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This case was last updated from Los Angeles County Superior Courts on 03/29/2019 at 05:37:54 (UTC).

NATIONAL COMMERCIAL RECOVERY INC VS LEONARD MASCARI ET AL

Case Summary

On 12/18/2014 NATIONAL COMMERCIAL RECOVERY INC filed a Contract - Debt Collection lawsuit against LEONARD MASCARI. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is GREGORY W. ALARCON. The case status is Disposed - Judgment Entered.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****7033

  • Filing Date:

    12/18/2014

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Contract - Debt Collection

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

GREGORY W. ALARCON

 

Party Details

Plaintiffs and Petitioners

BLAIR SMITH AND ASSOCIATES

NATIONAL COMMERCIAL RECOVERY INC.

Defendants and Respondents

DOES 1 TO 10

MASCARI LENNY

MASCARI LEONARD JOSEPH

MASCARI LEONARD

MASCARI LEONARD J.

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

BESNYL GLENN A.

 

Court Documents

COMPLAINT FOR MONEY; COMMON COUNTS; VIOLATION OF PERI SHABLE AGRI CULTURAL COMMODITIES ACT (?PACA?)

12/18/2014: COMPLAINT FOR MONEY; COMMON COUNTS; VIOLATION OF PERI SHABLE AGRI CULTURAL COMMODITIES ACT (?PACA?)

SUMMONS

12/18/2014: SUMMONS

NOTICE OF CASE MANAGEMENT CONFERENCE

1/23/2015: NOTICE OF CASE MANAGEMENT CONFERENCE

Unknown

3/17/2015: Unknown

PROOF OF SERVICE SUMMONS

3/24/2015: PROOF OF SERVICE SUMMONS

REQUEST FOR ENTRY OF DEFAULT

4/16/2015: REQUEST FOR ENTRY OF DEFAULT

Minute Order

4/17/2015: Minute Order

DECLARATION OF RON SMITH IN SUPPORT OF PLAINTIFF'S REQUEST FOR ENTRY OF JUDGMENT BY COURT AFTER DEFAULT

6/18/2015: DECLARATION OF RON SMITH IN SUPPORT OF PLAINTIFF'S REQUEST FOR ENTRY OF JUDGMENT BY COURT AFTER DEFAULT

DECLARATION OF STEVEN ALFIERIS IN SUPPORT OF PLAINTIFF'S REQUEST FOR ENTRY OF JUDGMENT BY COURT AFTER DEFAULT

6/18/2015: DECLARATION OF STEVEN ALFIERIS IN SUPPORT OF PLAINTIFF'S REQUEST FOR ENTRY OF JUDGMENT BY COURT AFTER DEFAULT

DECLARATION

6/18/2015: DECLARATION

CASE SUMMARY IN SUPPORT OF PLAINTIFF'S REQUEST FOR ENTRY OF JUDGMENT BY COURT AFTER DEFAULT

6/18/2015: CASE SUMMARY IN SUPPORT OF PLAINTIFF'S REQUEST FOR ENTRY OF JUDGMENT BY COURT AFTER DEFAULT

DECLARATION

6/18/2015: DECLARATION

DECLARATION OF JOSE LUIS AVALOS IN SUPPORT OF PLAINTIFF'S REQUEST FOR ENTRY OF JUDGMENT BY COURT AFTER DEFAULT

6/18/2015: DECLARATION OF JOSE LUIS AVALOS IN SUPPORT OF PLAINTIFF'S REQUEST FOR ENTRY OF JUDGMENT BY COURT AFTER DEFAULT

DECLARATION

6/18/2015: DECLARATION

JUDGMENT BY COURT BY DEFAULT

6/18/2015: JUDGMENT BY COURT BY DEFAULT

REQUEST FOR DISMISSAL

6/18/2015: REQUEST FOR DISMISSAL

REQUEST FOR COURT JUDGMENT

6/18/2015: REQUEST FOR COURT JUDGMENT

Minute Order

8/7/2015: Minute Order

6 More Documents Available

 

Docket Entries

  • 06/27/2018
  • Ntc to Reptr/Mon to Prep Transcrpt; Filed by Clerk

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  • 08/07/2015
  • at 08:30 AM in Department 36; (Order to Show Cause; OSC Discharged) -

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  • 08/07/2015
  • Minute Order

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  • 06/30/2015
  • Abstract of Judgment - Civil and Small Claims; Filed by Creditor

