FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TRANSAMERICA LIFE 

INSURANCE COMPANY, 

Plaintiff-Appellee, 

 v. 

AKOP ARUTYUNYAN; ANAHIT 

ARUTYUNYAN, 

Defendants-Appellants.

No. 22-55199 

D.C. No. 2:20-cv04684-ODW-JEM 

OPINION

Appeal from the United States District Court

for the Central District of California

Otis D. Wright II, District Judge, Presiding

Argued and Submitted June 7, 2023

Pasadena, California

Filed February 22, 2024

Before: Milan D. Smith, Jr., David F. Hamilton,* and 

Daniel P. Collins, Circuit Judges.

Opinion by Judge Collins

* The Honorable David F. Hamilton, United States Circuit Judge for the 

U.S. Court of Appeals for the Seventh Circuit, sitting by designation.
2 TRANSAMERICA LIFE INS. CO. V. ARUTYUNYAN

SUMMARY**

Sanctions / Default Judgment

The panel affirmed the district court’s default judgment 

entered against defendants Akop and Anahit Arutyunyan in 

an action brought by Transamerica Life Insurance Company 

alleging defendants engaged in insurance fraud.

The district court concluded that defendants repeatedly 

failed to obey court orders related to discovery and entered 

default judgment against them. The district court also 

entered distinct sanctions on defendants in two separate 

orders.

The panel upheld the district court’s order deeming 

defendants’ objection to certain items of discovery to be 

forfeited and requiring production of those items. By failing 

to present any sufficient argument in their opening brief as 

to why the district court’s stated grounds for that decision 

were erroneous, defendants forfeited any challenge to that 

order on appeal.

The panel held that the district court did not abuse its 

discretion in entering a default judgment as a sanction for 

defendants’ violations of court orders. The panel considered 

whether the district court’s analysis properly considered the 

factors in Malone v. U.S. Postal Serv., 833 F.2d 128, 130 

(9th Cir. 1987), for entering a default judgment. The first 

two factors—the public’s interest in expeditious resolution 

of litigation and the court’s need to manage its docket—

** This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
TRANSAMERICA LIFE INS. CO. V. ARUTYUNYAN 3

plainly favored entry of default on this record. The third 

factor—the risk of prejudice to the other party—favored a 

default judgment where defendants failed to comply with an 

order to produce specific discovery materials, and this 

created a sufficient risk of prejudice. The fourth factor—

public policy favoring disposition of cases on their merits—

weighed against default judgment, but it provided only little 

support for that conclusion. The fifth factor—the 

availability of less drastic sanctions—favored a default 

judgment because the district court implemented lesser 

sanctions before ordering a default and warned defendants 

of such a judgment if the non-compliance continued.

The panel held that this appeal is frivolous. In view of 

its frivolous nature, and the multiple misstatements made by 

counsel at oral argument, by separate order the panel ordered 

defendants and their counsel to show cause why sanctions 

should not be imposed under 28 U.S.C. § 1912, 28 U.S.C. 

§ 1927, Fed. R. App. P. 38, and/or the inherent authority of 

this court.

COUNSEL

Ara J. Keropian, I, (argued), AJK Law Firm, Van Nuys, 

California, for Defendants-Appellants.

Michael D. Rafalko (argued) and Allison B. Goldis, Cozen 

O’ Connor, Philadelphia, Pennsylvania; Valerie D. Rojas, 

Cozen O’ Connor, Los Angeles, California; for PlaintiffAppellee.
4 TRANSAMERICA LIFE INS. CO. V. ARUTYUNYAN

OPINION

COLLINS, Circuit Judge:

Plaintiff-Appellee Transamerica Life Insurance 

Company (“Transamerica”) sued Defendants-Appellants 

Akop Arutyunyan and his daughter Anahit Arutyunyan1 for 

allegedly engaging in a conspiracy to defraud Transamerica

into paying benefits under a long-term care insurance policy. 

Concluding that Defendants had repeatedly failed to obey 

court orders related to the discovery process, the district 

court ultimately entered default judgment against them. 

Defendants have timely appealed the judgment, but their 

arguments in this court are frivolous. Moreover, when called 

upon to defend his disregard of the district court’s orders, 

Defendants’ counsel at oral argument in this court made 

multiple blatantly false statements about his and his clients’ 

responses to those orders. Accordingly, we affirm the 

judgment and, by separate order, we direct Defendants and 

their counsel to show cause why they should not be 

sanctioned.

