Preview
1 STACY H. BOWMAN, SBN 166808
sbowman@ch-law.com
2 JARED R. CLEMENCE, SBN 343496
jclemence@ch-law.com
3
COLEMAN & HOROWITT, LLP
4 Attorneys at Law
2032 17th Street
5 Bakersfield, CA 93301
Tel: (661) 325-1300
6
Attorneys for Defendants, Alicia Denney and John B. Denney & Cross-Complainant, Alicia
7 Denney
8
SUPERIOR COURT OF CALIFORNIA
9
COUNTY OF KERN-METROPOLITAN DIVISION
10
11
JEROME PAVONE, an individual and Case No. BCV-23-100656 TMS
12 DAYID PAVONE, as Trustee of the
JEROME PAVONE LIVING TRUST,
13
Plaintiff,
14
vs.
15
ALICIA DENNEY, an individual, also known DECLARATION OF JARED R.
16 CLEMENCE IN SUPPORT OF MOTION
as ALICIA YUBETA; JOHN B. DENNEY;
All Persons Unknown, Claiming Any Legal or FOR SANCTIONS
17
Equitable Right, Title, Estate, Lien, or Interest
18 in the Subject Property described herein HONORABLE: T. MARK SMITH
Adverse to Plaintiffs Title; and
19 DOES 1 to 20,
DATE: 05/09/2024
20 Defendants. TIME: 8:30A.M.
- - - - - - - - - - - - - - - - l DEPT: T-2
21
ALICIA DENNEY, an individual, also known
as ALICIA YUBET A,
22
Cross-Complainant,
23
vs.
24
JEROME PAVONE, an individual and
25 DAVID PAVONE, as Trustee of the
JEROME PAVONE LIVING TRUST, and all
26 persons unknown claiming any interest in the
property.
27
Cross-Defendants.
28
DECLARATION OF JARED R. CLEMENCE IN SUPPORT OF MOTION FOR SANCTIONS
1 I, JARED R. CLEMENCE, do hereby declare and state:
2 l. I am an attorney at law duly licensed to practice before all courts of the State of
3 California. I am an associate with the law firm of Coleman & Horowitt, LLP, attorneys ofrecord
4 for Defendants, Alicia Denney and John B. Denney ("Defendants").
5 2. I have personal knowledge of the facts contained herein and if called upon as a
6 witness, I would testify competently thereto.
7 3. This declaration is filed in support of MOTION FOR SANCTIONS.
8 4. For the Court's convenience, I have divided this declaration into parts, each
9 dealing with a specific factual area.
10 RESULTS OF DEMUR TO FIRsT AMENDED COMPLAINT
11 5. I attended a hearing on November 7, 2023, for the demur to the Plaintiffs first
12 amended complaint.
13 6. At that hearing, the court ruled in Defendant's favor.
14 7. When deciding whether or not to grant leave to amend, the court accepted
15 comments from counsel.
16 8. I proposed three possible claims that could survive a demur.
17 9. The court took my comments and the comments of Mr. Penner, who represented
18 the other side, under submission and ruled that Plaintiffs would have leave to amend.
19 SECOND AMENDED COMPLAINT
20 10. Plaintiffs filed a timely second amended complaint on November 27, 2023.
21 11. Based on information and belief, all parties new, both Plaintiffs and Defendants,
22 that Defendants then had a responsive deadline that was thirty days later, which would fall on
23 December 27, 2023.
24 12. Because of competing deadlines and a thirty-day window in which to respond, I
25 filed the second amended complaint and did not return to it until the afternoon of December 20,
26 2023.
27 13. I read the complaint, reviewed the law, and developed a plan of action.
28
2
DECLARATION OF JARED R. CLEMENCE IN SUPPORT OF MOTION FOR SANCTIONS
14. These events occurred late on December 20, 2023, and became one of the first
2 items on my agenda for Thursday, December 21, 2023.
3 COMMUNICATIONS OCCURRING ON DECEMBER 21, 2023
4 A. Notice to Mr. Cottone
5 15. In light of the need for a new demur and the possibility that sanctions were
6 appropriate, I initiated contact with Cuttone & Associates by emailing Brian Cuttone.
7 16. Exhibit A, attached hereto, contains a true and correct representation of that email
8 to Mr. Brian Cuttone, which appears at the bottom of page 3 therein.
9 17. I received a reply from Mr. Cuttone within a few moments, which, based upon the
10 quickness of the response and the content therein, was sent by an automatic email responder and
11 not by Mr. Cuttone himself.
12 18. A true and correct copy of the email I received is attached hereto as Exhibit B.
13 B. Request for Available Attorney
14 19. I then forwarded my original email to Mr. Cuttone's assistant, Rebecca Stasio, and
15 asked that she recognize the urgency of the communication and connect me with whatever
16 attorney was available and handling Mr. Cuttone's matters while he was away.
17 20. Exhibit A, attached hereto, is a full record of the communications between myself
18 and Rebecca Stasio occurring between 9:43 a.m. and 9:54 a.m.
19 C. Discussions with Mr. Penner
20 21. Shortly after my last communication with Ms. Stasio, Mr. Nicholas Penner
21 contacted me via email.
22 22. I understood from the content of his letter that he had spoken to Ms. Stasio.
23 23. I further understood from the content of his letter that he had seen my emails to
24 her, which included the original email to Mr. Cuttone.
25 24. Exhibit C, attached hereto, is a true and correct record of my email
26 correspondence with Mr. Penner throughout December 21, 2023.
27 25. In Mr. Penner's original email to me, he asked me to "inform [him] under what
28 authority [I] will be seeking sanctions .... "
3
DECLARATION OF JARED R. CLEMENCE IN SUPPORT OF MOTION FOR SANCTIONS
I 26. I replied providing the authority and grounds at 11 :56 a.m.
2 27. I then sake with Mr. Penner who called my office.
3 28. To the best of my recollection, he called my office within half-an-hour after I sent
4 the 11 :56 email; however, it could have been as much as an hour later. I don't recall the exact
5 time.
6 29. I do recall that he identified himself as Nicholas Penner on the phone and engaged
7 in conversation relating to the content of the email sent to Nicholas Penner at 11: 56 that day.
8 30. During the call Mr. Penner noted that Cuttone & Associates had no one available
9 because of the holidays and that no one would be available until after the December 27 deadline.
10 31. The phone call lasted no more than fifteen minutes and concluded without any
11 clear direction.
12 32. In consideration of Mr. Penner's comments on the phone, I responded to my prior
13 email and offered that Mr. Penner could voluntarily extend the filing deadline as a courtesy until
14 January 12, 2024, which would give his team time to return and permit all to discuss the merits
15 of the claims after their return from holiday.
16 33. Mr. Penner sent no response to that message. Neither did any person copied on
17 the letter, including Ms. Stasio and Mr. Cuttone.
18 34. These communications are accurately reflected in Exhibit C.
19 35. My last email to Mr. Penner occurred at 3:19 p.m.
20 D. Notice of Unavailability
21 36. The next correspondence I received was from Ms. Stasio at 4:04 p.m. on
22 December 21, 2023.
23 37. Within that email, she asked me to inspect the attached document which she
24 referred to as "a Notice of Unavailability."
25 38. A true and correct copy of her email is attached hereto as Exhibit D.
26 39. A true and correct copy of the attachment to her email is attached hereto as Exhibit
27 E.
28
4
DECLARATION OF JARED R. CLEMENCE IN SUPPORT OF MOTION FOR SANCTIONS
1 MANDATORY EXTENSION
2 40. After receiving the Notice of Unavailability, I discussed the matter with Craig
3 Tristao, who was then an attorney at my firm working the case with me.
4 41. Mr. Tristao called my attention to the option of a mandatory extension that could
5 be obtained by filing a judicial counsel form.
6 42. I subsequently completed the mandatory extension form and filed it with a brief
7 summary of events creating the hardship.
8 43. The court granted the extension, which pushed the December 27 filing deadline
9 back to January 27, 2024.
10 REMINDERS SENT IN 2024
11 44. On January 10, 2024, I sent a "second attempt" to meet and confer and renewed
12 the claim for possible sanctions.
13 45. I sent this email to Brian Cuttone, who was supposed to have returned from his
14 vacation on January 5, and I copied his assistant Rebecca Stasio.
15 46. Within the email, I offered to stipulate to a third amended complaint in order to
16 assist Plaintiff in curing the sanctionable defect.
17 47. A true and correct copy of the January 10 reminder is attached hereto as Exhibit
18 F.
19 48. On January 16, 2024, I sent a "third attempt" to meet and confer and renewed the
20 claim for possible sanctions.
21 49. I sent this email to Brian Cuttone, who was supposed to have returned from his
22 vacation on January 5, and I copied his assistant Rebecca Stasio. On this attempt, I added
23 Nicholas Penner who provided assistance on December 21, 2023.
24 50. Within the email, I offered to stipulate to a third amended complaint in order to
25 assist Plaintiff in curing the sanctionable defect.
26 51. A true and correct copy of the January 16 reminder is attached hereto as Exhibit
27 G.
28
5
DECLARATION OF JARED R. CLEMENCE IN SUPPORT OF MOTION FOR SANCTIONS
1 52. No person from Cuttone & Associates responded to either the January 10 or the
2 January 16 reminder emails.
3 AUTHENTICATION OF META-DATA
4 53. The email addresses for all emails were consistent.
5 54. Although my system does not always print the email addresses when there exists
6 a name, I have inspected the emails and can confirm that all communications to and from the
7 following individuals occured with the identified email address: Brian Cuttone at
8 bcuttone@cuttonelaw.com; Rebecca Stasio at rstasio@cuttonelaw.com; and Nicholas Penner at
9 npenner@cuttonelaw.com.
