Yvonne Apelian v. Allstate Insurance Co. ( 2018 )


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  •                            NOT FOR PUBLICATION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
    

Document Info

Docket Number: 17-55386

Filed Date: 6/19/2018

Precedential Status: Non-Precedential

Modified Date: 4/18/2021