Dobler & Sons, LLC et al v. California Organics, LLC

Filing 95

ORDER re 94 Stipulation filed by Dobler & Sons, LLC, 93 MOTION for Leave to Amend 72 Plaintiffs' Second Amended Complaint. Signed by Judge Koh on 10/7/11. (lhklc3, COURT STAFF) (Filed on 10/7/2011)

Case5:10-cv-04092-LHK Document94

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Filed10/03/11 Page1 of 6

Marion I. Quesenbery, Cal. SBN 072308
RYNN & JANOWSKY, LLP
P.O. Box 20799
Oakland, CA 94620
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
Attorneys for Plaintiffs
Dobler & Sons, LLC, SLO County Organics, LLC,
ASA Farms, Inc., and Braga Ranch, Inc.

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

LAW OFFICES
RYNN & JANOWSKY, LLP
P.O. BOX 20799
OAKLAND, CALIFORNIA 94620
[phone]
FAX [phone]

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Case No. C 10-04092 LHK
DOBLER & SONS, LLC; SLO COUNTY
ORGANICS, LLC; ASA FARMS, INC.; and
BRAGA RANCH, INC.,
STIPULATION CONSENTING TO THE
FILING OF PLAINTIFFS’ THIRD
Plaintiffs,
AMENDED COMPLAINT
v.
CALIFORNIA ORGANICS, LLC; GEOFF
MOUSSEAU; MICHAEL BARNES; DAN
FANTZ; CALIFORNIA FARMS, INC.;
MANJAR, INC.; CALIFORNIA FARMS
INVESTORS, LLC; and AMERICA’S
FACTORS, INC.,
Defendants.

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Pursuant to Federal Rules of Civil Procedure 15(a)(2), Defendants California Organics,

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LLC, Geoff Mousseau, Michael Barnes, Dan Fantz, California Farms, Inc., Manjar, Inc.,

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California Farms Investors, LLC, and America’s Factors, Inc. (collectively “Defendants”)

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stipulate and consent to allow Plaintiffs to file a Third Amended Complaint [attached as Exhibit

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1 to this Stipulation is a marked up copy of Plaintiffs’ Second Amended Complaint (ECF No.

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72), which shows all changes and differences between Plaintiffs’ Second Amended Complaint

STIPULATION CONSENTING TO FILING OF THIRD AMENDED COMPLAINT
Case No. C 10-04092 LHK – Page 1

Case5:10-cv-04092-LHK Document94

Filed10/03/11 Page2 of 6

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and its Third Amended Complaint). The principal and only substantive change is that Plaintiffs

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have added two new individual Defendants – James Roberts and Greg O’Neill.
In addition, because many of the Defendants have previously filed Answers to Plaintiffs’

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Complaints (original, First Amended, or Second Amended), Plaintiffs and Defendants request

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that, as to those Defendants who previously filed Answers only to one of these Complaints, the

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Court not require that they respond to the Third Amended Complaint. Rather, Plaintiffs and

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Defendants request that all denials, responses, and affirmative defenses to Plaintiffs’ Complaint,

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First Amended Complaint, or Second Amended Complaint contained in Defendants’ Answers

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that are now on file shall be deemed responsive to the Third Amended Complaint, and any new

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LAW OFFICES
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[phone]
FAX [phone]

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allegations shall be deemed denied. Of course, Defendants and Plaintiffs also stipulate that

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Defendants who currently have an Answer on file be allowed, if they choose to do so, to file a

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response to the Third Amended Complaint; however, if a responsive pleading is not filed by the

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previously answering Defendants within 21 days of the filing and service of the Third Amended

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Complaint, then their prior answers currently on file shall be deemed responsive to the Third

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Amended Complaint.

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Date: September 28, 2011

RYNN & JANOWSKY, LLP

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By:
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Date: October 3, 2011

/s/ Marion I. Quesenbery
Marion I. Quesenbery
Attorneys for Plaintiffs Dobler & Sons, LLC
and SLO County Organics, LLC
LAW OFFICE OF CLYDE C. PEARCE

By:

/s/ Clyde C. Pearce
Clyde C. Pearce
Attorney for Defendants Michael Barnes and
California Farms Investors, LLC

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I, Marion I. Quesenbery, attest that today, October 3, 2011, Clyde C. Pearce authorized
me to affix his signature to this Stipulation Consenting To The Filing Of Plaintiffs’ Third
Amended Complaint. /s/ Marion I. Quesenbery
STIPULATION CONSENTING TO FILING OF THIRD AMENDED COMPLAINT
Case No. C 10-04092 LHK – Page 2

Case5:10-cv-04092-LHK Document94

Filed10/03/11 Page3 of 6

GEORGE F. BRAUN, Attorney at Law

Date: September _,201 I
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By:
George F. Braun
Attorney for Defendants California Organics, LLC
GeoffMousseau,'Califomia Farms, Inc., and Dan

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Pantz
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PATANE GUMBERG, LLP

Date: September _, 2011

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By:

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Andrea c. Avila
Jennifer Owens
Attorneys for Defendant Manjar, Inc.

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Date: September 3.~20 11 .

MCCORMICK BARSTOW LLP

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STIPULATION CONSENTING TO FILING OF THIRD AMENDED COMPLAINT
Case No. C 10-04092 LHK - Page 3

Case5:10-cv-04092-LHK Document94

Date:

Filed10/03/11 Page4 of 6

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.PATANE GUMBERG, .LJ.JP

Date: September _' 20.1.1

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By:

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Andrea C. Avila,
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Atton1eys for Defendant Manjar, Inc.

