Operating Engineers' Health and Welfare Trust Fund for Northern California et al v. Central Valley Construction

Filing 29

STIPULATION AND ORDER re 28 . STIPULATION WITH PROPOSED ORDER STIPULATION TO CONTINUE MEDIATION DEADLINE; [PROPOSED] ORDER THEREON filed by Richard Piombo, Operating Engineers Local 3 of the International Union of Operating Engineer s, AFL-CIO, Pensioned Operating Engineers' Health and Welfare Trust Fund, Operating Engineers and Participating Employers Pre-Apprentice, Apprentice and Journeymen Affirmative Action Training Fund, Pension Trust Fund For Operating Engineer s, Operating Engineers' Health and Welfare Trust Fund for Northern California, Heavy and Highway Committee, Russell E. Burns, Central Valley Construction. Mediation deadline continued to 11/13/18. Signed by Magistrate Judge Kandis A. Westmore on 9/26/18. (sisS, COURT STAFF) (Filed on 9/26/2018)

1 Michele R. Stafford, Esq. (SBN 172509)
Matthew P. Minser, Esq. (SBN 296344)
2 SALTZMAN & JOHNSON LAW CORPORATION
1141 Harbor Bay Parkway, Suite 100
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Alameda, California 94502
4 Telephone: [phone]
Email: [e-mail]
5 Email: [e-mail]
6 Attorneys for Plaintiffs, Operating Engineers’ Health
and Welfare Trust Fund For Northern California, et al.
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David Johnston (SBN 71367)
8 Attorney at Law
1600 G Street, Suite 102
9 Modesto, California 95354
Telephone: [phone]
10 Facsimile: [phone]
Email: [e-mail]
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Attorneys for Defendant Central Valley Construction
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UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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OPERATING ENGINEERS’ HEALTH AND
WELFARE TRUST FUND FOR
NORTHERN CALIFORNIA, et al.,

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STIPULATION TO CONTINUE
MEDIATION DEADLINE; [PROPOSED]
ORDER THEREON

Plaintiffs,
v.

Magistrate Judge: Kandis A. Westmore

CENTRAL VALLEY CONSTRUCTION, a
California corporation;
Defendant.

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Case No.: 17-cv-02365-KAW

The parties in the above-titled action hereby stipulate and respectfully request that the
mediation deadline, currently scheduled for September 28, 2018, be continued for approximately
forty-five (45) days. Good cause exists for the granting of a continuance, as follows:
1.

As the Court’s records will reflect, on July 12, 2017, the parties in this matter filed

a Stipulation agreeing to participate in mediation (Dkt. #13).

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STIPULATION TO CONTINUE MEDIATION DEADLINE; [PROPOSED] ORDER THEREON
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Case No.: C17-02365KAW

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2.

On July 17, 2017, the Court issued an Order (“Order”) referring this matter to

2 mediation (Dkt. #14). Pursuant to the Order, the deadline for the parties to complete mediation
3 was October 11, 2017.
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3.

On August 15, 2017, the Court issued a Notice appointing Geoffrey White as

5 mediator (Dkt. #17).
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4.

On August 28, 2017, the parties participated in a pre-mediation conference call

7 with Mr. White whereby the participants concluded that a mediation date would be set after the
8 parties had a further opportunity to meet and confer.
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5.

Thereafter, the Defendant contacted Plaintiffs’ Auditor and scheduled an audit

10 appointment for October 26, 2017. The Defendant provided Plaintiffs’ Auditor with some
11 documentation necessary to conduct the audit.
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6.

Plaintiffs requested additional documentation that they allege is necessary to

13 complete the audit. Specifically, Plaintiffs allege that the Defendant has failed to provide its cash
14 disbursements journal (or equivalent records) to Plaintiffs’ Auditor. This is standard
15 documentation required for compliance with payroll audits for ERISA Trust Funds. Plaintiffs’
16 Counsel has detailed to Defendant’s Counsel what equivalent alternative documents can be
17 provided. Nevertheless, the requested records still remain outstanding.
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7.

Plaintiffs issued discovery to Defendant’s Counsel on or about May 22, 2018. The

19 discovery requested information that would ordinarily be disclosed by an employer’s cash
20 disbursements journal. No response to the discovery was received.
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8.

