                                                                           FILED
                           NOT FOR PUBLICATION                              JAN 07 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



MARIA O. SEGOVIA,                                No. 09-16146

              Debtor - Appellant,                D.C. No. 4:08-cv-03075-PJH

              v.
                                                 MEMORANDUM *
E. LYNN SCHOENMANN,

              Trustee - Appellee.



                   Appeal from the United States District Court
                      for the Northern District of California
                   Phyllis J. Hamilton, District Judge, Presiding

                             Submitted July 15, 2010 **
                             San Francisco, California

Before: HUG, BEEZER, and HALL, Circuit Judges.

      Maria Segovia appeals pro se from the district court’s decision affirming the

bankruptcy court’s judgment. Segovia attempted to claim unexercised stock

options under her former employer’s long-term incentive compensation plan as


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
exempt property. The bankruptcy court held that the stock options were not

exempt, making them part of the bankruptcy estate, and the district court affirmed.

We review the bankruptcy court’s conclusions of law de novo and its factual

findings for clear error. In re Price, 353 F.3d 1135, 1138 (9th Cir. 2004). We have

jurisdiction under 28 U.S.C. § 158(d), and we affirm.

      The facts of this case are known to the parties. We do not repeat them.

                                            I

      The bankruptcy court did not make any findings regarding Segovia’s date of

retirement. The district court therefore considered the factual issue de novo and

concluded that Segovia’s date of retirement was on March 3, 2007. Because

Segovia continued to receive a salary from her employer under its continuation of

leave plan until March 3, 2007, the district court did not clearly err in determining

that this was the date of her retirement.

                                            II

      The long-term incentive compensation plan is not a retirement plan under

state or federal law, and is therefore not excludable from Segovia’s bankruptcy

estate. See 11 U.S.C. § 541(c)(2); Oatway v. Am. Int’l Group, Inc., 325 F.3d 184,

188-89 (3d Cir. 2003). Under ERISA, a retirement plan is a plan that is

“established or maintained by an employer” and “(i) provides retirement income to


                                            2
employees, or (ii) results in a deferral of income by employees for periods

extending to the termination of covered employment or beyond.” 29 U.S.C.

§ 1002(2)(A). The long-term incentive compensation plan did neither of these

things. The plan’s stated purpose is to “motivate key employees to produce a

superior return” and “to facilitate recruiting and retaining talented executives.” It

did this by providing employees current additional income throughout their

careers, not by deferring that income until retirement.

      Similarly, under California law, retirement plans must be “designed and

used for retirement purposes.” Cal. Civ. Proc. Code § 704.115(a); see In re Bloom,

839 F.2d 1376, 1378 (9th Cir. 1988). Here, the long-term incentive compensation

plan is not “designed and used for retirement purposes.” Again, it provided

current, not deferred, income.

                                          III

      Segovia has waived her challenge to the bankruptcy court’s approval of a

stipulation between Schoenmann and Wells Fargo allowing Schoenmann to

exercise Segovia’s stock options because she raises it for the first time on appeal.

See In re Focus Media, Inc., 378 F.3d 916, 924 n.7 (9th Cir. 2004).

      AFFIRMED.




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