Construction Laborers Trust Funds for Southern California Administrative Company v. Precision Masonry Builders, Inc., et al, No. 2:2016cv04358 - Document 71 (C.D. Cal. 2018)

Court Description: ORDER GRANTING PLAINTIFFS MOTION FOR DEFAULT JUDGMENT 65 by Judge Otis D. Wright, II: The Court GRANTS Plaintiffs Motion for Entry of Final Default Judgment. Additionally, the Court finds that the plaintiff is entitled to a Final Order for Account ing and ORDERS Defendants to submit to an audit of Precisions payroll and business records, as outlined above. Defendants, jointly and severally, shall pay Plaintiff the following amounts: $81,969.24 against Precision Masonry Builders, Inc., con sisting of: $1,387.33 in fringe benefit contributions; $29,505.61 in liquidated damages; $720.00 in audit fees; $41,092.55 in interest; $48,175.00 in attorneys fees; and $1,088.75 in costs. $81,249.24 against Kerr yAnne Anzalone, and Blase Anzalone, Jr., consisting of: $1,387.33 in fringe benefit contributions; $29,505.61 in liquidated damages; $1,092.55 in interest; $48,175.00 in attorneys fees; and $1,088.75 in costs.The Court ORDERS Plaintiff to submit a proposed judgment consistent with this order no later than March 26, 2018. (lc) Modified on 3/19/2018 (lc).

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Construction Laborers Trust Funds for Southern California Administrat...asonry Builders, Inc., et al Doc. 71 1 2 3 4 O 5 JS-6 6 7 8 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 CONSTRUCTION LABORERS TRUST FUNDS FOR SOUTHERN CALIFORNIA ADMINISTRATIVE COMPANY, a Delaware limited liability company, Plaintiff, Case No. 2:16-cv-04358-ODW(AFMx) ORDER GRANTING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT [65] 16 17 18 19 20 21 22 23 24 25 v. PRECISION MASONRY BUILDERS, INC, a California corporation; KERRYANNE ANZALONE, JR., an individual; BLASÉ ANZALONE, JR., an individual; T.B. PENICK & SONS, INC., a California corporation; LIBERTY MUTUAL INSURANCE COMPANY, a Massachusetts corporation; and DOE 1 through DOE 4, inclusive, Defendants. 26 27 28 Dockets.Justia.com I. 1 INTRODUCTION 2 Plaintiff Construction Laborers Trust Funds for Southern California 3 Administrative Company (“Plaintiff”) brings this action against Defendants Precision 4 Masonry Builders, Inc. (“Precision”), KerryAnne Anzalone, and Blase Anzalone, Jr. 5 (collectively, “the Anzalones”) (collectively, “Defendants”) for (1) Contributions to 6 Employee Benefit Plans; (2) Specific Performance Compelling an Audit; (3) Damages 7 for Breach of Fiduciary Duties; and (4) Recovery Against Payment Bond. (See First 8 Amended Complaint (“FAC”), ECF No. 40.) Defendants have failed to respond to the 9 Complaint, and the Clerk entered default on September 7, 2017 and on October 4, 10 2017. (ECF Nos. 52, 61.) Plaintiff now moves for entry of default judgment against 11 Defendants. (ECF No. 65.) For the reasons discussed below, the Court GRANTS the 12 Motion.1 II. 13 14 A. BACKGROUND Factual Background 15 Plaintiff is an administrator and agent for the collection of several employee 16 benefit plans (“Trust Funds”) and a fiduciary to the Trust Funds. (FAC ¶ 3.) Each 17 one is an express trust, created by written agreements and qualifying as a multi- 18 employer plan within the meaning of the Employee Retirement Income Security Act 19 (“ERISA”) § 3(37)(A), 28 U.S.C. § 1002(37)(A). (Id.) In order to work on projects 20 for the San Diego Unified School District (“SDUSD”), Precision became bound by 21 the SDUSD Project Stabilization Agreement Construction and Major Rehabilitation 22 Funded by Proposition S (“SDUSD PSA”) between SDUSD and San Diego Building 23 and Construction Trades Council, and their signatory Craft Unions (one of which is 24 Southern California District Council of Laborers and affiliated Laborers Local No. 89 25 (“Union”)). (Id. ¶ 18.) 26 27 28 1 Having carefully considered the papers filed in support of and in opposition to the instant Motion, the Court deems the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; L.R. 7-15. 2 1 Pursuant to the SDUSD PSA, Precision is bound to the various Trust 2 Agreements, which established each of the Trust Funds. (Id. ¶ 19.) The Trust 3 Agreements obliged Precision to submit monthly fringe benefit contributions to the 4 Trust Funds under the Union’s collective bargaining agreements (“CBA”) for each 5 hour worked (or paid for) by employees performing services covered by the CBA. 6 (Id.) Additionally, Precision was required to submit monthly reports, detailing the 7 name, address, social security number, and hours worked that month for each 8 employee covered. (Id.) These monthly reports were required even when there were 9 no employees to report for the reporting period. (Id.) 10 Plaintiff alleges that the monthly fringe benefit contributions constitute assets of 11 the Trust Funds, and as a Trustee, it has a fiduciary duty to marshal those assets so 12 they may be applied for the benefit of the participants and beneficiaries in accordance 13 with the various Trust Agreements. (Id.) Under the CBA, if Precision fails to timely 14 pay monthly fringe benefit contributions, then Precision is obligated to pay liquidated 15 damages in the sum of $25.00 or 20% of the unpaid benefits to each of the Trust 16 Funds. (Id. ¶ 20.) Precision would also be required to pay interest at the per annum 17 rate of 5% over the rate set by the Federal Reserve Board, effective on the date each 18 contribution is due. (Id. ¶ 21.) The CBA provides Trust Funds with the authority to 19 audit Precision’s payroll and business records, and Precision is liable for the costs of 20 such audit. (Id. ¶ 23.) 21 Precision employed workers who are covered by the CBA; however, Precision 22 failed to pay the monthly fringe benefits to the Trust Funds. (Id. ¶ 24.) It also refused 23 to comply with an audit by the Trust Funds. (Id.) As a result of Precision’s failure to 24 pay the specified rates from November 2011 and February 2012 through December 25 2016, Plaintiff alleges damages of $45,788.25, plus additional accrued interest at the 26 plan’s rate—6.75% as of June 15, 2017—until payment of the contributions is made. 27 (Id. ¶ 26.) This sum consists of $13,888.33 in unpaid fringe benefits, $29,505.61 in 28 3 1 liquidated damages, $35.00 in returned check fees, $720.00 audit fees, and $1,639.31 2 in interest on the late and/or unpaid fringe benefits owed through June 2, 2017.2 (Id.) Plaintiff alleges that it, and its participants, have also suffered harm that is 3 4 impractical to accurately quantify. (Id. ¶ 27.) For example: 5 [T]he costs of collecting the Monthly Contributions from [Precision] or 6 third parties (not including the cost of this litigation), cost of special 7 processing to restore benefit credits because of late Monthly 8 Contributions, the temporary loss of insurance coverage by employees 9 (even if later restored)[,] and medical harm to participants and 10 beneficiaries who may have foregone medical care when notified that 11 medical insurance ceased because of their employer’s failure to pay 12 Monthly Contributions. 