Free Ex Parte Application - District Court of California - California

Case 3:08-cv-02848-PJH

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WHITNEY A. DAVIS, SBN 149523
MARIA S. ROSENFELD, SBN 186116
CHARTER DAVIS, LLP
1730 I Street, Ste. 240
Sacramento, CA 95814
(916) 448-9000
(916) 448-9009
ATTORNEYS FOR PLAINTIFF RENWOOD WINERY, INC.

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UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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) ) ) ) ) Plaintiff, ) ) vs. ) ) ) W.J. DEUTSCH & SONS LTD., a New ) ) York Corporation, and DOES 1-50
) inclusive, ) ) ) Defendants. ) ) ) ) ) ) )


RENWOOD WINERY INC.

Case No.: CV 08 2848 PJH

NOTICE OF HEARING ON BEHALF OF
RENWOOD WINERY, INC.
IN SUPPORT OF APPLICATION FOR
(l)EX PARTE WRIT OF POSSESSION, (2)TEMPORARY RESTRAINING ORDER PENDING HEARING ON WRIT OF
POSSESSION,
(3) WRIT OF POSSESSION
(4) PRELIMINARY INJUNCTION
Date: Time: Dept:

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TO THE CLERK OF THE COURT, THE COURT, AND ALL INTERESTED PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE THAT, on soon thereafter as the matter may be heard, in Dept. at or as of the above-entitled Court,

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located at 450 Golden Gate Avenue, 16th Floor, San Francisco California, plaintiffRENWOOD WINERY INC. ("RENWOOD") will and hereby1does move this Court ex parte for an order
NOTICE OF HEARING ON BEHALF OF RENWOOD WINERY INC.
FOR (1) EX PARTE WRIT OF POSSESSION OR (2) TEMPORARY RESTRAINING ORDER OR
(3) WRIT OF POSSESSION OR (4) PRELIMINARY INJUNCTION


Case 3:08-cv-02848-PJH

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issuing a writ of possession, or, in the alternative, for a temporary restraining order/injunctive
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relief CApplication"). Defendant W.J. DEUTSCH & SONS LTD. ("WJD") and their counsel were originally given notice of this Application in similar form on June 4, 2008. (See Declaration of Whitney A. Davis served herewith.) The matter was originally set for filing/hearing in Napa County Superio Court on June 9, 2008. However, on June 9, 2008, defendant W.J. DEUTSCH & SONS LTD. thereafter immediately removed the matter to the United States District Court, Northern District, before any temporary restraining order/alternative relief could issue. Accordingly, plaintiff RENWOOD re-submits the papers requesting that the Court grant its ex parte writ of possession or alternatively temporary restraining order under California Code Civ. Proc. § 511.010 et. seq. a incorporated by Federal Rules of Civil Procedure, Rule 64. This Application is made on the grounds that Defendant WJD is in wrongful possession certain cure inventory representing personal property collateral. RENWOOD seeks an ex parte writ of possession following WJD'S contractual defaultslbreaches relating to the wine sales and services agreement of March 2006 entered into by and between RENWOOD and WJD. The agreement requires that RENWOOD produce 16 wines organized in four tiers and that WJD exert its "best efforts" to market and sell those wines. WJD also guaranteed a 15% growth in RENWOOD sales by product and by tier for each month during the first five years of the contract. This means that if WJD did/does not sell the wine, WJD must buy the wine itself to cure the breach of the performance standard. Additionally, WJD must ensure that depletions of distributor inventory to retailers not fall below 80% of the sales performance standard. As is described in more detail within the accompanying points and authorities, WJD has breached the services agreement, (1) by accumulating and then selling out the enormous cure inventory, located in American Canyon, CA, before selling from RENWOOD inventory, and (2) at the same time, failing to cure contract breaches of the sales performance standard per the service agreement for many months. WJD is past due on cure invoices totaling in excess of $2 million. RENWOOD has a security interest in that cure inventory per the security agreement an UCC-l filings. The sale of wine from the WJD cure inventory before satisfying monthly sales requirements or cure demands constitutes an unfair business practice, in that WJD has used the
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NOTICE OF HEARING ON BEHALF OF RENWOOD WINERY INC.
FOR (1) EX PARTE WRIT OF POSSESSION OR (2) TEMPORARY RESTRAINING ORDER OR
(3) WRIT OF POSSESSION OR (4) PRELIMINARY INJUNCTION

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Case 3:08-cv-02848-PJH

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cure to delay payment and breach the contract. (See accompanying declarations of Robert
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Smerling and Danica Ratkovich filed and served herewith.) Based on the above, and given the immediate danger of the cure inventory quickly disappearing (per WJD's recent "sell otT scheme") RENWOOD applies for an ex parte writ of possession to mandate the return of the cure inventory collateral and to prevent WJD from wrongfully selling off cure inventory without curing contractual breaches under the services agreement. Due to WJD'S defaults on its contractual obligations to RENWOOD per the service agreement, RENWOOD has sent notices of cure and also made demand for the cure inventory in which it has a security interest, but WJD has refused to comply. RENWOOD seeks the court's assistance in enforcing its rights to possession of its cure inventory before WJD sells off more cure inventory, wrongfully diverting RENWOOD's collateral, and wrongfully profiting from the cure inventory. The instant writ of possession relief is a request for interim relief pending arbitration, demanded separately before Sacramento JAMS. The arbitration demand (a copy of which is on file as Exhibit B to the declaration of Whitney A. Davis accompanying RENWOOD's opposition to motion to dismiss papers) was filed at or about the same time as its request in state court, seeking to obtain ex parte writ of possession relief and accompanying injunctive relief as provisional relief to preserve the status quo pending arbitration. RENWOOD's goal is to recover and/or "freeze" (pending arbitration determination on the merits) certain cure inventory representing collateral in the possession of defendant WJD, following WJD'S contractual defaults/breaches relating to the Services Agreement. Nothing in either the Federal Arbitration Act (to the extent it is deemed applicable) or the California Arbitration Rules prohibit interim provisional relief ordered by the Court. To the contrary, Rule 24e of the JAMS rules permit such relief explicitly. (JAMS rules are attached as Exhibit D to the declaration of Whitney Davis supporting RENWOOD's opposition to motion to dismiss filed by WJD.)

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NOTICE OF HEARING ON BEHALF OF RENWOOD WINERY INC.
FOR (I) EX PARTE WRIT OF POSSESSION OR (2) TEMPORARY RESTRAINING ORDER OR
(3) WRIT OF POSSESSION OR (4) PRELIMINARY INJUNCTION


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PLEASE TAKE FURTHER NOTICE THAT, alternatively, if for any reason the ex parte
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writ of possession does not issue, RENWOOD seeks a temporary restraining order directing WJ to preserve the remaining cure inventory pending a noticed hearing on RENWOOD's application for writ of possession. This Application is made on the ground that there is good cause to issue the writ of possession or, in the alternative, issue a temporary restraining order. This Application is based 0 the attached Memorandum of Points and Authorities, the Declarations of Robert Smerling, (initia declaration and supplemental declaration) Danica Ratkovich, and the accompanying application for Ex Parte Writ of Possession, accompanying Ex Parte Writ of Possession declaration of Whitney A. Davis, the accompanying Compendium of Exhibits, and related papers filed concurrently herewith, on all pleadings, papers, records and files herein, and upon such further argument and evidence as may be considered by the Court.

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DATED: June!:f2 2008


TER DAVIS, LLP "'..

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NOTICE OF HEARING ON BEHALF OF RENWOOD WINERY INC.
FOR (I) EX PARTE WRIT OF POSSESSION OR (2) TEMPORARY RESTRAINING ORDER OR
(3) WRIT OF POSSESSION OR (4) PRELIMINARY INJUNCTION


Case 3:08-cv-02848-PJH

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WHITNEY A. DAVIS, SBN 149523 MARIA S. ROSENFELD, SBN 186116 CHARTER DAVIS, LLP 1730 I Street, Ste. 240 Sacramento, CA 95814 (916) 448-9000 (916) 448-9009 ATTORNEYS FOR PLAINTIFF RENWOOD WINERY, INC.