I

A

In March 2016, Transamerica issued a life insurance 

policy to Anahit, which covered her father, Akop, as the 

“Insured.” The policy included a “Comprehensive Long

Term Care Insurance Rider,” under which Transamerica 

generally agreed to “pay a Monthly Long Term Care Benefit 

when the Insured has incurred expenses for Qualified Long 

1 Because Defendants share the same last name, we will hereafter refer 

to each of them by their respective first names, “Akop” and “Anahit.” 
TRANSAMERICA LIFE INS. CO. V. ARUTYUNYAN 5

Term Care Services.” One of the requirements for triggering 

this long-term care coverage was that the Insured qualify as 

a “Chronically Ill Individual.” As defined in the rider, that 

term required, inter alia, that Akop be “certified by a 

Licensed Health Care Practitioner” as either suffering from 

“Severe Cognitive Impairment” or “being unable to perform, 

without Substantial Assistance from another individual, at 

least two out of the six Activities of Daily Living (ADLs) for 

an expected period of at least 90 days due to a loss of 

functional capacity.” These six ADLs involved specified 

abilities related to “Bathing,” “Continence,” “Dressing,” 

“Eating,” “Toileting,” and “Transferring.” 

In December 2018, Akop filed a claim for benefits under 

the rider, alleging that he had torn his “left rotator cuff” and 

suffered from “spinal arthritis.” The following month, a 

nurse conducted an “onsite assessment” of Akop at his home 

in order “to determine whether Akop was eligible to receive 

benefits under the [r]ider.” During that assessment, at which 

Anahit was present, Defendants represented that “Akop was 

unable to perform four of the six ADLs defined in the 

[r]ider” and that he had hired a caregiver, Serob Pzdikyan,

who provided him “with 2–5 hours of care in the home each 

day.” Additionally, at the assessment, Akop “purported to 

walk with an impaired gait and to require . . . a walker for 

ambulation at all times.” Anahit also provided written 

confirmation to Transamerica that “Akop was unable to 

perform specific ADLs and that he hired Mr. Pzdikyan as his

caregiver.” In light of the information provided by 

Defendants, Transamerica approved the claim and began 

paying Akop benefits.

Over the next several months, Transamerica conducted 

surveillance of Akop in order to determine whether the 

representations made in support of the claim for benefits 
6 TRANSAMERICA LIFE INS. CO. V. ARUTYUNYAN

were accurate. The surveillance allegedly revealed that 

Pzdikyan never visited Akop’s home, in spite of the fact that 

“[o]n each date of surveillance, Akop represented to 

Transamerica in signed and certified Proof of Loss 

statements that he received between three and eight hours of 

care services from Mr. Pzdikyan in the home.” The

surveillance also assertedly revealed that Akop operated “in 

a highly independent and functional manner, with no 

apparent limitations at all.” Specifically, Transamerica’s 

operative complaint alleged that Akop “was seen walking his 

dog, reaching and bending, lifting objects with both hands, 

driving a car, shopping for groceries and other items, [and] 

walking without a limp or any assistive device (such as the 

walker he claimed to need and use).” 

Based on this initial surveillance, Transamerica invoked 

its rights under the rider to require Akop to submit to an 

independent medical evaluation. The doctor who performed 

the evaluation, Dr. Molinar, examined Akop in April 2019. 

Although Dr. Molinar opined that Akop’s claimed pain 

symptoms were “far greater than what one would expect 

from reading his MRI,” Dr. Molinar also concluded, 

“[b]ased in large part on Akop’s subjective representations,” 

that Akop required substantial assistance to perform two 

ADLs. Because that determination was sufficient to support 

Akop’s continuing claimed eligibility for long-term care 

benefits, Transamerica continued paying benefits to Akop. 

Both before and after this medical examination, 

Transamerica continued its surveillance of Akop, and in July

2019, Transamerica also “assigned an investigator to Mr. 

Pzdikyan on the same dates and during the same time periods 

when another investigator was performing surveillance on 

Akop.” This surveillance allegedly confirmed that Pzdikyan 

“did not provide care to Akop on the dates represented by 
TRANSAMERICA LIFE INS. CO. V. ARUTYUNYAN 7

Akop to Transamerica.” Transamerica’s further surveillance 

also purportedly showed that Akop was continuing to engage 

in activities that were inconsistent with his claimed level of 

impairment. 

In August 2019, Defendants “jointly signed and 

submitted a letter to Transamerica, the effect of which was 

for Anahit to take assignment of Akop’s benefit payments

under the [r]ider.” This meant that all future benefit 

payments stemming from Akop’s purported medical care 

would be sent directly to Anahit instead. The asserted basis 

for the assignment was that Anahit was “‘the one who pays 

the care giver’ for Akop’s care.” Transamerica alleged that, 

because Anahit had claimed to work in the medical field for 

several years and was “resid[ing] in the same house as 

Akop” at all relevant times, Anahit was “aware that Mr. 

Pzdikyan did not provide care as represented to 

Transamerica” and that Anahit was not in fact paying

Pzdikyan for such services. 

