                                                                           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                           NOT FOR PUBLICATION                             MAR 18 2015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.




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