Bay Area Painters and Tapers Pension Trust Fund, and its Joint Board of Trustees et al v. Pace Inc.

Filing 11

JUDGMENT PURSUANT TO STIPULATION. Signed by Judge Maxine M. Chesney on October 10, 2014. (mmclc1, COURT STAFF) (Filed on 10/10/2014)

1 Michele R. Stafford, Esq. (SBN 172509)
Adrian L. Canzoneri (SBN 265168)
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 BAY AREA PAINTERS AND TAPERS
PENSION TRUST FUND, et al.,
10
11

NOTICE OF ACKNOWLEDGMENT; and
JUDGMENT PURSUANT TO STIPULATION

Plaintiffs,

12

Case No.: 3:14-cv-04382

v.

13
PACE INC., dba PACE DRYWALL, a
14 California Corporation,
15

Defendant.

16
17
18

IT IS HEREBY STIPULATED and AGREED (“Stipulation” and/or “Judgment”) by and

19 between the parties hereto that Judgment shall be entered in the within action in favor of Plaintiffs
20 BAY AREA PAINTERS AND TAPERS PENSION TRUST FUND, et al. (collectively
21 “Plaintiffs” and/or “Trust Funds”) and against Defendant PACE INC., dba PACE DRYWALL
22 (“Defendant”), and/or any alter egos and/or successor entities, as follows:
23

1.

Defendant entered into the Northern California Drywall Finishers Master

24 Agreement between District Council 16 and the Northern California Drywall Contractors
25 Association (the “Drywall Master Agreement”), and the Northern California Drywall Finishers
26 Master Agreement between District Council 16 and the Wall and Ceiling Alliance (the “Wall and
27 Ceiling Agreement”), requiring employer contributions to Plaintiffs’ ERISA Funds. The Drywall
28 Contractors Master Agreement and the Wall and Ceiling Agreement are referred to collectively
P:\CLIENTS\PATCL\Pace Drywall\Pleadings\Notice and Acknowledgment and Judgment Pursuant to Stipulation 092414.doc

-1-

JUDGMENT PURSUANT TO STIPULATION
Case No.:3:14-cv-0382

1 herein as the “Bargaining Agreements.” The Bargaining Agreements have continued in full force
2 and effect to the present time.
3

2.

Alan Mauldin, in his capacity as President and Chief Executive Officer of

4 Defendant, hereby acknowledges that he is authorized to receive service and has received service
5 of the following documents in this action on behalf of the named Defendant: Summons;
6 Complaint; Dispute Resolution Procedures in the Northern District of California; Order Setting
7 Initial Case Management Conference and ADR Deadlines; Standing Order for All Judges of the
8 Northern District of California; Certification of Interested Entities or Persons Pursuant to Civil
9 Local Rule 3-16; Instructions for Completion of ADR Forms Regarding Selection of an ADR
10 Process; Stipulation [and Proposed Order] Selecting ADR Process; Notice of Need for ADR
11 Phone Conference; ADR Certification by Parties and Counsel; Filing Procedures (Oakland); ECF
12 Registration Information Handout; Welcome to the U.S. District Court; Notice of Assignment to a
13 Magistrate Judge, Consent, Declination; Consent to Proceed Before a Magistrate Judge and
14 Request for Reassignment to a United States District Judge; Notice of Impending Reassignment to
15 a United States District Court Judge; Order Reassigning Case; Order Setting Case Management
16 Conference of Reassigned Case.
17

3.

Alan Mauldin (“Guarantor”) confirms that he is authorized to enter into this

18 Stipulation on behalf of Defendant and confirms that he is personally guaranteeing the amounts
19 due pursuant to the terms of this Stipulation. Guarantor further confirms that all successors in
20 interest, assignees, and affiliated entities (including, but not limited to, parent or other controlling
21 companies), and any companies with which Defendant joins or merges, if any, shall also be bound
22 by the terms of this Stipulation as Guarantors. This shall include any additional entities in which
23 Guarantor is an officer, owner, or possesses any ownership interest. Defendant/Guarantor and all
24 such entities shall specifically consent to the Court’s jurisdiction, in writing, at the time of any
25 assignment, affiliation or purchase, as well as to all other terms herein.
26 ///
27 ///
28 ///
-2JUDGMENT PURSUANT TO STIPULATION
Case No.:3:14-cv-0382

1
2
3
4
5
6
7
8
9
10
11

4.

