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San Franghzeo County Superior Court
FEB @ 1 2024
EQ
£) AT
By: VK
cv
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
EDUARDO PANIAGUA, et al.,
Case No. CGC 18-571279
Plaintiff,
vs. SUPPLEMENT NO. 1 TO THE
STATEMENT OF DECISION
10 MILESTONE FINANCIAL LLC., et al.
ll Defendants.
12
The statement of decision filed January 3, 2024 directed the parties to confer on the
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amount of usury interest payments. The parties were unable to agree and briefed the issue. At the
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hearing of January 30, plaintiff changed his reference to Ex. 40 [which does not relate to these
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16 issues] to a reference to Ex. 140, and accordingly I allowed defendant to file a terse response to
17 that use of Ex. 140, which was delivered to me January 31.
18 Here I determine the amount of interest paid to Milestone which must be paid back to
19 plaintiff. (In a second supplement to the statement of decision, I will address defendants’ and
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cross-complainants’ request for clarification, dated January 17, and as to which plaintiff's written
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response is due February 9, 2024.)
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Plaintiff claims four sums as usurious interest:
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24 1. Under the first settlement agreement (or ‘extension,’ see statement of decision at 11),
25 $45,315.65;
26 2. Under the second settlement agreement:
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a. $50,676.66;
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b. $60,607.38;
c. $55,612.88.
Discussion
The 45,315.65 sum is said to be shown by Ex. 40, i.e. Ex. 140. It purports to cover the
time period 2/29/16 to 1/17/17.! Plaintiff's Reply dated January 24, 2024 at 1.
Ex. 140 is not reliable. First, it’s not “reconciled,” in the sense that it was not checked
against bank statements. See testimony of Stuart 11/6/23 Tr. at 63-64. Next, Paniagua has the
burden to show damages, i-e., to show what interest he paid, but he did not produce any
10
documents such as bank checks and bank statements to support the figures in Ex. 140. This is so
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despite the fact that it was his company, Paniagua Construction (10/14/23 Tr. at 16) which made
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the payments (id. at 42-43), and I would expect at least some business records to be available.
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14 Although a different time period is involved, I also note that Ex. 140 conflicts with
15 Paniagua’s declaration { 27 (assertion of 12 payments), compare Ex. 140 (8 payments during
16 same period and with different amounts assertedly paid). Ex. 140 shows payments made during
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a period which Paniagua made no payments (7/25/17-4/3/18). Although these observations refer
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to a time period other than that covered by the first settlement agreement, they also show Ex. 140
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is unreliable.
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Some payments may have been made under the first settlement agreement, but there isn’t
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22 any admissible, reliable evidence of what that was.
23 The $50,676.66 sum is inconsistent with Ex. 140. In his January 24 Reply, plaintiff
24 claims 12 interest payments from 3/5/17 to 1/9/18. Ex. 140 suggests 8 payments from 3/6/17 to
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10/30/17, totaling $44,774.17, not $50,676. The $50,676 sum also seems inconsistent with Ex.
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27 1 Ex. 140 actually seems to go back to 2014, but it also purports to show payments after January 26, 2016 which is
the date of the first settlement agreement.
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119, which shows total interest paid of $60,607.38 minus $7.69, i.e., $60,599.69. I say “seems”
because Ex. 119 covers the period 7/25/17 to 4/3/18, and so doesn’t account for payments (if
any) made before July 25, 2017 although payments were due from March 2017. If there were
interest payments made before July 2017, then the total interest paid would be markedly more
than $60,607—and not less (i.e., either $50,676 or $44,774).
The sum claimed here ($50,676) by and large covers the same time period as the sum
discussed next.
In short, there are numerous inconsistencies which plaintiff has not explained, which
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show that awarding this sum would be speculation and likely duplication of sums awarded next.
il
The $60,607.38 sum: This is based on Ex. 119, and the parties do not substantially
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disagree (Milestone says the actual number is $7.06 less, as reflected on Ex 199 [“unpaid
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14 interest”], and plaintiff does not disagree).
15 The $55,612.88 sum: As plaintiff's counsel acknowledged at the January 30 hearing, this
16 sum is not interest but reflects other charges.
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Conclusion
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Usury damages are $60,599.69.
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22 Dated: February 1, 2024 A-——=
\ Curtis E.A. Karnow
23 Judge Of The Superior Court
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Superior Court of California
4 County of San Francisco
EDUARDO PANIAGUA, et al.,
Case No. CGC-18-571279
Plaintiff,
CERTIFICATE OF MAILING
(CCP 1013a (4))
MILESTONE FINANCIAL LLC., et al.,
Defendants.
\
I, Johnny Sengmany, a Deputy Clerk of the Superior Court of the County of San
Francisco, certify that I am not a party to the within action.
