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

Filing 31

STIPULATION AND ORDER re 30 . MOTION to Continue JOINT REQUEST TO CONTINUE CASE MANAGEMENT; [PROPOSED] ORDER THEREON filed by Richard Piombo, Operating Engineers Local 3 of the International Union of Operating Engineers, 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 Engineers, Operating Engineers' Health and Welfare Trust Fund for Northern California, Heavy and Highway Committee, Russell E. Burns, Central Valley Construction. Case Management Statement due by 12/11/2018. Initial Case Management Conference set for 12/18/2018 01:30 PM in Oakland, Courtroom 4, 3rd Floor. Signed by Magistrate Judge Kandis A. Westmore on 10/10/18. (sisS, COURT STAFF) (Filed on 10/10/2018)

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Michele R. Stafford, Esq. (SBN 172509)
Matthew P. Minser, Esq. (SBN 296344)
SALTZMAN & JOHNSON LAW CORPORATION
1141 Harbor Bay Parkway, Suite 100
Alameda, California 94502
Telephone: [phone]
Email: [e-mail]
Email: [e-mail]

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Attorneys for Plaintiffs, Operating Engineers’ Health
and Welfare Trust Fund For Northern California, et al.

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David Johnston (SBN 71367)
Attorney at Law
1600 G Street, Suite 102
Modesto, California 95354
Telephone: [phone]
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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NORTHERN DISTRICT OF CALIFORNIA

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OPERATING ENGINEERS’ HEALTH AND
WELFARE TRUST FUND FOR NORTHERN
CALIFORNIA, et al.,

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Case No.: 17-cv-02365-KAW
JOINT REQUEST TO CONTINUE CASE
MANAGEMENT; [PROPOSED] ORDER
THEREON:
x
Date:
Tuesday, October 16, 2018
Time:
1:30 p.m.
Ctrm:
4, Third Floor
1301 Clay Street
Oakland, California
Judge:
Hon. Magistrate Judge
Kandis A. Westmore :
x

Plaintiffs,
v.
CENTRAL VALLEY CONSTRUCTION, INC., a
California corporation;

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Defendant.

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Plaintiffs Operating Engineers’ Health and Wealth Trust Fund, et al. and Defendant Central
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Valley Construction, Inc. (collectively, “the Parties”) respectfully request that the Case Management
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Conference, currently on calendar for March 6, 2018, be continued for approximately sixty to ninety
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(60-90) days. Good cause exists for the granting of the continuance, as follows:
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1.

As the Court’s records will reflect, this action was filed on April 26, 2017 (Dkt. #1).

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JOINT REQUEST TO CONTINUE
CASE MANAGEMENT CONFERENCE; [PROPOSED] ORDER THEREON
C:\Users\IMBRIA~1\AppData\Local\Temp\notes06E812\Request to Continue CMC - 100918.docx
Case No.: 17-cv-02365-KAW

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Defendant was personally served on May 4, 2017, and a Proof of Service of Summons was filed with the

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Court on May 25, 2017 [Dkt. #9.] Defendant retained counsel and counsel for Defendant filed an

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Answer to Complaint [Dkt. #8.]

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2.

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

[Dkt. #14.]
3.

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

[Dkt. #17.]
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On August 28, 2017, the parties participated in a pre-mediation conference call with Mr.

White whereby the participants concluded that a mediation date would be set after the parities had a
further opportunity to meet and confer.
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Thereafter, the Defendant contacted Plaintiffs’ Auditor and scheduled an audit

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appointment for October 26, 2017. The Defendant provided Plaintiffs’ Auditor with some

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documentation necessary to conduct the audit.

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6.

Plaintiffs requested additional documentation that they allege is necessary to complete

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the audit. Specifically, Plaintiffs allege that the Defendant has failed to provide its cash disbursements

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journal (or equivalent records) to Plaintiffs’ Auditor. This is standard documentation required for

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compliance with payroll audits for ERISA Trust Funds. Plaintiffs’ Counsel has detailed to Defendant’s

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Counsel what equivalent alternative documents can be provided. Nevertheless, the requested records still

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remain outstanding.

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7.