CONTRIBUTIONS:
July 2014
20% Liquidated Damages on July 2014
5% Interest on July 2014 (through 09/29/14)
August 2014
20% Liquidated Damages on August 2014
SUBTOTAL:
Attorneys’ Fees (through 09/28/14)
Complaint Filing Fee
TOTAL AMOUNT DUE
5.

14
15

18
19
20
21
22
23
24
25
26
27

$237,403.08
$2,489.00
$400.00
$240,292.08

Defendant/Guarantor shall conditionally pay the amount of $200,799.43,

$39,492.65. This conditional waiver is expressly conditioned upon Trustee approval upon timely
compliance with all of the terms of this Stipulation, as follows:
(a)

Beginning on or before September 30, 2014, and continuing on or before

the last business day of each month thereafter, for a period of twelve (12) months, through and
including August 31, 2015, Defendant/Guarantor shall pay to Plaintiffs the amount of $17,190.00
per month;

16
17

$112,544.97
$22,508.99
$447.18
$84,918.28
$16,983.66

representing all above amounts, less conditionally waived liquidated damages in the amount of

12
13

Defendant is indebted to Plaintiffs as follows:

(b)

Payments may be made by joint check, to be endorsed by Defendant prior

to submission. Payments made by joint check may be applied toward Defendant’s monthly
stipulated payment provided that the issuer of the joint check is not requesting a release in
exchange for the payment. Joint check payments in which a release is requested may not be
applied toward Defendant’s monthly stipulated payment, but shall be deducted from the total
balanced owed under this Stipulation provided the payment is for contributions included in this
Stipulation;
(c)

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

at any time and there is no penalty for prepayment;
(d)

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

principal. The unpaid principal balance shall bear interest at the rate of 5% per annum from
October 1, 2014, in accordance with the Bargaining Agreements and Plaintiffs’ Trust Agreements;

28
-3JUDGMENT PURSUANT TO STIPULATION
Case No.:3:14-cv-0382

(e)

1

Checks shall be made payable to the District Council 16 Northern

2 California Trust Funds, and delivered on or before each due date to Michele R. Stafford, Esq. at
3 Saltzman & Johnson Law Corporation, 44 Montgomery Street, Suite 2110, San Francisco,
4 California 94104, or to such other address as may be specified by Plaintiffs;
5

(f)

Plaintiffs may require that Defendant pay electronically by wire transfer;

6

(g)

At the time that Defendant/Guarantor makes the twelfth (12th) stipulated

7 payment, Defendant/Guarantor may submit a written request for waiver of their liquidated
8 damages directed to the Board of Trustees, but sent to Saltzman and Johnson Law Corporation
9 with their 12th stipulated payment. Such waiver will not be considered until and unless all other
10 amounts are paid in full and Defendant’s Trust Fund account is otherwise current;
(h)

11

Prior to the last payment pursuant to this Stipulation, Plaintiffs shall advise

12 Defendant/Guarantor, in writing, by first class mail and email to [e-mail], as to the
13 final amount due, including additional interest and all additional attorneys’ fees and costs incurred
14 by Plaintiffs in connection with the collection and allocation of the amounts owed to Plaintiffs
15 under this Stipulation. Defendant/Guarantor shall pay all additional interest and additional
16 attorneys’ fees and costs incurred by Plaintiffs regardless of whether or not Defendant defaults
17 herein. All additional amounts due pursuant to the provisions hereunder shall also be paid in full
18 with the final August 31, 2015 stipulated payment; and
(i)

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 ¶14 shall apply.
21

6.

