Trustees of the Northern California Tile Industry Pension Trust Fund et al v. Peacock Tile and Marble, Inc. et al

Filing 119

Order by Magistrate Judge Donna M. Ryu granting 118 Stipulation.(dmrlc2, COURT STAFF) (Filed on 5/23/2014)

Case4:11-cv-03859-DMR Document118 Filed05/22/14 Page1 of 7

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DAVIS, COWELL & BOWE, LLP
JOHN J. DAVIS, JR., SBN 65594
[e-mail]
SARAH GROSSMAN-SWENSON, SBN 259792
[e-mail]
ELIZABETH Q. HINCKLE, SBN 273553
[e-mail]
595 Market Street, Suite 1400
San Francisco, CA 94105
Tel.: [phone]
Fax: [phone]

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Attorneys for Plaintiffs
[Additional Counsel Listed
on Signature Page]

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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TRUSTEES of the NORTHERN CALIFORNIA
TILE INDUSTRY PENSION TRUST FUND, et
al.,
Plaintiffs,

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v.
PEACOCK TILE AND MARBLE, INC., et al.,
Defendants.

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Case No. 11-CV-3859 DMR
STIPULATION re: SETTLEMENT
and DISMISSAL of DEFENDANTS
SAN JOSE CONSTRUCTION CO.,
INC.; HOMESITE SERVICES, INC.;
and S.B.C.C., INC.
and
[proposed] ORDER
[Fed. R. Civ. P. 41(a)(1)(A)(ii)]
Judge:

Magistrate Judge Donna Ryu

Location: Courtroom No. 4, 3rd Floor
Oakland Courthouse
1301 Clay Street
Oakland, CA 94612

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Stipulation re Settlement and Dismissal of Defendants SJCC,
Homesite and SBCC and [proposed] ORDER

Case No. 11-CV-3859 DMR

Case4:11-cv-03859-DMR Document118 Filed05/22/14 Page2 of 7

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STIPULATION
Plaintiffs Trustees of the Northern California Tile Industry Pension Trust Fund; Trustees of

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the Northern California Tile Industry Health and Welfare Trust Fund; Trustees of the Northern

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California Tile Industry Apprenticeship and Training Trust Fund; Trustees of the Northern

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California Tile Industry Vacation and Holiday Trust Fund; and Trustees of the Northern California

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Tile Industry Labor Management Cooperation Trust Fund (“Plaintiffs”) have reached separate

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settlement agreements with Defendants San Jose Construction Co., Inc. (“SJCC”), Homesite

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Services, Inc. (“Homesite”), and S.B.C.C., Inc. d/b/a South Bay Construction Inc. (“South Bay

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Construction” or “SBCC”), respectively. Plaintiffs, SJCC, Homesite, SBCC and Doug Pavone

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(collectively, “Parties”), by and through their attorneys, hereby stipulate as follows:

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Stipulation re: settlement and dismissal of Defendant SJCC:

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1. Plaintiffs have alleged in this Action that Defendant SJCC aided and abetted

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Defendants Doug Pavone, Christyne Pavone, Pavone Tile & Marble Co., Inc., and Peacock Tile &

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Marble, Inc., in evading Pavone Tile’s obligations to make fringe-benefit contributions to

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Plaintiffs under Pavone Tile’s collective bargaining agreements with Bricklayers and Allied Crafts

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Local Union No. 3. Plaintiffs have alleged that Peacock Tile is the labor-law alter-ego of Pavone

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Tile. Plaintiffs seek damages and injunctive relief.

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2. Plaintiffs and Defendant SJCC have reached a Settlement Agreement, Exhibit 1
hereto, the terms of which are incorporated herein by this reference.
3. Plaintiffs and Defendant SJCC hereby stipulate to the Settlement Agreement and
request that the Court enter the Settlement Agreement’s terms as an Order of the Court.
4. Pursuant to the Agreement, Plaintiffs and Defendant SJCC stipulate that:
a. Defendant SJCC will pay Plaintiffs $235,000.00 (TWO HUNDRED THIRTY-

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FIVE THOUSAND DOLLARS AND NO CENTS) in a series of four payments:

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i. $100,000 on or before June 1, 2014, or within 10 days of the execution of

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the Agreement, whichever is later;

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ii. $50,000 by August 15, 2014;

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iii. $50,000 by November 1, 2014; and
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Stipulation re Settlement and Dismissal of Defendants SJCC,
Homesite and SBCC and [proposed] ORDER

Case No. 11-CV-3859 DMR

Case4:11-cv-03859-DMR Document118 Filed05/22/14 Page3 of 7

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iv. $35,000 by January 15, 2015.

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b. Upon Defendant SJCC’s payment of the amount provided for in Paragraph

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4.a.i. above, Plaintiffs will so inform the Court and Plaintiffs’ claims alleged in the Amended

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Complaint against Defendant SJCC will be dismissed without prejudice. Upon payment of all

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amounts provided-for in Paragraph 4.a, Plaintiffs will so inform the Court and Plaintiffs’ claims

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alleged in the Amended Complaint against Defendant SJCC will thereupon be dismissed with

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prejudice.

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c. With respect to California state law claims asserted in the Amended Complaint,
the Parties agree that this is a good faith settlement within the meaning of California Code of Civil
Procedure § 877.

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d. Plaintiffs and Defendant SJCC agree that the Settlement Agreement represents a

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compromise for purposes of settling disputed claims, and is not an admission of wrongdoing, fault,

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liability, or damages by, on behalf of, or with respect to any Party.

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e. The Court will retain jurisdiction to enforce the terms of the Settlement

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Agreement. If Defendant SJCC does not deliver the above-described checks by the dates above

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(or within such additional time as Plaintiffs may grant in their sole discretion), or if any check is

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not paid by the bank on which it is drawn, then Plaintiffs may, at their sole option, either enforce

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the Agreement through further proceedings in this action or declare the Settlement Agreement to

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be null and void. If Plaintiffs declare the Settlement Agreement to be null and void, they will be

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entitled to pursue the claims asserted against Defendant SJCC in the Amended Complaint without

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limitation. Any litigation for the purposes described in this Paragraph will be governed by Section

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502(g)(2) of ERISA, 29 U.S.C. § 1132(g)(2).

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5.

The Court shall retain jurisdiction to enforce the Settlement Agreement.

Stipulation re: settlement and dismissal of Defendant Homesite:
1.

Plaintiffs have alleged in this Action that Defendant Homesite aided and abetted

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Defendants Doug Pavone, Christyne Pavone, Pavone Tile & Marble Co., Inc., and Peacock Tile &

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Marble, Inc., in evading Pavone Tile’s obligations to make fringe-benefit contributions to

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Plaintiffs under Pavone Tile’s collective bargaining agreements with Bricklayers and Allied Crafts
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Stipulation re Settlement and Dismissal of Defendants SJCC,
Homesite and SBCC and [proposed] ORDER

Case No. 11-CV-3859 DMR

Case4:11-cv-03859-DMR Document118 Filed05/22/14 Page4 of 7

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Local Union No. 3. Plaintiffs have alleged that Peacock Tile is the labor-law alter-ego of Pavone

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Tile. Plaintiffs seek damages and injunctive relief.

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2.

Plaintiffs and Defendant Homesite have reached a Settlement Agreement, Exhibit 2

hereto, the terms of which are incorporated herein by this reference.
3.

Upon Defendant Homesite’s payment of $107,000 into the trust account of

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Plaintiffs’ attorneys, this action will be dismissed as to Defendant Homesite with prejudice.

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Stipulation re: settlement and dismissal of Defendant SBCC:

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1.

