Summary
holding that there was no genuine issue regarding ownership of certain property because defendant admitted to that fact in her answer
Summary of this case from J & J Sports Prods., Inc. v. Golden Penny Indus.Opinion
Case No. 13–cv–03898–HSG
09-16-2015
Board of Trustees of the Ken Lusby Clerks & Lumber Handlers Pension Fund, Plaintiff, v. Piedmont Lumber & Mill Company, et al., Defendants.
Sean T. Strauss, Clarissa A. Kang, Trucker Huss, San Francisco, CA, for Plaintiff. William C. Myer, Jr., Truckee, CA, pro se. Benjamin Avi Tulis, Jackson Lewis LLP, Cynthia Jane Emry, Los Angeles, CA, David Richard Johanson, Hawkins Parnell Thackston & Young LLP, Napa, CA, Shane Jefferson Moses, McNutt Law Group LLP, Richard Hill, Danielle Anne Fuschetti, Scott David Helsinger, Littler Mendelson a Professional Corporation, San Francisco, CA, for Defendants. Piedmont Lumber & Mill Company, pro se.
Sean T. Strauss, Clarissa A. Kang, Trucker Huss, San Francisco, CA, for Plaintiff.
William C. Myer, Jr., Truckee, CA, pro se.
Benjamin Avi Tulis, Jackson Lewis LLP, Cynthia Jane Emry, Los Angeles, CA, David Richard Johanson, Hawkins Parnell Thackston & Young LLP, Napa, CA, Shane Jefferson Moses, McNutt Law Group LLP, Richard Hill, Danielle Anne Fuschetti, Scott David Helsinger, Littler Mendelson a Professional Corporation, San Francisco, CA, for Defendants.
Piedmont Lumber & Mill Company, pro se.
ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
HAYWOOD S. GILLIAM, United States District Judge
Plaintiff Board of Trustees of the Ken Lusby Clerks & Lumber Handlers Pension Fund (the “Board”) filed this action to recover a $1,660,266 withdrawal liability assessment imposed by ERISA when Defendant Piedmont Lumber & Mill Company (“Piedmont”) withdrew from participation in the Ken Lusby Clerks & Lumber Handlers Pension Plan (the “Plan”). The Defendants in this action are Piedmont, William Myer, Jr., and Wendy Oliver, each of whom the Board alleges are jointly and severally liable for the withdrawal liability assessment.
Pending before the Court is the Board's Motion for Summary Judgment against all Defendants. See Dkt. No. 101 (“Mot.”). The Court has carefully considered the arguments and evidence offered by the parties, both in their written submissions to the Court and during the hearing on this motion. For the reasons discussed below, the Court GRANTS Plaintiff's Motion for Summary Judgment.
I. FACTUAL BACKGROUND
The Ken Lusby Clerks & Lumber Handlers Pension Fund (the “Fund”) provides retirement benefits for employees on whose behalf employers make contributions. The parties do not dispute that Piedmont participated as an employer in the Fund until it terminated its operations and liquidated its assets in 2010. Shortly after Piedmont closed, the Board determined that its closure constituted a complete withdrawal from the Fund and, on November 29, 2010, sent a notice and demand letter for payment of a $1,660,266 withdrawal assessment. Strauss Decl., Ex. 66. The letter was directed to Piedmont and “each person and entity under common control with it” and set forth a payment schedule for the assessment. Id. The Board sent another demand in January of 2011, id., Exh. 68, and—after failing to receive Piedmont's first scheduled payment—an overdue notice the following month, id., Exh. 69. While Piedmont's attorney signed for several of these letters, id., Exh. 67, 70, Piedmont never requested review of its withdrawal liability or initiated arbitration, and no part of the withdrawal liability has been paid to date.
The Court overrules Oliver's blanket objection to the authenticity of the letters sent by the Board notifying Piedmont of the withdrawal assessment. Under Federal Rule of Evidence 904(b)(4), a document may be authenticated based on its “appearance, contents, substance, internal patterns, or other distinctive characteristics ... taken together with all the circumstances.” The Court finds that the contents of the letters and their production from Piedmont's own files during discovery provide a sufficient basis for authentication under Rule 904(b)(4).
