Crosthwaite et al v. Kochoo Construction Co., Inc.

Filing 20

ORDER GRANTING JUDGMENT PURSUANT TO STIPULATION AND VACATING HEARING DATES by Judge Alsup granting 18 Stipulation; granting 19 Motion to Vacate (whalc1, COURT STAFF) (Filed on 3/6/2013)

1 Michele R. Stafford, Esq. (SBN 172509)
Muriel B. Kaplan, Esq. (SBN 124607)
2 SALTZMAN & JOHNSON LAW CORPORATION
44 Montgomery Street, Suite 2110
3 San Francisco, CA 94104
[phone]
4 [phone] – Facsimile
[e-mail]
5 [e-mail]
6 Attorneys for Plaintiffs
7
UNITED STATES DISTRICT COURT

8

FOR THE NORTHERN DISTRICT OF CALIFORNIA

9

10 F.G. CROSTHWAITE, et al.,
Plaintiffs,

11
12

v.

Case No.: C12-6208 WHA
JUDGMENT PURSUANT TO
STIPULATION; [PROPOSED] ORDER
THEREON

13 KOCHOO CONSTRUCTION CO., INC., a
California Corporation,
14
Defendant.
15
16

IT IS HEREBY STIPULATED by and between the parties hereto, that Judgment shall be

17 entered in the within action in favor of the Plaintiffs F.G. CROSTHWAITE, et al. (collectively
18 “Plaintiffs” or “Trust Funds”) and against Defendants KOCHOO CONSTRUCTION CO., INC., a
19 California Corporation, and/or any alter egos and/or successor entities, as follows:
20

1.

Defendant entered into a valid Collective Bargaining Agreement with the

21 Operating Engineers Local 3 Trust Funds (hereinafter "Bargaining Agreement"). This Bargaining
22 Agreement has continued in full force and effect to the present time.
23

2.

WILLIAM KOCHOO acknowledges that he is the RMO/CEO/President of

24 KOCHOO CONSTRUCTION CO., INC. and specifically consents to the Court’s jurisdiction for
25 all proceedings herein. Mr. Kochoo (hereinafter “Guarantor”) also confirms that in consideration
26 of the within payment plan he is personally guaranteeing the amounts due pursuant to the terms of
27 this Stipulation and further acknowledges that all affiliates, related entities and successors in
28 interest to KOCHOO CONSTRUCTION CO., INC. and/or any subsequent entity wherein Mr.
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1 Kochoo is a principal shall also be bound by the terms of this Stipulation as Guarantors, and also
2 consent to this Court’s jurisdiction. Defendant and any additional entities in which WILLIAM
3 KOCHOO is an officer, owner or possesses any ownership interest, including all successors in
4 interest, assignees, and affiliated entities (including, but not limited to parent or other controlling
5 companies), and any companies with which KOCHOO CONSTRUCTION CO., INC. joins or
6 merges, if any, shall also be bound by the terms of this Stipulation. Defendant and all such entities
7 specifically consent to the Court’s jurisdiction, which shall be specified in writing at the time of
8 any assignment, affiliation or purchase of Defendant, along with the obligations to the terms
9 herein.
10

3.

11

Work MonthUnpaid
Year
Contributions
8/11
2,190.30
9/11
2,459.20
10/11
848.00
11/11
3,392.00
12/11
678.40
2/12
2,268.40
3/12
1,844.40
4/12
1,187.20
5/12
678.40
Subtotals:
$15,546.30

12
13
14
15
16
17
18

20% Liquid.
Damages
438.06
491.84
169.60
678.4
135.68
453.68
368.88
237.44
135.68
$3,109.26

10% Interest
(thru 1/31/13)
307.29
305.99
98.24
367.02
67.94
189.75
138.63
79.45
39.74
$1,594.05

Unpaid Contributions, Interest thereon, Liquidated Damages
(1/11-12/11; 2/12-5/12, breakdown above)
10% Liquidated Damages on prior late-paid Contributions
(9/10-7/11; 1/12)
10% Interest on prior late-paid Contributions
(9/10-7/11; 1/12)
Attorneys’ Fees (through 1/29/13)
Complaint Filing Fee; Service of Process
Grand Total:

19
20
21
22
23
24
25

Defendant has become indebted to the Trust Funds as follows:

4.