10 55. I have personally reviewed the dates and times recorded by the email servers in
11 the headers of the emails attached as Exhibit A, Exhibit B, Exhibit C, Exhibit D, Exhibit F, and
12 Exhibit G. The times and dates recorded therein are recorded automatically by the email servers
13 operating between end-points. I have reviewed the times and can certify that they are accurate
14 representations of the times in which I engaged in those communications.
15 NOTICE OF UNAVAILABILITY
16 A. Declarant's Beliefs Regarding Document Authenticity.
17 56. I have reviewed the content of Exhibit F, which is the Notice of Unavailability.
18 57. Based upon my communications described above and precipitate facts
19 surrounding the timeline of the case and the dates of the document, I have come to certain
20 conclusions about the document.
21 58. It is my personal belief that the Notice of Unavailability was drafted after noon
22 on December 21, 2024.
23 59. I further believe that Brian Cuttone made himself available to sign the document
24 on December 21, 2023.
25 60. I further believe that the date of his signature is a false representation of the date
26 of signature.
27
28
6
DECLARATION OF JARED R. CLEMENCE IN SUPPORT OF MOTION FOR SANCTIONS
1 B. Declarant's Belier s Regarding Effective Notice
2 61. I personally spoke with Nicholas Penner on December 21, 2023, regarding the
3 grounds upon which sanctions would be sought and the need to correct the document.
4 62. I further engaged in email correspondence with Mr. Penner as exemplified by
5 Exhibit C.
6 63. Regardless of what is stated upon the Notice of Unavailability, I have personal
7 knowledge that Nicholas Penner received actual notice on December 21, 2023, which was not a
8 national holiday, a weekend, or any other protected date upon which notice might not be
9 effective.
64. Additionally, regardless of what was stated upon the Notice of Unavailability, that
11 notice was not served upon me or filed with the court until after noon on December 21, 2023,
12 which means that I could not have had knowledge of its content when I engaged Ms. Stasio and
13 Mr. Penner in discussions regarding defects in their filings.
14 65. Nicholas Penner continues to be the second name at the top of every filing by
15 Cuttone and Associates within this case, and as such, notice to him is effective as notice to the
16 firm and notice to Mr. Cuttone.
17 FEES AND COSTS
18 66. Defendants incurred fees and costs as a result of Plaintiffs sanctionable actions.
19 The fees and costs are detailed here below.
20 67. A PDF containing line item descriptions is attached hereto as Exhibit H and has
21 been blinded to protect attorney-client confidences where appropriate.
22 68. Fees were charged primarily by "JRC" and by "LAG." "JRC" is my own initials.
23 I have worked for Coleman & Horowitt since April 1, 2021. I was admitted to the California
24 State Bar on May 7, 2022. My initial billing rate was set at $225 per hour, and that rate has
25 increased annually based upon my performance as an attorney and market adjustments. At
26 present, my billable rate is $350 per hour.
27 69. "LAG" is Lisa Gojich, who is a paralegal. Lisa Gojich has been working as a
28 paralegal for more than twenty-five years. She was hired by Bowman & Associates, which
7
DECLARATION OF JARED R. CLEMENCE IN SUPPORT OF MOTION FOR SANCTIONS
1 operated under many names. In or around 2020, Bowman & Associates merged with Coleman
2 & Horowitt and assumed Coleman & Horowitt's names. Ms. Gojich's rates have been increased
3 over time based upon both her years of experience, her skill, and increases in the market. She
4 currently has a billable rate of $225 per hour.
5 70. I and Lisa both experienced rate changes during the course of the work described
6 herein. For that reason, the time and rate is included for all calculations so that the court may
7 clearly determine the rate billed at the time of the work.
8 71. The fees and costs requested here to not include any time or costs associated with
9 time or costs that Defendants would have incurred regardless of respondent's behavior. This
10 includes and specifically references time billed for drafting and filing an answer to the second
11 amended complaint.
12 72. Total fees and costs are summarized in the table below. The detailed explanations
13 appear in the sections that follow:
14 Description Costs Fees Total
15 Drafting and Filing $12.72 $72.00 $84.72
the Mandatory
16 Extension
17
Drafting, Replying, $103.35 $4,285.00 $4,388.35
18 and Presenting a
Successful Demur
19
Drafting, Replying, $103.35 $5,369.50 $5,472.85
20
and Presenting
21 Motion for Sanctions
(Includes estimated
22 values)
23 Totals $219.42 $9,726.50 $9,945.92
24
25 A. Mandatory Extension
26 73. Defendants incurred a total of $84.72 in costs and fees in filing the mandatory
27 extension declaration.
28
8
DECLARATION OF JARED R. CLEMENCE IN SUPPORT OF MOTION FOR SANCTIONS
74. These costs and fees were necessary because Plaintiffs would not voluntarily
2 extend the deadline until a date after they returned from vacation.
3 75. The fees consisted of 0.1 hours of attorney time billed at $350 per hour and 0.3
4 hours of paralegal time billed at $210 per hour.
5 76. Filing costs were $12.72.
6 B. Demur
7 77. Drafting and Editing Demur: In total, Defendants incurred $75.65 in costs and
8 $2,970 in fees. The fees are broken down as follows: 8.1 hours of attorney time were spent
9 drafting the motion, notice of motion, points and authorities, and declarations. The 8.1 hours of
10 attorney time was billed at $350 per hour for a total of $2,835 in fees. In addition to attorney
11 time, the drafting editing and filing of the
Sent: Thursday, December 21, 2023 9:49 AM
To: Jared R. Clemence
Cc: Brian Cuttone ; Craig Tristao ; Lisa A. Gojich ; Veronica Kearney
Subject: Re: Pavone v. Denney: Meet and Confer
Good morning,
Mr. Cuttone will not be available until January 6, 2024. Why does this need immediate attention?
Thank you,
Rebecca Stasio
Office Manager and
Legal Assistant to
Brian K. Cuttone, Esquire
Nicholas J. Penner, Esquire
Cuttone & Associates
5380 North Fresno Street, Suite 102
Fresno, California 93710
Phone: 559.228.8490
Fax: 559.421.1991
This message is from Rebecca Stasio, Legal Assistant to Brian K. Cuttone, Attorney at Law, Cuttone & Associates. This
message and any attachments may contain legally privileged or confidential information, and are intended only for
the individual or entity identified above as the addressee. If you are not the addressee, or if this message has
been addressed to you in error, you are not authorized to read, copy or distribute this message and any attachments,
and we ask that you please delete this message and any attachments (including all copies) and notify the sender by
return e-mail, facsimile 559.421.1991, or by phone at 559.228.8490. Delivery of this message and any attachments to
any person other than the intended recipient{s) is not intended in any way to waive confidentiality or a privilege.
All personal messages are the express views of the sender, which are not to be attributed to any other person, and
may not be copied or distributed without this statement.
On Dec 21, 2023, at 9:43 AM, Jared R. Clemence wrote:
Mrs. Stasio:
I received the away message from Mr. Cuttone regarding his absence over the next week. The below
email requires immediate attention. Can you please forward the message to the attorney who is
handling Mr. Cuttone's work while he is away.
Kind regards,
Jared R. Clemence
2
Jared R. Clemence
Associate
Phone: (661) 325-1300
Email: jclemence@ch-law.com
2032 17th Street
Bakersfield, California 93301
www.ch-law.com
CONFIDENTIALITY NOTICE: The information contained in this e--maii is intended only for the
confidential use of the recipient\s) named anove and is legally privileged If you are not tr1e intended
recipient, you have received this e-mail in error. Do not read it and destroy the e-mail without saving
it. Thank you.
Debt Collection Notice A portion of this law practice deals with dflbt collection. If you are a debtor
please be advised anything you communicate to this office wiil be used in the collection of your
outstanding debt You should contact a lawyer to review t11is commun:cation b,3fore you respond.
Pay Onlinehttps://secure.lawpay.com/pages/ch-law/operatlng
For your protectton You should carry out your own virus check before opentng any attachn1.ent \tile
accept no !iabi!tty for any !oss or darn age that may be caused by soff'ware viruses or
mterception/interruptioo of this e~rr1ail
From: Jared R. Clemence
Sent: Thursday, December 21, 2023 9:39 AM
To: Brian Cuttone
Cc: Rebecca Stasio ; Craig Tristao ; Veronica Kearney
; Lisa A.Gojich
Subject: Pavone v. Denney: Meet and Confer
Mr. Cuttone:
This is an attempt to meet and confer regarding a demur to the second amended complaint and a
motion to strike portions of the filed answer.
You have filed an answer and a second amended complaint that includes claims that have already been
ruled upon within this same case. All allegations or claims that Alicia Denney acquired title by fraud from
David Pavone are already decided within this same case by the ruling on the initial demur.
Please respond to this email stating:
1. That you intend to file an amended answer removing all defenses based upon fraud.
2. That you intend to file an third amended complaint removing all claims that title was acquired
by fraud. (Specifically referencing the first cause of action.)
3. That, because of #1 and #2 above, that I do not need to file a demur or a motion to strike.
Please note also that because your clients have taken a third (possibly fourth) bite at the same apple
upon which the judge has already ruled, that I may file a request for sanctions against them for running
up the fees and costs of Mr. and Mrs. Denney.
I hope to receive a response from you by December 26 1\ but preferably before end of business
tomorrow.
Thank you.
3
Kind regards,
Jared R. Clemence
Jared R. Clemence
Associate
Phone: (661) 325-1300
Email: jclemence@ch-law.com
2032 17'h Street
Bakersfield, California 93301
www.ch-law.com
CONFIDENTIALITY NOTICE: The information contained in this e-mail is inteode(J only for the
confidential use of :!,e recipient(s) named above and :s legally privileged. If you are not tile intended
recipient you have rnceived this e-rnai! iri error. Do not mad it and destroy the e-rnaii without saving
it Thank Y'JlL
Debt Collection Notice: A portion of this law practice deais wiih debt collHction. If you are a debior
please be advised anyth:ng you comrmmicaie to this office will be used iii the collection of your
outstanding debt You should contact a lawyer to review tl1is communication before you respond.
