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LAW OFFICES OF BENNY MARTIN
Benjamin Martin (SBN 257452)
oe. Shae ot ELECTRONICALLY
Phone: (510) 227-4406 FILED
-_ 2 a el . Superior Court of California,
Email: knowyourightsinsf@ gmail.com County of San Francisco
08/07/2017
Attorneys for Plaintiff Phillip Garcia Clerk of the Court
BY:RONNIE OTERO
Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
UNLIMITED JURISDICTION
PHILLIP GARCIA, an individual, Case No. CGC-14-538560
PLAINTIFF PHILLIP GARCIA’S
BRIEF ON THE IMPACT OF
DEFENDANT ANGELO WILSON’S
)
)
Plaintiff, }
} CHAPTER 7 BANKRUPTCY
)
)
)
)
)
)
vs.
ANGELO WILSON, an individual, et. al. DISCHARGE ON STATE COURT
PROCEEDINGS
Defendants.
Plaintiff is mindful of defense counsels’ attempts to reargue issues the trial court rejected
years ago in this case. This brief addresses defense counsels’ forecasted repackaged arguments
relating to the impacts of Defendant Angelo Wilson’s bankruptcy on this trial.
On April 20, 2015, Defendant Angelo Wilson filed for Chapter 7 bankruptcy protection,
Exhibit A. Since then, defense counsel has argued — unsuccessfully and incorrectly - that the
bankruptcy filing stays this action as to all defendants, and as to all causes of action. Exhibit B.
Before his discharge was entered in bankruptcy court on July 28, 2015, Plaintiff Phillip Garcia
initiated adversarial proceedings in bankruptcy court challenging the dischargeability of July 24,
2015. Exhibit C. 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 18:30-
19:04 minute mark of the audio file of the May 4, 2017, hearing contains the bankruptcy court’s
reasoning in continuing the adversary proceedings:
Loe
PLAINTIFF PHILLIP GARCIA’S BRIEF ON THE IMPACT OF DEFENDANT ANGELO WILSON’S CHAPTER 7
BANKRUPTCY DISCHARGE ON STATE COURT PROCEEDINGSnD
In any event | am prepared to rule. I 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.
All of Plaintiff’s state court claims are properly before this court as to Defendant Angelo
Wilson and all other defendants, as more fully set forth below.
Plaintiff's Claims Against Defendant Angelo Wilson
The defense will claim Defendant Angelo Wilson’s bankruptcy filing prevents this trial from
going forward against him. For three (3) reasons, the opposite is true.
REASON NO. 1: A BANKRUPTCY FILING DOES NOT RELEASE AN INSURER FROM ITS
POLICY OBLIGATIONS
Mr. Wilson’s bankruptcy filing does not halt state court proceedings against him because
California law provides that the insured’s bankruptcy does not release the insurer from the payment
of damages for loss occasioned during the life of the policy. Cal.Ins. Code § 11580, subd. (b)(1).
California law sets forth a 2-step procedure in such cases. First, the plaintiff obtains a judgment
against the insured (Angelo Wilson) to establish liability. Second, the plaintiff sues the insurer on the
policy. Boyer v. Jensen (2005) 129 Cal.App.4th 62, 72, 73. Thus, on all of Mr. Garcia's claims
against Mr. Angelo Wilson, the bankruptcy filing does not halt these state court proceedings against
Angelo Wilson.
REASON NO. 2: THE PERMANENT INJUNCTION REPLACING THE AUTOMATIC
BANKRUPTCY STAY DOES NOT ENJOIN MR. GARCIA’S STATE COURT CLAIMS
BECAUSE HE TIMELY CHALLENGED DISCHARGEABILITY IN BANKRUPTCY COURT.
“When a bankruptcy petition is filed, § 362 automatically provides the debtor with a broad
stay against certain actions by creditors.” Ackerman v. Eber (In re Eber) (9th Cir. 2012) 687 F.3d
' 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.
PLAINTIFF PHILLIP GARCIA’S BRIEF ON THE IMPACT OF DEFENDANT ANGELO WILSON’S CHAPTER 7
BANKRUPTCY DISCHARGE ON STATE COURT PROCEEDINGSnD
1123, 1128. When a debt obtains a discharge, 11 U.S. Code § 362’s automatic stay is dissolved and is
replaced by a permanent injunction under 11 U.S. Code § 524. But 11 U.S. Code § 524 does not
enjoin creditors who have timely invoked 11 U.S. Code § 523, which provides a list of exceptions to
discharge. Ackerman v. Eber (in re Eber) (9th Cir. 2012) 687 F.3d 1123, 1128. Here, Defendant
Angelo Wilson obtained a discharge on July 28, 2015, and 11 U.S. Code § 362’s automatic stay
dissolved and was replaced by a permanent injunction under 11 U.S. Code § 524. But before, on July
24, 2015, Mr. Garcia timely invoked 11 U.S. Code § 523, and brought adversarial proceedings
against Mr. Wilson challenging the dischargeability of the debts in connection to the UD judgment.
Exhi
it C. Accordingly, Angelo Wilson’s bankruptcy does not prevent this state court action from
proceeding because before 11 U.S. Code § 362’s automatic stay was dissolved and was replaced by
11 U.S. Code § 524’s permanent injunction, Mr. Garcia brought an adversarial proceeding
challenging dischargeability under 11 U.S. Code § 523.
REASON NO. 3: THE TRIAL JUDGE DETERMINES THE SCOPE OF THE BANKRUPTCY
DISCHARGE, AND NONE OF PLAINTIFF’S CLAIMS ARE DISCHARGEABLE
Assuming arguendo Mr. Garcia did not timely file adversarial proceedings in bankruptcy
court under 11 U.S. Code § 523, and 11 U.S. Code § 524 did not prevent Angelo Wilson from
obtaining a Chapter 7 discharge, the trial judge nevertheless determines which of Plaintiff's claims
were within or outside of the scope of the discharge. State and federal courts have concurrent
jurisdiction to decide whether a state court claim is discharged in bankruptcy. Flores v. Kmart Corp.
