The Board of Trustees in their capacities as Trustees of the Laborers Health and Welfare Trust Fund for Northern California et al v. Saba J, Inc. et al

Filing 26

STIPULATION AND ORDER TO DISMISS AND REQUEST TO RETAIN JURISDICTION IN LIGHT OF SETTLEMENT AGREEMENT, ***Civil Case Terminated. Signed by Judge Phyllis J. Hamilton on 11/18/16. (napS, COURT STAFF) (Filed on 11/18/2016)

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BARRY E. HINKLE, Bar No. 071223
TRACY L. MAINGUY, Bar No. 176928
CONCEPCIÓN E. LOZANO-BATISTA, Bar No. 227227
WEINBERG, ROGER & ROSENFELD
A Professional Corporation
1001 Marina Village Parkway, Suite 200
Alameda, California 94501
Telephone [phone]
Fax [phone]
E-Mail: [e-mail]

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Attorneys for Plaintiffs
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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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v.

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STIPULATION TO DISMISS AND
REQUEST TO RETAIN
JURISDICTION IN LIGHT OF
SETTLEMENT AGREEMENT;
[PROPOSED] ORDER THEREON

Plaintiffs,

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No. 15-cv-03183 PJH

THE BOARD OF TRUSTEES, in their
capacities as Trustees of the LABORERS
HEALTH AND WELFARE TRUST FUND
FOR NORTHERN CALIFORNIA, et al.

Judge:

Hon. Phyllis J. Hamilton

SABA J. INC., a California Corporation; SABA
J. INC. doing business as RELIANCE
CONSTRUCTION,

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Defendants.

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WEINBERG, ROGER &
ROSENFELD

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A Professional Corporation

STIPULATION TO DISMISS AND REQUEST TO RETAIN JURISDICTION IN LIGHT OF SETTLEMENT
AGREEMENT; [PROPOSED] ORDER THEREON
Case No. 15-cv-03183 PJH

1001 Marina Village Parkway, Suite 200
Alameda, California 94501
[phone]

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Plaintiffs, Defendant Saba J. Inc. doing business as Reliance Construction (“Employer”)

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and Hamid Sam Jalalian, who is the Owner and President of Employer, entered into a written

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Settlement Agreement, a true and accurate copy of which is attached hereto as Exhibit “A”.

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Pursuant to paragraph 7 of the Settlement Agreement, the Plaintiffs, Employer and Hamid Sam

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Jalalian stipulated that:

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. . . . The Parties stipulate and agree that the Northern District of
California will retain jurisdiction over the Lawsuit to enforce the
Settlement Agreement, including entering judgment based upon the
foregoing stipulation for judgment in the event of an uncured
default by Employer. In consideration of the above payment plan,
Hamid Sam Jalalian agrees to be added as a Defendant in the
Lawsuit and to submit to the jurisdiction of the Court for the
purposes of enforcing the Settlement Agreement and Personal
Guaranty ( a copy of which is attached hereto) of the amounts
payable by Employer referenced in paragraph 5. Hamid Sam
Jalalian further agrees to have judgment entered against him in the
Lawsuit for any and all amounts due and owing by him to the
Plaintiffs under this Settlement Agreement and the Personal
Guaranty, a copy of which is attached hereto, should he default
under the provisions outlined in paragraph 6 of the aforementioned
Personal Guarantee.

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Paragraph 5 of the Settlement Agreement requires Employer to make a payment of

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$20, 000.00 to Plaintiffs on December 3, 2016 and thereafter to make monthly, consecutive

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payments of $3,124.04 each to Plaintiffs on the 15th day of every month commencing November

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of 2016 for a thirty-six months. Paragraph 6 of the Personal Guaranty executed by Sam Hamid

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Jalalian (which is incorporated into the Settlement Agreement) provides:

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6.
If Employer defaults on any of its obligations under
Paragraph 5 of the Settlement Agreement, upon your written
demand to the Employer and Hamid Sam Jalalian by fax ((650)
559-9300) and the Employer’s counsel by email
([e-mail]), I AGREE to immediately pay to the
Trust Funds the sum of $224,172.12, less any payments received by
the Trust Funds from Employer under paragraph 5 of the Settlement
Agreement . . . .

