# Petition for Writ of Certiorari — Carpenters Southern California Administrative Corp. v. El Capitan Development Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2744%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1991 - **Citation:** 502 U.S. 963 ## Text 91-489 OFFI@E OF THE CLERK No. a —— — — — In the Supreme Court OF THE United States OCTOBER TERM, 1991 CARPENTERS SOUTHERN CALIFORNIA ADMINISTRATIVE CORPORATION, Petitioner, VS. EL CAPITAN DEVELOPMENT COMPANY, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE CALIFORNIA SUPREME COURT — —— JAMES P. WATSON*® JOHN T. DECARLO STANTON, Kay & WATSON PATRICK CONNOR 180 Sutter Street, DECARLO, CONNOR & SELVO Third Floor 500 So. Virgil Avenue San Francisco, CA 94104 Suite 320 (415) 788-3496 Los Angeles, CA 90920 DONALD T. MEADERS (213) 738-7959 KINDEL & ANDERSON 555 South Flower Street, 29th Floor Los Angeles, CA 90071-2498 (213) 680-2222 *Counsel of Record BOWNE OF GAN FRANCISCO, INC. + 190 NINTH ST. + 6.F.. CA 94103 + (415) 664-2300 QUESTIONS PRESENTED 1. Does § 514(a) of the Employee Retirement Income Se- curity Act of 1974 (“ERISA”), 29 U.S.C. § 1144(a), preempt Californa Civil Code § 3111, which permits fringe benefit trust funds to record and foreclose mechanics’ liens to secure payment of contributions owed to the funds for work performed by fund participants on the liened property? 2. Does a state lien law, which creates a security interest in improved real property to protect the pension and health benefits of employees who worked on the property, and which is part of a larger statutory framework to protect the workers’ entire wage package, “relate to” ERISA-regulated employee benefit plans in a manner which triggers the preemption clause of § 514(a) of ERISA? 3. In enacting ERISA, did Congress intend to strip employ- ees who receive pension and health benefits from multi-employer trust funds of the protection of state lien laws, while leaving the lien rights of employees who receive fringe benefits directly from their employers undisturbed? ii TABLE OF CONTENTS as Page I ee PED 6 ob kcséecec¥evusvaadinceaeewads l II PEED 0c 5.0 ned dk sd en 60 bb ks bbeeKea Aes 2 Il] PEACE POPU MI sc cen scckcveredecseesens 2 IV STATEMENT OF THE CAGE .....ccccsvccccssccccas 2 A. Preliminary Statement ..........0.ccccccccccces 2 Th FI pin e'vicbuesdeaveuacetenupaears 3 CA. PRUE ok bs oven ceeuceenewacuenesaes 4 V REASONS THE WRIT SHOULD BE GRANTED..... 6 A. The Guidance of This Court is Needed to Resolve a Conflict Among Lower Appellate Courts ......... 6 B. The California Supreme Court’s Decision Ignores the Framework for Preemption Analysis Developed by Bee GE a ccvccncdnussaiapmiuetse een ess 8 C. The Court Should Grant Certiorari to Clarify the Scope of the Holding in Pilot Life Insurance Co. v. | PUTT ere ee ee er PO 15 D. Preemption of State Lien Laws Leaves an Unex- plained “Gap” in the Collection Remedies Available to Multi-Employer Benefit Trust Funds........... 18 FE. Preemption of California Civil Code Section 3111 Disrupts the California Statutory Scheme for Protect- ing the Wages and Benefits of Workmen ......... 20 VI COPING EARN o 5 js ks 5 ckabe cea ethewe sae aeeeens 24 TABLE OF AUTHORITIES CITED Cases Alessi v. Raybestos-Manhattan, Inc. (1981) 451 U.S. 504, ee 10 American Benefit Plan Administrators v. Foley, 2 EBC 1897 CCL ESe Ceol eke css bes yas versed cenees 18 American Telephone and Telegraph Co. v. Merry, (2d Cir. EP OPTI T EEE TT TORT EE Ee 9,22 Carl Allen v. McWilliams Electric Co., (D. Mo. 1980) 494 Ee ee 18 Carpenters Health & Welfare Fund v. Parnas Corp., (1986) ED vn ways es ccbevevederseceses 5, 6-7 Carpenters Health & Welfare Fund of Philadelphia v. Am- oe a ee >, 6 Carpenters Pension Trist v. Kronschnabel, (9th Cir. 1980) 632 F.2d 745, cert. denied (1981) 453 U.s. 922, 101 S.Ct. EEC ceca gicebeVieveoveesnssssnes 6, 22 Carpenters Southern California Administrative Corporation v. El Capitan Development Company, (1991) 53 Cal.3d Ee 5 Connolly Development, Inc. v. Superior Court (1976) 17 ec wesw wre k wks cecu es wees es 6 13, 20 CSCAC v. D&L Camp Construction, (9th Cir. 1984) 738 TOES ES 20 CSCAC v. Majestic Housing, (9th Cir. 1984) 743 F.2d 1341 20 Duffy v. King Cavalier, (1989) 218 Cal.App.3d 1517..... 14 Edwards v. Bethlehem Steel Corp. (Ind. App. 1990), 554 Ne ee ees Caves ene bess cbeeasis ss 7 FMC Corporation v. Holliday (1990) 498 U.S. _,, 111 ee ct ky cu kas eee ek eens see 10, 11 Fort Halifax Packing Co., Inc. v. Coyne (1987) 482 U.S. 1, ES Eee 8, 12, 13 Franchise Tax Board v. Construction Laborers Vacation Trust, (1988) 204 Cal. App.3d 955 ................. 10, 14 iv TABLE OF AUTHORITIES CITED CASES Ironworkers Pension Fund vy. Terotechnology Corporation (1990) 891 F.2d 548, cert. denied, (1991) _-. U.S. ___., NE eh aoe ook ty See kee tetas aeanee 5,7 Jones v. Rath Packing Co., (1977) 430 U.S. 519, 97 S.Ct. Fe Eee a ee eee 11 Laborers Fringe Benefit Funds v. Northwest Concrete & Construction, Inc. (6th Cir. 1981) 640 F.2d 1350, ..... 6, 17 Lane v. Goren, (9th Cir. 1983) 743 F.2d 1340 .......... 14 Lingle v. Norge Division of Magic Chef, Inc. (1988) 486 fs ee sk a rn 11 Mackey v. Lanier Collection Agency & Service (1988) 486 che & | se rrr rrr 6, 10, 14, 19 Malone v. White Motor Corp., (1978) 435 U.S. 497, 98 ee te a ay eg aac ahh we o 8 Martin v. Becker (1915) 169 Cal. 301 ................. 20 Massachusetts v. Morash (1989), 490 U.S. 107, 109 S.Ct. aah ses co kee csc eae eae wee sete eeeuis 12 McMahon v. McDowell, (3d Cir. 1986), 794 F.2d 100... 7 Metropolitan Life Ins. Co. v. Massachusetts (1985) 471 Se ee EE SING wn sok ones kaseebiaeeeeenser ll Morrison-Knudsen Construction Co. v. OWCP (1982) 461 Is wan nnd cdkecadeeseeueeenss 23. NLRB v. Associated General Contractors of California, Inc., ee BE ere 8 Planned Consumer Marketing, Inc. v. Coats & Clark, Inc., (1968) S27 N.Y 3.26 185, $22 M.Bk.2d3 ............. 7 Pilot Life Insurance Co. v. Dedeaux, (1987) 481 U.S. 41, EE onus 55 Cis on vee Senate eS 5, 8,9, 10, 13, 15 Plumber’s Local 458 v. H. Immel, Inc. (1989) 151 Wis. 2d, 8 aR ey lanai aye 6 Retirement Fund of the Fur Mendliaieiiee Industry v. Getto & Getto, Inc., (S.D. N.Y. 1989) 714 F.Supp. 651 = 7 EE Vv TABLE OF AUTHORITIES CITED CASES Retirement Trust Fund of the Plumbing, Etc. v. Franchise Tax Board, (9th Cir. 1990) 909 F.2d 1266............ 10 Sasso v. Vachris (1985) 484 N.E.2d 1359, 494 NYS 2d EE Pn caer hte dF LET Rah Peo tone Meee gig rat 6, 17 Shaw v. Delta Airlines (1983) 463 U.S. 85, 103 S.Ct. 28909, 10 Sheet Metal Workers Pension Plan v. Columbia Savings & Loan Association (1990) 221 Cal.App.3d Supp. 21..... 6,7 Stone v. Stone, (9th Cir. 1980) 632 F.2d 740, cert denied, ta els Be ae OG oe) ee 9, 21 Sturgis v. Miller, F.2d _._ (U.S.C.A. No. 90-15054 SE a OPED ost ce'eccck bessscaneseeuaauen 7,14 Trustees for the Alaska Hotel & Restaurant Employees Health & Welfare Fund v. Hansen, (Alaska 1984) 688 Pu RG K5 Ecc de Kisses ss bebe b eek cans DARE e ees 6 Tuttle v. Montford (1857) 7 Cal. 358 .................. 21 United States v. Carter (1956) 353 U.S. 210 77 S.Ct. 793 22 Vermeer v. Tomken Construction, (1980) 49 Or. App. 37-19 Constitutions California Constitution Article XIV Section 3 ........... 20 Statutes and Codes California Code of Civil Procedure Section 1182......... 20 California Civil Code: EE ik cs ck bo Rea ce eee eke cee 2, 14, 23 SNE EOE Sn eccensres 2, 4, 5, 7, 9, 10, 11, 13, 14, 20, 21, 22 Employee Retirement Income Security Act of 1974: avn euhekbbes Babee eee eee 2, 15, 19 ED ss vob ceed ese0bens wecen keene 18 a rere ere vole ideas 16 vi TABLE OF AUTHORITIES CITED STATUTES AND CODES PIF EETE SORT TET EET UTE TS & hom 5m ke I cc snk eek be eeb an beh eekes ceeees 2 ts. cee biahshu hd eecacha cen 2, 16, 18, 19 28 U.S.C.: GS cc au: abe Gee eh bash eee berate 2 ass cu 6s chk O64 KS Oe e bd OS G0 ea GOK eES 2 29 U.S.C.: ae ee iict ec nue ee Ewe baw eak's 3 ae oes Soar ca kd eee ea ee ES 18 re es eS i ek i idee a aie 19 ED, nas vacnceacessebennenesa 3 rr sr eu weak kb eee 23 re eek kin nb d¥ boa o ee ck beeeewees 23 ee ea od ae ek ee 15 a Seek A kN iR eke nekeaeW adeeb seuen 3 tne capi gn nk eee e aA eke ken 3 EE RGMEDOIED 5 og cn ccacencacecveceteses 19 cack ees Oks KwabeA be 50 0eaR ARSED 15, 18 EN is cac44c bs 0b 50s Rs bike ROR Rea ee Dee 2,5 ig ek te ho ee eek at am ae EE ina on koa 5 bh eae Swe OMEN SRS ER ASS 2, 16, 18 Labor Management Relations Act of 1947: ee eo eels Len ee ost h esata eauen 19 et so aa. Leen keke aaa ees 19 SCT FUSIONS) OG GB) oon ceca ccccesenceccscas 3 Other Authorities Daniel Q. Mills, “Industrial Relations and Manpower in Construction” (Cambridge; MIT Press, 1977) p. 385... 7-8 Dunlop, The Structure of Collective Bargaining (New York; Free Press of Glencoe, 1961) pp. 255 .........ceceees 7 No. In the Supreme Court OF THE United States OCTOBER TERM, 1991 CARPENTERS SOUTHERN CALIFORNIA ADMINISTRATIVE CORPORATION, Petitioner, VS. Et CAPITAN DEVELOPMENT COMPANY, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE CALIFORNIA SUPREME COURT Petitioner Carpenters Southern California Administrative Cor- poration respectfully prays that a writ of certiorari issue to review the judgment of the Supreme Court of the State of Caufornia entered in this case on June 20, 1991. I CPINIONS BELOW The opinion of the California Supreme Court (Appendix A, infra) is reported at 53 Cal.3d 1041. The first decision of the District Court of Appeal in this action (Appendix B, infra) is not officially reported. The order of the California Supreme Court directing the District Court of Appeal to reconsider its initial decision (Appendix C, infra) is not officially reported. The second opinion of the District Court of Appeal (Appendix D, infra) is not officially reported. 2 Ul JURISDICTION The opinion of the California Supreme Court was filed on June 20, 1991. The jurisdiction of this Court is invoked pursuant to the provisions of 28 U.S.C. § 1254(1). This Petition is timely filed with this Court under the provisions of 28 U.S.C. § 2101(c). Il STATUTORY PROVISIONS The relevant statutory provisions are: (1) California Civil Code § 3111; (2) California Civil Code § 3110; (3) § 514(a) of the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1144(a); (4) §514(c) of the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1144(c); (5) § 502(a) of the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1132(a); (6) § 515 of the Employee Retirement Income Secur- ity Act of 1974, as subsequently amended, 29 U.S.C. § 1145. Pertinent portions of these statutory provisions are reproduced at Appendix E, infra. IV STATEMENT OF THE CASE A. Preliminary Statement The California Supreme Court has erroneously held that § 514(a) of the Employee Retirement Income Security Act of 1974 (“ERISA”) preempts a California statute that facilitates the collection of fringe benefit contributions from delinquent employers by employee benefit trust funds. In so doing, the California Supreme Court has misapplied the law and reached a result that is flatly contrary to the language and intent of ERISA —the very federal law that supposedly preempts the statute. The result strips employee benefit trust funds of a valuable tool for 3 assuring that employers make fringe benefit payments on behalf of covered employees. Contrary to both federal and state policy, the decision below protects delinquent employers at the expense of innocent pian participants. B. Nature of the Suit This is an action instituted by the Carpenters Southern Califor- nia Administrative Corporation (“CSCAC”). CSCAC is the administrator of certain multi-employer benefit trust funds (“the Carpenters Trust Funds”). The Carpenters Trust Funds provide pension, health and welfare, vacation and apprenticeship benefits to covered carpentry employees and their families. The Funds are multi-employer benefit trust funds organized pursuant to the provisions of § 302(c)(5) and (6) of the Labor Management Relations Act of 1947, as amended, 29 U.S.C. § 186(c) (5)-(6). The Carpenters Trust Funds are employee pension benefit plans or employee welfare benefit plans within the meaning of ERISA; see 29 U.S.C. §§ 1002(1) and 1002(2) (a). The Funds derive their revenues from contributions made by employers on behalf of covered carpentry employees, pursuant to the provisions of collective bargaining agreements executed by the employers and by unions affiliated with the United Brotherhood of Carpenters and Joiners of America (collectively the “Union’’). Such collective bargaining agreements require that employers contribute a specified sum to each trust fund for each hour worked by covered employees. CSCAC is a “fiduciary,” as that term is defined in ERISA, 29 U.S.C. § 1062(21)(A). One of its duties as administrator of the Carpenters Trust Funds is to collect contributions from signatory employers who have failed to pay the required trust fund contri- butions. To ensure the continued ability of the Carpenters Trust Funds to provide benefits, CSCAC is obligated, by contract and by federal law, to use its best efforts to colect the delinquent contributions. The present action was instituted in the Superior Court of the State of California for the County of Kern. The suit sought foreclosure of mechanics liens on property located in Kern County, which was owned and developed by respondent El 4 Capitan Development Company (“El Capitan”). The action was founded on the provisions of California Civil Code § 3111, which permits multi-employer trust funds to record and foreclose mechanics’ liens to recover unpaid fringe benefit contributions owed to such trust funds on behalf of covered employees who perform work to improve the liened property. Civil Code § 3111 provides: “For the purposes of this chapter, express trust funds estab- lished pursuant to a collective bargaining agreement to which payents are required to be made on account of fringe benefits supplemental to a wage agreement for the benefit of a claimant on particular real property shall have a lien on such property in the amount of the supplemental fringe benefit payments owing to it pursuant to the collective barganing agreement.” Under this statute, if the trust fund is not paid—i.e., if a contractor fails to make employee fringe benefit contributions for work performed on a construction project—the trust fund can record a mechanics’ lien on the property and can foreclose the lien to compel payment of the debt. The mechanics’ lien remedy is thus an effective menas of assuring that contractors fulfill their promise to pay fringe benefit contributions. In the present case, CSCAC sought to recover delinquent contributions owed by a contractor whose employees performed work on a residential real estate development owned by El Capitan. The total sum claimed is $121,729.23, plus interest and costs. Though a default judgment was obtained against the contractor, efforts to directly collect contributions from the