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  • 06/18/2015
  • DECLARATION

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  • 06/18/2015
  • DECLARATION OF STEVEN ALFIERIS IN SUPPORT OF PLAINTIFF'S REQUEST FOR ENTRY OF JUDGMENT BY COURT AFTER DEFAULT

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  • 06/18/2015
  • JUDGMENT BY COURT BY DEFAULT

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  • 06/18/2015
  • CASE SUMMARY IN SUPPORT OF PLAINTIFF'S REQUEST FOR ENTRY OF JUDGMENT BY COURT AFTER DEFAULT

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  • 06/18/2015
  • Declaration; Filed by National Commercial Recovery, Inc. (Plaintiff)

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  • 06/18/2015
  • Declaration; Filed by National Commercial Recovery, Inc. (Plaintiff)

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19 More Docket Entries
  • 04/16/2015
  • Default Entered; Filed by Plaintiff/Petitioner

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  • 03/24/2015
  • PROOF OF SERVICE SUMMONS

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  • 03/24/2015
  • Proof of Service (not Summons and Complaint); Filed by National Commercial Recovery, Inc. (Plaintiff); Blair Smith and Associates (Legacy Party)

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  • 03/17/2015
  • CASE MANAGEMENT STATEMENT

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  • 03/17/2015
  • Notice of Case Management Conference; Filed by National Commercial Recovery, Inc. (Plaintiff)

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  • 01/23/2015
  • Notice of Case Management Conference; Filed by Clerk

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  • 01/23/2015
  • NOTICE OF CASE MANAGEMENT CONFERENCE

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  • 12/18/2014
  • SUMMONS

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  • 12/18/2014
  • COMPLAINT FOR MONEY; COMMON COUNTS; VIOLATION OF PERI SHABLE AGRI CULTURAL COMMODITIES ACT (PACA)

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  • 12/18/2014
  • Complaint; Filed by National Commercial Recovery, Inc. (Plaintiff)

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Tentative Rulings

Case Number: BC567033    Hearing Date: April 9, 2021    Dept: 36

 

Superior Court of California

County of Los Angeles

Department 36

NATIONAL COMMERCIAL RECOVERY, INC., a California corporation dba BLAIR SMITH AND ASSOCIATES,

Plaintiff,

v.

LEONARD MASCARI aka LEONARD J. MASCARI aka LEONARD JOSEPH MASCARI aka LENNY MASCARI, an individual; and Does 1-10, inclusive,

Defendant.

Case No.: BC567033

Hearing Date: 4/9/2021

[TENTATIVE] RULING RE: Default Judgment

The Order to Show Cause Re: Dismissal is continued to May 28, 2021.

The court sets an Order to Show Cause Re: Default on the same date.

Plaintiff’s application for default judgment is denied without prejudice.

Notice

Plaintiff has submitted an amended application for court judgment which now reflects the address of mail service of the document to 73-4359 Kapehe St., Kailua Kona, HI 96740, the address to which Defendant has in the prior motion to vacate default judgment attested is his address of residence.

However, Plaintiff’s instant application for default judgment contains a supplemental brief, and supplemental declarations, and does not contain the declarations filed with Plaintiff’s prior application default judgment, upon which the instant application relies in part. The prior application for default judgment was denied without prejudice and was served to a different address. “An application by a plaintiff for entry of default under subdivision (a), (b), or (c) of Section 585 or Section 586 shall include an affidavit stating that a copy of the application has been mailed to the defendant's attorney of record or, if none, to the defendant at his or her last known address and the date on which the copy was mailed.” (CCP § 587.) As the instant default application only shows that part of the default application has been served on the defendant, it does not satisfy the requirements of Code of Civil Procedure, section 587. Accordingly, the application for default judgment is denied without prejudice.

Dated: ____________________________

Gregory Alarcon

Superior Court Judge

Case Number: BC567033    Hearing Date: March 10, 2021    Dept: 36

 

 

 *COUNSEL – YOU CANNOT SUBMIT ON THE TENTATIVE PRIOR TO THE HEARING*

Superior Court of California

County of Los Angeles

Department 36

NATIONAL COMMERCIAL RECOVERY, INC., a California corporation dba BLAIR SMITH AND ASSOCIATES,

Plaintiff,

v.

LEONARD MASCARI aka LEONARD J. MASCARI aka LEONARD JOSEPH MASCARI aka LENNY MASCARI, an individual; and Does 1-10, inclusive,

Defendant.