13 (Id.) Plaintiff alleges that the purpose of the liquidated damages provisions of the 14 CBA was to compensate for this type of unquantifiable harm. 15 Plaintiff—as a Trustee—has the authority to waive part or all of the liquidated 16 damages, it has chosen not to do so. (Id.) (Id.) Although 17 Plaintiff alleges that the Anzalones are fiduciaries and/or parties in interest to 18 the Trust Funds under 29 U.S.C. §§ 1002(14), 1002(21)(A), because they exercised 19 discretionary authority or control respecting management or disposition of the Trust 20 Funds’ assets. (Id. ¶¶ 12, 38, 43.) Plaintiff further alleges that the Anzalones are 21 majority shareholders and/or the beneficial owners of Precision. (Id. ¶ 14.) They 22 acted on behalf of Precision in their dealings and relations with the Trust Funds and 23 the Union and determined which employees and hours worked would be reported to 24 the Trust Funds. (Id. ¶¶ 13–16.) Specifically, the Anzalones “are responsible for 25 running the day to day operations and day to day financial decisions of [Precision],” 26 and for “decisions pertaining to the reporting and payment of contributions.” (Id. 27 28 2 The FAC also claimed additional fringe benefits, liquidated damages, audit fees, and interest according to proof at the time of trial. (Id. ¶¶ 24, 35.) 4 1 ¶ 13.) The Anzalones “personally maintained control of those funds which should 2 have been turned over to the [Trust Funds].” (Id.) 3 The CBA provides that Precision is responsible for the Trust Funds’ attorneys’ 4 fees related to any legal action necessary to compel the audit, and for the audit fees 5 necessary to complete the audit of Precision’s records. (Id. ¶ 32.) The CBA also 6 requires that Precision deduct monthly fringe benefits due to the Construction 7 Laborers Vacation Trust Fund for Southern California (“Vacation Fund”) from 8 employees’ weekly paychecks in the amount specified. (Id. ¶ 39.) Plaintiff alleges 9 that Precision and/or the Anzalones did not distribute the portions of the prevailing 10 wage that Precision certified was to be paid to the Trust Funds from the employees’ 11 weekly paychecks and kept those amounts for their own use. (Id. ¶ 41.) 12 Plaintiff alleges that the Anzalones are responsible for preparing and issuing 13 certified payroll reports to public agencies under California Labor Code § 1776, and 14 allege that the Anzalones had, 15 [D]iscretionary authority or control over sufficient, segregable funds to 16 pay the amounts certified under penalty of perjury, that would be 17 withheld from employees’ weekly wages for contribution to the Trust 18 Funds in order to meet prevailing wage obligations, including the 19 authority to write checks on the accounts in which such funds were held, 20 but instead kept them for his own use, or for the use of [Precision]. 21 (FAC ¶ 42.) Plaintiff alleges that Precision failed to timely account for and turn over 22 the assets of the Trust Funds and further failed to apply such assets for the exclusive 23 benefit of participants and beneficiaries of the Trust Funds. (Id. ¶ 45.) Precision 24 instead used those assets for its own benefit, breaching its fiduciary duties to the Trust 25 Funds within the meanings of section 404(a)(1)(A),(B),(D) or ERISA, 29 U.S.C. 26 §§ 1104(a)(1)(A),(B),(D). (FAC ¶ 45.) Plaintiff contends that the acts and omissions 27 by Precision or the Anzalones constitute misuse, misappropriation, and/or conversion 28 5 1 from employee benefit plans within the meaning of 18 U.S.C. § 664 and breach of 2 their fiduciary obligations within the meaning of 29 U.S.C. §§ 1104–06. (FAC ¶ 46.) 3 Pursuant to section 409 of ERISA, 29 U.S.C. § 1109, Plaintiff alleges that 4 Precision and the Anzalones are personally liable to restore to the Trust Funds any 5 losses to them resulting from the breach of their fiduciary duties. (Id. ¶ 47.) Plaintiff 6 now seeks to recover from both Precision and the Anzalones, jointly and severally: 7 $81,969.24 against Precision, consisting of $1,387.33 in unpaid fringe benefit 8 contributions, $29,505.61 in liquidated damages, $720.00 in audit fees, $1,092.55 in 9 interest, $48,175.00 in attorneys’ fees, and $1,088.75 in costs; and $81,249.24 against 10 the Anzalones, consisting of $1,387.33 in unpaid fringe benefit contributions, 11 $29,505.61 in liquidated damages, $1,092.55 in interest, $48,175.00 in attorneys’ fees, 12 and $1,088.75 in costs. (Decl. of Marsha M. Hamasaki (“Hamasaki Decl.”) ¶¶ 16, 29, 13 ECF No. 67.) Additionally, under 29 U.S.C. §§ 1132(a)(3), 1132(g)(2)(E), Plaintiff 14 requests for the Court to order Precision to comply with its obligation under the CBA 15 and ERISA to fully produce its books and records so that Plaintiff can complete an 16 audit to determine if additional amounts are due. (FAC ¶ 34.) 17 B. Procedural Background 18 On June 17, 2016, Plaintiff filed a Complaint against Defendants, Precision 19 Masonry Builders, Inc. (“Precision”) and Suretec Indemnity Company (“Suretec”). 20 (Compl., ECF No. 1.) Precision failed to answer Plaintiff’s Complaint, and Default 21 was entered against Precision on August 1, 2016. (ECF No. 17.) Pursuant to a 22 settlement agreement, Suretec was dismissed on August 2, 2016. (ECF No. 18.) On 23 August 2, 2016, Plaintiff filed an Interlocutory Appeal for Accounting, and the Court 24 granted the motion on August 23, 2016, requiring Precision to submit to an audit of its 25 books and records for the purpose of ascertaining the contributions due to the Plaintiff. 26 (ECF Nos. 19, 23.) Precision failed to comply with the Court’s Order for Accounting, 27 and on October 20, 2016, Plaintiff filed an Application for Order to Show Cause 28 regarding Contempt against Precision. (ECF No. 26.) On October 24, 2016, the 6 1 Court granted Plaintiff’s Application and set an Order to Show Cause hearing for 2 December 9, 2016. (Id.) Precision failed to appear or submit a written response 3 before December 2, 2016, and the Court imposed a $5,000 fine and issued a bench 4 warrant for the arrest of Precision’s CEO, KerryAnne Anzalone. (ECF Nos. 28, 34.) 