Preview
E-FILE
9/29/2023 10:24 AM
Superior Court of California
County of Fresno
Whitney, Thompson & Jeffcoach LLP By: J enny Xiong, Deputy
Timothy L. Thompson, #133537
tthompson@ wtjlaw.com
Nikole E. Cunningham, #277976
ncunningham@ wtjlaw.com
Jacob S. Sarabian, #322108
jsarabian@ wtjlaw.com
970 W. Alluvial Ave.
Fresno, California 93711
Telephone: (559) 753-2550
Facsimile: (559) 753-2560
Iversen Proctor LLP
MichaelJ. Proctor, #148235
michael@ iversenproctor.com
Guy C. Iversen, #150883
yi @ iversen oroctor.com
Marc S. Harris, #136647
10 Marc @ iversenproctor.com
1325 Palmetto Street
11 Los Angeles, CA 90013
12
Attomeys for Defendant/Cross-C omplainant,
13 Archer Daniels Midland Company
14
SUPERIOR COURT OF THE STATE OF CALIFORNIA
15
COUNTY OF FRESNO, B. F. SISK COURTHOUSE
16
RICHARD BEST TRANSFER, INC., a Case No. 17CECG01022
17 California Corporation,
ARCHER DANIELS MIDLAND’S
18 Plaintiff, MOTIONINLIMINE NO. 17TO
DESIGNATE ADM AS PLAINTIFF;
19 Vv SUPPORTING DECLARATION
20 ARCHER DANIELS MIDLAND [MOTION IN LIMINE NO. 17]
COMPANY, a Delaware Corporation;
21 NATASHA DUKES, an individual; SHAWN Date: October 2, 2023
SAWA, an individual; AMBER M. ROSE aka Time: 9:00 am.
22 AMBER M. SAWA, an individual; and DOES Dept.: 503
1-25, inclusive,
23 Assigned for All Purposes to:
Defendants. Hon. Jeffrey Y . Hamilton
24
Action Filed: March 28, 2017
25 ARCHER DANIELS MIDLAND Trial Date: October 2, 2023
COMPANY, a Delaware Corporation,
26
Cross-Complainant,
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WHITNEY
THOMPSON &
05026.00001 05949310.000
JEFFCOACH
ARCHER DANIELS MIDLAND’S MOTION IN LIMINE NO. 17
RICHARD BEST TRANSFER, INC., a
California Corporation; PORT OF IVORY,
LLC, a California Limited Liability Company;
RICHARD BEST, an individual; WY ATT
BEST, an individual; SHAWN SAWA, an
individual, and doing business as AMR
CONSULTING; AMBER MARIE ROSE
SAWA, an individual, and doing business as
AMR CONSULTING; THOMAS SCAIFE, an
individual, and doing business as SCAIFE
COMMODITIES; CHARLES LITTLEFIELD,
an individual, NATASHA DUKES, an
individual; and ROES 1-25, inclusive,
Cross-Defendants.
Defendant/Cross-Complainant
ARCHER DANIELS MIDLAND COMPANY (“ADM”)
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hereby moves this Court for an order in limine regulating the presentation of evidence by
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permitting ADM to present its evidence at trial as if it were the plaintiff.
12
13 INTRODUCTION
14 ADM makes this motion on the ground that it is the true plaintiff in this action, in all ways
15 except the technical sense, and the Court should exercise its discretion to designate it as such. The
16 Court has the discretion under California law to grant ADM the procedural benefits of being a
17 plaintiff, including sitting next to the jury, presenting its case first, presenting its opening and
18 closing statements first, and presenting rebuttal evidence and statements as to its case-in-chief.
19 ADM asks the Courtto do so.
20
21 FACTUAL BACKGROUND
22 On or about February 8, 2017, ADM discovered that approximately 11,000 tons of canola
23 meal pellets were missing from RICHARD BEST TRANSFER, INC. (“RBT”)’s transloading
24 facility. (Exhibit “A” to Declaration of Timothy L. Thompson In Support of Motion in Limine
25 (“Thompson Decl.”).) The next day, Richard Best called ADM’s corporate office and
26 acknowledged that the canola meal pellets had been lost over a long period of time. Mr. Best told
27 ADM that his “sin” was not telling ADM sooner. Mr. Best further acknowledged his
28 responsibility for the loss and assured ADM that he would make ADM whole, even if that meant
WHITNEY
THOMPSON &
JEFFCOACH
05026.00001 05949310.000 2
ARCHER DANIELS MIDLAND’S MOTION IN LIMINE NO. 17
selling his facility to pay ADM for the missing canola. That same day, ADM’s counsel sent a
letter to RBT’s counsel requesting an explanation and demand for payment for the missing canola.
(Ibid.) By doing so, ADM was obviously asserting itself as the victim of RBT’s conduct and, at
least as an informal matter, the presumptive plaintiff/claimant asserting demands against RBT.
On February 22, 2017, ADM’s counsel followed up with RBT’s counsel and asked foran
explanation for the conflicting stories ADM was receiving from RBT regarding the loss of ADM’s
canola. (Exhibit “B” to Thompson Decl.) On March 6, 2017, after failing to receive the requested
written explanation about what happened to ADM’s product, ADM’s counsel informed RBT’s
counsel that ADM was canceling its contract with RBT due to RBT’s material breach of the
10 agreement. (Exhibit “C” to Thompson Decl.) Three weeks later, RBT filed its complaint on
11 March 28, 2017. (Thompson Decl., 6.) ADM’s cross-complaint followed two days later.
12 (Thompson Decl., 17.)!_ The premise of this motion is that those two days should not be a
13 difference-maker with respect to order of proof and related issues.
14 TIL.
LAW AND ARGUMENT
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16 A. The Court Has Broad Power to Control the Order of Proof.
17 The Court has broad power to control the orderly conduct of its proceedings, including the
18 order of proof at trial. (Code Civ. Proc., §§ 128, subd. (a)(3) and 607; Evid. Code § 320; Diamond
19 Springs Lime Co. v. Am. River Constructors (1971) 16 Cal.App.3d 581, 602 - 603; McLellan v.
20 McLellan (1972) 23 Cal.A pp.3d 343, 353.)
21 Specifically, Code of Civil Procedure section 607 sets forth the presumptive order of
22 presenting evidence at trial (i.e. plaintiff first, defendant second), but it empowers the Court to
23 change that order for “special reasons.” (See McLellan v. McLellan, supra, 23 Cal.App.3d at p.
24 353, citing statute and further noting that “a complaint and cross-complaint are, for most purposes,
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26 | RBT was aware that ADM was going to file suit at the end of March and appears to have been
expecting the suit for some time. (See text message from Loretta Johnson to Chuck Littlefield
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dated March 29, 2017 - “I’m nervous about the ADM filing. I wish they would just get it filed so
28 we can see what we're up against,” attached as Exhibit “D” to Thompson Decl.)
WHITNEY
THOMPSON &
JEFFCOACH
05026.00001 05949310.000 3
ARCHER DANIELS MIDLAND’S MOTION IN LIMINE NO. 17
treated as independent actions.”)
B ADM Should be Allowed to Present Its Evidence As Plaintiff.
In this case, there are special reasons to justify deviating from the traditional presentation
of evidence at trial. First, as McLellan notes, complaints and cross-complaints are essentially
independent actions. (See McLellan, supra, 23 Cal.App.3d at p. 353; Westamerica Bank v. MBG
Industries, Inc. (2007) 158 Cal.App.4th 109, 134.) A cross-complaint is a separate cause of action
from that stated in the complaint and must be complete and sufficient by itself. (Westamerica
Bank v. MGB Industries, Inc., supra, 158 Cal.App.4th at p. 134.) Thus, there are essentially two
sets of plaintiffs and defendants in this case. In such a situation, the Court is free to determine
10 which action should take priority over the other for presentation of evidence. (See Code Civ.
11 Proc., § 607.)
12 Second, RBT does not deserve the benefit of being a “plaintiff” in this action simply
13 because it rushed into court, in order to deflect from its failure to answer for the 11,000 tons of
14 product that was mysteriously missing from RBT’s facility. (See Osseous Techs. of Am., Inc. v.
