FILED
NOT FOR PUBLICATION MAR 12 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RE/MAX MEGA GROUP, a California No. 11-55142
corporation,
D.C. No. 2:09-cv-06310-DDP-CT
Plaintiff - Appellant,
v. MEMORANDUM*
MAXUM INDEMNITY COMPANY, a
Delaware corporation,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Argued and Submitted March 6, 2012
Pasadena, California
Before: FARRIS, CLIFTON, and IKUTA, Circuit Judges.
The district court did not abuse its discretion by striking plaintiff Re/Max
Mega Group’s opposition to summary judgment, which was filed two to three days
late in an improper format, after Re/Max had been admonished by the district court
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
for filing its opposition papers late once before and warned that any future
opposition must be timely filed. See Cusano v. Klein, 264 F.3d 936, 950–51 (9th
Cir. 2001). Rather than granting summary judgment as “a mere sanction for
noncompliance with local rules,” Martinez v. Stanford, 323 F.3d 1178, 1182 (9th
Cir. 2003), the district court reviewed the evidence in the record and determined
that defendant Maxum Indemnity Company had met its burden under Federal Rule
of Civil Procedure 56(a) of demonstrating that there was no genuine dispute as to
any material fact and that Maxum was entitled to judgment as a matter of law. See
Cusano, 264 F.3d at 950–51; cf. Marshall v. Gates, 44 F.3d 722, 725 (9th Cir.
1995). The district court was not required to consider whether Re/Max’s delay in
filing constituted “excusable neglect” under Federal Rule of Civil Procedure 60(b)
because a district court need not consider Rule 60(b) issues sua sponte when the
moving party “failed to advance any argument . . . that might conceivably fall
within any of the enumerated factors under Rule 60(b).” See Am. Ironworks &
Erectors, Inc. v. N. Am. Constr. Corp., 248 F.3d 892, 899 (9th Cir. 2001).
Even if the district court abused its discretion by striking Re/Max’s
opposition, any error was harmless because the district court did not rely on any
disputed issues of material fact or ignore any meritorious legal arguments in
reaching its decision. On the undisputed facts, Re/Max had notice of third-party
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plaintiff Suk Young Yoo’s letters as of early March 2007 at the latest and yet did
not report them until late May at the earliest, almost two months after the thirty-
day reporting deadline had passed. Yoo’s letters were claims within the meaning
of the policy because they asserted that Re/Max was liable for negligence and
fraud, threatened suit, requested mediation, and included a copy of a civil
complaint for damages; they therefore constituted written demands for money or
services.
The policy is neither inconsistent nor ambiguous in limiting coverage to
claims reported as soon as practicable, but in no event later than thirty days after
notice to the insured. See Pac. Emp’rs Ins. Co. v. Superior Court, 270 Cal. Rptr.
779, 781–83 (Ct. App. 1990). Maxum did not waive the thirty-day reporting
requirement by failing to mention it when Maxum denied Re/Max’s claim,
especially given that Maxum expressly stated it did not intend to “waive any other
rights or privileges under the terms and conditions of [the] policy,” and that
Maxum did not know at the time that Re/Max had been on notice of Yoo’s claim
since early March. See Waller v. Truck Ins. Exch., Inc., 900 P.2d 619, 635–36
(Cal. 1995). Re/Max’s argument based on equitable estoppel also fails because
Re/Max has not presented any evidence that Maxum induced Re/Max’s belated
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reporting or that Re/Max relied to its detriment on Maxum’s initial ground for
denial. See id. at 637–38.
Finally, because Re/Max raised the equitable excuse doctrine and the notice-
prejudice rule for the first time in its reply brief, these arguments have been
waived. See Liberal v. Estrada, 632 F.3d 1064, 1072 n.6 (9th Cir. 2011); Eberle v.
City of Anaheim, 901 F.2d 814, 818 (9th Cir. 1990).
AFFIRMED.
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