5 On June 22, 2017, Plaintiff filed a motion to amend the complaint and noticed 6 a hearing for August 7, 2017, on the motion. (ECF No. 36.) Precision failed to 7 oppose the motion, and on July 18, 2017, the Court granted Plaintiff’s motion. (ECF 8 No. 39.) In its FAC, Plaintiff brought four claims against Defendants, Precision, the 9 Anzalones, T.B. Penick & Sons, Inc., and Liberty Mutual Insurance Company: (1) 10 Contributions to Employee Benefit Plans; (2) Specific Performance Compelling an 11 Audit; (3) Damages for Breach of Fiduciary Duties; and (4) Recovery Against 12 Payment Bond.3 13 Plaintiff served Precision with the FAC on July 31, 2017 (ECF No. 45) and 14 served the Anzalones on August 29, 2017 (ECF Nos. 51, 53). Defendants failed to 15 plead, respond, or otherwise defend in the present action. (ECF Nos. 52, 61.) As a 16 result, on September 6, 2017, Plaintiff requested that the Clerk enter default against 17 Precision, and the Clerk entered a default on September 7, 2017. (ECF Nos. 50, 52.) 18 On October 3, 2017, Plaintiff requested that the Clerk enter default against the 19 Anzalones, and the Clerk entered default on October 4, 2017. (ECF Nos. 60–61.) 20 Shortly thereafter, Plaintiff moved for entry of default judgment against Defendants. 21 (ECF No. 65.) That Motion is now before the Court. III. 22 LEGAL STANDARD 23 Before a court can enter a default judgment against a defendant, a plaintiff must 24 satisfy the procedural requirements for default judgment set forth in Federal Rules of 25 Civil Procedure 54(c) and 55(a), as well as Local Rule 55-1. Local Rule 55-1 requires 26 that the movant submit a declaration establishing: (1) when and against whom default 27 3 28 Plaintiff settled the fourth Claim for relief against Defendants, T.B. Penick & Sons, Inc., and Liberty Mutual Insurance Company, who have been dismissed from this lawsuit. (ECF No. 55.) Therefore, the fourth claim is not at issue and the Court need not address it here. 7 1 was entered; (2) identification of the pleading entering default; (3) whether the 2 defaulting party is a minor, incompetent person, or active service member; and (4) that 3 the defaulting party was properly served with notice. Vogel v. Rite Aid Corp., 992 F. 4 Supp. 2d 998, 1006 (C.D. Cal. 2014). 5 Federal Rule of Civil Procedure 55(b)(2) authorizes district courts discretion to 6 grant default judgment after the Clerk enters default under Rule 55(a). Aldabe v. 7 Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). When moving for a default judgment, 8 the well-pleaded factual allegations in the complaint are accepted as true, with the 9 exception that allegations as to the amount of damages must be proved. Televideo 10 Sys., Inc. v. Heidenthal, 826 F.2d 915, 917–19 (9th Cir. 1987) (per curiam); see also 11 Fed. R. Civ. P. 54(c) (“[A] default judgment must not differ in kind from, or exceed in 12 amount, what is demanded in the pleadings.”). 13 In exercising its discretion, the Court considers the Eitel factors: (1) the 14 possibility of prejudice to plaintiff; (2) the merits of plaintiff’s substantive claim; (3) 15 the sufficiency of the complaint; (4) the sum of money at stake; (5) the possibility of a 16 dispute concerning material facts; (6) whether defendant’s default was due to 17 excusable neglect; and (7) the strong policy underlying the Federal Rules of Civil 18 Procedure favoring decisions on the merits. Eitel v. McCool, 782 F.2d 1470, 1471–72 19 (9th Cir. 1986). IV. 20 21 A. DISCUSSION Procedural Requirements 22 Plaintiff has satisfied the procedural requirements for the entry of a default 23 judgment against Defendants. The Clerk entered a default against Defendants on 24 September 7, 2017 and on October 4, 2017. (ECF Nos. 52, 61.) Plaintiff’s counsel 25 has declared that: (1) Defendants are not infants or incompetent persons; (2) 26 Defendants are not covered under the Servicemembers Civil Relief Act, and (3) 27 Defendants were served with the Motion for Default Judgment. (Hamasaki Decl. 28 ¶¶ 2–4.) Plaintiff has therefore complied with the Federal Rules of Civil Procedure 8 1 54(c) and 55, as well as Local Rule 55-1. In addition, the circumstances support entry 2 of default judgment against Defendants in the amount Plaintiff requests. 3 B. 4 5 Eitel Factors The Court concludes that the Eitel factors weigh in favor of entering a default judgment. The Court will discuss each factor in turn. 6 1. 7 The first Eitel factor asks whether the plaintiff will suffer prejudice if a default 8 judgment is not entered. PepsiCo, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1177 9 (C.D. Cal. 2002). Defendants have failed to participate in this action, and without a 10 default judgment, Plaintiff will have no other recourse for recovery. (ECF Nos. 52, 11 61.) Therefore, this factor favors entry of default judgment. 12 13 2. Plaintiff Would Suffer Prejudice Plaintiff Brought Meritorious Claims and Plaintiff’s Complaint Was Sufficiently Pleaded 14 The second and third Eitel factors “require that a plaintiff ‘state a claim on 15 which [it] may recover.’” PepsiCo, 238 F. Supp. 2d at 1175; Philip Morris USA, Inc. 16 v. Castworld Prods., Inc., 219 F.R.D. 494, 499 (C.D. Cal. 2003). Plaintiff asserts 17 three claims against Defendants: (1) Contributions to Employee Benefit Plans; (2) 18 Specific Performance Compelling an Audit; and (3) Damages for Breach of Fiduciary 19 Duties. (See generally FAC.) 20 a. ERISA Violation 21 Under ERISA, “[e]very employer who is obligated to make contributions to a 22 multiemployer plan under the terms of the plan or under the terms of a collectively 23 bargained agreement shall, to the extent not inconsistent with law, make such 24 contributions in accordance with the terms and conditions of such plan or such 25 agreement.” 29 U.S.C. § 1145; see also Winterrowd v. David Freedman & Co., Inc., 26 724 F.2d 823, 826 (9th Cir. 1984). If the employer fails to do so, the plan or a plan 27 fiduciary may bring an action to recover the unpaid contributions. 28 9 29 U.S.C. 1 § 1132(d)(1); see Bd. of Trustees of Bay Area Roofers Health & Welfare Trust Fund v. 2 Westech Roofing, 42 F. Supp. 3d 1220, 1224 (N.D. Cal. 2014). 