Lenden F. Webb (SBN 236377)
`Brooke B. Nevels (SBN 302994)
`WEBB LAW GROUP, APC
`466 W. Fallbrook Ave. Suite 102
`Fresno, CA 93711
`Telephone: (559) 431-4888
`Facsimile: (559) 821-4500
`Email: LWebb@WebbLawGroup.com
`Email: BNevels@WebbLawGroup.com
`
`Attorneys for Plaintiff Alex Press
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`E-FILED
`7/15/2020 3:04 PM
`Superior Court of California
`County of Fresno
`By: A. Rodriguez, Deputy
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`SUPERIOR COURT OF CALIFORNIA, COUNTY OF FRESNO
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`CIVIL UNLIMITED DIVISION
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`ALEX PRESS, individually and derivatively
`on behalf of Sierra Food Group, Inc. a
`California corporation;
`Plaintiff,
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`vs.
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`NORDHAVEN, LLC, a California limited
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`liability company; INTERNATIONAL
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`GLACE, INC., an Oregon corporation; ALAN
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`SIPOLE, an individual; BILL DAVIS; an
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`individual; DAN INDGJERD, and individual;
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`SIERRA FOOD GROUP, INC., a California
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`corporation, a nominal Defendant; and DOES
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`1-25,
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`Case No.:
`20CECG02034
`COMPLAINT FOR:
`1. BREACH OF FIDUCIARY DUTY
`2. BREACH OF BYLAWS
`3. USURPATION OF CORPORATE
`OPPORTUNITIES
`4. CONVERSION
`5. UNFAIR BUSINESS PRACTICES
`IN VIOLATION OF CAL. BUS. &
`PROF. CODE §§ 17200, et seq.
`6. UNJUST ENRICHMENT
`7. DEMAND FOR CORPORATE
`RECORDS
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`DEMAND FOR JURY TRIAL
`
`Defendants.
`
`Plaintiff ALEX PRESS (hereinafter “Plaintiff” or “Press”), hereby alleges as follows:
`THE PARTIES
`At all times mentioned herein, Plaintiff Alex Press is an individual who resided
`1.
`in Fresno County, California and was and is a shareholder of SIERRA FOOD GROUP, INC.
`(“SFG”).
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`2.
`Nominal Defendant Sierra Food Group, Inc. was incorporated in California in
`2011, and conducted business in Fresno County, California. Throughout the relative time
`period, SFG was privately held.
`3.
`Based on information and belief, nominal Defendant Sierra Food Group, was a
`California corporation doing business in Fresno County, California.
`4.
`Based on information and belief, Defendant NORDHAVEN, LLC
`(“Nordhaven”) is a California limited liability company doing business in Fresno County,
`California.
`5.
`Based on information and belief, Defendant INTERNATIONAL GLACE, INC.,
`(“Glace”) is an Oregon corporation doing business in Fresno County, California.
`6.
`Plaintiff is informed and believes, and thereon alleges, that DOES 1 through 12
`are persons, corporations or other entities which reside or are authorized to do and are doing
`business in the State of California. The true identities of DOES 1 through 12 are currently
`unknown to Plaintiff; therefore, Plaintiff now sues DOES 1 through 12 by fictitious names.
`Plaintiff will amend this Complaint to state the proper names of each Doe Defendant when its
`identity is discovered.
`7.
`Plaintiff is informed and believes, and thereon alleges, that DOES 13 through 25
`are persons, corporations, or other entities which reside or are authorized to do and are doing
`business in the State of California. The true identities of DOES 13 through 25 are currently
`unknown to Plaintiff and therefore Plaintiff pray for leave to amend this Complaint to assert the
`proper names of each Doe-Defendant when its identity is discovered. Plaintiff is informed and
`believe and thereon allege that DOES 13 through 25 were the managerial agent, owner, partner,
`employee, predecessor, subsidiary successor, joint venture, co-conspirator, alter ego, and/or
`representative of each and every other Defendant named herein or identified as DOES 1
`through 12, and acted with the permission, authorization and/or ratification and consent of each
`and every other Defendant at all relevant times herein.
