Board of Trustees of the Laborers Vacation-Holiday Trust Fund For Northern California et al v. D. Lopez, Jr.

Northern District of California, cand-4:2014-cv-03013

ORDER by Magistrate Judge Donna M. Ryu granting {{30}} Motion to Enforce Settlement Agreement. (dmrlc2, COURT STAFF)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 BOARD OF TRUSTEES OF THE Case No. 14-cv-03013-DMR LABORERS VACATION-HOLIDAY 8 TRUST FUND FOR NORTHERN ORDER GRANTING MOTION TO CALIFORNIA, et al., ENFORCE SETTLEMENT 9 AGREEMENT Plaintiffs, 10 Re: Dkt. No. 30 v. 11 D. LOPEZ, 12 Northern District of California Defendant. United States District Court 13 Before the court is an unopposed motion to enforce the Settlement Agreement filed by 14 Plaintiffs Board of Trustees of the Laborers Vacation-Holiday Trust Fund for Northern California, 15 Laborers Pension Trust Fund for Northern California, and Laborers Training and Retraining Trust 16 Fund for Northern California. [Docket No. 30]. This matter is suitable for resolution without a 17 hearing. Civ. L.R 7-1(b). For the reasons stated below, the court grants Plaintiffs' motion. 18 I. BACKGROUND 19 Plaintiffs are employee benefits trust funds established through collective bargaining 20 agreements between the Northern California District Council of Laborers and employer 21 associations representing construction industry employers doing business in Northern California. 22 Complaint ("Compl.") ¶ 3 [Docket No. 1]. Plaintiffs are governed by the Employment Retirement 23 Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1002(3) and (37), and Section 302 of the 24 Labor Management Relations Act of 1947 ("LMRA"), 29 U.S.C. § 186. Compl. ¶ 3 [Docket No. 25 1]. Defendant D. Lopez is an employer within the meaning of ERISA and the LMRA. Compl. ¶ 3 26 [Docket No. 1]. 27 On July 1, 2014, Plaintiffs filed this action under ERISA and LMRA to recover unpaid 28 1 benefit contributions, liquidated damages and interest, attorneys' fees and costs, and to obtain an 2 injunction requiring an audit of Lopez's books and records. See generally Compl. According to 3 the complaint, Lopez agreed to make timely employer contributions to the Trust Funds, but failed 4 to do so. Id. ¶¶ 10, 13-14. 5 On February 23, 2015, the parties executed the Settlement Agreement, in which Lopez 6 agreed to pay the outstanding trust fund contributions for the period of October 2012 through 7 December 2014. Settlement Agreement (Ex. A to Declaration of Michelle Lauziere ("Lauziere 8 Decl.") [Docket No. 31]; Lauziere Decl. ¶ 5. 9 Under the Settlement Agreement, Lopez agreed to pay outstanding trust fund contributions 10 for the period of October 2012 through March 2014, totaling $113,950.00, as forty-eight equal 11 monthly installments of $2,373.96 starting August 25, 2015 until the balance was paid in full. 12 Settlement Agreement ¶ 2. He also agreed to pay outstanding trust fund contributions for the Northern District of California United States District Court 13 period of April 2014 through December 2014, totaling $124,079.62, as six equal monthly 14 installments of $20,679.94 by July 25, 2015. Id. ¶ 1. 15 The Settlement Agreement provides that in the event Lopez fails to make a required 16 monthly installment payment, he must cure the cure the default within 10 days of receipt of a 17 written notice of default sent to his e-mail address, lopezconcrete@gmail.com. Settlement 18 Agreement, ¶ 4. If he fails to cure the default in 10 days, the entire remaining balance under the 19 Settlement Agreement is immediately due and payable. Id. 20 On March 12, 2015, the parties filed a Stipulation for Dismissal Without Prejudice and 21 Retention of Jurisdiction, requesting that the court dismiss the case without prejudice, and retain 22 jurisdiction to enforce the Settlement Agreement should any disputes arise. Stipulation for 23 Dismissal Without Prejudice and Retention of Jurisdiction ("Stipulation for Dismissal") [Docket 24 No. 28]. The court granted the Stipulation for Dismissal on March 16, 2015, and agreed to "retain 25 jurisdiction over this matter to enforce the [Settlement] Agreement should any action be required 26 to enforce the [Settlement] Agreement after the dismissal without prejudice is entered by the 27 [c]ourt." Order Granting Stipulation for Dismissal [Docket No. 29]. 