noting that district courts 18 are “obligated to consider sua sponte whether [they] have subject matter jurisdiction”
How later courts described this case
- noting that district courts 18 are “obligated to consider sua sponte whether [they] have subject matter jurisdiction”
- approving of 19 awards for computerized research, courier services, facsimile charges, and photocopies
- The nonmoving party “must 23 set forth non-speculative evidence of specific facts, not sweeping conclusory allegations.”
- finding $650 for lead counsel, $250 for associates, and $135 for paralegals was 4 reasonable for ERISA legal professionals in the Bay Area
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
7 UNITED STATES DISTRICT COURT
8 NORTHERN DISTRICT OF CALIFORNIA
9
10 DISTRICT COUNCIL 16 NORTHERN Case No. 23-cv-00458-TSH
CALIFORNIA HEALTH AND WELFARE
11 TRUST FUND, et al.,
ORDER GRANTING MOTION FOR
12 Plaintiffs, SUMMARY JUDGMENT
13 v. Re: Dkt. No. 72
14 HERRON PAINTING CO.,, et al.,
15 Defendants.
16
17 I. INTRODUCTION
18 Plaintiffs District Council 16 Northern California Health and Welfare Trust Fund, et al.
19 bring this case against Defendants Kevin Herron, Dora Herron, Herron Painting Co., a California
20 Partnership; and Herron Painting, Inc., alleging Defendants failed to report and pay required
21 contributions under the parties’ bargaining and trust agreements. Pending before the Court is
22 Plaintiffs’ motion for summary judgment against Defendants Kevin Herron and Dora Herron.
23 ECF No. 72. Defendants have not opposed the motion. The Court finds this matter suitable for
24 disposition without oral argument. Civ. L.R. 7-1(b). For the reasons stated below, the Court
25 GRANTS the motion.1
26
27
1 II. BACKGROUND
2 A. The Parties
3 Plaintiffs are employee benefit plans as defined in the Employee Retirement Income
4 Security Act of 1974 (“ERISA”) § 3(37)(A)(29), 29 U.S.C. § 1002(37)(A) (collectively “Trust
5 Funds” or “Plaintiffs”); their respective trustees are the named fiduciaries. Pls.’ Sep. Statement of
6 Undisputed Material Facts (“Sep. Statement”) ¶ 1, ECF No. 76. The Trust Funds are administered
7 in this district and their principal place of business is in the City of Dublin, Alameda County,
8 California. Id. ¶ 2. Defendants Kevin Herron (individually and as a qualifying Partner of Herron
9 Painting Co.), Dora Herron (individually and as a general partner of Herron Painting Co.), Herron
10 Painting Co. (a California partnership), and Herron Painting, Inc. (a FTB suspended California
11 corporation), are employers within the meaning section 3(5) of ERISA and section 2(2) of the
12 National Labor Relations Act. Id. ¶ 3.
13 B. Collective Bargaining and Trust Agreements
14 On or about May 24, 2012, Defendant Kevin Herron, on behalf of “Herron Painting”,
15 entered into the Northern California Floor Painters Master Agreement between the Union and the
16 Northern California Painting and Finishing Contractors Association (“2011-2014 Master
17 Agreement”). Sep. Statement of Facts, ¶ 23. On or about January 30, 2015, Defendant Kevin
18 Herron, on behalf of “Herron Painting”, entered into the Northern California Floor Painters Master
19 Agreement between the Union and the Northern California Painting and Finishing Contractors
20 Association (“2014-2017 Master Agreement”). Id. ¶ 25. On or about October 9, 2017, Defendant
21 Kevin Herron, on behalf of “Herron Painting”, entered into the Northern California Floor Painters
22 Master Agreement between the Union and the Northern California Painting and Finishing
23 Contractors Association (“2017-2020 Master Agreement”) (collectively, the “Bargaining
24 Agreements”). Id. ¶ 28. Plaintiffs are third party beneficiaries of the Bargaining Agreements. Id.
25 The Bargaining Agreements and Trust Agreements require employers to maintain time
26 records or timecards, and to submit any and all relevant records to Plaintiffs for examination to
27 determine whether it is making full and prompt payment of all sums required to be paid by it to
1 (2017-2020 Master Agreement) Art. 17, § 5; Ex. I (District Council 16 Health and Welfare Trust
2 Fund Agreement), Art. III § D; Ex. J, Art. III § D; Exhibit K (Bay Area Painters and Tapers
3 Pension Trust Fund Trust Agreement) Art. III § D).
4 Each month, employers are sent Contribution Report Forms to self-report the hours worked
5 by their employees each month. Sep. Statement ¶ 43; Williams Decl. ¶ 16. The Bargaining
6 Agreements provide that all contribution report forms with payment are due on or before the
7 fifteenth (15th) day of the month following the month in which hours were worked and are
8 considered delinquent if not received by the end of that month. Sep. Statement ¶ 43; Williams
9 Decl. ¶ 16. (citing Ex. A to Williams Decl. (2011–2014 Master Agreement) Art. 17, § 4(b); Ex. B
10 to Williams Decl. (2014–2017 Master Agreement) Art. 17, § 4(b); Ex. C to Williams Decl. (2017–
11 2020 Master Agreement) Art. 17, § 4(b); Ex. E to Williams Decl. (Trust Fund Agreement) Art. III,
12 § A. If contributions are delinquent, the Bargaining and Trust Agreements mandate that the
13 employer pay liquidated damages and interest assessed on the delinquent contributions. Sep.
14 Statement ¶ 44; Williams Decl. ¶ 16 (citing Ex. A, Art. 17, § 4(c); Ex. B, Art. 17, § 4(c); Ex. C,
15 Art. 17, § 4(c); Ex. E, Art. III § C(2)-(2)).
16 The Bargaining Agreements require employer contributions to Plaintiffs’ ERISA funds, to
17 the Union for union dues, and to other plans described in the Bargaining Agreement. Sep.
