Bay Area Painters & Tapers Pension Trust Fund et al v. Rhodes Painting & Decorating, Inc. et al

Filing 29

JUDGMENT PURSUANT TO STIPULATION. Signed by Judge Maxine M. Chesney on November 26, 2013. (mmclc1, COURT STAFF) (Filed on 11/26/2013)

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1 Michele R. Stafford, Esq. (SBN 172509) Erica J. Russell, Esq. (SBN 274494) 2 SALTZMAN & JOHNSON LAW CORPORATION 44 Montgomery Street, Suite 2110 3 San Francisco, CA 94104 (415) 882-7900 4 (415) 882-9287 – Facsimile mstafford@sjlawcorp.com 5 erussell@sjlawcorp.com 6 Attorneys for Plaintiffs 7 8 UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA Case No.: C12-6162 MMC 10 BAY AREA PAINTERS AND TAPERS PENSION FUND, et al., 11 JUDGMENT PURSUANT TO Plaintiffs, STIPULATION 12 v. 13 RHODES PAINTING & DECORATING, INC. aka 14 RHODES PAINTING, a California Corporation; and LANETT FERGUSON, an Individual, 15 Defendants. 16 17 18 IT IS HEREBY STIPULATED and AGREED (the “Stipulation”) by and between the 19 parties hereto, that Judgment shall be entered in the within action in favor of the Plaintiffs BAY 20 AREA PAINTERS AND TAPERS PENSION FUND, et al. (collectively “Plaintiffs” or “Trust 21 Funds”) and against Defendants RHODES PAINTING AND DECORATING, INC., and/or alter 22 egos and/or successor entities, and LANETT FERGUSON, an individual (collectively 23 “Defendants”), as follows: 24 1. Defendants entered into a valid Collective Bargaining Agreement between District 25 Council 16 and the Northern California Painting and Finishing Contractors Association (the 26 “Bargaining Agreement”). The agreement is still in full force and effect. 27 / / / 28 / / / -1JUDGMENT PURSUANT TO STIPULATION Case No.: C12-6162 MMC P:\CLIENTS\PATCL\Rhodes Painting\Pleadings\2012 Action\judgment pursuant to stipulation.doc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 2. Defendants have become indebted to the Trust Funds as follows: AUDIT (10/01/09-12/31/12) Underpayments 5% Interest 20% Liquidated Damages Testing Fee Administrative Fee $22,976.63 $1,200.80 $4,595.33 $4,061.75 $989.52 $33,824.03 ($9,895.21) Overpayments Eligible for Credit Subtotal $23,928.82 CONTRIBUTIONS 12/12 Contributions Balance (total = $3,221.68) 5% Interest (through 11/07/13) 20% Liquidated Damages $1,650.48 $123.20 $644.34 03/13 Contributions 5% Interest (through 11/07/13) 20% Liquidated Damages $4,743.93 $124.15 $948.78 06/13 Contributions 5% Interest (through 11/07/13) 20% Liquidated Damages $3,325.97 $45.54 $665.20 07/13 Contributions 5% Interest (through 11/07/13) 20% Liquidated Damages $6,647.70 $61.88 $1,329.54 08/13 Contributions 5% Interest (through 11/07/13) 20% Liquidated Damages $3,297.91 $17.10 $659.58 09/13 Contributions 5% Interest (through 11/07/13) 20% Liquidated Damages $1,241.12 $1.36 $248.22 $2,418.02 $5,816.86 $4,036.71 $8,039.12 16 17 18 19 20 21 22 23 24 25 26 $3,974.59 $1,490.70 Subtotal 20% Liquidated Damages on Late Paid Contrib. (01/13, 04-05/13) Interest on Late Paid Contrib. (01/13, 04-05/13) Attorneys’ Fees (through 10/30/13) Costs (through 10/30/13) $47.74 $18,419.00 $572.30 TOTAL DUE $71,082.78 3. $25,776.00 $2,338.92 Defendants shall conditionally pay the amount of $59,652.87, representing all of 27 the above amounts, less liquidated damages in the amount of $11,429.91. This conditional waiver 28 is expressly conditioned upon Trustee approval following timely compliance with all of the terms -2JUDGMENT PURSUANT TO STIPULATION Case No.: C12-6162 MMC P:\CLIENTS\PATCL\Rhodes Painting\Pleadings\2012 Action\judgment pursuant to stipulation.doc 1 of this Stipulation, as follows: 2 (a) Beginning on December 20, 2013, and on or before the 20th day of each 3 month thereafter for a period of four (4) months, through and including March 20, 2014, 4 Defendants shall pay to Plaintiffs the amount of $500.00 per month; 5 (b) Beginning on or before April 20, 2014, and no later than the 20th day of 6 each month thereafter for a period of six (6) months, through and including September 20, 2014, 7 Defendants shall pay to Plaintiffs the increased amount of $1,000.00 per month; 8 (c) Beginning on or before October 20, 2014, and no later than the 20th day of 9 each month thereafter for a period of six (6) months, through and including March 20, 2015, 10 Defendants shall pay to Plaintiffs the increased amount of $1,500.00 per month; 11 (d) Beginning on or before April 20, 2015, and no later than the 20th day of 12 each month thereafter for a period of six (6) months, through and including September 20, 2015, 13 Defendants shall pay to Plaintiffs the increased amount of $2,000.00 per month; 14 (e) Beginning on or before October 20, 2015, and