28 On February 8, 2018, Plaintiff filed this motion to enforce the Settlement Agreement. 2 1 [Docket No. 30]. According to Plaintiffs, Lopez is in default pursuant to the Settlement 2 Agreement because he has failed to make required monthly installment payments of $2,373.96 3 since July 2017, and has not cured the default.1 Plaintiffs seek an order requiring Lopez to pay the 4 entire remaining balance due of $35,561.24 pursuant to paragraph 4 of the Settlement Agreement. 5 Plaintiffs also request an award of attorneys' fees in the amount of $2,899.00 which they incurred 6 in enforcing the Settlement Agreement pursuant to paragraph 7 of the Settlement Agreement. 7 Lopez did not opposed the motion. 8 II. LEGAL STANDARD 9 It is undisputed that the court has jurisdiction to enforce the Settlement Agreement. See 10 Order Granting Stipulaton of Dismissal; see also Kokkonen v. Guardian Life Ins. Co. of Am., 511 11 U.S. 375, 380-81 (1994) (explaining that a court has ancillary jurisdiction to enforce a settlement 12 agreement when the parties agree to continuing or retention jurisdiction). Northern District of California United States District Court 13 A "motion to enforce [a] settlement agreement essentially is an action to specifically 14 enforce a contract," and "[a]n action for specific performance without a claim for damages is 15 purely equitable and historically has always been tried to the court." Adams v. Johns–Manville 16 Corp., 876 F.2d 702, 709 (9th Cir. 1989) (citation and internal quotations marks omitted). Thus, 17 "the court may hear evidence and make factual determinations." Fair Hous. Council of Cent. Cal., 18 Inc. v. Tylar Prop. Mgmt. Co., 975 F. Supp. 2d 1115, 1118 (E.D. Cal. 2012) (citing Stewart v. 19 M.D.F., Inc., 83 F.3d 247, 251 (8th Cir. 1996)). A court may order compliance with a settlement 20 agreement in light of evidence of a party's non-compliance. See, e.g., Fisher v. Biozone Pharm., 21 Inc., No. 12-CV-03716-LB, 2017 WL 1097198, at *1 (N.D. Cal. Mar. 23, 2017) (prohibiting the 22 plaintiff from "making any further disparaging comments about the defendants" in violation of the 23 settlement agreement's non-disparagement term, and ordering the plaintiff to fully comply with 24 the "settlement agreement's non-disparagement term"). 25 "The interpretation of a settlement agreement is governed by principles of state contract 26 27 1 Plaintiffs represent that Lopez paid the $124,079.62 balance in full, Lauziere Decl. ¶ 7, so the 28 only balance at issue in this motion is $113,950.00 for unpaid trust fund contributions for the period of October 2012 through March 2014. 3 1 law." Botefur v. City of Eagle Point, Or., 7 F.3d 152, 156 (9th Cir. 1993) (citing Jeff D. v. Andrus, 2 899 F.2d 753, 759 (9th Cir. 1990)). "This is so even where a federal cause of action is 'settled' or 3 'released.'" Id. (citing United Commercial Ins. Serv., Inc. v. Paymaster Corp., 962 F.2d 853, 856 4 (9th Cir. 1992)). Here, California contract law governs the analysis because the parties litigated 5 and settled the case in this state. "Under California law, the goal of contractual interpretation is to 6 give effect to the mutual intention of the parties." Ambat v. City & Cty. of San Francisco, No. C 7 07-03622 SI, 2011 WL 2118576, at *2 (N.D. Cal. May 27, 2011) (citing Bank of the W. v. 8 Superior Court, 2 Cal. 4th 1254, 1264 (1992)). "The mutual intention of the parties is determined 9 by examining factors including the words used in the agreement, the surrounding circumstances 10 under which the parties negotiated or entered into the contract, and the subsequent conduct of the 11 parties." Ambat, 2011 WL 2118576, at *2 (citing Morey v. Vannucci, 64 Cal. App. 4th 904, 912 12 (Ct. App. 1998); Hernandez v. Badger Constr. Equip. Co., 28 Cal. App. 4th 1791, 1814 (Ct. App. Northern District of California United States District Court 13 1994)). 