ok good morning your honour's i'd like to reserve three minutes for rebuttal please just back of your time ok the first thing i want to point out is this case this appeal is not about whether a judge has a right to expect parties to comply with the judge's orders of course a judge has a right to do that and it's undisputed that any judge has a right to issue orders and that they will be complied with but that is not what this case is about what this case is about is a judge who was unhappy with the party settlement position during a settlement conference and announced both in chambers and openly on the record that he was going to sanction that party because the judge did not like that party settlement position and the next aspect of this case is that after announcing that which resulted in twelve thousand five hundred dollars of sanctions against allstate the judge in gauged in essentially and after the fact investigation to attempt to find other aspects that he could claim were noncompliance with court orders in an effort to shore up what was i believe clearly an improper sanctions  please if we agree with you sort of in other words if we agree with you that maybe that the sanction was disproportionate for example or that there were some of the factors that you're citing is improper what do we do if we that that and what i think the court does with that is the court looks to looks to its its guidance in the zambrano case which talks about different types of remedies that are appropriate when an attorney has not complied with a court order and there are a lot of different remedies that are available but the drastic remedy of sanction should only be available if there is some evidence of intentional misconduct or that an attorney has consistently failed to put comply with orders i there's no question that the settlement conference statement that state submitted did not comply with all of the elements that the judge required although i disagree that it was seven out of eight but that's really not the point it was late to sleep it and it was later proportionality i think that the strongest argument is is that it didn't merit an award of sanctions i think what would have been appropriate would have been an admonishment by the court on the record in open court and that probably would have completely solve the problem we're dealing with an attorney who has never been sanctioned in her decades long career ok the counsel problem i have with that and i'm get your way but the problem i have with that is it's an abuse of discretion standard and you're really asking us to decide differently if  your argument is you think it didn't merit sanction that's a pretty slippery slope well i would i would argue your honor that aig aig a failure to comply in in the aspect that the there's two issues here really the first issue is was that really something that the court wanted to sanction the attorney for and that issue is very important because the record is perfectly clear that after allstate submitted its settlement conference statement the judge spoke with the attorney before the conference the judge had no problems with the settlement conference statement the judge didn't ask any questions that that the judge felt were necessary in order to get the information that the judge needed they started the conference the judge made no comment about the settlement conference statement in chambers when they were discussing settlement the judge never said that the judge first raised that issue after the judge had made a decision to sanction all state and and i believe that the record is fairly clear that the judge motivation for raising a problem that he had never complained of earlier was because it was a cent a ten essentially wanting to punish a party and its lawyer for a settlement position that the judge disagreed a couple of days saying he need to supplement it in the following ways i could do that i mean i share your view that my reading of records seems that these are after the fact justifications particularly when he goes on  hunting expedition to find the videotape to argue about whether five or ten minutes later is a few minutes off i gree with that and the court scoured all the filings have been made by the parties as is evident at that in an effort to try to find evidence that would support a sanctions award of how do you explain i mean i understand the explanation of being late sucked into the street of the wife i problem at the hotel on fridays than even on sunday from the home that i think ten seventeen at night or something but how do you explain not disclosing your settlement position in the telephone call i realize the judge didn't specifically ask that the judge didn't ask  it and i think that all states settlement conference statement made it pretty clear that allstate did not believe there was any liability there was any damages but let me let me explain i gree that there should have been compliance but let me explain allstate didn't have a locked in this so i come back to if we agree with your arguments about the chronology and the there's some indications that you alluded to that i share judge bennett's view and then there's the problem that there was a failure to comply at least in part so we look at this differently there's the port horse analogy question but also i'm interested in some of the sanctions were tossed out on some of the things that i think were to this individual attorney so if you want to speak to that i do because that's an important point because the only thing that allstate was accused by the judge of doing was not settling or tempting to settle in good faith that was the only thing and of the fourteen thousand dollars in sanctions thirteen thousand were against allstate so that those thirteen thousand were improper because they were essentially a punishment for allstate taking a settlement position that that was eminently reasonable based on the facts and circumstances of the case so i agree that it's very important to segregate them out because