3 Here, the FAC alleges that Defendants were obligated to make monthly 4 contributions to the Trust Funds. (FAC ¶ 19.) Plaintiff presents evidence that shows 5 the Defendants were bound by a written collective bargaining agreement by which it 6 agreed to become bound by the written Trust Agreements that established the Trust 7 Funds. 8 contributions to the Trust Funds, Defendants’ failure to make such contributions 9 constitutes a violation of section 515 of ERISA. See 29 U.S.C. § 1145. Moreover, the 10 Defendants cannot dispute the accuracy of the contribution reports they themselves 11 submitted to the Trust Funds, nor the audits based on Precision’s certified payroll 12 records. (See Decl. of Yvonne Higa (“Higa Decl.”), Exs. 8–9, 13.1–13.21, ECF No. 13 66.) Defendants, by their default, admit liability for the claims asserted, which entitles 14 Plaintiff to unpaid fringe benefit contributions, interest thereon, liquidated damages, 15 and reasonable attorneys’ fees and costs for amounts owed under 29 U.S.C. § 1145. 16 (FAC ¶¶ 26, 44–45); see 29 U.S.C. § 1132(g)(2). Additionally, the Trust Agreements 17 contain provisions requiring employers to pay fringe benefits on all hours worked (or 18 paid for) by employees performing services under the Trust Agreements. (Higa Decl. 19 ¶¶ 9–13; FAC ¶¶ 19–23, 26, 32.) These provisions are consistent with 29 U.S.C. 20 § 1132(g) and support the Court’s conclusion. As such, the Court finds that Plaintiff 21 has sufficiently pleaded a meritorious claim for breach of the CBA and violation of 22 ERISA. 23 (Id.) b. As an employer obligated under the terms of the CBA to make Joint and Several Liability 24 Plaintiff also alleges that the Anzalones are jointly liable with Precision for the 25 delinquent monthly contributions, liquidated damages, interest, attorneys’ fees, and 26 costs. (FAC 19–20, ¶ 44.) 27 Plaintiff argues that the Anzalones, as Precision’s president, CEO, and majority 28 shareholders, are managing officers responsible for the financial decisions of assets of 10 1 the Trust Funds and therefore fall within the definition of fiduciary. (FAC ¶¶ 5–6, 2 38.) Under ERISA, “[a] person is a fiduciary with respect to a plan to the extent . . . 3 he exercises any discretionary authority or discretionary control respecting 4 management of such plan or exercises any authority or control respecting management 5 or disposition of its assets.” 29 U.S.C. § 1002(21)(A). Any individual who acts as a 6 fiduciary with respect to a plan or trust covered by ERISA can be liable for breach of 7 fiduciary duty under ERISA. See Acosta v. Pacific Enters., 950 F.2d 611, 617 (9th 8 Cir.1991). 9 The Ninth Circuit liberally construes the definition of fiduciary under ERISA. 10 See Arizona State Carpenters Pension Trust Fund v. Citibank, 125 F.3d 715, 720 (9th 11 Cir. 1997). To determine whether the Anzalones are fiduciaries, the Court must 12 resolve (1) whether the unpaid contributions are trust assets, and (2) whether the 13 Anzalones did in fact exercise authority or control over these assets. Bd. of Trustees 14 of Airconditioning & Refrigeration Indus. Health & Welfare Tr. Fund v. J.R.D. Mech. 15 Servs., Inc., 99 F. Supp. 2d 1115, 1120 (C.D. Cal. 1999). 16 First, employee wage deductions intended as plan contributions are plan assets, 17 regardless of whether such money is ever, in fact, conveyed to the plan. See 29 C.F.R. 18 § 2510.3–102. Plaintiff contends that the deducted benefits for contribution to the 19 Trust Funds are plan assets as defined by federal regulation, 29 C.F.R. § 25103- 20 102(a)(1) and 19 C.F.R. § 2510.3-102(c). The Trust Agreements provide that benefits 21 are earned by employees but submitted by their employers to the Trust Funds. (Higa 22 Decl., Ex. 2.) Courts have held that withheld funds are assets of the fund to which 23 they are due and that an entity or person that determines whether and how much to 24 contribute, controls the disposition of such plan assets and is a fiduciary to the fund 25 with respect to them. J.R.D. Mech. Servs., Inc., 99 F. Supp. 2d 1115, 1121–22 (C.D. 26 Cal. 1999); see Phelps v. C.T. Enterprises, 394 F.3d 213, 219–21 (4th Cir. 2005); 27 United States v. Grizzle, 933 F.2d 943, 947 (11th Cir. 1991). 28 11 1 Here, Precision worked on SDUSD and public works projects, which required 2 its workers to be paid the “prevailing wages” on the projects. Cal. Labor Code 3 § 1774; (Hamasaki Decl. ¶ 13.) Precision and the Anzalones deducted the monthly 4 fringe benefit contribution portion of the employees’ wages on public works projects 5 for contribution to the Trust Funds. (Higa Decl. ¶¶ 19–24.) However, Defendants 6 failed to report and/or remit those deducted contributions to the Trust Funds, and the 7 certified payroll records do not support that the payments were made directly to the 8 employees. (Id.) Plaintiff alleges that Precision, through the Anzalones, underpaid 9 the prevailing rate by $13.38. (Mot. 18, ECF No. 68; see Higa Decl., Ex. 11.1; 10 Hamasaki Decl. ¶ 13, Ex. 12.1.) Because the employee wage deductions were 11 intended as plan contributions, the unpaid employer contributions are plan assets 12 under ERISA. 13 Second, “‘[a]ny’ control over disposition of plan money makes the person who 14 has the control a fiduciary.” IT Corp. v. Gen. Am. Life Ins. Co., 107 F.3d 1415, 1421 15 (9th Cir. 1997). Here, the Anzalones were responsible for the reporting and payment 16 obligations of Precision’s debts, including the contributions owed on behalf of 17 Precision’s workers. (FAC ¶ 37.) Therefore, the Court finds that the Anzalones’ 18 defaults and supporting declarations demonstrate that they have exercised 19 discretionary authority or control over the management of the Trust Fund’s assets. 20 (See Higa Decl. ¶ 21; Hamasaki Decl. ¶¶ 8.1–8.2); Kayes v. Pacific Lumber Co., 51 21 F.3d 1449, 1459 (9th Cir. 1995) (“This court has held corporate officers to be liable as 22 fiduciaries on the basis of their conduct and authority with respect to ERISA plans.”). 23 Accordingly, the Anzalones are fiduciaries to the Trust Funds under 29 U.S.C. 24 § 1002(21)(A). 25 Under ERISA, a fiduciary is required to “discharge his duties with respect to a 26 plan solely in the interest of the participants and beneficiaries . . . for the exclusive 27 purpose of . . . providing benefits to [them].” 29 U.S.C. § 1104(a)(1). Thus, ERISA 28 prohibits a fiduciary from dealing “with the assets of the Plan in his own interest and 12 1 for his own account.” 