Motion - Other; Case Management Conference
discount on the settlement amount owed.
Contrary to Defendants’ argument, the Court finds that the disputed fifth payment does not operate as an unenforceable penalty.
The Settlement Agreement plainly states in Section 3.5 that “Sierra shall pay RWC Two Hundred Thirty-Four Thousand Nine Hundred Seventeen an.67/100 dollars ($234,917.67) in settlement of RWC’s claims in the Action,” as does the Stipulation for Entry of Judgment in Paragraph 2.
Section 3.7 of the agreement provides that if Defendants timely paid the first four installments totaling $190,000.00, “the remaining balance shall be forgiven and the settlement shall be deemed paid in full.” This provision supports (by the terms “balance” and “forgiven”) Plaintiff’s argument that the settlement amount was not for $190k as Defendants suggest, but for $234,917.67. The final $44,917.57 was not a penalty, but part of the balance of the settlement amount.
Accordingly, because Plaintiff demonstrates a valid and enforceable settlement agreement which Defendants breached by failing to make two timely installment payments, and a final installment payment, the motion is granted.
Plaintiff shall give notice.
106 2023-01369795 1. Motion - Other 2. Case Management Conference California HOA Collection Claimant Jonathan Whitmore (“Claimant”) claims the surplus funds subject to this action. Services LLC vs. Whitmore Claimant previously sought the same relief, but the motion was denied without prejudice due to Claimant not submitting an affidavit that addressed the deficiencies noted in the Court’s Minute Orders.
At the July 13, 2026 Case Management Conference, the Court set the hearing on this motion after Claimant and the Court discussed Claimant filing this motion nearly a year ago but somehow, a hearing was not scheduled.
The unopposed motion by Claimant Jonathan Whitmore (“Claimant”) for claim of the surplus funds subject to this action is granted. Claimant’s notice of motion states the motion is based on the files and records of this case and Claimant’s declaration. (Motion, 2:3-7.)
The Court notes that on February 10, 2025, the Court granted the unopposed motion by California HOA Collection Services LLC (“Plaintiff”) to be dismissed and discharged upon deposit of the surplus funds with the Clerk of the Court. Plaintiff deposited the surplus funds on March 14, 2025. Accordingly, Plaintiff was discharged and dismissed. (See, 2/10/2025 Minute Order, ROA No. 56.)
The court shall distribute the deposited funds to any and all claimants entitled thereto. (
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(2) To the payment of the obligations secured by the deed of trust or mortgage which is the subject of the trustee’s sale. (3) To satisfy the outstanding balance of obligations secured by any junior liens or encumbrances in the order of their priority. (4) To the trustor or the trustor’s successor in interest. In the event the property is sold or transferred to another, to the vested owner of record at the time of the trustee's sale. (Civ. Code, § 2924k.)
“A trustee may charge costs and expenses incurred for such items as mailing and a reasonable fee for services rendered in connection with the distribution of the proceeds from a trustee’s sale, including, but not limited to, the investigation of priority and validity of claims and the disbursement of funds. If the fee charged for services rendered pursuant to this subdivision does not exceed one hundred dollars ($100), or one hundred twentyfive dollars ($125) where there are obligations specified in paragraph (3) of subdivision (a), the fee is conclusively presumed to be reasonable.” (Civ. Code, § 2924k, subd. (b).)
Here, Claimant contends he is entitled to the surplus proceeds under subdivision (a)(4), because the three categories preceding it have been satisfied by the Plaintiff (i.e., the trustee). (See Compl. at ¶ 15 [“From the proceeds of the sale, Plaintiff paid the amount owed to the Association and all costs permitted by law...”].)