delin- quent contractor failed. CSCAC therefore timely recorded mechanics’ liens on the Ei Capitan property and sought foreclo- sure of the liens in the present action as a means of collecting the trust fund contributions. C. Proceedings Below E] Capitan filed a demurrer to CSCAC’s complaint, asserting that CSCAC’s right to maintain the present action is preempted 5 by § 514(a) of ERISA, 29 U.S.C. § 1144(a), which provides, in pertinent part: “T]he provisions of this subchapter and subchapter III of this chapter shall supersede any and all state laws insofar as they may now or hereafter relate to any employee benefit plan...” The trial court sustained the demurrer of El Capitan; judgment was entered by the Kern County Superior Court on August 8, 1985 and a timely appeal was filed by CSCAC. In reliance on the opinion in Carpenters Health & Welfare Fund v. Parnas Corp., (1986) 176 Cal. App.3d 1196, the Court of Appeal reversed the trial court and held that Civil Code § 3111 was not preempted by ERISA (E/ Capitan I, Appendix B, infra.) E] Capitan filed a petition for review in the California Supreme Court, asserting that the decision of this Court in Pilot Life Insurance Co. v. Dedeaux, (1987) 481 U.S. 41, 107 S.Ct. 1549, compelled a ruling that § 3111 is preempted. The California Supreme Court remanded the case to the Court of Appeal for further consideration in light of Pilot Life. (Appendix C, infra.) On remand, the Court of Appeal reversed its earlier opinion and held that Pilot Life had “changed” the law, requiring preemption of § 3111 (El Capitan II, Appendix D). CSCAC timely filed a petiton for review in the California Supreme Court, supported by briefs and letters from more than a dozen counsel for prospective amici curiae. On April 21, 1988, the California Supreme Court granted review. On June 20, 1991, the California Supreme Court issued its decision (Carpenters South- ern California Administrative Corporation v. El Capitan Develop- ment Company, 53 Cal.3d 1041 (“El Capitan III’) Appendix A, infra.) By a vote of 5-2, the California Supreme Court held that Civil Code § 3111 is preempted because it “relates to” ERISA regulated employee benefit plans “by creating an additional fund- ing mechanism for ERISA plans not provided for by Con- gress...” 53 Cal.3d at 1051. The court relied heavily upon the recent decision of the U.S. Court of Appeals for the Fifth Circuit in Ironworkers Pension Fund v. Terotechnology Corporation (1990) 891 F.2d 548, cert. denied, (1991) __. U.S. ___., 110 6 S.Ct. 3272, and rejected the reasoning in other recent appellate __court opinions upholding the use of state collection remedies to enforce employers’ collection obligations to multi-employer fringe benefit trust funds; see, e.g. Plumber's Local 458 v. H. Immel, Inc. (1989) 151 Wis. 2d 233, 445 N.W.2d 43; Sheet Metal Workers Pension Plan v. Columbia Savings & Loan Association (1990) 221 Cal. App.3d Supp. 21; Sasso v. Vachris (1985) 484 N.E.2d 1359, 494 NYS 2d 856; Carpenters Health & Welfare Trust Fund v. Parnas Corp., (1986) 176 Cal. App.3d 1196. The lengthy and vigorous dissent filed by two justices argued that the majority had ignored the standards for ERISA preemption set forth by this Court in Mackey v. Lanier Collection Agency & Service (1988) 486 U.S. 825, 108 S.Ct. 2182 and other cases and concluded that the majority had misapplied ERISA’s preemption clause. Because the present case squarely presents an issue on which there is a split of authority among lower appellate courts (and between the members of the California Supreme Court itself) CSCAC now petitions this court for a writ of certiorari. V REASONS THE WRIT SHOULD BE GRANTED A. The Guidance of This Court is Needed to Resolve a Conflict Among Lower Appellate Courts. For many years, state and federal appellate and trial courts have reached conflicting conclusions regarding the application of § 514(a) of ERISA to state collection remedies; see e.g., Sasso v. Vachris (1985) 484 N.E.2d 1359, 494 NYS 2d 856 [state collection remedies not preempted]; Carpenters Health & Wel- fare Fund of Philadelphia v. Ambrose (3d Cir. 1983) 727 F.2d 279 [same]; Laborers Fringe Benefit Funds v. Northwest Concrete & Construction, Inc. (6th Cir. 1981) 640 F.2d 1350, 1352 [state injunctive remedies available to enforce collection of trust fund contributions]; Trustees for the Alaska Hotel & Restaurant Em- ployees Health & Welfare Fund v. Hansen, (Alaska 1984) 688 P.2d 587 [enactment of 1980 amendments to ERISA did not displace state collection remedies]; Carpenters Health & Welfare 7 Trust Fund v. Parnas Corporation (1986) 176 Cal. App.3d 1196 [state lien laws not preempted by ERISA] (disapproved in E/ Capitan III); Sheet Metal Workers Pension Plan v. Columbia Savings & Loan Association (1990) 221 Cal. App.3d Supp. 21 {same holding] (also disapproved in E/ Capitan III); Retirement Fund of the Fur Manufacturing Industry v. Getto & Getto, Inc., (S.D.N.Y. 1989) 714 F.Supp. 651, 670 [state collection remedies not preempted]; Planned Consumer Marketing, Inc. v. Coats & Clark, Inc., (1988) 527 N.Y.S.2d 185, 190-191, 522 N.E.2d 3 [state corporate statute permitting judgment creditor to bring action against a director or officer for contribution violations relating to an ERISA trust not preempted by ERISA]; McMahon v. McDowell, (3d Cir. 1986), 794 F.2d 100 (state collection remedies preempted]; Jronworkers Pension Fund v. Tero- technology (Sth Cir. 1990) 891 F.2d 548, cert. denied (1991), —— US. — ~, 110 S.Ct. 3272. [ERISA preempts state lien remedy for fringe benefit trusts]; Edwards v. Bethlehem Steel Corp. (Ind. App. 1990), 554 N.E. 2d 43 [same].' The issue of preemption of state lien laws is of critical impor- tance to employee benefit trusts in the construction industry, because such trusts depend heavily on the lien laws to enforce the contribution obligations of employers. The construction industry is a highly fragmented segment of the American economy; in California, thousands of small contractors compete to perform construction work. (See, John T. Dunlop, “The Industrial Rela- tions System in Construction,” in Weber (Ed.) The Structure of Collective Bargaining (New York; Free Press of Glencoe, 1961) pp. 255-277, and Daniel Q. Mills, “Industrial Relations and Manpower in Construction” (Cambridge; MIT Press, 1977) p. ‘In a just-published decision, a divided panel of the U.S. Court of Appeals for the Ninth Circuit has held that California Civil Code § 3111 is preempted by ERISA; Sturgis v. Miller, _. F.2d —__ (US.C.A. No. 90-15054 (September 3, 1991)). The panel majority held the statute preempted because “Section 3111 contains a clear reference to and connection with ERISA.” The dissent argued that Civil Code § 3111 is part of a comprehensive statutory scheme to protect California employees’ entire wage and fringe benefit package and is beyond the preemptive reach of ERISA. 8 385. Small construction companies often go bankrupt, dissolve or simply “‘disappear.”* One federal appellate court has taken spe- cific note of a contractor which reportedly changed the name of its business eighteen times within a period of just nine months; see NLRB v. Associated General Contractors of California, Inc., (9th Cir. 1980) 633 F.2d 766, 769. Absent the availability of a lien or other security device to compel payment, trust funds are often unable to collect delinquent benefit contributions. Elimination of the lien remedy may jeopardize the ability of the funds to provide pension and health and welfare benefits at current levels. As the dissenters in the California Supreme Court argued: “To conclude that state lien laws are preempted when ERISA plans are involved means that millions, perhaps billions, of dollars. . . are jeopardized... To suggest that a Congress that adopted a comprehensive law to protect the interests of participants in employee benefit plans intended to preempt state lien laws strains credulity.” 53 Cal.3d at 1064. B. The California Supreme Court’s Decision Ignores the Framework for Preemption Analysis Developed by This Court. While acknowledging and citing many of the cases from this Court reviewing ERISA preemption issues, the California Su- preme Court’s opinion ignores the framework for preemption analysis set forth by this Court in Fort Halifax Packing Co., Inc. v. Coyne (1987) 482 U.S. 1, 107 S.Ct. 2211 and Pilot Life Ins. Co. v. Dedeaux, (1987) 481 U.S. 41 41-42, 107 S.Ct. 1549. Both Fort Halifax and Pilot Life emphasize the principle that, under ERISA, as in any preemption analysis, “ “The purpose of Con- gress is the ultimate touchstone’” (Fort Halifax, 482 U.S. 1, 19, 107 S.Ct. 2211, 2216; citing Malone v. White Motor Corp., (1978) 435 U.S. 497, 504, 98 S.Ct. 1195, 1189 (1978).) In Pilot Life, this Court stated that “[i]n expounding a statute we [are] ? The 1977 Census of Construction Industries found that there were more than 288,000 “specially trained contractors”. On the average, each firm employed just six construction workers. See, U.S. Bureau of Census, Census of Construciton Industries (1977), cited in Statistical Abstract of the United States (1979) Table 1365, p. 776. , | 9 not... guided by a single sentence or member of a sentence, but look to the provisions of the whole law and to its object and policy.” Pilot Life, supra, 481 U.S. 41, 51, 107 S.Ct. 1549, 1555. Ignoring these settled principles, the California Supreme Court’s majority focused narrowly on two phrases in Section 514 of ERISA, 29 U.S.C. § 1144. Section 514(a) states that ERISA supersedes “any and all state laws insofar as they may now or hereafter relate to any employee benefit plan...” 29 U.S.C. § 1144(a). The California Supreme Court has held that Civil Code § 3111 is preempted because it “relates to” employee benefit plans “by creating a mechanism for enforcing an employer’s contribution obligations that Congress did not provide.” 53 Cal.3d at 1048. The lower court reasoned that Civil Code § 1311 must be within the preemptive reach of § 514(a) because “a law ‘relates to’ an employee benefit plan in the normal sense of the phrase, if it has a connection with or reference to such a plan.” (£/ Capitan IIT) 53 Cal.3d at 1048, citing Pilot Life, supra, 481 U.S. 41, 47, 107 S.Ct. 1849 (1987). But this Court has never stated that determination of whether a law “has a connection with or refer- ence to” an ERISA-regulated plan is, by itself, dispositive of the preemption question. Indeed, this Court’s decision in Shaw v. Delta Airlines, (1983) 463 U.S. 85, 100, n. 21, 103 S.Ct. 2890 recognizes that “[s]jome state actions may affect employee bene- fit plans in too tenuous, remote or peripheral a manner to warrant a finding that the law ‘relates to’ the plan”. State collection remedies were clearly a “peripheral” concern of Congress at the time ERISA was enacted in 1974. Indeed, the subject of collec- tion remedies is not addressed at all in the 1974 legislative history. The California Supreme Court does not suggest any possible reason why Congress would have wished to wipe out long- standing collection remedies created by state law. Many laws which have “a connection with or reference to...a plan” have been held not to be preempted by ERISA; see e.g., American Telephone and Telegraph Co. v. Merry, (2d Cir. 1979) 592 F.2d 118, 121; Carpenters Pension Trust v. Kronschnabel, (9th Cir. 1980) 632 F.2d 745, cert. denied (1981) 453 U.S. 922, 101 S.Ct. 3159; Stone v. Stone, (9th Cir. 1980) 632 F.2d 740, 10 cert. denied (1981) 453 U.S. 922, 101 S.Ct. 3159. See also, Retirement Trust Fund of the Plumbing, Etc. v. Franchise Tax Board, (9th Cir. 1990) 909 F.2d 1266, 1280-1281 [tax levy procedure which permitted garnishment of benefits owed to participants under a plan not to be preempted by ERISA because the levy “only tenuously affects the vacation trust itself’); Franchise Tax Board v. Construction Laborers Vacation Trust, (1988) 204 Cal. App.3d 955. Admittedly, the scope of ERISA’s preemption clause is broad; see Pilot Life Insurance Co. v. Dedeaux (1987) 481 U.S. 41, 16, 107 S.Ct. 1549, 1552. This Court has previously held that the preemption clause is as broad as its language suggests; see Shaw v. Delta Air Lines, 463 U.S. 85, 98-100 and nn. 18-20, 103 S.Ct. 2890, 2900-01 and nn. 18-20. But In each of this court’s decisions in which a state law has been held preempted by ERISA, the law has trenched upon the regulatory scheme of ERISA in some meaningful way. See Alessi v. Raybestos-Manhattan, Inc. (1981) 451 U.S. 504, 523, 101 S.Ct. 1985 [state statute limiting plans’ set-off rights preempted]; Pilot Life Insurance Co. v. Dedeaux (1987) 481 U.S. 41, 107 S.Ct. 1549 [state law claims relating to administration of plan preempted]; Mackey v. Lanier Collections Agency and Service (1988) 486 U.S. 825, 108 S.Ct. 2181 [state statute excluding ERISA plan benefits from garnishment pre- empted]; FMC Corporation v. Holliday (1990) 498 U.S. ___., 111 S.Ct. 403 [state statute denying subrogation rights to ER- ISA-regulated plans preempted]; Ingersoll-Rand v. McClendon (1990), 498 U.S. ___, 111 S.Ct. 478 [wrongful discharge action alleging termination to avoid benefit plan liability preempted ].’ > In Shaw v. Delta Air Lines (1983) 463 U.S. 85, 103 S.Ct. 2890, this court held certain provisions of the New York Human Rights Law to be preempted by ERISA but “only insofar as it prohibits practices that are lawful under federal law.” 463 U.S. at 108, 103 S.Ct. at 2906. California Civil Code § 3111 does not purport to prohibit any practices which are lawful under federal law; nor does it restrict the operation of multi- employer trust funds in any way. Thus, under the Shaw test, the statute survives preemption. 1] In the present case, by contrast, use of the mechanic’s lien remedy will have no appreciable effect on the ERISA regulatory scheme, while preemption of California Civil Code § 3111 will frustrate the state’s purpose in protecting entire wage and fringe benefit package of workers. As this Court has stated: “We also must presume that Congress did not intend to preempt areas of traditional state regulation.” Metropolitan Life Ins. Co. v. Massa- chusetts (1985) 471 U.S. 724, 740, 105 S.Ct. 2380, 2389 citing Jones v. Rath Packing Co., (1977) 430 U.S. 519, 525, 97 S.Ct. 1305, 1309. Cf. Lingle v. Norge Division of Magic Chef, Inc. (1988) 486 U.S. 399, 168 S.Ct. 1877. The California Supreme Court further held that Civil Code Section 3111 falls within the terms of Section 514(c) of ERISA, 29 U.S.C. § 1144(c), which provides that ERISA’s preemptive reach includes any law which “purports to regulate, directly or indirectly, the terms and conditions of employee benefit plans.” According to the California Supreme Court, “Section 3111 regulates ERISA plans by creating a funding mechanism not provided by Congress.” 