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Bay Area Painters and Tapers Pension Trust Fund, and Its Joint v. Eladio R. Gutierrez and Does 1-10

May 15, 2013

BAY AREA PAINTERS AND TAPERS PENSION TRUST FUND, AND ITS JOINT BOARD OF TRUSTEES; LES PROTEAU AND MARIAN BOURBOULIS, TRUSTEES; DISTRICT COUNCIL 16 NORTHERN CALIFORNIA HEALTH AND WELFARE TRUST FUND, AND ITS JOINT BOARD OF TRUSTEES; CHRIS CHRISTOPHERSON AND JOHN MAGGIORE, TRUSTEES; DISTRICT COUNCIL 16 NORTHERN CALIFORNIA APPRENTICE AND JOURNEYMAN TRAINING TRUST FUND, AND ITS JOINT BOARD OF TRUSTEES; CHRIS CHRISTOPHERSON AND MARION BOURBOULIS, TRUSTEES; I.U.P.A.T. UNION AND INDUSTRY NATIONAL PENSION FUND; ITS JOINT BOARD OF TRUSTEES; AND KENNETH RIGMAIDEN AS TRUSTEE; AND DISTRICT COUNCIL 16 OF THE INTERNATIONAL UNION OF PAINTERS AND ALLIED TRADES; PLAINTIFFS,
v.
ELADIO R. GUTIERREZ AND DOES 1-10, INCLUSIVE;
DEFENDANTS.



NOTICE AND ACKNOWLEDGMENT; and JUDGMENT PURSUANT TO STIPULATION; [PROPOSED] ORDER THEREON

IT IS HEREBY STIPULATED and AGREED (the "Stipulation") by and between the 2 parties hereto, that Judgment shall be entered in the within action in favor of the Plaintiffs BAY 3 AREA PAINTERS AND TAPERS PENSION TRUST FUND, et al. (collectively "Plaintiffs" or 4 "Trust Funds") and against Defendant ELADIO R. GUTIERREZ ("Defendant"), as follows: 5

1. Defendant entered into a valid Collective Bargaining Agreement with the District 6 Council 16 of the International Union of Painters and Allied Trades (hereinafter "Bargaining 7 Agreement"). This Bargaining Agreement has continued in full force and effect to the present 8 time. 9

2. ELADIO R. GUTIERREZ acknowledges receipt of the following documents in this 10 action: Summons; Complaint; Dispute Resolution Procedures in the Northern District of 11 California; Order Setting Initial Case Management Conference and ADR Deadlines; Case 12 Management Standing Order for Magistrate Judge Maria-Elena James; Discovery Standing Order 13 for Magistrate Judge Maria-Elena James; Standing Order for All Judges of the Northern District of 14 California; Instructions for Completion of ADR Forms Regarding Selection of an ADR Process; 15 Stipulation and [Proposed Order] Selecting ADR Process; Notice of Need for ADR Phone 16 Conference; ADR Certification by Parties and Counsel; Notice of Assignment of Case to a United 17 State Magistrate Judge for Trial; Consent to Proceed Before a United States Magistrate Judge 18 (blank form); Declination to Proceed Before a Magistrate Judge and Request for Reassignment to 19 a United States District Judge (blank form); Plaintiff's signed Declination to Proceed Before a 20 Magistrate Judge and Request for Reassignment to a United States District Judge; ECF 21 Registration Information Handout; Welcome to the U.S. District Court -- San Francisco; 22 Certification of Interested Entities or Persons Pursuant to Civil Local Rule 3-16. 23

3. ELADIO R. GUTIERREZ specifically consents to the Court's jurisdiction for all 24 proceedings herein. 25

4. Defendant has become indebted to the Trust Funds as follows: 2

5. Defendant shallconditionally pay the amount of $88,333.29, representing the 17 balance of the above amounts, less liquidated damages in the amount of $18,619.54. This 18 conditional waiver isexpresslyconditioned upon Trustee approval following timely compliance 19 with all of the terms of this Stipulation, as follows: 20 (a) Beginning on May 1, 2013, and on or before the 1st day of each month 21 thereafter for a period of twenty four (24) months through and including April 1, 2015, Defendant 22 shall timely pay to Plaintiffs the amount of $3,875.00 per month; 23

