Randolph Fong v. Patricia Beehler , 624 F. App'x 536 ( 2015 )


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  •                                                                             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    NOT FOR PUBLICATION                              DEC 10 2015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
    2
    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
    3
    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.
    4
    

Document Info

Docket Number: 13-17416

Citation Numbers: 624 F. App'x 536

Filed Date: 12/10/2015

Precedential Status: Non-Precedential

Modified Date: 1/13/2023