Opposition Objections

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 Douglas W. Dal Cielo (SBN 157109) E-mail: ddalcielo@bwslaw.com Brian M. Affrunti (SBN 227072) E-mail: baffrunti@bwslaw.com BURKE, WILLIAMS & SORENSEN, LLP 60 S. Market Street, Suite 1000 San Jose, CA 951 13 Tel: 400.606.6300Fax: 408.606.6333 Attorneys for Plaintiffs ARVIND K. AGARWAL AND NEELO AGARWAL AS TRUSTEES OF THE AGARWAL TRUST DATED AUGUST 2, 2001 SUPERIOR COURT OF THE STATE OF CALIFORNIA Electronically Filed by Superior Court of CA, County of Santa Clara, on 1/11/2021 3:10 PM Reviewed By: F. Miller Case #1 9CV34491 8 Envelope: 5616716 COUNTY OF SANTA CLARA ARVIND K. AGARWAL AND NEELO AGARWAL AS TRUSTEES OF THE AGARWAL 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, Case N0. 19CV344918 PLAINTIFFS’ RESPONSE TO DEFENDANT’S EVIDENTIARY OBJECTIONS Date: January 19, 2021 Time: 9:00 am Dept.:20 Judge: Hon. Socrates P. Manoukian Action Filed: March 20, 2019 Defendants. Para- Material Obiected Grounds for Response t0 Ruling 0n _graph T0: Obiection: Obiections t0 Evidence Obiection: 5. Ihave spoken with Evidence Haw. The statement Sustained: the management C0de§ 1200 is non-hearsay as it goes team of Triumph Hearsay. Lack 0f t0 state 0fmind and not Overruled: Capital Partners, the Foundation; lien holder 0n the Speculation; the truth 0f the matter. The document itself -1- PLAINTIFFS’ RESPONSE TO DEFENDANT’S EVIDENTIARY OBJECTIONS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Blackberry Hill property and the Claremont property. Their foreclosure process 0n those two properties has been delayed and they wanted t0 understand what the status 0f our Settlement was. My conversations with the management team at Triumph Capital Partners reinforced my belief that Herrera does not have any intention 0f 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 Improper Opinion and Conclusion. falls under the business record exception t0 the hearsay rule. It is also being used for purposes of impeachment. Foundation/Speculation. Mr. Agarwal testified as t0 how he obtained the document from Triumph Capital Partners. The evidence is being offered for purposes 0f impeachment. Notably, Mr. Herrera does not deny the “void” stamp was applied by him, or at his direction. Improper Opinion/Conclusion. The testimony is not opinion but is based in fact. If it is construed as opinion testimony, Mr. Agarwal is -2- PLAINTIFFS’ RESPONSE TO DEFENDANT’S EVIDENTIARY OBJECTIONS Claremont Property, qualified t0 offer such which was part 0f opinion testimony based 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the Complaint in 0n his knowledge 0f the this action, had subj ect transaction and purportedly been his personal knowledge VOIDED by me in and experience. April 20 1 9 t0 falsely imply that DMJ had sufficient equity in the Claremont project so Triumph Capital Partners would consider refinancing the Claremont Property. Inever signed the document voiding the Claremont Property Joint Venture Agreement and Herrara, or someone at his direction, forged my signature 0n the document. A true and correct copy 0f this fraudulent -3- PLAINTIFFS’ RESPONSE TO DEFENDANT’S EVIDENTIARY OBJECTIONS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 document is attached hereto as Exhibit B. Based 0n the production 0f 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." Earlier this year, I became aware 0f wiring instructions that Defendants were circulating t0 investors and house flipping partners t0 make all payments t0 a bank account held by "The Pink Berry Trust" at Evidence Code §1200 Hearsay. Lack of Foundation; Speculation; Improper Opinion and Conclusion Hearsay. The statement is non-hearsay as it goes t0 state 0fmind and not the truth 0f the matter. The document itself falls under the business record exception t0 the hearsay rule and is a party admission and statement against interest. Sustained: Overruled: -4- PLAINTIFFS’ RESPONSE TO DEFENDANT’S EVIDENTIARY OBJECTIONS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 t0 us 0n January 29, 2019. The sale 0f the Weeth Property without our knowledge 0r consent was also the basis 0f our Complaint in this case. Based 0n research I have conducted, The Pink Berry Trust is a trust Foundation/Speculation. Mr. Herrera does not deny that this record is a business record prepared and maintained by DMJ in its ordinary course 0f business. There is no dispute as t0 the authenticity 0f the document. Improper Opinion/Conclusion. The testimony is not opinion but is based in fact. If it is construed as opinion testimony, Mr. Agarwal