18 Statement ¶ 40. Under the terms of the Bargaining Agreements, Plaintiffs’ Trustees have been
19 authorized to collect and distribute the contributions due under the Bargaining Agreement. The
20 Bargaining Agreements incorporate the terms of the governing documents of ERISA Plaintiffs
21 (the “Trust Agreements”). Id. ¶ 41. These agreements require Defendants to regularly pay
22 contributions to Plaintiffs’ Trust Funds based on the hours worked by Plaintiffs’ employees. ¶ 42.
23 Under the terms of these agreements, contributions are due on the fifteenth day of the month
24 following the month hours were worked, and are considered delinquent if not received by the last
25 day of that month. Id. ¶ 43.
26 The Bargaining and Trust Agreements require Defendants to pay liquidated damages and
27 interest assessed on delinquent contributions. Id. ¶ 44. Defendants are required to pay liquidated
1 delinquent contribution that is the subject of litigation. Id. ¶ 45. See also First Williams Decl.
2 ¶ 17 ((citing Ex. A (2011–2014 Master Agreement) Art. 17, § 4(c); Ex. B (2014–2017 Master
3 Agreement) Art. 17, § 4(c); Ex. C (2017–2020 Master Agreement) Art. 17, § 4(c); Ex. E (Trust
4 Fund Agreement) Art. III, § C(2)). These agreements also provide for the accrual of interest on
5 delinquent contributions at rates set by the Trustees from the day contributions become delinquent
6 until they are paid. Sep. Statement ¶ 46. Williams Decl. ¶ 18 ((citing Ex. A to Williams Decl.
7 (2011–2014 Master Agreement) Art. 17, § 4(c); Ex. B to Williams Decl. (2014–2017 Master
8 Agreement) Art. 17, § 4(c); Ex. C to Williams Decl. (2017–2020 Master Agreement) Art. 17, §
9 4(c); Ex. E to Williams Decl. (Trust Fund Agreement) Art. III, § C(3). The Trustees have
10 determined that interest is to be assessed at five percent (5%) of the delinquent contributions, from
11 the date an employer becomes delinquent until the contributions are paid. Sep. Statement ¶ 46;
12 First Williams Decl. ¶ 18; Supp. Williams Decl. in Support of Mot. for Def. J. ¶ 11 & Ex. G to
13 Supp. Williams Decl. Art. I § D, Art. III § D.
14 The Bargaining and Trust Agreements also provide for reimbursement of attorneys’ fees
15 and any other expenses, including costs and audit fees, incurred in connection with the collection
16 of delinquent contributions. First Williams Decl. ¶ 19 (citing Ex. A Art.17, § 4(c); Ex. B Art. 17,
17 § 4(c); Ex. C Art. 17, § 4(c); Ex. E Art. III, § E).
18 C. Agreement of Employers
19 The Agreement of Employers Regarding Bay Area Painters and Tapers Trust Funds
20 (“Agreement of Employers”), which was signed by Kevin Herron on May 24, 2012, states:
21 The undersigned employer agrees to pay the monthly contributions
for each employee required by the collective bargaining agreement
22 affecting painters then in effect to the Bay Area Painters Pension
Trust Fund, the Bay Area Painters Welfare Fund, Beneficial Fund,
23 Supplemental Holiday Fund and Joint Apprenticeship Funds, and to
be bound in all respects by the collective bargaining agreement, and
24 the Trust Agreements.
25 From the day an employee earns his right to contributions to these
trust funds, to the that day said contributions are actually received by
26 the designated depositary the employer agrees to hold said sums as
trustee and in trust for the benefit of the employees earning said
27 contributions. The employer further agrees that said sums are
by the employees and their union representative of a contract of
1 employment.
2 The individual whose signature appears below on behalf of the
employer, agrees to be personally and individually liable for said
3 contributions.
4 Williams Decl. ¶ 11, ECF No. 74 & Ex. D to Williams Decl., ECF No. 74-4 (Agreement of
5 Employers) (emphasis added). Directly below this language, the form has lines for “Name of
6 Employer,” “Name of person signing on behalf of employer,” and “Signature.” Agreement of
7 Employers. “Herron Painting Co.” is handwritten on the line for “Name of Employer” and “Kevin
8 Herron” is handwritten on the line designated “Name of person signing on behalf of employer.”
9 The next line contains Kevin Herron’s signature. Id.
10 D. Herron Painting’s Failure to Comply with Reporting and Contribution Requirements
11 Plaintiffs allege that Defendants have failed and refused to report and pay fringe benefit
12 contributions for hours worked by their employees for the months October 2021 through
13 December 2022. Am. Compl. ¶ 21, ECF No. 9. Through June 2020, Herron Painting Co. (a
14 California partnership) and Herron Painting, Inc. had consistently reported anywhere from 1 to 7
15 employees per month. Sep. Statement ¶ 50. Then, from July 2020 through September 2021, these
16 Defendants reported zero hours worked by their employees. Id. Defendants have not submitted
17 any contribution reports for the months of October 2021 through February 2025. Id. ¶ 51;
18 Christophersen Decl. ¶ 4. Plaintiffs assert that there are a total of 41 months for which
19 contributions reports have not been submitted. Sep. Statement ¶ 51; Jhans Decl. ¶ 29.
20 E. Requests for Admission
21 Federal Rule of Civil Procedure 36 allows a party to serve on any other party “a written
22 request to admit, for purposes of the pending action only, the truth of any matters within the scope
23 of [discovery] relating to: (A) facts, the application of law to fact, or opinions about either; and (B)
24 the genuineness of any described documents.” Fed. R. Civ. P. 36(a). If the party to whom the
25 request is directed fails to respond within thirty days after being served, the matter is deemed
26 admitted and thus “conclusively established unless the court, on motion, permits the admission[s]
27 to be withdrawn or amended.” Fed. R. Civ. P. 36(a)(3), 36(b). On April 16, 2024, Plaintiffs
1 Decl. ¶¶ 19, 22–25, ECF No. 75 & Exs. G, H, I, J to Jhans Decl., ECF Nos. 75-7, 75-8, 75-9, 75-
2 10. None of the Defendants responded to Plaintiffs’ RFAs, and the deadline for response has
3 expired. Jhans Decl. ¶¶ 22–25. Nor have any of the Defendants moved to withdraw or amend any
4 of their admissions. Id. ¶ 27. Thus, each of Plaintiffs’ RFAs is deemed admitted and thus
5 conclusively established for the purposes of this action.