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UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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RENWOOD WINERY INC.
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) Case No.: CV 08 2848 PJH
MEMORANDUM OF POINTS AND
AUTHORITIES ON BEHALF OF
RENWOOD WINERY, INC.
IN SUPPORT OF APPLICATION FOR
(l)EX PARTE WRIT OF POSSESSION, (2)TEMPORARY RESTRAINING ORDER
PENDING HEARING ON WRIT OF
POSSESSION,
(3) WRIT OF POSSESSION (4) PRELIMINARY INJUNCTION Date: Time: Dept:

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) ) ) Plaintiff, ) ) ) vs. ) ) ) W.J. DEUTSCH & SONS LTD., a New ) ) Yark Corporation, and DOES 1-50 ) inclusive, ) ) ) Defendants. ) ) ) ) )


)
)


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MEMORANDUM OF POINTS AND AUTHORITIES ON BEHALF OF RENWOOD WINERY INC. FOR (1) EX PARTE WRIT OF POSSESSION OR (2) TEMPORARY RESTRAINING ORDER OR (3) WRIT OF POSSESSION OR (4) PRELIMINARY INJUNCTION

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I.
INTRODUCTION

Plaintiff RENWOOD WINERY INC. (hereinafter "RENWOOD") hereby submits the following Memorandum of Points and Authorities in support of its application for an ex parte application for a writ of possession or, in the alternative, a temporary restraining order pertaining to certain cure inventory collateral as discussed herein. To the extent ex parte writ of possession relief is denied, and a temporary restraining order instead issues pending a noticed hearing on the writ of possession, RENWOOD submits points and authorities in support of its writ of possession application concurrently herein. Lastly, if for any reason the Court denies the writ of possession application, a request for preliminary injunction is made to, at the very least, preserve the status quo as to the subject cure inventory pending judgment on the verified complaint filed and served herewith. Defendant W.J. DEUTSCH & SONS LTD. ("WJD") and their counsel were originally given notice of this Application in similar form on June 4, 2008. (See Declaration of Whitney A. Davis served herewith.) The matter was originally set for filing/hearing in Napa County Superio Court on June 9, 2008. However, on June 9,2008, defendant W.J. DEUTSCH & SONS LTD. thereafter immediately removed the matter to the United States District Court, Northern District, before any temporary restraining order/alternative relief could issue. Accordingly, plaintiff RENWOOD re-submits the papers requesting that the Court grant its ex parte writ of possession or alternatively temporary restraining order under California Code Civ. Proc. § 511.010 et. seq. a incorporated by Federal Rules of Civil Procedure, Rule 64. The instant writ of possession relief is a request for interim relief pending arbitration, demanded separately before Sacramento JAMS. The arbitration demand (a copy of which is on file as Exhibit B to the declaration of Whitney A. Davis accompanying RENWOOD's opposition to motion to dismiss papers) was filed at or about the same time as its request in state court, seeking to obtain ex parte writ of possession relief and accompanying injunctive relief as provisional relief to preserve the status quo pending arbitration. RENWOOD's goal is to recover and/or "freeze" (pending arbitration deternlination on the merits) certain cure inventory
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MEMORANDUM OF POINTS AND AUTHORITIES ON BEHALF OF RENWOOD WINERY INC.
FOR (1) EX PARTE WRIT OF POSSESSION OR (2) TEMPORARY RESTRAINING ORDER OR
(3) WRIT OF POSSESSION OR (4) PRELIMINARY INJUNCTION


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Case 3:08-cv-02848-PJH

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representing collateral in the possession of defendant WJD, following WJD'S contractual
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defaults/breaches relating to the Services Agreement. Nothing in either the Federal Arbitration Act (to the extent it is deemed applicable) or the California Arbitration Rules prohibit interim provisional relief ordered by the Court. WJD's motion to compel arbitration is mooted by RENWOOD's demand for arbitration. To the contrary, Rule 24e of the JAMS rules permit such relief explicitly. (JAMS rules are attached as Exhibit D to the declaration of Whitney Davis supporting RENWOOD's opposition to motion to dismiss filed by WJD.) Additionally, the Ninth Circuit has established that a party to an arbitration agreement may seek provisional injunctive relief in court, specifically provisional

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reliefin the form ora writ orpossession. (PMS Distributing Co., Inc. v. Huber & Suhner, A. G.,
863 F.2d 639, 642 (9th eir. 1988).) Therein, the Court ruled that a district court .£.!.!!!...grant injunctive relief in an arbitrable dispute pending arbitration, in line with the congressional desire to enforce arbitration agreements given that any ruling to the contrary would frustrate the Court's ability to maintain and preserve the status quo pending arbitration. RENWOOD applies for Writ of Possession relief under California Code of Civil Procedure § 512.010 to recover certain cure inventory representing personal property collateral in the possession of defendant W.J. DEUTSCH & SONS (hereinafter "WJD" and/or "Defendant".) RENWOOD seeks a writ of possession (ex parte or by noticed hearing as the Court deems necessary) following WJD'S contractual defaults/breaches relating to the wine sales and services agreement of March 2006 entered into by and between RENWOOD and WJD.
(Exhibit A, attached to the accompanying Compendium of Exhibits.) The agreement requires

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that RENWOOD produce 16 wines organized in four tiers and that WJD exert its "best efforts" to market and sell those wines. WJD also guaranteed a 15% growth in RENWOOD sales by product and by tier for each month during the first five years of the contract. This means that if WJD did/does not sell the wine, WJD must buy the wine itself to cure the breach of the performance standard. Additionally, WJD must ensure that depletions of distributor inventory to retailers not fall below 80% of the sales performance standard.

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MEMORANDUM OF POINTS AND AUTHORITIES ON BEHALF OF RENWOOD WINERY INC. FOR (I) EX PARTE WRIT OF POSSESSION OR (2) TEMPORARY RESTRAINING ORDER OR (3) WRIT OF POSSESSION OR (4) PRELIMINARY INJUNCTION

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As is described in more detail herein, WJD has breached the services agreement, (l) by
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accumulating and then selling out the enormous cure inventory, located in American Canyon, CA, before selling from RENWOOD inventory, and (2) at the same time, failing to cure contract breaches of the sales performance standard per the service agreement for many months. WJD is past due on cure invoices totaling in excess of $2 million. RENWOOD has a security interest in that cure inventory per the security agreement and UCC-l filings. The sale of wine from the WJD cure inventory before satisfying monthly sales requirements or cure demands constitutes an unfair business practice, in that WJD has used the cure to delay payment and breach the contract. (See accompanying declarations of Robert Smerling and Danica Ratkovich filed and served herewith.) Based on the above, and given the immediate danger of the cure inventory quickly disappearing (per WJD's recent "sell off scheme") RENWOOD applies for an ex parte writ of possession to mandate the return of the cure inventory collateral and to prevent WJD from wrongfully selling off cure inventory without curing contractual breaches under the services agreement. Due to WJD'S defaults on its contractual obligations to RENWOOD per the services agreement, RENWOOD has sent notices of cure and also made demand for the cure inventory in which it has a security interest, but WJD has refused to comply. RENWOOD seeks the court's assistance in enforcing its rights to possession of its cure inventory before WJD sells off more cure inventory, wrongfully diverting RENWOOD's collateral, and wrongfully profiting from the cure inventory. If for any reason the ex parte writ of possession does not issue, RENWOOD seeks a temporary restraining order directing WJD to preserve the remaining cure inventory pending a noticed hearing on RENWOOD's application for writ of possession. In order to streamline the process, RENWOOD likewise includes herein authorities supporting the noticed writ of possession hearing. If for any reason the writ of possession does not issue following noticed hearing, a request for preliminary injunction is also made herein.