Plaintiffs have alleged in this Action that Defendant SBCC aided and abetted

Defendants Doug Pavone, Christyne Pavone, Pavone Tile & Marble Co., Inc., and Peacock Tile &

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Marble, Inc., in evading Pavone Tile’s obligations to make fringe-benefit contributions to

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Plaintiffs under Pavone Tile’s collective bargaining agreements with Bricklayers and Allied Crafts

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Local Union No. 3. Plaintiffs have alleged that Peacock Tile is the labor-law alter-ego of Pavone

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Tile. Plaintiffs seek damages and injunctive relief.

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2.

Plaintiffs and Defendant SBCC have reached a Settlement Agreement, Exhibit 3

hereto, the terms of which are incorporated herein by this reference.
3.

Plaintiffs and Defendant SBCC hereby stipulate to the Settlement Agreement and

request that the Court enter the Settlement Agreement’s terms as an Order of the Court.
4.

Pursuant to the Agreement, Plaintiffs and Defendant SBCC stipulate that:
a. Defendant SBCC will pay Plaintiffs $250,000.00 (TWO HUNDRED FIFTY

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THOUSAND DOLLARS AND NO CENTS) in a series of four payments:

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i. $100,000 within 10 days of the execution of the Agreement;

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ii. $50,000 by June 15, 2014;

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iii. $50,000 by September 15, 2014; and

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iv. $50,000 by December 15, 2014.

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b. Upon Defendant SBCC’s payment of the amount provided-for in Paragraph

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4.a.i. above, Plaintiffs will so inform the Court and Plaintiffs’ claims alleged in the Amended

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Complaint against Defendant SBCC will be dismissed without prejudice. Upon payment of all

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amounts provided-for in Paragraph 4.a, Plaintiffs will so inform the court and Plaintiffs’ claims
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Stipulation re Settlement and Dismissal of Defendants SJCC,
Homesite and SBCC and [proposed] ORDER

Case No. 11-CV-3859 DMR

Case4:11-cv-03859-DMR Document118 Filed05/22/14 Page5 of 7

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alleged in the Amended Complaint against Defendant SBCC will thereupon be dismissed with

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prejudice.

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c. With respect to California state law claims asserted in the Amended Complaint,

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the Parties agree that this is a good faith settlement within the meaning of California Code of Civil

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Procedure § 877.

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d. Plaintiffs and Defendant SBCC agree that the Settlement Agreement represents

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a compromise for purposes of settling disputed claims, and is not an admission of wrongdoing,

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fault, liability, or damages by, on behalf of, any Party.

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e. The Court will retain jurisdiction to enforce the terms of the Settlement

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Agreement. If Defendant SBCC does not deliver the above-described checks by the dates above

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(or within such additional time as Plaintiffs may grant in their sole discretion), or if any check is

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not paid by the bank on which it is drawn, then Plaintiffs may, at their sole option, either enforce

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the Agreement through further proceedings in this action or declare the Settlement Agreement to

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be null and void. If Plaintiffs declare the Settlement Agreement to be null and void, they will be

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entitled to pursue the claims asserted against Defendant SBCC in the Amended Complaint without

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limitation. Any litigation for the purposes described in this Paragraph will be governed by Section

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502(g)(2) of ERISA, 29 U.S.C. § 1132(g)(2).

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5.

The Court shall retain jurisdiction to enforce the Settlement Agreement.

Stipulation of Defendant Doug Pavone

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Defendant Doug Pavone stipulates that Plaintiffs’ claims against Defendants SJCC,

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Homesite and SBCC be dismissed on the bases set forth above, and Pavone agrees that each of the

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settlements described above is a good faith settlement within the meaning of California Code of

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///

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//

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/
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Stipulation re Settlement and Dismissal of Defendants SJCC,
Homesite and SBCC and [proposed] ORDER

Case No. 11-CV-3859 DMR

Case4:11-cv-03859-DMR Document118 Filed05/22/14 Page6 of 7

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Civil Procedure § 877 and extinguishes any claim(s) Pavone may have or might assert against the

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settling defendants.

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IT IS SO STIPULATED.

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Dated: May 12, 2014

DAVIS, COWELL & BOWE, LLP
I attest that concurrence in the filing of
this document has been given by each of
the other signatories indicated by a /s/.

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By: /s/ John J. Davis, Jr.
John J. Davis, Jr.
Sarah Grossman-Swenson
Attorneys for Plaintiffs

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Dated: May 12, 2014

MILLER, MORTON, CAILLAT &
NEVIS, LLP

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By: /s/ Daniel J. Nevis
William K. Hurley
Daniel J. Nevis
Attorneys for Defendant San Jose
Construction Co., Inc.

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Dated: May 9, 2014

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GAGAN, McCOY, McMAHON,
KOSS, MARKOWITZ & RAINES

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By:

/s/ Richard Raines

Richard Raines

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Attorneys for Defendant Homesite
Services, Inc.

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Dated: May 12, 2014

SWEENEY, MASON, WILSON &
BOSOMWORTH

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By: /s/ Roger M. Mason
Roger M. Mason
Kristen E. Green
Attorneys for Defendant S.B.C.C., Inc.,
d/b/a South Bay Construction, Inc.

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//
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Stipulation re Settlement and Dismissal of Defendants SJCC,
Homesite and SBCC and [proposed] ORDER

Case No. 11-CV-3859 DMR

Case4:11-cv-03859-DMR Document118 Filed05/22/14 Page7 of 7

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Dated: May 12, 2014

KORNFIELD, NYBERG, BENDES &
KUHNER, P.C.

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By: /s/ Chris D. Kuhner
Chris D. Kuhner
Attorneys for Defendant Doug Pavone

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ORDER
The foregoing stipulation is approved. Accordingly,
IT IS SO ORDERED.

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Dated:__

________, 2014

______________________________
DONNA M. RYU
United States Magistrate Judge

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Stipulation re Settlement and Dismissal of Defendants SJCC,
Homesite and SBCC and [proposed] ORDER

Case No. 11-CV-3859 DMR

Case4:11-cv-03859-DMR Document118-1 Filed05/22/14 Page1 of 26

EXHIBIT 1

Case4:11-cv-03859-DMR Document118-1 Filed05/22/14 Page2 of 26

SETTLEMENT AGREEMENT
PURPOSE

I.

This Settlement Agreement is entered into by and among the following parties:
Plaintiffs: Trustees of the Northern California Tile Industry Pension Trust Fund; Trustees
of the Northern California Tile Industry Health and Welfare Trust Fund; Trustees of the Northern
California Tile Industry Apprenticeship and Training Trust Fund; Trustees of the Northern
California Tile Industry Vacation and Holiday Trust Fund; and Trustees of the Northern
California Tile Industry Labor Management Cooperation Trust Fund (‘Plaintiffs” or “Trustees”),
Defendant: San Jose Construction Co., Inc. (“Defendant” or “51CC”).
The parties have entered into this Settlement Agreement to compromise and settle all of
their differences and claims as described herein. This Settlement Agreement fully resolves and
settles all claims Plaintiffs assert against Defendant 51CC in the action entitled Trustees of the
Northern C’al. Tile Industry Pension Trust fund et at. v. Peacock Tile & Mathte, Inc., Case No.
1 l-cv-03$59-DMR, pending in the United States District Court for the Northern District of
California, the Honorable Magistrate Judge Donna M. Ryu presiding (the “Lawsuit”). This
Agreement does not settle or resolve any of the Trustees’ claims against any other party or
Defendant or any other person or entity that may be liable for the harm alleged in the Lawsuit’s
complaint, excepting Defendant SJCC.
This Settlement Agreement reflects the written agreement and settlement terms to which
Plaintiffs and Defendant SJCC agreed at the March 4, 2014, mediation with Mediator Joseph R.
Grodin, and subsequent discussions between counsel for Plaintiffs and Defendant SJCC.
IL

DEFINITIONS

A.