Pay Onlinehttps://secure.lawpay.com/pages/ch-law/operating
For vou: protection- You should cony out your own vi,-us check before open/ng any attachment We
eccept no liability for any loss or damage ttrat :nay be caused by· software V!(uses or
interception/interr~iption of 01js e--rnai!
4
EXHIBIT "B"
Jared R. Clemence
From: Brian Cuttone < bcuttone@cuttonelaw.com >
Sent: Thursday, December 21, 2023 9:39 AM
To: Jared R. Clemence
Subject: Out of Office Auto-Reply Re: Pavone v. Denney: Meet and Confer
I will be out of the office from December 18, 2023 to January 5, 2024. If you have a matter that requires immediate
attention, please contact Rebecca Stasio at rstasio@cuttonelaw.com or at the telephone number below.
******I will not have access to email while I am out. I DO NOT accept ex parte notice via email while I am out ofthe
office.*****
Thank you.
Brian K. Cuttone, Esq.
Cuttone & Associates
5380 N. Fresno Street, Suite 102
Fresno, California 93710
Telephone: 559.228.8490
Facsimile: 559.421.1991
Thank you,
Brian K. Cuttone, Esquire
Cuttone & Associates
5380 North Fresno Street, Suite 102
Fresno, California 93710
Phone: 559.228.8490
Fax: 559.421.1991
This message is from Brian K. Cuttone, Attorney at Law, Cuttone & Associates. This message and
any attachments may contain legally privileged or confidential information, and are intended only
for the individual or entity identified above as the addressee. If you are not the addressee, or if this
message has been addressed to you in error, you are not authorized to read, copy or distribute
this message and any attachments, and we ask that you please delete this message and any
attachments (including all copies) and notify the sender by return e-mail, facsimile 559.421.1991,
or by phone at 559.228.8490. Delivery of this message and any attachments to any person other
than the intended recipient(s) is not intended in any way to waive confidentiality or a privilege.
All personal messages are the express views of the sender, which are not to be attributed to any
other person, and may not be copied or distributed without this statement.
1
EXHIBIT "C"
Jared R. Clemence
From: Jared R. Clemence
Sent: Thursday, December 21, 2023 3:19 PM
To: 'Nick Penner'
Cc: 'Rebecca Stasio'; Craig Tristao; Lisa A. Gojich; Veronica Kearney; 'Brian Cuttone'
Subject: RE: Pavone v. Denney: Notice of Intent for Sanctions with Law
Mr. Penner:
I realize and acknowledge that the 30-days ends at a bad time. I understand that your office is short staffed and this
would be better handled after the holidays. May I suggest that you agree to extend the timeline for demur to
01/12/2024. That will give your team time to return from the holidays and to evaluate the legal landscape. Are you
willing to grant an extension of time, given the holidays, to 01/12/2024?
Kind regards,
Jared R. Clemence
Associate
Phone: (661) 325-1300
Email: jclemence@ch-law.com
2032 17th Street
Bakersfield, California 93301
www.ch-law.com
CONFIDENTIALITY NOTICE: The information contained in this e-mail is intended only for the confidential use of the
recipient(s) named above and is legally privileged. If you are not the intended recipient, you have received this e-mail in
error. Do not read it and destroy the e-mail without saving it. Thank you.
Debt Collection Notice: A portion of this law practice deals with debt collection. If you are a debtor please be advised
anything you communicate to this office will be used in the collection of your outstanding debt. You should contact a
lawyer to review this communication before you respond.
Pay Onlinehttps://secure.lawpay.com/pages/ch-law/operating
For your protection: You should carry out your own virus check before opening any attachment. We accept no liability
for any loss or damage that may be caused by software viruses or interception/interruption of this e-mail.
-----Original Message-----
From: Jared R. Clemence
Sent: Thursday, December 21, 2023 11:56 AM
To: Nick Penner
Cc: Rebecca Stasio ; Craig Tristao ; Lisa A. Gojich ; Veronica Kearney ; Brian Cuttone
Subject: Pavone v. Denney: Notice of Intent for Sanctions with Law
Mr. Penner:
As to the timelines, 30 days is a window within which an attorney may allocate work. One should expect that the first
two weeks might be used to review the documents, the law, and the relevant next actions. Such things must be
determined before one meets and confers. I did that during that time.
Yesterday, I just finished several matters that occupied my time during much of the second and third weeks. Your case
received my first attention as soon as I was able. That your office is unprepared to meet and confer during the window in
which they were expecting a possible response seems like something that should have been calculated, foreseen, or
expected when you serve a complaint on November 27th. I'm not objecting to working through the holidays, the
timeline was set by your filings, and I am bound by the time set by the law. Whereas it is the respondents' right to use
the entirety of the 30-days to prepare a response, it is up to the respondent to fit the various tasks within their calendar
as best they can within that time frame.
As to my findings on review of your second amended complaint, I have determined that since the demur to your same
complaint was successful twice before that a demur is appropriate again. I have further determined that since the cause
of action is not modified in any substantial way from the original complaints to comport with the prior rulings that the
cause of action is "totally and completely without merit or for the sole purpose of harassing an opposing party." (Code
Civ. Proc.,§ 128.5, subd. (b)(2).)
As to the first matter, the demur, I must meet and confer before filing a demur, this email and the ones proceeding that
are an attempt to comply with my legal obligations before I file my demur on or before December 27th.
As to the second matter, sanctions, I am required to give you notice of my intent to file sanctions so that you may take
appropriate action. Code of Civil Procedure sections 128.5 and 128.7 gives the Denney's right to demand sanctions for a
frivolously filed complaint. Your filings continue to be frivolous. The issues raised in the second amended complaint's first
cause of action were ruled upon in the demur to the first complaint, they were ruled upon again in the second amended
complaint. Now your office has submitted them for a third time after having already received multiple judgments on the
matter.
Sanctions may not be requested until the moving party has given notice to the other so that the other may avoid
sanctions by withdrawing the offending complaint. (Code Civ. Proc, § 128.5, subd. (c).); See also Bucur v. Ahmad (2016)
244 Cal.App.4th 175, 190-191.) Thus, I am obligated to announce my intent, and you have a limited time in which to
respond appropriately. Sanctions may include all attorney fees and costs that were caused by the frivolous complaint.
I am going to commence work on the demur to your second amended complaint with the knowledge that the filing
deadline is on the 27th. You have received notice that I intend to seek sanctions. You have the opporunity now to give
me notice of your intent to withdraw your complaint and avoid any unnecessary expenditures for the Denneys that have
arrisen from what I hope was an oversight and not an intentional attempt to raise a frivolous complaint.
If you give notice on or before the 26th that you intent to withdrawal your complaint and that I do not need to file the
demur, I will not seek sanctions against your client. I'd prefer that you give notice sooner than that so that the Denneys
may avoid unnecessary costs and fees.
Because there is no timeline on the motion to strike, we are not up against the same clock, but the timeline for the
demur and the similarity of the issues compels us to address them at the same time. Please also give notice of your
intent to amend the answer, which is sanctionable under the same law cited above.
2
Kind regards,
Jared R. Clemence
Associate
Phone: (661) 325-1300
Email: jclemence@ch-law.com
2032 17th Street
Bakersfield, California 93301
www.ch-law.com
CONFIDENTIALITY NOTICE: The information contained in this e-mail is intended only for the confidential use of the
recipient(s) named above and is legally privileged. If you are not the intended recipient, you have received this e-mail in
error. Do not read it and destroy the e-mail without saving it. Thank you.
Debt Collection Notice: A portion of this law practice deals with debt collection. If you are a debtor please be advised
anything you communicate to this office will be used in the collection of your outstanding debt. You should contact a
lawyer to review this communication before you respond.
Pay Onlinehttps://secure.lawpay.com/pages/ch-law/operating
For your protection: You should carry out your own virus check before opening any attachment. We accept no liability
for any loss or damage that may be caused by software viruses or interception/interruption of this e-mail.
-----Original Message-----
From: Nick Penner
Sent: Thursday, December 21, 2023 10:26 AM
To: Jared R. Clemence
Cc: Rebecca Stasio
Subject: Pavone v. Denney
Dear Mr. Clemence,
Mr. Cuttone is out until January 6, 2024 and I am out until December 29, 2023. However, Ms. Stasio contacted me to
inform me that you have some "emergency" and need an immediate response. I see that you have threatened sanctions
if you have to file a demurrer and motion to strike. Please inform me under what authority you will be seeking sanctions
and against whom so I can understand your threat and explain it to my client. As to your deadline to file a demurrer, you
have had more than ample time to meet and confer with our office regarding any issues you believe are relevant and
have chosen not to do so until the last minute. Your dilatory handling of this matter does not create an emergency for
this office. As such, please send a more detailed analysis of any perceived problems with the Second Amended
Complaint and I will pass that information to Mr. Cuttone when I can get ahold of him.
Thank you,
Nicholas J. Penner, Esquire
Cuttone & Associates
3
5380 North Fresno Street, Suite 102
Fresno, California 93710
Phone: 559.228.8490
Fax: 559.421.1991
This message is from Nicholas J. Penner, Attorney at Law, Cuttone & Associates. This message and any attachments may
contain legally privileged or confidential information, and are intended only for the individual or entity identified above
as the addressee. If you are not the addressee, or if this message has been addressed to you in error, you are not
authorized to read, copy or distribute this message and any attachments, and we ask that you please delete this message
and any attachments (including all copies) and notify the sender by return e-mail, facsimile 559.421.1991, or by phone at
559.228.8490. Delivery of this message and any attachments to any person other than the intended recipient(s) is not
intended in any way to waive confidentiality or a privilege. All personal messages are the express views of the sender,
which are not to be attributed to any other person, and may not be copied or distributed without this statement.