Transamerica subsequently provided portions of its 

video surveillance of Akop to Dr. Molinar, and it asked him 

to reevaluate his conclusions in light of that additional 

evidence. Stating that the video evidence changed his 

opinion, Dr. Molinar in January 2020 provided an addendum 

to his prior report in which he concluded that it was now 

“obvious” that Akop “was markedly exaggerating his 

disability and can perform all of [the listed ADLs] without 

difficulty despite his claims that he could not.” Based on Dr. 

Molinar’s addendum, Transamerica halted payments on the 

policy and denied Akop’s claim. At the time that it 

terminated payments to Defendants, Transamerica had paid 

$109,381.71 in benefits. 
8 TRANSAMERICA LIFE INS. CO. V. ARUTYUNYAN

B

In May 2020, Transamerica filed this suit against 

Defendants, alleging that they had obtained insurance 

benefits through fraud. Specifically, Transamerica asserted 

monetary claims based on fraud, civil theft, civil conspiracy, 

and restitution. Transamerica also sought a declaration that, 

in light of the fraudulent conduct, the policy was void. 

Transamerica sought compensatory and punitive damages, 

statutory treble damages, attorney’s fees, declaratory relief, 

and restitution. Defendants denied the core allegations, and 

they counterclaimed for breach of the insurance contract and

for tortious bad faith denial of coverage. 

In January 2021, Transamerica separately served each 

Defendant with interrogatories and requests for the 

production of documents. Dissatisfied with Defendants’ 

responses, Transamerica sent a letter detailing the perceived 

deficiencies and requesting that a “meet and confer” session 

be scheduled. During the ensuing telephonic meet-andconfer sessions in late April 2021, counsel for Defendants 

agreed to provide certain supplemental responses and to 

produce specified categories of documents. On May 7, 

2021, counsel for Transamerica sent a letter to Defendants’

counsel summarizing the agreed-upon supplemental 

discovery that would be provided by Defendants. 

After Defendants’ counsel failed to produce any 

supplemental responses despite Transamerica’s repeated 

follow-up inquiries, Transamerica initiated the process for 

filing a motion to compel. Under the local civil rules of the 

U.S. District Court for the Central District of California, 

discovery motions must be presented in the form of a “joint 

stipulation” that contains, “in one document signed by both 

counsel,” the parties’ respective positions concerning each 
TRANSAMERICA LIFE INS. CO. V. ARUTYUNYAN 9

separate discovery issue that remains in dispute after the 

completion of the meet-and-confer process. C.D. CAL.

LOCAL CIV.R. 37-2.1. The first step in preparing such a joint 

stipulation is for the moving party to serve on opposing 

counsel “the moving party’s portion of the stipulation, 

together with all declarations and exhibits to be offered in 

support of the moving party’s position.” See C.D. CAL.

LOCAL CIV. R. 37-2.2. Transamerica did so, as to each 

Defendant, on May 28, 2021. Under the local rules, the 

opposing party’s portion of such a joint stipulation must be 

served within seven days, and it is then the responsibility of 

the moving party’s counsel to prepare the final stipulation 

for counsel’s respective signatures and for subsequent filing. 

See id. Defendants’ counsel, however, did not transmit 

Defendants’ portions of the stipulations within the requisite 

seven days. Instead, on June 2, 2021, Defendants’ counsel

sent an email attaching certain supplemental discovery 

materials. The email stated that counsel was “racing through 

finalizing some of these supplementals” and “attaching 

whatever I can when I receive,” and the email concluded, 

“More to come soon.” 

After Defendants’ counsel continued to fail to provide 

Defendants’ portions of the joint stipulations concerning

Transamerica’s discovery motions, counsel for 

Transamerica on August 11, 2021 sent a further request for 

Defendants’ counsel to do so by close of business the next 

day. When Defendants’ counsel still failed to produce 

Defendants’ portions of the joint stipulations, Transamerica

on August 13, 2021 filed its portions of the respective 

documents as to each Defendant, together with the 

declaration required by the local rules explaining that 

opposing counsel had “failed to provide the opposing party’s 

portion of the joint stipulation in a timely manner.” C.D.
10 TRANSAMERICA LIFE INS. CO. V. ARUTYUNYAN

CAL. LOCAL CIV. R. 37-2.4. The motions were noticed to be 

heard on September 14, 2021. See C.D. CAL. LOCAL CIV. R.

6-1, 37-2.4, 37-3. Under the local rules, Defendants’ last 

opportunity to file a response to the motions was August 24, 

2021. See C.D. CAL. LOCAL CIV. R. 7-9, 37-2.4. Defendants 

failed to provide any response by that date. 

