NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: DENNIS G. CURTIS, 

Debtor, 

______________________________ 

BANK OF THE WEST, 

Plaintiff-Appellee, 

 v. 

DENNIS G. CURTIS, 

Defendant-Appellant.

No. 21-55850 

D.C. No. 

3:20-cv-02515-AJB-DEB 

MEMORANDUM*

Appeal from the United States District Court

for the Southern District of California

Anthony J. Battaglia, District Judge, Presiding

Submitted April 15, 2022**

Pasadena, California

Before: CALLAHAN and VANDYKE, Circuit Judges, and Y. GONZALEZ 

ROGERS,*** District Judge.

* 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).

*** The Honorable Yvonne Gonzalez Rogers, United States District Judge 

for the Northern District of California, sitting by designation.

FILED

MAY 6 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Appellant Dennis G. Curtis (“Curtis”) appeals the district court’s order 

vacating the bankruptcy court’s award of attorney’s fees to Curtis under California 

Civil Code section 1717. We have jurisdiction over this appeal pursuant to 

28 U.S.C. § 158(d)(1) and 28 U.S.C. § 1291. We find that the nondischargeability

proceeding brought by appellee Bank of the West pursuant to 11 U.S.C. §

523(a)(2)(A)–(B) was not an action “on a contract” under California Civil Code 

section 1717. On that basis, we affirm the district court’s order vacating the fee 

award.

The sole issue in this appeal is whether Curtis prevailed in an “action on a 

contract” within the meaning of section 1717. In relevant part, section 1717 

provides that:

In any action on a contract, where the contract specifically provides that 

attorney’s fees and costs, which are incurred to enforce that contract, 

shall be awarded either to one of the parties or to the prevailing party, 

then the party who is determined to be the party prevailing on the 

contract, whether he or she is the party specified in the contract or not, 

shall be entitled to reasonable attorney’s fees in addition to other costs.

Cal. Civ. Code § 1717(a). There is no dispute that this provision has the effect of 

making reciprocal an otherwise unilateral contractual obligation to pay attorney’s 

fees. Santisas v. Goodin, 951 P.2d 399, 406–07 (Cal. 1998).

As we have previously explained, “[t]hree conditions must be met before 

[section 1717] applies.” Penrod v. AmeriCredit Fin. Servs. (In re Penrod), 802 

F.3d 1084, 1087 (9th Cir. 2015). “First, the action generating the fees must have 
3 

been an action ‘on a contract.’” Bos v. Bd. of Trs., 818 F.3d 486, 489 (9th Cir. 

2016) (quoting In re Penrod, 802 F.3d at 1087). “Second, the contract must 

provide that attorney’s fees incurred to enforce it shall be awarded either to one of 

the parties or to the prevailing party.” Id. at 489 (citation omitted). “And third, the 

party seeking fees must have prevailed in the underlying action.” Id. (citation 

omitted). On appeal, the parties only dispute the application of the first condition. 

We recently reaffirmed the consistency of our precedent applying section 

1717 with the California Supreme Court’s interpretation of what it means for an 

action to be “on a contract.” Bos, 818 F.3d at 489. In doing so, we noted that 

“[t]he California Supreme Court has explained that ‘section 1717 applies only to 

actions that contain at least one contract claim,’ and that ‘[i]f an action asserts both 

contract and tort or other noncontract claims, section 1717 applies only to attorney 

fees incurred to litigate the contract claims.’” Id. (quoting Santisas, 951 P.2d at 

409). Again, “[c]onsistent with Santisas, we have previously held that a 

nondischargeability action is ‘on a contract’ within section 1717 if ‘the bankruptcy 

court needed to determine the enforceability of the . . . agreement to determine 

dischargeability.’” Id. (emphasis supplied) (quoting Ford v. Baroff (In re Baroff), 

105 F.3d 439, 442 (9th Cir. 1997)); see also Santisas, 951 P.2d at 406 (recognizing 

that a party may recover attorney’s fees on a contract where a party “defends the 

litigation ‘by successfully arguing the inapplicability, invalidity, unenforceability, 
4 

or nonexistence of the same contract’” (citation omitted)). Said differently, “if the 

bankruptcy court did not need to determine whether the contract was enforceable, 

then the dischargeability claim is not an action on the contract within the meaning 

of [California Civil Code] § 1717.” Bos, 818 F.3d at 490 (emphasis supplied)

(quoting Redwood Theaters, Inc. v. Davison (In re Davison), 289 B.R. 716, 723 

(B.A.P. 9th Cir. 2003)). This “common sense” construction of the phrase “on a 

contract,” adopted by Bos, is consistent with long standing precedent applying 

section 1717 in bankruptcy proceedings. Bos, 818 F.3d at 489–90.