14 III. DISCUSSION 15 A. Default on Required Monthly Payments 16 Paragraph 2 of the Settlement Agreement requires Lopez to pay $113,950.00 in 17 outstanding trust fund contributions as forty-eight equal monthly installments of $2,373.96 starting 18 August 25, 2015 until the balance is paid in full. In the event he fails to make a required monthly 19 installment payment, paragraph 4 of the Settlement Agreement requires him to cure default within 20 10 days of receipt of a written notice of default. If he fails to cure the default, then the entire 21 remaining balance under the Settlement Agreement becomes immediately due and payable. 22 The unrebutted evidence shows that Lopez is in default pursuant to the terms of the 23 Settlement Agreement. The record shows that he has failed to make required monthly installment 24 payments of $2,373.96 since July 2017, and made only partial installments payments from August 25 2017 through November 2017. Lauziere Decl. ¶¶ 7, 9; Ex. B to Lauziere Decl. [Docket No. 31]. 26 Additionally, he received a written notice of default and failed to cure the default within 10 days. 27 Richman Decl., ¶ 3. Plaintiffs sent Lopez a notice of default by e-mail on December 12, 2017, 28 requesting that he cure the default on or before December 22, 2017. December 12, 2017 e-mail 4 1 from Ron Richman, Plaintiffs' counsel, to Davis Lopez Concrete ("December 12, 2017 notice of 2 default") (Ex. A) to the Declaration of Ronald L. Richman ("Richman Decl.") [Docket No. 32]; 3 Richman Decl., ¶ 3. Lopez did not respond to the December 12, 2017 notice of default, nor did he 4 make any attempts to cure the default. Richman Decl., ¶ 3; Lauziere Decl. ¶ 11; Ex. B to Lauziere 5 Decl. Accordingly, the court finds that Lopez is in default pursuant to the terms of the Settlement 6 Agreement. 7 Since Lopez failed to cure the default, the entire remaining balance under the Settlement 8 Agreement of $35,561.24 is immediately due and payable. Settlement Agreement, ¶ 4; Lauziere 9 Decl. ¶ 11; Ex. B to Lauziere Decl. 10 B. Attorneys' Fees 11 Paragraph 7 of the Settlement Agreement provides in relevant part that "[i]n any action to 12 enforce this Agreement, the prevailing party shall be entitled to its attorneys' fees and costs Northern District of California United States District Court 13 incurred in enforcing this Agreement." 14 Under California law, "[e]xcept as attorney's fees are specifically provided by statute, the 15 measure and mode of compensation of attorneys. . . is left to the agreement, express or implied, 16 of the parties." Cal. Civ. Proc. Code § 1021. In an action for breach of contract, where the 17 contract "specifically provides [for] attorney's fees and costs," the "court may award attorneys' 18 fees and costs to the prevailing party." Cal. Civ. Code § 1717(a). "[T]he party prevailing on the 19 contract shall be the party who recovered a greater relief in the action on the contract." Cal. Civ. 20 Code § 1717(b)(1). 21 The court finds that Plaintiffs are entitled to reasonable attorneys' fees and costs pursuant 22 to paragraph 7 of the Settlement Agreement. Plaintiffs prevailed on all issues raised in their 23 motion. 