Preview
Matthew K. Wisinski (SBN 195535) ELECTRONICALLY
Katelyn M. Knight (SBN 264573)
MURCHISON & CUMMING, LLP 7 ¥ i aa ,
275 Battery Street Suite 850 County of San Francisco,
San Francisco, California 94111
Telephone: (415) 524-4300 06/21/2017
Facsimile: (415) 391-2058 BY: ANNA TORRES
E-Mail: — mwisinski@murchisonlaw.com Deputy Clerk
kknight@murchisonlaw.com
Attorneys for Defendants
ANGELO WILSON, CARRIE WILSON individually and in her
capacity as Trustee of the WILSON FAMILY
TRUST
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
PHILLIP GARCIA, CASE NO. CGC-14-538560
Plaintiff, MEMORANDUM OF POINTS &
AUTHORITIES IN SUPPORT OF EX
vs. PARTE APPLICATION FOR TRIAL
CONTINUANCE, OR IN THE
CARRIE WILSON, in her capacity as ALTERNATIVE FOR ORDER
trustee of THE WILSON FAMILY TRUST, | SHORTENING TIME
SHAUN MARKHAM, ERIKA MARKHAM,
and ANGELO WILSON, and DOES 1-20, Date: June 21, 2017
Time: 11:00 a.m.
Defendants. Dept.: 206
Action Filed: April 10, 2014
Trial Date: June 26, 2017
I.
INTRODUCTION
Defendants’ seek a brief continuance of trial to August 7, 2017, to allow appointment
of a guardian ad litem to act on CARRIE WILSON's behalf and for substitution of counsel.
From the inception of this case until the end of March, all of the defendants were
represented by Murchison & Cumming, LLP. On March 17, 2017, the Court granted a
discovery motion by the Plaintiff and imposed issue sanctions against the WILSON FAMILY
TRUST only, establishing that the Trust wrongfully sought to recover Plaintiffs rental unit in
1 SE
MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR TRIAL
CONTINUANCE, OR IN THE ALTERNATIVE FOR ORDER SHORTENING TIME=
o non OO oO F&F WO ND
10
bad faith and in violation of San Francisco Administrative Code § 37.9. The sanctions
order created a conflict of interest among the Defendants, which precluded Murchison &
Cumming from continuing its representation of any of the defendants absent conflict
waivers from all defendants. This Court previously found that an actual conflict existed
regarding Murchison & Cummings’ representation of the defendants.
New counsel was substituted for Defendant SHAWN MARKHAM, and new counsel
has been retained and will be formally substituted for ANGELO WILSON shortly. This
leaves Murchison & Cumming with the representation of CARRIE WILSON in her individual
capacity, and CARRIE WILSON as Trustee of the WILSON FAMILY TRUST. However,
substitution of new counsel for CARRIE WILSON has been impossible due to her condition.
CARRIE WILSON is 87 years old. Both her physical and mental health have
declined significantly over the course of this action, and recent neuropsychological testing
has revealed that she now lacks capacity to make legal decisions. (Knight Decl., Ex. A.)
The substitution of counsel requires written consent of the client. See Code Civ. Proc. §
284(1). Given Ms. Wilson's lack of capacity, she cannot consent to appointment of new
counsel. CARRIE WILSON's family has no plans to seek a conservatorship and there are
no family members willing to act as guardian ad litem.
Defense counsel has been actively seeking out individuals who might be willing to
serve as a guardian ad litem—contacting CARRIE WILSON'S family members, looking into
their personal network, contacting independent fiduciaries, calling individuals who have
served as guardian ad litems in the past, contacting the Alzheimer's Association and the
State Bar of California, and seeking an appointment from the Court. None were able to
provide assistance. Murchison & Cumming also sought leave of the Court to withdraw
based upon the conflict, but leave was denied.
Efforts to locate a guardian ad litem for CARRIE WILSON continued, and Joshua S.
Goodman of Goodman Neuman Hamilton LLP is willing to undertake representation of
CARRIE WILSON. Mr. Goodman contacted an attorney in Altanta, Georgia, Michael J.
Goldman, who is willing to act as guardian ad litem. However, Mr. Goldman cannot
__2 Sl ee
MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR TRIAL
CONTINUANCE, OR IN THE ALTERNATIVE FOR ORDER SHORTENING TIMEo ON OW oO F&F WO DN =
10
substitute his judgment for CARRIE WILSON's without first having an opportunity to meet
with Ms. Wilson to ascertain her condition and determine her best interests, and Mr.
Goodman cannot take on the representation unless a guardian ad litem is appointed.
Defendants seek a continuance to August 7, 2017, allow for appointment of a guardian ad
litem and substitution of counsel.
Defendants will pay reasonable costs incurred by Plaintiff as a consequence of the
continuance.
.
BACKGROUND
A. Factual and Procedural Background
This is a landlord-tenant and invasion of privacy case arising from PHILIP GARCIA's
tenancy at 1665 Hayes Street in San Francisco, California. Plaintiff initiated this action on
April 10, 2014 by filing a Complaint for damages against SHAWN MARKHAM, Erica
Markham', ANGELO WILSON, and CARRIE WILSON as Trustee of the WILSON FAMILY
TRUST. The Complaint has been amended twice to allege new facts and causes of action.
