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1 MEYLAN DAVITT JAIN AREVIAN & KIM LLP
VINCENT J. DAVITT, ESQ. (State Bar No. 130649)
2 ANITA JAIN, ESQ. (State Bar No. 192961) ELECTRONICALLY
3
444 South Flower Street, Suite 1850 F I L E D
Los Angeles, California 90071 Superior Court of California,
County of San Francisco
4 Telephone: (213) 225-6000 / Fax: (213) 225-6660
Email: vdavitt@mdjalaw.com 11/16/2022
Clerk of the Court
5 Email: ajain@mdjalaw.com BY: SANDRA SCHIRO
Deputy Clerk
6 HARRIS L. COHEN, A PROF. CORP.
HARRIS L. COHEN, ESQ., State Bar # 119600
7
5305 Andasol Avenue
8 Encino, California 91316
Telephone: (818) 905-5599 / Fax: (818) 905-5660
9 Email: hcohen00@aol.com
10 Attorneys for Defendants and Cross-Complainants
Milestone Financial, LLC; Bear Bruin Ventures, Inc.;
11
William R. Stuart; Carolyn Stuart; and Zoe Hamilton
12
13 SUPERIOR COURT OF THE STATE OF CALIFORNIA
14 FOR THE COUNTY OF SAN FRANCISCO
15 Eduardo Paniagua and Elena Asturias, CASE NO. CGC-18-571279
individuals,
16 DEFENDANT CAROLYN STUART’S
Plaintiffs,
vs. SEPARATE STATEMENT OF
17 UNDISPUTED MATERIAL FACTS IN
Milestone Financial, LLC, a California SUPPORT OF MOTION FOR SUMMARY
18 corporation, Bear Bruin Ventures, Inc. a JUDGMENT OR SUMMARY
19 California Corporation, William R. Stuart, an ADJUDICATION OF ALL CAUSES OF
individual, Carolyn Stuart, an individual, Zoe ACTION
20 Hamilton, an individual, and DOES 1-100,
[Filed concurrently with: Notice of Motion
inclusive,
21 and Motion; Appendix of Evidence and
Defendants. Request for Judicial Notice]
22
Date: February 1, 2023
23 RELATED CROSS-
Time: 9:30 a.m.
COMPLAINT
24 Dept.: 302
25 Action filed: November 13, 2018
Trial Date: January 17, 2023
26
27
28
MEYLAN DAVITT 1
JAIN AREVIAN & KIM LLP SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS RE MSA
1 Pursuant to Rule 3.1350 of California Rules of Court, Defendant Carolyn Stuart (“Defendant”
2 or “Carolyn Stuart”) submits the following Separate Statement of Undisputed Material Facts and
3 Supporting Evidence in support of her Motion for Summary Judgment or, in the alternative, Summary
4 Adjudication against Plaintiffs Eduardo Paniagua’s (“Paniagua”) and Elena Asturias’ (“Asturias”)
5 operative First Amended Complaint (“FAC”) on the following issues:
6 SUMMARY JUDGMENT
7 Issue 1. Carolyn Stuart is entitled to summary judgment as to all of Plaintiffs’ causes of action
8 -- (1) Fraud; (2) Negligent Misrepresentation; (3) Violation of Business and Professions (“B&P”) Code
9 §§ 17200 and 17500, and Civil Code § 1750 (hereinafter “Statutory Consumer Claims”); (4) Usury; (5)
10 Rescission; and (6) Declaratory Relief -- because Carolyn Stuart: did not have any contract with either
11 Plaintiff; did not make any representations to either Plaintiff; did not charge either Plaintiff any
12 interest; and did not get paid any interest from either Plaintiff.
13 SUMMARY ADJUDICATION
14 Alternatively, Carolyn Stuart is entitled to summary adjudication as follows.
15 Issue 2. Plaintiffs’ First Cause of Action for Fraud fails because: Carolyn Stuart did not make
16 any representations to either Plaintiff; Plaintiffs could not have relied on any nonexistent
17 representations; and Paniagua released all claims against Carolyn Stuart in two valid and enforceable
18 Settlement Agreements which contained general releases.
19 Issue 3. Plaintiffs’ Second Cause of Action for Negligent Misrepresentation fails because:
20 Carolyn Stuart did not make any representations to either Plaintiff; Plaintiffs could not have relied on
21 any nonexistent representations; and Paniagua released all claims against Carolyn Stuart in two valid
22 and enforceable Settlement Agreements which contained general releases.
23 Issue 4. Plaintiffs’ Third Cause Of Action for Statutory Consumer Claims fails because:
24 Carolyn Stuart did not have any contract with either Plaintiff; Carolyn Stuart did not make any
25 representations to either Plaintiff; Plaintiffs could not have relied on any nonexistent representations;
26 and Paniagua released all claims against Carolyn Stuart in two valid and enforceable Settlement
27 Agreements which contained general releases.
28
MEYLAN DAVITT 2
JAIN AREVIAN & KIM LLP SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS RE MSA
1 Issue 5. Plaintiffs’ Fourth Cause of Action for Usury fails because Carolyn Stuart never had
2 any contract with either Plaintiff and never charged any interest to, or collected any interest from,
3 either Plaintiff.
4 Issue 6. Plaintiffs’ Fifth Cause of Action for Rescission is not a valid cause of action because:
5 rescission is a remedy, not a cause of action; and Carolyn Stuart did not have any contract with either
6 Plaintiff.
7 Issue 7. Plaintiffs’ Sixth Cause Of Action for Declaratory Relief fails because: Carolyn Stuart
8 did not have any contract with either Plaintiff; and Carolyn Stuart did not make any representations to
9 either Plaintiff.
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MEYLAN DAVITT 3
JAIN AREVIAN & KIM LLP SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS RE MSA
1 ISSUE 1. CAROLYN STUART IS ENTITLED TO SUMMARY JUDGMENT AS TO ALL OF
2 PLAINTIFFS’ CAUSES OF ACTION BECAUSE CAROLYN STUART: DID NOT HAVE ANY
3 CONTRACT WITH EITHER PLAINTIFF; DID NOT MAKE ANY REPRESENTATIONS TO
4 EITHER PLAINTIFF; DID NOT CHARGE EITHER PLAINTIFF ANY INTEREST; AND DID
5 NOT GET PAID ANY INTEREST FROM EITHER PLAINTIFF.
6 The Undisputed Material Facts and Supporting Evidence for Issue1 are comprised of Fact Nos.
7 1-17.
8 Moving Party's Undisputed Material Opposing Party's Response and
9 Facts and Supporting Evidence: Supporting Evidence:
10
1. Eduardo Paniagua (”Paniagua” or “EP”)
11 acquired the real property at 1228 Funston
Ave., San Francisco, CA 94122 (“Funston”)
12 by two grant deeds: 1) a grant deed recorded in
2009 wherein Carlota Texidor Del Portillo aka
13
Carlota Asturias and Catherine Echevarria
14 transferred 50% to Paniagua and his wife,
Elena Asturias (”Asturias” or “EA”), and they
15 each retained 25%; and 2) a grant deed
recorded in 2011 wherein the then-owners all
16 transferred their interests to Paniagua as his
sole and separate property. (EP and EA are
17
referred to as “Plaintiffs”).
18
Appendix of Evidence: 1
19
Exs. 1, 2 (2009 and 2011 grant deeds (BSP 5-
20 9)); Ex. 12 (Stuart Decl. ¶¶ 1, 2 (BSP 96:6-
21 18)).
22 Request for Judicial Notice:
Nos. 1 and 2;
23
2. Asturias is a California licensed attorney
24
since 1988 with an LLM from Georgetown
25 Law Center. She worked for the California
Department of Insurance as an attorney for 16-
26 17 years.
27 1
In the Appendix of Evidence (“AOE”) filed concurrently herewith, all exhibits are assigned numbers.
The deposition transcripts are authenticated in the Declaration of Harris Cohen (Ex. 13). “BSP” refers
28 to the bates stamped page numbers (with line numbers for deposition transcripts/declarations) at the
bottom, right-hand corner of each page in the AOE
MEYLAN DAVITT 4
JAIN AREVIAN & KIM LLP SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS RE MSA
1
Appendix of Evidence:
2
3 Ex. 13 (Cohen Decl. ¶3 (BSP 101:14-15), Ex.
8. (EA Depo (BSP 77:5-20; 78:19-22).
4 3. EP signed a promissory note presented to
Milestone for his loan secured by the Property.
5
Appendix of Evidence:
6
7 Ex. 12 (WStuart Decl. ¶ 3 (BSP 96:19-23));
Ex. 3 (Note BSP 11-22).
8 4. Milestone’s deed of trust for the loan to
Paniagua was recorded on March 20, 2014.
9
10 Appendix of Evidence:
11 Ex. 12 (WStuart Decl. ¶ 4 (BSP 96:24-28));
Ex. 4 (DOT (BSP 24-34)).
12 5. Carolyn Stuart was an officer of Bear
13 Bruin Ventures, Inc. (“BBV”) and BBV was
the managing member Milestone.
14
Appendix of Evidence:
15
Ex. 11 (CStuart Decl. ¶ 1 (BSP 92:6-8)).
16
6. Carolyn Stuart did not have any
17 involvement with the underwriting, the loan
decisions, loan considerations or any other
18 aspect of the loan by Milestone to Paniagua
secured by the Property.
