                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                               FEB 12 2015

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

GUARDIAN LIFE INSURANCE                          No. 13-55217
COMPANY OF AMERICA,
                                                 D.C. No. 2:12-cv-00632-JFW-
              Plaintiff-counter-defendant -      MAN
Appellee,

  v.                                             MEMORANDUM* and ORDER

GABRIELIAN AND ASSOCIATES
INSURANCE SERVICES, INC.,

              Defendant-counter-claimant -
Appellant,

LEO GABRIELIAN, an individual,

              Counter-claimant - Appellant.


                   Appeal from the United States District Court
                      for the Central District of California
                    John F. Walter, District Judge, Presiding

                          Submitted February 10, 2015**
                              Pasadena, California


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
                                                                          Page 2 of 4
Before: CALLAHAN, WATFORD, and OWENS, Circuit Judges.

      Appellants Leo Gabrielian and Gabrielian and Associates Insurance

Services, Inc., (G&A) appeal from the district court’s judgment in favor of

appellee Guardian Life Insurance. The district court had jurisdiction under 28

U.S.C. § 1332(a), and we have jurisdiction under 28 U.S.C. § 1291.

      1. The district court did not err in finding that Guardian Life had the right to

rescind the G&A policy based on Gabrielian’s material misrepresentation of

Melissa Alexanians’ status as an employee. See Lim v. City of Long Beach, 217

F.3d 1050, 1054 (9th Cir. 2000). Alexanians was not an “employee” for purposes

of the Employee Retirement Income Security Act of 1974 (ERISA), as Gabrielian

and G&A appear to concede. To determine whether Alexanians was an ERISA

employee, we need not decide whether the district court abused its discretion in

admitting Alexanians’ statements to the Guardian Life investigator. See Tritchler

v. Cnty. of Lake, 358 F.3d 1150, 1155 (9th Cir. 2004); Fed. R. Evid. 801, 802.

Even without these statements, the district court’s conclusion that Alexanians was

not an ERISA employee was not erroneous, so Gabrielian and G&A suffered no

prejudice from the statements’ admission. See Tritchler, 358 F.3d at 1155.

      Alexanians fails to qualify as an ERISA employee under the Nationwide

Mutual Insurance Co. v. Darden, 503 U.S. 318 (1992), factors, because Gabrielian
                                                                              Page 3 of 4
did not “control the manner and means by which” Alexanians worked: Alexanians

and Gabrielian worked in separate physical locations; Gabrielian does not appear

to have provided Alexanians with any tools or instrumentalities; Alexanians

appeared to control her work hours; the two worked together for at most only four

months; and Alexanians was paid only by commission. Id. at 323–24; see also

Murray v. Principal Fin. Group, Inc., 613 F.3d 943, 944–45 (9th Cir. 2010)

(applying Darden factors to find that the plaintiff insurance agent was not an

ERISA employee and noting that we have previously “held that insurance agents

are independent contractors and not employees for purposes of . . . ERISA”).

      Because Alexanians was not an ERISA employee, Gabrielian’s claim to the

contrary constituted a material misrepresentation. See Security Life Ins. Co. of Am.

v. Meyling, 146 F.3d 1184, 1192 (9th Cir. 1998) (defining a misrepresentation as

material if it “affect[s] insurability or the amount of premium”). G&A’s policy

rider and certificate clearly established that ERISA governed G&A’s policy.

Under ERISA, an “employee benefit plan must cover at least one employee.”

Waks v. Empire Blue Cross/Blue Shield, 263 F.3d 872, 875 (9th Cir. 2001). Thus,

had Guardian Life known that Alexanians was not an “employee” for ERISA

purposes, it likely would not have issued the policy in the first instance.
                                                                         Page 4 of 4
      2. Appellants argue for the first time on appeal that California law, not

ERISA, should govern the policy at issue. This is a “choice-of-law question that is

waived unless it is timely raised.” Gilchrist v. Jim Slemons Imports, Inc., 803 F.2d

1488, 1497 (9th Cir. 1986). Because the issue was not timely raised in the district

court, we decline to consider the issue here.

      3. Appellants’ motion for judicial notice is denied.

      AFFIRMED.