`8.
`Plaintiff is informed and believes, and thereon alleges that each fictitiously
`named Defendant, including Does 9 through 17, are in some way responsible for, participated
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`in, or contributed to the matters of which Plaintiff complains of, and has legal responsibility for
`those matters.
`9.
`Plaintiff is informed and believes, and thereon alleges that, at all relevant times,
`each of the Defendants, whether named or fictitious, were the agent or employee of each of the
`other Defendant, the alter ego or successor of each Defendant, and in doing the things alleged
`to have been done in the complaint, acted within the scope of such agency or employment, or
`ratified the acts of the other.
`GENERAL FACTUAL ALLEGATIONS
`10.
`Shortly after Press moved to Fresno, California in 2003, he met Rodney Walker
`and started working together in his operation Walker Snack Pack. Press moved some of his
`equipment from Colorado into Mr. Walker’s facility and began working for him. Walker and
`press set up several new lines using the equipment including oil nut Roasting, Dry Nut
`Roasting, Nut Butter Milling, Jar filling and Flour Milling.
`11.
`One of Walkers’ main customers decided to stop doing business with him so
`Walked formed another company San Juaquin Valley Farms with several other partners. Press
`continued to work for this company doing research and development, quality control, plaint
`engineering, mechanical and electrical work.
`12.
`After approximately one (1) year, the partners decided to sell their portion of the
`operation to Dan On, and Dan-D-Pack, with Walker retaining his part of the company as a
`minority shareholder. Soon thereafter, based on information and belief, Mr. Walker went to
`work for Pacific Grain & Foods. During this time, Press stayed on with Dan-D-Pack in a
`similar capacity.
`13.
`After approximately one (1) year, based on information and belief, Dan On
`decided to open his own facility in Fresno, and left Walker with some of the equipment so he
`could maintain his business. Based on information and belief, Walker took some customers and
`several lines to it make it difficult for Walker to keep the business up and running.
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`Fresno, California 93711
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`14.
`Press and Walker had several meetings strategizing on how to keep the business
`afloat. Because Press still had quite a few assets (equipment) in the company, Press decided to
`go out and look for new opportunities to bring into the business.
`15.
`In January 2011, Press decided to attend the Fancy Food Show in San Francisco
`to look for additional business. A customer was looking for a lemon peel so when Press
`approached Defendant International Glace’s booth, he inquired about their produce line. This
`was Press’s first contact with Alan Sipole.
`16.
`During this conversation, Sipole mentioned that Glace lost their supply of glace
`apricots, as the plant that had supplied them for over twenty years had closed, and they were
`now selling products from China which were inferior to the high quality product made in
`Australia. Sipole also mentioned to Press that they were looking for someone to make the
`product here in California. Press expressed that he believed he had space to put in a new
`production line for Glace in Walker’s plant. Both parties decided to stay in touch to discuss a
`future opportunity.
`17.
`Once Press returned back to Fresno, him and Walker discussed the conversation
`Press had with Sipole. Thereafter, there were several discussions with Sipole and his partners,
`Bill Davis and Dan Ingjerd. Davis, Ingjerd, Press, Sipole and Walker decided to start a new
`entity in the current space to continue the existing business as well as set up the Glace Fruit
`Line.
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`18.
`In April of 2011, a new company was formed as Sierra Food Group, with both
`Walker and Press having each a 25% ownership in the company. The other three (3) individuals
`were to split the remaining 50%. All owners of SFG were on the board of directors of SFG.
`Both Walker and Press used their equipment as capital contribution to SFG, while the
`remaining three (3) individuals contributed cash to get the business started.
`19.
`Based on information and belief, because Walker was still working at Pacific
`Grain and Foods full time, Press was in charge of putting the new line together coupled with
`running the plant. Press made several arrangements to lease a large kettle to make the Glace
`Syrup and many tanks for soaking the fruit as part of the Glace process.
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`20.