allstate would did not submit improper settlement statement allstate did not submit a settlement statement late that was done by the attorney so there is a distinction indication that allstate representative was ordered to be there and wasn't or wasn't at the end of the phone to grab grant you know settlement  anything else to the contrary the evidence is undisputed that allstate showed up with a representative with full authority and the judge acknowledged that the representative had full authority on the record and if you look thing absent in the in the record to indicate why all state was separately sanctioned that's your that's your answer correct there the only act or inaction by allstate related to a settlement position that all state took in the in chambers conference you say full of authority you mean full authority this mess and pay the costs all state had full authority to settle for any amount or to not settle the the representative that went to the conference had authority to negotiate to offer money if evidence was presented that justified it and that's what a representative i believe is required to do and on the record the representative stated during the hearing that he had full authority and the judge who had been present with the representative in the conference acknowledge i've never question that you have full authority so that's not in the record i don't really know what that means knowing full well thirty one limit there or whether that's a good question this wasn't a policy limits case that the representative was not hamstrung by not having authority to negotiate and offer money and to respond offers the representative had full authority to do whatever that represented thought was appropriate based on the information that was presented at the congress that on the record in the hearing when the judge sanctioned all state one thousand five hundred dollars the question the plaintiff's counsel kept stating that allstate arrived with no authority the representative stood up and said your honor i have full authority and magistrate gandhi said i know you do i don't quit i've never questioned that that's on the transcript in the record of the first hearing at the end of the settlement conference really   your honor your honors i didn't prepare and answering brief because as i stated in my letter to the court i was submitting a memorandum opinion and order imposing sanctions prepared by judge document forty six i felt that judge gandhi was extremely accurate in his recitation of the fact that his order was well thought out and his conclusions were grounded in s legal reasoning and i do not feel that judge gandhi overreacted or of the worst of the prejudice from friday night to sunday night and submitted by email  defendants so i can't direct my attention to that whether or not there was prejudice i think that the judge did state in his ruling as i recall that that was not one of the major factors i think but what were the major factors well i think the major factors were and i was going to get to that i don't think any one item was would have warranted this ancients but i think when you take all of them was submitted after the deadline their brief failed to include most of the required information they arrived at least fifteen minutes late the other thing that they're not disclosing in their brief that you know they first of all they didn't tell the judge the judge was very clear he called both counsel i had it time and there was no representation we didn't know and i don't think the court knew that their position was that they were going to offer nothing and the only reason this case ultimately got settled how it was was because in the i think the judge laid it out pretty clearly was that they buried the plaintiff in discovery and everything and she just was an eighty year old woman that couldn't that's i think very material she misrepresented her it was the misrepresentations i think that the judge was upset about and they're not directing their attention what are the misrepresentations the arrival time the amount of time after unwilling to offer anything to resolve a case she misread how you thought of arrival time so in paragraph town of her ten eleven sixteen declaration so he says she arrived about five or ten minutes late chucked into the court room i don't think so because i think the judge in his order and i would have laid it out the same way had i prepared a brief i think the judge was accurate in his recitation of the facts i think that he laid it out exactly what happened i think that what they're doing is minimizing each element but i think what you have he wasn't in the courtroom how would he know when she walked in the courtroom when she came in after she walked out because it was on tape and he actually played the tape back because they apparently in that court they actually our total record and it actually shows the time at which she came in and what he was upset about is not that she was late it was the misrepresentation that she was late she acted like she in essence got there on time or within five to ten minutes so she got there she was saying that you're off by a couple of minutes you think that's a misrepresentation no the misrepresentation was that i'm just saying what the judge i can't speak to the judge other than the fact the why don't you can speak to the record i can speak to the record you're right and the record was i think that she was over fifteen minutes late and she didn't represent that to the court so the court among other things was considering that one of the factors she also i mean up to there's some more significant ones i think that aren't in the brief she misrepresented she had reviewed plaintiff's brief before defendant's brief was even filed but even the supplemental affidavit correct in that well no no i understand that she was she had represented to the court that she had reviewed the brief when in fact she hadn't and i'm only i'm all i'm doing is representing  that i don't think anything that judge gandhi