The Second Amended Complaint was filed January 14, 2016. The Second Amended
Complaint alleges that Plaintiff's noise complaints were not properly addressed during his
tenancy, that fellow tenant SHAWN MARKHAM invaded his privacy by making video and
audio recordings from outside his unit (allegedly at the direction of the Property Manager),
and that a judgment obtained against ANGELO WILSON in a prior action should be
enforced against the WILSON FAMILY TRUST.
At the time of Plaintiff's tenancy, the property was managed by ANGELO WILSON
and owned by Frankie Wilson and Carrie Wilson as Trustees of the WILSON FAMILY
TRUST. The WILSON FAMILY TRUST was established many years ago by Carrie's late
husband, Frankie Wilson. Because Mr. Wilson handled the couple's finances and matters
' Erica Markham was later dismissed as a Defendant.
3
MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR TRIAL
CONTINUANCE, OR IN THE ALTERNATIVE FOR ORDER SHORTENING TIMErelated to the TRUST, Ms. Wilson had relatively little knowledge of it and was been unable
to locate the TRUST documents. She believed that they may have been lost or misplaced
when the family moved to Georgia. Based on the absence of documentation for the Trust,
Plaintiff moved for leave to name CARRIE WILSON as a defendant in her personal
capacity, rather than as Trustee of the WILSON FAMILY TRUST. The Court granted
Plaintiff leave to file an amendment to the complaint naming CARRIE WILSON on February
8, 2017.
B. Carrie Wilson's Declining Health and Deposition
CARRIE WILSON is 87 years old and suffers from Osteoarthritis, Osteoporosis, and
Degenerative Disc Disease. Over the course of this action, Ms. Wilson underwent hip
surgery and surgery for a detached retina. While recovering from surgery, Ms. Wilson
developed a severe shingles infection. Ms. Wilson's primary care physician Dr. Crystal
Brown opined that Ms. Wilson would be unable to sit for deposition during her recovery
from the surgeries and provided multiple letters to that effect. While Ms. Wilson's shingles
infection was raging, Dr. Brown strongly advised against proceeding with a deposition as
sitting for even two hours would be extremely difficult, and she 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. The deposition was put off multiple
times to allow Ms. Wilson time to heal from her surgeries and for her condition to improve,
and in each instance was based on the medical opinion of her treating physician. (Knight
Decl., J 1.)
Unfortunately, CARRIE WILSON's condition deteriorated. Ms. Wilson was recently
evaluated by Elizabeth Soety, M.D., who is a clinical psychologist specializing in
neuropsychological testing and counseling. Dr. Soety concluded that Ms. Wilson is
suffering from dementia and lacks capacity to make legal decisions. Further, due to Ms.
Wilson's declining mental health, she has difficulty understanding and producing language,
which is exacerbated by stress and can result in her being unable to communicate at all.
Dr. Soety stated these findings in a declaration submitted herewith. (Knight Decl., Ex. A.)
6
CONTINUANCE, OR IN THE ALTERNATIVE FOR ORDER SHORTENING TIMEoo aonn OO HA FB Ww NH =
10
She also previously provided a letter stating the same. (Knight Decl., Ex. B.)
CARRIE WILSON appeared for her deposition on February 13, 2017 pursuant to a
prior Court order. Unfortunately, the effects of Ms. Wilson's condition were seen at her
deposition. The Court reporter attempted to swear Ms. Wilson in as a witness, however
Ms. Wilson was unable to understand and respond and so the oath was never
administered. Despite this, Plaintiff's counsel proceeded to question Ms. Wilson, who
continued to be unable to understand and respond to questions. During a break, defense
counsel conferred with Plaintiff's counsel and requested that the deposition be halted on
the basis that Ms. Wilson was not qualified to testify as a witness under Evidence Code §
701, which provides that a witness is disqualified from providing testimony under oath
where the witness is either incapable of expressing herself concerning the matter so as to
be understood, or incapable of understanding the duty of a witness to tell the truth.
Plaintiff's counsel refused to halt the deposition. Defense counsel's objection was put on
the record and Plaintiff's counsel continued his questioning without any response. (Knight
Decl., {| 3.)
Cc. Plaintiff's Motion for Sanctions and Resulting Conflict of Interest
Shortly after Ms. Wilson's deposition, Plaintiff filed a motion seeking issue sanctions,
evidentiary sanctions, monetary sanctions, and terminating sanctions. On March 17, 2017,
the Court granted the motion in part and denied it in part, and imposed issue sanctions as
follows:
a. At trial, on Garcia's wrongful eviction cause of action, it shall be taken
as established that Defendant, The Wilson Family Trust's motive for seeking
to recover possession of Garcia's rental unit was not one of the grounds
enumerated in San Francisco Administrative Code § 37.9(a) or (b). The issue
of Defendant, The Wilson Family Trust's, motive for seeking to recover
possession of Garcia's rental unit in knowing violation of San Francisco
Administrative Code § 37.9 shall be established.
b. At trial on Garcia's tenant harassment cause of action, it shall be taken
as established that Defendant, The Wilson Family Trust acted in bad faith in
attempting to coerce Garcia to vacate his rental housing unit. The issue of
Defendant The Wilson Family Trust's bad faith in knowing violation of San
Francisco Administrative Code § 37.9 shall be established.