Agreement.

The “Agreement” refers to this Settlement Agreement.

B.

Plaintiffs.

“Plaintiffs” refers to Trustees of the Northern California Tile
Industry Pension Trust fund; Trustees of the Northern California
Tile Industry Health and Welfare Trust fund; Trustees of the
Northern California Tile Industry Apprenticeship and Training
Trust Fund; Trustees of the Northern California Tile Industry
Vacation and Holiday Trust Fund; and Trustees of the Northern
California Tile Industry Labor Management Cooperation Trust
fund.

C.

Defendant.

Defendant refers to $JCC, also known as San Jose Construction
Co., Inc.

Trustees ofthe Nor. Cat, Tile Industry Trust Funds u. Peacock Tile & Marble, Inc.
Case No. I l-cv-03859-DMR

SJCC Settlement Agreemenr
Page 1 of?

Case4:11-cv-03859-DMR Document118-1 Filed05/22/14 Page3 of 26

D.

E,

The Parties. “The Parties” refers to the parties to this Agreement, namely,
Plaintiffs and Defendant SJCC.

F,

IlL

Other Defendants.

Lawsuit.

“Other Defendants” refers to Defendant
S.B.C.C., Inc,, Defendant Homesite Services Inc.,
Defendant Doug Pavone, and Defendant Pavone Tile &
Marble Co. Inc.

The “Lawsuit” refers to the action entitled Trustees of the Northern
Cal. Tile Industry Pension Trust Fund et al. v. Peacock Tile &
Marbte, Thc., Case No. 1 1-cv-03859-DMR, pending in the United
States District Court for the Northern District of California, the
Honorable Magistrate Judge Donna M. Ryu presiding.

SETTLEMENT CONSIDERATION

In consideration of the mutual agreements and promises of each other, Plaintiffs and
Defendant 53CC hereby agree as follows;
A.

Monetary Payment. Defendant SJCC shall pay Plaintiffs $235,000 (TWO
RUNDRED THIRTY-EWE THOUSAND DOLLARS AND NO CENTS) by
delivering a series of checks, by the dates specified below, to Plaintiffs’ attorneys,
Davis, Cowell & Bowe, LLP. All of the below-described checks shall be made
payable to the “Davis, Cowell & Bowe Trust Account.”
1.

2.

3.

4.

On or before June 1, 2014 or within 10 days of the execution of
this Agreement, whichever is later, Defendant SJCC shall deliver a
check in the amount of $100,000 (ONE HUNDRED THOUSAND
DOLLARS AND NO CENTS). This sum will be held in the
Davis, Cowell & Bowe Trust Account pending the Court’s
approval of the Parties’ Stipulation re Settlement and Dismissal of
SJCC.
By August 15, 2014, Defendant SJCC shall deliver a check in the
amount of $50,000 (FIFTY THOUSAND DOLLARS AND NO
CENTS).
By November 1, 2014, Defendant SJCC shall deliver a check in
the amount of $50,000 (FIfTY THOUSAND DOLLARS AND
NO CENTS).
By January 15, 2015, Defendant SJCC shall deliver a check in the
amount of $35,000 (THIRTY-fWE THOUSAND DOLLARS
AND NO CENTS) to Plaintiffs’ attorneys. Davis, Cowell & Bowe,
LLP.

Trustees of the Nor. Cat. Tile industry Trust Funds v. Peacock Tile & Marble, Inc.
Case No. I I.cv-03859-DMR

SJCC Settlement Agreement
Page 2 of 7

Case4:11-cv-03859-DMR Document118-1 Filed05/22/14 Page4 of 26

B.

C.

Allocation of monies paid. The monies paid by 81CC pursuant to this
Agreement will be allocated as follows:
Fringe Benefit Contributions:
50.2%
$117,970
Liquidated Damages:
10.0%
$23,500
Interest:
15.6%
$36,660
Attorneys’ Fees:
23.2%
$54,520
Auditors’ fees
1.0%
$2,350

D.

Dismissal as to SJCC. In consideration for the settlement payments provided for
herein, upon Defendant SJCC’s payment of the amount provided-for in Paragraph
LILA. I. above, Plaintiffs’ claims against Defendant $JCC will be dismissed
without prejudice. Upon payment of all amounts provided-for in Paragraph lILA,
all of Plaintiffs’ claims against Defendant SJCC alleged in this Action will be
dismissed with prejudice.

E.

IV.

Failure to Deliver Checks. If Defendant SJCC does not deliver the abovedescribed checks by the dates above (or within such additional time as
Plaintiffs may grant in their sole discretion), or if any check is not paid by the
bank on which it is drawn, then Plaintiffs will give notice of default to $JCC’s
attorneys and 81CC wilt have five days within which to cure the default.
Should 83CC not cure the default within five days, I laintiffs may, at their sole
option, either enforce this Agreement through further proceedings in the
Lawsuit or declare this Agreement to be null and void. If Plaintiffs declare this
Agreement to be null and void, they will be entitled to pursue the claims asserted
against Defendant SJCC in the Lawsuit without limitation. Any litigation for the
purposes described in this Paragraph will be governed by Section 502(g)(2) of
ERISA, 29 U.S.C. § I 132(g)(2),

No Admissions. The Parties agree that this Agreement represents a
compromise for the purpose of settling disputed claims, and nothing contained
herein shall be construed as an admission of wrongdoing, fault, liability, or
damages by, on behalf of, or with respect to any Party.

EXECUTION AND FILING OF STIPULATION & PROPOSED ORDER
INCORPORATING SETTLEMENT AGREEMENT
A.

Filing Stipulation & Order; Dismissal as to SJCC. With 15 days after (1)
execution of this Agreement, and (2) confirmation that the $100,000 check
referenced in paragraph ffl.A. 1 has been paid by the bank on which it has been
drawn, Plaintiffs and 51CC will promptly execute and file a Stipulation and Order
with the Court, incorporating the terms of this Settlement Agreement, stipulating

Trustees oft/ic Noi cat. Tile Industry Trust Funds v. Peacock Tile & Marble, Inc.
Case No, 1 l-cv-03559-DMR

$JCC Settlement Agreement
Page 3 of 7

Case4:11-cv-03859-DMR Document118-1 Filed05/22/14 Page5 of 26

to dismissal of the claims asserted against SJCC in the Amended Complaint
Plaintiffs’ claims as provided-for in Paragraph HI. C. above.
B.

C.

V.

Court’s Retention of Jurisdiction. Plaintiffs and SJCC agree and stipulate that
the Court will retain jurisdiction to enforce this Settlement Agreement or for
further proceedings as provided-for in Paragraph ffl.B. above.
Good Faith Settlement. With respect to California state law claims asserted in
the Amended Complaint, the Parties agree that this is a good-faith settlement
within the meaning of California Code of Civil Procedure section 877.

MUTUAL RELEASES
A.

Plaintiffs’ Release. In consideration for entering into this Agreement and upon
receiving the payments provided-for above from Defendant 51CC, Plaintiffs, for
themselves and their co-trustees, successors, agents, attorneys, and
representatives, agree to release Defendant 53CC and its officers, agents,
attorneys and representatives from any and all claims and liability arising from the
acts and events described in the Amended Complaint.

B.

Defendant’s Release. In consideration for entering this Agreement and obtaining
the above release and other consideration, Defendant SJCC and their officers,
directors,-agents, attorneys, and representatives agree to release Plaintiffs and
their heirs, agents, attorneys, officers and representatives from any and all claims
and liability based on events occurring up to the point of signing this Agreement.

C.