(2012) 202 Cal.App.4th 1316, 1325; Pavelich v. McCormick, Barstow, Sheppard, Wayte & Carruth
LLP, (Bankr.9th Cir. 1999) 229 B.R. 777, 783 (“With respect to the discharge itself, state courts have
the power to construe the discharge and determine whether a particular debt is or is not within the
discharge.”)
There are three (3) primary claims against Angelo Wilson. They are:
1) Wrongful Eviction: Debts arising from a wrongful eviction are nondischargeable. Coen v.
Zick, 458 F.2d 326 (9th Cir. 1972).
2) Tenant Harassment: Debts caused by a “willful and malicious injury” are
nondischargeable. 11 U.S. Code § 523(a)(6).
3) Invasion of Privacy: Debts caused by a “willful and malicious injury” are
nondischargeable. 11 U.S. Code § 523(a)(6).
Lege
PLAINTIFF PHILLIP GARCIA’S BRIEF ON THE IMPACT OF DEFENDANT ANGELO WILSON’S CHAPTER 7
BANKRUPTCY DISCHARGE ON STATE COURT PROCEEDINGSnD
Had Plaintiff not timely brought adversarial proceedings in bankruptcy court, as a matter of process,
Plaintiff's claims against Defendant Angelo Wilson would be tried first because the insurer is always
liable on all claims notwithstanding the discharge [Cal.Jns. Code § 11580 (b)(1)], because the
wrongful eviction claim is not dischargeable as a matter of law [Coen v. Zick, 458 F.2d 326 (9th Cir.
1972)], and because the trial judge determines whether Mr. Wilson committed the harassment and
invasion of privacy torts willfully and with malice. Flores v. Kmart Corp. (2012) 202 Cal.App.4th
1316, 1325. The trial court’s finding on willfulness and malice has res judicata effect on the
bankruptcy adversarial proceedings. 7 Witkin, Cal. Procedure (Sth ed. 2008) Judgment, § 380, p.
1009, citing Kahn v. Kahn, (1977) 68 Cal.App.3d 372, 387 (resolution of disputed facts in a state
court discovery sanction order constitutes a finding of fact and is res judicata just as a full trial on the
merits).
But of course, Plaintiff Garcia did timely bring adversarial proceedings under 11 U.S. Code §
523. Exhibit C. Mr. Wilson’s Chapter 7 filing does not enjoin this state court action, which is why
the bankruptcy court continued trial to allow this matter to commence and conclude.
Plaintiff’s Claims Against All Other Defendants
The defense might also claim that Defendant Angelo Wilson’s bankruptcy filing prevents this
trial from going forward against the other defendants. That too is false.
“[T]here are cases [under 362(a)(1)] where a bankruptcy court may properly stay the
proceedings against non-bankrupt co-defendants,” but this occur only in “unusual circumstances.” Jn
re Lomas Financial Corp. (S.D.N.Y. 1990) 117 BR. 64, 68. “Unusual circumstances” are present
“when there is such identity between the debtor and the third party defendant that the debtor may be
said to be the real party defendant and that a judgment against the third party defendant will in effect
be a judgment or finding against the debtor. An illustration of such a situation would be a suit against
a third party who is entitled to absolute indemnity by the debtor on account of any judgment that
might result against them in the case.” Jn re Lomas Financial Corp. (S.D.N.Y. 1990) 117 B.R. 64, 68
(debtor corporation “obligat[ed]” under articles to indemnify its officers).
Here, there is no corporate structure, and no indemnity obligation whatsoever. Mr. Wilson and|
Mr. Markham are co-employees employed by Defendants Carrie Wilson/The Wilson Family Trust.
There is no indemnity agreement between them, or amongst any other defendant. In fact, Defendants
Carrie Wilson/The Wilson Family Trust steadfastly refused to indemnify its employee property
-4-
PLAINTIFF PHILLIP GARCIA’S BRIEF ON THE IMPACT OF DEFENDANT ANGELO WILSON’S CHAPTER 7
BANKRUPTCY DISCHARGE ON STATE COURT PROCEEDINGSnD
manager Angelo Wilson for debts arising from the UD action. In responses to Mr. Garcia’s Special
Interrogatories, No. 24:
Are you willing to indemnify Angelo Wilson for the judgment entered against him in
connection with the unlawful detainer action against Mr. Garcia?
Defendant Trust/Carrie Wilson responded:
No such request was ever made, but the response is no
Martin Decl. in Support of Pl. Opp. to Def. MILs, Ex U, 6:26-7.2. As a result, Mr. Markham is not
entitled to “absolute indemnity” from Mr. Wilson, and Mr. Markham is not entitled to any of the
protections offered by Chapter 7.
In sum, Mr. Wilson’s bankruptcy has no impact on Plaintiff’s claims against him because
Plaintiff Garcia timely filed adversarial proceedings under § 523, and all claims are enforceable
against the insurer. As to Mr. Wilson’s co-defendants, Chapter 7’s protections do not apply to the
non-bankrupt co-defendants.
DATE: June 11,2017 LAW OFFICES OF BENNY MARTIN
Benny Martin,
Attorney for Plaintiff
Lose
PLAINTIFF PHILLIP GARCIA’S BRIEF ON THE IMPACT OF DEFENDANT ANGELO WILSON’S CHAPTER 7
BANKRUPTCY DISCHARGE ON STATE COURT PROCEEDINGSEXHIBIT AFORM B9A (Chapter 7 Individual ot Joim Debtor No Asset Case) (12/12) Case Number 1539483 HLB7
UNITED STATES BANKRUPTCY COURT
Northern District of California (San Francisco}
Notice of Chapter 7 Bankruptcy Case, Meeting of Creditors, & Deadlines
A chapter 7 bankruptcy case concerning the debior{s) listed below was filed on 4/20/15,
'You may be a creditor of the debtor. This notice lists important deadlines. You may want o consult an aitorney (o protect your rights.
