Sandra Wakamatsu v. Robert W. Oliver, Dds Etc.

NOT FOR PUBLICATION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.