Renee Cecala v. David Bnewman, jointly

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RENEE CECALA,
Plaintiff - Appellant,
v.
DAVID B NEWMAN, jointly and
severally, in the individual and
organizational capacity and
COOPERMANN LEVITT WINIKOFF
LESTER & NEWMAN, P.C.,
Defendants - Appellees.
No. 07-16807
D.C. No. CV-04-02612-NVW
MEMORANDUM*
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.
FILED
MAY 14 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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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

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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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