Declaration In SupportCal. Super. - 6th Dist.March 2, 202121 CV378991 Santa Clara - Civil D Harris Clifford R. Homer, Esq., State Bar No. 154353 1 Paymon Hifai, Esq., State Bar N0. 306133 Electronicany Filed 2 HORNER LAW GROUP, P.C. by Superior Court of CA, 800 S, Broadway, Sulte 200 count of Santa ClaraWalnut Creek, California 94596 y _ ’ 3 Telephone: (925) 943-6570 0" 8/13/2021 4-24 PM_ Facsimile: (925) 943-6888 REVIGWGd By: D Harrls 4 Case #21 CV378991 5 Attorneys for Plaintiff Frederick Hart, Jr. Envelope: 7091 044 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SANTA CLARA 10 UNLIMITED JURISDICTION 11 FREDERICK HART, JR, an individual No. 21CV378991 12 Plaintiff, DECLARATION 0F PAYMON HIFAI IN 13 vs. SUPPORT 0F FREDERICK HART, JRJS MOTION FOR ENTRY 0F DEFAULT 0F 14 MICHAEL HART, an individual, FRANCES DEFENDANTS AND FOR COURT 1 5 HART, an individual, TRACY HART- ORDER STRIKING THE DEGREGORIO, an individual, GAIL A. DECLARATION OF COUNSEL 16 HART, an individual, and DOES 1-50 Date. Time: 1 7 Defendants. Department: 1 8 19 I, Paymon Hifai, declare as follows: 20 1. I am an attorney duly licensed and admitted to the State Bar of California and an 21 attorney at the law firm 0fHomer Law Group, P.C., attorneys 0f record for Plaintiff 22 FREDERICK HART, JR. (“FRED HART” 0r “Plaintiff? in the above-entitled action. Ihave 23 personal knowledge of each of the facts set forth in this declaration, and could and would testify 24 competently thereto, if called upon t0 d0 so, except as t0 those matters stated on information and 25 belief. 26 /// 27 /// 28 /// -1- HORNERLAWGROW” DECLARATION 0F PAYMON HIFAI IN SUPPORT 0F FREDERICK HART, JR.’S MOTION FORW‘“ ENTRY 0F DEFAULT 0F DEFENDANTS AND FOR COURT ORDER STRIKING THE DECLARATION 0F COUNSEL 1 2. Defendants were personally served with Plaintiff” s Complaint on April 7, 2021 2 which required them t0 serve a responsive pleading n0 later than May 7, 2021. I granted 3 Defendants’ counsel two extensions 0f time to file and serve a responsive pleading through June 4 14 2021. 5 3. On June 8, 2021, six days before Defendants’ second extended responsive 6 pleading deadline, I emailed Defendants’ counsel advising that Defendants must file their 7 response by June 14, 2021. 8 A true and correct copy 0fmy June 8, 2021 email t0 Harts’ counsel is attached hereto as 9 Exhibit A. 10 4. I again informed the Harts’ counsel by email on June 16, 2021 that since no 11 responsive pleading was filed by the June 14, 2021 extended deadline, that if a responsive 12 pleading was not filed and served that day, Plaintiffwould request the entry 0f the Harts’ default. 13 A true and correct copy ofmy June 16, 2021 email t0 Harts’ counsel is attached hereto as 14 Exhibit B. 15 5. A true and correct copy 0f a declaration by Douglas Maynard, counsel for the 16 Defendants’, entitled “Meet and Confer Declaration Re Demurrer t0 Verified Complaint” dated 17 June 14, 2021 is attached hereto as Exhibit C. 18 6. A true and correct copy of a declaration by Douglas Scott Maynard, counsel for 19 the Defendants’, entitled, “Declaration 0f Douglas Scott Maynard Re Code Of CiV. Proc. § 128.5 20 Sanctions” dated June 21, 2021 is attached hereto as Exhibit D. 21 7. On June 16, 2021, I submitted Requests for Defaults to the Court as to each of the 22 Defendants, true and correct copies of Which are attached hereto as Exhibit E. 23 8. On June 16, 2021, the Clerk of the Court denied the entry of default requested by 24 Plaintiff on the basis 0f the defective declaration filed by the Harts’ counsel. A true and correct 25 copy of the Court’s denial 0f the requests is attached hereto as Exhibit F. 26 /// 27 /// 28 /// -2- HORNERLAWGROW” DECLARATION 0F PAYMON HIFAI IN SUPPORT 0F FREDERICK HART, JR.’S MOTION FORW‘“ ENTRY 0F DEFAULT 0F DEFENDANTS AND FOR COURT ORDER STRIKING THE DECLARATION 0F COUNSEL 1 9. To date, the Harts counsel has failed t0 substantively respond as t0 the legitimacy 2 of his declaration, the Harts’ failure t0 file a responsive pleading, and how 0r Why the Harts 3 would ever be afforded relief under C.C.P. § 430.41(a)(2) given the contents 0f counsel’s 4 declarations. True and correct copies 0fmy further email communications with the Harts’ 5 counsel are attached hereto collectively as Exhibit G. I declare under penalty 0f perjury under the laws 0f the State 0f California that the foregoing is true and correct. Executed this 18th day 0f August, 2021, at Walnut Creek, California. r, , 9 {I f- WW 10 Paymon Hifai 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- HORNERLAWGROW” DECLARATION 0F PAYMON HIFAI IN SUPPORT 0F FREDERICK HART, JR.’S MOTION FORW‘“ ENTRY 0F DEFAULT 0F DEFENDANTS AND FOR COURT ORDER STRIKING THE DECLARATION 0F COUNSEL EXHIBITA Sharon Piserchio From: Paymon Hifai Sent: Tuesday, June 8, 2021 11:09 AM To: maynard|awoffices@earthlink.net Cc: Clifford Homer; Sharon Piserchio Subject: FW: Response to Fred's Counter Offer - Hart v. Hart - Evidence Code Protected Settlement Communication Scott - I left you a voicemail on Wednesday afternoon and Thursday morning regarding your clients’ below Settlement Offer from Wednesday at 3 :00 pm. I also left you another voicemail yesterday morning. While you mention Mr. Hart’s reasoned counteroffer as somehow antagonizing your clients, your clients” counter was surely meant t0 do the same in that your clients decreased their prior offer by approximately $20,000. While you also mention whether my client is Willing to litigate, he has in fact filed a lawsuit against your clients - so, yes he has in fact initiated litigation. We have previously agreed to stay your clients’ responsive pleading deadline to this litigation to see if this matter can be resolved. To the extent that your clients are confident in their ability to challenge the at-issue written agreement and Mr. Hart’s IA interest in the Property, as well as resulting claims 0f fraud and elder abuse should the‘Agreement be challenged by your clients, then of course they should d0 so. However, in the meantime, the value of the Property will continue t0 increase as well MI. Hart’s recovery - essentially, off-setting any such fees incurred t0 Mr. Hart in litigating this matter. Nonetheless, given the below the below counteroffer, I do believe that this matter should be resolved. Also, you mentioned a potential request for responsive pleading extension deadline but to the extent an agreement isn’t reached, I would not expect any further extensions to be granted and your clients can 100k forward to actually litigating this matter and proceeding with discovery. Ihave spoken to Mr. Hart and he is willing to accept a payment in the amount 0f $250,000 from your clients to resolve this matter based upon the terms set forth in your clients’ May 18th offer - i.e., payment of the settlement funds is to be made Via a refinance and the no contact provision. As discussed, the $250,000 counteroffer derives from a sales price 0f $1.533M less 5.5 percent seller’s fees (5 percent broker fees and .5 percent closing costs) divided by 4 less $ 1 1 0,000. This offer shall expire by close of business tomorrow June 9th. Inote a responsive pleading deadline ofMonday June 14th - ifthe above offer is not accepted, or an agreement in principle is not reached, the current responsive pleading deadline will stand. Please give me a call ifyou would like to discuss. Sincerely, Paymon Hifai, Esq. Homer Law Group, PC 800 S. Broadway, Sulte 200 Walnut Creek, California 94596 T: (925) 943-6570 EXHIBIT B Sharon Piserchio From: Paymon Hifai - Sent: Wednesday, June 16, 2021 3:25 PM To: maynardlawoffices@earth|ink.net Cc: Clifford Horner; Sharon Piserchio Subject: FW: Response to Fred's Counter Offer ~ Hart v. Hart ~ Evidence Code Protected Settlement Communication Attachments: Meet and Confer Declaration Regarding Demurrer s. 6-14-2021pdf.pdf; Response to Fred's Counter Offer - Hart v. Hart - Evidence Code Protected Settlement Communication Scott - I am in receipt 0fyour attached Declaration purportedly filed under CCP 430.41(a)(2) seeking an automatic 3O day extension t0 respond to the Complaint due to an inability t0 meet and confer - however, the allegations contained in the declaration do not warrant or give rise to any automatic extension provided under CCP 430.41(a)(2). CCP 430.41(a)(2) allows for such an extension, “If the parties are not able t0 meet and confer at least five days prior t0 the date the responsive pleading is due, ...”, subject to the moving party, “filing and serving, on or before the date 0n which a demurrer would be due, a declaration stating under penalty ofperjmy that a good faith attempt t0 meet and confer was made and explaining the reasons why the parties could not meet and confer.” Simply, there is no factual allegations that you made a good-faith attempt to meet and confer or explaining why you could not meet and confer. Quite the contrary, your declaration admits that you received the Complaint over two months ago on April 8th (Para. 1), you determined there were a number of deficiencies in the Complaint susceptible to demurrer (Para. 1), you gave me some general information concerning the defects in the complaint which you plan t0 demur (Para 2), but due to other professional obligations and the complexity of the issues that Will presented on demurrer, you haven’t had sufficient time t0 available. .. t0 meet and confer - 01‘ by, extension, draft a demurrer (Para. 4). You then explicitly admit, “I have not yet had to prepare for the follow-up in depth meet and confer with Plaintiff’s counsel 0n the proposed demurrer.” Para. 4. By your own admission, the case was too complex and you didn’t have time to file a demurrer - blowing a deadline is far from a basis for an automatic extension. You then incorrectly state that, “settlement discussions failed on Thursday at 5:00 pm.” - i.e. June 10th. T0 be clear, your statement is factually incorrect. Settlement discussions terminated, at the latest, 0n June 9th. Based upon the June 14th responsive pleading deadline, your last day to meet and confer over the phone was June 9th - and per my email below, at 11 a.m. on June 8th, I sent my client’s best and final settlement offer and reminded you twice in that email that if the offer is not accepted, we would not grant any extension to your responsive pleading