District Council 16 Northern California Health and Welfare Trust Fund, et al v. QOL Corp.

Filing 15

JUDGMENT Pursuant to Stipulation Re Docket No. 11 . Signed by Judge Haywood S. Gilliam, Jr. on 11/4/2016. (ndrS, COURT STAFF) (Filed on 11/4/2016)

1 Michele R. Stafford, Esq. (SBN 172509)
Matthew P. Minser, Esq. (SBN 296344)
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
8

UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10
11 DISTRICT COUNCIL 16 NORTHERN
CALIFORNIA HEALTH AND WELFARE TRUST
12 FUND, et al.,
13
14

Plaintiffs,

Case No. C16-04554 HSG
JUDGMENT PURSUANT TO
STIPULATION

v.

15 QOL CORP., a California Corporation dba Custom
Engineered Openings Windows & Doors,
16
Defendant.
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 Plaintiffs District
20 Council 16 Northern California Health And Welfare Trust Fund, et al. (“Plaintiffs” or “Trust
21 Funds”) and against Defendant QOL Corp., a California Corporation dba Custom Engineered
22 Openings Windows & Doors (“Defendant”) as follows:
23

1.

Defendant is signatory to and bound by the terms of a Collective Bargaining

24 Agreement (“Bargaining Agreement”) with the Plaintiff Union (“Union”). The Bargaining
25 Agreement is still in full force and effect.
26

2.

Steve Landry, as RMO/CEO/President of Defendant, and Marc Todd, as Officer of

27 Defendant (collectively “Guarantors”), confirm that they are authorized to enter into this Stipulation
28 on behalf of Defendant and confirm that they are personally guaranteeing the amounts due herein.
-1JUDGMENT PURSUANT TO STIPULATION
Case No. C16-04554 HSG
C:\Users\RILEYN~1.CAN\AppData\Local\Temp\notes1A03DD\~5500282.docx

1 Defendant/Guarantors specifically consent to the Court’s jurisdiction, as well as the use of a
2 Magistrate Judge for all proceedings, including entry of judgment herein. Defendant/Guarantors
3 further confirm that all successors in interest, assignees, and affiliated entities (including, but not
4 limited to, parent or other controlling companies), and any companies with which Defendant joins
5 or merges, if any, shall also be bound by the terms of this Stipulation as Guarantors. This shall
6 include any additional entities in which Guarantors are an officer, owner or possesses any
7 controlling ownership interest. All such entities shall specifically consent to the Court’s jurisdiction,
8 the use of a Magistrate Judge for all proceedings herein, and all other terms herein, in writing, at the
9 time of any assignment, affiliation or purchase.
10

3. Defendant has become indebted to the Trust Funds as follows:
Work
Month

11
12
13

Total
Contributions
Due

Unpaid
Contributions

20%
Liquidated
Damages 1

5%
Interest
(through
9/6/16)

Subtotal
Due

10/15
$108,714.03
$76,573.62
$21,742.81 $2,865.52
$101,181.95
12/15
$91,150.98
$56,508.17
$18,230.20 $1,828.12
$76,566.49
3/16
$64,626.42
$5,072.57
$12,925.28 $335.34
$18,333.19
4/16
$147,141.88
$8,275.82
$29,428.38 $399.21
$38,103.41
6/16
$204,562.60
$39,573.37
$40,912.52 $524.32
$81,010.21
Subtotals
$186,003.55 $123,239.19 $5,952.51
$315,195.25
Total due, as shown above, for 10/15, 12/15, 3/16-4/16, 6/16 (through
$315,195.25
9/6/16):
10% Liquidated Damages for 8/15, 9/15, 11/15, 1/16, 2/16, 5/16
Contributions:
$20,685.48
5% Per Annum Interest for 8/15, 9/15, 11/15, 1/16 - 2/16, 5/16
Contributions:
$2,262.38
Audit (3/1/15-7/31/15)
$11,390.07
Attorneys’ Fees and Costs (through 9/6/16):
$13,404.50
SUBTOTAL:
$362,937.68
Credits:
(161.00)
TOTAL:
$362,776.68

14
15
16
17
18
19
20
21
22
23

REQUIREMENTS UNDER THE TERMS OF THIS STIPULATION

24

4.

