Opinion
Case No.: C12-0367WHA
03-18-2013
F.G. CROSTHWAITE and RUSSELL E. BURNS, in their respective capacities as Trustees of the OPERATING ENGINEERS' HEALTH AND WELFARE TRUST FUND, et al., Plaintiffs, v. MURRAY STEVEN WEBER, Individually and dba MURRAY WEBER TRUCK & TRACTOR SERVICE, aka WEBER TRACTOR SERVICE, aka MURRAY WEBER TRUCKING & TRACTOR, aka MURRAY WEBER TRACTOR SERVICE, Defendant.
MURRAY STEVEN WEBER Murray Steven Weber, Sole Owner of Murray Weber Truck & Tractor Service aka Weber Tractor Service, aka Murray Weber Trucking & Tractors, aka Murray Weber Trucking Service OPERATING ENGINEERS TRUST FUNDS David Hayner Collections Manager, Operating Engineers' Health & Welfare Trust Fund, et al. SALTZMAN & JOHNSON LAW CORPORATION Muriel B. Kaplan Attorneys for Plaintiffs
Muriel B. Kaplan, Esq, (SBN 124607)
Michele R. Stafford, Esq. (SBN 172509)
SALTZMAN & JOHNSON LAW CORPORATION
44 Montgomery Street, Suite 2110
San Francisco, CA 94104
Telephone: (415) 882-7900
Facsimile: (415) 882-9287
mkaplan@sjlawcorp. com
mstafford@sjlawcorp.com
Attorneys for Plaintiffs
FIRST AMENDED JUDGMENT
PURSUANT TO STIPULATION
IT IS HEREBY STIPULATED by and between the parties hereto, that this First Amended Judgment Pursuant to Stipulation ("First Amended Stipulation") shall be entered in the within action in favor of the Plaintiffs OPERATING ENGINEERS HEALTH AND WELFARE TRUST FUND, et al. (collectively "Plaintiffs" or "Trust Funds") and against Defendant MURRAY STEVEN WEBER, Individually and dba MURRAY WEBER TRUCK & TRACTOR SERVICE, aha WEBER TRACTOR SERVICE, aka MURRAY WEBER TRUCKING & TRACTOR, aka MURRAY WEBER TRACTOR SERVICE, a California Corporation, and/or alter egos and/or successor entities, ("Defendant" or "Weber"), as follows.
2. All provisions of the Judgment Pursuant to Stipulation ("Stipulation"), entered by the Court on May 31, 2012, shall remain in full force and effect and incorporated herein, except paragraphs 2, 3, 4, and 10, which are amended and agreed as follows. References to Defendant herein shall continue to include Guarantor, but all references to "Blake E. Williams" in the Stipulation shall refer herein instead to "Muriel B. Kaplan."
In addition, paragraph 9 of the Stipulation is revised only insofar as to add notice to be given to MurrayWeberConst @aol .com as well as nstieren@comcast .com, in the event of default of any of the terms of the Stipulation and/or First Amended Stipulation. Revised ¶2:
2. The parties agree that Defendant remains and has become further indebted to the Trust Funds as follows, although some payments have been represented as recently paid, as noted below the "Total":
+------------------------------------------------------------------------------------------------------------------+ ¦ ¦Principal ¦Liquidated Damages ¦Interest ¦Totals ¦ +------------------------------------------+-------------+--------------------+-----------------------+------------¦ ¦Stipulation balance (as of 8/20/12) ¦$29,822.08 ¦ ¦ ¦ ¦ +------------------------------------------+-------------+--------------------+-----------------------+------------¦ ¦Conditionally waived Liquidated Damages in¦ ¦$8,341.05 ¦ ¦ ¦ ¦Stipulation ¦ ¦ ¦ ¦ ¦ +------------------------------------------+-------------+--------------------+-----------------------+------------¦ ¦10% p/a Interest on Stipulation ¦ ¦ ¦$1,315.44 ¦ ¦ ¦Conditional Balance (8/21/12-1/28/13) ¦ ¦ ¦ ¦ ¦ +------------------------------------------+-------------+--------------------+-----------------------+------------¦ ¦ ¦ ¦ ¦ ¦$39,478.57 ¦ +------------------------------------------+-------------+--------------------+-----------------------+------------¦ ¦6/12 Contributions ¦$2,486.00 ¦ ¦ ¦ ¦ +------------------------------------------+-------------+--------------------+-----------------------+------------¦ ¦20% Liquidated Damages ¦ ¦$497.20 ¦ ¦ ¦ +------------------------------------------+-------------+--------------------+-----------------------+------------¦ ¦10% p/a Interest (7/26/12-1/28/13). ¦ ¦ ¦$127.36 ¦ ¦ +------------------------------------------+-------------+--------------------+-----------------------+------------¦ ¦ ¦ ¦ ¦ ¦$3,110.56 ¦ +------------------------------------------+-------------+--------------------+-----------------------+------------¦ ¦7/12 Contributions ¦$2,144.88 ¦ ¦ ¦ ¦ +------------------------------------------+-------------+--------------------+-----------------------+------------¦ ¦20% Liquidated Damages ¦ ¦$428.98 ¦ ¦ ¦ +------------------------------------------+-------------+--------------------+-----------------------+------------¦ ¦10% p/a. Interest (8/26/12-1/28/13) ¦ ¦ ¦$91.67 ¦ ¦ +------------------------------------------+-------------+--------------------+-----------------------+------------¦ ¦ ¦ ¦ ¦ ¦$2,665.53 ¦ +------------------------------------------+-------------+--------------------+-----------------------+------------¦ ¦8/12 Contributions ¦$3,892.56 ¦ ¦ ¦ ¦ +------------------------------------------+-------------+--------------------+-----------------------+------------¦ ¦20% Liquidated Damages ¦ ¦$778.51 ¦ ¦ ¦ +------------------------------------------+-------------+--------------------+-----------------------+------------¦ ¦10% p/a Interest (9/26/12-1 /28/13) ¦ ¦ ¦$133.31 ¦ ¦ +------------------------------------------+-------------+--------------------+-----------------------+------------¦ ¦ ¦ ¦ ¦ ¦$4,804.38 ¦ +------------------------------------------+-------------+--------------------+-----------------------+------------¦ ¦9/12 Contributions ¦$635.52 ¦ ¦ ¦ ¦ +------------------------------------------+-------------+--------------------+-----------------------+------------¦ ¦20% Liquidated Damages ¦ ¦$127,10 ¦ ¦ ¦ +------------------------------------------+-------------+--------------------+-----------------------+------------¦ ¦10% p/a Interest (10/26/12-1/28/13) ¦ ¦ ¦$17.59 ¦ ¦ +-----------------------------------------------------------------------------------------------------+------------¦ ¦ ¦$780.21 ¦ +-----------------------------------------------------------------------------------------------------+------------¦ ¦ SUB-TOTALS ¦ $38,991.04. ¦ $10,172.84 ¦ $1,685.37 ¦ $50,839.25 ¦ +------------------------------------------+-------------+--------------------+-----------------------+------------¦ +------------------------------------------+-------------+--------------------+-----------------------+------------¦ ¦Attorneys' fees (5/2/12-1/25/13) ¦ ¦ ¦$5,837.00 ¦ ¦ +------------------------------------------+-------------+--------------------+-----------------------+------------¦ ¦Costs (4/5/12-11/30/12) ¦ ¦ ¦$1,63.99 ¦ ¦ +------------------------------------------+-------------+--------------------+-----------------------+------------¦ ¦ ¦ ¦ ¦ ¦$7,000.99 ¦ +------------------------------------------+-------------+--------------------+-----------------------+------------¦ ¦TOTAL - First Amended Stipulation ¦ ¦ ¦ ¦ S57.840.24 ¦ +--------------------------------------------------------+--------------------+-----------------------+------------¦ ¦Credit (Levy proceeds: Foster City - Received 2/14/13) ¦ ¦< $5,605.21 > ¦ ¦ +--------------------------------------------------------+--------------------+-----------------------+------------¦ ¦Credit (Anticipated Levy proceeds: Bank of the West) ¦ ¦< $4,618.37 > ¦ ¦ +--------------------------------------------------------+--------------------+-----------------------+------------¦ ¦Credit (Defendant's anticipated agreed payment) ¦ ¦< $4,849.91 > ¦ ¦ +------------------------------------------------------------------------------------------------------------------+
+---------------------------------------------------------------------------------------------------------------+ ¦Credit /"Anticipated stipulated payment #1 for February 2013) ¦¦< $1,000.00 > ¦ ¦ +---------------------------------------------------------------++-----------------------+----------------------¦ ¦ ¦¦ ¦<$16.073.49> ¦ +---------------------------------------------------------------++-----------------------+----------------------¦ ¦Balance due after receipt of above anticipated credits: ¦¦ ¦$41,766.75 ¦ +---------------------------------------------------------------------------------------------------------------+ Revised ¶¶ 3(a), 3 (d), 3(e), 3(g), 3 (h):
3. Personal Guarantor Murray Weber expressly agrees that the credited amounts above are a part of and remain due under this First Amended Stipulation until received and bank clearance is confirmed. Except for the above credited amounts yet to be (or already) received, Plaintiffs shall release the levies currently placed on City of Foster City, City of Daly City, and City of Santa Clara, upon receipt of this First Amended Stipulation executed by Defendant.
Defendant has submitted copies of check numbers 008778 ($4,849.91) and 008777 ($1,000.00), credited above, reported by Defendant to have been mailed to Plaintiffs on February 15. 2013, but not yet received. Following receipt of those payments, Defendant shall conditionally pay the remaining amount of $31,593.91, representing all amounts due following those credits in ¶2 above, less conditionally waived liquidated damages in the amount of $10,172.84. This conditional waiver is expressly conditioned upon timely compliance with all of the terms of this First Amended Stipulation, as follows:
(a) Beginning on or before February 20, 2013, and continuing on or before the 20th day of each month thereafter, Defendant shall pay to Plaintiffs the minimum amount of $1,000.00 per month for a period of twenty four (24) months, through and including January 20, 2015, when all amounts remaining due shall be paid in full. Checks shall be made payable to the Operating Engineers Local 3 Trust Funds, and delivered on or before each due date to Muriel B. Kaplan at Saltzman & Johnson Law Corporation, 44 Montgomery Street. Suite 2110, San Francisco, California 94104, or to such other address as may be specified by Plaintiffs, to be received on or before the 20th day of each month.