deadline - i.e., “This offer shall expire by close of business tomorrow June 9th. I note a responsive pleading deadline 0fMonday June 14th - if the above offer is not accepted, 0r an agreement in principle is not reached, the current responsive pleading deadline Will stand”, “Also, you mentioned a potential request for responsive pleading extension deadline but t0 the extent an agreement isn’t reached, I would not expect any further extensions to be granted and your clients can look forward to actually litigating this matter and proceeding with discovery.” Your client rejected the best and final offer on June 9th at 12:23 p.m. - see the attached email - and laughably, offered a $100,000 less than its starting offer which expired days prior. Your claim that settlement discussions were somehow ongoing based upon the expiration of your client’s counteroffer is a seIf-created argument and entirely wrong. The discussions ended When you rejected my client’s offer on June 9th. In fact, you were on notice that as of June 8““ that if your client didn’t acceptpur offer of $250,000 then there would be no more settlement discussions and your June 14th responsive pleading deadline would stand. Nor, at any time 1 prior did you request an extension. Your clients chose to rej ect the offer and you chose t0 not meet and confer - or file a demurrer. Alternatively, by your own admission in Paragraph 2, you could have satisfied the meet and confer requirements but simply did not file a demurrer. As such, your declaration contains no facts which would warrant an automatic extension. Therefore, we will be requesting that the Court enter your Clients’ defaults and if the Clerk does not d0 s0, then we Will move t0 have the Court strike your declaration and have the Court order that their defaults be entered. Sincerely, Paymon Hifai, Esq. Homer Law Group, PC 800 S. Broadway, Suite 200 Walnut Creek, California 94596 T: (925) 943-6570 F: (925) 943-6888 Email: PHifai@hornerlawgroug.com This message contains information which may be confidential and privileged. Unless you are the addressee (or authorized to receive for the addressee), you may not use, copy or disclose to anyone the message or any information contained in or attached to the message. If you have received the message in error, please advise the sender by reply email PHifai@hornerlawgrou9.com and delete the message. From: Paymon Hifai Sent: Tuesday, June 08, 2021 11:09 AM To: maynardlawoffices@earthlinl<.net Cc: Clifford Homer (ch0rner@hornerlawgroup.com) ; Sharon Piserchio Subject: FW: Response to Fred's Counter Offer - Hart v. Hart - Evidence Code Protected Settlement Communication Scott - I left you a voicemail 0n Wednesday afternoon and Thursday morning regarding your clients’ below Settlement Offer from Wednesday at 3:00 pm. I also left you another voicemail yesterday moming. While you mention Mr. Hart’s reasoned counteroffer as somehow antagonizing your clients, your clients’ counter was surely meant to do the same in that your clients decreased their prior offer by approximately $20,000. While you also mention whether my client is willing t0 litigate, he has in fact filed a lawsuit against your clients - so, yes he has in fact initiated litigation. We have previously agreed to stay your clients” responsive pleading deadline to this litigation t0 see if this matter can be resolved. T0 the extent that your clients are confident in their ability t0 challenge the at-issue written agreement and Mr. Hart’s 1A interest in the Property, as well as resulting claims 0f fraud and elder abuse should the Agreement be challenged by your clients, then of course they should do so. However, in the meantime, the value of the Property Will continue t0 increase as well Mr. Ham’s recovery -~ essentially, off-setting any such fees incurred to Mr. Hart in litigating this matter. Nonetheless, given the below the below counteroffer, I do believe that this matter should be resolved. Also, you mentioned a potential request for responsive pleading extension deadline but t0 the extent an agreement isn’t reached, I would not expect any fufiher extensions to be granted and your clients can look forward to actually litigating this matter and proceeding with discovery. I have spoken to Mr. Hart and he is willing to accept a payment in the amount 0f $250,000 from your clients to resolve this matter based upon the terms set forth in your clients’ May 18th offer ~- 2 EXHIBIT C DOUGLAS SCOTT MAYNARD (SBN 90649) LAW OFFICES OF MAYNARD & HOGAN 1151 Minnesota Avenue San Jose, CA 95125 Telephone: (408) 293-8500 Facsimile: (408) 293-8507 Attorney for Defendants Michael Hart, Frances Hart, Tracy Hart-DeGregorio and Gail Hart ~ SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA Plaintiff, Case No: 21CV378991 FREDERICK HART, IR MEET AND CONFER DECLARATION RE DEMURRER TO VERIFIED COMPLAINT v. Defendants, MICHAEL HART, FRANCES HART, TRACY HART-DEGREGORIO and GAIL HART MEET AND CONFER DECLARATION RE DEMURRER I am counsel for the Defendants in the above referenced matter. I declare that the folloWing matters are true and correct and that I have personal knowledge 0f each of them. If called to testify with regard to the matters stated herein, I could and would do so competently. 1. I received the current operative pleading, a Verified Complaint, from the Defendants on April 8, 2021, shortly after they were served with it. Upon review of the Verified Complaint, I determined that there are a number of deficiencies in the Verified Complaint that are susceptible to a MEET AND CONFER DECLARATION RE DEMURRER TO VERIFIED COMPLAINT Hart v. Hart, et al. Case No. 21CV378991 1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 demurrer, and I plan to demur if I am unable to obtain Plaintiff’s counsel’s agreement to dismiss the single cause of action and/or amend the Amended Complaint to cure them. 2. I initially contacted counsel for the plaintiff, and gave him some general information concerning the defects in the complaint upon which I plan t0 demur. Thereupon, we engaged in settlement negotiations, which after a number 0f attempts, were eventually unfruitful. The last offer t0 settle expired at 5:00 pm last Thursday, June 10, 2021, With n0 response from the Plaintiff. In the course 0f those settlement negotiations, Plaintiff‘s counsel granted extensions t0 respond to the Verified Complaint through today, Monday June 14, 2021. 3. Pursuant t0 Code 0f Civil Procedure §430.41, I am required to provide the Plaintiff With legal support for the basis of the deficiencies which I already disclosed to the Plaintiff. However, we did not reach the point of discussing specific legal authorities since settlement discussions ensued. In addition, the Plaintiff is also required to provide legal support to me for his position that the pleading is legally sufficient, or in the alternative, how the complaint could be amended to cure any legal insufficiency. To date, I have received nothing to support Plaintiff’s position, and I presume that this is primarily due to the attempts to settle the case. 4. Since the settlement discussions failed 0n Thursday at 5:00 pm, and our deadline to file the demurrer was the following Monday, there was not time to complete the meet and confer discussions. Moreover, due to other professional obligations and the complexity of the issues that Will be presented on demum‘er, I have not had sufficient time available t0 delineate all 0f the specific legal authority for each of those deficiencies that will be the basis of the demurrer. Thus, I have not yet had time to prepare for the f0110w~up in-depth meet and confer with Plaintiffs’ counsel on the proposed demurrer, as required by Code of Civil Procedure §430.41 (a)(l). MEET AND CONFER DECLARATION RE DEMURRER TO VERIFIED COMPLAINT Hart v. Hart, et al. Case N0. 21CV378991 2 10 11 12 13 14‘ 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5. As a result, I am submitting this Declaration under Code of Civil Procedure §430.41(a)(2). Pursuant to said section, upon submission 0f this declaration, there is an automatic 30-day extension 0f time t0 file a responsive pleading, and the demurring party shall not be subject t0 default during the period of the extension. I hereby declare under penalty of perjury under the laws of the State of California that the foregoing is true and con‘ect and that this Declaration was executed on June 14, 2021 at San Jose, California. .4 1/,w -4/ Douglas Scott Maynard\ Attorney for Defendants Dated: June 14, 2021 MEET AND CONFER DECLARATION RE DEMURRER TO VERIFIED COMPLAINT Hart v. Hart, et al. Case N0. 21CV378991 3 EXHIBIT D U1 \OOOQO‘x 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DOUGLAS SCOTT MAYNARD (SBN 90649) LAW OFFICES OF MAYNARD & HOGAN 1151 Minnesota Avenue ‘ San Jose, CA 95125 Telephone: (408) 293-8500 Facsimile: (408) 293-8507 Attorney for Defendants Michael Hart, Frances Hart, Tracy Hart-DeGregorio and Gail Hart SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA Plaintiff, Case No: 21CV378991 FREDERICK HART, JR DECLARATION OF DOUGLAS SCOTT MAYNARD RE CODE 0F CIV. PROC. v. §128.5 SANCTIONS Defendants, Date: Time: MICHAEL HART, FRANCES HART, Department: TRACY HART-DEGREGORIO and GAIL HART DECLARATION O F DOUGLAS SCOTT MAYNARD RE CODE OF C] V. PROC. 8128.5 SANCTIONS I am counsel for the Defendants in the above referenced matter. I declare that the following matters are true and conect and that I have personal knowledge of each of them. If called to testify with regard to the matters stated herein, I could and would do so competently. 1. Defendants were served with the Complaint and initially retained me as counsel to see if a settlement could be reached with the Plaintiff, before proceeding With litigation. I contacted Plaintiff‘s counsel and told them I was planning to make a settlement offer, and they agreed to extend DECLARATION 0F DOUGLAS SCOTT MAYNARD RE CODE OF CIV. PROC. §128.S SANCTIONS Hart v. Hart, et a]. Case No. ZICV378991 l N \DOOQONU‘IAUJ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the time to file a responsive pleading. The final date to file a responsive pleading was ultimately extended t0 June 14, 2021. At the time of my first offer, I explained that I believed that the Complaint could not withstand a demurrer, and I gave Plaintiff’s attorneys several specific reasons with explanations, and indicated that the defects could not be cured by amendment due to the nature of the defects. While I expected a substantive response to my demurrer issues, Plaintiff’s afiorney declined to respond to the substance of the reasons for the demurrer, and only responded to the monetary aspects of settlement. 