Pens. Plan Guide (cch) P 23934i, 110 F.3d 68 (9th Cir. 1993)

MEMORANDUM^* 

Hawaii Carpenters Trust Funds ("Trust Funds") brought this action to recover delinquent trust fund contributions under ERISA. The delinquent contributions arose out of construction work performed in June, July, and August, 1993, by Union carpenters employed by BCI General Contractors ("BCI"), a nonappealing Defendant. In a previous action, Trust Funds won a judgment for the contributions against BCI, but BCI is without assets. In this action, Trust Funds seeks to hold liable for the contributions Defendants Birtcher/BCI, a Hawaii joint venture of which BCI was the managing venturer at the time the contribution obligations were incurred; Birtcher Construction Limited ("BCL"), BCI's joint venturer in Birtcher/BCI; and various general partners in BCL (collectively, "Defendants").

There are no disputed issues of material fact. On cross-motions for summary judgment, the district court held that Defendants could not be held liable for the June and July 1993 contributions, but were liable for the August 1993 contributions. The district court granted partial summary judgment to Defendants and partial summary judgment to the Trust Funds, and entered judgment against the Defendants "as to any and all unpaid contributions accrued in connection with the Projects in the month of August 1993." Trust Funds now appeal the grant of partial summary judgment to Defendants for the June and July 1993 contributions. Defendants cross-appeal the partial summary judgment for the August 1993 contributions. We have jurisdiction under 28 U.S.C. § 1291, and review de novo. See Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995).

With respect to the contributions for June and July of 1993, we affirm the grant of partial summary judgment to Defendants for the reasons stated by the district court. See Order at 10-21, ER 461-72. In addition, we emphasize that the Trust Funds' asserted theory of partnership liability could only obligate Defendants, at most, for obligations of the joint venture. See Teamsters Pension Trust Fund v. H.F. Johnson, Inc., 830 F.2d 1009, 1015 (9th Cir. 1987) (citing Uniform Partnership Act § 17). Because BCI lacked either actual or apparent authority to obligate the joint venture when it signed the CBA, it obligated only itself, and not the joint venture. Because the trust fund obligations were not joint venture obligations, Defendants cannot be held liable on a partnership theory.

With respect to the contributions for August 1993, we believe the district court erred in granting partial summary judgment to the Trust Funds. The district court correctly noted that by signing the CBA in February 1994, retroactive to August 1, 1993, BCL "unambiguously became a party to the CBA and Trust Agreements and the trust fund obligations set forth therein." In so doing, however, BCL only became liable to contribute for the employees it, BCL, employed directly under the CBA. See Carpenters Pension Trust Fund v. Underground Construction Co., 31 F.3d 776, 780-81 (9th Cir. 1994). BCL did not, by signing its own CBA retroactive to August 1, 1993, assume any contribution obligations for BCI's employees, which are the only obligations in dispute. The record contains no allegations that, when BCL signed its CBA retroactive to August 1, 1993, it was a "single employer" with BCI, or was acting as BCI's "alter ego." BCL therefore is not liable for BCI's contributions under either the successor provisions of the CBA, see CBA § 28.1, ER 41-42, or the "single employer" provisions of 29 U.S.C. § 1301(b) (1). See Underground Const., 31 F.3d at 779; see also New England Mechanical v. Laborers Local Union 294, 909 F.2d 1339, 1343 (9th Cir. 1990) (successor employers not bound by prior CBAs unless they are "alter egos" of previous employer). We conclude that BCL cannot be liable for the August 1993 contributions for the BCI employees, for the reasons stated above and for those stated in the district court order with respect to the June and July 1993 contributions.

Accordingly, we reverse the district court's grant of partial summary judgment for the Trust Funds with respect to the August 1993 contributions. We remand the case for entry of judgment for Defendants.

The authority cited by Defendants in their fee request does not require or authorize the award of attorneys' fees to a prevailing employer in an ERISA action. See 29 U.S.C. § 1132(g) (2) (governing awards of fees to prevailing ERISA plans or fiduciaries); F.R.A.P. 39(a) (governing costs, not fees). In addition, Trust Funds' position, though unsuccessful, was not frivolous. See F.R.A.P. 38. We therefore decline to award attorneys' fees. Because Defendants prevailed on all issues, however, costs of this appeal are to be taxed against Plaintiff Trust Funds. See F.R.A.P. 39(a).

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.