All docutnents filed in the case may be inspected at the bankruptcy clerk's office at the address listed below, NOTE: The staff of the
bankruptey clerk's office cannot give legal advice,
Creditors ~~ Do not file this notice in connection with any proof of claim you submit to the court.
See Reverse Side For Imp nt Explanations
Debtor(s) (name(s) used by the debtor(s) in the last 8 years, including married, maiden, trade, and address):
Angelo Wilson
1675 Hayes Street
San Francisco, CA 94117
Case Number: Social Security/Individual Taxpayer ID/Employer Tax ID/Other
15-30483 Nos
NxxxK~9105
Attorney for Debtor(s) (name and address): |Bankruptcy Trustee (name and address):
‘Thomas R. Burns Andrea A, Wirum
Law Offices of Thomas R. Burns P.O. Box 1108
7003 Market St. #1109 jLafayette, CA 94549
San Francisco, CA 94103 'Felephone number: (415) 294~7710
Telephone number: (415) 543-9900 [Email trustee@wirum.com
SEEMS SSUES Meeting of Creditors.
Date: May 26, 2015 Time: 09:00 AM
Location: San Francisco U.S. Trustee Off, Office of the U.S, Trustee, 235 Pine Street, Suite 850, San Francisco, CA 94104
Presumption of Abuse under 11 U.S.C. § 707(b)
See "Presumption of Abuse" on reverse side.
‘The presumption of abuse does nol arise.
Deadlines:
Papers must be received by the bankruptcy clerk's office by the following deadiines:
Deadline to Object (e Debtor's Discharge or to Challenge Dischargeability of Certain Debts: 7/27/15
Deadline to Object to Exemptions:
If this case has been converted, a new deadline to object to exemptions arises unless: (1) the conversion took place more than one year after
a plan was first confirmed, or (2) the deadline had previously expired while the case pending under Chapter 7
Creditors May Not Take Certain Actions:
In most instances, the fiting of the bankruptcy case automatically stays certain collection and other actions against the debtor and the
debtor's property, Under certain circumstances, the stay may be limited to 30 days or not exist at all, although the debtor can request the
court to extend of impose a stay, Hf-you attempt to collect a debt or take other action in violation of the Bankruptcy Code, you may be
penalized, Consuit a lawyer to determine your rights in this case,
Please Do Not File a Proof of Claim Unless You Receive a Notice Te Do Se.
Creditor with a Foreign Address:
A creditor to whom this notice is sent al a foreign address should read the information under "Do Not File a Proof of Claim at This Time"
on the reverse side.
Address of the Bankruptey Clerk's Office: For the Court:
235 Pine Street, 29th floor (94104) Clerk of the Bankruptey Court:
Post Office Box 7341 Edward J. Emmons
San Francisco, CA 94120
‘Telephone number: 415-268-2300.
Hours Open: Menday ~ Friday 9:00 AM ~ 4:30 PM Date: 4/21/15.
Important Notice to Individual Debtors: The United States Trustee requires all debtors who are individuals to provide government—issued
photo identification and proof of social security number to the trustee at the meeting of creditors,
Case: 15-30483 Doc#7 Filed: 04/21/15 Entered: 04/21/15 09:15:29 Page 1 of 2EXHIBIT B~*
Oo MO N OD GO & WS ND
10
Matthew K. Wisinski (SBN 195535)
Joyce E. Clifford (SBN 197654)
Katelyn M. Knight (SBN 264573) ELECTRONICALLY
MURCHISON & CUMMING, LLP FILED
San Fak Stee tie ne ae 11 Superior Court of California,
|| San Francisco, California 94 ane
/ Telephone: (41 5) 524-4486 County of San Francisco
(415) 524-4905 APR 24 2015
Facsimile: (415) 391-2058 Clerk of the Court
E-Mail; mwisinski@murchisonlaw.com BY: MICHAEL Snes bien
jclifford@murchisonlaw.com
kknight@murchisonlaw.com
Attorneys for Defendants ANGELO WILSON
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
PHILLIP GARCIA, CASE NO, CGC-14-538560
Plaintiff, OBJECTION TO EX PARTE
APPLICATION
vs.
Action Filed: April 10, 2014
CARRIE WILSON, in her capacity as Trial Date: None Set
trustee of THE WILSON FAMILY TRUST,
SHAUN MARKHAM, ERIKA MARKHAM,
and ANGELO WILSON, and DOES 1-20,
Defendants.
Defendant ANGELO WILSON submits the following objections to the ex parte
application for order allowing service by publication and for a contempt order filed by Plaintiff
PHILLIP GARCIA on April 21, 2015:
1. Plaintiff has not complied with the requirements of California Rules of
Court, Rule 3.1200 et seq.. The party seeking an order on an ex parte basis must provide
notice to all parties of the date, time and place the application will be presented, no later
than 10:00 a.m. the date prior to the ex parte appearance, state with specificity the relief
requested, and attempt to determine whether an opposition will be made. The application
4
OBJECTION TO EX PARTE APPLICATIONo ef NN OP GH fF B&B NM
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must be supported by a declaration indicating that such notice has been given. California
Rules of Court, Rule 3.1204. The application must also be supported by a declaration
containing "an affirmative factual showing in a declaration containing competent testimony
based on personal knowledge of irreparable harm, immediate danger, or any other statutory
basis for granting relief ex parte." California Rules of Court, Rule 3.1202. Plaintiff has failed
to meet these requirements.
In his application, Plaintiff states "Pursuant to local rules, this is a “drop off" ex parte,
and there is no hearing.” (Ex Parte App. at 1:27.) The Local Rules provide for “drop off" ex
parte petitions in probate matters only. Pursuant to Local Rule 9, ex parte applications
submitted to the Law & Motion, Housing, and Presiding Judge Departments are heard at
specified times and must comply with the California Rules of Court. Plaintiff's application
papers do not include any argument as to why his request cannot be brought as a regularly-
noticed motion, or factual showing that would entitle him to ex parte relief.