4
EXHIBIT "D"
Jared R. Clemence
From: Rebecca Stasio < rstasio@cuttonelaw.com >
Sent: Thursday, December 21, 2023 4:04 PM
To: Craig Tristao; Jared R. Clemence
Cc: Lisa A. Gojich; Veronica Kearney
Subject: Pavone v Denney
Attachments: 2023-12-21 Ntc of Unavail_011.pdf
Good afternoon,
Please find attached a Notice of Unavailability
Thank you,
Rebecca Stasio
Office Manager and
Legal Assistant to
Brian K. Cuttone, Esquire
Nicholas J. Penner, Esquire
Cuttone & Associates
5380 North Fresno Street, Suite 102
Fresno, California 93710
Phone: 559.228.8490
Fax: 559.421.1991
This message is from Rebecca Stasio, Legal Assistant to Brian K. Cuttone, Attorney at Law, Cuttone & Associates. This
message and any attachments may contain legally privileged or confidential information, and are intended only for
the individual or entity identified above as the addressee. If you are not the addressee, or if this message has
been addressed to you in error, you are not authorized to read, copy or distribute this message and any attachments,
and we ask that you please delete this message and any attachments (including all copies) and notify the sender by
return e-mail, facsimile 559.421.1991, or by phone at 559.228.8490. Delivery of this message and any attachments to
any person other than the intended recipient(s) is not intended in any way to waive confidentiality or a privilege.
All personal messages are the express views of the sender, which are not to be attributed to any other person, and
may not be copied or distributed without this statement.
1
EXHIBIT "E"
I BRIAN K. CUITONE (SBN 201314)
NICHOLAS J. PENNER (SBN 344429)
2 CUITONE & ASSOCIATES
5380 N. Fresno Street, Suite 102
3 Fresno, California 93710
Telephone: 559.228.8490
4 Facsimile: 559.421.1991
5
6 Attorneys for David Pavone,
as Trustee of the Jerome Pavone Living Trust
7
8
SUPERIOR COURT OF CALIFORNIA
9
COUNTY OF KERN
10
DAVID PAVONE, as Trustee of the ) Case No.: BCV-23-100656
11 JEROME PAVONE LIVING TRUST )
)
12 ) Plaintiff,
) NOTICE OF UNAVAILABILITY
13 V. )
)
14 ALICIA DENNEY, an individual, also )
known as ALICIA YUBETA; JOHN )
15 B. DENNEY; All Persons Unknown, )
Claiming Any Legal or Equitable )
16 Right, Title, Estate, Lien, or Interest in )
the Subject Property described herein )
17 Adverse to Plaintiffs Title and DOES )
1-20, )
18 )
Defendants. ) Complaint Filed: March 3, 2023
19 )
--,-,,...,,..,,.,,,.----""="=,,.._---,--=-.,,..,,....-,.--=-- )
20 ALICIA DENNEY, an individual, also )
known as ALICIA YUBETA, )
21 )
Cross-Complainant
)
22 )
V. )
23 )
JEROME PAVONE, an individual and )
24 DAVID PAVONE, as Trustee of the )
JEROME PAVONE LIVING TRUST; )
25 and all persons unknown claiming any )
interest in the property. )
26 )
__________.: C: .:.r.: .:os=s-=-De;;. ;: ;=.;fe:;.: :n==d=an.: .: :ts: . :. _ )
27
II
28
Notice of Unavailability
TO THE COURT. ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
2 NOTICE IS HEREBY GIVEN that during the period of December 2L 2023 through
3 January 5, 2024, Brian K. Cuttone: Nicholas J. Penner and Cutlone & Associates. Attorneys for
4 Plaintiff, Adrienne Barraza, will be unavailable fi:Jr any purpose whatsoever, including but not
5 limited to, receiving notices of any kind, responding to exparte applications, court appearances,
6 depositions, or law and motion hearings. Kncnvingly and willfully scheduling a conflicting
7 appearance without good cause or necessity may constitute sanctionable conduct. Tenderloin
8 Housing Clinic v. 5ixtrks (l 982) 8 Cal.App.4 111 299.
9
10 Dated: OCTOBER 30, 2023 Respectfully submitted,
11 CUTTONE & ASSOC IATES
12
13
NICHOLAS J. PENNER, Attorney
14 for Plaintiff, Jerome Pavone and
David Pavone, as Trustee of the
15 Jerome Pavone Living Trust
16
17
18
19
20
21
22
24
25
26
27
28
Notice of Unavailability
PROOF OF SERVICE
2 STJ\TE OF CJ\LlFORNIA
,., ) ss.
-' COUNTY OF FRESNO )
4 I am employed in the County of Fresno, State of California. I am over the age of 18 and not a party to
the within action; my business address is 5380 N. Fresno Street, Suite 102, Fresno, California 93710.
5
On December 21. 2023. I served the foregoing doeuments(s) described as
6
NOTICE OF UNAVAILABILITY
7
on the interested parties in this action by placing
8
(X) a true copy or ( ) the original thereof enclosed in a sealed envelope addressed as follows:
9
(. ) (BY MAIL) I am readily familiar with the firm's practice of collection and processing co1Tespondence
for mailing. Under that practice it would be deposited with the LI .S. Postal Service on that same day with
postage thereon fully prepaid at Fresno, California, in the ordinary course of business. I am aware that
11 on motion of the pa1iy served, service is presumed invalid if the postal cancellation date or postage meter
date is more than one day after the date of deposit for mailing in this affidavit.
12
• Jared R. Clemence/Coleman & Horowitt LLP/2032 17111 Street/Bakersfield, CA 9330 I
13
(X) BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused a copy of the documents to be sent from
14 email address rstasio@cuttonelaw.com to the persons at the e-mail addresses listed below. I did not
receive, within a reasonable time after the transmission, any electronic message or other indication that
15 the transmission was unsuccessful.
16 • Jared R. Clemence/Coleman & Horowitt LLP/jclemence@ch-law.com
( ) (BY PERSONAL SERVICE) I caused such envelope to be delivered by hand to:
17
18
( ) (BY FACSIMILE) l faxed such document pursuant to Rule 2008, California Rules or Court The
facsimile machine I used complied with Rule 2003, California Rules ofComi, and no error was reported
19
by the machine. Pursuant to Rule 2008(c), California Rules of Court, the machine printed a transmission
record of the transmission, a copy of which is attached to this declaration. The name and facsimile
20 telephone number of the person(s) served is as follows:
21 {X) (STATE) I declare under penalty of perjury under the laws of the State of
Califbrnia that the foregoing is true and correct
22
_.,
?'"'
( ) (FEDERJ\L) I declare that I am employed in the office of a member of the bar of this
court at whose direction the service was made.
24 Execukd on December 21, 2023, at Fresno, California.
r_.)
26 Rebecca Stasio
27
28
3
Notice of Unavailability
EXHIBIT "F"
Jared R. Clemence
From: Jared R. Clemence
Sent: Wednesday, January 10, 2024 11 :59 AM
To: 'Brian Cuttone'
Cc: 'Rebecca Stasio'; Craig Tristao; Veronica Kearney; Lisa A. Gojich
Subject: RE: Pavone v. Denney: Meet and Confer
Dear Mr. Cuttone and Mr. Penner:
This email is a second attempt to meet and confer and a renewal of notice delivered on December 21 regarding
potential sanctionable actions contained within your answer and your second amended complaint. Please note the
string of communications below. Mr. Penner and I had a chance to discuss the claim for sanctions briefly. There is still
time to withdrawal the second amended complaint or file a third amended complaint without the first cause of action. I
will also stipulate to an amended answer removing all defenses related to fraudulent transfer of title.
The demur is based upon the same grounds as the prior demurs.
Please take note that at this moment, I plan to file a demur, a motion to strike portions of the answer, and a motion for
sanctions. The deadline for the demur is currently pushed back to January 28, 2024. (60 days from November 27, 2023,
plus two for email service.)
Kind regards,
Jared R. Clemence
C'd
COU!MAM & HOAOWfTT, l.LP
Associate
Phone: (661) 325-1300
Email: jclemence@ch-law.com
2032 17th Street
fll PHI.\IEHCS Bakersfield, California 93301
CONFIDENT!AUTY NOTICE. The information contained in this e-mail is intended only for tho
confidential use of tho rocipient(s) named above and is iegaily privileged. If you are not tho intended
recipient. you have received this e-mail in error. Do not read it and destroy ihe e-mail without saving
IL Thank you.
Debt Collection Notice: A portion of this law practice deals with debt collection. If you are a debtor
please be advised anything you communicate to this office will be used in the colleciion of your
outst,mding debt. You should contact a lawyer to review this communication before you respond.
Pay Onlinehttps:/lsecure.lawpay.com/pages/ch-law/operating
For your protection. You st1oufd carry out your O"iAcn virus check before opening any attachrnent vt/e
accept no fiabtlity for aoy loss or da;nage that rnay be caused by software viruses or
mterceptron1Jnterruption of th;s e-maii
From: Jared R. Clemence
Sent: Thursday, December 21, 2023 9:39 AM
To: Brian Cuttone
Cc: Rebecca Stasio ; Craig Tristao ; Veronica Kearney ; Lisa A. Gojich
Subject: Pavone v. Denney: Meet and Confer
Mr. Cuttone:
This is an attempt to meet and confer regarding a demur to the second amended complaint and a motion to strike
portions of the filed answer.
You have filed an answer and a second amended complaint that includes claims that have already been ruled upon
within this same case. All allegations or claims that Alicia Denney acquired title by fraud from David Pavone are already
decided within this same case by the ruling on the initial demur.
Please respond to this email stating:
1. That you intend to file an amended answer removing all defenses based upon fraud.
2. That you intend to file an third amended complaint removing all claims that title was acquired by fraud.
(Specifically referencing the first cause of action.)
3. That, because of #1 and #2 above, that I do not need to file a demur or a motion to strike.
Please note also that because your clients have taken a third (possibly fourth) bite at the same apple upon which the
judge has already ruled, that I may file a request for sanctions against them for running up the fees and costs of Mr. and
Mrs. Denney.
