Free Motion for Summary Judgment - District Court of California - California

Case 3:08-cv-00561-DMS-RBB

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MELISSA W. COOK, ESQ.; SBN 134791 KERRY K. FENNELLY, ESQ.; SBN: 232621 MELISSA W. COOK & ASSOCIATES 3444 Camino del Rio North, Suite 106 San Diego, California 92108 Telephone: (619) 280-4302 Facsimile: (619) 280-4304 [email protected] [email protected] Attorneys for Plaintiffs UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA SAN DIEGO COUNTY CEMENT MASONS GROUP INSURANCE TRUST; SAN DIEGO COUNTY CEMENT MASONS PENSION TRUST FUND; SAN DIEGO COUNTY CEMENT MASONS APPRENTICE AND TRAINING TRUST FUND; SAN DIEGO COUNTY CEMENT MASONS LOCAL 500/AREA 744 VACATION PLAN; and OPERATIVE PLASTERERS' AND CEMENT MASONS' INTERNATIONAL ASSOCIATION, LOCAL UNION 500/AREA 744, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Plaintiffs, ) ) v. ) ) HARRIS CONCRETE, INC., a ) corporation, ) ) Defendant. ) _________________________________ ) Case No. 08 CV 0561 DMS (RBB) [Proposed] STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW

Hearing Date: July 18, 2008 Time: 1:30 p.m. Courtroom: 10 Hon. Dana M. Sabraw Complaint Filed: March 25, 2008

After consideration of the papers in support of and in opposition to Plaintiffs' Motion for Summary Judgment and the oral argument of counsel, the Court determines that the following facts have been established as, /// /// ///

KKF/mdn/0356.21(l).wpd [Proposed] Statement of Uncontroverted Facts and Conclusions of Law

Case No. 08 CV 0561 DMS (RBB)

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UNCONTROVERTED FACTS UNCONTROVERTED FACTS 1. Plaintiffs are the trustees of SAN DIEGO COUNTY CEMENT MASONS GROUP INSURANCE TRUST, SAN DIEGO COUNTY CEMENT MASONS PENSION TRUST FUND, SAN DIEGO COUNTY CEMENT MASONS APPRENTICE AND TRAINING TRUST FUND (hereinafter collectively the "Trust Funds"). 2. The Trust Funds were created to provide employee benefits to cement masons and their dependents. 3. The Trust Funds were created and now exist pursuant to section 302(c) of the Labor Management Relations Act of 1947 (hereinafter "LRMA"), 29 U.S.C. § 186(c), and are each part of a multiemployer plan as defined in section 3(37)(A) of the Employee Retirement Income Security Act of 1074 (hereinafter "ERISA"), 29 U.S.C. § 1002(37)(A), and as used in sections 515 and 502(g)(2) of ERISA, 29 U.S.C. §§ 1145, 1132(g)(2). 4. Plaintiffs are also the fiduciaries of the SAN DIEGO COUNTY CEMENT MASONS LOCAL 500/AREA 744 VACATION PLAN (hereinafter the "Vacation Plan") and the OPERATIVE PLASTERS' AND CEMENT MASONS' INTERNATIONAL ASSOCIATION, LOCAL UNION 500/AREA 744 (hereinafter the "Union"). 5. On or about January 6, 2002, Percy Harris executed as an agent of Defendant HARRIS CONCRETE, INC. an agreement in writing entitled Short Form Agreement. /// //// /// ///
-2[Proposed] Statement of Uncontroverted Facts and Conclusions of Law Case No. 08 CV 0561 DMS (RBB)

SUPPORTING EVIDENCE Declaration of Sandra Eatchel [hereinafter "Eatchel Decl."] submitted herewith, ¶ 1.

Eatchel Decl., ¶ 3. Eatchel Decl., ¶ 4.

Eatchel Decl., ¶ 1.

Eatchel Decl., ¶ 5.

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6. By the Short Form Agreement, which incorporates the terms and provisions of Master Labor Agreements (hereinafter "Collective Bargaining Agreements") and of the Declaration of Trusts (hereinafter "Trust Agreements") (hereinafter collectively the "Agreements"), and by the rules, regulations and procedures of the Trust Funds, the Vacation Plan and the Union, Defendant is required to submit monthly reports and pay to the Trust Funds, each of them, certain sums per hour for each hour paid and/or worked during each month by cement masons employed by Defendant (hereinafter "Contributions") and withhold and submit to the Vacation Plan and the Union, each of them, certain sums per hour for each hour paid and/or worked during each month by cement masons employed by Defendant who have authorized Defendant to make said withholdings (the "Dues"). 7. Said reports, Contributions and Dues were agreed to be due and payable on the 10th day of each month and would become delinquent on the 15th day of each month following the month in which said hours of work were performed. 8. Defendant is required to submit the monthly reports even if no cement masons are employed. 9. Defendant agreed by the terms of the Agreements that the prompt payment by them of the Contributions is essential to the maintenance of the Trust Funds. 10. Defendant further agreed that it would be extremely difficult, if not impossible, to fix the actual expense and damage to the Trust Funds which would result from the failure of Defendant to pay the Contributions within the time provided. /// /// ///

Eatchel Decl., ¶ 6.

