                                                                            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                           NOT FOR PUBLICATION                              DEC 10 2015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.




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