At all times relevant to this action, Piedmont was jointly owned by Myer, its President and CEO, and Oliver, Myer's sister, as trustee of the Oliver Family Trust. See SAC ¶¶ 9–10; Dkt. No. 66 ¶¶ 9–10. Myer arranged for the purchase of a property located at 2345 South Main Street in Lakeport, California (the “Lakeport Property”), see Dkt. No. 108 (“Opp.”) at 7, which was also jointly owned by Myer and Oliver as trustee of the Oliver Family Trust at all times relevant to this action, see Strauss Decl., Exhs. 23–24. Beginning by no later than 2005 and continuing through the termination of Piedmont's operations, the Lakeport Property was rented to Piedmont and other commercial tenants. See Strauss Decl., Exh. 5 (Deposition of Edward P. Smith) at 41:10–17 (testimony from the Chief Financial Officer of Piedmont stating that the company paid $1,500 in rent per month for its subsidiary's use of the Lakeport Property). The tax records produced by Oliver's tax preparer, Carole Keane & Associates, document the rental income and related expenses of the Lakeport Property. See Strauss Decl., Exhs. 32, 71–76. $127,125 of the rent received from 2005 through 2010 was paid by Piedmont. See Strauss Decl., Exh. 13 (Expert Report of Lawrence Wood, CPA, CFP) at Exhibit C.
The Court overrules Oliver's objection to the excerpts from Edward Smith's deposition, which were lodged on the ground that the Board failed to append the court reporter's certification. Opp. at 23. The Court notes that Oliver herself filed that certification in connection with her opposition to the Board's motion. Dkt. No. 110–1 at 7. Accordingly, to the extent the absence of that certification presented an obstacle to the consideration of Mr. Smith's testimony, that obstacle was removed by Oliver's filing. See Orr v. Bank of Am., NT & SA, 285 F.3d 764, 776 (9th Cir.2002) (“[W]hen a document has been authenticated by a party, the requirement of authenticity is satisfied as to that document with regards to all parties.”).
The Court overrules Oliver's objection that these documents are unauthenticated. All seven documents were produced by Oliver's agent during discovery, which is sufficient authentication when offered against Oliver given the absence of adverse interests between Oliver and her agent. See Metro–Goldwyn–Mayer Studios, Inc. v. Grokster, Ltd., 454 F.Supp.2d 966, 972–73 (C.D.Cal.2006) (finding documents produced by party's business partners authentic where their interests were not adverse); In re Homestore.com, Inc. Sec. Litig., 347 F.Supp.2d 769, 781 (C.D.Cal.2004) (finding documents produced by corporation's auditor authenticated by virtue of production in discovery when offered against the corporation's CEO). Notably, Oliver does not argue that the documents produced by Carole Keane & Associates are anything but what they appear to be—records reflecting the rental income and expenses related to the Lakeport Property.
The Court overrules Oliver's objection to the Wood Report's compilation of the rental income paid by Piedmont for use of the Lakeport Property. The table upon which the Board relies for the $127,125 figure was computed from amounts contained in a document produced by Oliver in this litigation. See Wood Report at Exh. C (citing document bates labeled WO 000032–54); Dkt. No. 117 (Reply Declaration of Sean Strauss), Exh. 81 (Register Report of Lakeport Property). Accordingly, Mr. Wood's calculations were based on admissible evidence. See, e.g., Maljack Prods., Inc. v. GoodTimes Home Video Corp., 81 F.3d 881, 889 n. 12 (9th Cir.1996) (documents produced by a party in discovery deemed authentic when offered by the party-opponent). The Court finds that compiling the rents paid from the register and providing a summary is proper expert testimony under Federal Rule of Evidence 702 that would assist the trier of fact. See, e.g., Louis Vuitton Malletier S.A. v. Sunny Merch. Corp., 97 F.Supp.3d 485, 507, 2015 WL 1499449, at *16 (S.D.N.Y.2015) (“While a juror may be able to understand each individual source that Matlins cites, Matlins ‘synthesizes this material and pulls together common themes in reaching his conclusions.’ ”) (citation omitted).
