Pension Plan for Pension Trust Fund for Operating Engineers v. Plant

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 11 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT PENSION PLAN FOR PENSION TRUST No. 24-1499 FUND FOR OPERATING ENGINEERS; D.C. No. JAMES E. MURRAY; DAN REDING, 3:21-cv-06766-MMC Plaintiffs - Appellants, MEMORANDUM* v. STEVEN PLANT, personal representative and executor of the estate of Eleanor Dorothy Plant, Defendant - Appellee. Appeal from the United States District Court for the Northern District of California Maxine M. Chesney, District Judge, Presiding Argued and Submitted May 21, 2025 San Francisco, California Before: BERZON, FRIEDLAND, and MENDOZA, Circuit Judges. Plaintiffs Pension Plan for Pension Trust Fund for Operating Engineers, et al., appeal the district court’s grant of summary judgment to Defendant Eleanor Plant on Plaintiffs’ claim for withdrawal liability under the Employee Retirement * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1383(a). We have jurisdiction under 28 U.S.C. § 1291. We reverse and remand for further proceedings consistent with this decision. 1. We review the district court’s decision to grant summary judgment de novo. Desire, LLC v. Manna Textiles, Inc., 986 F.3d 1253, 1259 (9th Cir. 2021). We must determine, viewing the evidence in the light most favorable to the nonmoving party—here, Plaintiffs—“whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law.” Soc. Techs. LLC v. Apple Inc., 4 F.4th 811, 816 (9th Cir. 2021) (quoting KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 408 F.3d 596, 602 (9th Cir. 2005)). ERISA allows multiemployer pension plans to recover withdrawal liability not only from a withdrawing employer but also from members of that employer’s “controlled group.” Teamsters Pension Tr. Fund-Bd. of Trs. of W. Conf. v. Allyn Transp. Co., 832 F.2d 502, 506 (9th Cir. 1987); 29 U.S.C. § 1301(b). If, at the time of the employer’s withdrawal, the same five or fewer people owned a controlling interest of at least eighty percent of the employer, then those owners are part of the “controlled group” and are jointly and severally liable for the employer’s withdrawal liability. See 26 C.F.R. § 1.414(c)-2(c)(1); see also Bd. of Trs. of W. Conf. of Teamsters Pension Tr. Fund v. Lafrenz, 837 F.2d 892, 893 (9th 2 24-1499 Cir. 1988). Here, the statement that Deborah Plant submitted to the district court, Dist. Ct. Dkt. No. 38, and that Plaintiffs cited in their memo in opposition to summary judgment, created a triable issue as to whether Eleanor Plant and her husband together owned at least eighty percent of Kino Aggregates Inc. (“Kino”) when Kino withdrew from the pension plan. Deborah stated that Eleanor and her husband owned 100 percent of Kino and never issued Kino stock. That statement created a factual dispute as to whether the Kino stock that was allegedly promised to Deborah and Candelario Vargas was ever issued to them. It could lead a reasonable juror to conclude that Eleanor and her husband owned the entirety of Kino at the time of its withdrawal from the pension plan. That Deborah’s statement was unsworn does not disqualify it from consideration for purposes of summary judgment—what matters is whether the contents of the statement could be presented in an admissible form at trial. Fraser v. Goodale, 342 F.3d 1032, 1036–37 (9th Cir. 2003) (holding that the unsworn contents of a declarant’s diary could be relied upon in a summary judgment proceeding because the contents of the diary could be admissible at trial even though the diary itself was not admissible). Deborah indicated that she would be available to testify at trial if necessary. 2. “We review evidentiary rulings for an abuse of discretion.” Clare v. 3 24-1499 Clare, 982 F.3d 1199, 1201 (9th Cir. 2020). Even if the admissibility of the 2008– 2015 Kino tax return documents, which were prepared by Kino’s accountant, Norman Newell, presented a legal question subject to de novo review, the district court properly determined on the present record that the documents were not admissible against Eleanor. Plaintiffs argued that the tax documents were admissible under the hearsay exemption for out-of-court statements made by a party-opponent’s agent, Fed. R. Evid. 801(d)(2)(D), and they cited evidence that “Kino Aggregates authorized Norman Newell as its accountant to prepare and file its tax returns.” But Plaintiffs did not establish that Newell was Eleanor’s agent. Newell’s agency relationship with Kino does not establish that Newell was an agent of Eleanor. See, e.g., Restatement (Third) of Agency § 1.04 cmt. i (2006) (“A superior coagent’s right to direct a subordinate coagent does not itself create a relationship of agency between them.”). And Plaintiffs did not present enough other evidence to show that Newell was simultaneously working as Eleanor’s agent. On remand, however, the district court may reconsider the admissibility of the tax documents if any new relevant information about their admissibility comes to light. REVERSED and REMANDED. 4 24-1499