Onions Etc., Inc. et al v. Z & S Fresh, Inc. et al

Filing 393

STIPULATION and ORDER signed by Judge Oliver W. Wanger on 12/4/09 regarding Agreement and Resolution of PACA Claim Amounts of PACA Claimant / Intervening Plaintiff, Del Monte Fresh Produce, N.A.(Lundstrom, T)

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WALTER & WILHELM LAW GROUP a Professional Corporation Riley C. Walter (SBN 91839) Norman D. Morrison IV (SBN 212090) 8305 North Fresno Street, Ste. 410 Fresno, CA 93720 Telephone: [phone] Facsimile: [phone] E-mail: [e-mail] Attorneys for Defendants, Z&S Fresh, Inc. and Martin J. Zaninovich UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA ­ FRESNO DIVISION ONIONS, ETC., INC. and DUDA FARM FRESH FOODS, INC., Plaintiff, vs. Z&S FRESH, INC. fdba Z&S DISTRIBUTING CO., INC., MARTIN J. ZANINOVICH, LOREN SCHOENBURG, AND MARGARET aka MARGE SCHOENBURG, Defendants AND INTERVENING ACTIONS Defendants Z&S Fresh, Inc., fdba Z&S Distributing Co., Inc. and Martin J. Zaninovich ("Defendants"), and PACA Claimant/Intervening Plaintiff Del Monte Fresh Produce, N.A. (the "PACA Claimant")(collectively the "Parties") herein agree and stipulate regarding resolution of objection to the PACA Claimant's accepted PACA Claim amounts as follows: 1. A hearing on a Motion to Determine Validity of Claim filed by PACA CASE NO. 1:09-CV-00906-OWW-SMS STIPULATION AND ORDER REGARDING AGREEMENT AND RESOLUTION OF PACA CLAIM AMOUNTS OF PACA CLAIMANT/ INTERVENING PLAINTIFF DEL MONTE FRESH PRODUCE, N.A. Date: December 4, 2009 Time: 1:00 p.m. Dept: 3 Complaint Filed: May 22, 2009 Trial Date: To Be Assigned

Claimant is presently scheduled to be heard by this Court on December 4, 2009, at 1:00 p.m. The Parties have met and conferred to discuss resolution to the Objections to the PACA Claim of PACA Claimant/Intervening Plaintiff Del Monte Fresh Produce, N.A. which is the subject of the December 4, 2009, hearing. 2. On November 18, 2009, various PACA claimants and Defendants Z&S
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Stipulation and Order regarding Agreed PACA Claim (Del Monte)

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Fresh, Inc. and Martin Zaninovich participated in a Court ordered mediation before Magistrate Judge Sandra Snyder. 3. Pursuant to a written agreement executed by the Parties (the

"Agreement"), the Parties have agreed that Del Monte Fresh Produce, N.A. shall have a PACA Claim in the amount of Thirty Thousand Eight Hundred Seventy-Six Dollars and Seventy-One Cents ($30,876.71). 4. The PACA Claimant stipulates that Defendant Martin Zaninovich may

utilize the proceeds from his 401(k) account and/or IRA account. PACA Claimant has been advised of the current approximate balance of each account, and Defendant Martin Zaninovich has agreed to provide PACA Claimant with documentation showing the approximate current balance in each account. PACA Claimant agrees to not make any demand upon the 401(k) and/or IRA account proceeds, and further agree not to seek disgorgement from the recipients of any proceeds from such accounts. PACA Claimant further agrees to waive any claim against such 401(k) and/or IRA proceeds. PACA Claimant and Defendants agree that the agreement contained in this paragraph is conditioned upon (1) Defendant Martin Zaninovich providing documentation showing the approximate balance in each account; and (2) the aggregate balance of such accounts not exceeding the sum of Three Hundred Five Thousand Dollars ($305,000.00). 5. Defendants and PACA Claimant agree and further stipulates that this

Stipulation shall not be deemed to constitute a waiver of any defense, argument, position, or rights of Defendants; whether the same be currently known or subsequently discovered against Defendants, other than that which is specifically set forth herein. 6. 7. Intervening Plaintiff Frank A. Logoluso Farms joins in this Stipulation. Counsel for PACA Claimant represents that it has all necessary approvals

and/or authorizations from PACA Claimant, and that this Agreement is binding and final upon PACA Claimant. 8. Each party shall bear its own attorneys' fees and costs related to the

Action and the execution of the Agreement.
Stipulation and Order regarding Agreed PACA Claim (Del Monte)

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9.

The Agreement shall bind and inure to the benefit of all successors,

assigns, and heirs of the Parties. 10. The Agreement states the entire agreement among the parties and Each of these

supersedes their prior agreements, negotiations or understandings.

parties acknowledges and agrees that no other party, agent nor attorney of any of the parties has made any promises, representation and/or warranty ­ express of implied ­ that is not set forth in this Agreement. This Agreement may not be altered, amended or modified, except in writing executed by duly authorized representatives of the parties. 11. Having resolved the objections to the PACA Claimant's PACA Claim, the

Parties have agreed to withdraw the PACA Claimant's Motion and the Defendants Objection presently scheduled to be heard by the Court on December 4, 2009 at 1:00 p.m. 12. The Parties agree that this Stipulation may be executed in Counterparts. WALTER & WILHELM LAW GROUP, a Professional Corporation By: _/s/ Norman D. Morrison IV_________ Norman D. Morrison IV Attorneys for Defendants, Z&S Fresh, Inc. and Martin J. Zaninovich MARTYN AND ASSOCIATES

Dated: December 4, 2009

Dated: December 4, 2009

By:

_/s/ Devin J. Oddo________________ Devin J. Oddo, Attorneys for Intervening Plaintiffs Del Monte Fresh Produce, N.A. /// PERKINS, MANN & EVERETT, A PROFESSIONAL CORPORATION

Dated: December 4, 2009

By:

____________ _/s/ Jan T. Perkins Jan T. Perkins, Attorneys for Intervening Plaintiff Frank A. Logoluso Farms

Stipulation and Order regarding Agreed PACA Claim (Del Monte)

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ORDER Having read the above Stipulation, and good cause appearing, IT IS HEREBY ORDERED that the Stipulation is approved in its entirety and that the PACA Claimant is deemed to have a valid PACA Claims in the amount identified in the Stipulation. As a result of the agreement of the Parties and the Stipulation executed by the Parties, the hearing on the motion filed by PACA Claimant/Intervening Plaintiff to determine validity is hereby rendered moot, and the hearing on PACA Claimant/Intervening Plaintiff's motion to determine validity is hereby vacated.

IT IS SO ORDERED.

Dated: December 4, 2009 /s/ OLIVER W. WANGER Hon. OLIVER W. WANGER, Judge United States District Court

Stipulation and Order regarding Agreed PACA Claim (Del Monte)

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