Pentamerous, LLC v. Priest

Goel (2005) 35 Cal.4th 1094, 1104.) In the present case, plaintiff moves for reconsideration based on “new facts”, namely two declarations that it claims it was unable to present in time for the last hearing on the motion to expunge. One of the declarations is from Virginia Shubin Barnett and the other is from Candice Scelzi. Plaintiff contends that these newly obtained declarations show that Virginia did in fact execute the Virginia Shubin Barnett Living Trust,

which is the Trust that allegedly sold the subject properties to plaintiff, and that she authorized Tonie Priest to act as the Trustee in the event that she became incapacitated. Plaintiff also claims that Virginia’s declaration shows that Priest was a longtime friend of hers and that she freely gave him control over the Trust if she became incapacitated. Scelzi’s declaration also allegedly shows that she found that Virginia had become incapacitated, and that she informed Priest of this fact in writing, so Priest was authorized to sell the properties to plaintiff on behalf of the Trust.

Thus, plaintiff contends that the court should grant reconsideration of the order granting the motion to expunge. However, to the extent that plaintiff relies on Scelzi’s declaration as a “new fact” supporting reconsideration, plaintiff admits that it filed Scelzi’s declaration with the court prior to the court issuing its decision on the motion to expunge. Plaintiff filed the Scelzi declaration on December 11, 2025, the same day that the court heard oral argument on the motion. Thus, Scelzi’s declaration is not a “new fact” that would justify reconsideration, as it was presented to the court before the hearing on the motion to expunge.

The court considered the declaration and determined that it was insufficient to meet plaintiff’s burden of showing that its real property claim was probably valid. Therefore, the court finds that Scelzi’s declaration is not a “new fact” that justifies reconsideration of its decision. Also, even if Scelzi’s declaration is a new fact, the court finds that the declaration fails to show that plaintiff’s claim is probably valid. (Code Civ. Proc., § 405.32.) Scelzi purports to verify that Priest was a longtime friend of Virginia, that she witnessed the creation of the Trust, and that she later determined that Virginia was incompetent and informed Priest of Virginia’s incompetence in writing.

However, Scelzi’s statements are directly contradicted by Virginia’s own verified answer and declaration filed in the case in October of 2021, where she denied forming the Trust or making Priest Successor Trustee, and claimed that she does not know and has never met Priest. (See Virginia Shubin Barnett decl. filed October 12, 2021, and verified answer filed October 27, 2021.) Also, Priest has admitted that Scelzi is his current or former girlfriend, and he stated in a social media post that he is engaged to Scelzi. (Exhibit A to Streiff decl.; Exhibit A to Mireles decl., p. 17.)

Given Priest’s own credibility problems and his obvious personal interest in having the Trust declared to be valid, and in light of his apparently intimate relationship with Scelzi, as well as the fact that her statements are contradicted by Virginia’s own sworn statements, the court intends to find that Scelzi’s declaration is not credible and does not support reconsidering the decision to expunge the lis pendens. Next, while the alleged new declaration of Virginia does qualify as a “new fact”, the court finds that it lacks credibility and fails to support reconsideration of the court’s prior order.

First, the new declaration completely contradicts Virginia’s prior declaration and verified answer filed in October of 2021. As mentioned above, Virginia previously stated that she did not execute the Trust, that the Trust is fraudulent, and that she did not transfer her properties into the Trust. She also denied ever meeting or knowing Priest, and denied that she designated him as Successor Trustee for the Trust. (Virginia Shubin Barnett decl. of October 12, 2021, ¶¶ 17- 23.) She made similar statements in her verified answer to the complaint. (Verified Answer filed October 27, 2021.)

