Opposition ObjectionsCal. Super. - 6th Dist.March 20, 2019Electronically 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 10 ll 12 l3 l4 15 l6 17 18 l9 20 21 22 23 24 25 26 27 28 William B. Clayton, Jr. (S.B.N. 6081 1) CLAYTON & McEVOY, P.C. 333 W. Santa Clara Street, Suite 950 San Jose, California951 13-1721 Telephone:(408) 293-91 00 Facsimile:(408) 293-41 72 Attorney for Defendant DMJ HOME SOLUTIONS, LLC/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 N0. I9CV344918 AGARWAL AS TRUSTEES OF THE AGARWAL FAMILY TRUST DATED DEFENDANT DMJ HOME SOLUTIONS, AUGUST 2, 2001, LLC/DAVID HERRERAEVIDENTIARY OBJECTIONS T0 PLAINTIFFS’ ARVIND Plaintiff, K. AGARWAL DECLARATION SUBMITTED IN SUPPORT OF v. PLAINTIFF’S MOTION TO AMEND JUDGMENT DMJ HOME SOLUTIONS, LLC, A NEVADA LLC; DAVID HERRERA, APEX Date: January I9, 2021 DEVELOPMENT GROUP, LLC, A NEVADA Time: 9:00 a.m. LLC, ERIC FOGELSONG, DAN NOBLE, Dept: 20 MICHAELA ROUSSEAU AND DOES l Judge: Hon. Socrates P. Manoukian through 150, inclusive, Defendants. Complaint Filed: 3/20/2019 Defendants DMJ HOME SOLUTIONS, LLC and DAVID HERRERA submit the following evidentiary objections to the Declaration of Arvind K Agarwal (“Agarwal Declaration”) submitted in support to Plaintiff’s Motion To Amend Judgment. 1. Agarwal Declaration 1]5-2:23-27, 321-10. 1|5 I have spoken with the management team of Triumph Capital Partners, the lien holder on the Blackberry Hill property and the Claremont property. Their foreclosure process on those two properties has been delayed and they wanted to understand what the status of our Settlement was. My conversations with the management team at Triumph Capital -1- DEFENDANT DMJ HOME SOLUTIONS, LLC/ DAVID HERRERA’S EVIDENTIARY OBJECTIONS TO PLAINTIFF ARVIND K. AGARWAL DECLARATION SUBMITTED IN SUPPORT OFMOTION TO AMEND JUDGMENT lO ll 12 13 l4 15 l6 l7 18 l9 20 21 22 23 24 25 26 27 28 Partners reinforced my belief that Herrera does not have any intention of paying the settlement and the depth of his fraud. They disclosed they were sent a document which showed that the Joint Venture Agreement for the Claremont Property, which was part of the Complaint in this action, had purportedly been VOIDED by me in April 2019 to falsely imply that DMJ had sufficient equity in the Claremont project so Triumph Capital Partners would consider refinancing the Claremont Property. I never signed the document voiding the Claremont Property Joint Venture Agreement and Herrara, or someone at his direction, forged my signature on the document. A true and correct copy of this fraudulent document is attached hereto as Exhibit B. Based on the production of this fabricated document that created the false impression DMJ bad equity in the Claremont Property, Triumph Capital Partners financed $3,000,000 with an additional $800,000 for construction hold back.” Evidentiary Objection: Evidence Code§ 1200 Hearsay. Lack of Foundation; Speculation; Improper Opinion and Conclusion. 2. Agarwal Declaration 1]6-3:1 1-19. ...1l6. Earlier this year, I became aware of wiring instructions that Defendants were circulating to investor s and house flipping partners to make all payments t0 a bank account held by "The Pink Berry Trust" at Wells Fargo Bank. A true and correct copy 0f the wire instructions is attached hereto as Exhibit C. The instructions implied this was effective January 4,2019,before Defendants sold the Weeth Property which we purportedly had a secured interest without notice to us on January 29, 2019. The sale of the Weeth Property without our knowledge or consent was also the basis of our Complaint in this case. Based on research I have conducted, The Pink Berry Tmst is a trust created by Herrera and his wife, Xenia Herrera. Herrera and Xenia Herrera are the trustees of The Pink Berry Trust.” Evidentiary Objection: Evidence Code §1200 Hearsay. Lack of Foundation; Speculation; Improper Opinion and Conclusion 3. Agarwal Declaration 117- 3:20-24.7. “. . . Based upon my research of Nevada Secretary of State records for DMJ when the Articles of Organization were filed on July 18, 2016 with the Secretary of State of Nevada, the original managing members were listed as David Herrera and Xenia Herrera with -2- DEFENDANT DMJ HOME SOLUTIONS, LLC/ DAVID HERRERA’S EVIDENTIARY OBJECTIONS TO PLAINTIFF ARVIND K. AGARWAL DECLARATION SUBMITTED FN SUPPORT OFMOTION TO AMEND JUDGMENT 10 ll 12 13 l4 15 16 l7 l8 19 20 21 22 23 24 25 26 27 28 an address of PO Box 27740, Las Vegas NV 89126 .A true and correct copy of the Articles of Organization is attached hereto as Exhibit D.” Evidentiary Objection: Evidence Code §1200 Hearsay. Lack of Foundation 4. Agarwal Declaration {l8-3225-28. 