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

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discovery requested information that would ordinarily be disclosed by an employer’s cash disbursements

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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 Counsel on or

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about August 2, 2018. The discovery responses remain outstanding and no additional information has

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been produced by Defendant. In response to the Meet and Confer letter, Defendant’s Counsel only

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responded that he would forward the letter to his client. Plaintiffs also demanded that Defendant’s

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Counsel provide his availability for a Meet and Confer telephone conference pursuant to Judge

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JOINT REQUEST TO CONTINUE
CASE MANAGEMENT CONFERENCE; [PROPOSED] ORDER THEREON
C:\Users\IMBRIA~1\AppData\Local\Temp\notes06E812\Request to Continue CMC - 100918.docx
Case No.: 17-cv-02365-KAW

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Westmore’s Standing Order. No availability was provided.
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Plaintiffs demanded that a Meet and Confer pursuant to Judge Westmore’s Standing

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Order take place telephonically on October 10, 2018 at 10:00 a.m. If the Meet and Confer is not

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successful, Plaintiffs’ Counsel will demand Defendant’s Counsel’s participation in the filing of a Joint

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Discovery Letter Brief to occur within 14 days after the Meet and Confer call.

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10.

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

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statements and paid checks to Plaintiffs’ counsel to be delivered to the auditor and Defendant is

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gathering additional documents requested by the audit, none of which involve the three employees

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utilized on the particular job in issue. Defendant’s counsel has been out of his office due to the serious

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medical condition of his wife and assisting his brother in a regimen of chemotherapy and radiation for

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Stage 4 esophageal cancer.

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11.

Plaintiffs contend that the discovery dispute must be resolved before the matter can move

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forward. The timeline relative to the discovery dispute has been set forth above. Once the discovery

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dispute has been resolved, and Plaintiffs’ Auditor confirms that the documents needed to complete the

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audit have been provided, the Parties intend to go to mediation regarding any dispute of the audit report

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itself and the amounts owed to the Plaintiffs.

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JOINT REQUEST TO CONTINUE
CASE MANAGEMENT CONFERENCE; [PROPOSED] ORDER THEREON
C:\Users\IMBRIA~1\AppData\Local\Temp\notes06E812\Request to Continue CMC - 100918.docx
Case No.: 17-cv-02365-KAW

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12.

Therefore, there are no issues that need to be addressed by the parties at the currently

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scheduled Case Management Conference. In the interest of conserving costs, as well as the Court’s time

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and resources, the Parties respectfully request that the upcoming Case Management Conference be

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continued for approximately sixty to ninety (60-90) days, or until after the mediation has taken place, to

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allow sufficient time to attempt to resolve the matter.

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Executed this 9th day of October 2018 at San Francisco, California.

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SALTZMAN & JOHNSON LAW CORPORATION

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By:
/S/
Matthew P. Minser
Attorneys for Plaintiffs, Operating Engineers’ Health
and Welfare Trust Fund For Northern California, et
al.

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DAVID C. JOHNSTON, ATTORNEY AT LAW

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/S/
David C. Johnston
Attorney for Defendant, Central Valley Construction

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IT IS SO ORDERED.
The

currently

set

Case

Management

Conference

is

hereby

continued

to

December 18, 2018
1:30 p.m.
__________________________ at __________________, and all previously set deadlines and dates

related to this case are continued accordingly, or, alternatively, Plaintiffs may appear at the Case
Management Conference by telephone.
10/10
DATED: _________, 2018

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UNITED STATES MAGISTRATE JUDGE

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JOINT REQUEST TO CONTINUE
CASE MANAGEMENT CONFERENCE; [PROPOSED] ORDER THEREON
C:\Users\IMBRIA~1\AppData\Local\Temp\notes06E812\Request to Continue CMC - 100918.docx
Case No.: 17-cv-02365-KAW

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ATTESTATION CERTIFICATE

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

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concurrence in the filing of this document has been obtained from each of the other signatories who are

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listed on the signature page.

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Dated: October 9, 2018
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/S/

By:
Matthew P. Minser
Attorneys for Plaintiffs

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C:\Users\IMBRIA~1\AppData\Local\Temp\notes06E812\Request to Continue CMC - 100918.docx

ATTESTATION CERTIFICATE
Case No.: 17-cv-02365 KAW