`Press also built a blanching tank necessary to cook the fruit enough to absorb the
`sugar from the syrup, and also installed the kettle and other components. In a few short months,
`SFG perfected the process and were making Glace Fruit comparable to the fruit from Australia.
`21.
`Based on information and belief, in May of 2014, SFG established a business
`loan with Wells Fargo Bank.
`22.
`Over the years and as the company grew to over $10,000,000 annually, Press put
`in several new lines. Press also brought in several new clients that he met at various expos.
`23.
`Press decided to move back to Colorado to raise his children as they were
`getting older. Press was to continue with SFG in sales and customer relations, and plant
`engineering as he had done in the past. Press additionally set up more personal equipment
`including another stone mill, mixer and packaging lines. The equipment was expensive,
`however, Press felt it could be utilized to further the business.
`24.
`At this point in time, SFG had some financial issues, and Walker was replaced
`as Chief Executive Office by Keith Kramer, the accountant. Once Kramer became CEO, he
`requested that Press move his equipment out of the building to make room for other
`opportunities that never came.
`25.
`The board then voted to not allow any person to be an employee if they lived out
`of state, which based on information and belief, was an intentional act done to remove Press
`from the company. SFG used this “vote” to justify firing Press as an employee even though
`Press was traveling to the plant often and generating new sales, in addition to restructuring the
`company.
`26.
`Press believed SFG was spending too much money on personnel in which
`Walker and Press could replace, so they came up with a plan to eliminate approximately
`$250,000.00 a year, which included a reduction in salaries and laying off five (5) managers.
`Also during this time, SFG was having quality control issues so Press decided to lay off the
`Quality Manager. After other employees were laid off, SFG continued to struggle.
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`27.
`Press was at the facility to meet with a customer and the Chief Financial Officer,
`Lyle Ens, informed Press that Walker was in Oregon meeting with the other partners and was
`suspicious that something was going on between the four (4) other shareholders and directors.
`28.
`Based on information and belief, in January 2017, Nordhaven was established,
`with Sipole, Davis, and Indgjerd being members of Nordhaven.
`29.
`Based on information and belief, sometime in February of 2017, Nordhaven
`acquired SFG’s debt with Wells Fargo. No meeting between the shareholders or directors was
`held to approve such business transaction. Additionally, based on information and belief,
`Nordhaven obtained a note from SFG for acquiring the Wells Fargo loan, with SFG’s
`equipment secured as collateral.
`30.
`In or around March of 2017, Press informed SFG of a potential acquirer, Once
`Again Nut Butter Collective, Inc. Press worked with Once Again Nut Butter to schedule a
`meeting and walkthrough at the plant but SFG refused to meet with them.
`31.
`Based on information and belief, in June of 2017, SFG sold its retail food
`processing business and assets to Pacific Grain for approximately $250,000.
`32.
`In July of 2017, Nordhaven sent correspondence to SFG, including Press, with a
`proposal to accelerate a foreclosure and to accept the collateral in satisfaction of the debt. One
`day after, Press objected to such proposal, and thereafter, sent multiple written objections and
`requests for documentation to evaluate the proposed accelerated foreclosure.
`33.
`In August of 2017, SFG’s counsel advised that an accelerated foreclosure did
`not take place and instead, Nordhaven foreclosed and took possession of the secured assets.
`34.
`Based on information and belief, Nordhaven is a competing company, using
`SFG’s same equipment, same location, same personnel and employees, and same products as
`SFG.
`
`35.
`In or around November 2018, SFG filed a Certificate of Dissolution without
`Press’s approval.
`36.
`In committing the wrongful acts alleged in this Complaint, the Individual
`Defendants have pursued, or joined in the pursuit of, a common course of conduct, and have
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`acted in concert with and conspired with one another in furtherance of their wrongdoing. The
`Individual Defendants further aided and abetted and/or assisted each other in breaching their
`respective duties.
`37.
`Throughout all times mentioned herein, the Individual Defendants collectively
`and individually initiated a course of conduct, including:
`a.
`engaging in self-dealing, conversion of corporate assets, and usurping of
`corporate opportunities;
`b.