(d) Payments shall be applied first to unpaid principal, with interest on the principal balance to accrue at the rate of 10% per annum beginning from January 29, 2013, in accordance with the Collective Bargaining Agreement and Plaintiffs' Trust Agreements. The accrued interest shall be paid with all balances remaining due for the 24th stipulated payment.
(e) Checks shall be made payable to the Operating Engineers Local 3 Trust Funds, and delivered on or before each due date to Muriel B. Kaplan at Saltzman & Johnson Law Corporation, 44 Montgomery Street Suite 2110, San Francisco, California 94104, or to such other address as may be specified by Plaintiffs, to be received on or before the 20th day of each month.
(g) If Defendant has defaulted but cured any default hereunder, Defendant may, prior to its 24th payment, submit a written request for waiver of liquidated damages directed to the Board of Trustees, but sent to Saltzman and Johnson Law Corporation. Defendant will be advised as to whether or not the waiver has been granted prior to the final payment hereunder. Such waiver will not be considered until and unless all other amounts are paid through the 23rd payment, and Defendant's account is otherwise current
If the waiver is granted, upon bank clearance of Defendant's final payment of the conditional balance with any additional accrued amounts due, and with confirmation that Defendant's account is otherwise current. Plaintiffs will file a Notice of Satisfaction of Judgment with the Court If the waiver is denied, monthly payments will continue until all liquidated damages not waived have been paid.
(h) Prior to the last payment pursuant to this Stipulation, Plaintiffs shall advise Defendant, in writing, as to the final conditional amount due, including interest and all additional attorneys' fees and costs incurred by Plaintiffs in connection with collection and allocation of the amounts owed to Plaintiffs under this Stipulation. All additional amounts due pursuant to the provisions hereunder shall be paid in full with the final stipulated payment Revised ¶ 4:
4. Beginning with reports and contributions due for hours worked (if any) by Defendant's employees during the month of January 2013, which are due by February 15, 2013 and will be delinquent if not received by the Trust Funds on or before February 25, 2013, and for every month thereafter, Defendant shall remain current in reporting and payment of all contributions due to Plaintiffs under the current Collective Bargaining Agreements and under all subsequent Collective Bargaining Agreements, if any, and the Declarations of Trust as amended. Defendant shall submit its contribution report for each month, together its payment check, to the Trust Fund's designated P.O. Box. Defendant shall concurrently send a copy of that report and payment by email to both mkaplan@sjsilawcorp.com and vanessa@silawcorp.com, or by facsimile to Muriel B. Kaplan at 415-882-9287, or to such other email or fax number as may be specified by Plaintiffs. Failure by Defendant to timely submit to Muriel B. Kaplan a copy of its current contribution report and payment, or report of "no employees," if applicable, shall constitute a default of the obligations under this agreement and the provisions of ¶ 10 shall apply. Revised ¶10(a):
In the event that Defendant fails to make any payment required under revised ¶3 above, or fails to remain current in any contributions under ¶4 above or fails to timely provide the monthly documents required by ¶¶4 and 5 herein, and such default is not timely cured, the following will occur:
(a) The entire unpaid balance of the $52,235.03 total due, as specified in ¶2,less principal payments received, but adding all accrued interest, any unpaid contributions then due, plus 20% liquidated damages and 10% per annum interest on the unpaid or late paid contributions, shall be made a part of this Judgment and be immediately due and payable, together with any additional attorneys' fees and costs incurred during the term of this First Amended Stipulation.
2. All other terms and provisions of the Judgment Pursuant to Stipulation shall continue to remain in full force and effect, and are incorporated into this First Amended Stipulation.
MURRAY STEVEN WEBER
By ________________
Murray Steven Weber, Sole Owner of Murray
Weber Truck & Tractor Service aka Weber
Tractor Service, aka Murray Weber Trucking &
Tractors, aka Murray Weber Trucking Service
OPERATING ENGINEERS TRUST FUNDS
By ________________
David Hayner
Collections Manager, Operating Engineers'
Health & Welfare Trust Fund, et al.
SALTZMAN & JOHNSON
LAW CORPORATION
By: ________________
Muriel B. Kaplan
Attorneys for Plaintiffs
IT IS SO ORDERED. The First Amended Judgment Pursuant to Stipulation is hereby entered. IT IS FURTHER ORDERED that the Court shall retain jurisdiction over this matter for two years from the date of the May 31, 2012 entry of the Judgment Pursuant to Stipulation.
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UNITED STATES DISTRICT COURT JUDGE