Opinion
CASE NO: CV 09 5302 MHP.
February 26, 2010
CHAD T. WISHCHUK, SBN 214779, LAURA B. MACNEEL, SBN 251540, MARKS, GOLIA FINCH, LLP, ATTORNEYS AT LAW, SAN DIEGO, CALIFORNIA 92123-1489, Attorneys for Defendant Porges Enterprises, Inc., dba Accelerated Electric.
RICHARD K. GROSBOLL, Bar No. 99729, SONYA M. GORDON, Bar No. 232600, NEYHART, ANDERSON, FLYNN GROSBOLL, SAN FRANCISCO, CALIFORNIA 94104-6702, Attorneys for Plaintiff Solano And Napa Counties Electrical Workers, Trust Funds.
MARK LIPTON, NEYHART, ANDERSON, FLYNN GROSBOLL, Attorneys for Plaintiff Solano And Napa Counties Electrical Workers, Trust Funds.
STIPULATION TO DISMISS COMPLAINT WITH PREJUDICE AS TO ALL PARTIES AND ALL CLAIMS FOR RELIEF
Plaintiffs Solana And Napa Counties Electrical Workers Trust Funds and Defendant Porges Enterprises, Inc., dba Accelerated Electric, by and through their respective counsel of record, and pursuant to Fed.R.Civ.P. 41, stipulate to dismiss the Complaint in its entirety and with prejudice as to all parties and as to all claims for relief, subject to the terms and conditions of the attached Settlement Agreement and Release of Claim. Each party shall bear its own costs and attorneys' fees.
IT IS SO ORDERED
EXHIBIT "1" SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS
This Settlement Agreement And Release Of Claims ("Agreement") is entered into this 22nd day of February 2010, between and among the Solano And Napa Counties Electrical Workers Trust Funds ("Plaintiffs"), Porges Enterprises, Inc., dba Accelerated Electric ("Accelerated Electric" or "Defendant"), and the Sacramento Area Electrical Workers Trust Funds ("Local 340 Trust Funds"). In this Agreement, Plaintiffs, Accelerated Electric, and Local 340 Trust Funds are referred to collectively as the "Parties," or individually as a "Party."RECITALS
A. Accelerated Electric is bound to an agreement with Local Union 180, International Brotherhood Of Electrical Workers ("Local 180"). Accelerated Electric's agreement with Local 180 requires the payment of contributions to various trust funds including the National Electrical Benefit Fund, the Solano and Napa Counties Electrical Workers Health and Welfare Trust, the Solano and Napa Counties Electrical Workers Pension Trust, the Electrical Contractors Trust, and the Contract Administration Fund. Accelerated Electric is also bound to an agreement with Local Union 340 International Brotherhood of Electrical Workers of Sacramento, California ("Local 340"). Accelerated Electric's agreement with Local 340 requires the payment of contributions to various trust funds including the National Electrical Benefit Fund, the Sacramento Area Electrical Workers' Pension Trust Fund, the Sacramento Area Electrical Workers Health and Welfare Trust, and the Contract Administration Fund. All Trust Funds to which Accelerated Electric had an obligation to contribute while bound to the agreements with Local 180 and Local 340 are referred to collectively as the "Trust Funds".
B. Plaintiffs and/or counsel for the Trust Funds claim that Accelerated Electric owes contributions to the Trust Funds. Accelerated Electric disputes the claim,
C. Plaintiffs then filed suit in the United States District Court for the Northern District of California. San Francisco Division. Plaintiffs' suit is known as Solano And Napa Counties Electrical Workers Trust Funds v. Porges Enterprises, Inc., dba Accelerated Electric (the "Action"). The Action was assigned Case No. 09-CV-5302-MHP. The Complaint in the Action alleges claims for relief under the Employee Retirement Income Security Act of 1974 ("ERISA"), and the Labor Management Relations Act, 29 U.S.C. § 185(a). Plaintiffs filed suit on behalf of each of the Trust Funds related to Local 180. The Complaint in the Action seeks unpaid fringe benefit contributions, liquidated damages, interest, attorneys' fees and costs, among other things.
D. The Parties now wish to settle all disputes and to dismiss with prejudice the entire Action with respect to contributions relating to work performed through January 31, 2010. This Agreement is entered into voluntarily and without any duress or coercion. Plaintiffs enter into this Agreement on behalf of each of the Trust Funds relating to Local 180, and on behalf of Local 180 to recover any other amounts. Local 340 Trust Funds enter into this Agreement on behalf of each of the Trust Funds relating to Local 340, and on behalf of Local 340 to recover any other amounts.
E. By entering into this Agreement, none of the Parties admit the allegations or contentions of the other Party, and each Party is entering into this Agreement for the sole purpose of avoiding the expense of litigation and to finally resolve the issues between them in their entirety with respect to the period covered through January 31, 2010.
NOW. THEREFORE, in exchange for the promises contained in this Agreement, and for valuable consideration acknowledged by each Party, the Parties agree to the following:
1. Agreement. Accelerated Electric shall pay to the Trust Funds a total of $85,405.43 ("Settlement Sum") in full and complete settlement of the Action and all disputes. The Settlement Sum is made up of $66,514,18 relating to work performed in connection with Local 180 plus $18,891.25 relating to work performed in connection with Local 340. A check in the full amount of the Settlement Sum will be made payable to "Mark Lipton Trust Account" and is due upon Accelerated Electric's receipt of a fully executed copy of this Agreement as well as Accelerated Electric's receipt of a conformed copy of a stipulation of dismissal with prejudice of the Action signed by Plaintiffs. Plaintiff agrees to immediately file with the District Court the stipulation to dismiss the entire Action with prejudice as to all parties as to all claims for relief relating to any and all work performed through January 31, 2010, in the form of the stipulation attached to this Agreement as Exhibit 1 and incorporated here as though set forth in full. The Plaintiffs and Local 340 Trust Funds agree they do not have any other claims against the Defendant, or its owners, for work performed prior to February 1, 2010, and that any such other claims are fully and completely compromised. settled, and released by this Agreement.