Other Defendants. This settlement does not in any way limit Plaintiffs’ rights to
proceed against the Other Defendants, or other individuals or entities that may be
responsible for the harm described in the complaint, excepting Defendant 53CC,
nor does it in any way limit the Plaintiffs’ tights to use the evidence previously
obtained in discovery in this action.

D.

California Civil Code § 1542 Waiver. The Parties acknowledge and agree that
the mutual general releases contained in Section V.A and B, above apply to all
claims for damages, losses, restitution, or injunction, whether known or unknown,
which Plaintiffs may have against Defendant S3CC or which Defendant SJCC
may have against Plaintiffs arising from the acts and events described in the
Amended Complaint. Plaintiffs and Defendant SJCC hereby waive application of
Cal. Civil Code § 1542, which provides that:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH
THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS
OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE,

Trustees of the Noi Cat. Tile industry Trust Funds v. Peacock Tile & Marble, inc.
Case No. I l-cv-03859-DMR

SJCC Sett1ment Agreement
Page 4 of 7

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WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERJALLY
AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
VI.

CONFIDENTIALITY AND PRIVILEGE. WAIVERS
A.

B.

VII.

Mediation Confidentiality/Privilege, In accord with the Confidentiality
Agreement the Parties signed at mediation, the Parties agree to waive any
mediation confidentiality or privilege, including Federal Rule of Evidence 408, to
the extent necessary for enforcing the terms of this Settlement Agreement.

Admissibility of Settlement Agreement. This Settlement Agreement shall be
admissible in a court of law or other proceeding.

MISCELLANEOUS PROVISIONS
A.

Warranty of Authority. Each Party who executes this Agreement warrants that
he or she has the authority to bind the person or entity on whose behalf he or she
signs and that he or she is authorized to sign on behalf of the principal.

B.

Right to Consult Attorney. Each Party acknowledges that each of them has read
this Agreement and has had the opportunity to consult with attorneys as to the
meaning and legal effect of the Agreement.

C.

Voluntary Execution of Agreement. The Parties acknowLedge, agree and
understand that each of them executes this Agreement voluntarily and without any
duress or undue influence on the part of, or on behalf of, any person or entity; and
that no promise, inducement or agreement not expressed herein has been made to
the others.

D.

Acts in Furtherance of this Agreement. The Parties agree to execute, deliver
and, where appropriate, file any and all documents required to carry out this
Agreement.

E.

Mutual Drafting. This Agreement is the product of negotiations and preparation
by and among the Parties and their respective counsel. The Parties agree that this
Agreement shall not be deemed prepared or drafted by one Party or another, or by
one Party’s or anothers attorneys. The language of this Agreement shall be
construed according to its fair meaning, and not strictly for or against any of the
Parties. The Parties expressly waive the provisions of Cat. Civ. Code § 1654.

F.

AppLicable Law. This Agreement shall be construed and enforced in accordance
with the laws of the United States and, where applicable, California law,

Trustees of the Nor, eat. Tile industry Trust Funds v, Peacock Tile & Marble, Inc.
Case No. I I-cv-03859-DMR

SJCC Settlement Agreement
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G.

Costs and Fees. Plaintiffs and Defendant SJCC shafl each bear their own costs
and attorneys’ fees arising from or related to the Action, except as allocated in
Paragraph LLLC. above and except in the case of breach by 33CC. This
Agteement does not release anyone other than the PartIes to this Agreement from
liability far Plaintiffs’ costs or attorneys’ fees

H

Execution in Counterparts; Facsimile Signatures. This Agreement may be
executed in one or more duplicate counterparts, all of which taken together shall
constitute the complete Agreement. A faxed signature shall have the same force
and effect as an original signature.

FOR PLAINTIFFS:

Dated: May

/

,

2014

Trustees of the Northern California Tile
Industry Fe at
at Fund
By:
Tommy Conner, Trustee
On b a] of all the Fund’s Trustees
.

By:
David Jacksonk,Tmst91e
On behalf of all th-F6und’s Trustees.
Dated: May

2014

Trustees of the Northern California Tile
Hea1fare Trust Fund
::“

Tommy A. Conner, Trustee
Ofl%f all the Fund’s Trustees
By
DaVid Jackso
On behalf of
Dated: May

Y’,20 14

,

Trust e
the und’s Trustees

Trustees of the N era California Tile
App<ce
and Training Trust Fund
::115t

Tommy A Conner, Trustee
On
f al the fund’ Trustees
By
David ackso Trust e
On behalf of
h und’s Trustees
Trustees of the Nor, Cal. Tite lndust,y Trust Funds i’. Peacock Tile & Marble, hic,
Case No, 11-cv-03859-DMR

SJCC SetUemerit Agreement

Page 6 of 7

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Dated: May

2014

Trustees of the Northern California Tile
Industry Vaeat’ and Holiday Trust Fund
By:
T&iS’ Conner, Trustee
On b
f F
the Fund’s Trustees
David acks n, Tm tee
On behalf of
Fund’s Trustees

Dated: May

2014

Trustees of the Northern California Tile
Industry Labment Cooperation Trust Fund
Tommy Conner, Trustee
On be al of 1 the Fund’s Trustees
.

By:
David ackso Trus e
On behalf of al
und’s Trustees
,

Dated: May I

2014

,

DAVIS, COWELL & BOWE, LLP
By:
John 3/Davis, Jr/
Attones for Pltzindff Trustee

FOR rg13’ENDANT;
Dated: May 2

Dated: May

,

2014

2014

Attorneys for Defendant SJCC

Tntsrees of the Nor, C’at. Tite l;idusrry Trust Ftuids v. Peacock Tile & Marble, Inc.
Cne No. I t-cv-03859-DMR

SJCC Settlement Agreement
Page 7 of 7

Case4:11-cv-03859-DMR Document118-1 Filed05/22/14 Page9 of 26

EXHIBIT 2

Case4:11-cv-03859-DMR Document118-1 Filed05/22/14 Page10 of 26

SETTLEMENT AGREEMENT
I.

PURPOSE
This Settlement Agreement is entered into by and among the following parties:

Plaintiffs: Trustees of the Northern California Tile Industry Pension Trust Fund; Trustees
of the Northern California Tile Industry Health and Welfare Trust Fund; Trustees of the Northern
California Tile Industry Apprenticeship and Training Trust fund; Trustees of the Northern
California Tile Industry Vacation and Holiday Trust Fund; and Trustees of the Northern
California Tile Industry Labor Management Cooperation Trust Fund (“Plaintiffs” or “Trustees”).
Defendant: Homesite Services, Inc. (“Defendant” or “Homesite”).
The parties have entered into this Settlement Agreement to compromise and settle all of
their differences and claims as described herein. This Settlement Agreement fully resolves and
settles all claims Plaintiffs asserted or could have asserted against Defendant Homesite in the
action entitled Trustees of the Northern C’at. Tile Industry Pension Trust Fund et at. v. Peacock
Tile & Marble, Inc., Case No. 1 l-cv-03859-DMR, pending in the United States District Court for
the Northern District of California, the Honorable Magistrate Judge Donna M. Ryu presiding
(the “Lawsuit”). This Agreement does not settle or resolve any of the Trustees’ claims against
any other party or Defendant or any other person or entity that may be liable for the harm alleged
in the Lawsuit’s complaint, excepting Defendant Homesite.

II.

DEHMTIONS
A.

Agreement.

The “Agreement” refers to this Settlement Agreement.

3.

Plaintiffs.

“Plaintiffs” refers to Trustees of the Northern California Tile
Industry Pension Trust Fund; Trustees of the Northern California
Tile Industry Health and Welfare Trust Fund; Trustees of the
Northern California Tile Industry Apprenticeship and Training
Trust Fund; Trustees of the Northern California Tile Industry
Vacation and Holiday Trust Fund; and Trustees of the Northern
California Tile Industry Labor Management Cooperation Trust
Fund.

