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

Filing 403

STIPULATION and ORDER Regarding Agreement and Resolution of PACA Claim Amounts of PACA Claimant/Intervening Plaintiff Dandrea Produce, Inc., signed by Judge Oliver W. Wanger on 12/19/2009. (Verduzco, M)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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: (559) 435-9800 Facsimile: (559) 435-9868 E-mail: nmorrison@W2LG.com 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 Dandrea Produce, Inc. (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 is presently CASE NO. 1:09-CV-00906-OWW-SMS STIPULATION AND PROPOSED ORDER REGARDING AGREEMENT AND RESOLUTION OF PACA CLAIM AMOUNTS OF PACA CLAIMANT/INTERVENING PLAINTIFF DANDREA PRODUCE, INC. Date: December 4, 2009 Time: 1:00 p.m. Dept: 3 Complaint Filed: May 22, 2009 Trial Date: To Be Assigned 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 Dandrea Produce, Inc. 2. Pursuant to an written agreement executed by the Parties (the -1G:\docs\RGaumnitz\Orders to be signed\09cv906.stipo.agrmnt.amnt.PACA.Dandrea Pr oduc e.doc.doc x "Agreement"), the Parties have agreed that PACA Claimant Dandrea Produce, Inc. shall Stipulation and Order regarding Agreed PACA Claim (Dandrea) PDF created with pdfFactory trial version www.pdffactory.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 have a valid PACA Claim in the amount of Eighty-Three Thousand, Six Hundred Ten Dollars and Fifteen Cents ($83,610.15). 3. 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). 4. Defendants and PACA Claimant agrees 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 by Defendants, other than that which is specifically set forth herein. 5. 6. 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. 7. Each party shall bear its own attorneys' fees and costs related to the execution of the Agreement. 8. The Agreement shall bind and inure to the benefit of all successors, assigns, and heirs of the Parties. 9. The Agreement states the entire agreement among the parties and Each of these -2G:\docs\RGaumnitz\Orders to be signed\09cv906.stipo.agrmnt.amnt.PACA.Dandrea Pr oduc e.doc.doc x supersedes their prior agreements, negotiations or understandings. Stipulation and Order regarding Agreed PACA Claim (Dandrea) PDF created with pdfFactory trial version www.pdffactory.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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. 10. 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 LAW OFFICE OF ROBERT E. GOLDMAN Dated: December 16, 2009 Dated: December 12, 2009 By: _/s/ Robert E. Goldman____________ Robert E. Goldman, Attorneys for PACA Claimant/Intervening Plaintiff Dandrea Produce, Inc. Dated: December 16, 2009 PERKINS, MANN & EVERETT, A PROFESSIONAL CORPORATION By: _/s/ Jan T. Perkins________________ Jan T. Perkins, Attorneys for Intervening Plaintiff Frank A. Logoluso Farms Stipulation and Order regarding Agreed PACA Claim (Dandrea) -3- G:\docs\RGaumnitz\Orders to be signed\09cv906.stipo.agrmnt.amnt.PACA.Dandrea Pr oduc e.doc.doc x PDF created with pdfFactory trial version www.pdffactory.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Stipulation and Order regarding Agreed PACA Claim (Dandrea) 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 Claim in the amount identified in the Stipulation. IT IS SO ORDERED. Dated: December 19, 2009 /s/ OLIVER W. WANGER United States District Court Judge -4- G:\docs\RGaumnitz\Orders to be signed\09cv906.stipo.agrmnt.amnt.PACA.Dandrea Pr oduc e.doc.doc x PDF created with pdfFactory trial version www.pdffactory.com

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