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STIPULATIO'N CONSENTING TO FILING OF THIRD AMENDED COMPLAINT
Cage No. C 10·04092 LHK - Page 3

Case5:10-cv-04092-LHK Document94

Filed10/03/11 Page5 of 6

GEORGE F. BRAUN, Attonley at Law

Date:
Septelnber _, 2011

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By:

George F. Braun
Attorney for Defendants California Organics, LLC
Geoff Mousseau, California Farills, Inc., and Dan
Fantz

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'-'?C'"

Date: SeptenlberL( 2011

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By:

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Andre .~~ vj1a
Jennifer it1\ llS
Attorne{s ~. Defendant Manjar, Inc.

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MCCORMICK BARSTOW LLP

Date: September _,2011

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By:
Christopher S. Hall
Kathleen Cerniglia
Attorneys for Defendant Alnerica's Factors, Inc.

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STIPULATION CONSENTING TO FILING OF THIRD AMENDED COMPLAINT

Case No. C 10-04092 LHK - Page 3

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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SAN JOSE DIVISION

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DOBLER & SONS LLC, ET AL.,

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Plaintiffs,
v.
CALIFORNIA ORGANICS, LLC, ET AL.,
Defendants.

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Case No.: 10-CV-4092-LHK
ORDER

Pursuant to the Stipulation of the parties, Plaintiffs may file a clean copy of the Third

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Amended Complaint, which is attached (in marked up form) to the Stipulation as Exhibit 1,

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provided they do so by October 8, 2011. In addition, in regard to Defendants who previously filed

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Answers, they are not required to answer the Third Amended Complaint. Rather, as to these

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Defendants only, all denials, responses, and affirmative defenses to the First Amended Complaint,

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which are contained in these Defendants’ Answers to Plaintiffs’ Complaint, First Amended

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Complaint, or Second Amended Complaint that are now on file shall be deemed responsive to the

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Third Amended Complaint, and any new allegations shall be deemed denied. Defendants who

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currently have an Answer on file may, if they choose to do so, file a response to the Third

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Amended Complaint; however, if a responsive pleading is not filed by the previously answering

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Defendants within 21 days of the filing and service of the Third Amended Complaint, then their

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prior answers currently on file shall be deemed responsive to the Third Amended Complaint.

Case No.: 10-CV-4092-LHK

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In light of the parties' stipulation, Plaintiffs' Motion for Leave to Amend Plaintiffs' Second

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Amended Complaint is DENIED as moot.

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IT IS SO ORDERED.

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Dated: October 7, 2011

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United States District Court
For the Northern District of California

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Case No.: 10-CV-4092-LHK

_________________________________
LUCY H. KOH
United States District Judge

Case5:10-cv-04092-LHK Document94-1

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EXHIBIT B

Case5:10-cv-04092-LHK Document94-1
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Filed10/03/11 Page2 of 19

Marion I. Quesenbery, Cal. SBN 072308
RYNN & JANOWSKY, LLP
P.O. Box 20799
Oakland, CA 94620
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
Attorneys for Plaintiffs
Dobler & Sons, LLC, SLO County Organics, LLC,
ASA Farms, Inc., and Braga Ranch, Inc.

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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LAW OFFICES
RYNN & JANOWSKY, LLP
P.O. BOX 20799
OAKLAND, CALIFORNIA 94620
[phone]
FAX [phone]

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Case No. C 10-04092 LHK
DOBLER & SONS, LLC; SLO COUNTY
ORGANICS, LLC; ASA FARMS, INC.; and
BRAGA RANCH, INC.,
THIRD AMENDED COMPLAINT FOR
VIOLATIONS OF THE PERISHABLE
Plaintiffs,
AGRICULTURAL COMMODITIES
ACT (“PACA”) [7 U.S.C. §499a, et seq.]
v.
AND OF THE CALIFORNIA FOOD &
AGRICULTURAL CODE
CALIFORNIA ORGANICS, LLC; GEOFF
MOUSSEAU; MICHAEL BARNES; DAN
1. ENFORCEMENT OF PACA TRUST
FANTZ; CALIFORNIA FARMS, INC.;
PROVISIONS;
MANJAR, INC.; CALIFORNIA FARMS
2. BREACH OF FIDUCIARY DUTY;
INVESTORS, LLC; AMERICA’S
3. BREACH OF CONTRACT
FACTORS, INC., JAMES ROBERTS, and
4. VIOLATION OF PACA (Failure to
GREG O’NEILL,
Perform, Pay Promptly, and
Maintain PACA trust) & THE
Defendants.
CALIFORNIA FOOD &
AGRICULTURAL CODE [§§ 56302,
56603 (Failure to Make Timely
Payment)];
5. INJUNCTIVE RELIEF AND/OR
TEMPORARY RESTRAINING
ORDER;
6. UNJUST ENRICHMENT;
7. CONVERSION.