29 U.S.C. § 1106(b)(1); see J.R.D. Mech. Servs., Inc., 99 F. 2 Supp. at 1122 (“The Ninth Circuit liberally construes this provision to protect plan 3 participants and beneficiaries.”). Here, the deducted contributions owed on behalf 4 Precision, and not turned over to the Trust Funds, give rise to the Anzalones’ liability 5 for the amounts deducted from the employees’ wages and damages. Therefore, the 6 Court finds that the Anzalones breached their fiduciary duty under 29 U.S.C. 7 § 1104(a)(1), because they failed to pay the full compensation and withheld from 8 payment deducted contributions payable to the Trust Funds. 9 Under section 409(a) of ERISA, 29 U.S.C. § 1109(a), which provides, in 10 pertinent part, that “[a]ny person who is a fiduciary with respect to a plan who 11 breaches any of the responsibilities, obligations, or duties imposed upon fiduciaries” is 12 personally liable “to make good to such plan any losses to the plan resulting from each 13 such breach, and to restore to such plan any profits of such fiduciary which have been 14 made through use of assets of the plan by the fiduciary . . . .” Because the Anzalones 15 are fiduciaries under ERISA and they breached their duty, each is personally liable for 16 the unpaid contributions. As such, the Court finds that Plaintiff has sufficiently 17 pleaded a meritorious claim for joint and several liability against the Anzalones. 18 c. Specific Performance Compelling Audit 19 In addition to monetary damages, Plaintiff requests that the Court exercise its 20 authority under 29 U.S.C §§ 1132(g)(2)(E) and 1132(a)(3) to order Precision to 21 comply with its obligations under the Agreements and ERISA to fully produce its 22 books and records in order for Plaintiff to complete an audit to determine if additional 23 amounts are due. (FAC ¶ 34.) Plaintiff seeks this equitable relief pursuant to 29 24 U.S.C. § 1132(g)(2)(E), which provides that the Court shall award “other legal or 25 equitable relief as the court may deem appropriate” in an action to enforce a 26 multiemployer plan in which the fiduciary obtains a favorable judgment. 27 The Court has recognized Plaintiff’s right to an audit of Precision’s records and 28 previously entered an Interlocutory Order for Accounting on August 23, 2016. (ECF 13 1 No. 23.) Moreover, the Trust Agreements require Precision to submit to an audit. 2 (Higa Decl. ¶¶ 15–16.) Because Defendants have not complied with the Court’s 3 Interlocutory Order for Accounting, the entry of judgment has been delayed. Further, 4 based on Plaintiff’s uncontested allegations, Plaintiff has pleaded a sufficiently 5 meritorious claim, and the Court deems specific performance compelling audit an 6 appropriate equitable relief under 29 U.S.C. § 1132(g)(2)(E). Therefore, the Court 7 finds that the Plaintiff is entitled to a final order for accounting and ORDERS 8 Defendants to submit to an audit of Precision’s payroll and business records as 9 follows: 10 From October 1, 2015 to the date of the audit, the following documents relating to 11 Precision’s work on projects for the SDUSD: 12 (1) All payroll and employee documents including, but not limited to, 13 Precision’s payroll journals, employees’ earning records, certified 14 payrolls, payroll check books and stubs, canceled payroll checks, payroll 15 time cards, state and federal payroll tax returns, labor distribution 16 journals, any other documents reflecting the number of hours which 17 Precision’s employees worked, their names, social security numbers, 18 addresses, job classifications and the projects on which the employees 19 performed their work. 20 (2) All Precision’s job files for each contract, project or job on which 21 Precision worked, including all documents, agreements, and contracts 22 between Precision, and any general contractor, subcontractor, builder 23 and/or developer, field records, job records, notices, project logs, 24 supervisor’s diaries or notes, employees diaries, memorandum, releases 25 and any other documents which related to the supervision of Precision’s 26 employees and the projects on which they performed their work. 27 (3) All Precision’s documents related to cash receipts, including 28 14 1 but not limited to, the cash receipts journals, accounts receivable journal, 2 accounts receivable subsidiary ledgers and billing invoices for all 3 contracts, projects or jobs on which Precision worked. 4 (4) accounts. 5 6 All Precision’s bank statements for all checking, savings and investment (5) All Precision’s documents related to cash disbursements, including but 7 not limited to, vendors’ invoices, cash disbursement journal, accounts 8 payable journals, check registers, cancelled checks and all other 9 documents which indicate cash disbursements. 10 (6) fund. 11 12 All Monthly Report Forms submitted by Precision to any union trust (7) Documents, records, or other writings pertaining to and including the 13 checks/payments issued to any person, company and/or subcontractor 14 relating to work performed on Precision’s construction projects, 15 including but not limited to day laborers, or other non-union workers 16 hired to work on Precision’s project. 17 3. Amount at Stake 18 The fourth Eitel factor balances the sum of money at stake with the “seriousness 19 of the action.” Lehman Bros. Holdings Inc. v. Bayporte Enters., Inc., No. C 11–0961– 20 CW (MEJ), 2011 WL 6141079, at *7 (N.D. Cal. Oct. 7, 2011). The amount at stake 21 must not be disproportionate to the harm alleged. 22 disfavored where the sum of money requested is too large or unreasonable in relation 23 to a defendant’s conduct. Truong Giang Corp. v. Twinstar Tea Corp., No. C 06– 24 03594 JSW, 2007 WL 1545173, at *12 (N.D. Cal. May 29, 2007). Id. Default judgments are 25 The Court finds the damages requested by Plaintiff are reasonable. The total 26 amount Plaintiff seeks to recover is $81,969.24 against Precision and $81,249.24 27 against the Anzalones, jointly and severally. (Hamasaki Decl. ¶ 29.) These totals 28 consist of fringe benefits, liquidated damages, audit costs, interest, attorneys’ fees, and 15 1 costs. (Id.) Although the amount at stake is relatively large, Plaintiff has presented 2 sufficient evidence that the amount they seek is legitimate and warranted. (See Higa 3 Decl., Exs. 14–14.3.) The alleged damages that Plaintiff seeks are consistent with the 4 terms of the agreements and are supported by verifiable monthly reports and well- 5 documented schedules of expenses. (Id., Exs. 4–6, 13.1–13.21.) The Court finds that 6 the amount at stake is reasonably proportionate to the harm caused by Defendants’ 7 failure to pay contributions and subsequent refusal to comply with the audits. Thus, 8 the amount at stake favors entry of default judgment. 