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Mucklow v. Podesto

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA


November 6, 2007

ROSEMARY MUCKLOW; PHIL SALGADO, IN THEIR CAPACITIES AS TRUSTEES OF THE NORTHERN CALIFORNIA UFCW WHOLESALE HEALTH & WELFARE FUND, PLAINTIFFS,
v.
JOHN J. PODESTO, INDIVIDUALLY AND DOING BUSINESS AS CALIFORNIA SPRAY DRY CO; JEFFREY D. PODESTO, INDIVIDUALLY AND DOING BUSINESS AS CALIFORNIA SPRAY DRY CO; WILLIAM A. SHIRLEY, INDIVIDUALLY AND DOING BUSINESS AS CALIFORNIA SPRAY DRY CO; JERROLD L. BALL, INDIVIDUALLY AND DOING BUSINESS AS CALIFORNIA SPRAY DRY CO; CALIFORNIA SPRAY DRY CO, DEFENDANTS.

The opinion of the court was delivered by: Marilyn H. Patel Judge

CONDITIONAL STIPULATION FOR JUDGMENT; [PROPOSED] JUDGMENT

IT IS HEREBY STIPULATED and agreed by and between Plaintiffs Rosemary Mucklow and Phil Salgado, in their capacities as Trustees of the Northern California UFCW Wholesale Health and Welfare Fund, (hereinafter "Plaintiffs") and Defendants California Spray Dry and William A. Shirley (hereinafter "Defendants") as follows: payment of any unpaid fringe benefit contributions for hours worked between May 2006 and May 2007, interest and liquidated damages on said unpaid contributions. Plaintiffs sought liquidated damages and interest on contributions which were paid late for hours worked September 2005 through April 2006 as well as all attorneys' fees and costs incurred in connection with this action.

1, 2003 through December 25, 2005. Together, these amounts total $314,990.92. Plaintiffs also sought a further audit of Defendants' books and records. this action under the terms set forth below. This Conditional Stipulation for Judgment memorializes the terms agreed to by the Parties; to the extent that it differs from or varies from any previous writing between the Parties relating to the matters resolved herein, this Conditional Stipulation for Judgment shall supersede and replace such other communications and/or agreements.

Judgment entered against it as follows: Defendant California Spray Dry agrees to pay the total sum of $314,990.92, consisting of unpaid fringe benefit contributions, interest and liquidated damages in the amount of $244,155.12, amounts found due and owing from the January 1, 2003 through December 25, 2005 audit in the amount of $49,835.80, and attorneys' fees and costs incurred herein in the amount of $21,000.00. Plaintiffs agree to refrain from requesting that the Dry so long as Defendants fully comply with all the conditions set forth herein. Plaintiffs and Defendant William A. Shirley is an employer within the meaning of ERISA and whether or not Defendant William A. Shirley is liable for any of the amounts Plaintiffs sought in this action so long as Defendants fully comply with all the conditions set forth herein. It is further stipulated and agreed by the Parties that the Court (United States District Court, Northern District of California)

1. Plaintiffs have brought the above-captioned action against Defendants seeking the Plaintiffs also sought $49,835.80 found due and owing from an audit covering the period January

2. The Parties are desirous to settle this action and hereby stipulate and agree to settle

3. Defendant California Spray Dry agrees to have a Conditional Stipulation of Court enter an irrevocable Judgment as stipulated herein adverse to Defendant California Spray Defendants agree to refrain from requesting that the Court decide the issue of whether or not shall retain jurisdiction over Defendant William A. Shirley until the latter of : (1) the events described in Paragraph 8 are resolved; or (2) the conditions in Paragraph 9 are met.

as set forth in this paragraph as part of this stipulated settlement in three installments. Each installment shall be made by check, payable to the "Northern California UFCW Wholesale Health and Welfare Fund", and sent to Plaintiffs' counsel, Weinberg, Roger & Rosenfeld, 1001 Marina Defendant California Spray Dry shall pay the amounts due as follows:

September 30, 2007 $83,334.00

December 31, 2007 $83,333.00

March 31, 2008 $83,333.00

Plaintiffs and Defendants each understand and agree that any modification of payments must be made in writing and agreed to by both the Plaintiffs and the Defendants.

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 agreements and Trust Agreements.