Deleted: SECOND

Deleted: and

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Plaintiffs Dobler & Sons, LLC (“Dobler”), SLO County Organics, LLC (“SLO”), ASA

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Farms, Inc. (“ASA Farms”), and Braga Ranch, Inc. (“Braga Ranch”)(collectively “Plaintiffs”)
Deleted: SECOND

THIRD AMENDED COMPLAINT, Case No. C 10-04092 LHK – Page 1

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complain and allege against Defendants California Organics, LLC (“California Organics”),

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Geoff Mousseau (“Mousseau”), Michael Barnes (“Barnes”), Dan Fantz (“Fantz”), California

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Farms, Inc. (“California Farms”), Manjar, Inc. (“Manjar”), California Farms Investors, LLC

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(“California Farms Investors”), America’s Factors, Inc. (“America’s Factors”), James Roberts

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(“Roberts”), and Greg O’Neill (“O’Neill)(collectively “Defendants”), as follows:

Deleted: and

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I.

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JURISDICTION AND VENUE

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1.

This Court has jurisdiction of this case pursuant to the Perishable Agricultural

Commodities Act [7 U.S.C. § 499e(c)(5)] (“PACA”) and pursuant to 28 U.S.C. § 1331. This

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Court also has supplemental jurisdiction over all other claims, as they form part of the same case

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or controversy. 28 U.S.C. § 1367(a).

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2.

Plaintiff Dobler is and was, during all times material, a limited liability company

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organized to do and doing business under the laws of the State of California, with its principal

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place of business located in Moss Landing, California. Dobler is and since 1951 has been a

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family run grower and producer of fresh produce, which it sells to buyers, such as Defendant

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California Organics.

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3.

Plaintiff SLO is and was, during all times material, a limited liability company

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organized to do and doing business under the laws of the State of California, with its principal

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place of business located in Paso Robles, California. SLO is a family operated specialty grower

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and producer of USDA certified organic vegetables, which it sells to buyers, such as Defendant

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California Organics.

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4.

Plaintiff ASA Farms is and was, during all times material, a California

corporation, with its principal place of business located in Soledad, California. ASA Farms is a

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THIRD AMENDED COMPLAINT, Case No. C 10-04092 LHK – Page 2

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grower and shipper of USDA certified organic vegetables, including lettuce and spinach, which

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it sells to buyers, such as Defendant California Organics.

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Plaintiff Braga Ranch is and was, during all times material, a California

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corporation, with its principal place of business located in Soledad, California. Braga Ranch

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grows and ships fresh vegetables, including spinach, which it sells to buyers, such as Defendant

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California Organics.

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Plaintiffs are informed and believe and thereon allege that Defendant California

Organics is and was during all material times a California limited liability company with its

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principal place of business in San Benito County, California. California Organics buys and sells

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perishable agricultural commodities throughout the United States and is subject to licensure by

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the United States Department of Agriculture (“USDA”) as a broker, commission merchant

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and/or dealer of perishable agricultural commodities. In addition, California Organics is a

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California dealer of farm products, and it is subject to licensure by the California Department of

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Food & Agriculture.

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7.

Plaintiffs are informed and believe and thereon allege that Geoff Mousseau and

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Dan Fantz are individuals who, during all times herein mentioned, maintained a residence within

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the jurisdictional boundaries of this Court.

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8.

Plaintiffs are informed and believe and thereon allege that Michael Barnes, James
Deleted: s

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Roberts, and Greg O’Neill conduct business within the jurisdictional boundaries of this Court;

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they also are informed and believe that Barnes, Roberts, and O’Neill maintain residences in Los

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Angeles County, California. In addition, Plaintiffs allege that O’Neill was, at all relevant times,

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a secured lender to California Organics and was repaid in part by California Organics with full

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knowledge that California Organics had breached its PACA trust obligations to Plaintiffs and

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was dissipating the PACA trust assets by paying down his loan.

Deleted: s
Deleted: a

Deleted: SECOND

THIRD AMENDED COMPLAINT, Case No. C 10-04092 LHK – Page 3

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Plaintiffs are informed and believe and thereon allege that Defendant California

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Farms, Inc. is and was, during all material times, a California corporation having its principal

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place of business within the jurisdictional boundaries of this Court.

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10.

Plaintiffs are informed and believe and thereon allege that Defendant Manjar, Inc.

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is and was, during all material times, a California corporation having its principal place of

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business within the jurisdictional boundaries of this Court.

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11.

Plaintiffs are informed and believe and thereon allege that Defendant California

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Farms Investors, LLC is and was, during all material times, a Delaware limited liability company

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having its principal place of business within the jurisdictional boundaries of this Court.

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12.

Plaintiffs are informed and believe and thereon allege that Defendant America’s

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Factors is and was, during all material times, a California corporation with its principal place of

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business in the County of Los Angeles, California. In addition, Plaintiffs allege that America’s

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Factors was, at all relevant times, a secured lender to California Organics, who was repaid by

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seizing California Organics’ accounts receivable.

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II.

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INTRADISTRICT ASSIGNMENT

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13.

This action arose in San Benito County, California.

Defendant California

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Organics’ principal place of business is in San Benito County, California, where its assets were

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and are located and where it transacted business. Plaintiffs allege in this Third Amended

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Complaint that Defendants owe or must disgorge to Plaintiff Dobler $309,485.92, Plaintiff SLO

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$69,337.26, Plaintiff ASA Farms $157,890.10, and Plaintiff Braga Ranch $14,874.24 for fresh

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produce that Plaintiffs sold and shipped to Defendant California Organics in Hollister,

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California, pursuant to the contracts of sale between Plaintiffs and Defendant California

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Organics. These contracts were entered into in Hollister, California.

Deleted: Second

Deleted: SECOND

THIRD AMENDED COMPLAINT, Case No. C 10-04092 LHK – Page 4

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III.