53 Cal.3d at 1051. The California Supreme Court’s holding that the provision of an ancillary state collection rernedy somehow “regulates” fringe benefit trust funds simply makes no sense. Permitting such funds to have lien rights to secure tha portion of a workers total compensation package which is paid as fringe benefits does not “regulate” such funds in any meaningful way. In finding that Civil Code § 3111 “regulates” employee benefit plans, the California Supreme Court stretches the natural meaning of the term beyond recognizable limits. Black’s Law Dictionary (Sth Ed., 1979) defines “regulates” as “to fix, establish or control; to adjust by rule, method or established mode; to direct byTule or restrictions; to subject to governing principles or laws... Regulate means to govern or direct according to rule or to bring under control of constituted authority and prohibit, to arrange in proper order, and to control that which already exists.” Permitting employee benefit trusts to exercise a collection remedy does not “regulate” such trusts since it does not limit, direct, prescribe or control their conduct. Cf FMC Corp. v. Holliday (1990), 498 U.S. —_, 111 S.Ct. 403 [a state statute which precludes benefit plans from 12 exercising subrogation rights relates to and regulates such plan]. Not only does it not regulate the “terms and conditions” of employee benefit plans; it does not direct, limit or control their operation in any significant way. Like other portions of Califor- nia’s mechanics’ lien law, it does regulate land rights, by making landowners potentially liable for the full value of labor contributed to works of improvement on their property. This Court’s holding in Fort Halifax Packing Co., Inc. v. Coyne, (1987) 482 U.S. 1, 107 S.Ct. 2211 contains a thorough and detailed analysis of the purpose of the preemption clause of § 514(a) of ERISA. This Court held that the preemption clause was designed “to establish a uniform administrative scheme, which provides a set of standard procedures to guide processing of claims and disbursement of benefits.” 482 U.S. at 9, 107 S.Ct. at 2216. Summarizing its analysis, this Court stated: “It is thus clear that ERISA’s preemption provision was prompted by recognition that employers establishing and maintaining employee benefit plans are faced with the task of coordinating complex administra- tive activities. A patchwork scheme of regulation would introduce considerable inefficiencies in benefit program operation, which might lead those employers with existing plans to reduce benefits, and those without such plans to refrain from adopting them. Preemption ensures that the administrative practices of a single plan will be governed only by a single set of regulations.” 482 U.S. at 11, 107 S.Ct. at 2217.‘ The issue in Fort Halifax was whether a Maine statute requir- ing employers to provide a one-time severance payment to em- ployees in the event of a plant closing was preempted by ERISA. The Court held that the statute was not preempted by ERISA because it did not create any “potential for the type of conflicting regulation of benefit plans that ERISA preemption was intended to prevent.” 482 U.S. at 14, 107 S.Ct. at 2219. “ In a subsequent decision, this Court stated that “in enacting ERISA, Congress’ primary concern was with the mismanagement of funds accumulated to finance employee benefits and the failure to pay em- ployee benefits from accumulated funds.” Massachusetts v. Morash (1989), 490 U.S. 107, 109 S.Ct. 1668. 13 This Court’s holding in Fort Halifax compels the conclusion that California Civil Code § 3111 is not preempted by ERISA. Civil Code § 3111 has no impact whatsoever on the processing of benefit claims and the disbursement of benefits. Its whole focus is external to the benefit administration process. Nor is there anything inconsistent in the holding of Pilot Life and Fort Hali- fax, both cases focus on the issue of whether state regulation intrudes on the process of providing employee benefits and ad- ministering employee benefit claims.° Fort Halifax further holds that where a state statute does nor implicate the concerns of ERISA’s preemption provision—that is, the statute does not address the plans’ internal administrative functions—there is no preemption: “If a state law creates no prospect of conflict with a federal statute, there is no warrant for disabling it from attempting to address uniquely local social and economic problems.” 482 US. at 19, 107 S.Ct. at 2221. California has recognized the frequent problems that workers, subcontractors and materialmen encounter in securing payment for their services on construction projects. (See Part E, infra.) The California mechanics’ lien statutes provide a comprehensive framework for ensuring that all such parties get paid for labor and materials contributed to works of improvement or real property. See, generally, Connolly Development, Inc. v. Superior Court (1976) 17 Cal.3d 803. Neither the California Supreme Court nor E] Capitan has cited any language in the text of ERISA or in its legislative history to indicate that Congress intended to upset the carefully integrated California statutory scheme for protecting the > In Pilot Life, supra, 481 U.S. at 51-52, 107 S.Ct. at 1555, this Court held a state cause of action preempted “because, in this case, the state cause of action seeks remedies for the improper processing of a claim for benefits under an ERISA-regulated plan...” [Emphasis supplied ] 14 wages and fringe benefits of workers employed on construction projects in California. ° Many courts have emphasized that, outside the benefit admin- istration context, employee benefits trusts should be treated the same as other business entities. For example, in Duffy v. King Cavalier, (1989) 218 Cal.App.3d 1517, the court held that an employee benefit trust should have the same rights as any other investor to secure redress for stockbroker fraud. Similarly, in Lane v. Goren, (9th Cir. 1083) 743 F.2d 1340, the court held that employee benefit trusts that act as employers cannot assert the shield of Section 514(a) of ERISA to exempt themselves from the application of fair employment laws. See also, Franchise Tax Board v. Construction Laborers Vacation Trust, (1988) 204 Cal. App.3d 955. The California Supreme Court has suggested no reason why employee benefit trust funds should not have the same rights as other creditors entitled to utilize the lien remedy. ®As the dissent noted in Sturgis v. Miller, No. 90-15054. September 3, 1991): “California creates mechanic’s liens in favor of ‘mechanic’s, mate- rialmen, contractors, subcontractors, lessors of equipment, artisans, architects, registered engineers, licensed land surveyors, machinists, builders, teamsters, and draymen, and all persons and laborers of every class performing labor upon or bestowing skill or other necessary services . . .’ Cal. Civil Code 3110. Section 3111 provides the same lien to employee benefit trust funds for unpaid employer contributions. California thus does not single out ERISA plans for special treatment, but gives ERISA plans the same procedure to recover unpaid employer contributions as California gives to em- ployees who are not members of ERISA plans. Employee benefits (which may include pension, health, welfare, and vacation benefits) are an important part of an employee’s compensation. The result of the majority’s opinion is that employees who are not members of an ERISA plan may use mechanic’s liens to ensure that employers fulfill their obligations to pay benefits—but members of ERISA plans may not. This turns the logic of Mackey on its head. Mackey precludes state laws that single out ERISA plans; it does not prohibit evenhanded state law enforcement procedures.” F.2d ..... (Sth Cir. 15 Because the California Supreme Court has applied ERISA’s preemption clause without reference to the purpose of the clause, and the purpose of ERISA itself, this court should grant certiorari and reverse. C. The Court Should Grant Certiorari to Clarify the Scope of the Holding in Pilot Life Insurance Co. v. Dedeaux. A central issue in this case, and other cases considering the issue of ERISA preemption of state collection remedies, is the applicability of this Court’s holding in Pilot Life Insurance Co. v. Dedeaux (1987) 481 U.S. 41, 107 S.Ct. 1549. In Pilot Life, this Court held that the remedies provided by § 502 of ERISA to claimants seeking empioyee benefits from ERISA-regulated ben- efit plans preempted all parallel state laws. This Court held that “The detailed provisions of § 502(a) set forth a comprehensive civil enforcement scheme... The policy choices reflected in the inclusion of certain remedies and the exclusion of others under the federal scheme would be completely undermined if ERISA- plan participants and beneficiaries were free to obtain remedies under state law that Congress had rejected in ERISA.” Pilot Life focuses on provisions of ERISA which have been in the statute since its inception. Pilot Life contains no discussion of the collection remedies which were added to ERISA in 1980, nor does it suggest that any collection remedy whatsoever was pro- vided by ERISA pnor to 1980. The “carefully integrated statutory scheme” described in Pilot Life did not, prior to 1980, contain any remedy which could possibly displace existing state law collection remedies. Petitioner respectfully submits that the California Supreme Court has read Pilot Life far too broadly.’ While all parties agree "This Court succinctly stated the limits of its holding in Pilot Life in its decision in Metropolitan Life Insurance Co. v. Taylor, (1987) 481 U.S. 58, 107 S.Ct. 1542 issued the same day: “In Pilot Life Insurance Co. v. Dedeaux, ante [citation] the Court held that state common law causes of action asserting improper processing of a claim for benefits under an employee benefit plan regulated by the Employer Retirement Income Security Act (ERISA) 88 Stat. 829, 29 U.S.C. § 1001, et seq., are preempted by the Act.” 16 that the reach of federal preemption under § 514(a) of ERISA is wide, there is no hint in the legislative history or in any of the terms of the statute that Congress believed it was canceling literally dozens of state collection statutes across the country at a single stroke. Indeed, the legislative history of the 1980 amend- ments to ERISA compels the opposite conclusion. During hear- ings on the Multi-employer Pension Plan Amendments Act of 1980, which added §§ 512(g) and 515 to ERISA, 29 U.S.C. §§ 1132(g) and 1145, the validity of post-ERISA state collection remedies was recognized. House Report No. 96-869(II) on H.R. 3609 of the House Committee on Ways and Means, 96th Cong., 2d Sess., contains the following commentary on the new collec- tion provisions: “The Committee’s amendment provides that in the case of a civil action by any person to collect delinquent multi-em- ployer plan contributions, regardless of otherwise applicable law, the court before which the action is brought may award the plaintiff (1) reasonable attorneys’ fees, (2) court costs and (5) liquidated damages not to exceed twenty percent of the amount of delinquent contributions as determined by the court. However, these items are to be awarded to a plaintiff only to the extent that the multi-employer plan in question provided for such an award. The bill preempts any state or other law which would prevent the award of reasonable attorneys’ fees, court costs or liquidated damages or which would limit liquidated damages to an amount below the twenty percent level. However, the bill does nor preclude the award of liquidated damages in excess of the twenty percent level if an award of such a higher level of liquidated damages is permitted under state or other law. The Committee amendment does not change any other type of remedy permitted under state or federal law with respect to delin- quent multi-employer contributions."’ [Emphasis supplied } This legislative history demonstrates that Congress did not intend to strip multi-employer trust funds of their existing collec- tion remedies under state law. Instead, the intent was to provide powerful new weapons, in the form of potential awards of attor- neys’ fees, interest and liquidated damages, to discourage employ- 17 ers from engaging in protracted and expensive litigation over simple collection claims.* As the U.S. Court of Appeals for the Sixth Circuit noted in Laborers Fringe Benefit Funds v. Northwest Concrete & Construc- tion, Inc., (1981) 640 F.2d 1350, 1352: “The legislative history underlying Section 502 indicates that Congress intended that the enforcement provisons should have teeth: the provisions should be liberally construed ‘to provide both the Secretary and participants and beneficiaries with broad remedies for redressing or preventing violations of the Act.’ H. Rep. No.93-533, 93d Cong. & Ad. News p. 4639, 4655. This history further states that ‘the intent of the Committee is to provide the full range of legal and equitable remedies available in both state and federal courts and to remove jurisdictional and procedural obstacles which in the past appear to have hampered effective enforcement of fiduciary responsibility under state law for recovery of bene- fits due to participants.’”” [Emphasis supplied. ] * In Sasso v. Vachris, (1985) 494 NYS 2d 856, 489 N.E. 2d 1359 the New York State Court of Appeals rejected the argument that the collection remedies added to ERISA ip 1980 dispiaced state law, reasoning as follows: “Nor do the 1980 amendments to ERISA indicate an intent on the part of Congress to preempt state remedies such as § 630 [of the New York Business Corporation Law]. They merely added a statutory obligation upon employers to make contributions to multi- employer plans as required by the terms of the employee benefit plan or the collective bargaining agreement [citation omitted] and provided a civil cause of action in favor of fiduciaries to enforce this obligation [citation omitted]. Contrary to the positon taken by defendants, the relevant legislative history of these amendments evince a specific congressional intent that ERISA’s civil remedies merely supplement, rather that supersede, existing state remedies such as Business Corporation Law § 630, at least insofar as they provide for the collection of delinquent employer contributions to employee benefit plans.” 