Here, the nondischargeability proceeding arose under the Bankruptcy Code 

and did not concern a breach of contract claim. The bankruptcy court denied 

Curtis’s first motion for summary judgment that asserted that the forbearance

agreement was illusory and unenforceable as a matter of contract interpretation. 

The bankruptcy court later granted Curtis’s second motion for summary judgment 

and did not rely upon California law. Instead, it relied upon Ninth Circuit case law 

concerning the damages element of a fraud claim. Indeed, the bankruptcy court 

expressly found that Bank of the West’s failure to proffer evidence of damages 

“obviated” the need to rule on the enforceability of the forbearance agreement. 

Accordingly, interpretation of the agreement was not necessary for Curtis to 

prevail, and he did not prevail “on a contract” within the common-sense

construction of the statute.
5 

Relying on In re Baroff and In re Penrod, Curtis urges us to affirm the 

bankruptcy court’s determination that the underlying action was decided “on a 

contract” because Curtis’s key contract-based defense played an integral part of the 

case where Bank of the West primarily sought monetary damages for amounts on 

the initial debts. Such narrow reliance on In re Baroff and In re Penrod is 

misplaced. 

Like the case here, In re Baroff concerned a fraud-based nondischargeability 

claim. In those proceedings, the debtor raised a defense that the parties’ settlement 

agreement had released the debtor from all claims, which included the disputed 

debt. In re Baroff, 105 F.3d at 442. Applying California law, the bankruptcy court

concluded that the agreement was an integrated document that precluded proof of 

the underlying oral debt at issue. Id. Therefore, summary judgment was granted 

on that basis in favor of the debtor. Id. Consistent with our recent precedent, we 

held that that the proceeding was on a contract because “the bankruptcy court 

needed to determine the enforceability of the settlement agreement to determine 

dischargeability.” Id. (emphasis supplied). Here, the bankruptcy court denied 

summary judgment as to the unenforceability of the agreement and disposed of the 

case on other grounds based in tort, obviating the need to resolve any contractbased defenses.
6 

Again, in In re Penrod, we confirmed that “an action is ‘on a contract’ when 

a party seeks to enforce, or avoid enforcement of, the provisions of the contract.” 

802 F.3d at 1088. Since “[n]othing in the text of § 1717 limits its application to 

actions in which the court is required to resolve disputed factual issues relating to 

the contract,” we held that “[a] party who obtains (or defeats) enforcement of a 

contract on purely legal grounds, as by prevailing on a motion to dismiss with 

prejudice or by showing that a defendant’s contract-based defenses are barred by 

federal statute or federal common law, still prevails in an action ‘on a contract.’” 

Id. at 1089 (emphasis supplied) (citations omitted). Ultimately, we had no issue 

determining that the action was on a contract because “[t]he sole issue in 

the . . . litigation was whether [a particular] provision of the contract should be 

enforced according to its terms, or whether its enforceability was limited by 

bankruptcy law to exclude the negative-equity portion of the loan.” Id. at 1088

(emphasis supplied). The debtor necessarily “obtained a ruling that precluded [the 

lender] from fully enforcing the terms of the contract.” Id. (emphasis supplied). 

Here, the enforceability of the contract was not the sole issue in the litigation as 

demonstrated by the bankruptcy court’s acknowledgment that its finding on 

reliance and damages obviated the need to resolve issues of enforceability. There 

was no ruling, concerning either a legal question or factual dispute, that prevented 

the enforcement of any term of the agreement. Thus, the proceedings were not an 
7 

“action on a contract,” and Curtis was not entitled to attorney’s fees pursuant to 

section 1717.

AFFIRMED.