                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JAN 17 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

FRANK DUFOUR,                                   No.    17-55999

                Plaintiff-Appellant,            D.C. No. 2:14-cv-05616-CAS-SS

 v.
                                                MEMORANDUM*
ROBERT ALLEN, ET AL.

                Defendants-Appellees.

                   Appeal from the United States District Court
                       for the Central District of California
                   Christina A. Snyder, District Judge, Presiding

                      Argued and Submitted January 9, 2019
                              Pasadena, California

Before: GRABER and WARDLAW, Circuit Judges, and ROBRENO,** District
Judge.

      Frank Dufour appeals the district court’s award of attorney’s fees of

$385,487.25 in favor of the Defendants. Dufour argues that the district court

abused its discretion in finding that he was estopped from challenging the validity

of the enrollment agreement and in concluding that the indemnity clause in the

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Eduardo C. Robreno, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
enrollment agreement authorized attorney’s fees for litigation between the parties.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse and vacate the

district court’s order awarding attorney’s fees to Defendants.

       We assume without deciding that Dufour is bound by the enrollment

agreement and address whether the indemnity clause in the enrollment agreement

authorized the attorney’s fees awarded.1 For the following reasons, we conclude

that it does not.

       Although “[i]ndemnity generally refers to third party claims,” California

courts have explained that “this general rule does not apply if the parties to a

contract use the term ‘indemnity’ to include direct liability as well as third party

liability.” Zalkind v. Ceradyne, Inc., 124 Cal. Rptr. 3d 105, 113–14 (Ct. App.

2011) (quoting Dream Theater, Inc. v. Dream Theater, 21 Cal. Rptr. 3d 322, 328

(Ct. App. 2004)). In determining whether an indemnity clause includes direct

liability, California courts look to the parties’ intent and the contract as a whole.

See Hot Rods, LLC v. Northrop Grumman Sys. Corp., 196 Cal. Rptr. 3d 53, 63 (Ct.

1
  Although the enrollment agreement states that it is governed by Utah law, the
district court ruled that California law applies because Utah lacks a substantial
relationship to the parties or the transaction; the only connection to Utah is that it is
Defendant Prosper Inc.’s place of incorporation. The district court also explained
that the parties effectively stipulated to California law throughout the duration of
the five-plus years of litigation of this case. Further, the district court observed that
the parties did not argue that there is a material difference between the application
of California or Utah law on the relevant issues. Finally, the parties did not appeal
the district court’s ruling on the application of California law. Therefore, we decide
this case under California law.

                                           2
App. 2015).

      Here, when read in context, it appears that the indemnity clause applies only

to third-party claims and not to direct claims between the parties. Specifically,

under the enrollment agreement, the parties pay their own expenses for arbitration

of disputes between themselves, suggesting that direct claims are carved out of the

indemnity clause. Additionally, California recognizes the doctrine of contra

proferentem, that is, construing ambiguous agreements against the drafter. See Cal.

Civ. Code § 1654; Mayhew v. Benninghoff, 62 Cal. Rptr. 2d 27, 30 (Ct. App.

1997). To the extent the enrollment agreement is ambiguous on the issue of

indemnification of direct claims, it must be construed against Defendants.

Accordingly, we reverse and vacate the district court’s award of attorney’s fees to

Defendants.

      REVERSED and ORDER OF THE DISTRICT COURT IS VACATED.

Costs on appeal are awarded to Plaintiff.




                                          3