2. A number of settlement offers were then exchanged between counsel, and afier ongoing discussions, the settlement negotiations broke down, and no settlement was reached. The last settlement offef fiom the Defendants expired on Thursday June 10, 2021 at 5:00 p.m. with no response from the Plaintiff. The final day to file a responsive pleading had been agreed to be the following Monday, June 14, 2021. On that day, I filed a Meet and Confer Declaration Re Demurrer for my clients which, pursuant to Code of Civ. Proc. §430.41(a)(2) granted them an automatic 30-day extension of time within which to file a responsive pleading. 3. Two days later, at 4:30 p.111. on Wednesday, June 16, 2021, Plaintiff submitted a request to enter default, which was preceded by an email an hour and 5 minutes earlier. The email argued with the content of my §430.41(a)(2) Meet and Confer Declaration, expressed their dissatisfaction with the final settlement offer made by my clients, and insisted that the §430.41(a)(2) Meet and Confer Declaration did not grant us an automatic extension of time to respond to the Complaint. Thus, the Plaintiff said in the email {hat they planned to file a Request to Enter Default forthwith. I did not see the email until afier I received notification of the filing of the Request to Enter Default through the e-filing system, so there was no opportunity to discuss their proposed action with them before they submitted the papers to the Court. A tme and correct copy of the DECLARATION 0F DOUGLAS SCOTT MAYNARD RE CODE OF CIV. PROC. §128.5 SANCTIONS Hart v. Hart, et a]. Case No. 21CV378991 2 OOQQLII#UJN \O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Request To Enter Default is attached hereto as Exhibit “A.” A true and correct copy of the email that preceded the Request to Enter Default is attached hereto as Exhibit “B’ [with proposed settlement terms and prior email strings redacted] 4. I am also attaching a true and correct copy of my Meet and Confer Declaration Re Demurrer to Verified Complaint, that was e-filed on June 14, 2021 as Exhibit “C” [with proof of e- service and service by mail attached,] and I incorporate the contents of that Declaration into this Declaration by this reference. 5. In compliance with Code of Civ. Proc. §128.5(t)(1)(D), I am providing Plaintiff and his counsel with 21 days to Withdraw the Request to Enter Default before filing this motion. If the Request to Enter Default is not withdrawn by the end of that time, I will file this motion. 6. Pursuant to Code of Civ. Proc. §128.5, Defendants are requesting sanctions against the Plaintiff, his counsel Paymon Hifai, and the law firm representing him, Homer Law Group, PC in the amount of $1 1,325.20 for their conduct, which constitutes an action or tactic made in bad faith and which is frivolous and solely intended to cause unnecessary expense and delay. This is based on the legal fees and costs described below that have already, and will be incurred by them as a result of the conduct of Plaintiff and his counsel in the matters described in this motion. 7. I am an attorney at law, and have been licensed to practice law in all state courts in the State of California since 1979. I graduated from Santa Clara University, School of Law with a Juris Doctorate Degree in 1979 and from New York University School of Law with an LL.M. (Taxation) Degree in 1980. I am an experienced litigation attorney, having spent the vast majority of the last 40 years litigating civil and tax matters in various courts, and including supervising as many as 10 attorneys engaged in private civil and tax litigation. My regular hourly rate that I charge to clients is $565.00 per hour, and I am charging that rate to the Defendants in this case. In preparing this motion, DECLARATION 0F DOUGLAS SCOTT MAYNARD RE CODE 0F CIV. PROC. §128.5 SANCTIONS Hart v. Hart, et a]. Case No. 21CV378991 3 OO\]O\UIAUJN \O 1o 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I spent more than 5.9 hours reviewing the situation, doing legal research, and preparing this motion and the accompanying documents. In addition, it is anticipated that I will have to spend at least 4.0 hours reviewing any opposition, preparing a reply and appearing at the hearing should the matter be opposed. [5.9 hours plus 4.0 hours = 9.9 hours.] [9.9 hours x $565/hour = $5,593.50] In addition, I expect to pay $69.10 in filing and e-filing fees to file the motion. Thus, I am requesting sanctions in the amount of $5,593.50 + $69.10 = $5,662.60 for preparing this motion t0 respond to the Plaintiff’s improper actions, and in bringing this motion. In addition, if the Request For Entry of Default is not withdrawn within 21 days, I will have t0 prepare a Motion for Relief From Entry of Default, as a preemptive action, just in case the clerk eventually does Enter the Default. It is expected that the legal fees on such a motion will equal 0r exceed the costs to file this motion and appear at the hearing. Thus, I expect t0 spend a total of at least 9.9 hours at $565.00 per hour, plus $69.10 in filing and e-filing fees equals another $5,662.60. As a result, the total being requested in sanctions is twice the amount necessary to prepare for, respond to the opposition, prepare a reply and appear at the hearing on this motion, as there will necessarily be 2 separate hearings as a result of Plaintiff’s tactics, one on the sanctions, and one on the request for relief from default. As a result, I am requesting sanctions in the amount of $11,325.20, [$5,662.60 for this motion and $5,662.60 for the motion for relief fi‘om default = $1 1,325.20] to be imposed jointly on Plaintiff Freden'ck Hart, Jr., his counsel Paymon Hifai, and the law firm representing Plaintiff, Homer Law Group, PC. I hereby declare under penalty of perjury under the laws of the State 0f California that the foregoing is true and correct and that this Declaration was eggecuted on June 21,12,921 at San Jose, 1/, California. (/J y’af’y f (f) Dated: June 21, 2021 C7 V 4C é/gDouglas Scott Ma§nard Attorney for Defendants DECLARATION OF DOUGLAS SCOTT MAYNARD RE CODE OF CIV. PROC. §128.S SANCTIONS Hart v. Hart, et a1. Case No. 21CV378991 4 \DOOQONUIAWNH NNNNNNNNNHHr-‘HHHx-Ap-dp-lp-A WQQM-hWNHOWOOQQM-bUJNP-‘C EXHIBIT "A" DECLARATION OF DOUGLAS SCOTT MAYNARD RE CODE 0F CIV. PROC. §128.5 SANCTIONS Hart v. Hart, et a1. Case No. 21CV378991 ClV-1 00 ArronNEv 0R PARTY vmnour ATTORNEY: STATE BAR N0: 3061 3 3 NAME: Paymon Hifai FIRM NAME: HORNER LAW GROUP, P.C. STREETADDRESS: 800 S. Broadway, Suite 200 CITY: Walnut Creek STATE CA ZIP 000394596 TELEPHONE N0.: (925) 943 6570 FAX N04 (925) 943-6888 E MA'LADDRESS phifai hornerlawgroup.com ATTORNEY FOR (name). Fm erick Hart Jr“ Plaintiff SUPERIOR coum 0F cALIFORNIA, COUNTY 0F SANTA CLARA smeamunness: 191 N. First Street MAILING ADDRESS: CITYAND ZIPCODEI Santa Clara 95 1 13 BRANCH NAME: Downtown Superior Court PlaintifflPefitioner: Frederick Ham, Jr, Defendant/Resmndemi Michael Hart, an individual, et a1. REQUEST FOR Entry of Default [j Clerk's Judgment CASE NUMBER: (Application) [:3 Court Judgment 21CV378991 Not for use in actions under the Fair Debt Buying Practices Act (Civ. Code, § 1788.50 et seq.) (see C/V-105) FOR COURT USE ONLY 1. TO THE CLERK: On the complaint or cross-complaint filed a. on(date): 03/02/2021 b. by (name): Frederick Hart, Jr. C- Emer defau“ Ofdefefidant (names): Michael Hafl, an individual; Frances Hart, an individual; Tracy Hart DeGregorio, an individual; and Gail A. Hart, an individual d. E I request a courtjudgment under Code of Civil Procedure sections 585(b), 585(0). 989. etc.. against defendant (names): (Testimony required Apply to the clerk for a hearing date, unless me court wI/l enter a judgment on an affidavit under Code Civ. Proc, § 585(d).) e. [:j Enter clerk‘sjudgment (1) [j for restitution of the premises only and issue a writ of execution on the Judgment. Code of Clvll Procedure section 1174(0) does not app!y. (Code Civ. Proc., § 1169.) [:3 Include in the judgment all tenants. subtenants, named clalmants, and other occupams ofthe premises. The Prejudgment Claim of Right to Possession was sewed in compliance with Code of Civil Procedure section 415.46. (2) [j under Code of Civil Procedure section 685(a). (Complete the declaration under Code Civ. Proo., § 585.5 on the reverse (Item 5).) (3) E for defaultpreviously entered on (date): 2. Judgment to be entered. Amman: WWW Balanszfi a. Demand of complaint ............. $ $ $ b. Statementofdamages" (1) Special .................... $ $ $ (2) General .................... $ $ $ c. |nterest ........................ $ $ $ d. Costs (see reverse) .............. $ $ $ e. Attomeyfees ................... $ $ $ f. TOTALS ...................... $ TBD $ $ TBD g Dally damages were demanded in complaint at the rate of: $ perday beginning (date): (* Personal Injury or wrongful death actions, Code Clv. Proc. § 425 11 .) 3. a (Check If filed In an unlawful detainer case.) Legal document assistant or unlawful detalnor asslstant Infomation ls on the reverse (complete item 4). Datezlune 16, 2021 A V, ” Paymon Hifai ’ f (we 0R pnmr NAME) (SIGNATURE or PLAINTIFF 0R ATTORNEY Fon PLAINTIFF) FOR COURT (1) C] Default entered as requested on (date): USE ONLY (2) E Default NOT entered as requested (state reason): C'efk. by . Deputy Papa 1 of F I M d . . JfidfiflxéfidéfihiinfivCZTHQ‘A’IZOUFM REQUEST FOR ENTRY 0F DEFAULT c°”°°‘c‘“”"°°°““'° fifiififiicéfifv [Rem January 1. 