Bricklayers Local No. 3 Pension Trust and its Board of Trustees et al v. Pete Wismann Masonry, Inc.

Filing 17

ORDER by Judge Claudia Wilken Granting 16 JUDGMENT PURSUANT TO STIPULATION. (ndr, COURT STAFF) (Filed on 3/31/2014)

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Muriel B. Kaplan, Esq. (SBN 124607)
Michele R. Stafford, Esq. (SBN 172509)
SALTZMAN & JOHNSON LAW CORPORATION
44 Montgomery Street, Suite 2110
San Francisco, CA 94104
Tel: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]

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Attorneys for Plaintiffs

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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BRICKLAYERS LOCAL NO. 3 PENSION
TRUST and its Board of Trustees; JEFF
BARBER and DAVID JACKSON, Trustees, et
al.;

Case No.: C13-5896 CW
JUDGMENT PURSUANT TO
STIPULATION; ORDER THEREON

Plaintiffs,
v.
PETE WISMANN MASONRY, INC., a
California Corporation,
Defendant.

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IT IS HEREBY STIPULATED by and between the parties hereto, that Judgment shall be
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entered in the within action in favor of the Plaintiffs Bricklayers Local No. 3 Pension Trust, et al.
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(collectively “Plaintiffs” or “Trust Funds”) and against Defendant Pete Wismann Masonry, Inc., a
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California Corporation, and/or alter egos and/or successor entities, as follows:
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1.

Defendant entered into valid Collective Bargaining Agreements with the Northern

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California Marble Mason Contractors Multi-Employer Bargaining Association and Masonry
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Contractors’ Association of Central California and the Bricklayers Local Union #3 of California,
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IUBAC, AFL-CIO, and the Marble Masons and Marble Finishers by and between Marble Dealers
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of Northern California and Independent Marble Contractors, and Bricklayers and Allied
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Craftworkers Local Union 3 CA. IUBAC, AFL-CIO (collectively, “Bargaining Agreements”).
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These Bargaining Agreements have continued in full force and effect to the present time.
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2.

Defendant has become indebted to the Trust Funds as follows:

1/1/10 – 9/30/13

Contribution Underpayments on audit:
20% Liquidated Damages:
10% Interest:
 Through 11/14/13, per audit
Audit Fees
Subtotal:
Attorneys’ Fees (through 1/10/14):
Filing Fee and Costs of Service:
Subtotal:
GRAND TOTAL:

$33,721.26
$6,744.25
$11,537.14
$2,025.00
$54,027.65
$1,598.00
$492.15
$2,090.15
$56,117.80

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3.

Defendant shall conditionally pay the amount of $49,373.55, representing all of the

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above amounts, less liquidated damages in the amount of $6,744.25. This waiver is expressly
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conditioned upon the Trustees’ approval following timely compliance with all of the terms of this
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Stipulation, as follows:
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(a)

Beginning on or before March 1, 2014, and on or before the 1st day of each

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month thereafter, for a period of twelve (12) months, through and including February 1, 2015,
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Defendant shall pay to Plaintiffs a minimum of $5,000.00 per month;
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(b)

Any payments made by a general contractor’s joint check to Defendant and

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Plaintiff Trust Funds shall be endorsed by Defendant prior to submission to Plaintiffs;
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(c)

Defendant shall have the right to increase the monthly payments at any time,

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without penalty;
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(d)

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

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The unpaid principal balance shall bear interest at the rate of 10% per annum, from January 10,
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2014, in accordance with Plaintiffs’ Trust Agreements;
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(e)

Payments shall be made payable to the “B.A.C. Local 3 Trust Funds” and

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delivered to Muriel B. Kaplan at Saltzman & Johnson Law Corporation, 44 Montgomery Street,
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Suite 2110, San Francisco, California 94104, or to such other address as may be specified by
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Plaintiffs, to be received on or before the 1st day of each month.

