Filed 1/31/14
                             CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                               FIRST APPELLATE DISTRICT

                                        DIVISION FOUR


AIRLINE PILOTS ASSOCIATION
INTERNATIONAL ET AL.,
          Plaintiffs and Respondents,                A129914

v.                                                   (City & County of San Francisco
UNITED AIRLINES, INC.,                               Super. Ct. No. CGC-07-468937)
          Defendant and Appellant.


                                     I. INTRODUCTION
          California’s Kin Care Law (Lab. Code, § 233) requires employers, who provide
paid sick leave to their employees, to allow employees to use sick leave to care for family
members. United Airlines, Inc. (United) seeks to avoid this state law obligation by the
creation of an employee sick leave plan and trust, which United holds out as being
subject to the Employee Retirement Income Security Act (ERISA) (29 U.S.C. §§ 1001 et
seq.) and, thus, exempt from state regulation.
          In ruling on cross-motions for summary judgment, the trial court determined,
among other things, that application of the Kin Care Law to California domiciled pilots
was not preempted by ERISA. United appeals, contending the trial court erred by
concluding the plan and trust were not within the scope of ERISA and by ruling that the
Airline Pilots Association International (ALPA) had standing to prosecute this case. We
affirm.
                                     II. BACKGROUND
          United maintains a paid sick leave plan for its pilot employees and has done so for
at least ten years. The rate at which United’s pilots accrue paid sick leave is established


                                               1
by the collective bargaining agreement (“CBA”) between ALPA and United. United
“does ‘not permit[ ] pilot employees to use accrued sick leave to attend to an illness of a
child, parent, spouse, or domestic partner.’ ” Thus, for example, when plaintiff Captain
Kathleen Wentworth (Wentworth) sought to use a portion of her accrued paid sick leave
to care for her dying mother, United denied her request and instructed her to take time off
without pay.
A.     United’s Sick Leave Plans and Trusts
       In 1989, United created its Sick Leave Plan (“Plan”) and Sick Leave Trust
(“Trust”). United asserts that the “ ‘primary reason that [it] maintains the sick leave plan
as an ERISA plan is so that it could provide uniform benefits and uniform administration
to all its employees,’ ” without “ ‘having to comply with specific state laws applicable to
sick leave[,]’ ” including California’s Kin Care Law. United’s Plan was amended in
2003 and was largely revised, in relevant part, after the instant action commenced. The
revised Plan and Trust became effective July 2009.1
       The Plan is part of United’s Employee Welfare Benefit Plan. The Plan was
designed “to provide sick leave benefits [ ] to the United employees . . . in the event of an
employee’s sickness . . . .’ ” The Plan states that it is intended to constitute an employee
welfare benefit plan within the meaning of ERISA. Plan documents appoint a plan
administrator and a fiduciary within the meaning of ERISA. From the beginning, the
plan administrator has been a committee of United’s employees. Since 2007, the plan
administrator has been a committee called the Retirement and Welfare Administration
Committee (“RAWAC”), comprised of United senior management employees.
       The participants in the Plan include practically all of United’s employee groups,



1
        Although the 1989 Trust was amended in 2003, before it was substantially revised
in 2009, those prior amendments do not affect the analysis here. When applicable, we
shall refer to the Plan and Trust in effect prior to July 2009 as the “original” Plan and
Trust and the Plan and Trust in effect beginning in July 2009 as the “revised” Plan and
Trust.


                                              2
including pilots. The Plan provides that sick leave benefits “ ‘shall be funded entirely’ by
[the] Trust, which ‘itself shall be funded solely by Company contributions.’ ” The Plan
also provides that sick leave will be paid at a pilot’ s “regular rate of pay . . . up to the
number of hours credited to [the pilot’s] sick leave bank.”
               1.     The Plan and Trust as it Existed Prior to 2009
       The original Trust stated expressly that it was a “grantor trust.”2 According to the
original Plan, United retained the ability to cease contributions to the Trust, if United
decided it was impossible or inadvisable. Further, if United decided to cease making
contributions, the Trust would attempt to pay out any sick leave owed to United
employees. The original Plan also provided that if there were insufficient Trust assets to
meet sick leave liability, United could “in its sole discretion, prescribe the rules for
determining the priority of payment and allocation of available assets.” Pursuant to the
original Plan and Trust, assets held in the Trust would not “revert” to United. However,
an exception existed, in the event United decided to terminate the Trust, and Trust assets
exceeded the benefits to be paid, the Plan permitted the remaining assets to revert to
United.
       The original Trust also stated that the trustee had “no duty to require any
contributions to be made to it or to determine that the contributions received by it comply
with the provisions of the Plan . . . .” According to United, it had a funding policy under
the original Trust, which used historical trends in sick leave usage to forecast the coming
month’s anticipated sick leave payments. United doubled this amount, and then added $1
million to determine its monthly contribution. This prior funding formula was not in
writing.




2
        Later in the opinion, we provide an in-depth discussion regarding grantor trusts
and their significance to the issues on appeal. For now, it is sufficient to note that the
assets in a grantor trust are considered to be owned by the grantor. (See Mead, A Primer
in the Grantor Trust Rules (1990) 69 Mich. B.J. 1152.)

                                                3
       2.      The Plan and Trust Since 2009
       United substantially revised the Trust in 2009. The revised Trust now provides
that the trustee has a right to enforce a contribution obligation against United. United
also hired an actuary to develop a funding formula and that funding policy was approved
by the plan administrator. Under the revised Trust, United is required to make
contributions to the Trust on a monthly basis in amounts calculated to ensure that the
Trust will have sufficient money to cover one month’s worth of sick leave payments.
       However, the revised Plan still allows United, in its sole discretion, to cease
making contributions to the Trust if it determines that contributions are impossible or
inadvisable. United also retains a reversionary interest in trust assets, upon termination
of the Trust and after all benefits owed are paid. According to the deposition testimony
of Lincoln Lounsbury, United’s senior counsel, the revised Trust, like the original Trust,
is a grantor trust. Lounsbury further testified that United had not taken any steps to
change the tax status of the Trust, and he confirmed that the Trust is “still a taxable trust.”
       3.      Payment Scheme under Both Trusts
       Pilots receive wage payments on the first and sixteenth days of each month. Sick
leave benefits are paid to United’s pilots along with their regular pay from one of three
payroll accounts owned by United. The payroll account from which a particular pilot is
paid, depends solely on whether the pilot is paid through direct deposit, a physical
paycheck, or credit union. United transfers money from its main operating account to
cover all payments made out of its payroll accounts. The Trust transfers money to
United’s main operating account in an amount sufficient to cover the current month’s
sick leave liability.
       Under the original Trust, any sick leave pay owed to the pilots was paid on the
sixteenth day of the month following the month in which the leave was taken, and was
combined with the pilots’ regular wages in one paycheck.
       The original Trust provided that the Trustee was authorized “ ‘[t]o make payments
from the Trust Fund . . . to [United] as reimbursement for payments made to Plan
participants or beneficiaries of the Plan’ ” and permitted “ ‘the payment of Trust assets to


