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CATHERINE E. AROSTEGUI, SBN 118756

BEESON, TAYER & BODINE, APC

520 Capitol Mall, Suite 300

Sacramento, CA 9581 4-47 14

Telephone: (916) 325-2100

Facsimile: (916) 325-2120 Email: carostegui@beesontayer.com

Attorneys for PlaintiffTrustees On Behalf of Supplemental Income 401(k) Plan

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

TRUSTEES ON BEHALF OF

SUPPLEMENTAL TNCOME 401(k) PLAN,

Plaintiff,

v.

EASTOPEN, INC., dba HOTEL WHITCOMB,

Case No.

COMPLAINT

Defendant.

PLAINTIFF ALLEGES AS FOLLOWS:

JURISDICTION AND VENUE

1. This action arises under the National Labor Relations Act,29 U.S.C. $ 185, and under the

Employee Retirement Income Security Act,29 U.S.C. $$l 132 and 1 145, for the administration of

trust fund business. This Court has jurisdiction pursuant to 29 U.S.C. $1132(e). This Court is the

proper venue for this action as the Defendant's place of business is in the County of San Francisco.

29 U.S.C. $1132(e)(2).

2. Intradistrict Assignment. The acts and/or omissions alleged herein arose in the County of

San Francisco and thus this matter is properly assigned to the San Francisco Division or the Oakland

Division of the Northern District Court.

PARTIES

3. Plaintiff Trustees on Behalf of Supplemental Income 401(k) Plan ("Plaintiff'or "Trust

Fund") is an employee benefit plan within the meaningof 29 U.S.C. $$1002 and 1132(d). Plaintiff is

COMPLAINT

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a "Trust Fund" originally established by a Trust Agreement. A copy of the Agreement and

Declaration of Trust (restated as of August 6, 2009), and all Amendments, are attached as Exhibit

"A" and incorporated by reference.

4. Plaintiff is informed and believes, and on that basis alleges, that during all relevant times

described in this complaint, Defendant Eastopen, Inc. was a corporation doing business as Hotel

Whitcomb in San Francisco, California.

F'ACTUAL ALLEGATIONS

5. Defendant is a signatory to a Collective Bargaining Agreement with Teamsters Union

Local No. 856, International Brotherhood of Teamsters, which obligates Defendant to make

contributions on behalf of its employees to the Supplemental Income 401(k) Plan. A true and correct

copy of that Agreement is attached as Exhibit "B" and is incorporated by reference.

6. Defendant is also a signatory to a Subscriber Agreement making Defendant a participant

in the Plaintiff Trust Fund and binding Defendant to the terms and conditions of the Trust Agreement

referenced herein. A true and correct copy of the Subscriber's Agreement is attached as Exhiblt"C')

and is incorporated by reference.

7. Article V, Section 5 of the Trust Agreement provides that Employers shall permit an

accountant selected by the Board to enter upon the premises of the Employer and examine and copy

such records as the Board of Trustees may deem necessary to determine whether the Employer is

making full and prompt payment of all sums it is required to pay to the Trust Fund.

8. On or about March 16,2016, Plaintiff s Trust Fund auditor requested that Defendant

contact the Trust Fund auditor's office to schedule an appointment for a payroll audit and provide

Plaintiff with certain payroll and other employer documents and records for the period of January 1,

2012to the present. A true and correct copy of that letter is attached as Exhibit "D" and is

incorporated by reference

9. Although subsequent demands have been made, Defendant has failed to comply with

Plaintiff s request to provide access to Defendant's books and records for the period of January l,

2012 to the present.

///

COMPLAINT

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10. Plaintiff engaged the undersigned attomeys to compel the audit of the Defendant's books

and records.

11. Defendant is obligated to pay the attorney fees and all court costs incurred to enforce

Article V Section 5 of the Trust Agreement.

12. According to the CBA, the Trust Agreement, Subscriber's Agreement and/or 29 U.S.C. $

ll32(g), Defendant is obligated to pay any contributions shown to be due upon completion of the

audit, as well as liquidated damages, interest, costs, attorney fees and audit fees, if applicable.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully requests a judgment ordering the following:

1. That Defendant be required to provide access to the following records, within the next

twenty (20) days, for the period January 1,2012 to the present so that the audit can be

completed:

a. Payroll registers or other documents which show wages paid and hours worked by

month (preferably) or week;

b. State quarterly payroll tax returns;

W-2's;

Monthly transmittals to the Trusts showing the names reported for benefits for both

employer and employee contributions, as applicable;

Supplemental Income 401K enrollment and change forms;

Monthly hours summaries or other document used by you to facilitate accurate

reporting;

g. Detailed documentation of the job classifications of employees NOT reported to the

Trusts; and

h. Monthly transmittals to other Trust Funds.

2. That Defendant be ordered to pay the attomey fees and court costs incurred by Plaintiff to

enforce the audit pursuant to the Trust Agreement and29 U.S.C. g I132(g)(2)(D);

3. That Defendant be ordered to pay all contributions shown to be due, if any, upon

completion of the audit;

c.

d.

e.

f.

COMPLAINT $6/.100346-

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4. That Defendant be ordered to pay liquidated damages, interest, and audit fees on the

contributions, if unpaid contributions are discovered in the audit, and

5. For such other legal or equitable relief as the Court deems appropriate.

Dated: February 1,2017. BEESON, TAYER & BODINE, APC

By: gdL

E. AROSTEG

Attorneys for Trustees On Behalf of

Supplemental lncome 401(k) Plan

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