24 The court now turns to the appropriate amount to be awarded in this case. Plaintiffs 25 request $2,899.00 in attorneys' fees incurred in enforcing the Settlement Agreement. In support of 26 the request, they submit the Richman Declaration [Docket No. 32] and detailed billing invoices, 27 Ex. B to Richman Decl. [Docket No. 32]. 28 District courts in the Ninth Circuit typically employ the "lodestar analysis" in calculating 5 1 fee awards. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Camacho v. Bridgeport Fin., Inc., 2 523 F.3d 973, 978 (9th Cir. 2008) (citations omitted). "The lodestar figure is calculated by 3 multiplying the number of hours the prevailing party reasonably expended on the litigation (as 4 supported by adequate documentation) by a reasonable hourly rate for the region and for the 5 experience of the lawyer." Yamada v. Nobel Biocare Holding AG, No. 14-55263, 2016 WL 6 1579705, at *6 (9th Cir. Apr. 20, 2016) (internal citation omitted). 7 The party seeking fees bears the initial burden of establishing the hours expended litigating 8 the case, and must provide detailed time records documenting the tasks completed and the amount 9 of time spent. Hensley, 461 U.S. at 434; Welch v. Metro. Life Ins. Co., 480 F.3d 942, 945–46 (9th 10 Cir. 2007). The requesting party also has the burden to demonstrate that the rates requested are 11 "in line with the prevailing market rate of the relevant community." Carson v. Billings Police 12 Dep't, 470 F.3d 889, 891 (9th Cir. 2006) (internal quotation marks and citation omitted). Northern District of California United States District Court 13 Generally, "the relevant community is the forum in which the district court sits." Camacho, 523 14 F.3d at 979 (citations omitted). Typically, "affidavits of the plaintiffs' attorney and other attorneys 15 regarding prevailing fees in the community and rate determinations in other cases. . . are 16 satisfactory evidence of the prevailing market rate." United Steelworkers of Am. v. Phelps Dodge 17 Corp., 896 F.2d 403, 407 (9th Cir. 1990). 18 Fee awards calculated under the lodestar method generally are presumed to be reasonable. 19 Gonzalez v. City of Maywood, 729 F.3d 1196, 1208–09 (9th Cir. 2013). At the same time, the 20 court may adjust this figure "if circumstances warrant" in order "to account for other factors which 21 are not subsumed within it." Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1149 n.4 (9th Cir. 22 2001). "Where the documentation of hours is inadequate, the district court may reduce the award 23 accordingly." Hensley, 461 U.S. at 433. The district court may also exclude any hours that are 24 excessive, redundant, or otherwise unnecessary. McCown v. City of Fontana, 565 F.3d 1097, 25 1102 (9th Cir. 2009) (quoting Hensley, 461 U.S. at 434). In addition, the Ninth Circuit has stated 26 that a district court may "impose a small reduction, no greater than 10 percent—a 'haircut'—based 27 on its exercise of discretion and without a more specific explanation." Moreno v. City of 28 Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008). 6 1 The "reasonable hourly rate" is calculated "according to the prevailing market rates in the 2 relevant community. . . . ." Blum v. Stenson, 465 U.S. 886, 895 (1984). "To inform and assist the 3 court in the exercise of its discretion, the burden is on the fee applicant to produce satisfactory 4 evidence—in addition to the attorney's own affidavits—that the requested rates are in line with 5 those prevailing in the community for similar services by lawyers of reasonably comparable skill, 6 experience and reputation." Id. at 896, n.11. Affidavits of the plaintiff's attorney and other 7 attorneys regarding prevailing fees in the community as well as rate determinations in other cases 8 can provide evidence of the prevailing market rate. Welch, 480 F.3d at 947 (citing Phelps Dodge 9 Corp., 896 F.2d at 407). In the absence of opposing evidence, the proposed rates are presumed 10 reasonable. Phelps Dodge Corp., 896 F.2d at 407. 