                                                                           FILED
                           NOT FOR PUBLICATION                             FEB 23 2015

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



                            FOR THE NINTH CIRCUIT


E & J GALLO WINERY, as administrator             No. 13-55327
of the E. & J. Gallo Winery Executive
Retirement Plan,                                 D.C. No. 8:09-cv-00513-DMG-
                                                 MLG
              Plaintiff,

  v.                                             MEMORANDUM*

AUDREY ROGERS,

              Defendant-cross-defendant -
Appellee,

RANDY ROGERS, as Administrator of
the Estate of Robert G. Rogers,

              Defendant - Appellee,

  v.

MICHELE MCKENZIE-ROGERS,

              Defendant-cross-claimant -
Appellant.


                    Appeal from the United States District Court
                       for the Central District of California


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                      Dolly M. Gee, District Judge, Presiding

                          Submitted February 11, 2015**
                              Pasadena, California

Before: GRABER and WARDLAW, Circuit Judges, and MAHAN, District
Judge.***

      E. & J. Gallo Winery filed this interpleader action to determine the

designated beneficiary under the Key Executive Profit Sharing Retirement Plan

(the “ERP”) belonging to Robert Rogers, a now-deceased former Gallo employee.

The district court denied Michele Rogers’ motion for summary judgment,

concluding that Mark Rogers was the proper beneficiary of the ERP benefits.

Michele appeals.1 We have jurisdiction pursuant to 28 U.S.C. § 1291, and we

affirm.

      1. The parties dispute whether the documents governing the ERP are the

1988 letter confirming Robert’s ERP membership and accompanying beneficiary

designation alone, or whether the terms of the Gallo Profit Sharing Retirement Plan

(the “Gallo Qualified Plan”), an ERISA qualified plan, were incorporated into the

          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
          ***
             The Honorable James C. Mahan, District Judge for the U.S. District
Court for the District of Nevada, sitting by designation.
      1
        For ease of reference, we refer to each member of the Rogers family by his
or her first name.

                                         2
ERP when certain of its terms were referenced in the 1988 letter. The district court

correctly concluded that the 1988 letter, in which the terms of the ERP were

described, did not clearly and unequivocally incorporate by reference the entirety

of the Gallo Qualified Plan. See Cariaga v. Local No. 1184 Laborers Int’l Union

of N. Am., 154 F.3d 1072, 1074 (9th Cir. 1998) (quoting Slaught v. Bencomo

Roofing Co., 30 Cal. Rptr. 2d 618, 621 (Ct. App. 1994)). First, the letter does not

clearly express the intent to incorporate all of the terms of the Gallo Qualified Plan.

Michele relies heavily on the letter’s third paragraph, which states that vesting,

methods of payment and “all other matters” will be determined under the Gallo

Qualified Plan. This reads “all other matters” too broadly, as the fourth paragraph

of the 1988 letter specifically addresses the issue of designating a beneficiary, and

informed Robert that if he did not do so in the accompanying form, payments

would be made to his estate. Second, the terms relating to beneficiary designation

in the 1988 letter are in direct contradiction to the analogous provisions in the

Gallo Qualified Plan, Section 5.5.3. The Gallo Qualified Plan provides that

benefits would be paid a) to the surviving spouse, or b) to the designated

beneficiary, but only if there was no surviving spouse or if the surviving spouse

had consented to the designated beneficiary, and would pass to the estate only if




                                           3
there were no surviving spouse or the surviving spouse had consented to the

designated beneficiary.

      2. The district court correctly concluded that Robert unambiguously

designated his former wife, Audrey Rogers, as his primary beneficiary under the

ERP, and his brother, Mark, as his secondary beneficiary. See Metro. Life Ins. Co.

v. Parker, 436 F.3d 1109, 1114 (9th Cir. 2006). Nothing in the ERP governing

documents provided that Robert’s marriage to Michele would void his prior

beneficiary designation. And, the ERP is a non-qualified, top hat plan, exempted

under ERISA from spousal consent requirements. See Gilliam v. Nev. Power Co.,

488 F.3d 1189, 1193 (9th Cir. 2007) (“ERISA exempts [top hat] plans from the

fiduciary, funding, participation and vesting requirements applicable to other

employee benefit plans.” (internal quotation marks omitted)). Because Audrey

waived her rights as the primary beneficiary of the ERP in a “Waiver and General

Release” that she signed on February 6, 2008, the district court correctly found that

Mark is entitled to the ERP benefits.

      AFFIRMED.




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