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MEMORANDUM OF POINTS AND AUTHORITIES ON BEHALF OF RENWOOD WINERY INC.
FOR (I) EX PARTE WRIT OF POSSESSION OR (2) TEMPORARY RESTRAINING ORDER OR
(3) WRIT OF POSSESSION OR (4) PRELIMINARY INJUNCTION


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II.
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FACTUAL SUMMARY

RENWOOD and WJD executed a wine sales and service agreement in March of2006.
(Exhibit A, attached to the accompanying declaration of Robert Smerling.) The agreement

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requires that RENWOOD produce 16 wines organized in four tiers and that WJD exert its "best efforts" to market and sell those wines. (See accompanying Declaration of Robert Smerling (hereinafter "Smerling Dec") at ~ 5; Declaration of Danica Ratkovich (hereinafter "Ratkovich Dec" at ~ 6.) WJD also guaranteed a 15% growth in Renwood sales by product and by tier for each month during the first five years of the contract. This means that ifWJD did not sell the wine, WJD had to buy the wine itself to cure the breach of the performance standard. Additionally, WJD had to ensure that depletions of distributor inventory to retailers could not fall below 80% of the sales performance standard. (Jd. Smerling Dec at ~ 5; Ratkovich Dec at ~ 7.) The Services Agreement also required that RENWOOD pay WJD a marketing contribution or allowance for each case depleted to a retailer on some of the wines. WJD could only send a marketing contribution bill to Renwood on a quarterly basis. (Smerling Dec at ~ 6.) In the Services Agreement, WJD agreed to guarantee 15% sales growth over the previous year, on a monthly basis; i.e. the "performance standard." The monthly performance standards were pre-calculated for a five-year period. Per the terms of the agreement, WJD must cure any sales shortfall below the performance standard, by product and by tier, within 15 days of cure demand by Renwood. (Smerling Dec at ~ 8; Ratkovich Dec at ~ 7.) There is no limitation in the contract as to when Renwood can call for a cure. (Jd.) The 16 Renwood wines that are covered by the Services Agreement are grouped by tiers. "Tiers" are product categories. Tier 1 contains Proprietary wines; Tier 2 includes the "Amador County" wines; Tier 3 includes "Red Label" value wines; and Tier 4 contains dessert wines. (Smerling Dec at ~ 9.) Tiers 2 & 3 represent 85% ofRenwood's annual domestic sales historically. (Jd.)

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MEMORANDUM OF POINTS AND AUTHORITIES ON BEHALF OF RENWOOD WINERY INC. FOR (I) EX PARTE WRIT OF POSSESSION OR (2) TEMPORARY RESTRAINING ORDER OR (3) WRIT OF POSSESSION OR (4) PRELIMINARY INJUNCTION

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WJD was required to fulfill its obligation as follows: the monthly sales requirements for
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Tiers 1&4 had to be fulfilled 100% from those tiers, respectively; but the monthly requirement for Tiers2&3 had to be fulfilled from only 85% from those respective tiers, with a flexibility allowance that permitted the remaining 15% of the requirement to be satisfied from overages in any other tier. (Smerling Dec at ~ 10.) As an accommodation to WJD, during the first three months of the relationship (the "Transition Period") the Service Agreement provided that WJD only had to meet 100% of the prior year's sales for April, May and June 2006. Therefore, the 15% increase would not be applied until July, 2006. (Smerling Dec at ~ 11; Ratkovich Dec ~~ 11-13.) The Renwood fiscal year runs from July to June. The Transition period included April, May and June, 2006. Fiscal Year 2007 commenced on July 1,2006. During the Transition Period, WJD experienced a $300,000 shortfall out of the $2.1 million sales standard. (Smerling Dec at ~ 12; Ratkovich Dec at ~~ 14.) The shortfall included a l,IOO-case sale to Beverages & More that RENWOOD closed before the WJD agreement was signed. RENWOOD invoiced WJD for the 1,100 cases, but WJD still refuses to pay it. (Id.) Cure notices were sent to WJD after the Transition Period. WJD created a conflict because it tried to borrow July 2006 sales to make up the $300,000 deficit from June in order to meet its Transition Period cure obligations. (Smerling Dec at ~~ 13-15; Ratkovich at ~ 15.) RENWOOD protested WJD's actions. By WJD borrowing sales from July 2006 to cure the Transition Period shortfall, WJD started fiscal year 2007 with a shortfall. The WJD sales shortfall ballooned to $2.5 million by the end of November, 2007, merely seven months into the contract. (!d.) The WJD cure inventory grew dramatically. Their decision to ship from their inventory instead of from RENWOOD's caused larger monthly shortfalls in their sales guarantee. The sales shortfall and cure issue became a problem during Fiscal 2007 because WJD fell too far behind the sales guarantee. By the year's end in June of2007, WJD would only have sold about $3 million of the $8.217 million performance standard. (Smerling Dec at ~ 16; Ratkovich at ~ 16-17.)

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MEMORANDUM OF POINTS AND AUTHORITIES ON BEHALF OF RENWOOD WINERY INC. FOR (I) EX PARTE WRIT OF POSSESSION OR (2) TEMPORARY RESTRAINING ORDER OR (3) WRIT OF POSSESSION OR (4) PRELIMINARY INJUNCTION

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Thereafter, WJD began a practice of acknowledging cure(s) in 15 days, placing an order
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for the cure goods 10 to 15 days thereafter, paying RENWOOD 35 days after their order is shipped. This departure from the prior contractual arrangement moved RENWOOD's cash flow back between 50-60 days. (Smerling Dec at ~ 19; Ratkovich Dec at
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18-23.)

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They also manipulated the shipping date by refusing to accept goods within 15 days from the cure demand. IfWJD would have sold the goods to a distributor instead of buying the goods from RENWOOD for cure purposes, WJD would have had to pay RENWOOD for the same wine 60 days earlier. WJD then began to use the cure as a way to stretch-out payment terms another 60 days. WJD amassed a huge "cure" inventory ofRENWOOD wine, then filled distributor orders from the cure inventory before ordering from RENWOOD's inventory. (Id. Smerling Dec at ~ 19; Ratkovich at ~ 24-30) This cut-off cash flow to RENWOOD, Despite RENWOOD's objection, and lengthy discussion through a year of mediation, WJD continued this cure practice until February of2008. At that point, WJD stopped even acknowledging the cure demands ofRENWOOD, and started to sell-off the cure inventory. (Id.) RENWOOD has a security interest in that cure inventory evidence by Dee filings and the terms of the Services Agreement. (Smerling Dec at ~ 20.) In the year before hiring WJD, RENWOOD shipped 96,000 cases of wine and collected the proceeds directly from the distributors. After hiring WJD, and more importantly, after RENWOOD refused WJD's demand to reduce the 15% sales guarantee, WJD disrupted the shipment and payment procedures dramatically. (Smerling Dec at ~ 21.) To date in Fiscal 2008, WJD has shipped about 44,000 cases from the cure inventory as compared to 12,680 cases from RENWOOD's inventory. (Smerling at ~ 26; Ratkovich at
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WJD is selling out the enormous cure inventory before selling from RENWOOD inventory, and at the same time, WJD has not cured contract breaches of the sales performance standard for many months. WJD is past due on cure invoices exceeds $2 million. Renwood has a security interest in that cure inventory. (Smerling Dec at ~~59-60.)

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MEMORANDUM OF POINTS AND AUTHORITIES ON BEHALF OF RENWOOD WINERY INC.
FOR (1) EX PARTE WRIT OF POSSESSION OR (2) TEMPORARY RESTRAINING ORDER OR
(3) WRIT OF POSSESSION OR (4) PRELIMINARY INJUNCTION


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The sale of wine from the WJD cure inventory before satisfying monthly sales
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requirements or cure demands constitutes an unfair business practice, in that WJD has used the cure to delay payment and breach the contract. (Smerling Dec at ,-r 61; See Ratkovich Dec ,-r,-r 31 50 re: specifics regarding falsification data.) By cutting off sales revenue from contracted wines, WJD is eliminating revenue to prevent RENWOOD from funding its harvest of grapes for the next vintage. The grapes of an entire vintage will be ruined, causing irreparable injury in the form oflost inventory. RENWOOD's wines cannot be made with grapes from other vineyards, nor could RENWOOD buy grapes to replace them as the unique Grandpere and Grandmere grapes, blended into many of the other RENWOOD wines, can only be grown at RENWOOD. (Smerling Dec at ,-r 62.)