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FIRST CLAIM FOR RELIEF
(Enforcement Of The PACA Trust Provisions;
Disgorgement Of PACA Trust Assets)
Against All Defendants

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14.

Plaintiffs reallege and incorporate by reference paragraphs 1 through 13 of this

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Deleted: Second

Third Amended Complaint as though fully set forth in this paragraph 14.
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15.

Defendant California Organics is and was at all relevant times a dealer of

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perishable agricultural commodities throughout the United States. Specifically, it is and was at
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all relevant times engaged in the business of buying and selling perishable agricultural
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commodities – as defined by the Perishable Agricultural Commodities Act, 7 U.S.C. §§ 499a et
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seq. (“PACA”) – throughout the United States, and it is currently and was at all relevant times
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subject to licensure by the USDA as a commission merchant, dealer, and/or broker of perishable
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agricultural commodities. As such, it is and was at all relevant times regulated by and subject to
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PACA.
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16.

Plaintiffs are and were at all relevant times licensed by the USDA as commission

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merchants, dealers, and/or brokers of fresh produce (Dobler – license # 20070872; SLO – license
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# 20080322; ASA Farms – license # 20080134; and Braga Ranch – license # 20080135).
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17.

From May 2010 through July 2010, Plaintiff Dobler sold and shipped perishable

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agricultural commodities (e.g., spinach, lettuce) to Defendant California Organics at California
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Organics’ request. Defendant California Organics agreed to pay Dobler $570,003.97 for this
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fresh produce; however, of this sum, California Organics still owes Dobler $309,485.92, which is
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significantly past due and unpaid by Defendant California Organics. Payment was due “PACA
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prompt” (i.e., within 10 days of acceptance by Defendant of the fresh produce) from Defendant
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California Organics. 7 C.F.R. § 46.2(aa)(5).
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Deleted: SECOND

THIRD AMENDED COMPLAINT, Case No. C 10-04092 LHK – Page 5

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From January 2010 through July 2010, Plaintiff SLO sold and shipped perishable

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agricultural commodities (e.g., spinach, lettuce) to Defendant California Organics at California

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Organics’ request. Defendant California Organics agreed to pay SLO $304,742.84 for this fresh

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produce; however, of this sum California Organics still owes SLO $69,337.26, all of which

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remains significantly past due and unpaid by Defendant California Organics. Payment was due

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from Defendant California Organics within 21 days of acceptance of the fresh produce by

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Defendant.

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19.

From July 27, 2010 through November 13, 2010, Plaintiff ASA Farms sold and

shipped perishable agricultural commodities (e.g., spinach, lettuce) to Defendant California

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Organics at California Organics’ request. Defendant California Organics agreed to pay ASA

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Farms $157,890.10 for this fresh produce, which is significantly past due and unpaid by

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Defendant California Organics. Payment was due within 30 days from shipment from Defendant

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California Organics.

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20.

On July 27, 2010 and October 9, 2010, Plaintiff Braga Ranch sold and shipped

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perishable agricultural commodities (i.e., spinach) to Defendant California Organics at California

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Organics’ request. Defendant California Organics agreed to pay Braga Ranch $14,874.24 for

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this fresh produce; however, this sum is significantly past due and unpaid by Defendant

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California Organics. Payment was due within 30 days from shipment from Defendant California

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Organics.

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Pursuant to the PACA trust provisions, 7 U.S.C. § 499e(c), upon receipt by

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California Organics of Plaintiffs’ fresh produce, Plaintiffs became the beneficiaries of a floating,

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non-segregated statutory trust on “all [of California Organics’] inventories of food or other

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products derived from perishable agricultural commodities, and any receivables or proceeds from

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THIRD AMENDED COMPLAINT, Case No. C 10-04092 LHK – Page 6

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the sale of such commodities or products . . . [and all assets purchased or maintained with PACA

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trust assets] until full payment of the sums owing” is made to Plaintiffs.

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22.

At or about the date of each sale of the perishable agricultural commodities to

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Defendant California Organics, Plaintiffs sent invoices to California Organics. Each invoice set

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forth information in sufficient detail to identify the transaction and the sum owed by California

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Organics to each Plaintiff for the perishable agricultural commodities purchased by Defendant

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California Organics. Each invoice also included the language required by the PACA, 7 U.S.C.

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§499e(c)(4), to preserve Plaintiffs’ PACA trust rights for the total sum owed under the invoices.

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23.

Plaintiffs have performed and fulfilled all duties required of them to preserve their

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PACA trust rights. As a result, Plaintiffs hold and held, at all relevant times, a perfected interest

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as statutory trust beneficiaries in California Organics’ PACA trust assets. Indeed, the PACA

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trust assets never became the property of California Organics. Rather, as the beneficiaries of the

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PACA trust, Plaintiffs hold and, at all relevant times, held equitable title to California Organics’

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PACA trust assets, which include (and included) but are not limited to all inventory of perishable

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agricultural commodities, all proceeds and receivables from the sale of perishable agricultural

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commodities, and all assets purchased with or maintained by the proceeds from the sale of

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perishable agricultural commodities.

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24.

The PACA trust requires and required Defendant California Organics to hold and

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preserve all perishable agricultural commodities, proceeds, and receivables in trust for the benefit

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of Plaintiffs, until full payment is made by California Organics to Plaintiffs. Plaintiffs are

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informed and believe and on that basis allege that Defendant California Organics has failed to

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maintain the trust assets and to keep them freely available to satisfy Defendant California

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Organics’ obligations to Plaintiffs.