25

a)

26
27

Notice requirements pursuant to the terms of this Stipulation are as follows:
Notices to Defendant/Guarantors: Steve Landry and Marc Todd, QOL

1

Liquidated damages are calculated on the total reported due, pursuant to the terms of the
Bargaining and Trust Agreements.

28
-2JUDGMENT PURSUANT TO STIPULATION
Case No. C16-04554 HSG
C:\Users\RILEYN~1.CAN\AppData\Local\Temp\notes1A03DD\~5500282.docx

Corp., 1055 Bay Boulevard, Suite I, Chula Vista, CA 91911; email:
[e-mail]; [e-mail]____

1
2

b)

3
4
5

5.

Notices to Plaintiffs: Michele R. Stafford, Saltzman & Johnson Law Corp.,
44 Montgomery Street, #2110, San Francisco, CA 94104; email:
[e-mail], copy to: [e-mail]

The requirements pursuant to the terms of this Stipulation are as follows:
a)

Monthly Payments: Defendant/Guarantors shall conditionally pay the

6 amount of $218,852.01 representing all of the above amounts, less liquidated damages in the
7 amount of $143,924.67.
8

i)

Initial payment in the amount of $18,735.00 to be received by

9 Plaintiffs on or before September 12, 2016.
10

ii)

Payments in the amount of $18,735.00 per month shall begin on

11 September 30, 2016, and continue on or before the last business day of each month thereafter for a
12 period of eleven months. Plaintiffs may require that Defendant/Guarantors pay electronically by
13 wire transfer or by cashier’s check.
14

iii)

Defendant/Guarantors shall have the right to increase the monthly

15 payments at any time and there is no penalty for prepayment.
16

iv)

Payments shall be applied first to interest, at the rate of 5% per

17 annum in accordance with the Bargaining Agreement and Trust Agreements. Interest shall begin
18 to accrue on September 7, 2016.
19

b)

Contributions: Beginning with contributions due for hours worked by

20 Defendant’s employees during the month of July 2016, and for every month thereafter until this
21 Judgment is satisfied, Defendant shall remain current in reporting and payment of contributions
22 due to Plaintiffs under the terms of the Collective Bargaining Agreement(s).
23

c)

Job Report: Beginning with the month of July 2016, and for every month

24 thereafter, Defendant shall fully disclose all jobs on which it is working by providing Plaintiffs
25 with fully completed job reports on the form attached hereto as Exhibit A. Upon request by
26 Plaintiffs, Defendant shall also provide Plaintiffs with copies of Certified Payroll Reports.
27

d)

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

28 records pursuant to the requirements of the Bargaining Agreement and/or Trust Agreements,
-3JUDGMENT PURSUANT TO STIPULATION
Case No. C16-04554 HSG
C:\Users\RILEYN~1.CAN\AppData\Local\Temp\notes1A03DD\~5500282.docx

1 Defendant must contact the auditor within seven days of receiving notice, and must schedule the
2 audit as requested.
3

i)

In the event that amounts are found due to Plaintiffs as a result of

4 the audit, Plaintiffs shall send a copy of the audit report, and written demand for payment to
5 Defendant. In the event that the audit findings are not contested, payment in full shall be delivered
6 to Michele R. Stafford at the address provided above.
7

ii)

In the event that Defendant disputes the audit findings, Defendant

8 must provide the dispute in writing, with all supporting documentation within ten (10) days of the
9 date of the demand. Defendant shall be notified as to whether revisions will be made to the audit.
10 If revisions are not made, payment will be immediately due. If revisions are made, payment in full
11 of the revised amount shall be immediately due.
12

iii)

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

13 submit a request to add the amounts found due to this Stipulation. If the Stipulation is so revised,
14 Defendant shall execute the Amended Judgment or Amendment to Judgment within ten (10) days
15 of receipt. Failure to execute the revised agreement shall constitute a default of the terms herein.
16

iv)

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

17 add the amounts due to this Judgment within ten days of receipt shall constitute a default of the
18 obligations under this agreement. All amounts found due on audit shall immediately become part
19 of this Judgment.
20

e)

Fees: Defendant/Guarantors shall pay all additional attorneys’ fees and

21 costs incurred through Satisfaction of Judgment, whether or not a default occurs.
22

6.