Spray Dry fails to stay current as described in Paragraph 5 or fails to make any of the scheduled payments listed above in Paragraph 4, the Conditional Stipulation for Judgment shall become an irrevocable Judgment as to Defendant California Spray Dry, and Plaintiffs may then execute upon the entire Judgment in the full amount of $314,990.92 as described in Paragraphs 1 and 3, minus the amount of any payments actually received, together with interest that shall have accrued thereon. In such an event, there shall be added to Defendant California Spray Dry's obligation under a modification to this Conditional Stipulation for Judgment (which shall become an irrevocable Judgment) reasonable attorneys' fees, court costs, and other reasonable expenses incurred by Plaintiffs in connection with such suit or claim, including any and all appellate

4. Defendant California Spray Dry shall pay Plaintiffs the total amount of $250,000.00 Village Parkway, Suite 200, Alameda, California 94501, attention Linda Baldwin Jones. Due Date of Payment Amount of Payment

5. Defendant California Spray Dry agrees to remain bound to the applicable collective

6. It is further stipulated and agreed by the parties hereto that if Defendant California proceedings therein. Plaintiffs will take this action only after ten (10) days written notice to the Defendant California Spray Dry and its counsel that Plaintiffs or Plaintiffs' counsel declares a default and intends to file a Declaration stating that a default has occurred on the part of Defendant California Spray Dry and that the Conditional Stipulation for Judgment shall become an irrevocable Judgment. Notice to Defendant California Spray Dry and its counsel shall be provided via facsimile, electronic mail or regular mail to: California Spray Dry (Modesto Tallow Co. dba California Spray Dry) Attention: Kathy Kirby, Controller 2621 State St. Dallas, TX 75204 Phone: (214) 871-0600 Fax: (214) 871-8707 Counsel for California Spray Dry Akin Gump Strauss Hauer & Feld LLP Attention: M. Brett Burns 1700 Pacific Avenue, Suite 4100 Dallas, TX 75201 Phone: (214) 969-4284 Fax: (214) 969-4343 Plaintiffs will provide Defendant William A. Shirley via facsimile, electronic mail or regular mail with a copy of the Notice sent to Defendant California Spray Dry and its counsel at Bill Shirley, President, Modesto Tallow Co. dba California Spray Dry, 2621 State St., Dallas, TX 75204, Phone: (214) 871-0600, Fax: (214) 871-8707.

7. Notwithstanding Paragraph 6, any payments actually received on or before November 2, 2007, provided said payments have been deposited and cleared the bank upon which they were drawn, shall be deemed timely and accordingly shall not trigger Plaintiffs' right to execute upon the entire Judgment and other amounts described in Paragraph 6.

8. It is further stipulated and agreed by the parties hereto that if Defendant California Spray Dry fails to stay current as described in Paragraph 5 or fails to make any of the scheduled payments listed above in Paragraph 4, the United States District Court, Northern District of California, shall retain jurisdiction to decide whether or not Defendant William A. Shirley is an employer within the meaning of ERISA and whether or not Defendant William A. Shirley is liable for any of the amounts Plaintiffs sought in the Conditional Stipulation for Judgment (which 2 shall become an irrevocable Judgment). If the Court decides in Plaintiffs' favor as to Defendant William A. Shirley, the Court shall amend the Stipulation for Judgment so that it is also entered against Defendant William A. Shirley. California Spray Dry making of all payments required by this Agreement as described in Paragraph 7

9. It is further stipulated and agreed by the parties hereto that upon Defendant above on the dates specified above, or sooner, and upon the funds having been deposited and 8 cleared the bank upon which they were drawn, and if Defendants do not default on any other 9 material condition contained herein, the Conditional Stipulation for Judgment shall be deemed paid in full. Plaintiffs shall immediately thereafter cause their counsel to execute and file a Dismissal with Prejudice, which shall be entered by the Court and vacate the Conditional Stipulation for

10. It is further stipulated and agreed that if California Spray Dry is sold or closed, this Conditional Stipulation for Judgment shall be binding on its successors, heirs, and assigns regardless of whether it changes the name or style or address of the business. violation of any state or federal law. However, if any portion of this Conditional Stipulation for Judgment is found to be in violation of any state or federal law, Defendant California Spray Dry agrees to continue to pay the indebtedness outlined herein in Paragraph 4.

independent legal counsel of their own choice throughout all of the negotiations that preceded the execution of this Conditional Stipulation for Judgment. Plaintiffs and Defendants further acknowledge that they have had adequate opportunity to perform whatever investigation or inquiry each deemed necessary in connection with the subject matter of this Conditional Stipulation for Judgment prior to its execution, and agree with the delivery and acceptance of the considerations specified in this Conditional Stipulation for Judgment.

13.The Parties hereto stipulate and agree that nothing herein prevents the Plaintiffs from seeking additional amounts from Defendants if a later audit of Defendants' books and records for Judgment against Defendants.

11. The provisions set forth in this Conditional Stipulation for Judgment are not in

12. The Parties acknowledge they have each had the opportunity to be represented by

IT IS SO ORDERED

20071106

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