II. LEGAL STANDARD
Under Federal Rule of Civil Procedure 56(a), “the court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Material facts are those that may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute as to a material fact is “genuine” if the evidence is such that “a reasonable jury could return a verdict for the nonmoving party.” See id. “[I]n ruling on a motion for summary judgment, the judge must view the evidence presented through the prism of the substantive evidentiary burden.” Id. at 254, 106 S.Ct. 2505. The question is “whether a jury could reasonably find either that the [moving party] proved his case by the quality and quantity of evidence required by the governing law or that he did not.” Id. “[A]ll justifiable inferences must be drawn in [the nonmovant's] favor.” See United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir.1989) (en banc) (citation omitted).
The moving party must inform the district court of the basis for its motion and identify those portions of the pleadings, depositions, interrogatory answers, admissions and affidavits, if any, that it contends demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A party opposing motion for summary judgment “may not rest upon the mere allegations or denials of [that] party's pleading, but ... must set forth specific facts showing that there is a genuine issue for trial.” See Fed.R.Civ.P. 56(e); see also Liberty Lobby, 477 U.S. at 250, 106 S.Ct. 2505. The opposing party need not show the issue will be resolved conclusively in its favor. See id. at 248–49, 106 S.Ct. 2505. All that is necessary is submission of sufficient evidence to create a material factual dispute, thereby requiring a jury or judge to resolve the parties' differing versions at trial. See id.
“Where the determination of whether an activity constitutes a trade or business under 29 U.S.C. § 1301(b)(1) is ultimately a question of the characterization of a group of undisputed facts, it is properly resolved by summary judgment.” Pension Trust Fund for Operating Engineers v. Tractor Equip. Sales, No. 12–cv–01056–WHO, 2014 WL 5810097, at *3 (N.D.Cal. Nov. 7, 2014) (citations omitted).
III. DISCUSSION
Pension plans like the Fund are federally regulated under ERISA, 29 U.S.C. § 1001 et seq. The MPPAA, 29 U.S.C. § 1381 et seq., amended ERISA to allow pension plans “to impose proportional liability on withdrawing employers for the unfunded vested benefit obligations of multiemployer plans.” Carpenters Pension Trust Fund for N. California v. Underground Const. Co., Inc., 31 F.3d 776, 778 (9th Cir.1994). Where a withdrawing employer's past contributions are insufficient to fund pension plan obligations that have already vested, the amendments permit plans “to make withdrawing employers pay their proportionate share of the deficit such that remaining employers [will] not be unfairly saddled with increased payments.” Id.
This “withdrawal liability” is assessed against the withdrawing “employer,” a term which includes not only the entity obligated to contribute to the pension plan, but also all “trades or businesses” that are under “common control” with that entity. See 29 U.S.C. § 1301(b)(1). Congress enacted section 1301(b)(1) “to prevent businesses from shirking their ERISA obligations by fractionalizing operations into many separate entities.” Teamsters Pension Trust Fund–Bd. of Trustees of W. Conference v. Allyn Transp. Co., 832 F.2d 502, 507 (9th Cir.1987). Under the section 1301(b)(1) framework, withdrawal liability may be imposed against an entity other than the one obligated to contribute to the pension plan so long as (1) the entity is under “common control” with the withdrawing entity; and (2) the entity is a “trade or business.” See 29 U.S.C. § 1301(b)(1). All entities within the controlled group are jointly and severally liable for each other's withdrawal liability. See Bd. of Trustees of W. Conference of Teamsters Pension Trust Fund v. Lafrenz, 837 F.2d 892, 893 (9th Cir.1988)
There is no dispute that Piedmont and Myer, neither of whom opposed the Board's motion for summary judgment, are liable for the withdrawal assessment. Oliver opposes summary judgment against her on three grounds: (1) the leasing activities at the Lakeport Property were not under the same “common control” as Piedmont; (2) those leasing activities did not constitute a “trade or business;” and (3) even assuming the Court disagrees with her first two arguments, Oliver cannot be held personally liable for the withdrawal assessment because the Oliver Family Trust owned the interest in the Lakeport Property. The Court addresses each argument in turn.
