Lfmg-S&b, LLC v. Buchalter Nemer ( 2017 )

  •                                                                            FILED
                               NOT FOR PUBLICATION
                                                                               DEC 21 2017
                       UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT
    In re: S&B SURGERY CENTER,                      No.    16-55879
              Debtor,                               D.C. No. 2:15-cv-06964-CJC
    LFMG-S&B, LLC, a California Limited             MEMORANDUM*
    Liability Company,
    BUCHALTER NEMER, a California
    Professional Law; BENJAMIN S.
                       Appeal from the United States District Court
                          for the Central District of California
                       Cormac J. Carney, District Judge, Presiding
                        Argued and Submitted November 13, 2017
                                  Pasadena, California
                 This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
                                                                                      page 2
    Before:      KOZINSKI,** HAWKINS and PARKER,*** Circuit Judges.
          1. In California, legal malpractice claims may be assigned only under
    narrow circumstances. See White Mountains Reinsurance Co. of Am. v. Borton
    Petrini, LLP, 
    221 Cal. App. 4th 890
    , 892 (2013). LFMG’s acquisition didn’t
    include other “assets, rights, obligations, [or] liabilities,” so the malpractice claim
    wasn’t assigned as an “incidental part of a larger commercial transfer.” Id. The
    transfer was also functionally “analogous to the assignment of a bare [malpractice]
    cause of action” because the claims against Fortress were time-barred. Id. at 909.
    The original client was not an insurance company. Id. at 892. Nor did Buchalter
    and the Trust communicate through third parties. Id. The assignment here comes
    nowhere close to satisfying the White Mountains test.
          2. The district court didn’t err in affirming the bankruptcy court’s refusal to
    grant leave to amend. Even if LFMG were a third-party beneficiary, the statute of
    limitations would have run on the malpractice claim. See Cal. Code Civ. Proc. §
                 Prior to his retirement, Judge Kozinski fully participated in this case and
    concurred in this disposition after deliberations were complete.
                The Honorable Barrington D. Parker, Jr., United States Circuit Judge for
    the U.S. Court of Appeals for the Second Circuit, sitting by designation.
                page 3

Document Info

DocketNumber: 16-55879

Filed Date: 12/21/2017

Modified Date: 12/21/2017