                                              4
[United] to reimburse [United] for plan benefits advanced to Plan participants or
beneficiaries on behalf of the Plan or Trust.’ ” Generally, the original Trust transferred
money for benefits to United a day or so in advance of the date the benefits were paid
out. In some instances, however, the benefits were first paid by United and then later
reimbursed by the Trust. For example, during the 64-month period between January
2003 and April 2008, United received reimbursement from the Trust after it had paid sick
leave to pilots on 29 occasions; and received reimbursement on the same day as it made
sick leave payments on another 27 occasions.
       Pursuant to the revised Trust, United is required to make its contribution to the
Trust by the fifth business day of each month, and the Trust now transfers money to
United before United makes sick leave payments to its employees. United retains any
interest earned on money transferred from the Trust and uses it to help fund the next due
payment. Similarly, when a pilot receives sick leave pay and later receives workers’
compensation or state disability for his or her absence, the pilot is required to turn over
any workers’ compensation or state disability payment back to United or the Plan; these
returned payments are not credited to the Trust.
C.     Commencement of Litigation
       In November 2007, three pilots and their union, ALPA (collectively plaintiffs),
sued United, claiming various statutory violations associated with the Plan. Inasmuch as
the instant appeal is limited to plaintiffs’ first cause of action, we confine our discussion
and analysis to plaintiffs’ claim that United’s policy and practice of prohibiting pilot
employees from using accrued “sick leave” to care for ill family member violates
California’s Kin Care Law. (Lab. Code, § 233). Labor Code section 233 states that an
employer that provides paid sick leave to employees must permit employees to use, in
any calendar year, the amount of accrued sick leave the employee would accrue during
six months of employment, to attend to an illness of the employee’s child, parent, spouse,
or domestic partner. Section 233 expressly excludes sick leave benefits provided under
an employee welfare plan that qualifies as an ERISA plan. (Lab. Code, § 233, subd. (b).)



                                              5
       In October 2009, both sides moved for summary judgment. In its motion for
summary judgment, United argued, among other things, that plaintiffs’ claims were
preempted under ERISA and that ALPA lacked standing to bring its claims. By their
motion, plaintiffs argued, among other things, that the Plan, both in its original and
revised form, did not qualify as an employee welfare benefits plan within the meaning of
ERISA because: 1) the Plan was an exempt “payroll” practice; 2) the Trust was a mere
“pass-through” for payments that offered no genuine protection for employees’ sick leave
benefits; and 3) the Trust did not offer actual protection for employees’ benefits because,
as a grantor trust, any money held in the Trust remained the property of United and
subject to the claims of its creditors.
       In granting summary adjudication to plaintiffs, the trial court held that ERISA did
not preempt plaintiffs’ claims because the Trust’s assets were “reachable by United’s
creditors,” and therefore the “employees’ benefits remain[ed] tied to the financial health
of United.” Accordingly, the trial court concluded that the Trust was not really a “ ‘bona
fide separate trust’ ” and failed to comply with the Department of Labor criteria for
ERISA trusts.
                                      III. DISCUSSION
       Despite the voluminous record on appeal and extensive briefing, this appeal raises
essentially a single legal issue—namely, whether United’s Plan, as funded by the Trust
qualifies as an ERISA plan, thus preempting plaintiffs’ Kin Care Law claim. For the
reasons discussed below, we conclude that it does not. We begin our analysis with a brief
review of the governing legal principles.
A.     Standard of Review
       We review a grant of summary judgment de novo, considering “ ‘all of the
evidence set forth in the [supporting and opposition] papers, except that to which
objections have been made and sustained by the court, and all [uncontradicted] inferences
reasonably deducible from the evidence.’ ” (Artiglio v. Corning Inc. (1998) 18 Cal.4th
604, 612.) “In independently reviewing a motion for summary judgment, we apply the
same three-step analysis used by the superior court. We identify the issues framed by the


                                              6
pleadings, determine whether the moving party has negated the opponent’s claims, and
determine whether the opposition has demonstrated the existence of a triable, material
factual issue.” (Silva v. Lucky Stores, Inc. (1998) 65 Cal.App.4th 256, 261.) If there is
no triable issue of material fact, “we affirm the summary judgment if it is correct on any
legal ground applicable to this case, whether that ground was the legal theory adopted by
the trial court or not, and whether it was raised by [the moving party] in the trial court or
first addressed on appeal.” (Jordan v. Allstate Ins. Co. (2007) 148 Cal.App.4th 1062,
1071.)
B.       ERISA
         “ERISA is a comprehensive federal law designed to promote the interests of
employees and their beneficiaries in employee pension and benefit plans. [Citation.] As
a part of this integrated regulatory system, Congress enacted various safeguards to
preclude abuse and to secure the rights and expectations that ERISA brought into being.
[Citations.] Prominent among these safeguards is an expansive preemption provision,
found at section 514 of ERISA (29 U.S.C. § 1144; [citations].)” (Marshall v. Bankers
Life & Casualty Co. (1992) 2 Cal.4th 1045, 1050–1051.) That provision preempts “any
and all State laws insofar as they . . . relate to any employee benefit plan” governed by
ERISA. (29 U.S.C. § 1144(a).) The parties here vigorously dispute whether plaintiffs’
claim relates to an employee benefit plan within the meaning of section 1144(a) and,
hence, is preempted.
         “The ‘comprehensive and reticulated statute’ [citation] contains elaborate
provisions for the regulation of employee benefit plans.” (Massachusetts v. Morash
(1989) 490 U.S. 107, 113 (Morash).) However, as the United States Supreme Court has
explained in Morash: “The precise coverage of ERISA is not clearly set forth in the Act.
ERISA covers ‘employee benefit plans,’ which it defines as plans that are either ‘an
employee welfare benefit plan,’ or ‘an employee pension benefit plan,’ or both. ERISA
§ 3(3), 29 U.S.C. § 1002(3). An employee welfare benefit plan, in turn, is defined as:
[¶] ‘[A]ny plan, fund, or program which was heretofore or is hereafter established or
maintained by an employer or by an employee organization, or by both, to the extent that