CONTINUANCE, OR IN THE ALTERNATIVE FOR ORDER SHORTENING TIME=
o ON Oo aA FF WO DN
10
(Knight Decl., Ex. C.) At the time the sanctions order was issued, trial in this matter was
set for March 27, 2017. Defendant filed a petition for writ of mandate, which was denied on
procedural grounds. Trial was reset to April 10, 2017 as a consequence of the writ.
Defense counsel began evaluating the impact of the order on the case and its
ongoing representation of multiple defendants concurrently with preparation of the
writ. After further evaluation, counsel determined that the sanctions order creates a conflict
of interest between the Defendants, all of which have heretofore been represented by
Murchison & Cumming, LLP. In light of the conflict, new counsel was substituted for
Defendant SHAWN MARKHAM. Presiding Judge Teri Jackson found that a conflict existed
and continued trial to June 26, 2017.
The substitution left Murchison & Cumming, LLP representing ANGELO WILSON,
CARRIE WILSON in her capacity as Trustee of the WILSON FAMILY TRUST, and
CARRIE WILSON in her individual capacity. New counsel has been located for ANGELO
WILSON and a substitution of counsel will be filed with the Court as soon as the signed
copy is received from Mr. Wilson. (Wisinski Decl., ] 6.) Unfortunately, CARRIE WILSON's
condition prevents substitution of counsel on her behalf. Because Ms. Wilson's health has
declined to the point that she no longer has capacity to make legal decisions, defense
counsel cannot obtain a conflict waiver or consent to substitution of counsel from Ms.
Wilson.
D. Counsel's Efforts to Locate a Guardian ad Litem and New Counsel
Defense counsel reached out to Ms. Wilson's caretaking relatives regarding any
plans for a conservatorship or guardian ad litem appointment, however they have indicated
that there are no plans to seek appointment of a conservator and no members of the family
will serve as a guardian ad litem. (Wisinski Decl., {| 3.) Defense counsel contacted
numerous attorneys and independent fiduciaries to locate someone who could serve, but
all declined an appointment as Ms. Wilson’s guardian. Defense counsel then contacted the
Alzheimer’s Association to inquire whether it could provide the names of any individuals
who could act as guardian ad litem for Ms. Wilson, but the Alzheimer’s Association was not
Bee To
MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR TRIAL
CONTINUANCE, OR IN THE ALTERNATIVE FOR ORDER SHORTENING TIMEoon OO oO FF WO DY =
NNN NY NY NY NY DN HK & & B Ba BA 2B AB a a 3
aon Oo HT F&F WN B= OC G6 ON DOD oH Fk WO NY | 8
aware of any potential guardians ad litem. Counsel also contacted the State Bar of
California seeking assistance in locating a guardian for Ms. Wilson, but the State Bar was
unable to provide any assistance. (Wisinski Decl., {| 4.) On June 1, 2017, Defendant filed
an ex parte application for appointment of a guardian ad litem, or in the alternative to
withdraw as counsel so that new counsel could be appointed by Ms. Wilson's insurer. The
Court denied the application, indicating that a guardian ad litem could not be appointed
unless counsel had someone willing to serve as guardian ad litem. The Court further
indicated that it would not consider a motion to withdraw until after defense counsel
exhausted all efforts to have a guardian ad litem appointed. (Knight Decl., {| 5.)
Following the denial of Defendant's application for appointment, counsel continued
to search for someone who might serve as a guardian ad litem for CARRIE WILSON.
Attorney Joshua S. Goodman has agreed to undertake the representation of CARRIE
WILSON. Mr. Goodman contacted an attorney in Atlanta, Georgia, Michael J. Goldman,
who would be willing to act as Ms. Wilson's guardian ad litem. However, Mr. Goldman
cannot act as guardian and substitute his judgment for that of Ms. Wilson without first
meeting with Ms. Wilson in person to ascertain her level of impairment and determine her
preferences and what may be in her best interest in this action. This will require him to
travel to Roberta, Georgia, to meet with Ms. Wilson. Once that is done, he can be formally
appointed guardian ad litem for Ms. Wilson, and can execute a substitution of counsel on
Ms. Wilson's behalf. (Goldman Dectl., {[ 1-2.) Counsel requests a brief continuance of trial
to August 7, 2017, allow Mr. Goldman time to meet with Ms. Wilson, submit a petition for
his appointment as a guardian ad litem, and substitution of Joshua S. Goodman as
counsel, Counsel has obtained authority from Defendants' insurer to pay reasonable costs
incurred by Plaintiff as a consequence of the continuance. (Wisinski Decl., {] 7, 9.)
ul.