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WEINBERG, ROGER &
ROSENFELD

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A Professional Corporation

STIPULATION TO DISMISS AND REQUEST TO RETAIN JURISDICTION IN LIGHT OF SETTLEMENT
AGREEMENT; [PROPOSED] ORDER THEREON
Case No. 15-cv-03183 PJH

1001 Marina Village Parkway, Suite 200
Alameda, California 94501
[phone]

/s/ Tracy L. Mainguy

ORDER

ED

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A

H

ER

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NO

amilton
yllis J. H
Judge Ph

R NIA

IT IS SO

FO

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UNIT
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S DISTRICT
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November 18

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F
D IS T IC T O
R

C

EXHIBIT A

EXHIBIT A

SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS

This Settlement Agreement and Release of Claims ("Agreement"} is entered into by and
between the Parties to the Agreement, as defined below:
1.

Parties. The parties to this Agreement ("Parties"} are:
A.

B.

SABA J. INC., a California Corporation doing business as Reliance
Construction (hereinafter referred to as `Employer"); and

C.

2.

LABORERS HEALTH AND WELFARE TRUST FUND FOR
NORTHERN CALIFORNIA; LABORERS VACATION-HOLIDAY
TRUST FUND FOR NORTHERN CALIFORNIA; LABORERS
PENSION TRUST FUND FOR NORTHERN CALIFORNIA; and
LABORERS TRAINING AND RETRAINING TRUST FUND FOR
NORTHERN CALIFORNIA {hereinafter referred to as "Trust Funds"};

HAMID SAM JALALIAN, individually (hereinafter "Hamid Sam
Jalalian").

Recitals.
A. Employer is signatory to a collective bargaining agreement that requires it
make contributions to the Trust Funds, and submit to a periodic audit of its
books and records so that the Trust Funds can determine if the Employer is
making full and prompt payment of required contributions.
B. Pursuant to the agreements, the Trust Funds conducted an audit of the
Employer's books and records covering the period of March 2010 through
December 2013 ("the Audit"). The Trust Funds contend that the audit
revealed Employer failed to make required contributions to the Trust Funds in
the amount of $111,701.b5 and liquidated damages and interest are now due
on these contributions in the amount of $83,055.55. The Trust Funds filed
suit against Employer, United. States District Court Northern District of
California, case number 1S-cv-03183 PJH {"the Lawsuit") to collect the
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iability relating to the Audit.
C. Plaintiffs' incurred the attorneys' fees relating to the Lawsuit totaling in
excess of $27,915.00 and costs in the amount of $1,499.92 to date.
D. The parties stipulate and agree that there is now due and owing the following
sums by the Employer to the Trust Funds relating to the Audit: (1) principal
contributions in the amount of $111,70 Z .65; (2) Liquidated damages and
nterest in the amount of $83,055.55; and {3) Attorneys' fees and costs
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relating to the Lawsuit in the amount of $29,414.92.

Settlement Agreement and Release of .All Claims

1 of 7

EXHIBIT A
Page 1 of 17

E. Hamid Sarn Jalalian, individually, agrees to personally guarantee the payment
of the $224,172.12 owed to the Trust funds by the Employer and referenced in
paragraph D above. A true and accurate copy of their respective Personal
Guarantee Agreement is attached hereto.
F. The Parties wish to resolve this matter without litigation. Employer does not
wish to have a judgment entered against it, but Plaintiffs do nat want to
dismiss this lawsuit without assurances that the Court will retain jurisdiction
to assure the compliance of Employer and Hamill Sam Jalalian with this
Settlement Agreement. Additionally, the Trust Funds do not want to dismiss
this lawsuit without assurance that Hamill Sam Jalalian agrees to, and will be,
added as a Defendant in the Lawsuit and submit to the jurisdiction of the
Court for the purposes of enforcing the Settlement Agreement, enforcing his
Personal Guarantee (attached hereto) and entering judgment against him in the
Lawsuit should he default under the Settlement Agreement and/or Personal
Guarantee. Accordingly, the Parties agree that the Parties shall execute a
Stipulation for Dismissal and request dismissal of the matter without prejudice
on the condition that the Court retains jurisdiction of the case for thirty-six
months so the Trust Funds will not need to re-file this lawsuit and can enter
Judgment against Employer and/or Sam Jalalian pursuant to paragraph 7
below if there is a default under the Settlement Agreement and/or Personal
Guarantee.
f
I the Court declines to reserve jurisdiction to enforce the Settlement
Agreement and Personal Guarantee (a copy of which is attached hereto),
Hamill Sam Jalalian agrees to be added as a Defendant in the Lawsuit and to
submit to the jurisdiction of the Court and, the Parties agree to enter a
Stipulated Judgment against bath Employer and Sam Jalalian in the Lawsuit
i the amount of $224,172.12. Plaintiffs agree that they will not record the
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Stipulated Judgment, file abstracts of the Stipulated Judgment, or take any
other steps to enforce the Stipulated Judgment so long as Employer makes all
payments as set out in Paragraph S below. The parties agree that if a
Stipulated Judgment has been entered and there is an uncured default by
Employer on its payment obligations under paragraph S, without further
notice, Trust Funds may take any collection action and/or post judgment
remedy that the Trust Funds chooses to collect the Stipulated Judgment.
Within ten (10) days of receipt of the final payment provided under paragraph
S below, the Trust Funds shall cause a Satisfaction of the Stipulated Judgment,
if entered, to be filed with the court.
Agreement to Settle Disputes. Except as otherwise provided herein, the Parties to
this Agreement wish to finally resolve and settle all disputes between them
relating to or arising out of the liability referenced in 2.A., 2.B., 2.C. and 2.D
above.
4.