                                              7
such plan, fund, or program was established or is maintained for the purpose of providing
for its participants or their beneficiaries, through the purchase of insurance or otherwise,
. . . medical, surgical, or hospital care or benefits, or benefits in the event of sickness,
accident, disability, death or unemployment, or vacation benefits, apprenticeship or other
training programs, or day care centers, scholarship funds, or prepaid legal services . . . .’
ERISA § 3(1), as codified, 29 U.S.C. § 1002(1).” (Morash, supra, 490 U.S. at p. 113, fn.
omitted.)
       The Act does not further define “ ‘plan, fund, or program’ ” or “benefits in the
event of sickness” and does not specify whether every policy to provide benefits in the
event of sickness fall within its ambit. (See, e.g., Morash, supra, 490 U.S. at pp. 113-115
[discussing Act’s failure to further define “vacation benefits”].) The words “any plan,
fund, or program . . . maintained for the purpose of providing . . . benefits in the event of
sickness” may surely be read to encompass sick leave payments to an employee. (See
ibid.) In this case, the Plan falls squarely within ERISA’s definition of an employee
welfare benefit plan, because it was established by an employer (United) to provide
employees with certain welfare benefits, including sick leave pay. Moreover, there is no
serious dispute that the sick leave plan is governed by formal plan documents,
administered by a third-party claims administrator, provides for comprehensive
administrative procedures for filing and adjudicating claims, and is otherwise held out as
an ERISA plan.
       However, a regulation of the Secretary of Labor excludes certain “ ‘payroll
practice[s]’ ” from the application of ERISA. (Bassiri v. Xerox Corp. (9th Cir. 2006)
463 F.3d 927, 929; Alaska Airlines v. Oregon Bureau of Labor (9th Cir.1997) 122 F.3d
812, 812 (Alaska Airlines).) More specifically, the “payroll practices” exemption
provides that an “ ‘employee welfare benefit plan’ ” for purposes of ERISA “shall not
include . . . Payment of an employee’s normal compensation, out of the employer’s
general assets, on account of periods of time during which the employee is physically or
mentally unable to perform his or her duties, or is otherwise absent for medical
reasons . . . .” (29 C.F.R. § 2510.3–1(b)(2) (emphasis added).) Thus, the payroll


                                               8
practices exemption would apply if (1) the payment of sick leave benefits under the Plan
qualifies as “normal compensation” and (2) the sick leave benefits are paid from United’s
general assets.
       Here, it is undisputed that at all times of the Trust’s operation, sick leave benefits
were and are paid as part of an employee’s “normal compensation” and “out of the
employer’s general assets”—to wit, out of United’s main operating account.
Accordingly, the Plan falls squarely within the plain meaning of a payroll practice. This
is not, however, the end of our analysis.
       While Plan benefits do pass through United’s general corporate account and are
distributed along with regular wages, the Plan is funded by a valid Trust. (See Morash,
supra, 490 U.S. at pp. 114-115 [finding a payroll practice where benefits were paid
directly out of an employer’s general assets, with no connection to any trust]; Funkhouser
v. Wells Fargo Bank, N.A. (9th Cir. 2002) 289 F.3d 1137, 1142-1143 [same].) Moreover,
the revised Trust is the sole source of funding for the Plan; general corporate assets are
never directly used to pay Plan benefits. (See Alaska Airlines, supra, 122 F.3d at
pp. 813-814 [finding a payroll practice where an employer sought reimbursement from
the trust after paying benefits out of its general assets]; Czechowski v. Tandy Corp.
(N.D.Cal. 1990) 731 F.Supp. 406, 408-409 [same].) And, although, under the original
Trust, United occasionally sought reimbursement from the Trust after paying for the sick
leave benefits out of its general assets, the general practice was to transfer money for
benefits to United a day or so before the date the benefits were paid.
       Payment from a separate fund certainly militates towards finding an employee
benefit plan within the meaning of ERISA. (Morash, supra, 490 U.S. at p. 114.)
However, as the Ninth Circuit explained in Alaska Airlines, supra, 122 F.3d 812, an
employer must do more than create a separate fund for benefits payments to qualify for
ERISA preemption; that separate fund must be actually liable for the benefits. (Id. at
pp. 814-815.) For example, in Alaska Airlines, the airline created a welfare plan for the
payment of sick leave and other employee benefits. (Id. at p. 813.) It also created a trust
to administer the benefits payments. (Ibid.) Instead of paying sick leave benefits directly


                                              9
from the trust, however, the airline entered into a repayment agreement with the trust,
under which the airline paid sick leave benefits directly to employees from its general
funds and then sought reimbursement from the trust. (Ibid.) The Ninth Circuit held that
the airline’s system of benefits payments was not an ERISA-regulated plan. (Id. at
pp. 812, 815.) The court explained that the airline was not transmitting funds the trust
had provided to pay the employee; rather, it was paying first, and seeking reimbursement
later. (Id. at p. 814.) The court held that the airline’s payment from its general assets
qualified as a payroll practice under the plain words of ERISA. (Ibid.)
       The court in Alaska Airlines did not, however, end its analysis there. Specifically,
the court also concluded that the “substance” of the airline’s plan was not necessarily one
of a funded benefit program. (Alaska Airlines, supra, 122 F.3d at p. 814.) For example,
there was no clear relation between the amount of funds in the trust and the sick leave
liability accrued by the airline’s employees. (Ibid.) Under the airline’s plan, employees
were dependent on the financial health of their employer, rather than the financial health
of the trust, for their benefits payments. (Ibid.) Accordingly, the court found that the
airline’s system had more of the characteristics of an unfunded payment than of an
ERISA trust fund payment. (Ibid.)
       After the decisions in Morash and Alaska Airlines, the Department of Labor
(DOL) issued several advisory opinions articulating a four-part test for determining
whether a separate trust to pay vacation benefits is an “employee welfare benefit plan”
under ERISA. (See DOL Advisory Opinion No. 2004–08A (Jul. 2, 2004) 2004 WL
2074325 (“Denny’s Opinion”); DOL Advisory Opinion No. 2004–10A (Dec. 30, 2004),
2004 WL 3244869 (“May Company Opinion”).) The DOL test provides: 1) the trust
must have a legal obligation to pay plan benefits; 2) the employer must have a legal
obligation to make contributions to the trust; 3) the contributions must be actuarially
determined or otherwise bear a relationship to the plan’s accruing liability; and 4) the
trust paying the benefits must be a bona fide separate trust. (Denny’s Opinion at *3.)
       The Ninth Circuit has held that advisory opinions interpreting an ambiguous Labor
regulation—such as the one before the Court—are controlling unless they are “ ‘plainly