no later than the 20th day of 15 each month thereafter for a period of six (6) months, through and including March 20, 2016, 16 Defendants shall pay to Plaintiffs the increased amount of $2,500.00 per month; 17 (f) Beginning on or before April 20, 2016, and no later than the 20th day of 18 each month thereafter for a period of six (6) months, through and including September 20, 2016, 19 Defendants shall pay to Plaintiffs the increased amount of $3,000.00 per month; 20 (g) Beginning on or before October 20, 2016, and no later than the 20th day of 21 each month thereafter for a period of two (2) months, through and including November 20, 2016, 22 Defendants shall pay to Plaintiffs the increased amount of $3,500.00 per month; 23 (h) Payments may be made by joint check, to be endorsed by Defendants prior 24 to submission. Defendants shall have the right to increase the monthly payments at any time and 25 there is no penalty for prepayment; 26 (i) Payments shall be applied first to unpaid interest and then to unpaid 27 principal. The unpaid principal balance shall bear interest from November 8, 2013, at the rate of 28 5% per annum in accordance with the Collective Bargaining Agreement and Plaintiffs’ Trust -3JUDGMENT PURSUANT TO STIPULATION Case No.: C12-6162 MMC P:\CLIENTS\PATCL\Rhodes Painting\Pleadings\2012 Action\judgment pursuant to stipulation.doc 1 Agreements; (j) 2 Checks shall be made payable to the District Council 16 Northern 3 California Trust Fund, and delivered on or before each due date to Erica J. Russell, Esq. at 4 Saltzman & Johnson Law Corporation, 44 Montgomery Street, Suite 2110, San Francisco, 5 California 94104, or to such other address as may be specified by Plaintiffs; (k) 6 At the time that Defendants make their thirty-fifth (35th) stipulated payment, 7 Defendants may submit a written request for waiver of liquidated damages directed to the Board 8 of Trustees, but sent to Saltzman and Johnson Law Corporation with their thirty-fifth (35th) 9 payment. Defendants will be advised as to whether or not the waiver has been granted prior to the 10 final payment hereunder. Such waiver will not be considered until and unless all other amounts 11 are paid in full and Defendants’ account is otherwise current; (l) 12 Prior to the last payment pursuant to this Stipulation, Plaintiffs shall advise 13 Defendants, in writing, as to the final amount due, including interest and all additional attorneys’ 14 fees and costs incurred by Plaintiffs in connection with collection and allocation of the amounts 15 owed to Plaintiffs under this Stipulation. Defendants shall pay all additional attorneys’ fees and 16 costs regardless of whether or not Defendants default herein. Any additional amounts due 17 pursuant to the provisions hereunder shall also be paid in full with the November 20, 2016 18 stipulated payment; and (m) 19 Failure to comply with any of the above terms shall constitute a default of 20 the obligations under this Stipulation and the provisions of ¶ 10 shall apply. 21 4. In the event that any check is not timely submitted or fails to clear the bank, or is 22 unable to be negotiated for any reason for which Defendants are responsible, Defendants shall be 23 considered to be in default of the Judgment entered. If this occurs, Plaintiffs shall make a written 24 demand to Defendants to cure said default within seven (7) days of the date of the notice from 25 Plaintiffs. If caused by a failed check, default will only be cured by the issuance of a replacement 26 cashier’s check, delivered to Saltzman and Johnson Law Corporation within the seven (7) day 27 cure period. If Defendants elect to cure said default, and Plaintiffs elect to accept future payments, 28 all such future payments shall be made by cashier’s check at Plaintiffs’ request. In the event -4JUDGMENT PURSUANT TO STIPULATION Case No.: C12-6162 MMC P:\CLIENTS\PATCL\Rhodes Painting\Pleadings\2012 Action\judgment pursuant to stipulation.doc 1 default is not cured, all amounts remaining due hereunder shall be due and payable on demand by 2 Plaintiffs. 3 5. LANETT FERGUSON is the responsible managing officer (“RMO”) of Defendant 4 RHODES PAINTING & DECORATING, INC. and confirms that she is individually liable for 5 the amounts due pursuant to the terms of this Stipulation and further acknowledges that she is 6 authorized to enter into this Stipulation on behalf of Defendant RHODES PAINTING & 7 DECORATING, INC. and any additional entities in which she is an officer, owner or possesses 8 any ownership interest, including all successors in interest, assignees, and affiliated entities 9 (including, but not limited to parent or other controlling companies), and any companies with 10 which RHODES PAINTING & DECORATING, INC. joins or merges, if any. Defendants and all 11 such entities shall also be bound by the terms of this Stipulation, and specifically consent to the 12 Court’s jurisdiction, which shall be specified in writing at the time of any assignment, affiliation 13 or purchase of Defendants, along with the obligations to the terms herein. 