Terms. This Agreement memorializes the terms agreed to by the Parties; to the
extent that it differs from or varies from any previous writing between the parties
Settlement Agreement and Release of All Claims

2 of 7

EXHIBIT A
Page 2 of 17

relating to the matters resolved herein, this Agreement sha11 supersede and replace
such other communications andJor agreements.
Therefore, in consideration of the mutual covenants contained herein, each of the Parties
hereto, for themselves and their successors and assigns, hereby agrees as follows:
5.

The Trust Funds agree to settle their claims for the amounts owed in paragraph
2.A, 2.B., 2.0 and 2.D above in this Lawsuit for payment of $132,465.54
("Settlement Sum"} by Employer to Plaintiffs on the following conditions:
a. A lump sum payment in the amount of $20,000.40 by cashier's check
payable to the "LABORERS TRUST FUNDS" shall be made by
Employer to Plaintiffs no later than December 3, 2016.
b. Payments totaling $112,465.54 shall be made by Employer over a thirtysix month period with (36) equal monthly installments of $3,124.04 each
due no later than the 15~' day of every month commencing November of
2016.
c. Employer sha11 remit the payments as described in Paragraph S.a. and S.b.
by check made payable to "LABORERS TRUST FUNDS", directly to the
Trust Fund office at:
Laborers Funds Administrative Office of Northern California, Inc.
220 Campus Lane
Fairfield, CA 94534-1498
d. The Parties hereto acknowledge that the payments above include twentyfive percent of the liquidated damages and interest owed by Employer to
the Trust Funds. The Settlement Sum does not include the attorneys' fees
and costs in the amount of $29,414.92 incurred by Plaintiffs relating to the
Lawsuit. If and only if all payments required by this Settlement
Agreement are timely made, the Trust Funds agree to waive the remaining
seventy- five percent of liquidated. damages and interest and attorneys'
fees and costs owed by Employer. However, to the extent that any
payment required by this Settlement is not paid, then the Employer will be
i default. In the event of Employer's default, as per Paragraph 7 below,
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there will be no waiver of liquidated damages and interest owed, and the
sum of $224,172.12 {$111,701.65 + $83,OSS.55 + $29,414.92) will be
mmediately due and owing by the Employer and Hanud Sam Jalalian,
i
less any payments made by Employer toward the Settlement Sum under
this paragraph.
e. In the event of the default by Employer of its payment obligations under
paragraph 5 of this Settlement Agreement, Employer and Sam Hamid
Jalalian will be in default of this Settlement Agreement, as per paragraph 7
belor~v, the sum of $224,172.12, less any payments made by Employer
toward the Settlement Sum under this paragraph, will be immediately due
Settlement Agreement and Release of All Clauns

3 of 7

EXHIBIT A
Page 3 of 17

and payable by Hamid Sam Jalalian, individually pursuant to his Personal
Guarantee (a copy of which is attached hereto}.
6.

Obligation to Remain Current. Employer agrees to remain bound to the
applicable collective bargaining agreement and comply with its obligations to
submit all fringe benefit contributions to the Trust Funds in a timely manner
pursuant to the terms of the applicable collective bargaining agreement and Trust
Agreements. Employer agrees that it will timely pay the contributions owed for
work performed by Employer's employees in October of 20I 6 na later than
November 15, 2016. If the Employer fails to timely submit complete payment or
reports, including November 1S, 2016, the Employer will be in default of this
Agreement.

7.