2. This action is subject to’an automatic stay asa consequence of
Defendant's recent bankruptcy filing, On April 20, 2015, Defendant ANGELO WILSON
filed a petition for Chapter 7 bankruptcy, Case No. 15-30483. (See Ex. A.) The filing of the
bankruptcy petition resulted in an automatic stay of this action. 11 U.S.C. § 362; Delpit v
Commissioner, 18 F.3d 768 (9" Cir. 1994)(automatic:stay is extremely broad and applies to
aimost any type of format or informal action against the debtor); Rediger Invs. Corp. v_H
Granados Communs., Inc., 503 B.R. 726, 730 (B.A.P. 9th Cir, 2013)(continued prosecution
of state-court action violated automatic stay and subjected prosecuting parties to liability).
DATED: April 24, 2015 MURCHISON & rh LLP
}
Ch. i
By: S Xs Bt J et
Matthew K. Wiginski
Joyce E. Clifford
Katelyn M. Knight
Attorneys for Defendants ANGELO WILSON
2
OBJECTION TO EX PARTE APPLICATIONEXHIBIT C19
Ca:
Benjamin Martin (SBN 257452) LAW.
OFFICES OF BENNY MARTIN
195 4Ist Street, PO Box 11120
Oakland, CA 94612
(510) 227-4406 - telephone
knowyourrightsinsf@gmail.com
Attorneys for Plaintiff
Phillip Garcia
UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA.
SAN FRANCISCO DIVISION
CHAPTER 7 Case
In re: Case No.:
ANGELO WILSON, Related Bankruptcy Case No. 15-30483
Debtor
PHILLIP GARCIA,
Plaintiff COMPLAINT OBJECTING TO DISCHARGE
AND DISCHARGABILITY OF DEBT
te [11 U.S.C. § 523(a)(6)]
ANGELO WILSON,
Defendant
Plaintiff Phillip Garcia (“Plaintiff”) hereby alleges:
JURISDICTION AND VENUE
it On or about April 20, 2015, Defendant Angelo WIlson (“Defendant”) filed a
voluntary petition in this Court under Chapter 7. Plaintiff is a creditor of Defendant.
2. Jurisdiction is based on Title 28 U.S.C. §§1334(b) and 157.
COMPLAINT OBJECTING
TO DISCHARGE AND DISCHARGABILITY
OF DEBT
b: 15-03064 Doc#1 Filed: 07/24/15 Entered: 07/24/15 15:00:42 Page 1 of 21Cag
3. Venue properly lies in the Northern District of California, San Francisco Division
pursuant to 28 U.S.C. Section 1409(a) and Bankruptcy Local Rule 1002-1(b).
4. This Adversary Proceeding is core proceeding as that term is defined in 28 U.S.C.
Section 157.
5. Pursuant to Local Bankruptcy Rule 7008-1, Plaintiff consents to entry of a final order
and judgment herein by the Bankruptcy Court.
FIRST CLAIM FOR RELIEF
[Objection to Discharge - exception 11 U.S.C. § 523(a)(6) ]
6. Plaintiff incorporates by reference the allegations, and each of them, set forth in
paragraphs | through 5 above.
7. Plaintiff is informed and believes, and based thereon alleges, that in May 2013,
Defendant, knowingly, maliciaously and intentionally attempted to wrongfully evict Plaintiff in
violation of San Francisco Administrative Code § 37.9. Damages arising from wrongful eviction
fall within the Section 523(a)(6) exception, Coen v. Zick 458 F.2d 326 (9th Cir. 1972).
8. Plaintiff is informed and believes, and based thereon alleges, that during the
unlawful detainer trial in San Francisco Superior Court, Defendant presented evidence of
various film clips dipicting Plaintiff inside his residence without Plaintiff's knowledge or
consent, in violation of Plaintiff's privacy, and at times at night though curtains and
windows when Plaintiff was sexually intimate with a third party. Plaintiff prevailed at
the eviction trial, and obtained a judgment against Defendant for attorney's fees and costs
on or about February 2014. Defendant seeks to discharge the eviction case judgment in
these bankruptcy proceedings. In April 2014, Plaintiff initiated an action in San
Francisco Superior Court against Defendant and the property owner for, inter alia,
wrongful eviction, and invasion or privacy in connection with the May 2013 eviciton
case. The attorney's fees and costs incurred in defending against the May 2013 wrongful
eviciton case (awarded in the February 2014) is part of the damages sought in the
wrongful .
COMPLAINT OBJECTING
TO DISCHARGE AND DISCHARGABILITY
OF DEBT
pe: 15-03064 Doc#1 Filed: 07/24/15 Entered: 07/24/15 15:00:42 Page 2 of 211 9 Based upon the allegations in Exhibit “A”, Plaintiff is informed and believes, and
2 || based thereon alleges, that during the period described in Exhibit “A,” Defendant became
3 || indebted to Plaintiff for money as a result of Defendant intentionally, willfully, and maliciously
4 || attempting to wrongfully evict Plaintiff, as more specifically described in Exhibit “A” attached
5 || hereto.
6
7 PRAYER FOR RELIEF
8 1, For judgment denying Defendant a discharge in this bankruptcy case;
9
2, For judgment in favor of Plaintiff and against Defendant determining that Defendant
10 is indebted to Plaintiff for damages arising from wrongful eviction, and determining
i that such debt is non-dischargable, or in the alternative;
12 3. To stay these proceedings pending a determination of wrongful eviction in Case #
CGC-14-538560 now pending in San Francisco Superior Court, and;
13
14 4, For an award of Plaintiff's attorneys fees and costs; and
15 5 For such other and further relief as the Court deems proper.
