Declaration In Support

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

Douglas W. Dal Cielo (SBN 157109) E-mail:ddalcielo@bwslaw.corn Brian M. Affrunti (SBN 227072) E-mail:baffrunti@bwslaw.corn BURKE, WILLIAMS k SORENSEN, LLP 1503 Grant Road, Suite 200 Mountain View, CA 94040-3270 Tel: 650.327.2672 Fax: 650.688.8333 Attorneys for Plaintiffs ARVIND K. AGARWAL AND NEELO AGARWAL AS TRUSTEES OF THE AGARWAL FAMILY TRUST DATED AUGUST 2, 2001 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA 12 13 14 15 16 17 19 20 21 ARVIND K. AGARWAL AND NEELO AGARWAL AS TRUSTEES OF THE AGARWAL FAMILY TRUST DATED AUGUST 2, 2001, Plaintiffs, DMJ HOME SOLUTIONS, LLC, A NEVADA LLC; DAVID HERRERA, APEX DEVELOPMENT GROUP, LLC, A NEVADA LLC, ERIC FOGELSONG, DAN NOBLE, MICHAELA ROUSSEAU and DOES 1 through 150, inclusive, Defendants. Case No. 19CV344918 DECLARATION OF DOUGLAS W. DAL CIELO IN SUPPORT OF PLAINTIFFS'OTION TO ENFORCE SETTLEMENT AGREEMENT Date: May 5, 2020 Time: 9:00 a.m. Dept.: 20 Judge: Hon. Socrates P. Manoukian Action Filed: March 20, 2019 22 23 25 26 27 DECLARATION OF DOUGLAS W. DAL CIELO I, Douglas W. Dal Cielo, declare as follows: 1. I am an attorney at law, duly licensed to practice law before all courts of this state and a partner at Burke, Williams k Sorensen, LLP, counsel of record for Plaintiffs Arvind K. Agarwal and Neelo Agarwal as Trustees of the Agarwal Family Trust Dated August 2, 2001 (collectively "Agarwal" or "Plaintiffs"). I have personal knowledge of the matters set forth herein and could and would competently testify thereto if called as a witness. Sl - San lose 04835-5793-9638 v I DECLARATION OF DOUGLAS W. DAL CIELO I PLAINTIFFS'MOTION TOENFORCE SETTLEMENT AGREEMENT Electronically Filed by Superior Court of CA, County of Santa Clara, on 3/11/2020 10:19 AM Reviewed By: P. Hernandez Case #19CV344918 Envelope: 4152808 19CV344918 Santa Clara - Civil P. Hernandez 10 12 13 14 15 16 18 19 20 21 2. Attached hereto as Exhibit A is a copy of the Mutual Release and Settlement Agreement (the "Settlement Agreement") signed by Agarwal and Defendants DMJ HOME SOLUCTIONS, LLC and DAVID HERRERA (collectively "Defendants") 3. Plaintiffs have complied with all condition precedent required by them pursuant to the terms of the Settlement Agreement. Prior to the anticipated payment date of February 20, 2020, Plaintiffs deposited into the custody of the escrow holder a fully executed and recordable Release of Lis Pendens for all properties listed in Paragraph 3 of the Settlement Agreement. 4. Plaintiffs will incur at least $2,370.50 to enforce the Settlement Agreement. I requested that my associate, Michael Hsueh, draft this Motion. His hourly rate is $495.00 per hour and based on my review of the relevant time records he has spent a total of 3.9 hours to research and draft this motion, for a total of $ 1,930.50. I spent eight tenths of an hour reviewing and revising the motion papers. My hourly rate is $550.00 per hour, for a total of $440.00. The total amount of fees incurred for preparing this motion for filing is $2,370.50. 5. I anticipate that my associate will spend an additional three hours reviewing any opposition and preparing a reply, and an additional two hours preparing for and appearing at the hearing on this matter, or an additional $2,475.00. The actual time spent will be identified in a further declaration filed with Plaintiffs'eply papers. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 11'ay of March, 2020 at San Jose, California. 22 23 DOUGLAS W. DAL CIELO 24 25 26 27 28 SJ - San Jose //4835-5793-9638 DECLARATION OF DOUGLAS W. DAL CIELO I PLAINTIFFS'MOTION TOENFORCE SETTLEMENT AGREEMENT EXHIBIT AI MUTUAL RELEASE AND SETTLEMENT AGREEMENT This Mutual Release and Settlement 4greement ("Agreement" ) is entered into by and between ARVIND K. AGARWAL AND NEELO AGARWAL AS TRUSTEES OF THE AGARWAL TRUST DATED AUGUST 2, 2001 (hereinafter "AGARWAL"), and DMJ HOME SOLUTIONS, LLC AND DAVID HERRERA (hereinafter "DMJ"), (hereinafter collectively the "PARTIES" ). WHEREAS On March 20, 2019 AGARWAL filed an action entitled Arvind K. Agarwal and Neelo Agarwal as Trustees of the Agarwal Trust Dated August 2, 2001 v. DMJ Home Solutions, LLC, David Herrera, Apex Development Group LLC, Eric Fogelsong, Dan Noble, Michaela Rousseau and Does 1-150 et al., Santa Clara County Superior Court Case No. 19CV344918. On May 30, 2019 AGARWAL filed an amended complaint (collectively referred to as the "Action" ). Said 4ction arose out of two Joint Venture Agreements between Agarwal and DMJ Home Solutions, LLC for the purchase renovation, development and sale of real property as attached as Exhibits A and B to the amended complaint. WHEREAS, AGARW4L has settled the 4ction with all other Defendants other than DMJ. WHEREAS, AGARW4L and DMJ desire to enter into a settlement and compromise of the Action between them that pertains to the Action, whether they now exist or may exist in the future. NOW, THEREFORE, and in consideration of the mutual covenants and conditions set forth below, the parties agree as follows: SJ - San Jose ¹4838-0783-3520 vl TERMS OF THE SETTLEMENT 1. The Recitals are incorporated herein by reference and made a part of this Agreement. 