                                             10
erroneous or inconsistent with the regulation.’ ” (Bassiri v. Xerox Corp., supra, 463 F.3d
at p. 931 citing Auer v. Robbins (1997) 519 U.S. 452, 461.) Thus, providing that the
DOL’s interpretation of when an employee benefits plan is ERISA-regulated is not
plainly erroneous or inconsistent with ERISA, then courts will apply the DOL test for
ERISA-applicability to an employer’s plan.
       Here, after reviewing the applicable law and DOL advisory opinions, the trial
court found that the DOL’s interpretations regarding employee benefits were not plainly
erroneous or inconsistent with ERISA. The trial court then proceeded to apply the
DOL’s four-part test for determining whether a separate trust to pay sick leave benefits is
an “employee welfare benefit plan” under ERISA. The trial court determined the original
Trust did not qualify as an ERISA plan because United’s contributions were not
actuarially determined and did not otherwise bear a resemblance to the original Plan’s
accruing liability. In addition, the court found that neither the original nor the revised
Trust qualified as ERISA plans because they were not bona fide separate trusts under the
law. After explaining that the trusts were grantor trusts under Internal Revenue Code
section 671—which provides that trust assets are considered part of the employer’s
general assets, remaining subject to the claims of an employer’s creditors in the case of
insolvency— the trial court found that the trusts constituted payroll practices exempt
from ERISA.
       Accordingly, we must determine whether the Trust is merely a “pass through,”
considering whether the contributions to the original Trust were actuarially determined
and whether the original or revised Trust qualifies as a bona fide separate fund.
C.     Funding for the Original Trust Was Not Actuarially Determined
       As noted, the trial court determined that United’s Plan, as funded by the original
Trust, did not fall within ERISA’s ambit because, among other things, the original Trust




                                             11
funding was not actuarially determined or otherwise commensurate with the Plan’s
accruing liability.3 We agree.
       1.     Background
       United maintains that its prior funding policy was a set formula under which
United forecasted the coming month’s anticipated sick leave payments using historical
trends, doubling it, and adding $1 million. According to United, the “formula used past
payments to participants to forecast payments required for upcoming payroll periods.”
This formula, however, was never reduced to a writing. Rather, United claims that the
component of the formula that forecast upcoming sick leave was “embedded” in an Excel
spreadsheet. The embedded formula was not known to United’s treasury department
employees who were responsible for transferring funds from the Trust to the Plan. For
example, James Jazdzewski, a senior staff specialist in cash management, testified that he
did not know how the formula worked. Rather, Jazdzewski input various figures, and the
spreadsheet produced a number; he did not know what that number reflected. Not only
did Jazdzewski not know how the contributions were calculated, he was also unaware of
the time periods utilized in determining the historical data.
       Soon after Lincoln Lounsbury joined United as senior counsel in 2006, he began
speaking with various consulting firms regarding the review of the funding policy. At his
deposition, Lounsbury explained that he contacted the consultants not because he thought
the existing policy lacked actuarial analysis, but because “any policy whether actuarial
determined or not has to be reviewed from time to time.” Ultimately, United engaged the
consulting firm Trion to review the funding policy and to make recommendations for
appropriate changes and revisions.
       Trion’s actuary, Paul Hitchcox, testified that for a period of time prior to July
2009, the Excel spreadsheet was not functioning the way it had been designed to work.
Specifically, Hitchcox testified that the prior funding method “produced a weekly

3
       To the extent plaintiffs claim that the trial court erred in determining that the
revised Trust was actuarially determined, that issue is not presently before us as plaintiffs
have not appealed from that or any other ruling.

                                             12
estimate of the sick leave payments. That weekly estimate was updated each month. The
monthly update broke so it was frozen–the base that it worked from was frozen at some
[unknown] point in time . . . and continued to use . . . an old number.” Hitchcock
characterized the former month-by-month plan as having “specious accuracy” and
“arbitrary monthly adjustments with very little logic . . . to them.”
       2.     Analysis
       “In enacting ERISA, Congress’ primary concern was with the mismanagement of
funds accumulated to finance employee benefits and the failure to pay employees benefits
from accumulated funds. [Citation.] To that end, it established extensive reporting,
disclosure, and fiduciary duty requirements to insure against the possibility that the
employee’s expectation of the benefit would be defeated through poor management by
the plan administrator.” (Morash, supra, 490 U.S. at p. 115.) It stands to reason that one
way of safeguarding against the mismanagement of funds is for the contributions to be
actuarially determined or otherwise bear a relationship to the plan’s accruing liability.
(See Alaska Airlines, supra, 122 F.3d at p. 815; Denny’s Opinon at *3.)
       Here, if the funding formula operated as United states it did (double forecast plus
$1 million), it would seem to bear a relationship to the plan’s accruing liability.
However, the record indicates that United did not always use the same period of time to
determine the forecast and that the factors used in the forecast were not entirely clear.
Accordingly, the prior funding method produced arbitrary results. This suggests that the
original Trust offered no real protection for employees’ benefits. In other words,
contributions to the original Trust did not bear a consistent relationship to the Plan’s
accruing liability. (See Alaska, supra, 122 F.3d at p. 815.) Without a consistent
relationship to the accruing liability for benefits, the degree of risk depended on the
financial health of United, not the Trust. (Ibid.) In sum, funding of the original Trust
was not actuarially determined and did not otherwise bear a relationship to the Plan’s
accruing liability.




