Declaration

Cal. Super. - 6th Dist.March 20, 2019

Electronically Filed by Superior Court of CA, County of Santa Clara, on 1/5/2021 2:43 PM Reviewed By: S. Vera Case #19CV344918 Envelope: 5578378 19CV344918 Santa Clara - Civil S. Vera lO ll 12 l3 l4 l5 l6 17 18 19 20 21 22 23 24 25 26 27 9Q William B. Clayton, Jr. (S.E.N. 6081 1) CLAYTON & McEVOY, P.C. 333 W. Santa Clara Street, Suite 618 San Jose, California 951 13-1715 Telephone: (408) 293-9100 Facsimile: (408) 293-4172 Email: Wbc@clayton-mcevoy.com Attorney for Defendants DMJ HOME SOLUTIONS, LLC, and DAVID HERRERA IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA ARVIND K. AGARWAL AND NEELO Case No. 19CV344918 AGARWAL AS TRUSTEES OF THE AGARWAL FAMILY TRUST DATED AUGUST 2, 2001, ~ DECLARATION OF DAVID HERRERA IN OPPOSITION TO PLAINTIFFS’ Plaintiffs, MOTION TO AMEND JUDGMENT V. Date: January 19, 2021 Time: 9:00 a.m. DMJ HOME SOLUTIONS, LLC, A Dept: NEVADA LLC; DAVID HERRERA, Judge: Hon. Socrates P. Manoukian APEX PROPERTY GROUP, LLC, A NEVADA LLC, ERIC FOGELSONG, DAN NOBLE, MICHAELA ROUSSEAU Complaint Filed: March 20, 2019 AND DOES 1 through 150, inclusive, Defendants. I, DAVID M. HERRERA, hereby declare: 1. V I'am over the age of 18 years and the matters set forth herein are 0f my own personal knowledge, except as those matters Which are based on my information and belief, and as to those matters, I am informed and believe them to be true. If called upon to testify as a witness in this matter, I could and would testify competently thereto. _ 5- DECLARATION OF DAVID HERRERA IN OPPOSITION TO PLAINTIFFS’ MOTION TO AMEND JUDGMENT 10 ,ll 12 13 14 15 l6 17 18 19 20 21 22 23 24 25 726 27 ’79 2. This Declaration is submitted in opposition to Plaintiffs’ Motion to Amend a Judgement. I have read the Declaration submitted by Arvind Agarwal and it is a full of speculation and untruths. 3. DMJ Home Solutions LLC (“DMJ”) was formed as a Nevada limited liability company onlJuiy 18, 2016. As a manager of the company I régistered DMJ in the state of California on August 15, 2016. Ihave served as the active Manager ofDMJ continuously since then. DMJ is in the business of purchasing, rehabilitating, remodeling, developing and reselling residential real property. 4. The Pink Berry Trust (“Trust”) which Plaintiff seeks to join as part of the judgment is a revocable living trust established November 16, 20 1 6 withmy Wife, Xenia Herrera, and myselfdesignated as Trustees. The trust was established solely for the purpose ofcompleting our overall financial and business planning. It was not created as Plaintiffand his counsel implies, as a means to avoid payment of the judgment. 5. 0n November 16, 2016, my wife and 1 funded the Trust by declaring'in the trust documents a deposit of all equitable membership interest 0fDMJ Home Solutions LLC into the revocable living trust. 6. T0 clarify the confusion leading to Plaintiff’s speculation the initial California Statement of Infonnation for DMJ filed by the California corporate registered agent on September 26, 2017. It listed me as manager. On September 21, 2018 I copied the information on the original Statement 0f Information in 2017 except for a change of address and filed it on my own. In January 20 1 9 I determined that the Trust should be listed in the filings as the member of DMJ due to our Trust documents. A statement of Information was filed With California _ 5- DECLARATION OF DAVID HERRERA IN OPPOSITION TO PLAINTIFFS’ MOTION TO AMEND JUDGMENT 10 ll 12 l3 l4 15 16 l7 18 l9 20 21 22 23 24 25 26 27 OQ Secretary 0f State on September 28, 2019, at the annual filing making that change naming the Pink Berry Trust as sole member ofDMJ Home Solutions, LLC. 7. My wife and I initially thought that having it stated in the declaration of trust documents that 100% of beneficial interest of DMJ was in the Trust was sufficient. However, When we learned that the Trust should be listed as the member on the California Statement of Information we did so. The filing had nothing t0 do with Plaintiff. 