ARGUMENT
A. Legal Standard
A request for continuance of trial is addressed to the sound discretion of the Court
ce 7 eal
MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF EX PARTE APPI JON FOR TRIAL
CONTINUANCE, OR IN THE ALTERNATIVE FOR ORDER SHORTENING TIMEoon OO G FF &O NM
YN NY NY DY NY NY NY KN @ BB B BoB Ba Ba Bw Ba A B
on Oo GO F&F WO NH |= FG 6 ON DO aA F&F Ww NH |= CO
and may be granted upon a showing of good cause. California Rules of Court, Rule
3.1332; Pilot Rock Creek Canal Co. v. Chapman, 11 Cal. 161 (1858). The addition of a
new party who has not had an opportunity to complete discovery constitutes good cause for
acontinuance. California Rules of Court, Rule 3.1332(c)(5). Good cause may also be
found if there is a significant and unanticipated change in the status of the case as a result
of which the case is not ready for trial. California Rules of Court, Rule 3.1332(c)(7). Other
factors to be considered by the Court include the proximity of the trial date, length of
continuance requested, whether all parties have stipulated, whether granting the
continuance would be in the interests of justice, and any other fact or circumstance relevant
to the fair determination of the application. California Rules of Court, Rule 3.1332(d). Code
of Civil Procedure § 2024.050 provides that the Court may grant leave to reopen discovery
after setting a new trial date on the motion of any party.
B. Defense Counsel Cannot Ethically Continue Represent Carrie Wilson at Trial
The conflict created by the issue sanctions order against CARRIE WILSON in her
capacity as Trustee of the WILSON FAMILY TRUST precludes defense counsel from
continuing representation of CARRIE WILSON at trial. An attorney's duty of undivided
loyalty to his or her client is the very cornerstone of the attorney-client relationship. “When
a client engages the services of a lawyer in a given piece of business, he is entitled to feel
that, until that business is finally disposed of in some manner, he has the undivided loyalty
of the one upon whom he looks as his advocate and his champion.” Flatt v. Superior Court,
9 Cal.4th 275, 286 (1994). In accordance with this duty, an attorney may not "[a]ccept or
continue representation of more than one client in a matter in which the interests of the
clients actually conflict". California Rules of Professional Conduct, Rule 3-310(c).
The sanctions order against The WILSON FAMILY TRUST creates an actual conflict
of interest between the parties and precludes Murchison & Cumming, LLP's continued
representation of any of the parties. The issue sanctions imposed against The WILSON
FAMILY TRUST establishes that the Trust acted in bad faith in seeking to recover
possession of Plaintiff's rental unit and precludes any argument by the Trust that it sought
8 7 a
MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR TRIAL
CONTINUANCE, OR IN THE ALTERNATIVE FOR ORDER SHORTENING TIMEo on Oo OO FF WO NY
10
to recover possession of the unit for a lawful purpose—effectively precluding the Trust from
arguing against liability under San Francisco Administrative Code § 37.9.
The sanctions order also precludes defense counsel from representation adverse to
SHAWN MARKHAM and ANGELO WILSON. 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. Murchison & Cumming jointly
represented all four Defendants from the inception of this case. In doing so, the attorneys
handling the defense of this matter obtained extensive confidential information from each of
the defendants.
California Courts have acknowledged the difficulties inherent in addressing conflicts
of interest that arise during the course of representation. See, e.g. Flatt v. Superior Court,
9 Cal.4th 275, 298 (1994).("Although our Rules of Professional Conduct admonish
attorneys to avoid conflicts of interest, they provide little guidance in advising attorneys how
to disentangle themselves once a conflict has arisen.") However, it is clear that
withdrawal is mandatory where continued representation violates counsel's ethical duties
under the Rules of Professional Conduct, and that counsel has a duty to take reasonable
steps to mitigate prejudice arising from the withdrawal. See California Rules of
Professional Conduct, Rule 3-700(b)(2); Miller v. Metzinger, 91 Cal.App.3d 31, 42 (1979).
Because Ms. Wilson's family members have not sought a conservatorship and no family
members are willing to act as a guardian ad litem, defense counsel has diligently sought to
locate someone who could serve as guardian ad litem—who could then execute a
substitution of counsel on Ms. Wilson's behalf. Counsel has had great difficulty locating
anyone who would be willing to serve as a guardian ad litem under the circumstances in
this case, but now an attorney in Georgia has been located who would be willing to take on
that role, provided that he has a reasonable opportunity to meet with Ms. Wilson.
it
Wt
ao : 9 seh
MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR TRIAL
CONTINUANCE, OR IN THE ALTERNATIVE FOR ORDER SHORTENING TIMEono Nn OO GO fF WY NY =
10
Cc. A Brief Trial Continuance Should be Granted to Provide Time to Appoint a
Guardian ad Litem and Substitute new Counsel
Good cause exists to grant a brief continuance to August 7, 2017, to allow the
prospective guardian ad litem, Michael J. Goldman, time to meet with Ms. Wilson in
Georgia and to ascertain her condition and determine her preferences and what may be in
her best interest in this action so that he may substitute his judgment for hers. A petition for
his appointment will be filed and he can execute a substitution of counsel on Ms. Wilson's
behalf. Joshua S. Goodman of Goodman Neuman Hamilton LLP is willing to substitute as
counsel for CARRIE WILSON in her personal capacity and as Trustee of the WILSON
FAMILY TRUST.
Defendants’ insurer has agreed to pay reasonable costs incurred by Plaintiff's
counsel as a result of the continuance if it is granted, minimizing any prejudice.
In the alternative Defendants seek an order shortening time. Good cause exists as
trial in this matter is set for June 26, 2017, leaving insufficient time for a regularly-noticed
motion.
WV.
CONCLUSION
For the foregoing reasons, Defendants respectfully request that the Court grant a
brief continuance of trial to August 7, 2017.