20201 (Appllcatlon to Enter Default) chisNexis® Automated Calgfomia Judicial Council Forms ClV-1 00 Plalntiff/Petitioner: Frederick Hart, Jn CASE NUMBER: Dafendant/Respondem: Michael Hart, an individual, ct 3L 21CV378991 4. Legal document asslstant or unlawful detainer assistant (Bus. 8. Prof. Code, § 6400 et seq.). A legal document assistant or unlawful detainer assistant E did did not forcompensation give advice or assistance wlth this form. Ifdeclarant has received any help or advice for pay from a legal document assistant or unlawful detainer assistant. state: a. Assistant‘s name: c. Telephone no.1 b. Street address, city. and zip code: . County of registration: Registration no.2 Expires on (date): :mgno. 5. Declaration under Code Clv. Prom, § 585.5 (for entry ofdefault under Code C/v. Proc., § 585(6)). This action a. E Ss is not on a contract or installment sale for goods or services subject to Civ. Code, § 1801 et seq. (Unruh Act). b. E is is not on a conditional sales contract subject to Civ. Code. §2981 et seq. (Rees-Levering Motor Vehicle Sales and Finance Act). c. E is is not on an obligation for goods, services. loans, or extensions of credit subject to Code Civ. Prom, § 395(b). 6. Declaration of malllng (Code Clv. Prom, § 587). A copy of this Request for Entry ofDefau/twas a. [:J not mailed to the following defendants. whose addresses are unknown to plaintiff or plaintiffs attorney (names): b. m mailed first-class. postage prepaid. in a sealed envelope addressed to each defendant's attorney of record or, If none. to each defendant's last known address as follows: (1) Mailed on (date): (2) To (specify names and addresses shown on the envelopes): June 16, 2021 Douglas Scott Maynard, Esq., 1151 Minnesota Avenue, San Jose, CA 95125 Ideclare under penalty of perjury under the laws of the State of California that the fnranninn Items 4 5 and 6 are frue and correct. Date:June 16, 2021 } %W 6%“thSharon Piserchio (TYPE OR PRlNT NAME) (SIGNATURE OF DEGMRANT) 7. Memorandum of coats (required if moneyjudgment requested). Costs and disbursements are as follows (Code Civ. Proc., § 1033.5): a. Clerk's filing fees .................... $ b. Process server's fees ................. $ c. Other (special): $ d. $ e. TOTAL ............................. $ TBD f. [j Costs and disbursements are waived. g. I am the attorney. agent, or party who claims these costs. To the best of my knowledge and belief this memorandum of costs is correct and these costs were necessarily incurred In this case. I declare under penalty of perjury under the laws of the State of CaIifornia that the fnrennina Is true and correct. Date21une 16 2021 , r 'i V Paymon Hifai > “ 7” (”PE 0R PRINT NAME) (smNATURE 0F DECLARANT) 8. Declaration of nonmllltary status (required for a judgment). No defendant named in Item 1c of the application is in the military servlce as that term is defined by either the Servicemembers Civil Relief Act. 50 U.S,C. App. § 3911(2). or California Military and Veterans Code sections 400 and 402(f). I declare under penalty of perjury under the laws of the State of California that thp fnrmninn i: fmn and correct. Date: June 16, 2021 , r ' Paymon Hifai } " 7NV (TYPE 0R PRINT NAME) (SIGNATURE OF DECLARANT) C'V"°°KR°V‘JW°'Y1»2°2°I REQUEST FOR ENTRY 0F DEFAULT “9”“: (Application to Enter Default) LexisNexIsQD Amamated California Judicial Council Forms \OOOQOM-RUJN" NNNNNNNNNHt-kr-At-tr-AHHr-ky-Ay-A “\IQM-BWNHOQWNONMQWNHO EXHIBIT "B" DECLARATION 0F DOUGLAS SCOTT MAYNARD RE CODE OF CIV. PROC. §128.5 SANCTIONS Hart v. Hart, et a1. Case No. 21CV378991 maynardlawoffices From: Paymon Hifai [PHlfai@hornerlawgroup. com] Sent: Wednesday, June 16 2021 3:25 PM To: maynardIawoffices@earthllnk net Cc: Clifford Homer; Sharon Plserchio Subject: FW: Response to Fred's Counter Offer- Hartv Hart- Evidence Code Protected Settlement Communication Attachments: Meet and Confer Declaration Regarding Demurrer s. 6-1 4-2021pdf.pdf; Response to Fred's Counter Offer - Hart v. Hart - Evidence Code Protecte... (111.1 KB) Scott - ‘ . I am in receipt of your attached Declaration purportedly filed under CCP 430.41 (a)(Z) seeking an automatic 3O day extension to respond to the‘ Complaint due to an inability to meet and confer ~ however, the allegations contained in the declaration do not warrant or give rise to any automatic extension provided under CCP 430.41(a)(2). CCP 430.41(a)(2) allows for such an extension, “If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, ...”, subject t0 the moving party, “filing and serving, on or before the date on which a demurrer would b'e' due, a declaration stating under penalty of perjury that a good faith attempt t0 meet and confer was made and explaining the reasons why the parties could not meet and confer.” Simply, there ls no factual allegations that you made a good faith attempt to meet and confer or explaining why you could not meet and confel. Quite the contrary, your declalation admits that you received the Complaint over two months ago on April 8m (Para. 1), you determined there were a number of deficiencies 1n the Complaint susceptible to demurrer (Para 1), you gave me some general infomnation concerning the defects in the complaint which you plan t0 demur (Para 2), but due to other professional obligations and the complexity of the issues that will presented on demurrer, you haven’t had sufficient time to available. .. to meet and confer -- or by, extension, draft a demurrer (Para. 4). You then explicitly admit, “I have not yet had t0 prepare for the follow--up in depth meet and confer with Plaintiff’s counsel on the proposed demurrer.” Para. 4. By your own admission, the case was too complex and you didn’ t have time to file a demutrer~ blowing a deadline'1s far from a basis for an automatic extension. You then incorrectly state that, “settlement discussions failed on Thursday at 5:00 p m.” ~i.e. June 10‘“. To be clear, your statement is factually incorrect. Settlement discussions terminated, atthe latest, on June 9'. Based upon the June 14m responsive pleading deadline, your last day to meet and confer over the phone was June 9 ‘1‘ -and per my email below, at 11 a.m on June 8‘, I sent my client’ s best and final settlement offer and reminded you twice in that email that if the offer ls not accepted, we would not glant any extension to your responsive pleading deadline - i.e , “This offer shall expire by close of business tomorrow June 9th. Inote a responsive pleading deadline of Monday June 14m - if‘ the 'above offer'1s not accepted or an agreement in principle Is not reached, the cutTent responsive pleading deadline will stand”, “Also, you mentioned a potential request for responsive pleading extension deadline but to the extent an agreement isn’tleached, I Would not expect any 'further extensions to be granted and your clients can look forward to actually litigating this matter and proceeding with discovery.” ‘ ' ' Your client rejected the best‘and final offer on June 9‘" at 12:23 pm. - see the attached email ~ and laughably, offered which expired days prim You1 claim that settlement discussions were somehow ongoing based upon the exphation of your client’s countexoffer'1s a self-created argument and entirely wrong. The discussions ended when you rejected my client’ s offer on June 9'“ In fact you were on notice that as of June 8“ that if your client didn’ t accept our offel of-then there would be no mm e settlement discussions and your June 14“ responsive pleading deadline would stand. N01, at any time prior did you request an extension Your clients chose to reject the offer and you chose to not meet and confer ~ or file a demurrer. Alternatively, by your own admission in Paragraph 2, you could have satisfied the meet and confer requirements but simply did not file a demurrer. As such, your declaration contains no facts which would warrant an automatic extension. Therefore, we will be requesting that the Court enter your clients’ defaults and if the Clerk does not d0 so, then we will move to have the Court strike your declaration and have the Court order that their defaults be entered. Sincerely, Paymon Hlfal, Esq. Homer Law Group, PC 800 S. Broadway, Sulte 200 Wainut Creek, California 94596 T. (925) 943 6570 ‘ - - F: (925) 943-sass ‘ Emall'PHIfgIQhornengwgroun.ggm Thls message contains lnformmlon which may be confidential and privileged. Unless you are the addreme (or authorized (o receive for Qha addressee), you may not use, copy or dlxclase to anyone the message or any lnformmlon cantalnad In or attached to me message. If you have received the message In error, please advise me sender by reply email Puuamhornerlamrgug.gom and delete the message. KowflONU'a-DUJNv-A NNNNNNNNNHHHh-lr-HHHy-AH OOQQM-RUJNHOWOOQQm-hUJNHO EXHIBIT "C " DECLARATION 0F DOUGLAS SCOTT MAYNARD RE CODE 0F CIV. PROC. §128.5 SANCTIONS Hart v. Hart, et a]. Case No. 21CV378991 \OOOQOin-hwwh‘ HHHHQHv-nwww gfié’xfififififigowqo‘mgmmuo DOUGLAS SCOTT MAYNARD (SBN 90649) LAW OFFICES OF MAYNARD & HOGAN 1151 Minnesota Avenue San Jose, CA 95 125 Telephone: (408) 293-8500 Facsimile: (408) 293-8507 Attorney for Defendants Michael Hart, Frances Hart, Tracy Hart-DeGregorio and Gail Hart SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA Plaintiff, Case No: 21CV378991 FREDERICK HART, IR MEET AND CONFER DECLARATION RE DEMURRER TO VERIFIED COMPLAINT Defendants, MICHAEL HART, FRANCES HART, TRACY HART-DEGREGORIO and GAIL HART MEET AND CONFER DECLARATION RE DEMURRER I am counsel for the Defendants in the above referenced matter. I declare that the following matters are true and correct and that I have personal knowledge of each of them. If called to testify with regard to the matters stated herein, I could and would do so competently. 1. I received the current operative pleading, a Verified Complaint, from the Defendants on April 8, 2021, shortly afier they were served with it. Upon review of the Verified Complaint, I determined that there arc a number of deficiencies in the Verified Complaint that are susceptible to a MEET AND CONFER DECLARATION RE DEMURRER TO VERIFIED COMPLAINT Hart v. Hart, ct al. Case No. 21 CV378991 l \DOOQGU’tbbJNh-a MNHHHHr-tu-nv-‘v-twn-t demurrer, and I plan to demur ifl am unable to obtain Plaintiff’s counsel’s agreement to dismiss the single cause of action and/or amend the Amended Complaint to cure them. 2. I initially contacted counsel for the plaintiff, and gave him some general information concerning the defects in the complaint upon which I plan to demur. Thercupon, we engaged in settlement negotiations, which after a number of attempts, were eventually unfruitful. The last offer to settle expired at 5:00 pm last Thursday, June 10, 2021, with no response from the Plaintiff. In the course of those settlement negotiations, Plaintiff’s counsel granted extensions to respond to the Verified Complaint through today, Monday June 14, 2021. 