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The Board of Trustees, In Their Capacities As Trustees of the Laborers Health and Welfare Trust Fund v. Cal-Kirk Landscaping

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA


June 1, 2011

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;
NORTHERN CALIFORNIA DISTRICT COUNCIL OF LABORERS FOR ITSELF AND ON BEHALF OF LABORERS' LOCAL 139 PLAINTIFFS,
v.
CAL-KIRK LANDSCAPING, INC., A CALIFORNIA CORPORATION,
DEFENDANT.

The opinion of the court was delivered by: Judge: Honorable Edward M. Chen

BARRY E. HINKLE, Bar No. 071223 CONCEPCION E. LOZANO-BATISTA, Bar No. 227227 KRISTINA M. ZINNEN, Bar No. 245346 WEINBERG, ROGER & ROSENFELD A Professional Corporation 1001 Marina Village Parkway, Suite 200 Alameda, California 94501-1091 Telephone (510) 337-1001 Fax (510) 337-1023 Attorneys for Plaintiffs G. DANIEL NEWLAND, Bar No. 087965 ARI HERSHER, Bar No. 260321 SEYFARTH SHAW LLP 560 Mission Street, Suite 3100 San Francisco, California 94105 Telephone (415) 397-2823 Fax (415) 397-8549 Attorneys for Defendant

Date: June 1, 2011

Time: 1:30 p.m.

Courtroom: C, 15th Floor

STIPULATED REQUEST TO CONTINUE CASE MANAGEMENT CONFERENCE; [PROPOSED ORDER

the initial Case Management Conference scheduled for February 23, 2011 be continued for 90 3 days. Plaintiffs and Defendant are in the process of attempting to resolve this matter. Plaintiffs 4 filed the original Complaint and Petition to Confirm in this action on July 9, 2008. On or around

Pursuant to Civil Local Rules 7-12 and 16-2, Plaintiffs and Defendant hereby request that

November 2008, Defendant agreed to allow Plaintiffs' auditors to audit their records to determine 6 whether any amounts were due and owing as a result of the audit. Plaintiffs thereafter conducted 7 an audit of Defendant's records and found a number of delinquencies owed by Defendant. On or 8 around February 2009, Plaintiffs submitted their audit findings to Defendant to allow Defendant 9 the opportunity to review those results and challenge any delinquencies it believed were in error.

Petition to Confirm Arbitration Award, Breach of Contract, Damages, and Breach of Fiduciary

Defendant. On or around June 3, 2009, Plaintiffs were notified that Defendant had retained legal 14 counsel on or around May 21, 2009. On June 4, at the request of the parties, the Court granted

Complaint to July 31, 2009. The parties thereafter stipulated to two additional extensions of time 17 for Defendant to answer or otherwise respond to Plaintiffs' First Amended Complaint to August

As a result of the documentation that Defendant submitted to Plaintiffs, Plaintiffs have made adjustments to the audit worksheets. The parties then engaged in informal discovery, 21 including the exchange of payroll records and related documents. Defendant then provided

Plaintiffs with an analysis of Plaintiffs' Trust Fund audit, as well as an analysis of the wage issues 23 brought by the Unions. Plaintiffs and Defendant are currently engaged in a review of the revised 24 audit worksheets and Defendant's analyses, and are attempting to resolve the matter without 25 further litigation.

The parties have exchanged settlement figures on multiple occasions and believe that there is a bridgeable gap between their respective settlement positions. The parties are now requesting a

After receiving no response from Defendant, Plaintiffs filed their First Amended Complaint for

Duty on May 7, 2009. On or around May 15, 2009, Plaintiffs received documentation from

Defendant an extension of time to answer or otherwise respond to Plaintiffs' First Amended

31, 2009 and September 9, 2009, respectively. Defendant timely answered on September 9, 2009.

further continuance of the Case Management Conference because a continuance would promote 2 judicial efficiency and allow the parties to allocate their time and resources towards settlement. 3

The parties believe that they are close to reaching a settlement and anticipate they will reach an 4 agreement within the next 120 days.

Based on the above, Plaintiffs and Defendant respectfully request that the initial case

management conference, currently scheduled for June 1, 2011, be continued for 120 days, in order 7 to allow the parties time to attempt to resolve the matter without further litigation.

Based upon the foregoing Stipulated Request to Continue Case Management Conference,

the Court orders the continuance of the case management conference for 120 days, or as soon 22 thereafter as a court date is available. In addition, the Court Orders:

The Case Management Conference is reset from 6/1/11 to 8/5/11 at 9:00 a.m. in Courtroom 5, 17th Floor. No further continuance will be granted.

The Honorable Edward M. Chen United States District Court Judge

IT IS SO ORDERED

AS MODIFIED

Edward M. Chen Judge

13418744v.1

20110601

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