8. > Separate business bank accounts were established for DMJ and for the Trust. No assets were ever transferred fiom DMJ to the Trust as alleged by Plaintiff and their counsel. No fimds 0f any investor were diverted 0r transferred from DMJ to the Trust despite the insinuation ofthat occurrence by Plaintiff. 9. With regards to the additional business entities Plaintiff sprinkles through his Motion: (a) Cobalt Construction, LLC - Separate entity created in 2019 With purpose of existence being to provide project management and project related services only. It has no capital or real property assets and has always had its own separate bank account. (b) XeniaMB Herrera, LLC - Separate entity with purpose of existence being online marketing and sales. It is my wife, Xenia Herrera’s, business, it has no capital or real property assets and has always had its own separate bank account. 10. With regards to the address, PO Box 27740, Las Vegas, NV 89126, mentioned in Plaintiffs Motion, this is the address named in the DMJ operating agreement in paragraph IV as the required address for any member 0fthe company. Therefore, the Trust was named as member _ 5- DECLARATION OF DAVID HERRERA IN OPPOSITION TO PLAINTIFFS’ MOTION TO AMEND JUDGMENT lO ll 12 13 l4 15 16 17 18 l9 20 21 22 23 24 25 26 27 9Q ofDMJ, and the company operating agreement was followed When listing the Las Vegas addreSs. 11. With regards to the address, 1267, Willis St, STE 200, Redding, CA 96001, mentioned in Plaintiffs Motion, this is the address for Registered Agents Inc, Which is the registered agent that was decided to be used for each of the entities identified in paragraph 9 above. 12. With regards t0 property addresses 7825 Lilac Ct, Cupertino CA 95014 and 118 Telles Lane, Fremont CA 94539, the lender, Pelorus Equity Group, foreclosed and became the new owner ofthese properties in July 2020. Contrary t0 Plaintiffs suspicions, DMJ has no profit share agreement with them. 13. With regards to property address 10410 N Stelling, Cupertino CA 95014, the property has been foreclosed. Contrary to Plaintiffs suspicions DMJ has no profit share agreement the current owners ‘of that property. I 14. Contrary t0 Plaintiff’s unsubstantiated and baseless conclusion, neither DMJ nor I have benefitted from the foreclosures of the DMJ properties. I have spent hundreds and hundreds of hours, likely thousands in the last year, as well as thousands of dollars trying t0 save these properties and pay the settlement amount. I even filed lawsuits to restrain the foreclosures on the Claremont and Blackberry Properties so the refinancing, and settlement payments expected to come from it, could be completed. In the fall of 2019, even before the settlement and the initiation of the foreclosures following the freezing of the projects by the recording of the Lis Pendens the entire Claremont project was' offered to Plaintiff. At the time it was estimated that the equity in the project was well over 1 million dollars. Plaintiffrefused t0 accept the offer. 15. The current motion by my view is spurious based upon untrue information strung - 5- DECLARATION OF DAVID HERRERA IN OPPOSITION TO PLAINTIFFS’ MOTION TO AMEND JUDGMENT 10 11 12 13 l4 15 16 l7 18 l9 20 21 22 23 24 25 26 27 OQ together With suspicions, fictional conclusions and speculation. Plaintiff at one time prior to filing the action threatenéd to not stop his prosecution ofDMJ/me once he started until he put me out of business. I believe this is just another step in furtherance of that threat. I declare uhder penalty of perjury under the laws of the State of California that the. foregoing is true and correct and that this Declaration was executed on January 5, 2021 at Dublin, California. DXVID M. HEQRERA‘ _ 5- DECLARATION OF DAVID HERRERA IN OPPOSITION TO PLAINTIFFS’ MOTION TO ALIEND JUDGMENT