2. Settlement Amount. DMJ shall pay AGARWAL the total sum of Nine Hundred Fifty Thousand Dollars (5950,000) in full and final resolution of the Action ("Settlement Amount" ). Subject to the terms of this Agreement, the Settlement Amount is payable as follows: a. The sum of $800,000 to AGARWAL on or before forty-five days (45) from the execution of this Agreement, conditioned upon the recording of releases of Lis Pendens (Notice of Pending Action) and associated title defects for all properties of DMJ as identified below. Said check or wired funds shall be payable to the Burke, Williams and Sorensen Client Trust Account. Tax Identification No. 95-1705973. Wiring instructions will be confirmed prior to transmittal. b. The balance of the Settlement Amount, that being 5150,000 shall be split into three (3) amounts of $ 50,000 plus interest at 10% per annum, individually secured against the interests of DMJ in three corresponding properties. Each amount of 550,000 will be payable upon sale, refinance or transfer of the corresponding property securing the amount plus accrued interest. The properties securing each increment of 550,000 are as follows: (i) 5401 Claremont Avenue, Oakland, CA 94618 (APN: 14-1273-16) ("Claremont Property" ); - 2- SJ - San Jose 44838-0783-3520 vl (ii) 10410 N. Stelling Road, Cupertino, CA 95014 (APN: 326-30-094) ("Stelling Property" ); and (iii) 10191 Santa Clara Avenue, Cupertino, CA 95014 (APN: 326-22-036) ("Santa Clara Property" ). Each such 550,000 obligation will be secured by a deed of trust (see Section 4 below). AGARWAL agrees to look to each separate property for payment of each 550,000 installment. Interest shall accrue at the rate of ten percent (10%) per annum for each 550,000 installment from the date of recording of each respective deed of trust through the date of payment from each property. All closing and escrow costs shall be DMJ's responsibility for each payoff transaction. Within forty eight (48) hours of notice, AGARWAL shall submit a demand for payoff in an amount of principal and accrued interest together with a duly executed Deed of Reconveyance in recordable form, acceptable to the escrow company, authorizing the recording and release of the corresponding Deed of Trust when the principal and accrued interest due AGARWAL is held by the escrow company for the benefit of AGARWAL. In the event any $50,000 payment, plus interest, or any portion therefor, is not made upon sale, refinance or transfer of the corresponding property securing the amount plus accrued interest, DMJ remains responsible for paying said amount and Agarwal may enforce this Agreement pursuant to Section 664.6 of the Code of Civil Procedure to recover any unpaid amount. 3. Lis Pendens Releases. The payment of the portion of the Settlement Amount by DMJ in section 2(a) above, is strictly conditional upon the timely release - 3- SJ - San Jose ¹4838-0783-3520 vl by Plaintiff of all Lis Pendens recordings made by or on behalf of Plaintiff in this action by the recording of a Release of Lis Pendens substantially in the form attached as Exhibit A for each property affected. a. Disclosed recorded Lis Pendens. Plaintiff confirms the following recordings have been made: Ori inal Recordin 1. 5401 Claremont Avenue, Oakland., California recording ¹2019076979) 2. 118 Telles Lane, Fremont, California (Original ¹2019079598) 3. 10410 N. Stelling Road, Cupertino, California recording ¹24168989) 4. 26 Alpine Avenue, Los Gatos, California (Original ¹24168990) 5. 7825 Lilac Court, Cupertino, California (Original ¹241 68991) 6. 10191 Santa Clara Av., Cupertino, California recording ¹24168992) Second Recordin (Original recording (Original recording recording (Original 7. 5401 Claremont Avenue, Oakland., California (¹2019093484) 8. 118 Telles Lane, Fremont, California (¹2019093485) 9. 10410 N. Stelling Road, Cupertino, California (¹24183363) 10.26 Alpine Avenue, Los Gatos, California (¹24183366) 11.7825 Lilac Court, Cupertino, California (¹24183365) 12.10191 Santa Clara Avenue, Cupertino, California (¹24183364) ~ti d di 13.18833 Tuggle Avenue Cupertino CA 95015 (APN 375-33-056) 14. 15435 Blackberry Hill Road Los Gatos CA 95030 (APN 532-25- 015) b. Undisclosed Lis Pendens. The payment of the Settlement Amount is conditioned upon the release by Plaintiff of any and all Lis Pendens or title defects arising from this Action. SJ - San Jose ¹4838-0783-3520 vl - 4- c. No Additional Recordin s. Plaintiff will take no further action to affect title to properties of DMJ or otherwise hinder or hamper DMJ's ability to obtain insurable title from a title insurance company of DMJ's choice to any third-party lender, purchaser or encumbrancer for value. 