15 DiscoveryOrtho Partners LLC (2010) 191 Cal.App.4th 357, 376, noting that courts should
16 consider the propriety of plaintiff’ s conduct when it rushes into court to file a declaratory relief
17 action for tactical reasons like preempting a breach of contract.) As soon as ADM leamed of this
18 issue, it rightfully demanded answers. (Exhibits “A” and “B” to Thompson Decl.) Unsatisfied
19 with RBT’s inconsistent explanations, ADM informed RBT it was terminating its agreement with
20 RBT. (Exhibit “C” to Thompson Decl.) Then, RBT raced to the courthouse. Two days before
21 ADM filed suit, RBT filed a preemptive action alleging an extortion scheme by ADM. (Thompson
22 Decl., 1.6.) RBT’s decision to file a complaint instead of providing a consistent explanation as to
23 the missing canola was a clear attempt to improve its procedural position, deflect from the real
24 issue of the missing canola, and appear as if it were the victim in this case. This tactic should not
25 be awarded, and there is no justification for allowing RBT to proceed at trial as if it were the real
26 plaintiff merely because it filed its action two days before ADM.
27 III
28 III
WHITNEY
THOMPSON &
JEFFCOACH
05026.00001 05949310.000 4
ARCHER DANIELS MIDLAND’S MOTION IN LIMINE NO. 17
CONCLUSION
The Court has broad powers and discretion in these matters. ADM is the true victim in this
case, and the plaintiff in substance. This case is about what happened to ADM’s product. RBT’s
allegations about the alleged extortion scheme are really affirmative defenses pleaded in a
complaint in an attempt to distract from the main issue in this case.
Accordingly, ADM respectfully requests that the Court exercise its discretion and issue an
order designating ADM as the plaintiff in front of the jury, permitting ADM to sit nearest to the
jury, allowing ADM to present its case-in-chief first, and any other procedural benefits
traditionally provided to plaintiffs.
1
Dated: September 27, 2023 WHITNEY, THOMPSON & JEFFCOACH LLP
1
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13 By: Te Dueg =
Timothy L{7hompson
14 Nikole E. Cunningham
Jacob S. Sarabian
15 Attomeys for Defendant/Cross-Complainant, Archer
16 Daniels Midland Company
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WHITNEY
THOMPSON &
JEFFCOACH
05026.00001 05949310.000 5
ARCHER DANIELS MIDLAND’S MOTION IN LIMINE NO. 17
DECLARATION OF TIMOTHY L. THOMPSON IN SUPPORT OF MOTION
IN LIMINE
NO. 17
I, Timothy L. Thompson, hereby declare as follows:
1 I am an attomey licensed to practice law in the State of California and am a partner
with the law firm of Whitney, Thompson & Jeffcoach LLP, attomeys of record for
Defendant/Cross-Complainant
ARCHER DANIELS MIDLAND COMPANY.
2 I make this declaration based upon my own personal knowledge, and if called upon
to testify as to the facts contained herein, I could and would do so competently.
3 On February 9. 2017, I sent a letter to RICHARD BEST TRANSFER, INC.
(“RBT”)’s former counsel C. Russell Georgeson inquiring about the approximately 11,000 tons of
10
my client's canola meal pellets of which I leamed should have been at RBT’s transloading facility
11
on February 8, 2017, but were missing. A true and correct copy of this letter is attached hereto as
12
Exhibit “A”. I did not receive a response to this letter.
13
4 On February 22, 2017, I sent a follow-up letter to Mr. Georgeson about the missing
14
product, expressing my concems about the conflicting explanations RBT was providing to ADM
15
regarding the missing product. I asked for a written explanation as to the specific causes of loss. I
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did not receive a response to this letter. A true and correct copy of this letter is attached hereto as
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Exhibit “B’.
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5. On March 6, 2017, I sent another letter to Mr. Georgeson informing him that, in
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light of the missing canola, ADM was terminating its contract with RBT effective immediately. A
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true and correct copy of this letter is attached hereto as Exhibit “C”.
21
6 Attached hereto as Exhibit “D” is a true and correct copy of what I am informed
22
and believe is a text message conversation between Loretta Johnson and Chuck Littlefield dated
23
March 29, 2017, produced by RBT during discovery in this case.
24
7 RBT filed its initial complaint in this action on March 28, 2017. A true and correct
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file-stamped copy of the first page of RBT’s original complaint is attached here as Exhibit “E.””
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? Since the initial complaint and cross-complaint were subsequently amended and in order to
28 reduce the volume of pages filed with the Court, only the first pages are provided.
WHITNEY
THOMPSON &
JEFFCOACH
05026.00001 05949310.000 6
ARCHER DANIELS MIDLAND’S MOTION IN LIMINE NO. 17
The complaint alleged an extortion scheme by ADM by which ADM would only send train cars to
be processed by RBT in exchange for extra payments from RBT which were not included in the
contract between the two parties.
8 ADM filed its cross-complaint in this action on March 30, 2017. A true and correct
file-stamped copy of the first page ADM’s original cross-complaint is attached here as Exhibit
oR",
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct. This declaration was executed by me on this 27th day of September
in Fresno, CA.
10
11 AEE ee
Timothy hompson
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WHITNEY
THOMPSON &
JEFFCOACH
05026.00001 05949310.000 7
ARCHER DANIELS MIDLAND’S MOTION IN LIMINE NO. 17
EXHIBIT “A”
McCORMICK
WA
BARSTOW LLP February 9, 2017
ATTORNEYS AT LAW
Tenathy L. Thompson
Via E-Mail and U.S. Mail
(Admitted in Cafforia)
(559) 433-2194
tit
C. Russell Georgeson
Georgeson and Belardinelli
FRESNO, CA OFFICE
1647 North Fresno Steet 7060 North Fresno Street, Suite 250
Fresno, CA 93720
P.O. Box 28912 Fresno, CA 93720
Fresno, CA 93729-8912
‘Telephone (559) 433-1300
Fax (559) 433-2300 Re: Archer Daniels Midland v. Richard Best Transfer, Inc.
Our File No.: 05026-00001
Dear Mr. Georgeson:
I am writing with respect to a new issue that has developed between our client, Archer
Daniels Midland Company (“ADM”) and your client, Richard Best Transfer, Inc. (“Best
Transfer”).
As you are aware from the ongoing dispute between our respective clients, ADM uses
the facility at Best Transfer in Reedley pursuant to the Put-Through Agreement (the
“Agreement”) between the parties as a “transload” facility. Pursuant to the Agreement,
ADM ships products there, Best Transfer stores the product, and then shipments go from
there to ADM’s customers.
Pursuant to the Agreement, at the end of each month, an inventory/reconciliation is
performed between the parties to account for products being stored. At the end of
January 2017, the inventory/reconciliation indicated that ADM was storing
approximately 15,000 tons of canola meal pellets at Best Transfer. Between January 31,
Other offices of 2017 and February 7, 2017, approximately 4,000 of the 15,000 tons being stored were
MeCORMICK, BARSTOW, SHEPPARD loaded and shipped out to ADM customers, leaving approximately 11,000 tons of canola
WAYTE AND CARRUTH, LLP
meal pellets in inventory at Best Transfer as of yesterday.
‘wewew.mecormickbarstow.com
Yesterday, Mr. Wyatt Best called ADM and informed them ina voice mail message that
CINCINNATI, OH OFFICE
Scripps Center, Suite 1050 all of the canola meal pellets were “damaged.” Subsequently, representatives of Best
312 Wainut Street
Cincinnati, Ohio 45202 Transfer offered an explanation that some combination of shrink and/or weather
Telephone (513) 762-7520
Fax (513) 762-7521 conditions caused this to happen.
DENVER, CO OFFICE
999 18th Steet, Suite 3000 Russ, to visually put into perspective what 11,000 tons of canola meal pellets would look
Denver, Colorado 80202 like, I am told that this volume would represent 110 railcars (100 tons per car) and if the
Telephone (720) 282-8128
Fax (720) 282-8127 pellets were damaged due to rain or shrinkage as claimed by Mr. Best, there would
LAS VEGAS, NV OFFICE remain literal mountains of canola mill material on site. Representatives of ADM went
8337 West Sunset Road, Suite 350 to the Best Transfer facility yesterday and there was no such damaged canola meal
Las Vegas, Nevada 89113
Telephone (702) 949-1100 material on site. It is my understanding that an entirely different explanation was given
Fax (702) 949-1101
today by Mr. Richard Best to a representative of ADM. However, to his credit, Mr. Best
MODESTO, CA OFFICE admitted that Best Transfer was solely responsible for ADM’s loss, had notified its
1125 | Street, Suite 1
Modesto, Califomia 95354 insurers of this claim, and intended to satisfy ADM’s claim, even if its insurers failed to
Telephone (209) 524-1100
Fax (209) 524-1188 do so.
Iwi
McCORMICK
C. Russell Georgeson
February 9, 2017
Page 2
BARSTOW LLP
ATTORNEYS AT LAW
The approximate value of this lost product is $3.5 million. In addition to that value,
ADM will incur a variety of other direct and consequential damages attributable to this
loss and its need to satisfy customer demands for canola meal pellets.