3. Pursuant to Code of Civil Procedure §430.41, I am required to provide the Plaintiff with legal support for the basis of the deficiencies which I already disclosed to the Plaintiff. However, we did not reach the point of discussing specific legal authorities since settlement discussions ensued. In addition, the Plaintiff is also required to provide legal support to me for his position that the pleading is legally sufficient, or in the alternative, how the complaint could be amended to cure any legal insufficiency. To date, I have received nothing to support Plaintiff’s position, and I presume that this is primarily due to the attempts to settle the case. 4. Since the settlement discussions failed on Thursday at 5:00 pm, and our deadline to file the demurrer was the following Monday, there was not time to complete the meet and confer discussions. Moreover, due to other professional obligations and the complexity of the issues that will be presented on demurrer, l have not had sufficient time available to delineate all of the specific legal authority for each of those deficiencies that will be the basis of the demurrer. Thus, I have not yet had time to prepare for the follow~up in-depth meet and confer with Plaintiffs’ counsel on the proposed demurrer, as required by Code of Civil Procedure §430.41(a)(1). MEET AND CONFER DECLARATION RE DEMURRER TO VERIFIED COMPLAINT Hart v. Hart, et al. Case No. 21CV378991 2 wwqcxm«wa’-‘ MNHHr-tr-IHHHHHt-I S. As a result, I am submitting this Declaration under Code of Civil Procedure §430.41(a)(2). Pursuant to said section, upon submission of this declaration, there is an automatic 30-day extension oftime to file a responsive pleading, and the demurring party shall not be subject to default during the period ofthe extension. I hereby declare under 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 June 14, 2021 at San Jose, California. Dated: June 14, 2021 Douglas Scott Maynard\ Attorney for Defendants MEET AND CONFERDECLARATION RE DEMURRER TO VERIFIED COMPLAINT Hart v. Hart, et al. Case No. 21CV3'78991 3 POS-030 ATTORNEY onmm WITHOUTmomev (Nam, smo Barnumbor, and addrm): FORWWW”m”DOUGLAS SCOTT MAYNARD (SBN 90649) Law Offices of Maynard & Hogan, A Professional Corporation 1151 Minnesota Ave. San Jose. CA 951 25 TELEPHONE N04 (408) 293-8500 FAX N0. (0pm: (403) 293.8507 E.MAILmoms (0mm: ATTORNEY FOR (Name): Defendants SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA STREETADDREM: 191 N. FlrstStreet MAILme Amazes: cmmo 2|? cooE:San Jose. CA 951 13 BRANCH NAME: Downtown Superior Coun PETITIONERIPLAINTIFF: FREDERICK HART RESPONDENT/DEFENDANT: MICHAEL HART. el al. CASE NUMBER: PROOF 0F SERVICE av FIRsr-CLAss MA|L_cML ”WWW (Do not use this Proof o! Service Io show service o! a Summons and Complaint.) 1. l am over 18 years ot age and not a party to thls action. I am a resident of or employed In the county where the malllng took place. 2. My residence or business address is: 1151 Minnesota Ave. San Jose, CA 95125 3‘ 0n (dale): June 14, 2021 I mailed fmm (c/ly and slate): San Jose. CA the following documents (specify): MEET AND CONFER DECLARATION RE DEMURRER TO COMPLAINT E The documents are Hated In the Attachment to Pmof of Service by Flrst-Class MalF-Civil (Documents Served) (form POS-030(D)). 4. lsarved the documents by enclosing them In an envelope and (check one): a. [E dapoulflng the sealed envelope with Ihe United States Postal Service with the postage fully prepaid. b. D placing the envelope for collection and mamng following our ordlnary business practices. lam raadlty famlllar with this business's practice for collecting and processing correspondence fot malllng, 0n the same day that conespondenoe ls placed for collection and mamng. It ia deposited In the ordlnary course of business with the United States Postal Service In a sealed envelope wlth postage fully prepaid. 5. The envelope was addressed and mailed as follows: a. Name of person served: Cllflord R. Homer and Pavmon Hlfal b- Address of person sawed: Homer Law Group, P.C. 800 S. Broadway. Suite 200 Walnut Creek, CA 94596 E The name and address of each person to whom I manad the documents ls listed In the Attachment to Proof of Service by Flrst-Class MalI-Clv/I (Parsons Served) (POS-030(P)). I declare under penalty of perjury under the laws of the State of Califomla that ’ olng lstrue‘,’ correct. Date: June 14,2021 ' ‘ Douglas Scott Maynard . .7 (slerwune 0F penaou cowmmems FORM)(TYPE OR PRINT NAME OF PERSON COMPLETING THIS FORM) Form Appmvodror cpuonulum PROOF OF SERVICE BY FlRST-CLASS MAlL-CIVIL Coda oIcMWm,» ma. 10m Judicial Ooundlvi Callomla POWOINquununry 1. 20051 (Proof of Servlca) WWWMW maynardlawoffices From: efilingmail@tylerhost.net Sent: Monday, June 14, 2021 1:02 PM To: maynardIawoffices@earthlink‘net Subject: Notification of Service for Case No. 21CV378991 (Frederick Hart, Jr. vs Michael Hart et a1) Notification of Service Envelope Number: 6643117 This is a notification of service for the filing listed. Please click the link below to retrieve the submitted document. Filing Details 7 V Case Number M ]21cv378993 w 7'" Case Style H I A Fred’ewrfigk‘Hwart Jr vs Michael Hart etal u fl 7‘ V w ¢ [Sate/Time submitted 7 V ' 6/14/2021 1. o1 PM PST " W Flllng Type m mAnswer/Response/DenIal/Demurrer Flrsjc Appearancefimy ’ Filed Byw 7‘ DOUGLAS MAYNARDm ##H ‘ V a W W FrederICk Hart JR. W M 4 w“ I 7-“ ”A a a Paymon Hifai (thfai@hornerlawgrougcom) Clifford Homer (chorner@hornerlawqroup.com) Service Contacts Other Service Contacts not associated with a party on the case: , DOUGLAS MAYNARD (mayoardlawqfiiws®eartmink-net) Document Details I I [File Stamped Copy View Stamped Document ‘ This link Is active for 45 days. J Oh‘k’ ESL eFIIeCA Please do not reply to thls email. It was generated automatically. California EFlling Disclaimer: This Is an official government communication. As the recipient, you are responsible for the lawful use of 1 this Information. This e-mail and any attachments are intended solely for the individual or agency to whlch they are addressed. They may be confidential and/or contain privileged or otherwise non-public information. Do not dlssemlnate this e-mall and any attachments unless you are authorized to do so under applicable court rules or statutes. If you are not the intended recipient ofthls e-mall, do not copy, distrlbute, or take any action in reliance upon this e-mall or any attachments and delete this e~mail and any attachments immediately. Please consider the environment before printing this e-mall. EXHIBIT E on 6/1 6/2021 4:30 PM Reviewed By: D Harris Envelope: 6665042 ATTORNEY 0R PARTY WITHOUT ATTORNEY: STATE BAR No: 3O6 1 3 3 FOR comer uss ONLY NAME: Paymon Hifai FIRM NAME: HORNER LAW GROUP, P.C. STREET ADDRESS: 800 S. Broadway, Suite 200 CITY: Walnut Creek STATE: CA Z'P 0005394596 TELEPHONE N0; (925) 943-6570 FAX N0; (925) 943-6888 E~MNLADDRE331 phifai@h0rner1awgr0up.com ATTORNEY FORwame): Frederick Hart, J12, Plaintiff SUPERIOR COURT 0F CALIFORNIA, COUNTY 0F SANTA CLARA STREET ADDRESS: 191 N. First Street MAILING ADDRESS: CITY AND ZIP CODE: Santa Clara 95 1 13 BRANCH NAME: Downtown Superior Court PIaintiff/Petitioner: Frederick Hart, Jr, DGfendam/Resloondent Michael Hart, an individual, et a1. REQUEST FOR Entry of Default E Clerk's Judgment (Application) Q Court Judgment 21CV378991 Not for use in actions under the Fair Debt Buying Practices Act (Civ. Code, § 1788.50 et seq.) (see C/V-105) ClV-1 00 CASE NUMBER: 1. TO THE CLERK: On the complaint or cross-complaint filed a. on (date): 03/02/2021 b. by (name): Frederick Hart, Jr. C- Enter default Ofdefendant (names): Michael Hart, an individual; Frances Hart, an individual; Tracy Hart DeGregorio, an individual; and Gail A. Hart, an individual d. E I request a courtjudgment under Code of Civil Procedure sections 585(b), 585(0), 989, etc., against defendant (names): (Testimony required. Apply to the clerk for a hearing date, unless the coun‘ will enter a judgment on an affidavit under Code Civ, Proc., § 585(d).) e. E Enter clerk’s judgment (1) E for restitution of the premises only and issue a writ of execution on the judgment. Code of Civil Procedure section 1174(0) does not apply. (Code Civ. Proc., § 1169.)E Include in the judgment all tenants, subtenants, named claimants, and other occupants ofthe premises. The Prejudgment Claim ofRight to Possession was served in compliance with Code of Civil Procedure section 415.46. (2) C] under Code of Civil Procedure section 585(3). (Complete the declaration under Code Civ. Proc., § 585.5 on the reverse (item 5).) (3) E for default previously entered on (date): 2. Judgment to be entered. Amount WE B§l_axlg§ a. Demand of complaint ............. $ $ $ b. Statement of damages* (1) Special .................... $ $ $ (2) General .................... $ $ $ c. Interest ........................ $ $ $ d. Costs (see reverse) .............. $ $ $ e. Attorney fees ................... $ $ $ ‘ f. TOTALS ...................... $ TBD $ $ TBD g. Daily damages were demanded in complaint at the rate of: $ per day beginning (date): (* Personal injury or wrongful death actions; Code Civ. Proc., § 425.1 1.) 3. E (Check if filed in an unlawful detainer case.) Legal document assistant or unlawful detainer assistant information is on the reverse (complete item 4). Date:June 16, 2021 . ' rif/f V,» ' Paymon H1fa1 } V / UYPE OR PRINT NAME) (SIGNATURE OF PLAVNTIFF OR ATTORNEY FOR PLAINTIFF) FOR COURT (1) E Default entered as requested on (date): USE ONLY (2) S Default NOT entered as requested (state reason): Clerk, by , Deputy pagemrz §§§EE§§£LZ€5°J§£ZW§E§2856:100 REQUEST FOR ENTRY 0F DEFAULT “"3““ P’°c‘“"’”““" 5545535532023; [Rev. January 1, 2020] (Application to Enter Default) LexisNexis® Automated California Judicial Council Forms ClV-1 00 Plaintiff/Petitioner: Frederick Hart, JL CASE NUMBER: Defendant/Respondent: Michael Hart) an individual, et a1. 