I hope to receive a response from you by December 26 th , but preferably before end of business tomorrow.
Thank you.
Kind regards,
Jared R. Clemence
Jared R. Clemence
Associate
Phone: (661) 325-1300
COLEMAN & HOAOW1TT, LLP Email: jclemence@ch-law.com
ATT.oR'NiYS AT"'LAw· · ·
2032 17'h Street
[IJ PHI\IEHLS Bakersfield, California 93301
CONFIDENTIALITY NOTICE: The info
Preview
1 STACY H. BOWMAN, SBN 166808 sbowman@ch-law.com 2 JARED R. CLEMENCE, SBN 343496 jclemence@ch-law.com 3 COLEMAN & HOROWITT, LLP 4 Attorneys at Law 2032 17th Street 5 Bakersfield, CA 93301 Tel: (661) 325-1300 6 Attorneys for Defendants, Alicia Denney and John B. Denney & Cross-Complainant, Alicia 7 Denney 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF KERN-METROPOLITAN DIVISION 10 11 JEROME PAVONE, an individual and Case No. BCV-23-100656 TMS 12 DAYID PAVONE, as Trustee of the JEROME PAVONE LIVING TRUST, 13 Plaintiff, 14 vs. 15 ALICIA DENNEY, an individual, also known DECLARATION OF JARED R. 16 CLEMENCE IN SUPPORT OF MOTION as ALICIA YUBETA; JOHN B. DENNEY; All Persons Unknown, Claiming Any Legal or FOR SANCTIONS 17 Equitable Right, Title, Estate, Lien, or Interest 18 in the Subject Property described herein HONORABLE: T. MARK SMITH Adverse to Plaintiffs Title; and 19 DOES 1 to 20, DATE: 05/09/2024 20 Defendants. TIME: 8:30A.M. - - - - - - - - - - - - - - - - l DEPT: T-2 21 ALICIA DENNEY, an individual, also known as ALICIA YUBET A, 22 Cross-Complainant, 23 vs. 24 JEROME PAVONE, an individual and 25 DAVID PAVONE, as Trustee of the JEROME PAVONE LIVING TRUST, and all 26 persons unknown claiming any interest in the property. 27 Cross-Defendants. 28 DECLARATION OF JARED R. CLEMENCE IN SUPPORT OF MOTION FOR SANCTIONS 1 I, JARED R. CLEMENCE, do hereby declare and state: 2 l. I am an attorney at law duly licensed to practice before all courts of the State of 3 California. I am an associate with the law firm of Coleman & Horowitt, LLP, attorneys ofrecord 4 for Defendants, Alicia Denney and John B. Denney ("Defendants"). 5 2. I have personal knowledge of the facts contained herein and if called upon as a 6 witness, I would testify competently thereto. 7 3. This declaration is filed in support of MOTION FOR SANCTIONS. 8 4. For the Court's convenience, I have divided this declaration into parts, each 9 dealing with a specific factual area. 10 RESULTS OF DEMUR TO FIRsT AMENDED COMPLAINT 11 5. I attended a hearing on November 7, 2023, for the demur to the Plaintiffs first 12 amended complaint. 13 6. At that hearing, the court ruled in Defendant's favor. 14 7. When deciding whether or not to grant leave to amend, the court accepted 15 comments from counsel. 16 8. I proposed three possible claims that could survive a demur. 17 9. The court took my comments and the comments of Mr. Penner, who represented 18 the other side, under submission and ruled that Plaintiffs would have leave to amend. 19 SECOND AMENDED COMPLAINT 20 10. Plaintiffs filed a timely second amended complaint on November 27, 2023. 21 11. Based on information and belief, all parties new, both Plaintiffs and Defendants, 22 that Defendants then had a responsive deadline that was thirty days later, which would fall on 23 December 27, 2023. 24 12. Because of competing deadlines and a thirty-day window in which to respond, I 25 filed the second amended complaint and did not return to it until the afternoon of December 20, 26 2023. 27 13. I read the complaint, reviewed the law, and developed a plan of action. 28 2 DECLARATION OF JARED R. CLEMENCE IN SUPPORT OF MOTION FOR SANCTIONS 14. These events occurred late on December 20, 2023, and became one of the first 2 items on my agenda for Thursday, December 21, 2023. 3 COMMUNICATIONS OCCURRING ON DECEMBER 21, 2023 4 A. Notice to Mr. Cottone 5 15. In light of the need for a new demur and the possibility that sanctions were 6 appropriate, I initiated contact with Cuttone & Associates by emailing Brian Cuttone. 7 16. Exhibit A, attached hereto, contains a true and correct representation of that email 8 to Mr. Brian Cuttone, which appears at the bottom of page 3 therein. 9 17. I received a reply from Mr. Cuttone within a few moments, which, based upon the 10 quickness of the response and the content therein, was sent by an automatic email responder and 11 not by Mr. Cuttone himself. 12 18. A true and correct copy of the email I received is attached hereto as Exhibit B. 13 B. Request for Available Attorney 14 19. I then forwarded my original email to Mr. Cuttone's assistant, Rebecca Stasio, and 15 asked that she recognize the urgency of the communication and connect me with whatever 16 attorney was available and handling Mr. Cuttone's matters while he was away. 17 20. Exhibit A, attached hereto, is a full record of the communications between myself 18 and Rebecca Stasio occurring between 9:43 a.m. and 9:54 a.m. 19 C. Discussions with Mr. Penner 20 21. Shortly after my last communication with Ms. Stasio, Mr. Nicholas Penner 21 contacted me via email. 22 22. I understood from the content of his letter that he had spoken to Ms. Stasio. 23 23. I further understood from the content of his letter that he had seen my emails to 24 her, which included the original email to Mr. Cuttone. 25 24. Exhibit C, attached hereto, is a true and correct record of my email 26 correspondence with Mr. Penner throughout December 21, 2023. 27 25. In Mr. Penner's original email to me, he asked me to "inform [him] under what 28 authority [I] will be seeking sanctions .... " 3 DECLARATION OF JARED R. CLEMENCE IN SUPPORT OF MOTION FOR SANCTIONS I 26. I replied providing the authority and grounds at 11 :56 a.m. 2 27. I then sake with Mr. Penner who called my office. 3 28. To the best of my recollection, he called my office within half-an-hour after I sent 4 the 11 :56 email; however, it could have been as much as an hour later. I don't recall the exact 5 time. 6 29. I do recall that he identified himself as Nicholas Penner on the phone and engaged 7 in conversation relating to the content of the email sent to Nicholas Penner at 11: 56 that day. 8 30. During the call Mr. Penner noted that Cuttone & Associates had no one available 9 because of the holidays and that no one would be available until after the December 27 deadline. 10 31. The phone call lasted no more than fifteen minutes and concluded without any 11 clear direction. 12 32. In consideration of Mr. Penner's comments on the phone, I responded to my prior 13 email and offered that Mr. Penner could voluntarily extend the filing deadline as a courtesy until 14 January 12, 2024, which would give his team time to return and permit all to discuss the merits 15 of the claims after their return from holiday. 16 33. Mr. Penner sent no response to that message. Neither did any person copied on 17 the letter, including Ms. Stasio and Mr. Cuttone. 18 34. These communications are accurately reflected in Exhibit C. 19 35. My last email to Mr. Penner occurred at 3:19 p.m. 20 D. Notice of Unavailability 21 36. The next correspondence I received was from Ms. Stasio at 4:04 p.m. on 22 December 21, 2023. 23 37. Within that email, she asked me to inspect the attached document which she 24 referred to as "a Notice of Unavailability." 25 38. A true and correct copy of her email is attached hereto as Exhibit D. 26 39. A true and correct copy of the attachment to her email is attached hereto as Exhibit 27 E. 28 4 DECLARATION OF JARED R. CLEMENCE IN SUPPORT OF MOTION FOR SANCTIONS 1 MANDATORY EXTENSION 2 40. After receiving the Notice of Unavailability, I discussed the matter with Craig 3 Tristao, who was then an attorney at my firm working the case with me. 4 41. Mr. Tristao called my attention to the option of a mandatory extension that could 5 be obtained by filing a judicial counsel form. 6 42. I subsequently completed the mandatory extension form and filed it with a brief 7 summary of events creating the hardship. 8 43. The court granted the extension, which pushed the December 27 filing deadline 9 back to January 27, 2024. 10 REMINDERS SENT IN 2024 11 44. On January 10, 2024, I sent a "second attempt" to meet and confer and renewed 12 the claim for possible sanctions. 13 45. I sent this email to Brian Cuttone, who was supposed to have returned from his 14 vacation on January 5, and I copied his assistant Rebecca Stasio. 15 46. Within the email, I offered to stipulate to a third amended complaint in order to 16 assist Plaintiff in curing the sanctionable defect. 17 47. A true and correct copy of the January 10 reminder is attached hereto as Exhibit 18 F. 19 48. On January 16, 2024, I sent a "third attempt" to meet and confer and renewed the 20 claim for possible sanctions. 21 49. I sent this email to Brian Cuttone, who was supposed to have returned from his 22 vacation on January 5, and I copied his assistant Rebecca Stasio. On this attempt, I added 23 Nicholas Penner who provided assistance on December 21, 2023. 24 50. Within the email, I offered to stipulate to a third amended complaint in order to 25 assist Plaintiff in curing the sanctionable defect. 26 51. A true and correct copy of the January 16 reminder is attached hereto as Exhibit 27 G. 28 5 DECLARATION OF JARED R. CLEMENCE IN SUPPORT OF MOTION FOR SANCTIONS 1 52. No person from Cuttone & Associates responded to either the January 10 or the 2 January 16 reminder emails. 3 AUTHENTICATION OF META-DATA 4 53. The email addresses for all emails were consistent. 5 54. Although my system does not always print the email addresses when there exists 6 a name, I have inspected the emails and can confirm that all communications to and from the 7 following individuals occured with the identified email address: Brian Cuttone at 8 bcuttone@cuttonelaw.com; Rebecca Stasio at rstasio@cuttonelaw.com; and Nicholas Penner at 9 npenner@cuttonelaw.com. 10 55. I have personally reviewed the dates and times recorded by the email servers in 11 the headers of the emails attached as Exhibit A, Exhibit B, Exhibit C, Exhibit D, Exhibit F, and 12 Exhibit G. The times and dates recorded therein are recorded automatically by the email servers 13 operating between end-points. I have reviewed the times and can certify that they are accurate 14 representations of the times in which I engaged in those communications. 15 NOTICE OF UNAVAILABILITY 16 A. Declarant's Beliefs Regarding Document Authenticity. 17 56. I have reviewed the content of Exhibit F, which is the Notice of Unavailability. 