Boards of Trustees of the Roofers Local 27 Health and Welfare Trust Fund et al v. Fryer Roofing Co., Inc. et al

Filing 35

STIPULATION JUDGMENT; ORDER, signed by Magistrate Judge Michael J. Seng on 9/18/14. (Martin-Gill, S)

1 HENRY Y. CHIU 222927
TUCKER, CHIU, HEBESHA & WARD PC
2 5260 North Palm Avenue, Suite 205
Fresno, California 93704
3 Telephone: [phone]
Facsimile: [phone]
4
Attorneys for Plaintiffs
5
JUSTIN D. HARRIS 199112
6 MOTSCHIEDLER, MICHAELIDES ET AL.
1690 West Shaw Avenue, Suite 200
7 Fresno, California 93711
Telephone: [phone]
8 Facsimile: [phone]
9 Attorney for Defendants
10
11

UNITED STATES DISTRICT COURT

12

EASTERN DISTRICT OF CALIFORNIA – FRESNO DIVISION

13

* * *

14 BOARDS OF TRUSTEES OF THE
)
ROOFERS LOCAL 27 HEALTH AND
)
15 WELFARE TRUST FUND, NATIONAL )
ROOFING INDUSTRY PENSION PLAN, )
16 ROOFERS LOCAL 27, FRESNO
)
ROOFING CONTRACTORS VACATION )
)
17 FUND, and ROOFERS LOCAL 27
APPRENTICESHIP TRAINING FUND, )
)
18
Plaintiffs,
)
)
19
v.
)
)
20
FRYER ROOFING CO., INC., a California )
)
21 corporation; DAVID BRUCE FRYER;
LEIGH ANN FRYER; INTERNATIONAL )
)
22 FIDELITY INSURANCE COMPANY;
and DOES 1 through 50, inclusive,
)
)
23
Defendants.
)
)
24

Case No. 1:13-CV-01660-MJS
STIPULATED JUDGMENT

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TUCKER, CHIU,
HEBESHA & WARD PC

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5260 N. PALM AVE., STE. 205
FRESNO, CA 93704

1
STIPULATED JUDGMENT

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Plaintiffs Boards of Trustees of the Roofers Local 27 Health and Welfare Trust Fund,

2 Roofers Local 27, Fresno Roofing Contractors Vacation Fund, and Roofers Local 27
3 Apprenticeship Training Fund (collectively, “Stipulating Plaintiffs”) 1 and defendants Fryer
4 Roofing Co., Inc., David Bruce Fryer and Leigh Ann Fryer (collectively, “Fryer Defendants”)
5 hereby stipulate, and request a judgment, as to the following:
6

1.

Stipulating Plaintiffs and the Fryer Defendants entered into a written “Settlement

7 Agreement Between Roofers Local 27 Trust Funds and Fryer Roofing Co., Inc. et al.”
8 (“Agreement”) pertaining to the fringe benefit contributions and other charges at issue in the
9 present action.
10

2.

The Agreement provides, among other things, that the Fryer Defendants shall be

11 jointly and severally liable for the following amounts, and that they shall remit said amounts to
12 the Stipulating Plaintiffs pursuant to a certain payment schedule, and in a certain manner,
13 described in the Agreement:
14
15

Principal Fringe Benefit Contributions (August,
September, November, December of 2013;
January, February and March of 2014)

16

Liquidated Damages

17

Interest

18

Costs/Attorneys’ Fees

19

Administration Services

$11,869.92
$5,508.61
$36,254.00
$1,400.00
Total

20
3.

21

$114,698.41

$169,730.94

The principal fringe benefit contributions, liquidated damages and interest above

22 are based upon monthly contribution reports submitted by Fryer Roofing to the Stipulating
23 Plaintiffs.
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TUCKER, CHIU,
HEBESHA & WARD PC
5260 N. PALM AVE., STE. 205
FRESNO, CA 93704

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1

Plaintiff National Roofing Industry Pension Plan is not a party to this Stipulated Judgment. Its
claims against Defendants have been dismissed pursuant to a Stipulation and Order to Dismiss
Claims between the NRIPP and Defendants.
2
STIPULATED JUDGMENT

1

4.

The Fryer Defendants remitted $55,311.74 to Stipulating Plaintiffs subsequent to

2 the execution of the Agreement. Said remittances were applied toward the above liabilities
3 pursuant to the method stated in the Agreement, leaving an outstanding balance of $114,419.20
4 as of the date of this Stipulated Judgment.
5

5.

The Agreement further provides that the Stipulating Plaintiffs shall have the right

6 to audit Fryer Roofing’s records for the months at issue, and collect all additional amounts
7 determined to be owed.
8

6.

The Agreement further provides that the Stipulating Plaintiffs shall not take any

9 steps to enforce this Judgment so long as the Fryer Defendants fully comply with their
10 obligations under the Agreement, and only after the requisite Notice of Breach has been
11 provided, and the opportunity to cure has lapsed.
12

7.

The Agreement further provides that the United States District Court, Eastern

13 District of California, Fresno Division, shall retain jurisdiction to enforce the terms of the
14 Agreement and this Judgment.
15

8.

The Agreement further provides that the Parties expressly and irrevocably consent

16 to the jurisdiction of the magistrate judge (to the extent they have not already done so), to issue
17 this Judgment, and any findings or orders necessary to enforce the Agreement or Judgment.
18

9.