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Deleted: SECOND

THIRD AMENDED COMPLAINT, Case No. C 10-04092 LHK – Page 7

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Plaintiffs are informed and believe and on that basis allege that Defendant

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California Organics improperly dissipated Plaintiffs’ interest in the trust assets by granting

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security interests in the trust assets, by failing to maintain the trust, and by using the trust assets

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for purposes other than for paying Plaintiffs, all in violation of the PACA. 7 U.S.C. §§ 499b(4)

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& 499e(c).

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26.

Deleted: a

Plaintiffs are informed and believe and on that basis allege that California

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Organics’ PACA trust assets were transferred to or seized by Defendants Mousseau, Barnes,

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Fantz, California Farms, Manjar, California Farms Investors, America’s Factors, Roberts, and

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O’Neill in violation of PACA.

Deleted: and

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P.O. BOX 20799
OAKLAND, CALIFORNIA 94620
[phone]
FAX [phone]

10

27.

As a direct and proximate result of the wrongful acts and omissions of

11

Defendants, Plaintiff Dobler has been damaged in the sum of $309,485.92, plus contractual pre

12

and post judgment interest (@18% per year) and costs and attorneys’ fees, all of which qualifies

13

for protection under the PACA trust provisions.

14

28.

As a direct and proximate result of the wrongful acts and omissions of

15

Defendants, Plaintiff SLO has been damaged in the sum of $69,337.26, plus pre and post

16

judgment statutory interest (@ the California statutory contractual rate of 10% per year) and

17

contractual attorneys’ fees and costs, all of which qualifies for protection under the PACA trust

18

provisions.

19

29.

As a direct and proximate result of the wrongful acts and omissions of

20

Defendants, Plaintiff ASA Farms has been damaged in the sum of $157,890.10, plus contractual

21

pre and post judgment interest (@18% per year) and attorneys’ fees and costs, all of which

22

qualifies for protection under the PACA trust provisions.

23
24

30.

As a direct and proximate result of the wrongful acts and omissions of

Defendants, Plaintiff Braga Ranch has been damaged in the sum of $14,874.24, plus contractual
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1

pre and post judgment interest (@18% per year) and attorneys’ fees and costs, all of which

2

qualifies for protection under the PACA trust provisions.

3

31.

In addition, because Plaintiffs have and had a superior interest in California

4

Organics’ PACA trust assets, Defendants should account for all of California Organics’ PACA

5

trust assets that are currently in their possession, that were previously held by California

6

Organics, and/or that were transferred to or seized by them. Defendants also should disgorge to

7

Plaintiffs, until Plaintiffs have been paid in full, all PACA trust assets now in their possession or

8

in the possession of third parties controlled by them and all California Organics’ PACA trust

9

assets that were transferred to, seized by, or sold by Defendants.

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IV.

11

SECOND CLAIM FOR RELIEF
(Breach Of Fiduciary Duty By PACA Trust Trustees)
Against Defendants California Organics, Mousseau, Barnes, Fantz,
California Farms, Manjar, California Farms Investors, and Roberts

12
13
14
15
16
17
18
19
20
21
22
23
24

32.

Deleted: and

Plaintiffs reallege and incorporate by reference paragraphs 1 through 31 of this
Deleted: Second

Third Amended Complaint as though fully set forth in this paragraph 32.
33.

Plaintiffs are informed and believe and thereon allege that Defendants California

Organics, Mousseau, Barnes, Fantz, California Farms, Manjar, California Farms Investors, and
Roberts (collectively “Responsibly Connected Defendants”) had actual and constructive
Deleted: As

knowledge of the PACA trust and who were, at all relevant times, owners, members, managers,
and/or persons or entities who controlled and continue to control the day-to-day operations,
Deleted: ,

financial affairs, and PACA trust assets of California Organics.

As such,

“Responsibly

Connected Defendants” are and were at all relevant times statutory trustees of the PACA trust

Deleted: Defendants California
Organics, Mousseau, Barnes, Fantz,
California Farms, Manjar, and California
Farms Investors (collectively
Deleted: )

assets held by Defendant California Organics for the benefit of Plaintiffs and other PACA trust
creditors. As trustees, Responsibly Connected Defendants were and are required to maintain the
PACA trust assets in a manner that insures and insured that they would be readily available to
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1

satisfy California Organics’ outstanding debt to Plaintiffs and other similarly situated PACA

2

trust beneficiaries.

3

34.

Responsibly Connected Defendants breached their fiduciary duty by failing to

4

maintain the PACA trust assets in a manner so as to insure payment to California Organics’

5

suppliers of perishable agricultural commodities, by dissipating the PACA trust assets, and by

6

failing to account for the PACA trust assets.

7

35.

As a direct and proximate result of Responsibly Connected Defendants’ breach of

8

their fiduciary duty, Plaintiffs has been damaged in the cumulative sum of $551,587.52, plus pre

9

and post judgment interest, costs, and attorneys’ fees.

LAW OFFICES
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[phone]
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V.

11

THIRD CLAIM FOR RELIEF
(Breach Of Contract)
Against Defendant California Organics

12
13

36.

Plaintiffs reallege and incorporate by reference paragraphs 1 through 35 of this
Deleted: Second

14
15

Third Amended Complaint as though fully set forth in this paragraph 36.
37.

Plaintiffs have fulfilled all of their obligations under the contracts with Defendant

16

California Organics; however, California Organics has failed to pay Plaintiffs the sums that it

17

agreed to pay Plaintiffs for the perishable agricultural commodities that Plaintiffs sold and

18

shipped to California Organics.