18 57. Based upon my communications described above and precipitate facts 19 surrounding the timeline of the case and the dates of the document, I have come to certain 20 conclusions about the document. 21 58. It is my personal belief that the Notice of Unavailability was drafted after noon 22 on December 21, 2024. 23 59. I further believe that Brian Cuttone made himself available to sign the document 24 on December 21, 2023. 25 60. I further believe that the date of his signature is a false representation of the date 26 of signature. 27 28 6 DECLARATION OF JARED R. CLEMENCE IN SUPPORT OF MOTION FOR SANCTIONS 1 B. Declarant's Belier s Regarding Effective Notice 2 61. I personally spoke with Nicholas Penner on December 21, 2023, regarding the 3 grounds upon which sanctions would be sought and the need to correct the document. 4 62. I further engaged in email correspondence with Mr. Penner as exemplified by 5 Exhibit C. 6 63. Regardless of what is stated upon the Notice of Unavailability, I have personal 7 knowledge that Nicholas Penner received actual notice on December 21, 2023, which was not a 8 national holiday, a weekend, or any other protected date upon which notice might not be 9 effective. 64. Additionally, regardless of what was stated upon the Notice of Unavailability, that 11 notice was not served upon me or filed with the court until after noon on December 21, 2023, 12 which means that I could not have had knowledge of its content when I engaged Ms. Stasio and 13 Mr. Penner in discussions regarding defects in their filings. 14 65. Nicholas Penner continues to be the second name at the top of every filing by 15 Cuttone and Associates within this case, and as such, notice to him is effective as notice to the 16 firm and notice to Mr. Cuttone. 17 FEES AND COSTS 18 66. Defendants incurred fees and costs as a result of Plaintiffs sanctionable actions. 19 The fees and costs are detailed here below. 20 67. A PDF containing line item descriptions is attached hereto as Exhibit H and has 21 been blinded to protect attorney-client confidences where appropriate. 22 68. Fees were charged primarily by "JRC" and by "LAG." "JRC" is my own initials. 23 I have worked for Coleman & Horowitt since April 1, 2021. I was admitted to the California 24 State Bar on May 7, 2022. My initial billing rate was set at $225 per hour, and that rate has 25 increased annually based upon my performance as an attorney and market adjustments. At 26 present, my billable rate is $350 per hour. 27 69. "LAG" is Lisa Gojich, who is a paralegal. Lisa Gojich has been working as a 28 paralegal for more than twenty-five years. She was hired by Bowman & Associates, which 7 DECLARATION OF JARED R. CLEMENCE IN SUPPORT OF MOTION FOR SANCTIONS 1 operated under many names. In or around 2020, Bowman & Associates merged with Coleman 2 & Horowitt and assumed Coleman & Horowitt's names. Ms. Gojich's rates have been increased 3 over time based upon both her years of experience, her skill, and increases in the market. She 4 currently has a billable rate of $225 per hour. 5 70. I and Lisa both experienced rate changes during the course of the work described 6 herein. For that reason, the time and rate is included for all calculations so that the court may 7 clearly determine the rate billed at the time of the work. 8 71. The fees and costs requested here to not include any time or costs associated with 9 time or costs that Defendants would have incurred regardless of respondent's behavior. This 10 includes and specifically references time billed for drafting and filing an answer to the second 11 amended complaint. 12 72. Total fees and costs are summarized in the table below. The detailed explanations 13 appear in the sections that follow: 14 Description Costs Fees Total 15 Drafting and Filing $12.72 $72.00 $84.72 the Mandatory 16 Extension 17 Drafting, Replying, $103.35 $4,285.00 $4,388.35 18 and Presenting a Successful Demur 19 Drafting, Replying, $103.35 $5,369.50 $5,472.85 20 and Presenting 21 Motion for Sanctions (Includes estimated 22 values) 23 Totals $219.42 $9,726.50 $9,945.92 24 25 A. Mandatory Extension 26 73. Defendants incurred a total of $84.72 in costs and fees in filing the mandatory 27 extension declaration. 28 8 DECLARATION OF JARED R. CLEMENCE IN SUPPORT OF MOTION FOR SANCTIONS 74. These costs and fees were necessary because Plaintiffs would not voluntarily 2 extend the deadline until a date after they returned from vacation. 3 75. The fees consisted of 0.1 hours of attorney time billed at $350 per hour and 0.3 4 hours of paralegal time billed at $210 per hour. 5 76. Filing costs were $12.72. 6 B. Demur 7 77. Drafting and Editing Demur: In total, Defendants incurred $75.65 in costs and 8 $2,970 in fees. The fees are broken down as follows: 8.1 hours of attorney time were spent 9 drafting the motion, notice of motion, points and authorities, and declarations. The 8.1 hours of 10 attorney time was billed at $350 per hour for a total of $2,835 in fees. In addition to attorney 11 time, the drafting editing and filing of the Sent: Thursday, December 21, 2023 9:49 AM To: Jared R. Clemence Cc: Brian Cuttone ; Craig Tristao ; Lisa A. Gojich ; Veronica Kearney Subject: Re: Pavone v. Denney: Meet and Confer Good morning, Mr. Cuttone will not be available until January 6, 2024. Why does this need immediate attention? Thank you, Rebecca Stasio Office Manager and Legal Assistant to Brian K. Cuttone, Esquire Nicholas J. Penner, Esquire Cuttone & Associates 5380 North Fresno Street, Suite 102 Fresno, California 93710 Phone: 559.228.8490 Fax: 559.421.1991 This message is from Rebecca Stasio, Legal Assistant to Brian K. Cuttone, Attorney at Law, Cuttone & Associates. This message and any attachments may contain legally privileged or confidential information, and are intended only for the individual or entity identified above as the addressee. If you are not the addressee, or if this message has been addressed to you in error, you are not authorized to read, copy or distribute this message and any attachments, and we ask that you please delete this message and any attachments (including all copies) and notify the sender by return e-mail, facsimile 559.421.1991, or by phone at 559.228.8490. Delivery of this message and any attachments to any person other than the intended recipient{s) is not intended in any way to waive confidentiality or a privilege. All personal messages are the express views of the sender, which are not to be attributed to any other person, and may not be copied or distributed without this statement. On Dec 21, 2023, at 9:43 AM, Jared R. Clemence wrote: Mrs. Stasio: I received the away message from Mr. Cuttone regarding his absence over the next week. The below email requires immediate attention. Can you please forward the message to the attorney who is handling Mr. Cuttone's work while he is away. Kind regards, Jared R. Clemence 2 Jared R. Clemence Associate Phone: (661) 325-1300 Email: jclemence@ch-law.com 2032 17th Street Bakersfield, California 93301 www.ch-law.com CONFIDENTIALITY NOTICE: The information contained in this e--maii is intended only for the confidential use of the recipient\s) named anove and is legally privileged If you are not tr1e intended recipient, you have received this e-mail in error. Do not read it and destroy the e-mail without saving it. Thank you. Debt Collection Notice A portion of this law practice deals with dflbt collection. If you are a debtor please be advised anything you communicate to this office wiil be used in the collection of your outstanding debt You should contact a lawyer to review t11is commun:cation b,3fore you respond. Pay Onlinehttps://secure.lawpay.com/pages/ch-law/operatlng For your protectton You should carry out your own virus check before opentng any attachn1.ent \tile accept no !iabi!tty for any !oss or darn age that may be caused by soff'ware viruses or mterception/interruptioo of this e~rr1ail From: Jared R. Clemence Sent: Thursday, December 21, 2023 9:39 AM To: Brian Cuttone Cc: Rebecca Stasio ; Craig Tristao ; Veronica Kearney ; Lisa A.Gojich Subject: Pavone v. Denney: Meet and Confer Mr. Cuttone: This is an attempt to meet and confer regarding a demur to the second amended complaint and a motion to strike portions of the filed answer. You have filed an answer and a second amended complaint that includes claims that have already been ruled upon within this same case. All allegations or claims that Alicia Denney acquired title by fraud from David Pavone are already decided within this same case by the ruling on the initial demur. Please respond to this email stating: 1. That you intend to file an amended answer removing all defenses based upon fraud. 2. That you intend to file an third amended complaint removing all claims that title was acquired by fraud. (Specifically referencing the first cause of action.) 3. That, because of #1 and #2 above, that I do not need to file a demur or a motion to strike. Please note also that because your clients have taken a third (possibly fourth) bite at the same apple upon which the judge has already ruled, that I may file a request for sanctions against them for running up the fees and costs of Mr. and Mrs. Denney. I hope to receive a response from you by December 26 1\ but preferably before end of business tomorrow. Thank you. 3 Kind regards, Jared R. Clemence Jared R. Clemence Associate Phone: (661) 325-1300 Email: jclemence@ch-law.com 2032 17'h Street Bakersfield, California 93301 www.ch-law.com CONFIDENTIALITY NOTICE: The information contained in this e-mail is inteode(J only for the confidential use of :!,e recipient(s) named above and :s legally privileged. If you are not tile intended recipient you have rnceived this e-rnai! iri error. Do not mad it and destroy the e-rnaii without saving it Thank Y'JlL Debt Collection Notice: A portion of this law practice deais wiih debt collHction. If you are a debior please be advised anyth:ng you comrmmicaie to this office will be used iii the collection of your outstanding debt You should contact a lawyer to review tl1is communication before you respond. Pay Onlinehttps://secure.lawpay.com/pages/ch-law/operating For vou: protection- You should cony out your own vi,-us check before open/ng any attachment We eccept no liability for any loss or damage ttrat :nay be caused by· software V!