Board of Trustees of the Ken Lusby Clerks etc vs Piedmont Lumber et al

Filing 140

ORDER by Judge Haywood S. Gilliam, Jr. Granting 139 Stipulation TO STAY EXECUTION OF JUDGMENT WITHOUT BOND Re 127 .(terminating 127 motion TO STAY EXECUTION OF JUDGMENT WITHOUT BOND) (ndr, COURT STAFF) (Filed on 10/16/2015)

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1 2 3 4 5 Clarissa A. Kang, SBN 210660 Sean T. Strauss, SBN 245811 TRUCKER  HUSS A Professional Corporation One Embarcadero Center, 12th Floor San Francisco, California 94111 Telephone: (415) 788-3111 Facsimile: (415) 421-2017 Email: ckang@truckerhuss.com sstrauss@truckerhuss.com 6 7 8 9 Trucker  Huss A Professional Corporation One Embarcadero Center, 12th Floor San Francisco, California 94111 10 11 12 13 14 15 Attorneys for Plaintiff BOARD OF TRUSTEES OF THE KEN LUSBY CLERKS & LUMBER HANDLERS PENSION FUND Richard N. Hill, SBN 083629 Aleksandr Katsnelson, SBN 299309 LITTLER MENDELSON, P.C. 650 California Street, 20th Floor San Francisco, California 94108 Telephone: (415) 439-6210 Facsimile: (415) 399-8490 Email: rhill@littler.com akatsnelson@littler.com Attorneys for Defendant WENDY M. OLIVER, an individual; and WENDY M. OLIVER, as Trustee to the Oliver Family Trust 16 UNITED STATES DISTRICT COURT 17 NORTHERN DISTRICT OF CALIFORNIA 18 19 BOARD OF TRUSTEES OF THE KEN LUSBY CLERKS & LUMBER HANDLERS PENSION FUND, 20 Plaintiff, 21 Case No.: 3:13-cv-03898-HSG STIPULATION AND ORDER TO STAY EXECUTION OF JUDGMENT WITHOUT BOND vs. 22 23 24 PIEDMONT LUMBER & MILL COMPANY; WILLIAM C. MYER, JR., an individual; WENDY M. OLIVER, an individual; WENDY M. OLIVER, as Trustee to the Oliver Family Trust; and DOES 1-20, 25 Defendants. 26 27 28 STIPULATION TO STAY EXECUTION OF JUDGMENT WITHOUT BOND; Case No. 3:13-cv-03898-HSG 153835.v4 1 This Stipulation and [Proposed] Order to Stay Execution of Judgment Without Bond 2 (“Stipulation”) is hereby entered by and between Plaintiff BOARD OF TRUSTEES OF THE KEN 3 LUSBY CLERKS & LUMBER HANDLERS PENSION FUND (“Pension Fund”) and Defendant 4 WENDY M. OLIVER, individually and as Trustee to the Oliver Family Trust (“Oliver”), through 5 their respective counsel, based on the following: 6 A. On September 16, 2015, the United States District Court for the Northern District of 7 California (“Court”) entered judgment in favor of Plaintiff Pension Fund against Defendants Oliver 8 and William C. Myer, Jr. for $3,507,388.56, subject to such additional amount as the Court may 9 allow as costs and attorneys’ fees to Plaintiff Pension Fund in the above captioned case (the Trucker  Huss A Professional Corporation One Embarcadero Center, 12th Floor San Francisco, California 94111 10 “Judgment”). B. 11 On September 17, 2015, Defendant William C. Myer, Jr. filed a Chapter 7 12 bankruptcy petition in the United States Bankruptcy Court for the Eastern District of California, 13 Sacramento Division, commencing bankruptcy case No. 15-27322 MSM, which is currently 14 pending as of the date of this Stipulation. C. 15 On September 22, 2015, Oliver filed a Motion to Stay Execution of Judgment 16 Without Bond (“Motion”) supported by Wendy M. Oliver’s declaration under penalty of perjury 17 executed on September 19, 2015, setting forth certain facts regarding Oliver’s assets and property 18 (“Oliver Declaration”). 19 D. 20 2015 (“Appeal”). 21 22 Oliver filed a notice of appeal to the Ninth Circuit Court of Appeals on October 13, Based on the foregoing, the Pension Fund and Oliver hereby stipulate that the Court may enter the following Order to resolve the Motion. 23 ORDER 24 1. Subject to the provisions hereof, enforcement of the Judgment shall be stayed 25 without bond pending the earlier of decision on or dismissal of the Appeal. This Order will expire 26 upon the issuance of the Ninth Circuit’s mandate after a decision on the Appeal or dismissal of the 27 Appeal. 28 STIPULATION TO STAY EXECUTION OF JUDGMENT WITHOUT BOND; Case No. 3:13-cv-03898-HSG 153835.v4 1 1 2. Oliver shall be entitled to receive, retain and disburse all sums received from her ex- 2 husband’s pension, social security and income received from the sale of artwork (provided sales do 3 not exceed $2,500 per year) and the Desert Circle Apartments, as referenced in Paragraph 4 of the 4 Oliver Declaration (“Unencumbered Revenue”). Oliver may use the Unencumbered Revenue as 5 she deems necessary during the period covered by this Stipulation. 