`concealing the facts that directors and officers were actively and
`routinely engaging in self-dealing, conversion of corporate assets, and usurping
`of corporate opportunities;
`c.
`intentionally failing to implement and/or maintain a system of adequate
`controls at the company to ensure against the occurrence of the acts alleged
`herein or the malfeasance by officers, directors, or employees.
`38. The purpose and effect of the Individual Defendant’s conspiracy, common
`enterprise, and /or common course of conduct was, among other things, to set up a competing
`business and to get Plaintiff out of the company as an owner and director.
`FIRST CAUSE OF ACTION
`BREACH OF FIDUCIARY DUTY
`(By Plaintiff Against Individual Defendants, and DOES 1-25, inclusive)
`39.
`Plaintiff realleges and incorporates herein by reference each and every allegation
`of paragraphs 1 through 38 as though fully set forth herein.
`40.
`The individual Defendants, as shareholders and directors, have violated
`fiduciary duties of care, loyalty and good faith owed Plaintiff.
`41.
`By the acts, transactions and courses of conduct alleged herein, the individual
`Defendants, individually and acting as part of a common plan, unfairly deprived Plaintiff of his
`ownership in the company.
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`42.
`By virtue of their positions as directors and/or officers, the individual
`Defendants, at all relevant times, were required to act with due care, loyalty, good faith, and the
`in the best interests of the company, such as:
`a.
`Act with the requisite diligence and due care that is reasonable under the
`circumstances;
`b.
`Act in the best interest of the company;
`c.
`Use reasonable means to obtain material information relating to give
`action to a decision;
`d.
`Refrain from acts involving conflicts of interest between the fulfillment
`of their roles in the company and other roles or personal affairs;
`e.
`Avoid competing against the company or exploiting any business
`opportunities of the company for their own benefit, or the benefit of others;
`f.
`Disclose to the company all information and documents relating to the
`company’s affairs;
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`Refrain from participating in any transaction where the directors are
`divided;
`h.
`Refrain from self-dealing;
`i.
`Participate in any transaction where the directors or officers receive a
`financial benefit not equally shared by the company or its shareholders;
`j.
`Unjustly enrichment themselves at the expense or to the detriment of the
`company or its shareholders;
`k.
`Failing to abide by the bylaws of the company;
`l.
`Failing to entertain an acquisition offer to help the company;
`m.
`Taking ownership of the company’s assets through foreclosure in a
`brazen end-run around of the requirements of the California Corporations Code
`for 90-percent approval of an asset sale to an affiliate of a controlling party, in
`violation of Cal. Corp. Code Sec. 1001(d).
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`43.
`The individual Defendants dominate and control the business and corporate
`affairs, both through their positions within the company and the board, and through their
`possession of private corporate information concerning assets, business and future prospects.
`By reason of the acts alleged herein, the individual Defendants have failed to exercise ordinary
`care and diligence in the exercise of their fiduciary obligations owed to Plaintiff.
`44.
`The Individual Defendants and Doe Defendants actions were not a good faith
`exercise of prudent business judgment to protect and promote the corporate interests of SFG.
`45.
`As a direct and proximate result, Plaintiff suffered and continues to suffer
`irreparable harm and damages no less than $500,000 but in an amount to be proven at trial.
`SECOND CAUSE OF ACTION
`BREACH OF BYLAWS
`(By Plaintiff Against Individual Defendants, and DOES 1-25, inclusive)
`46.
`Plaintiff realleges and incorporates herein by reference each and every allegation
`of paragraphs 1 through 45 as though fully set forth herein.
`47.
`By virtue of being a shareholder and director, Plaintiff and the Individual
`Defendants and Doe Defendants were to adhere to the Bylaws of SFG.
`48.
`The Individual Defendants breached the Bylaws by failing to hold meetings or
`obtaining consents in lieu of meeting for any action required or permitted to be taken at any
`meeting of the Board of Directors, including but not limited transactions including creating a
`company to acquire SFG’s debt, with the intent to foreclose on the debt to acquire the assets
`and set up a competing / the same company, failing to have any board or shareholder
`resolutions of disinterest directors/shareholders in making major business decisions, or valid
`notices or disclosures of the same.
