Crosthwaite et al v. BCJ Sand & Rock, Inc.

Filing 35

Order by Hon. Samuel Conti granting 34 Stipulation re: Third Amended Judgment.(sclc1, COURT STAFF) (Filed on 2/26/2013)

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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 UNITED STATES DISTRICT COURT 10 FOR THE NORTHERN DISTRICT OF CALIFORNIA 11 12 F. G. CROSTHWAITE, et al., as Trustees of the OPERATING ENGINEERS’ HEALTH 13 AND WELFARE TRUST FUND, et al., THIRD AMENDED JUDGMENT PURSUANT TO STIPULATION Plaintiffs, 14 15 Case No.: C11-1440 SC v. 16 BCJ SAND & ROCK, INC., aka BCJ SAND AND ROCK CORPORATION, a California 17 Corporation, Defendant. 18 19 20 IT IS HEREBY STIPULATED by and between the parties hereto, that this Third “Third Amended Stipulation shall be entered in the ”) 21 Amended Judgment Pursuant to Stipulation ( 22 within action in favor of the Plaintiffs OPERATING ENGINEERS HEALTH AND WELFARE ” ”) 23 TRUST FUND, et al. (collectively “Plaintiffs or“Trust Funds and against Defendant BCJ SAND & 24 ROCK, INC., aka BCJ SAND AND ROCK CORPORATION, a California Corporation, and/or 25 alter egos and/or successor entities, and JAMES BRAD SLENDER aka BRAD SLENDER, as ” 26 individual guarantor (collectively “Defendant ), as follows: 27 1. All provisions of the Second Amended and Restated Judgment Pursuant to “ ”), 28 Stipulation (Second Amended Stipulation entered by the Court on June 18, 2012, shall remain in -1THIRD AMENDED JUDGMENT PURSUANT TO STIPULATION Case No.: C11-1440 SC P:\CLIENTS\OE3CL\BCJ Sand and Rock Corp\Pleadings\March 2011 Action\Stipulations\C11-1440 SC (Executed) Third Amended Stipulation 121712.DOC 1 full force and effect and incorporated herein, except paragraphs 2, 3, 6, and 11, which are 2 amended and agreed as follows. References therein to Defendant shall include Guarantor. 3 4 Revised ¶2: 5 2. The parties agree that Defendant remains indebted to the Trust Funds as follows: 6 7 8 9 10 11 12 Principal Second Amended Stipulation balance (as of Liquidated Damages Interest $17,004.59 9/27/12) Conditionally waived Liquidated Damages in Second Amended Stipulation 10% p/a Interest on Second Amended Stipulation Conditional Balance (9/28/12- $22,825.58 $377.36 12/17/12) $40,207.53 Contributions 20% Liquidated Damages 10% p/a Interest (10/26/12-12/17/12) $5,120.73 10/12 Contributions 20% Liquidated Damages 10% p/a Interest (11/26/12-12/17/12) $6,989.89 11/12 Contributions 20% Liquidated Damages $7,496.40 9/12 $1,024.14 $74.36 13 14 15 16 $6,219.23 $1,397.98 $42.13 $8,430.00 $1,499.28 17 SUB-TOTALS 18 19 $36,611.61 22 $26,746.98 $493.85 Attorneys’ fees (6/7/12-12/15/12) Costs (4/20/12-12/11/12) $8,995.68 $63,852.44 $8,307.00 $2,863.00 20 21 Totals TOTAL – 3rd Amended Stipulation Credit (Redwood Credit Union levy, received 12/6/12 Credits (Anticipated Levy proceeds (see Attachment A) Balance due after receipt of Attachment A proceeds: $11,170.00 $75,022.44 <$3,000.77> <$16,848.43> $55,173.24 23 24 Revised ¶¶3(a), 3(e), 3(f): 25 3. Personal guarantor James Brad Slender shall provide, no later than December 27, 26 2012, evidence of personal assets that will cover the balance due under this Third Amended 27 Stipulation. It is expressly agreed that the anticipated levy proceeds of $19,856.20 remain due 28 under Third Amended Stipulation until received. -2THIRD AMENDED JUDGMENT PURSUANT TO STIPULATION Case No.: C11-1440 SC P:\CLIENTS\OE3CL\BCJ Sand and Rock Corp\Pleadings\March 2011 Action\Stipulations\C11-1440 SC (Executed) Third Amended Stipulation 121712.DOC 1 Defendant shall conditionally pay the amount of $32,347.66, representing all above 2 amounts, less the anticipated levy receipts and the conditionally waived liquidated damages in the 3 amount of $22,825.58. This conditional waiver is expressly conditioned upon timely compliance 4 with all of the terms of this Third Amended Stipulation, as follows: (a) 5 Beginning on or before January 10, 2013, and continuing on or before the 6 10th day of each month thereafter, until all amounts due are paid in full, Defendant shall pay to 7 Plaintiffs the amount of $3,000.00 per month. (e) 8 Checks shall be made payable to the Operating Engineers Local 3 Trust 9 Funds, and delivered on or before each due date to Muriel B. Kaplan at Saltzman & Johnson Law 10 Corporation, 44 Montgomery Street, Suite 2110, San Francisco, California 94104, or to such other 11 address as may be specified by Plaintiffs, to be received on or before the 10th day of each month. (f) 12 Prior to the last payment due to satisfy this Third Amended Stipulation, 13 Plaintiffs shall advise Defendant, in writing, as to the final amount due, including interest and all 14 additional attorneys’ fees and costs incurred by Plaintiffs in connection with collection and 15 allocation of the amounts owed to Plaintiffs under this Third Amended Stipulation. Defendant 16 shall pay all additional attorneys’ fees and costs incurred following those included herein, 17 regardless of whether or not Defendant defaults herein. All additional amounts due pursuant to the 18 provisions hereunder shall be paid in full with the final stipulated payment. 