                          NOT FOR PUBLICATION
                                                                          FILED
                     UNITED STATES COURT OF APPEALS                        SEP 1 2016
                          FOR THE NINTH CIRCUIT
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS

In re: DANA C. ANDREWS,                          No.    14-60047

               Debtor.
                                                 BAP No. 13-1385

JOHN R. ROBERTS, Chapter 7 Trustee,
                                                 MEMORANDUM*
               Appellant,
 v.

ESTHER ANDREWS, as successor co-
trustee and intended beneficiaries of the
Andrews Family Revocable Trust;
FRANK P. ANDREWS, JR., as successor
co-trustee and intended beneficiaries of the
Andrews Family Revocable Trust; BRENT
H. ANDREWS, as successor co-trustee
and intended beneficiaries of the Andrews
Family Revocable Trust; F AND L
PROPERTIES; ESTHER LOU LYTTON,
as successor co-trustee and intended
beneficiaries of the Andrews Family
Revocable Trust,

          Appellees.




           *
            This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3



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In re: DANA C. ANDREWS,                         No.    14-60048
             Debtor.                            BAP No. 13-1403


DANA C. ANDREWS,

             Appellant,
 v.

FRANK P. ANDREWS, JR., as successor
co-trustee and intended beneficiaries of the
Andrews Family Revocable Trust;
ESTHER LOU LYTTON, as successor co-
trustee and intended beneficiaries of the
Andrews Family revocable trust; BRENT
H. ANDREWS, as successor co-trustee
and intended beneficiaries of the Andrews
Family Revocable Trust; ANDREWS
FAMILY REVOCABLE TRUST, AKA
Andrews Family Trust; F AND L
PROPERTIES,

            Appellees.

                          Appeals from the Ninth Circuit
                            Bankruptcy Appellate Panel
              Kurtz, Jury, and Taylor, Bankruptcy Judges, Presiding

           Argued and Submitted August 10, 2016, as to No. 14-60047;
               Submitted August 10, 2016, as to No. 14-60048**
                          San Francisco, California


       **    The panel unanimously concludes that this case is suitable for
decision without oral argument. Fed. R. App. P. 34(a)(2).
      *** The Honorable Rosanna Malouf Peterson, United States District
Judge for the Eastern District of Washington, sitting by designation.



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Before: GRABER and McKEOWN, Circuit Judges, and PETERSON, *** District

Judge.

       Appellants John Roberts (Trustee) and Dana Andrews (Debtor) appeal a

Bankruptcy Appellate Panel decision affirming the bankruptcy court=s order

granting summary judgment for Appellee Andrews Family Revocable Trust, et al.,

pursuant to the application of California preclusion law.

       On appeal, we review de novo. Grenning v. Miller-Stout, 739 F.3d 1235,

1238 (9th Cir. 2014). Because the parties are familiar with the factual and

procedural history, we do not recite them here.

       Appellants assert that Debtor did not discover the alleged forgery in the

power of attorney or the Restated Trust Agreement until after the Trust Contest

Judgment had been entered. They argue that the “newly discovered facts”

exception to claim preclusion applies under Allied Fire Protection v. Diede

Construction, Inc., 25 Cal. Rptr. 3d. 195 (Ct. App. 2005). In Allied, the court held

that “[r]es judicata is not a bar to claims that arise after the initial complaint is

filed.” Id. at 199. However, “a plaintiff will be precluded from raising these

facts later if, by exercising due diligence, he or she could have discovered the

relevant information before filing the initial suit.”   Id. at 200-01 (citing Doe v.

Allied-Signal, Inc., 985 F.2d 908, 914 (7th Cir. 1993)).



                                             3
      In this case, the exception does not apply because, Awith diligence,@ the

Debtor would have discovered the purported fraud.     As the Bankruptcy Appellate

Panel noted: “The POA attached to the Trust Complaint reveals the alleged fraud

on its face: Pages one and two are from the general durable POA and pages three

and four are from the healthcare POA.”

      We have carefully considered Appellants’ additional arguments and

conclude that no reversible error occurred.

      AFFIRMED.




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