21CV378991 4. Legal document assistant or unlawful detainer assistant (Bus. & Prof. Code, § 6400 et seq.). A legal document assistant or unlawful detainer assistant E did did not for compensation give advice or assistance with this form. If declarant has received any help or advice for pay from a legal document assistant or unlawful detainer assistant, state: a. Assistant's name: b. Street address, city, and zip code: Telephone no.: County of registration: Registration no.: Expires on (date): rhsvgo 5. Declaration under Code Civ. Proc., § 585.5 (for entry of default under Code Civ. Proa, § 585(3)). This action a. E is is not on a contract or installment sale for goods or services subject to Civ. Code, § 1801 et seq. (Unruh Act). b. E is is not on a conditional sales contract subject to Civ. Code, § 2981 et seq. (Rees~Levering Motor Vehicle Sales and Finance Act). c. S is is not on an obligation for goods, services, loans, or extensions of credit subject to Code Civ. Proc., § 395(b). 6. Declaration of mailing (Code Civ. Proc., § 587). A copy of this Request for Entry of Defaultwas a. E not mailed to the following defendants, whose addresses are unknown to plaintiff or plaintiff‘s attorney (names): b. mailed first-class, postage prepaid, in a sealed envelope addressed to each defendant's attorney of record or, if none, to each defendant's last known address as follows: (1) Mailed on (date): (2) To (specify names and addresses shown on the envelopes): June 16, 2021 Douglas Scott Maynard, Esq., 1151 Minnesota Avenue, San Jose, CA 95125 l declare under penalty of perjury under the laws ofthe State of California that the fnrennina items 4 5 and 6 are true and correct, DatezJune 16, 2021 % O) ' w} MM ”mamSharon Piserchio (TYPE OR PRINT NAME) (SIGNATURE 0F DECLARANT) 7. Memorandum of costs (required ifmoneyjudgment requested) Costs and disbursements are as follows (Code Civ. Proc., § 1033.5): a. Clerk‘s filing fees .................... $ b. Process server's fees ................. $ c. Other (specify): $ d. $ e. TOTAL ............................. $ TBD f. E Costs and disbursements are waived. g. I am the attorney, agent, or party who claims these costs. To the best of my knowledge and belief this memorandum of costs is correct and these costs were necessarily incurred in this case. I declare under penalty of perjury under the Iaws of the State of California that the foregoing is true and correct. Date: e 1 x/ /Jun 6, 2021 . . > 17m V Paymon Hlfal 2/ (TYPE 0R PR'NT NAME) (SIGNATURE 0F DECLARANT) 8. Declaration of nonmilitary status (required for ajudgment). No defendant named in item 1c of the application is in the military service as that term is defined by either the Servicemembers Civil Relief Act, 50 U.S.C. App. § 391 1(2), or California Military and Veterans Code sections 400 and 402(f). f , I declare under penalty of perjury under the laws of the State of California that thP fnmmim ic ’m In and correct. Date: June 16, 2021 x'// V/ Paymon Hifai } 7f ( ' (TYPE OR PRINT NAME) (SIGNATURE OF DECLARANT) C‘V‘WOIRW January 1v 207-01 REQUEST FOR ENTRY OF DEFAULT Page 2 “2 (Application to Enter Default) LexisNexis® Automated California Judicial Council Forms EXHIBIT F on 6/16/2021 4:30 PM Reviewed By: D Harris Envelope: 6665042 ClV-1 00 ATTORNEY 0R PARTY WiTHOUT ATTORNEY: STATE BAR No: 306 1 33 FOR COURT USE ONLY NAME: Paymon Hifai FIRM NAME: HORNER LAW GROUP, P.C. - STREETADDRESS= 800 S. Broadway, Suite 200 FILED CW Walnut Creek STATECA Z'F’ 009504596 TELEPHONE N04 (925) 943-6570 FAX N°~= (925) 943-6888 06/1 6/2021 E-MA'LADDRESS: phifai@homerlawgroup.com Clerk 0f The CCU” ATTORNEY F0R1 Frederick Hart, JL, Plaintiff Superior Court 0f CA SUPERIOR COURT 0F CALIFORNIA, COUNTY 0F SANTA CLARA County of Santa Clara STREETADDRESS: 191 N. First Street MAILING ADDRESS: 21 CV378991 CITY AND ZIP CODE: Santa Clara 95 1 13 By: DHarriS BRANCH NAME: Downtown Superior Court Plaintiff/Petitioner: Frederick Hart, J1; DefendanUReSpondent Michael Hart, an individual, et a1. REQUEST FOR Entry of Default E Clerk's Judgment CASENUMBER (Application) E Court Judgment 21CV378991 Not for use in actions under the Fair Debt Buying Practices Act (Civ. Code, § 1788.50 et seq.) (see CIV-105) 1. TO THE CLERK: On the complaint or cross~complaint filed a. on (date): 03/02/2021 b. by (name): Frederick Halt, Jr. Enter defaU't Ofdefendant (names): Michael Hart, an individual; Frances Hart, an individual; Tracy Hart DeGregorio, an individual; and Gail A. Hart, an individual d. E I request a courtjudgment under Code of Civil Procedure sections 585(b), 585(0), 989, etc., against defendant (names): (Testimony required, Apply to the clerk for a hearing date, unless the court will enter a judgment on an affidavit under Code Civ. Proc., § 585(d).) e. E: Enter clerk’s judgment (1) E for restitution ofthe premises only and issue a writ of execution on the judgment. Code of Civil Procedure section 1174(0) does not apply. (Code Civ. Proc., § 1169.)E Include in thejudgment all tenants, subtenants, named claimants, and other occupants ofthe premises. The Prejudgment Claim of Right to Possession was served in compliance with Code of Civil Procedure section 415.46. ) E under Code of Civil Procedure section 585(3). (Complete the declaration under Code Civ. Proc., § 585.5 on the reverse (item 5).) (3) E for default previously entered on (date): 2. Judgment to be entered. A_mu_nt CLditiagmpvanggg Balance a. Demand of complaint ............. $ $ $ b. Statement of damages* (1) Special .................... $ $ $ (2) General .................... $ $ $ c. Interest ........................ $ $ $ d. Costs (see reverse) .............. $ $ $ e. Attorney fees ................... $ $ $ f. TOTALS ...................... $ TBD $ $ TBD g. Daily damages were demanded'In complaint at the rate of: $ per day beginning (date): (* Personal injury or wrongful death actions; Code Civ. Proc. § 425. 1 1.) 3. E (Check iffiled'm an unlawful detainer case.) Legal document assistant or unlawful detainer assistant information is on the reverse (complete item 4). Date:June 16, 2021 7“ VJ r Paymon Hifai } ' (TYPE OR PRINT NAME) (SIGNATURE OF PLAINTIFF OR ATI'ORNEY FOR PLAINTIFF) FOR COURT (1) E Default entered as requested on (date): Defendant filed a dec] to meet and USE ONLY (2) K] Default NOT entered as requested (state reassm): confer on 06/14/2021- CIerk, by DHams , Deputy Fag“m §§5§2Qfi§$fi§°§9€2fiffi§$139.1co REQUEST FOR ENTRY 0F DEFAULT °°de°“"“” ”“8"“ ?fifgiilic‘ijfv [Rev.January 1, 20201 (Application to Enter Default) LexisNexis® Automated California Judicial Council Forms ClV-1 00 P|aintifflPetitionerz Fmderick Hart, Jr. CASE NUMBER: DefendanURespondent: Michael Hart, an individual, 6t a]. 21CV378991 4. Legal document assistant or unlawful detainer assistant (Bus. & Prof. Code, § 6400 et seq.). A legal document assistant or unlawful detainer assistant [:3 did did not for compensation give advice or assistance with this form. If declarant has received any help or advice for pay from a legal document assistant or unlawful detainer assistant, state: a. Assistant's name: Telephone no.: County 0f registration: Registration no.: Expires 0n (date): b. Street address, city, and zip code: rwvgp 5, Declaration under Code Civ. Proc., § 585.5 (for entry ofdefault under Code Civ. Proc., § 585(8)). This action a. D is is not on a contract or installment sale for goods or services subject to Civ. Code, § 1801 et seq. (Unruh Act)‘ b. E is is not on a conditional sales contract subject to Civ. Code, § 2981 et seq. (Rees-Levering Motor Vehicle Sales and Finance Act).E is is not on an obligation for goods, services, loans, or extensions of credit subject to Code Civ. Proc., § 395(b). 6. Declaration of mailing (Code Civ. Proc., § 587). A copy ofthis Request for Entry of Defaultwas 8- E not mailed to the following defendants, whose addresses are unknown to plaintiff or plaintiff‘s attorney (names): b. mailed first-class, postage prepaid, in a sealed envelope addressed to each defendant‘s attorney of record or, if none, to each defendant's last known address as follows: (1) Mailed on (date): (2) To (specify names and addresses shown on the envelopes): June 16, 2021 Douglas Scott Maynard, Esq., 1151 Minnesota Avenue, San Jose, CA 95 125 | declare under penalty of perjury under the laws of the State of California that the fnrenninn items 4‘ 5. and 6 are true and correct. Datequne 16, 2021 ’ gm @WomSharon Piserchio (TYPE 0R PRINT NAME) (SIGNATURE 0F DECLARANT) 7. Memorandum of costs (required if moneyjudgment requested). Costs and disbursements are as follows (Code Civ. Proc., § 1033. 5). a. Clerk'SIfiling fees .................... $ b. Process server's fees ................. $ C. Other (specify): $ d. $ e. TOTAL ............................. $ TBD f. E Costs and disbursements are waived. g. I am the attorney, agent, or party who claims these costs. To the best of my knowledge and belief this memorandum of costs is correct and these costs were necessarily incurred in this case. l declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Datejune 16, 2021 /74/ Paymon Hifai > ‘ (TYPE OR PRINT NAME) (SIGNATURE OF DECLARANT) 8. Declaration of nonmilitary status (required forajudgment). No defendant named in item 1c ofthe application is in the military service as that term is defined by either the Servicemembers Civil Relief Act, 50 U.S.C. App. § 391 1 (2), or California Military and Veterans Code sections 400 and 402(f). l declare under penalty of perjury under the laws of the State of California that thP fnmflninn'm fr-m and correct. Date: June 16, 2021 V Paymon Hifai ’ /7" (TYPE OR PRINT NAME) (SIGNATURE 0F DECLARANT) CIv-1oo (Rev. January 1‘ 2020] REQUEST FOR ENTRY OF DEFAULT Page 2°” (Application to Enter Default) LexisNexis® Automated California Judicial Council Forms EXHIBIT G Sharon Piserchio From: Paymon Hifai Sent: Friday, July 9, 2021 4:26 PM To: maynardlawoffices@earth|ink.net Cc: Clifford Homer; Sharon Piserchio Subject: FW: HART V. HART ~ MOTION FOR ENTRY OF DEFAULT Attachments: Meet and Confer Letter Re Demurrer and Motion To Strike.pdf; FW: Response to Fred‘s Counter Offer - Hart v. Hart - Evidence Code Protected Settlement Communication; Hart v. Hart: Motion for Section 128.5 Sanctions - Mr. Maynard - This responds to your correspondence of today’s date. Your letter begins by stating, “I am V6131 disapointed that I have heard nothing from either 0fyou about my requests t0 meet and confer. . .” This office is also very disappointed that we have heard nothing from you in response to either ofmy attached June 16, 2021 and June 23, 2021 e-mails t0 you Which clearly provide that