14 6. Beginning with contributions due for hours worked by Defendants’ employees 15 during the month of October 2013, due on November 15, 2013 and delinquent if not received by 16 the Trust Funds on November 29, 2013, and for every month thereafter until this Judgment is 17 satisfied, Defendants shall remain current in contributions due to Plaintiffs under the current 18 Collective Bargaining Agreement and under all subsequent Collective Bargaining Agreements, if 19 any, and the Declarations of Trust as amended. Defendants shall fax or email a copy of their 20 contribution report for each month, together with a copy of that payment check, to Erica J. Russell 21 and Elise Thurman at 415-882-9287 or to erussell@sjlawcorp.com and ethurman@sjlawcorp.com, 22 prior to sending the payment to the Trust Fund office. Failure to comply with these terms shall also constitute a default of the obligations 23 24 under this Agreement and the provisions of ¶ 10 shall apply. 25 7. Defendants shall make full disclosure of all jobs on which they are working by 26 providing Plaintiffs with an ongoing and updated list of jobs including, but not limited to, the 27 name and address of the job, the start and completion dates, the identity of General 28 Contractor/Owner/Developer, and by providing certified payroll if it is a public works job. -5JUDGMENT PURSUANT TO STIPULATION Case No.: C12-6162 MMC P:\CLIENTS\PATCL\Rhodes Painting\Pleadings\2012 Action\judgment pursuant to stipulation.doc 1 Defendants shall submit said updated list each month together with the contribution report 2 (as required by this Stipulation) either by email to both erussell@sjlawcorp.com and 3 ethurman@sjlawcorp.com, or by facsimile to Erica J. Russell at 415-882-9287. This 4 requirement remains in full force and effect regardless of whether or not Defendants have ongoing 5 work. In this event, Defendants shall submit a statement stating that there are no current jobs. A 6 blank job report form is attached hereto for Defendants’ use, as Exhibit A. To the extent that 7 Defendants are working on a Public Works job, or any other job for which Certified Payroll 8 Reports are required, copies of said reports will be faxed or emailed to Erica J. Russell and 9 Elise Thurman at 415-882-9287 or erussell@sjlawcorp.com and ethurman@sjlawcorp.com 10 concurrently with their submission to the general contractor, owner, or other reporting 11 agency at Plaintiffs’ request. Failure by Defendants to timely submit updated job lists shall 12 constitute a default of the obligations under this agreement, which Defendants shall be permitted 13 to cure within ten (10) days’ written notice from Plaintiffs to Defendants. 8. 14 Failure to comply with any of the above terms shall constitute a default of the 15 obligations under this Stipulation and the provisions of ¶ 10 shall apply. Any unpaid or late-paid 16 contributions, together with 20% liquidated damages and 5% per annum interest accrued on the 17 contributions, pursuant to the Trust Agreements, shall be added to and become a part of this 18 Judgment and subject to the terms herein. Plaintiffs reserve all rights available under the 19 applicable Bargaining Agreement and Declarations of Trust of the Trust Funds for collection of 20 current and future contributions, and for any additional past contributions not included herein as 21 may be determined by Plaintiffs, pursuant to employee timecards or paystubs, by further audit, or 22 other means, and the provisions of this agreement are in addition thereto. Defendants specifically 23 waive the defense of the doctrine res judicata as to any such additional amounts determined as 24 due. 25 9. Audit: Should the Trust Funds request a further audit of Defendants’ payroll 26 records in order to confirm proper reporting and payment of contributions pursuant to the 27 Bargaining Agreement, any failure by Defendants to comply with said request shall constitute a 28 default of the obligations under this Agreement, which Defendants shall have ten (10) days to cure -6JUDGMENT PURSUANT TO STIPULATION Case No.: C12-6162 MMC P:\CLIENTS\PATCL\Rhodes Painting\Pleadings\2012 Action\judgment pursuant to stipulation.doc 1 from receipt of written notice from Plaintiffs. (a) 