Plaintiffs thereafter issued a detailed Meet and Confer letter to Defendant’s

22 Counsel on or about August 2, 2018. The discovery responses remain outstanding and no
23 additional information has been produced by Defendant. In response to the Meet and Confer letter,
24 Defendant’s Counsel only responded that he would forward the letter to his client. Plaintiffs also
25 demanded that Defendant’s Counsel provide his availability for a Meet and Confer telephone
26 conference pursuant to Judge Westmore’s Standing Order. No availability was provided.
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9.

Plaintiffs have now demanded that a Meet and Confer pursuant to Judge

28 Westmore’s Standing Order take place telephonically on October 10, 2018 at 10:00 a.m. If the
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STIPULATION TO CONTINUE MEDIATION DEADLINE; [PROPOSED] ORDER THEREON
Case No.: C17-02365KAW

P:\CLIENTS\OE3CL\Central Valley Construction\Pleadings\Word Versions\Stipulation To Continue Mediation Deadline_92618.doc

1 Meet and Confer is not successful, Plaintiffs’ Counsel will demand Defendant’s Counsel’s
2 participation in the filing of a Joint Discovery Letter Brief to occur within 14 days after the Meet
3 and Confer call.
10.

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Plaintiffs allege that a fruitful mediation session cannot take place until Defendant

5 responds to Plaintiffs’ discovery, or informally produces the records requests by Plaintiffs’
6 Counsel and Auditor. Plaintiffs’ Counsel alleges that this dispute likely could not be resolved
7 during mediation since it requires the physical production of documents and detailed review
8 of the documents by Plaintiffs’ Auditor thereafter. Plaintiffs allege that the Parties will be in
9 the best position to mediate (and will best utilize the mediator’s donated time) once Plaintiffs’
10 Auditor has the information necessary to generate an audit report, and meaningful discussions can
11 be had regarding the report itself (and any dispute thereto), and/or the amounts due therein.
11.

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Defendant’s counsel alleges that Defendant provided hundreds of pages of bank

13 statements and paid checks to Plaintiffs’ counsel to be delivered to the auditor and Defendant is
14 gathering additional documents requested by the audit, none of which involve the three employees
15 utilized on the particular job in issue. Defendant’s counsel has been out of his office due to the
16 serious medical condition of his wife and assisting his brother in a regimen of chemotherapy and
17 radiation for Stage 4 esophageal cancer.
12.

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Accordingly, the Parties contend that there is nothing to mediate at the current time

19 and the parties therefore request an extension of the mediation deadline to allow the Parties to
20 Meet and Confer telephonically, as demanded by Plaintiffs’ Counsel, to occur on October 10,
21 2018, and to allow time for the filing of a Joint Discovery Letter Brief, to occur within 14 days
22 after the Meet and Confer call.
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STIPULATION TO CONTINUE MEDIATION DEADLINE; [PROPOSED] ORDER THEREON
P:\CLIENTS\OE3CL\Central Valley Construction\Pleadings\Word Versions\Stipulation To Continue Mediation Deadline_92618.doc
Case No.: C17-02365KAW

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13.

Therefore, the parties hereby stipulate and respectfully request that the mediation

2 deadline, currently set for September 28, 2018, be continued for approximately forty-five 45 days
3 to allow resolution of the outstanding discovery dispute prior to attending mediation.
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5 Dated: September 26, 2018

SALTZMAN & JOHNSON LAW CORPORATION

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By: _______/S/______________________
Matthew P. Minser, Esq.
Attorneys for Plaintiffs Health and Welfare Trust
Fund for Northern California et. al

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Dated: September 26, 2018

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By: /S/ David C. Johnson
___________
David C. Johnston
Attorney for Defendant Central Valley
Construction

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IT IS SO ORDERED.
Based on the foregoing, and GOOD CAUSE APPEARING, the currently set mediation

11/13/18
15 deadline is hereby continued to _______________, and all related deadlines are extended

16 accordingly.
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9/26/18
Date: ____________________

_________________________________________
JUDGE KANDIS A. WESTMORE
UNITED STATES MAGISTRATE JUDGE

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ATTESTATION CERTIFICATE
In accord with the Northern District of California’s Civil Local Rule 5-1, I attest that

22 concurrence in the filing of this document has been obtained from each of the other signatories
23 who are listed on the signature page.
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Dated: September 26, 2018

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By:

/S/
Matthew P. Minser, Esq.
Attorneys for Plaintiffs

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STIPULATION TO CONTINUE MEDIATION DEADLINE; [PROPOSED] ORDER THEREON
P:\CLIENTS\OE3CL\Central Valley Construction\Pleadings\Word Versions\Stipulation To Continue Mediation Deadline_92618.doc
Case No.: C17-02365KAW