(uses or interception/interr~iption of 01js e--rnai! 4 EXHIBIT "B" Jared R. Clemence From: Brian Cuttone < bcuttone@cuttonelaw.com > Sent: Thursday, December 21, 2023 9:39 AM To: Jared R. Clemence Subject: Out of Office Auto-Reply Re: Pavone v. Denney: Meet and Confer I will be out of the office from December 18, 2023 to January 5, 2024. If you have a matter that requires immediate attention, please contact Rebecca Stasio at rstasio@cuttonelaw.com or at the telephone number below. ******I will not have access to email while I am out. I DO NOT accept ex parte notice via email while I am out ofthe office.***** Thank you. Brian K. Cuttone, Esq. Cuttone & Associates 5380 N. Fresno Street, Suite 102 Fresno, California 93710 Telephone: 559.228.8490 Facsimile: 559.421.1991 Thank you, Brian K. Cuttone, Esquire Cuttone & Associates 5380 North Fresno Street, Suite 102 Fresno, California 93710 Phone: 559.228.8490 Fax: 559.421.1991 This message is from Brian K. Cuttone, Attorney at Law, Cuttone & Associates. This message and any attachments may contain legally privileged or confidential information, and are intended only for the individual or entity identified above as the addressee. If you are not the addressee, or if this message has been addressed to you in error, you are not authorized to read, copy or distribute this message and any attachments, and we ask that you please delete this message and any attachments (including all copies) and notify the sender by return e-mail, facsimile 559.421.1991, or by phone at 559.228.8490. Delivery of this message and any attachments to any person other than the intended recipient(s) is not intended in any way to waive confidentiality or a privilege. All personal messages are the express views of the sender, which are not to be attributed to any other person, and may not be copied or distributed without this statement. 1 EXHIBIT "C" Jared R. Clemence From: Jared R. Clemence Sent: Thursday, December 21, 2023 3:19 PM To: 'Nick Penner' Cc: 'Rebecca Stasio'; Craig Tristao; Lisa A. Gojich; Veronica Kearney; 'Brian Cuttone' Subject: RE: Pavone v. Denney: Notice of Intent for Sanctions with Law Mr. Penner: I realize and acknowledge that the 30-days ends at a bad time. I understand that your office is short staffed and this would be better handled after the holidays. May I suggest that you agree to extend the timeline for demur to 01/12/2024. That will give your team time to return from the holidays and to evaluate the legal landscape. Are you willing to grant an extension of time, given the holidays, to 01/12/2024? Kind regards, Jared R. Clemence Associate Phone: (661) 325-1300 Email: jclemence@ch-law.com 2032 17th Street Bakersfield, California 93301 www.ch-law.com CONFIDENTIALITY NOTICE: The information contained in this e-mail is intended only for the confidential use of the recipient(s) named above and is legally privileged. If you are not the intended recipient, you have received this e-mail in error. Do not read it and destroy the e-mail without saving it. Thank you. Debt Collection Notice: A portion of this law practice deals with debt collection. If you are a debtor please be advised anything you communicate to this office will be used in the collection of your outstanding debt. You should contact a lawyer to review this communication before you respond. Pay Onlinehttps://secure.lawpay.com/pages/ch-law/operating For your protection: You should carry out your own virus check before opening any attachment. We accept no liability for any loss or damage that may be caused by software viruses or interception/interruption of this e-mail. -----Original Message----- From: Jared R. Clemence Sent: Thursday, December 21, 2023 11:56 AM To: Nick Penner Cc: Rebecca Stasio ; Craig Tristao ; Lisa A. Gojich ; Veronica Kearney ; Brian Cuttone Subject: Pavone v. Denney: Notice of Intent for Sanctions with Law Mr. Penner: As to the timelines, 30 days is a window within which an attorney may allocate work. One should expect that the first two weeks might be used to review the documents, the law, and the relevant next actions. Such things must be determined before one meets and confers. I did that during that time. Yesterday, I just finished several matters that occupied my time during much of the second and third weeks. Your case received my first attention as soon as I was able. That your office is unprepared to meet and confer during the window in which they were expecting a possible response seems like something that should have been calculated, foreseen, or expected when you serve a complaint on November 27th. I'm not objecting to working through the holidays, the timeline was set by your filings, and I am bound by the time set by the law. Whereas it is the respondents' right to use the entirety of the 30-days to prepare a response, it is up to the respondent to fit the various tasks within their calendar as best they can within that time frame. As to my findings on review of your second amended complaint, I have determined that since the demur to your same complaint was successful twice before that a demur is appropriate again. I have further determined that since the cause of action is not modified in any substantial way from the original complaints to comport with the prior rulings that the cause of action is "totally and completely without merit or for the sole purpose of harassing an opposing party." (Code Civ. Proc.,§ 128.5, subd. (b)(2).) As to the first matter, the demur, I must meet and confer before filing a demur, this email and the ones proceeding that are an attempt to comply with my legal obligations before I file my demur on or before December 27th. As to the second matter, sanctions, I am required to give you notice of my intent to file sanctions so that you may take appropriate action. Code of Civil Procedure sections 128.5 and 128.7 gives the Denney's right to demand sanctions for a frivolously filed complaint. Your filings continue to be frivolous. The issues raised in the second amended complaint's first cause of action were ruled upon in the demur to the first complaint, they were ruled upon again in the second amended complaint. Now your office has submitted them for a third time after having already received multiple judgments on the matter. Sanctions may not be requested until the moving party has given notice to the other so that the other may avoid sanctions by withdrawing the offending complaint. (Code Civ. Proc, § 128.5, subd. (c).); See also Bucur v. Ahmad (2016) 244 Cal.App.4th 175, 190-191.) Thus, I am obligated to announce my intent, and you have a limited time in which to respond appropriately. Sanctions may include all attorney fees and costs that were caused by the frivolous complaint. I am going to commence work on the demur to your second amended complaint with the knowledge that the filing deadline is on the 27th. You have received notice that I intend to seek sanctions. You have the opporunity now to give me notice of your intent to withdraw your complaint and avoid any unnecessary expenditures for the Denneys that have arrisen from what I hope was an oversight and not an intentional attempt to raise a frivolous complaint. If you give notice on or before the 26th that you intent to withdrawal your complaint and that I do not need to file the demur, I will not seek sanctions against your client. I'd prefer that you give notice sooner than that so that the Denneys may avoid unnecessary costs and fees. Because there is no timeline on the motion to strike, we are not up against the same clock, but the timeline for the demur and the similarity of the issues compels us to address them at the same time. Please also give notice of your intent to amend the answer, which is sanctionable under the same law cited above. 2 Kind regards, Jared R. Clemence Associate Phone: (661) 325-1300 Email: jclemence@ch-law.com 2032 17th Street Bakersfield, California 93301 www.ch-law.com CONFIDENTIALITY NOTICE: The information contained in this e-mail is intended only for the confidential use of the recipient(s) named above and is legally privileged. If you are not the intended recipient, you have received this e-mail in error. Do not read it and destroy the e-mail without saving it. Thank you. Debt Collection Notice: A portion of this law practice deals with debt collection. If you are a debtor please be advised anything you communicate to this office will be used in the collection of your outstanding debt. You should contact a lawyer to review this communication before you respond. Pay Onlinehttps://secure.lawpay.com/pages/ch-law/operating For your protection: You should carry out your own virus check before opening any attachment. We accept no liability for any loss or damage that may be caused by software viruses or interception/interruption of this e-mail. -----Original Message----- From: Nick Penner Sent: Thursday, December 21, 2023 10:26 AM To: Jared R. Clemence Cc: Rebecca Stasio Subject: Pavone v. Denney Dear Mr. Clemence, Mr. Cuttone is out until January 6, 2024 and I am out until December 29, 2023. However, Ms. Stasio contacted me to inform me that you have some "emergency" and need an immediate response. I see that you have threatened sanctions if you have to file a demurrer and motion to strike. Please inform me under what authority you will be seeking sanctions and against whom so I can understand your threat and explain it to my client. As to your deadline to file a demurrer, you have had more than ample time to meet and confer with our office regarding any issues you believe are relevant and have chosen not to do so until the last minute. Your dilatory handling of this matter does not create an emergency for this office. As such, please send a more detailed analysis of any perceived problems with the Second Amended Complaint and I will pass that information to Mr. Cuttone when I can get ahold of him. Thank you, Nicholas J. Penner, Esquire Cuttone & Associates 3 5380 North Fresno Street, Suite 102 Fresno, California 93710 Phone: 559.228.8490 Fax: 559.421.1991 This message is from Nicholas J. Penner, Attorney at Law, Cuttone & Associates. This message and any attachments may contain legally privileged or confidential information, and are intended only for the individual or entity identified above as the addressee. If you are not the addressee, or if this message has been addressed to you in error, you are not authorized to read, copy or distribute this message and any attachments, and we ask that you please delete this message and any attachments (including all copies) and notify the sender by return e-mail, facsimile 559.421.1991, or by phone at 559.228.8490. Delivery of this message and any attachments to any person other than the intended recipient(s) is not intended in any way to waive confidentiality or a privilege. All personal messages are the express views of the sender, which are not to be attributed to any other person, and may not be copied or distributed without this statement. 