6 III. LEGAL STANDARD
7 Summary judgment is proper where there is “no genuine dispute as to any material fact and
8 the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The party moving
9 for summary judgment bears the initial burden of identifying those portions of the pleadings,
10 discovery and affidavits that demonstrate the absence of a genuine issue of material fact. Celotex
11 Corp. v. Catrett, 477 U.S. 317, 323 (1986). Material facts are those that may affect the outcome
12 of the case, and a dispute as to a material fact is genuine if there is sufficient evidence for a
13 reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477
14 U.S. 242, 248 (1986).
15 If the moving party meets its initial burden, the opposing party must then set forth specific
16 facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(c)(1); Anderson, 477 U.S.
17 at 250. All reasonable inferences must be drawn in the light most favorable to the nonmoving
18 party. Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004). However, it is not the
19 task of the Court “‘to scour the record in search of a genuine issue of triable fact.” Keenan v.
20 Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). The nonmoving party has the burden “to identify with
21 reasonable particularity the evidence that precludes summary judgment.” Id.; Cafasso, U.S. ex rel.
22 v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1061 (9th Cir. 2011) (The nonmoving party “must
23 set forth non-speculative evidence of specific facts, not sweeping conclusory allegations.”)
24 (citations omitted). Thus, “[t]he district court need not examine the entire file for evidence
25 establishing a genuine issue of fact, where the evidence is not set forth in the opposing papers with
26 adequate references so that it could conveniently be found.” Carmen v. S.F. Unified Sch. Dist.,
27 237 F.3d 1026, 1031 (9th Cir. 2001); Christian Legal Soc. Chapter of Univ. of Cal. v. Wu, 626
1 (citations omitted).
2 “While the evidence presented at the summary judgment stage does not yet need to be in a
3 form that would be admissible at trial, the proponent must set out facts that it will be able to prove
4 through admissible evidence.” Norse v. City of Santa Cruz, 629 F.3d 966, 973 (9th Cir. 2010)
5 (citing Fed. R. Civ. P. 56(c)(4) (“An affidavit or declaration used to support or oppose a motion
6 must be made on personal knowledge, set out facts that would be admissible in evidence, and
7 show that the affiant or declarant is competent to testify on the matters stated.”)). If the
8 nonmoving party fails to identify such evidence, or if it offers evidence that is “merely colorable,
9 or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249–
10 50 (citations omitted).
11 IV. DISCUSSION
12 A. Jurisdiction
13 “Federal courts are courts of limited jurisdiction. They possess only that power authorized
14 by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
15 (1994). As such, “federal courts have an independent obligation to ensure that they do not exceed
16 the scope of their jurisdiction.” Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434
17 (2011); Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1116 (9th Cir. 2004) (noting that district courts
18 are “obligated to consider sua sponte whether [they] have subject matter jurisdiction”). There are
19 two bases for federal subject matter jurisdiction: (1) federal question jurisdiction under 28 U.S.C.
20 § 1331 and (2) diversity jurisdiction under 28 U.S.C. § 1332. A district court has federal question
21 jurisdiction in “all civil actions arising under the Constitution, laws, or treaties of the United
22 States.” Id. at § 1331. A cause of action “arises under federal law only when the plaintiff’s well-
23 pleaded complaint raises issues of federal law.” Hansen v. Blue Cross of Cal., 891 F.2d 1384,
24 1386 (9th Cir. 1989). A district court has diversity jurisdiction “where the matter in controversy
25 exceeds the sum or value of $75,000 . . . and is between citizens of different states, or citizens of a
26 State and citizens or subjects of a foreign state.” Id.
27 Here, the Court has subject matter jurisdiction pursuant to 29 U.S.C. § 1132 (empowering
1 matter jurisdiction pursuant to 29 U.S.C. §§ 185(a), (c) (providing district courts jurisdiction to
2 hear suits to enforce terms of collective bargaining agreements).
3 B. Personal Liability
4 1. Personal Liability as to Kevin and Dora Herron for Obligations of Defendant
Herron Painting Co. (a California Partnership)
5
6 Plaintiffs argue Defendants Kevin Herron and Dora Herron are personally liable for all
7 amounts due as partners of Herron Painting Co. (a California partnership). Mot. at 14. Under
8 California law, all partners in a partnership are jointly and severally liable for the obligations of
9 the partnership. Cal. Corp. Code § 16306(a). See also Samuels v. Lido Dao, 757 F. Supp. 3d 951,
10 966 (N.D. Cal. 2024), motion to certify appeal denied, No. 23-cv-06492-VC, 2025 WL 371797
11 (N.D. Cal. Feb. 3, 2025). However, a partner in a registered limited liability partnership is not
12 liable for the obligations of the partnership that were incurred, created or assumed by the
13 partnership while the partnership was a registered limited liability partnership. Cal. Corp. Code §
14 16306(c). Nor is a person admitted as a partner into an existing partnership personally liable for
15 obligations the partnership incurred before the person was admitted as a partner. Id. § 16306(b).
16 In the Court’s order on Plaintiffs’ motion for default judgment against Entity Defendants,
17 the Court granted Plaintiffs’ motion for default judgment against both Entity Defendants, Herron
18 Painting Co. (a California Partnership) and Herron Painting, Inc. Order on Mot. for Def. J., ECF
19 No. 92. In that order, the Court awarded Plaintiffs damages in the form of unpaid contributions,
20 liquidated damages and interest, as well as attorneys’ fees and costs. Id. at 18, 26–27.
