLICATION FOR ORDER FOR TRIAL CONTINUANCE, OR IN THE ALTERNATIVE FOR ORDER
SHORTENING TIME (TRANSACTION ID # 60759544) FILED BY DEFENDANT WILSON. CARRIE , INDIVIDUALLY.
$60.00
2017-08-31 DECLARATION OF MATTHEW K, WISINSKI IN SUPPORT OF EX PARTE APPLICATION (TRANSACTION ID # View
60866259) FILED BY DEFENDANT CARRIE WILSON, IN HER CAPACITCY AS TRUSTEE OF THE WILSON FAMILY
TRUST WILSON, ANGELO WILSON, CARRIE , INDIVIDUALLY
2017-05-31 DECLARATION OF KATELYN M, KNIGHT IN SUPPORT OF EX PARTE APPLICATION (TRANSACTION ID # 60666259) View
FILED BY DEFENDANT CARRIE WILSON, IN HER CAPACITCY AS TRUSTEE OF THE WILSON FAMILY TRUST
WILSON, ANGELO WILSON, CARRIE , INDIVIDUALLY
2017-05-31 EX PARTE APPLICATION FOR ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM FOR CARRIE WILSONORIN View $60.00
THE ALTERNATIVE TO WITHDRAW AS COUNSEL (TRANSACTION ID # 60666259) FILED BY DEFENDANT CARRIE
WILSON, IN HER CAPACITCY AS TRUSTEE OF THE WILSON FAMILY TRUST WILSON, ANGELO WILSON, CARRIE ,
INDIVIDUALLY
6/23/17, 6:27 PM
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NOTICE OF EX PARTE APPLICATION AND APPLICATION FOR APPOINTMENT OF GUARDIAN AD LITEM FOR View
CARRIE WILSON, OR IN THE ALTERNATIVE TO WITHDRAW AS COUNSEL (TRANSACTION ID # 60666259) FILED
BY DEFENDANT CARRIE WILSON, IN HER CAPACITCY AS TRUSTEE OF THE WILSON FAMILY TRUST WILSON,
ANGELO WILSON, CARRIE , INDIVIDUALLY
ORDER DENYING PETITION A151176 DIV 4 View
DEFENDANTS OBJECTION TO DECLARATION OF PLAINTIFF PHILLIP GARCIA RE: RECOVERING EXPENSES View
(TRANSACTION ID # 60599481) FILED BY DEFENDANT CARRIE WILSON, IN HER CAPACITCY AS TRUSTEE OF
THE WILSON FAMILY TRUST WILSON, ANGELO WILSON, CARRIE , INDIVIDUALLY
PROOF OF SERVICE (DEFENDANT SHAWN MARKHAM'S OBJECTION TO PLAINTIFF PHILIP GARCIA'S. View
DECLARATION RE RECOVERING EXPENSES; DECLARATION OF LORENA MATE! IN SUPPORT OF DEFENDANT
SHAWN MARKHAM'S OBJECTION TO PLAINTIFF PHILIP GARCIA'S DECLARATION RE RECOVERING EXPENSES)
(TRANSACTION ID # 69598348)
DECLARATION OF LORENA MATE! IN SUPPORT OF DEFENDANT SHAWN MARKHAM'S OBJECTION TO PLAINTIFF View
PHILIP GARCIA’S DECLARATION RE RECOVERING EXPENSES (TRANSACTION ID # 60598348)
DEFENDANT SHAWN MARKHAM'S OBJECTION TO PLAINTIFF PHILIP GARCIA'S DECLARATION RE RECOVERING View
EXPENSES (TRANSACTION ID # 60598348)
DEFENDANT SHAWN MARKHAM'S OBJECTION TO PLAINTIFFS SECOND AMENDED NOTICE TO APPEAR ATTRIAL View
REQUEST TO BRING DOCUMENTS AND THINGS TO TRIAL PURSUANT TO CALIFORNIA CODE OF CIVIL
PROCEDURE 1987 (TRANSACTION ID # 60588022)
DECLARATION OF PLAINTIFF PHILLIP GARCIA RE: RECOVERING EXPENSES PER THE COURTS APRIL 12, 2017 View
ORDER (TRANSACTION ID # 60550650) FILED BY PLAINTIFF GARCIA, PHILLIP
ENDAR SET FOR APR-12-2017 CONTINUED TO MASTER CALENDAR JURY ON JUN-26-20
9.30 AM IN DEPT 206. APPEARANCES BY BENJAMIN MARTIN, ESQ FOR PLAINTIFF: MATTHEW WINSINK|, ESO.
FOR WILSON DEFENDANTS; GREGORY DE LA PENA, ESO. FOR DEFENDANT SHAWN MARKHAM. AFTER
HEARING ORAL ARGUMENT ON THE ISSUE RE CONFLICTS, THE COURT FOUND Ga00 CAUSE TO CONTINUE
THE TRIAL DATE. THE TRIAL DATE [S CONTINUED TO 06/26/17. PLAINTIFF'S COUNSEL TO FILE A DECLARATION
BY 06/22/17 RE EXPENSES INCURRED UP TO TODAY, 04/12/17, WITH THE EXPECTATION THAT THE CASE WAS.
GOING TO BE ASSIGNED OUT TO TRIAL ON 04/10/17, PARTIES WILL MEET & CONFER PRIOR TO THE TRIAL DATE
IN AN EFFORT TO RESOLVE THE EXPENSE ISSUE, OTHERWISE THE COURT WILL ADDRESS THE MATTER AT
TRIAL CALL ON 0626/17 IF ANY OTHER ADDITIONAL DEFENSE COUNSEL IS BROUGHT INTO THIS CASE
COUNSEL SHALL BE READY TO PROCEED WITH TRIAL ON 06/26/17. JUDGE: TERI L. JACKSON, REPORTER:
DONNA WILLIAMS-BLUM OF BAY AREA TRIAL REPORTERS, COR #11133 (415/602-6910) (208/TLJ)
RESPONSE TO DEFENDANTS FIFTH REQUEST FOR A TRIAL CONTINUANCE (TRANSACTION ID # 60460276) View
FILED BY PLAINTIFF GARCIA, PHILLIP
DECLARATION OF MATTHEW K. WISINSKI IN SUPPORT OF DEFENDANTS CARRIE WILSON AND THE WILSON View
FAMILY TRUSTS REQUEST FOR A TRIAL CONTINUANCE (TRANSACTION ID # 60457385) FILED BY DEFENDANT
CARRIE WILSON, IN HER CAPACITCY AS TRUSTEE OF THE WILSON FAMILY TRUST WILSON, ANGELO
BRIEF REGARDING CONFLICT ISSUES IN SUPPORT OF REQUEST FOR ATRIAL CONTINUANCE (TRANSACTION View
ID # 60457385) FILED BY DEFENDANT CARRIE WILSON, IN HER CAPACITCY AS TRUSTEE OF THE WILSON
FAMILY TRUST WILSON, ANGELO.
BRIEF RE: CONFLICT OF INTEREST (TRANSACTION ID # 60456705) FILED BY DEFENDANT MARKHAM, SHAWN. View
(ERRONEOUSLY SUED AS SERVED AS SHAUN MARKHAM)
MASTER JURY CALENDAR SET FOR APR-10-2017 CONTINUED TO MASTER CALENDAR JURY (CONTINUED) ON
APR-12-2017 AT 9:30 AM IN DEPT. 206. APPEARANCES AT TRIAL CALL BY BENJAMIN MARTIN, ESQ. FOR
PLAINTIFF; MATTHEW WINSINKI, ESO. FOR WILSON DEFENDANTS; GREGORY DE LA PENA, ESQ. SUBSTITUTING
IN TO REPRESENT DEFENDANT SHAWN MARKHAM; THE SUBSTITUTION OF ATTORNEY WAS SUBMITTED FOR
FILING THIS MORNING, 04/10/17. THE COURT CONTINUED THE MATTER TO 04/12/17 FOR DEFENDANTS"
COUNSEL TO ADDRESS THE ISSUE RE CONFLICTS. DECLARATION RE CONFLICT ISSUE DUE 04/11/17 BY NOON
PLAINTIFF'S RESPONSE DUE 04/11/17 BY 4PM. ANY FILINGS NOT TO EXCEED FIVE PAGES. COURTESY COPIES
TO BE PERSONALLY DELIVERED TO DEPT. 206. JUDGE: TERI L. JACKSON, MATTER NOT REPORTED (206/TLJ)
SUBSTITUTION OF ATTORNEY, (TRANSACTION ID # 60449817): DELAPENA, GREGORY RAMON SUBSTITUTED. View
FOR WINSINKI, MATTHEW K AS ATTORNEY FOR MARKHAM, SHAWN (ERRONEOUSLY SUED AS SERVED AS.