Total
2,935.65
3,257.03
1,115.84
4,437.42
882.02
2,911.83
2,351.91
1,504.09
853.82

$20,249.61
$4,189.25
$725.31
$1,584.00
$454.90
$27,203.07

Defendant/Guarantor shall conditionally pay the amount of $19,904.56,

26 representing all of the above amounts, less liquidated damages in the amount of $7,298.51,
27 which may be waived, expressly conditioned upon the Trustees’ approval and upon timely
28

compliance with all of the terms of this Stipulation, as follows:
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1

(a)

Beginning on or before February 25, 2013, and on or before the 25th day of

2 each month thereafter, for a period of twenty-four (24) months, through and including January 25,
3 2015, Defendant/Guarantor shall pay to Plaintiffs the amount of $920.00 per month;
4

(b)

Payments may be made by joint check, which shall be endorsed by

5 Defendant/Guarantor prior to submission to Plaintiffs;
6

(c)

Defendant/Guarantor shall have the right to increase the monthly payments

7 at any time, without penalty;
8

(d)

Payments shall be applied first to unpaid interest and then to unpaid

9 principal. The unpaid principal balance shall bear interest at the rate of 10% per annum, from
10 February 1, 2013, in accordance with Plaintiffs’ Trust Agreements;
11

(e)

Payments shall be made payable to the “Operating Engineers’ Trust Funds”

12 and delivered to Michele R. Stafford at Saltzman & Johnson Law Corporation, 44 Montgomery
13 Street, Suite 2110, San Francisco, California 94104, or to such other address as may be specified
14 by Plaintiffs, to be received on or before the 25th day of each month.
15

(f)

Defendant/Guarantor shall pay all additional costs and attorneys’ fees

16 incurred by Plaintiffs in connection with collection and allocation of any amounts owed by
17 Defendant to Plaintiffs, regardless of whether or not there is a default herein.
18

(g)

Prior to January 25, 2015, the deadline for Defendant/Guarantor’s last

19 monthly payment toward the conditional balance owed under the Stipulation, Plaintiffs shall notify
20 Defendant/Guarantor in writing of the final amount due, including any additional interest and
21 attorneys’ fees and costs, as well as any other amounts due under the terms herein. Any additional
22 amounts due pursuant to the provisions hereunder shall be paid in full with the final conditional
23 stipulated payment.
24

(h)

Following payment of the last conditional monthly payment under the

25 Stipulation, Defendant/Guarantor will be advised as to whether or not the conditional liquidated
26 damages waiver has been granted by the Board of Trustees. If the waiver is granted, upon bank
27 clearance of Defendant/Guarantor’s last payment of the conditional balance, and confirmation that
28 Defendant’s account is otherwise current, Plaintiffs will file a Notice of Satisfaction of Judgment
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1 with the Court. However, if the waiver is denied, monthly payments will continue until all
2 liquidated damages due have been paid.
(i)

3

Failure to comply with any of the above terms shall constitute a default of

4 Defendant’s obligations under this Stipulation and the provisions of ¶12 shall apply.
5

6.

Defendant has represented to Plaintiffs’ counsel that they intend to deactivate their

6 account with Plaintiffs, as their employees will not be performing any covered work going
7 forward. Nevertheless, beginning with contributions due, if any, for hours worked by Defendants’
8 employees during the month of December 2012, and for every month thereafter that the
9 Bargaining Agreement remains in effect, Defendants shall remain current in any reports and
10 contributions that may be due to Plaintiffs under the current Collective Bargaining Agreement
11 and under all subsequent Collective Bargaining Agreements, if any, and the Declarations of Trust
12 as amended. Failure to comply with these terms shall also constitute a default of the obligations
13 under this Agreement and the provisions of ¶12 shall apply.
14

7.

