                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 14 2010

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




                            FOR THE NINTH CIRCUIT



RENEE CECALA,                                    No. 07-16807

              Plaintiff - Appellant,             D.C. No. CV-04-02612-NVW

  v.
                                                 MEMORANDUM *
DAVID B NEWMAN, jointly and
severally, in the individual and
organizational capacity and
COOPERMANN LEVITT WINIKOFF
LESTER & NEWMAN, P.C.,

              Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Arizona
                      Neil V. Wake, District Judge, Presiding

                             Submitted May 10, 2010 **
                              San Francisco, California

Before: SILVERMAN, FISHER and M. SMITH, Circuit Judges.




        *
             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).
      Renee Cecala appeals the district court’s grant of summary judgment in

favor of her former attorney and his law firm in her legal malpractice action. We

have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

      The district court did not err in granting summary judgment on Cecala’s

claim that counsel negligently omitted a retaliation claim from the arbitration.

Even assuming that Cecala could have brought a retaliation claim, the undisputed

facts establish no more than nominal damages. Absent other circumstances not

present here (e.g., a claim that Cecala hired Newman with the understanding that

he would bring a retaliation claim no matter how much or little it was worth), her

lawyer was not negligent for failing to bring a claim that would have yielded

nominal damages. Nor can Cecala’s lawyer be blamed for her refusal to mitigate

her damages.

      The district court also did not err in holding that the non-litigation

malpractice claims were barred by the statute of limitations. The damages for the

non-litigation claims were not contingent on the outcome of the arbitration and

appeals. As a result, the claims were not deferred until the exhaustion of appeals.

See Cannon v. Hirsch Law Office, P.C., 213 P.3d 320, 323-25 (Ariz. Ct. App.

2009). Cecala waived her new equitable tolling and estoppel arguments by

asserting them for the first time on appeal and not asserting all of the necessary


                                           2
facts for those claims in the district court. See Stulce v. Salt River Project Agric.

Improvement & Power Dist., 3 P.3d 1007, 1015 (Ariz. Ct. App. 1999). Nor did the

district court abuse its discretion by holding that the attorney misconduct giving

rise to the claim could not toll the limitations period. The misconduct ended before

the statute of limitations started to run.

       AFFIRMED.




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