District Council 16 Northern California Health and Welfare Trust Fund, and its Joint Board of Trustees et al v. Floor Seal Technology, Inc.

Filing 12

JUDGMENT PURSUANT TO STIPULATION. Signed by Judge Richard Seeborg on 3/9/17. (cl, COURT STAFF) (Filed on 3/9/2017)

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Michele R. Stafford, Esq. (SBN 172509)
Matthew P. Minser, Esq. (SBN 296344)
SALTZMAN & JOHNSON LAW CORPORATION
44 Montgomery Street, Suite 2110
San Francisco, California 94104
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]
Attorneys for Plaintiffs, District Council 16 Northern
California Health and Welfare Trust Fund, et al.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DISTRICT COUNCIL 16 NORTHERN
CALIFORNIA HEALTH AND WELFARE
TRUST FUND, et al.,

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JUDGMENT PURSUANT TO
STIPULATION

Plaintiffs,

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Case No. C17-0226 RS

v.
FLOOR SEAL TECHNOLOGY, INC., a California
corporation; and WILLIAM CLYNE, an individual,
Defendants.

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IT IS HEREBY STIPULATED and AGREED (the “Stipulation”) by and between the parties

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hereto that Judgment shall be entered in the within action in favor of Plaintiffs District Council 16

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Northern California Health and Welfare Trust Fund, et al. (“Plaintiffs” or “Trust Funds”) and against

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Defendant Floor Seal Technology, Inc., a California Corporation, and Defendant William Clyne, an

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individual, as follows:

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1.

Defendant Floor Seal Technology, Inc. is signatory to and bound by the terms of a

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Collective Bargaining Agreement(s) (“Bargaining Agreement”) with the Plaintiff Union (“Union”). The

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Bargaining Agreement is still in full force and effect.

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2.

William Clyne confirms that he is the RMO/CEO/President of Defendant Floor Seal

Technology, Inc., and is authorized to enter into this Stipulation on behalf of Defendant Floor Seal

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Technology, Inc.

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3.

William Clyne (“Guarantor”) also confirms that he is personally guaranteeing the

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amounts due herein and confirms that he shall be added as a Defendant to the above-captioned action.

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Defendant William Clyne and Defendant Floor Seal Technology, Inc. (collectively “Defendants”)

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specifically consent to the Court’s jurisdiction, as well as the use of a Magistrate Judge for all

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proceedings, including entry of judgment herein. Defendants further confirm that all successors in

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interest, assignees, and affiliated entities (including, but not limited to, parent or other controlling

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companies), and any companies with which either Defendant joins or merges, if any, shall also be bound

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by the terms of this Stipulation as Guarantors. This shall include any additional entities in which

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Guarantor is an officer, owner or possesses any controlling ownership interest. All such entities shall

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specifically consent to the Court’s jurisdiction, the use of a Magistrate Judge for all proceedings, and all

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other terms herein, in writing, at the time of any assignment, affiliation or purchase.

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4.

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20%
Total
Liquidated
Contributions
Unpaid
Work
5% Interest
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Due
Contributions
Damages
Month
(thru 2/1/17)
8/15
$39,911.95
$24,727.07
$7,982.39
$2,449.03
9/15
$51,355.12
$37.07
$10,271.02
$4.60
10/15
$46,436.08
$63.64
$9,287.22
$201.15
11/15
$38,443.26
$47.48
$7,688.65
$193.35
12/15
$32,725.86
$50.84
$6,545.17
$102.24
9/16
$51,806.66
$114.47
$10,361.33
$93.50
11/16
$47,057.39
$47,057.39
$9,411.48
$206.40
12/16
$51,561.93
$51,561.93
$10,312.39
$7.06
Total Due, as shown above, for 8/15-12/15, 9/16, 11/16-12/16 (through 2/1/17):
10% Liquidated Damages for Late-Paid 1/13, 10/14-12/14, 2/15, 7/15, 1/16-6/16,
10/16 Contributions:
5% Per Annum Interest for Late-Paid 1/13, 10/14-12/14, 2/15, 7/15, 1/16-6/16,
10/16 Contributions:
Attorneys’ Fees (through 2/9/17):
Costs (through 2/9/17):
TOTAL JUDGMENT:

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Defendants are currently indebted to the Trust Funds as follows:

Subtotal
Due
$35,158.49
$10,312.69
$9,552.01
$7,929.48
$6,698.25
$10,569.30
$56,675.27
$61,881.38
$198,776.87
$7,350.00
$1,138.41
$7,381.50
$400.00
$215,046.78

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Liquidated damages are calculated on the total contributions due, per the terms of the Bargaining and
Trust Agreements.
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REQUIREMENTS UNDER THE TERMS OF THIS STIPULATION

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5.

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

Notices to Defendants: William Clyne, Floor Seal Technology, Inc., 1005 Ames
Avenue, Milpitas, CA 95035; email: [e-mail]

b)

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]

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6.

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

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a)

Monthly Payments: Defendants shall conditionally pay the amount of

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$135,837.13, representing all of the above amounts, less liquidated damages in the amount of
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$79,209.65.
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i)

Payments in the amount of $11,629.00 per month shall begin on February

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28, 2017, and continue on or before the last business day of each month thereafter for a period of
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twelve (12) months. Plaintiffs may require that Defendants pay electronically by ACH/wire transfer, or
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by cashier’s check.
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ii)

Defendants shall have the right to increase the monthly payments at any

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time and there is no penalty for prepayment.
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iii)

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

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accordance with the Bargaining Agreement(s) and Trust Agreements. Interest shall begin to accrue on
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February 2, 2017.
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b)

Contributions: Beginning with contributions due for hours worked by

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Defendants’ employees during the month of January 2017, and for every month thereafter until this
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Judgment is satisfied, Defendants shall remain current in reporting and payment of contributions due to
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Plaintiffs under the terms of the Collective Bargaining Agreement(s).
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c)

Job Report: Beginning with the month of January 2017, and for every month

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thereafter, Defendants shall fully disclose all jobs on which they are working by providing Plaintiffs
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with fully completed job reports on the form attached hereto as Exhibit A. Upon request by Plaintiffs,
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Defendants shall also provide Plaintiffs with copies of Certified Payroll Reports.
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d)

Audit: Should the Trust Funds request an audit of Defendants’ payroll records

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pursuant to the requirements of the Bargaining Agreement(s) and/or Trust Agreements, Defendants must

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

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i)

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

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audit, Plaintiffs shall send a copy of the audit report and written demand for payment to Defendants. In

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the event that the audit findings are not contested, payment in full shall be delivered to Michele R.

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Stafford at the address provided above.

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ii)

In the event that Defendants dispute the audit findings, Defendants must

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provide the dispute in writing, with all supporting documentation, within ten days of the date of the

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demand. Defendants shall be notified as to whether revisions will be made to the audit. If revisions are

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not made, payment will be immediately due. If revisions are made, payment in full of the revised

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amount shall be immediately due.

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iii)

If Defendants are unable to make payment in full, Defendants may submit

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a request to add the amounts found due to this Stipulation. If the Stipulation is so revised, Defendants

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shall execute the Amended Judgment or Amendment to Judgment within ten days of receipt. Failure to

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execute the revised agreement shall constitute a default of the terms herein.

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iv)

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

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the amounts due to this Judgment within ten days of receipt shall constitute a default of the obligations

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under this agreement. All amounts found due on audit shall immediately become part of this Judgment.

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e)

Fees: Defendants shall pay all additional attorneys’ fees and costs incurred

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through Satisfaction of Judgment, whether or not a default occurs.

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7.