4. Escrow. To facilitate the timely release of all claimed liens and encumbrances arising from the recordings associated with the Action, DMJ will open an escrow with a title company of DMJ's choice (with the restriction that the escrow officer cannot be Jason Herrera), and perform a preliminary title search for DMJ properties in order to identify liens and encumbrances associated with the Action and Plaintiff's claims in the Action. DMJ will notify Plaintiff through counsel of record of any additional defects to title or recordings which must be removed prior to the payment of the first installment of the Settlement Amount. a. For each title defect noted by the title company associated with the Action, or Plaintiffs claims made in the Action Plaintiff shall cause to be deposited into the custody of the escrow holder a fully executed and recordable Release of Lis Pendens in the form attached as Exhibit A or such form or forms acceptable to the title company to allow title to the particular property to be insured free of all claims of Plaintiff. All deposits of documents by or on behalf of Plaintiff shall be made with the title company and be accompanied by instructions that they are not to be recorded - 5- SJ - San Jose lJ4838-0783-3520 vl unless or until the amount of 5800,000 is held by the title company for the benefit of Plaintiff and any other conditions of funding have been fulfilled. b. DMJ shall deposit or cause to be deposited the sum of F800,000 into the custody of the escrow holder for payment of the first installment of the Settlement Amount to Plaintiff together with: (i) A fully executed Deed of Trust in recordable form in the form attached as Exhibit B securing the amount of 550,000.00 against the Claremont Property, and (ii) A fully executed Deed of Trust in recordable form in the form attached as Exhibit B securing the amount of 550,000.00 against the Stelling Property, and (iii) A fully executed Deed of Trust in recordable form in the form attached as Exhibit B securing the amount of S50,000.00 against the Santa Clara Property. c. All deposits of documents or funds by or on behalf of DMJ shall be made with the title company and be accompanied by instructions that they are not to be paid or recorded unless or until the title company holds satisfactory releases of all Lis Pendens in recordable form or other documents as deemed necessary by the title company to clear all claimed interests by Plaintiff for the benefit of DMJ and any other conditions of funding have been fulfilled to allow the first installment to be paid to Plaintiff. - 6- SJ - San Jose 44838-0783-3520 vl d. When all conditions of closing are fulfilled the escrow holder shall proceed to record the releases identified herein and such other documents required to insure title and disburse the funds to Plaintiff for the first installment of 5800,000 as provided in 2(a) above; record all evidence of security given by DMJ for the encumbered amount of 5800,000 to any lender, lenders, or third party against such property or properties as directed by DMJ and thereafter record the three (3) deeds of trust identified in b (i), (ii) and (iii) above against the corresponding property. e. All closing, financing and associated cost of escrow will be borne by DMJ. After the effective date of this Agreement, no further lis pendens or liens shall be filed or recorded by AGARWAL. 5. DMJ, promptly upon the execution of this Agreement shall order a preliminary title report from the title of choice to obtain information as to the amount of secured debt recorded against each of the three properties and provide same to AGARWAL within 10 days. a. Plaintiffs recorded Deeds of Trust shall be junior to any additional debt taken on any of these properties to allow for payment of the sum set forth in paragraph 2(a) above. 6. AGARWAL shall file a dismissal with prejudice of the entire action upon receipt of the final payments referenced in Paragraph 2 above. - 7- SJ - San Jose ¹4838-0783-3520 vl 7. AGARWAL, for itself, successors, assigns, agents, representatives, and attorneys, hereby releases, acquits and forever discharges DMJ, Herrera their subsidiaries and affiliates, heirs, successors, assigns, representatives, attorneys, insurers, agents, and each of them, (all such persons and entities hereinafter included in the term " DMJ Releasees") from any and all causes of action, actions, judgments, liens, indebtedness, damages, losses, claims, liabilities and demands, of whatever kind or character, that they may have against them, or any of them, whether presently known or unknown, suspected or unsuspected, pertaining to the Action. 8. DMJ, for itself, successors, assigns, agents, representatives, and attorneys, hereby release, acquit and forever discharge AGARWAL, and their heirs, successors, assigns, representatives, attorneys, insurers, agents, and each of them, (all such persons and entities hereinafter included in the term "Plaintiff Releasees") from any and all causes of action, actions, judgments, liens, indebtedness, damages, losses, claims, liabilities and demands, of whatever kind or character, that they may have against them, or any of them, whether presently known or unknown, suspected or unsuspected, pertaining to the Action. 