In summary, Defendant/Guarantors shall deliver the following payments and

23 documents to Plaintiffs, at the following locations, on or before the following delivery deadlines,
24 until this Stipulation has been fully satisfied:
25 //
26 //
27 //
28
-4JUDGMENT PURSUANT TO STIPULATION
Case No. C16-04554 HSG
C:\Users\RILEYN~1.CAN\AppData\Local\Temp\notes1A03DD\~5500282.docx

1

Required Submissions

2 Initial payment in the amount
of $18,735.00
3 Payable to District Council 16
Northern California Trust Funds
4 Stipulated payments in the
amount of $18,735.00
5 payable to District Council 16
Northern California Trust Funds
6
Current contribution reports
7 and payments
payable to District Council 16
8 Northern California Trust Funds

Delivery deadlines 2

Delivery locations

September 12, 2016

Michele R. Stafford
Saltzman & Johnson Law Corp.
44 Montgomery Street, #2110
San Francisco, CA 94104
Michele R. Stafford
Saltzman & Johnson Law Corp.
44 Montgomery Street, #2110
San Francisco, CA 94104

Last business day of
each month
(9/30/16-7/31/17)
Last business day of
each month
(beginning 8/31/16, for
7/16 hours)

9
10
11
12
13 Completed job reports (form
attached as Exhibit A to
14 Stipulation)
and Certified Payroll (if
15 requested)

Last business day of
each month
(beginning 8/31/16, for
7/16 hours)

16
17

7.

Michele R. Stafford
Saltzman & Johnson Law Corp.
44 Montgomery Street, #2110
San Francisco, CA 94104
Plus copies to:
[e-mail]
(subject: “QOL Corp.”);
and
District Council 16 Northern
California Trust Funds
P.O. Box 4816
Hayward, CA 94540-4816
[e-mail]
(subject: “QOL Corp.”)
or
Michele R. Stafford
Saltzman & Johnson Law Corp.
44 Montgomery Street, #2110
San Francisco, CA 94104

Failure to comply with any of the above terms, including submitting a payment that

18 does not clear the bank, shall constitute a default of the obligations under this Stipulation.
19

DEFAULTS UNDER THE TERMS OF THIS STIPULATION

20

8.

If default occurs, Plaintiffs shall make a written demand to Defendant/Guarantors,

21 to cure said default within seven (7) days of the date of the notice from Plaintiffs. In the event
22 default is not cured within the required time frame, all amounts remaining due hereunder (after
23 application of principal payments made, if any) shall be due and payable on demand by Plaintiffs.
24 These amounts shall include any conditionally waived liquidated damages, additional (current)
25 contributions/liquidated damages/interest, and additional attorney’s fees and costs incurred herein.
26

2

If the Stipulation has not been fully satisfied by 7/31/17, all monthly submission requirements
27 shall continue until all amounts have been paid and a Satisfaction of Judgment has been filed with
the Court.
28
-5JUDGMENT PURSUANT TO STIPULATION
Case No. C16-04554 HSG
C:\Users\RILEYN~1.CAN\AppData\Local\Temp\notes1A03DD\~5500282.docx

1

9.

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

2 5% per annum interest, shall become part of this Judgment. Plaintiffs reserve all rights available to
3 collect any contributions and related amounts not included herein. This includes, but is not limited
4 to any amounts due pursuant to employee timecards or paystubs, by audit, or other means. Should
5 Defendant fail to submit a report for any month, contributions shall be estimated pursuant to Trust
6 Fund policy. Defendant/Guarantors specifically waive the defense of the doctrine res judicata as
7 to any such additional amounts determined as due.
8

10.