A. Piedmont and the Lakeport Property were Under Common Control
Oliver asserts that the Board cannot prevail on summary judgment because it has not produced admissible evidence demonstrating that Myer and the Oliver Family Trust exercised common control over both Piedmont and the Lakeport Property. Opp. at 18–20. Common control for purposes of Section 1301(b) is defined in 26 C.F.R. 1.414(c)–2 and 1.414(c)–4. See 29 U.S.C. § 1301(b)(1) (“The regulations prescribed [to determine common control] shall be consistent and coextensive with regulations prescribed for similar purposes by the Secretary of the Treasury under section 414(c) of Title 26.”). Common control requires that the same group of people or organizations (1) own a controlling interest in each business alleged to be under common control, and (2) accounting only for identical ownership, the same group of people or organizations are in effective control of each business alleged to be under common control. 26 C.F.R. 1.414(c)–2(a), (c). Section 1.414(c)–2(a) defines common control as “any group of trades or businesses which is ... a ‘brother-sister group of trades or businesses under common control’ as defined in paragraph (c) of this section.” Section 1.414(c)–2(c) defines a brother-sister group as “two or more organizations conducting trades or businesses if (i) the same five or fewer persons who are individuals, estates, or trusts own (directly and with the application of § 1.414(c)–4) a controlling interest in each organization, and (ii) taking into account the ownership of each such person only to the extent such ownership is identical with respect to each such organization, such persons are in effective control of each organization.”
The Board has produced numerous documents and deposition testimony demonstrating that Oliver and Myer's complete ownership of both Piedmont and the Lakeport Property satisfy this standard. Oliver has objected to the vast majority of this evidence as unauthenticated or hearsay. However, the Court need not reach these evidentiary objections because the ownership of both Piedmont and the Lakeport Property are established through Oliver's own admissions and uncontested public records.
All objections to evidence not considered in this opinion are overruled as moot, as the challenged evidence did not form the basis of the Court's opinion.
As to the Lakeport Property, Oliver does not appear to contest that Myer and the Oliver Family Trust own the Lakeport Property, which Myer purchased with assets inherited from their mother's trust. Opp. at 7. Lake County records—to which Oliver has not objected—confirm that Myer and the Oliver Family Trust are the owners of that property. See Strauss Decl., Exh. 23 (Lake County Assessor Inquiry listing William Myer, Jr. and Wendy M. Oliver Trustee as the owners of the Lakeport property); id., Exh. 24 (Deed of Real Property conferring title to the Lakeport Property to Myer and Oliver as trustee of the Oliver Family Trust).
Oliver's opposition does contest that summary judgment is warranted as to the Oliver Family Trust's ownership of Piedmont. See Opp. at 5–7 (arguing that the Oliver's ownership of Piedmont is unclear). However, Oliver's Answer to the SAC admitted the allegation that “[a]t all relevant times ... Myer [was] the holder of 68% of the voting stock of Piedmont ... and [t]he Oliver Family Trust ... [was] the holder of 32% of the voting stock of defendant Piedmont.” SAC ¶¶ 9–10; Dkt. No. 66 ¶¶ 9–10; see also American Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226 (9th Cir.1988) (“Judicial admissions are formal admissions in the pleadings which have the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of the fact.”). In addition, each of Oliver's contributions to the Joint Case Management Statements filed in this case represent that Myer and the Oliver Family Trust jointly owned Piedmont. See Dkt. No. 55 at 3 (May 1, 2014) (“Defendants Myer and the Oliver Family Trust are the current owners of [Piedmont].”); Dkt. No. 92 at 3 (Mar. 2, 2015) (“Defendants Myer and the Oliver Family Trust are the current owners of the defunct company.”). Oliver may not move the goal posts by contesting at summary judgment—for the very first time—that she (as trustee of the Myer Family Trust) and Myer jointly own Piedmont. See Hoffman v. Geico Ins. Co., 347 Fed.Appx. 295, 29697 (9th Cir.2009) (“The district court did not err by preventing GEICO from amending its judicial admission after discovery closed.”).
Accordingly, the Court finds that there is no material dispute of fact that Myer and Oliver (as trustee of the Oliver Family Trust) owned and commonly controlled both the Lakeport Property and Piedmont.
B. The Lakeport Property is a Trade or Business
ERISA does not define the term “trade or business” as it is used in Section 1301(b)(1). See Lafrenz, 837 F.2d at 894 n. 6. Section 1301(b)(1) provides that the phrase “trades or businesses (whether or not incorporated) which are under common control” has the same meaning as that provided in the regulations promulgated under section 414(c) of the Internal Revenue Code. 29 U.S.C. § 1301(b)(1). However, “trade or business” is not defined in either section 414(c) or the regulations promulgated thereunder. See Lafrenz, 837 F.2d at 894 n. 6 (observing the same). The Ninth Circuit has provided little guidance as to what constitutes a “trade or business” under section 1301(b)(1), except to note that it is an “essentially factual inquiry.” Id. In the absence of clear authority, the parties propose different tests for determining whether the Lakeport Property's leasing activities qualify as a trade or business.
