Rule 36-3 In re: DANA C. ANDREWS v. Esther Andrews, as successor co- trustee

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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 14-60047
BAP No. 13-1385
MEMORANDUM*
*This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3
In re: DANA C. ANDREWS,
Debtor.
JOHN R. ROBERTS, Chapter 7 Trustee,
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.
FILED
SEP 1 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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

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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)).

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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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