ORDER GRANTING PLAINTIFFS' MOTION FOR ENTRY OF DEFAULT JUDGMENT BY COURT

WILLIAM H. ORRICK, District Judge.

This matter was set for hearing for entry of Judgment by Default against Defendants TKDEMO AND CONCRETE CUTTING, INC.; TKDEMO AND CONCRETE CUTTING, INC. doing business as T K ENGINEERING; TKDEMO AND CONCRETE CUTTING, INC. doing business as T K DEMO AND CONCRETE CUTTING, INC. doing business as T K ENGINEERING (collectively referred to as "TKDEMO AND CONCRETE CUTTING, INC.") and Defendant TIMOTHY BRIAN KRUSE on November 18, 2015 at 2:00 p.m. in Courtroom 2, 17th Floor, 450 Golden Gate Avenue, San Francisco, California. Plaintiffs are The Board of Trustees, in their capacities as Trustees of LABORERS HEALTH AND WELFARE TRUST FUND FOR NORTHERN CALIFORNIA; LABORERS VACATION-HOLIDAY TRUST FUND FOR NORTHERN CALIFORNIA; LABORERS PENSION TRUST FUND FOR NORTHERN CALIFORNIA; AND LABORERS TRAINING AND RETRAINING TRUST FUND FOR NORTHERN CALIFORNIA (hereinafter "Trust Funds" or "Plaintiffs"). Having considered the pleadings and arguments in this matter, the hearing set for November 18, 2015 is VACATED, and good cause appearing, this Court FINDS AS FOLLOWS:

1. The Complaint was filed with this Court on March 24, 2015:

2. The Complaint was served on Defendants, and each of them, on April 1, 2015, for which proofs of service were filed before this Court with the Summons on April 13, 2015;

3. No answer or other responsive pleadings having been filed within the time permitted by law and default was entered against the Defendants on April 29, 2015;

4. On June 21, 1990, TIMOTHY BRIAN KRUSE executed a Memorandum of Agreement on behalf of Kruse Construction (hereinafter "Memorandum Agreement") with the Union, which incorporated by reference the AGC/Laborers Master Agreement. TIMOTHY BRIAN KRUSE incorporated TIM KRUSE CONSTRUCTION, INC. after executing the Memorandum Agreement and assumed its terms adhering to its terms, including making contributions to the Trust for work performed by employees of TIM KRUSE CONSTRUCTION, INC. The Master Agreement by its terms incorporates the various Trust Agreements establishing each of the Trust Funds. Hereinafter, the Master Agreement, Memorandum Agreement, and Trust Agreements are referred to collectively as the "Agreements." Pursuant to the Agreements, TIM KRUSE CONSTRUCTION, INC. is required to contribute and pay to Plaintiffs the hourly amounts required by said Agreements for each hour paid for or worked by any of its employees who performed any work covered by said Agreements, and that it would be subject to and bound by all of the terms, provisions and conditions of the Trust Agreements as incorporated by the terms of the Master Agreement.

5. TIM KRUSE CONSTRUCTION, INC. failed to pay contributions in the amount of $39,279.80 that were revealed as owed to the Trust Funds for work performed by its employees during the time period of February 2009 through June 2012, and related liquidated damages and interest. TIM KRUSE CONSTRUCTION, INC. also timely failed to pay contributions owed based upon work performed by its employees between August 2010 and December 2011for which it owes the Trust Funds entitled to $4,132.61 in liquidated damages and interest. Furthermore, TIM KRUSE CONSTRUCTION, INC. failed to pay the Trust Funds unpaid contributions of $126,547.76 and interest and liquidated damages of $14,000.55 for the period of January 2012 through April 2013. The Trust Funds filed a Complaint in this Court in Case Number CV-12-05322 JSW seeking collection of such sum and its attorneys' fees and costs. This Court entered a judgment in favor of the Trust Funds and against TIM KRUSE CONSTRUCTION, INC. in the amount of $212,183.47 on October 2, 2013 (hereinafter "Judgment"). TIM KRUSE CONSTRUCTION, INC. also failed to pay contributions in the amount of $6,913.62 for the month of May of 2013 which were reported to the Trust Funds as owed, but not paid. This amount was not included in the Judgment.

6. TIM KRUSE CONSTRUCTION, INC. did not satisfy the Judgment. On November 26, 2013, TIMOTHY BRIAN KRUSE incorporated TKDEMO AND CONCRETE CUTTING, INC. in order to evade the obligations under the collective bargaining agreement. The Trust Funds levied against TIM KRUSE CONSTRUCTION, INC.'s bank account and obtained a payment toward the judgment in the amount of $25,239.30. The Trust Funds also levied a writ of execution on Tricorp, a contractor for whom TIM KRUSE CONSTRUCTION, INC. performed work as a subcontractor and thus owed moneys to TIM KRUSE CONSTRUCTION, INC. The Trust Funds obtained payments from such levy toward the judgment in the total amount of $36,030.00.