A Writ of Execution may be obtained without further notice, in the amount of the

9 unpaid balance plus any additional amounts due under the terms herein. Such Writ of Execution
10 may be obtained solely upon declaration by a duly authorized representative of Plaintiffs setting
11 forth the balance due as of the date of default.
12
13

MISCELLANEOUS PROVISIONS
11.

The above requirements remains in full force and effect regardless of whether or

14 not Defendant has ongoing work, whether Defendant’s account with the Trust Funds is active, or
15 whether Defendant is signatory to a Collective Bargaining Agreement with the Union. If, for any
16 reason, Defendant has no work to report during a given month, Defendant shall submit the job
17 report form (Exhibit A attached hereto) indicating that there are no current jobs. If Defendant has
18 no contributions to report, Defendant shall submit the applicable contribution report stating “no
19 employees.”
20

12.

Payments made by joint check shall be endorsed on behalf of Defendant prior to

21 submission, and may be applied toward Defendant’s monthly stipulated payment, provided that
22 the issuer of the joint check is not requesting a release in exchange for the payment. Joint checks
23 for which a release is requested may not be applied toward Defendant’s monthly stipulated
24 payment, but shall be deducted from the total balance owed under this Stipulation, provided the
25 payment is for contributions included in this Stipulation.
26

13.

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

27 Defendant/Guarantors as to the final amount due, including additional interest, any current
28 contributions and related amounts and all additional attorneys’ fees and costs incurred by
-6JUDGMENT PURSUANT TO STIPULATION
Case No. C16-04554 HSG
C:\Users\RILEYN~1.CAN\AppData\Local\Temp\notes1A03DD\~5500282.docx

1 Plaintiffs, whether or not Defendant defaults herein. Any additional amounts due shall be paid in
2 full with the final stipulated payment due on July 31, 2017.
3

14.

The conditional waiver of liquidated damages shall be presented to the Board of

4 Trustees for consideration only after all amounts due under the terms of this Stipulation are paid in
5 full, and Defendant’s account is otherwise current. If Defendant has fully complied with the terms
6 of the Stipulation without default(s), the waiver shall be granted. If the waiver is granted, a
7 Satisfaction of Judgment will be filed with the Court once all payments have cleared the bank. If
8 the waiver is not granted, the liquidated damages will be immediately due.
9

15.

Defendant/Guarantors waive any notice of Entry of Judgment or of any Request for

10 a Writ of Execution, and expressly waives all rights to stay of execution and appeal.
11

16.

Any failure on the part of Plaintiffs to take any action as provided herein in the

12 event of any breach of the provisions of this Stipulation shall not be deemed a waiver of any
13 subsequent breach.
14

17.

Defendant/Guarantors have represented that they do not intend to file for

15 Bankruptcy protection. In the event that Defendant/Guarantors file for Bankruptcy protection,
16 Defendant/Guarantors specifically agree that the amounts due hereunder, which are employee
17 benefits and related sums, shall not be dischargeable. Defendant/Guarantors agree to reaffirm this
18 debt, and will not request that the debt be discharged.
19

18.

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

20 competent jurisdiction to be illegal, invalid, or unenforceable, the legality, validity, and
21 enforceability of the remaining parts, terms or provisions shall not be affected thereby and said
22 illegal, unenforceable or invalid part, term, or provisions shall be deemed not to be part of this
23 Stipulation.
24

19.

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

25 unpaid and delinquent contributions and related sums enumerated herein, owed by Defendant to
26 Plaintiffs. This Stipulation does not in any manner relate to withdrawal liability claims, if any.
27 Defendant acknowledges that Plaintiffs expressly reserve their right to pursue withdrawal liability
28 claims, if any, against Defendant and all of its control group members, as provided by Plaintiffs’
-7JUDGMENT PURSUANT TO STIPULATION
Case No. C16-04554 HSG
C:\Users\RILEYN~1.CAN\AppData\Local\Temp\notes1A03DD\~5500282.docx

1 Plan documents, Trust Agreements incorporated into their Bargaining Agreements, and applicable
2 laws and regulations.
3

20.

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

4 agreements have been made. Any changes to this Stipulation shall be effective only if made in
5 writing and signed by all parties hereto.
6

21.

