                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAY 13 2015

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

FIRST NATIONAL BANK OF                           No. 13-15587
NORTHERN CALIFORNIA, a national
bank,                                            D.C. No. 4:11-cv-06631-PJH

              Plaintiff - Appellant,
                                                 MEMORANDUM*
 v.

ST. PAUL MERCURY INSURANCE
COMPANY, a Connecticut corporation,

              Defendant - Appellee.


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

                             Submitted May 11, 2015**
                              San Francisco, California




        *
             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).
Before: THOMAS, Chief Judge, and BENAVIDES*** and OWENS, Circuit
Judges.

      First National Bank of Northern California (“the Bank”) appeals from a

grant of summary judgment against it and in favor of St. Paul Mercury Insurance

Company (“the Insurer”). We affirm. Because the parties are familiar with the

history of this case, we need not recount it here.

      This insurance coverage dispute arises from a loss caused by the Bank’s

payment of two fraudulent wire transfers from the Edwards Living Trust, which

the Bank reimbursed. The Bank seeks indemnity from the Insurer under its

financial institution bond.

      The district court properly concluded that the loss was not covered under the

bond. The critical question is whether the Edwardses, who created the Trust, were

“customers” within the meaning of the bond. To qualify as a “customer” under the

bond, among other things, an individual or entity is required to have a written

agreement with the Bank to rely on wire transfer instructions communicated by

phone or fax. The undisputed facts show that there was no written agreement.

Therefore, the district court properly entered summary judgment.




        ***
            The Honorable Fortunato P. Benavides, Senior Circuit Judge for the
U.S. Court of Appeals for the Fifth Circuit, sitting by designation.

                                          -2-
      The Bank argues that the signature card, account agreement, and security

procedures may be combined under the incorporation by reference doctrine to

establish a written agreement authorizing wire transfers on the basis of voice or fax

authorization. Under California law, which governs this dispute, parties to a

contract may validly incorporate by reference into their agreement the terms of

another document when specific factors are met. See, e.g., Avery v. Integrated

Healthcare Holdings, Inc., 159 Cal. Rptr. 3d 444, 457 (Cal. Ct. App. 2013). The

prerequisites for incorporation by reference are: (1) a clear and unequivocal

reference by the parties; (2) the reference must be called to the attention of the

other party; (3) the party must consent; and (4) the terms of the incorporated

document must be known or easily available to the contracting parties. Scott’s

Valley Fruit Exch. v. Growers Refrigeration Co., 184 P.2d 183, 189 (Cal. Ct. App.

1947), disapproved on other grounds in Hischemoeller v. Nat’l Ice & Cold Storage

Co. of Cal., 294 P.2d 433, 439 (Cal. 1956).

      In this case, the district court properly concluded that, under California law,

the signature card, account agreement, and security procedures did not qualify as a

“written agreement” under the bond definition. The signature card, which is the

only document that the Edwardses actually signed, does not refer to the account

agreement or the security procedures. The security procedures were not provided


                                          -3-
to the Edwardses. The signature card does not contain any authorization for a wire

transfer from the account by voice or fax authorization. Under these undisputed

facts, the district court properly concluded that the combined signature card,

account agreement, and security procedures did not constitute a written agreement

with the Bank authorizing it to rely on wire transfer instructions communicated by

phone or fax. Therefore, the district court correctly concluded that the Edwardses

did not qualify as “customers” within the meaning of the bond.

      The Bank also contends that the district court erred by admitting certain

evidence, but does not provide the basis for its argument in its opening brief. It

instead asks us to incorporate by reference district court pleadings. Incorporation

of district court arguments is not permitted under Ninth Circuit Rule 28-1(b).

Because the contention was not specifically and distinctly argued, we will not

consider it. McKay v. Ingleson, 558 F.3d 888, 891 n.5 (9th Cir. 2009).



      AFFIRMED.




                                         -4-
