Opinion
Case No. C 04-1819 VRW.
July 26, 2004
MURIEL B. KAPLAN, ESQ., MICHELE R. STAFFORD, ESQ., SALTZMAN JOHNSON LAW CORPORATION, San Francisco, CA, Attorneys for Plaintiffs, BAY AREA PAINTERS AND TAPERS PENSION FUND, et al.
JUDGMENT PURSUANT TO STIPULATION
IT IS HEREBY STIPULATED by and between the parties hereto, that Judgment in the within action may be entered in favor of the plaintiffs and against defendant CD Lathing, Inc. as follows:
1. Defendant entered into a valid collective bargaining agreement with the District Council 16 of the International Union of Painters and Allied Trades (hereinafter "Bargaining Agreement"). This Bargaining Agreement has continued in full force and effect to the present time.
2. Pursuant to the Bargaining Agreement and the Trust Agreements of Plaintiff Funds as amended, which are incorporated into the Bargaining Agreement, defendant is indebted to plaintiffs in the sum of $26,153.19 representing contributions owing under the Bargaining Agreement for hours worked for the months of December, 2003 through February, 2004, liquidated damages of 10% and 7% per annum interest for these months; underpaid contributions for the months of August, 2003 through November, 2003 and liquidated damages of 10% and interest of 7% for these months plus attorneys' fees and costs of this action as follows:
Contributions (12/03-2/04) $14,147.95 Liquidated Damages @ 10% (12/03-2/04) $1,414.80 Underpaid Contributions (8/03-11/03) $2,664.44 Liquidated Damages @ 10% (8/03-11/03) $4,089.67 Interest at 7% per annum (8/03-11/03 through $749.37 date of payment, 12/03-2/04 through 6/30/04) Attorneys Fees (through 6/30/04) $4,407.00 Costs of Suit $185.93 SUB TOTAL $27,718.80 Credit for Payment from Balfour Beatty ($1,565.61) TOTAL $26,153.19
3. Defendant shall conditionally pay the sum of $22,063.52 to plaintiffs, consisting of the amounts shown in paragraph 2 above, as reduced by liquidated damages of $4,407.00, upon approval of plaintiffs' Trustees and on the condition that all payments herein are timely satisfied as follows: as follows: Starting on July 20, 2004 and on or before the 20th of each month thereafter for a period of 12 months, defendant shall pay the sum of $1,909.10. Additionally:
i. Defendant shall have the right to increase the monthly payments at any time;
ii. Payments shall be applied first to unpaid interest and then to unpaid principal. The unpaid principal balance shall bear interest at the rate of 7% per annum from July 1, 2004, until paid in full, in accordance with plaintiffs' Trust Agreements;
iii. Payments shall be made by check made payable to the Bay Area Painters and Tapers Trust Funds, and delivered to Saltzman Johnson Law Corporation, 120 Howard Street, Suite 520, San Francisco, CA 94105 on or before the 20th of each month as stated above, or to such other address as may be specified by plaintiffs. In the event that any check submitted by defendant fail to clear the bank, or be unable to be negotiated for any reason, this shall be considered to be a default on the Judgment entered. If this occurs, plaintiffs shall make a written demand to defendant to cure said default. Default will only be cured by the issuance of a replacement, cashier's check, delivered to Saltzman and Johnson Law Corporation within seven (7) days of the date of the notice from plaintiffs. If defendant elects to cure said default, and plaintiffs elect to accept future payments, all such payments shall be made by cashier's check.
iv. Prior to defendant's final payment hereunder, plaintiffs shall advise defendant in writing of the balance due under the terms of this Stipulation, including plaintiffs' determination as to the conditional waiver of liquidated damages, and that amount shall be paid in full in satisfaction of defendant's debt to plaintiffs. In the event that said waiver is not granted, defendant will continue making monthly payments as referenced above until all amounts due under the terms of this Stipulation re satisfied.
4. Beginning with contributions due for hours worked by defendant's employees during the month of June, 2004, to be received by the Trust Funds no later than July 20, 2004, and for every month thereafter until this judgment is satisfied, defendant shall remain current in contributions due to plaintiffs under the current Collective Bargaining Agreement and under all subsequent collective bargaining agreements, if any, and the Declarations of Trust as amended. Copies of defendant's monthly reports and contribution checks shall be faxed to plaintiffs' counsel at (415) 882-9287 prior to their mailing to the Trust Funds. Failure by Defendant to remain current in its contributions shall constitute a default of the obligations under this agreement and the provisions of Paragraph 6 shall apply. Any such unpaid or late paid contributions, together with 10% liquidated damages and 7% per annum interest accrued on that total, shall be added to and become a part of this Judgment and subject to the terms herein. Plaintiffs reserve all rights available under the applicable Bargaining Agreement and Declarations of Trust of the Trust Funds for collection of current and future contributions and the provisions of this agreement are in addition thereto.
5. It is further stipulated and agreed that Curtis Dilley, President of Defendant CD Lathing, Inc., shall personally guarantee payment of the amounts owed by defendant to the plaintiffs, under the terms of this Stipulation. In consideration of the terms of this Stipulation, defendant, and Dilley ("Guarantor"), submit herein to the jurisdiction of this Court and stipulate to the terms set forth herein for any additional payments due to Plaintiffs pursuant to paragraphs 3 and 4 herein.
6. In the event that Defendant or its Guarantor fails to make any payment required under Paragraph 3 above, or fail to remain current in any contributions under paragraph 4 above, then,
(A) The entire balance of $26,153.19, less principal payments received by Plaintiffs, but increased by any unpaid contributions then due, plus 10% liquidated damages and 7% per annum interest thereon as provided in above paragraph 4 shall be immediately due, together with any additional attorneys' fees and costs under section (D) below.
(B) A writ of execution may be obtained against Defendant, and/or Guarantor Curtis Dilley without further legal action, in the amount of the unpaid balance, plus any additional amounts under the terms herein, upon declaration of a duly authorized representative of the plaintiffs setting forth any payment theretofore made by or on behalf of defendant and the balance due and owing as of the date of default.
(C) Defendant, and Guarantor Dilley waive notice of entry of judgment and expressly waive all rights to stay of execution and appeal. Judgment may be entered by a magistrate or a judge without the necessity of a noticed motion.
(D) Defendant, or Guarantor Dilley shall pay all additional costs and attorneys' fees incurred by plaintiffs in connection with collection of the amounts owed by defendant to plaintiffs under this Stipulation.
7. Any failure on the part of the plaintiffs to take any action against defendant or Guarantor Dilley 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 by the defendant or Guarantor of any provisions herein.
8. In the event of the filing of a bankruptcy petition by defendant, the parties agree that any payments made by defendant pursuant to the terms of this judgment, shall be deemed to have been made in the ordinary course of defendant's business as provided under 11 U.S.C. § 547(c)(2) and shall not be claimed by defendant as a preference under 11 U.S.C. § 547 or otherwise.
9. Plaintiffs specifically reserve all rights to bring a subsequent action against defendant and Guarantor for the collection of any additional contribution delinquencies found to be due for the hours worked during the periods preceding the date of this Stipulation. Defendant and Guarantor specifically waive the defense of the doctrine of res judicata in any such action.
IT IS SO ORDERED.