THE BOARD OF TRUSTEES, in their capacities as Trustees of the LABORERS HEALTH AND WELFARE TRUST FUND FOR NORTHERN CALIFORNIA; LABORERS VACATION-HOLIDAY TRUST FUND FOR NORTHERN CALIFORNIA; LABORERS PENSION TRUST FUND FOR NORTHERN CALIFORNIA; and LABORERS TRAINING AND RETRAINING TRUST FUND FOR NORTHERN CALIFORNIA, Plaintiffs,
EL CAMINO PAVING, INC., a California Corporation; and MARIE SANTELLAN ALVA, an Individual, Defendants.
No. 10-cv-00708 MMC.
United States District Court, N.D. California.
November 17, 2015.
BARRY E. HINKLE, CONCEPCIÓN E. LOZANO-BATISTA, EZEKIEL D. CARDER, WEINBERG, ROGER & ROSENFELD, A Professional Corporation, Alameda, California, Attorneys for Plaintiffs.
FIRST AMENDED JUDGMENT PURSUANT TO STIPULATION; [PROPOSED] ORDER AND JUDGMENT
MAXINE M. CHESNEY, District Judge.
THIS SERVES TO AMEND the Judgment entered on August 27, 2012 (“Judgment”) against Defendant EL CAMINO PAVING, INC., a California Corporation (“El Camino”) and in favor of Plaintiffs THE BOARD OF TRUSTEES, in their capacities as Trustees of the LABORERS HEALTH AND WELFARE TRUST FUND FOR NORTHERN CALIFORNIA; LABORERS VACATION-HOLIDAY TRUST FUND FOR NORTHERN CALIFORNIA; LABORERS PENSION TRUST FUND FOR NORTHERN CALIFORNIA; and LABORERS TRAINING AND RETRAINING TRUST FUND FOR NORTHERN CALIFORNIA (“Plaintiffs”). Since the Judgment, El Camino Paving’s delinquency to the Plaintiffs has increased, and El Camino along with MARIE SANTELLAN ALVA (“Alva” together with El Camino is hereinafter referred to as “Defendants”) have requested that the Judgment be amended to include the additional amounts due Plaintiffs, to set forth a payment plan, and to add Alva as a Defendant and Judgment Debtor in the above captioned matter. This document (“Amended Judgment by Stipulation” or “Stipulation”) shall, upon execution by all parties, supersede the Judgment, and along with the Settlement Agreement and Release of All Claims executed by the Parties in September 2015 (“Settlement Agreement”), become the operating documents between the Parties regarding the Defendants delinquency to the Trust Funds.
IT IS HEREBY STIPULATED and AGREED by and between the parties hereto, that Marie Santellan Alva shall be added as a Defendant to the above-captioned action pending in the United States District Court for the Northern District of California. Further, Marie Santellan Alva consents to the jurisdiction of this Court, agrees that she is personally liable for the debts set forth herein, and further stipulates and agrees that Judgment shall be entered against herl as set forth below.
IT IS FURTHER STIPULATED and AGREED by and between the parties hereto, that an Amended Judgment shall be entered in the within action in favor of Plaintiffs and against Defendants El Camino Paving, Inc., a California Corporation, and Marie Santellan Alva, an individual, and/or alter egos and/or successor entities, as follows:
1. Defendants entered into a Collective Bargaining Agreement with the Northern California District Council of Laborers (hereinafter “CBA”). The CBA has continued in full force and effect to the present time.
2. Defendants have become indebted to the Trust Funds in the amount of $517,360.28, consisting of $281,851.00 in delinquent contributions for the period December 2009 through July 2015, plus liquidated damages, interest, and attorneys’ fees in the amount of $235,509.28.
3. Judgment shall be entered against Defendants and in favor of Plaintiffs in the amount of $517,360.28.
4. Defendants shall pay the amount of $281,851.00 as follows:
a. Employer shall remit $75,022.40 on or before October 5, 2015;
b. Commencing in October 2015, Employer shall remit twelve (12) equal monthly payments in the amount of $17,235.72 each. All payments shall be due on the fifteenth (15th) day of the month in which it is due. By way of example, the first payment is due on or before October 15, 2015. Interest shall continue to accrue on the delinquent contributions until paid in the amount of twelve (12%) per annum in accordance with Plaintiffs’ Trust Agreements and policies and procedures;
c. Employer shall remit the payments as described in Paragraph 4a and 4b above, and made payable to the LABORERS TRUST FUNDS, directly to the Trust Fund office at:
Laborers Funds Administrative Office of Northern California, Inc.
220 Campus Lane
Fairfield, CA 94534-1498
Attn: Accounts Receivable Manager
d. Employer shall notify the Trust Funds and their legal counsel in writing of the payment on the same day said payment occurs. Notification shall be sent via facsimile to:
Attn: Ezekiel D. Carder
Weinberg, Roger & Rosenfeld
1001 Marina Village Parkway, Suite 200
Alameda, CA 94501
Fax No.: (510) 337-1023
e. Payments shall be made via cashier’s check. Payments may be made by joint check, to be endorsed prior to submission. Any payment by joint check shall be credited as if it were a regular stipulated payment under the terms of this Amended Judgment by Stipulation.
f. Defendants shall have the right to increase the monthly payments at any time and there is no penalty for early payment. If Defendants make a payment in excess of the monthly payment amounts required under Paragraph 4, those amounts will be credited towards the total amount due, but the payment schedule shall not change.