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17 LAW OFFIGES OF BE MARTIN
18
19 ___/Sf Benjamin. Martin
Attorneys for Plaintiff Phillip
20 Garcia
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COMPLAINT OBJECTING
TO DISCHARGE AND DISCHARGABILITY
OF DEBT
3
Cage: 15-03064 Doc#1 Filed: 07/24/15 Entered: 07/24/15 15:00:42 Page 3 of 21
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nD LAW OFFICES OF BENNY MARTIN Benjamin Martin (SBN 257452) oe. Shae ot ELECTRONICALLY Phone: (510) 227-4406 FILED -_ 2 a el . Superior Court of California, Email: knowyourightsinsf@ gmail.com County of San Francisco 08/07/2017 Attorneys for Plaintiff Phillip Garcia Clerk of the Court BY:RONNIE OTERO Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO UNLIMITED JURISDICTION PHILLIP GARCIA, an individual, Case No. CGC-14-538560 PLAINTIFF PHILLIP GARCIA’S BRIEF ON THE IMPACT OF DEFENDANT ANGELO WILSON’S ) ) Plaintiff, } } CHAPTER 7 BANKRUPTCY ) ) ) ) ) ) vs. ANGELO WILSON, an individual, et. al. DISCHARGE ON STATE COURT PROCEEDINGS Defendants. Plaintiff is mindful of defense counsels’ attempts to reargue issues the trial court rejected years ago in this case. This brief addresses defense counsels’ forecasted repackaged arguments relating to the impacts of Defendant Angelo Wilson’s bankruptcy on this trial. On April 20, 2015, Defendant Angelo Wilson filed for Chapter 7 bankruptcy protection, Exhibit A. Since then, defense counsel has argued — unsuccessfully and incorrectly - that the bankruptcy filing stays this action as to all defendants, and as to all causes of action. Exhibit B. Before his discharge was entered in bankruptcy court on July 28, 2015, Plaintiff Phillip Garcia initiated adversarial proceedings in bankruptcy court challenging the dischargeability of July 24, 2015. Exhibit C. 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 18:30- 19:04 minute mark of the audio file of the May 4, 2017, hearing contains the bankruptcy court’s reasoning in continuing the adversary proceedings: Loe PLAINTIFF PHILLIP GARCIA’S BRIEF ON THE IMPACT OF DEFENDANT ANGELO WILSON’S CHAPTER 7 BANKRUPTCY DISCHARGE ON STATE COURT PROCEEDINGSnD In any event | am prepared to rule. I 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. All of Plaintiff’s state court claims are properly before this court as to Defendant Angelo Wilson and all other defendants, as more fully set forth below. Plaintiff's Claims Against Defendant Angelo Wilson The defense will claim Defendant Angelo Wilson’s bankruptcy filing prevents this trial from going forward against him. For three (3) reasons, the opposite is true. REASON NO. 1: A BANKRUPTCY FILING DOES NOT RELEASE AN INSURER FROM ITS POLICY OBLIGATIONS Mr. Wilson’s bankruptcy filing does not halt state court proceedings against him because California law provides that the insured’s bankruptcy does not release the insurer from the payment of damages for loss occasioned during the life of the policy. Cal.Ins. Code § 11580, subd. (b)(1). California law sets forth a 2-step procedure in such cases. First, the plaintiff obtains a judgment against the insured (Angelo Wilson) to establish liability. Second, the plaintiff sues the insurer on the policy. Boyer v. Jensen (2005) 129 Cal.App.4th 62, 72, 73. Thus, on all of Mr. Garcia's claims against Mr. Angelo Wilson, the bankruptcy filing does not halt these state court proceedings against Angelo Wilson. REASON NO. 2: THE PERMANENT INJUNCTION REPLACING THE AUTOMATIC BANKRUPTCY STAY DOES NOT ENJOIN MR. GARCIA’S STATE COURT CLAIMS BECAUSE HE TIMELY CHALLENGED DISCHARGEABILITY IN BANKRUPTCY COURT. “When a bankruptcy petition is filed, § 362 automatically provides the debtor with a broad stay against certain actions by creditors.” Ackerman v. Eber (In re Eber) (9th Cir. 2012) 687 F.3d ' 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. PLAINTIFF PHILLIP GARCIA’S BRIEF ON THE IMPACT OF DEFENDANT ANGELO WILSON’S CHAPTER 7 BANKRUPTCY DISCHARGE ON STATE COURT PROCEEDINGSnD 1123, 1128. When a debt obtains a discharge, 11 U.S. Code § 362’s automatic stay is dissolved and is replaced by a permanent injunction under 11 U.S. Code § 524. But 11 U.S. Code § 524 does not enjoin creditors who have timely invoked 11 U.S. Code § 523, which provides a list of exceptions to discharge. Ackerman v. Eber (in re Eber) (9th Cir. 2012) 687 F.3d 1123, 1128. Here, Defendant Angelo Wilson obtained a discharge on July 28, 2015, and 11 U.S. Code § 362’s automatic stay dissolved and was replaced by a permanent injunction under 11 U.S. Code § 524. But before, on July 24, 2015, Mr. Garcia timely invoked 11 U.S. Code § 523, and brought adversarial proceedings against Mr. Wilson challenging the dischargeability of the debts in connection to the UD judgment. Exhi it C. Accordingly, Angelo Wilson’s bankruptcy does not prevent this state court action from proceeding because before 11 U.S. Code § 362’s automatic stay was dissolved and was replaced by 11 U.S. Code § 524’s permanent injunction, Mr. Garcia brought an adversarial proceeding challenging dischargeability under 11 U.S. Code § 523. REASON NO. 3: THE TRIAL JUDGE DETERMINES THE SCOPE OF THE BANKRUPTCY DISCHARGE, AND NONE OF PLAINTIFF’S CLAIMS ARE DISCHARGEABLE Assuming arguendo Mr. Garcia did not timely file adversarial proceedings in bankruptcy court under 11 U.S. Code § 523, and 11 U.S. Code § 524 did not prevent Angelo Wilson from obtaining a Chapter 7 discharge, the trial judge nevertheless determines which of Plaintiff's claims were within or outside of the scope of the discharge. State and federal courts have concurrent jurisdiction to decide whether a state court claim is discharged in bankruptcy. Flores v. Kmart Corp. (2012) 202 Cal.App.4th 1316, 1325; Pavelich v. McCormick, Barstow, Sheppard, Wayte & Carruth LLP, (Bankr.9th Cir. 1999) 229 B.R. 777, 783 (“With respect to the discharge itself, state courts have the power to construe the discharge and determine whether a particular debt is or is not within the discharge.”) There are three (3) primary claims against Angelo Wilson. They are: 1) Wrongful Eviction: Debts arising from a wrongful eviction are nondischargeable. Coen v. Zick, 458 F.2d 326 (9th Cir. 1972). 