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

7 each of which shall be deemed an original and all of which shall constitute the same instrument.
8

22.

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

9 be or have been represented by counsel of their own choosing in connection with entering this
10 Stipulation under the terms and conditions set forth herein, that they have read this Stipulation
11 with care and are fully aware of and represent that they enter into this Stipulation voluntarily and
12 without duress.
13 //
14 //
15 //
16 //
17 //
18 //
19 //
20 //
21 //
22 //
23 //
24 //
25 //
26 //
27 //
28 //
-8JUDGMENT PURSUANT TO STIPULATION
Case No. C16-04554 HSG
C:\Users\RILEYN~1.CAN\AppData\Local\Temp\notes1A03DD\~5500282.docx

1

23.

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

2 Judgment is satisfied.
3 Dated: September 8, 2016

QOL CORP., dba CUSTOM ENGINEERED
OPENINGS WINDOWS & DOORS

4
By:

5

/S/

6

Steve Landry
RMO/CEO/President of Defendant

7 Dated: September 8, 2016

STEVE LANDRY

8

By:

9
10 Dated: September 8, 2016

MARC TODD
By:

11
12
13

Dated: September 15, 2016

/S/
Marc Todd, individually, as Guarantor
DISTRICT
COUNCIL
16
NORTHERN
CALIFORNIA HEALTH AND WELFARE
TRUST FUND, ET AL.

14
By:

15

/S/
Chris Christophersen
Trustee of Plaintiff Trust Funds

16
17

/S/
Steve Landry, individually, as Guarantor

Dated: September 15, 2016

DISTRICT
COUNCIL
16
NORTHERN
CALIFORNIA HEALTH AND WELFARE
TRUST FUND, ET AL.

18
19
By:
20

/S/
John Maggiore
Trustee of Plaintiff Trust Funds

21
22 IT IS SO ORDERED.
23

IT IS FURTHER ORDERED that the calendar in this matter is vacated, and that the Court

24 shall retain jurisdiction over this matter.
25
26 Dated: November 4, 2016

_______________________________________
UNITED STATES DISTRICT COURT JUDGE

27
28
-9JUDGMENT PURSUANT TO STIPULATION
Case No. C16-04554 HSG
C:\Users\RILEYN~1.CAN\AppData\Local\Temp\notes1A03DD\~5500282.docx

1
2
3
4
5

EXHIBIT A: JOB REPORT FORM
Completed Forms Due by the Last Business Day of each month
by email to [e-mail] (subject line: QOL Corp.), or delivered to Saltzman &
Johnson, 44 Montgomery St., Ste. 2110, San Francisco, CA 94104
Employer: QOL CORP., dba CUSTOM ENGINEERED OPENINGS WINDOWS &
DOORS

6 Report for the month of __________________, 20__ Submitted by: _______________________
Project Name:
Public or Private?
7
(circle one)
Project Address:
8
General Contractor:
9
General Contractor
10 Address:
General Contractor
Project Manager Name:
11 Telephone #:
Project Manager
Project Manager email
12 Telephone #:
address:
Contract #:
Contract Date:
13
Total Contract Value:
14
Work Start Date:
Work Completion Date:
15
Project Bond #:
Surety:
16
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:

Project Bond #:

Surety:

21
22

26
27
28

Public or Private?
(circle one)

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

*** Attach additional sheets as necessary
-1EXHIBIT A TO JUDGEMENT PURSUANT TO STIPULATION
Case No. C16-04554 HSG
C:\Users\RILEYN~1.CAN\AppData\Local\Temp\notes1A03DD\~5500282.docx

1
2

ATTESTATION CERTIFICATE
In accord with the Northern District of California’s Civil Local Rule 5-1, I attest that

3 concurrence in the filing of this document has been obtained from each of the other signatories
4 who are listed on the signature page.
5
6
7

Dated: September 19, 2016
By:

8

/S/
Matthew P. Minser, Esq.
Attorneys for Plaintiffs

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-1ATTESTATION
Case No. C16-04554 HSG
C:\Users\RILEYN~1.CAN\AppData\Local\Temp\notes1A03DD\~5500282.docx