21 It is undisputed that Kevin and Dora Herron are partners of Herron Painting Co. (a
22 California Partnership). See Defs.’ Answer to Am. Compl. ¶¶ 4, 16, ECF No. 22; Ex. J to Jhans
23 Decl. (RFAs to Dora Herron), RFA No. 1, ECF No. 75-10. There is no evidence in the record to
24 indicate that Herron Painting Co. (a California Partnership) is a limited liability partnership, such
25 that its partners would not be liable for the partnership’s obligations. See Cal. Corp. Code §
26 16306(c). Nor is there any evidence that Kevin Herron or Dora Herron was admitted as a partner
27 in Herron Painting Co. after it incurred any liabilities in this action. Thus, under California law,
1 Co. (a California Partnership). Because Herron Painting Co. (a California Partnership) is liable for
2 all amounts awarded to Plaintiffs, Kevin and Dora Herron are likewise jointly and severally liable
3 for all amounts due in this action.
4 Accordingly, the Court finds Kevin and Dora Herron are jointly and severally liable for all
5 amounts due.
6 2. Personal Liability as to Kevin Herron Based on Agreement of Employers
7 Plaintiffs argue that Kevin Herron is personally liable for all contributions under the
8 Agreement of Employers. Mot. at 14. As discussed above, the Court finds that Kevin Herron is
9 personally liable for all amounts due as a partner of Defendant Herring Painting Co. (a California
10 Partnership). Accordingly, the Court need not consider Plaintiffs’ arguments regarding Kevin
11 Herron’s personal liability based on the Agreement of Employers.
12 3. Personal Liability as to Kevin Heron Based on Successorship or Alter Ego
13 Plaintiffs argue that Kevin Herron’s sole proprietorship, Herron Painting Co. (a sole
14 proprietorship) is a successor to and/or alter ego of Defendant Herron Painting, Inc. (a Franchise
15 Tax Board suspended California Corporation). As discussed above, the Court finds that Kevin
16 Herron is personally liable for all amounts due as a partner of Herron Painting Co. (a California
17 Partnership). Accordingly, the Court need not consider Plaintiffs’ arguments regarding
18 successorship or alter ego liability.
19 C. Anticipated Defenses
20 Plaintiffs argue that Defendants may not rely on extrinsic evidence or use contract defenses
21 to Plaintiffs’ claims. Because Defendants did not file an opposition to Plaintiffs’ motion, the
22 Court need not consider these arguments.
23 D. Whether Plaintiffs are Entitled to Summary Judgment on the Amounts they Seek in
Unpaid Contribution and Related Amounts
24
25 The Court finds that Individual Defendants are liable to Plaintiffs for Defendants’ failure to
26 comply with the Bargaining and Trust Agreements. Defendants have not filed an opposition to
27 Plaintiffs’ motion, and have thus not challenged the amounts Plaintiffs seek in unpaid
1 remains on Plaintiffs to show that the uncontroverted evidence they have offered is legally
2 sufficient to support the amounts they seek, as a matter of law.” District Council 16 N. California
3 Health & Welfare Tr. Fund v. Hulsey Contracting Inc., No. 20-cv-02863-JCS, 2023 WL 7563873,
4 at *20 (N.D. Cal. Nov. 13, 2023) (evaluating uncontroverted evidence of damages in determining
5 amounts due on motion for summary judgment in ERISA action for unpaid and late-paid
6 contributions.).
7 Plaintiffs argue that they are entitled to recover $316,433.41, including $292,927.83 in
8 unpaid contributions, liquidated damages and interest, and $2,760.58 in attorneys’ fees and costs,
9 as detailed below:
10
Amounts Sought
11
Work Month Estimated Liquidated 5% interest Subtotal
12 Unpaid Damages (20%) (calculated
Contributions2 through 4/2/25)
13 Oct. 2021 $5,567.16 $1,113.43 $926.44 $7,607.03
Nov. 2021 $5,567.16 $1,113.43 $902.88 $7,583.47
14
Dec. 2021 $5,567.16 $1,113.43 $879.32 $7,559.91
15 Jan. 2022 $5,567.16 $1,113.43 $858.04 $7,538.63
16 Feb. 2022 $5,567.16 $1,113.43 $834.48 $7,515.07
Mar. 2022 $5,567.16 $1,113.43 $811.68 $7,492.27
17 Apr. 2022 $5,567.16 $1,113.43 $788.12 $7,468.71
18 May 2022 $5,567.16 $1,113.43 $765.32 $7,445.91
Jun. 2022 $5,567.16 $1,113.43 $741.76 $7,422.35
19 Jul. 2022 $5,567.16 $1,113.43 $718.20 $7,398.79
20 Aug. 2022 $5,567.16 $1,113.43 $695.40 $7,375.99
Sep. 2022 $5,567.16 $1,113.43 $671.84 $7,352.43
21
Oct. 2022 $5,567.16 $1,113.43 $649.04 $7,329.63
22 Nov. 2022 $5,567.16 $1,113.43 $625.48 $7,306.07
Dec. 2022 $5,567.16 $1,113.43 $601.92 $7,282.51
23
Jan. 2023 $5,567.16 $1,113.43 $580.64 $7,261.23
24 Feb. 2023 $5,567.16 $1,113.43 $557.08 $7,237.67
Mar. 2023 $5,567.16 $1,113.43 $534.28 $7,214.87
25
Apr. 2023 $5,567.16 $1,113.43 $510.72 $7,191.31
26 May 2023 $5,567.16 $1,113.43 $487.92 $7,168.51
Jun. 2023 $5,567.16 $1,113.43 $464.36 $7,144.95
27
Jul. 2023 $5,567.16 $1,113.43 $440.80 $7,121.39
1
Aug. 2023 $5,567.16 $1,113.43 $418.00 $7,098.59
2 Sep. 2023 $5,567.16 $1,113.43 $394.44 $7,075.03
Oct. 2023 $5,567.16 $1,113.43 $371.64 $7,052.23
3
Nov. 2023 $5,567.16 $1,113.43 $348.08 $7,028.67