DATED: June 20, 2017 MURCHISON & CUMMING, LLP
Matthew K. Wisinski i
Katelyn M. Knight A
Attorneys for Defendants ANGELO WILSON,
CARRIE WILSON individually and in her
capacity as Trustee of the WILSON FAMILY
TRUST
0
MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR TRIAL
CONTINUANCE, OR IN THE ALTERNATIVE FOR ORDER SHORTENING TIME
Preview
Matthew K. Wisinski (SBN 195535) ELECTRONICALLY Katelyn M. Knight (SBN 264573) MURCHISON & CUMMING, LLP 7 ¥ i aa , 275 Battery Street Suite 850 County of San Francisco, San Francisco, California 94111 Telephone: (415) 524-4300 06/21/2017 Facsimile: (415) 391-2058 BY: ANNA TORRES E-Mail: — mwisinski@murchisonlaw.com Deputy Clerk kknight@murchisonlaw.com Attorneys for Defendants ANGELO WILSON, CARRIE WILSON individually and in her capacity as Trustee of the WILSON FAMILY TRUST SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO PHILLIP GARCIA, CASE NO. CGC-14-538560 Plaintiff, MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF EX vs. PARTE APPLICATION FOR TRIAL CONTINUANCE, OR IN THE CARRIE WILSON, in her capacity as ALTERNATIVE FOR ORDER trustee of THE WILSON FAMILY TRUST, | SHORTENING TIME SHAUN MARKHAM, ERIKA MARKHAM, and ANGELO WILSON, and DOES 1-20, Date: June 21, 2017 Time: 11:00 a.m. Defendants. Dept.: 206 Action Filed: April 10, 2014 Trial Date: June 26, 2017 I. INTRODUCTION Defendants’ seek a brief continuance of trial to August 7, 2017, to allow appointment of a guardian ad litem to act on CARRIE WILSON's behalf and for substitution of counsel. From the inception of this case until the end of March, all of the defendants were represented by Murchison & Cumming, LLP. On March 17, 2017, the Court granted a discovery motion by the Plaintiff and imposed issue sanctions against the WILSON FAMILY TRUST only, establishing that the Trust wrongfully sought to recover Plaintiffs rental unit in 1 SE MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR TRIAL CONTINUANCE, OR IN THE ALTERNATIVE FOR ORDER SHORTENING TIME= o non OO oO F&F WO ND 10 bad faith and in violation of San Francisco Administrative Code § 37.9. The sanctions order created a conflict of interest among the Defendants, which precluded Murchison & Cumming from continuing its representation of any of the defendants absent conflict waivers from all defendants. This Court previously found that an actual conflict existed regarding Murchison & Cummings’ representation of the defendants. New counsel was substituted for Defendant SHAWN MARKHAM, and new counsel has been retained and will be formally substituted for ANGELO WILSON shortly. This leaves Murchison & Cumming with the representation of CARRIE WILSON in her individual capacity, and CARRIE WILSON as Trustee of the WILSON FAMILY TRUST. However, substitution of new counsel for CARRIE WILSON has been impossible due to her condition. CARRIE WILSON is 87 years old. Both her physical and mental health have declined significantly over the course of this action, and recent neuropsychological testing has revealed that she now lacks capacity to make legal decisions. (Knight Decl., Ex. A.) The substitution of counsel requires written consent of the client. See Code Civ. Proc. § 284(1). Given Ms. Wilson's lack of capacity, she cannot consent to appointment of new counsel. CARRIE WILSON's family has no plans to seek a conservatorship and there are no family members willing to act as guardian ad litem. Defense counsel has been actively seeking out individuals who might be willing to serve as a guardian ad litem—contacting CARRIE WILSON'S family members, looking into their personal network, contacting independent fiduciaries, calling individuals who have served as guardian ad litems in the past, contacting the Alzheimer's Association and the State Bar of California, and seeking an appointment from the Court. None were able to provide assistance. Murchison & Cumming also sought leave of the Court to withdraw based upon the conflict, but leave was denied. Efforts to locate a guardian ad litem for CARRIE WILSON continued, and Joshua S. Goodman of Goodman Neuman Hamilton LLP is willing to undertake representation of CARRIE WILSON. Mr. Goodman contacted an attorney in Altanta, Georgia, Michael J. Goldman, who is willing to act as guardian ad litem. However, Mr. Goldman cannot __2 Sl ee MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR TRIAL CONTINUANCE, OR IN THE ALTERNATIVE FOR ORDER SHORTENING TIMEo ON OW oO F&F WO DN = 10 substitute his judgment for CARRIE WILSON's without first having an opportunity to meet with Ms. Wilson to ascertain her condition and determine her best interests, and Mr. Goodman cannot take on the representation unless a guardian ad litem is appointed. Defendants seek a continuance to August 7, 2017, allow for appointment of a guardian ad litem and substitution of counsel. Defendants will pay reasonable costs incurred by Plaintiff as a consequence of the continuance. . BACKGROUND A. Factual and Procedural Background This is a landlord-tenant and invasion of privacy case arising from PHILIP GARCIA's tenancy at 1665 Hayes Street in San Francisco, California. Plaintiff initiated this action on April 10, 2014 by filing a Complaint for damages against SHAWN MARKHAM, Erica Markham', ANGELO WILSON, and CARRIE WILSON as Trustee of the WILSON FAMILY TRUST. The Complaint has been amended twice to allege new facts and causes of action. The Second Amended Complaint was filed January 14, 2016. The Second Amended Complaint alleges that Plaintiff's noise complaints were not properly addressed during his tenancy, that fellow tenant SHAWN MARKHAM invaded his privacy by making video and audio recordings from outside his unit (allegedly at the direction of the Property Manager), and that a judgment obtained against ANGELO WILSON in a prior action should be enforced against the WILSON FAMILY TRUST. At the time of Plaintiff's tenancy, the property was managed by ANGELO WILSON and owned by Frankie Wilson and Carrie Wilson as Trustees of the WILSON FAMILY TRUST. The WILSON FAMILY TRUST was established many years ago by Carrie's late husband, Frankie Wilson. Because Mr. Wilson handled the couple's finances and matters ' Erica Markham was later dismissed as a Defendant. 