19 Revised ¶6: 20 6. Beginning with contributions due for hours worked by Defendant’s employees 21 during the month of December 2012, which are due by January 15, 2013, and for every month 22 thereafter, Defendant shall remain current in reporting and payment of all contributions due 23 to Plaintiffs under the current Collective Bargaining Agreements and under all subsequent 24 Collective Bargaining Agreements, if any, and the Declarations of Trust as amended. Defendant 25 shall submit its contribution report for each month, together its payment check, to the Trust 26 Fund’s designated P.O. Box. Defendant shall concurrently send a copy of that report and 27 payment by email to both mkaplan@sjlawcorp.com and vanessa@sjlawcorp.com, or by 28 facsimile to Muriel B. Kaplan at 415-882-9287, or to such other email or fax number as may -3THIRD AMENDED JUDGMENT PURSUANT TO STIPULATION Case No.: C11-1440 SC P:\CLIENTS\OE3CL\BCJ Sand and Rock Corp\Pleadings\March 2011 Action\Stipulations\C11-1440 SC (Executed) Third Amended Stipulation 121712.DOC 1 be specified by Plaintiffs. Failure by Defendant to timely submit to Muriel B. Kaplan a copy of ” 2 its current contribution report and payment, or report of “no employees, if applicable, shall 3 constitute a default of the obligations under this agreement and the provisions of ¶11 shall apply. 4 Revised ¶11(a): 5 In the event that Defendant fails to provide evidence of personal assets or make any 6 payment required under revised ¶3 above, or fails to remain current in any contributions under ¶6 7 above or fails to timely provide the monthly documents required by ¶¶6 and 7 herein, and such 8 default is not timely cured, the following will occur: 9 (a) The entire unpaid balance of the $75,022.44 total due, as specified in ¶3(d), 10 and any unpaid contributions then due, plus 20% liquidated damages and 10% per annum interest 11 on the unpaid or late paid contributions, shall be made a part of this Judgment and be immediately 12 due and payable, together with any additional attorneys’ fees and costs incurred during the term of 13 this Third Amended Stipulation. 14 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// -4THIRD AMENDED JUDGMENT PURSUANT TO STIPULATION Case No.: C11-1440 SC P:\CLIENTS\OE3CL\BCJ Sand and Rock Corp\Pleadings\March 2011 Action\Stipulations\C11-1440 SC (Executed) Third Amended Stipulation 121712.DOC 1 2. All other terms and provisions of the Second Amended and Restated Judgment 2 Pursuant to Stipulation shall continue to remain in full force and effect, and all references therein 3 to the Second Amended Stipulation shall mean and be incorporated into this Third Amended 4 Stipulation. 5 Dated: January 14, 2013 BCJ SAND & ROCK, INC., aka BCJ SAND AND ROCK CORPORATION 6 7 By: 8 /S/James Brad Slender James Brad Slender aka Brad Slender Its RMO/CEO/President 9 Dated: January 30, 2013 JAMES BRAD SLENDER aka BRAD SLENDER 10 11 By: 12 /S/James Brad Slender James Brad Slender aka Brad Slender As Personal Guarantor 13 Dated: February 1, 2013 OPERATING ENGINEERS’ HEALTH & WELFARE TRUST FUND, et al. 14 15 16 By: 17 18 19 20 21 IT IS SO ORDERED. The Third Amended Judgment Pursuant to Stipulation is hereby entered. IT IS FURTHER ORDERED that the Court shall retain jurisdiction over this matter. February 26 22 Dated: _________________, 2013 23 24 /S/David E. Hayner David E. Hayner Collections Manager, Operating Engineers’ Health & Welfare Trust Fund, et al. _______________________________________ THE HONORABLE SAMUEL CONTI SENIOR JUDGE UNITED STATES DISTRICT COURT 25 26 27 28 -5THIRD AMENDED JUDGMENT PURSUANT TO STIPULATION Case No.: C11-1440 SC P:\CLIENTS\OE3CL\BCJ Sand and Rock Corp\Pleadings\March 2011 Action\Stipulations\C11-1440 SC (Executed) Third Amended Stipulation 121712.DOC 1 2 3 4 ATTACHMENT A to THIRD AMENDED JUDGMENT PURSUANT TO STIPULATION Crosthwaite, et al. v. BCJ Sand & Rock, Inc., et al. USDC Case No. C11-1440 SC 5 6 7 Anticipated Levy Proceeds 8 9 10 11 12 13 Source Redwood Credit Union Sonoma Bank Basalite Concrete Products Boral Industries Boral Industries McNear Brick and Block TOTAL Amount $3,000.77 * $7,914.44 $2,684.58 $572.30 $4,184.11 $1,500.00 $19,856.20 14 15 * Received 12/6/12 16 17 18 19 20 21 22 23 24 25 26 27 28 -6THIRD AMENDED JUDGMENT PURSUANT TO STIPULATION Case No.: C11-1440 SC P:\CLIENTS\OE3CL\BCJ Sand and Rock Corp\Pleadings\March 2011 Action\Stipulations\C11-1440 SC (Executed) Third Amended Stipulation 121712.DOC

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