                                             13
D.     Neither the Original Trust nor the Revised Trust Are Bona Fide Separate Trusts
       1.     Grantor Trusts vs. Nongrantor Trusts
       The Internal Revenue Code contains special rules, referred to herein as “grantor
trust” rules, which treat certain grantors of trusts as the owners of all or certain portions
of the property in those trusts. (See 26 U.S.C. (hereafter Int. Rev. Code) §§ 671-678.)
The grantor is the person or corporation who actually places the funds in trust. (See
Mead, A Primer in the Grantor Trust Rules, supra, Mich. B.J. at p. 1152.) The purpose
of the grantor trust rules is to prevent the use of a temporary or incomplete transfer in
trust as a means of tax avoidance. (Crane v. Commissioner (1st Cir. 1966) 368 F.2d 800,
802; Scheft v. Commissioner (1972) 59 T.C. 428, 431; 47B C.J.S. (2013) Internal
Revenue, § 453, pp. 424-427.) Accordingly, the grantor trust rules attempt to determine
when a trust should be respected for tax purposes and when it should be ignored. (Soled,
Reforming the Grantor Trust Rules (2001) 76 Notre Dame L. Rev. 375, 379 (Grantor
Trust Rules).) Specifically, the grantor trust rules recognize the separate existence of a
trust when a grantor has parted with dominion and control over the trust corpus, but
ignore the separate existence of a trust when the grantor has retained dominion and
control over trust assets. (Ibid.) Thus, in computing income tax liability, grantors treated
as trust owners are required under Internal Revenue Code section 671 to include income,
deductions, and credits attributable to the portion of the trust owned. (Sollee et al.,
Maximizing the Benefits of Deferred Compensation Plans Funded Through Secular
Trusts (Aug. 1992) 77 J. Tax’n 90 (Aug. 1992) No. 2, Compensation & Benefits at *5
(Compensation & Benefits).) One commentator has referred to Internal Revenue Code
section 671 as making a trust function like a “spaghetti colander”—“[a]ll income,
deductions, and credits against tax of a trust are poured in. If a taxpayer is treated as
having dominion and control over all or a portion of a trust, then items of income,
deductions, and credits against tax attributable to such ownership remain in the spaghetti
colander and the taxpayer must take them into account in computing the taxpayer’s taxes.
The balance of income, deductions, and credits against tax drain through the spaghetti



                                              14
colander and are taxed to the trust or trust beneficiaries . . . .” (Soled, supra, Grantor
Trust Rules, 76 Notre Dame L. Rev. at pp. 389-390, fn. omitted.)
       “By contrast, a nongrantor trust is a separate taxable entity distinct from the
grantor and the trust beneficiaries. (Compensation & Benefits, supra, 77 J. Tax’n 90 at
p. 5.) Generally, a nongrantor trust is taxed under the trust rules of Internal Revenue
Code section 641, which generally conform with the rules for individuals. (Ibid.) To the
extent income is distributed to beneficiaries, the trust is entitled to a deduction and the
beneficiary is required to include the amounts in income, up to the taxable amount of the
trust. (Ibid.)
       In the employment context, employers often will establish a grantor trust and
make contributions in the name of employee beneficiaries to create a source of funding
for otherwise unfunded benefit plans. (See In re Outboard Marine Corp. (Bankr. N.D.
Ill. 2002) 278 B.R. 778, 785.) Inasmuch as the trust corpus technically remains property
of the employer, the employee beneficiaries of the trust are not taxed on their portion of
the trust corpus or proceeds until the assets are actually distributed to the beneficiaries.
(See Int. Rev. Code, 26 U.S.C. § 671 et seq.; McAllister v. Resolution Trust Corp. (5th
Cir. 2000) 201 F.3d 570, 575 (McAllister).) However, as several circuit courts have
explained, such advantageous tax treatment is not extended without certain strings
attached. (Goodman v. Resolution Trust Corp. (4th Cir. 1993) 7 F.3d 1123, 1127
(Goodman); McAllister, supra, 201 F.3d at p. 575; Resolution Trust Corp. v. MacKenzie
(2nd. Cir. 1995) 60 F.3d 972, 974 (MacKenzie).) “Federal tax law conditions the
beneficial treatment of a grantor trust on the requirement that the trust fund remains
subject to the claims of the employer’s creditors as if the assets were the general assets of
the employer. [Citations.])” (Goodman, supra, 7 F.3d at p. 1127.)
       Here, it is undisputed that the trusts at issue are grantor trusts.4 However, United
insists that the trial court “incorrectly assumed” that the availability of trust assets to

4
        Although in the trial court United disputed that the revised Trust was a grantor
trust, on appeal United concedes that it is such a trust.


                                               15
creditors is “ ‘an inherent feature’ ” of all grantor trusts. Rather, according to United, the
availability of trust assets to creditors is an “inherent feature of only a species of grantor
trusts, colloquially known as ‘rabbi trusts.’ ” United maintains that although their trusts
are grantor trusts, they are not, and have never been rabbi trusts.
          2.     Rabbi Trusts vs. Secular Trusts
                 a.     Rabbi Trusts
          The first rabbi trust was developed over thirty years ago by a congregation that
wanted to provide for its rabbi after his retirement, while at the same time protecting him
against any changes in control. (See Corporate Counsel’s Guide to Nonqualified
Deferred Compensation Agreements (Sept. 2012) (hereinafter Corporate Counsel’s
Guide) Part I, Chapter 6, Rabbi Trusts, § 6.3 Overview of rabbi trusts–The first “rabbi
trust” (Overview); In re Outboard Marine Corp., supra, 278 B.R. at p. 785, fn. 6.)
“Although the trust agreement did not allow the congregation to alter, amend, revoke,
change, or annul any of the trust’s provisions, it provided that the trusts assets would be
subject to the congregation’s creditors, just as if the assets remained among the general
assets of the congregation.” (Overview, supra, § 6.3.) Additionally, the rabbi’s interest
in the trust was not subject to assignment, alienation, or attachment, nor to the claims of
the rabbi’s creditors, and it could not otherwise be alienated or encumbered by the rabbi.
(Ibid.)
          Responding to a request for a determination as to whether the rabbi would be
deemed in receipt of current income by virtue of the “funding” of the trust for his benefit,
the Internal Revenue Service (IRS), in a private letter ruling,5 determined that the rabbi
would not be in receipt of current income regarding trust assets that were subject to


5
        IRS private letter rulings have no precedential value. (Int. Rev. Code,
§ 6110(k)(3).) However, they may be used to show how the IRS has ruled on an issue, to
illustrate inconsistent interpretation, or to trace the development of the IRS’s
interpretation of an issue. (See Amergen Energy Co., LLC v. United States (Fed. Cl.
2010) 94 Fed. Cl. 413, 418-419 (Amergen); 13 Mertens Law of Fed. Income Tax’n,
§ 47:154.)