3 MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR TRIAL CONTINUANCE, OR IN THE ALTERNATIVE FOR ORDER SHORTENING TIMErelated to the TRUST, Ms. Wilson had relatively little knowledge of it and was been unable to locate the TRUST documents. She believed that they may have been lost or misplaced when the family moved to Georgia. Based on the absence of documentation for the Trust, Plaintiff moved for leave to name CARRIE WILSON as a defendant in her personal capacity, rather than as Trustee of the WILSON FAMILY TRUST. The Court granted Plaintiff leave to file an amendment to the complaint naming CARRIE WILSON on February 8, 2017. B. Carrie Wilson's Declining Health and Deposition CARRIE WILSON is 87 years old and suffers from Osteoarthritis, Osteoporosis, and Degenerative Disc Disease. Over the course of this action, Ms. Wilson underwent hip surgery and surgery for a detached retina. While recovering from surgery, Ms. Wilson developed a severe shingles infection. Ms. Wilson's primary care physician Dr. Crystal Brown opined that Ms. Wilson would be unable to sit for deposition during her recovery from the surgeries and provided multiple letters to that effect. While Ms. Wilson's shingles infection was raging, Dr. Brown strongly advised against proceeding with a deposition as sitting for even two hours would be extremely difficult, and she 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. The deposition was put off multiple times to allow Ms. Wilson time to heal from her surgeries and for her condition to improve, and in each instance was based on the medical opinion of her treating physician. (Knight Decl., J 1.) Unfortunately, CARRIE WILSON's condition deteriorated. Ms. Wilson was recently evaluated by Elizabeth Soety, M.D., who is a clinical psychologist specializing in neuropsychological testing and counseling. Dr. Soety concluded that Ms. Wilson is suffering from dementia and lacks capacity to make legal decisions. Further, due to Ms. Wilson's declining mental health, she has difficulty understanding and producing language, which is exacerbated by stress and can result in her being unable to communicate at all. Dr. Soety stated these findings in a declaration submitted herewith. (Knight Decl., Ex. A.) 6 CONTINUANCE, OR IN THE ALTERNATIVE FOR ORDER SHORTENING TIMEoo aonn OO HA FB Ww NH = 10 She also previously provided a letter stating the same. (Knight Decl., Ex. B.) CARRIE WILSON appeared for her deposition on February 13, 2017 pursuant to a prior Court order. Unfortunately, the effects of Ms. Wilson's condition were seen at her deposition. The Court reporter attempted to swear Ms. Wilson in as a witness, however Ms. Wilson was unable to understand and respond and so the oath was never administered. Despite this, Plaintiff's counsel proceeded to question Ms. Wilson, who continued to be unable to understand and respond to questions. During a break, defense counsel conferred with Plaintiff's counsel and requested that the deposition be halted on the basis that Ms. Wilson was not qualified to testify as a witness under Evidence Code § 701, which provides that a witness is disqualified from providing testimony under oath where the witness is either incapable of expressing herself concerning the matter so as to be understood, or incapable of understanding the duty of a witness to tell the truth. Plaintiff's counsel refused to halt the deposition. Defense counsel's objection was put on the record and Plaintiff's counsel continued his questioning without any response. (Knight Decl., {| 3.) Cc. Plaintiff's Motion for Sanctions and Resulting Conflict of Interest Shortly after Ms. Wilson's deposition, Plaintiff filed a motion seeking issue sanctions, evidentiary sanctions, monetary sanctions, and terminating sanctions. On March 17, 2017, the Court granted the motion in part and denied it in part, and imposed issue sanctions as follows: a. At trial, on Garcia's wrongful eviction cause of action, it shall be taken as established that Defendant, The Wilson Family Trust's motive for seeking to recover possession of Garcia's rental unit was not one of the grounds enumerated in San Francisco Administrative Code § 37.9(a) or (b). The issue of Defendant, The Wilson Family Trust's, motive for seeking to recover possession of Garcia's rental unit in knowing violation of San Francisco Administrative Code § 37.9 shall be established. b. At trial on Garcia's tenant harassment cause of action, it shall be taken as established that Defendant, The Wilson Family Trust acted in bad faith in attempting to coerce Garcia to vacate his rental housing unit. The issue of Defendant The Wilson Family Trust's bad faith in knowing violation of San Francisco Administrative Code § 37.9 shall be established. CONTINUANCE, OR IN THE ALTERNATIVE FOR ORDER SHORTENING TIME= o ON Oo aA FF WO DN 10 (Knight Decl., Ex. C.) At the time the sanctions order was issued, trial