Free Declaration - District Court of California - California

Case 3:08-cv-00914-JLS-JMA

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LAW OFFICES RYNN & JANOWSKY 4100 NEWPORT PLACE DRIVE SUITE 700 NEWPORT BEACH, CALIFORNIA 92660 (949) 752-2911 FAX (949) 752-0953

PATRICIA J. RYNN State Bar No. 092048 ELISE O'BRIEN, State Bar No. 245967 RYNN & JANOWSKY, LLP 4100 Newport Place Drive, Suite 700 Newport Beach, CA 92660 Telephone: (949) 752-2911 Facsimile: (949) 752-0953 E-Mail: [email protected] E-Mail: [email protected] Attorneys for Plaintiffs SUCASA PRODUCE, et al. UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA, SAN DIEGO DIVISION

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SUCASA PRODUCE, an Arizona Partnership; P.D.G. PRODUCE, INC., an Arizona corporation; EXPO FRESH, LLC, a California limited liability company; H.M. DISTRIBUTORS, INC., an Arizona corporation; PRIME TIME SALES, LLC, a California limited liability company; VANAL DISTRIBUTING, INC., an Arizona corporation, DEL CAMPO SUPREME, INC., an Arizona corporation; MEYER, LLC, a California limited liability company, Plaintiffs vs. SAMMY'S PRODUCE, INC., a California corporation; CALIFORNIA PRODUCE EXCHANGE, INC., a California corporation; US FARMS, INC., a California corporation; WORLD GARLIC & SPICE INC., a California corporation; AMERICAN NURSERY EXCHANGE, INC., a California corporation; YAN SKWARA, an individual; SAMUEL V. NUCCI, an individual; DARIN PINES, an individual, Defendants.

CASE NO. 08-cv-914 JLS (JMA)

DECLARATION OF JIM DETTY IN SUPPORT OF PLAINTIFFS' MOTION TO EXPAND THE PRELIMINARY INJUNCTION; EXHIBITS IN SUPPORT THEREOF

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LAW OFFICES RYNN & JANOWSKY 4100 NEWPORT PLACE DRIVE SUITE 700 NEWPORT BEACH, CALIFORNIA 92660 (949) 752-2911 FAX (949) 752-0953

I, JIM DETTY, declare and depose as follows: 1. I currently am and during all times mentioned in this declaration have been the

Credit Manager of Plaintiff and Moving Party herein, Prime Time Sales, LLC ("PRIME TIME"). 2. PRIME TIME is a limited liability company in Coachella, California which sells

wholesale quantities of perishable agricultural commodities ("produce") under its own name and which is licensed as a dealer under the Perishable Agricultural Commodities Act of 1930, as amended, [7 U.S.C. §499a, et seq.] ("PACA"). 3. I am personally familiar with all matters which are the subject of this declaration

and the facts stated herein are based upon my own personal knowledge, except as to those matters based upon information and belief, and as to those matters, I believe them to be true. If called as a witness in this proceeding, I would and could competently testify to the matters stated herein. 4. PRIME TIME is a produce creditor of Defendant, Sammy's Produce, Inc.

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("SAMMY'S"). SAMMY'S is a produce dealer as defined under 7 U.S.C. §499a, and operates subject to and is licensed under the PACA. SAMMY'S operates as wholesale buyer and seller of perishable agricultural commodities, and in that capacity has purchased perishable agricultural commodities from Plaintiff for resale to SAMMY'S own customers. 5. Defendants Yan Skwara ("SKWARA"), Samuel V. Nucci ("NUCCI"), and Darin

Pines ("PINES") are listed as SAMMY'S President, Vice President of Sales and Vice President of Operations, respectively, with the Blue Book (a credit service for the produce industry). As such, and based on my conversations with Mr. NUCCI, Mr. PINES and Mr. SKWARA, I believe that each of the individuals named as Defendants herein (SKWARA, NUCCI and PINES) are and were responsible for the day-to-day operations of SAMMY'S during all material times herein, and were in a position to control the PACA Trust assets in SAMMY'S possession which belong to PRIME TIME. 6. I make this declaration in support of Plaintiffs' Motion to Expand the Preliminary

Injunction to prevent Defendants' further dissipation of PACA trust assets and to compel immediate turnover of all such trust assets rightfully belonging to Plaintiffs.

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LAW OFFICES RYNN & JANOWSKY 4100 NEWPORT PLACE DRIVE SUITE 700 NEWPORT BEACH, CALIFORNIA 92660 (949) 752-2911 FAX (949) 752-0953

7.

As Credit Manager of PRIME TIME, my responsibilities include monitoring its

sales of perishable agricultural commodities, including the sales that are the subject of this dispute, and supervising collection of its accounts receivable for such sales. I have custody and control of PRIME TIME'S sales and accounts receivable records as they relate to Defendant SAMMY'S, and I am thoroughly familiar with the manner in which those records are compiled. 8. The sales and accounts receivable records of Plaintiffs, including invoices, billing

statements and other related documents, are made in the ordinary course of business and are made at or near the time of the occurrence of the event of which they are a record. These sales records are made either by me or under my direction and supervision by PRIME TIME'S employees whose duty it is to make such documents. 9. The produce that is the subject of this dispute was sold and shipped in or in