9 4. There is No Possibility of Dispute as to Material Facts 10 The next Eitel factor considers the possibility that material facts are disputed. 11 PepsiCo, 238 F. Supp. 2d at 1177. The general rule is that a defaulting party admits 12 the facts alleged in the complaint as true. Geddes v. United Fin. Grp., 559 F.2d 557, 13 560 (9th Cir. 1977). As discussed, Plaintiff has adequately alleged the facts necessary 14 to establish the claims in its Complaint, and Defendants have not challenged the 15 validity of Plaintiff’s allegations. (ECF Nos. 52, 61.) Accordingly, the Court finds 16 that this factor also weighs in favor of default judgment. 17 5. 18 There is little possibility of excusable neglect and default judgment is favored 19 when defendants fail to respond after being properly served. See Wecosign, Inc. v. 20 IFG Holdings, Inc., 845 F. Supp. 2d 1072, 1082 (C.D. Cal. 2012). Here, Plaintiff 21 served Defendants with the FAC on July 31, 2017 and August 29, 2017, and with the 22 present motion on January 8, 2018. (ECF Nos. 45, 51, 53.) Additionally, Plaintiff 23 repeatedly attempted to advise Defendants of the delinquencies prior to filing this 24 motion, yet Defendants failed to participate in this litigation in any meaningful way. 25 (Hamasaki Decl. ¶ 10, Exs. 7, 8.1–8.2, 9–11.) There is no evidence in the record that 26 Defendants’ default was the result of excusable neglect. Accordingly, the sixth Eitel 27 factor favors entry of a default judgment. 28 6. Defendants’ Default Was Not Due to Excusable Neglect Decision on the Merits 16 1 In Eitel, the court maintained that “[c]ases should be decided upon their merits 2 whenever reasonably possible.” Eitel, 782 F.2d at 1472. However, where, as here, 3 defendants fail to answer the plaintiff’s complaint, “a decision on the merits [is] 4 impractical, if not impossible.” See PepsiCo, 238 F. Supp. 2d at 1177. Because 5 Defendants failed to respond to Plaintiff’s FAC, the Court finds that the seventh Eitel 6 factor does not preclude entry of a default judgment. 7 C. Damages 8 Because Plaintiff is entitled to default judgment, the Court must determine the 9 proper amount of damages. In an action to recover delinquent contributions, the Court 10 11 12 13 14 15 16 17 18 must award the following: (A) the unpaid contributions, (B) interest on the unpaid contributions, (C) an amount equal to the greater of-(i) interest on the unpaid contributions, or (ii) liquidated damages provided for under the plan in an amount not in excess of 20 percent (or such higher percentage as may be permitted under Federal or State law) of the amount determined by the court under subparagraph (A), (D) reasonable attorney’s fees and costs of the action, to be paid by the defendant, and (E) such other legal or equitable relief as the court deems appropriate. 19 29 U.S.C. § 1132(g)(2). 20 damages, for “even a defaulting party is entitled to have its opponent produce some 21 evidence to support an award of damages.” LG Elec., Inc. v. Advance Creative 22 Computer Corp., 212 F. Supp. 2d 1171, 1178 (N.D. Cal. 2002); see also Wecosign, 23 845 F. Supp. 2d at 1079 (“[A]llegations of the amount of damages suffered are not 24 necessarily taken as true.”). 25 requests the Court award liquidated damages, interest, and audit costs, plus attorneys’ 26 fees and costs. (FAC ¶¶ 26, 35, 44.) The Court addresses each request in turn. 27 1. Plaintiff cannot rely solely on allegations to establish Here, in addition to unpaid contributions, Plaintiff Fringe Benefits 28 17 1 Plaintiff seeks $1,387.33 in unpaid fringe benefits. (Hamasaki Decl. ¶ 29.) 2 This total is based on monthly reports and audits that are detailed on the spreadsheets 3 attached. (See Higa Decl., Ex. 14–14.1.) Plaintiff’s claim covers time periods from 4 November 2011 and February 2012 to December 2016 based on the monthly fringe 5 benefit reports and partial audit reports. (Id. ¶ 24, Exs. 8–9, 13.1–13.21.) 6 Plaintiff also seeks recovery of the amounts owed in relation to Precision’s 7 January 2017 contribution report submitted after the FAC was filed. (Higa Decl., Ex. 8 13.21.) Plaintiff argues that the damages sought are not limited to those amounts 9 specifically pleaded in the Complaint, because Plaintiff prayed for additional damages 10 according to proof at trial. (FAC ¶ 26); see Henry v. Sneiders, 490 U.S. 1060 (1974). 11 The Ninth Circuit, in Northwest Administrators, Inc. v. Albertsons, 104 F.3d 12 253, 257–58 (9th Cir. 1996), upheld a plan’s right to liquidated damages under 13 1132(g)(2) for the delinquent amounts discovered post-suit but pre-trial. The court 14 outlined three requirements: “(1) The employer must be delinquent at the time the 15 action is filed; (2) The district court must enter a judgment against the employer; and 16 (3) The plan must provide for such an award.” Id. at 257 (citation omitted). Here, 17 Plaintiff has satisfied these requirements. First, at the time the action was filed, 18 Defendants owed Plaintiff delinquent fringe benefit contributions, liquidated damages, 19 interest, and audit fees. (FAC ¶ 26.) Defendants were also delinquent in their 20 submission of reports and refused to comply with an audit. (Higa Decl. ¶¶ 25–30.) 21 Second, as discussed above, Plaintiff has pleaded meritorious claims to support a 22 default against the employer. Third, the Trust Agreements provide for fringe benefits, 23 liquidated damages, audit fees, and interest. (Id. ¶¶ 10–18.) Therefore, Plaintiff has 24 satisfied the three requirements and is entitled to recovery on all amounts discovered 25 after the suit was filed. 26 Because the amount Plaintiff seeks is sufficiently supported by calculations in 27 the declaration of Yvonne Higa, the Court finds that an award in the amount requested 28 is warranted. Accordingly, the Court awards Plaintiff’s a total of $1,387.33 for unpaid 18 1 fringe benefit contributions owed by Defendants, pursuant to 29 U.S.C. 2 § 1132(g)(2)(A). 3 2. Liquidated Damages 4 Plaintiff also requests $29,505.61 in liquidated damages. (FAC ¶ 26.) Under 5 29 U.S.C. § 1332, liquidated damages on unpaid contributions are mandatory and are 6 awarded at the rate provided for in the applicable agreement, or an amount equal to 7 the prejudgment interest, whichever is greater. 