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Matthew K. Wisinski (SBN 195535)
Katelyn M. Knight (SBN 264573) ELECTRONICALLY
MURCHISON & CUMMING, LLP FILED
275 Battery Street, Suite 850 Superior Court of Catifornia,
San Francisco, California 94111 County of San Francisco
Telephone: (415) 524-4300 06/21/2017
Facsimile: (415) 391-2058 a eeu
E-Mail: — mwisinski@murchisonlaw.com delet bier
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, DECLARATION OF KATELYN M.
KNIGHT IN SUPPORT OF EX PARTE
vs. APPLICATION FOR CONTINUANCE, OR
IN THE ALTERNATIVE FOR ORDER
CARRIE WILSON, in her capacity as SHORTENING TIME
trustee of THE WILSON FAMILY TRUST,
SHAUN MARKHAM, ERIKA MARKHAM, Date: June 21, 2017
and ANGELO WILSON, and DOES 1-20, Time: 11:00 a.m.
Dept.: 206
Defendants.
Action Filed: April 10, 2014
Trial Date: June 26, 2017
|, Katelyn M. Knight, declare and state:
lam 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
individual capacity and as Trustee of the Wilson Family Trust, and Angelo Wilson. | am one
of the attorneys at our firm responsible for handling the defense of this matter on behalf of
Carrie Wilson in her individual capacity and as Trustee of the Wilson Family Trust, and
Angelo Wilson, and, on this basis, and upon such other bases set forth below, | have
personal knowledge of the 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
ee 7 1
DECLARATION OF KATELYN M. KNIGHT IN SUPPORT OF EX PARTE
CONTINUANCE, OR IN THE ALTERNATIVE FOR ORDER SHORTENING TIME=
o on 8 oT Fk YO DN
10
as a witness.
1. Carrie Wilson is 85 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.
2. Carrie Wilson's health has deteriorated over the course of this action. . 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. Attached hereto as Exhibit A is a true and correct copy of the
declaration of Dr. Elizabeth Soety. Attached hereto as Exhibit B is a letter from Dr.
Elizabeth Soety regarding Carrie Wilson's condition.
3. Carrie Wilson appeared for her deposition on February 13, 2017 pursuant to a
prior Court order. 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, Plaintiffs counsel proceeded to question Ms. Wilson, who
continued to be unable to understand and respond to questions. During a break, defense
counsel Dana Tom conferred with Plaintiffs counsel by phone and requested that the
: 7 oO EEEEEEEE
DECLARATION OF KATELYN M. KNIGHT IN SUPPORT OF EX PARTE APPLICATION FOR
CONTINUANCE, OR IN THE ALTERNATIVE FOR ORDER SHORTENING TIMEo On OO aA FB O NH
yw RR NY KH KY NK NY WK BB B&B SB BP Ba ses se =a 2 a
ont Oo OG F&F WH &= OC © O@DN Da F WO DY |= CO
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. |
was in Ms. Tom's office during her meet and confer with Plaintiffs counsel and when she
put the objection on the record.
4. On March 17, 2017, the Court granted the motion in part and denied it in part.
A true and correct copy of the sanctions order is attached hereto as Exhibit C. At the time
the sanctions order was issued, trial in this matter was set for March 27, 2017. Defendant
filed a writ of mandate, which was denied on procedural grounds. Trial was reset to April
10, 2017 as a consequence of the writ.
5. 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.
6. On June 19, 2017, | sent an e-mail to all counsel giving notice of the relief
sought by this ex parte application and the date, time, location where it would be presented.
| declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Executed this 21% day of June, 2017, at San Francisco, California.