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III.
LEGAL ANALYSIS


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A.

THE APPLICATION FOR WRIT OF POSSESSION SHOULD BE GRANTED.

Code of Civil Procedure §§ 511.010 through 516.050 set forth the statutory provisional
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remedy of claim and delivery. The remedy of claim and delivery may be asserted to secure possession of personal property pending the outcome of an action. (Code Civ. Proc. §512.010.) Ownership is not the determinative issue. Rather, the ultimate issue is the right to possession. (Code ofCiv. Proc. §512.010; see also, RCA Service Company v. Superior Court ofSan
Francisco County (1982) 137 Cal.App.3d 1, 3).
1. Good Cause Exists for Renwood's Application for Writ Of

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Possession to be Issued Ex Parte.
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Pursuant to § 512.020(b)(3) of the Code of Civil Procedure, the Court may issue an ex parte writ of possession where the defendant acquired the property in the course of a trade or business for commercial purposes and:
(i)

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The property is not necessary for the support of the
defendant or his family; and


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MEMORANDUM OF POINTS AND AUTHORITIES ON BEHALF OF RENWOOD WINERY INC.
FOR (1) EX PARTE WRIT OF POSSESSION OR(2) TEMPORARY RESTRAINING ORDER OR
(3) WRIT OF POSSESSION OR (4) PRELIMINARY INJUNCTION


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(ii) There is an immediate danger that the property will
become unavailable to levy by reason of being transferred,
concealed, or removed from the state or will become
substantially impaired in value by acts of destruction or by
failure to take care of the property in a reasonable manner;
(iii) The ex parte issuance of a writ of possession is necessary
to protect the property.
See C.C.P. § 512.020(b)(3).

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The requirements of section 512.020 are met. The declarations of Robert Smerling and Danica Ratkovich filed in support hereof contain substantial evidence to support that there is an immediate danger of loss, destruction, transfer, or concealment to the subject cure inventory. (see declarations of Robert Smerling and Danica Ratkovich supporting this application and specific factual recitation above with reference to declarations.) First, WJD obtained the cure inventory in the ordinary course of business, and not for personal and/or household purposes. Second, the cure inventory consists of wine inventory and thus is inherently mobile and subject to being moved. Third, WJD is depriving RENWOOD of its security interest collateral on a daily basis, and has now concocted a scheme whereby the cure inventory collateral is being diverted/sold off, thus constituting an immediate and present danger, necessitating ex parte

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relief. (Id.)
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2. Renwood Has Established the Probable Validity of its Claim to Possessio of the Cure Inventory

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The requirement that the claim has probable validity before a writ may issue is satisfied where it appears more likely than not that the moving party, here RENWOOD, will obtain a judgment against its opponent, WJD, as regards to the claim for possession of the cure inventory. (Code Civ. Proc. §511.090.) Section 512.060 of the Code of Civil Procedure provides that a writ of possession shall b issued if plaintiff establishes the probable validity of the claim to possess the property. Section 511.090 defines "probable validity" as where it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim. Thus, this standard requires that a plaintif demonstrate only a prima facie case for the claim.
8

MEMORANDUM OF POINTS AND AUTHORITIES ON BEHALF OF RENWOOD WINERY INC.
FOR (I) EX PARTE WRIT OF POSSESSION OR (2) TEMPORARY RESTRAINING ORDER OR
(3) WRIT OF POSSESSION OR (4) PRELIMINARY INJUNCTION


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The statement of facts set forth above, as supported by the declarations of Robert

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Smerling and Danica Ratkovich filed in support, establish that RENWOOD has proven a prima
facie case with regard to its cause of action for possession of personal property/injunctive relief.
A person who is entitled to the possession of personal property held by another may bring an
action for the specific recovery of that property. (Code Civ. Proc. §5l2.0l0 et. seq.) An action fo
possession of personal property can be brought only by a person who is entitled to immediate
possession of the property. (Commercial & Sav. Bankv. Foster (1930) 210 Cal. 76, 79-80.) The
person need not be the absolute owner or be vested with legal title, so long as the person holds
some qualified interest that entitles the person to possession of the property. (Jd.)
The Declarations of Robert Smerling and Danica Ratkovich, summarized above, (see factual summary) establish probable cause for RENWOOD's claim to possession of the subject cure inventory. The declarations cumulatively establish the following key facts: - RENWOOD and WJD entered into a wine sales and services agreement requiring that RENWOOD produce 16 wines organized in four tiers and that WJD exert its "best efforts" to market and sell those wines. -Per the agreement, ifWJD did not sell the wine, WJD had to buy the wine itself to cure the breach of the performance standard. - Over time WJD experienced a $300,000 shortfall out of the $2.1 million sales standard during the initial transition period. -Cure notices were sent. -WJD then turned to borrowing sales to cure its transitional period shortfall. The WJD sales shortfall ballooned to $2.5 million by the end of November, 2007, merely seven months into the contract. -The WJD cure inventory grew dramatically. WJD then turned to shipping out from the cure inventory rather than RENWOOD's inventory per the contract. -By the year's end in June of2007, WJD would only have sold about $3 million of the $8.217 million performance standard. -Thereafter, WJD began a practice of acknowledging cure(s) in 15 days, placing an order for the cure goods 10 to 15 days thereafter, paying RENWOOD 35 days after their order is
9
MEMORANDUM OF POINTS AND AUTHORITIES ON BEHALF OF RENWOOD WINERY INC. FOR (I) EX PARTE WRIT OF POSSESSION OR (2) TEMPORARY RESTRAINING ORDER OR (3) WRIT OF POSSESSION OR (4) PRELIMINARY INJUNCTION

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shipped. This departure from the prior contractual arrangement moved RENWOOD's cash flow
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back between 50-60 days.
- They

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also manipulated the shipping date by refusing to accept goods within 15 days

from the cure demand. If WJD would have sold the goods to a distributor instead of buying the goods from RENWOOD for cure purposes, WJD would have had to pay RENWOOD for the same wine 60 days earlier. -WJD then began to use the cure as a way to stretch-out payment terms another 60 days. WJD amassed a huge "cure" inventory ofRENWOOD wine, then filled distributor orders from the cure inventory before ordering from RENWOOD's inventory. This cut-off cash flow to RENWOOD. -Despite RENWOOD's objection, and lengthy discussion through a year of mediation, WJD continued this cure practice until February of2008. At that point, WJD stopped even acknowledging the cure demands of RENWOOD. -At this point, WJD has turned to a practice of selling out the enormous cure inventory before selling from RENWOOD inventory, and at the same time, WJD has not cured contract breaches of the sales performance standard for many months. WJD is past due on cure invoices exceeding $2.5 million. Renwood has a security interest in that cure inventory. (See accompanying declarations of Robert Smerling and Danica Ratkovich.) The above scenario establishes RENWOOD's right to immediate possession of the cure inventory as a remedy for WJD'S failure to cure its contractual breaches and new scheme of wrongfully selling out the cure inventory. The requested relief is also necessary to protect and preserve the cure inventory collateral. WJD's repeated and continuing failure to cure its breaches and further, practice of selling off the cure inventory prior to other inventory forever deprives RENWOOD of its security interest in the cure inventory and proceeds generated from wrongful sale/diversion of the same. Once the cure inventory is diverted/sold off, RENWOOD is without remedy.
3. The Court Should not require an Undertaking by RENWOOD

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The purpose of the undertaking requirement is to indemnify the defendant against the
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MEMORANDUM OF POINTS AND AUTHORITIES ON BEHALF OF RENWOOD WINERY INC.
FOR (I) EX PARTE WRIT OF POSSESSION OR (2) TEMPORARY RESTRAINING ORDER OR
(3) WRIT OF POSSESSION OR (4) PRELIMINARY INJUNCTION


Case 3:08-cv-02848-PJH

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Page 12 of 15

consequence of a taking that may later be adjudged to be wrongful. (Symes Cadillac Inc. v.
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Insurance Co. ofNorth America (1977) 66 Cal.App.3d 905, 909.)