Oliver argues that the Court should determine whether the Lakeport Property constitutes a trade or business by applying the test articulated in Commissioner v. Groetzinger, 480 U.S. 23, 107 S.Ct. 980, 94 L.Ed.2d 25 (1987). In Groetzinger, the Supreme Court interpreted Internal Revenue Code sections 62(1) and 162(a) to require that an activity must be performed (1) for the primary purpose of income or profit, and (2) with continuity and regularity, to be considered “trade or business.” 480 U.S. at 35, 107 S.Ct. 980. The Court distinguished between “a sporadic activity, a hobby, or an amusement diversion,” on the one hand, and a trade or business, on the other. Id. The Seventh Circuit has adopted the Groetzinger test for determining whether an activity is a trade or business under section 1301(b)(1), Central States v. Fulkerson, 238 F.3d 891, 895 (7th Cir.2001), as has the D.C. Circuit, Connors v. Incoal, Inc., 995 F.2d 245, 251 (D.C.Cir.1993).
The Ninth Circuit has not followed suit. In Lafrenz —decided shortly after Groetzinger —the court conducted a trade or business analysis without reference to Groetzinger. See 837 F.2d at 893–95. With one exception, recent cases in this district have either expressly declined to apply Groetzinger in making section 1301(b)(1) determinations, or, like Lafrenz, have made them without reference to Groetzinger at all. See Pension Trust Fund for Operating Engineers, 2014 WL 5810097, at *7–12 (collecting cases); Carpenters Pension Trust Fund for N. California v. Lindquist, No. 10–cv–03386–SC, 2011 WL 2884850, at *4 n. 7 (N.D.Cal. July 19, 2011), aff'd, 491 Fed.Appx. 830 (9th Cir.2012) (“[T]he Ninth Circuit has not adopted [the Groetzinger test], and the Court declines to do so here.”). But see Bakery & Confectionery Union & Indus. Int'l Pension Fund v. Wilson, No. 09–cv–00256–JF, 2009 WL 1357409, at *2 (N.D.Cal. May 13, 2009) (relying on Groetzinger when conducting a section 1301(b)(1) analysis). Moreover, the Supreme Court in Groetzinger cautioned that its “interpretation of the phrase ‘trade or business' is confined to the specific sections of the [Internal Revenue] Code at issue here. We do not purport to construe the phrase where it appears in other places.” 480 U.S. at 27 n. 8, 107 S.Ct. 980. Accordingly, the Court follows the Ninth Circuit's decision in Lafrenz and declines to apply the test established in Groetzinger to section 1301(b)(1).
Here, the evidence shows that Myer and the Oliver Family trust leased the Lakeport Property to Piedmont from 2005 through 2010, receiving over $120,000 in rent. Wood Report at Exh. C; see also Strauss Decl., Exh. 5 (Deposition of Edward P. Smith) at 41:10–17 (Piedmont paid $1,500 in rent per month for its subsidiary's use of the Lakeport Property). There is no basis for distinguishing this case from Lafrenz or the numerous other cases that have found property leases between two commonly controlled entities to constitute a trade or business under section 1301(b)(1). See Lafrenz, 837 F.2d at 893 (finding a trade or business where the commonly controlled entity leased two trucks back to the withdrawing employer for profit); Lindquist, 2011 WL 2884850, at *5 (finding a trade or business where the commonly controlled entity “leased the 1701 Property to the Company for nearly seven years and received $2,000 per month in revenue from the leasing arrangement”); see also Cent. States Se. & Sw. Areas Pension Fund v. Messina Products, LLC, 706 F.3d 874, 881–83 (7th Cir.2013) (“[L]easing property to a withdrawing employer itself is categorically a trade or business”); Bd. of Trustees, Sheet Metal Workers' Nat. Pension Fund v. Delaware Valley Sign Corp., 945 F.Supp.2d 649, 653 (E.D.Va.2013) (“Although the Fourth Circuit has not yet addressed this issue, those circuit and district courts that have done so are in accord that renting property to a withdrawing employer is ‘categorically’ a trade or business.”) (citation omitted).