Default. If Employer fails to make any payment required under this Settlement
Agreement as set forth in Paragraph 5 above, or fails to remain current as set forth
in Paragraph 6 above, the Employer will be in default of this Settlement
Agreement. In the event that the Defendants are in default of this Settlement
Agreement, the Trust Funds will give notice of the default to the Employer by fax
([phone]) and the Employer's counsel by email
([e-mail]). The Employer sha11 have ten (10) days from the
date of Plaintiffs' notice of default to cure the default.
I the event of any default by Employer, not cured by Employer within 10 days
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from the date Plaintiffs' provide notice of default under this paragraph, all
remaining payments owed under the Settlement Agreement will be immediately
due and payable then the Tnast Funds. This Settlement Agreement will be
considered an admission of liability, and a stipulation by Employer for a judgment
to be entered against Employer immediately in the amount of $224,172.12
{$111,701.65 + $83,055.55 + $29,414.92), less any payments made by Employer
toward the Settlement Sum under Paragraph 5 above. The Parties stipulate and
agree that the Northern District of California will retain jurisdiction over the
Lawsuit to enforce the Settlement Agreement, including entering judgment based
upon the foregoing stipulation for judgment in the event of an uncured default by
Employer. In consideration of the above payment plan, Hamid Sam Jalalian
agrees to be added as a Defendasit in the Lawsuit and to submit to the jurisdiction
of the Court for the purposes of enforcing the Settlement Agreement and Personal
Guaranty (a copy of which is attached hereto) of the amounts payable by
Employer referenced in paragraph 5. Hamid Sam Jaialian further agrees to have
judgment entered against him in the Lawsuit for any and all amounts due and
owing by him to the Plaintiffs under this Settlement Agreement and the Personal
Guaranty, a copy of which is attached hereto, should he default under the
provisions outlined in paragraph 6 of the aforementioned Personal Guarantee.
I the Court declines to reserve jurisdiction to enforce the Settlement Agreement
f
and Personal Guarantee (attached hereto), Hamid Sam Jalalian agrees to be added
as a Defendant in the Lawsuit and.to submit to the jurisdiction of the Court and,
the Parties agree to enter a Stipulated Judgment against both Employer and Sam
Jalalian in the Lawsuit in the amount of $224,172.12. Plaintiffs agree that they
Settlement Agreement and Release of All Claims

4 of 7

EXHIBIT A
Page 4 of 17

will not record the Stipulated Judgment, file abstracts of the Stipulated Judgment,
or take any other steps to enforce the Stipulated Judgment so long as Employer
makes all payments as set out in Paragraph 5 above. The parties agree that if a
Stipulated Judgment has been entered and there is an uncured default by
Employer on its payment obligations under paragraph 5, without further notice,
Trust Funds may take any collection action and/or past judgment remedy that the
Trust Funds chooses to collect the Stipulated Judgment.
Within ten (10) days of receipt of the final payment provided under paragraph 5
below, the Trust Funds shall cause a Satisfaction of the Stipulated Judgment, if
entered, to be filed with the court.
S.

Prepayment. There is no penalty far prepayment. If Employer submits payments
in excess of the monthly payment amounts required -under Paragraph 5, those
amounts will be credited. towards the total amount due, but the payment schedule
wi11 not change.

9.

Audit. The parties fizrther acknowledge that by entering into this Agreement, the
Trust Funds in no way waive their right to conduct an audit of Employer, or to
seek payment of any contributions found due from such an audit for any audit
period other referenced in 2.B, of this Settlement Agreement.

10.

Indemnification. Employer agrees to indemnify and hold harmless Trust Funds
from any and all claims arising out of Employer's failure to submit trust fund
contributions on any individual who performed covered work for Employer as set
forth in applicable collective bargaining agreement with Employer.

11.

Assignment. Employer agrees to indemnify and hold harmless Trust Funds from
any and all claims arising out of Einplayer's failure to submit trust fund
contributions on any individual who performed covered work for Employer as set
forth in applicable collective bargaining agreement with Employer.

12.

Re~resent~tions. Each Party warrants that said Party is legally competent and
authorized to execute this Agreement and has not relied on any statements or
explanations in connection therewith. Each Party acknowledges to the other Party
that it has had the opportunity to be represented by independent legal counsel of
its own choice throughout all of the negotiations that preceded the execution of
this Agreement. Each Party, including their counsel, further acknowledge that
they have had adequate opportunity to perform whatever investigation or inquiry
they may deem necessary in connection with the subject matter of this Agreement
prior to its execution and the delivery and acceptance of the considerations
specified in this Agreement.

13.

Severability. The provisions of this Agreement are contractual in nature and not
mere recitals, and shall be considered independent and severable, and if any
provision, or part thereof, is declared invalid, .unenforceable or void for any
reason, then the validity and enforceability of the remainder shall not be affected
i any way.
n
Settlement Agreement and Release of All Claims

5 of 7

EXHIBIT A
Page 5 of 17

14.