18 D. Preemption of State Lien Laws Leaves an Unexplained “Gap” in the Collection Remedies Available to Multi- Employer Benefit Trust Funds. In support of its conclusion that ERISA preempts state collec- tion remedies, the California Supreme Court notes that § 515 of ERISA, 29 U.S.C. § 1145, permits employee benefit plans to bring collection actions against delinquent employers. The court reasoned that the presence of this collection remedy within ERISA supports the inference that state lien remedies are pre- empted. E/ Capitan III, 53 Cal.3d at 1052. The difficulty with this reasoning is that § 515 was not added to ERISA until 1980, though ERISA’s preemption clause was part of the original Statute enacted in 1974. The amendment of ERISA in 1980 to include a collection remedy simply cannot support the inference that the preemption clause was intended to wipe out state collec- tion remedies. If this were so, there would be a six year “gap” during which employee benefit trust funds had neither remedies under ERISA nor remedies under state lien laws. The California Supreme Court avoids this anomaly by asserting that § 502(a) (3) of ERISA, 29 U.S.C. § 1132(a) (3), which was part of ERISA as initially enacted, created a collection remedy. El Capitan III, 53 Cal.3d at 1052. But numerous federal courts have held that no remedy for collection of delinquent employer contributions was provided by ERISA prior to the addition of § 515 in 1980. For example, in Carl Allen v. McWilliams Electric Co., (D. Mo. 1980) 494 F. Supp. 53, a federal district court refused ‘to permit employee benefit trusts to sue an allegedly delinquent employer under § 502 of ERISA, stating “This suit for contribu- tions of money allegedly due and owing qualifies only for the future equitable relief prayed for... not for a money award for past violations.” 494 F. Supp. at 56. The same conclusion was reached by another federal trial court in American Benefit Plan Administrators v. Foley, 2 EBC 1897 (CD Cal. 1981) where the court stated “Prior to 1980, § 502(g) of ERISA (29 U.S.C. § 1132(g)) provided only for equitable relief and any action for unpaid plan contributions could, therefore, only be brought under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185.” 1 State courts reached the same conclusion. For example, in Vermeer v. Tomken Construction, (1980) 49 Or App. 37, the Court of Appeals held that the pre-1980 version of § 502(a) of ERISA did not provide a cause of action to recover delinquent trust fund contributions. The court stated: “ERISA provides no remedy for trustees seeking to recover delinquent contributions to a trust fund... therefore, though plaintiff's action is one to enforce the terms of its agreement with defendant, it is not an action under 29 U.S.C. § 1132(a) (3) (B) (ii) requiring exclusive federal jurisdiction . . .” These cases belie the California Supreme Court’s assertion that § 515 of ERISA was added to the statute only to “streamline” an already-existing collection remedy. There simply was no ERISA collection remedy prior to 1980. Once it is established that ERISA did not, as originally enacted, contain a remedy to compel payment of delinquent employer trust fund contributions, the illogic of the California Supreme Court’s decision is plain. If, as the California Supreme Court held, § 514(a) of ERISA was intended to prempt all non- federal collection remedies, why did ERISA, as originally en- acted, contain no substitute remedy, and why does the 1974 legislative history contain no reference to collection issues? The obvious answer is that Congress did not intend that ERISA’s preemption clause would apply to such remedies. The reasoning of this Court in Mackey v. Lanier Collection Agency (1988) 486 U.S. 825, 108 S.Ct. 2182 is particularly instructive in this regard. In Mackey, this Court concluded that Georgia’s general garnishment statute was not preempted by ERISA because (1) ERISA provides no means for execution of judgments against employee benefit plans and (2) the federal scheme for enforcement of judgments evidenced by FRCP 69(a) contemplates the use of state procedures to enforce judgments. Applying the same reasoning as in Mackey to this case, it can be seen that (1) prior to 1980, ERISA provided no collection remedy and (2) the only federal collection remedy then availabl., under § 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a) did not purport to preempt ancillary state collec- tion remedies. In fact, federal courts have explicitly recognized that § 301 does not displace state lien laws; see CSCAC v. 20 Majestic Housing, (9th Cir. 1984), 743 F.2d 1341; CSCAC v. D&L Camp Construction, (9th Cir. 1984), 738 F.2d 999. E. Preemption of California Civil Code Section 3111 Disrupts the California Statutory Scheme for Protecting the Wages and Benefits of Workmen. The statute at issue in this case is not an isolated piece of legislative handiwork. It is part of an integrated network of California laws designed to ensure that construction workmen receive their full wages for labor contributed for works of im- provement on California real property. The mechanics’ lien remedy was spawned by the California Constitution itself. The Constitution of 1879 required the Legisla- ture to grant laborers and materialmen a lien upon property which they had improved. (See California Constitution Article XIV, Section 3; Martin v. Becker (1915) 169 Cal. 301, 316.) As the California Supreme Court has noted, “This state, from the earliest days, and consistently thereafter, has asserted its interest in protecting the claims of laborers and material men.” Connolly Development, Inc. v. Superior Court (1976) 17 Cal.3d 803, 826. California Code of Civil Procedure § 1182, the predecessor to California Civil Code § 3111, was amended in 1965 to eliminate an ambiguity in the lien law. Though laborers were clearly entitled to record and foreclose mechanics’ liens to protect their claims to direct wages, an issue had arisen as to whether they could assert lien rights with regard to fringe benefit payments made, in the first instance, to third parties. Since the intent of.the lien law was to protect the workers’ entire wage package, the law was amended to grant lien rights to protect the workers’ fringe benefits. Assemblyman James R. Mills, Chairman of the State Assembly Committee on Rules, stated the purpose of the legisla- tion as follows: “This bill provided that those trust funds established in accordance with collective bargaining agreements between labor and management, and to which management payments are made to provide fringe benefits to the wage agreement, shall be entitled to a lien on particular real property in the amount of the supplemental fringe benefit payments owing to 21 it... These contributions are sometimes deducted from the wage checks of the workers, and, in all cases, they are part of the total wage package of the worker . .. The ambiguousness of the present law prohibits the trust funds from asserting the worker’s lien rights. Although they have a sole fiduciary obligation to collect the money, this ambiguousness has resulted in loss of monies of substantial amounts to the workers and to the trust funds. This bill would permit a limited clarification to permit lawful trust funds the right to assert the workers’ lien rights as they already exist, and would not expand or enlarge the rights which the worker now has.” {Emphasis supplied}? The interest of the State of California in providing a compre- hensive remedy to protect the wage package, including fringe benefits, of workers who perform construction services would be gravely eroded if Civil Code § 3111 is nullified by the preemptive force of federal law. The importance of the statute is equivalent to the state law provisions considered in Stone v. Stone, (9th Cir. 1980) 632 F.2d 740, cert. denied (1981) 453 U.S. 922, 101 S.Ct. 3159. In Stone, a federal appellate court affirmed a trial court decision which held that ERISA did not preempt California state courts from ordering an ERISA-regulated pension plan to pay a portion of a plan participant’s pension benefits directly to his or her ex-spouse. The lower court cited the state’s critical interest in *The California Supreme Court holds that the mechanic’s lien remedy is preempted because it creates new substantive rights against parties not involved in the employer-trust fund relationship. As the dissent notes, however, “The lien does not create personal liability of the owner. It has long been recognized that the lien of the mechanic, artisan and supplier is equitable because those parties have created the very property upon which the lien attaches. Cf Tustle v. Montford (1857) 7 Cal. 358, 360, Connolly Development, Inc. v. Superior Court, (1976) 17 Cal.3d 803, 825-827. Obviously, return of the materials or labor to the unpaid supplier or laborer is not a viable option, and the law’s recogni- tion of the unpaid suppliers’ and laborers’ contribution to the improve- ment does not create a debt or personal liability on the part of the owner, but only an interest in the property they helped create.” E/ Capitan III 53 Ca.3d at 1065 (Broussard, J., dissenting). 22 regulating the sensitive area of family law, stating that “both Congress and the courts recognize that the whole subject of domestic relations of husband and wife, and parent and child, belongs to the laws of the states and not to the laws of the United States.” See also, American Telephone and Telegraph Co. v. Merry, (2d Cir. 1979) 592 F.2d 118, 121; Carpenters Pension Trust v. Kronschnabel, (9th Cir. 1980) 632 F.2d 745, cert. denied (1981) 453 U.S. 922, 101 S.Ct. 3159. Preemption of California Civil Code § 3111 would create an anomaly in California law. Those workers whose payments for fringe benefit contributions are deducted from their cash wages would have a lien right for the full amount of their compensa- tion.'° By contrast, those workers who receive fringe benefits from employee benefit plans to which their employers directly contrib- ute would be deprived of lien rights for a substantial portion of their total compensation package. (For many workers, the fringe benefit payments now constitute as much as thirty-five percent of their total compensation. ) This Court has long recognized that fringe benefits are an integral part of the workman’s total compensation. In United States v. Carter (1956) 353 U.S. 210 77. S.Ct. 793, this court held that a surety to fringe benefits funds on a payment bond furnished by a contractor pursuant to the Miller Act (40 U.S.C. § 269a et seq.) was subject to suit by fringe benefit funds seeking to recover delinquent employer contributions. This Court rea- soned in part that the “contributions were a part of the compensa- '° The California Supreme Court asserts that employee benefit plans are different from the other entities entitled to assert mechanic’s lien rights, because the other entities directly perform labor and provide material for construction projects, which the plans do not. 53 Cal.3d at 1049. While this may be true, it is scarcely a basis for invalidating the lien rights of the benefit plans. The benefit plans act as a repository and funding source for benefits provided to workmen who do contribute to works of improvement on real property. Permitting the workmen to pursue lien claims for the cash portion-ef their wages, while denying lien protection for the portion of their wages paid into employee benefit plans eviscerates the California Legislature’s intent to protect the entire wage package of the workman. 23 tion for the work to be done by [the] employees” and that trustees “stand in the shoes of the employees and are entitled to enforce their rights.” 353 U.S. at 217-218, 220. See, also, Morri- son-Knudsen Construction Co. v. OWCP (1982) 461 U.S. 624, 631, 102 S.Ct. 2045. . it is simply incomprehensible that Congress intended that workmen who derive fringe benefits from ERISA-regulated em- ployee benefits plans would become second class citizens, without the full protection of lien rights enjoyed by their coworkers.'' Yet that is the result of the California Suprerne Court’s reasoning in the El Capitan case. '! As the dissent below noted: “ERISA plans and others who have unpaid claims based on construction projects are usually unpaid because there are not enough funds to go around. To permit architects, engineers, surveyors, mechanics, laborers and others enumerated in Civil Code § 3110 to obtain liens while denying liens to ERISA plans is to make ERISA plans second-class creditors. The effect of the preference will ordinarily mean that Section 3110 creditors will have a preference and will receive all or part of their claims while ERISA plans will have none. Making the plans second-ciass creditors flies in the face of ERISA’s express policy to protect the interest of participants of the plan (29 U.S.C. § 1001(b), (c)) and, more particularly, ERISA’s express policy “to provide reasonable protection for the interests of participants and beneficiaries of financially distressed multi-employer pension plans” and “to provide a financially self-sufficient program for the guarantee of employer benefits under multi-employer plans.” (29 U.S.C. § 100la(c)(3), (4).)” 53 Cal.3d at 1062. 24 VI CONCLUSION For the reasons set forth herein, petitioner prays that the writ of certiorari be granted. DATED: September 16, 1991 STANTON, Kay & WATSON JAMES P. WATSON* DECARLO, CONNOR & SELVO JOHN T. DECARLO PATRICK CONNOR KINDEL & ANDERSON DONALD T. MEADERS * COUNSEL OF RECORD Appendix A [ No. $000772. June 20, 1991.] Carpenters Southern California Administrative Corporation, Plaintiff and Appeliant, Vv. El Capitan Development Company, Defendant and Respondent. Counse! Cox, Castle & Nicholson, Stanton, Kay & Watson, James P. Watson, Charles P. Scully, Donald C. Carroll, DeCarlo & Con- nor, John T. DeCarlo, Patrick Connor, Richard A. Brownstein and Karen L. Holliday for Plaintiff and Appellant. Lionel Richman, Pappy & Davis, George A. Pappy, Jett & Laquer, Wayne Jett, Hill, Farrer & Burrill, Stuart H. Young, Jr., McCarthy, Johnson & Miller, Raphael Shannon, Lori A. Nord, Gilbert & Sackman, Steven J. Kaplan, Kenneth J. Sackman, Gerald M. Feder, David R. Levin, Van Bourg, Weinberg, Roger & Rosenfeld, Victor J. Van Bourg, Michael B. Roger, Blythe Mickelson and Michael W. Schnake as Amici Curiae on behalf of Plaintiff and Appellant. Littler, Mendelson, Fastiff & Tichy, Karen E. Ford, Major Williams, Jr., Dorothy J. Stephens and Gregory R. Meyer for Defendant and Respondent. Musick, Peeler & Garrett, Lynn K. Thompson and Roberta J. Burnette as Amici Curiae on behalf of Defendant and Respondent. Opinion PANELLI, J.