District Council 16 Northern California Health and Welfare Trust Fund and its Joint Board of Trustees et al v. Molina's Painting & Wallcovering, Inc. et al

Filing 16

ORDER ENTERING AMENDED JUDGMENT PURSUANT TO STIPULATION by Judge Yvonne Gonzalez Rogers granting 15 Stipulation. (fs, COURT STAFF) (Filed on 12/22/2020)

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Michele R. Stafford, Esq. (SBN 172509)
Matthew P. Minser, Esq. (SBN 296344)
Ana P. Hallmon (SBN 253309)
SALTZMAN & JOHNSON LAW CORPORATION
1141 Harbor Parkway, Suite 100
Alameda, CA 94502
Telephone: [phone]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]
Attorneys for Plaintiffs, District Council 16 Northern
California Health and Welfare Trust Fund, et al.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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

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Plaintiffs,

Case No.: 4:17-CV-00370-YGR

ORDER ENTERING

AMENDED JUDGMENT
PURSUANT TO STIPULATION;
[PROPOSED] ORDER THEREON

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v.
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MOLINA’S PAINTING & WALLCOVERING, INC.,
a California corporation; and OSCAR MOLINA, an
individual,
Defendants.

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

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hereto, an Amended Judgment shall be entered in the within action in favor of Plaintiffs District Council

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

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Defendant, Molina’s Painting & Wallcovering, Inc., a California corporation, and Defendant Oscar

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Molina, an individual (collectively “Defendants”), as follows:

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Plaintiffs and Defendants entered into a Judgment Pursuant to Stipulation which was

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entered by this Court on February 17, 2017. [Dkt. #12]. The Judgment Pursuant to Stipulation (“Original

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Judgment”) provided a payment plan for amounts owed to the Plaintiffs from Defendants.
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2.

Defendants made payments as required under the Original Judgment, but additional

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amounts have come due. The Parties have now agreed to enter into an Amended Stipulated Judgment for

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the amounts remaining due in this action.

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3.

Defendant Molina’s Painting & Wallcovering, Inc. (“Molina’s Painting”) is signatory to

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and bound by the terms of a Collective Bargaining Agreement(s) (“Bargaining Agreement”) with

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District Council No. 16 of the International Union of Painters and Allied Trades (“Union”). The

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Bargaining Agreement is still in full force and effect.

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4.

Oscar Molina confirms that he is the RMO / CEO / President of Defendant Molina’s

Painting and is authorized to enter into this Stipulation on behalf of Molina’s Painting.
5.

Oscar Molina (“Guarantor”) also confirms that he is personally guaranteeing the amounts

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due herein. Defendants Molina’s Painting and Oscar Molina (collectively “Defendants”) specifically

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

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

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and affiliated entities (including, but not limited to, parent or other controlling companies), and any

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companies with which Defendant Molina’s Painting joins or merges, if any, shall also be bound by the

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terms of this Stipulation as Guarantors. This shall include any additional entities in which Guarantor is

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

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

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

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6.

Defendants are currently indebted to the Trust Funds as follows:
Work Month

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Unpaid
Contributions

August 2019
September 2019
Subtotals:
Audit
(5/1/16-9/30/19)

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20%
5%
Liquidated Interest
Damages
$0.00
$28,489.41
$0.00
$0.00
$50,081.85
$0.00
$0.00
$78,571.26
$0.00
Contribution Underpayments:
20% Liquidated Damages:
5% Interest (through 4/30/19):
Additional 5% Interest Owed
(5/1/19-11/30/20):
Subtotal (Audit 5/1/16-9/30/19):
Attorneys’ Fees (2/4/17-11/30/20):

Subtotals

$28,489.41
$50,081.85
$78,571.26
$19,838.91
$3,967.78
$2,327.40
$1,577.60
$27,711.69
$11,763.00

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Work Month

Unpaid
Contributions

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20%
5%
Liquidated Interest
Damages
Costs (2/4/17-11/30/20):
Grand Total:

Subtotals

$20.00
$118,065.95

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REQUIREMENTS UNDER THE TERMS OF THIS STIPULATION

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5.

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

Notices to Defendants: Oscar Molina, 510 Westaire Blvd., Martinez, CA 94553;
email: [e-mail]

b)

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Notices to Plaintiffs: Ana Hallmon, Saltzman & Johnson Law Corporation, 1141
Harbor Bay Parkway, Suite 100, Alameda, CA 94502; email:
[e-mail] , copy to [e-mail].

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6.

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

Monthly Payments: Defendants shall pay the amount of $114,098.17

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representing all of the above amounts, less liquidated damages totaling $3,967.78, which is conditionally

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waived provided that Defendants timely make all monthly payments pursuant to the terms of this

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Amended Judgment.
i)

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Payments in the amount of $5,005.65 per month shall begin on December

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15, 2020, and continue on or before the 15th (fifteenth) day of each month thereafter for a period of

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twenty-four (24) months. Plaintiffs may require that Defendants pay electronically by ACH/wire

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transfer, or by cashier’s check.
ii)

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

time and there is no penalty for prepayment.
iii)

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

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accordance with the Bargaining Agreement(s) and Trust Agreements. Interest shall begin to accrue on

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December 1, 2020.