Entire A~reemeut. This Agreement contains the entire agreement of the Parties
with respect to the matters covered hereby, and supersedes any oral or written
understandings or agreements between the Parties with respect to the subject
matter of this Agreement. No person or Party is authorized to make any
representations or warranties, except as set forth herein, and no agreement,
statement, representation, or promise by any Party hereto, which is not contained
herein, sha11 be valid or binding. The undersigned acknowledge that they have
not relied upon any warranties, representations, statements, or promises by any of
the Parties herein released or any of their agents or consultants, except as maybe
expressly set forkh herein.

15.

Counterparts. This Agreement may be executed in counterparts, which taken
together, shall constitute one Agreement and be binding upon and effective as to
all Parties hereto. This Agreement maybe executed via receipt of a facsimile
signature of the original document and signature page to follow.

16.

Final Accord and Satisfaction. It is the intention of the Parties in executing this
Agreement and in paying and receiving the consideration called for by this
Agreement that this Agreement shall be effective as a full and final accord and
satisfaction and general release of all Released Matters.

17.

Prevailing Party. The Parties agree that if either Party zs (arced to bring an action
to enforce the terms of this Agreement, the prevailing party shall be entitled to
recover their reasonable attorneys' fees and cost of suit incurred.

18.

Applicable Law. This Agreement shall be governed by, interpreted and construed
n
i accordance with the laws of the State of California.

19.

Interpretation. In the event of a dispute hereunder, this Agreement shall not be
i
nterpreted for or against any Party hereto on the ground that such party drafted or
caused this Agreement or any part thereof to be drafted.

20.

Release. In furtherance of the intentions set forth herein, each of the Parties
acknowledges that it is familiar with Section 1542 of the Civil Code of the State
of California which provides as follows:
A general release does not extend to claims, which the creditor does not
know or suspect to exist in his favor at the time of executing the release,
which if known by him must have materially affected his settlement with
the debtor.
Each party understands and agrees that this release extends to any lawsuit that it
could file in state or federal court, or with any regulatory agency or public agency,
concerning the subject matter of the Action or otherwise. Each party also
understands that this release is not zntended to and does not release any claim
solely arising out of the obligations created by this Settlement Agreement. Each

Settlement Agx~ement and Release of .All Claims

6 of 7

EXHIBIT A
Page 6 of 17

party represents that it is the sole and current possessor of the claims or causes of
action being released herein by it.
21.

Cooperation. The Parties agree to cooperate with one another and promptly
execute any other reasonable and necessary documents, which axe or may be
required to effectuate the intent of this Settlement Agreement.

22.

The parties hereto mutually state that they have read the foregoing Agreement and
are fully aware of its contents and legal facts. This Agreement constitutes the
entire agreement of the parties and is entered into on the dates below indicated.

