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

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 11, 2025
• Docket: 24-1499
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 11 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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