Case No.: BC567033

Hearing Date: 3/10/2021

[TENTATIVE] RULING RE: Default Judgment

Plaintiff’s application for default judgment is denied without prejudice.

Notice of Motion

As an initial matter, Plaintiff’s declaration of mailing for the entry of default shows mailing at 73-4359 Kapuahi St., Kailua Kona, HI 96740. This is the address that Defendant has in the prior motion to vacate default judgment attested is an incorrect address for him, and that his address of residence is 73-4359 Kapehe St., Kailua Kona, HI 96740. (See Mot. to Vacate, Mascari Decl, ¶¶ 1, 7.)

It is thus unknown if Defendant has received notice of the entry of default against him under the instant default judgment. (See CCP § 587.) Defendant must have actual notice of the default proceedings. (See Rodriguez v. Henard

. The court must deny a request for default judgment when the party seeking default judgment that has not filed the required documents with the court.

Causes of Action and Damages

1. Common Counts

“A common count is not a specific cause of action ...; rather, it is a simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness, including that arising from an alleged duty to make restitution under an assumpsit theory.” (Avidor v. Sutter's Place, Inc. (2013) 212 Cal.App.4th 1439, 1454.) “Although such an action is one at law, it is governed by principles of equity.”  (Id.) The only essential allegations of a common count are “(1) the statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment.”  (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460.) 

The elements of an open book account are: (1) the plaintiff and defendant(s) had financial transactions with each other; (2) the plaintiff, in the regular course of business, kept an account of the debits and credits involved in the transactions; (3) the defendant(s) owes the plaintiff money on the account; and (4) the amount of money owed. (CACI No. 372: Common Count: Open Book Account.) A book account is created by the agreement or conduct of the parties in a commercial transaction. (H. Russell Taylor's Fire Prevention Service, Inc. v. Coca Cola Bottling Corp. (1979) 99 Cal.App.3d 711, 728.)

Plaintiff alleges Defendant became indebted to Plaintiff’s Assignors Avalos Produce and Stamoules Produce for money owed to each: $61,191.00 to Avalos Produce and $94,764.80 to Stamoules Produce, for the purchase of wholesale produce between July 5, 2013 and March 7, 2014. (Compl. ¶¶ 2, 6.)

The court finds that Plaintiff has brought admissible evidence in support of money owed to Samoules Produce of $61,424. (Stefanopoulos Decl. ¶ 4, Exh. A.) Plaintiff does not claim damages for Invoice no. 189886, which was erroneously included on the account. (Id. ¶¶ 17, 18.) Plaintiff has not brought evidence in support of Invoice no. 230589. (See id., ¶ 4, Exh. A.) Last, the invoice no. 201048 is made out to Safeway-Phoenix rather than to Coastal Brokerage Company.

The court finds that Plaintiff has brought admissible evidence in support of money owed to Avalos Produce of $61,191.00 by ledger supported by invoices made out to Coastal Brokerage. (Avalos Decl. ¶ 4, Exh. A.)

Plaintiff has brought evidence that Avalos Produce and Stamoules Produce assigned the debts to National Commercial Recovery, Inc. (Smith Decl. ¶ 2, Exh. A.)

Plaintiff alleges Defendant has failed to pay the sum after final demand was made on March 17, 2014, for which payment terms were 10 days. (Id. ¶ 7.)

However, Plaintiff has not shown individual liability on Defendant Mascari’s behalf, as discussed below.

2. PACA

The Perishable Agricultural Commodities Act (“PACA”) was enacted in order “to promote fair trading practices in the marketing of perishable agricultural commodities, largely fruits and vegetables." (Tomatoes Extraordinaire, Inc. v. Berkley (2013) 214 Cal.App.4th 317, 322 (Berkley).) “The statute is designed to protect suppliers of perishable agricultural products who sell produce to certain statutorily-defined buyers. … PACA's protections include provisions that prohibit a variety of unfair trade practices by produce buyers; require produce buyers to hold the produce and the proceeds from the produce in trust for the benefit of the sellers until full payment is made; and allow produce sellers to file court actions seeking to hold a corporation's controlling officers personally liable for the amounts owed for the produce.” (Id.)  