EXECUTION BY PARTIES

F(}R LABORERS TRUST FUNDS
t.
,
Dated: October ~ 2016
auziere

FOR SABA J. INC. doing business as Reliance Construction
Y

Dated: October ~~ 2016
HAMID SAM JALALIAN, President
FOR HAMID SAM JALALIAN, INDIVIDUALLY

~~~
Dated: October, 2016
H

ID S

JALALIAN

1387Q91886413

Settlement Agreement and Release of All Claims

7 of7

EXHIBIT A
Page 7 of 17

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EXHIBIT A
Page 9 of 17

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who proved to me on the basis of satisfactory evidence to be the persons) whose names) islare subscribed to
the within instrument and acknowledged to me that heJshe/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signatures) on the instrument the person(s), or the entity
upon behalf of which the persons) acted, executed the instrument.
certify under PENALTY OF PERJURY under the laws of the
State of California that the foregoing paragraph is true and correct.

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WITNESS my hand and official seal.

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OPTIONAL INFORMATION

Although the information in this section is not required by law, it could prevent fraudulent removal and reattachment of th+s
acknowledgment to an unauthorized document and may prove useful to persons relying on the attached document.

Description of Attached Document
The preceding Certificate of Acknowledgment is attached to a document
titled/for the purpose of ~

C
c~

containing ~

,~ ~

~""

- ~'"'

~,

pages, and dated

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The signers} capacity or authority is/are as:

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Method of Signer Identification
Proved to me on the basis of satisfactory evidence:
~—~ form(s) of identification ~ credible witnesses)
Notarial event is detailed in notary journal on:
Page #
Entry #
Notary contact:

❑ Individual(s)
❑ Attorney-in-Fact
❑ Corporate Officers)

Other
Additional Signers)

~ Signer(s)Thumbprint(s)

Titles)

❑ Guardian/Conservator
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❑ Trustee(s)
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representing: _

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Nam s) of Persons) or Entit{ies) Signer is Representing

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O Copyright 2007-2014 Notary Rotary, Inc. PO Box 47400, Des Moines, IA 503 7 1-0507. All Rights Reserved. Item Number 101772. Please contact your Authorized Reseller to purchase copies of this form.

EXHIBIT A
Page 10 of 17

To:

Laborers Health and Welfare Trust Fund for Northern California, Laborers Vacation-

Holiday Trost Fund for Northern California, Laborers Pension Trust Fund for Northern
California and Laborers Training and Retraining Trust Fund for Northern California ("Trust
Funds")
From: Hamid Sam Jalalian
PERSONAL GUARANTEE AND UNDERTAKING
I CONSIDERATION of the Trust Funds having at my request agreed to enter into the
N
Settlement Agreement between Saba J Inc. doing business as Reliance Construction and the
Trust Funds (hereinafter the "Settlement Agreement"), a copy of which is attached hereto, I,
Hamid Sam Jalalian (hereinafter the "Guarantor"), da hereby in my personal capacity undertake
and agree with you, Trust Funds, as follows:
1.

I, Guarantor, stipulate that that there is now due and owing the following sums by

the Employer to the Trust Funds: : (1) principal contributions in the amount of $111,701.65, (2)
liquidated damages far fees and interest in the amount of $83,055.55; and (3) Attorneys' fees and
costs relating to the Lawsuit in the amount of $29;414.92.
2.

I, the Guarantor, do hereby guarantee payment to the Trust Funds, and its

successors and assigns of the outstanding liability owed to the Trust Funds by Saba J Inc. doing
business as Reliance Construction (hereinafter `Employer") iu the amount of $224,172.12 in the
event that Employer defaults on its payment obligations under Paragraph 5 of its Settlement
Agreement, and fails to cure such default after receiving notice of such default under paragraph 7
of the Settlement Agreement. A fully executed copy of the Settlement Agreement, whichIhave
read and understood the contents therein, is attached hereto.
3.

This Guarantee shall extend to any obligations of Employer under any

amendment, present or future, to the Settlement Agreement, including, without limiting the
generality of the foregoing, any amendment which has the effect of extending the Payment Plan
where time is of essence.

SAC 442702938v9

EXHIBIT A
Page 11 of 17

4.

Iacknowledge that the Settlement Agreement may be amended from time to time

by the parties thereto without the prior consent of me, and it is hereby agreed that no such
amendment shall release me from my liability under this Guarantee either in whole yr in part.
5.

1VIy liability herein under this Guarantee and Undertaking shall continue despite

the insolvency ox winding-up of Employer until such time Employer shall have fully performed
all the provisions, conditions, warranties, covenants and agreements contained. therein the said
Agreement.
6.

If Employer defaults on any of its obligations under Paragraph 5 of the Settlement

Agreement, upon your written demand to the Employer and Hamid Sam Jalalian by fax {(650)
559-9300) and the Employer's counsel by email (rla anCa,lavtonlawfirm.com), IAGREE to
i
mmediately pay to the Trust Funds the sum of $224,172.12, less any payments received by the
Trust Funds from Employer under paragraph 5 of the Settlement Agreement. I shall also pay to
the Trust Funds interest on the amount due under this Guarantee and Undertaking at the rate of
ten percent (10%) per annum calculated from the date of Employer's default under the
Settlement Agreement until full payment thereof, and will indemnify you, Trust Funds, against
all attorneys' fees and costs which inay be incurred and/or suffered by you by reason of any
uncured default an the part of Employer in performing or observing the payment obligations
contained in Paragraph 5 of the Settlement Agreement.
7.

You, Trust Funds, shall not be bound to e~aust your recourse against Employer,

ar any other parties, nor realize any security granted to you by Employer or any party, nor value