Under Code of Civil Procedure section 515.01 O(b), the bond for a writ of possession is

not required if the defendant has no economic interest or equity in the cure inventory:
(b) If the Court finds that the defendant has no interest in the property the Court shall waive the requirement of the plaintiff undertaking and shall include in the order for issuance of the writ the amount of the defendant's undertaking sufficient to satisfy the requirements of subdivision (b) of Section 515.020. In this case, WJD can have no economic interest in the cure inventory as the cure inventory has an estimated value of$I,761,400.00 but WJD owes RENWOOD more than $3 million (Supplemental Declaration of Robert Smerling Declaration.) Under California Code of Civil Procedure § 515.020(a), any redelivery bond posted by WJD must be in the same amount as RENWOOD's bond (if required) or in an amount determined by the court. Herein, to permit redelivery on a bond less than the value of the cure inventory would be a serious injustice to RENWOOD. RENWOOD thus requests that any redelivery bond be no less than the value of the cure inventory.
4. In Conjunction with Granting of the Writ, the Court Should Order a Levying Officer to Enter WJD's business as Necessary to Recover the Cure Inventory

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RENWOOD has established the probable cause requirement of California Code of Civil Procedure § 512.060(b) to enter a private place: No writ directing the levying officer to enter a private place to take possession of any property shall be issued unless the plaintiff has established that there is probable cause to believe that such property is located there. RENWOOD has established probable cause to believe the cure inventory is located at Western Wine Services, 875 Hanna Drive, American Canyon, CA. Attached as Exhibit B to the accompanying verified complaint is a true and correct copy of the precise identifying informatio concerning the subject cure inventory at this location. As a separate basis to allow entry to WJD'S premises, RENWOOD submits that the services agreement stipulates on behalf ofWJD to filing and satisfaction of writs of
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MEMORANDUM OF POINTS AND AUTHORITIES ON BEHALF OF RENWOOD WINERY INC. FOR (1) EX PARTE WRIT OF POSSESSION OR (2) TEMPORARY RESTRAINING ORDER OR (3) WRIT OF POSSESSION OR (4) PRELIMINARY INJUNCTION

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attachment/execution aimed against contracted product inventory including that "owned" by
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WJD. (Exhibit A to the declaration of Robert Smerling at p. 8 (i)(b).) Thus, implied permission is indeed contemplated within the agreement and is warranted at this time.
B. IN THE ALTERNATIVE, THE COURT MUST ISSUE A TEMPORARY RESTRAINING ORDER.

At the same a plaintiff files an application for a writ of possession, or as here, an ex parte writ of possession, the plaintiff may also seek a temporary restraining order ("TRO") to prevent the defendant from transferring any interest in the property or from otherwise disposing the cure inventory property. (Code Civ. Proc. § 513.010.) The same elements to establish grounds for a writ of possession apply for a TRO except that the plaintiff need only show that there is only a "probability" that the property will disappear or be damaged. (Id. § 513.01 O(b)(3). )This is a lesser standard than what is required for a writ of possession. As discussed above, RENWOOD has established the probable validity of its claim for possession of personal property and has established that WJD has no interest in the subject cure inventory. (See Code Civ. Proc. §§ 511.090; 515.010(b).) Again, RENWOOD herein establishes the probable validity of its claim by and through the accompanying declarations of Robert Smerling and Danica Ratkovich illustrating that WJD is in breach of the services agreement, has failed to cure its contractual breaches, and now engages in a practice of wrongfully selling the cure inventory, depleting RENWOOD's secured interest. RENWOOD is continually and irreparably harmed by WJD's contractual breaches, failure to cure and the diversion of cure inventory. Certainly, there is more than enough evidence to show that there is

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at least a "probability" that the cure inventory will disappear if a TRO does not issue. The
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irreparable harm here is real. The TRO is necessary to maintain the status quo and to ensure that
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the cure inventory is not lost, destroyed, transferred or concealed.
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Specific request is made that any TRO be issued for 22 days rather than 15 days. (CCP
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§513.010(a), 527(d)(l ).) Good cause exists for this request for the cure inventory will disappear
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if the TRO expires prior to any noticed writ of possession hearing going forward on 16 court
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days notice.
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MEMORANDUM OF POINTS AND AUTHORITIES ON BEHALF OF RENWOOD WINERY INC. FOR (I) EX PARTE WRIT OF POSSESSION OR (2) TEMPORARY RESTRAINING ORDER OR (3) WRIT OF POSSESSION OR (4) PRELIMINARY INJUNCTION

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C. IN THE ABSENCE OF ISSUANCE OF ITS WRIT OF POSSESSION E PARTE OR POST HEARING, RENWOOD IS ENTITLED TO A PRELIMINARY JUNCTION
The above authorities permit the Court to issue a writ of possession either ex parte or

4

upon noticed hearing. If for any reason, the Court declines issuance of a writ of possession on
5

an ex parte basis, and further declines to issue such an order after noticed hearing, RENWOOD
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applies for injunctive relief to protect its interest in the cure inventory during this lawsuit.
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Injunctive relief is available under California Code of Civil Procedure section 526(a) permits a
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plaintiff to seek an injunction: (1) When it appears by the complaint that the plaintiff is entitled to the relief demanded, and the relief, or any part thereof, consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually. (2) When it appears by the complaint or affidavits that the commission or continuance of some act during the litigation would produce waste, or great and irreparable injury, to a party to the action. Again, WJD has not cured its breaches under the services agreement. RENWOOD is continually and irreparably harmed by WJD's contractual breaches, failure to cure and the diversion of cure inventory by wrongful sale. Injunctive relief is particularly proper herein, as RENWOOD's security interest in the cure inventory is easily and quickly lost as WJD continues to sell off the cure inventory and spends the proceeds without accounting to RENWOOD, and continues to ignore the notices to cure which have gone unpaid. WJD has demonstrated a clear unwillingness to meet its contractual obligations and/or otherwise surrendering its cure inventory per the agreement which grants RENWOOD a security interest in this personal property. WJD is past due on cure invoices totaling $2.5 million. (See declarations of Robert Smerling and Danica Ratkovich.) If the Court does not issue injunctive relief, RENWOOD is in danger of having its secured position diminished further, causing great and irreparable injury to RENWOOD if injunctive relief is not granted. Lastly, the net effect of WJD's actions is a complete halt of cash flow to RENWOOD, impacting its ability to facilitate/fund its next harvest.
13

MEMORANDUM OF POINTS AND AUTHORITIES ON BEHALF OF RENWOOD WINERY INC.
FOR (1) EX PARTE WRIT OF POSSESSION OR (2) TEMPORARY RESTRAINING ORDER OR
(3) WRIT OF POSSESSION OR (4) PRELIMINARY INJUNCTION


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For all the reasons set forth above in support of the issuance of a temporary restraining
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order and writ of possession, RENWOOD likewise satisfies the requirements for injunctive relie in the form of a preliminary injunction to maintain the status quo during litigation of this matter.
IV.
CONCLUSION


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For the foregoing reasons, RENWOOD respectfully requests that the court issue an ex parte Order for Writ of Possession, or alternatively that the court issue a temporary restraining pending noticed hearing on RENWOOD's application for writ of possession order to maintain the status quo, and restrain WJD from continuing its failure to cure contractual breaches, and preventing its continued diversion and profit of the cure inventory at issue in this litigation, in which RENWOOD has a security interest. If for any reason the Court declines to issue the writ Either ex parte or as part of a noticed hearing, RENWOOD seeks injunctive relief in the form of a preliminary injunction to maintain the status quo as to the cure inventory for the pendency of litigation.

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DATED: June·1jJ 2008


CATER DAVIS, LLP

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MEMORANDUM OF POINTS AND AUTHORITIES ON BEHALF OF RENWOOD WINERY INC. FOR (1) EX PARTE WRIT OF POSSESSION OR (2) TEMPORARY RESTRAINING ORDER OR (3) WRIT OF POSSESSION OR (4) PRELIMINARY INJUNCTION

Case 3:08-cv-02848-PJH

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Filed 06/30/2008

Page 1 of 4

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WHITNEY A. DAVIS, SBN 149523
MARIA S. ROSENFELD, SBN 186116
CHARTER DAVIS, LLP
1730 I Street, Ste. 240
Sacramento, CA 95814
(916) 448-9000
(916) 448-9009
ATTORNEYS FOR PLAINTIFF RENWOOD WINERY, INC.