SHAUN MARKHAM)
ORDER DENYING THE PETITION FOR WRIT OF MANDATE ETAL: DISSOLVING THE STAY PREVIOUSLY ISSUED View
https://webapps.sftc.org/ci/Caseinfo.dll?CaseNum=CGC145385608SessionID=ASECOSFED81434E246A2021A4CFEGD50972545A3,
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150864 DIV 1
NOTICE OF CHANGE OF ADDRESS (TRANSACTION ID # 60417888) FILED BY ATTORNEY MARTIN, BENJAMIN, View
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF OPPOSITION TO PLAINTIFF'S EX PARTE APPLICATION View
(TRANSACTION ID # 60405423) FILED BY DEFENDANT CARRIE WILSON, IN HER CAPACITCY AS TRUSTEE OF
THE WILSON FAMILY TRUST WILSON, ANGELO MARKHAM, SHAWN (ERRONEQUSLY SUED AS SERVED AS
SHAUN MARKHAM) WILSON, CARRIE , INDIVIDUALLY
OPPOSITION TO PLAINTIFF'S EX PARTE APPLICATION (TRANSACTION ID # 60405423) FILED BY DEFENDANT View
CARRIE WILSON, IN HER CAPACITCY AS TRUSTEE OF THE WILSON FAMILY TRUST WILSON, ANGELO.
MARKHAM, SHAWN (ERRONEOUSLY SUED AS SERVED AS SHAUN MARKHAM) WILSON, CARRIE , INDIVIDUALLY
DECLARATION OF PLAINTIFF'S COUNSEL BENNY MARTIN IN SUPPORT OF EX PARTE APPLICATION TO View
ADVANCE TRIAL CALL BASED ON THE COURT OF APPEAL'S ORDER GRANTING AN EXPEDITED BRIEFING
SCHEDULE (TRANSACTION ID # 80404240) FILED BY PLAINTIFF GARCIA, PHILLIP
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION TO ADVANCE TRIAL View
CALL BASED ON THE COURT OF APPEAL'S ORDER GRANTING AN EXPEDITED BRIEFING SCHEDULE
(TRANSACTION ID # 60404240) FILED BY PLAINTIFF GARCIA, PHILLIP
NOTICE OF EX PARTE APPLICATION AND EX PARTE APPLICATION TO ADVANCE TRIAL CALL BASED ON THE View
COURT OF APPEAL'S ORDER GRANTING AN EXPEDITED BRIEFING SCHEDULE (TRANSACTION ID # 60404240)
FILED BY PLAINTIFF GARCIA, PHILLIP
DISCOVERY 302, PLAINTIFF PHILLIP GARCIA'S MOTION TO COMPEL RESPONSES TO DISCOVERY AND
REQUESTS FOR MONETARY AND NONMONETARY SANCTIONS IS GRANTED IN PART AND DENIED IN PART.
=302NPT
ORDER ORDER ON PLAINTIFF'S MOTION TO COMPEL RESPONSES TO DISCOVERY AND REQUESTS FOR View
SANCTIONS
MASTER JURY CALENDAR SET FOR MAR-27-2017 CONTINUED TO MASTER CALENDAR JURY ON APR-10-2017 AT
9:30 AM IN DEPT, 206. BENJAMIN MARTIN APPEARING FOR PLAINTIFF, MATTHEW WINSINKI APPEARING FOR
DEFENDANTS. THE COURT CONTINUED THE MATTER DUE TO THE GRANTING OF DEFENDANTS’ STAY FROM
THE FIRST DISTRICT OF COURT OF APPEAL. JUDGE: TERI L. JACKSON; CLERK: R. VELUZ; MATTER NOT
REPORTED. (206)
ORDER FROM COURT OF APPEAL, PENDING FURTHER CONSIDERATION OF THE PETITION FOR WRIT OF View
MANDATE AND REQUEST FOR IMMEDIATE STAY, PROCEEDINGS IN THIS MATTER ARE STAYED UNTIL FURTHER
ORDER OF THIS COURT. A150864 #1
PROOF OF SERVICE (TRANSACTION ID # 60383393) FILED BY PLAINTIFF GARCIA, PHILLIP AS TO DEFENDANT View
MARKHAM, SHAUN MARKHAM, ERIKA WILSON, ANGELO MARKHAM, SHAWN (ERRONEOUSLY SUED AS SERVED
AS SHAUN MARKHAM) WILSON, CARRIE , INDIVIDUALLY
DISMISSAL WITHOUT PREJUDICE OF 2ND AMENDED COMPLAINT PLAINTIFFS FIFTH CAUSE OF ACTION FOR View
BREACH OF CONTRACT IN HIS SECOND AMENDED COMPLAINT AGAINST ALL DEFENDANT ONLY
(TRANSACTION ID # 60383293)
DECLARATION OF KATELYN M, KNIGHT IN SUPPORT OF EX PARTE APPLICATION FOR TRIAL CONTINUANCE AND View
ORDER REOPENING DISCOVERY (TRANSACTION ID # 60377329) FILED BY DEFENDANT CARRIE WILSON, IN HER
CAPACITCY AS TRUSTEE OF THE WILSON FAMILY TRUST WILSON, ANGELO MARKHAM, SHAWN
(ERRONEOUSLY SUED AS SERVED AS SHAUN MARKHAM)
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR TRIAL View
CONTINUANCE AND ORDER REOPENING DISCOVERY (TRANSACTION ID # 60377329) FILED BY DEFENDANT
CARRIE WILSON, IN HER CAPACITCY AS TRUSTEE OF THE WILSON FAMILY TRUST WILSON, ANGELO
MARKHAM, SHAWN (ERRONEOUSLY SUED AS SERVED AS SHAUN MARKHAM)
EX PARTE APPLICATION FOR CONTINUANCE AND ORDER REOPENING DISCOVERY (TRANSACTION ID # View
60377329) FILED BY DEFENDANT CARRIE WILSON, IN HER CAPACITCY AS TRUSTEE OF THE WILSON FAMILY
TRUST WILSON, ANGELO MARKHAM, SHAWN (ERRONEOUSLY SUED AS SERVED AS SHAUN MARKHAM)
MASTER MOTION CALENDAR ON MAR-21-2017 IN 206, DEFENDANTS ANGELO WILSON, CARRIE WILSON IN HER
CAPACITY AS TRUSTEE OF THE WILSON FAMILY TRUST AND SHAWN MARKHAM'S MOTION TO CONTINUE
TRIAL, BENJAMIN MARTIN APPEARING FOR PLAINTIFF, KATELYN KNIGHT APPEARING FOR DEFENDANTS,
AFTER ARGUMENT, THE COURT DENIES DEFENDANTS’ MOTION TO CONTINUE TRIAL. THE COURT DENIES.
https://webapps.sftc.org/ci/Caseinfo.dll?CaseNum=CGC145385608SessionID=ASECOSFED81434E246A2021A4CFEGD50972545A3,
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PLAINTIFF'S REQUEST FOR SANCTIONS. JUDGE: TERI L. JACKSON; CLERK: R. VELUZ; MATTER NOT
REPORTED. (206)
ORDER STIPULATION AND ORDER FOR MOTION TO BE HEARD BY A MEMBER OF THE CALIFORNIA BAR
SERVING AS A TEMPORARY JUDGE.
DISCOVERY, 302, PLAINTIFF PHILLIP GARCIA'S MOTION TO COMPEL RESPONSES TO DISCOVERY AND
REQUESTS FOR MONETARY AND NONMONETARY SANCTIONS IS TAKEN UNDER SUBMISSION. JUDGE PRO
TEM: DOUGLAS ROBBINS; CLERK: JOHNNY SENGMANY, NOT REPORTED =302/JPT.
SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF PHILLIP GARCIAS MOTION TO COMPEL RESPONSES TO
DISCOVERY AND REQUESTS FOR MONETARY AND NONMONETARY SANCTIONS (TRANSACTION ID # 60246561)
FILED BY PLAINTIFF GARCIA, PHILLIP
ANSWER TO 2ND AMENDED COMPLAINT (TRANSACTION ID # 60345269) FILED BY DEFENDANT WILSON, CARRIE
INDIVIDUALLY
MINI MINUTES FOR MAR-16-2017 09:00 AM FOR DEPT 302
DECLARATION OF MATTHEW WISINSKI IN SUPPORT OF MOTION FOR TRIAL CONTINUANCE (TRANSACTION 1D #
60338490) FILED BY DEFENDANT CARRIE WILSON, IN HER CAPACITCY AS TRUSTEE OF THE WILSON FAMILY
TRUST WILSON, ANGELO MARKHAM, SHAWN (ERRONEOUSLY SUED AS SERVED AS SHAUN MARKHAM)
REPLY IN SUPPORT OF MOTION FOR TRIAL CONTINUANCE (TRANSACTION ID # 60338490) FILED BY
DEFENDANT CARRIE WILSON, IN HER CAPACITCY AS TRUSTEE OF THE WILSON FAMILY TRUST WILSON,
ANGELO MARKHAM, SHAWN (ERRONEQUSLY SUED AS SERVED AS SHAUN MARKHAM)
DISCOVERY 302, PLAINTIFF PHILLIP GARCIA PLAINTIFF'S MOTION TO COMPEL RESPONSES TO DISCOVERY
AND REQUESTS FOR MONETARY AND NONMONETARY SANCTIONS IS CONTINUED TO MARCH 16, 2017 PER
THE AGREEMENT OF THE PARTIES. JUDGE PRO TEM: AARON MINNIS; CLERK: JOHNNY SENGMANY; NOT
REPORTED.=302\JPT
MASTER CALENDAR MOTION ON MAR-14-2017 IN DEPT. 206, DEFENDANTS’ MOTION TO CONTINUE TRIAL
CONTINUED FROM MAR-14-2017 TO MASTER CALENDAR MOTION AT MAR-21-2017, 9:30 AM IN DEPT. 206, ON
THE COURT'S OWN MOTION. (208)
MINI MINUTES FOR MAR-13-2017 09:00 AM FOR DEPT 302
PLAINTIFFS PHILLIP GARCIAS OBJECTIONS TO EVIDENCE SUBMITTED IN OPPOSITION TO PLAINTIFFS MOTION
TO COMPEL RESPONSES TO DISCOVERY AND REQUESTS FOR MONETARY AND NONMONETARY SANC
Preview
ELECTRONICALLY LAW OFFICES OF BENNY MARTIN FILED Benjamin Martin (SBN 257452) Superior Court of California, 647 Santa Clara Ave. County of San Francisco Venice, CA 90291 06/23/2017 Phone: (510) 227-4406 Clerk ot ne court Email: knowyourightsinsf@ gmail.com . Deputy Clerk Attorneys for Plaintiff Phillip Garcia SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO UNLIMITED JURISDICTION PHILLIP GARCIA, an individual, : Case No, CGC-14-538560 Plaintiff, } OPPOSITION OF PLAINTIFF PHILLIP ) GARCIA TO DEFENDANTS’ MOTION FOR A FURTHER TRIAL eee } CONTINUANCE CARRIE WILSON, in her individual capacity, : and in her capacity as trustee of THE WILSON ) FAMILY TRUST, et. al., and DOES 1-20. ) Date: June 26, 2017 : Time: 9:30 a.m. ) Dept.: 206 Defendants. ) ) Trial Date: June 26, 2017 ) Original Complaint Filed: April 9, 2014 ) INTRODUCTION Plaintiff Phillip Garcia (“Plaintiff”) vigorously opposes this instant motion, which constitutes defendants 6" request to delay trial in this matter in the last four (4) months. Defendants last trial continuance request — premised on exactly the same purported conflict of interest - was granted by Presiding Judge Terri L. Jackson in an Order entered on April 12, 2017, on the condition: “if any other additional defense counsel is brought into this case, counsel shall be ready to proceed with trial on 06/26/17.” This motion violates Presiding Judge Jackson’s April 12, 2017, Order. After Judge Jackson’s April 12,2017, Order, Plaintiffs counsel requested on three (3) occasions from May 5 through May 15, an update on the appointing new counsel to address OPPOSITION OF PLAINTIFF PHILLIP GARCIA TO DEFENDANTS’ MOTION FOR A FURTHER TRIAL CONTINUANCE LaenD defendants’ claimed conflict. After the third attempt, defense counsel refused to respond on the basis of attorney-client privilege. One of the new counsel brought into the case — Mr. Gregory de la Pena representing defendant Shawn Markham — requested another trial continuance via email on May 17, 2017, on the basis that Mr. de la Pena had a scheduling conflict with another trial in Sonoma County. Prospective new counsel for Carrie Wilson, Mr. Joshua Goodman, claims a trial continuance to at least August 7, 2017 is needed to familiarize himself with this case since he was first asked to represent Ms. Wilson only on June 15, 2017—two (2) months after Judge Jackson’s April 12,2017, Order. Prospective guardian ad litem for Ms. Wilson, Mr. Michael Goodman, claims a trial continuance of at least thirty (30) days is needed to interview Ms. Wilson before accepting the role. Joshua and Michael Goodman] now put forth before this Court the ultimatum that unless Judge Jackson’s April 12, 2017, Order is disregarded, and another trial continuance is granted, neither will participate in this case. Instead of using the 2.5 months since April 12, 2017, to find new counsel actually prepared to proceed with trial according to Judge Jackson’s Order, and instead of filing a proper withdraw motion, defense counsel ask for yet another trial delay to Plaintiff’s extraordinary and unaddressed prejudice. On May 18, 2017, Plaintiff counsel Mr. Benny Martin transmitted a letter to defense counsel informing them that trial in the correlating federal bankruptcy proceedings was continued to track the continuance Judge Jackson’s April 12, 2017, Order set in this matter. A judgment against defendant Angelo Wilson in this case would res judicata bankruptcy proceedings because debts arising from a wrongful eviction are nondischargeable in Chapter 7. The bankruptcy judge continued trial from May 31, 2017, to September 11, 2017, to allow this trial to proceed, and to allow sufficient time to file a dispositive res judicata motion in bankruptcy court after judgment is entered in these proceedings. Mr. Martin’s May 18, 2017, letter described in detail the related bankruptcy proceedings, and the connection between the trial dates in the two (2) venues: When trial in this case was continued to June 26, 2017, trial in bankruptcy court was continued to September 11, 2017. [See attached order— May 4, 2017 docket entry]. The trial dates track one another because judgment as to Angelo Wilson in this case will res judicata the issues in bankruptcy court—whatever the outcome in this case. OPPOSITION OF PLAINTIFF PHILLIP GARCIA TO DEFENDANTS’ MOTION FOR A FURTHER TRIAL CONTINUANCE ~-2-nD If the June 26, 2017, trial is again continued, Mr. Garcia will have insufficient time to bring a res judicata motion, and will have to try the [federal bankruptcy] case. This will cost Mr. Garcia many thousands of dollars... ...Mr. Garcia will also be prejudiced procedurally in bankruptcy court proceedings in having to litigate issues that would be established in the instant matter but for the trial continuance... ...] urge counsel to work together with the carrier to retain additional counsel now, rather then move the court for a trial continuance yet again. Whether it be Mr. Markham that needs new counsel because Mr. de la Pefia is unavailable, or that Angelo Wilson/Carrie Wilson/The Wilson Family Trust need new counsel because of a conflict of interest—there is time now to act. It falls upon your shoulders to manage your representation of the defendants in this case. You have 39 days to resolve any issue. Please do not waste any time. Mr. Martin’s May 18, 2017, letter went unanswered. x * * Should this Court disregard its April 12, 2017, Order, the Court’s trial calendar, the trial calendar of bankruptcy court in the Northern District of California, the prejudice Plaintiff in the federal proceedings, the drastic increase litigation costs in this case, and continue trial to accommodate defense counsel’s inability to meet the trial readiness deadline set by Judge Jackson on April 12,2017? The resounding answer is no—this case should be sent out to trial forthwith. STATEMENT OF RELEVANT FACT I. The Parties and Plaintiff's Claims. This is a landlord-tenant dispute. There is one (1) Plaintiff and three (3) non-dismissed defendants: Phillip Garcia — the tenant and Plaintiff in this action; Angelo Wilson — a former property manager during all relevant times; he filed for bankruptcy in April 2015; OPPOSITION OF PLAINTIFF PHILLIP GARCIA TO DEFENDANTS’ MOTION FOR A FURTHER TRIAL CONTINUANCE Lege!nD Carrie Wilson — the former property owner; defendant in this action in her capacity as Trustee and in her individual capacity. The Wilson Family Trust is not a separate defendant because a trust does not have the legal capacity to sue or to be sued. To sue a trust, the trustee is the named party. Portico Management Group, LLC y. Harrison, (2011) 202 Cal. App. 4th 464, 473 (“In contrast to a corporation, which the law often deems a person, a trust is not a person but rather a fiduciary relationship with respect to property...the trustee is the real party in interest with standing