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 Defendant/Guarantor is responsible, Defendant
23 shall be considered to be in default of the Judgment entered. If this occurs, Plaintiffs shall make a
24 written demand to Defendant/Guarantor, by first class mail and email to [e-mail],
25 to cure said default within seven (7) days of the date of the notice from Plaintiffs. If caused by a
26 failed check, default will only be cured by the issuance of a replacement cashier’s check, delivered
27 to Saltzman and Johnson Law Corporation within the seven (7) day cure period. If
28 Defendant/Guarantor elect to cure said default, and Plaintiffs elect to accept future payments, all
-4JUDGMENT PURSUANT TO STIPULATION
Case No.:3:14-cv-0382

1 such future payments shall be made by cashier’s check at Plaintiffs’ request. In the event default is
2 not cured, all amounts remaining due hereunder shall be due and payable on demand by Plaintiffs.
3

7.

Beginning with contributions due for hours worked by Defendant’s employees

4 during the month of September 2014, and for every month thereafter until this Judgment is
5 satisfied, Defendant shall remain current in reporting and payment of contributions due to
6 Plaintiffs under the current Bargaining Agreements and under all subsequent Collective
7 Bargaining Agreements, if any, and the Declarations of Trust as amended. The Collective
8 Bargaining Agreements and Trust Agreements provide that all benefit contributions are due on or
9 before the fifteenth (15th) day of the month following the month in which hours were worked and
10 are delinquent if not received by the last business day of that month.
11

Until this judgment is satisfied, Defendant shall submit all monthly contribution reports

12 and payments to Saltzman and Johnson Law Corporation. The reports and payments shall be
13 delivered to Michele R. Stafford, Esq. at Saltzman & Johnson Law Corporation, 44 Montgomery
14 Street, Suite 2110, San Francisco, California 94104, or to such other address as may be specified
15 by Plaintiffs, by the last business day of each month. Defendant shall send copies of its original
16 contribution reports and payments to the Trust Funds. Plaintiffs may require that Defendant pay
17 contributions electronically by wire transfer. Failure to comply with these terms shall constitute a
18 default of the obligations under this Stipulation and the provisions of ¶ 12 shall apply.
19

8.

Beginning with the month of September 2014, and for every month thereafter,

20 Defendant shall fully disclose all jobs on which it is working by providing Plaintiffs with
21 fully completed job reports on the form attached hereto as Exhibit A. Upon request by Plaintiffs,
22 Defendant shall also provide Plaintiffs with copies of Certified Payroll Reports for any and all
23 Public Works jobs, or any other job for which Certified Payroll Reports are required. Defendant’s
24 updated monthly job reports and Certified Payroll Reports (if requested) shall be delivered to
25 Michele R. Stafford, Esq. at Saltzman & Johnson Law Corporation, 44 Montgomery Street, Suite
26 2110, San Francisco, California 94104, or to such other address as may be specified by Plaintiffs,
27 by the last business day of each month.
28
-5JUDGMENT PURSUANT TO STIPULATION
Case No.:3:14-cv-0382

1

This requirement remains in full force and effect regardless of whether or not Defendant

2 has ongoing work, whether Defendant’s account with the Trust Funds is active, or whether
3 Defendant is signatory to a Collective Bargaining Agreement with the Union. If, for any reason,
4 Defendant has no work to report during a given month, Defendant shall submit the job report form
5 (Exhibit A) indicating that there are no current jobs. Defendant’s first job report (regarding
6 September 2014 jobs) is due on or before October 30, 2014.
7

Failure by Defendant to timely submit fully completed monthly job reports and Certified

8 Payroll Reports (if applicable) as described above shall constitute a default of the obligations
9 under this Stipulation and the terms of ¶ 12 shall apply.
10

9.

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

11 order to confirm proper reporting and payment of contributions pursuant to the Bargaining
12 Agreements, any failure by Defendant to comply with said request shall constitute a default of the
13 obligations under this Agreement, which Defendant shall have ten (10) days to cure from receipt
14 of written notice from Plaintiffs.
15

(a)

In the event that amounts are found due on audit, Plaintiffs shall send a

16 written demand to Defendant by first class mail and email to [e-mail], for payment
17 in full of the amounts found due in the audit, including a full copy of the audit report and any
18 findings, including contributions, liquidated damages, interest and audit fees owed.
19

(b)

