Crosthwaite et al v. Spilker Associate, et al.

Filing 10

JUDGMENT. Signed by Judge Illston on 12/23/08. (ts, COURT STAFF) (Filed on 12/23/2008)

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Case 3:08-cv-04520-SI Document 9 Filed 12/22/2008 Page 1 of 8 1 Muriel B. Kaplan, Esq. (SBN 124607) Michele R. Stafford, Esq. (SBN 172509) 2 SALTZMAN & JOHNSON LAW CORPORATION 44 Montgomery Street, Suite 2110 3 San Francisco, CA 94104 (415) 882-7900 4 (415) 882-9287 Facsimile mkaplan@sjlawcorp.com 5 mstafford@sjlawcorp.com 6 Attorneys for Plaintiffs 7 8 9 10 11 OPERATING ENGNEERS HEALTH AND 12 WELFARE TRUST FUND FOR NORTHERN CALIFORNIA, et al., 13 Plaintiffs, 14 v. 15 SPILKER ASSOCIATES dba SPILKER, INC., 16 A California Corporation; MARK P. SPILKER, an individual; and MICHELLE SPILKER, an 17 individual, 18 19 20 21 22 23 24 25 26 27 IT IS HEREBY STIPULATED by and between the parties hereto, that Judgment may be entered in the within action in favor of the plaintiffs BOARDS OF TRUSTEES FOR OPERATING ENGINEERS HEALTH AND WELFARE TRUST FUND, et al. (collectively "Plaintiffs" or "Trust Funds") and against Defendants SPILKER ASSOCIATES dba SPILKER, INC., a California Corporation, or successor entities; MARK P. SPILKER, an individual; and MICHELLE SPILKER, an individual, (collectively "Defendants"), as follows: 1. Defendants entered into a valid Collective Bargaining Agreement with the Defendants. Case No.: C08-4520 SI NOTICE AND ACKNOWLEDGMENT and JUDGMENT PURSUANT TO STIPULATION UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA Operating Engineers Local 3 Trust Funds (hereinafter "Bargaining Agreement"). This Bargaining 28 Agreement has continued in full force and effect to the present time. 1 JUDGMENT PURSUANT TO STIPULATION CASE NO.: C08-4520 SI P:\CLIENTS\OE3CL\Spilker Associates\Pleadings\Judgment Pursuant to Stipulation 121608.DOC Case 3:08-cv-04520-SI Document 9 Filed 12/22/2008 Page 2 of 8 1 2. Mark Philip Spilker, RMO/CEO/President of Defendant Spilker Associates dba 2 Spilker, Inc., on behalf of all named Defendants, hereby acknowledges that he is authorized to 3 receive service and has received the following documents in this action: Summons; Complaint; 4 Dispute Resolution Procedures in the Northern District of California; Order Setting Initial Case 5 Management Conference and ADR Deadlines; Case Management Conference Order; Standing 6 Order for All Judges of the Northern District of California, Judge Illston's Standing Order; 7 Instructions for Completion of ADR Forms Regarding Selection of an ADR Process; Stipulation 8 and [Proposed Order] Selecting ADR Process; Notice of Need for ADR Phone Conference; ADR 9 Certification by Parties and Counsel; Notice of Availability of Magistrate Judge to Exercise 10 Jurisdiction; Consenting to a Magistrate Judge's Jurisdiction in the Northern District of California, 11 ECF Registration Information Handout; and Welcome to the U.S. District Court, San Francisco. 12 13 14 15 16 17 18 19 20 21 22 April 2008 23 24 25 26 27 28 2 JUDGMENT PURSUANT TO STIPULATION CASE NO.: C08-4520 SI P:\CLIENTS\OE3CL\Spilker Associates\Pleadings\Judgment Pursuant to Stipulation 121608.DOC 3. Defendants have become indebted to the Trust Funds as follows: December 2007 Reported contributions Liquidated Damages Interest (to 9/08/08) Reported contributions Liquidated Damages Interest (to 9/08/08) Reported contributions Liquidated Damages Interest (to 9/08/08) Reported contributions Liquidated Damages Interest (to 9/08/08) Reported contributions Liquidated Damages Interest (to 9/08/08) $9,580.80 $1,268.24 $68.26 $10,917.30 January 2008 $6,347.28 $892.89 $132.68 $7,372.85 February 2008 $7,405.16 $1,012.53 $186.51 $8,604.20 March 2008 $10,538.88 $1,381.06 $284.25 $12,204.19 $8,800.36 $1,176.33 $1,080.14 $11,056.83 $50,155.37 $4,671.00 $440.81 $55,267.18 SUB-TOTAL Attorneys Fees (to 12/4/08) Cost of Suit, etc. TOTAL Case 3:08-cv-04520-SI Document 9 Filed 12/22/2008 Page 3 of 8 1 4. Defendants shall conditionally pay the amount of $49,536.13, representing all 2 above amounts, less liquidated damages in the amount of $5,731.05 conditioned upon Trustees 3 approval and timely compliance with all of the terms of this Stipulation, as follows: 4 (a) On or before December 25, 2008, and no later than the 25th day of each 5 month thereafter for a period of 18 months, through and including March 25, 2009, Defendants 6 shall pay to Plaintiffs the amount of $3,021.00. These payments may be made by joint check, to 7 be endorsed prior to submission; 8 9 time; 10 (c) Payments shall be applied first to unpaid interest and then to unpaid (b) Defendants shall have the right to increase the monthly payments at any 11 principal. The unpaid principal balance shall bear interest at the rate of 12% per annum in 12 accordance with Plaintiffs' Trust Agreements. 13 (d) Payments shall be made payable to the Bay Area Painters and Tapers Trust 14 Funds, and delivered to Michele R. Stafford at Saltzman & Johnson Law Corporation, 44 15 Montgomery Street, Suite 2110, San Francisco, California 94104, to be received on or before 16 the 1st day of each month, or to such other address as may be specified by Plaintiffs. 17 (e) At the time that Defendants makes their 17th monthly payment, Defendants 18 may submit a written request for waiver of liquidated damages directed to the Board of Trustees, 19 but sent to Saltzman and Johnson Law Corporation with the 17th payment. Defendants will be 20 advised as to whether or not the waiver has been granted prior to the final payment hereunder. 21 5. In the event that any check is not timely submitted or submitted by Defendants but 22 fails to clear the bank, or is unable to be negotiated for any reason for which Defendants are 23 responsible, this shall be considered to be a default on the Judgment entered. If this occurs, 24 Plaintiffs shall make a written demand to Defendants to cure said default. Default will only be 25 cured by the issuance of a replacement, cashier's check, delivered to Saltzman and Johnson Law 26 Corporation within seven (7) days of the date of the notice from Plaintiffs. If Defendants elect to 27 cure said default, and Plaintiffs elect to accept future payments, all such payments shall be made 28 3 JUDGMENT PURSUANT TO STIPULATION CASE NO.: C08-4520 SI P:\CLIENTS\OE3CL\Spilker Associates\Pleadings\Judgment Pursuant to Stipulation 121608.DOC Case 3:08-cv-04520-SI Document 9 Filed 12/22/2008 Page 4 of 8 1 by cashier's check. In the event default is not cured, all amounts remaining due hereunder shall be 2 due and payable on demand by Plaintiffs. 3 6. An audit of Defendants records has occurred in this matter. The audit report has not 4 been completed to date. In the event that amounts are found due on audit, all such amounts will 5 become part of this Judgment. In the event that this occurs, defendants have the right to request 6 that the term of the payment plan be extended until all amounts are paid in full. 7 7. Beginning with contributions due for hours worked by Defendants' employees 8 during the month of September 2008, to be postmarked no later than October 15, 2008, and for 9 every month thereafter that the Bargaining Agreement remains in effect, Defendants shall remain 10 current in contributions due to Plaintiffs under the current Collective Bargaining Agreement and 11 under all subsequent Collective Bargaining Agreements, if any, and the Declarations of Trust as 12 amended. Defendants shall fax a copy of the contribution report for each month, together 13 with a copy of that payment check, to Michele R. Stafford at 415-882-9287, prior to sending 14 the payment to the Trust Fund office. To the extent that Defendants are working on a Public 15 Works job, or any other job for which Certified Payroll Reports are required, copies of said 16 Reports will be faxed to Michele R. Stafford concurrently with their submission to the 17 general contractor, owner or other reporting agency. 