19
20 Appendix of Evidence:
21 Ex. 11 (CStuart Decl. ¶ 2, (BSP 92:10-14)).
7. Carolyn Stuart did not have any written,
22 oral or other kind of communication with
either Paniagua or his wife, Asturias,
23
concerning the Milestone-Paniagua Loan or
24 any other matter.
25 Appendix of Evidence:
26 Ex. 11 (CStuart Decl. ¶ 3, (BSP 92:15-18));
Ex. 13 (Cohen Decl. ¶2, (BSP 101:10-12); ¶3
27
(BSP 101:13-15)); Ex. 7 (EP Depo. (BSP
28 66:21-25, 67:1-23), Ex. 8 (EA Depo (BSP
79:18-25, 80:1-25, 81:1-13))
MEYLAN DAVITT 5
JAIN AREVIAN & KIM LLP SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS RE MSA
1 8. After Paniagua was unable to pay off the
original loan from Milestone to Paniagua by
2 the maturity date, Paniagua entered into a
3 Settlement Agreement, Indemnity and First
Amendment to Promissory Note Secured by
4 Deed of Trust (“First Settlement Agreement”)
in January 2016 with Milestone.
5
Appendix of Evidence:
6
7 Ex. 12 (WStuart Decl ¶ 5 (BSP 97:1-9) ; Ex. 5
(First Settlement Agreement (BSP 36-45)).
8 9. Carolyn Stuart did not have any
involvement with the preparation, negotiation
9 or transmission of the First Settlement
Agreement.
10
11 Appendix of Evidence:
12 Ex. 11 (CStuart Decl. ¶ 4 (BSP 92:19-23)).
10. After Paniagua was unable to pay off the
13
First Settlement Agreement by the new
14 maturity date, he entered into a Settlement
Agreement, Indemnity and Second
15 Amendment to Promissory Note Secured by
Deed of Trust (“Second Settlement
16 Agreement”) in January 2017 with Milestone.
17
Appendix of Evidence:
18
Ex. 12 (WStuart Decl ¶ 6 (BSP 97:10-17), Ex.
19 6 (Second Settlement Agreement (BSP 47-
58)).
20 11. Carolyn Stuart did not have any
21 involvement with the preparation, negotiation
or transmission of the Second Settlement
22 Agreement between Paniagua and Milestone.
23 Appendix of Evidence:
24
, Ex. 11 (CStuart Decl. ¶ 5 (BSP 92:24-28)).
25 12. Between the date Paniagua executed the
Second Settlement Agreement and the date
26 Paniagua paid off the loan from Milestone in
April 2018, Carolyn Stuart did not have any
27 written, oral or other kind of communication
28 with either Plaintiff.
MEYLAN DAVITT 6
JAIN AREVIAN & KIM LLP SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS RE MSA
1 Appendix of Evidence:
2 Ex. 11 (CStuart Decl. ¶3, 6 (BSP 92:15-18,
3 93:1-3)); Ex. 13 (Cohen Decl. ¶2 (BSP 101:10-
12), ¶3 (BSP 101:13-15)); Ex. 7 (EP Depo
4 (BSP 66:21-25, 67:1-23)); Ex. 8 (EA Depo
(BSP 79:18-25, 80:1-25, 81:1-13); Ex. 12
5 (WStuart Decl. ¶8 (BSP 97:21-26), Ex. 9
(Reconveyance (BSP 86-87))
6 .
7 13. Carolyn Stuart did not create or distribute
any flyers, marketing materials or
8 advertisements for Milestone and never
represented to anyone that Milestone made
9 loans for consumer purposes, such as for
personal, family or household purposes.
10
11 Appendix of Evidence:
12 Ex. 11 (CStuart Decl. ¶ 7, 9 (BSP 93:5-7, 11-
14)).
13
14 14. Carolyn Stuart has never had any input
into the design, words or content of
15 Milestone’s website.
16 Appendix of Evidence:
17
Ex. 11 (CStuart Decl. ¶ 8 (BSP 93:8-10).
18
15. Paniagua paid off the Milestone loan on
19 April 3, 2018.
20
Appendix of Evidence:
21
Ex. 12 (WStuart Decl. ¶ 8 (BSP 97:20-26))
22 .
16. Carolyn Stuart did not have any contract
23 with either Plaintiff including, but not limited
24 to, any loans.
25 Appendix of Evidence:
26 Ex. 11 (CStuart Decl. ¶ 10 BSP 93:15-17))
.
27
28
MEYLAN DAVITT 7
JAIN AREVIAN & KIM LLP SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS RE MSA
1 17. Carolyn Stuart has never charged either
Plaintiff any interest on any loan, and neither
2 Plaintiff ever paid Carolyn Stuart interest.
3
Appendix of Evidence:
4
Ex. 11 (CStuart Decl. ¶ 11 (BSP 93:18-19))
5
6
7
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MEYLAN DAVITT 8
JAIN AREVIAN & KIM LLP SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS RE MSA
1 ISSUE 2: PLAINTIFFS’ FIRST CAUSE OF ACTION FOR FRAUD FAILS BECAUSE:
2 CAROLYN STUART DID NOT MAKE ANY REPRESENTATIONS TO EITHER
3 PLAINTIFF; PLAINTIFFS COULD NOT HAVE RELIED ON ANY NONEXISTENT
4 REPRESENTATIONS; AND PANIAGUA RELEASED ALL CLAIMS AGAINST CAROLYN
5 STUART IN TWO VALID AND ENFORCEABLE SETTLEMENT AGREEMENTS WHICH
6 CONTAINED GENERAL RELEASES.
7 The Undisputed Material Facts and Supporting Evidence for Issue 2 are comprised of Fact Nos.
8 18-29, which Facts and Supporting Evidence are the same as Fact Nos. 6-17 above.
9 Moving Party's Undisputed Material Opposing Party's Response and
10 Facts and Supporting Evidence: Supporting Evidence:
11 18. Carolyn Stuart did not have any
12 involvement with the underwriting, the loan
decisions, loan considerations or any other
13 aspect of the loan by Milestone to Paniagua
secured by the Property.
14
Appendix of Evidence:
15
16 Ex. 11 (CStuart Decl. ¶ 2, (BSP 92:10-14))
17 19. Carolyn Stuart did not have any written,
oral or other kind of communication with
18 either Paniagua or his wife, Asturias,
concerning the Milestone-Paniagua Loan or
19
any other matter.
20
Appendix of Evidence:
21
Ex. 11 (CStuart Decl. ¶ 3, (BSP 92:15-18));
22 Ex. 13 (Cohen Decl. ¶2, (BSP 101:10-12); ¶3
(BSP 101:13-15)); Ex. 7 (EP Depo. (BSP
23
66:21-25, 67:1-23), Ex. 8 (EA Depo (BSP
24 79:18-25, 80:1-25, 81:1-13))
25 20. After Paniagua was unable to pay off the
original loan from Milestone to Paniagua by
26 the maturity date, Paniagua entered into a
27 Settlement Agreement, Indemnity and First
Amendment to Promissory Note Secured by
28 Deed of Trust (“First Settlement Agreement”)
in January 2016 with Milestone.
MEYLAN DAVITT 9
JAIN AREVIAN & KIM LLP SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS RE MSA
1
Appendix of Evidence:
2
Ex. 12 (WStuart Decl ¶ 5 (BSP 97:1-9) ; Ex. 5
3
(First Settlement Agreement (BSP 36-45)).
4
21. Carolyn Stuart did not have any
5 involvement with the preparation, negotiation
or transmission of the First Settlement
6 Agreement.
7
Appendix of Evidence:
8
Ex. 11 (CStuart Decl. ¶ 4 (BSP 92:19-23)).
9
22. After Paniagua was unable to pay off the
10 First Settlement Agreement by the new
11 maturity date, he entered into a Settlement
Agreement, Indemnity and Second
12 Amendment to Promissory Note Secured by
Deed of Trust (“Second Settlement
13 Agreement”) in January 2017 with Milestone.
14 Appendix of Evidence:
15
Ex. 12 (WStuart Decl ¶ 6 (BSP 97:10-17), Ex.
16 6 (Second Settlement Agreement (BSP 47-58))
.
17 23. Carolyn Stuart did not have any
involvement with the preparation, negotiation
18
or transmission of the Second Settlement
19 Agreement between Paniagua and Milestone.
20 Appendix of Evidence:
21 Ex. 11 (CStuart Decl. ¶ 5 (BSP 92:24-28)).
24. Between the date Paniagua executed the
22
Second Settlement Agreement and the date
23 Paniagua paid off the loan from Milestone in
April 2018, Carolyn Stuart did not have any
24 written, oral or other kind of communication
with either Plaintiff.
25
26 Appendix of Evidence:
27 Ex. 11 (CStuart Decl. ¶¶3, 6 (BSP 92:15-18,
93:1-3)); Ex. 13 (Cohen Decl. ¶2 (BSP 101:10-
28 12), ¶3 (BSP 101:13-15)); Ex. 7 (EP Depo
MEYLAN DAVITT 10
JAIN AREVIAN & KIM LLP SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS RE MSA
1 (BSP 66:21-25, 67:1-23)); Ex. 8 (EA Depo
(BSP 79:18-25, 80:1-25, 81:1-13); Ex. 12
2 (WStuart Decl. ¶8 (BSP 97:21-26), Ex. 9
(Reconveyance (BSP 86-87)).