2 In the event that amounts are found due on audit, Plaintiffs shall send a 3 written demand to Defendants by facsimile to 415-587-7282 and by regular mail for payment in 4 full of the amounts found due in the audit, including a full copy of the audit report and any 5 findings, including contributions, liquidated damages, interest and audit fees owed. (b) 6 Defendants will be provided with ten (10) days in which to review the audit, 7 and provide evidence to contest the findings in the event that Defendants do not agree with the 8 total found due Plaintiffs shall provide any additional information or clarification requested by 9 Defendants in writing within ten (10) days of the request therefor, or as soon as reasonably 10 possible, and Defendants’ time to respond to the audit report or comply with payment 11 requirements shall then run from the time that Defendants receive Plaintiffs’ response. Once the 12 ten (10) day review period expires, in the event that the audit is not contested, payment in full 13 shall be delivered to Erica J. Russell. (c) 14 If the audit is contested, and Defendants provide documentation in support 15 of the dispute, Defendants shall be notified as to whether revisions will be made to the audit. If 16 revisions are not made, payment will be immediately due. (d) 17 If revisions are made to said audit as a result of the dispute, payment in full 18 of the revised amount shall be due within ten (10) days of Defendants’ receipt of the revised 19 billing. 20 (e) If Defendants are unable to make payment in full, Defendants may submit a 21 written request to revise this Judgment, modifying the payment plan (by monthly amount and/or 22 payment term), to add the amounts found due in the audit to this Judgment, subject to the terms 23 herein. If the Judgment is so revised, Defendants shall execute the Amended Judgment or 24 Amendment to Judgment within ten (10) days of Plaintiffs’ preparation of said Amended 25 Judgment or Amendment to Judgment. Failure to execute the revised agreement shall constitute a 26 default of the terms herein, which Defendants shall have five (5) days to cure upon written notice 27 from Plaintiffs. 28 (f) Failure by Defendants to submit either payment in full or a request to add -7JUDGMENT PURSUANT TO STIPULATION Case No.: C12-6162 MMC P:\CLIENTS\PATCL\Rhodes Painting\Pleadings\2012 Action\judgment pursuant to stipulation.doc 1 the amounts due to this Judgment within ten (10) days of the date due per the terms written above 2 shall constitute a default of the obligations under this agreement, which Defendants shall have ten 3 (10) days from receipt of written notice from Plaintiffs to cure. All amounts found due on audit 4 shall immediately become part of this Judgment. 5 10. In the event that Defendants fail to make any payment required under ¶ 3 above, or 6 otherwise default on their obligations as detailed in this Stipulation, and such default is not timely 7 cured, the following will occur: 8 (a) The entire balance of $71,082.78, as specified in ¶ 2, plus interest, but 9 reduced by principal payments received from Defendants, in addition to any unpaid contributions 10 then due plus 20% liquidated damages and 5% per annum interest on the unpaid or late-paid 11 contributions, shall be immediately due and payable, together with any attorneys’ fees and costs 12 incurred during the term of this Stipulation; (b) 13 A Writ of Execution may be obtained against Defendants without further 14 notice to Defendants, in the amount of the unpaid balance plus any additional amounts due under 15 the terms herein. Such Writ of Execution may be obtained solely upon declaration by a duly 16 authorized representative of Plaintiffs setting forth any payment theretofore made by or on behalf 17 of Defendants and the balance due and owing as of the date of default; (c) 18 Defendants waive any notice of Entry of Judgment or of any Request for a 19 Writ of Execution upon default, and expressly waive all rights to stay of execution and appeal. 20 The declaration or affidavit of a duly authorized representative of Plaintiffs as to the balance due 21 and owing as of the date of default shall be sufficient to secure the issuance of a Writ of 22 Execution, without notice to Defendants; and (d) 23 Defendants shall pay all additional attorneys’ fees and costs incurred by 24 Plaintiffs in connection with collection and allocation of the amounts owed by Defendants to 25 Plaintiffs under this Stipulation, whether or not a default occurs herein. 