`49.
`Plaintiff has performed all duties and obligations of his respective parts required
`to be performed under the Bylaws, except to the extent that such performance was waived,
`excused, or prevented by reason of the acts and omission of the Individual Defendants.
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`50.
`As a direct and proximate result of the Individual Defendants and Doe
`Defendants, Plaintiff has been damaged no less than $500,000 but in an amount to be proven at
`trial.
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`THIRD CAUSE OF ACTION
`USURPATION OF CORPORATE OPPORTUNITIES
`(By Plaintiff Against Individual Defendants, and DOES 1-25, inclusive)
`51.
`Plaintiff realleges and incorporates herein by reference each and every allegation
`of paragraphs 1 through 50 as though fully set forth herein.
`52.
`In recommending, approving, knowingly allow, ratify, and effecting on behalf of
`Plaintiff and SFG the acts alleged herein, the Individual Defendants and Does have usurped for
`themselves opportunities which SFG would otherwise have been able to exploit for its benefit
`and the benefits of its shareholders.
`53.
`In recommending, approving, knowingly allow, ratify, and effecting on behalf of
`Plaintiff and SFG the wrongful transfer of interests, assets, and disposition of assets, the
`Individual Defendants and DOES have also knowingly and intentionally usurped for
`themselves assets and opportunities of SFG which it would have otherwise been able to exploit
`for its benefit and the benefit of its shareholders.
`54.
`As a direct and proximate result, Plaintiff and SFG has been damaged in an
`amount to be proven at trial but no less than $500,000.
`55.
`In doing the things herein alleged, the Individual Defendants and Does acted
`malice, oppression and/or fraud pursuant to California Code of Civil Procedure section 3294(c),
`and acted willfully and with the intent to cause injury to SFG and Plaintiff. As such, Plaintiff is
`entitled to recover an award of exemplary and/or punitive damages.
`FOURTH CAUSE OF ACTION
`CONVERSION
`(By Plaintiff all Defendants, and DOES 1-25, inclusive)
`56.
`Plaintiff realleges and incorporates herein by reference each and every allegation
`of paragraphs 1 through 55 as though fully set forth herein.
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`57.
`Each of the Individual Defendants and Does are officers, directors and/or
`employees of SFG and participate in the operation of the Company’s business. Throughout the
`relevant time period the Individual Defendants and DOES, and each of them, by means of false
`and deceptive practices, misappropriated and converted to their own personal use and
`possession, without Plaintiff and SFG’s consent, Plaintiff and SFG’s equipment and assets.
`58.
`Additionally, because of Nordhaven’s wrongful foreclosure of SFG’s assets,
`which also included Plaintiff’s own assets and equipment, and without the consent of Plaintiff
`and SFG, Nordhaven converted Plaintiff’s assets and SFG’s equipment.
`59.
`The Individual Defendants allowed Nordhaven’s wrongful foreclosure process
`to proceed so that they and Nordhaven could personally benefit.
`60.
`As direct and proximate result, Plaintiff and SFG has been damaged in an
`amount to be proven at trial.
`
`FIFTH CAUSE OF ACTION
`UNFAIR BUSINESS PRACTICES IN VIOLATION OF CAL. BUS. & PROF. CODE §§
`17200, et seq.
`(By Plaintiff Against Defendants, and DOES 1-25, inclusive)
`61.
`Plaintiff realleges and incorporates herein by reference each and every allegation
`of paragraphs 1 through 60 as though fully set forth herein.
`62.
`Defendants conversion of assets, concealment of facts and information,
`procurement of SFG’s business, and other misconduct or malfeasance concerning the operation
`of SFG constitutes unfair business practices in violation of, among other things, California
`Business and Profession’s Code §§ 17200, et seq.
`63.