—The issue presented is whether Civil Code sec- tion 3111,’ which creates liens on real property in favor of trust ' Civil Code section 3111 provides: “For the purposes of this chapter, an express trust fund established pursuant to a collective bargaining agreement to which payments are required to be made on account of A-2 funds established pursuant to collective bargaining agreements, is preempted by the Employee Retirement Income Security Act of 1974 (ERISA). (29 U.S.C. § 1001 et seq.) We conclude that ERISA does preempt section 3111. Facts Carpenters Southern California Administrative Corporation (CSCAC) is the administrator and the assignee of rights of various multiemployer trust funds established under collective bargaining agreements, including the Carpenters’ Trust Funds. The Carpenters’ Trust Funds are employee pension benefit plans or employee welfare benefit plans within the meaning of ERISA. (See 29 U.S.C. § 1002(1), (2)(A), & (21)(A).) CSCAC is a “fiduciary” as defined in ERISA. (29 U.S.C. § 1002(21)(A).) Collective bargaining agreements often require employers to make contributions to trust funds for the benefit of covered employees. In the present case, the covered employees are mem- bers of unions affiliated with the United Brotherhood of Carpenters and Joiners of America (Unions). CSCAC, due to its fiduciary relationship with the Unions and in its role as adminis- trator of the trust, has a duty to collect contributions from employers who fail to make the required payments to the trust. E] Capitan Development Company (El Capitan) developed a condominium project on its property in Bakersfield. The general contractor was Grupe Construction (Grupe). Grupe subcon- tracted with Pacific Southwest Framing for part of the framing work. In its complaint, CSCAC alleges that John Hall Enter- prises (John Hall), with whom CSCAC made a collective bar- gaining agreement, and Pacific Southwest Framing are a single entity. John Hall failed to inake fringe benefit contributions to the trust funds in excess of $121,000. fringe denefits supplemental to a wage agreement for the benefit of a claimant on particular real property shall have a lien on such property in the amount of the supplemental fringe benefit payments owing to it pursuant to the collective bargaining agreement.” All further statutory references are to the Civil Code unless otherwise indicated. A-3 Pursuant to section 3111, CSCAC recorded trust fund liens against E! Capitan’s real property in order to collect the delin- quent contributions to the trust funds. CSCAC later sued El Capitan in Kern County Superior Court to foreclose the liens. CSCAC alleged that, because John Hall and Pacific Southwest Framing are a single entity, Pacific Southwest Framing was bound by CSCAC’s agreement with John Hall and was therefore obligated to make the contributions to the trust. CSCAC further alleged that because the unpaid contributions were due on ac- count of work performed on El Capitan’s property, section 3111 created liens on that property. Ej Capitan, which has not signed a collective bargaining agree- ment with CSCAC, demurred to CSCAC’s complaint, arguing that ERISA preempted section 3111. (See 29 U.S.C. § 1144.) The trial court granted El] Capitan’s demurrer with leave to amend. When CSCAC declined to amend, the court entered a judgment of dismissal. The Court of Appeal reversed the judgment. We granted E] Capitan’s petition for review anc retransferred the matter to the Court of Appeal for reconsideration in light of Pilot Life Ins. Co. v. Dedeaux (1987) 481 U.S. 41 [95 L.Ed.2d 39, 107 S.Ct. 1549] (hereafter Pilot Life). On remand, the Court of Appeal con- cluded that ERISA preempted section 3111 and affirmed the judgment of dismissal. We affirm. Discussion Introduction (la) Section 3111 creates liens on real property in favor of trust funds established pursuant to collective bargaining agree- ments in amounts equal to the fringe benefit contributions which are due under those collective bargaining agreements. Under section 3111, if an employer fails to make contributions, the trust fund can record a lien on the property where the work was performed and foreclose the lien to compel payment of the debt. ? Pacific Southwest Framing has not signed a collective bargaining agreement with CSCAC. A-4 (2a) ERISA is a comprehensive federal statutory scheme designed to promote the interests of employees and their benefi- Ciaries in employee benefit plans. (Shaw v. Delta Airlines, Inc. (1983) 463 U.S. 85, 90 [77 L.Ed.2d 490, 497, 103 S.Ct. 2890].) “[ERISA] imposes participation, funding, and vesting require- ments on pension plans....As part of this closely integrated regulatory system Congress included various safeguards to pre- clude abuse and ‘to completely secure the rights and expectations brought into being by this landmark reform legislation.’ S. Rep. No. 93-127, p.36 (1973). Prominent among these safeguards [is] ...§514(a), 29 U.S.C. § 1144, ERISA’S broad pre-emption provision. ...” (Ingersoll-Rand Co. v. McClendon (1990) 498 At [112 L.Ed.2d 474, 482-483, 111 S.Ct. 478, 482] (hereafter Jngersoll-Rand).) (1b) We must decide whether ERISA’s broad preemption provision encompasses section 3111. We conclude that it does. (2b) “ *[T]he question whether a certain state action is pre- empted by federal law is one of congressional intent. “The purpose of Congress is the ultimate touchstone.” ’ [ Citations. ] To discern Congress’ intent we examine the explicit statutory lan- guage and the structure and purpose of the statute. [ Citations. } ... [1] Where, as here, Congress has expressly included a broadly worded pre-emption provision in a comprehensive statute such as ERISA, our task of discerning Congressional intent is considera- bly simplified.” (Jngersoll-Rand, supra, 498 U.S. at p. — [112 L.Ed.2d at p. 483, 111 S.Ct. at p. 482).) Section 514(a) of ERISA expressly preempts “any and all State laws insofar as they may now or hereafter relate to any employee benefit plan... .” (29 U.S.C. § 1144(a), italics added.) Section 514(c) of ERISA defines the terms used in section 514(a): “(1) The term ‘State Law’ includes all laws, decisions, rules, regulations, or other State action having the effect of law, of any State....[{]] (2) The term ‘State’ includes a State, any political subdivisions thereof, or any agency or instrumentality of either, which purports to regulate, directly or indirectly, the terms and conditions of employee benefit plans covered by this sub- chapter.” (29 U.S.C. § 1144(c).) A-5 CSCAC argues that ERISA preempts only those siate laws that regulate the terms and conditions of ERISA plans. This argument derives from the phrase “purports to regulate,” which appears in the definition of “State” in section 514(c)(2) of ERISA. (29 U.S.C. § 1144(c)(2).) The case law, however, does not support CSCAC’s argument. All that is necessary to invoke ERISA’s statutory preemption provision is that the state law in question “relate to” an ERISA plan. As will be shown, section 3111 “relates to” such plans by creating a mechanism for enforc- ing an employer’s contribution obligations that Congress did not provide. Furthermore, even if we were to accept for the sake of argu- ment CSCAC’s proposition that a state law, to be preempted, must regulate an ERISA plan, section 3111 still would be preempted. Although section 3111 does not specifically require that certain terms be included in a plan, it does purport to regulate the conditions under which the terms of a plan can be enforced. The section does so by creating an additional cause of action for enforcing contribution obligations and by making an additional entity liable for such contributions. (See Jron Workers Pension Fund v. Terotechnology (Sth Cir. 1990) 891 F.2d 548, 553 (hereafter Jron Workers).) The Breadth of Federal Preemption Under ERISA (2c) The United States Supreme Court in a series of opinions has emphasized the unusual breadth of ERISA’s express preemp- tion provision, describing section 514(a) of ERISA as a “virtually unique pre-emption provision” (Franchise Tax Bd. v. Laborers Vacation Trust (1988) 463 U.S. 1, 24, fn. 26 [77 L.Ed.2d 420, 440, 103 S.Ct. 2841]), and as a clause “conspicuous for its breadth.” (FMC Corp. v. Holliday (1990) 498 U.S. [112 L.Ed.2d 356, 364, 111 S.Ct. 403, 407].) The court has also characterized the provision as “deliberately expansive” (Pilot Life, supra, 481 U.S. at p. 46 [95 L.Ed.2d at p. 46], citing Alessi v. Raybestos-Manhattan, Inc. (1981) 451 U.S. 504, 523 [68 L.Ed.2d 402, 416, 101 S.Ct. 1895]), and as “establish[ing} as an area of exclusive federal concern the subject of every state law that ‘relate[s] to’ an employee benefit plan governed by ERISA.” A-6 (FMC Corp. v. Holliday, supra, 498 US. > eee L.Ed.2d at p. 364, 111 S.Ct. at p.407].) (3) Consistent with the foregoing, the high court has also interpreted broadly the statutory term “relate to.” (29 U.S.C. § 1144(a).) Most recently, in Ingersoll-Rand, supra, the court explained that “[t]he key to §514(a) is found in the words ‘relate to.” Congress used those words in their broad sense, rejecting more limited pre-emption language that would have made the clause ‘applicable only to state laws relating to the specific subjects covered by ERISA.’” (Ingersoll-Rand, supra, 498 US. at p. [112 L.Ed.2d at p. 483, 111 S.Ct. at p. 482], citations omitted.) This is consistent with the court’s previous instruction in Pilot Life that “ ‘a state law “relate[s] to” a benefit plan, “in the normal sense of the phrase, if it has a connection with or reference to such a plan.” ’” (Pilot Life, supra, 481 U.S. at p. 47 [95 L.Ed.2d at p. 48], citations omitted.) “Because of the breadth of the preemption clause and the broad remedial purpose of ERISA, ‘state laws found to be beyond the scope of [section 514(a) of ERISA] are few.’ ”(Cefalu v. B. F. Goodrich Co. (Sth Cir. 1989) 871 F.2d 1290, 1294, fn. omitted.) In determining whether section 3111 “relates to” a benefit plan, we take note that the United States Supreme Court has on several occasions stated that “state laws which make ‘reference to’ ERISA plans are laws that ‘relate to’ those plans within the meaning of § 514(a) [of ERISA].” (Mackey v. Lanier Collection Agency & Serv. (1988) 486 U.S. 825, 829 [100 L.Ed.2d 836, 843, 108 S.Ct. 2182], citing Pilot Life, supra, 481 U.S. at pp.47-48 [95 L.Ed.2d at pp. 47-48]; Metropolitan Life Ins. Co. v. Massachu- setts (1985) 471 U.S. 724, 739 [85 L.Ed.2d 728, 740, 105 S.Ct. 2380].) Indeed, the court has “virtually taken it for granted that state laws which are ‘specifically designed to affect employce benefit plans’ are pre-empted under § 514(a).” (Mackey v. Lanier Collection Agency & Serv., supra, 486 U.S. at p. 829 [100 L.Ed.2d at p. 844].) A-7 Section 3111 Is Specifically Designed to Affect Employee Benefit Plans (1c) Section 3111 is specifically designed to affect employee benefit plans. The section expressly refers to “trust fund[s] established pursuant to a collective bargaining agreement” and provides to such funds a mechanics’ lien remedy not provided by Congress. Thus, section 3111 singles out ERISA plans for special treatment. CSCAC argues that “ERISA trust funds receive no greater benefits under [section 3111] than any other party entitled to invoke the mechanics’ lien remedy.” To be sure, section 3111 does treat ERISA plans the same as other parties whose claims are based on having furnished labor or materials for a construction project. The significant difference, however, is that ERISA plans do not furnish labor or materials for construction projects. Ac- cordingly, to treat them as persons who do furnish labor or materials is to single them out for special treatment.’ Because section 3111 singles out ERISA plans for special treatment and is, in fact, designed to affect them specifically, we conclude the statute “relates to” ERISA plans.‘ > Another significant difference between ERISA plans and other persons whose claims are based on furnishing labor or materials is that the latter assert their claims under section 3110. Section 3111 is specifically for the use of express trust funds established pursuant to collective bargaining agreements. *CSCAC contends that because section 514(a) of ERISA refers to “plans” and section 3111 refers to “trust funds,” section 3111 is not preempted by ERISA. However, other statements and arguments made by CSCAC belie the contention that section 3111 does not affect ERISA plans. For example, CSCAC states that the “Carpenters Trust Funds are employee pension benefit plan or employee welfare benefit plans within the meaning of ERISA; see 29 U.S.C. §§ 1002(1) and 1002(2)(a).” (Italics added.) Also, CSCAC argues that the mechan- ics’ lien action codified in section 3111 provides an effective and necessary remedy for employee benefit plans to enforce an employer's promise to pay fringe benefit contributions and that preemption of section 3111 may affect the p/ans’ ability to maintain benefit levels for their participants. A-8 Preemption Does Not Require Regulation of the Terms and Conditions of an ERISA Plan (4) Contrary to CSCAC’s argument, it is well settled that a state law need not regulate the terms and conditions of an ERISA plan for preemption to apply. The United States Supreme Court has rejected the similar argument that the statutory term “pur- ports to regulate” in section 514(c)(2) of ERISA causes section 514(a) of ERISA to preempt only those state laws that affect a plan’s terms, conditions, or administration. (Jngersoll-Rand, supra, 498 US. at p. [112 L.Ed.2d at p. 485, 111 S.Ct. at p. 484].) In rejecting this argument, the court stated that, “[the argument] misreads § 514(c)(2) [of ERISA] and consequently misapprehends its purpose....Section 514(c)(2) expands, rather than restricts, [the] definition [of State] for pre-emption purposes in order to ‘include’ state agencies and instrumentalities whose actions might not otherwise be considered state law. Had Congress intended to restrict ERISA’s pre-emptive effect to state laws purporting to regulate plan terms and conditions, it surely would not have done so by placing the restriction in an adjunct definition section while using the broad phrase ‘relate to’ in the pre-emption section itself. Moreover, if §514(a) [of ERISA] were construed as [defendant] urges, the ‘relate to’ language would be superfluous—Congress need only have said that ‘all’ state laws would be pre-empted. Moreover, our precedents fore- close this argument. In Mackey, the Court held that ERISA pre- empted a Georgia garnishment statute that excluded from gar- nishment ERISA plan benefits. [Mackey v. Lanier Collections Agency & Serv., supra, 486 U.S. at pp. 828, fn. 2, 830 (100 L.Ed.2d at pp. 843, 844).] Such a law clearly did not regulate the terms or conditions of ERISA-covered plans, and yet we found preemption. Mackey demonstrates that § 514(a) cannot be read so restrictively.” (Ingersoll-Rand, supra, 498 U.S. at p. [112 L.Ed.2d at p. 485, 111 S.Ct. at p. 484].)° *The Court of appeal originally decided this case by relying on Carpenters Health & Welfare Trust Fund v. Parnas Corp. (1986) 176 Cal.App.3d 1196 [222 Cal.Rptr. 668]. the Parnas case was decided before, and is inconsistent with, Pilot Life. Rather than using the “relate to” test, the Parnas decision used the much narrower preemption A-9 Section 3111 Also Regulates ERISA Plans (1d) Even though a state law need not regulate ERISA plans to be preempted, a finding that a state law does regulate ERISA plans necessarily includes a finding that the law “relates to” such a plan. (Local Union 598 Etc. v. J.A. Jones Const. Co. (9th Cir. 1988) 846 F.2d 1213, 1218, affd. (1988) 488 U.S. 881 [102 L.Ed.2d 202, 109 S.Ct. 210] (hereafter Jones).)