                                               16
congregation’s creditors and that were not paid or made available to the rabbi. (I.R.S.
Priv. Ltr. Rul. (hereinafter “PLR”) 81-13-107 (Dec. 31, 1980) [1980 WL 137740].) The
IRS concluded that the rabbi would not be in receipt of income until the year that the
payments were actually received by or otherwise made available to the rabbi. (Id. at * 2.)
       Today, the term “rabbi trust” is synonymous with a “grantor trust . . . in which an
employer makes contributions to the trust in the name of beneficiaries to create a source
of funding for otherwise unfunded benefit plans. Because the trust corpus technically
remains property of the employer,” the trust beneficiaries are not taxed on their portion of
trust assets or trust corpus “until the assets are actually distributed to the beneficiaries.”
(In re Outboard Marine Corp., supra, 278 B.R. at p. 785.) Moreover, as a condition of
this beneficial tax treatment, “rabbi trusts are required to remain at all times subject to the
claims of the grantor’s general creditors.” (Ibid.)
              b.      Secular Trusts
       Some employers have used “secular trusts” to protect their employees against both
changes of control and corporate insolvency issues. (Corporate Counsel’s Guide, Part I,
Chapter 2, Securing Nonqualified Deferred Compensation, § 2:4 Secular trusts.) A
secular trust is so named to distinguish it from the rabbi trust. (Ibid.) The key distinction
between rabbi trusts and secular trusts is that secular trust assets are separated from the
employer’s assets, and cannot be reached by the company’s creditors. (Ibid.) Thus, a
secular trust not only protects against nonpayment due to a change in control, but also
secures payments against the employer’s insolvency or bankruptcy. (Ibid.) This
protection, however, comes with a price. A secular trust results in immediate taxation to
employees based on the employer’s trust contributions in the year they are contributed,
prior to the employee’s actual receipt of benefits. (Ibid.)
       Here, it is undisputed that the assets and income attributable to the Trust are
taxable to United under Internal Revenue Code section 671. United concedes the Trust is
a grantor trust—i.e. owned by its creator, and it is taxed as such. Yet, United insists that
its grantor trusts are not rabbi trusts because the trust assets are not subject to the claims
of its creditors. However, the IRS’s position is that an employees’ trust—i.e., one that


                                               17
accumulates funds to pay benefits to employees and cannot be reached by employer’s
creditors, cannot be treated as a grantor trust owned by the employer. (Sollee,
Compensation & Benefits, supra, 77 J. Tax’n at p. 91; PLR 92-06-009 (Nov. 11, 1991);
PLR 92-07-010 (Nov. 12, 1991), PLR 92-12-019 (Dec. 20, 1991); PLR 92-12-024 (Dec.
20, 1991).) In other words, the IRS no longer permits a secular trust to be treated as an
employer-grantor trust. (See Corporate Counsel’s Guide, Part I, Chapter 7, Secular
Trusts, § 7:12 Tax ramification of trust income–End of employer-grantor secular trusts.)
       3.     Analysis
       United acknowledges the IRS position6 on secular employer-grantor trusts, but
maintains that this issue is irrelevant in the instant case because the challenged trusts do
not involve retirement or deferred compensation plans. According to United, the tax
implications of the grantor trust rules have no bearing here because the Plan and Trust do
not involve deferred income. We disagree.
       ERISA was implemented to safeguard employees from the abuse and
mismanagement of funds accumulated to finance employee benefits. (Morash, supra,
490 U.S. at p. 112.) ERISA defines an employee benefit plan as “an employee welfare
benefit plan or an employee pension benefit plan or a plan which is both an employee
welfare benefit plan and an employee pension benefit plan.” (29 U.S.C. § 1002(3), italics
added.) Although the topic of grantor trusts arises most frequently in the context of
deferred compensation plans (see Goodman, supra, 7 F.3d at p. 1127 [discussing deferred
compensation agreements]; MacKenzie, supra, 60 F.3d at p. 974 [discussing deferred
executive compensation plans]; McAllister, supra, 201 F.3d at p. 572-575 [discussing
supplemental executive retirement plan], there is nothing to suggest that the federal
interest in regulating grantor trusts is limited to cases involving deferred compensation.




6
        In our request for supplemental briefing, we asked United to explain how its sick
leave trusts can be considered grantor trusts without being considered rabbi trusts, in light
of the IRS’s position that employer-grantor secular trusts are no longer recognized.


                                             18
       For example, in Shoars v. Providian Bancorp Services (N.D.Cal. 2003) 2003 WL
26111761 (Shoars),7 the district court considered a vacation and sick-leave plan similar
to United’s Plan. There, as here, the plan was funded by a separate trust that was for the
sole benefit of the employee plan participants. (Id. at *2.) The employer, Providian,
retained the right to terminate the trust, and upon termination any outstanding balance
would revert to the employer. (Ibid.) There was no explicit provision stating that
Providian owned the trust or that trust assets would be subject to Providian’s creditors.
(See id. at * 2, 4.) Providian argued that under state law the trust would only be subject
to the claims of creditors to the extent of the company’s interest in the trust assets. (Id. at
*4.) Rejecting this argument, the court explained that notwithstanding the predominance
of state law with respect to creating and defining property interests, such interests “are
only defined by state law ‘[i]n the absence of any controlling federal law . . . .’ (Barnhill
v. Johnson [(1992)] 503 U.S. 393, 398.)” (Id. at *5.) Citing Goodman, supra, 7 F.3d at
page 1127, the district court determined there was “a clearly articulated federal interest in
treating the assets in a grantor trust as part of the employer’s general assets: ‘[f]ederal tax
law conditions the beneficial tax treatment of a grantor trust on the requirement that the
trust fund remains subject to the claims of the employer’s creditors as if the assets were
the general assets of the employer.’ [Citation.]” (Shoars, supra, at *5.) The court
further found that neither state law nor the terms of the plan and trust overcame this
federal interest. (Ibid.)
       In this case, as in Shoars, there is a clearly articulated federal interest in treating
the assets in the grantor trusts as part of United’s general assets, and thus subject to the


7
       Although we may not rely on unpublished California cases, the California Rules of
Court do not prohibit citation to unpublished federal cases, which may properly be cited
as persuasive, although not binding, authority. (Cal. Rules of Court, rule 8.1115; In re
Farm Raised Salmon Cases (2008) 42 Cal.4th 1077, 1096, fn. 18; Landmark Screens,
LLC v. Morgan, Lewis & Bockius, LLP (2010) 183 Cal.App.4th 238, 251, fn. 6; Pacific
Shore Funding v. Lozo (2006) 138 Cal.App.4th 1342, 1352, fn. 6.)