# , ’ a
Ott bere LU
Katelyn M. Knight 7
H aoe Pes
DECLARATION OF KATELYN M. KNIGHT IN SUPPORT OF EX PARTE APPLICATION FOR
CONTINUANCE, OR IN THE ALTERNATIVE FOR ORDER SHORTENING TIMEEXHIBIT AFelner
| SHAUN MARKHAM, ERIKA MARKHAM,
Marthew K. Wisinski (SBN 195535) |
Katelyn vi, iKaight (SBN 264573) |
MURCHISON & CUMMING, LLP }
1275 Battery Sueet, Suite 850 |
{San Francisco, California 94114 {
ee ». (448) 524-4300
Facsimile, (415) 391-2058
E-Maik — rwisinski@murchisoniaw.com
kknieni@murchisoniaw.com
for Dofendant |
“LO WILSON, CARRIE WILSON individually and in her
ac}
\rustee of THE WILSON FAMILY TE
and ANGELO WILSON, and POES 4-20,
Defendants,
as Trustee of the WILSON FAMILY |
1
|
PERIOR COURT OF THE STATE OF CALIFORNIA j
QUNTY OF SAN FRANCISCO i
pean CASE NO. CGC-14-838560 |
Plaintiff, DECLARATION GF ELIZABETH M. |
SOETY, PH.D.
vs.
Action Filed: April 10, 2014 |
CARRIE WILSON, livher Trial Date: june 25, 2017 |
i
|
|, otizabeth M. Sooly, Ph.D., declare as follows
20 i 1. Lam clinical psychologist with fit years of experience in the field. | have |
24 i personal knowledge of the facts set forth her in, which are known dy me to be true and |
22 t correct, and if called as a witness, } could and would competently testy thereto,
23 \ 2 t recently cornpieted a neurapsychological eveluation of Carrie Wilson, a pany
|
24 iia this action. As part of the evaluation, | interviewed Ms. Wilson and administered standard,
AMNART and RBANS tests to determine her verbal iq and cognitive abilities. Based on my |
exanunation and evaluation, Ms. Wilson has experienced significant cognitive declined ia |
Ine cognitive functioning, including memory, attention, and executive/salf-regulatory ability
and clearly moeis the criteria for Major Neurocognitive Disorder with Behavioral
DECLARATION O! HM Soery. PHDLDrsturbance Ms. Wiser has difficulties vith noth understanding and producing language,
affecting her ability fo commumcats. These moderate dailats 2 ither worsened by
\
stress, potentially leading to a lack of any communication trom Ms. Wilson,
3. it is my expert opinion that Ms. Wilson is unable to manage her financial
resources and is not competent to participate in legal proceedings.
6 (ueclare under penaity of perjury under the laws of the State of Georgia that the
foregoing Is true and correct.
3h Executed May //,. 2017, at Centerville, Georgia.
ere v - esa
~ “BEECARA TION OF ELIZABETH M. SOCTY, PH.D.EXHIBIT Baropsychalogical Testing and Counseling, 11
Elizabeth M. Soety, Ph.D.
102 Gunn Road
Centerville, GA 31028
(478) 953-0088
Tebraare 27, 20
Fo Wham It May Concern:
Per oy evaluation, Mrs, Wilson clearly met criteria for Major Neuracognitive Disorder with Rehavioral
Disturbance which means that she is suffering from dementix. This diagnosis is based on her sovere
disturhanoc in memory and language. She has difficulties with both undersianding language and
producing language. Stated in lay terms, this means her ability to communicate, understand, respond and
speak are al! effecied. Moreaver, these moderate deficits are further worsened by stress, potentialiv
leading to lack of communication.
It is also rmportant to note that she was not oricuted to place or time, making he
in legal proceedings. This was documented in the evaluation completed in January ¢
pelent to engage
this year,EXHIBIT Cs
a
SUPERIOR COURT OF THE STATE OF CALIFORNIA.
IN AND FOR THE COUNTY OF SAN FRANCISCO
| PHILLIP GARCIA, an individual, | Case No, CGC-14-538560
| Plaintiff, | DISCOVERY MOTION
v. {PROPOSED} ORDER ON
PLAINTIFF’S MOTION TO COMPEL
| CARRIB WILSON, an individual, and in her RESPONSES TO DISCOVERY AND
|| capacity as trustee of THE WILSON FAMILY | REQUES'TS FOR SANCTIONS
|| TRUST; SHAUN MARKHAM an individual; |
{| BROCA MARKHAM, an indjvidual; ANGELO | Date: March 16, 2017
WILSON, and individual; and DOES 1-20, | Time: 9:00 am.