C.

Defendant.

Defendant refers to Homesite Services, Inc.

D.

Other Defendants.

“Other Defendants” refers to Defendant

Trustees of the Nor. Cal. Tile Industry Trust funds v.
Peacock Tile & jWarble, Inc.
Case No. 1 1-cv-03859-DMR

Homesite Settlement Agreement
Page 1 of 6

Case4:11-cv-03859-DMR Document118-1 Filed05/22/14 Page11 of 26

San Jose Construction Co. Inc., Defendant S.B.C.C. Inc.,
Defendant Doug Pavone, and Defendant Pavone Tile &
Marble Co. Inc.
E.

F.

III.

The Parties. “The Parties” refers to the parties to this Agreement, namely,
Plaintiffs and Defendant Homesite.
Lawsuit.

The “Lawsuit” refers to the action entitled Trustees of the Northern
C’at. Tile Industry Pension Trust Fund et at. v. Peacock Tile &
Marble, Inc., Case No. 1 1-cv-03859-DMR, pending in the United
States District Court for the Northern District of California, the
Honorable Magistrate Judge Donna M. Ryu presiding.

SETTLEMENT CONSIDERATION

In consideration of the mutual agreements and promises of each other, Plaintiffs and
Defendant Homesite hereby agree as follows:
A.

Monetary Payment. Defendant Homesite shall pay Plaintiffs $107,000 (ONE
HUNDRED AND SEVEN THOUSAND DOLLARS AND NO CENTS) by wire
transfer within seven (7) days after Plaintiffs provide Defendant Homesite’s
attorneys with a copy of this Agreement, executed by Plaintiffs and their
attorneys. Defendant Homesite will make the wire transfer to Plaintiffs’
attorneys’ trust account, the “Davis, Cowell & Bowe Trust Account.” Plaintiffs’
attorneys will provide wire-transfer instructions Homesite’s attorneys before this
Agreement is executed.

B.

Failure to Deliver Checks. If Defendant Homesite does not make the abovedescribed wire-transfer payment within the time provided-for above (or within
such additional time as Plaintiffs may grant in their sole discretion), then
Plaintiffs may, at their sole option, either enforce this Agreement through
further proceedings in the Lawsuit or declare this Agreement to be null and
void, if Plaintiffs declare this Agreement to be null and void, they will be entitled
to pursue the claims asserted against Defendant Homesite in the Lawsuit without
limitation.

C.

Dismissal as to Homesite. In consideration for the settlement payments provided
for herein, within seven (7) days after confirmation that the $107,000 check
referenced in paragraph ffl.A has been paid by the bank on which it has been
drawn, pursuant to F.R.C.P. 41(a)(l)(ii), the Parties will stipulate to a dismissal
with prejudice against Defendant Homesite. The Parties and their counsel will
cooperate fully and sign all appropriate documents to effectuate such a dismissal
with prejudice.

Trustees of the Nor. C’al. Tile Industry Trust Funds v.
Peacock Tile & Marble, Inc.

Case No. 1 1-cv-03859-DMR

Homesite Settlement Agreement
Page 2 of 6

Case4:11-cv-03859-DMR Document118-1 Filed05/22/14 Page12 of 26

D.

IV.

GOOD FAITH SETTLEMENT
A.

V.

No Admissions. The Parties agree that this Agreement represents a
compromise for the purpose of settling disputed claims, and nothing contained
herein shall be construed as an admission of wrongdoing, fault, liability, or
damages by, on behalf of, or with respect to any Party.

Good Faith Settlement. With respect to California state law claims asserted in
the Amended Complaint, the Parties agree that this is a good-faith settlement
within the meaning of California Code of Civil Procedure § $77.

MUTUAL RELEASES
A.

Plaintiffs’ Release. In consideration for entering into this Agreement and upon
receiving the payments provided-for above from Defendant Homesite, Plaintiffs,
for themselves and their co-trustees, successors, agents, attorneys, and
representatives, agree to release Defendant Homesite and its officers, agents,
attorneys and representatives from any and all claims and liability arising out of
or related to the acts and events described in the Amended Complaint.

B.

Defendant’s Release. In consideration for entering this Agreement and obtaining
the above release and other consideration, Defendant Homesite and their officers,
directors,-agents, attorneys, and representatives agree to release Plaintiffs and
their heirs, agents, attorneys, officers and representatives from any and all claims
and liability based on events occurring up to the point of signing this Agreement.

C.

Other Defendants. This settlement does not in any way limit Plaintiffs’ rights to
proceed against the Other Defendants, or other individuals or entities that may be
responsible for the harm described in the complaint, excepting Defendant
Homesite, nor does it in any way limit the Plaintiffs’ rights to use the evidence
previously obtained in discovery in this action.

D.

California Civil Code § 1542 Waiver. The Parties acknowledge and agree that
the mutual general releases contained in Section V.A and B, above apply to all
claims for damages, losses, restitution, or injunction, whether known or unknown,
which Plaintiffs may have against Defendant Homesite, or which Defendant
Homesite may have against Plaintiffs arising from the acts and events described in
the Amended Complaint. Plaintiffs and Defendant Homesite hereby waive
application of Cal. Civil Code § 1542, which provides that:

Trustees oft/ic Nor. eat. Tile Industry Trust funds v.
Peacock Tile & Marble, Inc.
Case No. 1 l-cv-03859-DMR

Homesite Settlement Agreement
Page 3 of 6

Case4:11-cv-03859-DMR Document118-1 Filed05/22/14 Page13 of 26

A GENERAL RELEASE DOES NOT EXTEND TO CLAiMS WHICH
THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS
OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY
AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
VI.

CONFIDENTIALITY AND PRIVILEGE WAIVERS
A.

B.

VII.

Mediation Confidentiality/Privilege. In accord with the Confidentiality
Agreement the Parties signed at mediation, the Parties agree to waive any
mediation confidentiality or privilege, including Federal Rule of Evidence 402, to
the extent necessary for enforcing Ihe terms of this Settlement Agreement.
Admissibility of Settlement Agreement. This Settlement Agreement shall be
admissible in a court of law or other proceeding.

MISCELLANEOUS PROVISIONS
A.

Warranty of Authority. Each Party who executes this Agreement warrants that
he or she has the authority to bind the persons or entities on whose behalf he or
she signs and that he or she is authorized to sign on behalf of the principal.

B.

Right to Consult Attorney. Each Party acknowledges that each of them has read
this Agreement and has had the opportunity to consult with attorneys as to the
meaning and legal effect of the Agreement.

C.

Voluntary Execution of Agreement. The Parties acknowledge, agree and
understand that each of them executes this Agreement voluntarily and without any
duress or undue influence on the part of, or on behalf of, any person or entity; and
that no promise, inducement or agreement not expressed herein has been made to
the others.

D.

Acts in Furtherance of this Agreement. The Parties agree to execute, deliver
and, where appropriate, file any and all documents required to carry out this
Agreement.

E.

Mutual Drafting. This Agreement is the product of negotiations and preparation
by and among the Parties and their respective counsel. The Parties agree that this
Agreement shall not be deemed prepared or drafted by one Party or another, or by
one Party’s or another’s attorneys. The language of this Agreement shall be
construed according to its fair meaning, and not strictly for or against any of the
Parties. The Parties expressly waive the provisions of Ca[. Civ. Code § 1654.

