                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAY 31 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

LARRY A. BENSON, an individual,                 No.    17-55253

                Plaintiff-Appellant,            D.C. No. 2:16-cv-05019-GW-E

 v.
                                                MEMORANDUM*
LIFE INSURANCE COMPANY OF
NORTH AMERICA, a Pennsylvania
corporation,

                Defendant-Appellee.

                   Appeal from the United States District Court
                      for the Central District of California
                    George H. Wu, District Judge, Presiding

                       Argued and Submitted May 18, 2018
                              Pasadena, California

Before: WARDLAW, NGUYEN, and OWENS, Circuit Judges.

      Larry Benson appeals the district court’s orders dismissing his complaint

and amended complaint against Life Insurance Company of North America

(“LINA”). We have jurisdiction under 28 U.S.C. § 1291. Reviewing de novo, see

Cleghorn v. Blue Shield of Cal., 408 F.3d 1222, 1225 (9th Cir. 2005), we affirm.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      1. The district court did not abuse its discretion by considering evidence of

the disability insurance policy and summary plan descriptions submitted with

LINA’s motion to dismiss. These documents were integral to Benson’s claims, he

did not identify any inaccuracies in the copies provided by LINA, and these copies

contained the policy language quoted in the complaint. See Parrino v. FHP, Inc.,

146 F.3d 699, 706 & n.4 (9th Cir. 1998), superseded on other grounds by statute,

28 U.S.C. § 1453(b), as recognized in Abrego Abrego v. Dow Chem. Co., 443 F.3d

676, 681 (9th Cir. 2006) (per curiam). In light of these documents, the district

court properly rejected Benson’s conclusory allegations regarding the applicability

of ERISA’s safe harbor provision, 29 C.F.R. § 2510.3-1(j).

      2. We need not decide whether Benson’s claims for public disclosure of

private facts and negligent infliction of emotional distress are preempted by

ERISA, because “we may affirm on any ground raised below and supported by the

record,” Wendell v. GlaxoSmithKline LLC, 858 F.3d 1227, 1239 (9th Cir. 2017),

and the underlying factual allegations preclude relief. LINA’s alleged disclosure

was not “widely published” but rather was “confined to a few persons or limited

circumstances.” Hill v. Nat’l Collegiate Athletic Ass’n, 865 P.2d 633, 648–49

(Cal. 1994). Moreover, the limited dissemination of private medical records to a

disinterested attorney is insufficient to cause “the sort of serious emotional distress

with which a reasonable, normally constituted person would be unable to cope.”


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Wong v. Tai Jing, 117 Cal. Rptr. 3d 747, 768 (Ct. App. 2010); cf. Jackson v.

Mayweather, 217 Cal. Rptr. 3d 234, 257–58 (Ct. App. 2017) (concluding that

defendant’s posting plaintiff’s sonogram and summary medical report on social

media did not support claim for negligent infliction of emotional distress).

      3. The district court correctly ruled that Benson’s pre-litigation costs and

attorney’s fees are unavailable as “appropriate equitable relief” under ERISA

§ 502(a)(3). Even assuming an ERISA plan beneficiary’s private consequential

damages from the plan administrator’s breach of duty is the sort of make-whole

remedy typically available in equity to a trust beneficiary, see CIGNA Corp. v.

Amara, 563 U.S. 421, 441–42 (2011), here such relief would be inconsistent with

the purpose of the ERISA plan. See Cann v. Carpenters’ Pension Tr. Fund for N.

Cal., 989 F.2d 313, 317 (9th Cir. 1993) (concluding that award of attorney’s fees

incurred during administrative proceedings could “encourag[e] plans to pay

questionable claims in order to avoid liability for attorneys’ fees” and thereby

undermine ERISA’s purpose of promoting plan “soundness and stability . . . with

respect to adequate funds to pay promised benefits” (internal quotation mark

omitted)); see also Donovan v. Mazzola, 716 F.2d 1226, 1235 (9th Cir. 1983)

(observing courts’ duty “to enforce the remedy which is most advantageous to the

participants and most conducive to effectuating the purposes of the trust”).

      AFFIRMED.


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