Pursuant to Section 9 of the Agreement, Best Transfer is responsible for any and all
damage to ADM caused by its loss of ADM’s product. Specifically, Section 9 of the
Agreement provides:
“At all times, ownership of the Products shall remain with ADM.
Company shall not cause or allow any lien or other encumbrance to
be filed against the Products. Company shall be liable to ADM for
any and all damage to, or deterioration in quality of products
delivered by ADM hereunder, regardless of the cause therefore, while
such product is in Company’s possession or control and with the
exception of material stored at Company site longer than 90 (ninety)
days,”!
It is my understanding that Mr. Best committed to a further conversation with Mr.
Michael Irons of ADM at 8:00 a.m., on Monday, February 13. In lieu of this meeting,
we request that Mr. Best and/or you provide us with a written report by the end of
business on Monday, that provides: (a) a detailed factual summary of what caused this
loss of ADM’s product; (b) Best Transfer’s plan to pay for this loss and when payment
will be received; and (c) Best Transfer’s plan and representations it can make that the
causes of this loss will not be repeated.
If it has not already done so, ADM also requests that Best Transfer immediately notify
their insurers of this loss based on its obligation under the Agreement to carry insurance
to cover for such alleged negligent acts. We would also request that you provide us with
copies of all such insurance policies.
Please consider this letter as notice to Best Transfer of ADM’s demands pursuant to
Section 14 of the Agreement and, if you dispute that this constitutes proper notice, please
notify me immediately and we will provide a copy directly to Mr. Richard Best at Best
Transfer.
Russ, it is my hope that our clients can immediately start the process of working together
to resolve this issue and compensate ADM for this total loss as required by the
Agreement. I look forward to working with you in this regard.
‘itis my understanding that none of the canola meal pellets in question had been stored longer than 90
days.
Iwi
McCORMICK
C. Russell Georgeson
February 9, 2017
Page 3
BARSTOW LLP
ATTORNEYS AT LAW
Very truly yours,
/ nm /
a -
Timothy L. jompson
McCormick Barstow LLP
TLT:mfb
ec: Noelle J. Perkins
05026-00001 4314916.1
EXHIBIT “B”
WA
McCORMICK
BARSTOW LLP February 22, 2017
ATTORNEYS AT LAW
Timathy L. Thompson
Via E-Mail and U.S. Mail
‘Admitedin California)
(559) 433-2134
C. Russell Georgeson
Georgeson and Belardinelli
FRESNO, CA OFFICE
‘7647 North Fresno Steet 7060 North Fresno Street, Suite 250
Fresno, CA93720
P.O, Box 28912 Fresno, CA 93720
Fresno,CA 93729-6912
Telephone (859) 433-1300
Fax (559) 433-2300 Re: Archer Daniels Midland v. Richard Best Transfer, Inc.
Our File No.: 05026-00001
Dear Mr. Georgeson:
I am writing to follow up with you regarding this matter and the over 11,000 tons of
missing ADM canola meal pellets. As you know, initially when this matter was
brought to ADM’s attention, Mr. Wyatt Best called and informed ADM that all of the
canola meal pellets stored at ADM were gone due to a combination of shrink and
weather conditions. Then, it was explained that the canola inventory management
and load-out processes had been mishandled in a way that caused piles of product to
go bad. Days later, it was disclosed that ADM’s missing canola meal pellets were
sold to non-ADM customers in a conspiracy/scheme that resulted in payment for the
product being sent to AMR Consulting. In light of this explanation for the missing
canola meal pellets, you represented to us that RBT would not be filing an insurance
claim for the loss.
Earlier this week, Zane Anderson from ADM met with Mr. Wyatt Best at RBT’s
facility to inspect the facility and account for ADM’s cor products still stored on
Oth icesof site. During that meeting, Mr. Wyatt Best stated that “thousands of tons” of canola
MeCORMICK, BARSTOW, SHEPPARD meal pellets had been damaged or destroyed by weather, rot, mud, or had been burnt.
\WAYTE AND CARRUTH, LP
Mr. Wyatt Best proceeded to show Mr. Anderson several piles of rotting material at
‘www. mccormickbarstow.com the back of the facility, which Mr. Best represented were damaged canola. Enclosed
CINGINNATI, OH OFFICE with this letter are photographs taken by Mr. Anderson of the piles of damaged
‘Scripps Center, Suite 1050 product.
312 Walnut Street
Cincinnati, Ohio 45202
Telephone (513) 762-7520
Fex (513) 762-7521 This latest disclosure has us a bit confused. Is RBT now claiming that some amount
of the over 11,000 tons of missing product was caused by weather conditions,
DENVER, CO OFFICE
999 18th Street, Suite 3000 shrinkage, or other damage (as opposed to theft)? If so, please provide a breakdown
Denver, Colorado 80202
Telephone (720) 282-8126 indicating the volume of the canola meal pellets that was lost due to damage versus
Fax (720) 282-8127
theft. Pursuant to both the Put-Through Agreement and by operation of law as a
LAS VEGAS, NV OFFICE bailee of ADM’s product, RBT had a duty to use reasonable care to safeguard ADM’s
8337 West Sunset Road, Suite 350
Las Vegas, Nevada 89113 product and insure it for such loss. To the extent that some amount of the missing
‘Tetephone (702) 949-1100
Fax (702) 949-1101 product was caused as a result of RBT’s failure to safeguard the product, or as a result
of deficient or negligent storage protocols, insurance proceeds may be available to
MODESTO, CA OFFICE
1125 | Street, Suite 1 compensate ADM for the loss. A written explanation from RBT as to the specific
Modesto, California 95354
Telephone (209) 524-1100 causes of the loss will help us to evaluate whether any such insurance proceeds may
Fax (208) 524-1188
be available.
WA
McCORMICK
C. Russell Georgeson
February 22, 2017
Page 2
BARSTOW LLP
ATTORNEYS AT LAW
We believe that it would be prudent to notify the appropriate insurance carriers as
soon as possible. As such, we would appreciate a response from you by no later than
the close of business this Friday, February 24, 2017. We look forward to your
response.
Very truly yours,
ang
_
Timothy L.'
McCormick Barstow LLP
ce: Noelle J. Perkins
05026-00001 4332922.1
EXHIBIT “C”
lil
McCORMICK
BARSTOW LLP March 6, 2017
ATTORNEYS AT LAW
Timothy L. Thompson
Via E-Mail and U.S. Mail
(Adrittedin Caiforia)
(859) 433-2104
C. Russell Georgeson
Georgeson and Belardinelli
FRESNO, CA OFFICE
‘7647 North Fresno Steet 7060 North Fresno Street, Suite 250
Fresno, CA 93720
P.O, Box 26912 Fresno, CA 93720
Fresno, CA 93728-8912
‘Telephone (558) 433-1300
Fax (559) 433-2300 Re: Archer Daniels Midland (“ADM”) v. Richard Best Transfer, Inc. (““RBT”)
Our File No.: 05026-00001
Dear Mr. Georgeson:
I write in response to certain issues you have raised over the last week or so in
follow-up to the disclosures made by you and your client beginning on February 14",
ADM’s investigation is ongoing. With respect to the business services provided by
RBT to ADM, certain decisions have been made.
Initially, I note that we have not received a response to my letter dated February 22,
2016, wherein we requested a written explanation from RBT as to the specific causes
of ADM’s lost canola meal pellets. As previously mentioned, we have received
differing stories regarding the cause of the loss, and we renew our request for a clear,
written explanation. Please provide this explanation promptly.
I am also writing to advise you that effective immediately ADM is terminating the
Put-Through Agreement (“Agreement”) with RBT in light of RBT’s material breach
of the Agreement.’ Although the full extent of ADM’s losses have not yet been
Other offices of determined, RBT’s material breach of the Agreement, among other conduct, has
BARSTOW, SHEPPARD caused ADM to incur known damages in excess of $3.5 million. ADM hereby makes
WAYTE AND CARRUTH,
the unequivocal demand for return of ADM’s missing or damaged product and/or
‘www. mecormickbarstow.com replacement with acceptable product at RBT’s expense. This demand includes any
CINCINNATI, OH OFFICE
and all damaged, destroyed, lost, or otherwise converted product onsite at RBT,
Scripps Center, Suite 1050
312 Walnut Steet
including canola, DDGs, soy pellets, and other ADM products. To the extent that
Cincinnati, io 45202
‘Telephone (513) 762-7520
RBT cannot immediately comply with this demand, ADM reserves the right to
Fax (513) 762-7521 recover interest from today’s date on all damages pursuant to California Civil Code
section 3336.
