E & Jgallo Winery, as administrator of the E. & J. Gallo Winery Executive Retirement… v. Audrey Rogers

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
E & J GALLO WINERY, as administrator
of the E. & J. Gallo Winery Executive
Retirement Plan,
Plaintiff,
v.
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.
No. 13-55327
D.C. No. 8:09-cv-00513-DMG-
MLG
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
FILED
FEB 23 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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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.
1For ease of reference, we refer to each member of the Rogers family by his
or her first name.
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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
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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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