                                               19
claims of United’s creditors. Contrary to United’s suggestion, the grantor trust rules are
not limited to the type of benefit to be funded. Rather, the critical issue is the ownership
of the trust. Here, it is undisputed that United is the owner of the trusts and it has
included the trusts’ income on its own tax returns, and has paid taxes on that income.
Equally established is that United employees are not taxed on this income until the time
of distribution. United’s position that the trusts’ assets are not subject to United’s
creditors is fundamentally inconsistent with the tax treatment of United as the owner of
the trusts. The beneficial tax treatment of a grantor trust is conditioned on “the
requirement that the trust fund remains subject to the claims of the employer’s creditors
as if the assets were the general assets of the employer. [Citations.])” (Goodman, supra,
7 F.3d at p. 1127.)
       In a series of private letter rulings addressing deferred compensation plans, the
IRS has taken the position that grantor trusts cannot exist without there being a rabbi
trust. (See Rabitz, An Overview Concerning Certain Recent Changes for Foreign
Compensatory Trusts: 402(B) Trusts, Grantor Trusts and “Rabbi” Trusts (1999) 4 Fla.
Tax Rev. 429, 479; PLR, supra, 92-06-009; PLR, supra, 92-07-010; PLR, supra, 92-12-
019; PLR, supra, 92-12-024.) Although private letter rulings have no precedential value
and do not in any way bind this court, they are, nevertheless, an instructive tool regarding
the IRS’s thinking about a particular issue, which in the instant case is the topic of
employer-grantor trusts. (See Amergen, supra, 94 Fed. Cl. at pp. 418-419); Thom v.
United States (8th Cir. 2002) 283 F.3d 939, 943, fn. 6.)
       United makes much of the fact that the grantor trusts at issue fund employee
welfare benefit plans and not retirement or deferred compensation plans subject to
Internal Revenue Code sections 402(a) and 402(b); this, however, is a distinction without
a difference. Indeed, the IRS has applied the same reasoning set forth in its rulings on
deferred compensation secular employer-grantor trusts to an employee welfare benefit
plan and determined that an employer-secular grantor trust was “fundamentally
inconsistent with the treatment of the employer as the owner of the trust” under the
grantor trust rules. (PLR 93-25-050 (Mar. 30, 1993) [1993 WL 222191] at *12-13.)


                                              20
       That the grantor trusts at issue fund welfare benefit plans as opposed to a pension
or other type of traditional deferred compensation plan cannot overcome the federal
interest in treating the assets in trusts as part of United’s general assets. In light of this
interest, the assets in the trusts must be available to United’s creditors in the event of
insolvency, thus leaving employees’ sick leave benefits at risk until the moment the
benefits are actually paid. A benefit plan is beyond the scope of ERISA if the degree of
risk that employees will not be paid benefits “depend[s] on the financial health of the
employer, not the fund.” (Alaska Airlines, supra, 122 F.3d at p. 815.)
       Accordingly, we conclude ERISA preemption does not apply in the instant case.
(See Morash, supra, 490 U.S. at pp. 115-116.)
E.     Standing
       United argues that ALPA lacks standing to sue under the Kin Care Law. “ ‘[A]
plaintiff generally must assert his own legal rights and interests, and cannot rest his claim
to relief on the legal rights or interests of third parties.’ ” (Independent Roofing
Contractors v. California Apprenticeship Council (2003) 114 Cal.App.4th 1330, 1341,
quoting Warth v. Seldin (1975) 422 U.S. 490, 499.) Nevertheless, “[e]ven in the absence
of injury to itself, an association may have standing solely as the representative of its
members.” (Warth, supra, 422 U.S. at p. 511.) “[A]n association has standing to bring
suit on behalf of its members when: (a) its members would otherwise have standing to
sue in their own right; (b) the interests it seeks to protect are germane to the
organization’s purpose; and (c) neither the claim asserted nor the relief requested requires
the participation of individual members in the lawsuit.” (Hunt v. Washington Apple
Advertising Comm’n (1977) 432 U.S. 333, 343 (Hunt); see Brotherhood of Teamsters &
Auto Truck Drivers v. Unemployment Ins. Appeals Bd. (1987) 190 Cal.App.3d 1515,
1521-1522 (Brotherhood of Teamsters.) Thus, “[u]nder the doctrine of associational
standing, an association that does not have standing in its own right may nevertheless
have standing to bring a lawsuit on behalf of its members.” (Amalgamated Transit
Union, Local , AFL-CIO v. Superior Court (2009) 46 Cal.4th 993, 1003 (Amalgamated
Transit).)


                                               21
       United acknowledges that a labor union, such as ALPA, may have associational
standing in some instances, but asserts that in Amalgamated Transit, supra, 46 Cal.4th
998, the California Supreme Court foreclosed ALPA’s standing in the instant case. We
disagree.
       In Amalgamated Transit, two labor unions and seventeen individuals filed suit
against transit company employers, alleging that the employers failed to provide
employees with meal and rest periods as required by law, and seeking unpaid wages, and
civil penalties. (46 Cal.4th at pp. 998-999.) Plaintiffs asserted violations of the Unfair
Competition Law (Bus. & Prof. Code, § 17200 et seq. (UCL) and the Labor Code Private
Attorney General Act of 2004 (Lab. Code, § 2698 et seq. (PAGA)), seeking injunctive
relief, restitution, and civil penalties. (Id. at pp. 998-1000.) As relevant here, the court
addressed whether a plaintiff labor union that had not suffered actual injury under the
UCL, and that was not an “ ‘aggrieved employee’ ” under the PAGA could nevertheless
bring a representative action under those laws either as an assignee of employees who
had suffered an actual injury and who were aggrieved employees, or as an association
whose members had suffered actual injury and were aggrieved employees. (Id. at
p. 998.) Before delving into this issue, the court summarized the relevant aspects of the
UCL and the PAGA, to wit: The UCL allows a private party to bring an unfair
competition action on behalf of others, but only if the person “ ‘has suffered injury in fact
and has lost money or property as a result of the unfair competition.’ ” (Amalgamated
Transit, supra, 46 Ca1.4th at p.1000.) Also, the PAGA provides that an “ ‘aggrieved
employee’ ” may bring an action to recover civil penalties for violations of the Labor
Code “ ‘on behalf of himself or herself and other current or former employees.’ ” (Id. at
p. 1001.) After determining that the UCL and PAGA claims were not assignable, the
court held that the unions had no standing to maintain the actions as entities in their own
right. (Id. at pp. 1003-1005.) In so holding, the court rejected the application of the
doctrine of associational standing in that case, explaining that the unions neither suffered
an “ ‘injury in fact’ ” for UCL purposes nor could they be considered “aggrieved
employee[s]” under PAGA. (Id. at pp. 1004-1005.)