19
20
21

38.

Plaintiffs have repeatedly demanded that Defendant California Organics pay the

cumulative total of $551,587.52, plus interest and attorneys’ fees.
39.

As a direct and proximate result of Defendant California Organics’ breach of the

22

contracts with Plaintiffs, Plaintiffs have been damaged in the cumulative sum of $551,587.52,

23

plus interest and attorneys’ fees. In addition, “any delinquent payment of money . . . shall

24

include a late charge of 5 percent per month of the unpaid balance calculated on a daily basis for
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1

the period of the delinquency for the first month and an additional 1 percent per month of the

2

unpaid balance calculated on a daily basis for the remaining period of the delinquency.” Cal.

3

Food & Agric. Code §56620.

4

VI.

5

FOURTH CLAIM FOR RELIEF
(Violations of PACA and the California Food & Agricultural Code)
Against Defendant California Organics

6
7
8
9

40.

Plaintiffs reallege and incorporate by reference paragraphs 1 through 39 of this
Deleted: Second

Third Amended Complaint as though fully set forth in this paragraph 40.
41.

Although the agreed time for payment for Plaintiffs’ fresh produce is long past

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due, California Organics has unlawfully failed and continues to fail to make full payment

11

promptly for these commodities, as required by 7 U.S.C. § 499b(4).

12

42.

In addition, California Organics has failed to properly maintain the PACA trust

13

assets so as to have sufficient funds freely available to pay Plaintiffs in full for the fresh produce

14

that California Organics purchased from Plaintiffs, which is also a violation of 7 U.S.C. §

15

499b(4).

16

43.

Defendant California Organics’ breach of contract is also a violation of PACA, 7

17

U.S.C. § 499b(4), as it is a failure “to perform any specification or duty, express or implied,

18

arising out of any undertaking in connection with” its transactions with Plaintiffs.

19

44.

Finally, California Organics’ failure to pay for the farm product that it purchased

20

from Plaintiffs at the time and in the manner specified in the contracts with them, or within 30

21

days from delivery, is a violation of California Food and Agricultural Code §56302.

22

45.

As a direct and proximate result of Defendant California Organics’ violations of

23

both federal and state laws, Plaintiffs have been damaged in the cumulative sum of $551,587.52 ,

24

plus pre and post judgment interest and attorneys’ fees. In addition, Plaintiffs are entitled to
penalties under the California Food and Agricultural Code §56620.
THIRD AMENDED COMPLAINT, Case No. C 10-04092 LHK – Page 11

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Deleted:

1
2

Page Break

VII.
FIFTH CLAIM FOR RELIEF
(For Injunctive Relief and/or Temporary Restraining Order)
Against All Defendants

3
4

46.

Plaintiffs hereby reallege and incorporate by reference paragraphs 1 through 45
Deleted: Second

5
6
7

of this Third Amended Complaint as though fully set forth in this paragraph 46.
47.

Pursuant to the provisions of the PACA, specifically 7 U.S.C. § 499e(c),

perishable agricultural commodities received by a commission merchant, broker or dealer in all
transactions and all inventories or other products derived from these products are held in trust by

8
9

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the receiver for the benefit of unpaid suppliers until such suppliers receive full payment of sums
owed in connection with such transactions.
48.

On numerous occasions Plaintiffs have demanded that Defendants pay the
Deleted: Second

11

balances due to Plaintiffs in the amounts alleged in this Third Amended Complaint, but

12

Defendants have failed and refused, and continue to fail and refuse, to remit payment to

13

Plaintiffs for the perishable agricultural commodities that Defendant California Organics
received.

14
49.
15

Plaintiffs believe and thereon allege that Defendant California Organics is failing

to pay its undisputed debts, including Plaintiffs’ PACA trust debt, as those debts become due.

16

Plaintiffs are further informed and believe, and thereon allege, that as a result of this failure, the

17

PACA trust assets are dissipating and will continue to dissipate unless Defendants are restrained

18

from further dissipation by order of this Court.

19
20

50.

Pursuant to the terms of the PACA trust, and pursuant to Defendants’ fiduciary

duty owed to Plaintiffs, both under federal and California law, Defendants owed a duty to
transfer to Plaintiffs sums owed to Plaintiffs for the produce shipments which are the subject of
Deleted: Second

21
this Third Amended Complaint.
22

51.

Plaintiffs are informed and believe and thereon allege that Defendants have

23

dissipated, diverted and will continue to dissipate and divert assets, which are due and owing to

24

Plaintiffs, either to themselves or to third parties, or will dissipate, conceal or otherwise make
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1
2
3
4

Filed10/03/11 Page14 of 19

such assets unavailable if a noticed hearing seeking injunctive relief is required.
52.

If such diversion of assets is allowed to continue, Plaintiffs will suffer great and

irreparable harm in that the PACA trust assets will not be preserved, and Plaintiffs will have
difficulty or be unable to pay their own creditors. Moreover, Plaintiffs and other creditors of
Plaintiffs, a substantial number of which are PACA trust creditors (like Plaintiffs), will suffer

5
6
7
8
9

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great and irreparable harm if all PACA trust assets held by Defendants for the benefit of
Plaintiffs, and other similarly situated PACA trust creditors, are dissipated and are forever lost to
such creditors.
53.