is qualified t0 offer such opinion testimony based on his knowledge 0f the subj ect transaction and his personal knowledge and experience. -5- PLAINTIFFS’ RESPONSE TO DEFENDANT’S EVIDENTIARY OBJECTIONS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 created by Herrera and his wife, Xenia Herrera. Herrera and Xenia Herrera are the trustees 0f The Pink Berry Trust." Based upon Evidence Code § Haw. Public Sustained: my research 0f 1200 Hearsay. Records exception t0 Nevada Secretary 0f Lack 0f the hearsay rule. Overruled: State records for Foundation. DMJ when the Articles 0f Organization were filed 0n July 18, 20 1 6 with the Secretary 0f State 0f Nevada, the original managing members were listed as David Herrera and Xenia Herrera With an address 0fPO Box 27740, Las Vegas NV 89126 .A true and correct copy 0f the Articles 0f Organization is Relevance. The evidence is relevant t0 Defendants use 0f The Pink Berry Trust as a shell entity t0 hold assets intended for DMJ in an effort t0 shield those assets from creditors. Foundation. Mr. Herrera testified as t0 the manner in which he obtained the public records. -6- PLAINTIFFS’ RESPONSE TO DEFENDANT’S EVIDENTIARY OBJECTIONS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 attached hereto as Exhibit D." Upon researching the required annual filings with the Secretary 0f State 0f Evidence Code §1200 Hearsay. Lack of Foundation. Speculation; Hearsay. Public Records exception t0 the hearsay rule. W. Mr. Nevada, I Improper Opinion Herrera testified as t0 discovered The Pink and Conclusion. the manner in which he Berry Trust was CCP§ 1 856 Parol obtained the public replaced as the evidence records. managing member 0fDMJ 0n June30, Improper 2020.N0 filing was Opinion/Conclusion. done in June 2019 The testimony is not with the State 0f opinion but is based in Nevada t0 reflect the fact derived from public change 0f the records. If it is managing member construed as opinion ofDMJ to The Pink testimony, Mr. Agarwal Berry Trust. If The is qualified t0 offer such Pink Berry Trust opinion testimony based had been appointed 0n his knowledge 0f the the managing subj ect transaction and member 0n January his personal knowledge 4, 201 9, the annual and experience. filing with the State _ 7 _ PLAINTIFFS’ RESPONSE TO DEFENDANT’S EVIDENTIARY OBJECTIONS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 0fNevada filed June 20 1 9 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 0f the initial filing for DMJ is attached hereto as Exhibit E." Parol Evidence. This objection is inapplicable as the evidence proffered does not concern any agreement between the parties. T0 the extent it does, there is a fraud exception t0 the Parol Evidence rule which is applicable here. In October 2019, prior t0 the settlement in this case, Herrera filed with the Secretary 0f State 0f California Articles 0f Organization for an entity called Cobalt Construction LLC. The Pink Berry Trust is the Evidence Code §1200 Hearsay. Irrelevant. Lack 0f Foundation. Hearsay. Public Records exception t0 the hearsay rule. Relevance. The evidence is relevant t0 Defendants use 0f The Pink Berry Trust as a shell entity t0 hold assets intended for DMJ in an effort t0 shield those assets from Sustained: Overruled: -8- PLAINTIFFS’ RESPONSE TO DEFENDANT’S EVIDENTIARY OBJECTIONS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Managing Member listed, with David Herrera being listed as the Trustee 0f the Pink Berry Trust. A different address was used for The Pink Berry Trust 0f 1267 Willis Street, Suite 200, Redding , CA 96001. A true and correct copy 0f the Articles 0f Organization for Cobalt Construction, LLC is attached hereto as Exhibit F." creditors. Foundation. Mr. Herrera testified as t0 the manner in which he obtained the public records. 10. Ihave 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 Evidence Code §1200 Hearsay. Irrelevant. Lack 0f Foundation. Hearsay. Public Records exception t0 the hearsay rule. Relevance. The evidence is relevant t0 Defendants use 0f The Pink Berry Trust as a shell entity t0 hold assets intended for DMJ Sustained: Overruled: -9- PLAINTIFFS’ RESPONSE TO DEFENDANT’S EVIDENTIARY OBJECTIONS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 managing members. On January 9, 2020, the Pink Berry Trust was named as the sole managing member 0fXenia 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 0f the Statement of Information filed January 9, 2020 is attached hereto as Exhibit G." in an effort t0 shield those assets from creditors. Foundation. Mr. Herrera testified as t0 the manner in which he obtained the public records. 