Dept: 301
Defendants, Judge: B. Douglas Robbins (PT)
if Action Filed: April 10, 2014
Trial Date; March 27, 2017
i
|
1
Plaintiff Phillip Garele’s (“Garcia”) MOTION TO COMPEL RESPONSES TO
DISCOVERY AND REQUESTS FOR MONETARY AND NONMONETARY SANCTIONS came |
i
| before this Court upon a regularly noticed motion on March 16, 20!7 in Dept, 301 of the Superior
|
{| Court of San Francisco, Attorneys Benny Martin appeared for Garcia, Matthew Wisinski appeared |
| for Defendant Carrie Wilson in hor individual capacity and in her capacity as trustee of The Wilson
|
}
| o- sees
| ORDER RE MOTION FOR MONETARY AND NONMONRTARY SANCTIONS
| «le
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oe Ee tees
335 |i
|
Family Trust (collectively “Wilson”), The Parties stipulated to the authority of the Judge Pro Tem,
| Douglas Robbins.
Having read the moving papers, the opposing papers, and the reply papers, as well as having
{/ considered oral argument of counsel and the entire record of this case, the Court hereby FINDS AS
FOLLOWS:
6
| FINDINGS
7 |
| Issuc, At issue are three discovery events, First, Wilson failed to provide substantive
8
responses to Special Interrogatories, Set Four, offering only objections, Second, Wilson failed to
i
= failed to provide documents requested at that deposition,
1 i] Written Discovery. Garcia fails to move, nor notice a motion to compel the production of
is | documents or further responses to special interrogatories, As such this Court has no authority to
a { compel those remedies,
5 | Garcia does notice and does move for terminating and issue sanctions (declining to move for
ig | evidentiary sanctions). But except in extraordinary circumstances, not presented here, the Coutt is
Ww || without authority to issue those kinds of sanctions absent violation of a prior court order, See Biles v,
1g || Bexon Mobil Corp, 124 Cal. App. 4th 1315, 1327 (2004), The only orders offered by Garoia in
21 | deposition notice, And none of them compel Wilson to respond to Special Interrogatories Set Four,
22. || As such this Court is without authority to impose non-monetary sanctions as to those discovery
23 | /issues, And since Garcia declines to move for other relief—nor provide a code compliant separate
24 |) statement seeking other relief for that matter—the Court has no authority to grant any other remedy
25 | on these issues,
a6 || Deposition. Garcia moves for issue or terminating sanctions against Defendant as a
| provide responses of any kind at her lawfully noticed deposition of February 14, 2017. ‘Third Wilson
! i
19 || evidence are those issued by Judge Quidachay on February 8, 2016, February 9, 2016, and November,
|
|
1, 2016, None of these three court orders compel Wilson to produce documents in compliance with a
| consequence of het failing to appear and testify at her lawfully noticed deposition (declining to seek |7 il | evidentiary sanotions), Unlike the written discovery, Wilson was, in fact, compelled by court order to’
| appear at her deposition. See Order Denying Philip Garcia’s Motion for Trial Preference, at 1, Nov. Lu }
2016 (ordering “defendant Carrie Wilson’s deposition to be completed by February 14, 2017), Par
saree that Ms, Wilson appeared at her lawfully noticed deposition but failed to take the oath and did |
Snot respond to questions, The open question is why.
Garcia argues that Wilson refused to answer questions for tactical reasons, Wilson’s counsel |
‘argues that Ms, Wilson was unable to respond to deposition questions for mectical reasons, Wilson
offers letters from physicians in'support. The first is from Elizabeth Soety, a clinical psychologist
. '} who opines that Ms, Wilson suffers from “dementia,” The remaining letters are authored by Dr.