to sue and defend on the trust's behalf.”). Shawn Markham — the former resident property manager and Mr. Garcia’s upstairs neighbor. Erika Markham — a former property manager. She was dismissed as a defendant in May 2016. This landlord-tenant dispute spans 3 cases. In chronological order, the first ease was a UD action filed by Angelo Wilson against Phillip Garcia in San Francisco Superior Court in May 2013. The grounds of the UD action was a noise-based nuisance. Mr. Garcia prevailed and was awarded his attorney’s fees and costs against Angelo Wilson. In April 2014, Mr. Garcia filed this action — the second case - consisting of causes of action arising from 2 classes of unlawful acts undertaken by the property owner and managers to coerce Plaintiff to abandon his rent-controlled apartment. Mr. Garcia brought this wrongful eviction action with, tenant harassment causes of action under the San Francisco Administrative Code, and statutory, common law, and California constitution-based causes of action for invasion of privacy. Mr. Garcia also brought a cause of action to enforce the UD judgment against the property owners who refused to satisfy it. On April 20, 2015, Defendant Angelo Wilson filed for Chapter 7 bankruptcy. Mr. Garcia filed an adversary proceeding in bankruptcy court — the third case — seeking to show that the UD action debt was nondischargeable. Debts arising from a wrongful eviction are nondischargeable. Coen v. Zick 458 F.2d 326 (9th Cir. 1972). II. Procedural Posture. Relevant to this motion are defendants’ representations of Carrie Wilson’s health cognitive condition, defendants’ repeated attempts to delay trial, and the fact that trial in the instant matter is tethered to trial in related federal court bankruptcy proceedings. OPPOSITION OF PLAINTIFF PHILLIP GARCIA TO DEFENDANTS’ MOTION FOR A FURTHER TRIAL CONTINUANCE -4-nD a. Carrie Wilson's Cognitive Capacity. Due to cancellations of depositions over Carrie Wilson’s physical health, Plaintiff moved for trial preference on the ground that Ms. Wilson might not survive to trial. Defendant opposed on the grounds that Defense counsel received assurances from Ms. Wilson’s treating physicians Dr. Crystal Brown reported that Ms. Wilson would be “attentive and respond to questions” upon examination, and Ms, Wilson’s treating physicians “indicated that Ms. Wilson's condition is expected to improve, however, as she recovers from hip surgery and shingles.” Exhibit A. Carrie Wilson has executed verifications to all discovery propounded upon her in her capacity as trustee of The Wilson Family Trust. The most recent verification was executed on February 10, 2016. Exhibit B. b. Defendants’ Efforts to Delay Trial. This instant motion constitutes defendants 6" effort to continue or stay trial in this matter, which is reflected in the registry of action in this case [Exhibit C]: 1st Attempt: On February 10, 2017, defendants filed an ex parte application to continue trial. It was denied. 2™ Attempt: On February 15, 2017, defendants filed a regularly noticed motion to continue trial. It was denied on March 21, 2017. 3" Attempt: On March 23, 2017, defendants filed another ex parte application to continue trial. It was denied. 4" Attempt. On March 24, 2017, defendants filed a writ of mandate in the First District Court of Appeal, and requested an emergency stay of the March 27, 2017, trial date. The court of appeal granted the stay on March 24, 2017, which dissolved when the writ was denied on March 30, 2017. Trial call was re-set to April 10, 2017. 5 Attempt: On April 10, 2017, defendants filed moved for another trial continuance, and filed briefs| alleging conflicts of interest, inabilities to obtain waivers from the defendants, and the need for a trial continuance to substitute new counsel. Mr. de la Pena (counsel for defendant Shawn Markham) argued more time was needed to prepare an adequate defense since he was retained by the carrier before meeting his new client: OPPOSITION OF PLAINTIFF PHILLIP GARCIA TO DEFENDANTS’ MOTION FOR A FURTHER TRIAL CONTINUANCE LosenD De la Pefia & Holiday, LLP was retained in this matter in the afternoon of Friday, April 7, 2017 and was advised that there was a conflict of interest involving the law firm of Murchison & Cumming, LLP's representation of Mr. Markham. Counsel filed a substitution of counsel on the moring of April 10, 2017, the first day of trial. Counsel did not have an opportunity to even meet with the client until the morning of April 10, 2017. Counsel has just obtained the file on this matter and needs the opportunity to review multiple depositions, discovery responses, document productions, videos, photographs and the entire Unlawful Detainer file. Counsel requests a continuance in order to adequately prepare and provide Mr. Markham with competent and diligent representation of counsel. Exhibit D. Mr. Wisinski of Murchison & Cumming argued more time was needed to substitute in new counsel or to obtain conflict waivers form the clients, which the clients had refused to provide. Defendants’ desire for a conflict waiver or an execution of a substitute of counsel form is not new to this motion. Defense counsel argued its concern that Carrie Wilson “may not have the capacity to knowingly sign a waiver” justified a trial continuance: The conflict issues that exist between The Wilson Family Trust and Shawn Markham, are mirrored between The Wilson Family Trust and Angelo Wilson, and The Wilson Family Trust and Carrie Wilson, individually. We have been unable to obtain a waiver as between Angelo Wilson and The Wilson Family Trust, and Carrie Wilson individually and The Wilson Family Trust. There is also the concern that Carrie Wilson may not have the capacity to knowingly sign a waiver. As a result, in the absence of a conflict waiver, our firm, having had attorney-client communications with all defendants, may be completely conflicted out and unable to represent any of the defendants. Consequently, a continuance is required to enable our firm to either obtain the necessary conflict waiver forthwith, or have new counsel substituted in for each of the defendants. Exhibit E. Judge Jackson considered defendants’ conflict argument, and over Plaintiff’s objection on the waste of financial resources invested with the expectation that trial could commence on April 10, 2017, the Judge Jackson generously gave defendants until June 26, 2017. AFTER HEARING ORAL ARGUMENT ON THE ISSUE RE CONFLICTS, THE COURT FOUND GOOD CAUSE TO CONTINUE THE TRIAL DATE. THE TRIAL OPPOSITION OF PLAINTIFF PHILLIP GARCIA TO DEFENDANTS’ MOTION FOR A FURTHER TRIAL CONTINUANCE Lege!nD DATE IS CONTINUED TO 06/26/17. PLAINTIFF'S COUNSEL TO FILE A DECLARATION BY 06/22/17 RE EXPENSES INCURRED UP TO TODAY, 04/12/17, WITH THE EXPECTATION THAT THE CASE WAS GOING TO BE ASSIGNED OUT TO TRIAL ON 04/10/17. PARTIES WILL MEET & CONFER PRIOR TO THE TRIAL DATE IN AN EFFORT TO RESOLVE THE EXPENSE ISSUE, OTHERWISE THE COURT WILL ADDRESS THE MATTER AT TRIAL CALL ON 06/26/17. IF ANY OTHER ADDITIONAL DEFENSE COUNSEL IS BROUGHT INTO THIS CASE, COUNSEL SHALL BE READY TO PROCEED WITH TRIAL ON 06/26/17. (Emphasis added). The instant motion seeks another trial continuance based upon the same issues presented to Judge Jackson. Plaintiff's counsel anticipated this tactic, and after the April 12,2017, Order, he requested on three (3) occasions from May 5 through May 15, an update on the appointing new counsel to address defendants’ claimed conflict. Defense counsel refused to respond on the basis of attorney-client privilege. Exhibit F. On May 18,2017, Mr. Benny Martin transmitted a letter to defense counsel informing them that trial in related federal bankruptcy proceedings was continued to track the continuance Judge Jackson’s April 12,2017, Order set in this matter. Exhibit G. c. The Bankruptcy Proceedings and Tethered to Trial in the Instant Matter. On May 4, 2017, the bankruptcy court granted Mr. Garcia’s motion to continue trial in the adversary proceedings to allow trial in this matter to commence and conclude. The audio file of the May 4, 2017, hearing contains the bankruptcy court’s reasoning in continuing the adversary proceedings: In any event I am prepared to rule. | am going to grant the motion to continue the trial. But I will say I am granting it because I do find that the issues to be tried in the state court action are sufficiently close to those that might be relevant to the 536(a)(6) that I think the state court trial should proceed and conclude before this trial begins.’ The bankruptcy court agreed with Mr. Garcia that trial in the instant matter might res judicata the bankruptcy adversary proceedings. Mr. Garcia moved to continue the bankruptcy adversarial trial from May 31, 2017, to September 11, 2017, because the defendants in this action persuaded Presiding Judge Jackson to continue this trial to June 26, 2017, due to purported conflicts of interests. The bankruptcy court continued trial to account for the trial delay here. ' The audio file is Docket Entry No. 85 in Garcia v. Wilson, (N.D. Cal. Bk.) 15-03064. Plaintiff's counsel has paid for the file and will play it for the reviewing judge. OPPOSITION OF PLAINTIFF PHILLIP GARCIA TO DEFENDANTS’ MOTION FOR A FURTHER TRIAL CONTINUANCE LeenD III. Defendants’ Prior Ex Parte Guardian ad Litem Application. On May 31, 2017, department 501 denied defendants’ ex parte application for appointment of a guardian ad litem. The application violated Local Rules 14.14(1) because it did not include “A capacity declaration executed by a physician who is familiar with the person with the disability.” The application was also deficient because it was presented to the incorrect department, was not made via the mandatory judicial council form, included no proposed guardian ad litem, and did include a proof of service showing personal service of the application. In the alternative, defendant sought to withdraw from the case. That relief was denied because defendant did not serve the application upon real party in interest Carrie Wilson. IV. The Carrier Has Denied Coverage on Plaintiff’s Claims. On November 11, 2016, insurance defense counsel from Murchison & Cumming emailed Plaintiff's counsel notification that there is no coverage of Plaintiff's claims. Exhibit H. APPLICABLE LAW I. Defendants have Failed to Show a Need for a Guardian Ad Litem. Under Cal. Civ. Code § 372(a)(1), The guardian or conservator of the estate or guardian ad litem so appearing for any minor, person who lacks legal capacity to make decisions, or person for whom a conservator has been appointed shall have power, with the approval of the court in which the action or proceeding is pending, to compromise the same, to agree to the order or judgment to be entered therein for or against the ward or conservatee, and to satisfy any judgment or order in favor of the ward or conservatee or release or discharge any claim of the ward or conservatee pursuant to that compromise. Here, there is no insurance coverage of Plaintiffs claims, so there is no possibility of any settlement. Plaintiff will not seek a stipulated judgment because Plaintiff has issue sanctions establishing liability. Further, Carrie Wilson does not appear to want substituted counsel. Defense counsel do not communicate directly with Ms. Carrie Wilson because Mr. Wilson refuses to participate in this case. OPPOSITION OF PLAINTIFF PHILLIP GARCIA TO DEFENDANTS’ MOTION FOR A FURTHER TRIAL CONTINUANCE -g-nD Ms. Wilson’s family members communicate with defense counsel.’ Ms. Wilson’s family members do not wish that a guardian ad litem be appointed or any conservatorship for Carrie Wilson. Defendants’ M&Ps in Support of Motion to Continue Trial, 9:11-14. Defendants’ motion seeks to circumvent these wishes, and exaggerates or fabricates Ms. Wilson’s cognitive disorder “dementia” in connection thereto. The evidence shows Ms. Wilson’s health is just as her treating physician reported in October 2016, according to the sworn statements of defense counsel Katelyn Knight: On October 14, 2016, I contacted Ms. Wilson's treating physician, Dr. Crystal Brown, by phone to determine the status of her condition and ability to sit for deposition. Dr. Brown indicated that Ms. Wilson has one of the worst cases of shingles she has ever seen, and that the viral infection would likely take six months to a year to resolve given Ms. Wilson's age. Although Ms. Wilson is able to travel short distances, sitting for even two hours would be extremely difficult, and Dr. Brown estimated that Ms. Wilson would only be able to be attentive and respond to questions for perhaps 15 minutes due to her ongoing pain, discomfort, fatigue, and medications. Dr. Brown indicated that Ms. Wilson's condition is expected to improve, however, as she recovers from hip surgery and shingles. (Emphasis added). Exhibit A. This sworn statements supports Ms. Wilson’s execution of discovery verification throughout this case, the last of which occurred in February 2016. Exhibit B. Contrary to defendants’ contention, the evidence suggests Ms. Wilson’s cognitive health is fine, and that she simply no longer desire to participate in this case. That is, of course, her right. If defendants’ counsel wishes to usurp the decision-making power of Ms. Wilson and her family, they must follow the law and present a sufficient guardian ad litem application. This has not been done. On May 31, 2017, department 501 denied defendants’ application for appointment of a guardian ad litem. The application violated Local Rules 14.14(1) because it did not include “A > “Defense counsel has been working closely with Ms. Wilson's family members, care givers and treating physicians to provide Plaintiff with discovery...” Exhibit I. OPPOSITION OF PLAINTIFF PHILLIP GARCIA TO DEFENDANTS’ MOTION FOR A FURTHER TRIAL CONTINUANCE -9-nD capacity declaration executed by a physician who is familiar with the person with the disability.”> We can reasonably deduce that Ms. Wilson’s treating physician simply does not agree with the assessment of defense counsel’s psychologist that Ms. Wilson meets the DMS criteria for dementia. Perhaps that is why the defendants have been unable to present the required treating physician declaration in support of a guardian ad litem application to the correct department. And although defendants’ motion purports an intent to make a subsequent guardian ad litem application if this Court jumps through Mr. Goodman’s hoops, no similar intent is described for the required “Retention of Litigation Counsel” Petition required under Local Rule 14.14()). And the Court must fulfill its role to ensure Ms. Wilson’s rights to control the litigation is not unduly usurped. Jn re A.U. (2006) 141 Cal App 4th 326, the appellate could held the trial court erred in appointing a guardian ad litem for a person with a history of mental illness without notice to the person, and without an inquiry into whether she understood the nature of the proceedings and could assist counsel in protecting her rights. Jn re A.U. (2006) 141 Cal.App. 4th 326, 338; Code Civ. Proc., § 372. Defendants do not suggest that they intend to bring Ms. Wilson before the court to make this determination. In sum, defendants presented a defective guardian ad litem application to the wrong department and without evidence of the disability from Ms. Wilson’s physician. It was denied, and no} subsequent application has presented to this department. Defendants have expressed a tentative intent to do so, but have not expressed an intent to make a “Retention of Litigation Counsel” Petition required under Local Rule 14.14(J). Ms. Wilson executed discovery verifications in 2016 and according to defense counsel’s swore statements on Ms. Wilson’s prognosis from her treating physician Dr. Crystal Brown, Ms. Wilson is “attentive and [able] to respond to questions” with frequent breaks as an accommodation for “ongoing pain, discomfort, fatigue, and medications” relating to a series of physical ailments. The evidence suggests defendants’ untimely attempt to make anew guardian ad litem is a thinly-veiled attempt by defense counsel to remedy their failure to secure * The application was also deficient because it was presented to the incorrect department, was not made via the mandatory judicial council form, included no proposed guardian ad litem, and did include a proof of service showing personal service of the application. OPPOSITION OF PLAINTIFF PHILLIP GARCIA TO DEFENDANTS’ MOTION FOR A FURTHER TRIAL CONTINUANCE - 10 -nD a conflict waiver at the outset of its representation of all defendants in this case. It does not appear a guardian ad litem in the best interests of, or desired by Carrie Wilson. Il. There is Not Good Cause to Continue Trial. Trial continuances are disfavored. Cal. Rule Ct., Rule 3.1332(b). To obtain a trial continuance, the moving party must make an affirmative showing of good cause. Cal. Rule Ct., Rule 3.1332(c). This Court’s Local Rules