9. The PARTIES hereto understand and agree that this Agreement extends to all claims of every nature and kind, known or unknown, suspected or unsuspected, arising out of or accruing in connection with any act or omission occurring prior to the execution of this instrument that pertains to the Action, and that any and all rights granted under Section 1542 of the Civil Code of California, and any analogous state or federal law or regulation are hereby expressly waived. Section 1542 of the Civil Code of California reads as follows: SJ - San Jose JJ4838-0783-3520 vl A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS [I] THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THK TIME OF EXECUTING THE RELEASE AND THAT, [2] IF KNOWN BY HIM OR HKR [3] WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY. 10. The PARTIES hereto agree never to commence, prosecute, or cause to be commenced any action or proceeding whether administrative, legal or otherwise based upon any of the matters released by this Agreement and if and to the extent such proceeding has been commended that it be immediately and completely withdrawn and dismissed with prejudice. The PARTIES hereto further agree that this Agreement shall be deemed in breach and a cause of action shall accrue thereon immediately upon the commencement of any such action or the performance of any act contrary to this paragraph. In the event that an action is brought, this Agreement may be pleaded as a defense or it may be asserted by way of cross-complaint, counterclaim, or cross-claim in any such action, or may be used, as necessary to establish its terms. However, nothing herein shall prevent any PARTY from enforcing its rights as otherwise provided by law upon any breach of this Agreement or instrument referenced herein by any other PARTY. 11. All PARTIES hereto shall bear their own costs and attorneys'ees incurred as a result of the Action. 12. The PARTIES, and each of them, warrant: (i) that no other person or entity has or claims, any interest in any of the claims, demands, causes of action, or damages covered in this Agreement; (ii) that they, and each of them, have the sole right and exclusive authority to execute this Agreement; and (iii) that they have not sold, assigned, transferred, conveyed or otherwise disposed of any claim, demand, Sl - San lose ¹4838-0783-3520 vl cause of action, obligation, damage or liability covered in this Agreement. 13. AGARWAL and DMJ warrant that no part of any claim which provides a basis for any claim asserted in or for the Action has been assigned to any person or entity. 14. AGARWAL and DMJ acknowledge, represent and warrant that no person or entity, nor any agent or attorney of any person or entity, has made any promise, representation or warranty whatever, express or implied, other than those expressly contained herein, so as to tend to induce them to execute this Agreement. AGARWAL and DMJ expressly acknowledge, represent and warrant that they have not executed this Agreement in reliance on any promise, representation, warranty or fact not set forth herein. 15. Each of the PARTIES hereto acknowledge that it may hereafter discover facts different from or in addition to those it now knows or believes to be true with respect to the claims, demands, damages, debts, liabilities, accounts, actions referenced above or causes of action herein released which relate to the Action. The PARTIES fully understand that if the facts with respect to which this Agreement is executed should later be found to be different from any fact which they now believe to be true, they have expressly accepted and assumed the risk of such possible differences in facts and agree that this Agreement shall be and remain effective notwithstanding such difference, if any, and notwithstanding the alleged reason for such difference or how such difference may subsequently be labeled or categorized. 16. It is expressly understood and agreed that this Agreement may not be altered, amended, modified or otherwise changed in any respect or particular - 10- SJ - San Jose Jl4838-0783-3520 vl whatsoever, except by a writing duty executed by all parties hereto, or their authorized representatives, and the parties hereto, and each of them, acknowledge and agree that none of them will make any claim that this Agreement has been orally altered or modified in any respect whatsoever. 17. If any term, provision, covenant, condition, or portion of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the terms, provisions, covenants and conditions or portions shall remain in full force and effect and shall in no way be affected, impaired or invalidated. 18. This Agreement is executed voluntarily and without any duress or undue influence on any party, or on behalf of any party hereto, or their officers, employees, agents, affiliates or attorneys. The PARTIES hereto acknowledge that they have been represented by counsel of their own choice in the negotiations for and preparation of this Agreement, or in the alternative, they have knowingly and voluntarily waived their right to have counsel review same. 19. This Agreement shall bind and inure to the benefit of the parties hereto and their respective heirs, successors and assigns. 20. The terms of this Agreement have been negotiated by the PARTIES hereto, and no provision of this Agreement shall be construed against either party as the drafter thereof. 21. This Agreement is a result of a compromise between the PARTIES, and shall never at any time or for any purpose be considered as an admission of liability and/or responsibility on the part of any party herein released, nor shall the payment of any sum of money in consideration for the execution of this Agreement constitute SJ - San Jose 04838-0783-3520 vl or be construed as an admission of any liability whatsoever by any party herein released, each of which continues to deny such liability and disclaim such responsibility. 