Roderich Bott v. Jeffrey Edelson

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 30, 2019
• Docket: 17-35546
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 30 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

RODERICH BOTT, No. 17-35546

Plaintiff-Appellant, D.C. No. 3:16-cv-00636-MO

v. MEMORANDUM* JEFFREY M. EDELSON; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Oregon Michael W. Mosman, District Judge, Presiding

Argued and Submitted Telephonically April 26, 2019 San Francisco, California

Before: W. FLETCHER and BYBEE, Circuit Judges, and BURNS,** District Judge.

Roderich Bott sued attorneys Robert McGaughey and Jeffrey Edelson and

the firm of Markowitz, Herbold, Glade & Mehlhaf, PC for legal malpractice,

breach of fiduciary duty, and breach of written and oral contracts. The district court

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Larry A. Burns, Chief United States District Judge for the Southern District of California, sitting by designation. granted summary judgment for the defendants based on a statute of limitations

defense. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Because the district court was sitting in diversity, it correctly applied state

law in determining when claims accrue. See Olympic Sports Prods., Inc. v.

Universal Athletic Sales Co., 760 F.2d 910, 918 (9th Cir. 1985). In Oregon, a claim

accrues when the facts giving rise to the claim are (or with the exercise of

reasonable care could be) discovered. Stevens v. Bispham, 851 P.2d 556, 559 (Or.

1993). The district court accepted Bott’s argument that a two-year statute of

limitations applied, and that the limitations period was tolled by bankruptcy

proceedings beginning May 1, 2014. Claims that accrued before May 1, 2012 are

therefore time-barred.

The district court did not err in granting summary judgment because Bott

failed to establish a triable issue of fact as to the accrual date. See Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986). Undisputed evidence before the district court

established that Bott was aware before May 1, 2012 of facts showing harm,

causation, and tortious conduct. See Gaston v. Parsons, 864 P.2d 1319, 1324–25

(Or. 1994). For example, at a hearing in March 2012, Bott heard McGaughey

advocating claims on behalf of Eric Prentice, the LLC’s co-owner, and against

Bott. During the same hearing, Bott’s own lawyer openly questioned

McGaughey’s loyalty to the LLC, and argued at length that he was improperly

2 serving as an advocate for Prentice to the LLC’s detriment.

Bott maintains that he did not immediately realize that these facts gave rise

to claims against the defendants. He points out that he did not discover the

existence of a written joint interest agreement between Prentice and the defendants

until January 15, 2013. But while the agreement helps to explain why the

defendants behaved as they did, it does not alter the date Bott first became aware

of the facts underlying his claims. Bott’s knowledge of those facts was sufficient to

satisfy Oregon’s objective standard.

AFFIRMED.