(b) Payments may be made by joint check, to be endorsed to Plaintiffs prior to 24 submission. Any and all joint checks received for amounts owed under the Stipulation will be 25 applied to reduce the balance due. Defendant shall have the right to increase the monthly 26 payments at any time and there is no penalty for prepayment; 27 28 2 principal. The unpaid principal balance shall bear interest from April 24, 2013, at the rate of 5% 3 per annum in accordance with the Collective Bargaining Agreements and Plaintiffs' Trust 4 Agreements; 5

(c) Payments shall be applied first to unpaid interest and then to unpaid

(d) Checks shall be made payable to the "District Council 16 Health and Welfare Trust Fund" and delivered on or before each due date to Shivani Nanda, Esq. at 7 Saltzman & Johnson Law Corporation, 44 Montgomery Street, Suite 2110, San Francisco, 8 California 94104, or to such other address as may be specified by Plaintiffs; 9 10 shall advise Defendant, in writing, as to the conditional balance due, including interest and all 11 additional attorneys' fees and costs incurred by Plaintiffs in connection with collection and 12 allocation of the amounts owed to Plaintiffs under this Stipulation, and for all status letters and 13 releases or other responses requested by or on behalf of Defendant. Defendant shall pay all 14 additional attorneys' fees and costs regardless of whether or not Defendant defaults herein. Any 15 additional amounts due pursuant to the provisions hereunder shall also be paid in full with the 16 April 2015 stipulated payment; 17 18 may submit a written request for waiver of liquidated damages directed to the Board of Trustees, 19 but sent to Saltzman and Johnson Law Corporation with its 23rd payment. Defendant will be 20 advised as to whether or not the waiver has been granted prior to the final payment hereunder. 21

Such waiver will not be considered until and unless all other amounts are paid in full and 22 Defendant's account is otherwise current; and 23 24 the obligations under this Stipulation and the provisions of ¶11 shall apply. 25

(e) Prior to the last conditional payment pursuant to this Stipulation, Plaintiffs

(f) At the time that Defendant makes its 23rd conditional payment, Defendant

(g) Failure to comply with any of the above terms shall constitute a default of

6. In the event that any check is not timely submitted or fails to clear the bank, or is 26 unable to be negotiated for any reason for which Defendant is responsible, Defendant shall be 27 considered to be in default of the Judgment entered. If this occurs, Plaintiffs shall make a written 28 demand to Defendant to cure said default within seven (7) days of the date of the notice from Plaintiffs. If caused by a failed check, default will only be cured by the issuance of a replacement 2 cashier's check, delivered to Saltzman and Johnson Law Corporation within the seven (7) day 3 cure period. If Defendant elects to cure said default, and Plaintiffs elect to accept future payments, 4 all such future payments shall be made by cashier's check at Plaintiffs' request. In the event 5 default is notcured, all amounts remaining due hereunder shall be due and payable on demand by 6 Plaintiffs. 7

7.Beginning with contributions due for hours worked by Defendant's employees 8 during the month of April 2013, due on May 15, 2013 and delinquent if not received by the Trust 9 Funds before the last business day of the month, and for every month thereafter until this 10 Judgment is satisfied, Defendant shall remain current in contributions due to Plaintiffs under 11 the current Collective Bargaining Agreements and under all subsequent Collective Bargaining 12 Agreements, if any, and the Declarations of Trust as amended. Defendant shall fax a copy of its 13 contribution report for each month, together with a copy of that payment check, to Shivani Nanda 14 at 415-882-9287, at the same time as sending the payment to the Trust Fund office. 15

16 under this Agreement and the provisions of ¶11 shall apply. 17

Failure to comply with these terms shall also constitute a default of the obligations

8. Defendant shall make full disclosure of all jobs on which it is working by providing 18

Plaintiffs with an ongoing and updated list of jobs, provided as Exhibit A and attached hereto, 19 including but not limited to the name and address of the job, the start and completion dates, the 20 identity of General Contractor/Owner/Developer, and by providing certified payroll if it is a public 21 works job. To the extent that Defendant is working on a Public Works job, or any other job for 22 which Certified Payroll Reports are required, copies of said reports will be faxed to Shivani Nanda 23 concurrently with its submission to the General Contractor, Owner or other reporting agency. 24

25 forth above. Defendant shall fax said updated list each month together with the contribution report 26 on before the last business day of each month (as required by ¶7 of this Stipulation) to Shivani 27

Nanda at 415-882-9287. 28

9. Failure to comply with any of the above terms shall constitute a default of the obligations under this Stipulation and the provisions of ΒΆ11 shall apply. Any unpaid or late-paid 2 contributions, together with 20% liquidated damages and 5% per annum interest accrued on the 3 contributions, ...


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