under oath you have admitted that you failed to satisfy the factual and legal requirements required in order t0 obtain a 30 day extension t0 respond t0 the Complaint under CCP 430.41 (a)(2). I have received zero response from you regarding this matter - Which is extremely disappointing. In fact, you continued t0 refuse t0 d0 so, just now 0n the phone - simply referring t0 same as frivolous. Your attempts t0 “further” meet and confer after your responsive pleading deadline of June 14th came and went long ago are legally unmoving and Without any merit. By your own admission, you had already “met and conferred” with our office thereby rendering CCP 430.41 (a)(2) and any automatic extension based thereon inapplicable because you don’t meet the statutory requirements and preconditions t0 be afforded relief under that statute. Your deadline to file a responsive pleading was June 14m and you did not d0 so. While our Applications for your clients’ Entries 0f Default are still pending, we will nonetheless at this time move for the Court t0 order the Clerk t0 enter these defaults. Sincerely, Paymon Hifai, Esq. Homer Law Group, PC 800 S. Broadway, Suite 200 Wainut Creek, California 94596 T: (925) 943-6570 F: (925) 943-6888 Email: PHifaiQhomerlawgroug.com This message contains information which may be confidential and privileged. Unless you are the addressee (or authorized to receive for the addressee), you may not use, copy or disclose to anyone the message or any information contained in or attached to the message. If you have received the message in error, please advise the sender by reply email PHifai@hornerlawgrou9.com and deIete the message. From: maynardlawoffices Sent: Friday, July 09, 2021 12:49 PM To: Paymon Hifai ; Clifford Horner Subject: Meet & Confer Re Demurrer and Motion to Strike Gentlemen, Please see the attached correspondence from Mr. Maynard requiring your immediate attention. Law Offices of Maynard & Hogan (408) 293-8500 Sharon Piserchio From: Paymon Hifai Sent: Wednesday, June 23, 2021 4:44 PM To: maynardlawoffices@earthlink.net Cc: Clifford Homer; Sharon Piserchio Subject: Hart v. Hart: Motion for Section 128.5 Sanctions - Attachments: FW: Response to Fred‘s Counter Offer - Hart v. Hart - Evidence Code Protected Settlement Communication Follow Up Flag: Follow up Flag Status: Completed Mr. Maynard - This correspondence follows my attached e-mail t0 you from June 16th which you have failed to respond t0 regarding your deficient and defective declaration which fails to satisfy the factual and legal requirements required in order t0 obtain a 30 day extension to respond to the Complaint under CCP 430.41(a)(2). Tellingly, you have failed to respond with any fact or legal authority - 0r at all - t0 the issues raised in my June 16th correspondence - specifically, how the allegations contained in your declaration would somehow warrant or give rise to any extension provided under CCP 430.41 (a)(2) M the reason being is that they d0 not. In fact, the express admissions in your declaration confirm that you d0 not and cannot satisfy the standard required under to obtain such an extension under CCP 430.41(a)(2). Your declaration admits that you received the Complaint nearly three months ago on April 8th (Para. 1), you determined there were a number 0f deficiencies in the Complaint susceptible to demurrer (Para. 1), you gave me some general information concerning the defects in the complaint which you plan t0 demur (Para 2), but due to other professional obligations and the complexity 0f the issues that will presented 0n demurrer, you haven’t had sufficient time to available. .. t0 meet and confer -~ or by, extension, draft a demurrer (Para. 4). You then explicitly admit, “I have not yet had to prepare for the follow-up in depth meet and confer with Plaintiff s counsel on the proposed demurrer.” Para. 4. By your own admission, the case was too complex and you didn’t have time t0 file a demurrer ~ and again, blowing a deadline is far from a basis for an automatic extension. The reality based upon your own declaration, you either met and conferred once - which you admit you did but needed a “follow up” ~ or didn’t do so at all but were too busy t0 try. None of which afford you any protections under CCP 430.41(a)(2). Rather than provide any substantive response t0 my June 16th correspondence, you sent a draft Motion for Sanctions which again is Without any factual 0r legal basis. In fact, the declaration contained in support 0f your draft Motion now admits that you did in fact “meet and confer” but simply did not file a responsive pleading. There is absolutely zero basis for your threatened motion and your filing 0f same Will of course be faced With an Opposition and our request that prevailing party fees be awarded as statutorily required. You have made zero attempt to resolve the matter Which you seek Sanctions for - which stemmed from your inability and refusal t0 comply With the law and submitting a false declaration t0 the Court. CCP 430.41(a)(2) provides an extension if, “the parties are not able t0 meet and confer at least five days prior to the date the responsive pleading is due, ...”, subject to the moving party, “filing and serving, 0n or before the date 0n Which a demurrer would be due, a declaration stating under penalty 0f perjury that a good faith attempt t0 meet and confer was made and explaining the reasons why the parties could not meet and confer.” (Emphasis Added). Here, 0n the one hand you say that you met and conferred after being served with the Complaint - i.e. satisfying your meet and confer requirements - and 0n the other, you completely d0 not address whether any: 1 1) any good faith attemgt t0 meet and confer was made and 2) explaining the reasons why the parties could not meet and confer. Neither 0f your declarations contain any such explanation and despite my requests t0 you to provide such an explanation, you have refused t0 d0 so. The reason that you are unable provide such a declaration is that it is not true that that we “couldn’t meet and confer.” We either met and conferred when you called and you should have filed a response 0n 0r before June 14th - 01' you never called and thereby “never made an attempt” t0 meet and confer. In either event, you don’t fall under CCP 430.41 (a)(2). You can be upset about this fact - but you haven’t provided any fact 0r law t0 the contrary. Your Motion which copies and pastes code sections but offers no factual support or analysis t0 the contrary and never even mentions the fact that you “were not able t0 meet and confer” 01‘ “attempted t0 do so.” The request for entry 0f default is not frivolous or in bad-faith but entirely proper given your improper and false declaration. However, what is in fact in bad-faith, is your not once communicating with this office requesting an extension prior t0 June 14th or saying that we couldn’t meet and confer, falsely claiming you are afforded relief under CCP 430.41 (a)(Z) when you are not, refiJsing t0 respond t0 my correspondence to you regarding same from June 16th, and now, threatening to file a baseless motion seeking sanctions for your improper conduct. Keep in mind, that your Motion and proposed action requested is not even ripe because the Clerk has not yet entered a default. As explained in my June 16th correspondence to you, the request is a placeholder for our forthcoming Motion t0 Strike the Declaration and enter your clients’ defaults - prohibiting you from filing a response thereafter, showing the Court our attempt to request the default (after warning t0 you) 01' your having to at least have met and conferred as to how 0r why you should be able to file a responsive pleading despite it being untimely. If the Clerk rej ects our request for entry of default because 0f your declaration, then we will file the Motion t0 Strike. As 0f now, there is n0 requested action or frivolous filing. You are aware of this. As such, t0 the extent you do in fact file your own Motion w seeking nonsensical fees - you should be aware that the prevailing pafiy will be awarded fees and costs and you can expect my client’s fees and costs t0 be in excess of $7,500. Sincerely, Paymon Hifai, Esq. Homer Law Group, PC 800 S. Broadway, Suite 200 Walnut Creek, California 94596 T: (925) 943-6570 F: (925) 943-6888 Email: PHifaiQhornerlawgrou9.com This message contains information which may be confidential and privileged. Unless you are the addressee (or authorized to receive for the addressee), you may not use, copy or disclose to anyone the message or any information contained in or attached to the message. If you have received the message in error, please advise the sender by reply email PHifaiQhomerlawgrougcom and delete the message. From: maynardlawoffices Sent: Monday, June 21, 2021 2:39 PM To: Paymon Hifai ; Clifford Homer ; Sharon Piserchio Subject: RE: Motion for Section 128.5 Sanctions Please excuse that the Documents were not attached to the original email. They are attached now. From: maynardlawoffices [mai1t0:maynardIawoffices©earthlink.net] Sent: Monday, June 21, 2021 2:33 PM To: 'Paymon Hifai'; ‘Clifford Horner'; 'Sharon Piserchio‘ Subject: Motion for Section 128.5 Sanctions Dear Counsel, Please review the attached motion. If you do not withdraw your Request for entry of default within the required 21 day period, l wiH be filing the attached motion. This email is your notice in advance of filing that the motion will be filed. It is also your opportunity to correct the bad faith tactics that you have decided to use in the case. I certainly hope that you make the right decision here. Douglas Scott Maynard Law Offices of Maynard & Hogan 1151 Minnesota Ave. San Jose, CA 95125 (408) 293-8500 Sharon Piserchio From: Paymon Hifai Sent: Wednesday, June 16, 2021 3:25 PM To: maynardlawoffices@earthlinknet Cc: Clifford Homer; Sharon Piserchio Subject: FW: Response to Fred‘s Counter Offer ~ Hart v. Hart - Evidence Code Protected Settlement Communication Attachments: Meet and Confer Declaration Regarding Demurrer s. 6-14-2021 pdf.pdf; Response to Fred's Counter Offer - Hart v. Hart - Evidence Code Protected Settlement Communication Scott - I am in receipt 0f your attached Declaration purportedly filed under CCP 430.41(a)(2) seeking an automatic 30 day extension t0 respond to