The opinion
FILED
NOT FOR PUBLICATION DEC 10 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RANDOLPH FONG; CYNTHIA No. 13-17416
YOUNG,
D.C. No. 3:13-cv-03021-EDL
Plaintiffs - Appellees,
v. MEMORANDUM*
PATRICIA BEEHLER, as Co-Trustee and
individually; HOW GUIN ROBERT
FONG, as Co-Trustee and individually,
Defendants - Appellants.
Appeal from the United States District Court
for the Northern District of California
Elizabeth D. Laporte, Magistrate Judge, Presiding
Submitted December 8, 2015**
San Francisco, California
Before: O’SCANNLAIN, SILVERMAN, and BEA, Circuit Judges.
Following remand to state court, the district court, pursuant to 28 U.S.C.
§ 1447(c), awarded plaintiff Randolph Fong $9,775 in attorneys’ fees incurred as a
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
result of removal of an inheritance dispute to federal court. On appeal, defendants
Patricia Beehler and Robert Fong argue that the district court abused its discretion
in awarding fees because there was an objectively reasonable basis for removal.
See Martin v. Franklin Capital Corp., 546 U.S. 132, 136 (2005). We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
I
The district court did not err in concluding that Patricia Beehler and Robert
Fong lacked an objectively reasonable basis for believing that there was complete
diversity. Co-petitioner Cynthia Young and defendant Robert Fong were both
California citizens. Young had been a party to the state proceedings prior to
removal since at least July 30, 2012, when she filed a petition in state court. Young
was described as a petitioner in both Randolph Fong’s first and second amended
petitions, and she expressly joined Randolph Fong’s first amended petition before
the case was removed. Furthermore, as the district court noted, it was clear that the
state court treated Young as a party when it granted her motion to disqualify
Defendants’ counsel. That Young had yet to join her brother’s second amended
petition at the time of removal was irrelevant.
II
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Even if complete diversity had existed, defendants Patricia Beehler and
Robert Fong had no objectively reasonable basis for believing that removal was
timely. 28 U.S.C. § 1446(b)(1) requires that “[t]he notice of removal of a civil
action or proceeding . . . be filed within 30 days after the receipt by the defendant
. . . of a copy of the initial pleading.” When a case is not removable initially, but a
subsequent pleading makes it removable, such removal, if based on diversity, may
not occur “more than 1 year after commencement of the action, unless the district
court finds that the plaintiff has acted in bad faith in order to prevent a defendant
from removing the action.” § 1446(c)(1). “‘Commencement’ in this context refers
to when the action was initiated in state court, according to state procedures.” Bush
v. Cheaptickets, Inc., 425 F.3d 683, 688 (9th Cir. 2005).
Here, the civil action commenced under section 350 of the California Code
of Civil Procedure on November 3, 2011, when Randolph Fong served his original
petition. Patricia Beehler removed the action on July 1, 2013. Even assuming that
the action had become removable as a result of the second amended petition,
removal occurred well over a year after the action commenced and was therefore
untimely. California case law holding that a claim against an estate does not
commence an action, see Berger v. O’Hearn, 264 P.2d 10, 13 (Cal. 1953), is
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inapposite as Randolph Fong’s initial petition far exceeded a mere “claim against
the estate,” id. at 11.
Nor was the option to remove “revived” as a result of the second amendment
petition; contrary to Defendants’ suggestion, such petition was not “a completely
new action.” Indeed, the case maintained the same case number, referred to the
same petitioners, involved the same facts, and asserted mostly the same claims. It
remained, in the words of the district court, “a dispute among sibling heirs about
their parent’s estate.”
III
We deny without prejudice Randolph Fong’s request for fees on appeal
because such request must be made by separate motion “supported by a
memorandum showing that the party seeking fees is legally entitled to them.” 9th
Cir. R. 39-1.6(b).
AFFIRMED.
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