26 11. Any failure on the part of Plaintiffs to take any action against Defendants as 27 provided herein in the event of any breach of the provisions of this Stipulation shall not be deemed 28 a waiver of any subsequent breach by Defendants of any provisions herein. -8JUDGMENT PURSUANT TO STIPULATION Case No.: C12-6162 MMC P:\CLIENTS\PATCL\Rhodes Painting\Pleadings\2012 Action\judgment pursuant to stipulation.doc 12. 1 The parties agree that any payments made pursuant to the terms of this Judgment 2 shall be deemed to have been made in the ordinary course of business as provided under 11 U.S.C. 3 Section 547(c)(2) and shall not be claimed by Defendants as a preference under 11 U.S.C. Section 4 547 or otherwise. 13. 5 Should any provision of this Stipulation be declared or determined by any court of 6 competent jurisdiction to be illegal, invalid, or unenforceable, the legality, validity, and 7 enforceability of the remaining parts, terms or provisions shall not be affected thereby and said 8 illegal, unenforceable or invalid part, term, or provision shall be deemed not to be part of this 9 Stipulation. 14. 10 This Stipulation is limited to the agreement between the parties with respect to the 11 underpaid and delinquent contributions and related sums enumerated herein, owed by Defendants 12 to Plaintiffs. This Stipulation does not in any manner relate to withdrawal liability claims, if any. 13 Defendants acknowledge that Plaintiffs expressly reserve their right to pursue withdrawal liability 14 claims, if any, against Defendants and all of their control group members, as provided by 15 Plaintiffs’ Plan Documents, Trust Agreements incorporated into their Collective Bargaining 16 Agreement, and applicable laws and regulations. 15. 17 This Stipulation contains all of the terms agreed by the parties and no other 18 agreements have been made. Any changes to this Stipulation shall be effective only if made in 19 writing and signed by all parties hereto. 16. 20 This Stipulation may be executed in any number of counterparts and by facsimile, 21 each of which shall be deemed an original and all of which shall constitute the same instrument. 17. 22 Defendants represent and warrant that they have had the opportunity to be or have 23 been represented by counsel of their own choosing in connection with entering this Stipulation 24 under the terms and conditions set forth herein, that they have read this Stipulation with care and 25 are fully aware of and represent that they enter into this Stipulation voluntarily and without duress. 26 / / / 27 / / / 28 / / / -9JUDGMENT PURSUANT TO STIPULATION Case No.: C12-6162 MMC P:\CLIENTS\PATCL\Rhodes Painting\Pleadings\2012 Action\judgment pursuant to stipulation.doc 1 18. The parties agree that the Court shall retain jurisdiction of this matter until this 2 Judgment is satisfied. 3 4 Dated: November 18, 2013 RHODES PAINTING & DECORATING, INC. 5 By: 6 7 8 Dated: November 18, 2013 9 LANETT FERGUSON By: 10 11 /S/ Lanett Ferguson Responsible Managing Officer Dated: November 18, 2013 /S/ Lanett Ferguson, Individually SALTZMAN AND JOHNSON LAW CORPORATION 12 By: 13 /S/ Erica J. Russell Attorneys for Plaintiffs 14 15 IT IS SO ORDERED. 16 IT IS FURTHER ORDERED that the calendar in this matter is vacated, and that the Court shall 17 retain jurisdiction over this matter. 18 November 26 19 Dated: _________________, 2013 _________________________________ UNITED STATES DISTRICT COURT 20 21 22 23 24 25 26 27 28 -10JUDGMENT PURSUANT TO STIPULATION Case No.: C12-6162 MMC P:\CLIENTS\PATCL\Rhodes Painting\Pleadings\2012 Action\judgment pursuant to stipulation.doc 1 2 EXHIBIT A 3 JUDGMENT PURSUANT TO STIPULATION 4 JOB REPORT FORM 5 *** Updated report must be faxed to Erica J. Russell, Esq., at (415) 882-9287 on the last business day of each month *** 6 7 Employer Name: RHODES PAINTING & DECORATING, INC. 8 Report for the month of _____________________ Submitted by: ________________________ 9 10 11 12 13 14 15 16 17 18 19 20 Project Name: Project Address: General Contractor: General Contractor Address/Tel. #: Contract #: Total Value of Contract: Work Start Date: Project Name: Project Address: General Contractor: General Contractor Address/Tel. #: Contract #: Total Value of Contract: Work Start Date: Date of Contract: Work Completion Date: Date of Contract: Work Completion Date: 21 22 23 24 25 26 Project Name: Project Address: General Contractor: General Contractor Address/Tel. #: Contract #: Total Value of Contract: Work Start Date: Date of Contract: Work Completion Date: 27 28 *** Attach additional sheets as necessary *** -11JUDGMENT PURSUANT TO STIPULATION Case No.: C12-6162 MMC P:\CLIENTS\PATCL\Rhodes Painting\Pleadings\2012 Action\judgment pursuant to stipulation.doc

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