However, in her new purported declaration, Virginia states that she did execute the Trust, and that she has known Priest for many years and that she designated him as Successor Trustee in the event she became incapacitated. (Virginia Shubin Barnett decl. filed on January 5, 2026, ¶¶ 2, 3.) She also claims that her signatures appear on the 4

transfers of properties into the Trust. (Id. at ¶ 4.) She admits that she did sign the declaration to support the motion to expunge lis pendens in 2021, but she now claims that she did not review or understand the contents of the declaration, and that she was financially pressured into signing by Global Discoveries, which was paying her legal fees at the time. (Id. at ¶ 6.) She felt pressured and taken advantage of by Global Discoveries, and she eventually abandoned any involvement in the case because of the pressure. (Ibid.) “To the extent that there are any discrepancies between this declaration and the 2021 Declaration, this declaration should govern.” (Ibid.)

Yet there are several reasons why Virginia’s new declaration is not credible and therefore the court intends to disregard it. First, the court has already found that Virginia is incompetent, which renders any statements that she makes now suspect, especially since she is no longer represented by counsel. Plaintiff’s owners, Ruben and Alec Mireles, claim that they located Virginia and obtained her declaration, but they do not state how they located her or how they persuaded her to provide them with a declaration that appears to help them at her expense.

There appears to be a real possibility that they might have pressured her into a signing a declaration that favors them, and that contradicts her prior declaration. Also, while Virginia has now claimed that she was pressured into signing the October 2021 declaration by Global Discoveries, which was allegedly funding her defense, Virginia’s former attorney, Jordan Bennett, has denied that Global Discoveries funded Virginia’s defense or that it exerted any pressure or had any influence on her declaration. (Bennett decl., ¶¶ 1-7.)

Bennett drafted the declaration for Virginia, and he states that she had an adequate opportunity to review the declaration and raise any questions or concerns with him. (Id. at ¶ 2.) He has no concerns that her declaration was improperly influenced or coerced in any way. (Ibid.) He did not share her declaration with anyone other than Virginia before it was filed, and therefore he has no reason to believe that there was any outside influence on her declaration. (Id. at ¶ 3.) Global Discoveries and Andrew Katakis had no dealings with Bennett, and Virginia never mentioned Katakis or Global Discoveries at any time during his representation of her. (Id. at ¶ 4.)

Bennett also states that Virginia was personally responsible for paying her legal bills, and he has no knowledge of any third-party payors or guarantors involved in the representation. (Id. at ¶ 5.) In fact, Bennett eventually withdrew from his representation of Virginia because she was not paying for his services, among other reasons. (Id. at ¶ 6.) Thus, Bennett concludes that neither Katakis nor Global Discoveries was involved in Virginia’s defense. (Id. at ¶ 7.) Katakis and Byerly have also filed their own declarations, in which they deny paying for or being involved in Virginia’s defense at the time the declaration was filed.

They deny any knowledge of the declaration before it was filed, and deny that they had any influence or what Virginia said in the declaration. Thus, there is strong evidence that Virginia was not unduly influenced or coerced by Katakis or Global Discoveries into signing the declaration that she signed in October of 2021. Also, Virginia’s verified answer repeats many of the same statements made in her declaration, including that the Trust is fraudulent and that she did not intend to authorize anyone to transfer the properties without her knowledge and consent.

Plaintiff has not provided any explanation for why Virginia would made these statements under penalty of perjury if they were not true, especially when she was represented by counsel and she was paying for her own defense at the time. It seems far more likely that her 5

new declaration is false or the product of undue influence, as she is now unrepresented and incompetent and thus easier to manipulate into signing a false declaration. In addition, plaintiff has submitted the declaration of a forensic document examiner, Sean Espley. Espley states that, based on his comparison of the signature on the purported Trust, the Last Will and Testament, the assignments of property dated August 4, 2010, the quitclaim deed from Virginia to Priest, and Virginia’s new declaration with other examples of her signature, there is strong evidence that Virginia did not sign the questioned documents. (Espley decl., ¶ 6.)