Eatchel Decl., ¶ 7.

Eatchel Decl., ¶ 8. Eatchel Decl., ¶ 9.

Eatchel Decl., ¶ 10.

-3[Proposed] Statement of Uncontroverted Facts and Conclusions of Law Case No. 08 CV 0561 DMS (RBB)

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11. Thus, liquidated damages would be assessed in accordance with the following schedule: (a) One and one-half percent (1½%) of the principal if late one to thirty (1-30) days; (b) Three percent (3%) of the principal if late thirty-one to sixty (31-60) days; (c) One and one-half percent (1½%) will accrue for each additional thirty (30) days late, up to a maximum of eighteen percent (18%) per annum. 12. The Agreements provide that the Contributions unpaid by the due date (the 10th day of the month following the month in which said hours of work were preformed) shall bear interest from such date at the rate of ten percent (10%) per annum. 13. Additionally, the Agreements authorize Plaintiffs to examine and audit the books and records of Defendant to determine whether Defendant is making fully and prompt payment of the Contributions to the Trust Funds and submission of the Dues to the Vacation Fund and the Union. 14. The Agreements further provide that in the event where an audit discloses that Defendant has failed to correctly report and pay the Contributions in accordance with the Agreements for reason other than clerical error or omission, Defendant shall be liable for an hourly charge for the audit, unpaid Contributions, liquidated damages, reasonable attorney fees and any other costs of collection. 15. The Agreements are binding upon the heirs, executors, administrators, successors, purchasers, and assigns of Defendant, including any name or style under which business is conducted with respect to work covered by the Agreements. ///

Eatchel Decl., ¶ 11.

Eatchel Decl., ¶ 12.

Eatchel Decl., ¶ 13.

Eatchel Decl., ¶ 14.

Eatchel Decl., ¶ 15.

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16. Pursuant to the books and records of Plaintiffs, Defendant has failed to submit accurate and prompt monthly reports, to pay Contributions and submit Dues as required by the Agreements for the time period of February, 2007 to the present. 17. Although demand has been made for the payment of the unpaid Contributions and Dues, some of which has been collected, there is now due and owing a total of $109,246.55 in unpaid Contributions and Dues plus $13,716.82 in unpaid liquidated damages and $7,623.55 in unpaid interest to the Plaintiffs for the months of February, 2007 to April, 2008. 18. The amounts set forth above are the amounts owed by Defendant under the Agreements for the period of February, 2007 through April, 2008 only and are based solely upon remittance reports voluntarily submitted to Plaintiffs by Defendant. 19. The amounts set forth above do not cover, and expressly exclude, any time period not mentioned above and any amount not known to Plaintiffs as of the date Plaintiffs submit this Motion, including but not limited to, the Contributions and Dues which might subsequently be revealed by an audit of Defendant's books and records. 20. Although demand has been made for Defendant to submit to an audit of its books and records for the time period of February, 2007 to the present, Defendant has refused. 21. Pursuant to the Agreements, Plaintiffs are entitled to their reasonable attorney's fees and costs of the lawsuit.

Eatchel Decl., ¶ 18.

Eatchel Decl., ¶ 19.

Eatchel Decl., ¶ 20.

Eatchel Decl., ¶ 21.

Eatchel Decl., ¶ 22.

Eatchel Decl., ¶ 23.

Based on the foregoing Uncontroverted Facts, the Court now makes its, CONCLUSIONS OF LAW 1. § 1132(e)).
-5[Proposed] Statement of Uncontroverted Facts and Conclusions of Law Case No. 08 CV 0561 DMS (RBB)

This Court has jurisdiction of this case under section 502(e)(1) of the

Employee Retirement Income Security Act of 1974 ("ERISA"), as amended (29 U.S.C.

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2.

Defendant has failed to submit accurate monthly reports and to pay

Contributions and Dues to Plaintiffs as required by the Agreements for the time period of February, 2007 to the present. 3. Agreements. 4. As such, pursuant to the Agreements and ERISA Sections 515 and 502(g)(2), 29 U.S.C. Sections 1145 and 1132(g)(2), Defendant is liable to Plaintiffs for $109,246.55 in unpaid Contributions and Dues plus $13,716.82 in unpaid liquidated damages and $7,623.55 in unpaid interest for the months of February, 2007 to April, 2008. 5. lawsuit. 6. DATED: Judgment shall be entered in Plaintiff's favor consistent herewith. _______________________________ DANA M. SABRAW UNITED STATES DISTRICT JUDGE Plaintiffs are entitled to reasonable attorney's fees and costs of this Defendant has failed to submit to an audit of Defendant's books and records covering the time period of February, 2007 to the present as required by the

-6[Proposed] Statement of Uncontroverted Facts and Conclusions of Law Case No. 08 CV 0561 DMS (RBB)