Guthart

MEMORANDUM *

Appellant appeals the district court’s award of fees against him in his action for health benefits allegedly due under a union trust fund. 1 Appellees cross-appeal the amount of the attorneys fee award in their favor. We reverse and remand with respect to Guthart’s appeal, and dismiss the cross-appeal.

We review the district court’s determination on an ERISA fees award for an abuse of discretion. See Hummell v. S.E. Rykoff & Co., 634 F.2d 446, 452 (9th Cir. 1980). We apply a five-factor test to determine whether an ERISA fee award is appropriate. See id. at 453 . These factors include (1) the degree of the opposing parties’ culpability or bad faith; (2) the ability of the opposing parties to satisfy an award of fees; (3) whether an award of fees would deter others from acting under similar circumstances; (4) whether the parties requesting fees sought to benefit all plan participants or resolve a significant legal question; and (5) the relative merits of the parties’ positions. See id.; see also McElwaine v. U.S. West, Inc., 176 F.3d 1167, 1172 (9th Cir.1999).

The district court found a fee award in favor of the defendants to be reasonable based, it appears, solely…