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OAKLEY v. R & W CUSTOM CONCRETE

United States District Court, Northern District of California


May 20, 2003

OHNIE OAKLEY AS CHAIRMAN AND EDWARD T. BERGO AS CO-CHAIRMAN OF THE BOARD OF TRUSTEES FOR THE CEMENT MASONS HEALTH AND WELFARE TRUST FUND FOR NORTHERN CALIFORNIA; CEMENT MASONS VACATION/HOLIDAY TRUST FUND FOR NORTHERN CALIFORNIA; CEMENT MASONS PENSION TRUST FUND FOR NORTHERN CALIFORNIA; AND CEMENT MASONS APPRENTICESHIP AND TRAINING TRUST FUND FOR NORTHERN CALIFORNIA, PLAINTIFFS,
v.
R & W CUSTOM CONCRETE, A BUSINESS ENTITY; AND JAMES D. ROGERS, AN INDIVIDUAL, DEFENDANTS

The opinion of the court was delivered by: Maria-elena James, United States Magistrate Judge

STIPULATED JUDGMENT AND ORDER ORDER FOR CLERK TO CLOSES FILE
Ohnie Oakley and Edward T. Bergo, as Chairman and Co-Chairman, respectively, of the Board of Trustees for the Cement Masons Health and Welfare Trust Fund for Northern California, Cement Masons Vacation/Holiday Trust Fund for Northern California, Cement Masons Pension Trust Fund for Northern California, and Cement Masons Apprenticeship and Training Trust Fund for Northern California (collectively the "Trust Funds") and James D. Rogers ("James D. Rogers") enter into this Stipulated Judgment (the "Stipulated Judgment"). This Stipulated Judgment is to resolve matters at issue in the lawsuit filed by the Trust Funds against R & W Custom Concrete and James D. Rogers in the United States District Court for the Northern District of California, on or about March 26, 2002, Case No. C 02-1454 MEJ (the "Lawsuit").

The Lawsuit's First Cause of Action seeks to recover unpaid contributions by James ID. Rogers and its Second Cause of Action seeks a mandatory injunction to conduct an audit of R&W Custom Concrete's financial records. Except to the extent governed by federal law, this Stipulated Judgment will be governed by the statutes and common law of California. Jurisdiction and venue of any action regarding the interpretation and enforcement of this Stipulated Judgment shall exist exclusively in the United States District Court in San Francisco, California.

Trust Funds and James D. Rogers agree as follows:

Section 1 — Essential Terms of Stipulated Judgment

(a) Payment:

(1) James D. Rogers agrees to pay to the Trust Funds a total of Thirty-Five Thousand Dollars and Zero Cents ($35,000) ("Settlement Amount") pursuant to the payment plan described below in items 2-4. Post-judgment interest shall apply to this amount at the rate of three (30%) percent per annum. In the event that James D. Rogers fails to make any payment on or before the day indicated above in this Stipulated Judgment and he is not within his rights to cure pursuant to paragraph seven (7) below, interest shall accrue on the entire unpaid balance at the legal rate.
(2) James D. Rogers will pay a down payment of Four Thousand Dollars and Zero Cents ($4,000) (the "Initial Payment Amount") on or before May 19, 2003.
(3) James D. Rogers will make installment payments of Five Hundred Dollars and Zero Cents ($500) per month for twenty (20) months beginning June 19, 2003 and ending January 19, 2005 (the "Repayment Period"), for a total of Ten Thousand Dollars and Zero Cents ($10,000) (the "Installment Payment Amount"). Each payment is due to Trust Funds on or before the nineteenth day of each month.
(4) James D. Rogers agrees to pay to the Trust Funds Twenty-Two Thousand Five Hundred Dollars and Thirty-One Cents ($22,500.31) (the "Balloon Payment") on or before February 19, 2005. This amount includes $1,500.31 in accrued interest referred to in Section 1(a)(1), above.
(5) Payment of all amounts described above by James D. Rogers shall go first to the oldest contributions owed to the Trust Funds and progress to the most recent unpaid contributions.
(6) As long as James D. Rogers makes all payments on or before the day required by this Stipulated Judgment, the Trust Funds will not levy against James D. Rogers for payment of the Stipulated Judgment or take other adverse action against him. With the exception of the two late payments described below in item #7, in the event that James D. Rogers fails to make any payment on or before the day stipulated in this Stipulated Judgment, the Trust Funds may immediately levy to collect the entire Stipulated Judgment.
(7) The only exception to James D. Rogers' requirement to make all payments on time is that the Trust Funds agree to give him two notices and opportunities to cure late payments as described in this paragraph seven (7). In the event James D. Rogers has not made payment by the nineteenth of the month in which the payment is due because he has not timely sent each payment, whether due to being late or tendering a check with insufficient funds, the Trust Funds will send notice of late payment or insufficient funds to James D. Rogers by fax (209) 748-2553 and by certified first class mail to 12221 Borden Road, Herald, California 95638. James D. Rogers will have a total of fifteen days from the date the Trust Funds' send him notice to deliver the late payment to the Trust Funds. Failure to cure a late payment shall subject him to immediate levy of the remaining balance with interest accruing at the legal rate. James D. Rogers may be late in this regard only twice. The Trust Funds shall have no obligation beyond the first two notices to inform James D. Rogers of his late payments. If James D. Rogers is late more than twice, he will be in material breach of this Stipulated Judgment, making him subject to immediate levy of the remaining balance owed to the Trust Funds. James D. Rogers shall not have the ability to cure this material breach other than upon immediate payment of the balance of the Settlement Amount and all accrued interest.
(b) Entry of Stipulated Judgment: Defendant James D. Rogers agrees to have this Stipulated Judgment entered immediately. The Trust Funds may record this Stipulated Judgment.