In summary, Defendants shall deliver the following payments and documents to

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Plaintiffs, at the following locations, on or before the following delivery deadlines, until this Stipulation

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has been fully satisfied:

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Required Submissions
Stipulated payments in the
amount of $11,629.00
payable to District Council 16
Northern California Trust Funds

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

Current contribution reports
and payments
payable to District Council 16
Northern California Trust Funds

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Delivery deadlines 2
Last business day of
each month
(2/28/17-1/31/18)
Last business day of
each month
(beginning 2/28/17, for
1/17 hours)

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

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Plus copies to:
[e-mail]
(subject: “Floor Seal Technology”);

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District Council 16 Northern
California Trust Funds
P.O Box 4816
Hayward, CA 94540

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Completed job reports (form
attached as Exhibit A to
Stipulation)

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Last business day of
each month
(beginning 2/28/17, for
1/17 hours)

and Certified Payroll (if
requested)

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8.

[e-mail]
(subject: “Floor Seal Technology”)
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 does

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

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DEFAULTS UNDER THE TERMS OF THIS STIPULATION

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9.

If default occurs, Plaintiffs shall make a written demand to Defendants to cure said

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default within seven (7) days of the date of the notice from Plaintiffs. In the event default is not cured

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within the required time frame, all amounts remaining due hereunder (after application of principal

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If the Stipulation has not been fully satisfied by 1/31/18, all monthly submission requirements shall continue
until all amounts have been paid and a Satisfaction of Judgment has been filed with the Court.

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payments made, if any) shall be due and payable on demand by Plaintiffs. These amounts shall include

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any

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damages/interest, and additional attorney’s fees and costs incurred herein.

conditionally

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10.

waived

liquidated

damages,

additional

(current)

contributions/liquidated

Any unpaid or late-paid contributions, together with 20% liquidated damages and 5% per

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annum interest, shall become part of this Judgment. Plaintiffs reserve all rights available to collect any

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contributions and related amounts not included herein. This includes, but is not limited to, any amounts

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due pursuant to employee timecards or paystubs, by audit, or other means. Should Defendants fail to

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submit a report for any month, contributions shall be estimated pursuant to Trust Fund policy.

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Defendants specifically waive the defense of the doctrine res judicata as to any such additional amounts

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determined as due.

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11.

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

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balance plus any additional amounts due under the terms herein. Such Writ of Execution may be

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obtained solely upon declaration by a duly authorized representative of Plaintiffs setting forth the

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balance due as of the date of default.

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MISCELLANEOUS PROVISIONS

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12.

The above requirements remains in full force and effect regardless of whether or not

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Defendants have ongoing work, whether Defendants’ account with the Trust Funds is active, or whether

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Defendants are signatory to a Collective Bargaining Agreement with the Union. If, for any reason,

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Defendants have no work to report during a given month, Defendants shall submit the job report form

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(Exhibit A attached hereto) indicating that there are no current jobs. If Defendants have no contributions

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to report, Defendants shall submit the applicable contribution report stating “no employees.”

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13.

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

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submission, and may be applied toward Defendants’ monthly stipulated payment, provided that the

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issuer of the joint check is not requesting a release in exchange for the payment. Joint checks for which a

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release is requested may not be applied toward Defendants’ monthly stipulated payment, but shall be

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deducted from the total balance owed under this Stipulation, provided the payment is for contributions

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included in this Stipulation.

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14.

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

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to the final amount due, including additional interest, any current contributions and related amounts, and

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all additional attorneys’ fees and costs incurred by Plaintiffs, whether or not Defendants default herein.

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Any additional amounts due shall be paid in full with the final stipulated payment due on January 31,

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2018.

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15.

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

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for consideration only after all amounts due under the terms of this Stipulation are paid in full, and

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Defendants’ account is otherwise current. If the waiver is granted, a Satisfaction of Judgment will be

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filed with the Court once all payments have cleared the bank. If the waiver is not granted, the liquidated

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damages will be immediately due. The waiver may be granted with further conditions, such as paying

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timely and remaining current for an additional period of time.