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contemplation of interstate or foreign commerce. 10. The total balance due to PRIME TIME from Defendants results from one (1)

transaction involving tomatoes, a perishable agricultural commodity, shipped on January 10, 2008, which Defendant SAMMY'S accepted without objection, for the agreed-upon selling price as reflected on PRIME TIME'S invoice, of which the principal amount of $11,156.00 remains outstanding and seriously past due. 11. An invoice for the shipment was prepared and mailed to Defendant SAMMY'S by

PRIME TIME on or about the day of the transaction. A true and correct copy of Plaintiff PRIME TIME'S invoice confirming the sale is appended hereto and incorporated herein by reference as Exhibit 1. 12. Although Defendant SAMMY'S received and accepted the produce shipment

without objection, Defendant SAMMY'S has failed to pay for the produce that it purchased from PRIME TIME, with the exception of one payment in the amount of $2,000.00 which was made on May 12, 2008. 13. As Credit Manager of Plaintiff PRIME TIME, I review and approve any price adjustments, credits or discounts issued by PRIME TIME in connection with the sales that are the

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LAW OFFICES RYNN & JANOWSKY 4100 NEWPORT PLACE DRIVE SUITE 700 NEWPORT BEACH, CALIFORNIA 92660 (949) 752-2911 FAX (949) 752-0953

subject of this dispute. As of the date of this Declaration, no price adjustments of any amount have been issued to Defendants. 14. Further, as Credit Manager of PRIME TIME, it is my responsibility to make certain that PRIME TIME complies with all requirements necessary to preserve its trust rights under PACA for all unpaid shipments of produce, including the shipments that are the subject of this dispute. PRIME TIME is now, and during all times herein has been a PACA licensee, operating under PACA license no. 20020361. In compliance with the statutory filing requirements, I made certain that each of PRIME TIME'S invoices set forth the following statutory language required by PACA to preserve PRIME TIME'S PACA trust benefits: "The perishable agricultural commodities listed on this invoice are sold subject to the statutory trust authorized by section 5(c) of the Perishable Agricultural Commodities Act, 1930 (7 U.S.C. 499e(c)). The seller of these commodities retains a trust claim over these commodities, all inventories of food or other products derived from these commodities and any receivables or proceeds from the sale of these commodities until full payment is received."

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See, Exhibit 1, which shows that the above-quoted language appears on the face of the invoice sent to Defendants concerning the transaction that is the subject of this dispute. 15. For the above-stated reasons, I am confident that PRIME TIME has taken all steps

necessary to preserve its PACA trust rights in connection with its outstanding invoices in this proceeding. 16. Plaintiffs' invoices issued to Defendant SAMMY'S contain PACA Prompt payment

terms, or terms of net 10 days. However, as of the date of this declaration, the principal balance of $11,156.00 due to PRIME TIME from Defendants remains delinquent. Because of Defendants' failure to pay, and the seriously delinquent status of its account with our Company, and SAMMY'S admitted lack of sufficient funds to pay the amount it owes PRIME TIME, I believe that there is a great risk that PRIME TIME will not recover the balance due to it without this Court's intervention and issuance of an order restraining Defendants from further dissipation of PACA trust assets.

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LAW OFFICES RYNN & JANOWSKY 4100 NEWPORT PLACE DRIVE SUITE 700 NEWPORT BEACH, CALIFORNIA 92660 (949) 752-2911 FAX (949) 752-0953

17.

In or about February 2008, I began placing weekly telephone calls to SAMMY'S

requesting the payment of the amount due to PRIME TIME. Initially I spoke only with Sam NUCCI, who assured me on several occasions that PRIME TIME would be paid. At some point in February 2008, however, Sam NUCCI told me that I should call and speak to a woman named Tiffany who worked for SAMMY'S. Each time I spoke with Tiffany, she also assured me that PRIME TIME would be paid and told me that Sammy's was "waiting for deposits" and that she would call me back and give me the check information when she had it. 18. In or about March 2008, after receiving several broken promises of payment from

Tiffany, I called Sam NUCCI again to inquire about the outstanding invoice. Mr. NUCCI directed me to call Darin PINES, telling me that Mr. PINES would be able to make sure that PRIME TIME received payment. When I spoke with Mr. PINES, he asked to see a copy of the invoice (which I provided him) and told me that he would look into the matter. During follow up conversations with Mr. PINES, he told me not to worry and assured me PRIME TIME would be paid. 19. On April 22, 2008, after leaving several voicemails for both Tiffany and Mr.

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PINES, I asked Tom Oliveri, the Director of Trade Practices & Commodity Services at the Western Growers Association, to send a letter to SAMMY'S on PRIME TIME'S behalf to collect payment. A true and correct copy of that letter is attached as Exhibit 2. 20. Sometime after Mr. Oliveri's letter was sent, Yan SKWARA called me to "work

out a deal." I told Mr. SKWARA that I would be happy to accept a check for the full amount owed to PRIME TIME, but that I would not entertain any deals. 21. On May 12, 2008, I received a check from SAMMY'S in the amount of $2,000.00.

Deducting this amount from the original invoice price of $13, 156.00, SAMMY'S still owes a balance of $11,156.00. 22. At no time have any of the Defendants, or anyone acting on behalf of Defendants,

ever denied owing Plaintiff PRIME TIME money for the produce it received, nor have they disputed that the principal balance of $11,156.00 remains due to PRIME TIME from SAMMY'S. 23. Because Defendants have (a) admitted that they cannot promptly and fully pay the

PACA trust debt to PRIME TIME and (b) repeatedly failed to remit payments as promised, I am 5

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