Crystal Brown who opines that Ms. Wilson suffers from a variety of physical ailments such as
7 I ostegarthritis, degenerative disc diseases, osteoporosis, and zoster, The Crystal Brown letiers do not
re | speak to mental capacity. The Soety letter is somewhat vague, failing to clearly state that Ms. Wilson |
- | is incompetent or incapable of testifying. More problematic, neither letter is signed under penalty of
as } perjury. Garcia timely objected to the letters based upon hearsay. Wilson’s counsel conceded at
16 i hearing the letters are hearsay. Accordingly, Garcia’s objection is SUSTAINED and the letters are
1 | atrtick as hearsay,
ae | “A teal court has broad discretion to impose discovery sanctions, but two facts are generally
19 | prerequisite to the imposition of nonmonetary sanctions . . , : (1) absent unusual circumstances, there
20 || must be a failure to comply with a court order, and (2) the failure must be willful.” Biles y. Exxon |
Mobil Corp., 124 Cal, App, 4th 1315, 1327 (2004),
|
| Here, we have a court order compelling Wilson’s appearance at deposition. She appeared but
23 |/ she did not testify, This failure to testify is sufficient to find violation of the order, Wilson argues,
24 || howover, that her disobedience of the otdei was not willful because she suffers from dementia which |
| i
25 || prevented her from testifying. But there is no admissible evidence of this. To the contrary Wilson has
26 | historically taken the position—in motion for trial preference for example—that she was well enough!
27 | to appear at trial, only getting healthier by the day, Other documentary evidence on the question has
a
3
ORDER RE MOTION FOR MONETARY AND NONMONETARY SANCTIONS
“3
: Se 87|
| |
} |
been struck as hearsay, Thus the Court is left with these basic facts, Wilson appeared, was asked
questions at deposition but she did not answer those questions. The Court is without evidence to
ay 4 1 . . ‘ Stat
| Presume anything more about Wilson’s health. These facis in conjunction with Wilson’s historical
failure to exeoute verifications in support of her discovery responses is sufficient to find willfulness.
Wilson argues that Garcia’s motion fails to comply with the Rules of Court for separate
|| statements, A Separate statement fs required under the rules for “Any motion involving the content of
: | a discovory request or the responses to such a request . . , [involving] issue or evidentiary sanctions,”
| Cal, R. Ct, 3.1345(a). But a “separate statement is not required when no tesponse has been provided
|
{
to the request for discovery.” Cal. R, Ct. 3.1345(b), Here Wilson provided no response to any
4 question at deposition, There is nothing to include in the separate statement. No separate statement is
a i required, |
i | Monetary Sanctions, Under the Discovery Act, “the court shall impose a monetary sanction ,
14 L.. against any patty, person, or attorney who unsuccessfully tonkes or opposes a motion to compel. .
15 ||: Unless it finds that the one subject to the sanction acted with substantial justification or that other
ig || circumstances make the imposition of the sanction unjust,” Cal, Civ. Proc, Code § 2030.290(c)
17 |} (lnterrogatoties); Cal. Cly, Proc, Code § 2031,300(c) (request for production of documents); Cal, Civ,
18 |) Proc, Code § 2025,480(j) (further responses during oral deposition), Here Garcia has prevailed on
1 ii certain parts of the Instant Motion while Wilson has prevailed on other parts, Rach Party prevailed in
20 | some sense, Imposition of monetary sanctions would be wnjust.
|
an i
22 ff ORDER
23 For the forgoing reasons the Court ORDERS as FOLLOWS:
24 1. The Motion is GRANTED IN PART AND DENIED IN PART, /
a5 2, Garcia’s motion for terminating sanctions is DENIED. i
26 | 3, Evidentiary sanctions are DENIED AS UNSQUGHTT,
an, 4. Motion to compel further responses to written discovery is DENIED AS UNSOUGHT.
