Free Declaration in Support - District Court of California - California

Case 3:07-cv-05045-MMC

Document 22

Filed 05/22/2008

Page 1 of 4

1 Muriel B. Kaplan, Esq. (SBN 124607) Michele R. Stafford, Esq. (SBN 172509) 2 SALTZMAN & JOHNSON LAW CORPORATION 44 Montgomery Street, Suite 2110 3 San Francisco, CA 94104 (415) 882-7900 4 (415) 882-9287 ­ Facsimile [email protected] 5 [email protected] 6 Attorneys for Plaintiffs 7 8 9 10 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA Case No.: C07-5045 MMC SUPPLEMENTAL DECLARATION OF WAYNE E. McBRIDE IN SUPPORT OF MOTION FOR ENTRY OF DEFAULT JUDGMENT Date: May 16, 2008 Time: 9:00 a.m. Location: 450 Golden Gate Avenue San Francisco, California Courtroom: 7, 19th Floor Judge: The Honorable Maxine M. Chesney I, Wayne E. McBride, declare as follows: 1. 22 23 Funds, plaintiffs in the above-captioned matter. I have held this position since January 1995. As I am the Collections Manager of the Operating Engineers Local Union No. 3 Trust

GIL CROSTHWAITE, et al., as Trustees of the 11 OPERATING ENGNEERS HEALTH AND WELFARE TRUST FUND FOR NORTHERN 12 CALIFORNIA, et al., 13 14 v. Plaintiffs,

15 JOHN TAYLOR NORTHROP, individually and dba KRISTIN CONSTRUCTION, 16 Defendant. 17 18 19 20 21

24 Collections Manager, I oversee payment of employer contributions pursuant to the collective 25 bargaining agreements and trust agreements, and initiate negotiations and collection actions on 26 delinquent accounts. My duties also include reviewing internal accounting reports regarding 27 delinquent contributions owed by employers under collective bargaining agreements. In the course 28

P:\CLIENTS\OE3CL\Kristin Construction\Pleadings\Motion for Default Judgment\C07-5045 MMC Supp Declaration of W. McBride 052008.doc

Case 3:07-cv-05045-MMC

Document 22

Filed 05/22/2008

Page 2 of 4

1 of my duties as Collections Manager, I became familiar with the accounts of defendant JOHN 2 TAYLOR NORTHROP, individually and dba KRISTIN CONSTRUCTION. I therefore have 3 4 5 6 7 8 2. I am submitting this Supplemental Declaration pursuant to the Court's request for personal knowledge of the matters stated herein and could competently testify to them if called upon to do so at trial.

clarification regarding the calculation of liquidated damages. 3. Liquidated damages were calculated at 15% of unpaid contributions in accordance The requirements for calculation of liquidated

9 with the Collective Bargaining Agreement.

10 damages are set forth in the Bargaining Agreement, Section 12.13.00 (see Exhibits B-1 and B-2 to 11 12 13 14 15 16 17 18 19 20 . When contributions are paid, they are allocated on a fund by fund basis, which is how the 12.13.00 Delinquencies. ...it is agreed that the amount of damage resulting from any such failure shall be by way of liquidated damages and not as a penalty to each such Trust the sum of thirty-five dollars ($35.00) or fifteen percent (15%) of the amount due and unpaid to each such Trust, whichever is greater, for each failure to pay in full within the time provided. Such liquidated damages shall become due and payable to each such Trust in Alameda, California, at such place as each such Trust has from time to time been determined, upon the day immediately following the date on which the Individual Employer becomes delinquent, and shall be added to and become a part of said amount due and unpaid, and the whole thereof shall bear interest at the rate of twelve percent (12%) per annum until paid. my initial Declaration). Specifically, the section states:

21 liquidated damages are calculated. As set forth above, the Bargaining Agreement provides that 22 they are to be 15% of the total, or $35.00, whichever is greater. (See Section 12.13.00). Thus, 23 the liquidated damages for any particular fund are never lower than $35.00---this is the minimum 24 amount applied 25 26 Declaration were calculated using the same method. Accordingly, using a straight 15% of the 27 28 amount due for contributions in order to calculate the liquidated damages will often yield an 4. All of the liquidated damages calculated and included in Exhibit G to my initial

P:\CLIENTS\OE3CL\Kristin Construction\Pleadings\Motion for Default Judgment\C07-5045 MMC Supp Declaration of W. McBride 052008.doc

Case 3:07-cv-05045-MMC

Document 22

Filed 05/22/2008

Page 3 of 4

1 incorrect result. In some cases, the fund is allocated the $35.00 minimum instead. If the Court 2 requires it, I can break down each item on a month by month, fund by fund basis. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Executed this 21st day of May, 2008, at Sacramento, California. I declare under penalty of perjury that the foregoing is true and correct and that if called upon as a witness, I could testify to the foregoing on the basis of my personal, direct knowledge.

_______________/s/________________ Wayne E. McBride

P:\CLIENTS\OE3CL\Kristin Construction\Pleadings\Motion for Default Judgment\C07-5045 MMC Supp Declaration of W. McBride 052008.doc

Case 3:07-cv-05045-MMC

Document 22

Filed 05/22/2008

Page 4 of 4

1 2 3 4 I, the undersigned, declare: I am a citizen of the United States and am employed in the County of San Francisco, State PROOF OF SERVICE

5 of California. I am over the age of eighteen and not a party to this action. My business address is 6 120 Howard Street, Suite 520, San Francisco, California 94105. 7 8 9 On May 22, 2008, I served the following document(s): SUPPLEMENTAL DECLARATION OF WAYNE E. McBRIDE IN SUPPORT OF MOTION FOR ENTRY OF DEFAULT JUDGMENT

10 on the interested parties in said action by placing a true and exact copy of each document in a 11 sealed envelope with postage thereon fully prepaid, in a United States Post Office box in San 12 13 14 15 16 17 I declare under penalty of perjury that the foregoing is true and correct and that this Francisco, California, addressed as follows: John Taylor Northrop dba Kristin Construction 1781 Autumn Meadows Fairfield, California 94585

18 declaration was executed on this 22nd day of May, 2008, at San Francisco, California. 19 20 21 22 23 24 25 26 27 28 ______________/s/__________________ Vanessa de Fábrega

P:\CLIENTS\OE3CL\Kristin Construction\Pleadings\Motion for Default Judgment\C07-5045 MMC Supp Declaration of W. McBride 052008.doc