DENVER, CO OFFICE
999 18th Street, Suite 3000
Denver, Colorado
‘Telophone (720) 282-8126 In light of the foregoing, ADM also will not issue payment to RBT on any
Fax (720) 262-8127
outstanding invoices. To the extent that ADM may owe any amounts to RBT on
LAS VEGAS, NV OFFICE legitimate invoices, ADM will offset those amounts against the significant debt owed
8337 West Sunset Road, Suite 350
Las Vegas, Nevada 89113 by RBT to ADM for the loss of the missing products. As you know, the known
Telephone (702) 849-1100
Fax (702) 949-1101
MODESTO, CA OFFICE ' ADM, in taking this action, does not waive and expressly reserves its potential claim that
1125 1 Street,Suite 1
Modesto, Califomia 95354 the Agreement is invalid.
Telephone (209) 524-1100
Fax (208) 524-1168
wi
McCORMICK
C. Russell Georgeson
March 6, 2017
Page 2
BARSTOW LLP
ATTORNEYS AT LAW
damages suffered by ADM well exceed any amounts owed to RBT under the
Agreement. Further, and without confirming the validity of the Agreement, RBT is
under no restriction and is free to accept 100 car units or other product volumes from
any parties who chose to do business with RBT.
ADM expressly reserves its right to pursue any and all available claims and/or
remedies against RBT and the other parties involved in the loss of ADM’s product.
Nothing about this letter shall be construed as a waiver of any kind.
Importantly, as you know, ADM is in the process of removing its remaining product
from the RBT premises. ADM expects RBT’s cooperation in ensuring the orderly
removal of its products. ADM hopes to complete that process within the next two
weeks. We trust this will not be an issue. Should you disagree, please let me know
immediately so that ADM can take any necessary steps to ensure an orderly removal.
Please feel free to contact me if you wish to discuss this further.
Very truly yours,
ae
Timo
McCormick Barstow LLP
ce: Noelle J. Perkins
05026-00001 4349566. 1
EXHIBIT “D”
+15592176258, Loretta <+15596470347> 2017-03-29 (9)
Start Date March 29, 2017 at 1:55:31 PM Pacific Daylight Time
End Date March 29, 2017 at 2:17:34 PM Pacific Daylight Time
Chat Account Loretta <+15596470347>, +15592176258
& Loretta
Yeah, kinda scary waiting on an opening. Good opportunity though!
\'m nervous about the ADM filing, | wish they would just get it filed so we can see what we're up against.
By +15592176258
Yep! Me too!!!
TRIAL EXHIBIT
1164
CONFIDENTIAL RBT0153697
TX1164-0001
EXHIBIT “E”
_ ~~
E-FILED
3/28/2017 9:03:12 AM
C. Russell Georgeson, Esq. 53589 FRESNO COUNTY SUPERIOR COURT
Richard A, Belardinelli, Esq. 065168
GEORGESON AND BELARDINELLI By: T. Moua, Deputy
7060 N. Fresno Street, Suite 250
Fresno, CA 93720
Telephone: (559) 447-8800
Facsimile: (559) 447-0747
Attorneys for Plaintiff, RICHARD BEST TRANSFER, INC., A California Corporation
SUPERIOR COURT OF THE STATE OF CALIFORNIA.
IN AND FOR THE COUNTY OF FRESNO
10 RICHARD BEST TRANSFER, INC., A) Case No.: 17CECG01022
California Corporation,
11 ) COMPLAINT FOR:
Plaintiff, )
12 ) 1) Promissory Fraud-Promise Without
vs. ) Intent to Perform; 2) Negligence; 3)
13 Negligent Hiring and/or Retention of Unfit
ARCHER DANIELS MIDLAND ) Agents; 4) Negligent Training and
14 COMPANY, A Delaware Corporation; )
NATASHA DUKES, an _ individual; ) Supervision; 5) Breach of Contract; 6)
15 SHAWN SAWA, an individual; AMBER M. ) Breach of Duty of Good Faith; 7) Violation
ROSE aka AMBER M. SAWA, an) of California Unfair Business Practices Act
16 individual; and DOES 1-25, inclusive, ) [Business & Prof. Code §17200 et seq.]; 8)
Unjust Enrichment; 9) Common Law
17 Defendants. ) Unfair Competition; 10) Intentional
) Interference With Contract; 11) Negligent
18 ) Interference with Contract and/or Other
Economic Relationships; 12) Equitable
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Relief of Rescission and Restitution Against
20 Defendant; 13) Declaratory Relief; 14)
Implied/Comparative Indemnity; 15)
21 Equitable Indemnity; 16) Comparative
Contribution; and 17) Tort of Another
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AND
ANZ
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DEMAND FOR JURY TRIAL
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Mf
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Ml
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THE PARTIES
i Plaintiff Richard Best Transfers, Inc. (“Plaintiff’ or “RBT”), is and at all times
herein mentioned was a corporation duly organized and existing under the laws of the State off
California.
2. Plaintiff is informed and believes, and on that information and belief alleges, that
Defendant Archer Daniels Midland Company (herein referred to as “ADM”) is a Delaware
corporation.
10 3 Plaintiff is informed and believes, and on that information and belief alleges, that
11 Defendant Shawn Sawa is an individual who resides in Fresno County, California.
12 4 Plaintiff is informed and believes, and on that information and belief alleges, that
13 Defendant Natasha Dukes is an individual who resides in Fresno County, California.
14 5 Plaintiff is informed and believes, and on that information and believe alleges, that
1S
Defendant Amber Marie Rose aka Amber Sawa, is an individual who resides in Fresno County,
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California.
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6 The true names and capacities (whether individuals, corporate or otherwise) of the
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Defendants who are sued herein as Does 1 through 25 inclusive (“Does”) are presently unknown)
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to Plaintiff; therefore Plaintiff now sue those Defendants by fictitious names. Plaintiff will amend
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21 this Complaint to state the true capacities of such fictitiously named Doe Defendants, when their
22 names and identities are ascertained. Plaintiff is informed and believes, and on that basis alleges.
23 that all the fictitiously named Doe Defendants, and each of them, have taken some part in the acts
24 or omissions complained of herein, or are otherwise responsible in some manner for the wrongful
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conduct herein alleged, and have caused injury in this County. Plaintiff is informed and believes
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and on that information and belief hereby alleges that each named Defendant and each fictitiously
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named Doe Defendant acted as an agent, employee, subsidiary, alter ego, or representative, of each
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and every other Defendant, or in concert with each and every other Defendant, and acted in the
course and scope of said agency, employment, subsidiary relationship, alter ego, or representation]
or in concert at all relevant times herein.
I
BACKGROUND ALLEGATIONS
7 RBT is a company that loads/unloads commodities for railcars (known ag
“transloading”) and provides commodity storage, trucking services, and railcar and tank loading.
Its primary business is transloading commodities such as bran feed pellets, canola meal and pellet)
10 corn germ and gluten, cotton seed, cotton seed hull pellets, and other items used as ingredients for
11 dairy cattle feed.
12 8 RBT is informed and believes that Defendant Shawn Sawa is the Commodity
13 Manager for ADM and is in charge of ADM’s dealing with RBT.
14 9 RBT is informed and believes that historically Defendant Natasha Dukes is 4
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Commodity Trader for ADM.
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10. RBT is informed and believes that Defendant Amber Marie Rose aka Amber Sawa]
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is the wife of Defendant Shawn Sawa and the owner of AMR Consulting.
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11. A substantial portion of RBT business is from ADM. RBT’s continued viability,
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largely depends on ADM’s business.
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21 12. RBT previously entered into a Put-Through Agreement with ADM on or about}
22 January 21, 2011. On or about November 21, 2013, ADM and RBT entered into another Put+
23 Through Agreement. (A true and correct copy of the Put-Through Agreement is attached hereto
24 as Exhibit A.)
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13. In pertinent part, the Put-Through Agreements required RBT to obtain and instal!
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heavy equipment known as a hard car digger, maintain and operate certain track expansions.
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among other duties. In return, ADM agreed to deliver three 100 car units of animal feed
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ingredients per month and an annual average of at least 3600 railcars, for RBT to process. In
return, ADM received exclusive access to RBT’s facility for such units and paid a discounted feq
per ton, as well as received a discount for early payment. In order to accept 100 car units from
third parties, RBT was required to obtain ADM’s consent and such units were then to be credited
to ADM’s annual car commitment. ADM’s manager, Shawn Sawa, was designated on the
agreement as its point of contact. The term of the most recent Put-Through Agreement was five
(5) years, terminating on September 30, 2019.
