FILED

NOT FOR PUBLICATION

OCT 28 2019

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SUSAN K. BLACK; et al., No. 18-15296

Plaintiffs-Appellants, D.C. No. 3:16-cv-00486-EDL

v.

MEMORANDUM*

GREATER BAY BANCORP

EXECUTIVE SUPPLEMENTAL

COMPENSATION BENEFITS PLAN;

WELLS FARGO BANK, N.A.,

Defendants-Appellees.

SUSAN K. BLACK; et al., No. 18-15730

Plaintiffs-Appellees, D.C. No. 3:16-cv-00486-EDL

v.

GREATER BAY BANCORP

EXECUTIVE SUPPLEMENTAL

COMPENSATION BENEFITS PLAN;

WELLS FARGO BANK, N.A.,

Defendants-Appellants.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Appeal from the United States District Court for the Northern District of California Elizabeth D. Laporte, Magistrate Judge, Presiding

Argued and Submitted October 3, 2019 San Francisco, California

Before: W. FLETCHER and PAEZ, Circuit Judges, and CHOE-GROVES,** Judge.

This case concerns a dispute over the amount of retirement benefits due to

three former executive-level employees of Greater Bay Bancorp (“GBBK”) under

a benefits plan administered by GBBK’s successor, Wells Fargo Bank. The district

court granted summary judgment to defendants Greater Bay Bancorp Executive

Supplemental Compensation Benefits Plan and Wells Fargo Bank (collectively,

“Wells Fargo”) on the employees’ claims under § 502(a)(1)(B) of the Employee

Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1132(a)(1)(B).

The district court then denied Wells Fargo’s motion for attorneys’ fees under §

502(g)(1) of ERISA, 29 U.S.C. § 1132(g)(1). The employees appealed the

disposition of the parties’ cross-motions for summary judgment, and Wells Fargo

appealed the denial of its motion for attorneys’ fees. We affirm both orders.

** The Honorable Jennifer Choe-Groves, Judge for the United States Court of International Trade, sitting by designation. 2 Susan Black, Steven Smith, and Kimberly Burgess were participants in the

top level of GBBK’s Executive Supplemental Compensation Benefits Plan. The

plan agreement between each of the employees and GBBK includes only two types

of benefits: (1) a normal retirement benefit (or early retirement benefit if an

employee retires before age sixty-two) and (2) a supplemental benefit through a

secular trust. The plan agreement states that the plan provides no death benefits

except for any supplemental benefits provided through the secular trusts. The

secular trust agreements, which are included in each employee’s plan agreement as

an attached schedule, do not mention any death benefits. Instead, they require the

bank to make a series of defined annual contributions to the trusts sufficient to

make specified annual payments to the employees through age eighty-five.

Nonetheless, the employees contend that they are entitled to a guaranteed

death benefit. They contend that Wells Fargo, which succeeded GBBK as plan

administrator when the two banks merged, must fund the secular trusts so they

contain enough money not only for the annual payments, but also to make those

payments without diminishing the value of the whole life insurance policies held

by the trusts as investment vehicles. First, the employees cite summary plan

documents and benefits projections that show a death benefit remaining in the

trusts after the annual payments end. Second, the employees argue that Wells

3 Fargo must abide by the decision of the Benefits Determiner the employees

appointed with the trustees of the secular trusts.

We hold that the plan is unambiguous and that it contains no guaranteed

death benefit. We therefore need not resolve the allocation of authority between

the Benefits Determiner and Wells Fargo under the plan agreement. Summary

plan documents and other extrinsic evidence cannot add benefits that appear

nowhere in the plan documents themselves. See CIGNA Corp. v. Amara, 563 U.S.

421, 438 (2011); Mull ex rel. Mull v. Motion Picture Indus. Health Plan, 865 F.3d

1207, 1210 (9th Cir. 2017).

The district court declined to exercise its discretion under § 502(g)(1) to

award Wells Fargo its attorneys’ fees. We will disturb a district court’s decision

on a motion for attorneys’ fees only if the district court “used incorrect legal

standards” or “committed a clear error of judgment.” See Micha v. Sun Life

Assurance of Canada, Inc., 874 F.3d 1052, 1057 (9th Cir. 2017) (internal quotation

marks and citations omitted). In ERISA cases, a district court’s discretion on a

motion for attorneys’ fees must be guided by the five factors announced in

Hummell v. S.E. Rykoff & Co., 634 F.2d 446, 453 (9th Cir. 1980). See Simonia v.

Glendale Nissan/Infiniti Disability Plan, 608 F.3d 1118, 1121 (9th Cir. 2010).

4 Here, the district court carefully considered the Hummell factors, and its

conclusion was reasonable.

We decline to address Wells Fargo’s late-raised argument that the fee-

shifting provision in the plan agreement may serve as an independent basis for an

award of fees. See In re Mercury Interactive Corp. Sec. Litig., 618 F.3d 988, 992

(9th Cir. 2010). Wells Fargo’s motion to the district court sought an award of fees

only under § 502(g)(1) of ERISA.

AFFIRMED.

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