°® Section 3111 regulates ERISA plans by creating a funding mechanism not provided by Congress. Hence, the fact that section 3111 regulates ERISA plans provides further support for the conclusion that section 3111 “relates to” ERISA plans and is preempted. Federal case law directly on point supports our view that section 3111, by creating an additional funding mechanism for ERISA plans not provided for by Congress, “regulates,” and hence “relates to,” ERISA plans and is for that reason pre- empted. In Iron Workers, supra, 891 F.2d 548, the Fifth Circuit considered a Louisiana mechanics’ lien law that was functionally identical to section 3111. Borden Chemical had entered into a contract for maintenance services with Terotechnology Corpora- tion. A trade council, on behalf of several unions, executed a collective bargaining agreement with Terotechnology for work to be performed at the Borden plant. The agreement required Terotechnology to contribute to employee benefit funds for the work by its employees at the Borden plant. After a period of standard discussed above: “ERISA’s preemption of ‘State law’ is only of such laws as regulate the ‘terms and conditions’ of employer benefit plans.” (Parnas, supra, 176 Cal.App.3d at p. 1201, italics in original.) As the Parnas decision conflicts with Pilot Life and our decision in this case, it is disapproved. Similarly, Sheet Metal Workers Pension Plan v. Columbia Savings & Loan Assn. (1990) 221 Cal.App.3d Supp. 21 [270 Cal.Rptr. 608], which relies on Parnas in concluding that section 3111 is not preempted, is disapproved. * In discussing the interrelationship of the “purports to regulate” and “relate to” language, the Ninth Circuit Court of Appeals stated, “[t]he narrower ‘purports to regulate’ test is included within the broader ‘relates to’ test. [Citations.] Thus a finding that a statute ‘purports to regulate’ an employee benefit plan necessarily includes a finding that it ‘relates to’ such a plan.” (Fn. omitted. Jones, supra, 846 F.2d at p. 1218.) A-10 compliance, Terotechnology stopped contributing. The unions and funds filed liens pursuant to Louisiana’s Private Works Act against Borden’s real property. The Fifth Circuit held that the Louisiana law, because it created an additional method of enforc- ing the funding requirements of employee benefit plans, was preempted under section 514(a) of ERISA. (5) In reaching its conclusion, the Jron Workers court dis- cussed the kinds of state laws that have been found to “relate to” employee benefit plans: “The state laws that have previously been found to be preempted by section 514(a) [of ERISA] because they ‘relate’ to ERISA plans fall into four categories[: (1) ] laws that regulate the type of benefits or terms of ERISA plans[; (2) ] laws that create reporting, disclosure, funding or vesting require- ments for ERISA plans[; (3)] laws that provide rules for the calculation of the amount of benefits to be paid under ERISA plans[; and (4)] laws and common law rules that provide remedies for misconduct growing out of the administration of the ERISA plan. The principle underlying all of these decisions [ preempting state laws] would appear to be that the state law is preempted by section 514(a) if the conduct sought to be regu- lated by the state law is ‘part of the administration of an employee benefit plan’: that is, the state law is preempted if it regulates the matters regulated by ERISA: disclosure, funding, reporting, vest- ing, and enforcement of benefit plans.”’ (Iron Workers, supra, 891 F.2d at p. 553, italics added.) (le) Section 3111 specifically purports to regulate employee benefit plans by providing an additional method of funding, a lien against real property, which is not provided by, and therefore is not allowed under, ERISA. In essence, section 3111 creates a new state cause of action for the collection of contributions owed to benefit plans and makes an additional entity liable for such contributions. Lien actions under section 3111, which are gov- erned by state law, are not subject to the jurisdiction of the federal courts under ERISA. (Carpenters Southern Cal. Admin. v. Ma- jestic Housing(9th Cir. 1984) 743 F.2d 1341, 1346.)’ "In Majestic Housing, supra, the Ninth Circuit Court of Appeals considered the connection between section 3111 and ERISA. The court A-11 ERISA preempts new state-law causes of action for the collec- tion of contributions because, consistent with its goal of providing “appropriate sanctions and ready access to federal courts” (29 U.S.C. § 1001(b)), ERISA itself provides the remedies for the collection of contributions. Section 502(a) of ERISA (29 U.S.C. § SC 1132(a)) provides in part that “[a] civil action may be brought—...{{]] (3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of this title or the terms of the plan or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this title or the terms of the plan.” (29 U.S.C. § 1132(a) (3), italics added.) Additionally, section 515 of ERISA (29 U.S.C. § 1145) pro- vides: “Every employer who is obligated to make contributions to a multiemployer plan under the terms of the plan or under the terms of a collectively bargained agreement shall, to the extent not inconsistent with law, make such contributions in accordance with the terms and conditions of such plan or such an agree- ment.” Hence, a participant, beneficiary or a fiduciary can bring an action under section 502(a) of ERISA (29 U.S.C. § 1132(a)) to enforce an employer’s obligation under section 515 of ERISA (29 U.S.C. § 1145). held that “[an] action to enforce [a] lien against Majestic’s property [was] one under state, and not federal law. Consequently, the district court was without jurisdiction to rule on the motion for summary judgment.” (Jd. at p. 1346.) * CSCAC argues that ERISA, as originally enacted in 1974, did not include a cause of action for the collection of benefit contributions and, hence, Congress could not have intended to preempt state law causes of action. The dissent adopts CSCAC’s position, arguing further that we must determine the scope of ERISA’s preemption provision as of 1974, without regard to subsequent amendments. (Dis. opn., post, pp. 1059- 1060.) The premise of these arguments is incorrect. Even in 1974 ERISA contained a cause of action to enforce its terms, section 502 (29 U.S.C. § 1132), and the remedies provided in section 502 are exclusive. With the addition of section 515 of ERISA (29 U.S.C. § 1145) in 1980, Congress sought only to streamline the process of collecting delinquent A-12 (6) As the Court of Appeal in this case and the federal court in Iron Workers, supra, noted, Pilot Life, supra, establishes that the remedies in section 502 of ERISA are exclusive and displace state laws which purport to create parallel remedies. “[T]he detailed provisions of § 502(a) set forth a comprehensive civil enforcement scheme.... The policy choices reflected in the in- clusion of certain remedies and the exclusion of others under the federal scheme would be completely undermined if ERISA-plan participants and beneficiaries were free to obtain remedies under state law that Congress rejected in ERISA. ‘The... carefully integrated civil enforcement provisions found in § 502(a) of the statute as finally enacted... provide strong evidence that Con- gress did not intend to authorize other remedies that it simply forgot to incorporate expressly.’ (Jron Workers, supra, 891 F.2d at p. 555, quoting Pilot Life, supra, 481 U.S. at 54 [95 L.Ed.2d at pp. 52], italics in original.) “The expectations that a federal common law of rights and obligations under ERISA-regulated plans would develop, ... would make little sense if the remedies available to ERISA participants and beneficiaries under § 502(a) {of ERISA] could be supplemented or supplanted by varying state laws.” (Pilot Life, supra, 481 U.S. at p. 56 [95 L.Ed.2d at p. 53].) contributions exclusively under federal law. (See 126 Cong. Rec. 23029 (1980): “Recourse available under current law for collecting delinquent contributions is insufficient and unnecessarily cumbersome. . . . Federal pension law must permit trustees of plans to recover delinquent contri- butions efficaciously, and without regard to issues which might arise under labor-management relations law—other than 29 U.S.C. § 186.”) * Various amici curiae have asserted that section 3111 is saved from preemption by a statement in the legislative history of the Multi- Employer Pension Plan Amendments Act of 1980 (Pub.L. No. 96-364, 94 Stat. 1208 [hereafter Amendments]). We disagree. The Amend- ments, among other things, added section_515 of ERISA (29 U.S.C. § 1145) and revised section 502(g) of ERISA (29 U.S.C. § 1132(g)) pertaining to awards of attorney fees, costs, and liquidated damages in actions for delinquent contributions. Commenting on the statutory provisions of section 502(g) of ERISA (29 U.S.C. § 1132(g)), the relevant House committee stated: “the Bill preempts any state or other law which would prevent the award of A-13 (1f) In essence, CSCAC’s action under section 3111 is a civil action by a fiduciary to enforce the provisions of ERISA with regard to employer contributions (i.e., § 502(a) of ERISA, 29 U.S.C. § 1132(a) & § 515 of ERISA, 29 U.S.C. § 1145) and to enforce the terms of the plan (i.e., the funding contributions required by the collective bargaining agreement). Like the Loui- siana law in Jron Workers, supra, 891 F.2d 548, the state is attempting to “regulate” the terms and conditions of a pension plan through the use of a new cause of action, its lien laws. State laws, however, may not be used to supplement or supplant the civil enforcement scheme developed by ERISA. (See Pilot Life, supra, 481 U.S. at p. 56 [95 L.Ed.2d at p. 53].) in summary, by providing an additional cause of action to those already provided by ERISA, section 3111, like the Louisiana law in Iron Workers (supra, 891 F.2d 548), “regulates” ERISA plans. This recognition further supports the conclusion that the section “relates to” ERISA plans and is, thus, preempted. reasonable attorney’s fees, court costs or liquidated damages, or which would limit liquidated damages to an amount below the twenty percent level. However, the Bili does not preclude the award of liquidated damages in excess of the twenty percent level if an award of such a higher level of liquidated damages is permitted under state or other law. The Committee Amendment does not change any other type of remedy permitted under state or federal law with respect to delinquent multiem- ployer contributions.” (H.R. No. 96-868, pt. 2, on H.R. No. 3909 of the House Com. on Ways and Means, 96th Cong., 2d Sess., pp. 3037-3038 (1980).) Amici curiae argue that this section of the legislative history indicates that Congress did not intend to preempt state laws granting mechanics’ lien rights to employee benefit plans. This reading of the House report is too broad. This single comment, pertaining to specific collateral reme- dies such as liquidated damages and attorney fees against delinquent employers, does not evidence a legislative intent to allow for remedies against delinquent employers that are not provided for in ERISA. Such an interpretation of this comment would vitiate the extensive legislative history of ERISA and the numerous United States Supreme Court statements regarding Congress’s choice of certain enforcement provi- sions and the exclusion of all others. A-14 Other Arguments Invoking Mackey v. Lanier Collections Agency & Serv., supra, 486 U.S. 825 [100 L.Ed.2d 836, 108 S.Ct. 2182] (Mackey), CSCAC argues that section 3111 is not preempted because it is an “ancillary state collection remed[y].” In Mackey, a creditor sought to garnish money that an ERISA plan owed to its beneficiaries, who were the creditor’s debtors. The Mackey court analyzed a Georgia antigarnishment statute and Georgia’s general garnishment procedures. The court concluded that a Georgia Statute that barred the garnishment of funds or benefits of an employee benefit plan subject to ERISA was preempted by ERISA. The court held that this antigarnishment statute ex- pressly referred to, and solely applied to, ERISA plans, and that state laws which make reference to ERISA plans are laws that “relate to” those plans within the meaning of section 514(a) of ERISA (29 U.S.C. § 1144(a)). (Mackey, supra, 486 U.S. at p. 829 [100 L.Ed.2d at p. 843].) The ERISA plan beneficiaries in Mackey further argued that the entire Georgia garnishment procedure is preempted by ERISA. The United States Supreme Court held that Georgia’s garnishment statute, as a generally applicable mechanism for the enforcement of judgments, was not preempted by ERISA. (Jd. at p. 841 [100 L.Ed.2d at p. 851].) Mackey’s analysis of Georgia’s general garnishment procedures does not save section 3111 from preemption. The decision con- cerned a third party action for enforcement of judgments against beneficiaries of an ERISA plan. ERISA does not contain reme- dial provisions for such actions. Largely for this reason, the United States Supreme Court concluded that “state-law methods for collecting money judgments must, as a general matter, remain undisturbed by ERISA; otherwise, there would be no way to enforce such a judgment won against an ERISA plan.” (Mackey, supra, 486 US. at p. 834 [100 L.Ed.2d at p. 846].) The present case is not similar because ERISA expressly provides remedies for recovery of delinquent contributions to employee benefit plans. Furthermore, in holding that the Georgia garnishment statute was not preempted, the high court noted that the statute “cre- ate[d] no substantive causes of action, nor new bases for relief, or any grounds for recovery; [it] does not create the rule of decision A-15 in any case affixing liability.” (Mackey, supra, 486 U.S. at p. 834, fn. 10 [100 L.Ed.2d at p. 847].) In contrast, California’s trust fund lien statute does more than provide a new enforcement mechanism for collecting judgments; it creates new substantive rights. (Cf. Jron Workers, supra, 891 F.2d at p. 555.) Section 3111 permits the creditor (the trust fund) to enforce a debt (for outstanding fringe benefit contributions) not against the debtor (the defaulting employer), but against the property of a third party that is not a party to the collective bargaining agreement. Section 3111 gives a trust fund a right to a lien against the property of third parties, such as El] Capitan, that the fund would not, and does not, have under ERISA. In the absence of section 3111, El Capitan would have no liability to the funds for the fringe benefit contributions. Therefore, section 3111 cannot be upheld under Mackey as it creates a new substantive right against the property of a third party that is not created by ERISA and, thus, goes beyond being a mere means of enforcing a judgment. (See Iron Workers, supra, 891 F.2d at p. 556.) CSCAC next argues that section 3111 is not preempted be- cause “[i]t regulates land nghts, historically a power reserved to the state.” (7) However, “[i]n order to avoid preemption, it is not sufficient that a state statute represent the exercise of traditional state power. [Citation.] A purported fundamental state interest is relevant only when there is an element of uncertainty as to whether the challenged state law falls within the scope of the ERISA preemption clause... . [|] However, the strength of the state interest is of no consequence where the state law clearly ‘purports to regulate’ an employee benefit plan. ‘In order to avoid being preempted, a state law in addition to being an exercise of traditional police powers must also affect the plan ‘‘in too tenuous, remote, or peripheral a manner to warrant a finding that the law ‘relates to’ the plan.""’"’ (Jones, supra, 846 F.2d at pp. 1220- 1221, citations omitted, italics added.) Section 3111 does not affect ERISA plans merely in a “tenuous, remote, or peripheral” manner, instead, it has a substantive effect. The section makes an additional entity liable to plans for contributions. (See J/ron Workers, supra, 891 F.2d at p. 556.) A-16 Lastly, CSCAC argues that section 3111 “provides an effective and necessary remedy for employee benefit plans.” That this may be so is irrelevant. The United States Supreme Court has specifi- cally held that even state laws which may help to effectuate ERISA’S underlying purposes are still preempted. (Mackey, supra, 486 U.S. at pp. 829-830 [100 L.Ed.2d at p. 844].) In Mackey, the United States Supreme Court explained that ““*(t]he pre-emption provision [of § 514(a)}....displace[s] all state laws that fall within its sphere, even including state laws that are consistent with ERISA’s substantive requirements.’ Metropol- itan Life Ins. Co. v. Massachusetts, [471 U.S. 724, 739].... Legislative ‘good intentions’ do not save a state law within the broad pre-emptive scope of § 514(a).” (Mackey, supra, 486 U.S. at pp. 829-830 [100 L.Ed.2d at p. 844], italics added.) Thus, the fact that the trust fund lien procedure may provide a remedy useful to CSCAC is irrelevant. Disposition For the foregoing reasons, we conclude that Civil Code section 3111 is preempted by ERISA. The judgment of the Court of Appeal is affirmed. Lucas, C. J., Kennard, J., Arabian, J., and Baxter, J., concurred. BROUSSARD, J.—I dissent. In Mackey v. Lanier Collection Agency & Service (1988) 486 U.S. 825 [100 L.Ed.2d 836, 108 S.Ct. 2182] (hereafter Mackey), the United States Supreme Court adopted two fundamental rules for the construction and application of the express preemption provision (29 U.S.C. § 1144(a)) of the Employee Retirement Income Security Act of 1974 (ERISA) (29 U.S.C. § 1001 et seq.). The majority violate both of them. Mackey also sets out three areas of state law which are not preempted. All three are applicable in the instant case. The majority ignore two areas and unduly limit the third. The majority opinion attempts to dispose of Mackeyas a case which merely deals with garnishment. However, it is clear that the express statements and the reasoning of the high court are not A-17 limited to garnishment but provide broad instruction as to the state laws which are not preempted. While it is, of course, proper to emphasize the broad language used by the United States Supreme Court in describing the preemption clause of ERISA, we may not stop there, but must also recognize the limitations on preemption. And when we recognize the correct function of a mechanics lien and the relationship of the lien provided by Civil Code section 3111 to employee compensation, it is clear under Mackey that we may not discriminate against ERISA plans by denying them liens given to others similarly situated, that we may not discriminate against ERISA plan members in providing remedies for recovery of compensation, that Congress did not intend to preempt state law liens, including mechanics liens, and that, although probably not essential to the decision in the instant case, Congress intended to permit certain state law actions by ERISA plans to recover delinquent employer contributions. I. The Preemption Clause and Its Expansive Nature The preemption clause of ERISA is very broad and encom- passing, and although it could be read as preempting the applica- tion of state law in any case in which an ERISA plan is a party, it is settled that state law can be applied to some cases involving ERISA plans and that we look to congressional intent in deter- mining which state laws may be applied. The clause preempts “any and all State laws insofar as they may now or hereafter relate io any employee benefit plan... .” (29 U.S.C. § 1144(a), italics added.) “The term ‘State law’ includes all laws, decisions, rules, regulations, or other State action having the effect of law, of any State.” (29 U.S.C. § 1144(c) (1).) The United States Supreme Court has characterized the provi- sion as “deliberately expansive” (Pilot Life Ins. Co. v. Dedeaux (1986) 481 U.S. 41, 46 [95 L.Ed.2d 39, 46, 107 S.Ct. 1549]), and as establishing “‘as an area of exclusive federal concern the subject of every state law that ‘relate[s] to’ an employee benefit plan governed by ERISA.” (FMC Corp. v. Holliday (1990) 498 US. . [112 L.Ed.2d 356, 364, 111 S.Ct. 403, 407].) A state law relates to a benefit plan, in the normal sense of the A-18 “6 >» phrase, “ ‘if it has a connection with or reference to such a plan. (Pilot Life Ins. Co. .. Dedeaux, supra, 481 U.S. 41, 47 [95 L.Ed.2d 39, 48].) The language of the preemption provision and of the United States Supreme Court cases is so broad that it could be under- stood as meaning that state law could never be applied in litigation involving an ERISA plan, except in cases coming within the express exemption of the preemption clause for cases involv- ing state laws regulating insurance, banking or securities. How- ever, such a broad interpretation of the provision and the cases would be improper. [T]he question whether a certain state action is pre-empted by federal law is one of congressional intent. “The purpose of Congress is the ultimate touchstone.”’ [Citations.] To discern Congress’ intent we examine the explicit statutory language and the structure and purpose of the statute. (See FMC Corp. v. Holliday, 498 U.S. : , 111 S.Ct. 403, 407, 112 L.Ed.2d 356 (1990), citing Shaw y. Delta Air Lines, Inc., supra, 463 U.S., at 95, 103 S.Ct., at 2898-99).” (Ingersoll-Rand Co. v. McCienaon (1990) ___ US. [112 L.Ed.2d 474, 483, 111 S.Ct. 478, 482].) In the recent case of Ingersoll-Rand, the high court addressed the purpose of the preemption clause. In that case a fired employee claimed that he was wrongfully terminated for the principal reason that his pension was about to vest after nearly 10 years of employment and that the employer sought to avoid the expense of the pension. The court explained the purpose of the preemption provision as follows: The preemption provision “was intended to ensure that plans and plan sponsors would be subject to a uniform body of benefit law; the goal was to minimize the administrative and financial burden of complying with conflicting directives among States or between States and the Federal Government. Otherwise, the inefficiencies created could work to the detriment of plan beneficiaries. FMC Corp., 498 U.S. at ___., 111 S. Ct., at 408 (citing Fort Halifax, 482 U.S., at 10-11, 107 S.Ct., at 2216-17); Shaw, 463 U.S. at 105, and n. 25, 103 S.Ct., at 2904, and n. 25.) Allowing state based actions like the one at issue here would subject plans and plan sponsors to burdens not 1 | ne A-19 unlike those that Congress sought to foreclose through [the preemption provision]. Particularly disruptive is the potential for conflict in substantive law. It is foreseeable that state courts, exercising their common law powers, might develop different substantive standards applicable to the same employer conduct, requiring the tailoring of plans and employer conduct to the peculiarities of the law of each jurisdiction.” (Ingersoll-Rand Co. v. McClendon, supra, 498 U.S. ' [112 L.Ed.2d 474, 486, 111 S.Ct. 478, 484).) II. Congressional Intent and the Preemption Clause The majority, in applying ERISA’s express preemption clause, rely upon 29 United States Code section 1145, which requires that employers who have agreed to make contributions to a multiemployer plan shall make those contributions to the extent not inconsistent with law. This provision provides federal causes of action to recover employer delinquencies. However, the section was not part of ERISA as originally enacted and for this reason it furnishes no support for the view that the preemption clause in ERISA preempted such causes of action. In Mackey, the United States Supreme Court made clear that in interpreting the pre- emption clause of ERISA, the congressional intent to be deter- mined is the intent of the Congress that enacted the preemption clause and not the intent of subsequent Congresses. [W]e must look at the language of ERISA and its structure, to determine the intent of the Congress that originally enacted the provision in question. ‘It is the intent of the Congress that enacted [the section]... that controls.” Teamsters v. United Staies, 431 U.S. 324, 354, n. 39 (1977).” (Mackey, supra, 486 U.S. at p. 840 [100 L.Ed.2d 851, 108 S.Ct. at p.2191.) The provisions of 29 United States Code section 1145 were | added to ERISA in 1980 as part of the Multiemployer Pension | Plan Amendments Act. Since it was not part of ERISA as | originally enacted, it is improper for the majority to rely upon it in construing the express preemption provision. Moreover, even if it were proper to consider the Multiemployer Pension Plan Amendments Act of 1980 in construing the express A-20 preemption provision, the entire 1980 act and its legislative history must be considered, and when this is done it must be concluded that Congress sought to retain state law actions to recover delinquencies and only intended a limited preemption of state law governing actions to recover delinquencies. As will be pointed out later in this opinion in connection with implied preemption, it is clear that Congress, when it enacted the Mul- tiemployer Pension Plan Amendments Act of 1980, expressly provided for the application of state law to actions for recovery of delinquencies in certain circumstances (29 U.S.C.; § 1132(g)), and that the legislative history of the act shows that Congress intended the preemption of state law only where it limited recovery against the employer to an amount less than federal law provided. The majority ignore 29 United States Code section 1132(g) and the legislative history dealing with preemption. Accordingly, at the outset, we must conclude that the provi- sions of 29 United States Code section 1145 may not be consid- ered in construing the preemption clause or to show an intent on the part of the Congress to preempt state laws permitting recovery for employer delinquencies equal to or greater than that permitted by federal law. II]. Laws Specifically Designed to Affect ERISA Plans In Mackey, the high court stated that it has “virtually taken it for granted that state laws which are ‘specifically designed to affect employee benefit plans’ are pre-empted” under the preemp- tion clause. (Mackey, supra, 486 U.S. at p. 829 [100 L.Ed.2d at p. 844, 108 S.Ct. at p. 2185.]) On the basis of this rule the high court invalidated a Georgia statute that exempted ERISA plans from the state’s garnishment law. (/bid.) The majority in their bottom line—by exempting ERISA plans from mechanics lien laws—violate the rule against special treatment of ERISA plans. As pointed out above, the express preemption provision applies to “any and all State laws.” That term applies not merely to Statutes but also to “decisions .. . having the effect of law of any State.” (29 U.S.C. § 1144(c)(1).) Accordingly, just as it is ordinarily improper for the Legislature to adopt statutes specifi- —_— A-21 cally designed to affect ERISA plans, it is improper for this court through its decisions to establish laws specifically designed to affect ERISA plans. The ultimate effect of the majority opinion is to subject ERISA plans and members of ERISA plans to special treatment. Civil Code section 3110 grants mechanics liens to numerous specifi- cally identified persons for services rendered when such persons have been unpaid and have contributed to an improvement. Civil Code section 3111 provides the same mechanics lien for ERISA plans which administer fringe benefits like health insurance and pension benefits. By permitting those enumerated in section 3110 to obtain liens but denying liens to ERISA plans, the majority single out ERISA plans for special treatment. The payments to the ERISA plan sought to be recovered are part of the compensa- tion of those who furnish labor for the improvement. The net effect of the state law established by the majority is that employ- ees who are not members of ERISA plans obtain liens for their entire unpaid compensation, whereas those who are members and receive part of their compensation through ERISA plans obtain a lien for only part of their compensation. The majority seek to justify the special treatment of ERISA plans by asserting that, unlike those mentioned in Civil Code section 3110, ERISA plans do not furnish labor or materials to the construction project. (Maj. opn., ante, p. 1049.) However, as I demonstrate, the ERISA claim is part of the compensation for the worker and must be treated the same as the other compensation. The cases have recognized that the claims of the ERISA plans are part of the employee’s compensation and must be treated the same as the compensation. In Plumber's Local 458 v. H. Immel, Inc. (1989) 151 Wis.2d 233, [445 N.W.2d 43, 44-45], the mechanics lien statute provided for a lien for “any person furnish- ing labor,” and the court concluded that the lien statute could not be restricted to hourly wages but included claims by ERISA plans for funds for fringe benefits. Similarly, in the closely analogous situation presented in United States v. Carter (1956) 353 U.S. 210 [1 L.Ed.2d 776, 77 S.Ct. A-22 793], the issue was the liability of a surety to fringe benefit funds on a payment bond furnished by a contractor, as required by the Miller Act (40 U.S.C. § 269a et seq.), for the protection of persons furnishing labor or materials for the construction of federal buildings. The statute provided that every “person who has furnished labor or material in the work provided for in such contract... shall have the right to sue on such payment bond. . . for the sum justly due him.” (40 U.S.C. § 270b(a). The court stated: “The Miller Act represents a congressional effort to protect persons supplying labor and material for the construction of federal public buildings in lieu of the protection