Trustees of the Nor. Cat. Tile Industry Trust funds v.
Peacock Tile & Marble, Inc.
Case No. tl-cv-03859-DMR

Homesite Settlement Agreement
Page 4 of 6

Case4:11-cv-03859-DMR Document118-1 Filed05/22/14 Page14 of 26

F.

Applicable Law. This Agreement shall be construed and enforced in accordance
with the laws of the United States and, where applicable, California law.

G.

Costs and Fees. Plaintiffs and Defendant Homesite shall each bear their own
costs and attorneys’ fees arising from or related to the Action, except in the case
of breach by Homesite. This Agreement does not release anyone other than the
Parties to this Agreement from liability for Plaintiffs’ costs or attorneys’ fees

H.

Execution in Counterparts; Facsimile Signatures. This Agreement may be
executed in one or more duplicate counterparts, all of which taken together shall
constitute the complete Agreement. A faxed signature shall have the same force
and effect as an original signature.

FOR PLAINTIFFS:
Dated: May

tj

/

,

2014

Trustees of the Northern California Tile
Industry Pension Trust fund
By:
Tommy A. Conner, Trustee
On b
of all the fund’s Trustees
By___
On behalf of

Dated: May

1, 2014

Fund’s Trustees

Trustees of the Northern California Tile
Industry Health and Welfare Trust Fund
By:
Tommy A. Conner, Trustee
On beh
f all the Fund’ Trustees
By:
Davi ackso ,T tee
On behalf of
e Fund’s Trustees

Dated: May

,

2014

Trustees of the Northern California Tile
Industry Apprenticeship and Training Trust Fund
By:
Tommy A. Conner, Trustee
On be
of all the Fund’s Trustees
By:

Trustees of the Nor.

cat Tile Industry Trust funds v.

Peacock Tile & Marble, Inc.
Case No. I I-cv-03859-DMR

Home ite Settlement Agreement
Page 5 of 6

Case4:11-cv-03859-DMR Document118-1 Filed05/22/14 Page15 of 26

F.

Applicable Law. This Agreement shall be construed and enforced in accordance
with the laws of the United States and, where applicable, California Jaw.

G.

Costs and Fees. Plaintiffs and Defendant Homesite shall each bear their own
costs and attorneys’ fees arising from or related to the Action, except in the case
of breach by Homesite. This Agreement does not release anyone other than the
Parties to this Agreement from liability for Plaintiffs’ costs or attorneys’ fees

H.

Execution in Counterparts; facsimile Signatures. This Agreement may be
executed in one or more duplicate counterparts, all of which taken together shall
constitute the complete Agreement. A faxed signature shall have the same force
and effect as an original signature.

FOR PLAINTIFFS:
Dated: May

,2014

Trustees of the Northern California Tile
Industry Pnsi Trust Fund
By

1;Tommy A. Conner, Trustee
On behalf of all the Fund’s Trustees

By:
David Jackson, Trustee
On behalf of all the Fund’s Trustees
Dated: May

2014

Trustees of the Ncrthn California Tile
Industry F akha-Welfare Trust Fund
By:

Tof1y A. Conner, Trustee
On behalf of all the Fund’s Trustees
By:

David Jackson, Trustee
On behalf of all the Fund’s Trustees
Dated: May

,

2014

Trustees of the Northern California Tile
Industry Apprentjsh$p and Training Trust fund
By:
Tomf A. Conner, Trustee
On behalf of aH the Fund’s Trustees
By:

Trustees of the Nor. CaL Tile !ndustiy Trust funds v.
Peacock Tite & Alarbie, Inc.
Case No. 1 1cvO3859-DMR

Homeske SetUernent Agreement
Page 5 of 6

Case4:11-cv-03859-DMR Document118-1 Filed05/22/14 Page16 of 26

Dated: May

2014

David Jackson, Trustee
On behalf of all the fund’s Trustees
Trustees of the Northern California Tile
Industry Vacation and Holiday Trust Fund
By:
Tommy A. Conner, Trustee
On beh of all the Fund’s Trustees
By:

David Jack on, Tnis e
On behalf o it
und’s Trustees
Dated: May

9,

2014

Trustees of the Northern California Tile
Industry Labor Management Cooperation Trust Fund
By:
Tommy A. Conner, Trustee
On beb of all the fund’s Trustees
By
On behalf of all

Dated: May

,

2014

DAVIS, COWELL & BOW

und’s Trustees
,

LP

By:
A2nmSe7
FOR DEFENDANTS:
Dated: May

2014

Homesite Services, Inc.
By:
[Name]
President

Dated: May

.2014

GAGEN MCCOY, MCMAHON, KOSS,
MARKOWrrZ & RANES, A.P.C.
By:
Richard Raines
Attorneys for Defendant Homesite
Services, Inc.

Trustees of the Nor. C’at. Tile Industry Trust funds v.
Peacock Tile & Marble, Inc.
Case No. 1 1-cv-03859-DMR

Homesite Settlement Agreement
Page 6 of 6

Case4:11-cv-03859-DMR Document118-1 Filed05/22/14 Page17 of 26

Dated: May

Da’vid Jackson, Trustee
On behalf of all the Fund’s Trustees
Trustees of the Northern California Tile
Indust1yViG?Ho1iday Trust Fund

2014

‘__,

By:

.Z1)

T-Conner, Trustee
On behalf of all the Fund’s Trustees
By:
David Jackson, Trustee
On behalf of all the Fund’s Trustees
Dated: May

Trustees of the Northern California Tile
gement Cooperation Trust Fund
Industry Lab

2014

°‘

By:

_-

Tommy A. Conner, Trustee
On behalf of atl the Fund’s Trustees
By:

David Jackson, Trustee
On behalf of all the FuncPs Trustees
Date± May

,

DAVIS, COWELL & BOW

2014

By:

FOR DEFENDANTS:
Dated: May

1 ‘3

,

Homesite Se

2014

ces,

[Name] tt

[e.Aet

President

GAGEN MCCOY, MCMAHON, KOSS,
MARKOZcTh, A.P.C.

Dated: May____ 2014

Richard Raines
Attorneys for Defendant Homesite
Services, Inc.

TrusteEs of tilE Nor. aL The Industry Trust Funds
Peacock Tile & Marble, Inc.

Case No. tl-cv-O3H59DMR

i’.

Homesite Settlement Agreement
Page 6 of 6

Case4:11-cv-03859-DMR Document118-1 Filed05/22/14 Page18 of 26

EXHIBIT 3

Case4:11-cv-03859-DMR Document118-1 Filed05/22/14 Page19 of 26

SETTLEMENT AGREEMENT
I.

PURPOSE
This Settlement Agreement is entered into by and among the following parties:

Plaintiffs: Trustees of the Northern California Tile Industry Pension Trust Fund; Trustees
of the Northern California Tile Industry Health and Welfare Trust Fund; Trustees of the Northern
California Tile Industry Apprenticeship and Training Trust Fund; Trustees of the Northern
California Tile Industry Vacation and Holiday Trust Fund; and Trustees of the Northern
California Tile Industry Labor Management Cooperation Trust Fund (“Plaintiffs” or “Trustees”).
Defendant: S.B.C.C. Inc. dTh/a South Bay Construction Inc. (“Defendant” or “SBCC”).
The parties have entered into this Settlement Agreement to compromise and settle all of
their differences and claims as described herein. This Settlement Agreement fuiiy resolves and
settles all claims Plaintiffs assert against Defendant SBCC in the action entitled Trustees of the
Northern Cal. Tile Industry Pension Trust fund et at. v. Peacock Tile & Marble, Inc., Case No.
1 1-cv-03$59-DMR, pending in the United States District Court for the Northern District of
California, the Honorable Magistrate Judge Donna M. Ryu presiding (the “Lawsuit”). This
Agreement does not settle or resolve any of the Trustees’ claims against any other party or
Defendant or any other person or entity that may be liable for the harm alleged in the Lawsuit’s
complaint, excepting Defendant SBCC.
This SettLement Agreement reflects the written agreement and settlement terms to which
Plaintiffs and Defendant $BCC agreed at the March 4, 2014, mediation with Mediator Joseph R.
Grodin, and subsequent discussions between counsel for Plaintiffs and Defendant SBCC.
IL

DEFIMTIONS
A.