14. Throughout the terms of the Put-Through Agreements, Defendants informed RB1|
10 that ADM would limit and/or discontinue the railcars it delivered to RBT unless RBT madq
ll payments as the Defendants directed, that were not required under the Put-Through Agreements
12 or otherwise contemplated by RBT at the time of entering the contracts. When RBT would refusd
13 or was slow in making the forced payments, the Defendants did not deliver railroad cars and/oy
14 would greatly reduce the number of railroad cars delivered to RBT for processing. In one instance,
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RBT refuse
Preview
E-FILE 9/29/2023 10:24 AM Superior Court of California County of Fresno Whitney, Thompson & Jeffcoach LLP By: J enny Xiong, Deputy Timothy L. Thompson, #133537 tthompson@ wtjlaw.com Nikole E. Cunningham, #277976 ncunningham@ wtjlaw.com Jacob S. Sarabian, #322108 jsarabian@ wtjlaw.com 970 W. Alluvial Ave. Fresno, California 93711 Telephone: (559) 753-2550 Facsimile: (559) 753-2560 Iversen Proctor LLP MichaelJ. Proctor, #148235 michael@ iversenproctor.com Guy C. Iversen, #150883 yi @ iversen oroctor.com Marc S. Harris, #136647 10 Marc @ iversenproctor.com 1325 Palmetto Street 11 Los Angeles, CA 90013 12 Attomeys for Defendant/Cross-C omplainant, 13 Archer Daniels Midland Company 14 SUPERIOR COURT OF THE STATE OF CALIFORNIA 15 COUNTY OF FRESNO, B. F. SISK COURTHOUSE 16 RICHARD BEST TRANSFER, INC., a Case No. 17CECG01022 17 California Corporation, ARCHER DANIELS MIDLAND’S 18 Plaintiff, MOTIONINLIMINE NO. 17TO DESIGNATE ADM AS PLAINTIFF; 19 Vv SUPPORTING DECLARATION 20 ARCHER DANIELS MIDLAND [MOTION IN LIMINE NO. 17] COMPANY, a Delaware Corporation; 21 NATASHA DUKES, an individual; SHAWN Date: October 2, 2023 SAWA, an individual; AMBER M. ROSE aka Time: 9:00 am. 22 AMBER M. SAWA, an individual; and DOES Dept.: 503 1-25, inclusive, 23 Assigned for All Purposes to: Defendants. Hon. Jeffrey Y . Hamilton 24 Action Filed: March 28, 2017 25 ARCHER DANIELS MIDLAND Trial Date: October 2, 2023 COMPANY, a Delaware Corporation, 26 Cross-Complainant, 27 28 WHITNEY THOMPSON & 05026.00001 05949310.000 JEFFCOACH ARCHER DANIELS MIDLAND’S MOTION IN LIMINE NO. 17 RICHARD BEST TRANSFER, INC., a California Corporation; PORT OF IVORY, LLC, a California Limited Liability Company; RICHARD BEST, an individual; WY ATT BEST, an individual; SHAWN SAWA, an individual, and doing business as AMR CONSULTING; AMBER MARIE ROSE SAWA, an individual, and doing business as AMR CONSULTING; THOMAS SCAIFE, an individual, and doing business as SCAIFE COMMODITIES; CHARLES LITTLEFIELD, an individual, NATASHA DUKES, an individual; and ROES 1-25, inclusive, Cross-Defendants. Defendant/Cross-Complainant ARCHER DANIELS MIDLAND COMPANY (“ADM”) 10 hereby moves this Court for an order in limine regulating the presentation of evidence by 11 permitting ADM to present its evidence at trial as if it were the plaintiff. 12 13 INTRODUCTION 14 ADM makes this motion on the ground that it is the true plaintiff in this action, in all ways 15 except the technical sense, and the Court should exercise its discretion to designate it as such. The 16 Court has the discretion under California law to grant ADM the procedural benefits of being a 17 plaintiff, including sitting next to the jury, presenting its case first, presenting its opening and 18 closing statements first, and presenting rebuttal evidence and statements as to its case-in-chief. 19 ADM asks the Courtto do so. 20 21 FACTUAL BACKGROUND 22 On or about February 8, 2017, ADM discovered that approximately 11,000 tons of canola 23 meal pellets were missing from RICHARD BEST TRANSFER, INC. (“RBT”)’s transloading 24 facility. (Exhibit “A” to Declaration of Timothy L. Thompson In Support of Motion in Limine 25 (“Thompson Decl.”).) The next day, Richard Best called ADM’s corporate office and 26 acknowledged that the canola meal pellets had been lost over a long period of time. Mr. Best told 27 ADM that his “sin” was not telling ADM sooner. Mr. Best further acknowledged his 28 responsibility for the loss and assured ADM that he would make ADM whole, even if that meant WHITNEY THOMPSON & JEFFCOACH 05026.00001 05949310.000 2 ARCHER DANIELS MIDLAND’S MOTION IN LIMINE NO. 17 selling his facility to pay ADM for the missing canola. That same day, ADM’s counsel sent a letter to RBT’s counsel requesting an explanation and demand for payment for the missing canola. (Ibid.) By doing so, ADM was obviously asserting itself as the victim of RBT’s conduct and, at least as an informal matter, the presumptive plaintiff/claimant asserting demands against RBT. On February 22, 2017, ADM’s counsel followed up with RBT’s counsel and asked foran explanation for the conflicting stories ADM was receiving from RBT regarding the loss of ADM’s canola. (Exhibit “B” to Thompson Decl.) On March 6, 2017, after failing to receive the requested written explanation about what happened to ADM’s product, ADM’s counsel informed RBT’s counsel that ADM was canceling its contract with RBT due to RBT’s material breach of the 10 agreement. (Exhibit “C” to Thompson Decl.) Three weeks later, RBT filed its complaint on 11 March 28, 2017. (Thompson Decl., 6.) ADM’s cross-complaint followed two days later. 12 (Thompson Decl., 17.)!_ The premise of this motion is that those two days should not be a 13 difference-maker with respect to order of proof and related issues. 14 TIL. LAW AND ARGUMENT 15 16 A. The Court Has Broad Power to Control the Order of Proof. 17 The Court has broad power to control the orderly conduct of its proceedings, including the 18 order of proof at trial. (Code Civ. Proc., §§ 128, subd. (a)(3) and 607; Evid. Code § 320; Diamond 19 Springs Lime Co. v. Am. River Constructors (1971) 16 Cal.App.3d 581, 602 - 603; McLellan v. 20 McLellan (1972) 23 Cal.A pp.3d 343, 353.) 21 Specifically, Code of Civil Procedure section 607 sets forth the presumptive order of 22 presenting evidence at trial (i.e. plaintiff first, defendant second), but it empowers the Court to 23 change that order for “special reasons.” (See McLellan v. McLellan, supra, 23 Cal.App.3d at p. 24 353, citing statute and further noting that “a complaint and cross-complaint are, for most purposes, 25 26 | RBT was aware that ADM was going to file suit at the end of March and appears to have been expecting the suit for some time. (See text message from Loretta Johnson to Chuck Littlefield 27 dated March 29, 2017 - “I’m nervous about the ADM filing. I wish they would just get it filed so 28 we can see what we're up against,” attached as Exhibit “D” to Thompson Decl.) WHITNEY THOMPSON & JEFFCOACH 05026.00001 05949310.000 3 ARCHER DANIELS MIDLAND’S MOTION IN LIMINE NO. 17 treated as independent actions.”) B ADM Should be Allowed to Present Its Evidence As Plaintiff. In this case, there are special reasons to justify deviating from the traditional presentation of evidence at trial. First, as McLellan notes, complaints and cross-complaints are essentially independent actions. (See McLellan, supra, 23 Cal.App.3d at p. 353; Westamerica Bank v. MBG Industries, Inc. (2007) 158 Cal.App.4th 109, 134.) A cross-complaint is a separate cause of action from that stated in the complaint and must be complete and sufficient by itself. (Westamerica Bank v. MGB Industries, Inc., supra, 158 Cal.App.4th at p. 134.) Thus, there are essentially two sets of plaintiffs and defendants in this case. In such a situation, the Court is free to determine 10 which action should take priority over the other for presentation of evidence. (See Code Civ. 11 Proc., § 607.) 