28
| “ORDER RE MOTION FOR MONETARY AND NONMONETARY SANCTIONS
338 |5, Garcia’s motion for issue sanctions is GRANTED ag follows,
a. Attrlal, 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) os (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, Attrial on Garcla’s tenant harassment cause of action, it shall be taken as
established that Defendant, The Wilson Family Trust acted in bad faith in
aliempting 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,
¢, All other elements continue to be at issue,
6, All Parties’ requests for monetary sanctions are DENIED,
IT IS SO ORDERED,
Dated: March 17, 2017 “Tl bbs ae
be 7
Judge Pro “lem 3. Douglas Robbins,
THE SUP!JRIOR COURT OF CALIFORNIA
SAN FRANCISCO COUNTY
GROEN WE MOTION FOR MONETARY AND NONMONETARY SANCTIONS
«Be
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= oo Dann OW oO Fk WwW NS 10 Matthew K. Wisinski (SBN 195535) Katelyn M. Knight (SBN 264573) ELECTRONICALLY MURCHISON & CUMMING, LLP FILED 275 Battery Street, Suite 850 Superior Court of Catifornia, San Francisco, California 94111 County of San Francisco Telephone: (415) 524-4300 06/21/2017 Facsimile: (415) 391-2058 a eeu E-Mail: — mwisinski@murchisonlaw.com delet bier 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, DECLARATION OF KATELYN M. KNIGHT IN SUPPORT OF EX PARTE vs. APPLICATION FOR CONTINUANCE, OR IN THE ALTERNATIVE FOR ORDER CARRIE WILSON, in her capacity as SHORTENING TIME trustee of THE WILSON FAMILY TRUST, SHAUN MARKHAM, ERIKA MARKHAM, Date: June 21, 2017 and ANGELO WILSON, and DOES 1-20, Time: 11:00 a.m. Dept.: 206 Defendants. Action Filed: April 10, 2014 Trial Date: June 26, 2017 |, Katelyn M. Knight, declare and state: lam 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 individual capacity and as Trustee of the Wilson Family Trust, and Angelo Wilson. | am one of the attorneys at our firm responsible for handling the defense of this matter on behalf of Carrie Wilson in her individual capacity and as Trustee of the Wilson Family Trust, and Angelo Wilson, and, on this basis, and upon such other bases set forth below, | have personal knowledge of the 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 ee 7 1 DECLARATION OF KATELYN M. KNIGHT IN SUPPORT OF EX PARTE CONTINUANCE, OR IN THE ALTERNATIVE FOR ORDER SHORTENING TIME= o on 8 oT Fk YO DN 10 as a witness. 1. Carrie Wilson is 85 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. 2. Carrie Wilson's health has deteriorated over the course of this action. . 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. Attached hereto as Exhibit A is a true and correct copy of the declaration of Dr. Elizabeth Soety. Attached hereto as Exhibit B is a letter from Dr. Elizabeth Soety regarding Carrie Wilson's condition. 3. Carrie Wilson appeared for her deposition on February 13, 2017 pursuant to a prior Court order. 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, Plaintiffs counsel proceeded to question Ms. Wilson, who continued to be unable to understand and respond to questions. During a break, defense counsel Dana Tom conferred with Plaintiffs counsel by phone and requested that the : 7 oO EEEEEEEE DECLARATION OF KATELYN M. KNIGHT IN SUPPORT OF EX PARTE APPLICATION FOR CONTINUANCE, OR IN THE ALTERNATIVE FOR ORDER SHORTENING TIMEo On OO aA FB O NH yw RR NY KH KY NK NY WK BB B&B SB BP Ba ses se =a 2 a ont Oo OG F&F WH &= OC © O@DN Da F WO DY |= CO 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. | was in Ms. Tom's office during her meet and confer with Plaintiffs counsel and when she put the objection on the record. 4. On March 17, 2017, the Court granted the motion in part and denied it in part. A true and correct copy of the sanctions order is attached hereto as Exhibit C. At the time the sanctions order was issued, trial in this matter was set for March 27, 2017. Defendant filed a writ of mandate, which was denied on procedural grounds. Trial was reset to April 10, 2017 as a consequence of the writ. 5. 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. 