On September 1, 2021, the magistrate judge vacated the 

hearing date on the motions and issued an order to show 

cause (“OSC”) directing Defendants to show cause by 

September 10 why the motions should not be granted. The 

court’s order specifically “admonishe[d] both Defendants 

that, this being a Court order, failure to comply with it brings 

into play the full panoply of sanctions under Fed. R. Civ. P. 

Rule 37(b)(2)(A)(i)–(vii).” 

Defendants filed their response to the OSC on September 

13, three days late. Counsel for Defendants sought to justify

that late response by asserting that an “unknown” error in his 

“computer system/google calendar” resulted in him missing 

the calendared deadline. As to the underlying discovery

dispute, Defendants argued that sanctions should not be 

imposed because they had provided supplemental discovery 

responses in June 2021; Transamerica assertedly already had 

“all information and documents available” to Defendants; 

and Defendants’ “responses and objections were 

substantially justified.” The response did not explain why 

Defendants’ sections of the joint stipulations had not been 

provided, nor did it provide, on an issue-by-issue basis, 

Defendants’ substantive responses to the particular 

discovery issues raised by Transamerica’s motions. In its 

subsequent response to Defendants’ filing, Transamerica 

argued that Defendants had waived their objections to 

discovery; that Transamerica’s motions to compel should be 

granted; and that monetary sanctions should be imposed. 
TRANSAMERICA LIFE INS. CO. V. ARUTYUNYAN 11

On September 21, 2021, the magistrate judge issued an 

order discharging the September 1 OSC. The court accepted

Defendants’ counsel’s explanation about a calendaringsystem error because it was made under oath and was not 

challenged by Transamerica. Although that calendaringerror explanation only addressed why Defendants “missed 

the deadline to file a response to the Order to Show Cause,” 

the court generously construed that explanation as also 

providing an excuse for why Defendants “did not file their 

portion of the Joint Stipulation.” However, the court held 

that the “form of the opposition” to the discovery motions in 

Defendants’ current filing was “deficient,” because it 

consisted of a “running narrative” that was “unconnected to 

specific discovery requests.” Accordingly, the court ordered 

Defendants to provide Transamerica, within 10 days, 

Defendants’ portions of the joint stipulations. The court also 

ordered the parties “to meet and confer” within seven days

after Defendants supplied those portions, in order “to reduce 

or eliminate issues for the Court to resolve.” Within seven 

days after that meet-and-confer session, the parties were to 

“file supplemental memoranda” concerning the status of the 

discovery disputes. 

In response to this order, Defendants provided their 

portions of the two joint stipulations, which were then filed 

with the court on October 8, 2021. On October 15, 

Transamerica filed its respective supplemental memoranda 

in support of both motions. Defendants, however, did not

file any supplemental memoranda. 

On October 20, 2021, the magistrate judge issued an 

order calling for further briefing. Noting that there were “an 

unusually large number of discovery disputes” at issue in 

each of the two motions, the court stated that such a large 

number of disputed issues “usually means that the parties did 
12 TRANSAMERICA LIFE INS. CO. V. ARUTYUNYAN

not fulfill their mandatory duty . . . to confer in good faith to 

reduce or eliminate disputes that the Court must resolve.” 

The court also remarked that some of the discovery issues 

appeared to have already been resolved to the extent 

possible. Accordingly, the court ordered another round of 

focused briefing to identify the remaining discovery 

disputes. The court instructed Transamerica by October 29 

to “advise Defendants of what remains in dispute and what 

should be done to make responses complete,” and it ordered 

Defendants thereafter to “serve supplemental responses” by 

November 5. The court also ordered the parties to meet and 

confer by November 12 with respect to any discovery 

requests still in dispute, and then to file a joint status report 

by November 19. 

In an email sent to Defendants on October 28, 

Transamerica timely identified both the outstanding 

discovery issues that remained in dispute and what it 

believed Defendants needed to do to complete their 

discovery responses. At that point, Defendants were 

obligated under the October 20 order to serve their 

supplemental discovery responses by November 5 and 

thereafter to meet and confer with Transamerica by 

November 12. Defendants did neither.2 Transamerica 

reached out to Defendants’ counsel, both by email and by 

2 At oral argument, counsel for Defendants repeatedly insisted that he 

had complied with the court’s order to provide supplemental responses 

and to meet and confer, but he was unable to provide any record support 

for this assertion. From our review of the record, it appears that 

Defendants’ counsel was referring to a supplemental production 

provided in an October 15, 2021 email that followed an earlier meet-andconfer session. Neither that October 15 production, nor that earlier 

session, could possibly be thought to have complied with the subsequent

obligations set forth in the court’s October 20, 2021 order.
TRANSAMERICA LIFE INS. CO. V. ARUTYUNYAN 13

phone, noting Defendants’ omissions and reminding counsel 

of the joint status report due on November 19. Finally, at 

7:18 PM on November 18, Defendants’ counsel emailed 

Transamerica’s counsel as follows: “I received your email. 