12 Second, RBT does not deserve the benefit of being a “plaintiff” in this action simply 13 because it rushed into court, in order to deflect from its failure to answer for the 11,000 tons of 14 product that was mysteriously missing from RBT’s facility. (See Osseous Techs. of Am., Inc. v. 15 DiscoveryOrtho Partners LLC (2010) 191 Cal.App.4th 357, 376, noting that courts should 16 consider the propriety of plaintiff’ s conduct when it rushes into court to file a declaratory relief 17 action for tactical reasons like preempting a breach of contract.) As soon as ADM leamed of this 18 issue, it rightfully demanded answers. (Exhibits “A” and “B” to Thompson Decl.) Unsatisfied 19 with RBT’s inconsistent explanations, ADM informed RBT it was terminating its agreement with 20 RBT. (Exhibit “C” to Thompson Decl.) Then, RBT raced to the courthouse. Two days before 21 ADM filed suit, RBT filed a preemptive action alleging an extortion scheme by ADM. (Thompson 22 Decl., 1.6.) RBT’s decision to file a complaint instead of providing a consistent explanation as to 23 the missing canola was a clear attempt to improve its procedural position, deflect from the real 24 issue of the missing canola, and appear as if it were the victim in this case. This tactic should not 25 be awarded, and there is no justification for allowing RBT to proceed at trial as if it were the real 26 plaintiff merely because it filed its action two days before ADM. 27 III 28 III WHITNEY THOMPSON & JEFFCOACH 05026.00001 05949310.000 4 ARCHER DANIELS MIDLAND’S MOTION IN LIMINE NO. 17 CONCLUSION The Court has broad powers and discretion in these matters. ADM is the true victim in this case, and the plaintiff in substance. This case is about what happened to ADM’s product. RBT’s allegations about the alleged extortion scheme are really affirmative defenses pleaded in a complaint in an attempt to distract from the main issue in this case. Accordingly, ADM respectfully requests that the Court exercise its discretion and issue an order designating ADM as the plaintiff in front of the jury, permitting ADM to sit nearest to the jury, allowing ADM to present its case-in-chief first, and any other procedural benefits traditionally provided to plaintiffs. 1 Dated: September 27, 2023 WHITNEY, THOMPSON & JEFFCOACH LLP 1 12 13 By: Te Dueg = Timothy L{7hompson 14 Nikole E. Cunningham Jacob S. Sarabian 15 Attomeys for Defendant/Cross-Complainant, Archer 16 Daniels Midland Company 17 18 19 20 21 22 23 24 25 26 27 28 WHITNEY THOMPSON & JEFFCOACH 05026.00001 05949310.000 5 ARCHER DANIELS MIDLAND’S MOTION IN LIMINE NO. 17 DECLARATION OF TIMOTHY L. THOMPSON IN SUPPORT OF MOTION IN LIMINE NO. 17 I, Timothy L. Thompson, hereby declare as follows: 1 I am an attomey licensed to practice law in the State of California and am a partner with the law firm of Whitney, Thompson & Jeffcoach LLP, attomeys of record for Defendant/Cross-Complainant ARCHER DANIELS MIDLAND COMPANY. 2 I make this declaration based upon my own personal knowledge, and if called upon to testify as to the facts contained herein, I could and would do so competently. 3 On February 9. 2017, I sent a letter to RICHARD BEST TRANSFER, INC. (“RBT”)’s former counsel C. Russell Georgeson inquiring about the approximately 11,000 tons of 10 my client's canola meal pellets of which I leamed should have been at RBT’s transloading facility 11 on February 8, 2017, but were missing. A true and correct copy of this letter is attached hereto as 12 Exhibit “A”. I did not receive a response to this letter. 13 4 On February 22, 2017, I sent a follow-up letter to Mr. Georgeson about the missing 14 product, expressing my concems about the conflicting explanations RBT was providing to ADM 15 regarding the missing product. I asked for a written explanation as to the specific causes of loss. I 16 did not receive a response to this letter. A true and correct copy of this letter is attached hereto as 17 Exhibit “B’. 18 5. On March 6, 2017, I sent another letter to Mr. Georgeson informing him that, in 19 light of the missing canola, ADM was terminating its contract with RBT effective immediately. A 20 true and correct copy of this letter is attached hereto as Exhibit “C”. 21 6 Attached hereto as Exhibit “D” is a true and correct copy of what I am informed 22 and believe is a text message conversation between Loretta Johnson and Chuck Littlefield dated 23 March 29, 2017, produced by RBT during discovery in this case. 24 7 RBT filed its initial complaint in this action on March 28, 2017. A true and correct 25 file-stamped copy of the first page of RBT’s original complaint is attached here as Exhibit “E.”” 26 27 ? Since the initial complaint and cross-complaint were subsequently amended and in order to 28 reduce the volume of pages filed with the Court, only the first pages are provided. WHITNEY THOMPSON & JEFFCOACH 05026.00001 05949310.000 6 ARCHER DANIELS MIDLAND’S MOTION IN LIMINE NO. 17 The complaint alleged an extortion scheme by ADM by which ADM would only send train cars to be processed by RBT in exchange for extra payments from RBT which were not included in the contract between the two parties. 8 ADM filed its cross-complaint in this action on March 30, 2017. A true and correct file-stamped copy of the first page ADM’s original cross-complaint is attached here as Exhibit oR", I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. This declaration was executed by me on this 27th day of September in Fresno, CA. 10 11 AEE ee Timothy hompson 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WHITNEY THOMPSON & JEFFCOACH 05026.00001 05949310.000 7 ARCHER DANIELS MIDLAND’S MOTION IN LIMINE NO. 17 EXHIBIT “A” McCORMICK WA BARSTOW LLP February 9, 2017 ATTORNEYS AT LAW Tenathy L. Thompson Via E-Mail and U.S. Mail (Admitted in Cafforia) (559) 433-2194 tit C. Russell Georgeson Georgeson and Belardinelli FRESNO, CA OFFICE 1647 North Fresno Steet 7060 North Fresno Street, Suite 250 Fresno, CA 93720 P.O. Box 28912 Fresno, CA 93720 Fresno, CA 93729-8912 ‘Telephone (559) 433-1300 Fax (559) 433-2300 Re: Archer Daniels Midland v. Richard Best Transfer, Inc. Our File No.: 05026-00001 Dear Mr. Georgeson: I am writing with respect to a new issue that has developed between our client, Archer Daniels Midland Company (“ADM”) and your client, Richard Best Transfer, Inc. (“Best Transfer”). As you are aware from the ongoing dispute between our respective clients, ADM uses the facility at Best Transfer in Reedley pursuant to the Put-Through Agreement (the “Agreement”) between the parties as a “transload” facility. Pursuant to the Agreement, ADM ships products there, Best Transfer stores the product, and then shipments go from there to ADM’s customers. Pursuant to the Agreement, at the end of each month, an inventory/reconciliation is performed between the parties to account for products being stored. At the end of January 2017, the inventory/reconciliation indicated that ADM was storing approximately 15,000 tons of canola meal pellets at Best Transfer. Between January 31, Other offices of 2017 and February 7, 2017, approximately 4,000 of the 15,000 tons being stored were MeCORMICK, BARSTOW, SHEPPARD loaded and shipped out to ADM customers, leaving approximately 11,000 tons of canola WAYTE AND CARRUTH, LLP meal pellets in inventory at Best Transfer as of yesterday. ‘wewew.mecormickbarstow.com Yesterday, Mr. Wyatt Best called ADM and informed them ina voice mail message that CINCINNATI, OH OFFICE Scripps Center, Suite 1050 all of the canola meal pellets were “damaged.” Subsequently, representatives of Best 312 Wainut Street Cincinnati, Ohio 45202 Transfer offered an explanation that some combination of shrink and/or weather Telephone (513) 762-7520 Fax (513) 762-7521 conditions caused this to happen. DENVER, CO OFFICE 999 18th Steet, Suite 3000 Russ, to visually put into perspective what 11,000 tons of canola meal pellets would look Denver, Colorado 80202 like, I am told that this volume would represent 110 railcars (100 tons per car) and if the Telephone (720) 282-8128 Fax (720) 282-8127 pellets were damaged due to rain or shrinkage as claimed by Mr. Best, there would LAS VEGAS, NV OFFICE remain literal mountains of canola mill material on site. Representatives of ADM went 8337 West Sunset Road, Suite 350 to the Best Transfer facility yesterday and there was no such damaged canola meal Las Vegas, Nevada 89113 Telephone (702) 949-1100 material on site. It is my understanding that an entirely different explanation was given Fax (702) 949-1101 today by Mr. Richard Best to a representative of ADM. However, to his credit, Mr. Best MODESTO, CA OFFICE admitted that Best Transfer was solely responsible for ADM’s loss, had notified its 1125 | Street, Suite 1 Modesto, Califomia 95354 insurers of this claim, and intended to satisfy ADM’s claim, even if its insurers failed to Telephone (209) 524-1100 Fax (209) 524-1188 do so. Iwi McCORMICK C. Russell Georgeson February 9, 2017 Page 2 BARSTOW LLP ATTORNEYS AT LAW The approximate value of this lost product is $3.5 million. In addition to that value, ADM will incur a variety of other direct and consequential damages attributable to this loss and its need to satisfy customer demands for canola meal pellets. Pursuant to Section 9 of the Agreement, Best Transfer is responsible for any and all damage to ADM caused by its loss of ADM’s product. Specifically, Section 9 of the Agreement provides: “At all times, ownership of the Products shall remain with ADM. Company shall not