Maria O. Segovia v. E. LYNN SCHOENMANN, Trustee -

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIA O. SEGOVIA,
Debtor - Appellant,
v.
E. LYNN SCHOENMANN,
Trustee - Appellee.
No. 09-16146
D.C. No. 4:08-cv-03075-PJH
MEMORANDUM*
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
FILED
JAN 07 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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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

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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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