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UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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II

)


RENWOOD WINERY INC.
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) Case No.: CV 082848 PJH

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) ) ) ) Plaintiff, ) ) vs. ) ) ) W,J. DEUTSCH & SONS LTD., a New ) ) York Corporation, and DOES 1-50
) inclusive, ) ) ) Defendants. ) ) ) ) ) ) )


APPLICATION FOR WRIT OF
POSSESSION EX PARTE AND FOR
TEMPORARY RESTRAINING ORDER
Date: Time: Dept:

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APPLICATION FOR WRIT OF POSSESSION
EX PARTE AND FOR TEMPORARY RESTRAINING ORDER


Case 3:08-cv-02848-PJH

Document 17-3

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Page 2 of 4
CD-100

ATTORNEY OR PARTY 'NITHOUT A TTOR~IEY (Name, State Bar number, and address):

FOR COURT USE ONL Y

WHITNEY DAVIS. SBN 149523 -CHARTER DA VIS LLP 1730 1 STREET STE. 240 SACRAMENTO. CA 95814 TELEPHONE NO,: (916) 448-9000
E-MAIL ADDRESS (Optional): ATTORNEY FOR (Name):

FAX NO, (Optional):

(916) 448-9009

L'(

RENWOOD WINERY INC. SUPERIOR COURT OF CALIFORNIA, COUNTY OF NAPA JUN 0 9 2008 825 BROWN STREET 5- REET ADDRESS ,', ,I LING ADDRESS: 825 BROWN STREET (~I rk ' ille ofthe ~a~~rCourt AND ZIP CODE: NAPA CA 94559-3031 . A BRANCH NAME, NAPA'SUPERlOR COURT-HISTORIC COURTHOUS~':
PLAINTIFF:
~EFENDANT:

IENDORSED

~
I

RENWOOD WINERY INC. W.J. DEUTSCH & SONS LTD.

A,)PLlCATION FOR WRIT OF POSSESSION

0

AFTER HEARING

CASE NUMBER:

G.J

EX PARTE

[Z] AND FOR TEMPORARY RESTRAINING ORDER

Qi,6

.-

, lj: ( , 4 2<"< 31"

1, Plaintiff* has filed a complaint and makes claim for delivery of property in the possession of the defendant named in b, a, Plaintiff (name): b,

RENWOOD WINERY INC. Defendant (name): W.J. DEUTSCH & SONS LTD.

2, Plaintiff applies for (check all that apply): a, 0 Writ of possession after hearing (Code Clv. Proc, (C.C,P,). § 512.010). b, [Z] Ex parte writ of possession (C,C,P" § 512.020). (File Declaration for Ex Parte Writ of Possession, form CD-180.) c. [Z] Temporary restraining order (C,C.P" § 513.010), (File Application for Temporary Restraining Order, form CD-190.) 3, The basis of the plaintiffs claim and right to possession of the claimed property is specified in a copy of which is attached,

[Z] the verified complaint.

[2] the attached declaration,

[Z] a written document, [Z] the following facts (specify):

See Accompanying Memorandum of Points and Authorities in support of Application for Ex Parte Writ of Possession and alternatively TRO filed/served concurrently herewith; See also Accompanying Compendium of Exhibits, Accompanying Declarations of Whitney Davis. Robert Smerling and Danica Ratkovich filed/served concurrently herewith. See also Verified Complaint tiled/served herewith.
4, Claimed property (Describe, state value, and further identify any property that is a farm product (Code CivProc,. § 511,040) or inventory held for sale or/ease (Code Civ. Proc., § 511,050)):

See Attachment

[]J

Continued on Attachment 4,
Page 1 of 2
CCLilT'l1ro l.a

. "Plaintiff" inCludes cross-complainant. "defendant" includes cross-defendant, and "complaint" inclUdes cross-complaint.
Form Adopted for i,1anaatory Use JL:oic:al Coullcil of California

CD-I GO [Rev

~anuary

1. 2006]

APPLICATION FOR WRIT OF POSSESSION (Claim and Delivery)

',',IV,.Y

i www.USCourrForms_cofil

I~ American Legal'Net. Inc.

!
I

Case 3:08-cv-02848-PJH

Document 17-3

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CD-100

PLAINTIFF: DEFENDANT

RENWOOD WINERY INC. W.J. DEUTSCH & SONS LTD.

5. A showing that the claimed property is wrongfully detained by defendant, of how the defendant came into possession of the claimed property, and, according to Plaintiff's best knowledge, information, and belief, of the reason for the defendant's detention of the [Z] in the verified complaint. [Z] in the attached declaration. [Z] as follows (specify): claimed property, is made

See Accompanying Memorandum of Points and Authorities in support of Application for Ex Parte Writ of Possession and alternatively TRO filed/served concurrently herewith; See also Accompanying Compendium of Exhibits, Accompanying Declarations of Whitney Davis, Robert Smerling and Danica Ratkovich filed/served concurrently herewith. See also Verified Complaint filed/served herewith.

6. To Plaintiffs best knowledge, information, and belief the claimed property or some part of it is located as stated

ill

in the verified complaint.

[Z] in the attached declaration.

ill

as follows (specify):

(Include in this statement whether any part of the claimed property is within a private place that may have to be entered to take possession. If so, complete item 7.)

See Accompanying Memorandum of Points and Authorities in support of Application for Ex Parte Writ of Possession and alternatively TRO filed/served concurrently herewith; See also Accompanying Compendium of Exhibits, Accompanying Declarations of Whitney Davis, Robert Smerling and Danica Ratkovich filed/served concurrently herewith. See also Verified Complaint filed/served herewith. The subject cure inventory is located at 875 Hanna Drive, American Canyon, CA
7. [Z] Facts showing probable cause for belief that the claimed property or some part of it is located in the private place referred to in item 6 are specified [2] in the verified complaint. [Z] in the attached declaration. [Z] as follows:

See Accompanying Memorandum of Points and Authorities in support of Application for Ex Parte Writ of Possession and alternatively TRO filed/served concurrently herewith. As a separate basis to allow entry to WJD'S premises, RENWOOD submits that the services agreement stipulates on behalfofWJD to filing and satisfaction of writs of attachment/execution aimed against contracted product inventory including that "owned" by WJD. (Exhibit A to the accompanying declaration of Robert Smerling at p. 8 (i)(b).) Thus, implied permission is indeed contemplated within the agreement and is warranted
8. The claimed property has not been taken for a tax, assessment, or fine, pursuant to statute, and (check one): a. b.

[Z]

0

has not been seized under an execution against the plaintiff'S property. has been seized under an execution against the plaintiffs property, but is exempt from such seizure under

(code section):
9.

0

=

This action is subject to the

0

Unruh Retail Installment Sales Act (Civ. Code, §§ 1801-1812.10);

Rees-Levering Motor Vehicle Sales and Finance Act (Civ. Code, §§ 2981-2984.4). v. eried complaint. .

Facts showing that this is the proper court are specified in the

1_ 10. Total number of pages attached: __

=I
r
I,

0

attached declaration.

I declare under penalty of perjury under the laws of the State of California that th8Jf~egOing is true and correct. Dated:

June

, 2008

i' \
'1, \----.
'\
(PL;"INTIFF·S SIGNAT'JREi Page 2 of 2

\

WHITNEY A. DAVIS
,TYPE OR PRINT NAME)

·:CJ·100 !Rev Januarv 1. 2006)

APPLICATION FOR WRIT OF POSSESSION (Claim and Delivery)

Case 3:08-cv-02848-PJH

Document 17-3

Filed 06/30/2008
CASE NUMBER

Page 4 of 4

SHORT TITLE:
f-

Renwood Winery, Inc. v. W.J. Deutsch & Sons, Ltd.