in this matter was set for March 27, 2017. Defendant filed a petition for writ of mandate, which was denied on procedural grounds. Trial was reset to April 10, 2017 as a consequence of the writ. Defense counsel began evaluating the impact of the order on the case and its ongoing representation of multiple defendants concurrently with preparation of the writ. After further evaluation, counsel determined that the sanctions order creates a conflict of interest between the Defendants, all of which have heretofore been represented by Murchison & Cumming, LLP. In light of the conflict, new counsel was substituted for Defendant SHAWN MARKHAM. Presiding Judge Teri Jackson found that a conflict existed and continued trial to June 26, 2017. The substitution left Murchison & Cumming, LLP representing ANGELO WILSON, CARRIE WILSON in her capacity as Trustee of the WILSON FAMILY TRUST, and CARRIE WILSON in her individual capacity. New counsel has been located for ANGELO WILSON and a substitution of counsel will be filed with the Court as soon as the signed copy is received from Mr. Wilson. (Wisinski Decl., ] 6.) Unfortunately, CARRIE WILSON's condition prevents substitution of counsel on her behalf. Because Ms. Wilson's health has declined to the point that she no longer has capacity to make legal decisions, defense counsel cannot obtain a conflict waiver or consent to substitution of counsel from Ms. Wilson. D. Counsel's Efforts to Locate a Guardian ad Litem and New Counsel Defense counsel reached out to Ms. Wilson's caretaking relatives regarding any plans for a conservatorship or guardian ad litem appointment, however they have indicated that there are no plans to seek appointment of a conservator and no members of the family will serve as a guardian ad litem. (Wisinski Decl., {| 3.) Defense counsel contacted numerous attorneys and independent fiduciaries to locate someone who could serve, but all declined an appointment as Ms. Wilson’s guardian. Defense counsel then contacted the Alzheimer’s Association to inquire whether it could provide the names of any individuals who could act as guardian ad litem for Ms. Wilson, but the Alzheimer’s Association was not Bee To MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR TRIAL CONTINUANCE, OR IN THE ALTERNATIVE FOR ORDER SHORTENING TIMEoon OO oO FF WO DY = NNN NY NY NY NY DN HK & & B Ba BA 2B AB a a 3 aon Oo HT F&F WN B= OC G6 ON DOD oH Fk WO NY | 8 aware of any potential guardians ad litem. Counsel also contacted the State Bar of California seeking assistance in locating a guardian for Ms. Wilson, but the State Bar was unable to provide any assistance. (Wisinski Decl., {| 4.) On June 1, 2017, Defendant filed an ex parte application for appointment of a guardian ad litem, or in the alternative to withdraw as counsel so that new counsel could be appointed by Ms. Wilson's insurer. The Court denied the application, indicating that a guardian ad litem could not be appointed unless counsel had someone willing to serve as guardian ad litem. The Court further indicated that it would not consider a motion to withdraw until after defense counsel exhausted all efforts to have a guardian ad litem appointed. (Knight Decl., {| 5.) Following the denial of Defendant's application for appointment, counsel continued to search for someone who might serve as a guardian ad litem for CARRIE WILSON. Attorney Joshua S. Goodman has agreed to undertake the representation of CARRIE WILSON. Mr. Goodman contacted an attorney in Atlanta, Georgia, Michael J. Goldman, who would be willing to act as Ms. Wilson's guardian ad litem. However, Mr. Goldman cannot act as guardian and substitute his judgment for that of Ms. Wilson without first meeting with Ms. Wilson in person to ascertain her level of impairment and determine her preferences and what may be in her best interest in this action. This will require him to travel to Roberta, Georgia, to meet with Ms. Wilson. Once that is done, he can be formally appointed guardian ad litem for Ms. Wilson, and can execute a substitution of counsel on Ms. Wilson's behalf. (Goldman Dectl., {[ 1-2.) Counsel requests a brief continuance of trial to August 7, 2017, allow Mr. Goldman time to meet with Ms. Wilson, submit a petition for his appointment as a guardian ad litem, and substitution of Joshua S. Goodman as counsel, Counsel has obtained authority from Defendants' insurer to pay reasonable costs incurred by Plaintiff as a consequence of the continuance. (Wisinski Decl., {] 7, 9.) ul. ARGUMENT A. Legal Standard A request for continuance of trial is addressed to the sound discretion of the Court ce 7 eal MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF EX PARTE APPI JON FOR TRIAL CONTINUANCE, OR IN THE ALTERNATIVE FOR ORDER SHORTENING TIMEoon OO G FF &O NM YN NY NY DY NY NY NY KN @ BB B BoB Ba Ba Bw Ba A B on Oo GO F&F WO NH |= FG 6 ON DO aA F&F Ww NH |= CO and may be granted upon a showing of good cause. California Rules of Court, Rule 3.1332; Pilot Rock Creek Canal Co. v. Chapman, 11 Cal. 161 (1858). The addition of a new party who has not had an opportunity to complete discovery constitutes good cause for acontinuance. California Rules of Court, Rule 3.1332(c)(5). Good cause may also be found if there is a significant and unanticipated change in the status of the case as a result of which the case is not ready for trial. California Rules of Court, Rule 3.1332(c)(7). Other factors to be considered by the Court include the proximity of the trial date, length of continuance requested, whether all parties have stipulated, whether