We are in the middle of an FSC [Final Status Conference] 

today, and all that goes with it, but I will be dealing with this 

as soon as possible.” However, nothing was forthcoming 

from Defendants before the November 19 deadline. 

Consequently, on November 19, Transamerica’s counsel

filed a declaration explaining that Transamerica had 

complied with the court’s October 20 order, but that 

Defendants had not provided their supplemental responses, 

had not met and conferred, and had not supplied their portion 

of the required joint status report. 

On November 22, 2021, the magistrate judge issued an 

order addressing both (1) Defendants’ failure to comply with 

the October 20 order and (2) the substance of the discovery 

disputes. The court held that “Defendants’ conduct in 

violating three separate provisions of this Court’s October 

20, 2021 Order is inexcusable.” Invoking its authority under 

Federal Rule of Civil Procedure 37(a) and (b), the court 

ordered Defendants, by November 30, to provide the five 

specific categories of additional discovery and supplemental 

responses that had been set forth in Transamerica’s October 

28, 2021 email. The court explained that, “[b]y violating this 

Court’s Order, Defendants lost the right to dispute any of the 

above requests that they had not already agreed to produce.” 

Importantly, the order also provided that “[f]ailure to comply 

with this Order by November 30, 2021 will result in a 

recommendation to the District Court for default judgment 

pursuant to Rule 37(b)(2)(A)(vi).” Finally, the court further 

ordered Defendants to show cause “by November 30, 2021 

why the Court should not impose monetary sanctions on 
14 TRANSAMERICA LIFE INS. CO. V. ARUTYUNYAN

Defendants for their multiple violations of this Court’s Order 

of October 20, 2021.” 

Defendants failed to comply with either aspect of this 

order by the November 30, 2021 deadline. Accordingly, on 

December 1, Transamerica filed a notice informing the court 

that (1) Defendants “did not produce the documents and 

information set forth in the Court’s [November 22] Order by 

November 30, 2021” and that “no additional materials of any 

nature ha[d] been provided”; (2) Defendants “ha[d] not 

contacted [Transamerica] to advise why no production 

occurred or to propose a solution”; and (3) “Defendants did 

not respond to the Court’s Order to Show Cause by 

November 30, 2021.” Accordingly, Transamerica requested 

that the magistrate judge recommend to the district judge 

that a default judgment be entered. 

On December 7, 2021, having still received no filing of 

any kind from Defendants, the magistrate judge issued an 

order concluding that Defendants had violated, in multiple 

respects, the court’s October 20 and November 22 orders. 

Noting that the November 22 order had specifically warned 

that Defendants’ failure to comply “would result in a 

recommendation to the District Court for default judgment 

pursuant to Rule 37(b)(2)(A)(vi),” the court ordered 

Transamerica, by December 20, “to prepare and present a 

proposed Report and Recommendation to the District Court” 

concerning the entry of default judgment against 

Defendants. 

Two days later, counsel for Defendants filed a “Request 

for Reconsideration of Termination Sanctions.” The first

two and a half pages of that document consisted of portions 

of a procedural summary that were largely identical to 

material that had been included in Defendants’ September 
TRANSAMERICA LIFE INS. CO. V. ARUTYUNYAN 15

13 response to the first OSC. In the remaining two pages of 

the document, Defendants defended their discovery efforts, 

arguing that they had produced what they could and that 

additional materials either could not be obtained or had 

properly been objected to. As to why Defendants had not 

responded to the November 22 order, Defendants’ counsel

stated only that he “was then heavily engaged in preparation 

for trial on another matter, including preparation for an FSC 

on November 18, 2021 and a trial then scheduled to start on 

November 29, 2021, in which I was served with 12 motions 

in limine and the court there, entered various scheduling 

orders that required my full attention.” 

Addressing the subject of sanctions, Defendants argued 

as follows:

Terminating sanctions should not be 

imposed because Defendants have provided 

all documents within their possession, 

custody or control and the requested 

information, to which proper objections were 

interposed does not justify terminating 

sanctions when Defendants have provided 

more than sufficient information, documents 

available to them in both their original 

responses and the supplemental responses, 

and additional supplemental responses.

Plaintiff has all information from 

defendant/counterclaimants that they have 

available. To impose such proposed 
16 TRANSAMERICA LIFE INS. CO. V. ARUTYUNYAN

terminating sanctions is not justified under 

these circumstances.

On December 20, 2021, Transamerica timely filed its 

proposed Report and Recommendation regarding the entry 

of a default judgment against Defendants. Two days later, 

the magistrate judge adopted that report as his own, except 

that he declined to include Transamerica’s proposed award 

of punitive damages. On January 5, 2022, Defendants timely 

filed their objections to the Report and Recommendation. 