clearly state that: No continuance will be granted except for good cause shown, such as serious accident, illness or death, or unanticipated unavailability of parties or witnesses. Rule 6.0 B., Local Rules of Court. The basis of defendants’ 6" request to delay trial is that a two-fold conflict prevents Murchison & Cumming from representing Carrie Wilson. a. First Conflict Claim: Confidential Information. Because “Murchison &Cumming jointly represented all four Defendants from the inception off this case. In doing so, the attorneys handling the defense of this matter obtained extensive confidential information from each of the defendants.” Defendants’ M&Ps in Support of Motion to Continue Trial, 9:11-14, In support of this claim, defendants argue, Rule 3-310(e) of the Rules of Professional Conduct precludes defense counsel from any representation adverse to a former client where counsel has obtained confidential information by reason of the former employment. Under these circumstances, the conflict is not waivable. (Original emphasis). Defendants’ M&Ps in Support of Motion to Continue Trial, 9:8-11. Contrary to defendants’ contention, Rule 3-310(e) of the Rules of Professional Conduct expressly authorizes written waiver of any conflict created by obtaining confidential information: A member shall not, without the informed written consent of the client or former client, accept employment adverse to the client or former client where, by reason of the representation of the client or former client, the member has obtained confidential information material to the employment. And Rule 3-310(c) of the Rules of Professional Conduct specifically provides, OPPOSITION OF PLAINTIFF PHILLIP GARCIA TO DEFENDANTS’ MOTION FOR A FURTHER TRIAL CONTINUANCEnD A member shall not, without the informed written consent of each client: (1) Accept representation of more than one client in a matter in which the interests of the clients potentially conflict; or (2) Accept or continue representation of more than one client in a matter in which the interests of the clients actually conflict: Defendants’ claim its purported conflict is not waivable is 100% false. The real issue is that Murchison & Cumming undertook representation of all four (4) defendants in this action without first obtaining a conflict waiver—and ask this court to save it from this omission to Plaintiff's great prejudice. The relationship between defendants is agent-principle or employee-employer. There is absolutely nothing about the nature of the defendants’ relationship that made a potential conflict “unanticipated,” which Rule 6.0 B., Local Rules of Court requires in order to overcome the disfavored status of trial continuances. Defendants’ first claim of conflict also violates Rules of Court 3.1332(b), which requires a trial continuance motion to be made “as soon as reasonably practical once the necessity for the continuance is discovered.” Since Murchison & Cumming has represented all defendants since the outset of this case in April 2014, the purported conflict underlying this motion to continue trial has existed for years. Defendants’ motion does even attempt to satisfy Rules of Court 3.1332(b), by describing state when Murchison & Cumming “obtained extensive confidential information,” from which defendant, or articulate how acquisition of confidential information from one defendant compromises the interests and created a conflict with any other defendant. At the very least, this Court should conduct an in-camera review of any purported confidential information collected by Shawn Markham or Angelo Wilson, and assess Murchison & Cumming’s possession of the information upon Murchison & Cumming’s representation of Carrie Wilson. The declarations filed in support of the instant motion do not describe how any purported disclosure of client confidential information by one defendant impacts representation of the other defendants. b. Second Conflict Claim: Issue Sanction Order. The second basis of defendants’ 6" request to delay trial is that “The sanctions order against The WILSON FAMILY TRUST creates an actual conflict of interest between the parties and OPPOSITION OF PLAINTIFF PHILLIP GARCIA TO DEFENDANTS’ MOTION FOR A FURTHER TRIAL CONTINUANCE - 12 -precludes Murchison &Cumming, LLP's continued representation of any of the parties.” Defendants’ M&Ps in Support of Motion to Continue Trial, 8:28-9:2. Defendants’ motion does not explain why this “actual conflict” exists since — as of this writing - new counsel has been appointed for the other two (2) defendants: Mr. de la Pena for Shawn Markham; Mr. Matthew Mejia for Angelo Wilson]. If this conflict was truly a concern, why did defense counsel not properly move to withdraw as counsel for Carrie Wilson under Cal. Code Civ. Proc § 284 when the sanction order was entered on March 17, 2017—more than ten (10) weeks ago? Defendants filed an ex parte application to withdraw as an alternative form of relief —and did not even bother to serve Carrie Wilson, the real party in interest on the motion. Now, defendants’ counsel seeks a tremendously burdensome trial continuance to perform a “substitution” of counsel, which would shift the financial, evidential, and procedural burden upon Plaintiff, this Court’s trial calendar, and the trial calendar of federal bankruptcy court. The equities in this motion do not favor the defendants’ lack of diligence, or failure to adequately consider the rights of Carrie Wilson. CONCLUSION This Court should not disregard Judge Jackson’s April 12,2017, Order, establishing the timeline to address the purported conflicts defense counsel claims. For Plaintiff, the prejudice is not merely that he wishes to move on from this ordeal, which began in 2012; or that any further trial continuance will drastically increase litigation costs in this case. The prejudice defendants ignore is that Plaintiff will be forced to spend thousands of dollars to try the related cases in bankruptcy court in the Northern District of California, and will be deprived of the ability to bring a dispositive res judicata motion in federal court—the procedure specifically contemplated by the federal court in continuing trial to allow the instant matter to commence and conclude. If Mi At OPPOSITION OF PLAINTIFF PHILLIP GARCIA TO DEFENDANTS’ MOTION FOR A FURTHER TRIAL CONTINUANCE - 13 -nD The needs of the prospective new counsel for Carrie Wilson and prospective guardian ad litem do not override Judge Jackson’s April 12, 2017, Order, this Court’s trial calendar, the trial calendar of bankruptcy court, or the prejudice outlined above to Plaintiff. There is no good cause to continue trial. LAW OFFICES OF BENNY MARTIN By: Benny Martin Attomey for Plaintiff Garcia OPPOSITION OF PLAINTIFF PHILLIP GARCIA TO DEFENDANTS’ MOTION FOR A FURTHER TRIAL CONTINUANCE - 44 -EXHIBIT Ao ON Oo oOo kk WO ND = 10 Matthew K. Wisinski (SBN 195535) Dana L. Tom (SBN 263313) Katelyn M. Knight (SBN 264573) MURCHISON & CUMMING, LLP 275 Battery Street, Suite 850 San Francisco, California 94111 Telephone: (415) 524-4486 (415) 524-4313 Facsimile: (415) 391-2058 E-Mail: — mwisinski@murchisonlaw.com dtom@murchisonlaw.com kknight@murchisonlaw.com Attorneys for Defendants, CARRIE WILSON in her capacity as Trustee of the WILSON FAMILY TRUST and SHAWN MARKHAM SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO PHILLIP GARCIA, CASE NO. CGC-14-538560 Plaintiff, DECLARATION OF KATELYN M. KNIGHT IN SUPPORT OF OPPOSITION vs. TO MOTION FOR TRIAL PREFERENCE CARRIE WILSON, in her capacity as Date: October 28, 2016 trustee of THE WILSON FAMILY TRUST, Time: 9:00 a.m. SHAUN MARKHAM, ERIKA MARKHAM, Dept.: 206 and ANGELO WILSON, and DOES 1-20, Action Filed: April 10, 2014 Defendants. Trial Date: March 27, 2017 |, Katelyn M. Knight, declare and state: | am an attorney-at-law licensed to practice in the State of California and | am an associate with Murchison & Cumming LLP, counsel of record herein for Carrie Wilson in her capacity as Trustee of the Wilson Family Trust and Shawn Markham. | am one of the attorneys at our firm responsible for handling the defense of this matter on behalf of Carrie Wilson in her capacity as Trustee of the Wilson Family Trust and Shawn Markham, and, on this basis, and upon such other bases set forth below, | have personal knowledge of the 1 DECLARATION OF KATELYN M. KNIGHT IN SUPPORT OF OPPOSITION TO MOTION FOR TRIAL PREFERENCEo ON Oo oOo kk WO ND = 10 matters set forth in this Declaration, except where stated on information and belief, and could and would competently testify to them under oath if called as a witness. 