8. Upon researching the required annual filings with the Secretary of State of Nevada, I discovered The Pink Berry Trust was replaced as the managing member of DMJ on June30, 2020.No filing was done in June 2019 with the State of Nevada to reflect the change of the managing member of DMJ to The Pink Berry Trust. If The Pink Berry Trust had been appointed the managing member 0n January 4, 201 9, the annual filing with the State of Nevada filed June 2019 should have reflected that change. The address used for The Pink Berry Trust was the same that was used for the Herrera's when with the original filing for DMJ. A true and correct copy of the initial filing for DMJ is attached hereto as Exhibit E.” Evidentiary Objection: Evidence Code §1200 Hearsay. Lack of Foundation. Speculation; Improper Opinion and Conclusion. CCP§1856 Parol evidence 5. Agarwal Declaration 119-416-11. 119. In October 2019, prior to the settlement in this case, Herrera filed with the Secretary of State of California Articles 0f Organization for an entity called Cobalt Construction LLC. The Pink Berry Trust is the Managing Member listed, with David Herrera being listed as the Trustee of the Pink Berry Trust. A different address was used for The Pink Berry Trust of 1267 Willis Street, Suite 200, Redding , CA 96001. A true and correct copy of the Articles of Organization for Cobalt Construction, LLC is attached hereto as Exhibit F.” Evidentiary Objection: Evidence Code§1200 Hearsay. Irrelevant. Lack of Foundation 6. Agarwal DeclarationfllO-4:12-17 filo. I have also learned Herrera and Xenia Herrera formed "Xenia MB Herrera, LLC" as a California Limited Liability Company on January 12 2018, with David and Xenia Herrera as the managing members. On January 9, 2020, the Pink Berry Trust was named as the sole managing member of Xenia MB Herrera, LLC. The 1267 Willis Street, Suite 200, Redding CA 96001 address was used for The Pink Berry Trust. A true and correct copy of the Statement of Information filed January 9, 2020 is attached hereto as Exhibit G.” -3- DEFENDANT DMJ HOME SOLUTIONS, LLC/ DAVID HERRERA’S EVIDENTIARY OBJECTIONS TO PLAINTIFF ARVIND K. AGARWAL DECLARATION SUBMITTED IN SUPPORT OFMOTION TO AMEND JUDGMENT lO ll 12 l3 l4 15 l6 l7 18 l9 20 21 22 23 24 25 26 27 28 Evidentiary Objection: Evidence Code §1200 Hearsay. Irrelevant. Lack of Foundation 7. Agarwal Declarationfll 1-4:]8-20 1111. All 0f these actions demonstrate Herrera and Xenia Herrera' s intention to try and hide assets and play shell games to avoid payments under the Settlement, and resulting Judgment.” Evidentiary Objection: Evidence Code§ 800 Impermissible Opinion lacking in foundation and based upon Hearsay. Evidence Code §1200. 8. Agarwal Declaration 1H2- 4221-29; 5: 1-4. 1112. Earlier this year, Pelorus Capital foreclosed on two properties formerly held by DMJ, properties located at 7825 Lilac Ct Cupertino , CA (" Lilac Property") and 1 18 Telles Lane, Fremont CA ("Telles Property") Prior to the foreclosures, the Lilac Property had a 2nd lien position in the amount of $735,000 and a 3rdlien position in the amount of $135,000 and the Telles Property had a 2nd lien position 0f $487,000 and a 3rd lien position in the amount of $148,000. This information was learned from title reports that were obtained in November 2019 for the properties held by DMJ. I have come to learn that DMJ has negotiated a side deal where he is assisting Pelorus Capital finishing the Lilac Property and Telles Property projects with an agreement to share the profits when the projects are completed and the homes are sold. With over $1 ,500,000 in debt wiped out through the foreclosures, there will be plenty of profit t0 share." Evidentiary Objection: Lack of Foundation; Evidence Code §800 Impermissible Opinion. Evidence Code§ 1 200 Hearsay 9. Agarwal Declaration 1H 3-5z5-7. 1113.1n sum, Herrera has directly benefited from the foreclosures by wiping out substantial secured debt on the properties through his share of the increased profits when the properties are sold.” Evidentiary Objection: Foundation; Impermissible Opinion/Conclusion Speculation 10. Agarwal Declaration 1114-528-12. 1114. I suspect Herrera will try to negotiate a similar agreement with Pivotal Capital, thelst lien holder on the property located 10410 N. Stelling, Cupertino, CA ("Stelling Property").The Stelling Property has a 2ndlien of $619,000 and a 3rdlien $300,000. When'these liens are wiped out through the foreclosure, there will be plenty of profit to share between .4- DEFENDANT DMJ HOME SOLUTIONS, LLC/ DAVID HERRERA’S EVIDENTIARY OBJECTIONS TO PLAINTIFF ARVIND K. AGARWAL DECLARATION SUBMITTED IN SUPPORT OFMOTION TO AMEND JUDGMENT lO ll 12 l3 14 l5 l6 l7 18 19 20 21 22 23 24 25 26 27 28 Herrera and Pivotal Capital.” Evidentiary Objection: Speculation; Evidence Code§1200 Hearsay, Lack of Foundation. Date: January 5, 2021 By: CLAYTON & McEVOY, PC /S/ William B. Clayton, Jr. Attorney for Defendant DMJ HOME SOLUTIONS, LLC DEFENDANT DMJ HOME SOLUTIONS, LLC/ DAVID HERRERA’S EVIDENTIARY OBJECTIONS TO PLAINTIFF ARVIND K. AGARWAL DECLARATION SUBMITTED IN SUPPORT OFMOTION TO AMEND JUDGMENT -5-