4 Dec. 2023 $5,567.16 $1,113.43 $324.52 $7,005.11
Jan. 2024 $5,567.16 $1,113.43 $302.48 $6,983.07
5
Feb. 2024 $5,567.16 $1,113.43 $278.92 $6,959.51
6 Mar. 2024 $5,567.16 $1,113.43 $256.12 $6,936.71
Apr. 2024 $5,567.16 $1,113.43 $232.56 $6,913.15
7
May 2024 $5,567.16 $1,113.43 $209.76 $6,890.35
8 Jun. 2024 $5,567.16 $1,113.43 $186.20 $6,866.79
9 Jul. 2024 $5,567.16 $1,113.43 $162.64 $6,843.23
Aug. 2024 $5,567.16 $1,113.43 $139.84 $6,820.43
10 Sep. 2024 $5,567.16 $1,113.43 $116.28 $6,796.87
11 Oct. 2024 $5,567.16 $1,113.43 $93.48 $6,774.07
Nov. 2024 $5,567.16 $1,113.43 $69.92 $6,750.51
12 Dec. 2024 $5,567.16 $1,113.43 $46.36 $6,726.95
13 Jan. 2025 $5,567.16 $1,113.43 $25.08 $6,705.67
Feb. 2025 $5,567.16 $1,113.43 $1.52 $6,682.11
14
Subtotal $228,253.56 $45,650.63 $19,023.56 $292,927.75
15 Total Estimated Unpaid Contributions, Liquidated Damages and $292,927.75
Interest
16 Attorneys’ Fees and Costs
Attorneys’ Fees $20,745.00
17
Costs $2,760.58
18 Total Attorneys’ Fees and Costs $23,505.58
GRAND TOTAL $316,433.333
19
20 Jhans Decl. ¶¶ 29–71, 79–81.
21 1. Damages
22 Plaintiffs argue they are entitled to unpaid contributions, liquidated damages, interest, and
23 attorneys’ fees and costs in the amount of $316,433.41 total, including $228,253.56 in unpaid
24 contributions, $45,650.63 in liquidated damages, and $19,023.56 in interest on delinquent
25
26
3 In their motion and accompanying declarations, Plaintiffs state that they seek $292,927.83 in
unpaid contributions, liquidated damages, and interest, and $316,433.41 overall. Mot. at 1; Jhans
27
Decl. par. 75 (ECF No. 70 at 17). However, Plaintiffs’ monthly estimated unpaid contributions,
1 contributions.
2 ERISA authorizes Plaintiffs to recover unpaid contributions under 29 U.S.C.
3 § 1132(g)(2)(A), interest under § 1132(g)(2)(B), and the greater of interest or liquidated damages
4 under § 1132(g)(2)(C). An award of liquidated damages under 29 U.S.C. § 1132(g)(2)(C) “is
5 mandatory and not discretionary.” Operating Eng’rs Pension Tr. v. Beck Eng'g & Surveying Co.,
6 746 F.2d 557, 569 (9th Cir. 1984). For a mandatory award of liquidated damages, three
7 requirements must be satisfied: (1) the employer must be delinquent at the time the action is filed;
8 (2) the district court must enter a judgment against the employer; and (3) the plan must provide for
9 such an award. Nw. Adm’rs, Inc. v. Albertson’s, Inc., 104 F.3d 253, 257 (9th Cir. 1996). As
10 addressed in the Court’s order granting Plaintiffs’ motion for default judgment against Entity
11 Defendants, Plaintiffs satisfy all three requirements.
12 First, Defendants were delinquent in making their contribution payments and have not
13 submitted contributions reports and paid contributions on hours worked by their employees for the
14 months of October 2021 through February 2025. Christophersen Decl. ¶ 4, ECF No. 73; Jhans
15 Decl. ¶ 29. Plaintiffs have provided a breakdown of all unpaid contributions. Jhans Decl. ¶¶ 30–
16 71. The Parties’ agreements authorize the Board of Trustees to formulate and implement rules
17 regarding the collection of employer contributions, including the methods by which Plaintiffs may
18 estimate unreported amounts due. Id. ¶ 28; First Williams Decl. ¶ 21; Supp. Williams Decl. ¶ 2.
19 Second, the Court has granted default judgment against both Herron Painting Co. (a
20 California partnership) and Herron Painting, Inc., and, as discussed above, finds that Individual
21 Defendants are liable for all obligations of Herron Painting Co. (a California partnership).
22 Pursuant to the terms of the Bargaining and Trust Agreements, Defendants are liable for liquidated
23 damages of 20% for each delinquent contribution that is the subject of litigation and 5% interest
24 per annum on unpaid and late-paid contributions from the date that they were delinquent until
25 present, as well as attorneys’ fees and costs. First Williams Decl. ¶¶ 17–19.
26 Accordingly, the Court finds Plaintiffs have met their burden of showing entitlement to
27 liquidated damages and recommends the Court award unpaid contributions, liquidated damages,
1 2. Attorneys’ Fees
2 Plaintiffs seek $20,745.00 in attorneys’ fees for hours worked by Plaintiffs’ counsel from
3 March 25, 2022 through February 28, 2025. Jhans Decl. ¶¶ 74–79. Plaintiffs also seek
4 reimbursement of costs in the amount of $2,760.58. Id. ¶ 80.
5 ERISA requires the Court to award “reasonable attorney’s fees and costs of the action”
6 when a plaintiff obtains a judgment in their favor or otherwise obtains the relief sought. 29 U.S.C.
7 § 1132(g)(2)(D); Northwest Adm’rs, Inc. v. Albertson’s, Inc., 104 F.3d 253, 253, 258 (9th Cir.
8 1996). Similarly, the Bargaining and Trust Agreements provide that Entity Defendants must
9 reimburse Plaintiffs for attorneys’ fees and any other expenses, including costs and audit fees,
10 incurred in connection with the collection of delinquent contributions. First Williams Decl. ¶ 19.