He believes that it is more likely than not that someone other than Virginia signed the new declaration and the Trust documents. (Id. at ¶¶ 6-9.) As a result, the court intends to find that Virginia’s new declaration is not credible, as it is contradicted by her own prior declaration and verified answer, and the new declaration does not provide a credible explanation for the complete change in her position. While the new declaration claims that Virginia was pressured by Global Discoveries into signing the October 2021 declaration, this claim is rebutted by the testimony of Virginia’s former counsel as well as the agents of Global Discoveries.

Indeed, it seems much more likely that the new declaration is the product of undue influence or coercion, as Virginia is now unrepresented by counsel and incompetent to manage her own affairs. The testimony of the forensic document examiner also supports the conclusion that Virginia did not sign the new declaration. Therefore, the court intends to disregard Virginia’s new declaration. Without the new declaration, there are no “new facts” to support the motion for reconsideration. The other evidence that plaintiff cites in its motion are documents and evidence that the court has already considered and rejected as irrelevant, such as the alleged texts from Katakis to Priest and the filings in the prior unlawful detainer action filed by Dr.

Barnett against Virginia. None of this evidence is new, and in any event it has no bearing on whether plaintiff has a probability of prevailing on its real property claims. Therefore, the court intends to deny the motion for reconsideration.

Motions to Compel Further Responses: The court also intends to deny plaintiff’s motions to compel further responses to the special interrogatories and requests for production of documents. The motions were not timely filed, so the court has no jurisdiction to consider them. Under Code of Civil Procedure section 2030.300, subdivision (c), “Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories.” There is an identical 45-day deadline to bring motions to compel further responses to requests for production of documents. (Code Civ. Proc., §§ 2031.310, subd. (c)).)

Thus, if the propounding party fails to bring their motion to compel further responses within 45 days of service of the responses, or any later date agreed to in writing by the parties, the party waives any right to move to compel a further response to the disputed requests. The 45-day deadline to bring a motion to compel is mandatory. The court has no jurisdiction to grant a motion brought after the deadline has run, and such an untimely motion must be denied. (Golf & Tennis Pro Shop, Inc. v. Superior Court (2022) 84 Cal.App.5th 127, 137; Vidal Sassoon, Inc. v. Superior Court (1983) 147 Cal.App.3d 683.) 6

Here, Dr. Barnett served his responses to the discovery on October 21, 2025 by electronic delivery and regular United States mail. (Exhibits C and D to Yeager decl.) Thus, plaintiff had 47 days from October 21, 2025 in which to file its motions to compel further responses. There is no evidence that the parties ever agreed in writing to extend the filing deadline. On the other hand, the running of the deadline for filing the motions was tolled from the date of filing of plaintiff’s request for pretrial discovery conference until the court ruled on the request. (Fresno Sup.

Ct. Local Rule 2.1.17 G.) The court issued its order denying the request for a pretrial discovery conference and granting leave to file the motions on December 10, 2025. The court also stated in its order that the time to file the motions had been tolled by 15 days. (December 10, 2025 Order Denying Pretrial Discovery Conference.) Thus, plaintiff had until December 22, 2025 in which to file its motions to compel further responses to the discovery. However, plaintiff did not file its motions to compel further responses until January 5, 2026, two weeks after the deadline expired.

While the court was partially closed due to reduced staffing during the holidays, the clerk’s office was still accepting filings on December 22, 2025. Therefore, since plaintiff did not file its motions until January 5, 2026, its motions are untimely and the court has no jurisdiction to hear their merits. Finally, the court intends to grant sanctions in favor of Dr. Barnett, as plaintiff has brought an untimely motion to compel without any substantial justification. (Code Civ. Proc., § 2030.300, subd. (d); 2031.310, subd. (h).)

The court will grant sanctions in favor of Dr. Barnett and against plaintiff in the amount of $1,212.50 based on two and a half hours of attorney time billed at $485 per hour. (Streiff decl., ¶ 7.)

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: KCK on 04/27/26. (Judge’s initials) (Date)

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