22. This Agreement constitutes the entire agreement between the PARTIES hereto, and each of them, with respect to the subject matter of the Action. This Agreement is the final embodiment of the PARTIES'greement and all prior discussions relating to or in any way connected with the subject matters of this agreement are merged into and superseded by the terms of this Agreement. 23. The PARTIES agree to execute such additional and supplementary documents as may be usual, necessary and commercially reasonable to aid in the performance of the terms and conditions of this AGREEMENT and give it full force and effect. 24. The PARTIES agree this is a judicially enforceable settlement agreement under Section 664.6 of the Code of Civil Procedure. 25. This Agreement shall be construed in accordance with the laws of the State of California. 26. This Agreement may be executed in any number of counterparts and via facsimile, each of which shall be an original, but all of which together shall constitute one instrument. 27. The PARTIES hereby agree to a mutual non-disparagement clause. Specifically, neither party shall say or write anything negative, defamatory, or critical of the other party or its businesses, including without limitation, the posting of any critiques or comments on social media. Sl - San lose ¹4838-0783-3520 vl - 12- 28. The terms of the settlement shall remain CONFIDENTIAL, and the PARTIES shall not disclose the terms of the settlement to any third parties other than immediate family members, counsel, accountants, lenders, financial partners and if required by a Court of law or under power of subpoena or disclosures necessitated by the sale of any property referenced herein or any Court order. To the extent disclosure is necessitated by any breach of this Agreement or instrument referenced herein by any other PARTY disclosure is allowed but only to the extent necessary to provide for the enforcement of the Agreement. 29. The prevailing party in any legal action brought by one party against the other party arising out of and/or to enforce the terms of this Agreement shall be entitled, in addition to any other rights and remedies it might have, to reimbursement of its expenses, including reasonable attorney's fees. IN WITNESS WHEREOF, the PARTIES have executed this Mutual Release and Settlement Agreement as of the date set forth below. Dated: January ~, 2020 ARVIND K. AGARWAL AND NEELO AGARWAL AS TRUSTEES OF THE AGARWAL TRUST DATED AUGUST 2, 2001 By: N . AGARWAL N LO AGARWAL SJ - San Joan 84838-0783-3520 vl Dated: January 6th, 2020 DMJ HOME SOLUTIONS, LLC By: DAVID HERRERA Operating Manager Dated: January 6th, 2020 DAVID HERRERA Individual SJ - San Jose ¹4838-0783-3520 vl - 14- at : th , J TI NS, y: W I perat anager at : 5th , m I l 14. #4 V EXHI BIT AT Attorney for Plaintiff IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA 10 12 Plaintiff, Defendants. Case No WITHDRAWAL OF NOTICE OF ACTION PENDING [Lis Pendens] 13 15 16 17 NOTICE IS HEREBY GIVEN that Plaintiff, as , hereby withdraws the Notice 18 19 of Action Pending (Lis Pendens) that was recorded in the above action on as Document No.: 20 21 The above Notice of Pendency of Action (Lis Pendens) affects certain property that is the 22 23 subject of this action and commonly known as particularly described in Exhibit "A" attached hereto and made a part hereof. and is more 25 26 This Notice of Withdrawal is recorded pursuant to Code of Civil Procedure section 405.50. 27 -I- WITHDRAWAL OF NOTICE OF ACTION PENDING [LIS PENDENS] Case No.: Dated: By: 10 12 13 15 16 17 18 20 21 22 23 25 26 27 -2- WITHDRAWAL OF NOTICE OF ACTION PENDING [LIS PENDENS] Case No.: lO 11 l4 l 19 24 at : I TI NS] a 0.: ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accurac, or validit of that document. State of California ) ) County of Santa Clara) 10 On , before me, , a Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. 12 I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. 3 WITNESS my hand andofficial seal 16 Notary Public t Seal] 17 18 20 21 22 23 25 26 27 -3- WITHDRAWAL OF NOTICE OF ACTION PENDING [LIS PENDENS] Case No.: EXHIBIT "A" DESCRIPTION The action affects the title of real property situated in the County of State of California, described as follows: 10 12 13 15 16 17 18 19 20 21 23 25 26 27 -4- WITHDRA WAL OF NOTICE OF ACTION PENDING [LIS PENDENS] Case No.: EXH[g(y gHIBIT B RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO Name Street Address City & State Z I p Title Order No. Escrow No. Assessors Parcel Number: SPACE ABOVE THIS LINE FOR RECORDER'S USE DEED OF TRUST WITH ASSIGNMENT OF RENTS AS ADDITIONAL SECURITY This DEED OF TRUST, made whose address is (Number and Street) (city) (State) CHICAGO TITLE COMPANY, a California Corporation, herein called TRUSTEE, and (Zip Code) between herein called TRUSTOR, Trustor irrevocably grants, transfers and assigns to Trustee in Trust, with Power of Sale that property in County of , herein called BENEFICIARY, , State of California, described as: Together with the rents, issues and profits thereof, subject, however, to the right, power and authority hereinafter given to and conferred upon Beneficiary to collect and apply such rents, issues and profits. For the Purpose of Securing (1) payment of the sum of $ with interest thereon according to the terms of a promissory note or notes of even date herewith made by