(c) Retained jurisdiction: Trust Funds and James D. Rogers agree that the Court shall retain jurisdiction over the Lawsuit to ensure compliance with this Stipulated Judgment. No new action would need to be filed to seek relief for enforcement of this right.

(d) Released parties: The released parties are James D. Rogers and R&W Custom Concrete and their current and former employees, and their current and former officers, directors, stockholders, owners, representatives, assigns, attorneys, agents, and insurers.

(e) Release upon Satisfaction: When James D. Rogers has paid the entire amount due to the Trust Funds as required in this Stipulated Judgment, the Trust Funds will issue a Notice of Satisfaction of Judgment in full.

Section 2 — Miscellaneous

(a) Entire Agreement: This Stipulated Judgment is the entire agreement between James D. Rogers and the Trust Funds relating to the claim for unpaid contributions and audit at issue in the Lawsuit. The Stipulated Judgment supersedes any prior understanding or agreement between Trust Funds and James D. Rogers relating to this Lawsuit. Both James D. Rogers and the Trust Funds acknowledge that neither party has made representations or promises other than those in or referred to by this Stipulated Judgment. If any provision in this Stipulated Judgment is found to be unenforceable, all other provisions will remain fully enforceable.

(b) Interpretation: This Stipulated Judgment will be construed as a whole according to its fair meaning. It will not be construed strictly for or against either James D. Rogers or the Trust Funds as both parties participated in the drafting of it. Unless the context indicates otherwise, the term "or" will be deemed to include the term "and" and the singular or plural number will be deemed to include the other. Captions are intended solely for convenience of reference and will not be used in the interpretation of this Stipulated Judgment.

(c) Advice of counsel: Trust Funds and James D. Rogers have obtained advice of legal counsel prior to and for the execution of this Stipulated Judgment, and warrant and represent that the person executing this Stipulated Judgment on each party's behalf is duly authorized and empowered to execute this Stipulated Judgment for and on such behalf. Each of the parties affirms and acknowledges that it has read and fully appreciates and understands the words, terms, conditions and provisions of this Stipulated Judgment.

(d) Enforcement: In the event of James D. Rogers' failure to make timely payments pursuant to the terms of this Stipulated Judgment, Trust Funds shall be entitled to recover their costs and attorneys fees associated with such enforcing their rights under this Stipulated Judgment and in levying to recover the amounts due to Trust Funds.

ORDER

Good cause appearing, the Court hereby enters this Stipulated Judgment in the matter of plaintiffs OHNIE OAKLEY as CHAIRMAN and EDWARD T. BERGO as CO-CHAIRMAN of the BOARD OF TRUSTEES FOR THE CEMENT MASONS HEALTH AND WELFARE TRUST FUND FOR NORTHERN CALIFORNIA, et. al, and defendants R & W CUSTOM CONCRETE. and JAMES D. ROGERS (Case No.: C 02-1454 MEJ) in the amount of THIRTY-FIVE THOUSAND DOLLARS AND ZERO CENTS ($35,000) and retains jurisdiction to enforce the terms of the Stipulated Judgment, if necessary. The Clerk of Court Shall Close the file.

20030520

© 1992-2003 VersusLaw Inc.



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