Board of Trustees of the Laborers Health and Welfare Trust Fund for Northern California et al v. Cal-Kirk Lanscaping Inc

Filing 74

ORDER GRANTING REQUEST TO ENTER DEFAULT re 73 MOTION for Default Judgment by the Clerk as to Defendant Cal-Kirk Landscaping, Inc. filed by Board of Trustees of the Laborers Vacation-Holiday Trust Fund for Northern California, Northe rn California District Council of Laborers, Board of Trustees of the Laborers Training and Retraining Trust Fund for Northern California, Board of Trustees of the Laborers Health and Welfare Trust Fund for Northern California, Board of Trustees of the Laborers Pension Trust Fund for Northern California. Signed by Judge Edward M. Chen on 3/6/12. (bpf, COURT STAFF) (Filed on 3/6/2012)

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BARRY E. HINKLE, Bar No. 071223
CONCEPCIÓN E. LOZANO-BATISTA, Bar No. 227227
KRISTINA M. ZINNEN, Bar No. 245346
WEINBERG, ROGER & ROSENFELD
A Professional Corporation
1001 Marina Village Parkway, Suite 200
Alameda, California 94501-1091
Telephone [phone]
Fax [phone]

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Attorneys for Plaintiffs

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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THE BOARD OF TRUSTEES, in their capacities as ) No.
CV 08-3292 EMC
Trustees of the LABORERS HEALTH AND
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WELFARE TRUST FUND
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FOR NORTHERN CALIFORNIA; LABORERS
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VACATION-HOLIDAY TRUST FUND FOR
) PLAINTIFFS’ REQUEST FOR
NORTHERN CALIFORNIA; LABORERS
) ENTRY OF DEFAULT ; ORDER
PENSION TRUST FUND FOR NORTHERN
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CALIFORNIA; and LABORERS TRAINING AND )
RETRAINING TRUST FUND FOR NORTHERN )
CALIFORNIA; NORTHERN CALIFORNIA
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DISTRICT COUNCIL OF LABORERS for itself and )
on behalf of LABORERS’ LOCAL 139
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Plaintiffs,
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v.
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CAL-KIRK LANDSCAPING, INC., A California
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Corporation,
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Defendant.
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Plaintiffs, the Board of Trustees, in their capacities as Trustees of the Laborers Health and
Welfare Trust Fund for Northern California; Laborers Vacation-Holiday Trust Fund for Northern
California; Laborers Pension Trust Fund for Northern California; and Laborers Training and
Retraining Trust Fund for Northern California; and the Northern California District Council of
Laborers, for itself and on behalf of Laborers Local 139 (“Plaintiffs”) hereby request that the
Court enter default of Defendant Cal-Kirk Landscaping, Inc. (“Defendant”). The basis for this
request is set forth in the accompanying declaration of Kristina M. Zinnen, filed herewith.

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WEINBERG, ROGER &
ROSENFELD
A Professional Corporation
1001 Marina Village Parkway, Suite 200
Alameda, California 94501
[phone]

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PLAINTIFFS’ REQUEST FOR ENTRY OF DEFAULT
No.
CV 08-3292 EMC

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Plaintiffs filed their Petition to Confirm Arbitration Award and Complaint for Audit,

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Breach of Contract, Damages and Injunction on July 9, 2008. Plaintiffs served Defendant Cal-

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Kirk Landscaping, Inc. (“Defendant”) with the Complaint by personal service on August 7, 2008,

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for which Plaintiffs filed Proof of Service with this Court on August 25, 2008.

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Plaintiffs thereafter filed and served their First Amended Complaint for Petition to

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Confirm Arbitration Award, Breach of Contract, Damages, and Breach of Fiduciary Duty on

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May 7, 2009. On June 4, 2009, at the request of the parties, the Court granted Defendant an

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extension of time to answer or otherwise respond to Plaintiffs’ First Amended Complaint to

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July 31, 2009. The parties thereafter stipulated to two additional extensions of time for Defendant

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to answer or otherwise respond to Plaintiffs’ First Amended Complaint to August 31, 2009 and

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September 9, 2009, respectively. Defendant timely answered on September 9, 2009.