Trustor, payable to order of the Beneficiary, and extensions or renewals thereof; (2) the performance of each agreement of Trustor incorporated by reference or contained herein or reciting it is so secured; (3) Payment of additional sums and interest thereon which may hereafter be loaned to Trustor, or his or her successors or assigns, when evidenced by a promissory note or notes reciting that they are secured by this Deed of Trust. To protect the security of this Deed of Trust, and with respect to the property above described, Trustor expressly makes each and all of the agreements, and adopts and agrees to perform and be bound by each and all of the terms and provisions set forth in subdivision A of that certain Fictitious Deed of Trust referenced herein, and it is mutually agreed that all of the provisions set forth in subdivision B of that certain Fictitious Deed of Trust recorded in the book and page of Official Records in the office of the county recorder of the county where said property is located, noted below opposite the name of such county, namely: COUNTY Alameda Alpine Amador Butte Calverae Colusa Contra Costs Del Norte El Dorado Fresno Glenn Humboldt Imperial Inyo Kern BOOK 1288 3 133 1330 185 323 4684 101 704 5052 469 801 1189 165 3756 PAGE 556 130-31 43& 513 338 391 1 549 635 623 76 83 701 672 7182 COUNTY Kings Lake Lessen Loa Angeles Madera Marin Mariposa Mendocino Merced Modoc Mono INonterey Napa Nevada Orange BOOK 858 437 192 T-3878 911 1849 90 667 1660 191 69 357 704 363 7182 PAGE 713 110 367 874 136 122 453 99 753 93 302 239 742 94 18 COUNTY Placer Plumes Riverside Sacramento San Benito San Bernardino San Francisco San Joaquin San Luis Obispo San Mateo Santa Barbara Santa Clara Santa Cruz Shasta San Diego Series 5 BOOK PAGE 1028 379 166 1307 3778 347 71-10-26 615 300 405 6213 768 A-804 596 2855 283 1311 137 4778 175 2065 881 6626 664 1638 607 800 633 Book 1964, Page 149774 COUNTY Sierra Siskiyou Solano Sonoma Stanislaus Sutter Tehama Trinity Tulare Tuolumne Ventura Yolo Yuba BOOK PAGE 38 187 506 762 1287 621 2067 427 1970 56 655 585 457 183 108 595 2530 108 177 160 2607 237 769 16 398 693 Page 1 shall inure to and bind the parties hereto, with respect to the prope above described. Said agreements, terms and provisions contained in saidsubdivisions A and B, (identical in all counties) are preprinted on the following pages hereof and are by the within reference thereto, incorporated hereinand made a part of this Deed of Trust for all purposes as fully as if set forth at length herein, and Beneficiary may charge for a statement regarding theobligation secured hereby, provided the charge thereof does not exceed the maximum allowed by laws The undersigned Trustor, requests that a copy of any notice of default and any notice of sale hereunder be mailed to him or her at his or her addresshereinbefore set forth. Dated A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. Signature of Trustor STATE OF CALIFORNIA COUNTYOF On before me, (here insert name and title of the officer) , notary public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the state of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal (This area for official notarial seal) Signature Page 2 DO NOT RECORD The following is a copy of Subdivisions A and B of the fictitious Deed of Trust recorded in each County in California as stated in the foregoing Deed of Trust and incorporated by reference in said Deed of Trust as being a part thereof as if set forth at length therein. A. To protect the security of this Deed of Trust, Trustor agrees: (1) To keep said property in good condition and repair; not to remove or demolish any building thereon; to complete or restore promptly and in good and workmanlike manner any building which may be constructed, damaged or destroyed thereon and to pay when due all claims for labor performed and materials furnished therefor; to comply with all laws affecting said property or requiring any alterations or improvements to be made thereon; not to commit or permit waste thereof; not to commit, suffer, or permit any act upon said property in violation of law; to cultivate, irrigate, fertilize, fumigate, prune and do all other acts which from the character or use of said property may be reasonably necessary, the specific enumerations herein not excluding the general. (2) To provide, maintain and deliver to Beneficiary fire insurance satisfactory to and with loss payable to Beneficiary, The amount collected under any fire or other insurance policy may be applied by Beneficiary upon any indebtedness secured hereby and in such order as Beneficiary may determine, or at option of Beneficiary the entire amount so collected or any part thereof may be released to Trustor. Such application or release shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice. (3) To appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of Beneficiary or Trustee; and to pay all costs and expenses, including cost of evidence of title and attorney's fees in a reasonable sum, in any action or proceeding in which Beneficiary or Trustee may appear, and in any suit brought by Beneficiary to foreclose this Deed. (4) To pay: at least ten days before delinquency all taxes and assessments affecting said property, including assessments on appurtenant water