Tae-Si Kim v. Adam Kearney , 598 F. App'x 539 ( 2015 )

FILED
NOT FOR PUBLICATION MAR 18 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TAE-SI KIM and JIN-SUNG HONG, No. 13-16311
Plaintiffs - Appellants, D.C. No. 2:09-cv-02008-PMP-
GWF
v.
ADAM B. KEARNEY; et al., MEMORANDUM*
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, Senior District Judge, Presiding
Submitted March 13, 2015**
San Francisco, California
Before: BERZON, BYBEE, and OWENS, Circuit Judges.
Appellants Tae-Si Kim and Jin-Sung Hong appeal the district court’s grant
of summary judgment for Appellees Richard L. Tobler and his law firm Richard L.
Tobler, Ltd. in this Nevada common law action for legal malpractice and related
*
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).
claims. We review de novo a district court’s order granting summary judgment
and its interpretation of state law. Garcia v. PacifiCare of Cal., Inc., 750 F.3d
1113, 1115 (9th Cir. 2014). We have jurisdiction under 28 U.S.C § 1291, and we
affirm.
The district court dismissed Appellants’ claims as untimely under Nevada
Revised Statutes § 11.207(1). This statute provides, in relevant part, that “[a]n
action against an attorney . . . to recover damages for malpractice . . . must be
commenced within 4 years after the plaintiff sustains damage or within 2 years
after the plaintiff discovers or through the use of reasonable diligence should have
discovered the material facts which constitute the cause of action, whichever
occurs earlier.” As an initial matter, Appellants argue that the district court erred
by treating the two limitations periods as disjunctive; that is, they contend that they
must demonstrate that they complied with either the 2-year or the 4-year time
limitation, not both. This argument, however, is foreclosed by the Nevada
Supreme Court’s recent decision in Brady, Vorwerck, Ryder & Caspino v. New
Albertson’s, Inc., 333 P.3d 229, 233 (Nev. 2014) (en banc) (“[T]he statute places
four-year and two-year time limitations on an attorney malpractice claim . . . . The
first time limitation to expire governs the timeliness of the malpractice action.”).
2
Appellants next claim that the district court erred by rejecting their argument
that they complied with the 4-year time limitation because they did not “sustain[]
damage” until Adam Kearney’s liability was conclusively adjudicated in January
2011. Appellants are correct that the Nevada Supreme Court has held that
“termination of the underlying proceedings [i]s critical in the context of a claim of
litigation negligence,” but they ignore the Nevada Supreme Court’s admonition
that such cases are “inapposite” to a claim of “transactional” malpractice such as
the one at issue in this appeal. Kopicko v. Young, 971 P.2d 789, 791 n.3 (Nev.
1998). In the context of transactional malpractice, the Nevada Supreme Court has
held that plaintiffs “sustain[] damage” as soon as a wrongdoer takes advantage of a
negligently drafted document to abscond with their money. See Charleson v.
Hardesty, 839 P.2d 1303, 1307 (Nev. 1992) (per curiam). Because this occurred,
at the latest, in June 2007 in this case—and Appellants did not file their claims
against Appellees until January 2012—the district court correctly concluded that
Appellants’ claims were untimely.1
1
Appellants also argue that the district court erred in concluding that they
did not pursue their claims against Appellees until they filed their second amended
complaint in January 2012. Nevertheless, even if the district court had concluded
that the statute of limitations was tolled when Appellants sought leave to amend in
August 2011, their claims still would have been untimely.
3
Appellants’ final argument is that the district court’s order was
“inappropriate” because its reasoning conflicted with an earlier order granting a
different attorney’s motion to dismiss. There was nothing inconsistent about the
two orders. The earlier order involved a claim of litigational malpractice while the
order under review involves a claim of transactional malpractice; as noted above,
the Nevada Supreme Court has held that such claims should be treated differently.
AFFIRMED.
4