11 Pursuant to Civil Local Rule 54-5(b)(2)-(3), Plaintiffs’ counsel submitted the Declaration of
12 Siddharth Jhans, which summarizes the background and experience of the attorneys and paralegals
13 who performed work on this matter and their hourly rates. Jhans Decl. ¶ 73. Plaintiffs also
14 provided detailed billing records. Id. ¶¶ 74–79 & Exs. L, M.
15 Reasonable attorneys’ fees are generally based on the traditional “lodestar” calculation set
16 forth in Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). See Fischer v. SJB-P.D. Inc., 214 F.3d
17 1115, 1119 (9th Cir. 2000). A reasonable fee is determined by multiplying (1) “the number of
18 hours reasonably expended on the litigation” by (2) “a reasonable hourly rate.” Hensley, 461 U.S.
19 at 433. The lodestar amount may also be adjusted based on an evaluation of the factors articulated
20 in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975), which have not been
21 subsumed in the lodestar calculation. See Fischer, 214 F.3d at 1119 (citation omitted).
22 a. Reasonableness of Hourly Billing Rate
23 To determine the appropriate lodestar amount, the Court must first assess the
24 reasonableness of counsel’s claimed hourly billing rate. Credit Managers Ass’n of S. California v.
25 Kennesaw Life & Acc. Ins. Co., 25 F.3d 743, 750 (9th Cir. 1994). Courts look to the prevailing
26 market rates in the relevant community for similar work by attorneys of comparable skill,
27 experience, and reputation. Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 979 (9th Cir. 2008).
1 bears the burden to produce sufficient evidence that the rates claimed for its attorneys are in line
2 with prevailing market rates. Fischer, 214 F.3d at 1121 (citing Hensley, 461 U.S. at 433).
3 “Affidavits of the plaintiffs’ attorney and other attorneys regarding prevailing fees in the
4 community, and rate determinations in other cases, particularly those setting a rate for the
5 plaintiffs’ attorney, are satisfactory evidence of the prevailing market rate.” United Steelworkers
6 of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990). Put differently, the party
7 seeking fees bears the burden to prove the reasonableness of hours expended using detailed time
8 records documenting completed tasks and time expended. Hensley, 461 U.S. at 437; Roberts v.
9 City of Honolulu, 938 F.3d 1020, 1024 (9th Cir. 2019) (“It is the responsibility of the attorney
10 seeking fees to submit evidence to support the requested hourly rate.”).
11 When a party seeking fees submits declarations, courts must consider those declarations
12 and cannot substitute that analysis by only considering previous fee awards. Roberts, 938 F.3d at
13 1024 (“The district court diverged from the applicable standard in discarding the declarations
14 entirely and considering only previous fee awards in determining the prevailing market rate.”)
15 (emphasis in original). Indeed, the Ninth Circuit has explained that solely “[e]xamining prior fee
16 awards to [even the same attorneys] in the district [is] not an acceptable substitute for considering
17 the declarations submitted by [that attorney], and explaining why those declarations did or did not
18 establish the prevailing hourly rate in the district.” Id. at 1025.
19 Counsel charged Plaintiffs $285-$325 per hour for a shareholder attorney, $300 per hour
20 for an associate attorney (Senior Counsel), and $165-$185 for a paralegal. Jhans Decl. ¶ 73.
21 Plaintiffs’ counsel has previously been awarded similar rates for their work in similar ERISA
22 cases in this District. See Operating Eng’rs Health & Welfare Tr. Fund for N. California v. FD
23 Underground, Inc., No. 22-cv-04772-TSH, 2024 WL 4627043, at *12 (N.D. Cal. Feb. 9, 2024),
24 report and recommendation adopted, No. 22-cv-04772-VC, 2024 WL 4627126 (N.D. Cal. Feb.
25 26, 2024); Operating Engineers Health & Welfare Tr. Fund for N. California v. Brambila &
26 Kelley Inc., 2023 WL 8482750, at *13 (N.D. Cal. Nov. 9, 2023), report and recommendation
27 adopted, 2023WL 8482866 (N.D. Cal. Dec. 7, 2023). Further, an hourly rate of $650 for lead
1 specialists. Villasenor v. Cmty. Child Care Council of Santa Clara Cty., Inc., 2021 WL 242924, at
2 *9 (N.D. Cal. Jan. 25, 2021); see also Echague v. Metro Life Ins. Co., 69 F. Supp. 3d 990, 996-97
3 (N.D. Cal. 2014) (finding $650 for lead counsel, $250 for associates, and $135 for paralegals was
4 reasonable for ERISA legal professionals in the Bay Area). Here, the billing rates of Plaintiffs’
5 attorneys and paralegals fall at or below comparable rates that other courts have found reasonable
6 for ERISA work in this area. Therefore, the undersigned finds the rates charged by Plaintiffs’
7 attorneys are reasonable.
8 b. Reasonableness of Hours Billed
9 Having determined the reasonable hourly rate to be applied, the Court proceeds to
10 determine the number of hours reasonably expended on the litigation. Fischer, 214 F.3d at 1119.
11 The Court “may not attempt to impose its own judgment regarding the best way to operate a law
12 firm, nor to determine if different staffing decisions might have led to different fee requests.”
13 Moreno v. City of Sacramento, 534 F.3d 1106, 1115 (9th Cir. 2008). The Ninth Circuit has
14 recently explained that “district courts have a duty to ensure that claims for attorneys’ fees are
15 reasonable, and a district court does not discharge that duty simply by taking at face value the
16 word of the prevailing party’s lawyer for the number of hours expended on the case. Rather, a
17 district court must ensure that the winning attorneys have exercised billing judgment.” Vogel v.
18 Harbor Plaza Ctr., LLC, 893 F.3d 1152, 1160 (9th Cir. 2018) (emphasis in original; quotation
19 marks and citations omitted).