8 Operating Eng’rs Pension Tr. v. Beck Eng’g & Surveying Co., 746 F.2d 557, 569 (9th 9 Cir. 1984). See 29 U.S.C. § 1132(g)(2)(C); 10 Section 502(g)(2)(C)(ii) of ERISA provides that when a judgment in favor of a 11 plan is awarded, a court shall award a plan: “[l]iquidated damages provided for under 12 the plan in an amount not in excess of twenty percent (or such higher percentages as 13 may be permitted under federal or state law) of the amount determined by the court [to 14 represent the unpaid contributions].” 15 liquidated damages at $25.00 or 20% of the contribution, whichever is the greater 16 amount. (Higa Decl. ¶¶ 27–28.) Plaintiff argues that the Trust Agreement provisions 17 relating to the assessment of liquidated damages in excess of that provided for by 18 ERISA § 502(g)(2)(C)(ii), are not invalid merely because they provide for liquidated 19 damages which, in some instances, will be greater than 20%. Here, the Trust Agreements provide for 20 The Court agrees, because if the liquidated damages provisions of the Trust 21 Agreements are permissible under state law, then they are still enforceable. See 29 22 U.S.C. § 1132(g)(2)(C)(ii). Under California law, a liquidated damages provision is 23 valid, unless the party opposing the provision establishes that it was unreasonable at 24 the formation of the contract. Cal. Civ. Code § 1671(b). Here, Defendants have failed 25 to participate in this litigation and therefore have not met their burden to prove 26 unreasonableness. 27 Moreover, Plaintiff argues that the harm caused by the Defendants’ breach is 28 difficult, if not impossible, to accurately quantify, and that the 20% liquidated 19 1 damages figure is a reasonable forecast of just compensation for the harm caused. 2 (Higa Decl. ¶¶ 31–38.) Plaintiff set forth the ratio of cost of collections to gross 3 collections. (Id. ¶ 36.) The average collection ratio, beginning in 1972 through 4 December 2014, is 26.90%—which demonstrates the reasonableness of the $25.00 5 minimum and/or the 20% rate in the liquidated damages provision. 6 Defendants have not stated any reason as to why the Plaintiff is not entitled to 7 liquidated damages under the Trust Agreements. Therefore, a total of $29,505.61 in 8 liquidated damages is mandatory under ERISA, and the balance is due under the Trust 9 Agreements. (Higa Decl. ¶¶ 24–29, Ex. 8, 9, 13.1–13.21, 14.3.) 10 3. Interest on Unpaid Monthly Contributions 11 Plaintiff also seeks $1,092.55 in interest on the delinquent fringe benefit 12 contributions owed by Defendants. (Hamasaki Decl. ¶ 16.) Under ERISA, 13 prejudgment interest is mandatory and is “determined by using the rate provided under 14 the plan, or, if none, the rate prescribed under section 6621 of title 26.” 29 U.S.C. 15 § 1132(g)(2). Here, the plan provides for interest at 5% above the discount rate set by 16 the Federal Reserve Board which, during the period of Precision’s liability, ranged 17 from 5.75% to 7.0 per annum. (Higa Decl. ¶¶ 17, 26–27.) Interest was calculated 18 based on the monthly reports submitted by Precision and the audit reports from the 19 due date of the monthly contributions through December 27, 2017. (Id. ¶ 26, Exs. 14, 20 14.2.) After $824.90 in interest was collected from Precision’s prime contractor, the 21 total interest sought by Plaintiff was $1,076.08. (Id. ¶ 26.) Interest continued to 22 accrue at the rate of 7.0% from December 28, 2017 until February 26, 2018 (the date 23 of Motion for Default Judgment), which totals $16.47 (61 x $0.27). (Hamasaki Decl. 24 ¶ 16.) Therefore, Plaintiff seeks interest in the sum of $1,092.55. (Id.) 25 Plaintiff is entitled to interest because Plaintiff prayed for such damages in the 26 Complaint. (FAC ¶¶ 29, 35, 44); see Fed. R. Civ. P. 54 (“A default judgment must 27 not differ in kind from, or exceed in amount, what is demanded in the pleadings.”). 28 The Court concludes that the delinquency spreadsheet and related documents 20 1 sufficiently evidence Plaintiff’s entitlement to $1,092.55 in interest. (Higa Decl., Ex. 2 14.2.) 3 4. 4 Plaintiff seeks to recover the costs of the audit, which Plaintiff’s counsel 5 declares to be $720.00. (Higa Decl. ¶ 10.) This consists of $480.00 from the first 6 audit and $480.00 from the second audit. (Id.) The Ninth Circuit has held that audit 7 costs are recoverable under § 1132(g)(2)(E). Operating Eng’rs Pension Tr. v. A-C 8 Co., 859 F.2d 1336, 1343 (9th Cir. 1988). Therefore, the Court awards Plaintiff audit 9 costs in the amount of $720.00. 10 Audit Costs /// 11 5. Attorneys’ Fees 12 Next, Plaintiff requests $48,175.00 in attorneys’ fees. (Hamaski Decl. ¶¶ 18– 13 24.) In an action under 29 U.S.C. § 1132(g)(2), attorneys’ fees are mandatory. 14 Plaintiff uses the lodestar method to calculate attorneys’ fees. (Mot. 20.) Under the 15 Local Rules for this district, however, attorneys’ fees awarded upon default judgment 16 are generally calculated according to a fee schedule. C.D. Cal. L.R. 55-3. When “[a]n 17 attorney claim[s] a fee in excess of this schedule[,] [he] may file a written request at 18 the time of entry of the default judgment,” and the Court “shall hear the request and 19 render judgment for such fees as the Court may deem reasonable.” See Aiuppy v. Set 20 Glob. Inc., No. CV 13-07198 DDP (PJWx), 2015 WL 5838461, at *2 (C.D. Cal. Oct. 21 5, 2015) (where counsel requests a fee award in excess of that provided in the Local 22 Rules, “the Court [must] determine if the departure from the Local Rules is reasonable 23 under the lodestar method”). 24 Here, Plaintiff seeks departure from Local Rule 55-3 and requests $48,175.00— 25 in excess of the default schedule—due to Defendants’ delays and refusal to cooperate 26 with the audit of its records. (Hamaski Decl. ¶ 24.) Attorneys’ fees under ERISA 27 § 502(g)(1) “are calculated using the lodestar approach, which multipl[ies] the number 28 of hours reasonably expended by the attorney(s) on the litigation by a reasonable 21 1 hourly rate.” McElwaine v. U.S.W., Inc., 176 F.3d 1167, 1173 (9th Cir. 1999). The 2 Court then determines whether the hours spent and the rate charged were reasonable. 3 A district court has “wide latitude in determining the number of hours that were 4 reasonably expended by the prevailing lawyers.” Sorenson v. Mink, 239 F.3d 1140, 5 1147 (9th Cir. 2001). 