Free Complaint - District Court of California - California

Case 3:08-cv-02179-MMC

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2 II Katzenbach and Khtikian 1714 Stockton Street, Suite 300 3 II San Francisco, California 94133-2930 Telephone: (415) 834-1778 4 II Facsimile: (415 834-1842 5 II Attorney for Plaintiffs

111 Kent Khtikian, Esq. (#99843) Kimberly A. Hancock Esq. (#205567)

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E-filing
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA TRUSTEES OF THE BRICKLAYERS LOCAL NO. 3 PENSION TRUST; TRUSTEES OF THE BRICKLAYERS LOCAL NO.3 HEALTH AND WELFARE TRUST; TRUSTEES OF THE BRICKLAYERS AND ALLIED CRAFTS LOCAL II NO.3 APPRENTICE TRAINING TRUST; INTERNATIONALUNION OF BRICKLAYERS AND ALLIED CRAFTWORKERS AFL-CIO, LOCAL UNION NO.3, on behalf of itself and as agent for its members; TRUSTEES OF THE INTERNATIONALUNION OF BRICKLAYERS AND ALLIED CRAFTSMEN PENSION FUND, Plaintiffs, vs.
CALIFORNIA COATINGS WATERPROOFING ENGINEERS, INC., doing business as "Pacific Coast Restoration" ,

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2179

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) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

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COMPLAINT FOR BREACH OF BARGAINING AGREEMENT; RECOVERY OF DELINQUENT WAGE & FRINGE BENEFIT CONTRIBUTIONS; INJUNCTION

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Defendant.

Plaintiffs, and each of them, complain against the above-named defendants and allege as follows: I FIRST CLAIM FOR RELIEF (Delinquent Contributions) (29 U.S.C. Section 1145) 1. This is an action to collect unpaid contributions to multiemployer benefit plans
COMPLAINT

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1 II pursuant to the terms of each plan, its respective trust agreement and a collective bargaining 2
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agreement. Jurisdiction of this action is conferred on this Court by the provisions of the

3 II Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. Sections 1132(a), (e), 4 II and (f) and 1145. Jurisdiction of this action is also conferred on this Court by the provisions of 5 II 28 U.S.C. Section 1331(a). 6 II 2. This District is the appropriate venue for this action, pursuant to 29 U.S.C. Section

7 II 1132(e)(2), as all of the plans are administered in this District and the breach took place in this

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District.
3. Plaintiff, INTERNATIONAL UNION OF BRICKLAYERSAND ALLIED

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10 II CRAFTWORKERS, AFL-CIO, LOCAL NO.3, an affiliate of the International Union Of 1111 Bricklayers And Allied Craftworkers, AFL-CIO, hereinafter the "Union", is and at all times
12 II material herein was a labor organization and the collective bargaining representative for persons 13 II who are engaged, by defendants as masons in the construction industry in Northern California. 14 II As such the Union is a employee organization representing employees in an industry affecting 15 II commerce, within the meaning of Section 301 of the LMRA, the definitions contained in

1611 Sections 2(5), and 501(1) and (3) of the LMRA (29 USC Sections 152(5), 142(1)& (3)) and 29
17 II U.S.C. Sections 1002(4) and 1003. The Union maintains its principal office for such purpose in 18 II Oakland, California. 19 II 4. The Union brings this action on behalf of itself and as agent for and assignee of its

20 II members, all of whom were employed by CALIFORNIA COATINGS

- WATERPROOFING

2111 ENGINEERS, INC. doing business as Pacific Coast Restoration, to perform work under the 22 II collective bargaining agreement described in paragraphs 8, 9, 12 and 17 through 19 of tbis 2 3" complaint. 2 4 II 5. Plaintiffs, TRUSTEES OF THE BRICKLAYERSLOCAL NO.3 PENSION TRUST

25" (hereinafter "Pension Fund"), TRUSTEES OF THE BRICKLAYERSLOCAL NO.3 HEALTH 26" AND WELFARE TRUST (hereinafter "Welfare Fund"), TRUSTEES OF THE BRICKLAYERS 27 II AND ALLIED CRAFTS LOCAL NO.3 APPRENTICE TRAINING TRUST (hereinafter 28" "ApprenticeFund") and TRUSTEES OF THE INTERNATIONALUNION OF BRICKLAYERS
COMPLAINT

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111 AND ALLIED CRAFTSMEN PENSION FUND (hereinafter "International Pension Fund"), are 2 II trustees and fiduciaries of multiemployer employee benefit plans pursuant to ERISA, 29 U.S.c. 3 II Sections 1002(3) and (37) and 1132(d)(I). The Pension Fund, Welfare Fund and Apprentice
4 II Fund each has its office in San Francisco, California. 5 II 6. The Union brings this action on behalf of itself and as agent for it members and other

