                                                                           FILED
                           NOT FOR PUBLICATION                              MAY 23 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



EDWIN DURAND and MADELAINE                       No. 10-17767
DURAND,
                                                 D.C. No. 2:09-cv-02038-JAM-
              Plaintiffs-counter-defendants      KJM
             - Appellants,

  v.                                             MEMORANDUM *

STONEHOUSE COURT ASSOCIATES,
LLC, a California limited liability
company,

              Defendant - Appellee,

CANDICE L. STEPHENSON and J.
WAYNE STRAUCH, Successor Co-
Trustees of the “Marital Trust” under “The
Trust Agreement and Declaration of Trust”
and Co-Trustees of the Administrative
Trust UTA,

              Defendants-counter-claimants
              - Appellees.



                    Appeal from the United States District Court
                        for the Eastern District of California
                     John A. Mendez, District Judge, Presiding


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                             Submitted May 15, 2012 **

Before:        CANBY, GRABER, and M. SMITH, Circuit Judges.

      Edwin and Madelaine Durand appeal pro se from the district court’s

judgment in their diversity action alleging conversion of a loader. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s grant

of summary judgment, Am. Bankers Mortg. Corp. v. Fed. Home Loan Mortg.

Corp., 75 F.3d 1401, 1406 (9th Cir. 1996), and for an abuse of discretion its

evidentiary ruling, Wong v. Regents of the Univ. of Cal., 410 F.3d 1052, 1060 (9th

Cir. 2005). We affirm in part, reverse in part, dismiss in part, and remand.

      The district court did not abuse its discretion by striking the Van Tassel

declaration because the Durands’ failure to identify Van Tassel as a potential

witness in their initial disclosures and interrogatory responses prejudiced

defendants and was not substantially justified. See Hoffman v. Constr. Protective

Servs., Inc., 541 F.3d 1175, 1179 (9th Cir. 2008) (under Fed. R. Civ. P. 37(c)(1),

the exclusion of evidence is appropriate unless the failure to disclose was

“substantially justified or harmless”); Yeti by Molly, Ltd. v. Deckers Outdoor

Corp., 259 F.3d 1101, 1107 (9th Cir. 2001) (“Implicit in Rule 37(c)(1) is that the



          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

                                          2                                      10-17767
burden is on the party facing sanctions to prove harmlessness.”).

      However, summary judgment was improper because, viewing the evidence

in the light most favorable to the Durands, they presented sufficient evidence to

raise a genuine dispute of material fact as to whether they owned or had a right to

possess the loader at the time of conversion. See Mindys Cosmetics, Inc. v. Dakar,

611 F.3d 590, 601 (9th Cir. 2010) (setting forth the elements of conversion under

California law). Accordingly, we reverse and remand the grant of summary

judgment.

      We lack jurisdiction to consider the imposition of sanctions against the

Durands because the magistrate judge’s post-judgment order setting the amount of

sanctions is not a final order. See Estate of Conners by Meredith v. O’Connor, 6

F.3d 656, 658-59 (9th Cir. 1993) (explaining that 28 U.S.C. § 636(b)(1) does not

permit issuance of a directly appealable final order, nor does it authorize entry of a

post-judgment order); Jensen Elec. Co. v. Moore, Caldwell, Rowland & Dodd,

Inc., 873 F.2d 1327, 1329 (9th Cir. 1989) (an order awarding sanctions is not

appealable until the amount of sanctions is determined). Accordingly, we dismiss

the appeal as to the sanctions order and remand for further proceedings.

      The Durands’ remaining contentions are unpersuasive.

      The Durands’ request to have the case reassigned to different judges on


                                           3                                     10-17767
remand is denied.

      The parties shall bear their own costs on appeal.

      AFFIRMED in part; REVERSED in part; DISMISSED in part; and

REMANDED.




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