3
4 25. Carolyn Stuart did not create or distribute
any flyers, marketing materials or
5 advertisements for Milestone and never
represented to anyone that Milestone made
6 loans for consumer purposes, such as for
personal, family or household purposes.
7
8 Appendix of Evidence:
9 Ex. 11 (CStuart Decl. ¶ 7, 9 (BSP 93:5-7, 11-
14)).
10
11 26. Carolyn Stuart has never had any input
into the design, words or content of
12 Milestone’s website.
13 Appendix of Evidence:
14 Ex. 11 (CStuart Decl. ¶ 8 (BSP 93:8-10).
15
27. Paniagua paid off the Milestone loan on
16 April 3, 2018.
17 Appendix of Evidence:
18
Ex. 12 (WStuart Decl. ¶ 8 (BSP 97:20-26)).
19
28. Carolyn Stuart did not have any contract
20 with either Plaintiff including, but not limited
to, any loans.
21
22 Appendix of Evidence:
23 Ex. 11 (CStuart Decl. ¶ 10 (BSP 93:15-17))
24 29. Carolyn Stuart has never charged either
Plaintiff any interest on any loan, and neither
25 Plaintiff ever paid Carolyn Stuart interest.
26
Appendix of Evidence:
27
Ex. 11 (CStuart Decl. ¶ 11 (BSP 93:18-19)).
28
MEYLAN DAVITT 11
JAIN AREVIAN & KIM LLP SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS RE MSA
1 ISSUE 3: PLAINTIFFS’ SECOND CAUSE OF ACTION FOR NEGLIGENT
2 MISREPRESENTATION FAILS BECAUSE: CAROLYN STUART DID NOT MAKE ANY
3 REPRESENTATIONS TO EITHER PLAINTIFF; PLAINTIFFS COULD NOT HAVE RELIED
4 ON ANY NONEXISTENT REPRESENTATIONS; AND PANIAGUA RELEASED ALL
5 CLAIMS AGAINST CAROLYN STUART IN TWO VALID AND ENFORCEABLE
6 SETTLEMENT AGREEMENTS WHICH CONTAINED GENERAL RELEASES.
7 The Undisputed Material Facts and Supporting Evidence for Issue 3 are comprised of Fact Nos.
8 30-41, which Facts and Supporting Evidence are the same as Fact Nos. 6-17 above.
9 Moving Party's Undisputed Material Opposing Party's Response and
10 Facts and Supporting Evidence: Supporting Evidence:
11
30. Carolyn Stuart did not have any
12 involvement with the underwriting, the loan
decisions, loan considerations or any other
13 aspect of the loan by Milestone to Paniagua
secured by the Property.
14
Appendix of Evidence:
15
16 Ex. 11 (CStuart Decl. ¶ 2, (BSP 92:10-14))
17 31. Carolyn Stuart did not have any written,
oral or other kind of communication with
18 either Paniagua or his wife, Asturias,
19 concerning the Milestone-Paniagua Loan or
any other matter.
20
Appendix of Evidence:
21
Ex. 11 (CStuart Decl. ¶ 3, (BSP 92:15-18));
22 Ex. 13 (Cohen Decl. ¶2, (BSP 101:10-12); ¶3
23 (BSP 101:13-15)); Ex. 7 (EP Depo. (BSP
66:21-25, 67:1-23), Ex. 8 (EA Depo (BSP
24 79:18-25, 80:1-25, 81:1-13))
25 32. After Paniagua was unable to pay off the
original loan from Milestone to Paniagua by
26
the maturity date, Paniagua entered into a
27 Settlement Agreement, Indemnity and First
Amendment to Promissory Note Secured by
28 Deed of Trust (“First Settlement Agreement”)
MEYLAN DAVITT 12
JAIN AREVIAN & KIM LLP SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS RE MSA
1 in January 2016 with Milestone.
2 Appendix of Evidence:
3
Ex. 12 (WStuart Decl ¶ 5 (BSP 97:1-9) ; Ex. 5
4 (First Settlement Agreement (BSP 36-45)).
5 33. Carolyn Stuart did not have any
involvement with the preparation, negotiation
6 or transmission of the First Settlement
Agreement.
7
8 Appendix of Evidence:
9 Ex. 11 (CStuart Decl. ¶ 4 (BSP 92:19-23)).
10 34. After Paniagua was unable to pay off the
11 First Settlement Agreement by the new
maturity date, he entered into a Settlement
12 Agreement, Indemnity and Second
Amendment to Promissory Note Secured by
13 Deed of Trust (“Second Settlement
Agreement”) in January 2017 with Milestone.
14
15 Appendix of Evidence:
16 Ex. 12 (WStuart Decl ¶ 6 (BSP 97:10-17), Ex.
6 (Second Settlement Agreement (BSP 47-
17 58)).
18
35. Carolyn Stuart did not have any
19 involvement with the preparation, negotiation
or transmission of the Second Settlement
20 Agreement between Paniagua and Milestone.
21 Appendix of Evidence:
22
Ex. 11 (CStuart Decl. ¶ 5 (BSP 92:24-28)).
23
36. Between the date Paniagua executed the
24 Second Settlement Agreement and the date
Paniagua paid off the loan from Milestone in
25 April 2018, Carolyn Stuart did not have any
26 written, oral or other kind of communication
with either Plaintiff.
27
Appendix of Evidence:
28
MEYLAN DAVITT 13
JAIN AREVIAN & KIM LLP SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS RE MSA
1 Ex. 11 (CStuart Decl. ¶¶3, 6 (BSP 92:15-18,
93:1-3)); Ex. 13 (Cohen Decl. ¶2 (BSP 101:10-
2 12), ¶3 (BSP 101:13-15)); Ex. 7 (EP Depo
(BSP 66:21-25, 67:1-23)); Ex. 8 (EA Depo
3
(BSP 79:18-25, 80:1-25, 81:1-13); Ex. 12
4 (WStuart Decl. ¶8 (BSP 97:21-26), Ex. 9
(Reconveyance (BSP 86-87)).
5
37. Carolyn Stuart did not create or distribute
6 any flyers, marketing materials or
advertisements for Milestone and never
7
represented to anyone that Milestone made
8 loans for consumer purposes, such as for
personal, family or household purposes.
9
Appendix of Evidence:
10
11 Ex. 11 (CStuart Decl. ¶ 7, 9 (BSP 93:5-7, 11-
14)).
12
38. Carolyn Stuart has never had any input
13 into the design, words or content of
Milestone’s website.
14
15 Appendix of Evidence:
16 Ex. 11 (CStuart Decl. ¶ 8 (BSP 93:8-10).
17 39. Paniagua paid off the Milestone loan on
April 3, 2018.
18
19 Appendix of Evidence:
20 Ex. 12 (WStuart Decl. ¶ 8 (BSP 97:20-26)).
21 40. Carolyn Stuart did not have any contract
with either Plaintiff including, but not limited
22
to, any loans.
23
Appendix of Evidence:
24
Ex. 11 (CStuart Decl. ¶ 10 BSP 93:15-17))
25
26
27
28
MEYLAN DAVITT 14
JAIN AREVIAN & KIM LLP SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS RE MSA
1 41. Carolyn Stuart has never charged either
Plaintiff any interest on any loan, and neither
2 Plaintiff ever paid Carolyn Stuart interest.
3
Appendix of Evidence:
4
Ex. 11 (CStuart Decl. ¶ 11 (BSP 93:18-19)).
5
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MEYLAN DAVITT 15
JAIN AREVIAN & KIM LLP SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS RE MSA
1 ISSUE 4: PLAINTIFFS’ THIRD CAUSE OF ACTION FOR STATUTORY CONSUMER
2 CLAIMS FAILS BECAUSE: CAROLYN STUART DID NOT HAVE ANY CONTRACT WITH
3 EITHER PLAINTIFF; CAROLYN STUART DID NOT MAKE ANY REPRESENTATIONS
4 TO EITHER PLAINTIFF; PLAINTIFFS COULD NOT HAVE RELIED ON ANY
5 NONEXISTENT REPRESENTATIONS; AND PANIAGUA RELEASED ALL CLAIMS
6 AGAINST CAROLYN STUART IN TWO VALID AND ENFORCEABLE SETTLEMENT
7 AGREEMENTS.
8 The Undisputed Material Facts and Supporting Evidence for Issue 4 are comprised of Fact Nos.
9 42-54. Fact Nos. 42-53 are the same as Fact Nos. 6-17 above. Fact No. 54 is an additional fact.
10 Moving Party's Undisputed Material Opposing Party's Response and
11 Facts and Supporting Evidence: Supporting Evidence:
12
42. Carolyn Stuart did not have any
13 involvement with the underwriting, the loan
decisions, loan considerations or any other
14 aspect of the loan by Milestone to Paniagua
secured by the Property.
15
Appendix of Evidence:
16
17 Ex. 11 (CStuart Decl. ¶ 2, (BSP 92:10-14))
18 43. Carolyn Stuart did not have any written,
oral or other kind of communication with
19 either Paniagua or his wife, Asturias,
20 concerning the Milestone-Paniagua Loan or
any other matter.