said in his decision wasn't accurate that's all i'm saying i'm not saying i'm not saying i interrupt you because your time is ticking and i just want to hear what your position is about whether we should view these two sanctions separately all state was sanctioned and she was sanctioned individually do you want to speak to that you don't have much of but it all state you that weren't saying i think that they didn't come in and represent to the court through their attorney they didn't represent that they were willing to offer nothing and a week offer nothing but it wasn't their position always costs no unless you actually not actually not understand my understanding when i showed up to the conference they were offering nothing then what happened is there's evidence of that wasn't that i was i couldn't find a place in the record with where the position was nothing the position my recollection your honour's and i don't think you'll find anything to the contrary is they came to the conference offering nothing my recollection is that on the record  actually when the judge then approached them and talked to them and said will you do a waiver of cost or i assume you'll do a waiver of costs words to that effect and then they offered a waiver of cos you know that's in a footnote in the judge's  right and that was my recollection because i wanted it all contingent upon and it was a certain nothing pound sand i think it was not unless you know waiting for evidence of bad faith and that was my understanding of the position by the defendants consistently wrong no but i think the only reason that we all timidly ended up dismissing the case was because we had an eighty year old woman that just couldn't afford to go through this because they were burying us and discovery and there actually wasn't in my opinion any reason to do the major discovery because the underlying case addressed a lot of these issues is not your opinion the question is whether we're really misusing discovery and if those folks were on the witness list it seems to me they got a right to depose them so i don't know what he's saying they didn't have a right to depose and your honor i'm not i'm not saying that i'm misunderstanding so all i'm saying is that not what you know if you took any of these items individually it wouldn't warrant it but while any one of these wouldn't move warranted when taken together the total of these failures clearly was warranted the award to saying sions in attorney fees is awarded by the court we showed up to the hearing in good faith and we spent a lot of time and the judge was taking that into consideration i think in preparing for the settlement conference with the understanding that we were going to maybe have a possibility of getting the case settled and i think with the judge was most upset about is we showed up to the hearing and basically the court and the us were sandbag because all they had to do was make their position clear they should have told the court that it's premature at  time even when they showed up in court and made it very clear which they really did not do well it was clear enough i guess when the judge explained it to your client that within a couple of months she accepted the identical offer they made well she she accepted the adana call offer your honor your honors only because she couldn't afford to continue with the litigation it was not anything to do with the fact that that was  but that wasn't the case i would maintain to my dying day that the case had total merit the only problem was we couldn't afford to go through with the case because of the substantial costs and that it were going to be disingenuous i would say i think it is and what do you know to be a false statement well i think that if you look at the judge's ruling the judge laid out in his opinion why he laid out the discovery and he laid out the reason why we were forced to settle it's all laid out in there and i would have stated it the same way that the judge stated the judge made it very clear in his ruling if you look if you look at which i'm sure the court read very carefully it's obvious think i'm going to be very quick your honor i want a three thing with respect to the settlement statement the reason why i don't think sanctions are appropriate is because the judge had every opportunity to correct any problems caused by the settlement statement specifically he contacted the attorney days before the settlement conference and if he had a problem he could have raised that then and i think that's a mitigating factor the second point is that the late submission of the settlement brief by two days from a friday to a sunday was never raised by the judge at any point in time until the hearing there was no notice of that and he raised it for the first time and surprised me at the hearing with that and therefore that's not an appropriate basis and with respect to all states if we accept the representations of counsel then allstate came into the settlement conference saying we're offering nothing and then at the judge's suggestion offered a cost waiver that that is exactly what negotiation sounds like another is just that shows that allstate was moving if we accept that representation by counsel finally i just want to make one last point that very few parties have the resources to to challenge judicial conduct like this and this happens judges do this sometimes and it creates the appearance of bias and it i the perception of the judiciary as being fair and impartial and i think i would request that if the court agrees that what judge gandhi did was wrong i really would request that the court send some type of message to help direct other magistrate judges that you can't do this because litigants can afford to come all the way through once or going to appeal because of this type of conduct usually they just put their head down and go away because it's just not worth it and that and also it is one of the few litigants that have the resources and the determination to actually see this through