Oliver's argument that her involvement with the Lakeport Property was minimal does not preclude a finding that its leasing activities constituted a “trade or business.” For example, the defendants in Lafrenz leased only two trucks back to the withdrawing employer, while the defendant in Lindquist leased a single commercial property and testified that someone else “took care of all operations at the property” and that he “spent less than [five] hours per year” dealing with it. Lindquist, 2011 WL 2884850, at *5. Both decisions still found the leasing operations to constitute a trade or business under section 1301(b)(1). As repeatedly stated by courts conducting the “trade or business” analysis under section 1301(b)(1), “the fact that one of the entities bore nearly all the responsibilities under the lease [does] not insulate the other from being treated as a ‘trade or business' for purposes of § 1301(b)(1).” United Food v. Progressive Supermarkets, 644 F.Supp. 633, 639 (D.N.J.1986) (quoting Pension Benefit Guaranty Corp. v. Cent. City Mo tors, 609 F.Supp. 409, 412 (S.D.Cal.1984)). In other words, that Oliver effectively delegated the day-to-day activities “related to the property does not transform [the] leasing operation from a trade or business into a passive investment.” Lin d quist, 2011 WL 2884850, at *6. The dispositive factor in the Court's analysis is that the Lakeport Property was leased back to the commonly controlled withdrawing employer, an economic relationship that numerous courts have held categorically constitutes a trade or business under section 1301(b)(1).
Accordingly, the commonly controlled Lakeport Property leasing operation poses exactly the type of “fractionalization threat” that section 1301(b)(1) was designed to address. 2011 WL 2884850 at *7. The Court finds that there is no material dispute of fact that the leasing activities of the Lakeport Property constituted a “trade or business” under that section.
C. Oliver is Individually Liable for the Withdrawal Assessment
Finally, Oliver argues that she may not be held individually liable for the withdrawal assessment because the Board has not demonstrated that the alter-ego theory of liability can be applied to a trust or that Oliver failed to follow the formalities required to pierce the corporate veil. Opp. at 21. Oliver's opposition misses the salient legal issue. Oliver has conceded—both in her pleadings and in her responses to the Board's Interrogatories—that the Oliver Family Trust is a revocable trust and that Oliver is the grantor and sole beneficiary. See Dkt. No. 18 ¶ 32; Dkt. No. 66 ¶ 40; Strauss Decl., Exh. 91 at 5 (“The [Oliver Family Trust] is a revocable trust. Wendy M. Oliver is the grantor and sole beneficiary of the trust.”). Revocable trusts, unlike corporations (to which the alter-ego and veil piercing doctrines apply), are not legal entities. Galdjie v. Darwish, 113 Cal.App.4th 1331, 1343, 7 Cal.Rptr.3d 178 (2003); see also id. (“Legal title to property owned by a trust is held by the trustee, and common law viewed the trustee as the owner of the trust's property.”).
Accordingly, the Board need not establish alter-ego liability or pierce the corporate veil for Oliver to be held individually liable. Instead, “[t]here is no distinction in California law between property owned by the revocable trust and property owned by the settlor of such a revocable trust during the lifetime of the settlor.” Carolina Cas. Ins. Co. v. L.M. Ross Law Grp., LLP, 184 Cal.App.4th 196, 208, 108 Cal.Rptr.3d 701 (2010) (citations omitted); cf. Galdjie, 113 Cal.App.4th at 1344, 7 Cal.Rptr.3d 178 (“Assuming that a contract made by a trustee is within his powers, express or implied, it is generally held that the trustee is personally liable upon such a contract.”) (quoting Bogert, Trusts & Trustees (2d ed. rev.1982) § 711, p. 255). In fact, because a trust is not a legal entity and has no capacity to sue or be sued, id. at 1343–45, 7 Cal.Rptr.3d 178, Oliver is the only proper defendant for liabilities incurred by the Oliver Family Trust. At least one other court has found a grantor of a revocable family trust individually liable for a similar ERISA withdrawal liability triggered by the withdrawal of an employer partially owned by the trust. See Vaughn v. Sexton, 975 F.2d 498, 504, n.4 (8th Cir.1992) (holding defendant individually liable because he was the grantor, a trustee, and a beneficiary of the revocable family trust responsible for the withdrawal liability).
