/ Attorney's Fees
panel denied a bankruptcy debtor's motion to recover
attorney's fees after he prevailed on the merits on
appeal in a nondischargeability proceeding.
opinion on appeal from the district court's affirmance of
the bankruptcy court, the panel held that the debtor was not
a fiduciary under the Employee Retirement Income Security
Act, and thus the Bankruptcy Code's "
fiduciary" exception to discharge could not be applied
to him. Accordingly, his judgment debt for failure to make
payments to employee pension funds could be discharged in
the debtor's motion for attorney's fees, the panel
held that the debtor was not entitled to fees under the
fee-shifting provision of California Civil Code § 1717,
which makes reciprocal an otherwise unilateral contractual
obligation to pay attorney's fees. Adopting the
Bankruptcy Appellate Panel's construction of section
1717, the panel held that the dischargeability claim was not
an action " on a contract," but rather was
collateral to a contract.
panel held that the debtor also was not eligible to recover
fees under ERISA because the nondischargeability proceeding
did not meet the test for " arising under"
jurisdiction set forth in 29 U.S.C. § 1132(e).
GREGORY BOS, Appellant: J. Russell Cunningham, Kristen
Ditlevsen, Jeremy Luke Hendrix, Attorneys, Desmond Nolan
Livaich & Cunningham, Sacramento, CA.
BOARD OF TRUSTEES, in their capacities as Trustees of the
Carpenters Health and Welfare Fund of California; Carpenters
Vacation-Holiday Trust Fund for Northern California;
Carpenters Pension Trust Fund for Northern California;
Carpenters Annuity Trust for Northern California; Carpenters
Training Trust Fund for Northern California; Northern
California Carpenters Regional Council, Appellee: Emily P.
Rich, Tracy L. Mainguy, Blythe Mickelson, Roberta D. Perkins,
Attorneys, Weinberg Roger & Rosenfeld, Alameda, CA.
Diarmuid F. O'Scannlain and Sandra S. Ikuta, Circuit
Judges and Larry A. Burns,[*] District Judge.
consider Gregory Bos's motion to recover attorney's
fees under California Civil Code § 1717, and the
fee-shifting provisions of the Employee Retirement Income
Security Act of 1974.
facts giving rise to the present request for attorney's
fees are more fully set forth in our underlying opinion on
the merits. See Bos v. Bd. of Trs., 795
F.3d 1006 (9th Cir. 2015). We offer a brief summary here.
an employer who was bound by a handful of Trust Agreements to
make payments to certain employee pension Funds, which were
administered by the Board of Trustees. Id. at 1007.
Bos struggled to meet his obligation, and in March 2009 he
signed a Promissory Note pledging to make monthly
contributions and personally guaranteeing payment to the
Funds of $359,592.09. He mostly fell short. In August 2009
the Board brought a grievance against Bos, and an arbitrator
ruled that he had violated such obligations, awarding the
Funds $504,282.59. A California Superior Court confirmed the
Board's arbitration award and later entered a judgment
against Bos in the same amount.
the same time, Bos filed for Chapter 7 bankruptcy.
Id. at 1008. When Bos tried to discharge the
half-million-dollar debt he owed the Funds, the Board
objected, and brought an adversary proceeding in bankruptcy
court in an effort to have Bos's debt declared
nondischargeable under the Bankruptcy Code. Id. The
Board sought relief under three different provisions of the
Code. One of those provisions, 11 U.S.C. § 523(a)(4),
provides that a debtor may not discharge a debt he incurred
through " fraud or defalcation while acting in a
fiduciary capacity, embezzlement, or larceny."
conceded that the Trust Agreements and the Promissory Note
were fully enforceable, conceded that he had breached them,
and conceded that his debt to the Funds was valid. Bos
argued, however, that the Bankruptcy ...