Plaintiff alleges Coastal Brokerage Company of Southern California is a company that, at all times material, was engaged in the buying and selling of wholesale produce in interstate commerce from its principal place of business in Los Angeles, and is subject to the statutory trust provisions and regulations of PACA. (Compl. ¶ 17.) Plaintiff on information and belief alleges Defendant Mascari is an “insider with actual and constructive knowledge of the PACA trust provisions and the daily management and control of Coastal Brokerage Company of Southern California” and thus acting as statutory trustee under PACA and in a position to control the PACA trust assets subject of this lawsuit. (Id. ¶ 18.) Plaintiff alleges PACA liability on the same grounds as for the common counts. (See id. ¶¶ 19, 20.)

PACA applies to produce buyers who meet the statutory definition of a dealer under the Act.” (Berkley, supra, at 322.) A “dealer” is any person “engaged in the business of buying or selling in wholesale or jobbing quantities . . . any perishable agricultural commodity in interstate commerce, except that . . . no person buying any such commodity solely for sale at retail shall be considered as a ‘dealer’ until the invoice cost of his purchases of perishable agricultural commodities in any calendar year are in excess of $230,000 . . . .” (7 U.S.C. § 499a(b)(6).) Similarly, a “broker” means “any person engaged in the business of negotiating sales and purchases of any perishable agricultural commodity in interstate or foreign commerce for or on behalf of the vendor or the purchaser, respectively, except that no person shall be deemed to be a “broker” if such person is an independent agent negotiating sales for and on behalf of the vendor and if the only sales of such commodities negotiated by such person are sales of frozen fruits and vegetables having an invoice value not in excess of $230,000 in any calendar year.” (Id. at (b)(7).)

Plaintiff’s complaint appears to allege that Coastal Brokerage Company is a “dealer” under PACA by alleging that it was “engaged in the buying and selling of wholesale produce in interstate commerce . . . .” (See Compl. ¶ 17.) Here, however, the invoiced amounts do not exceed $230,000 in aggregate. There is thus an insufficient showing that Coastal Brokerage Company is a “dealer” under PACA, or alternatively a merchant or broker, as required to trigger individual liability for Defendant Mascari under PACA.

 

3. Joint Liability

With regards to the common counts, Plaintiff has not shown that the individual defendant is liable for the amounts due under the invoices. Plaintiff’s evidence shows only transactions between Avalos Produce and Coastal Brokerage Company (Avalos Decl. ¶ 4, Exh. A), and Stamoules Produce C. Inc. and Coastal Brokerage Company (Stefanopoulos Decl. ¶ 4, Exh. A). Coastal Brokerage Company is not a party to this action, as it has gone through Chapter 7 bankruptcy. (See Compl. ¶ 3; Smith Decl. ¶ 3, Exh. B.) Defendant Mascari was the principal of Coastal Brokerage Company of Southern California. (See id.)

With regards to Plaintiff’s PACA claim, Plaintiff’s declarant attests that, under federal regulations, a controlling officer, member, director, or shareholder of a corporate buyer can be held personally liable for failing to preserve the PACA trust. (Smith Decl. ¶ 3.) Plaintiff has not provided legal authority in support this theory. Notwithstanding, as noted above, Plaintiff has not yet shown that Coastal Brokerage Company of Southern California is a dealer, merchant, or broker under PACA. Based on the foregoing, Plaintiff has not shown individual liability for Defendant Mascari.

Interest

Plaintiff is entitled to prejudgment interest only when the amount of principal damages was “certain, or capable of being made certain by calculation” prior to entry of judgment (Civ. Code, § 3287). Plaintiff requests prejudgment interest from the date of demand alleged in the Complaint of March 17, 2014, through present. (See Compl. ¶ 13; Interest Decl.)

Interest is to be recalculated based on the principal damages proved up for any future default applications. Next, the court will not award interest between March 17, 2014, to the date that Plaintiff successfully vacated the Judgment on grounds of not having received notice thereof, on May 24, 2019, i.e., the court would award prejudgment interest between May 24, 2019 to present assuming the other deficiencies as rectified.

Attorney’s Fees

Plaintiff asserts entitlement to attorney’s fees of $1,000 pursuant to Civil Code, § 1717.5. As above, Plaintiff has not stated a claim against the individual defendant. However, should Plaintiff do so on a future default judgment application, fees may be awarded only in the reduced amount of $960.00. (Civil Code, § 1717.5.)

Costs

Plaintiff has shown entitlement to permissible costs under CCP § 1033.5(a). The court will set an OSC for dismissal on March 30, 2021. Plaintiff is to file additional information no later than 10 days before the hearing.

Dated: ____________________________

Gregory Alarcon

Superior Court Judge

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