5. Defendants agree to remain bound to the applicable collective bargaining agreement and comply with its obligations to submit all fringe benefit contributions to the Trust Funds in a timely manner pursuant to the terms of the applicable collective bargaining agreement and Trust Agreements. By way of example, Defendants agree to remit the September 2015 contributions on or before October 25, 2015. On a non-precedential basis payment of the August contributions shall be due on or before October 5, 2015.
6. Failure to comply with the terms set forth herein or the terms set forth in the Settlement Agreement shall constitute a default. The Trust Funds’ counsel will notify the Defendants via email at [email protected] of the default and the Defendants shall have ten (10) days from the date of the notice to cure the default.
7. Upon timely completion of the payment plan set forth in Paragraph 4, Defendants shall commence a new payment plan in October 2016 to pay the liquidated damages, interest and attorneys’ fees and costs as set forth in the Settlement Agreement.
8. The Trust Funds agree not to execute on the Amended Judgment by Stipulation unless the Defendants are in default of this Stipulation or the Settlement Agreement, as set forth in Paragraph 5. If the Defendants are in default, and do not cure the default within ten (10) days of receiving notice of default as required by Paragraph 5 above, then the Trust Funds may, without further notice, utilize any and all post-judgment collection remedies to pursue collection of the judgment entered. Credit against the amount of the judgment entered will be given to the Defendants for any payments made under this Stipulation prior to Defendants’ default. Nothing in this Stipulation or the Settlement Agreement shall prevent the Plaintiffs from recording an Abstract of Judgment in any county where the Defendants own property.
9. The terms and conditions of the Settlement Agreement are incorporated herein by reference as if set forth in their entirety.
10. Marie Santellan Alva acknowledges that she is the RMO/President of El Camino Paving, Inc., and is authorized to enter into this Stipulation on behalf of El Camino Paving, Inc. Ms. Alva (“Guarantor”) is also personally guaranteeing all amounts due herein. She further acknowledges that any and all successors in interest to El Camino Paving, Inc., as well as any assigns, and/or affiliated entities (including, but not limited to parent or other controlling companies), and purchasers, shall be contractually bound by the terms of this Stipulation. This shall include any additional entities in which Marie Santellan Alva is an officer, owner and possesses any controlling ownership interest. Defendants and Guarantor and all such entities shall specifically consent to the terms herein and to the Court’s jurisdiction, in writing at the time of any assignment, affiliation or purchase.
11. Any failure on the part of Plaintiffs to take any action against Defendants/Guarantor 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 Defendants/Guarantor of any provisions herein.
12. In the event of the filing of a bankruptcy petition by Defendants/Guarantor, the parties agree that any payments made by Defendants/Guarantor pursuant to the terms of this Judgment, shall be deemed to have been made in the ordinary course of business as provided under 11 U.S.C. Section 547(c)(2) and shall not be claimed by Defendants/Guarantor as a preference under 11 U.S.C. Section547 or otherwise. Defendants/Guarantor nevertheless represents that no bankruptcy filing is anticipated.
13. This Stipulation is limited to the agreement between the parties with respect to the delinquent contributions and related sums enumerated herein, owed by Defendants/Guarantor to the Plaintiffs. This Stipulation does not in any manner relate to withdrawal liability claims, if any. Defendants/Guarantor acknowledge that the Plaintiffs expressly reserve their right to pursue withdrawal liability claims, if any, against Defendants/Guarantor as provided by the Plaintiffs’ Plan Documents and Trust Agreements incorporate into their CBA, and the law.
14. The provisions of this Stipulation are contractual in nature and not mere recitals, and shall be considered independent and severable, and if any provision, or part thereof, is declared invalid, unenforceable or void for any reason, then the validity and enforceability of the remainder shall not be affected in any way.
15. This Stipulation and the Settlement Agreement contain all of the terms agreed by the parties and no other agreements have been made. Any changes to this Stipulation shall be effective only if made in writing and signed by all parties hereto.
16. This Stipulation may be executed in any number of counterparts, which taken together, shall constitute one Stipulation and be binding upon and effective as to all Parties hereto. This Agreement may be executed via receipt of a facsimile signature of the original document and signature page to follow.
17. All parties represent and warrant that they have had the opportunity to be or have been represented by counsel of their own choosing in connection with entering this Stipulation under the terms and conditions set forth herein, and that they enter into this Stipulation voluntarily and without duress.
Dated: October 8, 2015 EL CAMINO PAVING, INC.
/s/ Marie Santellan Alva
By: Marie Santellan Alva
Dated: October 8, 2015 MARIE SANTELLAN ALVA
/s/Marie Santellan Alva
By: Marie Santellan Alva, individually and as personal
Dated: October 12, 2015 LABORERS TRUST FUNDS
By: Michelle Lauziere
Its: Accounts Receivable Manager
[PROPOSED] ORDER AND JUDGMENT
It is so ordered that Judgment is entered against EL CAMINO PAVING, INC., a California Corporation, and MARIE SANTELLAN ALVA, an individual, as set forth in the Amended Judgment by Stipulation. In addition, the Court orders:
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