stock; when due, all encumbrances, charges and liens, with interest, on said property or any part thereof, which appear to be prior or superior hereto; all costs, fees and expenses of this Trust. Should Trustor fail to make any payment or to do any act as herein provided, then Beneficiary or Trustee, but without obligation so to do and without notice to or demand upon Trustor and without releasing Trustor from any obligation hereof, may, make or do the same in such manner and to such extent as either may deem necessary to protect the security hereof, Beneficiary or Trustee being authorized to enter upon said property for such purposes; appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of Beneficiary or Trustee; pay, purchase, contest or compromise any encumbrance, charge, or lien which in the judgement of either appears to be prior or superior hereto; and, in exercising any such powers, pay necessary expenses, employ counsel and pay his or her reasonable fees. (5) To pay immediately and without demand all sums so expanded by Beneficiary or Trustee, with interest from date of expenditure at the amount allowed by law in effect at the date hereof, and to pay for any statement provided for by law in effect at the date hereof regarding the obligation secured hereby, any amount demanded by the Beneficiary not to exceed the maximum allowed by law at the time when said statement is demanded. B. It is mutually agreed: (1) That any award of damages in connection with any condemnation for public use of or injury to said property or any part thereof is hereby assigned and shall be paid to Beneficiary who may apply or release such moneys received by him or her in the same manner and with the same effect as above provided for regarding disposition of proceeds of fire or other insurance. (2) That by accepting payment of any sum secured hereby after its due date, Beneficiary does not waive his or her right either to require prompt payment when due of all other sums so secured or to declare default for failure so to pay. (3) That at any time or from time to time, without liability therefor and without notice, upon written request of Beneficiary and presentation of this Deed and said note for endorsement, and without affecting the personal liability of any person for payment of the indebtedness secured hereby, Trustee may: reconvey any part of said property; consent to the making of any map or plat thereof; join in granting any easement thereon; or join in any extension agreement or any agreement subordinating the lien or charge hereof. (4) That upon written request of Beneficiary stating that all sums secured hereby have been paid, and upon surrender of this Deed and said note to Trustee for cancellation and retention or other disposition as Trustee in its sole discretion may choose and upon payment of its fees, Trustee shall reconvey, without warranty, the property then held hereunder. The recitals in such reconveyance of any matters or facts shall be conclusive proof of the truthfulness thereof. The Grantee in such reconveyance may be described as "the person or persons legally entitled thereto." (5) That as additional security, Trustor hereby gives to and confers upon Beneficiary the right, power and authority, during the continuance of these Trusts, to collect the rents, issues and profits of said property, reserving unto Trustor the right, prior to any default by Trustor in payment of any indebtedness secured hereby or in performance of any agreement hereunder, to collect and retain such rents, issues and profits as they become due and payable. Upon any such default, Beneficiary may at any time without notice, either in person, by agent, or by a receiver to be appointed by a court, and without regard to the adequacy of any security for the indebtedness hereby secured, enter upon and take possession of said property or any part thereof, in his or her own name sue for or otherwise collect such rents, issues, and profits, including those past due and unpaid, and apply the same, less costs and expenses of operation and collection, including reasonable attorney's fees, upon any indebtedness secured hereby, and in such order as Beneficiary may determine. The entering upon and taking possession of said property, the collection of such rents, issues and profits and the application thereof as aforesaid, shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice. (6) That upon default by Trustor in payment of any indebtedness secured hereby or in performance of any agreement hereunder, Beneficiary may declare all sums secured hereby immediately due and payable by delivery to Trustee of written declaration of default and demand for sale and of written notice of default and of election to cause to be sold said property, which notice Trustee shall Cause to be filed for record. Beneficiary also shall deposit with Trustee this Deed, said note and all documents evidencing expenditures secured hereby. After the lapse of such time as may then be required by law following the recordation of said notice of default, and notice of sale having been given as then required by law, Trustee, without demand on Trustor, shall sell said property at the time and place fixed by it in said notice of sale, either as a whole or in separate parcels, and in such