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(f)

Defendant shall pay all additional costs and attorneys’ fees incurred by

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Plaintiffs, following those included in ¶3 herein, in connection with collection and allocation of the
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amounts owed by Defendant to Plaintiffs under this Stipulation, regardless of whether or not there is

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a default herein.

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(g)

Prior to February 1, 2015, the deadline for Defendant’s last monthly payment

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toward the conditional balance owed under the Stipulation, Plaintiffs shall notify Defendant in

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writing of the final amount due, including any additional interest and attorneys’ fees and costs, as

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well as any other amounts due under the terms herein. Any additional amounts due pursuant to the

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provisions hereunder shall be paid in full with the final conditional stipulated payment.

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(h)

Following Defendant’s payment of the last conditional monthly payment

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under the Stipulation, Defendant will be advised as to whether or not the waiver has been granted

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by the Board of Trustees. If the waiver is granted, upon bank clearance of Defendant’s last payment

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of the conditional balance and confirmation that Defendants’ account is otherwise current, Plaintiffs

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will file a Notice of Satisfaction of Judgment with the Court. However, if the waiver is denied,

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monthly payments will continue as provided in (a) above, until all liquidated damages due have

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been paid. All terms herein shall continue to apply until all payments are satisfied.

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(i)

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

Defendant’s obligations under this Stipulation and the provisions of ¶13 shall apply.
5.

Lawrence William Wismann acknowledges that he is authorized to enter this

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Stipulation on behalf of Defendant Pete Wismann Masonry, Inc. Lawrence William Wismann,

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Cecilia Ann Hooton, Mitchell Drew Johnson, James Patrick Wismann, and Mary Therese Wismann

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(hereinafter referred to as “Guarantors”) confirm that they are personally guaranteeing the amounts

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due pursuant to the terms of this Stipulation and further acknowledge that all affiliates, related

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entities, purchasers, and successors in interest to Pete Wismann Masonry, Inc. shall also be bound

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by the terms of this Stipulation as Guarantors, and also consent to this Court’s jurisdiction.

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6.

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

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during the month of January 2014, which are due on February 15, 2014 and delinquent if not

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received by that date, and for every month thereafter, Defendant/Guarantors shall remain current

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in reporting and payment of any contributions due to Plaintiffs under the current Collective

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Bargaining Agreement and under all subsequent Collective Bargaining Agreements, if any, and the
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Declarations of Trust as amended. Defendant shall timely submit a copy of all contribution

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reports for each month, together with a copy of the payment check(s), by facsimile or email to

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Muriel Kaplan at 415-882-9287, or by email to both [e-mail] and

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[e-mail] or to such other fax number or email address as may be specified

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by Plaintiffs, concurrent with sending the payment to the Trust Fund office. Failure by

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Defendant to timely submit copies of current contribution reports and payments to Muriel Kaplan as

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described above shall constitute a default of the obligations under this agreement.

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7.

Defendant shall make full disclosure of all jobs on which it is working by providing

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Plaintiffs with a monthly job report on the form attached hereto as Exhibit A, including, but not

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limited to, the name and address of job, general contractor information, certified payroll if a public

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works job, start date and anticipated completion date, of each job. Defendant shall submit said

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updated list each month by the last day of the month (as stated in above ¶6, by fax or email).

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

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ongoing work. In this event, Defendant shall submit a statement stating that there are no current

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jobs. To the extent that Defendant is working on a Public Works job, or any other job for which

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Certified Payroll Reports are required, copies of those Reports shall also be submitted to Muriel

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Kaplan, concurrently with the monthly job reports. Failure by Defendant to timely submit updated

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monthly job reports shall constitute a default of the obligations under this agreement. This

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obligation remains in full force and effect under this Stipulation so long as Defendant is in business,

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and work is being performed.

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8.