20 Plaintiffs’ counsel has submitted detailed billing records. Jhans Decl. ¶ 79, Exs. L, M.
21 The billing records are itemized by timekeeper and clearly detail the amount of time spent on each
22 billed task by each timekeeper. The records do not suggest duplicative billing or an unreasonably
23 high number of hours spent on any one task.
24 However, Plaintiffs also seek relief for work which is clerical in nature. In Missouri v.
25 Jenkins, the Supreme Court observed that “purely clerical or secretarial tasks should not be billed
26 at a paralegal [or lawyer’s] rate, regardless of who performs them.” 491 U.S. 274, 288 n.10
27 (1989). Instead, such clerical tasks should be “subsumed in firm overhead.” Nadarajah v.
1 clerical in nature and should have been subsumed in firm overhead rather than billed at paralegal
2 rates”); Hernandez v. Spring Charter Inc., 2020 WL 1171121, at *7 (N.D. Cal. Mar. 11, 2020)
3 (“preparing proofs of service, processing records, posting letters for mail, photocopying, three-
4 hole punching, internal filing, calendaring, and preparing the summons and complaint for filing
5 have been found to be purely clerical tasks”); League of Wilderness Defs./Blue Mountains
6 Biodiversity Project v. Turner, 305 F. Supp. 3d 1156, 1171 (D. Or. 2018), appeal dismissed sub
7 nom. League of Wilderness Defs./Blue Mountains Biodiversity Project v. United States Forest
8 Serv., 2019 WL 4453723 (9th Cir. Mar. 8, 2019) (“Tasks considered clerical include, but are not
9 limited to, filing motions with the court, filling out and printing documents, preparing affidavits
10 and drafting certificates of service, organizing files, calendaring dates, rescheduling depositions,
11 and sending documents.”) (citation omitted).
12 Thus, the Court finds counsel has submitted a reasonable number of hours billed.
13 However, of the 31.5 paralegal hours billed by Plaintiffs’ counsel, 29 timekeeping entries totaling
14 8.7 hours include some measure of clerical work as defined by judges in this district. Exs. L, M to
15 Jhans Decl. In other cases, judges in this district have deducted 0.1 hour per clerical task
16 interspersed in entries with non-clerical tasks. See Hernandez v. Spring Charter Inc., 2020 WL
17 1171121, at *8 (N.D. Cal. Mar. 11, 2020); Crandall v. Starbucks Corp., 2016 WL 2996935, at *4
18 (N.D. Cal. May 25, 2016). Following this rule and the data above, the Court deducts 5.2 hours of
19 paralegal work time, amounting to a total deduction of $940.00. Accordingly, the Court awards
20 Plaintiffs $19,805 in attorneys’ fees.
21 The entries in question are recreated below:
22
Date Employee Hours Dollars Hours Fee Task
23
After Award
24 Deduction After
Deduction
25 4/17/2024 JC 0.1 $18.50 0.0 $0.00 Review proof of
service affidavits re
26 service of discovery
request and update
27
file regarding same.
4/18/2024 JC 0.1 $18.50 0.0 $0.00 Review
1
compulaw/calendaring
2 re settlement
conference.
3 2/7/2023 NS 0.5 $87.50 0.0 $0.00 Prepare service
packet; finalize and
4 issue same via First
Legal for service on
5
Defendants;
6 2/16/2023 NS 0.3 $52.50 0.2 $35.00 Review scheduling
order; case
7 management; update
compulaw to reflect
8 all relevant court
dates and deadlines
9
associated with same;
10 email assigned
attorney summarizing
11 same;
2/28/2023 NS 0.4 $70.00 0.0 $0.00 Communications with
12
M. Minser re service;
13 update proof of
service packet; finalize
14 and issue same via
First Legal for routine
15 service;
4/3/2023 NS 0.3 $52.50 0.2 $35.00 Review M. Minser’s
16
email communications
17 re proof of services;
Finalize and file
18 Summons Returned
Executed;
19 4/24/2023 NS 0.3 $52.50 0.2 $35.00 Review ORDER re
Request to Continue;
20
case management;
21 update compulaw to
reflect all relevant
22 court dates and
deadlines associated
23 with same; email
assigned attorney
24
summarizing same;
25 7/18/2023 NS 0.3 $52.50 0.2 $35.00 Review Clerk’s Notice
re Telephonic Pre-
26 Settlement Conference
date; update
27
compulaw to reflect
dates and deadlines
1
associated with same;
2 email assigned attorney
summarizing same;
3 9/6/2023 NS 0.3 $52.50 0.2 $35.00 Review Min Entry ;
case management;
4 update compulaw to
reflect all relevant
5
court dates and
6 deadlines associated
with same; email
7 assigned attorney
summarizing same;
8 9/25/2023 NS 0.3 $52.50 0.2 $35.00 Review Civil Minutes
and Settlement
9
Conference date ; case
10 management; update
compulaw to reflect
11 all relevant court
dates and deadlines
12
associated with same;
email assigned attorney
13
summarizing same;
14 10/30/2023 NS 0.1 $17.50 0.0 $0.00 Review Minser's email
communications re
15 settlement conference
calendar evite;
16
communications re
17 time frame; finalize
and issue evites;
18 forward responses re
same to Minser
19 11/29/2023 NS 0.2 $35.00 0.1 $17.50 Run costs and fees
report; update file re
20
same; communications
21 with Minser re findings
11/29/2023 NS 1.0 $175.00 0.8 $140.00 Finalize and file Joint
22 request to continue
settlement conference;
23 issue word version re
same to Judge's
24
proposed order unit
25 accordingly; read
settlement conference
26 statement;
communications re
27
same with Minser;
communications with
1
Minser re issuance;
2 finalize and issue same
to Judge and opposing
3 counsel
12/1/2023 NS 0.1 $17.50 0.0 $0.00 Update zoom link to
4 Trustees re settlement
conference
5