6 II individuals whose identity is not currently known to plaintiffs, hereinafter referred to as "Mason 7 II Employees". The Mason Employees were employed by defendant CALIFORNIA COATINGS8 II WATERPROOFING ENGINEERS, INC. doing business as "Pacific Coast Restoration", to 9 II perform work under the collective bargaining agreement described in paragraphs 8, 9, 12 and 17 1 0 II through 19 of this complaint. 1111 7. Defendant CALIFORNIA COATINGS

- WATERPROOFING

ENGINEERS, INC.

12 II doing business as "Pacific Coast Restoration", (hereinafter "Pacific Coast") is and at all material. 13
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times herein was a California corporation with its principal office and place of business in the

14 II City and County of San Francisco, California. At all times material herein, Pacific Coast has
15 II engaged in the construction industry in California and as such has been an employer engaged in 16 II an industry or activity affecting commerce within the meaning of29 U.S.C. Sections 1002(5) and 17 II 1003, Section 301 of the LMRA, and of the definitions contained in Sections 2(2), and 501(1) 18 II and (3) of the LMRA (29 USC Sections 152(2), 142(1) & (3)). 19
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8. At all times material herein, the Union has been party to a written collective

20 II bargaining agreement with Pacific Coast which agreement requires that Pacific Coast pay various 21 II wages and fringe benefits to its employees. Pursuant to the terms of the collective bargaining 22 II agreement, Pacific Coast agreed to be bound by the terms and conditions of each of the trust 23 II agreements under and in accordance with which each of the Funds was established and is 2 4 II maintained. 25 II 9. The collective bargaining agreement and the trust agreements all require Pacific Coast

2 6 II to report in writing each month to the administrator of the Funds the total number of hours 27 II worked by any person employed by Pacific Coast to perform work within the jurisdiction of the 28
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collective bargaining agreement (hereinafter referred to as the "remittance reports"). The
COMPLAINT

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1 II collective bargaining agreement and the trust agreements all require Pacific Coast to submit those 2 II monthly remittance reports together with the payments indicated by those reports to the 3 II administrator of the Funds by the ISth day of the calendar month first following the calendar 4 II month in which the hours were worked. 5 II 10. Pacific Coast has failed to file the required remittance reports and to pay the

6 II corresponding required fringe benefit contributions to the Funds and the required vacation and 7 II dues check-off payments (hereinafter "wages") to the Mason Employees and the Union, for hours 8 II worked during the month of August 2007 and during the period from November 1, 2007 to the
9 II present.

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11. Demand has been made for the remittance reports and corresponding payment for

1111 fringe benefits and wages, but Pacific Coast has refused and continues to refuse to submit the 12 II remittance reports and pay the sum owed for work performed during the month of August 2007 13 II and during the period from November 1, 2007 to the present. 14 II 12. Pursuant to the Trust Agreements, the collective bargaining agreement and by statute

15 II (ERISA section S02(g)(2)(B)), if payments are not made, or if remittance reports are not 16 II submitted in a timely manner, Pacific Coast is required to pay liquidated damages equal to the 1 7 II greater of one hundred dollars ($100.00) or ten percent (10%) of the unpaid monthly 18 II contributions ifthe principal amount is paid within 30 days of the due date and twenty percent 19 II (20%) of the unpaid monthly contributions if they are paid more than 30 days after the due date. 20 II This liquidated damage amount is owed on all hourly fringe benefits accrued to the present, in an

2111 amount to be determined. In addition, under the terms of ERISA (section S02(g)(2)),the trust 2 2 II agreements and Article XIII of the Collective Bargaining Agreement, plaintiffs are entitled to
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attorney's fees, auditor's fees, interest and collection costs on any delinquency described in this

2 4 II complaint. 2 5 II 13. Plaintiffs are entitled to unpaid fringe benefits due the Pension Fund, the

2 6 II International Pension Fund, the Welfare Fund and the Apprentice Fund for hours worked during 27 II August 2007 and from November 1, 2007 to the present in an amount to be determined, plus 28 II interest thereon from September IS, 2007, plus plaintiffs attorney's fees and costs, plus the
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COMPLAINT

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greater of liquidated damages or interest, plus penalties, pursuant to 29 U.S.C. Section

2 \I 1132(g)(2), Labor Code Sections 201, 203, 218.5 and 218.6, all according to proof.