Failure by Defendant/Guarantors to remain current in reporting or payment of

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monthly contributions owed shall constitute a default of the obligations under this agreement. Any

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such unpaid or late paid contributions, together with 20% liquidated damages and 10% per annum

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interest accrued on contributions, shall be added to and become a part of this Judgment and subject

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to the terms herein. Plaintiffs reserve all rights available under the applicable Bargaining Agreement

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and Declarations of Trust of the Trust Funds for collection of current and future contributions, and

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for any additional past contributions not included herein as may be determined by Plaintiffs,

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pursuant to employee timecards or paystubs, by audit, or other means, and the provisions of this
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agreement are in addition thereto. Defendant/Guarantors specifically waive the defense of the

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doctrine res judicata as to any such additional amounts determined as due.

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9.

Should the Trust Funds request a further audit of Defendant’s payroll records in

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order to confirm proper reporting and payment of contributions pursuant to the Bargaining

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Agreement, any failure by Defendant to comply with said request or payment thereof shall

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constitute a default of the obligations under this Agreement.

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10.

In the event that any check is not timely submitted, is submitted by

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Defendant/Guarantors but fails to clear the bank, or is unable to be negotiated for any reason for

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which Defendant/Guarantors is responsible, this shall be considered to be a default on the Judgment

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entered. If Defendant/Guarantors fail to submit their contribution reports, and/or certified payroll

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reports (if any) and/or job lists, and/or fails to comply with any of the terms of the Stipulation

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herein, this too shall constitute a default.

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11.

Defendant and Guarantors and any additional entities in which Guarantors or any

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one of them is an officer, owner or possesses any ownership interest, including 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 Pete Wismann Masonry, Inc. joins or merges, if any,

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shall also be bound by the terms of this Stipulation. Defendant/Guarantors and all such entities

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specifically consent to the Court’s jurisdiction, which shall be specified in writing at the time of any

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assignment, affiliation or purchase of Defendant, along with the obligations to the terms herein.

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12.

If a default occurs, Plaintiffs shall make a written demand, sent to

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Defendant/Guarantors by facsimile to [phone] and by regular mail, to cure said default

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within seven (7) days of the date of the notice from Plaintiffs. If Defendant or Guarantors elect to

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cure said default, and Plaintiffs elect to accept future payments, all such payments shall be made by

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cashier’s check if the default is caused by a failed check.

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13.

In the event the default is not cured, all amounts remaining due hereunder, as well as

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any additional amounts due pursuant to the terms herein, shall be due and payable on demand by

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Plaintiffs as follows:

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(a)

The entire amount of $56,117.80 plus interest, reduced by principal payments
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received by Plaintiffs, but increased by any unpaid contributions then due, including audit findings,

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if any, plus 20% liquidated damages and 10% per annum interest, together with any additional

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attorneys’ fees and costs incurred;

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(b)

A Writ of Execution may be obtained against Defendant and Guarantors and

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all related entities without further notice, in the amount of the unpaid balance, plus any additional

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amounts due under the terms herein. The declaration of a duly authorized representative of the

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Plaintiffs setting forth any payment theretofore made by or on behalf of Defendant/Guarantors, and

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the balance due and owing as of the date of default, shall be sufficient to secure the issuance of a

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Writ of Execution;

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(c)

Defendant and Guarantors waive notice of entry of judgment and expressly

waive all rights to stay of execution and appeal.

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14.

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

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Guarantors as provided herein in the event of any breach of the provisions of this Stipulation shall

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not be deemed a waiver of any subsequent breach by the Defendant or Guarantors of any provisions

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herein.

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15.

In the event of the filing of a bankruptcy petition by Defendant or any Guarantor, the

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parties agree that any payments made by Defendant or Guarantors pursuant to the terms of this

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judgment, shall be deemed to have been made in the ordinary course of business as provided under

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

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under 11 U.S.C. Section 547 or otherwise. Defendant and Guarantors nevertheless represent that no

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bankruptcy filing is anticipated.

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Should any provision 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

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enforceability of the remaining parts, terms or provisions shall not be affected thereby and said

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illegal, unenforceable or invalid part, term, or provision shall be deemed not to be part of this

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Stipulation.

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17.

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

delinquent contributions and related sums enumerated herein, owed by Defendant or Guarantors to
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the Plaintiffs. This Stipulation does not in any manner relate to withdrawal liability claims, if any.