Defendant will be provided with ten (10) days within which to review the

20 audit, and provide evidence to contest the findings. In the event that Defendant does not agree with
21 the total found due, Plaintiffs shall provide any additional information or clarification requested by
22 Defendant in writing within ten (10) days of the request therefor, or as soon as reasonably
23 possible, and Defendant’s time to respond to the audit report or comply with payment
24 requirements shall then run from the time that Defendant receives Plaintiffs’ response. Once the
25 ten (10) day review period expires, in the event that the audit is not contested, payment in full
26 shall be delivered to Michele R. Stafford, Esq. at the address provided above.
27

(c)

If the audit is contested, and Defendant provides documentation in support

28 of the dispute, Defendant shall be notified as to whether revisions will be made to the audit. If
-6JUDGMENT PURSUANT TO STIPULATION
Case No.:3:14-cv-0382

1 revisions are not made, payment will be immediately due.
(d)

2

If revisions are made to said audit as a result of the dispute, payment in full

3 of the revised amount shall be due within ten (10) days of Defendant’s receipt of the revised
4 billing.
(e)

5

If Defendant is unable to make payment in full, Defendant may submit a

6 written request to revise this Stipulation, modifying the payment plan (by monthly amount and/or
7 payment term), to add the amounts found due in the audit to this Stipulation, subject to the terms
8 herein. If the Stipulation is so revised, Defendant shall execute the Amended Judgment or
9 Amendment to Judgment within ten (10) days of Plaintiffs’ preparation of said Amended
10 Judgment or Amendment to Judgment. Failure to execute the revised agreement shall constitute a
11 default of the terms herein.
(f)

12

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

13 amounts due under this Judgment within ten (10) days of the date of Plaintiffs’ demand for
14 payment shall constitute a default of the obligations under this agreement. All amounts found due
15 on audit shall immediately become part of this Judgment.
16

10.

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

17 obligations under this Stipulation and the provisions of ¶ 12 shall apply.
18

11.

Any unpaid or late-paid contributions, together with 20% liquidated damages and

19 5% per annum interest accrued on the contributions shall be added to and become a part of this
20 Judgment and subject to the terms herein. Plaintiffs reserve all rights available under the
21 applicable Bargaining Agreements and Declarations of Trust of the Trust Funds for collection of
22 current and future contributions, and for any additional past contributions and related amounts not
23 included herein as may be determined by Plaintiffs to be due, pursuant to employee timecards or
24 paystubs, by audit, or other means, and the provisions of this agreement are in addition thereto.
25 Defendant/Guarantor specifically waive the defense of the doctrine res judicata as to any such
26 additional amounts determined as due.
27

12.

In the event that Defendant/Guarantor fail to make any payment required herein, or

28 otherwise defaults on any of their obligations as detailed in this Stipulation, and such default is not
-7JUDGMENT PURSUANT TO STIPULATION
Case No.:3:14-cv-0382

1 timely cured, the following shall occur:
2

(a)

The entire balance of $240,292.08, plus interest, but reduced by principal

3 payments received from Defendant/Guarantor, shall be immediately due and payable, in addition
4 to any unpaid contributions then due, plus 20% liquidated damages and 5% per annum interest on
5 the unpaid or late paid contributions, together with any attorneys’ fees and costs incurred during
6 the term of this Stipulation;
(b)

7

A Writ of Execution may be obtained against Defendant/Guarantor without

8 further notice to Defendant/Guarantor, in the amount of the unpaid balance, plus any additional
9 amounts due under the terms herein. Such Writ of Execution may be obtained solely upon
10 declaration by a duly authorized representative of Plaintiffs setting forth any payment theretofore
11 made by or on behalf of Defendant and the balance due and owing as of the date of default;
(c)

12

Defendant/Guarantor waives any notice of Entry of Judgment and any

13 Request for a Writ of Execution upon default, and expressly waive all rights to stay of execution
14 and appeal. The declaration or affidavit of a duly authorized representative of Plaintiffs as to the
15 balance due and owing as of the date of default shall be sufficient to secure the issuance of a Writ
16 of Execution, without notice to Defendant/Guarantor; and
(d)

17

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

18 incurred by Plaintiffs in connection with the collection and allocation of the amounts owed by
19 Defendant/Guarantor to Plaintiffs under this Stipulation, whether or not a default occurs herein.
20

13.

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

21 Defendant/Guarantor as provided herein in the event of any breach of the provisions of this
22 Stipulation shall not be deemed a waiver of any subsequent breach by the Defendant/Guarantor of
23 any provisions herein.
24

14.