order as it may determine, at public auction to the highest bidder for cash in lawful money of the United States, payable at time of safe. Trustee may postpone sale of all or any portion of said property by public announcement at such time and place of sale, and from time to time thereafter may postpone such sale by public announcement at the time fixed by the preceding postponement. Trustee shall deliver to such purchaser its deed conveying the property so sold, but without any covenant or warranty, express or implied. The recitals in such deed of any matters or facts shall be conclusive proof of the truthfulness thereof. Any person, including Trustor, Trustee, or Beneficiary as hereinafter defined, may purchase at such sale. After deducting all costs, fees and expenses of Trustee and of this Trust, including cost of evidence of title in connection with sale, Trustee shall apply the proceeds of sale to payment of: all sums expended under the terms hereof, not then repaid, with accrued interest at the amount allowed by law in effect at the date hereof; all other sums then secured hereby; and the remainder, if any, to the person or persons legally entitled thereto. (T) Beneficiary, or any successor in ownership of any indebtedness secured hereby, may from time to time, by instrument in writing, substitute a successor or successors to any Trustee named herein or acting hereunder, which instrument, executed by the Beneficiary and duly acknowledged and recorded in the office of the recorder of the county or counties where said property is situated, shall be conclusive proof of proper substitution of such successor Trustee or Trustees, who shall, without conveyance from the Trustee predecessor, succeed to all its title, estate, rights, powers and duties. Said instrument must contain the name of the original Trustor, Trustee and Beneficiary hereunder, the book and page where this Deed is recorded and the name and address of the new Trustee. (8) That this Deed applies to, inures to the benefit of, and binds all parties hereto, their heirs, legatees, devisees, administrators, executors, successors, and assigns. The term Beneficiary shall mean the owner and holder, including pledgees of the note secured hereby, whether or not named as Beneficiary herein. In this Deed, whenever the context so requires, the masculine gender includes the feminine and/or the neuter, and the singular number includes the plural. (9) The Trustee accepts this Trust when this Deed, duty executed and acknowledged, is made a public record as provided by law. Trustee is not obligated to notify any party hereto of pending sale under any other Deed of Trust or of any action or proceeding in which Trustor, Beneficiary or Trustee shall be a party unless brought by Trustee. Page 3 DO NOT RECORD REQUEST FOR FULL RECONVEYANCE TO CHICAGO TITI E COMPANY The undersigned is the legal owner and holder of the note or notes, and of all other indebtedness secured by the foregoing Deed of Trust. Saidnote or notes, together with all other indebtedness secured by said Deed of Trust have been fully paid and satisfied; and you are hereby requested anddirected, on payment to you of any sums awing to you under the terms of said Deed of Trust, to cancel said note or notes above mentioned, and allother evidence of indebtedness secured by said Deed of Trust delivered to you herewith, together with the said Deed of Trust, and to reconvey, without warranty, to the parties designated by the terms of said Deed of Trust, all the estate now held by you under the same. Dated Please mail Deed of Trust, Note and Reconveyance to Do not lose or destroy this Deed of Trust OR THE NOTE which it secures. Both must be delivered to the Trustee for cancellation before reconveyance will be made. Chicago Title Page 4 CASE NAME: CASE NO.: AGAR PAL TRUSTEES v. DMJ HOME SOLUTIONS, LLC, et al. 19CV344918 PROOF OF SERVICE BY MAIL I am a citizen of the United States and employed in Santa Clara County, California. I am over the age of eighteen years and not a party to the within-entitled action. My business address is 60 South Market Street, Suite 1000, San Jose, California 95113-2336. I am readily familiar with this firm's practice for collection and processing of correspondence for mailing with the United States Postal Service. On March 11 2020, I placed with this firm at the above address for deposit with the United States Postal Service a true and correct copy of the within document(s): 10 12 13 14 15 16 17 DECLARATION OF DOUGLAS W. DAL CIELO IN SUPPORT OF PLAINTIFFS'OTION TO ENFORCE SETTLEMENT AGREEMENT in a sealed envelope, postage fully paid, addressed as follows: William B Clayton, Jr., Esq. CLAYTON dt McEVOY P.C. 333 W. Santa Clara Street ¹618 San Jose, CA 95113-1721 Attorneysfor Defendants DMJHOME SOL UTIONS, LLC and DA VID HERRERA 18 19 20 21 22 Following ordinary business practices, the envelope was sealed and placed for collection and mailing on this date, and would, in the ordinary course of business, be deposited with the United States Postal Service on this date. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on March 11, 2020, at San Jose, California. 23 24 25 Helen Lee 26 27 BURKE, WILLIAMS & SORENSEN, LLP AEEOEwEEE AE LAw SAM JOSE SJ - San Jose JJ4842-0928-7583 v3 PROOF OF SERVICE BY MAIL