1. On October 14, 2016, | contacted Ms. Wilson's treating physician, Dr. Crystal Brown, by phone to determine the status of her condition and ability to sit for deposition. Dr. Brown indicated that Ms. Wilson has one of the worst cases of shingles she has ever seen, and that the viral infection would likely take six months to a year to resolve given Ms. Wilson's age. Although Ms. Wilson is able to travel short distances, sitting for even two hours would be extremely difficult, and Dr. Brown estimated that Ms. Wilson would only be able to be attentive and respond to questions for perhaps 15 minutes due to her ongoing pain, discomfort, fatigue, and medications. Dr. Brown indicated that Ms. Wilson's condition is expected to improve, however, as she recovers from hip surgery and shingles. 2. On September 2, 2016, my office served sets of very specific special interrogatories, document requests, and requests for admission on Phillip Garcia along with Form Interrogatory No. 17.1 on behalf of Shawn Markham. No responses were received. My colleague Dana Tom sent a meet and confer e-mail and Plaintiff's counsel stated in response that he never received the discovery. Ms. Tom e-mailed copies of the discovery and requested responses by November 18, 2016. | was sent a copy of and reviewed each e-mail. | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 19th day of October, 2016, at San Francisco, California. Katelyn M. Knight 2 DECLARATION OF KATELYN M. KNIGHT IN SUPPORT OF OPPOSITION TO MOTION FOR TRIAL PREFERENCEEXHIBIT BoO NN ODO HM A wD NM =o bso es a ew ew ew Bw nt en S$ eat onsep @ ne 28s at VERIFICATION STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO | have read the foregoing SUPPLEMENTAL RESPONSES Of CARRIE WILSON IN HER CAPACITY AS TRUSTEE FOR THE WILSON FAMILY TRUST TO FORM Corer: SET ONE, AND SPECIAL INTERROGATORIES, SET ONE and now their contents. | am Trustee for Wilson Family Trust of The Wilson Family Trust, a party to this action, and am authorized to make this verification for and on its behalf, and | make this verification for that reason. These responses were assembled by our counsel of record and {am informed and believe that the responses are true and complete. Executed on 2-10 , 2016, at Lizella, Georgia. ! declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. poe Carrie Wilson « Print Name of Signator SignatureEXHIBIT CCase info https://webapps.sftc.org/ci/Caseinfo.dll?CaseNum=CGC145385608SessionID=ASECOSFED81434E246A2021A4CFEGD50972545A3, THE SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO: Case Number: CGC 14538560 Title: PHILLIP GARCIA VS. CARRIE WILSON, IN HER CAPACITCY AS TRUSTEE OF THE et al Cause of Action: WRONGFUL EVICTION Generated: 2017-06-23 6:15 pm Register of Actions Parties Attorneys Calendar Payments Documents NOTICE: DOCUMENTS ARE CURRENTLY UNAVAILABLE DUE TO 8 TRY AGAIN LATER. Please Note: The "View" document links on this web page are valid until 6:25:11 pm After that, please refresh your web browser. (by pressing Command +R for Mac, pressing FS for Windows or clicking the refresh button on your web browser) TEM MAINTENANCE, PLEASE Register of Actions Show ( All ¢ | entries Search: Date Proceedings Document Fee 2017-06-21 NOTICE OF ENTRY OF ORDER/NOTICE OF RULING FILED SHORTENING TIME RE: MOTION FOR TRIAL View CONTINUANCE (TRANSACTION ID # 60762466) FILED BY DEFENDANT CARRIE WILSON, IN HER CAPACITCY AS TRUSTEE OF THE WILSON FAMILY TRUST WILSON, ANGELO WILSON, CARRIE , INDIVIDUALLY 2017-06-21 ORDER SHORTENING TIME RE: MOTION FOR TRIAL CONTINUANCE (HEARING: TO BE SET FOR 06/26/17 AT View 9:30AM; OPP. DUE BY 9AM 06/23/17; REPLY WAIVED) 2017-08-21 DECLARATION OF JOSHUA S. GOODMAN IN SUPPORT OF EX PARTE APPLICATION (TRANSACTION 1D # View 60759544) FILED BY DEFENDANT WILSON, CARRIE , INDIVIDUALLY 2017-06-21 DECLARATION OF MICHAEL J. GOLDMAN IN SUPPORT OF EX PARTE APPLICATION (TRANSACTION ID # View 60759544) FILED BY DEFENDANT WILSON, CARRIE , INDIVIDUALLY 2017-08-21 DECLARATION OF MATTHEW K. WISINSKI IN SUPPORT OF EX PARTE APPLICATION (TRANSACTION ID # 60759544} FILED BY DEFENDANT WILSON, CARRIE , INDIVIDUALLY 2017-06-21 DECLARATION OF KATELYN M. KNIGHT IN SUPPORT OF EX PARTE APPLICATION FOR CONTINUANCE, OR IN View THE ALTERNATIVE FOR ORDER SHORTENING TIME (TRANSACTION ID # 60759544) FILED BY DEFENDANT WILSON, CARRIE , INDIVIDUALLY 2017-08-21 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PATE APPLICATION FOR TRIAL View CONTINUANCE, OR IN THE ALTERNATIVE FOR ORDER SHORTENING TIME (TRANSACTION ID # 60759544) FILED BY DEFENDANT WILSON, CARRIE , INDIVIDUALLY 2017-0621 EX PARTE APPLICATION FOR ORDER FOR TRIAL CONTINUANCE, OR IN THE ALTERNATIVE FOR ORDER SHORTENING TIME (TRANSACTION ID # 60759544) FILED BY DEFENDANT WILSON. CARRIE , INDIVIDUALLY. $60.00 2017-08-31 DECLARATION OF MATTHEW K, WISINSKI IN SUPPORT OF EX PARTE APPLICATION (TRANSACTION ID # View 60866259) FILED BY DEFENDANT CARRIE WILSON, IN HER CAPACITCY AS TRUSTEE OF THE WILSON FAMILY TRUST WILSON, ANGELO WILSON, CARRIE , INDIVIDUALLY 2017-05-31 DECLARATION OF KATELYN M, KNIGHT IN SUPPORT OF EX PARTE APPLICATION (TRANSACTION ID # 60666259) View FILED BY DEFENDANT CARRIE WILSON, IN HER CAPACITCY AS TRUSTEE OF THE WILSON FAMILY TRUST WILSON, ANGELO WILSON, CARRIE , INDIVIDUALLY 2017-05-31 EX PARTE APPLICATION FOR ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM FOR CARRIE WILSONORIN View $60.00 THE ALTERNATIVE TO WITHDRAW AS COUNSEL (TRANSACTION ID # 60666259) FILED BY DEFENDANT CARRIE WILSON, IN HER CAPACITCY AS TRUSTEE OF THE WILSON FAMILY TRUST WILSON, ANGELO WILSON, CARRIE , INDIVIDUALLY 6/23/17, 6:27 PM Page 1 of 22Case info 2017-05-31 2017-05-26 2017-05-12 2017-05-12 2017-05-12 2017-05-12 2017-05-11 2017-05-03 2017-04-12 2017-04-11 2017-04-11 2017-04-11 2017-04-11 2017-04-10 2017-04-10 Qni700s NOTICE OF EX PARTE APPLICATION AND APPLICATION FOR APPOINTMENT OF GUARDIAN AD LITEM FOR View CARRIE WILSON, OR IN THE ALTERNATIVE TO WITHDRAW AS COUNSEL (TRANSACTION ID # 60666259) FILED BY DEFENDANT CARRIE WILSON, IN HER CAPACITCY AS TRUSTEE OF THE WILSON FAMILY TRUST WILSON, ANGELO WILSON, CARRIE , INDIVIDUALLY ORDER DENYING PETITION A151176 DIV 4 View DEFENDANTS OBJECTION TO DECLARATION OF PLAINTIFF PHILLIP GARCIA RE: RECOVERING EXPENSES View (TRANSACTION ID # 60599481) FILED BY DEFENDANT CARRIE WILSON, IN HER CAPACITCY AS TRUSTEE OF THE WILSON FAMILY TRUST WILSON, ANGELO WILSON, CARRIE , INDIVIDUALLY PROOF OF SERVICE (DEFENDANT SHAWN MARKHAM'S OBJECTION TO PLAINTIFF PHILIP GARCIA'S. View DECLARATION RE RECOVERING EXPENSES; DECLARATION OF LORENA MATE! IN SUPPORT OF DEFENDANT SHAWN MARKHAM'S OBJECTION TO PLAINTIFF PHILIP GARCIA'S DECLARATION RE RECOVERING EXPENSES) (TRANSACTION ID # 69598348) DECLARATION OF LORENA MATE! IN SUPPORT OF DEFENDANT SHAWN MARKHAM'S OBJECTION TO PLAINTIFF View PHILIP GARCIA’S DECLARATION RE RECOVERING EXPENSES (TRANSACTION ID # 60598348) DEFENDANT SHAWN MARKHAM'S OBJECTION TO PLAINTIFF PHILIP GARCIA'S DECLARATION RE RECOVERING View EXPENSES (TRANSACTION ID # 60598348) DEFENDANT SHAWN MARKHAM'S OBJECTION TO PLAINTIFFS SECOND AMENDED NOTICE TO APPEAR ATTRIAL View REQUEST TO BRING DOCUMENTS AND THINGS TO TRIAL PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE 1987 (TRANSACTION ID # 60588022) DECLARATION OF PLAINTIFF PHILLIP GARCIA RE: RECOVERING EXPENSES PER THE COURTS APRIL 12, 2017 View ORDER (TRANSACTION ID # 60550650) FILED BY PLAINTIFF GARCIA, PHILLIP ENDAR SET FOR APR-12-2017 CONTINUED TO MASTER CALENDAR JURY ON JUN-26-20 9.30 AM IN DEPT 206. APPEARANCES BY BENJAMIN MARTIN, ESQ FOR PLAINTIFF: MATTHEW WINSINK|, ESO. FOR WILSON DEFENDANTS; GREGORY DE LA PENA, ESO. FOR DEFENDANT SHAWN MARKHAM. AFTER HEARING ORAL ARGUMENT ON THE ISSUE RE CONFLICTS, THE COURT FOUND Ga00 CAUSE TO CONTINUE THE TRIAL DATE. THE TRIAL DATE [S CONTINUED TO 06/26/17. PLAINTIFF'S COUNSEL TO FILE A DECLARATION BY 06/22/17 RE EXPENSES INCURRED UP TO TODAY, 04/12/17, WITH THE EXPECTATION THAT THE CASE WAS. GOING TO BE ASSIGNED OUT TO TRIAL ON 04/10/17, PARTIES WILL MEET & CONFER PRIOR TO THE TRIAL DATE IN AN EFFORT TO RESOLVE THE EXPENSE ISSUE, OTHERWISE THE COURT WILL ADDRESS THE MATTER AT TRIAL CALL ON 0626/17 IF ANY OTHER ADDITIONAL DEFENSE COUNSEL IS BROUGHT INTO THIS CASE COUNSEL SHALL BE READY TO PROCEED WITH TRIAL ON 06/26/17. JUDGE: TERI L. JACKSON, REPORTER: DONNA WILLIAMS-BLUM OF BAY AREA TRIAL REPORTERS, COR #11133 (415/602-6910) (208/TLJ) RESPONSE TO DEFENDANTS FIFTH REQUEST FOR A TRIAL CONTINUANCE (TRANSACTION ID # 60460276) View FILED BY PLAINTIFF GARCIA, PHILLIP DECLARATION OF MATTHEW K. WISINSKI IN SUPPORT OF DEFENDANTS CARRIE WILSON AND THE WILSON View FAMILY TRUSTS REQUEST FOR A TRIAL CONTINUANCE (TRANSACTION ID # 60457385) FILED BY DEFENDANT CARRIE WILSON, IN HER CAPACITCY AS TRUSTEE OF THE WILSON FAMILY TRUST WILSON, ANGELO BRIEF REGARDING CONFLICT ISSUES IN SUPPORT OF REQUEST FOR ATRIAL CONTINUANCE (TRANSACTION View ID # 60457385) FILED BY DEFENDANT CARRIE WILSON, IN HER CAPACITCY AS TRUSTEE OF THE WILSON FAMILY TRUST WILSON, ANGELO. BRIEF RE: CONFLICT OF INTEREST (TRANSACTION ID # 60456705) FILED BY DEFENDANT MARKHAM, SHAWN. View (ERRONEOUSLY SUED AS SERVED AS SHAUN MARKHAM) MASTER JURY CALENDAR SET FOR APR-10-2017 CONTINUED TO MASTER CALENDAR JURY (CONTINUED) ON APR-12-2017 AT 9:30 AM IN DEPT. 206. APPEARANCES AT TRIAL CALL BY BENJAMIN MARTIN, ESQ. FOR PLAINTIFF; MATTHEW WINSINKI, ESO. FOR WILSON DEFENDANTS; GREGORY DE LA PENA, ESQ. SUBSTITUTING IN TO REPRESENT DEFENDANT SHAWN MARKHAM; THE SUBSTITUTION OF ATTORNEY WAS SUBMITTED FOR FILING THIS MORNING, 04/10/17. THE COURT CONTINUED THE MATTER TO 04/12/17 FOR DEFENDANTS" COUNSEL TO ADDRESS THE ISSUE RE CONFLICTS. DECLARATION RE CONFLICT ISSUE DUE 04/11/17 BY NOON PLAINTIFF'S RESPONSE DUE 04/11/17 BY 4PM. ANY FILINGS NOT TO EXCEED FIVE PAGES. COURTESY COPIES TO BE PERSONALLY DELIVERED TO DEPT. 206. JUDGE: TERI L. JACKSON, MATTER NOT REPORTED (206/TLJ) SUBSTITUTION OF ATTORNEY, (TRANSACTION ID # 60449817): DELAPENA, GREGORY RAMON SUBSTITUTED. View FOR WINSINKI, MATTHEW K AS ATTORNEY FOR MARKHAM, SHAWN (ERRONEOUSLY SUED AS SERVED AS. SHAUN MARKHAM) ORDER DENYING THE PETITION FOR WRIT OF MANDATE ETAL: DISSOLVING THE STAY PREVIOUSLY ISSUED View https://webapps.sftc.org/ci/Caseinfo.dll?CaseNum=CGC145385608SessionID=ASECOSFED81434E246A2021A4CFEGD50972545A3, 6/23/17, 6:27 PM Page 2 of 22Case info 2017-04-03 2017-03-30 2017-03-30 2017-03-30 2017-03-30 2017-03-30 2017-03-27 2017-03-27 2017-03-27 2017-03-27 2017-03-24 2017-03-24 2017-03-23 2017-03-23 2017-03-28 2017-03-21 150864 DIV 1 NOTICE OF CHANGE OF ADDRESS (TRANSACTION ID # 60417888) FILED BY ATTORNEY MARTIN, BENJAMIN, View REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF OPPOSITION TO PLAINTIFF'S EX PARTE APPLICATION View (TRANSACTION ID # 60405423) FILED BY DEFENDANT CARRIE WILSON, IN HER CAPACITCY AS TRUSTEE OF THE WILSON FAMILY TRUST WILSON, ANGELO MARKHAM, SHAWN (ERRONEQUSLY SUED AS SERVED AS SHAUN MARKHAM) WILSON, CARRIE , INDIVIDUALLY OPPOSITION TO PLAINTIFF'S EX PARTE APPLICATION (TRANSACTION ID # 60405423) FILED BY DEFENDANT View CARRIE WILSON, IN HER CAPACITCY AS TRUSTEE OF THE WILSON FAMILY TRUST WILSON, ANGELO. MARKHAM, SHAWN (ERRONEOUSLY SUED AS SERVED AS SHAUN MARKHAM) WILSON, CARRIE , INDIVIDUALLY DECLARATION OF PLAINTIFF'S COUNSEL BENNY MARTIN IN SUPPORT OF EX PARTE APPLICATION TO View ADVANCE TRIAL CALL BASED ON THE COURT OF APPEAL'S ORDER GRANTING AN EXPEDITED BRIEFING SCHEDULE (TRANSACTION ID # 80404240) FILED BY PLAINTIFF GARCIA, PHILLIP MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION TO ADVANCE TRIAL View CALL BASED ON THE COURT OF APPEAL'S ORDER GRANTING AN EXPEDITED BRIEFING SCHEDULE (TRANSACTION ID # 60404240) FILED BY PLAINTIFF GARCIA, PHILLIP NOTICE OF EX PARTE APPLICATION AND EX PARTE APPLICATION TO ADVANCE TRIAL CALL BASED ON THE View COURT OF APPEAL'S ORDER GRANTING AN EXPEDITED BRIEFING SCHEDULE (TRANSACTION ID # 60404240) FILED BY PLAINTIFF GARCIA, PHILLIP DISCOVERY 302, PLAINTIFF PHILLIP GARCIA'S MOTION TO COMPEL RESPONSES TO DISCOVERY AND REQUESTS FOR MONETARY AND NONMONETARY SANCTIONS IS GRANTED IN PART AND DENIED IN PART. =302NPT ORDER ORDER ON PLAINTIFF'S MOTION TO COMPEL RESPONSES TO DISCOVERY AND REQUESTS FOR View SANCTIONS MASTER JURY CALENDAR SET FOR MAR-27-2017 CONTINUED TO MASTER CALENDAR JURY ON APR-10-2017 AT 9:30 AM IN DEPT, 206. BENJAMIN MARTIN APPEARING FOR PLAINTIFF, MATTHEW WINSINKI APPEARING FOR DEFENDANTS. THE COURT CONTINUED THE MATTER DUE TO THE GRANTING OF DEFENDANTS’ STAY FROM THE FIRST DISTRICT OF COURT OF APPEAL. JUDGE: TERI L. JACKSON; CLERK: R. VELUZ; MATTER NOT REPORTED. (206) ORDER FROM COURT OF APPEAL, PENDING FURTHER CONSIDERATION OF THE PETITION FOR WRIT OF View MANDATE AND REQUEST FOR IMMEDIATE STAY, PROCEEDINGS IN THIS MATTER ARE STAYED UNTIL FURTHER ORDER OF THIS COURT. A150864 #1 PROOF OF SERVICE (TRANSACTION ID # 60383393) FILED BY PLAINTIFF GARCIA, PHILLIP AS TO DEFENDANT View MARKHAM, SHAUN MARKHAM, ERIKA WILSON, ANGELO MARKHAM, SHAWN (ERRONEOUSLY SUED AS SERVED AS SHAUN MARKHAM) WILSON, CARRIE , INDIVIDUALLY DISMISSAL WITHOUT PREJUDICE OF 2ND AMENDED COMPLAINT PLAINTIFFS FIFTH CAUSE OF ACTION FOR View BREACH OF CONTRACT IN HIS SECOND AMENDED COMPLAINT AGAINST ALL DEFENDANT ONLY (TRANSACTION ID # 60383293) DECLARATION OF KATELYN M, KNIGHT IN SUPPORT OF EX PARTE APPLICATION FOR TRIAL CONTINUANCE AND View ORDER REOPENING DISCOVERY (TRANSACTION ID # 60377329) FILED BY DEFENDANT CARRIE WILSON, IN HER CAPACITCY AS TRUSTEE OF THE WILSON FAMILY TRUST WILSON, ANGELO MARKHAM, SHAWN (ERRONEOUSLY SUED AS SERVED AS SHAUN MARKHAM) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR TRIAL View CONTINUANCE AND ORDER REOPENING DISCOVERY (TRANSACTION ID # 60377329) FILED BY DEFENDANT CARRIE WILSON, IN HER CAPACITCY AS TRUSTEE OF THE WILSON FAMILY TRUST WILSON, ANGELO MARKHAM, SHAWN (ERRONEOUSLY SUED AS SERVED AS SHAUN MARKHAM) EX PARTE APPLICATION FOR CONTINUANCE AND ORDER REOPENING DISCOVERY (TRANSACTION ID # View 60377329) FILED BY DEFENDANT CARRIE WILSON, IN HER CAPACITCY AS TRUSTEE OF THE WILSON FAMILY TRUST WILSON, ANGELO MARKHAM, SHAWN (ERRONEOUSLY SUED AS SERVED AS SHAUN MARKHAM) MASTER MOTION CALENDAR ON MAR-21-2017 IN 206, DEFENDANTS ANGELO WILSON, CARRIE WILSON IN HER CAPACITY AS TRUSTEE OF THE WILSON FAMILY TRUST AND SHAWN MARKHAM'S MOTION TO CONTINUE TRIAL, BENJAMIN MARTIN APPEARING FOR PLAINTIFF, KATELYN KNIGHT APPEARING FOR DEFENDANTS, AFTER ARGUMENT, THE COURT DENIES DEFENDANTS’ MOTION TO CONTINUE TRIAL. THE COURT DENIES. https://webapps.sftc.org/ci/Caseinfo.dll?CaseNum=CGC145385608SessionID=ASECOSFED81434E246A2021A4CFEGD50972545A3, 6/23/17, 6:27 PM $80.00 Page 3 of 22Case info 2017-03-16 2017-03-16 2017-03-16 2017-03-15 2017-03-15 2017-03-14 2017-03-14 2017-03-13 2017-03-13 2017-03-10 2017-03-07 2017-03-07 2017-03-07 2017-03-03 2017-03-03 2017-03-03 2017-03-03 PLAINTIFF'S REQUEST FOR SANCTIONS. JUDGE: TERI L. JACKSON; CLERK: R. VELUZ; MATTER NOT REPORTED. (206) ORDER STIPULATION AND ORDER FOR MOTION TO BE HEARD BY A MEMBER OF THE CALIFORNIA BAR SERVING AS A TEMPORARY JUDGE. DISCOVERY, 302, PLAINTIFF PHILLIP GARCIA'S MOTION TO COMPEL RESPONSES TO DISCOVERY AND REQUESTS FOR MONETARY AND NONMONETARY SANCTIONS IS TAKEN UNDER SUBMISSION. JUDGE PRO TEM: DOUGLAS ROBBINS; CLERK: JOHNNY SENGMANY, NOT REPORTED =302/JPT. SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF PHILLIP GARCIAS MOTION TO COMPEL RESPONSES TO DISCOVERY AND REQUESTS FOR MONETARY AND NONMONETARY SANCTIONS (TRANSACTION ID # 60246561) FILED BY PLAINTIFF GARCIA, PHILLIP ANSWER TO 2ND AMENDED COMPLAINT (TRANSACTION ID # 60345269) FILED BY DEFENDANT WILSON, CARRIE INDIVIDUALLY MINI MINUTES FOR MAR-16-2017 09:00 AM FOR DEPT 302 DECLARATION OF MATTHEW WISINSKI IN SUPPORT OF MOTION FOR TRIAL CONTINUANCE (TRANSACTION 1D # 60338490) FILED BY DEFENDANT CARRIE WILSON, IN HER CAPACITCY AS TRUSTEE OF THE WILSON FAMILY TRUST WILSON, ANGELO MARKHAM, SHAWN (ERRONEOUSLY SUED AS SERVED AS SHAUN MARKHAM) REPLY IN SUPPORT OF MOTION FOR TRIAL CONTINUANCE (TRANSACTION ID # 60338490) FILED BY DEFENDANT CARRIE WILSON, IN HER CAPACITCY AS TRUSTEE OF THE WILSON FAMILY TRUST WILSON, ANGELO MARKHAM, SHAWN (ERRONEQUSLY SUED AS SERVED AS SHAUN MARKHAM) DISCOVERY 302, PLAINTIFF PHILLIP GARCIA PLAINTIFF'S MOTION TO COMPEL RESPONSES TO DISCOVERY AND REQUESTS FOR MONETARY AND NONMONETARY SANCTIONS IS CONTINUED TO MARCH 16, 2017 PER THE AGREEMENT OF THE PARTIES. JUDGE PRO TEM: AARON MINNIS; CLERK: JOHNNY SENGMANY; NOT REPORTED.=302\JPT MASTER CALENDAR MOTION ON MAR-14-2017 IN DEPT. 206, DEFENDANTS’ MOTION TO CONTINUE TRIAL CONTINUED FROM MAR-14-2017 TO MASTER CALENDAR MOTION AT MAR-21-2017, 9:30 AM IN DEPT. 206, ON THE COURT'S OWN MOTION. (208) MINI MINUTES FOR MAR-13-2017 09:00 AM FOR DEPT 302 PLAINTIFFS PHILLIP GARCIAS OBJECTIONS TO EVIDENCE SUBMITTED IN OPPOSITION TO PLAINTIFFS MOTION TO COMPEL RESPONSES TO DISCOVERY AND REQUESTS FOR MONETARY AND NONMONETARY SANC