Agreement.

The “Agreement” refers to this Settlement Agreement.

B.

Plaintiffs.

“Plaintiffs” refers to Trustees of the Northern California Tile
Industry Pension Trust Fund; Trustees of the Northern California
Tile Industry Health and Welfare Trust Fund; Trustees of the
Northern California Tile Industry Apprenticeship and Training
Trust Fund; Trustees of the Northern California Tile Industry
Vacation and Holiday Trust Fund; and Trustees of the Northern
California Tile Industry Labor Management Cooperation Trust
fund.

C.

Defendant.

Defendant refers to S.B.C.C., Inc., also known as South Bay
Construction Company.

Trustees of the Nor, Cat. Tile !ndustiy Trust Funds v. Peacock Tile & Marbte, Inc.
Case No. I 1-cvM3859-DMR

SBCC Settlement Agreement
Page 1 of 7

Case4:11-cv-03859-DMR Document118-1 Filed05/22/14 Page20 of 26

“Other Defendants” refers to Defendant
San Jose Construction Co. The., Defendant Homesite
Services Inc., Defendant Doug Pavone, and Defendant
Pavone Tile & Marble Co. Inc.

D.

Other Defendants.

E.

The Parties. “The Parties” refers to the parties to this Agreement, namely,
Plaintiffs and Defendant $BCC.

F.

Lawsuit.

The “Lawsuit” refers to the action entitled Trustees of the Northern
Cat. Tile Industry Pension Trust Fund et at. v. Peacock Tile &

Marble, Inc., Case No. 1 1-cv-03859-DMR, pending in the United
States District Court for the Northern District of California, the
Honorable Magistrate Judge Donna M. Ryu presiding.
III.

SETTLEMENT CONSIDERATION

In consideration of the mutual agreements and promises of each other, Plaintiffs and
Defendant SBCC hereby agree as follows:
A.

Monetary Payment. Defendant SBCC shall pay Plaintiffs $250,000 (TWO
HUNDRED FIFTY THOUSAND DOLLARS AND NO CENTS) by delivering a
series of checks, by the dates specified below, to Plaintiffs’ attorneys, Davis,
Cowell & Bowe, LLP. Mi of the below-described checks shall be made payable
to the “Davis, Cowell & Bowe Trust Account.”
1.

2.

3.

4.

Within 10 days of the execution of this Agreement, Defendant
SBCC shall deliver a check in the amount of $100,000 (ONE
HUNDRED THOUSAND DOLLARS AND NO CENTS). This
sum will be held in the Davis, Cowell & Bowe Trust Account
pending the Court’s approval of the Parties’ Stipulation re
Settlement and Dismissal of SBCC.
By June 15, 2014, Defendant SBCC shall deliver a check in the
amount of $50,000 (FIFTY THOUSAND DOLLARS AND NO
CENTS).
By September 15, 2014, Defendant $BCC shall deliver a check in
the amount of $50,000 (FiFTY THOUSAND DOLLARS AND
NO CENTS).
By December 15, 2014, Defendant SBCC shall deliver a check in
the amount of $50,000 (FIFI’Y THOUSAND DOLLARS AND
NO CENTS) to Plaintiffs’ attorneys, Davis, Cowell & Bowe, LLP.

Trustees of the Nor. cal. Tile industry Trust Funds v. Peacock Tile & Marble, Inc.
Case No. I 1-cv-03859-DMR

53CC Settlement Agreement
Page 2 of 7

Case4:11-cv-03859-DMR Document118-1 Filed05/22/14 Page21 of 26

B.

C.

Allocation of monies paid. The monies paid by $BCC pursuant to this
Agreement will be allocated as follows:
Fringe Benefit Contributions:
50.2%
$125,500
Liquidated Damages:
10.0%
$25,000
Interest:
15.6%
$39,000
Attorneys’ Fees:
23.2%
$58,000
Auditors’ Fees
1.0%
$2,500

D.

Dismissal as to SBCC. in consideration for the settlement payments provided for
herein, upon Defendant SBCC’s payment of the amount provided-for in
Paragraph ffl.A. 1. above, Plaintiffs’ claims against Defendant SBCC will be
dismissed without prejudice. Upon payment of all amounts provided-for in
Paragraph lILA, all of Plaintiffs’ claims against Defendant 53CC alleged in this
Action will be dismissed with prejudice.

E.

IV.

Failure to Deliver Checks. If Defendant SBCC does not deliver the abovedescribed checks by the dates above (or within such additional time as
Plaintiffs may grant in their sole discretion), or if any check is not paid by the
bank on which it is drawn, then Plaintiffs will give notice of default to SBCC’s
attorneys and SBCC will have five days within which to cure the default.
Should SBCC not cure the default within five days, Plaintiffs may, at their sole
option, either enforce this Agreement through further proceedings in the
Lawsuit or declare this Agreement to be null and void. if Plaintiffs declare this
Agreement to be null and void, they will be entitled to pursue the claims asserted
against Defendant SBCC in the Lawsuit without limitation. Any litigation for the
purposes described in this Paragraph will be governed by Section 502(g)(2) of
ERISA, 29 U.S.C. § 1132(g)(2).

No Admissions. The Parties agree that this Agreement represents a
compromise for the purpose of settling disputed claims, and nothing contained
herein shall be construed as an admission of wrongdoing, fault, liability, or
damages by, on behalf of, or with respect to any Party.

EXECUTION AND FILING OF STIPULATION & PROPOSED ORDER
INCORPORATING SETTLEMENT AGREEMENT
A.

Filing Stipulation & Order; Dismissal as to SBCC. With 15 days after (1)
execution of this Agreement, and (2) confirmation that the $100,000 check
referenced in paragraph ffl.A. 1 has been paid by the bank on which it has been
drawn, Plaintiffs and SBCC will promptly execute and file a Stipulation and
Order with the Court, incorporating the terms of this Settlement Agreement,
stipulating to dismissal of the claims asserted against SBCC in the Amended
Complaint Plaintiffs’ claims as provided-for in Paragraph ifi. C. above.

Trustees of the Nor. cat. Tile Industry Trust funds v. Peacock Tile & Marble, Inc.
Case No. 11-cv-O3859DMR

SBCC Settlement Agreement
Page 3 of 7

Case4:11-cv-03859-DMR Document118-1 Filed05/22/14 Page22 of 26

B.

C.

V.

Court’s Retention of Jurisdiction. Plaintiffs and SBCC agree and stipulate that
the Court will retain jurisdiction to enforce this Settlement Agreement or for
further proceedings as provided-for in Paragraph IILB. above.
Good Faith Settlement. With respect to California state law claims asserted in
the Amended Complaint, the Parties agree that this is a good-faith settlement
within the meaning of California Code of Civil Procedure section $77.

MUTUAL RELEASES
A.

Plaintiffs’ Release. In consideration for entering into this Agreement and upon
receiving the payments provided-for above from Defendant SBCC, Plaintiffs, for
themselves and their co-trustees, successors, agents, attorneys, and
representatives, agree to release Defendant SBCC and its officers, agents,
attorneys and representatives from any and all claims and liability arising from the
acts and events described in the Amended Complaint.

B.