2) Tenant Harassment: Debts caused by a “willful and malicious injury” are nondischargeable. 11 U.S. Code § 523(a)(6). 3) Invasion of Privacy: Debts caused by a “willful and malicious injury” are nondischargeable. 11 U.S. Code § 523(a)(6). Lege PLAINTIFF PHILLIP GARCIA’S BRIEF ON THE IMPACT OF DEFENDANT ANGELO WILSON’S CHAPTER 7 BANKRUPTCY DISCHARGE ON STATE COURT PROCEEDINGSnD Had Plaintiff not timely brought adversarial proceedings in bankruptcy court, as a matter of process, Plaintiff's claims against Defendant Angelo Wilson would be tried first because the insurer is always liable on all claims notwithstanding the discharge [Cal.Jns. Code § 11580 (b)(1)], because the wrongful eviction claim is not dischargeable as a matter of law [Coen v. Zick, 458 F.2d 326 (9th Cir. 1972)], and because the trial judge determines whether Mr. Wilson committed the harassment and invasion of privacy torts willfully and with malice. Flores v. Kmart Corp. (2012) 202 Cal.App.4th 1316, 1325. The trial court’s finding on willfulness and malice has res judicata effect on the bankruptcy adversarial proceedings. 7 Witkin, Cal. Procedure (Sth ed. 2008) Judgment, § 380, p. 1009, citing Kahn v. Kahn, (1977) 68 Cal.App.3d 372, 387 (resolution of disputed facts in a state court discovery sanction order constitutes a finding of fact and is res judicata just as a full trial on the merits). But of course, Plaintiff Garcia did timely bring adversarial proceedings under 11 U.S. Code § 523. Exhibit C. Mr. Wilson’s Chapter 7 filing does not enjoin this state court action, which is why the bankruptcy court continued trial to allow this matter to commence and conclude. Plaintiff’s Claims Against All Other Defendants The defense might also claim that Defendant Angelo Wilson’s bankruptcy filing prevents this trial from going forward against the other defendants. That too is false. “[T]here are cases [under 362(a)(1)] where a bankruptcy court may properly stay the proceedings against non-bankrupt co-defendants,” but this occur only in “unusual circumstances.” Jn re Lomas Financial Corp. (S.D.N.Y. 1990) 117 BR. 64, 68. “Unusual circumstances” are present “when there is such identity between the debtor and the third party defendant that the debtor may be said to be the real party defendant and that a judgment against the third party defendant will in effect be a judgment or finding against the debtor. An illustration of such a situation would be a suit against a third party who is entitled to absolute indemnity by the debtor on account of any judgment that might result against them in the case.” Jn re Lomas Financial Corp. (S.D.N.Y. 1990) 117 B.R. 64, 68 (debtor corporation “obligat[ed]” under articles to indemnify its officers). Here, there is no corporate structure, and no indemnity obligation whatsoever. Mr. Wilson and| Mr. Markham are co-employees employed by Defendants Carrie Wilson/The Wilson Family Trust. There is no indemnity agreement between them, or amongst any other defendant. In fact, Defendants Carrie Wilson/The Wilson Family Trust steadfastly refused to indemnify its employee property -4- PLAINTIFF PHILLIP GARCIA’S BRIEF ON THE IMPACT OF DEFENDANT ANGELO WILSON’S CHAPTER 7 BANKRUPTCY DISCHARGE ON STATE COURT PROCEEDINGSnD manager Angelo Wilson for debts arising from the UD action. In responses to Mr. Garcia’s Special Interrogatories, No. 24: Are you willing to indemnify Angelo Wilson for the judgment entered against him in connection with the unlawful detainer action against Mr. Garcia? Defendant Trust/Carrie Wilson responded: No such request was ever made, but the response is no Martin Decl. in Support of Pl. Opp. to Def. MILs, Ex U, 6:26-7.2. As a result, Mr. Markham is not entitled to “absolute indemnity” from Mr. Wilson, and Mr. Markham is not entitled to any of the protections offered by Chapter 7. In sum, Mr. Wilson’s bankruptcy has no impact on Plaintiff’s claims against him because Plaintiff Garcia timely filed adversarial proceedings under § 523, and all claims are enforceable against the insurer. As to Mr. Wilson’s co-defendants, Chapter 7’s protections do not apply to the non-bankrupt co-defendants. DATE: June 11,2017 LAW OFFICES OF BENNY MARTIN Benny Martin, Attorney for Plaintiff Lose PLAINTIFF PHILLIP GARCIA’S BRIEF ON THE IMPACT OF DEFENDANT ANGELO WILSON’S CHAPTER 7 BANKRUPTCY DISCHARGE ON STATE COURT PROCEEDINGSEXHIBIT AFORM B9A (Chapter 7 Individual ot Joim Debtor No Asset Case) (12/12) Case Number 1539483 HLB7 UNITED STATES BANKRUPTCY COURT Northern District of California (San Francisco} Notice of Chapter 7 Bankruptcy Case, Meeting of Creditors, & Deadlines A chapter 7 bankruptcy case concerning the debior{s) listed below was filed on 4/20/15, 'You may be a creditor of the debtor. This notice lists important deadlines. You may want o consult an aitorney (o protect your rights. All docutnents