7. TKDEMO AND CONCRETE CUTTING and TIM KRUSE CONSTRUCTION, INC., operate the same type of business, i.e., a contracting business at the same location and both use the same mailing address. TIM KRUSE CONSTRUCTION, INC. and TKDEMO AND CONCRETE CUTTING, INC. perform the same services and labor for the same clients in the same geographic area, and work orders not completed by TIM KRUSE CONSTRUCTION, INC. prior to its termination were completed by TKDEMO AND CONCRETE CUTTING, INC. TIMOTHY BRIAN KRUSE was the RMO/CEO/Owner of TIM KRUSE CONSTRUCTION, INC. and he is the RMO/CEO/Owner of TKDEMO AND CONCRETE CUTTING, INC. Substantially all of TKDEMO AND CONCRETE CUTTING, INC.'s equipment and machinery is the same equipment and machinery used by TIM KRUSE CONSTRUCTION, INC., and TKDEMO AND CONCRETE CUTTING, INC. did not pay TIM KRUSE CONSTRUCTION, INC. fair market value for the acquisition and use of this equipment and machinery. The sole person with control over Defendants' bank accounts, TIMOTHY BRIAN KRUSE, is the same person who controlled TIM KRUSE CONSTRUCTION, INC.'S bank accounts. TKDEMO AND CONCRETE CUTTING, INC. was incorporated immediately after judgment was entered against TIM KRUSE CONSTRUCTION, INC. TKDEMO AND CONCRETE CUTTING, INC. took over the operations of TIM KRUSE CONSTRUCTION, INC. after TIM KRUSE CONSTRUCTION, INC.'s California Contractor's license was suspended for failure to pay the Judgment. Accordingly, The Trust Funds have shown that two firms have the same common ownership, management, operations, and labor relations. Additionally, Plaintiffs have also established that TKDEMO AND CONCRETE, INC. is used in a sham effort to avoid collective bargaining obligations.

8. After TIMOTHY BRIAN KRUSE filed a Chapter 13 Bankruptcy petition, he began conducting business under the name TKDEMO AND CONCRETE CUTTING using TIM KRUSE CONSTRUCTION, INC.' equipment to finish contracts bid by TIM KRUSE CONSTRUCTION, INC. without satisfying the judgment debt owed to the Trust Funds and without regard to the Trust Funds' lien rights in both his personal and real property. He operates his new business out of the real property owned by TIM KRUSE CONSTRUCTION, INC. paying the mortgage personally or from the income of the TKDEMO AND CONCRETE CUTTING, INC. since he concedes that TIM KRUSE CONSTRUCTION, INC. is out of business. His actions within the bankruptcy Court, including scheduling TIM KRUSE CONSTRUCTION, INC.'s assets as his own free of the Trust Funds' secured claim and not revealing his interest in TKDEMO AND CONCRETE CUTTING, INC. in his initial bankruptcy schedules, evidence his fraudulent intention to retain the property of TIM KRUSE CONSTRUCTION, INC. for his own benefit and depletion at the expense of the Trust Funds. Moreover, TIM BRIAN KRUSE admits that he incorporated TKDEMO AND CONCRETE CUTTING, INC. because his license was suspended for nonpayment of the Judgment obtained by the Trust Funds and he wanted to continue to conduct the same business but could not do so under the name of TIM KRUSE CONSTRUCTION, INC. Accordingly, the Trust Funds have shown that the TIMOTHY BRIAN KRUSE as shareholder misused the corporate form of TIM KRUSE CONSTRUCTION, INC. to perpetrate the fraud of continuing to operate as a contractor as TKDEMO AND CONCRETE CUTTING, INC. using and depleting the corporate assets of TIM KRUSE CONSTRUCTION, INC. as if they were his own without paying the debts of the TIM KRUSE CONSTRUCTION, INC. TIMOTHY BRIAN KRUSE's Chapter 13 Bankruptcy was dismissed on March 19, 2015 for failure to make plan payments and unreasonable delay that is prejudicial to creditors.

9. Defendants, and each of them, have been an employers within the meaning of section 3(5) and section 515 of ERISA (29 U.S.C. §§ 1002(5), 1145) and an employer in an industry affecting commerce within the meaning of section 301 of the LMRA (29 U.S.C. § 185).

10. That Defendants, and each of them, failed to pay delinquent contributions in the amount of $98,537.59 based upon work performed by TIM KRUSE CONSTRUCTION, INC.'s employees and owes Plaintiffs liquidated damages and interest in the total amount of $89,767.13 related to such unpaid contributions and contributions paid by TIM KRUSE CONSTRUCTION, INC., but paid late.

11. That Defendants, and each of them, owe Plaintiffs' attorneys' fees in the total amount of $114,058.50 and costs in the amount of $12,634.86, relating to the collection of the contributions owed to the Trust Funds in this lawsuit, United States District Court for the Northern District Case No. C-12-05322 JSW and Eastern District of California Bankruptcy Case No. 14-22472-B-13J.

IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT judgment be entered in favor of Plaintiffs and against Defendants, and each of them. A separate judgment will issue.