The parties agree that any payments made pursuant to the terms of this Judgment,

25 shall be deemed to have been made in the ordinary course of business as provided under 11 U.S.C.
26 Section 547(c)(2) and shall not be claimed by Defendant/Guarantor as a preference under 11
27 U.S.C. Section 547 or otherwise.
28

15.

This Stipulation is limited to the agreement between the parties with respect to the
-8JUDGMENT PURSUANT TO STIPULATION
Case No.:3:14-cv-0382

1 unpaid and delinquent contributions and related sums enumerated herein, owed by Defendant to
2 Plaintiffs. This Stipulation does not in any manner relate to withdrawal liability claims, if any.
3 Defendant acknowledges that Plaintiffs expressly reserve their right to pursue withdrawal liability
4 claims, if any, against Defendant and all of its control group members, as provided by Plaintiffs’
5 Plan Documents, Trust Agreements incorporated into their Bargaining Agreements, and applicable
6 laws and regulations.
7

16.

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

8 competent jurisdiction to be illegal, invalid, or unenforceable, the legality, validity, and
9 enforceability of the remaining parts, terms or provisions shall not be affected thereby and said
10 illegal, unenforceable or invalid part, term, or provision shall be deemed not to be part of this
11 Stipulation.
12

17.

This Stipulation contains all of the terms agreed by the parties and no other

13 agreements have been made. Any changes to this Stipulation shall be effective only if made in
14 writing and signed by all parties hereto.
15

18.

This Stipulation may be executed in any number of counterparts and by facsimile,

16 each of which shall be deemed an original and all of which shall constitute the same instrument.
17

19.

Defendant/Guarantor represent and warrant that they have had the opportunity to

18 be, or have been, represented by counsel of their own choosing in connection with entering this
19 Stipulation under the terms and conditions set forth herein, that they have read this Stipulation
20 with care and are fully aware of and represent that they enter into this Stipulation voluntarily and
21 without duress.
22 ///
23 ///
24 ///
25 ///
26 ///
27 ///
28 ///
-9JUDGMENT PURSUANT TO STIPULATION
Case No.:3:14-cv-0382

1

20.

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

2 Judgment is satisfied.
3
4

Dated: October 6, 2014

PACE INC., dba PACE DRYWALL

5
By: _______________/S/__________________
Alan Mauldin, CEO/RMO/President

6
7

Dated: October 6, 2014

ALAN MAULDIN

8
9

By: _______________/S/________________
Alan Mauldin, Individually

10
11

Dated: October 7, 2014

SALTZMAN & JOHNSON
LAW CORPORATION

12
13

By: _ ___________/S/____________________
Adrian L. Canzoneri
Attorneys for Plaintiffs

14
15
16 IT IS SO ORDERED.

17 IT IS FURTHER ORDERED that the calendar in this matter is vacated, and that the Court shall
retain jurisdiction over this matter.
18
19
20

Dated: October 10
_________________, 2014

_______________________________________
UNITED STATES DISTRICT COURT JUDGE

21
22
23
24
25
26
27
28
-10JUDGMENT PURSUANT TO STIPULATION
Case No.:3:14-cv-0382

1

EXHIBIT A

JOB REPORT FORM

2
3
4

Updated Job Reports shall be delivered to Saltzman & Johnson Law Corporation
by the last business day of each month
at 44 Montgomery Street, Suite 2110, San Francisco, California 94104
Employer Name: PACE INC. dba PACE DRYWALL

5

6 Report for the month of __________________, 20__ Submitted by: _______________________
7

Project Name:

8

Project Address:

9

General Contractor:

10
11
12
13
14
15
16

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

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

Total Contract Value:
Work Start Date:

Work Completion Date:

Project Bond #:

Surety:

17

Project Name:

18

Project Address:

19

General Contractor:

20

23

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

24

Total Contract Value:

25

Work Start Date:

Work Completion Date:

26

Project Bond #:

Surety:

21
22

27

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

*** Attach additional sheets as necessary ***

28
-11JUDGMENT PURSUANT TO STIPULATION
Case No.:3:14-cv-0382