Probate Code section 13101, subdivision (a), provides:
To collect money, receive tangible personal property, or have evidences of a debt, obligation, interest, right, security, or chose in action transferred under this chapter, an affidavit or a declaration under penalty of perjury under the laws of this state shall be furnished to the holder of the decedent's property stating all of the following: (1) The decedent's name. (2) The date and place of the decedent's death. (3) “At least 40 days have elapsed since the death of the decedent, as shown in a certified copy of the decedent's death certificate attached to this affidavit or declaration.” (4) Either of the following, as appropriate: (A) “No proceeding is now being or has been conducted in California for administration of the decedent's estate.” (B) “The decedent's personal representative has consented in writing to the payment, transfer, or delivery to the affiant or declarant of the property described in the affidavit or declaration.” (5) “The current gross fair market value of the decedent's real and personal property in California, excluding the property described in Section 13050 of the California Probate Code and any property included in a petition filed under Section 13151 of the California Probate Code, does not exceed [Insert dollar amount specified in subdivision (g) of Section 13101 of the California Probate Code].” (6) A description of the property of the decedent that is to be paid, transferred, or delivered to the affiant or declarant. (7) The name of the successor of the decedent, as defined in Section 13006, to the described property. (8) Either of the following, as appropriate: (A) “The affiant or declarant is the successor of the decedent (as defined in Section 13006 of the California Probate Code) to the decedent’s interest in the described property.” (B) “The affiant or declarant is authorized under Section 13051 of the California
Probate Code to act on behalf of the successor of the decedent (as defined in Section 13006 of the California Probate Code) with respect to the decedent's interest in the described property.” (9) “No other person has a superior right to the interest of the decedent in the described property.” (10) “The affiant or declarant requests that the described property be paid, delivered, or transferred to the affiant or declarant.” (11) “The affiant or declarant affirms or declares under penalty of perjury under the laws of the State of California that the foregoing is true and correct.”
“Reasonable proof of the identity of each person executing the affidavit or declaration shall be provided to the holder of the decedent's property.” (Prob. Code, § 13104, subd. (a.); Cal. Prac. Guide Probate at ¶ 2:19.1 [“It is the claimant's duty to ‘furnish’ the holder with proper identification”].) If the declarant is not personally known to the holder of the funds, the affidavit or declaration must contain “a notary public's certificate of acknowledgment of the identity of the person.” (Prob. Code, § 13104, subd. (f).) The property holder is not required to honor a defective Prob.C. § 13101 declaration; and a holder who does honor a defective declaration will not receive the protection afforded by Prob.C. § 13106 (which discharges the holder from further liability with respect to the property transferred under Prob.C. § 13100.” (Cal. Prac. Guide Probate at ¶ 2:17a.)
In support of this motion, Claimant provided: [1] a copy of the Grant Deed of the Property to Decedent; [2] a copy of the Decedent’s Certificate of Death; and, [3] a “California Affidavit for Collection of Personal Property,” with a notary's certificate of acknowledgment attached. (Motion, ROA No. 84, Exhibits A, B, and C.)
Claimant showed Decedent owned the Subject Property as of 3/22/1999. (Motion, Exhibit A.) The death certificate submitted as Exhibit B in support of the motion shows Decedent died on April 15, 2021 and that Claimant is Decedent’s son. Claimant’s attorney attests Claimant is the son of the former owner of the real property that gave rise to the surplus. (Cara Decl., ROA NO. 84, ¶ 4.)
Claimant’s declaration attests: • His mother, the decedent, was the former owner of the Property. (ROA 36 [Whitmore Decl. at ¶ 5].) • Decedent died on April 15, 2021, without a will. (Whitmore Decl. at ¶ 6.) • Decedent was the sole owner of the Property and he is her intestate successor in interest and the proper claimant of the surplus proceeds. (Whitmore Decl. at ¶ 7.)
Claimant has established he is entitled to the surplus funds of $165,355.83 that has been deposited with the Court. No competing claims have been asserted.
Claimant’s motion is granted.
The case management conference is vacated.
Claimant is ordered to give notice.
107 2025-01467718 1. Motion to Set Aside/Vacate Default 2. Case Management Conference Marriott Hotel Services, LLC vs. Nathan Nguyen’s motion to vacate the default entered against him on 7/15/25 in this