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n SECOND CLAIMFORRELIEF
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(Breach of Contract)

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(29 D.S.C. Section 185) 14. Plaintiffs reallege and incorporate herein by reference each and every allegation set forth in paragraphs 1 through 13, inclusive, of this complaint as though fully set forth at this point. 15. This is an action to enforce a collective bargaining agreement pursuant to 29 U.S.C. Section 185. Jurisdiction of this action is also conferred on this Court by the provisions of28 U.S.C. Section 1331(a). 16. The Union and the persons on whose behalf the Union brings this action have duly performed all conditions of the agreement on their part to be performed. 17. Article XIII, Section 1.C, of the collective bargaining agreement states: "Each monthly contribution to the Trusts shall be made promptly and is due on or before the fifteenth (15th) day of the calendar month following the month such hours are worked. If not paid in full by the fifteenth (15th) day of the month, the contribution will be delinquent and subject to liquidated damages. Each employer shall also prepare a monthly transmittal covering each employee who performs work subject to this Agreement... It shall be the responsibility of the employer to make sure the monthly contribution and re~ort form is postmarked by the Post Office on or before the fifteenth (1St) day of the month. If such envelope containing the contribution and report form is postmark dated after the fifteenth (15th)day of the month, such report form and contribution shall be considered delinquent, and the employer shall be in breach of this Agreement and liquidated damages shall be assessed." 18. Article XIII, Section I.C of the collective bargaining agreement further provides that should Pacific Coast fail to submit reports or make the required payments by the agreed date, Pacific Coast shall be liable for liquidated damages. In relevant part, the collective bargaining agreement states: "The Association, NCPCA and the Union recognize and acknowledge that the regular and prompt payment of employer contributions and report forms is essential to the maintenance of the Trusts, and it would be extremely difficult, if not impractical, to fix the actual expense and damage to the Trusts which would result from failure of any employer to such monthly contributions and furnish contribution
COMPLAINT

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1 II 2 II 3 II 4 II

forms within the time provided. Therefore, the amount of damages to the
Trusts resulting from any such failure shall be presumed to be the sum of one hundred dollars ($100.00) or ten percent (10%) of all contributions due, whichever is greater. If the delinquency persists over thirty (30) days, the charge will be twenty percent (20%) of the amount due." 19. Article XIII, Section 1.B of the collective bargaining agreement states that in the

5 II event it is necessary for the Union or the Trusts to file an action to compel production of monthly 6 II reports, and for the collection of any and all wages, fringe benefit contributions or liquidated 7 II damages, the Union and the Trusts are entitled to recover, in addition to the above-described 8 II liquidated damages, interest at the legal rate, all costs of suit and reasonable attorney's fees 9 II incurred in enforcing this obligation. The plaintiffs have incurred attorney's fees and costs in an 1 a II attempt to recover the delinquent wage and fringe benefit payments. 1111 20. Defendant Pacific Coast breached the collective bargaining agreement by refusing or

12 II failing: (i) to submit monthly remittance reports during the month of August 2007 and during the 13 II period from November 1, 2007 to the present, (ii) to pay fringe benefits and wages when due in 14 II accordance with the reports for the month of August 2007 and during the period from November 15 II 1, 2007 to the present, in an amount to be determined; (iii) to pay liquidated damages and interest 16 lion late payments of fringe benefits as agreed; and (iv) to pay attorney's fees and other collection 17 II costs, all to the detriment of Plaintiffs. 18 II 21. As a consequence of the above-described breach, Plaintiffs are entitled to damages in

1 9 II an amount equal to the wages and fringe benefit payments required by the agreement and owed

2 a II for work performed during the month of August 2007 and during the period from November 1, 21 II 2007 to the present in an amount to be determined, interest thereon from the original date of each 22 II latepayment,liquidateddamagesat the rate of 20%in an amountto be determined, enalties, p 23 II attorney'sfeesand costsaccordingto proof pursuantto the collectivebargainingagreement,the 24 II trust agreements incorporated therein to which Pacific Coast has agreed to be bound, California
25 II Civil Code section 3287, and California Labor Code sections 201,203,218.5 and 218.6.
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COMPLAINT

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THIRD CLAIM FOR RELIEF
2 II (Injunction)

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22. Plaintiffs reallege and incorporate herein by reference each and every allegation set

4 II forth in paragraphs 1 through 21 of this complaint as though fully set forth at this point.

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23. Underthe terms ofthe collectivebargainingagreementand eachof the Trust

6 II Agreements governing the Pension Fund, the Welfare Fund, the Apprentice Fund and the 7 II International Pension Fund, the plaintiffs are entitled to audit the payroll and other related 8 II records of Pacific Coast as necessary. Where, as here, the employer has failed to file the required 9 II periodic reports, plaintiffs are entitled to conduct such audit at the expense of defendants Pacific
10 II Coast.