11. A11 of these actions demonstrate Hen-era and Xenia Hen-era' s intention t0 try and hide assets and play shell games t0 avoid payments under the Settlement, and Evidence Code § 800 Impermissible Opinion lacking in foundation and based upon hearsay. Evidence Code § 1200 Hearsay. The statement is non-hearsay as it goes t0 state 0fmind and not the truth 0f the matter. Improper Opinion/Conclusion. The testimony is not Sustained: Overruled: -10- PLAINTIFFS’ RESPONSE TO DEFENDANT’S EVIDENTIARY OBJECTIONS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 resulting Judgment." opinion but is based in fact. If it is construed as opinion testimony, Mr. Agarwal is qualified t0 offer such opinion testimony based on his knowledge 0f the subj ect transaction and his personal knowledge and experience. 12. Earlier this year, Pelorus Capital foreclosed 0n two properties formerly held by DMJ, properties located at 7825 Lilac Ct Cupertino , CA (" Lilac Property") and 118 Telles Lane, Fremont CA ("Telles Property") Prior t0 the foreclosures, the Lilac Property had a 2nd lien position in the amount 0f Lack of Foundation; Evidence Code §800 Impermissible Opinion. Evidence Code§ 1200 Hearsay Hearsay. The statement is non-hearsay as it goes t0 state 0fmind and not the truth 0f the matter. T0 the extent it is hearsay, the evidence is a party admission and statement against interest. The public records exception also applies. m. Mr. Agarwal has personal knowledge concerning the subj ect properties and the lien positions Sustained: Overruled: -11- PLAINTIFFS’ RESPONSE TO DEFENDANT’S EVIDENTIARY OBJECTIONS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 $735,000 and a 3rdlien position in the amount 0f $ 1 35,000 and the Telles Property had a 2nd lien position 0f $487,000 and a 3rd lien position in the amount 0f $148,000. This information was learned from title reports that were obtained in November 2019 for the properties held by DMJ. I have come t0 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 t0 share the profits when the held by the lenders/investors. Improper Opinion/Conclusion. The testimony is not opinion but is based in fact. If it is construed as opinion testimony, Mr. Agarwal is qualified t0 offer such opinion testimony based on his knowledge 0f the subj ect transaction and his personal knowledge and experience. -12- PLAINTIFFS’ RESPONSE TO DEFENDANT’S EVIDENTIARY OBJECTIONS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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." 13. In sum, Herrera has directly benefited from the foreclosures by wiping out substantial secured debt 0n the properties through his share 0f the increased profits when the properties are sold." Foundation; Impermissible Opinion/Conclusion Speculation Foundation. Mr. Agarwal has personal knowledge concerning the subj ect properties and the lien positions held by the lenders/investors. Improper Opinion/Conclusion. The testimony is not opinion but is based in fact. If it is construed as opinion testimony, Mr. Agarwal is qualified t0 offer such opinion testimony based Sustained: Overruled: -13- PLAINTIFFS’ RESPONSE TO DEFENDANT’S EVIDENTIARY OBJECTIONS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 on his knowledge 0f the subj ect transaction and his personal knowledge and experience. 14. I suspect Herrera Speculation; Evidence Mr. Herrera has Sustained: will try t0 negotiate Code§ 1200 Hearsay, admitted the Stelling a similar agreement Lack of Foundation. Property has been Overruled: with Pivotal Capital, foreclosed upon by the theist lien holder on lender in first position. the property located The lien amounts are 10410 N. Stelling, public record and are Cupertino, CA within the personal ("Stelling knowledge 0f Mr. Property").The Agarwal. The balance Stelling Property has 0f this paragraph is not a 2ndlien of evidence but argument $6 1 9,000 and a as t0 what may transpire 3rdlien $300,000. (0r now may have When these liens are already transpired) in wiped out through the future. the foreclosure, there will be plenty 0f profit t0 share between Herrera and Pivotal Capital. -14- PLAINTIFFS’ RESPONSE TO DEFENDANT’S EVIDENTIARY OBJECTIONS \chm-b 00 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated:January 11, 2021 BURKE WILLIAMS & SORENSEN, LLP By: SJ - San Jose #4815-0398-7414 v1 -15- 5%- BRIAN M. AFFMUNTI Attorneys for Plaintiffs ARVIND K. AGARWAL AND NEELO AGARWAL AS TRUSTEES OF THE AGARWAL TRUST DATED AUGUST 2, 2001 PLAINTIFFS’ RESPONSE TO DEFENDANT’S EVIDENTIARY OBJECTIONS