Free Response in Support of Motion - District Court of California - California

Case 3:08-cv-00930-L-WMC

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BRYAN W. PEASE (SB# 239139) 302 Washington St. #404 San Diego, CA 92103 Telephone: (619) 723-0369 Facsimile: (619) 923-1001 email: [email protected] Attorney for Plaintiff

5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants admit they hold at least $71,016.70 in trust assets belonging to plaintiff and received the summons, complaint and TRO application at least three days prior to the order being issued. See Reynoso Dec. ¶¶ 5-6. Yet, defendants argue they should not be subject to a preliminary injunction because they are solvent and will eventually pay the amount owed pursuant to the PACA trust. See Opposition at 12. However, defendants do not deny that they have repeatedly failed to pay the amounts owing since October 2007 and have issued several checks to plaintiff that were returned for insufficient funds. See Skwara Dec. ¶¶ 10-12. Plaintiff seeks only to prevent the dissipation of the assets held for it in statutory trust by defendants. Defendants admit that MANUEL REYNOSO is the registered agent for REY & REY PRODUCE, INC. and lists an address on the Secretary of State website of 800 McGarry St., Sammy's Produce, Inc. 1
v. Rey & Rey Produce, Inc., et al. 08 CV 0930 L WMc Reply

SAMMY'S PRODUCE, INC., Plaintiff, v. REY & REY PRODUCE, INC., and MANUEL REYNOSO, Defendants.

) Civil Action, No.: 08 CV 0930 L WMc ) ) REPLY IN SUPPORT OF MOTION FOR ) PRELIMINARY INJUNCTION ) ) ) ) ) ) ) ) )

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Doors 11-12, Los Angeles, CA 90021. See Reynoso Dec. Ex. B. However, when the process server went to this address, he found it empty, and security told him the tenant moved out last month. See Proof of Service of Summons, Doc. 9-4. The process server then went to a second location known to plaintiff, found it closed, and was told by a neighbor he could find MANUEL REYNOSO at yet another location. Id. Finally, at that address, a man who identified himself as MANUEL REYNOSO accepted service. Id. When the process server returned after the TRO was granted to serve the order, this individual refused to come out of the building, even though the server waited for an hour and a half. See Proof of Service of TRO, attached hereto as Ex. A. This is further evidence that defendants are avoiding their creditors and dissipating trust assets. Defendants rely primarily on Driscoll Potatoes, Inc. v. N.A. Produce Co., Inc., 765 F.Supp. 174, 177 (D.N.J. 1991) for its ruling that the plaintiff in that case was not entitled to a preliminary injunction because it had an adequate remedy at law. See Opposition at 13. However, in Tanimura & Antle, Inc. v. Packed Fresh Produce, Inc., 222 F.3d 132, 136 (3d Cir. N.J. 2000), also cited in defendants' opposition, the Third Circuit criticized and distinguished Driscoll, noting that the dissipation of trust assets is sufficient to invoke preliminary injunctive relief under PACA. Tanimura at 137-138. The Third Circuit noted that the District Court in Driscoll erroneously believed that it "could not hear, or, alternatively, private trust beneficiaries could not bring, requests for equitable relief under PACA unless they were brought by the Secretary of Agriculture on behalf of the trust beneficiaries." Id. To the extent there is a factual dispute over the amount actually held in trust, and noting the PACA trust is also subject to 18% interest and attorney's fees, plaintiffs respectfully request a preliminary injunction ordering defendants not to use any assets of Rey & Rey Produce, Inc. for any other purpose until at least $71,016.70 is paid to plaintiff.

Dated: June 18, 2008

By: /s/ Bryan W. Pease_______________ Bryan W. Pease Attorney for Plaintiff

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Sammy's Produce, Inc. v. Rey & Rey Produce, Inc., et al. 08 CV 0930 L WMc Reply

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Exhibit A

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PROOF OF SERVICE BY ELECTRONIC FILING SAMMY'S PRODUCE, INC. V. REY & REY PRODUCE, INC. U.S. District Court Case No.: 08 CV 0930 L WMc I, Bryan W. Pease (SBN 239139), declare that I am, and was at the time of service of the papers herein referred to, over the age of eighteen years and not a party to the action; and I reside in the County of San Diego, California, in which county the within mentioned mailing occurred. My business address is 302 Washington St. #404, San Diego, CA 92103. I CAUSED TO BE SERVED, THE FOLLOWING DOCUMENTS: REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
I served the individuals named on June 18, 2008 by electronic filing: Natu J. Patel ([email protected], [email protected]) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Executed on June 18, 2008, San Diego, California.

/s/Bryan W. Pease Bryan W. Pease