18 8. Failure by Defendants to remain current in its contributions shall constitute a 19 default of the obligations under this agreement and the provisions of 12 shall apply. Any such 20 unpaid or late paid contributions, together with 15% liquidated damages and 12% per annum 21 interest accrued on the total contributions and liquidated damages, shall be added to and become a 22 part of this Judgment and subject to the terms herein. Plaintiffs reserve all rights available under 23 the applicable Bargaining Agreement and Declarations of Trust of the Trust Funds for collection 24 of current and future contributions, and for any additional past contributions not included herein as 25 may be determined by Plaintiffs, pursuant to employee timecards or paystubs, by audit, or other 26 means, and the provisions of this agreement are in addition thereto. Defendants specifically waive 27 the defense of the doctrine res judicata as to any such additional amounts determined as due. 28 4 JUDGMENT PURSUANT TO STIPULATION CASE NO.: C08-4520 SI P:\CLIENTS\OE3CL\Spilker Associates\Pleadings\Judgment Pursuant to Stipulation 121608.DOC Case 3:08-cv-04520-SI Document 9 Filed 12/22/2008 Page 5 of 8 1 9. Defendants shall make full disclosure of all jobs on which they are working by 2 providing Plaintiffs with an ongoing and updated list of jobs including, but not limited to, name 3 and address of job, general contractor, certified payroll if a public works job, and period. 4 Defendants shall fax said updated list each month together with the contribution report (as 5 required by 7 of this Stipulation) to Michele R. Stafford at 415-882-9287. 6 10. Mark Philip Spilker acknowledges that he is the RMO/CEO/President, of Spilker 7 Associates dba Spilker, Inc., and Michelle Spilker acknowledges that she is the spouse of Mark 8 Philip Spilker, and both acknowledge that all successors in interest to Spilker Associates dba 9 Spilker Inc., as well as assigns and affiliated entities, shall be bound by the terms of this 10 Stipulation as Guarantors. All such entities specifically consent to the Court's jurisdiction as well 11 as all other terms herein. 12 11. Prior to the last payment pursuant to this Stipulation, Plaintiffs shall advise 13 Defendants, in writing, of the amount of the final lump sum payment and any additional amounts 14 claimed pursuant to the Stipulation, which shall include, but not be limited to, any additional 15 attorneys fees and costs incurred in this matter. Said amount shall be paid with the last payment, 16 on or before September 1, 2009. Plaintiffs shall also advise whether the conditional waiver of 17 liquidated damages have been granted in whole or in part. If liquidated damages remain due, these 18 amounts will be included in the final payment. If Defendants are unable to do so, Defendants will 19 continue to make monthly payments in the amount of $4,165.00 until paid in full. 20 12. In the event that Defendants fail to make any payment required under 4 above, or 21 fail to remain current in any contributions under 7 above, then, 22 (a) The entire amount of $55,267.18 plus interest, reduced by principal 23 payments received by Plaintiffs, but increased by any unpaid contributions then due, plus 15% 24 liquidated damages and 12% per annum interest thereon, shall be immediately due, together with 25 any additional attorneys' fees and costs under section (d) below. 26 (b) A writ of execution may be obtained against Defendants without further 27 notice, in the amount of the unpaid balance, plus any additional amounts under the terms herein, 28 5 JUDGMENT PURSUANT TO STIPULATION CASE NO.: C08-4520 SI P:\CLIENTS\OE3CL\Spilker Associates\Pleadings\Judgment Pursuant to Stipulation 121608.DOC Case 3:08-cv-04520-SI Document 9 Filed 12/22/2008 Page 6 of 8 1 upon declaration of a duly authorized representative of the Plaintiffs setting forth any payment 2 theretofore made by or on behalf of Defendants and the balance due and owing as of the date of 3 default. Defendants specifically consent to the authority of a Magistrate Judge for all proceedings, 4 including, but not limited to, Plaintiffs' obtaining a writ of execution. 