they might receive under state statutes with respect to the construction of nonfederal buildings.” (353 U.S. at p. 216 [1 L.Ed.2d at p. 782].) Among the protection under state statutes, obviously, is the mechanics lien statute applying to private buildings; thus, the issue is clearly analogous. Notwithstanding that the statute was phrased in terms “furnished labor,” the court concluded that the fringe benefit funds could maintain an action on the bond. The court reasoned in part that the “contributions were a part of the compensation for the work to be done by [the] employees” and that trustees “stand in the shoes of the employees and are entitled to enforce their rights.” (Jd., at pp. 217-218, 220 [1 L.Ed.2d at pp. 783-784]; see Morrison-Knudsen Constr. Co. v. Director, OWCP (1982) 461 U.S. 624, 631 [76 L.Ed.2d 194, 200, 103 S.Ct. 2045].) A similar view is found in our code sections dealing with stop notices and state payment bonds (the state Miller Act counter- part), which treat claims by laborers and ERISA plans as being the same thing. (See Civ. Code, §§ 3181, 3247.) Our court has long recognized the basic principle that claims for fringe benefits are part of the compensation and must be treated accordingly as to creditors’ rights. Thus in Dunlop v. Tremayne (1965) 62 Cal.2d 427 [42 Cal.Rptr. 438, 398 P.2d 774, 17 A.L.R.3d 368], we held that under the preference statute applicable to assignments for the benefit of creditors, Code of Civil Procedure section 1204, health, welfare, and pension contri- butions would be included under the term “wages.” The court reasoned: “The terms and conditions of the payments were A-23 ascertained by the employers and representatives of the employ- ees in wage negotiations, as part of a total wage package. Pay- ments are made by the employer not as a gift but in consideration of the services of the employees. In an economic sense they are wages.” (62 Cal.2d at p. 431.) We cannot ignore the practical effect of our decisions. ERISA plans and others who have unpaid claims based on construction projects are usually unpaid because there are not enough funds to go around. To permit architects, engineers, surveyors, mechanics, laborers and others enumerated in Civil Code Section 3110 to obtain liens while denying liens to ERISA plans is to make LRISA plans second-class creditors. The effect of the preference will ordinarily mean that section 3110 creditors will have a preference and will receive all or part of their claims while ERISA plans will receive none. Making the plans second-class creditors flies in the face of ERISA’s express policy to protect the interest of participants in the plans (29 U.S.C. § 1001(b), (c)) and, more particularly, ERISA’s express policy “to provide rea- sonable protection for the interests of participants and benefi- ciaries of financially distressed multiemployer pension plans” and “to provide a financially self-sufficient program for the guarantee of employer benefits under multiemployer plans.” (29 U.S.C. § 100la(c) (3), (4).) The express preemption clause in ERISA is directed at state law generally, including both statutory and decisional law. Whether special treatment of ERISA plans is accomplished by a statutory exemption from general law requirements as in Mackey, or by a decision of the court permitting application of a specific provision to everyone by enumerating them individually but leaving out ERISA plans, the effect is the same. The special treatment is preempted and, because the majority .. the bottom line provide for special treatment, the law enunciated in their decision is contrary to federal law and is thus preempted. More- over, the decision discriminates against union employees belong- ing to multiemployer ERISA plans by denying them lien rights for the full amount of their compensation—while allowing non- ERISA employees liens for all of their compensation. A-24 IV. State Laws Not Preempted Congress has not preempted state lien laws. Mackey establishes three classes of state laws that are not preempted. The first class is those cases where Congress has provided for the application of state law. (Mackey, supra, 486 U.S. at p. 832 [100 L.Ed.2d at pp. 845-846, 108 S.Ct. at pp. 2186-2187].) As will appear in part VI of this opinion, Congress has expressly provided for the use of state law to enforce the duty to make payments to ERISA plans. “ERISA plans may be sued in a second type of civil action, as well. These cases—lawsuits against ERISA plans for run-of-the-mill claims such as unpaid rent, failure to pay creditors, or even torts committed by an ERISA plan —are relatively commonplace.” (486 U.S. at p. 833 [100 L.Ed.2d at p. 846, 108 S.Ct. at p. 2187], fn. omitted.) As will also appear, mechanics liens are such run-of-the-mill claims. The third class was the one before the high court, garnishment. Because it was directly involved in Mackey it is treated first. The reasoning of the high court is much broader than garnishment used to collect a judgment, and it is improper to treat this part of the Mackey opinion, as the majority do (maj. opn., ante, at pp. 1054-1055), as merely establishing a garnishment exception to the preemption clause. The reasoning is applicable not merely to garnishment but to all enforcement mechanisms for collecting money judgments and also prejudgment mechanisms to secure the collection of debts, including liens such as the mechanics lien before us. And, while Mackey obviously involved a suit against an ERISA plan, it is apparent the same view should apply when the plan sues. In Mackey, the court reasoned: “ERISA does not provide an enforcement mechanism for collecting judgments won in cither of these two types of actions. Thus, while section [1132(d)], the ‘sue and be sued’ provision, contemplates execution of judgments won against plans in civil actions, it does not provide mechanisms to do so. Moreover, Federal Rule of Civil Procedure 69(a), which would apply when either type of civil suit discussed above is brought against an ERISA plan in federal court, defers to state ieee A-25 law to provide methods for collecting judgments. [ Citation. ] Consequently, state-law methods for collecting money judgments must, as a general matter, remain undisturbed by ERISA; other- wise, there would be no way to enforce such a judgment won against an ERISA plan. If attachment of ERISA plan funds does not ‘relate to’ an ERISA plan in any of these circumstances, we do not see how respondent’s proposed garnishment order would do so.” (486 U.S. at pp. 833-834 [100 L.Ed.2d at p. 846, 108 S.Ct. at p. 2187], fn. omitted.) Federal Rules of Civil Procedure, rule 69(a) provides that proceedings “supplementary to and in aid of a judgment, and in proceedings on and in aid of execution shall be in accordance with the practice and procedure of the state in which the district court is held.” It follows that parties seeking to obtain a judgment lien must do so on the basis of state law. Since ERISA does not provide for judgment liens and, so far as I am aware, the federal government has not adopted a recording act for federal real property judgment liens, the proceedings to obtain and enforce judgment liens thus are entirely matters of state law even where the judgment is a federal judgment. Generally, proceedings to establish and enforce liens are run- of-the-mill state law proceedings. The preliminary 20-day notice of intent to file a mechanics lien (Civ. Code, §§ 3097, 3114) is probably the most often served legal document in our state. Similarly, mortgages and deeds of trust are probably among the most frequently recorded documents in this state, and, of course, the purpose of the recording is to establish the lien. The reconvey- ance to cancel the mortgage or deed of trust lien is recorded with equal frequency. Furthermore, to conclude that state lien laws are preempted when ERISA plans are involved means that millions, perhaps billions, of dollars invested by ERISA pension plans in notes secured by mortgages and deeds of trust are jeopardized. Those liens, like mechanics liens, provide an “additional cause of action” in the property of a fourth party, a party other than the employer, employee or the plan, and ERISA does not provide a method to enforce mortgages. To suggest that a Congress which adopted a comprehensive law to protect the interests of participants in A-26 employee benefit plans (29 U.S.C. § 1001(b)) intended to pre- empt state lien laws strains credulity. Generally, state law prejudgment mechanisms for securing the ultimate payment of debts are utilized by the federal courts. While Federal Rules of Civil Procedure, rule 69(a) provides for the adoption of state law methods to obtain collection after. judgment, rule 64 provides for the adoption of prejudgment state law methods to secure payment of debts. The rule provides that the remedies thus available “include arrest, attachment, garnish- ment, replevin, sequestration, and other corresponding or equivalent remedies, however designated and regardless of whether by state procedure the remedy is ancillary to an action or must be obtained by an independent action.” Under this provision it is clear that the builders of a building for an ERISA plan and their workers should be able to secure and enforce in federal court (when jurisdiction is proper) a mechanics lien arising against the property under state law. Likewise, ERISA plans under this provision should be entitled to enforce state law liens, including mechanics liens. No distinction may be made as to liens arising from the provisions of ERISA plans and other liens in favor or against ERISA plans. In Mackey, the Solicitor General argued that while other types of garnishment may be permitted with respect to ERISA plans, the court should not permit garnishment when it will affect whether benefits will be paid to a plan participant. ERISA expressly provides that a participant or beneficiary may bring an action to recover benefits due, to enforce rights under the plan, to clarify rights under the plan and to obtain equitable relief (29 U.S.C. § 1132(a)(1)(B), (a)(3)), and Pilot Life Ins. Co. v. Dedeaux, supra, 481 U.S. 41 (hereafter Pilot Life), held that ERISA preempted state law causes of action by a participant or beneficiary to enforce his or her rights. The Mackey court rejected the Solicitor General’s argument on the ground that the preemption clause did not permit the distinc- tion—it could not be held that the garnishment did not “relate to” the plan when fourth parties were involved but did “relate to” the plan when the rights of plan participants were involved. (486 U.S. at p. 836 [100 L.Ed.2d at p. 848, 108 S.Ct. at pp. 2188-2189.) | A-27 Similarly, here, it may not be concluded that mechanics liens do not “relate to” the plan when laborers or suppliers seek to establish liens against an office building built by a plan, but “relate to” the plan when it seeks to recover employer contributions. The majority argue that Civil Code section 3111 creates new substantive rights permitting the plan to enforce a debt against property of a fourth party who is not a party to the collective bargaining agreement. (Maj. opn., ante, p. 1055) However, the lien does not create personal liability of the owner. It has long been recognized that the lien of the mechanic, artisan and supplier is equitable because those parties have created the very property upon which the lien attaches. (Tuttle v. Montford (1857) 7 Cal. 358, 360; Connolly Development, Inc. v. Superior Court (1976) 17 Cal.3d 803, 825-827 [132 Cal.Rptr. 477, 553 P.2d 637].) Obviously, return of the materials or labor to the unpaid supplier or laborer is not a viable option, and the law’s recognition of the unpaid supplier’s and laborer’s contributions to the improvement does not create a debt or personal liability on the part of the owner, but only an interest in the property they helped create. The fact that the mechanics lien may provide a priority against fourth parties, so that if the debt is unpaid the lienor may proceed to the detriment of fourth parties, does not mean that a personal cause of action is created. The effect of a lien against property is to give the lienor priority against some other claimants to the property, such as owners, subsequent mortgagees, judgment lien- ors or purchasers. In other words, the fact that a lien may prejudice fourth party claimants is not unique to mechanics liens but is common to all liens, and the effect in all cases is to give the lienor an actionable claim against the property affecting fourth parties with lesser priority. Only when the employer and the owner are the same, such as a specification builder, will the owner be individually liable, and then his liability exists even though the plan does not seek to enforce the lien. As we have seen, the ERISA plan merely stands in the shoes of the workers and seeks recovery of their compensation, so its lien also is based upon the creation of the very property upon which the lien attaches. A-28 The fact that California has created a cause of action limited to property rights of a fourth party does not mean there is preemp- tion. The Georgia garnishment statute upheld in Mackey created a cause of action in favor of a fourth party against ERISA plans. ERISA is fundamentally concerned with the relationship between the members of the plan, employers, and the plan and its fiduciary, and hardly any of its provisions are concerned with the rights and duties of fourth parties. I conclude that ERISA, which does not preempt state laws providing mechanisms to collect judgments, also does not pre- empt state laws providing prejudgment mechanisms to secure the payment of debts such as liens, and that this is true even if Congress has preempted causes of action to collect the debt. V. The Cause of Action to Recover Employer Payments Since the instant case involves a state law lien which is not preempted whether or not the related cause of action to collect the debt is preempted, it does not seem necessary to reach the issue whether ERISA’s preemption ciause preempts actions to enforce the agreed payment. Nevertheless, I will deal with the issue because the majority address it. My conclusion is that ERISA, as originally enacted, did not provide a federal cause of action for plans to recover a money judgment against delinquent employers and that, if state law causes of action were found preempted, the fundamental congressional purpose of protecting employee benefits would be defeated. As pointed out above, in interpreting the preemption clause we look to the intent of the Congress that enacted the clause and consider the structure of ERISA. In a comprehensive statute to regulate ERISA plans there are obviously three areas requiring regulation, namely, the relationship [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2744%3A1. Public record. Not legal advice.