21
Appendix of Evidence:
22
Ex. 11 (CStuart Decl. ¶ 3, (BSP 92:15-18));
23 Ex. 13 (Cohen Decl. ¶2, (BSP 101:10-12); ¶3
24 (BSP 101:13-15)); Ex. 7 (EP Depo. (BSP
66:21-25, 67:1-23), Ex. 8 (EA Depo (BSP
25 79:18-25, 80:1-25, 81:1-13))
26 44. After Paniagua was unable to pay off the
original loan from Milestone to Paniagua by
27
the maturity date, Paniagua entered into a
28 Settlement Agreement, Indemnity and First
Amendment to Promissory Note Secured by
MEYLAN DAVITT 16
JAIN AREVIAN & KIM LLP SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS RE MSA
1 Deed of Trust (“First Settlement Agreement”)
in January 2016 with Milestone.
2
Appendix of Evidence:
3
4 Ex. 12 (WStuart Decl ¶ 5 (BSP 97:1-9) ; Ex. 5
(First Settlement Agreement (BSP 36-45)).
5
45. Carolyn Stuart did not have any
6 involvement with the preparation, negotiation
or transmission of the First Settlement
7
Agreement.
8
Appendix of Evidence:
9
Ex. 11 (CStuart Decl. ¶ 4 (BSP 92:19-23)).
10
11 46. After Paniagua was unable to pay off the
First Settlement Agreement by the new
12 maturity date, he entered into a Settlement
Agreement, Indemnity and Second
13 Amendment to Promissory Note Secured by
Deed of Trust (“Second Settlement
14 Agreement”) in January 2017 with Milestone.
15
Appendix of Evidence:
16
Ex. 12 (WStuart Decl ¶ 6 (BSP 97:10-17), Ex.
17 6 (Second Settlement Agreement (BSP 47-
58)).
18
19 47. Carolyn Stuart did not have any
involvement with the preparation, negotiation
20 or transmission of the Second Settlement
Agreement between Paniagua and Milestone.
21
Appendix of Evidence:
22
23 Ex. 11 (CStuart Decl. ¶ 5 (BSP 92:24-28)).
24 48. Between the date Paniagua executed the
Second Settlement Agreement and the date
25 Paniagua paid off the loan from Milestone in
26 April 2018, Carolyn Stuart did not have any
written, oral or other kind of communication
27 with either Plaintiff.
28 Appendix of Evidence:
MEYLAN DAVITT 17
JAIN AREVIAN & KIM LLP SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS RE MSA
1
Ex. 11 (CStuart Decl. ¶¶3, 6 (BSP 92:15-18,
2 93:1-3)); Ex. 13 (Cohen Decl. ¶2 (BSP 101:10-
12), ¶3 (BSP 101:13-15)); Ex. 7 (EP Depo
3
(BSP 66:21-25, 67:1-23)); Ex. 8 (EA Depo
4 (BSP 79:18-25, 80:1-25, 81:1-13); Ex. 12
(WStuart Decl. ¶8 (BSP 97:21-26), Ex. 9
5 (Reconveyance (BSP 86-87)).
6 49. Carolyn Stuart did not create or distribute
any flyers, marketing materials or
7
advertisements for Milestone and never
8 represented to anyone that Milestone made
loans for consumer purposes, such as for
9 personal, family or household purposes.
10 Appendix of Evidence:
11
Ex. 11 (CStuart Decl. ¶ 7, 9 (BSP 93:5-7, 11-
12 14)).
13
50. Carolyn Stuart has never had any input
14 into the design, words or content of
15 Milestone’s website.
16 Appendix of Evidence:
17 Ex. 11 (CStuart Decl. ¶ 8 (BSP 93:8-10).
18
51. Paniagua paid off the Milestone loan on
19 April 3, 2018.
20 Appendix of Evidence:
21 Ex. 12 (WStuart Decl. ¶ 8 (BSP 97:20-26)).
22
52. Carolyn Stuart did not have any contract
23 with either Plaintiff including, but not limited
to, any loans.
24
Appendix of Evidence:
25
26 Ex. 11 (CStuart Decl. ¶ 10 BSP 93:15-17))
27
28
MEYLAN DAVITT 18
JAIN AREVIAN & KIM LLP SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS RE MSA
1 53. Carolyn Stuart has never charged either
Plaintiff any interest on any loan, and neither
2 Plaintiff ever paid Carolyn Stuart interest.
3
Appendix of Evidence:
4
Ex. 11 (CStuart Decl. ¶ 11 (BSP 93:18-19)).
5
54. Milestone qualified for and received a
6 California Finance Lender’s License issued on
February 23, 2018, by the California
7
Department of Business Oversight (now the
8 California Department of Financial Protection
& Innovation). Milestone’s loans since that
9 time have been made pursuant to that license.
10 Appendix of Evidence:
11
Ex. 11 (WStuart Decl. ¶ 10 (BSP 98:1-6); Ex.
12 10 (License (BSP 89)).
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
MEYLAN DAVITT 19
JAIN AREVIAN & KIM LLP SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS RE MSA
1 ISSUE 5: PLAINTIFFS’ FOURTH CAUSE OF ACTION FOR USURY FAILS BECAUSE
2 CAROLYN STUART NEVER HAD ANY CONTRACT WITH EITHER PLAINTIFF AND
3 NEVER CHARGED ANY INTEREST TO, OR COLLECTED ANY INTEREST FROM,
4 EITHER PLAINTIFF.
5 The Undisputed Material Facts and Supporting Evidence for Issue 5 are comprised of Fact Nos.
6 55-66, which Facts and Supporting Evidence are the same as Fact Nos. 6-17 above.
7 Moving Party's Undisputed Material Opposing Party's Response and
8 Facts and Supporting Evidence: Supporting Evidence:
9
55. Carolyn Stuart did not have any
10 involvement with the underwriting, the loan
decisions, loan considerations or any other
11 aspect of the loan by Milestone to Paniagua
secured by the Property.
12
Appendix of Evidence:
13
14 Ex. 11 (CStuart Decl. ¶ 2, (BSP 92:10-14))
15 56. Carolyn Stuart did not have any written,
oral or other kind of communication with
16 either Paniagua or his wife, Asturias,
17 concerning the Milestone-Paniagua Loan or
any other matter.
18
Appendix of Evidence:
19
Ex. 11 (CStuart Decl. ¶ 3, (BSP 92:15-18));
20 Ex. 13 (Cohen Decl. ¶2, (BSP 101:10-12); ¶3
21 (BSP 101:13-15)); Ex. 7 (EP Depo. (BSP
66:21-25, 67:1-23), Ex. 8 (EA Depo (BSP
22 79:18-25, 80:1-25, 81:1-13))
23 57. After Paniagua was unable to pay off the
original loan from Milestone to Paniagua by
24
the maturity date, Paniagua entered into a
25 Settlement Agreement, Indemnity and First
Amendment to Promissory Note Secured by
26 Deed of Trust (“First Settlement Agreement”)
in January 2016 with Milestone.
27
Appendix of Evidence:
28
MEYLAN DAVITT 20
JAIN AREVIAN & KIM LLP SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS RE MSA
1 Ex. 12 (WStuart Decl ¶ 5 (BSP 97:1-9) ; Ex. 5
(First Settlement Agreement (BSP 36-45)).
2
58. Carolyn Stuart did not have any
3
involvement with the preparation, negotiation
4 or transmission of the First Settlement
Agreement.
5
Appendix of Evidence:
6
Ex. 11 (CStuart Decl. ¶ 4 (BSP 92:19-23)).
7
8 59. After Paniagua was unable to pay off the
First Settlement Agreement by the new
9 maturity date, he entered into a Settlement
Agreement, Indemnity and Second
10 Amendment to Promissory Note Secured by
11 Deed of Trust (“Second Settlement
Agreement”) in January 2017 with Milestone.
12
Appendix of Evidence:
13
Ex. 12 (WStuart Decl ¶ 6 (BSP 97:10-17), Ex.
14 6 (Second Settlement Agreement (BSP 47-
15 58)).
16 60. Carolyn Stuart did not have any
involvement with the preparation, negotiation
17 or transmission of the Second Settlement
Agreement between Paniagua and Milestone.
18
19 Appendix of Evidence:
20 Ex. 11 (CStuart Decl. ¶ 5 (BSP 92:24-28)).
21 61. Between the date Paniagua executed the
Second Settlement Agreement and the date
22
Paniagua paid off the loan from Milestone in
23 April 2018, Carolyn Stuart did not have any
written, oral or other kind of communication
24 with either Plaintiff.
25 Appendix of Evidence:
26
Ex. 11 (CStuart Decl. ¶¶3, 6 (BSP 92:15-18,
27 93:1-3)); Ex. 13 (Cohen Decl. ¶2 (BSP 101:10-
12), ¶3 (BSP 101:13-15)); Ex. 7 (EP Depo
28 (BSP 66:21-25, 67:1-23)); Ex. 8 (EA Depo
MEYLAN DAVITT 21
JAIN AREVIAN & KIM LLP SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS RE MSA
1 (BSP 79:18-25, 80:1-25, 81:1-13); Ex. 12
(WStuart Decl. ¶8 (BSP 97:21-26), Ex. 9
2 (Reconveyance (BSP 86-87)).
3
62. Carolyn Stuart did not create or distribute
4 any flyers, marketing materials or
advertisements for Milestone and never
5 represented to anyone that Milestone made
loans for consumer purposes, such as for
6 personal, family or household purposes.
7
Appendix of Evidence:
8
Ex. 11 (CStuart Decl. ¶ 7, 9 (BSP 93:5-7, 11-
9 14)).
10 63. Carolyn Stuart has never had any input
11 into the design, words or content of
Milestone’s website.
