NOT FOR PUBLICATION
FILED
UNITED STATES COURT OF APPEALS
JUN 19 2018
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
YVONNE APELIAN, an individual, No. 17-55386
Plaintiff – Appellee, D.C. No. 2:16-cv-04977-PSG-PLA
v. MEMORANDUM*
ALLSTATE INSURANCE COMPANY,
an Illinois corporation; SUZANNE
BADAWI, Counsel for defendant
Allstate Insurance Company,
Defendants – Appellants.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Argued and Submitted June 5, 2018
Pasadena, California
Before: FERNANDEZ and CHRISTEN, Circuit Judges, and BENNETT,** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Mark W. Bennett, United States District Judge for the
Northern District of Iowa, sitting by designation.
1
Appellants Allstate Insurance Company and its trial counsel appeal a
magistrate judge’s sanctions award of attorney’s fees of $12,500 plus an additional
$500 against Allstate, and $950 against its trial counsel as sanctions for conduct
related to an unsuccessful settlement conference. The magistrate judge’s sanction
order was affirmed by the district court judge. We have jurisdiction pursuant to 28
U.S.C. § 1291. We review sanctions for abuse of discretion. Mendez v. County of
San Bernardino, 540 F.3d 1109, 1130 (9th Cir. 2008), overruled on other grounds
by Arizona v. ASARCO, L.L.C., 773 F.3d 1050 (9th Cir. 2014); Official Airline
Guides, Inc. v. Goss, 6 F.3d 1385, 1396 (9th Cir. 1993).1 We affirm the sanctions
against trial counsel, but reverse the sanctions against Allstate.
1. It is undisputed that trial counsel was late in filing Allstate’s
confidential mediation statement as required by the court’s Settlement Order, that
the statement failed to include many of the categories of information required by
the Settlement Order, and that trial counsel was approximately 15 minutes late
1
Rule 16(f) of the Federal Rules of Civil Procedure permits federal
courts to impose sanctions on a party or attorney who is (1) “substantially
unprepared to participate—or does not participate in good faith—in [a settlement]
conference,” or (2) “fails to obey a scheduling or other pretrial order.” FED. R.
CIV. P. 16(f)(1)(B)-(C). A district court may set aside a magistrate judge’s order if
it is clearly erroneous or contrary to law. FED. R. CIV. P. 72(a); see also 28 U.S.C.
§ 636(b)(1)(A).
2
arriving for the settlement conference.2 We find this conduct sufficient to affirm
the $950.00 sanction. Mendez, 540 F.3d at 1130; Goss, 6 F.3d at 1396. Thus, we
do not reach other contested issues the magistrate judge relied upon in awarding
this sanction.
While uncontested, we find it troubling that none of these deficiencies
appeared to concern the magistrate judge, despite several opportunities to raise
them, until after Allstate made its only settlement offer at the settlement
conference, which was to waive costs in exchange for a dismissal. That offer
clearly displeased the magistrate judge, presumably because it was also not
disclosed to the magistrate judge prior to the settlement conference despite two
opportunities to do so. This offer was the catalyst for the magistrate judge’s
conclusion that Allstate and its counsel failed to participate in good faith in the
settlement conference. Interestingly, or perhaps ironically, this is the precise offer
the plaintiff accepted slightly over a month later.
2
There is a fact dispute as to how late counsel was to the settlement
conference and her accuracy in disclosing to the court how late she was, but those
are disputes we need not resolve. At most, counsel was 18 minutes late. She also
offered mitigation that she had used GPS for several days prior to the settlement
conference to determine how long it would take her to get to the courthouse, but
that an unexpected train caused her to be late. When she realized she was going to
be late, she called the Allstate representative appearing with her at the settlement
conference to ask him to inform the court she would be late.
3
2. We reverse the sanctions award of attorney’s fees plus $500 against
Allstate. There is no evidence that Allstate was responsible for or even knew about
counsel’s failure to submit a timely and complete confidential mediation statement;
counsel’s decision not to disclose Allstate’s meager settlement position prior to the
settlement conference; or counsel’s tardy appearance at the settlement conference.
There is also no evidence that Allstate failed to participate in the settlement
conference in good faith. Thus, we find it was an abuse of discretion to sanction
Allstate.
AFFIRMED IN PART AND REVERSED IN PART
The parties shall bear their own costs on appeal.
4