Defendant shall make full disclosure of all jobs on which they are working by

15 providing Plaintiffs with a monthly job report on the form attached hereto as Exhibit A, including,
16 but not limited to, the name and address of job, general contractor information, certified payroll if
17 a public works job, start date and anticipated completion date, of each job. Defendant shall
18 submit said job report each month by facsimile to Michele R. Stafford at 415-882-9287, or to
19 such other fax number as may be specified by Plaintiffs, or by email to both
20 [e-mail] and [e-mail]. This requirement remains in full
21 force and effect regardless of whether or not Defendant has ongoing work. In this event,
22 Defendant shall submit a statement stating that there are no current jobs. To the extent that
23 Defendant is working on a Public Works job, or any other job for which Certified Payroll Reports
24 are required, copies of said Reports will be emailed or faxed to Michele R. Stafford, concurrently
25 with the monthly job reports. Failure by Defendant to timely submit updated monthly job reports
26 shall constitute a default of the obligations under this agreement. This obligation remains in full
27 force and effect regardless of whether Defendant’s account is deactivated. So long as Defendant is
28 in business, and work is being performed, regardless of whether it is covered under the current
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1 Collective Bargaining Agreement, a job report shall be submitted.
2

8.

Failure by Defendant to remain current in reporting or payment of contributions

3 shall constitute a default of the obligations under this agreement. Any such unpaid or late paid
4 contributions shall violate the condition for waiver of liquidated damages and shall be added to
5 and become a part of this Judgment together with 20% liquidated damages and 10% per annum
6 interest accrued on contributions and shall be subject to the terms herein. Plaintiffs reserve all
7 rights available under the applicable Bargaining Agreement and Declarations of Trust of the Trust
8 Funds for collection of current and future contributions, and for any additional past contributions
9 not included herein as may be determined by Plaintiffs, pursuant to employee timecards or
10 paystubs, by audit, or other means, and the provisions of this agreement are in addition thereto.
11 Defendant specifically waives the defense of the doctrine res judicata as to any such additional
12 amounts determined as due.
13

9.

Audit: Should the Trust Funds request an audit of Defendant’s payroll records in

14 order to confirm proper reporting and payment of contributions pursuant to the Bargaining
15 Agreement, any failure by Defendant to comply with said request or with an audit in progress, if
16 any, shall constitute a default of the obligations under this Agreement.
(a)

17

If Defendant is unable to make payment in full as may be found due on any

18 such audit, Defendant may request that Plaintiffs modify this payment plan (by monthly amount
19 and/or payment term), to add the amounts found due in the audit, subject to the terms herein. If the
20 Judgment is so revised, Defendant shall execute the Amendment to Judgment within ten (10) days
21 of its submission to Defendant. Failure to execute the revised agreement shall constitute a default
22 of the terms herein.
(b)

23

Failure by Defendant to submit either payment in full or request the

24 addition of the amounts found due on audit to this Judgment within ten (10) days of the date of
25 Plaintiffs demand shall constitute a default of the obligations under this agreement. All amounts
26 found due on audit shall immediately become part of this Judgment.
27

10.

Any check not timely submitted, submitted by Defendant but failing to clear the

28 bank, or unable to be negotiated for any reason for which Defendant is responsible, shall be
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1 considered to be a default on the Judgment entered. If Defendant fails to submit its contribution
2 reports, and/or certified payroll reports (if any) and/or job reports, and/or fails to comply with any
3 of the terms of the Stipulation herein, this too shall constitute a default.
4

11.

If a default occurs, Plaintiffs shall make a written demand, sent to

5 Defendant/Guarantor by email to [e-mail] and by regular mail, to cure said
6 default within seven (7) days of the date of the notice from Plaintiffs. If Defendant/Guarantor elect
7 to cure said default, and Plaintiffs elect to accept future payments, all such payments shall be made
8 by cashier’s check if the default is caused by a failed check.
9

12.

In the event the default is not cured, all amounts remaining due hereunder, as well

10 as any additional amounts due pursuant to the terms herein, shall be due and payable on demand
11 by Plaintiffs as follows:
(a)

12

The entire amount of $27,203.07 plus interest, reduced by principal

13 payments received by Plaintiffs, but increased by any unpaid contributions then due, including
14 audit findings, if any, plus 20% liquidated damages and 10% per annum interest thereon shall be
15 immediately due, together with any additional attorneys’ fees and costs incurred;
(b)

16

A Writ of Execution may be obtained against Defendant/Guarantor and all

17 related entities without further notice, in the amount of the unpaid balance, plus any additional
18 amounts due under the terms herein. The declaration of a duly authorized representative of the
19 Plaintiffs setting forth any payment theretofore made by or on behalf of Defendant/Guarantor, and
20 the balance due and owing as of the date of default, shall be sufficient to secure the issuance of a
21 Writ of Execution;
(c)

22

Defendant/Guarantor waive notice of entry of judgment and expressly

23 waive all rights to stay of execution and appeal.
24

13.