12
Appendix of Evidence:
13
Ex. 11 (CStuart Decl. ¶ 8 (BSP 93:8-10).
14
15 64. Pa
Preview
1 MEYLAN DAVITT JAIN AREVIAN & KIM LLP VINCENT J. DAVITT, ESQ. (State Bar No. 130649) 2 ANITA JAIN, ESQ. (State Bar No. 192961) ELECTRONICALLY 3 444 South Flower Street, Suite 1850 F I L E D Los Angeles, California 90071 Superior Court of California, County of San Francisco 4 Telephone: (213) 225-6000 / Fax: (213) 225-6660 Email: vdavitt@mdjalaw.com 11/16/2022 Clerk of the Court 5 Email: ajain@mdjalaw.com BY: SANDRA SCHIRO Deputy Clerk 6 HARRIS L. COHEN, A PROF. CORP. HARRIS L. COHEN, ESQ., State Bar # 119600 7 5305 Andasol Avenue 8 Encino, California 91316 Telephone: (818) 905-5599 / Fax: (818) 905-5660 9 Email: hcohen00@aol.com 10 Attorneys for Defendants and Cross-Complainants Milestone Financial, LLC; Bear Bruin Ventures, Inc.; 11 William R. Stuart; Carolyn Stuart; and Zoe Hamilton 12 13 SUPERIOR COURT OF THE STATE OF CALIFORNIA 14 FOR THE COUNTY OF SAN FRANCISCO 15 Eduardo Paniagua and Elena Asturias, CASE NO. CGC-18-571279 individuals, 16 DEFENDANT CAROLYN STUART’S Plaintiffs, vs. SEPARATE STATEMENT OF 17 UNDISPUTED MATERIAL FACTS IN Milestone Financial, LLC, a California SUPPORT OF MOTION FOR SUMMARY 18 corporation, Bear Bruin Ventures, Inc. a JUDGMENT OR SUMMARY 19 California Corporation, William R. Stuart, an ADJUDICATION OF ALL CAUSES OF individual, Carolyn Stuart, an individual, Zoe ACTION 20 Hamilton, an individual, and DOES 1-100, [Filed concurrently with: Notice of Motion inclusive, 21 and Motion; Appendix of Evidence and Defendants. Request for Judicial Notice] 22 Date: February 1, 2023 23 RELATED CROSS- Time: 9:30 a.m. COMPLAINT 24 Dept.: 302 25 Action filed: November 13, 2018 Trial Date: January 17, 2023 26 27 28 MEYLAN DAVITT 1 JAIN AREVIAN & KIM LLP SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS RE MSA 1 Pursuant to Rule 3.1350 of California Rules of Court, Defendant Carolyn Stuart (“Defendant” 2 or “Carolyn Stuart”) submits the following Separate Statement of Undisputed Material Facts and 3 Supporting Evidence in support of her Motion for Summary Judgment or, in the alternative, Summary 4 Adjudication against Plaintiffs Eduardo Paniagua’s (“Paniagua”) and Elena Asturias’ (“Asturias”) 5 operative First Amended Complaint (“FAC”) on the following issues: 6 SUMMARY JUDGMENT 7 Issue 1. Carolyn Stuart is entitled to summary judgment as to all of Plaintiffs’ causes of action 8 -- (1) Fraud; (2) Negligent Misrepresentation; (3) Violation of Business and Professions (“B&P”) Code 9 §§ 17200 and 17500, and Civil Code § 1750 (hereinafter “Statutory Consumer Claims”); (4) Usury; (5) 10 Rescission; and (6) Declaratory Relief -- because Carolyn Stuart: did not have any contract with either 11 Plaintiff; did not make any representations to either Plaintiff; did not charge either Plaintiff any 12 interest; and did not get paid any interest from either Plaintiff. 13 SUMMARY ADJUDICATION 14 Alternatively, Carolyn Stuart is entitled to summary adjudication as follows. 15 Issue 2. Plaintiffs’ First Cause of Action for Fraud fails because: Carolyn Stuart did not make 16 any representations to either Plaintiff; Plaintiffs could not have relied on any nonexistent 17 representations; and Paniagua released all claims against Carolyn Stuart in two valid and enforceable 18 Settlement Agreements which contained general releases. 19 Issue 3. Plaintiffs’ Second Cause of Action for Negligent Misrepresentation fails because: 20 Carolyn Stuart did not make any representations to either Plaintiff; Plaintiffs could not have relied on 21 any nonexistent representations; and Paniagua released all claims against Carolyn Stuart in two valid 22 and enforceable Settlement Agreements which contained general releases. 23 Issue 4. Plaintiffs’ Third Cause Of Action for Statutory Consumer Claims fails because: 24 Carolyn Stuart did not have any contract with either Plaintiff; Carolyn Stuart did not make any 25 representations to either Plaintiff; Plaintiffs could not have relied on any nonexistent representations; 26 and Paniagua released all claims against Carolyn Stuart in two valid and enforceable Settlement 27 Agreements which contained general releases. 28 MEYLAN DAVITT 2 JAIN AREVIAN & KIM LLP SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS RE MSA 1 Issue 5. Plaintiffs’ Fourth Cause of Action for Usury fails because Carolyn Stuart never had 2 any contract with either Plaintiff and never charged any interest to, or collected any interest from, 3 either Plaintiff. 4 Issue 6. Plaintiffs’ Fifth Cause of Action for Rescission is not a valid cause of action because: 5 rescission is a remedy, not a cause of action; and Carolyn Stuart did not have any contract with either 6 Plaintiff. 7 Issue 7. Plaintiffs’ Sixth Cause Of Action for Declaratory Relief fails because: Carolyn Stuart 8 did not have any contract with either Plaintiff; and Carolyn Stuart did not make any representations to 9 either Plaintiff. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEYLAN DAVITT 3 JAIN AREVIAN & KIM LLP SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS RE MSA 1 ISSUE 1. CAROLYN STUART IS ENTITLED TO SUMMARY JUDGMENT AS TO ALL OF 2 PLAINTIFFS’ CAUSES OF ACTION BECAUSE CAROLYN STUART: DID NOT HAVE ANY 3 CONTRACT WITH EITHER PLAINTIFF; DID NOT MAKE ANY REPRESENTATIONS TO 4 EITHER PLAINTIFF; DID NOT CHARGE EITHER PLAINTIFF ANY INTEREST; AND DID 5 NOT GET PAID ANY INTEREST FROM EITHER PLAINTIFF. 6 The Undisputed Material Facts and Supporting Evidence for Issue1 are comprised of Fact Nos. 7 1-17. 8 Moving Party's Undisputed Material Opposing Party's Response and 9 Facts and Supporting Evidence: Supporting Evidence: 10 1. Eduardo Paniagua (”Paniagua” or “EP”) 11 acquired the real property at 1228 Funston Ave., San Francisco, CA 94122 (“Funston”) 12 by two grant deeds: 1) a grant deed recorded in 2009 wherein Carlota Texidor Del Portillo aka 13 Carlota Asturias and Catherine Echevarria 14 transferred 50% to Paniagua and his wife, Elena Asturias (”Asturias” or “EA”), and they 15 each retained 25%; and 2) a grant deed recorded in 2011 wherein the then-owners all 16 transferred their interests to Paniagua as his sole and separate property. (EP and EA are 17 referred to as “Plaintiffs”). 18 Appendix of Evidence: 1 19 Exs. 1, 2 (2009 and 2011 grant deeds (BSP 5- 20 9)); Ex. 12 (Stuart Decl. ¶¶ 1, 2 (BSP 96:6- 21 18)). 22 Request for Judicial Notice: Nos. 1 and 2; 23 2. Asturias is a California licensed attorney 24 since 1988 with an LLM from Georgetown 25 Law Center. She worked for the California Department of Insurance as an attorney for 16- 26 17 years. 27 1 In the Appendix of Evidence (“AOE”) filed concurrently herewith, all exhibits are assigned numbers. The deposition transcripts are authenticated in the Declaration of Harris Cohen (Ex. 13). “BSP” refers 28 to the bates stamped page numbers (with line numbers for deposition transcripts/declarations) at the bottom, right-hand corner of each page in the AOE MEYLAN DAVITT 4 JAIN AREVIAN & KIM LLP SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS RE MSA 1 Appendix of Evidence: 2 3 Ex. 13 (Cohen Decl. ¶3 (BSP 101:14-15), Ex. 8. (EA Depo (BSP 77:5-20; 78:19-22). 4 3. EP signed a promissory note presented to Milestone for his loan secured by the Property. 5 Appendix of Evidence: 6 7 Ex. 12 (WStuart Decl. ¶ 3 (BSP 96:19-23)); Ex. 3 (Note BSP 11-22). 8 4. Milestone’s deed of trust for the loan to Paniagua was recorded on March 20, 2014. 9 10 Appendix of Evidence: 11 Ex. 12 (WStuart Decl. ¶ 4 (BSP 96:24-28)); Ex. 4 (DOT (BSP 24-34)). 