`The acts or omission reasonable deceived SFG and Plaintiff, and as a direct and
`proximate result, caused Plaintiff and SFG to incur costs and expenses, loss profits, in an
`amount to be proven at trial but no less than $500,000.
`///
`///
`///
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`COMPLAINT
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`466 West Fallbrook Avenue, Suite 102
`WEBB LAW GROUP, APC
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`Fresno, California 93711
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`SIXTH CAUSE OF ACTION
`UNJUST ENRICHMENT
`(By Plaintiff Against Defendants, and DOES 1-25, inclusive)
`64.
`Plaintiff realleges and incorporates herein by reference each and every allegation
`of paragraphs 1 through 63 as though fully set forth herein.
`65.
`As alleged herein, Defendants including the Individual Defendants, breached
`their duties of loyalty and care to the company by not acting solely in the company’s interest in
`performing their duties. Additionally, by way of acquiring SFG’s assets, and those assets of
`Press - Nordhaven, International Glace, and the Individual Defendants were unjustly enriched
`by the profits and business goodwill they received as result of the conduct alleged herein and
`the usurpation of SFG’s corporate opportunities.
`66.
`Because it would be inequitable for the Defendants to retain the monies they
`acquired, they should be forced to disgorge all of their ill-gotten gains and profits and the
`amounts by which they have been unjustly enriched.
`SEVENTH CAUSE OF ACTION
`DEMAND FOR CORPORATE RECORDS
`(By Plaintiff Against the Individual Defendants SFG, and DOES 1-25, inclusive)
`67.
`Plaintiff realleges and incorporates herein by reference each and every allegation
`of paragraphs 1 through 66 as though fully set forth herein.
`68.
`Plaintiff is a director and minority shareholder of SFG,
`69.
`Plaintiff has repeated made demands to allow inspection of the books and
`records of SFG, however, SFG has repeatedly failed and refused Plaintiff to do so.
`70.
`Plaintiff demand was reasonably related to his interest as a shareholder and
`director and the refusal to allow such inspection is without justification.
`71.
`Plaintiff hereby requests the Court to order SFG and the Individual Defendants
`to produce the following books and records for inspection:
`a. Articles of incorporation and amendments thereto;
`b. Meeting minutes, notices, consents, resolutions;
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`COMPLAINT
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`466 West Fallbrook Avenue, Suite 102
`WEBB LAW GROUP, APC
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`Fresno, California 93711
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`c. Tax returns from January 1, 2016 through the present;
`d. Corporate filings;
`e. Contracts with Nordhaven, Wells Fargo, or International Glace;
`f. Corporate check registers and cancelled checks from January 1,
`2016 to present;
`g. Corporate bank statements from January 1, 2016 to present
`h. Income statements and balance sheets from January 1, 2016 to
`present;
`i. Accounts receivable and payable from January 1, 2016 through
`the present;
`j. All communications, correspondence, agreements, contracts,
`notes, with Nordhaven, Wells Fargo, and/or International Glace.
`PRAYER FOR RELIEF
`Plaintiff prays for judgment against Defendants as follows:
`1.
`For general and compensatory damages in an amount no less than $500,000.00
`according to proof at trial;
`2.
`For consequential damages in an amount according to proof at trial;
`3.
`For costs of suit, including reasonable attorney’s fees.
`4.
`For interest on all sums due and owing at the legal rate of interest, including
`prejudgment interest;
`5.
`For punitive damages according to proof;
`6.
`For production of corporate records;
`7.
`For such other and further relief as this honorable Court may deem just and
`proper.
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`COMPLAINT
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`466 West Fallbrook Avenue, Suite 102
`WEBB LAW GROUP, APC
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`Fresno, California 93711
`
`

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`Dated: July 15, 2020
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`WEBB LAW GROUP, APC
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` By_____________________________
`
` LENDEN F. WEBB
` BROOKE B. NEVELS
`Attorneys for Plaintiff Alex Press
`
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`COMPLAINT
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`466 West Fallbrook Avenue, Suite 102
`WEBB LAW GROUP, APC
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`Fresno, California 93711
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