                                                                             FILED
                            NOT FOR PUBLICATION                               APR 20 2012

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


KELLY ST. JULIAN,                   )        No. 10-55470
                                    )
      Plaintiff – Appellant,        )        D.C. No. 8:08-cv-00147-CJC-MLG
                                    )
      v.                            )        MEMORANDUM*
                                    )
JOSEPH ST. JULIAN, an individual, )
                                    )
      Defendant – cross-claimant – )
      Appellee,                     )
                                    )
      and                           )
                                    )
METROPOLITAN LIFE                   )
INSURANCE COMPANY, a New )
York corporation; BUSINESS EDGE )
SOLUTIONS LIFE INSURANCE            )
PLANS, an ERISA Plan,               )
                                    )
      Cross-defendants – Appellees. )
                                    )

                   Appeal from the United States District Court
                      for the Central District of California
                   Cormac J. Carney, District Judge, Presiding




      *
       This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                 Submitted April 9, 2012**
                                   Pasadena, California

Before:        FERNANDEZ and SILVERMAN, Circuit Judges, and BLOCK,***
               District Judge.

      Kelly St. Julian appeals from the district court’s grant of summary judgment

to Joseph St. Julian on her claim seeking to impose a constructive trust over the

proceeds of an ERISA1 covered life insurance policy on the life of John St. Julian.

We affirm.

      Kelly asserts that because she was John’s surviving, though estranged,2

spouse, she can claim a community property interest in the proceeds. However,

regardless of whether California would determine that Kelly had a community

property interest in the policy, this court has clearly held that the preemption

provision of ERISA3 precludes the imposition of a constructive trust upon the

proceeds. See Carmona v. Carmona, 603 F.3d 1041, 1061–62 (9th Cir. 2010), cert.

      **
      The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
      ***
        The Honorable Frederic Block, Senior United States District Judge for the
Eastern District of New York, sitting by designation.
      1
          Employee Retirement Income Security Act, 29 U.S.C. §§ 1001–1461.
      2
       There can be no doubt that Kelly and John were living separately and that
Kelly had filed for a dissolution of the marriage.
      3
          29 U.S.C. § 1144(a).

                                            2
denied, ___ U.S. ___, 131 S. Ct. 1492, 179 L. Ed. 2d 305 (2011). As we said, “a

state law constructive trust cannot be used to contravene the dictates of ERISA.”

Id. at 1061.4 That being so, the district court properly granted summary judgment

in favor of Joseph. While Kelly launches a number of attacks on Carmona’s

reasoning, we are bound by its holdings. See, e.g., Hart v. Massanari, 266 F.3d

1155, 1171 (9th Cir. 2001).

      AFFIRMED.




      4
       Carmona, 603 F.3d at 1062, did note that, perhaps, a constructive trust
could be used “to recover ill-gotten gains.” However, there is no indication that
Joseph’s gains were “ill-gotten.”

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