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b)

Contributions: Beginning with contributions due for hours worked by

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Defendants’ employees during the month of November 2020, and for every month thereafter until this

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Judgment is satisfied, Defendants shall remain current in reporting and payment of contributions due to

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Plaintiffs under the terms of the Collective Bargaining Agreement(s). Defendants are required to enroll
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in iRemit, the online platform for reporting and payment of contributions to the Plaintiff Trust Funds

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and to submit all monthly contribution reports and payments electronically through iRemit. Defendants

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are to contact [e-mail] to set up online reporting and payment.

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c)

Job Report: Beginning with the month of November 2020, and for every month

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thereafter, Defendants shall fully disclose all jobs on which they are working by providing Plaintiffs

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with fully completed job reports on the form attached hereto as Exhibit A. Upon request by Plaintiffs,

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Defendants shall also provide Plaintiffs with copies of Certified Payroll Reports.

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d)

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

pursuant to the requirements of the Bargaining Agreement(s) and/or Trust Agreements, Defendants must
contact the auditor within seven days of receiving notice, and must schedule the audit.

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i)

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

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

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the event that the audit findings are not contested, payment in full shall be delivered to Ana Hallmon at

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the address provided above.

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ii)

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

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

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

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

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amount shall be immediately due.

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iii)

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

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

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

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agreement shall constitute a default of the terms herein.

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iv)

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

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

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

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e)

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

through Satisfaction of Judgment, whether or not a default occurs.
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7.

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

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

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has been fully satisfied:

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Required Submissions

Delivery deadlines

Delivery locations

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Stipulated payments in the
amount of $5,005.65 payable to
District Council 16 Northern
California Trust Funds
Current contribution reports
and payments
payable to District Council 16
Northern California Trust Funds

15th day of each month
(12/15/20-11/15/22)

Ana Hallmon
Saltzman & Johnson Law Corp.
1141 Harbor Bay Parkway, #100
Alameda, CA 94502
Electronically via iRemit

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

15th day of each month
(beginning 12/15/20,
for 11/20 hours)

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15th day of each month
(beginning 12/15/20,
for 11/20 hours)

and Certified Payroll (if
requested)

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8.

Plus copies to:
[e-mail]
(subject: “Molina’s Painting”)
[e-mail]
(subject: “Molina’s Painting”)
or
Ana Hallmon
Saltzman & Johnson Law Corp.
1141 Harbor Bay Parkway, #100
Alameda, CA 94502

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

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not clear the bank, or failing to endorse a joint check provided for the payment of amounts due under the

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terms of this Stipulation including current contributions, shall constitute a default of the obligations

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under this Stipulation.
DEFAULTS UNDER THE TERMS OF THIS STIPULATION

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9.

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

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

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

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

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any conditionally waived liquidated damages, and additional attorney’s fees and costs incurred herein.

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10.

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

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

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

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due pursuant to employee timecards or paystubs, by audit, or other means. Should Defendants fail to
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submit a report for any month, contributions shall be estimated pursuant to Trust Fund policy.

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

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determined as due.

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

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

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

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balance due as of the date of default.

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MISCELLANEOUS PROVISIONS

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12.

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

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Defendant Molina’s Painting & Wallcovering, Inc. has ongoing work, whether Defendant Molina’s

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Painting’s account with the Trust Funds is active, or whether Defendant Molina’s Painting &

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Wallcovering, Inc. is signatory to a Collective Bargaining Agreement with the Union. If, for any reason,

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Defendant Molina’s Painting & Wallcovering, Inc. has no work to report during a given month,

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Defendant Molina’s Painting & Wallcovering, Inc. shall submit the job report form (Exhibit A attached

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hereto) indicating that there are no current jobs. If Defendant Molina’s Painting & Wallcovering, Inc.

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has no contributions to report, Defendant Molina’s Painting & Wallcovering, Inc. shall submit the

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applicable contribution report stating “no employees.”

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13.

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

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

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

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

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

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included in this Stipulation.

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14.

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

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

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

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Any additional amounts due shall be paid in full with the final stipulated payment due on November 15,

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2022.
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15.

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

Execution, and expressly waive all rights to stay of execution and appeal.
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Any failure on the part of Plaintiffs to take any action as provided herein in the event of

any breach of the provisions of this Stipulation shall not be deemed a waiver of any subsequent breach.
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The parties agree that any payments made pursuant to the terms of this Judgment shall be

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

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

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otherwise.

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18.

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

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

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

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

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19.

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

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

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

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

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

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

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20.

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

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

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all parties hereto.

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21.

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

which shall be deemed an original and all of which shall constitute the same instrument.
22.

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

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

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

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

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//
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YVONNE GONZALEZ ROGERS

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Exhibit A: JOB REPORT FORM
Completed Forms Due by the last business day of each month
by email to [e-mail] (subject line: Molina’s Painting), or
delivered to Saltzman & Johnson, 1141 Harbor Bay Parkway, Ste. 100, Alameda, CA 94502
Employer: Molina’s Painting & Wallcovering, Inc.
Report for the month of _______________, 20__ Submitted by: ______________________

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Project Name:

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Project Address:

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General Contractor:

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Public or Private?
(Circle one)

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

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

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Total Contract Value:
Work Start Date:

Work Completion
Date:
Surety:

Project Bond #:

Project Name:

Public or Private?
(Circle one)

Project Address:

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General Contractor:

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

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Total Contract Value:

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Work Start Date:

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Project Bond #:

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

Work Completion
Date:
Surety:

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***Attach additional sheets as necessary**
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