12 5. Carolyn Stuart was an officer of Bear 13 Bruin Ventures, Inc. (“BBV”) and BBV was the managing member Milestone. 14 Appendix of Evidence: 15 Ex. 11 (CStuart Decl. ¶ 1 (BSP 92:6-8)). 16 6. Carolyn Stuart did not have any 17 involvement with the underwriting, the loan decisions, loan considerations or any other 18 aspect of the loan by Milestone to Paniagua secured by the Property. 19 20 Appendix of Evidence: 21 Ex. 11 (CStuart Decl. ¶ 2, (BSP 92:10-14)). 7. Carolyn Stuart did not have any written, 22 oral or other kind of communication with either Paniagua or his wife, Asturias, 23 concerning the Milestone-Paniagua Loan or 24 any other matter. 25 Appendix of Evidence: 26 Ex. 11 (CStuart Decl. ¶ 3, (BSP 92:15-18)); Ex. 13 (Cohen Decl. ¶2, (BSP 101:10-12); ¶3 27 (BSP 101:13-15)); Ex. 7 (EP Depo. (BSP 28 66:21-25, 67:1-23), Ex. 8 (EA Depo (BSP 79:18-25, 80:1-25, 81:1-13)) MEYLAN DAVITT 5 JAIN AREVIAN & KIM LLP SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS RE MSA 1 8. After Paniagua was unable to pay off the original loan from Milestone to Paniagua by 2 the maturity date, Paniagua entered into a 3 Settlement Agreement, Indemnity and First Amendment to Promissory Note Secured by 4 Deed of Trust (“First Settlement Agreement”) in January 2016 with Milestone. 5 Appendix of Evidence: 6 7 Ex. 12 (WStuart Decl ¶ 5 (BSP 97:1-9) ; Ex. 5 (First Settlement Agreement (BSP 36-45)). 8 9. Carolyn Stuart did not have any involvement with the preparation, negotiation 9 or transmission of the First Settlement Agreement. 10 11 Appendix of Evidence: 12 Ex. 11 (CStuart Decl. ¶ 4 (BSP 92:19-23)). 10. After Paniagua was unable to pay off the 13 First Settlement Agreement by the new 14 maturity date, he entered into a Settlement Agreement, Indemnity and Second 15 Amendment to Promissory Note Secured by Deed of Trust (“Second Settlement 16 Agreement”) in January 2017 with Milestone. 17 Appendix of Evidence: 18 Ex. 12 (WStuart Decl ¶ 6 (BSP 97:10-17), Ex. 19 6 (Second Settlement Agreement (BSP 47- 58)). 20 11. Carolyn Stuart did not have any 21 involvement with the preparation, negotiation or transmission of the Second Settlement 22 Agreement between Paniagua and Milestone. 23 Appendix of Evidence: 24 , Ex. 11 (CStuart Decl. ¶ 5 (BSP 92:24-28)). 25 12. Between the date Paniagua executed the Second Settlement Agreement and the date 26 Paniagua paid off the loan from Milestone in April 2018, Carolyn Stuart did not have any 27 written, oral or other kind of communication 28 with either Plaintiff. MEYLAN DAVITT 6 JAIN AREVIAN & KIM LLP SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS RE MSA 1 Appendix of Evidence: 2 Ex. 11 (CStuart Decl. ¶3, 6 (BSP 92:15-18, 3 93:1-3)); Ex. 13 (Cohen Decl. ¶2 (BSP 101:10- 12), ¶3 (BSP 101:13-15)); Ex. 7 (EP Depo 4 (BSP 66:21-25, 67:1-23)); Ex. 8 (EA Depo (BSP 79:18-25, 80:1-25, 81:1-13); Ex. 12 5 (WStuart Decl. ¶8 (BSP 97:21-26), Ex. 9 (Reconveyance (BSP 86-87)) 6 . 7 13. Carolyn Stuart did not create or distribute any flyers, marketing materials or 8 advertisements for Milestone and never represented to anyone that Milestone made 9 loans for consumer purposes, such as for personal, family or household purposes. 10 11 Appendix of Evidence: 12 Ex. 11 (CStuart Decl. ¶ 7, 9 (BSP 93:5-7, 11- 14)). 13 14 14. Carolyn Stuart has never had any input into the design, words or content of 15 Milestone’s website. 16 Appendix of Evidence: 17 Ex. 11 (CStuart Decl. ¶ 8 (BSP 93:8-10). 18 15. Paniagua paid off the Milestone loan on 19 April 3, 2018. 20 Appendix of Evidence: 21 Ex. 12 (WStuart Decl. ¶ 8 (BSP 97:20-26)) 22 . 16. Carolyn Stuart did not have any contract 23 with either Plaintiff including, but not limited 24 to, any loans. 25 Appendix of Evidence: 26 Ex. 11 (CStuart Decl. ¶ 10 BSP 93:15-17)) . 27 28 MEYLAN DAVITT 7 JAIN AREVIAN & KIM LLP SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS RE MSA 1 17. Carolyn Stuart has never charged either Plaintiff any interest on any loan, and neither 2 Plaintiff ever paid Carolyn Stuart interest. 3 Appendix of Evidence: 4 Ex. 11 (CStuart Decl. ¶ 11 (BSP 93:18-19)) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEYLAN DAVITT 8 JAIN AREVIAN & KIM LLP SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS RE MSA 1 ISSUE 2: PLAINTIFFS’ FIRST CAUSE OF ACTION FOR FRAUD FAILS BECAUSE: 2 CAROLYN STUART DID NOT MAKE ANY REPRESENTATIONS TO EITHER 3 PLAINTIFF; PLAINTIFFS COULD NOT HAVE RELIED ON ANY NONEXISTENT 4 REPRESENTATIONS; AND PANIAGUA RELEASED ALL CLAIMS AGAINST CAROLYN 5 STUART IN TWO VALID AND ENFORCEABLE SETTLEMENT AGREEMENTS WHICH 6 CONTAINED GENERAL RELEASES. 7 The Undisputed Material Facts and Supporting Evidence for Issue 2 are comprised of Fact Nos. 8 18-29, which Facts and Supporting Evidence are the same as Fact Nos. 6-17 above. 9 Moving Party's Undisputed Material Opposing Party's Response and 10 Facts and Supporting Evidence: Supporting Evidence: 11 18. Carolyn Stuart did not have any 12 involvement with the underwriting, the loan decisions, loan considerations or any other 13 aspect of the loan by Milestone to Paniagua secured by the Property. 14 Appendix of Evidence: 15 16 Ex. 11 (CStuart Decl. ¶ 2, (BSP 92:10-14)) 17 19. Carolyn Stuart did not have any written, oral or other kind of communication with 18 either Paniagua or his wife, Asturias, concerning the Milestone-Paniagua Loan or 19 any other matter. 20 Appendix of Evidence: 21 Ex. 11 (CStuart Decl. ¶ 3, (BSP 92:15-18)); 22 Ex. 13 (Cohen Decl. ¶2, (BSP 101:10-12); ¶3 (BSP 101:13-15)); Ex. 7 (EP Depo. (BSP 23 66:21-25, 67:1-23), Ex. 8 (EA Depo (BSP 24 79:18-25, 80:1-25, 81:1-13)) 25 20. After Paniagua was unable to pay off the original loan from Milestone to Paniagua by 26 the maturity date, Paniagua entered into a 27 Settlement Agreement, Indemnity and First Amendment to Promissory Note Secured by 28 Deed of Trust (“First Settlement Agreement”) in January 2016 with Milestone. MEYLAN DAVITT 9 JAIN AREVIAN & KIM LLP SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS RE MSA 1 Appendix of Evidence: 2 Ex. 12 (WStuart Decl ¶ 5 (BSP 97:1-9) ; Ex. 5 3 (First Settlement Agreement (BSP 36-45)). 4 21. Carolyn Stuart did not have any 5 involvement with the preparation, negotiation or transmission of the First Settlement 6 Agreement. 7 Appendix of Evidence: 8 Ex. 11 (CStuart Decl. ¶ 4 (BSP 92:19-23)). 9 22. After Paniagua was unable to pay off the 10 First Settlement Agreement by the new 11 maturity date, he entered into a Settlement Agreement, Indemnity and Second 12 Amendment to Promissory Note Secured by Deed of Trust (“Second Settlement 13 Agreement”) in January 2017 with Milestone. 14 Appendix of Evidence: 15 Ex. 12 (WStuart Decl ¶ 6 (BSP 97:10-17), Ex. 16 6 (Second Settlement Agreement (BSP 47-58)) . 17 23. Carolyn Stuart did not have any involvement with the preparation, negotiation 18 or transmission of the Second Settlement 19 Agreement between Paniagua and Milestone. 20 Appendix of Evidence: 21 Ex. 11 (CStuart Decl. ¶ 5 (BSP 92:24-28)). 24. Between the date Paniagua executed the 22 Second Settlement Agreement and the date 23 Paniagua paid off the loan from Milestone in April 2018, Carolyn Stuart did not have any 24 written, oral or other kind of communication with either Plaintiff. 25 26 Appendix of Evidence: 27 Ex. 11 (CStuart Decl. ¶¶3, 6 (BSP 92:15-18, 93:1-3)); Ex. 13 (Cohen Decl. ¶2 (BSP 101:10- 28 12), ¶3 (BSP 101:13-15)); Ex. 7 (EP Depo MEYLAN DAVITT 10 JAIN AREVIAN & KIM LLP SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS RE MSA 1 (BSP 66:21-25, 67:1-23)); Ex. 8 (EA Depo (BSP 79:18-25, 80:1-25, 81:1-13); Ex. 12 2 (WStuart Decl. ¶8 (BSP 97:21-26), Ex. 9 (Reconveyance (BSP 86-87)). 