cause or allow any lien or other encumbrance to be filed against the Products. Company shall be liable to ADM for any and all damage to, or deterioration in quality of products delivered by ADM hereunder, regardless of the cause therefore, while such product is in Company’s possession or control and with the exception of material stored at Company site longer than 90 (ninety) days,”! It is my understanding that Mr. Best committed to a further conversation with Mr. Michael Irons of ADM at 8:00 a.m., on Monday, February 13. In lieu of this meeting, we request that Mr. Best and/or you provide us with a written report by the end of business on Monday, that provides: (a) a detailed factual summary of what caused this loss of ADM’s product; (b) Best Transfer’s plan to pay for this loss and when payment will be received; and (c) Best Transfer’s plan and representations it can make that the causes of this loss will not be repeated. If it has not already done so, ADM also requests that Best Transfer immediately notify their insurers of this loss based on its obligation under the Agreement to carry insurance to cover for such alleged negligent acts. We would also request that you provide us with copies of all such insurance policies. Please consider this letter as notice to Best Transfer of ADM’s demands pursuant to Section 14 of the Agreement and, if you dispute that this constitutes proper notice, please notify me immediately and we will provide a copy directly to Mr. Richard Best at Best Transfer. Russ, it is my hope that our clients can immediately start the process of working together to resolve this issue and compensate ADM for this total loss as required by the Agreement. I look forward to working with you in this regard. ‘itis my understanding that none of the canola meal pellets in question had been stored longer than 90 days. Iwi McCORMICK C. Russell Georgeson February 9, 2017 Page 3 BARSTOW LLP ATTORNEYS AT LAW Very truly yours, / nm / a - Timothy L. jompson McCormick Barstow LLP TLT:mfb ec: Noelle J. Perkins 05026-00001 4314916.1 EXHIBIT “B” WA McCORMICK BARSTOW LLP February 22, 2017 ATTORNEYS AT LAW Timathy L. Thompson Via E-Mail and U.S. Mail ‘Admitedin California) (559) 433-2134 C. Russell Georgeson Georgeson and Belardinelli FRESNO, CA OFFICE ‘7647 North Fresno Steet 7060 North Fresno Street, Suite 250 Fresno, CA93720 P.O, Box 28912 Fresno, CA 93720 Fresno,CA 93729-6912 Telephone (859) 433-1300 Fax (559) 433-2300 Re: Archer Daniels Midland v. Richard Best Transfer, Inc. Our File No.: 05026-00001 Dear Mr. Georgeson: I am writing to follow up with you regarding this matter and the over 11,000 tons of missing ADM canola meal pellets. As you know, initially when this matter was brought to ADM’s attention, Mr. Wyatt Best called and informed ADM that all of the canola meal pellets stored at ADM were gone due to a combination of shrink and weather conditions. Then, it was explained that the canola inventory management and load-out processes had been mishandled in a way that caused piles of product to go bad. Days later, it was disclosed that ADM’s missing canola meal pellets were sold to non-ADM customers in a conspiracy/scheme that resulted in payment for the product being sent to AMR Consulting. In light of this explanation for the missing canola meal pellets, you represented to us that RBT would not be filing an insurance claim for the loss. Earlier this week, Zane Anderson from ADM met with Mr. Wyatt Best at RBT’s facility to inspect the facility and account for ADM’s cor products still stored on Oth icesof site. During that meeting, Mr. Wyatt Best stated that “thousands of tons” of canola MeCORMICK, BARSTOW, SHEPPARD meal pellets had been damaged or destroyed by weather, rot, mud, or had been burnt. \WAYTE AND CARRUTH, LP Mr. Wyatt Best proceeded to show Mr. Anderson several piles of rotting material at ‘www. mccormickbarstow.com the back of the facility, which Mr. Best represented were damaged canola. Enclosed CINGINNATI, OH OFFICE with this letter are photographs taken by Mr. Anderson of the piles of damaged ‘Scripps Center, Suite 1050 product. 312 Walnut Street Cincinnati, Ohio 45202 Telephone (513) 762-7520 Fex (513) 762-7521 This latest disclosure has us a bit confused. Is RBT now claiming that some amount of the over 11,000 tons of missing product was caused by weather conditions, DENVER, CO OFFICE 999 18th Street, Suite 3000 shrinkage, or other damage (as opposed to theft)? If so, please provide a breakdown Denver, Colorado 80202 Telephone (720) 282-8126 indicating the volume of the canola meal pellets that was lost due to damage versus Fax (720) 282-8127 theft. Pursuant to both the Put-Through Agreement and by operation of law as a LAS VEGAS, NV OFFICE bailee of ADM’s product, RBT had a duty to use reasonable care to safeguard ADM’s 8337 West Sunset Road, Suite 350 Las Vegas, Nevada 89113 product and insure it for such loss. To the extent that some amount of the missing ‘Tetephone (702) 949-1100 Fax (702) 949-1101 product was caused as a result of RBT’s failure to safeguard the product, or as a result of deficient or negligent storage protocols, insurance proceeds may be available to MODESTO, CA OFFICE 1125 | Street, Suite 1 compensate ADM for the loss. A written explanation from RBT as to the specific Modesto, California 95354 Telephone (209) 524-1100 causes of the loss will help us to evaluate whether any such insurance proceeds may Fax (208) 524-1188 be available. WA McCORMICK C. Russell Georgeson February 22, 2017 Page 2 BARSTOW LLP ATTORNEYS AT LAW We believe that it would be prudent to notify the appropriate insurance carriers as soon as possible. As such, we would appreciate a response from you by no later than the close of business this Friday, February 24, 2017. We look forward to your response. Very truly yours, ang _ Timothy L.' McCormick Barstow LLP ce: Noelle J. Perkins 05026-00001 4332922.1 EXHIBIT “C” lil McCORMICK BARSTOW LLP March 6, 2017 ATTORNEYS AT LAW Timothy L. Thompson Via E-Mail and U.S. Mail (Adrittedin Caiforia) (859) 433-2104 C. Russell Georgeson Georgeson and Belardinelli FRESNO, CA OFFICE ‘7647 North Fresno Steet 7060 North Fresno Street, Suite 250 Fresno, CA 93720 P.O, Box 26912 Fresno, CA 93720 Fresno, CA 93728-8912 ‘Telephone (558) 433-1300 Fax (559) 433-2300 Re: Archer Daniels Midland (“ADM”) v. Richard Best Transfer, Inc. (““RBT”) Our File No.: 05026-00001 Dear Mr. Georgeson: I write in response to certain issues you have raised over the last week or so in follow-up to the disclosures made by you and your client beginning on February 14", ADM’s investigation is ongoing. With respect to the business services provided by RBT to ADM, certain decisions have been made. Initially, I note that we have not received a response to my letter dated February 22, 2016, wherein we requested a written explanation from RBT as to the specific causes of ADM’s lost canola meal pellets. As previously mentioned, we have received differing stories regarding the cause of the loss, and we renew our request for a clear, written explanation. Please provide this explanation promptly. I am also writing to advise you that effective immediately ADM is terminating the Put-Through Agreement (“Agreement”) with RBT in light of RBT’s material breach of the Agreement.’ Although the full extent of ADM’s losses have not yet been Other offices of determined, RBT’s material breach of the Agreement, among other conduct, has BARSTOW, SHEPPARD caused ADM to incur known damages in excess of $3.5 million. ADM hereby makes WAYTE AND CARRUTH, the unequivocal demand for return of ADM’s missing or damaged product and/or ‘www. mecormickbarstow.com replacement with acceptable product at RBT’s expense. This demand includes any CINCINNATI, OH OFFICE and all damaged, destroyed, lost, or otherwise converted product onsite at RBT, Scripps Center, Suite 1050 312 Walnut Steet including canola, DDGs, soy pellets, and other ADM products. To the extent that Cincinnati, io 45202 ‘Telephone (513) 762-7520 RBT cannot immediately comply with this demand, ADM reserves the right to Fax (513) 762-7521 recover interest from today’s date on all damages pursuant to California Civil Code section 3336. DENVER, CO OFFICE 999 18th Street, Suite 3000 Denver, Colorado ‘Telophone (720) 282-8126 In light of the foregoing, ADM also will not issue payment to RBT on any Fax (720) 262-8127 outstanding invoices. To the extent that ADM may owe any amounts to RBT on LAS VEGAS, NV OFFICE legitimate invoices, ADM will offset those amounts against the significant debt owed 8337 West Sunset Road, Suite 350 Las Vegas, Nevada 89113 by RBT to ADM for the loss of the missing products. As you know, the known Telephone (702) 849-1100 Fax (702) 949-1101 MODESTO, CA OFFICE ' ADM, in taking this action, does not waive and expressly reserves its potential claim that 1125 1 Street,Suite 1 Modesto, Califomia 95354 the Agreement is invalid. Telephone (209) 524-1100 Fax (208) 524-1168 wi McCORMICK C. Russell Georgeson March 6, 2017 Page 2 BARSTOW LLP ATTORNEYS AT LAW damages suffered by ADM well exceed any amounts owed to RBT under the Agreement. Further, and without confirming the validity of the Agreement, RBT is under no restriction and is free to accept 100 car units or other product volumes from any parties who chose to do business with RBT. ADM expressly reserves its right to pursue any and all available claims and/or remedies against RBT and the other parties involved in the loss of ADM’s product. Nothing about this letter shall be construed as a waiver of any kind. Importantly, as you know, ADM is in the process of removing its remaining product from the RBT premises. ADM expects RBT’s cooperation in ensuring the orderly removal of its products. ADM hopes to complete that process within the next two weeks. We trust this will not be an issue. Should you disagree, please let me know immediately so that ADM can take any necessary steps to ensure an orderly removal. Please feel free to contact me if you wish to discuss this further. Very truly yours, ae Timo McCormick Barstow LLP ce: Noelle J. Perkins 05026-00001 4349566. 1 EXHIBIT “D” +15592176258, Loretta <+15596470347> 2017-03-29 (9) Start Date March 29, 2017 at 1:55:31 PM Pacific Daylight Time End Date March 29, 2017 at 2:17:34 PM Pacific Daylight Time Chat Account Loretta <+15596470347>, +15592176258 & Loretta Yeah, kinda scary waiting on an opening. Good opportunity though! \'m nervous about the ADM filing, | wish they would just get it filed so we can see what we're up against. By +15592176258 Yep! Me too!!! TRIAL EXHIBIT 1164 CONFIDENTIAL RBT0153697 TX1164-0001 EXHIBIT “E” _ ~~ E-FILED 3/28/2017 9:03:12 AM C. Russell Georgeson, Esq. 53589 FRESNO COUNTY SUPERIOR COURT Richard A, Belardinelli, Esq. 065168 GEORGESON AND BELARDINELLI By: T. Moua, Deputy 7060 N. Fresno Street, Suite 250 Fresno, CA 93720 Telephone: (559) 447-8800 Facsimile: (559) 447-0747 Attorneys for Plaintiff, RICHARD BEST TRANSFER, INC., A California Corporation SUPERIOR COURT OF THE STATE OF CALIFORNIA. IN AND FOR THE COUNTY OF FRESNO 10 RICHARD BEST TRANSFER, INC., A) Case No.: 17CECG01022 California Corporation, 11 ) COMPLAINT FOR: Plaintiff, ) 12 ) 1) Promissory Fraud-Promise Without vs. ) Intent to Perform; 2) Negligence; 3) 13 Negligent Hiring and/or Retention of Unfit ARCHER DANIELS MIDLAND ) Agents; 4) Negligent Training and 14 COMPANY, A Delaware Corporation; ) NATASHA DUKES, an _ individual; ) Supervision; 5) Breach of Contract; 6) 15 SHAWN SAWA, an individual; AMBER M. ) Breach of Duty of Good Faith; 7) Violation ROSE aka AMBER M. SAWA, an) of California Unfair Business Practices Act 16 individual; and DOES 1-25, inclusive, ) [Business & Prof. Code §17200 et seq.]; 8) Unjust Enrichment; 9) Common Law 17 Defendants. ) Unfair Competition; 10) Intentional ) Interference With Contract; 11) Negligent 18 ) Interference with Contract and/or Other Economic Relationships; 12) Equitable 19 Relief of Rescission and Restitution Against 20 Defendant; 13) Declaratory Relief; 14) Implied/Comparative Indemnity; 15) 21 Equitable Indemnity; 16) Comparative Contribution; and 17) Tort of Another 22 AND ANZ 23 DEMAND FOR JURY TRIAL 24 Mf 25 Ml 26 Ml 27 Mt 28 Page 1 L THE PARTIES i Plaintiff Richard Best Transfers, Inc. (“Plaintiff’ or “RBT”), is and at all times herein mentioned was a corporation duly organized and existing under the laws of the State off California. 2. Plaintiff is informed and believes, and on that information and belief alleges, that Defendant Archer Daniels Midland Company (herein referred to as “ADM”) is a Delaware corporation. 10 3 Plaintiff is informed and believes, and on that information and belief alleges, that 11 Defendant Shawn Sawa is an individual who resides in Fresno County, California. 12 4 Plaintiff is informed and believes, and on that information and belief alleges, that 13 Defendant Natasha Dukes is an individual who resides in Fresno County, California. 14 5 Plaintiff is informed and believes, and on that information and believe alleges, that 1S Defendant Amber Marie Rose aka Amber Sawa, is an individual who resides in Fresno County, 16 California. 17 6 The true names and capacities (whether individuals, corporate or otherwise) of the 18 Defendants who are sued herein as Does 1 through 25 inclusive (“Does”) are presently unknown) 19 to Plaintiff; therefore Plaintiff now sue those Defendants by fictitious names. Plaintiff will amend 20 21 this Complaint to state the true capacities of such fictitiously named Doe Defendants, when their 22 names and identities are ascertained. Plaintiff is informed and believes, and on that basis alleges. 23 that all the fictitiously named Doe Defendants, and each of them, have taken some part in the acts 24 or omissions complained of herein, or are otherwise responsible in some manner for the wrongful 25 conduct herein alleged, and have caused injury in this County. Plaintiff is informed and believes 26 and on that information and belief hereby alleges that each named Defendant and each fictitiously 27 named Doe Defendant acted as an agent, employee, subsidiary, alter ego, or representative, of each 28 Page 2 — and every other Defendant, or in concert with each and every other Defendant, and acted in the course and scope of said agency, employment, subsidiary relationship, alter ego, or representation] or in concert at all relevant times herein. I BACKGROUND ALLEGATIONS 7 RBT is a company that loads/unloads commodities for railcars (known ag “transloading”) and provides commodity storage, trucking services, and railcar and tank loading. Its primary business is transloading commodities such as bran feed pellets, canola meal and pellet) 10 corn germ and gluten, cotton seed, cotton seed hull pellets, and other items used as ingredients for 11 dairy cattle feed. 12 8 RBT is informed and believes that Defendant Shawn Sawa is the Commodity 13 Manager for ADM and is in charge of ADM’s dealing with RBT. 14 9 RBT is informed and believes that historically Defendant Natasha Dukes is 4 15 Commodity Trader for ADM. 16 10. RBT is informed and believes that Defendant Amber Marie Rose aka Amber Sawa] 17 is the wife of Defendant Shawn Sawa and the owner of AMR Consulting. 18 11. A substantial portion of RBT business is from ADM. RBT’s continued viability, 19 largely depends on ADM’s business. 20 21 12. RBT previously entered into a Put-Through Agreement with ADM on or about} 22 January 21, 2011. On or about November 21, 2013, ADM and RBT entered into another Put+ 23 Through Agreement. (A true and correct copy of the Put-Through Agreement is attached hereto 24 as Exhibit A.) 25 13. In pertinent part, the Put-Through Agreements required RBT to obtain and instal! 26 heavy equipment known as a hard car digger, maintain and operate certain track expansions. 27 among other duties. In return, ADM agreed to deliver three 100 car units of animal feed 28 Page 3 a ingredients per month and an annual average of at least 3600 railcars, for RBT to process. In return, ADM received exclusive access to RBT’s facility for such units and paid a discounted feq per ton, as well as received a discount for early payment. In order to accept 100 car units from third parties, RBT was required to obtain ADM’s consent and such units were then to be credited to ADM’s annual car commitment. ADM’s manager, Shawn Sawa, was designated on the agreement as its point of contact. The term of the most recent Put-Through Agreement was five (5) years, terminating on September 30, 2019. 14. Throughout the terms of the Put-Through Agreements, Defendants informed RB1| 10 that ADM would limit and/or discontinue the railcars it delivered to RBT unless RBT madq ll payments as the Defendants directed, that were not required under the Put-Through Agreements 12 or otherwise contemplated by RBT at the time of entering the contracts. When RBT would refusd 13 or was slow in making the forced payments, the Defendants did not deliver railroad cars and/oy 14 would greatly reduce the number of railroad cars delivered to RBT for processing. In one instance, 15 RBT refuse