6 3. Oliver shall be entitled to advance to her attorneys, in addition to any pre-paid retainers the sum of $60,000 from her ”investment accounts valued at approximately $500,000” 8 described in paragraph 4(b) below to be credited against attorneys’ fees and costs incurred in 9 connection with the prosecution of the Appeal and bankruptcy/workout services as necessary. 10 Trucker  Huss A Professional Corporation One Embarcadero Center, 12th Floor San Francisco, California 94111 7 Absent written consent of the Pension Fund, any additional fees and cost must be paid from the 11 “retirement accounts” described in paragraph 4(a) below or from a source other than assets subject 12 to the liens described herein 4. 13 Except as set forth above, the Pension Fund shall be deemed to have a judgment lien 14 upon, and Oliver shall be prohibited and enjoined from making any payments or withdrawals from, 15 making any transfers with respect to, hypothecating, encumbering or granting any lien, security 16 interest or other interest in any and all of the following, the first three of which are referenced in 17 Paragraph 3 of the Oliver Declaration: 18 approximately $303,000 ; (b) the other investment accounts valued at approximately $500,000 (less 19 any advances for attorney’s fees described in paragraph 3); (c) the Oliver Family Trust Wells Fargo 20 preferred checking account (account number ending 6368) in the approximate amount of 21 $75,923.54 (“Frozen Account”). To the extent necessary and upon written consent of the Pension 22 Fund, Oliver shall be able to use these funds from the Frozen Account to pay any unexpected 23 expenses but only after all funds in the Unencumbered Accounts (defined below) are exhausted. 24 The Pension Fund will not withhold consent unreasonably; or (d) any other investment, retirement 25 account or benefit, annuity, deposit or checking account, except for the following accounts 26 (“Unencumbered Accounts”): (a) the retirement accounts and annuities totaling 27 28 STIPULATION TO STAY EXECUTION OF JUDGMENT WITHOUT BOND; Case No. 3:13-cv-03898-HSG 153835.v4 2 1 a. 2 approximate balance of $5,339; 3 b. 4 c. 6 d. 8 Trucker  Huss A Professional Corporation One Embarcadero Center, 12th Floor San Francisco, California 94111 Oliver Family Trust Wells Fargo savings account (account number ending 8328) with an approximate balance of $18,145; and 7 10 Oliver’s Wells Fargo travel account (account number ending 8397) with an approximate balance of $1,000; 5 9 Oliver’s Wells Fargo personal checking (account number ending 1163) with an Oliver Family Trust Wells Fargo checking account (account number ending 4110) with an approximate balance of $100 The Unencumbered Accounts may be used for receipt and disbursement of funds referenced in Paragraph 2 hereof. 5. 11 Oliver shall forthwith provide to the Pension Fund the institution or custodian 12 names, addresses, and relevant account numbers for each of the annuities or accounts described 13 (except for the Unencumbered Accounts) in Paragraph 4 so that the Pension Fund may deliver a 14 copy of this Order to each such institution. Service or delivery of this Order to such institution or 15 custodian shall be deemed to perfect the judgment lien in favor of the Pension Fund created by this 16 Order. 6. 17 Oliver shall be prohibited and enjoined from making any transfers of, 18 hypothecating, encumbering or granting any lien, security interest or other interest in any and all 19 real property in which she or the Oliver Family Trust has an interest, including the real property 20 referenced in Paragraph 3 of the Oliver Declaration. 21 7. The judgment lien created in Paragraph 4 and the injunction and prohibition in 22 Paragraphs 4 and 6 shall remain in effect pending further order of this Court. Any actions taken in 23 violation or derogation of the provisions of Paragraphs 4, 5 or 6 may be brought to the attention of 24 the Court ex parte with telephonic and email notice to counsel for Oliver, and may be grounds for 25 lifting this stay of Judgment or for other appropriate relief. 