3 4 25. Carolyn Stuart did not create or distribute any flyers, marketing materials or 5 advertisements for Milestone and never represented to anyone that Milestone made 6 loans for consumer purposes, such as for personal, family or household purposes. 7 8 Appendix of Evidence: 9 Ex. 11 (CStuart Decl. ¶ 7, 9 (BSP 93:5-7, 11- 14)). 10 11 26. Carolyn Stuart has never had any input into the design, words or content of 12 Milestone’s website. 13 Appendix of Evidence: 14 Ex. 11 (CStuart Decl. ¶ 8 (BSP 93:8-10). 15 27. Paniagua paid off the Milestone loan on 16 April 3, 2018. 17 Appendix of Evidence: 18 Ex. 12 (WStuart Decl. ¶ 8 (BSP 97:20-26)). 19 28. Carolyn Stuart did not have any contract 20 with either Plaintiff including, but not limited to, any loans. 21 22 Appendix of Evidence: 23 Ex. 11 (CStuart Decl. ¶ 10 (BSP 93:15-17)) 24 29. Carolyn Stuart has never charged either Plaintiff any interest on any loan, and neither 25 Plaintiff ever paid Carolyn Stuart interest. 26 Appendix of Evidence: 27 Ex. 11 (CStuart Decl. ¶ 11 (BSP 93:18-19)). 28 MEYLAN DAVITT 11 JAIN AREVIAN & KIM LLP SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS RE MSA 1 ISSUE 3: PLAINTIFFS’ SECOND CAUSE OF ACTION FOR NEGLIGENT 2 MISREPRESENTATION FAILS BECAUSE: CAROLYN STUART DID NOT MAKE ANY 3 REPRESENTATIONS TO EITHER PLAINTIFF; PLAINTIFFS COULD NOT HAVE RELIED 4 ON ANY NONEXISTENT REPRESENTATIONS; AND PANIAGUA RELEASED ALL 5 CLAIMS AGAINST CAROLYN STUART IN TWO VALID AND ENFORCEABLE 6 SETTLEMENT AGREEMENTS WHICH CONTAINED GENERAL RELEASES. 7 The Undisputed Material Facts and Supporting Evidence for Issue 3 are comprised of Fact Nos. 8 30-41, which Facts and Supporting Evidence are the same as Fact Nos. 6-17 above. 9 Moving Party's Undisputed Material Opposing Party's Response and 10 Facts and Supporting Evidence: Supporting Evidence: 11 30. Carolyn Stuart did not have any 12 involvement with the underwriting, the loan decisions, loan considerations or any other 13 aspect of the loan by Milestone to Paniagua secured by the Property. 14 Appendix of Evidence: 15 16 Ex. 11 (CStuart Decl. ¶ 2, (BSP 92:10-14)) 17 31. Carolyn Stuart did not have any written, oral or other kind of communication with 18 either Paniagua or his wife, Asturias, 19 concerning the Milestone-Paniagua Loan or any other matter. 20 Appendix of Evidence: 21 Ex. 11 (CStuart Decl. ¶ 3, (BSP 92:15-18)); 22 Ex. 13 (Cohen Decl. ¶2, (BSP 101:10-12); ¶3 23 (BSP 101:13-15)); Ex. 7 (EP Depo. (BSP 66:21-25, 67:1-23), Ex. 8 (EA Depo (BSP 24 79:18-25, 80:1-25, 81:1-13)) 25 32. After Paniagua was unable to pay off the original loan from Milestone to Paniagua by 26 the maturity date, Paniagua entered into a 27 Settlement Agreement, Indemnity and First Amendment to Promissory Note Secured by 28 Deed of Trust (“First Settlement Agreement”) MEYLAN DAVITT 12 JAIN AREVIAN & KIM LLP SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS RE MSA 1 in January 2016 with Milestone. 2 Appendix of Evidence: 3 Ex. 12 (WStuart Decl ¶ 5 (BSP 97:1-9) ; Ex. 5 4 (First Settlement Agreement (BSP 36-45)). 5 33. Carolyn Stuart did not have any involvement with the preparation, negotiation 6 or transmission of the First Settlement Agreement. 7 8 Appendix of Evidence: 9 Ex. 11 (CStuart Decl. ¶ 4 (BSP 92:19-23)). 10 34. After Paniagua was unable to pay off the 11 First Settlement Agreement by the new maturity date, he entered into a Settlement 12 Agreement, Indemnity and Second Amendment to Promissory Note Secured by 13 Deed of Trust (“Second Settlement Agreement”) in January 2017 with Milestone. 14 15 Appendix of Evidence: 16 Ex. 12 (WStuart Decl ¶ 6 (BSP 97:10-17), Ex. 6 (Second Settlement Agreement (BSP 47- 17 58)). 18 35. Carolyn Stuart did not have any 19 involvement with the preparation, negotiation or transmission of the Second Settlement 20 Agreement between Paniagua and Milestone. 21 Appendix of Evidence: 22 Ex. 11 (CStuart Decl. ¶ 5 (BSP 92:24-28)). 23 36. Between the date Paniagua executed the 24 Second Settlement Agreement and the date Paniagua paid off the loan from Milestone in 25 April 2018, Carolyn Stuart did not have any 26 written, oral or other kind of communication with either Plaintiff. 27 Appendix of Evidence: 28 MEYLAN DAVITT 13 JAIN AREVIAN & KIM LLP SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS RE MSA 1 Ex. 11 (CStuart Decl. ¶¶3, 6 (BSP 92:15-18, 93:1-3)); Ex. 13 (Cohen Decl. ¶2 (BSP 101:10- 2 12), ¶3 (BSP 101:13-15)); Ex. 7 (EP Depo (BSP 66:21-25, 67:1-23)); Ex. 8 (EA Depo 3 (BSP 79:18-25, 80:1-25, 81:1-13); Ex. 12 4 (WStuart Decl. ¶8 (BSP 97:21-26), Ex. 9 (Reconveyance (BSP 86-87)). 5 37. Carolyn Stuart did not create or distribute 6 any flyers, marketing materials or advertisements for Milestone and never 7 represented to anyone that Milestone made 8 loans for consumer purposes, such as for personal, family or household purposes. 9 Appendix of Evidence: 10 11 Ex. 11 (CStuart Decl. ¶ 7, 9 (BSP 93:5-7, 11- 14)). 12 38. Carolyn Stuart has never had any input 13 into the design, words or content of Milestone’s website. 14 15 Appendix of Evidence: 16 Ex. 11 (CStuart Decl. ¶ 8 (BSP 93:8-10). 17 39. Paniagua paid off the Milestone loan on April 3, 2018. 18 19 Appendix of Evidence: 20 Ex. 12 (WStuart Decl. ¶ 8 (BSP 97:20-26)). 21 40. Carolyn Stuart did not have any contract with either Plaintiff including, but not limited 22 to, any loans. 23 Appendix of Evidence: 24 Ex. 11 (CStuart Decl. ¶ 10 BSP 93:15-17)) 25 26 27 28 MEYLAN DAVITT 14 JAIN AREVIAN & KIM LLP SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS RE MSA 1 41. Carolyn Stuart has never charged either Plaintiff any interest on any loan, and neither 2 Plaintiff ever paid Carolyn Stuart interest. 3 Appendix of Evidence: 4 Ex. 11 (CStuart Decl. ¶ 11 (BSP 93:18-19)). 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEYLAN DAVITT 15 JAIN AREVIAN & KIM LLP SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS RE MSA 1 ISSUE 4: PLAINTIFFS’ THIRD CAUSE OF ACTION FOR STATUTORY CONSUMER 2 CLAIMS FAILS BECAUSE: CAROLYN STUART DID NOT HAVE ANY CONTRACT WITH 3 EITHER PLAINTIFF; CAROLYN STUART DID NOT MAKE ANY REPRESENTATIONS 4 TO EITHER PLAINTIFF; PLAINTIFFS COULD NOT HAVE RELIED ON ANY 5 NONEXISTENT REPRESENTATIONS; AND PANIAGUA RELEASED ALL CLAIMS 6 AGAINST CAROLYN STUART IN TWO VALID AND ENFORCEABLE SETTLEMENT 7 AGREEMENTS. 8 The Undisputed Material Facts and Supporting Evidence for Issue 4 are comprised of Fact Nos. 9 42-54. Fact Nos. 42-53 are the same as Fact Nos. 6-17 above. Fact No. 54 is an additional fact. 10 Moving Party's Undisputed Material Opposing Party's Response and 11 Facts and Supporting Evidence: Supporting Evidence: 12 42. Carolyn Stuart did not have any 13 involvement with the underwriting, the loan decisions, loan considerations or any other 14 aspect of the loan by Milestone to Paniagua secured by the Property. 15 Appendix of Evidence: 16 17 Ex. 11 (CStuart Decl. ¶ 2, (BSP 92:10-14)) 18 43. Carolyn Stuart did not have any written, oral or other kind of communication with 19 either Paniagua or his wife, Asturias, 20 concerning the Milestone-Paniagua Loan or any other matter. 