filed in the case may be inspected at the bankruptcy clerk's office at the address listed below, NOTE: The staff of the bankruptey clerk's office cannot give legal advice, Creditors ~~ Do not file this notice in connection with any proof of claim you submit to the court. See Reverse Side For Imp nt Explanations Debtor(s) (name(s) used by the debtor(s) in the last 8 years, including married, maiden, trade, and address): Angelo Wilson 1675 Hayes Street San Francisco, CA 94117 Case Number: Social Security/Individual Taxpayer ID/Employer Tax ID/Other 15-30483 Nos NxxxK~9105 Attorney for Debtor(s) (name and address): |Bankruptcy Trustee (name and address): ‘Thomas R. Burns Andrea A, Wirum Law Offices of Thomas R. Burns P.O. Box 1108 7003 Market St. #1109 jLafayette, CA 94549 San Francisco, CA 94103 'Felephone number: (415) 294~7710 Telephone number: (415) 543-9900 [Email trustee@wirum.com SEEMS SSUES Meeting of Creditors. Date: May 26, 2015 Time: 09:00 AM Location: San Francisco U.S. Trustee Off, Office of the U.S, Trustee, 235 Pine Street, Suite 850, San Francisco, CA 94104 Presumption of Abuse under 11 U.S.C. § 707(b) See "Presumption of Abuse" on reverse side. ‘The presumption of abuse does nol arise. Deadlines: Papers must be received by the bankruptcy clerk's office by the following deadiines: Deadline to Object (e Debtor's Discharge or to Challenge Dischargeability of Certain Debts: 7/27/15 Deadline to Object to Exemptions: If this case has been converted, a new deadline to object to exemptions arises unless: (1) the conversion took place more than one year after a plan was first confirmed, or (2) the deadline had previously expired while the case pending under Chapter 7 Creditors May Not Take Certain Actions: In most instances, the fiting of the bankruptcy case automatically stays certain collection and other actions against the debtor and the debtor's property, Under certain circumstances, the stay may be limited to 30 days or not exist at all, although the debtor can request the court to extend of impose a stay, Hf-you attempt to collect a debt or take other action in violation of the Bankruptcy Code, you may be penalized, Consuit a lawyer to determine your rights in this case, Please Do Not File a Proof of Claim Unless You Receive a Notice Te Do Se. Creditor with a Foreign Address: A creditor to whom this notice is sent al a foreign address should read the information under "Do Not File a Proof of Claim at This Time" on the reverse side. Address of the Bankruptey Clerk's Office: For the Court: 235 Pine Street, 29th floor (94104) Clerk of the Bankruptey Court: Post Office Box 7341 Edward J. Emmons San Francisco, CA 94120 ‘Telephone number: 415-268-2300. Hours Open: Menday ~ Friday 9:00 AM ~ 4:30 PM Date: 4/21/15. Important Notice to Individual Debtors: The United States Trustee requires all debtors who are individuals to provide government—issued photo identification and proof of social security number to the trustee at the meeting of creditors, Case: 15-30483 Doc#7 Filed: 04/21/15 Entered: 04/21/15 09:15:29 Page 1 of 2EXHIBIT B~* Oo MO N OD GO & WS ND 10 Matthew K. Wisinski (SBN 195535) Joyce E. Clifford (SBN 197654) Katelyn M. Knight (SBN 264573) ELECTRONICALLY MURCHISON & CUMMING, LLP FILED San Fak Stee tie ne ae 11 Superior Court of California, || San Francisco, California 94 ane / Telephone: (41 5) 524-4486 County of San Francisco (415) 524-4905 APR 24 2015 Facsimile: (415) 391-2058 Clerk of the Court E-Mail; mwisinski@murchisonlaw.com BY: MICHAEL Snes bien jclifford@murchisonlaw.com kknight@murchisonlaw.com Attorneys for Defendants ANGELO WILSON SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO PHILLIP GARCIA, CASE NO, CGC-14-538560 Plaintiff, OBJECTION TO EX PARTE APPLICATION vs. Action Filed: April 10, 2014 CARRIE WILSON, in her capacity as Trial Date: None Set trustee of THE WILSON FAMILY TRUST, SHAUN MARKHAM, ERIKA MARKHAM, and ANGELO WILSON, and DOES 1-20, Defendants. Defendant ANGELO WILSON submits the following objections to the ex parte application for order allowing service by publication and for a contempt order filed by Plaintiff PHILLIP GARCIA on April 21, 2015: 1. Plaintiff has not complied with the requirements of California Rules of Court, Rule 3.1200 et seq.. The party seeking an order on an ex parte basis must provide notice to all parties of the date, time and place the application will be presented, no later than 10:00 a.m. the date prior to the ex parte appearance, state with specificity the relief requested, and attempt to determine whether an opposition will be made. The application 4 OBJECTION TO EX PARTE APPLICATIONo ef NN OP GH fF B&B NM 10 "1 12 13 14 15 16 17 18 19 20 241 22 23 24 25 26 27 28 must be supported by a declaration indicating that such notice has been given. California Rules of Court, Rule 3.1204. The application must also be supported by a declaration containing "an affirmative factual showing in a declaration containing competent testimony based on personal knowledge of irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte." California Rules of Court, Rule 3.1202. Plaintiff has failed to meet these requirements. In his application, Plaintiff states "Pursuant to local rules, this is a “drop off" ex parte, and there is no hearing.” (Ex Parte App. at 1:27.) The Local Rules provide for “drop off" ex parte petitions in probate matters only. Pursuant to Local Rule 9, ex parte applications submitted to the Law & Motion, Housing, and Presiding Judge Departments are heard at specified times and must comply with the California Rules of Court. Plaintiff's application papers do not include any argument as to why his request cannot be brought as a regularly- noticed motion, or factual showing that would entitle him to ex parte relief. 