NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 21 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
SANDRA WAKAMATSU, No. 12-16079
Plaintiff - Appellant, D.C. No. 3:11-cv-00482-CRB
v.
MEMORANDUM*
ROBERT W. OLIVER, D.D.S. AND
DAVID M. PERRY, D.D.S., INC. and
ROBERT W. OLIVER, D.D.S. AND
DAVID M. PERRY, D.D.S., INC. 401(K)
PROFIT SHARING PLAN,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, Senior District Judge, Presiding
Submitted April 11, 2014**
San Francisco, California
Before: KLEINFELD, NGUYEN, and WATFORD, Circuit Judges.
*
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).
Page 2 of 3
1. The plan administrator did not abuse his discretion by applying the
December 31, 2008, valuation date to Sandra Wakamatsu’s claim for benefits. The
plan grants the plan administrator broad discretion to interpret and administer the
plan, so we review his decision for abuse of discretion. See Abatie v. Alta Health
& Life Ins. Co., 458 F.3d 955, 964–65 (9th Cir. 2006) (en banc). But our review is
“tempered by skepticism commensurate with” the plan administrator’s conflicts of
interest. Id. at 959.
The district court correctly concluded that all of the plan administrator’s
alleged conflicts of interest are either nonexistent or minor. The alleged conflicts
based on the plan administrator’s potential legal liability, his wife’s “meddling in
Plan administration,” and the differing interests of retired versus current employees
are not supported by evidence in the record. One conflict—his family members’
financial interest in the pooled account—is supported. But that conflict deserves
little weight given the small financial interest at stake. Thus, we review the plan
administrator’s decision for abuse of discretion, with only slight additional
skepticism.
As to the merits of the plan administrator’s decision, he did not abuse his
discretion by applying the December 2008 valuation instead of the December 2007
valuation. He received Wakamatsu’s request for distribution on December 22,
Page 3 of 3
2008, just nine days before the December 31, 2008, valuation date. At that point,
he reasonably concluded that the December 2007 valuation no longer accurately
reflected the present account value. He had the authority to order an interim
valuation, but he instead waited for the already scheduled December 2008
valuation to avoid the additional expense. He did not abuse his discretion in taking
that course of action, particularly given that it is consistent with the treatment of
other plan participants and with the plan’s terms.
2. Wakamatsu did not raise her equitable estoppel claim in her opening
brief, so she has waived that claim. See Greenwood v. F.A.A., 28 F.3d 971, 977
(9th Cir. 1994). In any event, Wakamatsu’s equitable estoppel claim fails on the
merits. She cannot show “detrimental reliance” on any alleged misrepresentation
by Susan Yee, Associates in Excellence, or any plan representative. See Renfro v.
Funky Door Long Term Disability Plan, 686 F.3d 1044, 1054–55 (9th Cir. 2012).
Indeed, she never articulates how she detrimentally relied on any statement
regarding the valuation date that would be used to process her benefits claim.
AFFIRMED.