ATTACHMENT 4:
The cure inventory subject to writ of possession:
2
149322030100 RENWOOD ZINFANDEL GRANDPERE AMADOR COUl'JTY 20036/750; 57 cases
3
149322040100 RENWOOD ZINFANDEL GRANDPERE AMADOR COUNTY 20046/750; 0 cases
140277040100 RENWOOD BARBERA AMADOR COUNTY 2004 6/750; 0 cases
4
149232040000 RENWOOD ZINFANDEL OLD VINE AMA DOR COUNTY 2004 12/750: 836 cases
5
149232040401 RENWOOD ZINFANDEL OLD VINE AMA DOR COUNTY 2004 l/3L; · PROMO 15
cases 6
149232050000 RENWOOD ZINFANDEL OLD VINE AMA DOR COUNTY 200512/750; 4,211 cases 7
149324040100 RENWOOD ZINFANDEL JACK RABBIT FLAT 20046/750; 65 cases 146550060300 RENWOOD ORANGE MUSCAT AMADOR COUNTY 200612/375; 536 cases 8
147052030300 RENWOOD PORT SIERRA FOOTHILLS 2003 12/375; 555 cases 9
147052040000 RENWOOD PORT SIERRA FOOTHILLS 2004 12/750; 89 cases 149233060300 RENWOOD ZINFANDEL AMADOR ICE 2006 12/375; 26 cases 10
146744050000 RENWOOD DRY ROSE RED LABEL 200512/750; 425 cases 11
149174050000 RENWOOD VIOGNIER SIERRA SERIES 2005 12/750; 0 cases 149234050000 RENWOOD ZINFANDEL RED LABEL 200512/750; 10,799 cases
1


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The above inventory is located at 875 Hanna Drive, American Canyon, CA. Stated value: $1,761,400.00

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(Required for verified pleading) The items on this page stated on information and belief are (specify item numbers. not line numbers):
This page may be used with any Judicial Council form or any other paper filed with the court.
Form Approved b'l the
JudiCial COllnel1 or Co,ldOf(113 i,lC-u2Q [i-.lev,l .iJ.fluar",~, \9871

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Page

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ADDITIONAL PAGE Attach to judicial Council Form or Other Court Paper

Case 3:08-cv-02848-PJH

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Page 1 of 3

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WHITNEY A. DAVIS, SBN 149523 MARIA S. ROSENFELD, SBN 186116 CHARTER DAVIS, LLP 1730 I Street, Ste. 240 Sacramento, CA 95814 (916) 448-9000 (916) 448-9009 ATTORNEYS FOR PLAINTIFF RENWOOD WINERY, INC.

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UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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) ) ) ) Plaintiff, ) ) ) vs. ) ) ) W.J. DEUTSCH & SONS LTD., a New ) ) York Corporation, and DOES 1-50 ) inclusive, ) ) RENWOOD WINERY INC. Defendants.
) ) ) ) ) ) ) )


Case No.: CV 08 2848 PJH

EX PARTE WRIT OF POSSESSION

Date:
Time:
Dept:

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EX PARTE WRIT OF POSSESSION

Case 3:08-cv-02848-PJH

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CD-130

ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address):

FOR COURT USE ONL Y

I CHARTER DA VIS LLP
E-MAIL ADDRESS (Optional):


I

Whitney A. Davis. SBN 149523

1730 I Street. # 240
Sacramento, CA 95814
TELEPHONE NO. (916) 448-9000
ATTORNEY FOR (Name):

FAX NO. (Optional)

(916) 448-9009


Renwood Winery, Inc.
SUPERIOR COURT OF CALIFORNIA, COUNTY OF NAPA
STREET ADDRESS 825 Brown Street
MAILING ADDRESS
CITY AND ZIP CODE
BRANCH NAME

Napa, CA 94559-3031 Historic Courthouse
RENWOOD WINERY, INC.
W.J. DEUTSCH & SONS, INC.

PLAINTIFF: DEFENDANT:

WRIT OF POSSESSION
~

=

CASE NUMBER

_

AFTER HEARING

[Z] EX PARTE
-------L------_

TO THE SHERIFF OR ANY MARSHAL OF THE COUNTY OFiAPA YOU ARE DIRECTED:
1. To levy upon and retain in your custody, until released or solr 'Code Civ. Proc" § 514.030), the following property or any part of it (specify):

See Attachment

2. To enter the following private place or places to take posse: (specify exact locations):

on of the above-described property or some part of it

See Attachment

3. To return this writ and the certificate of your proceedings WI lin 30 days after levy and service, but in no event later than 60 days after issuance of this writ. Dated:
(SEAL)

Cler·., by

, Deputy

NOTICE TO DEFENDANT: The plaintiff has filed with the court a written undertaking, a copy of which is attacned, You have the right to object to the plaintiffs undertaking on a ground specified in Code of Civil Procedure section 995.920 and in the manner prOVided in Code of Civil Procedure section 515.030 or to obtain redelivery of the property by filing a written undertaking of your own, in an amount equal to the plaintiff's undertaking or as determined by the court under Code of Civil Procedure sections 515.010 and 515,020 You also have other rights under Code of Civil Procedure sections 512.020-512.120, If your property has been taken under an ex parte writ of possession, you may apply under Code of Civil Procedure section 512,020(b) for an order that the Writ be quashed, any property leVied on be released, and for other relief as provided in that section, including an award of damages for any loss sustained by you as a proximate result of the levy.
Page 1 of 1

corm Adopted for Mandatory Use ,:uulclal Council of California :;D-130 [Rev Januarv 1, 2006]

WRIT OF POSSESSION
(Claim and Delivery)

Code Cov Froc., ~..§ 512.020-51::: 120

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Case 3:08-cv-02848-PJH

Document 17-4

Filed 06/30/2008
CASE NUMBER

Page 3 of 3

I SHORT TITLE:

I

r- Renwood Winery, Inc. v. W.J. Deutsch
2


& Sons, Ltd.


The cure inventory subject to ex parte writ:
149322030100 RENWOOD ZINFANDEL GRANDPERE AMADOR COUNTY 200361750; 57 cases
3
149322040100 RENWOOD ZINFANDEL GRANDPERE AMADOR COUNTY 200461750; 0 cases
140277040100 RENWOOD BARBERA AMADOR COlf1\ITY 2004 61750; 0 cases
4
149232040000 RENWOOD ZINFANDEL OLD VINE AMA DOR COUNTY 2004 121750; 836 cases
5
149232040401 RENWOOD ZINFANDEL OLD VINE AMA DOR COUNTY 2004 1/3L; · PROMO 15
cases
6
149232050000 RENWOOD ZINFANDEL OLD VINE AMA DOR COUNTY 2005121750; 4,211 cases
7
149324040100 RENWOOD ZINFANDEL JACK RABBIT FLAT 200461750; 65 cases
146550060300 RENWOOD ORANGE MUSCAT AMADOR COUNTY 200612/375; 536 cases
8
147052030300 RENWOOD PORT SIERRA FOOTHILLS 2003 12/375; 555 cases
9
147052040000 RENWOOD PORT SIERRA FOOTHILLS 2004 121750; 89 cases
149233060300 RENWOOD ZINFANDEL AMADOR ICE 2006 12/375; 26 cases
10
146744050000 RENWOOD DRY ROSE RED LABEL 2005121750; 425 cases
11
149174050000 RENWOOD VIOGNIER SIERRA SERIES 2005 121750; 0 cases
149234050000 RENWOOD ZINFANDEL RED LABEL 2005121750; 10,799 cases
12
The above inventory is located at 875 Hanna Drive, American Canyon, CA.

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(Required for verified pleading) The items on this page stated on information and belief are (specify item numbers. not line numbers):
I
1


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This page may be used with any Judicial CounCil form or any other paper filed with the court.