See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b)(2). 

Transamerica filed a timely response to those objections. 

See FED. R. CIV. P. 72(b)(2). On January 24, 2022, the 

district judge issued an order stating that he had reviewed the 

magistrate judge’s Report and Recommendation, considered 

Defendants’ objections de novo, and adopted the Report and 

Recommendation in full. The district court entered default 

judgment against Defendants and dismissed all of their 

counterclaims with prejudice. The judgment awarded, inter 

alia, compensatory damages of $109,381.71; additional 

statutory treble damages of $218,763.42 under California’s 

civil theft statute, see CAL. PENAL CODE § 496(c); and 

attorney’s fees of $166,394.50 under that same statute. 

II

As set forth above, the district court imposed distinct 

sanctions on Defendants in two separate orders. First, in its 

November 22, 2021 order, the court held that, by failing to 

comply in multiple respects with the court’s October 20, 

2021 order, Defendants “lost the right” to object to the five 

specific categories of discovery that Defendants were 

directed to produce in that order, including “Anahit’s tax 

returns” for the relevant years and “Defendants’ passwords 

for their social media accounts.” Second, the district court 
TRANSAMERICA LIFE INS. CO. V. ARUTYUNYAN 17

held, in its January 24, 2022 order, that Defendants’ multiple 

violations of the court’s orders merited entry of a default 

judgment. Defendants have failed to provide any basis for 

setting aside these orders.

A

In their opening brief, Defendants argue at length that 

they were “entitled to stand on their objections” to 

Transamerica’s discovery requests concerning Anahit’s tax 

returns and Defendants’ social-media-account passwords,

and that the district court’s order to produce these materials 

was an abuse of discretion. These arguments are essentially

irrelevant, because they overlook the basis for the district 

court’s November 22, 2021 order to produce these items. 

That order did not purport to resolve the substantive validity 

of Defendants’ objections to these discovery requests. 

Instead, that order found that, because Defendants had 

“inexcusabl[y]” failed to comply in multiple respects with 

the district court’s earlier October 20, 2021 order, 

Defendants’ objections to the five specified categories of 

discovery would be deemed, as a sanction under Rule 37, to 

be forfeited. Although Defendants’ opening brief 

acknowledges the latter ruling in its statement of facts, the 

argument section of the brief does not present, much less 

adequately develop, any argument that the district court 

abused its sanctions authority under Rule 37 in deeming 

Defendants’ objections to these items of discovery to be 

forfeited. By failing to present any sufficient argument in 

their opening brief as to why the district court’s stated 

grounds for that decision were erroneous, Defendants have 

forfeited any challenge to that order on appeal. See Brown 

v. City of Los Angeles, 521 F.3d 1238, 1242 (9th Cir. 2008). 

We therefore uphold the district court’s November 22, 2021 
18 TRANSAMERICA LIFE INS. CO. V. ARUTYUNYAN

order requiring production of the specified items of 

discovery.

B

Defendants separately challenge the district court’s 

ultimate decision to enter a default judgment as a sanction 

for Defendants’ violations of court orders. Our review of 

that order is only for abuse of discretion, Conn. Gen. Life 

Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1096 

(9th Cir. 2007), and we find none.

“We have identified five factors that a district court must 

consider before dismissing a case or declaring a default: 

‘(1) the public’s interest in expeditious 

resolution of litigation; (2) the court’s need to 

manage its docket; (3) the risk of prejudice to 

the [other party]; (4) the public policy 

favoring the disposition of cases on their 

merits; and (5) the availability of less drastic 

sanctions.’” 

Adriana Int’l Corp. v. Thoeren, 913 F.2d 1406, 1412 (9th 

Cir. 1990) (quoting Malone v. U.S. Postal Serv., 833 F.2d 

128, 130 (9th Cir. 1987) (alteration made, without brackets, 

by Adriana Int’l)). Although the district court’s order here 

did not expressly recite and individually discuss each of 

these “Malone factors,” that “is not required.” Allen v. Bayer 

Corp. (In re Phenylpropanolamine (PPA) Prods. Liab. 

Litig.), 460 F.3d 1217, 1226, 1236 (9th Cir. 2006) (citation 

omitted). It suffices if the district court’s analysis, 

considered in the context of the record as a whole, permits 

us “independently to determine if the district court has 

abused its discretion” in light of these factors. Id. at 1226
TRANSAMERICA LIFE INS. CO. V. ARUTYUNYAN 19

(citation omitted); see also Conn. Gen. Life Ins., 482 F.3d at 

1096 (holding that the district court’s “terse order,” which 

“did not engage in extended discussion,” was sufficient 

because “the record makes application of all the factors so 

clear that no extended discussion was needed”). 