2. This action is subject to’an automatic stay asa consequence of Defendant's recent bankruptcy filing, On April 20, 2015, Defendant ANGELO WILSON filed a petition for Chapter 7 bankruptcy, Case No. 15-30483. (See Ex. A.) The filing of the bankruptcy petition resulted in an automatic stay of this action. 11 U.S.C. § 362; Delpit v Commissioner, 18 F.3d 768 (9" Cir. 1994)(automatic:stay is extremely broad and applies to aimost any type of format or informal action against the debtor); Rediger Invs. Corp. v_H Granados Communs., Inc., 503 B.R. 726, 730 (B.A.P. 9th Cir, 2013)(continued prosecution of state-court action violated automatic stay and subjected prosecuting parties to liability). DATED: April 24, 2015 MURCHISON & rh LLP } Ch. i By: S Xs Bt J et Matthew K. Wiginski Joyce E. Clifford Katelyn M. Knight Attorneys for Defendants ANGELO WILSON 2 OBJECTION TO EX PARTE APPLICATIONEXHIBIT C19 Ca: Benjamin Martin (SBN 257452) LAW. OFFICES OF BENNY MARTIN 195 4Ist Street, PO Box 11120 Oakland, CA 94612 (510) 227-4406 - telephone knowyourrightsinsf@gmail.com Attorneys for Plaintiff Phillip Garcia UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF CALIFORNIA. SAN FRANCISCO DIVISION CHAPTER 7 Case In re: Case No.: ANGELO WILSON, Related Bankruptcy Case No. 15-30483 Debtor PHILLIP GARCIA, Plaintiff COMPLAINT OBJECTING TO DISCHARGE AND DISCHARGABILITY OF DEBT te [11 U.S.C. § 523(a)(6)] ANGELO WILSON, Defendant Plaintiff Phillip Garcia (“Plaintiff”) hereby alleges: JURISDICTION AND VENUE it On or about April 20, 2015, Defendant Angelo WIlson (“Defendant”) filed a voluntary petition in this Court under Chapter 7. Plaintiff is a creditor of Defendant. 2. Jurisdiction is based on Title 28 U.S.C. §§1334(b) and 157. COMPLAINT OBJECTING TO DISCHARGE AND DISCHARGABILITY OF DEBT b: 15-03064 Doc#1 Filed: 07/24/15 Entered: 07/24/15 15:00:42 Page 1 of 21Cag 3. Venue properly lies in the Northern District of California, San Francisco Division pursuant to 28 U.S.C. Section 1409(a) and Bankruptcy Local Rule 1002-1(b). 4. This Adversary Proceeding is core proceeding as that term is defined in 28 U.S.C. Section 157. 5. Pursuant to Local Bankruptcy Rule 7008-1, Plaintiff consents to entry of a final order and judgment herein by the Bankruptcy Court. FIRST CLAIM FOR RELIEF [Objection to Discharge - exception 11 U.S.C. § 523(a)(6) ] 6. Plaintiff incorporates by reference the allegations, and each of them, set forth in paragraphs | through 5 above. 7. Plaintiff is informed and believes, and based thereon alleges, that in May 2013, Defendant, knowingly, maliciaously and intentionally attempted to wrongfully evict Plaintiff in violation of San Francisco Administrative Code § 37.9. Damages arising from wrongful eviction fall within the Section 523(a)(6) exception, Coen v. Zick 458 F.2d 326 (9th Cir. 1972). 8. Plaintiff is informed and believes, and based thereon alleges, that during the unlawful detainer trial in San Francisco Superior Court, Defendant presented evidence of various film clips dipicting Plaintiff inside his residence without Plaintiff's knowledge or consent, in violation of Plaintiff's privacy, and at times at night though curtains and windows when Plaintiff was sexually intimate with a third party. Plaintiff prevailed at the eviction trial, and obtained a judgment against Defendant for attorney's fees and costs on or about February 2014. Defendant seeks to discharge the eviction case judgment in these bankruptcy proceedings. In April 2014, Plaintiff initiated an action in San Francisco Superior Court against Defendant and the property owner for, inter alia, wrongful eviction, and invasion or privacy in connection with the May 2013 eviciton case. The attorney's fees and costs incurred in defending against the May 2013 wrongful eviciton case (awarded in the February 2014) is part of the damages sought in the wrongful . COMPLAINT OBJECTING TO DISCHARGE AND DISCHARGABILITY OF DEBT pe: 15-03064 Doc#1 Filed: 07/24/15 Entered: 07/24/15 15:00:42 Page 2 of 211 9 Based upon the allegations in Exhibit “A”, Plaintiff is informed and believes, and 2 || based thereon alleges, that during the period described in Exhibit “A,” Defendant became 3 || indebted to Plaintiff for money as a result of Defendant intentionally, willfully, and maliciously 4 || attempting to wrongfully evict Plaintiff, as more specifically described in Exhibit “A” attached 5 || hereto. 6 7 PRAYER FOR RELIEF 8 1, For judgment denying Defendant a discharge in this bankruptcy case; 9 2, For judgment in favor of Plaintiff and against Defendant determining that Defendant 10 is indebted to Plaintiff for damages arising from wrongful eviction, and determining i that such debt is non-dischargable, or in the alternative; 12 3. To stay these proceedings pending a determination of wrongful eviction in Case # CGC-14-538560 now pending in San Francisco Superior Court, and; 13 14 4, For an award of Plaintiff's attorneys fees and costs; and 15 5 For such other and further relief as the Court deems proper. 16 17 LAW OFFIGES OF BE MARTIN 18 19 ___/Sf Benjamin. Martin Attorneys for Plaintiff Phillip 20 Garcia 21 22 23 24 25 26 27 28 COMPLAINT OBJECTING TO DISCHARGE AND DISCHARGABILITY OF DEBT 3 Cage: 15-03064 Doc#1 Filed: 07/24/15 Entered: 07/24/15 15:00:42 Page 3 of 21