Page

_

Form Approved by tile
JudiCial CDur,cl1 at California

:.IC-020 INew ,anuary 1. 1987]

ADDITIONAL PAGE Attach to Judicial Council Form or Other Court Paper

:RC 201 cOl

Case 3:08-cv-02848-PJH

Document 17-5

Filed 06/30/2008

Page 1 of 3

2

3

4 5 6
7

WHITNEY A. DAVIS, SBN 149523 MARIA S. ROSENFELD, SBN 186116 CHARTER DAVIS, LLP 1730 I Street, Ste. 240 Sacramento, CA 95814 (916) 448-9000 (916) 448-9009 ATTORNEYS FOR PLAINTIFF RENWOOD WINERY, INC.

UNITED STATES DISTRICT COURT
8

FOR THE NORTHERN DISTRICT OF CALIFORNIA
9

Case No.: CV 082848 PJH

DECLARATION OF WHITNEY A. DAVIS IN SUPPORT OF MEMORANDUM OF POINTS AND AUTHORITIES FOR EX PARTE WRIT OF POSSESSION/TEMPORARY RESTRAINING ORDER Date: Time: Dept:

DECLARATION OF WHITNEY A. DAVIS IN SUPPORT OF MEMORANDUM OF POINTS AND


AUTHORITIES FOR EX PARTE WRIT OF POSSESSION/TEMPORARY RESTRAINING ORDER


Case 3:08-cv-02848-PJH

Document 17-5

Filed 06/30/2008

Page 2 of 3

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MARIA S. ROSEI'JFELD, SBN 186116 CHARTER DAVIS, LLP 1730 I Street, Ste. 240 Sacramento, CA 95814 Tel: (916) 448-9000 Fax: (916) 448-9009 Attorneys

ENDORSED
JUN 0 9 Z008
Clerk of the Nepa Superior eourt


5 6

RENWOOD·~NC.

fo~


By' ·

Sa-EEBWuA- D8fMY

7
8
9 10 11

IN THE SlJPERIOR COURT IN THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF NAPA


RENWOOD WINERY INC. Plaintiff, vs.

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)

Case No.:

21- 4 283 7,ftI
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12
13
14
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)
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DECLARATION OF WHITNEY A. DAVIS
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W.J. DEUTSCH & SONS LTD., a New York) Corporation, and DOES 1-50 inclusive, )
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16

Defendants. ) ----------------) I, WHITNEY A. DAVIS, declare:

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17 18

1. I am an attorney at law licensed to practice before all of the courts of the State of
19

California, and am a partner of the Charter-Davis, LLP law firm, attorneys of record
20

for Renwood Winery, Inc. I have personal knowledge of the facts and circumstances
21

set forth below, and if called upon to do so could and would testify thereto.
'1')

2. I originally provided notice to Jim Parinello, counsel for W.J. Deutsch and Sons, Ltd. on Thursday, June OS, 2008 of Renwood's intention to seek a TRO as it was
24

25
26

originally scheduled for Friday, June 6, 2008. 3. Due to the Court's calendar. and due to the fact that additional relevant information came to my attention on June 5, 2008 that required revision of the moving papers.

-I

"-0

28

my office re-scheduled the ilearing to take place on ),,1onday. June 9. 2008.
- 1 DECLARATION OF WHITNEY A. DAVIS

Case 3:08-cv-02848-PJH

Document 17-5

Filed 06/30/2008

Page 3 of 3

4. On June 5, 2008, I received information leading me to believe that W ..T. Deutsch may be planning to liquidate the collateral cure inventory and "dump" the inventory
3


at below-market prices in order to damage Renwood and the distributor network. Such a tactic had been mentioned in the past by Jim Mello, President of W.J.

5

6

7


Deutsch, which corroborated the risk of that tactic being deployed by W.J. Deutsch. Even if W.J. Deutsch had no intention of damaging Renwood by dumping the collateral cure inventory, the fact that W.J. Deutsch has not paid Renwood for months and is past due on millions of dollars of invoices led me to believe that W.J. Deutsch is suffering a financial crisis that may compel it to liquidate the collateral cure inventory for its own cash flow needs. 5. On June 5, 2008, I advised Jim Parinello, counsel for W.J. Deutsch & Sons, of the hearing date and time for this matter. The final moving papers are scheduled to be sent to Mr. Parinello's office via e-mail on Saturday, June 7,2008.

8

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to

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IS
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I declare under penalty of perjury under the laws of the Srorre of California that the foregoing is true and correct, and that this declaration was eiecuted on June 6, 2008 at
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19


Sacramento, California.

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20
21
22


Whitney A. Davis

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28

-2 DECLARATION OF WHITNEY A. DAVIS

Case 3:08-cv-02848-PJH

Document 17-6

Filed 06/30/2008

Page 1 of 4

2

3

4


WHITNEY A. DAVIS, SBN 149523
MARIA S. ROSENFELD, SBN 186116
CHARTER DAVIS, LLP
1730 I Street, Ste. 240
Sacramento, CA 95814
(916) 448-9000
(916) 448-9009
ATTORNEYS FOR PLAINTIFF RENWOOD WINERY, INC.

5
6


7


UNITED STATES DISTRICT COURT
8


FOR THE NORTHERN DISTRICT OF CALIFORNIA
9


10 11 12

13


RENWOOD WINERY INC.


14 15 16 17 18
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23


) ) ) ) ) Plaintiff, ) ) ) vs. ) ) ) W.J. DEUTSCH & SONS LTD., a New ) ) York Corporation, and DOES 1-50
) inclusive, ) ) ) Defendants. ) ) ) ) ) ) )


Case No.: CV 08 2848 PJH

DECLARATION FOR EX PARTE WRIT OF
POSSESSION


Date: Time: Dept:

24
25 26

27


28


DECLARATION FOR EX PARTE WRIT OF POSSESSION


Case 3:08-cv-02848-PJH

Document 17-6

Filed 06/30/2008

Page 2 of 4

ATTORNEY OR PARTY WITHOUT ATTORNEY (Name. State Bar number, and address)

FOR COURT USE ONL Y

Whitney A. Davis. SBN 149523
CHARTER DAVIS LLP
1730 I Street. # 240 Sacramento, CA 95814 TELEPHONE NO.: (916) 448-9000
E-MAIL ADDRESS (Oplional). ATTORNEY FOR (Name):

FAX NO. (Optional)

(916) 448-9009

Renwood Winery, Inc. NAPA 825 Brown Street Napa, CA 94559-3031 Historic Courthouse RENWOOD WINERY, INC. W.J. DEUTSCH & SONS, LTD.

SUPERIOR COURT OF CALIFORNIA, COUNTY OF
STREET ADDRESS' MAILING ADDRESS CITY AND ZIP CODE: BRANCH NAME

ENDORSED

JUN 0 9 2008

;:erk of the 1~ B
CASE NUMBER

EGA

I

Court

PLAINTIFF DEFENDANT

~

DECLARATION FOR EX PARTE WRIT OF POSSESSION

21 : 4 28 3 '7~1


1.

0

A showing that the defendant' gained possession of the property described in the application, which was not entrusted to the defendant, by feloniously taking such property from the plaintiff' by means other than by false or fraudulent representation, verified complaint. 0 attached declaration. 0 as follows: pretense, or embezzlement is made in the 0

2.

0

o

A showing that the property described in the application is a credit card is made in the attached declaration 0 as follows:

0

verified complaint

3. [Z] A showing that the defendant acquired possession of the property described in the application in the ordinary course of trade or business for commercial purposes, and (a) the property is not necessary for the support of the defendant or the defendant's family; (b) there is an immediate danger that the property will become unavailable to levy by reason of being transferred, concealed or removed from the state, or will become substantially impaired in value by acts of destruction, or by failure to take care of the property in a reasonable manner; and (c) the ex parte issuance of a writ of possession is necessary to protect the property is made in the [2] verified complaint. [Z] attached declaration. [Z] as follows

See Attachment

4. 5.

The plaintiff

0

has

[Z] has not

filed an undertaking under Code of Civil Procedure section 515.010.

Number of pages attached: __ 1_

II
'

I declare under penalty of perjury under the laws of the State of California that~he lbregoing is true and correct Date

June

d

~

!. 2008

I
I

WHITNEY A. DAVIS
\ TYPE OR PRINT
PU;I~,JTIFF'S NA~,,1E)

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"Plaintiff" includes cross-