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Bay Area Painters and Tapers Pension Trust Fund v. Gutierrez

United States District Court, Ninth Circuit

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 ALLIEDTRADES; Plaintiffs,
v.
ELADIO R. GUTIERREZ and DOES 1-10, inclusive; Defendants.

Michele R. Stafford, Esq. Shivani Nanda, Esq. Eladio R. Gutierrez, SALTZMAN & JOHNSON LAW CORPORATION, San Francisco, CA, mstafford@sjlawcorp.com snanda@sjlawcorp.com Attorneys for Plaintiffs.

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

WILLIAM ALSUP, District Judge.

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

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

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

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

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

5. Defendant shall conditionally pay the amount of $88, 333.29, representing the balance of the above amounts, less liquidated damages in the amount of $18, 619.54. This conditional waiver is expressly conditioned upon Trustee approval following timely compliance with all of the terms of this Stipulation, as follows:

(a) Beginning on May 1, 2013, and on or before the 1st day of each month thereafter for a period of twenty four (24) months through and including April 1, 2015, Defendant shall timely pay to Plaintiffs the amount of $3, 875.00 per month;

(b) Payments may be made by joint check, to be endorsed to Plaintiffs prior to submission. Any and all joint checks received for amounts owed under the Stipulation will be applied to reduce the balance due. Defendant shall have the right to increase the monthly payments at any time and there is no penalty for prepayment;

(c) Payments shall be applied first to unpaid interest and then to unpaid principal. The unpaid principal balance shall bear interest from April 24, 2013, at the rate of 5% per annum in accordance with the Collective Bargaining Agreements and Plaintiffs' Trust Agreements;

(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 Saltzman & Johnson Law Corporation, 44 Montgomery Street, Suite 2110, San Francisco, California 94104, or to such other address as may be specified by Plaintiffs;

(e) Prior to the last conditional payment pursuant to this Stipulation, Plaintiffs shall advise Defendant, in writing, as to the conditional balance due, including interest and all additional attorneys' fees and costs incurred by Plaintiffs in connection with collection and allocation of the amounts owed to Plaintiffs under this Stipulation, and for all status letters and releases or other responses requested by or on behalf of Defendant. Defendant shall pay all additional attorneys' fees and costs regardless of whether or not Defendant defaults herein. Any additional amounts due pursuant to the provisions hereunder shall also be paid in full with the April 2015 stipulated payment;

(f) At the time that Defendant makes its 23rd conditional payment, Defendant may submit a written request for waiver of liquidated damages directed to the Board of Trustees, but sent to Saltzman and Johnson Law Corporation with its 23rd payment. Defendant will be advised as to whether or not the waiver has been granted prior to the final payment hereunder. Such waiver will not be considered ...


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