any such security nor notify me, the Guarantor of any act of default on the part of Employer,
before enforcing the provisions of this Guarantee against me.
8.

This Guarantee shall be in addition to and not in substitution far any other

Guarantees which you, Trust Funds, may now or hereafter hold in respect of the Guarantied
obligations and you shall be under no obligation to marshall in favor of me, the Guarantor, any
other Guarantees or other securities ar any monies or the assets which Employer may be entitled
to receive or may have a claim upon, and neither the loss nor unenforceability of any other
Guarantees or other securities which you may now or hereafter hold in respect of the Guarantied

2
SAC 442702938v1

EXHIBIT A
Page 12 of 17

obligations, whether occasioned by default of Employer or otherwise, shall in any way Limit or
lessen my liability.
4.

This Guarantee embodies all the agreements between the parties hereto relating to

the Guarantee, and none of the parties shall be bound by any representation or promise made by
any person relative thereto which is not embodied herein, and it is specifically agreed that you,
Trust Funds, shall not be bound by any representations or promises made by Employer to me as
the Guarantor.
14.

This Guarantee shall not be discharged nor otherwise affected by the death of me,

the Guarantor and shall inure to the benefit of you, Trust Funds, its successors and assigns, and
shall be binding upon me, the Guarantor, my heirs, executors, administrators, successors, or
assigns.
11.

This Guarantee shall be of a continuing nature and shall secure the Guarantied

obligations that may be due from time to time and at any time from Employer to you,
notwithstanding that the Guarantied obligations may change from time to time or may at any
time be amended or deleted.
12.

You, Trust Funds shall not be required to inquire into the powers of Employer or

any agents acting or purporting to act on its behalf, and any obligations to you incurred in the
professed exercise of the rights and positions of Employer under the Settlement Agreement shall
be deemed to be part of the Guarantied obligations, even though the actions in so doing maybe
i excess of the powers of Employer or of its professed agent or may be in any way irregular,
n
defective or infornnal.
13.

(1) This Guarantee shall be absolute and non-conditional ar~d shall be effective

from the date hereof.
(2) This Guarantee and Undertaking shall be governed by and construed in all respects in
accordance with the Laws of the state of California, but in enforcing this Guarantee and
undertaking, you are at liberty to initiate and take action ar proceedings or otherwise against me
i California or elsewhere as you xnay deem fit, andIhereby agree that where any actions or
n
proceedings are initiated and taken in the state of California,Ishall submit to the jurisdiction of
3
SAC 442702938v9

EXHIBIT A
Page 13 of 17

the courts in the state of California in all matters connected with my obligations and liabilities
under or arising out of this Guarantee and Undertaking. I also agree to be added as a Defendant
i United States District Court Northern District of California, case number 15-cv-03183 PJH
n
("the Lawsuit") and to submit to the jurisdiction of the Court for the purposes of enforcing the
Settlement Agreement and this Personal Guaranty. I further agree to have judgment entered.
against me in the Lawsuit for any and all amounts due and owing under by me to Plaintiffs under
the Settlement Agreement and this Personal Guarantee. Any writ, judgment or other notice of
legal process shall be sufficiently served on me if delivered to or sent by ordinary or registered
post to my address: 851 Burlway Road #800, .Burlingame, CA 94010. You will also provide
courtesy copies of all documents served on me to Rona Layton, Layton Law Firm, Ill N.
Market Street, #300, San Jose, CA 95113.
14.

My liabilities herein as the Guarantor shall be irrevocable.

15.

A11 notice to me may be sent by registered or certified mail ar by prepaid courier,

addressed to my address set out hereinabove, or by delivering it by hand to me at the said address
hereinabove, and any notice sent by mail or by courier shall be deemed to be served on me on the
third business day following the mailing thereof. You will also provide courtesy copies of all
notices served an me to: Attention: Rona Layton, Layton Law Firm, 111 N. Market Street, #300,
San Jose, CA 95113.
16.

You sha11 be at liberty to proceed against me under this Guarantee as thoughIam

the principal, andIdo hereby waive all and any of my rights as surety which may at any time be
i
nconsistent with any of the provisions of this Guarantee.
17.

I sha11 unless otherwise instructed by you in wrzting, pay to you a1I monies and

satisfy all liabilities hereunder in United States Dollars, inclusive of any judgment ar order made
or registered against Employer. For the purpose of this clause, the rate of exchange means the
rate at which you are able on or about the date of such payment to purchase, in accordance with
your nozmal practice, the contractual currency with the payment currency and shall take into
account (andI shall be liable for) any premium and other costs of exchange including any taxes
or duties incurred by reason of any such exchange.

4
SAC 442702938v1

EXHIBIT A
Page 14 of 17

18.

If any of the provisions of this Guarantee and Undertaking becomes invalid,

illegal or unenforceable in any respect under any law, the validity, legality and enforceability of
the remaining provisions of this Guarantee and undertaking shall not in any way be affected
or impaired.
19.

I hereby acknowledge that I have read and understood the contents of this
Guarantee and Undertaking and I further warrant that Ihave sought independent legal advice in
relation to this Guarantee and Undertaking AND I fully understand the legal implications and
consequences of the same.

Dated:l

l~ ~
st unds

Dated:
1~~'`Zp`~~~

~
Signature of

arantar

i~~~~
id Sam Jalalian, Individually

138709/886513

5
SAC 44270293$v9

EXHIBIT A
Page 15 of 17

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A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California
County of ~~~-MR-~~ ~-'„p~l~' t ~O
On `b
Date
personally appeared

}
before me, .

CL t7l'~tt . 1V
Here lnse~t Name and rfle of the