the Complaint due to an inability to meet and confer - however, the allegations contained in the declaration do not warrant or give rise t0 any automatic extension provided under CCP 430.41(a)(2). CCP 430.41(a)(2) allows for such an extension, “If the parties are not able t0 meet and confer at least five days prior to the date the responsive pleading is due, ...”, subject to the moving party, “filing and sewing, 0n 0r before the date on Which a demurrer would be due, a declaration stating under penalty 0f perjury that a good faith attempt t0 meet and confer was made and explaining the reasons why the parties could not meet and confer.” Simply, there is n0 factual allegations that you made a good-faith attempt to meet and confer 01‘ explaining why you could not meet and confer. Quite the contrary, your declaration admits that you received the Complaint over two months ago 0n April 8th (Para. 1), you determined there were a number of deficiencies in the Complaint susceptible t0 demurrer (Para. 1), you gave me some general information concerning the defects in the complaint which you plan to demur (Para 2), but due t0 other professional obligations and the complexity 0f the issues that Will presented 0n demurrer, you haven’t had sufficient time to available. .. t0 meet and confer - 0r by, extension, draft a demurrer (Para. 4). You then explicitly admit, “I have not yet had to prepare for the follow-up in depth meet and confer with Plaintiffs counsel on the proposed demurrer.” Para. 4. By your own admission, the case was too complex and you didn’t have time t0 file a demurrer w blowing a deadline is far from a basis for an automatic extension. You then incorrectly state that, “settlement discussions failed 0n Thursday at 5:00 pm.” - Le. June 10th. To be clear, your statement is factually incorrect. Settlement discussions terminated, at the latest, 0n June 9‘“. Based upon the June 14th responsive pleading deadline, your last day to meet and confer over the phone was June 9th - and per my email below, at 11 am. on June 8th, I sent my client’s best and final settlement offer and reminded you twice in that email that if the offer is not accepted, we would not grant any extension t0 your responsive pleading deadline - 1.6., “This offer shall expire by close 0f business tomon‘ow June 9th. I note a responsive pleading deadline 0f Monday June 14th - if the above offer is not accepted, 0r an agreement in principle is not reached, the current responsive pleading deadline will stand”, “Also, you mentioned a potential request for responsive pleading extension deadline but to the extent an agreement isn’t reached, I would not expect any further extensions t0 be granted and your clients can 100k forward to actually litigating this matter and proceeding with discovery.” Your client rejected the best and final offer on June 9th at 12:23 pm. - see the attached email - and laughably, offered a $100,000 less than its starting offer which expired days prior. Your claim that settlement discussions were somehow ongoing based upon the expiration 0f your client’s counteroffer is a self-created argument and entirely wrong. The discussions ended when you rej ected my client’s offer on June 9th. In fact, you were on notice that as 0f June 8th that if your client didn’t accept our offer of $250,000 then there would be r10 more settlement discussions and your June 14‘“ responsive pleading deadline would stand. Nor, at any time 1 prior did you request an extension. Your clients chose to rejact the offer and you chose t0 not meet and confer -~ 0r file a demurrer. Alternatively, by your own admission in Paragraph 2, you could have satisfied the meet and confer requirements but simply did not file a demurrer. As such, your declaration contains no facts which would warrant an automatic extension. Therefore, we will be requesting that the Court enter your clients” defaults and if the Clerk does not d0 so, then we will move t0 have the Court strike your declaration and have the Court order that their defaults be entered. Sincerely, Paymon Hifai, Esq. Homer Law Group, PC 800 S. Broadway, Suite 200 Walnut Creek, California 94596 T: (925) 943-6570 F: (925) 943-6888 Email: PHifai@hornerlawgroug.com This message contains information which may be confidential and privileged. Unless you are the addressee (or authorized to receive for the addressee), you may not use, copy or disclose to anyone the message or any information contained in or attached to the message. If you have received the message in error, please advise the sender by reply email PHifai@hornerlawgroug.com and delete the message. From: Paymon Hifai Sent: Tuesday, June O8, 2021 11:09 AM To: mavnardlawoffices@earth|ink.net Cc: Clifford Horner (chorner@hornerlawgroupmom) ; Sharon Piserchio Subject: FW: Response to Fred's Counter Offer - Hart v. Hart - Evidence Code Protected Settlement Communication Scott - I left you a voicemail on Wednesday afternoon and Thursday morning regarding your clients” below Settlement Offer from Wednesday at 3:00 pm. I also left you another voicemail yesterday morning. While you mention Mr. Hart’s reasoned counteroffer as somehow antagonizing your clients, your clients’ counter was surely meant to d0 the same in that your clients decreased their prior offer by approximately $20,000. While you also mention Whether my client is Willing t0 litigate, he has in fact filed a lawsuit against your clients - s0, yes he has in fact initiated litigation. We have previously agreed t0 stay your clients’ responsive pleading deadline t0 this litigation t0 see if this matter can be resolved. To the extent that your clients are confident in their ability to challenge the at-issue written agreement and Mr. Ham’s 1A interest in the Property, as well as resulting claims 0f fraud and elder abuse should the Agreement be challenged by your clients, then 0f course they should do so. However, in the meantime, the value 0f the Property Will continue t0 increase as well Mr. Hart’s recovery - essentially, off-setting any such fees incurred to Mr. Hart in litigating this matter. Nonetheless, given the below the below counteroffer, I d0 believe that this matter should be resolved. Also, you mentioned a potential request for responsive pleading extension deadline but to the extent an agreement isn’t reached, I would not expect any filrther extensions t0 be granted and your clients can 100k forward t0 actually litigating this matter and proceeding With discovery. I have spoken to Mr. Hart and he is willing to accept a payment in the amount of $250,000 from your clients t0 resolve this matter based upon the terms set forth in your clients’ May 18th offer w 2 i.e., payment 0f the settlement funds is t0 be made Via a refinance and the no contact provision. As discussed, the $250,000 counteroffer derives from a sales price 0f $1 .533M less 5.5 percent seller’s fees (5 percent broker fees and .5 percent Closing costs) divided by 4 less $1 10,000. This offer shall expire by close of business tomon‘ow June 9th. Inote a responsive pleading deadline 0fMonday June 14m - if the above offer is not accepted, or an agreement in principle is not reached, the current responsive pleading deadline will stand. Please give me a call if you would like t0 discuss. Sincerely, Paymon Hifai, Esq. Homer Law Group, PC 800 S. Broadway, Suite 200 Walnut Creek, California 94596 T: (925) 943-5570 F: (925) 943-6888 Email: PHifai@hornerlawgroug.com This message contains information which may be confidential and privileged. Unless you are the addressee (or authorized to receive for the addressee), you may not use, copy or disclose to anyone the message or any information contained in or attached to the message. lf you have received the message in error, please advise the sender by reply email PHifaiQhornerlawgroug.com and delete the message. From: maynardlawoffices Sent: Wednesday, June 02, 2021 3:01 PM To: Paymon Hifai ; Clifford Homer Subject: Response to Fred‘s Counter Offer Dear Paymon, Please see the attached response to your counter offer. Scott Maynard (408) 293-8500 HORNERLAW GROUP sun s. Emndway. Sun: zoo Walnm Creek, Califumia 94596 \OOOQQ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE Case Name: Frederick Hart, Jr. v. Michael Hart, et. a1. Case N0: Santa Clara County Superior Court Case No. 21CV378991 I am employed in the County of Contra Costa, State 0f California. My business address is 800 S. Broadway, Suite 200, Walnut Creek, California 94596. I am over the age of eighteen years, and not a party t0 the within action. On August 18, 2021, I caused t0 be served the within: FREDERICK HART, JR.’S NOTICE OF MOTION AND MOTION FOR ENTRY 0F DEFAULT OF DEFENDANTS AND FOR A COURT ORDER STRIKING THE MEET AND CONFER DECLARATION RE DEMURRER TO VERIFIED COMPLAINT FILED BY DEFENDANTS’ COUNSEL FREDERICK HART, JR.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ENTRY OF DEFAULT OF DEFENDANTS AND FOR A COURT ORDER STRIKING THE MEET AND CONFER DECLARATION RE DEMURRER TO VERIFIED COMPLAINT FILED BY DEFENDANTS’ COUNSEL DECLARATION OF PAYMON HIFAI IN SUPPORT OF FREDERICK HART, JR.’S MOTION FOR ENTRY OF DEFAULT OF DEFENDANTS AND FOR A COURT ORDER STRIKING THE MEET AND CONFER DECLARATION RE DEMURRER TO VERIFIED COMPLAINT FILED BY DEFENDANTS’ COUNSEL PROPOSED ORDER on the party(ies) listed below, addressed as follows: Douglas Scott Maynard, Esq. 1 151 Minnesota Avenue San Jose, CA 95125 Attorney for Defendants BV Mail/Ordinarv Business Practices [C.C.P. SS 1013, 1013a]. By causing a true copy thereof to be enclosed in a sealed envelope 0r package, addressed t0 the party[ies] as stated on the attached service list. I am readily familiar With the firm's business practice for collection and processing of envelopes and packages for mailing with the United States Postal Service. Under the firm's practice, mail is deposited in the ordinary course of business with the United States Postal Service at Walnut Creek, California, that same day, With postage thereon fully prepaid. I am aware that upon motion of the party served, service is presumed invalid ifpostal cancellation date 0r postage meter date on the envelope or package is more than one day after the date of deposit for mailing. Executed August 18, 2021 at Walnut Creek, California. By: %W 62mm Sharon Piserchio PROOF OF SERVICE