On February 1, 2024, I served the attached SUPPLEMENT NO. 1 TO THE
STATEMENT OF DECISION placing a copy thereof in a sealed envelope, via certified mail to
address as follows:
Sarah Shapero; and Vincent J. Davitt; and
Stephanie Silverman Warden Anita Jain
SHAPERO LAW FIRM, PC MEYLAN DAVITT JAIN AREVIAN & KIM
100 Pine St., Ste. 530 444 South Flower Street, Suite 1850
San Francisco, CA 94111 Los Angeles, CA 90071
Harris L. Cohen
HARRIS L. COHEN, A PROF. CORP
5305 Andasol Avenue
Encino, CA 91316
\
And I then placed the sealed envelope(s) in the outgoing mail at 400 McAllister Street, San Francisco,
tr
CA 94102 on the date indicated above for collection, attachment of required prepaid postage, and
mailing
Dated:
\\ BRANDO}X E. EY, Gferk
v
johnny Sengmany
Deputy Clerk
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San Franghzeo County Superior Court FEB @ 1 2024 EQ £) AT By: VK cv SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO EDUARDO PANIAGUA, et al., Case No. CGC 18-571279 Plaintiff, vs. SUPPLEMENT NO. 1 TO THE STATEMENT OF DECISION 10 MILESTONE FINANCIAL LLC., et al. ll Defendants. 12 The statement of decision filed January 3, 2024 directed the parties to confer on the 13 amount of usury interest payments. The parties were unable to agree and briefed the issue. At the 14 hearing of January 30, plaintiff changed his reference to Ex. 40 [which does not relate to these 15 16 issues] to a reference to Ex. 140, and accordingly I allowed defendant to file a terse response to 17 that use of Ex. 140, which was delivered to me January 31. 18 Here I determine the amount of interest paid to Milestone which must be paid back to 19 plaintiff. (In a second supplement to the statement of decision, I will address defendants’ and 20 cross-complainants’ request for clarification, dated January 17, and as to which plaintiff's written 21 response is due February 9, 2024.) 22 Plaintiff claims four sums as usurious interest: 23 24 1. Under the first settlement agreement (or ‘extension,’ see statement of decision at 11), 25 $45,315.65; 26 2. Under the second settlement agreement: 27 a. $50,676.66; -1- b. $60,607.38; c. $55,612.88. Discussion The 45,315.65 sum is said to be shown by Ex. 40, i.e. Ex. 140. It purports to cover the time period 2/29/16 to 1/17/17.! Plaintiff's Reply dated January 24, 2024 at 1. Ex. 140 is not reliable. First, it’s not “reconciled,” in the sense that it was not checked against bank statements. See testimony of Stuart 11/6/23 Tr. at 63-64. Next, Paniagua has the burden to show damages, i-e., to show what interest he paid, but he did not produce any 10 documents such as bank checks and bank statements to support the figures in Ex. 140. This is so 11 despite the fact that it was his company, Paniagua Construction (10/14/23 Tr. at 16) which made 12 the payments (id. at 42-43), and I would expect at least some business records to be available. 13 14 Although a different time period is involved, I also note that Ex. 140 conflicts with 15 Paniagua’s declaration { 27 (assertion of 12 payments), compare Ex. 140 (8 payments during 16 same period and with different amounts assertedly paid). Ex. 140 shows payments made during 17 a period which Paniagua made no payments (7/25/17-4/3/18). Although these observations refer 18 to a time period other than that covered by the first settlement agreement, they also show Ex. 140 19 is unreliable. 20 Some payments may have been made under the first settlement agreement, but there isn’t 21 22 any admissible, reliable evidence of what that was. 23 The $50,676.66 sum is inconsistent with Ex. 140. In his January 24 Reply, plaintiff 24 claims 12 interest payments from 3/5/17 to 1/9/18. Ex. 140 suggests 8 payments from 3/6/17 to 25 10/30/17, totaling $44,774.17, not $50,676. The $50,676 sum also seems inconsistent with Ex. 26 27 1 Ex. 140 actually seems to go back to 2014, but it also purports to show payments after January 26, 2016 which is the date of the first settlement agreement. -2- 119, which shows total interest paid of $60,607.38 minus $7.69, i.e., $60,599.69. I say “seems” because Ex. 119 covers the period 7/25/17 to 4/3/18, and so doesn’t account for payments (if any) made before July 25, 2017 although payments were due from March 2017. If there were interest payments made before July 2017, then the total interest paid would be markedly more than $60,607—and not less (i.e., either $50,676 or $44,774). The sum claimed here ($50,676) by and large covers the same time period as the sum discussed next. In short, there are numerous inconsistencies which plaintiff has not explained, which 10 show that awarding this sum would be speculation and likely duplication of sums awarded next. il The $60,607.38 sum: This is based on Ex. 119, and the parties do not substantially 12 disagree (Milestone says the actual number is $7.06 less, as reflected on Ex 199 [“unpaid 13 14 interest”], and plaintiff does not disagree). 15 The $55,612.88 sum: As plaintiff's counsel acknowledged at the January 30 hearing, this 16 sum is not interest but reflects other charges. 17 18 Conclusion 19 Usury damages are $60,599.69. 20 21 22 Dated: February 1, 2024 A-——= \ Curtis E.A. Karnow 23 Judge Of The Superior Court 24 25 26 27 -3- Superior Court of California 4 County of San Francisco EDUARDO PANIAGUA, et al., Case No. CGC-18-571279 Plaintiff, CERTIFICATE OF MAILING (CCP 1013a (4)) MILESTONE FINANCIAL LLC., et al., Defendants. \ I, Johnny Sengmany, a Deputy Clerk of the Superior Court of the County of San Francisco, certify that I am not a party to the within action. On February 1, 2024, I served the attached SUPPLEMENT NO. 1 TO THE STATEMENT OF DECISION placing a copy thereof in a sealed envelope, via certified mail to address as follows: Sarah Shapero; and Vincent J. Davitt; and Stephanie Silverman Warden Anita Jain SHAPERO LAW FIRM, PC MEYLAN DAVITT JAIN AREVIAN & KIM 100 Pine St., Ste. 530 444 South Flower Street, Suite 1850 San Francisco, CA 94111 Los Angeles, CA 90071 Harris L. Cohen HARRIS L. COHEN, A PROF. CORP 5305 Andasol Avenue Encino, CA 91316 \ And I then placed the sealed envelope(s) in the outgoing mail at 400 McAllister Street, San Francisco, tr CA 94102 on the date indicated above for collection, attachment of required prepaid postage, and mailing Dated: \\ BRANDO}X E. EY, Gferk v johnny Sengmany Deputy Clerk