5 (c) Defendants waive notice of entry of judgment and expressly waive all rights 6 to stay of execution and appeal. The declaration or affidavit of a duly authorized representative of 7 Plaintiffs as to the balance due and owing as of the date of default shall be sufficient to secure the 8 issuance of a writ of execution. 9 (d) Defendants shall pay all additional costs and attorneys' fees incurred by 10 Plaintiffs in connection with collection and allocation of the amounts owed by Defendants to 11 Plaintiffs under this Stipulation. 12 13. Any failure on the part of the Plaintiffs to take any action against Defendants as 13 provided herein in the event of any breach of the provisions of this Stipulation shall not be deemed 14 a waiver of any subsequent breach by the Defendants of any provisions herein. 15 14. In the event of the filing of a bankruptcy petition by any of the Defendants, the 16 parties agree that any payments made by Defendants pursuant to the terms of this judgment, shall 17 be deemed to have been made in the ordinary course of business as provided under 11 U.S.C. 18 Section 547(c)(2) and shall not be claimed by Defendants as a preference under 11 U.S.C. Section 19 547 or otherwise. Defendants nevertheless represent that no bankruptcy filing is anticipated. 20 15. Should any provision of this Stipulation be declared or determined by any court of 21 competent jurisdiction to be illegal, invalid, or unenforceable, the legality, validity, and 22 enforceability of the remaining parts, terms or provisions shall not be affected thereby and said 23 illegal, unenforceable or invalid part, term, or provision shall be deemed not to be part of this 24 Stipulation. 25 16. This Stipulation contains all of the terms agreed by the parties and no other 26 agreements have been made. Any changes to this Stipulation shall be effective only if made in 27 writing and signed by all parties hereto. 28 6 JUDGMENT PURSUANT TO STIPULATION CASE NO.: C08-4520 SI P:\CLIENTS\OE3CL\Spilker Associates\Pleadings\Judgment Pursuant to Stipulation 121608.DOC Case 3:08-cv-04520-SI Document 9 Filed 12/22/2008 Page 7 of 8 1 17. This Stipulation may be executed in any number of counterparts and by facsimile, 2 each of which shall be deemed an original and all of which shall constitute the same instrument. 3 18. The parties agree that the Court shall retain jurisdiction of this matter until this 4 Judgment is satisfied. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 JUDGMENT PURSUANT TO STIPULATION CASE NO.: C08-4520 SI P:\CLIENTS\OE3CL\Spilker Associates\Pleadings\Judgment Pursuant to Stipulation 121608.DOC /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// Case 3:08-cv-04520-SI Document 9 Filed 12/22/2008 Page 8 of 8 1 19. All parties represent and warrant that they have had the opportunity to be or have 2 been represented by counsel of their own choosing in connection with entering this Stipulation 3 under the terms and conditions set forth herein, and that they enter into this Stipulation voluntarily. 4 Dated: December 17, 2008 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 IT IS SO ORDERED 20 21 22 23 24 25 26 27 28 8 JUDGMENT PURSUANT TO STIPULATION CASE NO.: C08-4520 SI P:\CLIENTS\OE3CL\Spilker Associates\Pleadings\Judgment Pursuant to Stipulation 121608.DOC SPILKER ASSOCIATES dba SPILKER, INC. By: __/s/ Mark P. Spilker_____________________ Mark Philip Spilker, RMP/CEO/President Dated: December 17, 2008 By: __/s/ Mark P. Spilker_____________________ Mark Philip Spilker, Individually Dated: December 18, 2008 By: __/s/ Michelle Spilker_____________________ Michelle Spilker, Individually Dated: December 22, 2008 SALTZMAN & JOHNSON LAW CORPORATION By: __/s/ Michele R. Stafford__________________ Michele R. Stafford Attorneys for Plaintiffs Dated: _________________, 2008 _______________________________________ UNITED STATES DISTRICT COURT JUDGE

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