~~~~

Names) of Sign~r(s)
who proved to me on the basis of satisfactory evidence to be the pers~ whose namefs) isfare~
subscribed to the within instrument and acknowledged to me that hek~eftiye.:~ executed the same in
his/~e~;~ei+~ authorized capacity, and that by his/
#heir signature(e~ an the instrument the persc~rt(s};
or the entity upon behalf of which the persc~(sj'acted, executed the instrument.
i certify under PENALTY OF PERJURY der the laws
of the State of California that the fore of g paragraph
is true and correct.
i '"

BARBARA ANNE GORIN
Gommission #~ 2071676
Notary;Pubiic - Caiiforr~a ~
Amid: County .
..
Comr». tatJul RZ 2Di8.

WITNESS m~angi and official seal.

m

Place Notary Seal Above
OPTIONAL
Though this section is optional, completing this information can deter alteration of the document or
fraudulent reattachment of this forrrr to an
ocument.
~'1S~
,,~ unint~
f~
Description of Attached D~jument
Title or Type of Document: Cam_ e,~,~, ~''t„i~L~C~M"'~~- ~Y Document Date: 10"'t~`~~"~
Number of Pages:._ Signers) Other Than Named Above:
Capacity(ies} Claimed by Signer{sj
Signer's Name:
❑ Corporate Officer —Title{s):
❑ Partner — Cl Limited D Gener
D individual
❑ At~or
Fact
ardian or Conservator
❑ Trustee
O Other:

Signer's Name:
O Corporate Officer — Titie(s):
~,,,,,,,~
❑ Partner — O Limited ❑Gen
❑ Individual
❑ Att
in Fact
❑ Trustee
uardian or Conservator
Other:

02014 National Notary Association ~ www.NationaiNatary.org • 1-800-US NOTARY (1-$00-876-6827) Item #5907

EXHIBIT A
Page 16 of 17

A notary public or other officer completing this certificate verifies only the
identity of the individual who signed the document to which this certificate
is attached, and not the truthfulness, accuracy, or validity of that document.

~

i

State of California
County of
~n

before me,

~~'~7 M~
~
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personally appeared

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Bert

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ffice
otthe o

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who proved to me on the basis of satisfactory evidence to be the persons} whose names) is/are subscribed to
the within instrument and acknowledged to me that he/shelthey executed the same in hislher/their
authorized capacity(ies), and that by his/herltheir signatures) on the instrument the person(s), or the entity
upon behalf of which the persons) acted, executed the instrument.
certify under PENALTY OF PERIURY under the laws of the
State of California that the foregoing paragraph is true and correct.
lENNlFER tETERS
COMM. #2089469 z
Notary Public • C.~librni~ ~

a

WITNESS my hand and official seal.

Salano County

Z

r

Comm. E yes Nov. 9 2018

~' „

Signature
{

(Seal}

~,r
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OPTIONAL INFORMATION
Although the information in this section is not requ+red bylaw, it could prevent fraudulent removal and reattachment of this
acknowledgment to an unauthorized document and may prove useful to persons retying on the at[ached document.

Description of Attached Document
The preceding Certificate of Acknowledgment is attached to a document
titled/for the purpose of

containing

~~,,>~, g~

..,~ :~` . ~-~- ~(

pages, and dated

1~

~ ~°

T--

~,- ~

Method of Sianer Identification
Proved to me on the basis of satisfactory evidence:
~—~ form(s) of identification ~ credible witnesses)
Notarial event (s detailed in notaryJournal on:
Page #
Entry #

~

The signers} capacity or authority is/are as:

Notary contact:

❑ Individual(s)
❑ Attorney-in-Fact
❑ Corporate Officers)

Other
Additional Signers)

❑ Signer(s) Thum6print(s)

Titles)

❑ Guardian/Conservator
❑ Partner -Limited/General
❑ Trustee(s)
❑ Other:

representing:
',

~

_

~~ e(s) of Persons) or Entity(ies) Signer is Representing

EXHIBIT A
Page 17 of 17

O Copyright 2007-2014 Notary Rotary, Inc. PO box 41400, Des Moines, IA 50311-0507. All Rights Reserved. Item Number 101772. Please contact your Authorized Reseller to purchase copies of this form.