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

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

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Filed 06/06/2008

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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) PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT

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

TO DEFENDANT AND ITS ATTORNEY OF RECORD: PLEASE TAKE NOTICE that on July 18, 2008, at 1:30 p.m. or soon thereafter as this matter may be heard by the above-entitled Court, located at 940 Front Street, San Diego, CA 92101, Courtroom 10, the Honorable Dana M. Sabraw, United States District Judge, presiding, Plaintiffs will present their Motion for Summary
KKF/mdn/0356.21(g).wpd Plaintiffs' Notice of Motion and Motion for Summary Judgment

Case No. 08 CV 0561 DMS (RBB)

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

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Filed 06/06/2008

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Judgment against Defendant, HARRIS CONCRETE, INC., a corporation, on the grounds that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law for the reasons that: 1. Defendant has failed to submit accurate and prompt monthly reports and to pay contributions and dues to Plaintiffs for the time period of February, 2007 to the present as required by the Short Form Agreement, which incorporates the terms and provisions of the Master Labor Agreements (the "Collective Bargaining Agreements") and of the Declaration of Trusts (the "Trust Agreements"), and by the rules, regulations and procedures of the Trust Funds, the Vacation Plan and the Union. 2. Agreements. 3. 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 plus $13,716.82 in unpaid liquidated damages and $7,623.55 in unpaid interest for the months of February, 2007 to April, 2008. Additionally, Plaintiffs are entitled to their reasonable attorney's fees and costs of the lawsuit. 4. present. This Motion is made following the telephone conference of counsel for the parties, which took place on May, 20, 2008. /// /// /// /// ///
-2Plaintiffs' Notice of Motion and Motion for Summary Judgment Case No. 08 CV 0561 DMS (RBB)

Defendant has failed to submit to an audit of Defendant's books and

records covering the time period of January, 2007 to the present as required by the

Additionally, Plaintiffs are entitled to an Order requiring Defendant

to submit its records to Plaintiffs for audit for the time period of January, 2007 to the

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

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Filed 06/06/2008

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This Motion is based on the Notice herein, and concurrently filed Memorandum of Points and Authorities, Declarations of Sandra Eatchel and Kerry K. Fennelly, Esq., and the pleadings, files and other matters that may be presented at the hearing. DATED: June 6, 2008 MELISSA W. COOK & ASSOCIATES By: /S/ Kerry K. Fennelly Melissa W. Cook Kerry K. Fennelly Attorneys for Plaintiffs Email: [email protected]

-3Plaintiffs' Notice of Motion and Motion for Summary Judgment Case No. 08 CV 0561 DMS (RBB)