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Defendant and Guarantors acknowledge that the Plaintiffs expressly reserve their right to pursue

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withdrawal liability claims, if any, against Defendant and/or Guarantors as provided by the

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Plaintiffs’ Plan Documents, the Trust Agreements incorporated into the Collective Bargaining

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Agreement, and the law.

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18.

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

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agreements have been made. Any changes to this Stipulation shall be effective only if made in

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writing and signed by all parties hereto.

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

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

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

Judgment is satisfied.

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All parties and the Guarantors represent and warrant that they have had the opportunity to be

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or have been represented by counsel of their own choosing in connection with entering this

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Stipulation under the terms and conditions set forth herein, that they have read this Stipulation with

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care and are fully aware of and represent that they enters into this Stipulation voluntarily and

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without duress.

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Dated:

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PETE WISMANN MASONRY, INC., a
California corporation
By:
LAWRENCE WILLIAM WISMANN
its RMO

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Dated:

LAWRENCE WILLIAM WISMANN,
Guarantor

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By:

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LAWRENCE WILLIAM WISMANN

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Dated:
By:

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CECILIA ANN HOOTON, Guarantor
CECILIA ANN HOOTON

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Dated:

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MITCHELL DREW JOHNSON, Guarantor
By:
MITCHELL DREW JOHNSON

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Dated:

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JAMES PATRICK WISMANN, Guarantor
By:
JAMES PATRICK WISMANN

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Dated:

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MARY THERESE WISMANN, Guarantor
By:
MARY THERESE WISMANN

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Dated: March ___, 2014

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SALTZMAN & JOHNSON LAW
CORPORATION
By:
MURIEL B. KAPLAN
Attorneys for Plaintiffs

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IT IS SO ORDERED.

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

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retain jurisdiction over this matter.

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March 31
Dated: _______________, 2014

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By:
UNITED STATES DISTRICT COURT JUDGE

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Exhibit A
JOB REPORT FORM

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*** Updated report must be faxed to Muriel Kaplan, Esq., at [phone], or emailed to
[e-mail] and [e-mail]
on or before the last business day of each month ***

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Employer Name: PETE WISMANN MASONRY, INC.

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Report for the month of _________________, 2014___ Submitted by (name): ________________

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**Please spell out project, owner and general contractor names, and complete all fields**

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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
Telephone #:
Project Manager
Telephone #:
Contract #:

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Total Contract
Value:
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:
General Contractor:
General Contractor
Address:
General Contractor
Telephone #:
Project Manager
Telephone #:
Contract #:
Total Contract
Value:
Work Start Date:
Project Bond #:

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

Work Completion
Date:
Surety:

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**Attach additional sheets as necessary**
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PROOF OF SERVICE
1.

I am a citizen of the United States and am employed in the County of San Francisco,

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State of California. My business address is 44 Montgomery Street, Suite 2110, San Francisco,

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California 94104.

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2.

I am over the age of eighteen and not a party to this action.

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3.

On March 27, 2014, I served the following document(s):

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JUDGMENT PURSUANT TO STIPULATION; [PROPOSED] ORDER THEREON

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on the interested parties in said action by enclosing a true and exact copy of each document in a

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sealed envelope and placing the envelope for collection and

mailing following our ordinary

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business practices. I am readily familiar with this business’ practice for collecting and processing

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correspondence for mailing. On the same day that correspondence is placed for collection and

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mailing, it is deposited in the ordinary course of business with the United States Postal Service in a

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sealed envelope with First Class postage fully prepaid.

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4.

The envelope was addressed and mailed as follows:
Lawrence William Wismann
Cecilia Ann Hooton
Mitchell Drew Johsnon
James Patrick Wismann
Mary Therese Wismann
Pete Wismann Masonry, Inc.
2550 Wyandotte, #E
Mountain View, CA 94043

I declare under penalty of perjury that the foregoing is true and correct and that this
declaration was executed on March 27, 2014, at San Francisco, California.
/S/
Michelle Valentine, Paralegal

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