6. On June 19, 2017, | sent an e-mail to all counsel giving notice of the relief sought by this ex parte application and the date, time, location where it would be presented. | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 21% day of June, 2017, at San Francisco, California. # , ’ a Ott bere LU Katelyn M. Knight 7 H aoe Pes DECLARATION OF KATELYN M. KNIGHT IN SUPPORT OF EX PARTE APPLICATION FOR CONTINUANCE, OR IN THE ALTERNATIVE FOR ORDER SHORTENING TIMEEXHIBIT AFelner | SHAUN MARKHAM, ERIKA MARKHAM, Marthew K. Wisinski (SBN 195535) | Katelyn vi, iKaight (SBN 264573) | MURCHISON & CUMMING, LLP } 1275 Battery Sueet, Suite 850 | {San Francisco, California 94114 { ee ». (448) 524-4300 Facsimile, (415) 391-2058 E-Maik — rwisinski@murchisoniaw.com kknieni@murchisoniaw.com for Dofendant | “LO WILSON, CARRIE WILSON individually and in her ac} \rustee of THE WILSON FAMILY TE and ANGELO WILSON, and POES 4-20, Defendants, as Trustee of the WILSON FAMILY | 1 | PERIOR COURT OF THE STATE OF CALIFORNIA j QUNTY OF SAN FRANCISCO i pean CASE NO. CGC-14-838560 | Plaintiff, DECLARATION GF ELIZABETH M. | SOETY, PH.D. vs. Action Filed: April 10, 2014 | CARRIE WILSON, livher Trial Date: june 25, 2017 | i | |, otizabeth M. Sooly, Ph.D., declare as follows 20 i 1. Lam clinical psychologist with fit years of experience in the field. | have | 24 i personal knowledge of the facts set forth her in, which are known dy me to be true and | 22 t correct, and if called as a witness, } could and would competently testy thereto, 23 \ 2 t recently cornpieted a neurapsychological eveluation of Carrie Wilson, a pany | 24 iia this action. As part of the evaluation, | interviewed Ms. Wilson and administered standard, AMNART and RBANS tests to determine her verbal iq and cognitive abilities. Based on my | exanunation and evaluation, Ms. Wilson has experienced significant cognitive declined ia | Ine cognitive functioning, including memory, attention, and executive/salf-regulatory ability and clearly moeis the criteria for Major Neurocognitive Disorder with Behavioral DECLARATION O! HM Soery. PHDLDrsturbance Ms. Wiser has difficulties vith noth understanding and producing language, affecting her ability fo commumcats. These moderate dailats 2 ither worsened by \ stress, potentially leading to a lack of any communication trom Ms. Wilson, 3. it is my expert opinion that Ms. Wilson is unable to manage her financial resources and is not competent to participate in legal proceedings. 6 (ueclare under penaity of perjury under the laws of the State of Georgia that the foregoing Is true and correct. 3h Executed May //,. 2017, at Centerville, Georgia. ere v - esa ~ “BEECARA TION OF ELIZABETH M. SOCTY, PH.D.EXHIBIT Baropsychalogical Testing and Counseling, 11 Elizabeth M. Soety, Ph.D. 102 Gunn Road Centerville, GA 31028 (478) 953-0088 Tebraare 27, 20 Fo Wham It May Concern: Per oy evaluation, Mrs, Wilson clearly met criteria for Major Neuracognitive Disorder with Rehavioral Disturbance which means that she is suffering from dementix. This diagnosis is based on her sovere disturhanoc in memory and language. She has difficulties with both undersianding language and producing language. Stated in lay terms, this means her ability to communicate, understand, respond and speak are al! effecied. Moreaver, these moderate deficits are further worsened by stress, potentialiv leading to lack of communication. It is also rmportant to note that she was not oricuted to place or time, making he in legal proceedings. This was documented in the evaluation completed in January ¢ pelent to engage this year,EXHIBIT Cs a SUPERIOR COURT OF THE STATE OF CALIFORNIA. IN AND FOR THE COUNTY OF SAN FRANCISCO | PHILLIP GARCIA, an individual, | Case No, CGC-14-538560 | Plaintiff, | DISCOVERY MOTION v. {PROPOSED} ORDER ON PLAINTIFF’S MOTION TO COMPEL | CARRIB WILSON, an individual, and in her RESPONSES TO DISCOVERY AND || capacity as trustee of THE WILSON FAMILY | REQUES'TS FOR SANCTIONS || TRUST; SHAUN MARKHAM an individual; | {| BROCA MARKHAM, an indjvidual; ANGELO | Date: March 16, 2017 WILSON, and individual; and DOES 1-20, | Time: 9:00 am. Dept: 301 Defendants, Judge: B. Douglas Robbins (PT) if Action Filed: April 10, 2014 Trial Date; March 