FILED
NOT FOR PUBLICATION JAN 02 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JESS C. ARNDELL and SUZANNE K. No. 12-17187
ARNDELL,
D.C. No. 3:11-cv-469 (RCJ)
Appellants, (VPC)
v.
ROBISON, BELAUSTEGUI, SHARP & MEMORANDUM*
LOW, KENT R. ROBISON, THOMAS L.
BELAUSTEGUI, F. DEARMOND
SHARP, KEEGAN G. LOW, and MARK
G. SIMONS,
Appellees.
On Appeal from the United States District Court
for the District of Nevada
Robert C. Jones, District Judge, Presiding
Argued and Submitted December 11, 2014
San Francisco, California
Before: TASHIMA and PAEZ, Circuit Judges, and BLOCK, District Judge.**
Jess C. Arndell and Suzanne K. Arndell (collectively, the “Arndells”) appeal
the district court’s dismissal of their legal malpractice action. We have jurisdiction
*
This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
**
The Honorable Frederic Block, Senior United States District Judge for the Eastern
District of New York, sitting by designation.
under 28 U.S.C. § 1332.1 We affirm.
The Arndells were not entitled to concealment tolling on their legal malpractice
claim under NEV. REV. STAT. § 11.207(2). We are persuaded that were the Nevada
Supreme Court to consider this issue, it would apply the medical malpractice
concealment standard from Winn v. Sunrise Hosp. & Med. Ctr., 277 P.3d 458 (Nev.
2012), to legal malpractice concealment. Cf. In re Watts, 298 F.3d 1077 (9th Cir.
2002) (adopting decisions by the California Courts of Appeal interpreting state
judgment creditor law after concluding that the California Supreme Court would
follow their rationale if presented with the same issue). Legal and medical
malpractice claims have similarly structured limitations periods and virtually identical
concealment tolling provisions. Compare NEV. REV. STAT. § 11.207, with NEV. REV.
STAT. § 41A.097.
Under Winn, concealment tolls the statute of limitations when: (1) the defendant
intentionally withheld information and (2) that withholding would have hindered a
reasonably diligent plaintiff from filing suit. See Winn, 277 P.3 at 464. When the
settlement was signed on February 26, 2003, the Arndells knew that Appellees: (1)
1
After considering the parties’ responses to our order regarding subject matter
jurisdiction, we conclude that Hidden Meadows Company and Jess Arndell Construction
Company’s assignment of their interests in this litigation to the Arndells was not collusive under
28 U.S.C. § 1359. Accordingly, the district court properly exercised diversity subject matter
jurisdiction.
2
advocated settling a $11,000,000 claim for $70,000; (2) inappropriately pressured Jess
Arndell to settle; (3) admitted they were unprepared for trial; (4) settled the SEA
lawsuit for $1,450,000 without authorization; and (5) negotiated the indemnification
clause without consent. With this knowledge, a reasonably diligent plaintiff would
not have waited for Appellees to provide an accounting and disclose emails before
filing a malpractice action.2 Id.
The Arndells have also failed to demonstrate that they were prejudiced by the
district court’s consolidation of their fraud and misrepresentation claims into a legal
malpractice claim. See FED. R. CIV. P. 61. Any fraud or misrepresentation claims
they could have asserted based on the allegations in the First Amended Complaint
would have been untimely in any event. See NEV. REV. STAT. § 11.190(3)(d).
AFFIRMED.
2
At oral argument, the Arndells maintained that Appellees lied regarding the
availability of expert testimony in the SEA lawsuit. This allegation does not appear in the First
Amended Complaint and the Arndells have not revealed the contents of this testimony. In any
event, withholding of this testimony, even if favorable, is insufficient to establish concealment
tolling under the facts of this case.
3