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24. The audit is necessary to determine the exact number of hours worked under the

12 II collective bargaining agreement and the exact amount of the delinquencies, liquidated damages 13 II and interest. 14 II 25. There is no adequate remedy at law for this breach. Plaintiffs are entitled to

15 II prejudgment injunctive relief ordering an audit to be paid by Pacific Coast ofthe employment 16 II records of Pacific Coast for the period from January 1, 2007 to the present. 17

PRAYER 18 19 20 21 22 23 24 25 26 27 28 Forjudgment against defendant CALIFORNIA COATINGS - WATERPROOFING ENGINEERS, INC., doing business as Pacific Coast Masonry: (a) in the principal amount to be determined for unpaid wages and fringe benefits, plus interest thereon at the legal rate from the original due dates commencing September 15, 2007 until paid; (b) plus plaintiffs' attorney's fees and costs; (c) plus the greater of liquidated damages in an amount to be determined, calculated at 20% of the principal amount or interest; all according to proof, pursuant to the agreement between plaintiffs and defendants, 29 U.S.C.
COMPLAINT

WHEREFORE, Plaintiffs pray for judgment as follows: I. On the First Claim for Relief:

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6 II interest thereon at the legal rate from the original due dates commencing September 15, 2007 7 II until paid; 8 II 9 II (b) plus plaintiffs' attorney's fees and costs; (c) plus the greater of liquidated damages in an amount to be determined, calculated at

10 II 20% of the principal amount or interest; 1111 all according to proof, pursuant to the agreement between plaintiffs and defendants, 29

12 II U.S.C. Section 1132(g)(2), Labor Code Section 218.5 and any other statute so providing; and, 13 II For penalties against defendant Pacific Coast pursuant to California Labor Code Section 203. 14 II III. On the Third Claim for Relief: 15
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For an injunction ordering CALIFORNIA COATINGS - WATERPROOFING ENGINEERS,

16 II INC., doing business as Pacific Coast Masonry:, to submit to an audit, for the period from 17 II January 1,2007 through the date ofthe audit, as required by the terms of the collective 18 II bargaining agreement and the Trust Agreements. For attorney's fees and costs pursuant to the 19
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collective bargaining agreement and Trust Agreements incorporated therein in an amount

2 0 II accordingto proof. 2111 IV. On Each and Every Claim for Relief:
22 II For such relief as the Court deems proper. 23 II 24 KA TZENBACH AND KHTIKIAN 2511 Dated: April 28, 2008 26 Plaintiffs hereby request a jury trial pursuant to FRCivP 38(b).

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By:

COMPLAINT

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Case 3:08-cv-02179-MMC AO ~o (Rev. 10/93) Summons in a Civil Action

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See 1 in Addendum

SUMMONS IN A CIVIL CASE
CASE NUMBER:

v.
See 2 in Addendum

TO: (Name and address of defendant)

CALIFORNIA COATINGS

c/o Justen L. Nero 850 S. Van Ness Ave. San Francisco, CA 94110

- WATERPROOFING

ENGINEERS, INC.

YOU ARE HEREBY SUMMONED and requiredto serveup on PLAINTIFF'S ATTORNEY(nameand address)

Kent Khtikian, Esq. Kimberly Hancock, Esq. Katzenbach and Khtikian 1714 Stockton Street, Suite 300 San Francisco, CA 94133-2930

an answer to the complaint which is herewith served upon you, within Twenty (20) days after service of this summons upon you, exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint. You must also file your answer with the Clerk of this Court within a reasonable period of time after service.

RICHARD 1NIE~WG ~'
tlPR 2 8 2C38
DATE

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Addendum

1.

TRUSTEES OF THE BRICKLAYERS LOCAL NO.3 PENSION TRUST; TRUSTEES OF THE BRICKLAYERS LOCAL NO. 3 HEALTH AND WELFARE TRUST; TRUSTEES OF THE BRICKLAYERS AND ALLIED CRAFTS LOCAL NO.3 APPRENTICE TRAINING TRUST; INTERNATIONALUNION OF BRICKLAYERS AND ALLIED CRAFTWORKERS AFL-CIO, LOCAL UNION NO.3, on behalf of itself and as agent for its members; TRUSTEES OF THE INTERNATIONAL UNION OF BRICKLAYERS AND ALLIED CRAFTSMEN PENSION FUND; Plaintiffs. CALIFORNIA COASTINGS - WATERPROOFING ENGINEERS, INC., doing business as "Pacific Coast Restoration", Defendant.

2.