Any failure on the part of the Plaintiffs to take any action against

25 Defendant/Guarantor as provided herein in the event of any breach of the provisions of this
26 Stipulation shall not be deemed a waiver of any subsequent breach by the Defendant/Guarantor of
27 any provisions herein.
28

14.

In the event of the filing of a bankruptcy petition by Defendant/Guarantor, the
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1 parties agree that any payments made by Defendant/Guarantor pursuant to the terms of this
2 judgment, shall be deemed to have been made in the ordinary course of business as provided under
3 11 U.S.C. Section 547(c)(2) and shall not be claimed by Defendant/Guarantor as a preference
4 under 11 U.S.C. Section 547 or otherwise. Defendant/Guarantor nevertheless represent that no
5 bankruptcy filings are anticipated.
6

15.

Should any provision of this Stipulation be declared or determined by any court of

7 competent jurisdiction to be illegal, invalid, or unenforceable, the legality, validity, and
8 enforceability of the remaining parts, terms or provisions shall not be affected thereby and said
9 illegal, unenforceable or invalid part, term, or provision shall be deemed not to be part of this
10 Stipulation.
11

16.

This Stipulation is limited to the agreement between the parties with respect to the

12 delinquent contributions and related sums enumerated herein, owed by Defendant to the Plaintiffs.
13 This Stipulation does not in any manner relate to withdrawal liability claims, if any. Defendant
14 acknowledges that the Plaintiffs expressly reserve their right to pursue withdrawal liability claims,
15 if any, against Defendant as provided by the Plaintiffs’ Plan Documents, the Trust Agreements
16 incorporated into the Collective Bargaining Agreement, and the law.
17

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.
20

18.

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.
22

19.

The parties agree that the Court shall retain jurisdiction of this matter until this

23 Judgment is satisfied.
24

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25

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26

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27

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28

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1

20.

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, that they have read this Stipulation with care and
4 are fully aware of and represent that they enter into this Stipulation voluntarily and without duress.
5

Dated: March 1, 2013

KOCHOO CONSTRUCTION COMPANY,
INC., a California Corporation

6
By:

7

/S/
WILLIAM KOCHOO, its RMO/CEO/President

8
Dated: March 1, 2013

WILLIAM KOCHOO, individually, as
Guarantor

9
10
By:
11
12

/S/
WILLIAM KOCHOO

Dated: March 1, 2013

OPERATING ENGINEERS LOCAL 3 TRUST
FUNDS

13
14

By:

15
16

/S/
DAVID E. HAYNER
Collections Manager

Dated: March 1, 2013

OPERATING ENGINEERS LOCAL 3 TRUST
FUNDS

17
18

By:

19

/S/
MICHELE R. STAFFORD
Attorneys for Plaintiffs

20
21 IT IS SO ORDERED.
22 IT IS FURTHER ORDERED that the calendar in this matter is vacated, and that the Court shall
23 retain jurisdiction over this matter.
24 Dated: March 6, 2013.
25
26

UNITED STATES DISTRICT COURT JUDGE
William Alsup
United States District Judge

27
28
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1

Exhibit A

2

JOB REPORT FORM
** Updated report must be emailed to [e-mail] and [e-mail],
or faxed to [phone], by the 25th day of each month **

3

4 Employer Name: KOCHOO CONSTRUCTION CO., INC.
5 Report for the month of _________________, 20____Submitted by (name): ________________
**Please spell out project, owner and general contractor names**

6
7

Project Name:

8

Project Address:

9

General Contractor:

10

13

General Contractor
Address:
General Contractor
Telephone #:
Project Manager
Telephone #:
Contract #:

14

Total Contract Value:

15

Work Start Date:

16

Project Bond #:

11
12

Project Manager
Name:
Project Manager
email address:
Contract Date:

Work
Completion Date:
Surety:

17
Project Name:

18
19
20
21
22
23

Project Address:
General Contractor:
General Contractor
Address:
General Contractor
Telephone #:
Project Manager
Telephone #:
Contract #:

Project Manager
Name:
Project Manager
email address:
Contract Date:

24
Total Contract Value:

25
Work Start Date:

26
Project Bond #:

Work
Completion Date:
Surety:

27
28

**Attach additional sheets as necessary**
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