12/19/2023 NS 0.3 $52.50 0.1 $17.50 Review Clerks Notice
6 re Continue of
Settlement
7 Conference; case
management; update
8 compulaw to reflect
all relevant court
9
dates and deadlines
10 associated with same;
email assigned
11 attorney summarizing
same;
12
1/26/2024 NS 0.4 $74.00 0.1 $18.50 Review ORDER re
13 modified schedule,
including Discovery,
14 Trial and related
deadlines) ; case
15 management; update
compulaw to reflect
16
all relevant court
17 dates and deadlines
associated with same;
18 email assigned
attorney summarizing
19 same;
2/15/2024 NS 0.3 $55.50 0.0 $0.00 Review Min Entry ;
20
update file re same;
21 case management;
update compulaw to
22 reflect all relevant
court dates and
23 deadlines associated
with same; email
24
assigned attorney
25 summarizing same;
26
27
3/12/2024 NS 0.1 $18.50 0.0 $0.00 Review Minser's email
1
communications;
2 Prepare and issue
calendar invite for
3 settlement conference
to Trustees;
4 3/18/2024 NS 0.1 $18.50 0.0 $0.00 Communications with
Minser re deadline;
5
follow up email
6 communications with
opposing counsel re
7 deadline; calendar
check in accordingly
8 3/19/2024 NS 0.1 $18.50 0.0 $0.00 Additional follow up
email communications
9
with opposing counsel
10 re deadline; calendar
check in accordingly
11 3/18/2024 NS 0.5 $92.50 0.0 $0.00 Review scheduling
order (discovery, trial
12
dates, etc.) case
13 management; update
compulaw to reflect
14 all relevant court
dates and deadlines
15 associated with same;
email assigned
16
attorney summarizing
17 same;
6/10/2024 NS 1.0 $185.00 0.8 $148.00 Review Certificate of
18 Service submitted by
opposing counsel;
19 update file re same;
review minute entry;
20
update file re same;
21 review ORDER re entry
of default; update file re
22 same; review Minser's
email communications
23 re preparation of same;
review matter; prepare
24
draft for Minser's
25 review; case
management; update
26 compulaw to reflect
all relevant court
27 dates and deadlines
email assigned attorney
1
summarizing same;
2 6/3/2024 NS 0.6 $111.00 0.4 $74.00 Review proof of
service; update file re
3 same; review order;
review brief; confirm
4 calculations;
communications with
5
Minser re font;
6 finalize and format
same; issue brief to
7 opposing counsel;
finalize letter and issue
8 same to Judge; review
out of office message
9
for opposing counsel;
10 communications with
Minser re further
11 handling; forward same
6/4/2024 NS 0.1 $18.50 0.0 $0.00 Review proof of
12
service; update file re
same;
13
6/11/2024 NS 0.1 $18.50 0.0 $0.00 Review proof of
14 service; update file re
same;
15 6/17/2024 NS 0.1 $18.50 0.0 $0.00 Review proof of
service filed by
16
opposing counsel;
17 update file re same
6/18/2024 NS 0.1 $18.50 0.0 $0.00 Review proof of
18 service filed by
opposing counsel;
19 update file re same
6/28/2024 NS 0.1 $18.50 0.0 $0.00 Review proof of
20
service filed by
21 opposing counsel;
update file re same
22 10/11/2024 NS 0.5 $92.50 0.0 $0.00 Review for Case
Management
23
Scheduling ORDER;
24 case management;
update compulaw to
25 reflect all relevant
court dates and
26 deadlines associated
with same; including
27
discovery, pretrial
related deadlines; add
1
reminders to
2 necessary deadlines;
review all for
3 accuracy; email
assigned attorney
4 summarizing same;
5
6 c. Lodestar Calculation
7 Based on this analysis, the Court finds Plaintiffs’ counsel’s rates and hours expended are
8 reasonable and therefore awards Plaintiffs attorneys’ fees in the amount of $19,805.
9 3. Costs
10 The court also will award costs if “the prevailing practice in a given community [is] for
11 lawyers to bill those costs separately from their hourly rates.” Trs. of Constr. Indus. & Laborers
12 Health & Welfare Tr. v. Redland Ins. Co., 460 F.3d 1253, 1258 (9th Cir. 2006) (quotation marks
13 omitted); see 29 U.S.C. § 1132(g)(2)(D). Here, Plaintiffs also seek costs in the amount of
14 $2,760.58, comprised of the Complaint filing fee, service of process fees for service of the
15 Summons and Complaint on Defendants, Legal Research of Defendants. Jhans Decl. ¶ 80 & Exs.
16 L, N. The Court has reviewed the costs and finds them reasonable. See Civil L.R. 54-3(a) (award
17 of the clerk’s filing fee is allowable where, as here it is paid by the claimant); Trs. of the Constr.
18 Indus. & Laborers Health & Welfare Tr., 460 F.3d 1253, 1256-59 (9th Cir. 2006) (approving of
19 awards for computerized research, courier services, facsimile charges, and photocopies); Sheet
20 Metal Workers Local 104 Health Care Tr. v. Nichols Plumbing & Heating, Inc., 2016 WL
21 8313928, at *9 (N.D. Cal. Dec. 19, 2016) (“[C]ourts have routinely awarded costs for service,
22 messenger services, and investigatory fees in actions brought under 29 U.S.C. § 1132(g)(2)(D).”).
23 Therefore, the Court awards costs in the amount of $2,760.58.
24 V. CONCLUSION
25 For the reasons stated above, the Court GRANTS Plaintiffs’ motion for summary
26 judgment against Defendants Kevin Herron and Dora Herron. The Court awards Plaintiffs:
27 (1) Principal in the amount of $228,253.56;
1 (2) Pre-judgment interest in the amount of $19,023.56;
2 (4) Attorneys’ fees and costs in the amount of $22,565.58, representing $19,805 in
3 attorneys’ fees and $2,760.58 in costs.
4 IT IS SO ORDERED.
5 Dated: May 29, 2025
6 TAA. lj
THOMAS S. HIXSON
7 United States Magistrate Judge
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