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16.

Execution, and expressly waive all rights to stay of execution and appeal.

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Defendants waive any notice of Entry of Judgment or of any Request for a Writ of

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

any breach of the provisions of this Stipulation shall not be deemed a waiver of any subsequent breach.

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18.

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

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deemed to have been made in the ordinary course of business as provided under 11 U.S.C. Section

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547(c)(2) and shall not be claimed by Defendants as a preference under 11 U.S.C. Section 547 or

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otherwise.

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19.

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

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competent jurisdiction to be illegal, invalid, or unenforceable, the legality, validity, and enforceability of

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the remaining parts, terms or provisions shall not be affected thereby and said illegal, unenforceable or

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invalid part, term, or provisions shall be deemed not to be part of this Stipulation.

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20.

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

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and delinquent contributions and related sums enumerated herein, owed by Defendants to Plaintiffs.

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This Stipulation does not in any manner relate to withdrawal liability claims, if any. Defendants

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acknowledge that Plaintiffs expressly reserve their right to pursue withdrawal liability claims, if any,

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against Defendants and control group members, as provided by Plaintiffs’ Plan documents, Trust

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Agreements incorporated into their Bargaining Agreements, and applicable laws and regulations.

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21.

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

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have been made. Any changes to this Stipulation shall be effective only if made in writing and signed by

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all parties hereto.

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22.

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

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

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23.

Defendants represent and warrant that they have had the opportunity to be or have been

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represented by counsel of their own choosing in connection with entering this Stipulation under the

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terms and conditions set forth herein, that they have read this Stipulation with care and are fully aware

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of and represent that they enter into this Stipulation voluntarily and without duress.

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24.

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

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is satisfied.

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DATED: March 2, 2017

FLOOR SEAL TECHNOLOGY, INC., a
California Corporation

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By:
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/S/
William Clyne, RMO/CEO/President of
Defendant Floor Seal Technology, Inc.

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DATED: March 2, 2017

WILLIAM CLYNE

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By:

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DATED: March 2, 2017

SALTZMAN & JOHNSON LAW
CORPORATION

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By:

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DATED: February __, 2017

By:

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DATED: March 2, 2017

By:

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/S/
Jose Santana
Trustee of Plaintiff Trust Funds
DISTRICT COUNCIL 16 NORTHERN
CALIFORNIA HEALTH AND WELFARE
TRUST FUND, et al.

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/S/
Matthew P. Minser, Attorneys for Plaintiffs,
District Council 16 Northern California Health
and Welfare Trust Fund, et al.
DISTRICT COUNCIL 16 NORTHERN
CALIFORNIA HEALTH AND WELFARE
TRUST FUND, et al.

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/S/
William Clyne, individual Defendant and
Guarantor

/S/
Daryl Stacy
Trustee of Plaintiff Trust Funds

IT IS SO ORDERED.
IT IS FURTHER ORDERED that the calendar in this matter is vacated, and that the Court shall retain
jurisdiction over this matter.
March
DATED: February ___, 2017
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UNITED STATES DISTRICT JUDGE

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Exhibit A: JOB REPORT FORM
Completed Forms Due by the last business day of each month
by email to [e-mail] (subject line: Floor Seal Technology) , or
delivered to Saltzman & Johnson, 44 Montgomery St., Ste. 2110, San Francisco, CA 94104

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Employer: FLOOR SEAL TECHNOLOGY, INC.
Report for the month of _______________, 20__ Submitted by: ______________________

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Project Name:

Public or Private?
(Circle one)

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Project Address:

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General Contractor:

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

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Total Contract Value:

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Work Start Date:

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Project Bond #:

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

Work Completion
Date:
Surety:

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Project Name:

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Project Address:

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General Contractor:

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

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Public or Private?
(Circle one)

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

Total Contract Value:
Work Start Date:

Work Completion
Date:

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Project Bond #:

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Surety:

***Attach additional sheets as necessary***

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