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SHOP IRONWORKERS LOCAL 790 PENSION TRUST v. AGH

United States District Court, N.D. California


September 14, 2004.

SHOP IRONWORKERS LOCAL 790 PENSION TRUST; JOINT BOARD OF TRUSTEES of the SHOP IRONWORKERS LOCAL 790 PENSION TRUST; and MICHAEL NEWINGTON as Trustee; SHOP IRONWORKERS LOCAL 790 WELFARE TRUST; JOINT BOARD OF TRUSTEES of the SHOP IRONWORKERS LOCAL 790 WELFARE TRUST; and STEVE FOX as Trustee; SHOPMEN IRONWORKERS APPRENTICESHIP TRAINING TRUST; JOINT BOARD OF TRUSTEES of the SHOPMEN IRONWORKERS APPRENTICESHIP TRAINING TRUST; and MICHAEL NEWINGTON as Trustee Plaintiffs,
v.
AGH, INC., Defendant.

The opinion of the court was delivered by: SUSAN ILLSTON, District Judge

JUDGMENT PURSUANT TO STIPULATION

IT IS HEREBY STIPULATED by and between the parties hereto, that Judgment in the within actions — Case Numbers C 03-1826 SI and C 04-0881 SI — shall be entered in favor of the plaintiffs and against defendant AGH, Inc. as follows:

  1. Defendant entered into a valid collective bargaining agreement with the Shop Ironworkers Local 790 (hereinafter "Bargaining Agreement").

  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 total sum of $67,699.45 representing contributions, liquidated damages of 20% and 6% per annum interest plus attorneys' fees and costs of this action as follows:

Case Number C 03-1826 SI (Judgment previously entered):
Contributions (1/03 — 8/03) $7,721.20
Liquidated Damages @ 20% (11/02 — 8/03) $1,877.89
Interest at 6% per annum (through July 15, 2004) $611.28
Amounts found due on Audit $ 15,559.05
Attorneys Fees Included in Motion for Default (to 7/24/03) $2,650.00 Included in Amended Judgment (7/25/03 — 9/26/03) $3,950.50 Collection Activities 9/26/03 — 2/23/04 $4,247.00 Filing of Motion to Set Aside to present (4/1/04-8/22/04) $8,177.50
Total Attorneys Fees (through 8/22/04) $19,025.00
Costs $938.75
TOTAL $45,733.17
Case Number C 04-0881 SI:
Contributions (9/03 — 7/04) $11,517.36
Liquidated Damages @ 20% (9/03 — 7/04) $2,303.46
Interest at 6% per annum (through August 31, 2004) $257.71
Attorneys Fees (through 8/22/04) $7,574.00
Costs of Suit $313.75
TOTAL $21,966.28
TOTAL BOTH CASES $67,699.45
  3. Defendant shall conditionally pay the sum of $63,518.10 to plaintiffs, consisting of the amounts shown in paragraph 3 above, as reduced by liquidated damages of $4,181.35 on the condition that all payments herein are timely satisfied as follows: Beginning on September 15, 2004, and on the 15th of every month thereafter until paid, defendant shall pay plaintiffs the sum of $1,200. 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 6% per annum from September 1, 2004, until paid in full, in accordance with plaintiffs' Trust Agreements;

  (iii) Payments shall be made by cashier's check made payable to the Shop Ironworkers Local 790 Trust Funds, and received by Saltzman & Johnson Law Corporation, 120 Howard Street, Suite 520, San Francisco, CA 94105 on or before the 15th of each month as stated above, or to such other address as may be specified by plaintiffs.

  iv. Prior to defendant's final payment hereunder, plaintiffs shall advise defendant in writing of the balance due under the terms of this Stipulation, and that amount shall be paid in full in satisfaction of defendant's debt to plaintiffs as identified herein.

  4. In the event that Defendant fails to make any payment required under Paragraph 3 above, and fails to cure such default within 10 days thereof, then,

  (A) The entire balance of $67,699.45 less principal payments received by Plaintiffs, 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, 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 waives notice of entry of judgment and expressly waives 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 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.

  5. Any failure on the part of the plaintiffs to take any action against defendant 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 of any provisions herein.

  6. 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. Section 547(c)(2) and shall not be claimed by defendant as a preference under 11 U.S.C. Section 547 or otherwise.

  7. Plaintiffs specifically reserve all rights to bring a subsequent action against defendant 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 specifically waives the defense of the doctrine of res judicata in any such action.

  8. This Stipulation is made without prejudice to either party as to the current status of a collective bargaining agreement between defendant and Local Union 790. This document shall not be used as evidence to support the existence or non-existence of a current collective bargaining agreement, and shall not be affected in amount or validity by any such subsequent determination.

  IT IS SO ORDERED.

20040914

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