27, 2017 i | 1 Plaintiff Phillip Garele’s (“Garcia”) MOTION TO COMPEL RESPONSES TO DISCOVERY AND REQUESTS FOR MONETARY AND NONMONETARY SANCTIONS came | i | before this Court upon a regularly noticed motion on March 16, 20!7 in Dept, 301 of the Superior | {| Court of San Francisco, Attorneys Benny Martin appeared for Garcia, Matthew Wisinski appeared | | for Defendant Carrie Wilson in hor individual capacity and in her capacity as trustee of The Wilson | } | o- sees | ORDER RE MOTION FOR MONETARY AND NONMONRTARY SANCTIONS | «le | oe Ee tees 335 |i | Family Trust (collectively “Wilson”), The Parties stipulated to the authority of the Judge Pro Tem, | Douglas Robbins. Having read the moving papers, the opposing papers, and the reply papers, as well as having {/ considered oral argument of counsel and the entire record of this case, the Court hereby FINDS AS FOLLOWS: 6 | FINDINGS 7 | | Issuc, At issue are three discovery events, First, Wilson failed to provide substantive 8 responses to Special Interrogatories, Set Four, offering only objections, Second, Wilson failed to i = failed to provide documents requested at that deposition, 1 i] Written Discovery. Garcia fails to move, nor notice a motion to compel the production of is | documents or further responses to special interrogatories, As such this Court has no authority to a { compel those remedies, 5 | Garcia does notice and does move for terminating and issue sanctions (declining to move for ig | evidentiary sanctions). But except in extraordinary circumstances, not presented here, the Coutt is Ww || without authority to issue those kinds of sanctions absent violation of a prior court order, See Biles v, 1g || Bexon Mobil Corp, 124 Cal. App. 4th 1315, 1327 (2004), The only orders offered by Garoia in 21 | deposition notice, And none of them compel Wilson to respond to Special Interrogatories Set Four, 22. || As such this Court is without authority to impose non-monetary sanctions as to those discovery 23 | /issues, And since Garcia declines to move for other relief—nor provide a code compliant separate 24 |) statement seeking other relief for that matter—the Court has no authority to grant any other remedy 25 | on these issues, a6 || Deposition. Garcia moves for issue or terminating sanctions against Defendant as a | provide responses of any kind at her lawfully noticed deposition of February 14, 2017. ‘Third Wilson ! i 19 || evidence are those issued by Judge Quidachay on February 8, 2016, February 9, 2016, and November, | | 1, 2016, None of these three court orders compel Wilson to produce documents in compliance with a | consequence of het failing to appear and testify at her lawfully noticed deposition (declining to seek |7 il | evidentiary sanotions), Unlike the written discovery, Wilson was, in fact, compelled by court order to’ | appear at her deposition. See Order Denying Philip Garcia’s Motion for Trial Preference, at 1, Nov. Lu } 2016 (ordering “defendant Carrie Wilson’s deposition to be completed by February 14, 2017), Par saree that Ms, Wilson appeared at her lawfully noticed deposition but failed to take the oath and did | Snot respond to questions, The open question is why. Garcia argues that Wilson refused to answer questions for tactical reasons, Wilson’s counsel | ‘argues that Ms, Wilson was unable to respond to deposition questions for mectical reasons, Wilson offers letters from physicians in'support. The first is from Elizabeth Soety, a clinical psychologist . '} who opines that Ms, Wilson suffers from “dementia,” The remaining letters are authored by Dr. Crystal Brown who opines that Ms. Wilson suffers from a variety of physical ailments such as 7 I ostegarthritis, degenerative disc diseases, osteoporosis, and zoster, The Crystal Brown letiers do not re | speak to mental capacity. The Soety letter is somewhat vague, failing to clearly state that Ms. Wilson | - | is incompetent or incapable of testifying. More problematic, neither letter is signed under penalty of as } perjury. Garcia timely objected to the letters based upon hearsay. Wilson’s counsel conceded at 16 i hearing the letters are