4 EXHIBIT "D" Jared R. Clemence From: Rebecca Stasio < rstasio@cuttonelaw.com > Sent: Thursday, December 21, 2023 4:04 PM To: Craig Tristao; Jared R. Clemence Cc: Lisa A. Gojich; Veronica Kearney Subject: Pavone v Denney Attachments: 2023-12-21 Ntc of Unavail_011.pdf Good afternoon, Please find attached a Notice of Unavailability Thank you, Rebecca Stasio Office Manager and Legal Assistant to Brian K. Cuttone, Esquire Nicholas J. Penner, Esquire Cuttone & Associates 5380 North Fresno Street, Suite 102 Fresno, California 93710 Phone: 559.228.8490 Fax: 559.421.1991 This message is from Rebecca Stasio, Legal Assistant to Brian K. Cuttone, Attorney at Law, Cuttone & Associates. This message and any attachments may contain legally privileged or confidential information, and are intended only for the individual or entity identified above as the addressee. If you are not the addressee, or if this message has been addressed to you in error, you are not authorized to read, copy or distribute this message and any attachments, and we ask that you please delete this message and any attachments (including all copies) and notify the sender by return e-mail, facsimile 559.421.1991, or by phone at 559.228.8490. Delivery of this message and any attachments to any person other than the intended recipient(s) is not intended in any way to waive confidentiality or a privilege. All personal messages are the express views of the sender, which are not to be attributed to any other person, and may not be copied or distributed without this statement. 1 EXHIBIT "E" I BRIAN K. CUITONE (SBN 201314) NICHOLAS J. PENNER (SBN 344429) 2 CUITONE & ASSOCIATES 5380 N. Fresno Street, Suite 102 3 Fresno, California 93710 Telephone: 559.228.8490 4 Facsimile: 559.421.1991 5 6 Attorneys for David Pavone, as Trustee of the Jerome Pavone Living Trust 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF KERN 10 DAVID PAVONE, as Trustee of the ) Case No.: BCV-23-100656 11 JEROME PAVONE LIVING TRUST ) ) 12 ) Plaintiff, ) NOTICE OF UNAVAILABILITY 13 V. ) ) 14 ALICIA DENNEY, an individual, also ) known as ALICIA YUBETA; JOHN ) 15 B. DENNEY; All Persons Unknown, ) Claiming Any Legal or Equitable ) 16 Right, Title, Estate, Lien, or Interest in ) the Subject Property described herein ) 17 Adverse to Plaintiffs Title and DOES ) 1-20, ) 18 ) Defendants. ) Complaint Filed: March 3, 2023 19 ) --,-,,...,,..,,.,,,.----""="=,,.._---,--=-.,,..,,....-,.--=-- ) 20 ALICIA DENNEY, an individual, also ) known as ALICIA YUBETA, ) 21 ) Cross-Complainant ) 22 ) V. ) 23 ) JEROME PAVONE, an individual and ) 24 DAVID PAVONE, as Trustee of the ) JEROME PAVONE LIVING TRUST; ) 25 and all persons unknown claiming any ) interest in the property. ) 26 ) __________.: C: .:.r.: .:os=s-=-De;;. ;: ;=.;fe:;.: :n==d=an.: .: :ts: . :. _ ) 27 II 28 Notice of Unavailability TO THE COURT. ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 2 NOTICE IS HEREBY GIVEN that during the period of December 2L 2023 through 3 January 5, 2024, Brian K. Cuttone: Nicholas J. Penner and Cutlone & Associates. Attorneys for 4 Plaintiff, Adrienne Barraza, will be unavailable fi:Jr any purpose whatsoever, including but not 5 limited to, receiving notices of any kind, responding to exparte applications, court appearances, 6 depositions, or law and motion hearings. Kncnvingly and willfully scheduling a conflicting 7 appearance without good cause or necessity may constitute sanctionable conduct. Tenderloin 8 Housing Clinic v. 5ixtrks (l 982) 8 Cal.App.4 111 299. 9 10 Dated: OCTOBER 30, 2023 Respectfully submitted, 11 CUTTONE & ASSOC IATES 12 13 NICHOLAS J. PENNER, Attorney 14 for Plaintiff, Jerome Pavone and David Pavone, as Trustee of the 15 Jerome Pavone Living Trust 16 17 18 19 20 21 22 24 25 26 27 28 Notice of Unavailability PROOF OF SERVICE 2 STJ\TE OF CJ\LlFORNIA ,., ) ss. -' COUNTY OF FRESNO ) 4 I am employed in the County of Fresno, State of California. I am over the age of 18 and not a party to the within action; my business address is 5380 N. Fresno Street, Suite 102, Fresno, California 93710. 5 On December 21. 2023. I served the foregoing doeuments(s) described as 6 NOTICE OF UNAVAILABILITY 7 on the interested parties in this action by placing 8 (X) a true copy or ( ) the original thereof enclosed in a sealed envelope addressed as follows: 9 (. ) (BY MAIL) I am readily familiar with the firm's practice of collection and processing co1Tespondence for mailing. Under that practice it would be deposited with the LI .S. Postal Service on that same day with postage thereon fully prepaid at Fresno, California, in the ordinary course of business. I am aware that 11 on motion of the pa1iy served, service is presumed invalid if the postal cancellation date or postage meter date is more than one day after the date of deposit for mailing in this affidavit. 12 • Jared R. Clemence/Coleman & Horowitt LLP/2032 17111 Street/Bakersfield, CA 9330 I 13 (X) BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused a copy of the documents to be sent from 14 email address rstasio@cuttonelaw.com to the persons at the e-mail addresses listed below. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that 15 the transmission was unsuccessful. 16 • Jared R. Clemence/Coleman & Horowitt LLP/jclemence@ch-law.com ( ) (BY PERSONAL SERVICE) I caused such envelope to be delivered by hand to: 17 18 ( ) (BY FACSIMILE) l faxed such document pursuant to Rule 2008, California Rules or Court The facsimile machine I used complied with Rule 2003, California Rules ofComi, and no error was reported 19 by the machine. Pursuant to Rule 2008(c), California Rules of Court, the machine printed a transmission record of the transmission, a copy of which is attached to this declaration. The name and facsimile 20 telephone number of the person(s) served is as follows: 21 {X) (STATE) I declare under penalty of perjury under the laws of the State of Califbrnia that the foregoing is true and correct 22 _., ?'"' ( ) (FEDERJ\L) I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. 24 Execukd on December 21, 2023, at Fresno, California. r_.) 26 Rebecca Stasio 27 28 3 Notice of Unavailability EXHIBIT "F" Jared R. Clemence From: Jared R. Clemence Sent: Wednesday, January 10, 2024 11 :59 AM To: 'Brian Cuttone' Cc: 'Rebecca Stasio'; Craig Tristao; Veronica Kearney; Lisa A. Gojich Subject: RE: Pavone v. Denney: Meet and Confer Dear Mr. Cuttone and Mr. Penner: This email is a second attempt to meet and confer and a renewal of notice delivered on December 21 regarding potential sanctionable actions contained within your answer and your second amended complaint. Please note the string of communications below. Mr. Penner and I had a chance to discuss the claim for sanctions briefly. There is still time to withdrawal the second amended complaint or file a third amended complaint without the first cause of action. I will also stipulate to an amended answer removing all defenses related to fraudulent transfer of title. The demur is based upon the same grounds as the prior demurs. Please take note that at this moment, I plan to file a demur, a motion to strike portions of the answer, and a motion for sanctions. The deadline for the demur is currently pushed back to January 28, 2024. (60 days from November 27, 2023, plus two for email service.) Kind regards, Jared R. Clemence C'd COU!MAM & HOAOWfTT, l.LP Associate Phone: (661) 325-1300 Email: jclemence@ch-law.com 2032 17th Street fll PHI.\IEHCS Bakersfield, California 93301 CONFIDENT!AUTY NOTICE. The information contained in this e-mail is intended only for tho confidential use of tho rocipient(s) named above and is iegaily privileged. If you are not tho intended recipient. you have received this e-mail in error. Do not read it and destroy ihe e-mail without saving IL Thank you. Debt Collection Notice: A portion of this law practice deals with debt collection. If you are a debtor please be advised anything you communicate to this office will be used in the colleciion of your outst,mding debt. You should contact a lawyer to review this communication before you respond. Pay Onlinehttps:/lsecure.lawpay.com/pages/ch-law/operating For your protection. You st1oufd carry out your O"iAcn virus check before opening any attachrnent vt/e accept no fiabtlity for aoy loss or da;nage that rnay be caused by software viruses or mterceptron1Jnterruption of th;s e-maii From: Jared R. Clemence Sent: Thursday, December 21, 2023 9:39 AM To: Brian Cuttone Cc: Rebecca Stasio ; Craig Tristao ; Veronica Kearney ; Lisa A. Gojich Subject: Pavone v. Denney: Meet and Confer Mr. Cuttone: This is an attempt to meet and confer regarding a demur to the second amended complaint and a motion to strike portions of the filed answer. You have filed an answer and a second amended complaint that includes claims that have already been ruled upon within this same case. All allegations or claims that Alicia Denney acquired title by fraud from David Pavone are already decided within this same case by the ruling on the initial demur. Please respond to this email stating: 1. That you intend to file an amended answer removing all defenses based upon fraud. 2. That you intend to file an third amended complaint removing all claims that title was acquired by fraud. (Specifically referencing the first cause of action.) 3. That, because of #1 and #2 above, that I do not need to file a demur or a motion to strike. Please note also that because your clients have taken a third (possibly fourth) bite at the same apple upon which the judge has already ruled, that I may file a request for sanctions against them for running up the fees and costs of Mr. and Mrs. Denney. I hope to receive a response from you by December 26 th , but preferably before end of business tomorrow. Thank you. Kind regards, Jared R. Clemence Jared R. Clemence Associate Phone: (661) 325-1300 COLEMAN & HOAOW1TT, LLP Email: jclemence@ch-law.com ATT.oR'NiYS AT"'LAw· · · 2032 17'h Street [IJ PHI\IEHLS Bakersfield, California 93301 CONFIDENTIALITY NOTICE: The info