Judgment

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

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Reviewed B : R. Tien on 8/13/202 4:15 PM Envelope: 4762124 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA ARVIND K. AGARWAL AND NEELO AGARWAL AS TRUSTEES OF THE AGARWAL FAMILY TRUST DATED AUGUST 2, 2001, Plaintiffs, V. 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. ase N0. 19CV344918 SED] JUDGMENT Action Filed: March 20, 2019 Filed August17,2020 Clerk of the COL Superior Court < County of Santa 19CV34491 8 By: afloresca Plaintiffs ARVIND K. AGARWAL AND NEELO AGARWAL AS TRUSTEES OF THE AGARWAL FAMILY TRUST DATED AUGUST 2, 2001 (hereinafter collectively “Agarwal” 0r “Plaintiff’) Motion to Enforce Settlement Agreement (hereinafter “Motion t0 Enforce”) pursuant t0 Code 0f Civil Procedure section 664.6 came 0n for hearing on July 16, 2020. Plaintiffs Motion t0 Enforce was brought against Defendants DMJ HOME SOLUTIONS, LLC (hereinafter “DMJ”) and DAVID HERRERA (hereinafter “Herrera”) t0 enforce a settlement agreement dated January 6, 2020. On July 20, 2020, the Court issued an Order Granting Plaintiffs Motion to Enforce and stated “Judgment will be entered in favor 0f plaintiff and against defendant in the SJ - San Jose #4843-6004-0647 V2 07693-0001 -1- Irt )f CA Clare [P OSED] JUDGMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 amount 0f $950,000. Plaintiff is entitled t0 prejudgment interest and reasonable attorneys fees and costs.” Accordingly, IT IS HEREBY ADJUDGED AND DECLARED that judgment is entered in favor 0f Plaintiff and against Defendants DMJ and HERRERA, jointly and severallyfinfi: principal amount 0f $950,000. Plaintiff is also awarded prejudgment interest at the rate 0f 10% per annum from February 20, 2020 through the date 0f this Judgment pursuant t0 Civil Code section 3289(b). The daily prejudgment interest amount is $260.47 and the total amount 0f prejudgment interest is $ IT IS FURTHER ADJUDGED AND DECLARED that pursuant t0 the Court’s Order filed on July 24, 2019 denying Defendant DMJ’s Motion t0 Expunge Lis Pendens, Plaintiff stated a real property claim against Defendant DMJ. Plaintiff has a judgment lien against each 0f the real properties described below, each 0f which relates back t0 the date 0f recording 0f the Lis Pendens as t0 each respective property identified below. The real properties subject t0 a judgment lien, as 0f the date 0f the recording 0f each Lis Pendens, are as follows: 1. 5401 Claremont Avenue, Oakland, CA 94618; Assessor’s Parcel Number 14- 1273-16, Notice 0f Pendency 0f Action recorded in Alameda County 0n May 20, 2019, as Document Number 2019093484; 2. 118 Telles Lane, Fremont, CA 94539; Assessor’s Parcel Number 513-0401-073- 02, Notice 0f Pendency 0f Action recorded in Alameda County 0n May 20, 2019, as Document Number 20 1 9093485 ; 3. 10410 N. Stelling Road, Cupertino, CA 95014; Assessor’s Parcel Number 326- 30-094, Notice 0f Pendency 0f Action recorded in Santa Clara County 0n May 20, 2019, as Document Number 24183363; 4. 7825 Lilac Court, Cupertino, CA 95014; Assessor’s Parcel Number 359-03-028, Notice 0f Pendency 0f Action recorded in Santa Clara County 0n May 20, 2019, as Document Number 241 83365; SJ - San Jose #4843-6004-0647 V2 _ 2 _ 07693-0001 20 02:33 PNk [PR ED] JUDGMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5. 18833 Tuggle Avenue, Cupertino, CA 95014; Assessor’s Parcel Number 375-33- 056, Notice 0f Pendency 0f Action recorded in Santa Clara County 0n July 31, 2019, as Document Number 24243382; 6. 15435 Blackberry Hill Road, Los Gatos, CA 95030; Assessor’s Parcel Number 532-25-015, Notice 0f Pendency 0f Action recorded in Santa Clara County 0n September 26, 2019, as Document Number 24291008; 7. 15445 Blackberry Hill Road, Los Gatos, CA 95030; Assessor’s Parcel Number 532-25-014, Notice 0f Pendency 0f Action recorded in Santa Clara County 0n November 19, 2019, as Document Number 24334908. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Plaintiff is awarded costs in the amount 0f $ and is awarded attorney fees in the amount 0f $ for all fees and costs incurred in connection with Plaintiffs Motion to Enforce. Plaintiff shall file their Memorandum 0f Costs and Motion for Attorney’s Fees pursuant t0 the Code 0f Civil Procedure sections 1032 and 1033.5. WWW 17 . Dated: August , 2020 Manouklan, Socrates P. JUDGE OF THE SUPERIOR COURT SJ - San Jose #4843-6004-0647 V2 _ 3 _ 07693-0001 [PR0 SED] JUDGMENT [I ‘ V W 60 South Market Street - Suite 1000 \lj‘:-""‘;‘\; [ H w ‘ . San Jose, California 95113-2336 J“ t l L f voice 408.606.6300 - fax 408.606.6333 BURKE,W|LLIAMS&SOREN EN, LLP WWW.bWS|aW.Com Direct No.1 408.606.6316 Our File No.: 07693-0001 baffruml@bwslavv.com August 13, 2020 VIA REGULAR & ELECTRONIC MAIL Honorable Socrates Peter Manoukian Santa Clara Superior Court 191 North First Street, Department 20 Santa Clara, CA 951 13 Re: Arvind Agarwal, et al v. David Herrera, et al. Santa Clara County Superior Court Case No. 19CV344918 Dear Judge Manoukian: We are in receipt of DMJ Home Solutions, LLC’s (“DMJ”) and David Herrera’s (“Herrera”) (collectively “Defendants”) objections to the [Proposed] Judgment submitted by Plaintiffs and their counter [Proposed] Judgment. With respect to the accrual date for the pre-judgment interest, we acknowledge the February 20, 2020 date is the correct start date and have corrected our version of the [Proposed] Judgment, which is submitted herewith. On the issue of the Judgment Liens on the real property against which valid Lis Pendens were previously recorded, this is critical in order to preserve Plaintiff’s security position. The settlement agreement made it clear that those Lis Pendens were not to be released unless and until Defendants made the initial payment of $800,000; indeed escrow instructions so reflected. Defendants never made the $800,000 payment, or any portion thereof. With the entw of Judgment, the Lis Pendens will be replaced by the Judgment but Plaintiff's priority position should not be prejudiced as a result of Defendants’ breach of the settlement agreement. Again, the settlement agreement expressly preserved that priority position unless and until the initial $800,000 payment was made. The settlement agreement also provided for the recording of Deeds of Trust on three specified properties to secure the remaining $150,000 owed under the Settlement Agreement. On the issue of the recorded Lis Pendens and the retroactive date of the Judgment, “[a]fter the judgment is rendered, the effect of the Iis pendens is also to defeat or take Los Angeles - Inland Empire - Marin County - Oakland - Orange County - Palm Desert - San Diego - San Francisco - Silicon Valley - Ventura County w ‘7»:- “\A Iain 1:“: a ‘2‘ BURKE, WILLIAMS & SORENSEN, LLP / Hon. Socrates Peter Manoukian August 13, 2020 Page 2 priority over a prior transfer or encumbrance that was not of record before the Iis pendens was recorded.” (See Miller & Starr California Real Estate, 4th Edition, § 10:148.Nature and effect of a Iis pendens; see also Civil Code § 1214). Plaintiffs’ [Proposed] Judgment is consistent with this rule and preserves the priority established through the recording of the Lis Pendens. Any Judgment to the contrary would result in a benefit to Defendants as a result of their breach of the settlement agreement. These Lis Pendens were deemed valid by a prior Order of a Judge of this Court. With respect to CRC rule 3.1312(3), this rule only applies to a [Proposed] Order on a law and motion matter and has no application to the [Proposed] Judgment submitted by Plaintiffs. Based on the foregoing, consistent with the settlement agreement between the Parties, we respectfully request that the Court issue a Judgment preserving any priority obtained by Plaintiffs through the recording of the various Lis Pendens. As stated above, we have enclosed a revised [Proposed] Order correcting the prejudgment interest issue. Sincerely, Brian M. A runti BMA:HLH Encl. cc: Larry McEvoy (w/ Encl.) SJ - San Jose #4840-6717-5623 v1 8/13/20