21 Appendix of Evidence: 22 Ex. 11 (CStuart Decl. ¶ 3, (BSP 92:15-18)); 23 Ex. 13 (Cohen Decl. ¶2, (BSP 101:10-12); ¶3 24 (BSP 101:13-15)); Ex. 7 (EP Depo. (BSP 66:21-25, 67:1-23), Ex. 8 (EA Depo (BSP 25 79:18-25, 80:1-25, 81:1-13)) 26 44. After Paniagua was unable to pay off the original loan from Milestone to Paniagua by 27 the maturity date, Paniagua entered into a 28 Settlement Agreement, Indemnity and First Amendment to Promissory Note Secured by MEYLAN DAVITT 16 JAIN AREVIAN & KIM LLP SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS RE MSA 1 Deed of Trust (“First Settlement Agreement”) in January 2016 with Milestone. 2 Appendix of Evidence: 3 4 Ex. 12 (WStuart Decl ¶ 5 (BSP 97:1-9) ; Ex. 5 (First Settlement Agreement (BSP 36-45)). 5 45. Carolyn Stuart did not have any 6 involvement with the preparation, negotiation or transmission of the First Settlement 7 Agreement. 8 Appendix of Evidence: 9 Ex. 11 (CStuart Decl. ¶ 4 (BSP 92:19-23)). 10 11 46. After Paniagua was unable to pay off the First Settlement Agreement by the new 12 maturity date, he entered into a Settlement Agreement, Indemnity and Second 13 Amendment to Promissory Note Secured by Deed of Trust (“Second Settlement 14 Agreement”) in January 2017 with Milestone. 15 Appendix of Evidence: 16 Ex. 12 (WStuart Decl ¶ 6 (BSP 97:10-17), Ex. 17 6 (Second Settlement Agreement (BSP 47- 58)). 18 19 47. Carolyn Stuart did not have any involvement with the preparation, negotiation 20 or transmission of the Second Settlement Agreement between Paniagua and Milestone. 21 Appendix of Evidence: 22 23 Ex. 11 (CStuart Decl. ¶ 5 (BSP 92:24-28)). 24 48. Between the date Paniagua executed the Second Settlement Agreement and the date 25 Paniagua paid off the loan from Milestone in 26 April 2018, Carolyn Stuart did not have any written, oral or other kind of communication 27 with either Plaintiff. 28 Appendix of Evidence: MEYLAN DAVITT 17 JAIN AREVIAN & KIM LLP SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS RE MSA 1 Ex. 11 (CStuart Decl. ¶¶3, 6 (BSP 92:15-18, 2 93:1-3)); Ex. 13 (Cohen Decl. ¶2 (BSP 101:10- 12), ¶3 (BSP 101:13-15)); Ex. 7 (EP Depo 3 (BSP 66:21-25, 67:1-23)); Ex. 8 (EA Depo 4 (BSP 79:18-25, 80:1-25, 81:1-13); Ex. 12 (WStuart Decl. ¶8 (BSP 97:21-26), Ex. 9 5 (Reconveyance (BSP 86-87)). 6 49. Carolyn Stuart did not create or distribute any flyers, marketing materials or 7 advertisements for Milestone and never 8 represented to anyone that Milestone made loans for consumer purposes, such as for 9 personal, family or household purposes. 10 Appendix of Evidence: 11 Ex. 11 (CStuart Decl. ¶ 7, 9 (BSP 93:5-7, 11- 12 14)). 13 50. Carolyn Stuart has never had any input 14 into the design, words or content of 15 Milestone’s website. 16 Appendix of Evidence: 17 Ex. 11 (CStuart Decl. ¶ 8 (BSP 93:8-10). 18 51. Paniagua paid off the Milestone loan on 19 April 3, 2018. 20 Appendix of Evidence: 21 Ex. 12 (WStuart Decl. ¶ 8 (BSP 97:20-26)). 22 52. Carolyn Stuart did not have any contract 23 with either Plaintiff including, but not limited to, any loans. 24 Appendix of Evidence: 25 26 Ex. 11 (CStuart Decl. ¶ 10 BSP 93:15-17)) 27 28 MEYLAN DAVITT 18 JAIN AREVIAN & KIM LLP SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS RE MSA 1 53. Carolyn Stuart has never charged either Plaintiff any interest on any loan, and neither 2 Plaintiff ever paid Carolyn Stuart interest. 3 Appendix of Evidence: 4 Ex. 11 (CStuart Decl. ¶ 11 (BSP 93:18-19)). 5 54. Milestone qualified for and received a 6 California Finance Lender’s License issued on February 23, 2018, by the California 7 Department of Business Oversight (now the 8 California Department of Financial Protection & Innovation). Milestone’s loans since that 9 time have been made pursuant to that license. 10 Appendix of Evidence: 11 Ex. 11 (WStuart Decl. ¶ 10 (BSP 98:1-6); Ex. 12 10 (License (BSP 89)). 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEYLAN DAVITT 19 JAIN AREVIAN & KIM LLP SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS RE MSA 1 ISSUE 5: PLAINTIFFS’ FOURTH CAUSE OF ACTION FOR USURY FAILS BECAUSE 2 CAROLYN STUART NEVER HAD ANY CONTRACT WITH EITHER PLAINTIFF AND 3 NEVER CHARGED ANY INTEREST TO, OR COLLECTED ANY INTEREST FROM, 4 EITHER PLAINTIFF. 5 The Undisputed Material Facts and Supporting Evidence for Issue 5 are comprised of Fact Nos. 6 55-66, which Facts and Supporting Evidence are the same as Fact Nos. 6-17 above. 7 Moving Party's Undisputed Material Opposing Party's Response and 8 Facts and Supporting Evidence: Supporting Evidence: 9 55. Carolyn Stuart did not have any 10 involvement with the underwriting, the loan decisions, loan considerations or any other 11 aspect of the loan by Milestone to Paniagua secured by the Property. 12 Appendix of Evidence: 13 14 Ex. 11 (CStuart Decl. ¶ 2, (BSP 92:10-14)) 15 56. Carolyn Stuart did not have any written, oral or other kind of communication with 16 either Paniagua or his wife, Asturias, 17 concerning the Milestone-Paniagua Loan or any other matter. 18 Appendix of Evidence: 19 Ex. 11 (CStuart Decl. ¶ 3, (BSP 92:15-18)); 20 Ex. 13 (Cohen Decl. ¶2, (BSP 101:10-12); ¶3 21 (BSP 101:13-15)); Ex. 7 (EP Depo. (BSP 66:21-25, 67:1-23), Ex. 8 (EA Depo (BSP 22 79:18-25, 80:1-25, 81:1-13)) 23 57. After Paniagua was unable to pay off the original loan from Milestone to Paniagua by 24 the maturity date, Paniagua entered into a 25 Settlement Agreement, Indemnity and First Amendment to Promissory Note Secured by 26 Deed of Trust (“First Settlement Agreement”) in January 2016 with Milestone. 27 Appendix of Evidence: 28 MEYLAN DAVITT 20 JAIN AREVIAN & KIM LLP SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS RE MSA 1 Ex. 12 (WStuart Decl ¶ 5 (BSP 97:1-9) ; Ex. 5 (First Settlement Agreement (BSP 36-45)). 2 58. Carolyn Stuart did not have any 3 involvement with the preparation, negotiation 4 or transmission of the First Settlement Agreement. 5 Appendix of Evidence: 6 Ex. 11 (CStuart Decl. ¶ 4 (BSP 92:19-23)). 7 8 59. After Paniagua was unable to pay off the First Settlement Agreement by the new 9 maturity date, he entered into a Settlement Agreement, Indemnity and Second 10 Amendment to Promissory Note Secured by 11 Deed of Trust (“Second Settlement Agreement”) in January 2017 with Milestone. 12 Appendix of Evidence: 13 Ex. 12 (WStuart Decl ¶ 6 (BSP 97:10-17), Ex. 14 6 (Second Settlement Agreement (BSP 47- 15 58)). 16 60. Carolyn Stuart did not have any involvement with the preparation, negotiation 17 or transmission of the Second Settlement Agreement between Paniagua and Milestone. 18 19 Appendix of Evidence: 20 Ex. 11 (CStuart Decl. ¶ 5 (BSP 92:24-28)). 21 61. Between the date Paniagua executed the Second Settlement Agreement and the date 22 Paniagua paid off the loan from Milestone in 23 April 2018, Carolyn Stuart did not have any written, oral or other kind of communication 24 with either Plaintiff. 25 Appendix of Evidence: 26 Ex. 11 (CStuart Decl. ¶¶3, 6 (BSP 92:15-18, 27 93:1-3)); Ex. 13 (Cohen Decl. ¶2 (BSP 101:10- 12), ¶3 (BSP 101:13-15)); Ex. 7 (EP Depo 28 (BSP 66:21-25, 67:1-23)); Ex. 8 (EA Depo MEYLAN DAVITT 21 JAIN AREVIAN & KIM LLP SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS RE MSA 1 (BSP 79:18-25, 80:1-25, 81:1-13); Ex. 12 (WStuart Decl. ¶8 (BSP 97:21-26), Ex. 9 2 (Reconveyance (BSP 86-87)). 3 62. Carolyn Stuart did not create or distribute 4 any flyers, marketing materials or advertisements for Milestone and never 5 represented to anyone that Milestone made loans for consumer purposes, such as for 6 personal, family or household purposes. 7 Appendix of Evidence: 8 Ex. 11 (CStuart Decl. ¶ 7, 9 (BSP 93:5-7, 11- 9 14)). 10 63. Carolyn Stuart has never had any input 11 into the design, words or content of Milestone’s website. 12 Appendix of Evidence: 13 Ex. 11 (CStuart Decl. ¶ 8 (BSP 93:8-10). 14 15 64. Pa