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On December 15, 2011, the Court granted Seyfarth Shaw LLP’s motion to withdraw at

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Defendant’s counsel effective December 2, 2011. (Document 71.) The Court further ordered

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Defendant to find substitute counsel to represent it and make an appearance in this case within

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sixty (60) days of the December 15, 2011 Order, or the Court would enter Defendant’s default.

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To date, Defendant has failed to have substitute counsel make an appearance in this case.

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Because the sixty day deadline has expired, Plaintiffs respectfully request that the Court enter

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Defendant’s default.

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Dated: February 14, 2012

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A Professional Corporation
1001 Marina Village Parkway, Suite 200
Alameda, California 94501
[phone]

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WEINBERG, ROGER &
ROSENFELD

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FO

115853/655984

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. Chen

dward M
Judge E

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ISTRIC
ES D
T

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_____________________
TA
Edward M. Chen
ED
U.S. District Judge IT IS SO ORDER

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By:

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S

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IT IS SO ORDERED that default is
entered against Defendant CalKirk. The 3/16/12 CMC is reset
for 5/25/12 at 9:00 a.m.

UNIT
ED

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WEINBERG, ROGER & ROSENFELD
A Professional Corporation

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D IS T IC T O
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PLAINTIFFS’ REQUEST FOR ENTRY OF DEFAULT
No.
CV 08-3292 EMC

/s/Kristina M. Zinnen
KRISTINA M. ZINNEN
Attorneys for Plaintiffs

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PROOF OF SERVICE

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I am a citizen of the United States, and a resident of the State of California. I am over the
age of eighteen years, and not a party to the within action. My business address is 1001 Marina
Village Parkway, Suite 200, Alameda, California 94501-1091. On February 15, 2011, I served
upon the following parties in this action:
Cal Kirk Landscaping, Inc., A
California Corporation
2905 Saint Louis Road
Arcata, CA 95521

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copies of the document(s) described as:
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PLAINTIFFS’ REQUEST FOR ENTRY OF DEFAULT
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[X]

BY MAIL I placed a true copy of each document listed herein in a sealed envelope,
addressed as indicated herein, and caused each such envelope, with postage thereon fully
prepaid, to be placed in the United States mail at Alameda, California. I am readily
familiar with the practice of Weinberg, Roger & Rosenfeld for collection and processing
of correspondence for mailing, said practice being that in the ordinary course of business,
mail is deposited in the United States Postal Service the same day as it is placed for
collection.

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BY PERSONAL SERVICE I placed a true copy of each document listed herein in a
sealed envelope, addressed as indicated herein, and caused the same to be delivered by
hand to the offices of each addressee.

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BY OVERNIGHT DELIVERY SERVICE I placed a true copy of each document listed
herein in a sealed envelope, addressed as indicated herein, and placed the same for
collection by Overnight Delivery Service by following the ordinary business practices of
Weinberg, Roger & Rosenfeld, Alameda, California. I am readily familiar with the
practice of Weinberg, Roger & Rosenfeld for collection and processing of Overnight
Delivery Service correspondence, said practice being that in the ordinary course of
business, Overnight Delivery Service correspondence is deposited at the Overnight
Delivery Service offices for next day delivery the same day as Overnight Delivery Service
correspondence is placed for collection.

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BY FACSIMILE I caused to be transmitted each document listed herein via the fax
number(s) listed above or on the attached service list.

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I certify that the above is true and correct. Executed at Alameda, California, on
February 15, 2011.

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/s/J. L. Aranda
J. L. ARANDA

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WEINBERG, ROGER &
ROSENFELD
A Professional Corporation
1001 Marina Village Parkway, Suite 200
Alameda, California 94501
[phone]

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PLAINTIFFS’ REQUEST FOR ENTRY OF DEFAULT
No.
CV 08-3292 EMC