Therefore, Plaintiffs will request that this Court enter an ex parte order for

injunctive relief to compel Defendants to immediately account to the Court and to Plaintiffs for
all assets of the PACA trust from commencement of Defendant California Organics’ business
through the date of the order and to compel Defendants to turnover sufficient PACA trust assets

11
until all PACA trust creditors are paid in full. In the alternative, Plaintiffs request that this Court
12

enter a temporary restraining order directing that Defendants, Defendants’ officers, directors,

13

shareholders, members, managers, bankers, attorneys, agents, or any other person acting on

14

Defendants’ behalf not disburse, transfer or otherwise dissipate the PACA trust assets, that they

15

provide a complete accounting pending a hearing on the Plaintiffs’ Application for Injunctive

16

Relief, and that they comply with PACA and the California Food & Agricultural Code.

17

54.

Plaintiffs are informed and believe and thereon allege that Defendants will not be

damaged or injured in any way by the requested relief because the assets they hold are statutorily
18
required to be held in trust by Defendants for the benefit of Plaintiffs, and other similarly
19

situated PACA trust creditors, until they receive full payment. Thus, to the extent that

20

Defendants’ assets are secured by the PACA trust, such assets rightfully belong to Plaintiffs and

21

must be paid immediately to Plaintiffs.

22
23
24
Deleted: SECOND

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1

VIII.

2

Filed10/03/11 Page15 of 19

SIXTH CLAIM FOR RELIEF
(Unjust Enrichment)
Against All Defendants

3
4
5
6

55.

Plaintiffs allege and incorporate by reference paragraphs 1 through 54 inclusive,
Deleted: Second

of this Third Amended Complaint as though fully set forth in this paragraph 55.
56.

Plaintiffs are informed and believe that Defendants converted, or are now in the

7

process of converting, to their own use and benefit, the proceeds from the sale of Plaintiffs’ fresh

8

produce.

9

LAW OFFICES
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P.O. BOX 20799
OAKLAND, CALIFORNIA 94620
[phone]
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10
11

57.

If Defendants are allowed to continue to convert and/or use these proceeds, they

will be unjustly enriched to the detriment of Plaintiffs.
58.

As a direct and proximate result of Defendant California Organics’ unlawful

12

actions, Plaintiffs have been damaged in the cumulative sum of $551,587.52, plus pre and post

13

judgment interest.

14

XI.

15

SEVENTH CLAIM FOR RELIEF
(Conversion)
Against All Defendants

16
17

59.

Plaintiffs allege and incorporate by reference paragraphs 1 through 58, inclusive,
Deleted: Second

18
19

of this Third Amended Complaint as though fully set forth in this paragraph 59.
60.

At all times relevant, Plaintiffs were and currently are entitled to possession of the

20

perishable agricultural commodities that they sold to Defendant California Organics and/or to the

21

sums that were derived from the sale of Plaintiffs’ fresh produce.

22

61.

Plaintiffs have repeatedly demanded the immediate turnover of the sums that

23

Defendant California Organics received from the sale of Plaintiffs’ fresh produce, but

24

Defendants have failed and refused and continue to fail and refuse to turn over such sums of
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1

money to Plaintiffs. Rather, the fresh produce and/or the proceeds from the sale of the fresh

2

produce have been converted to Defendants’ own use.

3

62.

Defendants’ actions have been willful, wanton, malicious, and oppressive and

4

were done with the intent to defraud Plaintiffs. Such acts justify an award of punitive damages

5

in an amount to be proven at the time of trial.

6
7

WHEREFORE, Plaintiffs respectfully request judgment against Defendants, joint and
severally, as follows:

8

FIRST CLAIM FOR RELIEF
(Enforcement Of The PACA Trust Provisions;
Disgorgement Of PACA Trust Assets)
Against All Defendants

9

LAW OFFICES
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P.O. BOX 20799
OAKLAND, CALIFORNIA 94620
[phone]
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10
A.

For an order requiring Defendants to immediately account for and pay and/or disgorge to

11
Plaintiffs all PACA trust assets held by or under the control of California Organics, until
12
Plaintiffs cumulative total of $551,587.52 [Dobler – $309,485.92; SLO – $69,337.26;
13
ASA Farms – $157,890.10; Braga Ranch – $14,874.24], plus pre and post judgment
14
interest (@ the contractual rate of 18% per year to Dobler, ASA Farms, and Braga Ranch,
15
and @ the California statutory contract rate of 10% per year to SLO) and contractual
16
attorneys’ fees and ; and
17
B.

For such other and further relief as the Court may deem just and proper.

18
SECOND CLAIM FOR RELIEF
(Breach Of Fiduciary Duty By PACA Trust Trustees)
Against Defendants California Organics, Mousseau, Barnes, Fantz,
California Farms, Manjar, California Farms Investors, and Roberts

19
20
21

C.

Deleted: and

For an order requiring Defendants to immediately account for and pay and/or disgorge to

22

Plaintiffs all PACA trust assets held by or under the control of California Organics, until

23

Plaintiffs cumulative total of $551,587.52 [Dobler – $309,485.92; SLO – $69,337.26;

24

ASA Farms – $157,890.10; Braga Ranch – $14,874.24], plus pre and post judgment
Deleted: SECOND

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1

interest (@ the contractual rate of 18% per year to Dobler, ASA Farms, and Braga Ranch,

2

and @ the California statutory contract rate of 10% per year to SLO) and contractual

3

attorneys’ fees; and

4

D.