                                              22
       Contrary to United’s contention, Amalgamated Transit is not dispositive of the
issue on appeal. As the trial court correctly determined, under the express holding of
Amalgamated Transit, ALPA failed to qualify for associational standing under the UCL
because it suffered no injury in fact. The instant case, however, does not involve the
UCL or the PAGA. Rather, our case turns on whether an employer may avoid the
application of the Kin Care Law under the guise of ERISA.
       The Kin Care Law provides that “[a]ny employee aggrieved by a violation of this
section shall be entitled to reinstatement and actual damages or one day’s pay, whichever
is greater, and to appropriate equitable relief.” (Lab. Code, § 233, subd. (d).) By
contrast, the PAGA permits a civil action “by an aggrieved employee on behalf of
himself or herself and other current or former employees” to recover “civil penalties” for
violations of other provisions of the Labor Code. (Lab. Code, § 2699, subds. (a) & (i).)
Although the Kin Care Law and PAGA both reference employees who are “aggrieved”
(see Lab. Code, §§ 233, subd. (d); 2699, subds. (a) & (c)), “[t]he purpose of the PAGA is
not to recover damages or restitution, but to create a means of ‘deputizing’ citizens as
private attorneys general to enforce the Labor Code. (See Nicholson, Businesses Beware:
Chapter 906 Deputizes 17 Million Private Attorneys General to Enforce the Labor Code
(2004) 35 McGeorge L.Rev. 581.)” (Brown v. Ralphs Grocery Co. (2011) 197
Cal.App.4th 489, 501-502.) Indeed, our Supreme Court has noted that the Legislature
specified that “it was . . . in the public interest to allow aggrieved employees, acting as
private attorneys general to recover civil penalties for Labor Code violations . . . .”
(Arias v. Superior Court (2009) 46 Cal.4th 969, 980) and that “an action to recover civil
penalties ‘is fundamentally a law enforcement action designed to protect the public and
not to benefit private parties’ [citation].” (Id. at p. 986.)
       The instant case has none of the hallmarks of a law enforcement action under the
PAGA. ALPA is not seeking civil penalties on behalf of the general public for United’s
violation of the Kin Care Law. Rather, ALPA seeks equitable relief for the benefit of its
members, i.e.—private parties. Specifically, ALPA, acting in its representative capacity,
seeks restitution, injunctive relief, and a declaratory judgment that United’s policy of


                                               23
denying pilot employees the right to use sick leave to care for an ill child, parent, spouse,
or domestic partner violates the Kin Care Law. Seeking relief on behalf of employees
with respect to Labor Code violations committed by an employer is a “union’s
fundamental purpose.” (See Professional Fire Fighters, Inc. v. Los Angeles (1963) 60
Cal.2d 276, 284, overruled on another point in Bishop v. City of San Jose (1961) 1 Cal.3d
56, 63, fn. 6 (union had standing to seek declaratory and injunctive relief for Labor Code
violation; see also Monterey/Santa Cruz County Bldg. & Constr. Trades Council v.
Cypress Marina Heights LP (2011) 191 Cal.App.4th 1500, 1521-1522) (union had
standing to bring prevailing wage claim on behalf of members; Brotherhood of
Teamsters, supra, 190 Cal.App.3d at pp. 1521-1524) (unions had standing to bring
mandate petition on behalf of members who had been denied unemployment insurance
benefits during lockout period).)
       Nothing in the PAGA purports to limit the decades of California case law finding
that a union has associational standing to sue on behalf of its members where “(a) its
members would otherwise have standing to sue in their own right; (b) the interests it
seeks to protect are germane to the organization’s purpose; and (c) neither the claim
asserted nor the relief requested requires the participation of individual members in the
lawsuit.” (Hunt, supra, 432 U.S. at p. 343; see Brotherhood of Teamsters, supra, 190
Cal.App.3d at pp. 1521-1522.) The instant action indisputably satisfies the criteria for
associational standing.
       Accordingly, the trial court correctly determined that ALPA has standing to bring
claims for declaratory and injunctive relief under the Kin Care Law.8
                                    IV. DISPOSITION


8
       United does not challenge the trial court’s ruling that plaintiffs’ Kin Care claim
may proceed as a representative action without complying with class action requirements.
(See Amalgamated Transit, supra, 46 Cal.4th at p. 1005 [UCL actions brought on behalf
of others, including those by representative or associational plaintiffs must be brought as
class actions]; Arias v. Superior Court, supra, 46 Cal.4th at pp. 978-980 [same].)
Accordingly, we express no opinion on this issue.


                                             24
               The judgment is affirmed. Plaintiffs are entitled to their costs on appeal.




                                                    _________________________
                                                    REARDON, J.


We concur:


_________________________
RUVOLO, P. J.


_________________________
HUMES, J.




Airline Pilots v. United Airlines A129914



                                               25
Trial Court:                                City and County of San Francisco Superior Court



Trial Judge:                                Hon. Charlotte Woolard



Counsel for Defendant and                   Seyfarth Shaw LLP
Appellant:                                  Robert W. Tollen
                                            Eden Anderson

Counsel for Respondents:                    Altshuler Berzon LLP
                                            Stephen P. Berzon
                                            Barbara J. Chisholm

                                            Airline Pilots Association, International
                                            Russell Woody
                                            Elizabeth Ginsburg




Airline Pilots v. United Airlines A129914


                                                     26