11 Plaintiffs seek the following hourly rates: $345 for lead counsel Ronald L. Richman and 12 $175 for paralegal Kristina Clark. Ronald L. Richman is a senior shareholder at Bullivant Houser Northern District of California United States District Court 13 Bailey PC. Richman Decl. ¶ 4. He has been practicing law for over 34 years, 29 in California, 14 and has over 23 years of experience handling ERISA Trust Fund litigation. Id. He has 15 represented Plaintiffs since 1995. Id. 16 The court finds that Richman's requested hourly rate of $345 is within the prevailing 17 market rates for ERISA attorneys with similar experience and qualifications in the San Francisco 18 Bay Area community. See, e.g., Bd. of Trustees of Laborers Health & Welfare Tr. Fund for N. 19 Cal. v. Torres, No. C-12-02633 DMR, 2014 WL 5692462, at *5 (N.D. Cal. Nov. 4, 2014) 20 (approving Richman's hourly rate of $345 in ERISA case). 21 The court also finds that paralegal Clark's requested hourly rate of $175 is reasonable. 22 See, e.g., Zoom Elec., Inc. v. Int'l Bhd. of Elec. Workers, Local 595, No. C 11-1699 CW, 2013 WL 23 2297037, at *4 (N.D. Cal. May 24, 2013) (approving 2013 hourly rates between $180.00 and 24 $225.00 per hour for law clerks and paralegals). 25 Turning to the number of hours for which Plaintiffs seek reimbursement, Plaintiffs seek a 26 total of 8.2 hours for Richman's work and 0.4 hours for Clark's work in enforcing the Settlement 27 Agreement. Richman Decl. ¶ 6. Having reviewed the detailed billing invoices, the court finds 28 that the time spent on 12/11/17, 1/3/18, 1/4/18, 1/11/18, 1/16/18, 1/13/18, and 2/5/18 was 7 1 reasonably expended or incurred in enforcing the Settlement Agreement. According to the 2 detailed billing invoices, Richman communicated to Plaintiffs about the status of the installment 3 payments under the Settlement Agreement and Lopez's default, reviewed the Settlement 4 Agreement, and drafted and revised the motion to enforce the Settlement Agreement. However, 5 the court finds that the work performed on 1/29/18 was not reasonably expended because the tasks 6 do not appear to be related to the enforcement of the Settlement Agreement. According to that 7 billing entry, Richman billed 1.0 hours for working on a "motion to enforce judgment and new 8 complaint." Ex. B to Richman Decl. Since Plaintiffs are not seeking to enforce the judgment or to 9 file a new complaint, the court declines to award the 1.0 hours requested for work performed on 10 1/29/18. The court therefore awards 7.2 hours for Richman's work. 11 The court finds that the 0.4 hours requested for Clark were reasonably incurred. 12 According to the billing entry for December 5, 2017, Clark spent 0.4 hours emailing Plaintiffs Northern District of California United States District Court 13 about the status of the settlement installment payments and Lopez's current contributions and 14 reports. Ex. B to Richman Decl. 15 In total, the court awards Plaintiffs $2,554.00 in attorneys' fees, which breaks down as 16 follows: Richman (7.2 hours x $345.00 = $2,484.00) and Clark (.4 hours x $175.00 = $70.00). 17 IV. CONCLUSION 18 In conclusion, the court grants Plaintiffs' motion. The remaining balance of $35,561.24 is 19 immediately due and payable by Lopez. The court also orders Lopez to pay $2,554.00 in 20 attorneys' fees incurred in enforcing the Settlement Agreement within 14 days of the date of this ISTRIC ES D 21 order. T TC 22 TA O S U ED RT 23 IT IS SO ORDERED. DERED UNIT O OR 24 Dated: May 8, 2018 IT IS S R NIA 25 ______________________________________ M. Ryu NO Donna M. Ryua o n n dge DMagistrate Judge FO 26 UnitedJuStates RT LI 27 ER H A N C F 28 D IS T IC T O R 8