Attached to this release at Exhibit 2 are remittance forms for the delinquent months claimed. Fringe benefits owed under the collective bargaining agreements to which Accelerated Electric is bound remain due, despite this release and the clauses provided herein, to the extent a future audit or claim by any plan participant reveal hours worked not reported on the transmittals attached hereto or prior transmittals if said hours are covered employment under the terms of the collective bargaining agreements. Fringe benefits due therefore are not released pursuant to this paragraph or under the general release as provided in C.C.P. Section 1542.
2. Waiver and Release. In exchange for the promises contained in this Agreement. to the fullest extent permitted by law, the Trust Funds including Plaintiffs, for themselves and the entities they represented in filing the Action, release and forever discharge Defendant, and its respective past and present owners, counsel, administrators, officers, directors, shareholders, subsidiaries, parent companies, affiliated companies and entities, employees, agents, representatives, sureties, successors, assignees, affiliates, heirs, and executors, from any and all asserted and unasserted claims, demands, liabilities, rights, causes of action, claims for relief, costs, expenses, consultation and expert witness fees, interest, liquidated damages, damages, injuries, rights, claims or obligations of any kind, whatsoever, whether asserted in this Action or not, arising in law, equity or otherwise, whether known or unknown, including but not limited to claims for violation of ERISA, breach of any collective-bargaining agreement, breach of any contract, breach of any trust agreement, and/or claims for relief rising under any state or federal law, rule, regulation, or ordinance.
3. Costs and Attorneys' Fees. Each of the Parties shall bear their own costs, consultant and expert witness fees, and attorneys' fees incurred in connection with the filing, prosecution, maintenance and defense of the Action.
4. C.C.P. sec; 1542. The Trust Funds, including Plaintiffs, are familiar with California Civil Code Section 1542 which provides:
A general release does not extend to Claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known to him or her must have materially affected his or her settlement with the debtor.
The Trust Funds, including Plaintiffs, hereby waive and release any rights they have or may have under Section 1542 to the full extent that all such rights and benefits may lawfully be waived. Such waivers are an integral part of this Agreement and the parties would not enter into this Agreement without such waivers.
5. No Admission of Liability or Wrongdoing. It is understood and agreed that this Agreement is a compromise and settlement of disputed claims, and that neither this Agreement, nor the furnishing of the consideration for this Agreement, shall be deemed or construed as an admission of liability; breach of any implied or express contract; violation of any law, statute, regulation, or ordinance; or of wrongdoing on the part of any party, or any of its, his or her successors, assigns or agents. This Agreement shall not be admissible as evidence in any proceeding other than a proceeding to enforce the terms of this Agreement. Defendant specifically denies the allegations of the Action and denies any wrongdoing whatsoever.
6. Severability. Should any provision of this Agreement be declared or determined by any court to be illegal or invalid, the validity of the remaining parts, terms or provisions shall not be affected thereby. Any illegal or invalid part, term. or provision shall be deemed not to be a part of this Agreement but the remaining provisions shall remain in effect and shall be fully enforceable.
7. Entire Agreement. This Agreement constitutes the full and entire agreement between the Trust Funds, including Plaintiffs, and Defendant with regard to the subject matter of this Agreement. The Parties cannot alter and/or modify this Agreement except by an instrument in writing executed by each of them.
8. Right to Consult Counsel. Each Party acknowledges that they have consulted with legal counsel of their own choice with respect to the execution and the legal effect of this Agreement, and that each party has not relied upon any representations or warranties of the other party. If any fact or matter upon which a Party relies in making this Agreement shall subsequently prove to be otherwise, this Agreement shall nevertheless remain in full force and effect.
9. Jointly Drafted. This Agreement is deemed to have been jointly drafted by each Party. Any uncertainty or ambiguity shall not be construed for or against any Party based on attribution of drafting to any Party.
10. No Assignment. The Trust Funds, including Plaintiffs, represent that there has not been an assignment or transfer of any claim compromised or released by this Agreement. The Trust Funds agree to indemnify and hold Defendant harmless from any liability incurred as a result of any person asserting any such assignment or transfer.
11. Prevailing Party to Recover Attorneys7 Fees. Should any action or suit be filed to enforce the terms of this Agreement, it is agreed the prevailing party shall be entitled to recover costs and attorneys' fees reasonably incurred, in addition to any other relief ordered by the Court.
12. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. A facsimile signature constitutes an original and all evidentiary objections to same other than for authenticity of signature are waived.
13. Authority to Settle. The undersigned represent that they have the authority to settle, compromise. and release each of claims against Accelerated Electric, including all claims asserted in the Action, including any claims to contributions, interest, liquidated damages, costs and attorneys' fees.
14. Additional Documents. The Parties agree to perform such further acts and to execute and deliver such further documents as may be reasonably necessary or appropriate to carry out the intent or provisions of this Agreement.
15. By signing below, each person is attesting to the fact that he or she has read this Agreement in its entirety understands its terms and is in agreement with its terms.
Dated: 2/26/10 __________________________ SOLANO AND NAPA COUNTIES ELECTRICAL WORKERS TRUST FUNDS __________________________ Name TRUST COVNSEL Title Dated 2/26/10 __________________________ SACRAMENTO AREA ELECTRICAL WORKERS TRUST FUNDS MARK LIPTON Name TRUST COVNSEL Title Dated: _______ __________________________ PORGES ENTERPRISES, INC., DBA ACCELERATED ELECTRIC __________________________ Name __________________________ Title