6 appropriate hours expended in litigation and must submit evidence in support of hours 7 worked.” Gates v. Deukmejian, 987 F.2d 1392, 1398 (9th Cir. 1992). The services 8 performed by the attorney, Marsha M. Hamasaki, total 80.7 hours, and services 9 performed by the paralegal, Jennifer Okita, total 37.9 hours. (Hamasaki Decl. ¶ 19.) 10 The attached exhibit, from the firm’s billing records, details the specific tasks and 11 work completed by the attorneys and paralegals and does not suggest duplicate hours 12 or hours that are otherwise unnecessary. (Id., Ex. 13); see Perkins v. Mobile Hous. 13 Bd., 847 F.2d 735, 738 (11th Cir. 1988) (“Sworn testimony that, in fact, it took the 14 time claimed is evidence of considerable weight on the issue of the time required in 15 the usual case.”). Considering Defendants’ refusal to participate in the litigation or to 16 submit to audit reports, the Court finds that the number of hours performed is 17 reasonable. The fee applicant “bears the burden of documenting the 18 To determine whether the hourly rates are reasonable, the Court can consider 19 whether “the requested rates are in line with those prevailing in the community for 20 similar services by lawyers of reasonably comparable skill, experience, and 21 reputation.” Trs. of S. Cal. IBEW–NECA Pension Plan v. Electro Dynamic Servs., CV 22 07–05691 MMM (PLAx), 2008 WL 11338230, at *5 (C.D. Cal. Oct. 14, 2008) (citing 23 Blum v. Stenson, 465 U.S. 886, 895–96, n.11 (1984)). 24 Plaintiff seeks $550 per hour for the time of attorney Marsha Hamasaki, and 25 $100 per hour for the time of paralegal Jennifer Okita. (Mot. 21; Hamasaki Decl. 26 ¶ 27.) Based on the hours worked through November 2017, Plaintiff requests a total 27 of $48,175.00 in attorneys’ fees, consisting of $44,385.00 for Hamasaki’s services and 28 $3,790.00 for Okita’s services. (Hamasaki Decl. ¶ 27.) 22 Attorney Marsha M. 1 Hamasaki was admitted to practice in California in 1982 and has focused almost 2 exclusively on ERISA litigation ever since. (Id. ¶ 20.) Moreover, she previously 3 served as in-house counsel, where she exclusively handled ERISA litigation, and has 4 been the principal attorney in several ERISA suits. (Id.) 5 Plaintiff also refers the Court to two surveys and previous awards given to this 6 counsel in order to support the reasonableness of the rate. First, Plaintiff refers to the 7 Laffey Matrix, which is based on the hourly rates allowed in Laffey v. Northwest 8 Airlines, Inc., 572 F. Supp. 354 (D.D.C. 1983). The Laffey Matrix provides a rate of 9 $581 per hour for Marsha Hamasaki based upon her thirty-five years of experience. 10 (Hamasaki Decl. ¶ 23, Ex. 14.) Second, Plaintiff refers to the United States Consumer 11 Law Attorney Fee Report for 2015–16. According to this survey, the average fee rate 12 in Los Angeles Metropolitan Area in 2016 for attorney Hamasaki was $619 per hour. 13 (Id. ¶ 24, Ex. 15.) Lastly, Plaintiff refers to previous awards for service of the same 14 attorney in the same type of case. (Id. ¶ 25.) Considering both surveys, inflation, and 15 the greater experience of the counsel now, the Court finds that Hamasaki demonstrates 16 that her skill and experience justify the hourly rate. 17 Finally, the Court must look to the Kerr factors4 in determining whether the 18 lodestar figure is reasonable and if it should be adjusted. Kerr v. Screen Extras Guild, 19 Inc., 526 F.2d 67, 70 (9th Cir. 1975), abrogated on other grounds by City of 20 Burlington v. Dague, 505 U.S. 557 (1992). When looking at the totality of the 21 circumstances, none of the Kerr factors necessitate that the Court adjust the lodestar 22 23 4 24 25 26 27 28 The Kerr factors assess reasonableness of attorneys’ fees, and are not determinative, and are largely subsumed by the lodestar calculation itself. Clark v. City of Los Angeles, 803 F.2d 987, 990– 91 (9th Cir. 1986). They include: (1) the time and labor required; (2) the novelty and difficulty of the questions presented; (3) the skill requisite to perform the legal services properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Kerr, 526 F.2d at 70. 23 1 figure. Thus, $48,175.00 is a reasonable amount of attorneys’ fees, and the Court 2 awards it in full. 3 6. Costs 4 Next, Plaintiff seeks $1,088.75 in costs incurred pursuing this action, which 5 includes the $400 filing fee, $80.32 to serve the Complaint on Precision, $78.50 to 6 serve the Court’s Interlocutory Order for Accounting, $42.50 to serve the Court’s 7 Order to Show Cause Regarding Contempt on KerryAnne Anzalone, $80.95 to serve 8 the FAC on Precision, 44.74 to serve the FAC on KerryAnne Anzalone, $233.24 to 9 serve FAC on Blase Anzalone, and a $50.00 investigation fee to obtain KerryAnne 10 Anzalone’s complete social security number for the U.S. Marshal. (Hamasaki Decl. 11 ¶ 28, Exs. 19.1–19.9.) Pursuant to 29 U.S.C. § 1132(g)(2)(D), costs of the action are 12 recoverable. Here, Trustees’ filing fees and fees for service of process are reasonable 13 and recoverable, and, thus, the Plaintiff may file a Notice of Application to the Clerk 14 to Tax Costs after the Court enters judgment. C.D. Cal. L.R. 54-3.1, 54-3.2. 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 24 1 /// 2 /// 3 /// 4 /// 5 /// 6 /// 7 /// 8 /// 9 /// 10 /// 11 /// V. 12 CONCLUSION 13 For the reasons stated above, the Court GRANTS Plaintiff’s Motion for Entry 14 of Final Default Judgment. (ECF No. 65.) Additionally, the Court finds that the 15 Plaintiff is entitled to a Final Order for Accounting and ORDERS Defendants to 16 submit to an audit of Precision’s payroll and business records, as outlined above. 17 Defendants, jointly and severally, shall pay Plaintiff the following amounts: 18 $81,969.24 against Precision Masonry Builders, Inc., consisting of: 19 o $1,387.33 in fringe benefit contributions 20 o $29,505.61 in liquidated damages 21 o $720.00 in audit fees 22 o 1,092.55 in interest 23 o $48,175.00 in attorneys’ fees; and 24 o $1,088.75 in costs 25 26 $81,249.24 against KerryAnne Anzalone, and Blase Anzalone, Jr., consisting of: 27 o $1,387.33 in fringe benefit contributions 28 o $29,505.61 in liquidated damages 25 1 o 1,092.55 in interest 2 o $48,175.00 in attorneys’ fees; and 3 o $1,088.75 in costs 4 5 The Court ORDERS Plaintiff to submit a proposed judgment consistent with this order no later than March 26, 2018. 6 IT IS SO ORDERED. 7 March 19, 2018 8 9 ____________________________________ 10 OTIS D. WRIGHT, II 11 UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 26

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