The first two Malone factors are typically considered 

together, and because they relate to docket-management 

issues that the district court “is in the best position” to assess, 

we give particular deference to the district court’s judgment 

concerning them. Allen, 460 F.3d at 1227, 1236 (citation 

omitted). Here, the district court’s order entering a default 

judgment set forth at length the extent to which the discovery 

proceedings had been protracted by Defendants’ failure to 

comply with the October 20, 2021 and November 22, 2021 

orders. On this record, the first two Malone factors therefore 

plainly favored entry of a default judgment. See Adriana 

Int’l, 913 F.2d at 1412 (noting that, in applying the five 

Malone factors, the general rule is that, in a case involving 

violations of court orders, “the first two factors support 

sanctions”). 

The third Malone factor—the “risk of prejudice” to the 

other party—examines the extent to which the recalcitrant 

parties’ conduct creates a risk of either “impair[ing] the 

[opposing party’s] ability to go to trial” or “interfer[ing] with 

the rightful decision of the case.” Allen, 460 F.3d at 1227

(citation omitted). We have generally found that failure to 

comply with an order to produce specific discovery materials 

creates a sufficient risk of prejudice to satisfy this factor. See 

id.; see also Adriana Int’l, 913 F.2d at 1412. Defendants 

nonetheless assert that the particular discovery materials at 

issue—such as Anahit’s tax returns and Defendants’ socialmedia-account passwords—are of such trivial significance 

to the case that any risk of prejudice here was essentially
20 TRANSAMERICA LIFE INS. CO. V. ARUTYUNYAN

non-existent. We reject this contention. Defendants’ social 

media accounts could reasonably be thought to contain 

relevant information concerning Akop’s day-to-day 

activities that would bear upon whether he was as impaired 

as he claimed, and Anahit’s tax returns could reasonably be 

thought to provide a more complete insight into her possible 

financial motives for participating in a fraudulent scheme to 

collect benefits. Defendants’ defiance of the district court’s 

explicit order to produce this information therefore falls well 

within the general rule that “[f]ailing to produce documents 

as ordered is considered sufficient prejudice.” Allen, 460 

F.3d at 1227. The third factor thus favors a default 

judgment.

At a general level, the “public policy favoring 

disposition of cases on their merits”—the fourth Malone

factor—always weighs against a default judgment, and often 

“strongly” so. Hernandez v. City of El Monte, 138 F.3d 393, 

399 (9th Cir. 1998). However, this factor is not dispositive 

and a default judgment will still be warranted “where at least 

four factors support [a default judgment] or where at least 

three factors ‘strongly’ support” such a judgment. Id. 

(citations omitted). Moreover, we expressly recognized in 

Allen that the fourth Malone factor “‘lends little support’ to 

a party whose responsibility it is to move a case toward 

disposition on the merits but whose conduct impedes 

progress in that direction.” 460 F.3d at 1228 (citation 

omitted). Under Allen, this factor weighs against a default 

judgment, but it provides only “little support” for that 

conclusion. Id. 

The last remaining Malone factor concerns the 

“availability of less drastic sanctions.” Malone, 833 F.2d at 

130 (citation omitted). We have “identified” three additional 

considerations that we use “to assess whether a district court 
TRANSAMERICA LIFE INS. CO. V. ARUTYUNYAN 21

had adequately considered less drastic sanctions: 

(1) whether the district court ‘explicitly discussed the 

alternative of lesser sanctions and explained why it would be 

inappropriate,’ (2) whether the district court had 

‘implemented lesser sanctions before ordering [entry of a 

default judgment]’, and (3) whether the district court had 

‘warned the offending party of the possibility [of a default 

judgment].’” Hester v. Vision Airlines, Inc., 687 F.3d 1162, 

1170 (9th Cir. 2012) (citation omitted); see also Malone, 833 

F.2d at 132. Each of these three considerations confirms that 

the fifth Malone factor favors a default judgment here.

As our earlier factual summary makes clear, the district 

court applied a measured and gradational approach in 

responding to Defendants’ non-compliance with the court’s 

orders and the local rules. After the district court issued an 

initial OSC concerning Defendants’ failure to provide their 

portions of the joint stipulations, Defendants filed their 

response to that OSC three days late. Nonetheless, the 

district court discharged that OSC, adopting the overly 

generous view that Defendants’ explanation for the late 

filing of the response to the OSC also served to explain why 

their portions of the joint stipulation had not been provided. 