granting the continuance would be in the interests of justice, and any other fact or circumstance relevant to the fair determination of the application. California Rules of Court, Rule 3.1332(d). Code of Civil Procedure § 2024.050 provides that the Court may grant leave to reopen discovery after setting a new trial date on the motion of any party. B. Defense Counsel Cannot Ethically Continue Represent Carrie Wilson at Trial The conflict created by the issue sanctions order against CARRIE WILSON in her capacity as Trustee of the WILSON FAMILY TRUST precludes defense counsel from continuing representation of CARRIE WILSON at trial. An attorney's duty of undivided loyalty to his or her client is the very cornerstone of the attorney-client relationship. “When a client engages the services of a lawyer in a given piece of business, he is entitled to feel that, until that business is finally disposed of in some manner, he has the undivided loyalty of the one upon whom he looks as his advocate and his champion.” Flatt v. Superior Court, 9 Cal.4th 275, 286 (1994). In accordance with this duty, an attorney may not "[a]ccept or continue representation of more than one client in a matter in which the interests of the clients actually conflict". California Rules of Professional Conduct, Rule 3-310(c). The sanctions order against The WILSON FAMILY TRUST creates an actual conflict of interest between the parties and precludes Murchison & Cumming, LLP's continued representation of any of the parties. The issue sanctions imposed against The WILSON FAMILY TRUST establishes that the Trust acted in bad faith in seeking to recover possession of Plaintiff's rental unit and precludes any argument by the Trust that it sought 8 7 a MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR TRIAL CONTINUANCE, OR IN THE ALTERNATIVE FOR ORDER SHORTENING TIMEo on Oo OO FF WO NY 10 to recover possession of the unit for a lawful purpose—effectively precluding the Trust from arguing against liability under San Francisco Administrative Code § 37.9. The sanctions order also precludes defense counsel from representation adverse to SHAWN MARKHAM and ANGELO WILSON. 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. Murchison & Cumming jointly represented all four Defendants from the inception of this case. In doing so, the attorneys handling the defense of this matter obtained extensive confidential information from each of the defendants. California Courts have acknowledged the difficulties inherent in addressing conflicts of interest that arise during the course of representation. See, e.g. Flatt v. Superior Court, 9 Cal.4th 275, 298 (1994).("Although our Rules of Professional Conduct admonish attorneys to avoid conflicts of interest, they provide little guidance in advising attorneys how to disentangle themselves once a conflict has arisen.") However, it is clear that withdrawal is mandatory where continued representation violates counsel's ethical duties under the Rules of Professional Conduct, and that counsel has a duty to take reasonable steps to mitigate prejudice arising from the withdrawal. See California Rules of Professional Conduct, Rule 3-700(b)(2); Miller v. Metzinger, 91 Cal.App.3d 31, 42 (1979). Because Ms. Wilson's family members have not sought a conservatorship and no family members are willing to act as a guardian ad litem, defense counsel has diligently sought to locate someone who could serve as guardian ad litem—who could then execute a substitution of counsel on Ms. Wilson's behalf. Counsel has had great difficulty locating anyone who would be willing to serve as a guardian ad litem under the circumstances in this case, but now an attorney in Georgia has been located who would be willing to take on that role, provided that he has a reasonable opportunity to meet with Ms. Wilson. it Wt ao : 9 seh MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR TRIAL CONTINUANCE, OR IN THE ALTERNATIVE FOR ORDER SHORTENING TIMEono Nn OO GO fF WY NY = 10 Cc. A Brief Trial Continuance Should be Granted to Provide Time to Appoint a Guardian ad Litem and Substitute new Counsel Good cause exists to grant a brief continuance to August 7, 2017, to allow the prospective guardian ad litem, Michael J. Goldman, time to meet with Ms. Wilson in Georgia and to ascertain her condition and determine her preferences and what may be in her best interest in this action so that he may substitute his judgment for hers. A petition for his appointment will be filed and he can execute a substitution of counsel on Ms. Wilson's behalf. Joshua S. Goodman of Goodman Neuman Hamilton LLP is willing to substitute as counsel for CARRIE WILSON in her personal capacity and as Trustee of the WILSON FAMILY TRUST. Defendants’ insurer has agreed to pay reasonable costs incurred by Plaintiff's counsel as a result of the continuance if it is granted, minimizing any prejudice. In the alternative Defendants seek an order shortening time. Good cause exists as trial in this matter is set for June 26, 2017, leaving insufficient time for a regularly-noticed motion. WV. CONCLUSION For the foregoing reasons, Defendants respectfully request that the Court grant a brief continuance of trial to August 7, 2017. DATED: June 20, 2017 MURCHISON & CUMMING, LLP Matthew K. Wisinski i Katelyn M. Knight A Attorneys for Defendants ANGELO WILSON, CARRIE WILSON individually and in her capacity as Trustee of the WILSON FAMILY TRUST 0 MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR TRIAL CONTINUANCE, OR IN THE ALTERNATIVE FOR ORDER SHORTENING TIME