Defendant’s Release. In consideration for entering this Agreement and obtaining
the above release and other consideration, Defendant SBCC and their officers,
directors,-agents, attorneys, and representatives agree to release Plaintiffs and
their heirs, agents, attorneys, officers and representatives from any and all claims
and liability based on events occurring up to the point of signing this Agreement.

C.

Other Defendants. This settlement does not in any way limit Plaintiffs’ rights to
proceed against the Other Defendants, or other individuals or entities that may be
responsible for the harm described in the complaint, excepting Defendant SBCC,
nor does it in any way limit the Plaintiffs’ rights to use the evidence previously
obtained in discovery in this action.

D.

California Civil Code § 1542 Waiver. The Parties acknowledge and agree that
the mutual general releases contained in Section V.A and 3, above apply to all
claims for damages, losses, restitution, or injunction, whether known or unknown,
which Plaintiffs may have against Defendant $BCC, or which Defendant SBCC
may have against Plaintiffs arising from the acts and events described in the
Amended Complaint. Plaintiffs and Defendant 53CC hereby waive application
of Cal. Civil Code § 1542, which provides that:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH
THE CREDiTOR DOES NOT KNOW OR SUSPECT TO EXIST N HIS
OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY
AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.

Trustees of the iVor. C’at. Tile Industry Trust Funds v. Peacock Tile & Marble, Inc.
Case No. I 1-cv-03859-DMR

SBCC Settlement Agreement
Page 4 of 7

Case4:11-cv-03859-DMR Document118-1 Filed05/22/14 Page23 of 26

VI.

CONFIDENTIALITY AND PRIVILEGE WAIVERS
A.

B.

VII.

Mediation Confidentiality/Privilege. In accord with the Confidentiality
Agreement the Parties signed at mediation, the Parties agree to waive any
mediation confidentiality or privilege, including Federal Rule of Evidence 408, to
the extent necessary for enforcing the terms of this Settlement Agreement.
Admissibility of Settlement Agreement. This Settlement Agreement shall be
admissible in a court of law or other proceeding.

MISCELLANEOUS PROVISIONS
A.

Warranty of Authority. Each Party who executes this Agreement warrants that
he or she has the authority to bind the person or entity on whose behalf he or she
signs and that he or she is authorized to sign on behalf of the principal.

B.

Right to Consult Attorney. Each Party acknowledges that each of them has read
this Agreement and has had the opportunity to consult with attorneys as to the
meaning and legal effect of the Agreement.

C.

Voluntary Execution of Agreement. The Parties acknowledge, agree and
understand that each of them executes this Agreement voluntarily and without any
duress or undue influence on the part of, or on behalf of, any person or entity; and
that no promise, inducement or agreement not expressed herein has been made to
the others.

U.

Acts in Furtherance of this Agreement. The Parties agree to execute, deliver
and, where appropriate, file any and all documents required to carry out this
Agreement.

E.

Mutual Drafting. This Agreement is the product of negotiations and preparation
by and among the Parties and their respective counsel. The Parties agree that this
Agreement shall not be deemed prepared or drafted by one Party or another, or by
one Party’s or another’s attorneys. The language of this Agreement shall be
construed according to its fair meaning, and not strictly for or against any of the
Parties. The Parties expressly waive the provisions of Cal. Civ. Code § 1654.

F.

Applicable Law. This Agreement shall be construed and enforced in accordance
with the laws of the United States and, where applicable, California law.

G.

Costs and Fees. Plaintiffs and Defendant SBCC shall each bear their own costs
and attorneys’ fees arising from or related to the Action, except as allocated in
Paragraph III.C. above, and except in the case of breach by SBCC. This

Trustees of the Nor. C’at. Tile Industry Trust funds v. Peacock Tile & Marble, Inc.
Case No. 11cv-O3859-DMR

SBCC Settlement Agreement
Page 5 of 7

Case4:11-cv-03859-DMR Document118-1 Filed05/22/14 Page24 of 26

Agreement does not release anyone other than the Parties to this Agreement from
liability for Plaintiffs’ costs or attorneys’ fees
IL

Execution in Counterparts; FacsImile Signatures. This Agreement may be
executed in one or more duplicate counterparts, all of which taken together shall
constitute the complete Agreement. A faxed signature shall have the same force
and effect as an original signature.

FOR PLAINTIFFS:
Dated: May

/

,

2014

Trustees of the Northern California Tile
Industry Pnsio1rustFund

By:
Tommy Conner, Trustee
On be f fall the F nd’s Trustees
By:

David Jackso Trust
On behalf of the und’s Trustees
Dated: May

/

,

2014

Trustees of the Northern California Tile
Industry I a1aid Welfare Trust Fund

By
Tommy A onner, Trustee
On beb o all the Fu d’s rustees
By:
David Jackson Tnzste
On behalf of al the F d’s Trustees
Dated: May

/

,

2014

Trustees of the Nortjn California Tile
Industry Apprentfcsfrp andjra;rnng Trust fund
By

Tomthy . Conner, Trustee
On b
f f Lb
rid’ Trustees
By:

David Jacksoif. Trus e
On behalf of th und’s Trustees

Trustees of the Nor. Cal. Tile twtusrsy Trast Fiends ‘. Peacock Tile

Case Nc. ii cv.O3359DMR

Mathie, Inc.

SBCC Seulernenl Agrecmnt
Page of 7

Case4:11-cv-03859-DMR Document118-1 Filed05/22/14 Page25 of 26

Dated: May

/

,

2014

Trustees of the Nrthem California Tile
Industry Vction and Holiday Trust fund
By:
Tommy Conner, Trustee
dees
On,%th
David Jacksor%’Trus
On behalf of at the und’s Trustees

Dated: May

/, 2014

Trustees of the Northern California Tile
Cooperation Trust Fund
Industry
H - /
By:
Tommy A. Conner, Trustee
On behalf fail the Fund’s Trustees

By:

David Jackso ,Trust e
On behalf of the und’s Trustees

Dated: April

,

2014

DAVIS, COWELL & 3OWE,
By:

P

( /
Iohn. Davis, J
Atto(neys for Plaintiff Trustees

FOR DEFENDANT:
S.B.C.C., Inc., dlbfa South
Bay Construction, Inc.

Dated: May

By:

Richard furtado
President
Dated: May

,2014

SWEENEY, MASON, WILSON &
BOSOM WORTH, P.L.C.

By:
Roger Mason
Attorneys for Defendant SBCC

Thisrees of the Nor, Cal. Tile lndusriy Tru.cr Ftnds v. Peacock Tik & Atarbk, Inc.
Case No. I 1-cv-O35-DMR

SBCC Seuhmont Arcerntnt
Pag7 otl

Case4:11-cv-03859-DMR Document118-1 Filed05/22/14 Page26 of 26

2014

Date± May

Trustees of the Northern California Tile
Industry Vacation and Holiday Trust Fund
By:
Tommy A. Conner, Trustee
On behalf of all the Fund’s Trustees
By:
David Jackson, Trustee
On behalf of all the Fund’s Trustees

Dated: May

,

2014

Trustees of the Northern California Tile
Industry Labor Management Cooperation Trust Fund
By:
Tommy A. Conner, Trustee
On behalf of all the Fund’s Trustees
By:
David Jackson, Trustee
On behalf of all the Fund’s Trustees

Dated: April

5

.

2014

DAVIS, COWBLL & BOWE

‘By:

P

di1L
Johnft. Davis, 3.
Attorneys for Plaintiff Trustees

FOR DEFENDANT:
Dated: May

Dated: May

1

2014

Trustees of the Nor. Cat. Tile Industiy Trust Funds v. Peacock Tile & Marble, Inc.
Case No. 1 1-cv-03859-DMR

SBCC Settlement Agreement
Page 7 of 7