Stipulating Plaintiffs and Defendants entered into a Stipulation and [Proposed]

19 Order to Dismiss International Fidelity Insurance Company with Prejudice, which was submitted
20 to the Court on August 29, 2014.
21

10.

Defendant Old Republic Surety Company has indicated that it will disburse or

22 interplead the bond proceeds applicable to the present action. Stipulating Plaintiffs are informed
23 and believe that such disbursement or interpleader will exonerate Old Republic from liability
24 herein, and will dismiss Old Republic accordingly at that time.
25

11.

In the event it becomes necessary to enforce this Judgment, interest shall accrue

26 on the Judgment amount at the seven percent (7%) per annum rate specified in the collective
27 bargaining agreement. Stipulating Plaintiffs shall be entitled to recover all costs and attorneys’
TUCKER, CHIU,
HEBESHA & WARD PC

28 fees incurred by them in enforcing this Judgment.

5260 N. PALM AVE., STE. 205
FRESNO, CA 93704

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STIPULATED JUDGMENT

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Dated: September

12

, 2014.

FRYER ROOFING CO., INC.

2
By

/s/ David Bruce Fryer
David Bruce Fryer, CEO

3
4
5

Dated: September

12

, 2014.

DAVID BRUCE FRYER

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By

/s/ David Bruce Fryer
David Bruce Fryer, Individually

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8
9

Dated: September

11

, 2014.

LEIGH ANN FRYER

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By

/s/ Leigh Ann Fryer
Leigh Ann Fryer, Individually

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12
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Dated: September

16

, 2014.

ROOFERS LOCAL 27 HEALTH AND WELFARE
TRUST FUND

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By

15

/s/ Dario Sifuentes
Dario Sifuentes, Trustee

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17
Dated: September

16

, 2014.

ROOFERS LOCAL 27

18
By

19

/s/ Dario Sifuentes
Dario Sifuentes, Business Manager

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21
Dated: September

16

, 2014.

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FRESNO ROOFING CONTRACTORS
VACATION FUND
By

/s/ Dario Sifuentes
Dario Sifuentes, Trustee

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26 [Signatures continue on following page.]
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TUCKER, CHIU,
HEBESHA & WARD PC

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5260 N. PALM AVE., STE. 205
FRESNO, CA 93704

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STIPULATED JUDGMENT

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Dated: September

16

, 2014.

ROOFERS LOCAL 27 APPRENTICESHIP
TRAINING FUND

2
By

3

/s/ Dario Sifuentes
Dario Sifuentes, Trustee

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6
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Approved as to Form and Content:

8
9

Dated: September

16

, 2014.

TUCKER, CHIU HEBESHA & WARD
A Professional Corporation

10
By

11

/s/ Henry Y. Chiu
HENRY Y. CHIU
Attorney for Stipulating Plaintiffs

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13
14

Dated: September

13

, 2014.

MOTSCHIEDLER, MICHAELIDES, ET AL.
A Limited Liability Partnership

15
16

By

/s/ Justin D. Harris
JUSTIN D. HARRIS
Attorney for Defendants

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19 [Judgment on following page.]
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TUCKER, CHIU,
HEBESHA & WARD PC

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5260 N. PALM AVE., STE. 205
FRESNO, CA 93704

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STIPULATED JUDGMENT

JUDGMENT

1
2

Judgment is hereby entered in Case No.

1:13-CV-01660-MJS in favor of

3 plaintiffs Roofers Local 27 Health and Welfare Trust Fund, Roofers Local 27, Fresno
4 Roofing Contractors Vacation Fund and Roofers Local 27 Apprenticeship Training Fund
5 (the “Stipulating Plaintiffs” above), and against defendants Fryer Roofing Co., Inc.,
6 David Bruce Fryer and Leigh Ann Fryer (the “Fryer Defendants” above), jointly and
7 severally, in the total amount of $114,419.20.
8

As acknowledged by the Parties in the Stipulation above, the Agreement and the

9 amount of this Judgment are based upon contribution reports submitted by Fryer
10 Roofing to the Stipulating Plaintiffs. As such, the Stipulating Plaintiffs shall retain the
11 right to audit the records of Fryer Roofing for the months at issue, and seek through
12 stipulation or the Court to amend this judgment and recover additional amounts, if any,
13 shown to be owed.
14

In the event it becomes necessary for Stipulating Plaintiffs to enforce this

15 Judgment, they shall further be entitled to interest upon the Judgment amount at seven
16 percent (7%) per annum, and all costs and attorneys’ fees incurred by them to do so.
17

This case will be closed administratively, but the Court shall retain jurisdiction to

18 enforce the Agreement and this Judgment.
19
20 IT IS SO ORDERED.
21
22

Dated:

September 18, 2014

/s/

UNITED STATES MAGISTRATE JUDGE

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TUCKER, CHIU,
HEBESHA & WARD PC

Michael J. Seng

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5260 N. PALM AVE., STE. 205
FRESNO, CA 93704

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STIPULATED JUDGMENT

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TUCKER, CHIU,
HEBESHA & WARD PC

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5260 N. PALM AVE., STE. 205
FRESNO, CA 93704

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STIPULATED JUDGMENT