CONSTRUCTION LABORERS TRUST FUNDS FOR SOUTHERN CALIFORNIA ADMINISTRATIVE COMPANY, Plaintiff-Appellant, v. MARTINEZ LANDSCAPE COMPANY, INC., Defendant-Appellee, 218 F. App'x 631

MEMORANDUM Construction Laborers Trust Funds (CLTF) appeals the

summary judgment entered in favor of Martinez Landscaping Co. We reverse because the district court overlooked CLTF’s request pursuant to Federal Rule of Civil Procedure 56(

f) for a continuance to conduct discovery. Cf. United States v. Larry Flynt, 756 F.2d 1352, 1362 (9th Cir.1985). Discovery had previously been stayed pending resolution of a dispute about subject matter jurisdiction. The court determined that it had jurisdiction, but then treated the parties’ submissions on Martinez’s motion to dismiss as a motion for

summary judgment without ruling on the Rule 56(

f) request. As a result, CLTF was denied any discovery at all, without consideration of whether the discovery sought was appropriate or could have raised a triable issue of fact. We cannot say that this does not matter. The order granting

summary judgment turned on CLTF’s failure to controvert evidence submitted by Martinez showing that Laborers’

Schedule A is not the “appropriate” one to define Martinez’s contractual obligation to make trust fund contributions. This was based on Martinez’s representation that it assigned work to the Southern California Pipe Trades District Council, and on evidence that Martinez made benefits payments to the Pipe Fitters’ trust fund pursuant to the Pipe Fitters’ collective bargaining agreement.

The difficulty is that Martinez performed work covered by the Los Angeles Unified School District Project Stabilization Agreement as of January 2000, but did not become a signatory to the Pipe Fitters’ collective bargaining agreement until October 9, 2002. CLTF acknowledges that it does not claim contributions after October 9, 2002. But CLTF argues that the only way it could adduce evidence to refute Martinez’s representation that work was assigned to the Pipe Fitters for the period between January 2000 and October 9, 2002 is by discovery.

The reason, it submits, is that CLTF does not otherwise know to whom Martinez may have assigned work, which in turn, is the only way CLTF can show that the Laborers’ Master Labor Agreement (MLA) was the “appropriate”

Schedule A Agreement. This is because the Laborers’ MLA is the relevant agreement under the PSA only if Martinez’s employees were assigned work falling under Laborers’ classifications. Thus, CLTF has shown prejudice. We express no opinion one way or the other on the proper scope of discovery, or the significance of what discovery might reveal, but

summary judgment should not have been granted without addressing the Rule 56(

f) request. REVERSED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.