hearsay. Accordingly, Garcia’s objection is SUSTAINED and the letters are 1 | atrtick as hearsay, ae | “A teal court has broad discretion to impose discovery sanctions, but two facts are generally 19 | prerequisite to the imposition of nonmonetary sanctions . . , : (1) absent unusual circumstances, there 20 || must be a failure to comply with a court order, and (2) the failure must be willful.” Biles y. Exxon | Mobil Corp., 124 Cal, App, 4th 1315, 1327 (2004), | | Here, we have a court order compelling Wilson’s appearance at deposition. She appeared but 23 |/ she did not testify, This failure to testify is sufficient to find violation of the order, Wilson argues, 24 || howover, that her disobedience of the otdei was not willful because she suffers from dementia which | | i 25 || prevented her from testifying. But there is no admissible evidence of this. To the contrary Wilson has 26 | historically taken the position—in motion for trial preference for example—that she was well enough! 27 | to appear at trial, only getting healthier by the day, Other documentary evidence on the question has a 3 ORDER RE MOTION FOR MONETARY AND NONMONETARY SANCTIONS “3 : Se 87| | | } | been struck as hearsay, Thus the Court is left with these basic facts, Wilson appeared, was asked questions at deposition but she did not answer those questions. The Court is without evidence to ay 4 1 . . ‘ Stat | Presume anything more about Wilson’s health. These facis in conjunction with Wilson’s historical failure to exeoute verifications in support of her discovery responses is sufficient to find willfulness. Wilson argues that Garcia’s motion fails to comply with the Rules of Court for separate || statements, A Separate statement fs required under the rules for “Any motion involving the content of : | a discovory request or the responses to such a request . . , [involving] issue or evidentiary sanctions,” | Cal, R. Ct, 3.1345(a). But a “separate statement is not required when no tesponse has been provided | { to the request for discovery.” Cal. R, Ct. 3.1345(b), Here Wilson provided no response to any 4 question at deposition, There is nothing to include in the separate statement. No separate statement is a i required, | i | Monetary Sanctions, Under the Discovery Act, “the court shall impose a monetary sanction , 14 L.. against any patty, person, or attorney who unsuccessfully tonkes or opposes a motion to compel. . 15 ||: Unless it finds that the one subject to the sanction acted with substantial justification or that other ig || circumstances make the imposition of the sanction unjust,” Cal, Civ. Proc, Code § 2030.290(c) 17 |} (lnterrogatoties); Cal. Cly, Proc, Code § 2031,300(c) (request for production of documents); Cal, Civ, 18 |) Proc, Code § 2025,480(j) (further responses during oral deposition), Here Garcia has prevailed on 1 ii certain parts of the Instant Motion while Wilson has prevailed on other parts, Rach Party prevailed in 20 | some sense, Imposition of monetary sanctions would be wnjust. | an i 22 ff ORDER 23 For the forgoing reasons the Court ORDERS as FOLLOWS: 24 1. The Motion is GRANTED IN PART AND DENIED IN PART, / a5 2, Garcia’s motion for terminating sanctions is DENIED. i 26 | 3, Evidentiary sanctions are DENIED AS UNSQUGHTT, an, 4. Motion to compel further responses to written discovery is DENIED AS UNSOUGHT. 28 | “ORDER RE MOTION FOR MONETARY AND NONMONETARY SANCTIONS 338 |5, Garcia’s motion for issue sanctions is GRANTED ag follows, a. Attrlal, 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) os (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, Attrial on Garcla’s tenant harassment cause of action, it shall be taken as established that Defendant, The Wilson Family Trust acted in bad faith in aliempting 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, ¢, All other elements continue to be at issue, 6, All Parties’ requests for monetary sanctions are DENIED, IT IS SO ORDERED, Dated: March 17, 2017 “Tl bbs ae be 7 Judge Pro “lem 3. Douglas Robbins, THE SUP!JRIOR COURT OF CALIFORNIA SAN FRANCISCO COUNTY GROEN WE MOTION FOR MONETARY AND NONMONETARY SANCTIONS «Be