Oliver has identified no authority suggesting that her individual liability (or the Board's access to the funds held in the Oliver Family Trust's name) is affected by whether her children are also beneficiaries of the Oliver Family Trust. Opp. at 21. The California Probate Code suggests the Court's analysis would be the same regardless of the Trust's beneficiaries, so long as Oliver retained the power to revoke the trust in whole or in part. See Cal. Prob.Code § 18200 (“If the settlor retains the power to revoke the trust in whole or in part, the trust property is subject to the claims of creditors of the settlor to the extent of the power of revocation during the lifetime of the settlor.”). However, the Court does not reach this question because it finds that Oliver's new assertion that her children are beneficiaries—which flatly contradicts three separate sworn statements explicitly declaring the contrary, Dkt. No. 18 ¶ 32; Dkt. No. 66 ¶ 40; Strauss Decl., Exh. 91 at 5—to constitute sham testimony solely intended to create a triable issue of fact in advance of summary judgment. Hilderman v. Enea TekSci, Inc., No. 05–cv–1049–BTM, 2008 WL 2263058, at *1 (S.D.Cal. June 2, 2008) (“Under the ‘sham affidavit’ rule, a party cannot create a triable issue of fact by introducing a sham affidavit that contradicts his prior deposition testimony or interrogatory responses.”) (citing School District No. 1J, Multnomah County, Oregon v. ACandS, Inc., 5 F.3d 1255, 1264 (9th Cir.1993). Accordingly, the Court will disregard Oliver's new factual assertion that her children are beneficiaries of the Oliver Family Trust.
--------
Accordingly, the Court finds that there is no material dispute of fact that Oliver is jointly and severally liable for the assessment triggered by Piedmont's withdrawal from the Fund.
D. Damages
The Board seeks an award of (1) the unpaid withdrawal liability; (2) interest on the unpaid withdrawal liability; (3) liquidated damages; and (4) attorneys' fees and costs. The Court agrees with the Board that it is entitled to these categories of damages. Title 29 U.S.C. § 1451 provides that, “[i]n any action under this section to compel an employer to pay withdrawal liability, any failure of the employer to make any withdrawal liability payment within the time prescribed shall be treated in the same manner as a delinquent contribution (within the meaning of section 1145 of this title).” 29 U.S.C. § 1451(b). In actions involving delinquent contributions pursuant to section 1145, the following damages are to be awarded: unpaid contributions, interest on the unpaid contributions, liquidated damages as provided by the plan (not to exceed 20% of the unpaid contributions), and reasonable attorneys' fees and costs. See id. § 1132(g)(2); see also Bd. of Trustees of Carpenter Trust Fund for N. California v. JKJ, Inc., No. 09–cv–0636–PJH, 2010 WL 373819, at *6 (N.D.Cal. Jan. 29, 2010) (noting that ERISA requires the award of these categories of damages); Cent. States, Se. & Sw. Areas Pension Fund v. Slotky, 956 F.2d 1369, 1377 (7th Cir.1992) (noting plaintiffs in a withdrawal liability action are entitled to interest, liquidated damages, and attorneys' fees because section 1451 assimilates section 1145).
Oliver does not contest that the Board is entitled to these categories of damages in the amount requested by the Board should it prevail on its claims. Accordingly, the Court finds that the Board is entitled to (1) the withdrawal assessment of $1,660,266; (2) prejudgment interest of $545.84 per day beginning from January 28, 2011 and ending on the date of final judgment; (3) liquidated damages in an amount equal to the amount payable as prejudgment interest; and (4) reasonable attorneys' fees and costs.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS the Board's Motion for Summary Judgment against Piedmont, Myer, and Oliver. Piedmont, Myer, and Oliver are jointly and severally liable for the amounts described in Section III.D of this order. The Board must submit a motion for reimbursement of its reasonable attorney's fees and costs no later than 21 days from the date of this order. The clerk is directed to enter judgment in favor of Board of Trustees of the Ken Lusby Clerks & Lumber Handlers Pension Fund and close the file.