26 8. Upon application to the Clerk of the Court, the Pension Fund shall be issued 27 Abstracts of Judgment in the above amount, and amended Abstracts of Judgment in the event that 28 the amount of the Judgment is increased, naming Wendy M. Oliver, an Individual, and Wendy M. 3 STIPULATION TO STAY EXECUTION OF JUDGMENT WITHOUT BOND; Case No. 3:13-cv-03898-HSG 153835.v4 1 Oliver as Trustee to the Oliver Family Trust as judgment debtors. The Abstracts of Judgment shall 2 be issued without reference to William C. Myer, Jr. as a defendant so long has his bankruptcy case 3 remains pending. In the event that the bankruptcy case is dismissed or the bankruptcy court grants 4 relief from stay, the Pension Fund may be issued amended Abstracts of Judgment naming William 5 C. Myer, Jr. as an additional defendant. 6 7 9. Plaintiff Pension Fund may record the above Abstracts of Judgment in applicable counties, including without limitation Contra Costa and Lake Counties. 8 10. Plaintiff Pension Fund may apply for, be issued, and serve upon Oliver an Order to Appear for Examination pursuant to Section 708.110 of the California Code of Civil Procedure. 10 Trucker  Huss A Professional Corporation One Embarcadero Center, 12th Floor San Francisco, California 94111 9 The date of the examination shall recite “Stayed by Court Order” and shall be subject to reissuance 11 if the stay of Judgment ordered herein expires or is lifted. 11. 12 The Court shall retain jurisdiction to modify or amend this Order. 13 IT IS SO STIPULATED. 14 DATED: October 15, 2015 TRUCKER  HUSS 15 By: /s/ Sean T. Strauss Clarissa A. Kang Sean T. Strauss Attorneys for Plaintiff BOARD OF TRUSTEES OF THE KEN LUSBY CLERKS & LUMBER HANDLERS PENSION FUND 16 17 18 19 20 DATED: October 15, 2015 21 LITTLER MENDELSON, P.C. By: 22 23 /s/ Aleksandr Katsnelson Richard Hill Aleksandr Katsnelson Attorneys for Defendant WENDY M. OLIVER 24 25 26 I attest that I have obtained Littler Mendelson’s concurrence in the filing of this document. DATED: October 15, 2015 /s/ Sean T. Strauss Sean T. Strauss 27 28 STIPULATION TO STAY EXECUTION OF JUDGMENT WITHOUT BOND; Case No. 3:13-cv-03898-HSG 153835.v4 4 1 IT IS SO ORDERED. 2 3 DATED: October 16, 2015 4 HAYWOOD S. GILLIAM, JR. UNITED STATES DISTRICT COURT JUDGE 5 6 7 8 9 Trucker  Huss A Professional Corporation One Embarcadero Center, 12th Floor San Francisco, California 94111 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STIPULATION TO STAY EXECUTION OF JUDGMENT WITHOUT BOND; Case No. 3:13-cv-03898-HSG 153835.v4 5 1 CERTIFICATE OF SERVICE 2 I, Michael V. Bresso, declare as follows: 3 4 5 I am a citizen of the United States, over the age of eighteen years and not a party to the within action. I am employed in the City and County of San Francisco, California. My business address is One Embarcadero Center, 12th Floor, San Francisco, California 94111. On the date indicated below, I served: STIPULATION AND [PROPOSED] ORDER TO STAY EXECUTION OF JUDGMENT WITHOUT BOND 6 7 8 to the addressee(s) and in the manner indicated below: Mr. William C. Myer 11772 Moon Shadow Ct. Truckee, CA 96161-2918 bigbillmyer@gmail.com 9 Trucker  Huss A Professional Corporation One Embarcadero Center, 12th Floor San Francisco, California 94111 10 11 12 13 14   15 16 Shane J. Moses, Esq. McNutt Law Group LLP 219 9th Street San Francisco, CA 94103 smoses@ml-sf.com BY ELECTRONIC MAIL: On the above-mentioned date, I served a full and complete copy of the above-referenced document[s] by electronic mail to the person[s] at the email address[es] indicated. BY MAIL (TO MR. WILLIAM C. MYER ONLY): I placed a true copy in a sealed envelope addressed as indicated above, on the above-mentioned date. I am familiar with the firm's practice of collection and processing correspondence for mailing. It is deposited with the U.S. Postal Service on that same day in the ordinary course of business. I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. 17 18 19 I certify under penalty of perjury that the foregoing is true and correct, that the foregoing document(s) were printed on recycled paper, and that this Certificate of Service was executed by me on October 15, 2015, at San Francisco, California. /s/Michael V. Bresso Michael V. Bresso 20 21 22 23 24 25 26 27 28 STIPULATION TO STAY EXECUTION OF JUDGMENT WITHOUT BOND; Case No. 3:13-cv-03898-HSG 153835.v4 6

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