5

THIRD CLAIM FOR RELIEF
(Breach Of Contract)
Against Defendant California Organics

6
7

For such other and further relief as the Court may deem just and proper.

E.

For an order requiring Defendant California Organics to pay Plaintiffs the cumulative
total of $551,587.52 [Dobler – $309,485.92; SLO – $69,337.26; ASA Farms –

9

$157,890.10; Braga Ranch – $14,874.24], plus pre and post judgment interest (@ the

10
LAW OFFICES
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contractual rate of 18% per year to Dobler, ASA Farms, and Braga Ranch, and @ the

11

California statutory contract rate of 10% per year to SLO) and contractual attorneys’ fees;

12

F.

For statutory late fees of “5 percent per month of the unpaid balance calculated on a daily

13

basis for the period of the delinquency for the first month and an additional 1 percent per

14

month of the unpaid balance calculated on a daily basis for the remaining period of the

15

delinquency.” Cal. Food & Agric. Code §56620; and

16

G.

17

FOURTH CLAIM FOR RELIEF
(Violations of PACA and the California Food & Agricultural Code)
Against Defendant California Organics

18
19

For such other and further relief as the Court may deem just and proper.

H.

For an order requiring Defendant California Organics to pay Plaintiffs the cumulative

20

total of $551,587.52 [Dobler – $309,485.92; SLO – $69,337.26; ASA Farms –

21

$157,890.10; Braga Ranch – $14,874.24], plus pre and post judgment interest (@ the

22

contractual rate of 18% per year to Dobler, ASA Farms, and Braga Ranch, and @ the

23

California statutory contract rate of 10% per year to SLO) and contractual attorneys’ fees;

24
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1

I.

Filed10/03/11 Page18 of 19

For statutory late fees of “5 percent per month of the unpaid balance calculated on a daily

2

basis for the period of the delinquency for the first month and an additional 1 percent per

3

month of the unpaid balance calculated on a daily basis for the remaining period of the

4

delinquency.” Cal. Food & Agric. Code §56620; and

5

J.

6

FIFTH CLAIM FOR RELIEF
(For Injunctive Relief and/or Temporary Restraining Order)
Against All Defendants

7
8

For such other and further relief as the Court may deem just and proper.

K.

For an order compelling Defendants to turnover to Plaintiffs sufficient PACA trust assets
to pay Plaintiffs’ the sums owed to them and protected by the PACA trust in the

10
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cumulative sum of $551,587.52 [Dobler – $309,485.92; SLO – $69,337.26; ASA Farms –

11

$157,890.10; Braga Ranch – $14,874.24], plus pre and post judgment interest (@ the

12

contractual rate of 18% per year to Dobler, ASA Farms, and Braga Ranch, and @ the

13

California statutory contract rate of 10% per year to SLO) and contractual attorneys’ fees

14

and to deposit into a trust account sufficient PACA trust assets to pay all other PACA

15

trust creditors in full;

16

L.

For an order compelling Defendants to immediately account to the Court and to Plaintiffs
for all assets of the PACA trust from commencement of Defendant California Organics’

17

business through the date of the order;

18
M.

For an order compelling Defendants to fully comply with PACA and the California Food

19
& Agricultural Code; or
20
N.

In the alternative, Plaintiffs request that this Court enter a temporary restraining order

21
directing that Defendants, Defendants’ officers, directors, shareholders, bankers,
22
attorneys, agents, or any other person acting on Defendants’ behalf not disburse, transfer
23
or otherwise dissipate the PACA trust assets in Defendants’ possession or control
24
pending a hearing on the Plaintiffs’ Application for Injunctive Relief and ordering
THIRD AMENDED COMPLAINT, Case No. C 10-04092 LHK – Page 17

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1

Defendants to account for all PACA trust assets in their possession or previously in their

2

possession.

3

SIXTH CLAIM FOR RELIEF
(Unjust Enrichment)
Against All Defendants

4

Deleted: California Organics

5

O.

For an order requiring Defendants to pay Plaintiffs the cumulative total of $551,587.52

6

[Dobler – $309,485.92; SLO – $69,337.26; ASA Farms – $157,890.10; Braga Ranch –

7

$14,874.24], plus pre and post judgment interest (@ the contractual rate of 18% per year

8

to Dobler, ASA Farms, and Braga Ranch, and @ the California statutory contract rate of

9

10% per year to SLO); and

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P.

For such other and further relief as the Court may deem just and proper.

11

SEVENTH CLAIM FOR RELIEF
(Conversion)
Against All Defendants

12
13

Q.

For the value of the monies converted in the sum of $551,587.52 [Dobler – $309,485.92;

14

SLO – $69,337.26; ASA Farms – $157,890.10; Braga Ranch – $14,874.24], plus pre and

15

post judgment interest (@ the contractual rate of 18% per year to Dobler, ASA Farms,

16

and Braga Ranch, and @ the California statutory contract rate of 10% per year to SLO);

17

R.

For punitive damages in an amount to be proven at the time of trial; and

18

S.

For such other and further relief as the Court may deem just and proper.

19

Date: September 28, 2011

20
21
22

RYNN & JANOWSKY, LLP

By:

Deleted: January 12

/s/ Marion I. Quesenbery
MARION I. QUESENBERY
Attorneys for Plaintiffs
Dobler & Sons, LLC, SLO County Organics, LLC,
ASA Farms, Inc., and Braga Ranch, Inc.

23
24
Deleted: SECOND

THIRD AMENDED COMPLAINT, Case No. C 10-04092 LHK – Page 18