See supra at 11. After concluding that the parties’ papers 

did not adequately distill the relevant discovery issues that 

needed court resolution, the district court ordered a further 

round of briefing, but Defendants failed to perform any of 

the tasks assigned to them under that order: they did not 

provide the required supplemental responses; they did not 

meet and confer with Transamerica concerning the 

outstanding issues; and they did not provide their portion of 

the joint status report. Confronted with this further lack of 

compliance, the district court again took a measured 

approach. It deemed the relevant discovery objections to 
22 TRANSAMERICA LIFE INS. CO. V. ARUTYUNYAN

have been waived; it ordered that specified discovery be 

provided by November 30, 2021; it issued a further OSC, 

this time asking whether monetary sanctions should be 

imposed; and it warned that non-compliance could result in 

a default judgment. Only after Defendants—amazingly—

failed to comply with any aspect of that further order did the 

district court request a proposed report concerning entry of 

default judgment. 

The record thus amply confirms that the district court 

“implemented lesser sanctions before ordering” a default 

judgment and that it also “warned the offending party of the 

possibility” of such a judgment if the non-compliance 

continued. Hester, 687 F.3d at 1170 (citation omitted). 

Although the final report and recommendation did not 

“explicitly discuss[] the alternative of lesser sanctions and 

explain[] why it would be inappropriate,” id. (citation 

omitted), we have long held that “explicit discussion of

alternatives is unnecessary if the district court actually tries 

alternatives before employing the ultimate sanction” of 

dismissal or a default judgment, Malone, 833 F.2d at 132. 

Here, the magistrate judge’s report recounted the court’s 

prior application of lesser sanctions and the continuing noncompliance that followed, and it then expressly concluded 

that, on this record, the sanction of a default judgment was 

warranted. Accordingly, all three of the considerations for 

applying the fifth Malone factor are satisfied here, and that 

fifth factor therefore favors a default judgment. See Adriana 

Int’l, 913 F.2d at 1413; Malone, 833 F.2d at 132.

Because four of the five factors supported entry of a 

default judgment, the district court did not abuse its 

discretion in entering such a judgment in favor of 

Transamerica. Hernandez, 138 F.3d at 399. And because 

Defendants’ opening brief does not challenge the scope of 
TRANSAMERICA LIFE INS. CO. V. ARUTYUNYAN 23

the relief that the district court awarded upon entry of 

default, any such objections have been forfeited. See 

Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009). 

We therefore affirm the district court’s judgment.

III

Having painstakingly recounted, in fulsome detail, the 

relevant facts and the applicable law concerning Defendants’ 

challenges to the district court’s orders in this case, we think 

it is abundantly clear that “the result is obvious” and “the 

appellant[s’] arguments are wholly without merit.” Adriana 

Int’l, 913 F.2d at 1417. In a word, this appeal is objectively 

“frivolous.” Id. 

Moreover, at oral argument for this appeal, Defendants’ 

counsel repeatedly minimized, if not misrepresented, his 

lack of compliance with the district court’s orders in this 

case. For example, at one point during argument, counsel 

asserted that, “[i]n terms of our compliance with the court’s 

orders, at no point did we ignore or flout our responsibility 

to respond to discovery.” Moreover, as noted earlier, 

Defendants’ counsel apparently relied on pre-October 20, 

2021 conduct in wrongly claiming that he had taken steps to 

comply with the district court’slater October 20, 2021 order. 

See supra note 2. Counsel also inaccurately claimed that 

“[t]he one item that I missed was the joint statement to the 

court where I was in the middle of trial—at FSC and trial.” 

As we have recounted, the record flatly belies this claim that 

the failure to supply Defendants’ portion of the joint status 

report due on November 19 was the “one item that 

[Defendants’ counsel] missed” in terms of complying with 

the district court’s orders. It may well be that, when it comes 

to evaluating these multiple misstatements, this case may 

ultimately call for the application of what has been called 
24 TRANSAMERICA LIFE INS. CO. V. ARUTYUNYAN

“Hanlon’s Razor”: “Never attribute to malice that which is 

adequately explained by stupidity.” See Hanlon’s Razor, 

Wikipedia, https://en.wikipedia.org/wiki/Hanlon’s_razor. 

But even if these comments were not deliberate 

misstatements, it seems clear that they were at least made to 

this court with reckless disregard for their accuracy.

In view of the frivolous nature of this appeal and the 

multiple misstatements made by counsel at oral argument, 

we have ordered Defendants and their counsel, by separate 

order filed contemporaneously herewith, to show cause why 

this court should not impose sanctions against them under 

28 U.S.C. § 1912, 28 U.S.C. § 1927, Federal Rule of 

Appellate Procedure 38, and/or the inherent authority of this 

court, see Chambers v. NASCO, Inc., 501 U.S. 32, 43–51

(1991). See generally McConnell v. Critchlow, 661 F.2d 

116, 118–19 (9th Cir. 1981). Defendants’ counsel is 

likewise ordered to show cause why this court should not 

refer this matter to the State Bar of California.

AFFIRMED; ORDER TO SHOW CAUSE IS 

ISSUED BY SEPARATE ORDER.