                                                         FILED
                                                          JUL 03 2013
                                                      SUSAN M SPRAUL, CLERK
 1                                                      U.S. BKCY. APP. PANEL
                                                        OF THE NINTH CIRCUIT

 2
 3                  UNITED STATES BANKRUPTCY APPELLATE PANEL
 4                            OF THE NINTH CIRCUIT
 5   In re:                             )   BAP No. CC-13-1042-PaDKi
                                        )
 6   JAMES CHARLES CHARALAMBOUS,        )   Bankr. No. 11-40184-RK
                                        )
 7                  Debtor.             )   Adv. Proc. 11-02796-RK
     ___________________________________)
 8                                      )
     SHARON HAMILTON,                   )
 9                                      )
                    Appellant,          )
10                                      )
     v.                                 )   M E M O R A N D U M1
11                                      )
     JAMES CHARALAMBOUS,                )
12                                      )
                    Appellee.           )
13   ___________________________________)
14                   Argued and Submitted on June 20, 2013
                            at Pasadena, California
15
                              Filed - July 3, 2013
16
               Appeal from the United States Bankruptcy Court
17                 for the Central District of California
18       Honorable Gregg W. Zive, U.S. Bankruptcy Judge, Presiding2
19
     Appearances:    Sidney Lanier of Ayscough & Marar argued for
20                   appellant Sharon Hamilton; Andrew James Thomas of
                     Thomas & Thomas, LLP argued for appellee James
21                   Charles Charalambous.
22
     Before: PAPPAS, DUNN and KIRSCHER, Bankruptcy Judges.
23
24        1
             This disposition is not appropriate for publication.
25   Although it may be cited for whatever persuasive value it may have
     (see Fed. R. App. P. 32.1), it has no precedential value. See 9th
26   Cir. BAP Rule 8013-1.
          2
27           The Hon. Robert Kwan is the presiding judge in this
     bankruptcy case and adversary proceeding. The Hon. Gregg W. Zive
28   was designated to preside over the trial in this adversary
     proceeding and he entered the order on appeal.

                                      -1-
 1        Creditor Sharon Hamilton (“Hamilton”) appeals the order of
 2   the bankruptcy court denying her request for attorney’s fees in
 3   connection with an adversary proceeding.   We VACATE and REMAND.
 4                                 FACTS
 5        In April 2007, Hamilton first contacted chapter 73 debtor
 6   James Charles Charalambous (“Charalambous”), a home design
 7   consultant, to discuss a project to remodel her home.   Four or
 8   five meetings between the parties occurred though July 2007.     At
 9   some point, Charalambous gave Hamilton a brochure describing his
10   services, which contained the following:
11        Attorney Fees
12        In any litigation, arbitration, or other proceeding by
          which one party either seeks to enforce its rights under
13        this Agreement (whether in contract, tort, or both) or
          seeks a declaration of any rights or obligations under
14        this Agreement, the prevailing party shall be awarded
          reasonable attorney fees, together with any costs and
15        expenses, to resolve the dispute and to enforce the
          final judgment.
16
17        On July 1, 2007, Hamilton made her first payment to
18   Charalambous, a check for $10,000.    Over the next two years,
19   Hamilton would give thirteen checks to Charalambous totaling
20   $224,517.34.
21        Charalambous obtained plans, city permits, and referred a
22   contractor, JLJ Construction, Inc. (“JLJ”) to Hamilton, which
23   began work on the project in 2008.    There was no written agreement
24   between Hamilton and JLJ, or between JLJ and Charalambous.
25        The relationship between Hamilton and Charalambous ended in
26
          3
             Unless otherwise indicated, all chapter and section
27   references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532. All
     rule references are to the Federal Rules of Bankruptcy Procedure,
28   Rules 1001-9037.

                                    -2-
 1   December 2009.    On January 29, 2010, Hamilton sued Charalambous in
 2   state court, alleging breach of contract and fraud; Charalambous
 3   asserted a cross-complaint against Hamilton for defamation and
 4   emotional distress.    Hamilton v. Charalambous, case no. LASC YC
 5   061580 (Los Angeles Superior Court).
 6           Trial in the state court was scheduled to begin on July 26,
 7   2011.    However, Charalambous filed a petition for bankruptcy
 8   relief under chapter 7 on July 14, 2011.
 9           Hamilton commenced an adversary proceeding against
10   Charalambous in the bankruptcy court on September 21, 2011.      In
11   the complaint she sought an exception to discharge under
12   § 523(a)(2)(A), alleging that Charalambous had engaged in
13   intentional fraud in his dealings with Hamilton, including his
14   representation to her that he was “fully licensed.”    Hamilton also
15   sought an exception to discharge under § 523(a)(4) for breach of
16   fiduciary duty, and under § 523(a)(6) for willful and malicious
17   injury to Hamilton.    Before trial, Charalambous placed the
18   remaining funds in his possession provided to him by Hamilton,
19   $126,663.00, in a separate account on the advice of his attorney.
20           The trial in the adversary proceeding occurred on October 9,
21   10 and 11, 2011.    Hamilton and Charalambous were present and
22   represented by counsel.    Witnesses testified, including Hamilton
23   and Charalambous; the parties also submitted declaratory evidence.
24           The bankruptcy court entered Findings of Fact and Conclusions
25   of Law on November 19, 2012.    The court determined “after
26   considering the facts and credibility of the witnesses, the court
27   is not persuaded that plaintiffs have shown defendant acted with
28   an intent to deceive.”    As to Hamilton’s § 523(a)(6) claim, the

                                       -3-
 1   court found that “plaintiff has not proved by a preponderance of
 2   the evidence that defendant deliberately or intentionally injured
 3   plaintiff.”
 4           However, the bankruptcy court held in Hamilton’s favor on her
 5   claim for an exception to discharge under § 523(a)(4).     The court
 6   determined that an express trust existed between Hamilton and
 7   Charalambous; that Charalambous was in a fiduciary relationship
 8   with Hamilton; and that Charalambous committed defalcation.       Since
 9   Hamilton established by a preponderance of the evidence all of the
10   elements required by § 523(a)(4), the court concluded that
11   “plaintiff is entitled to a judgment that $126,663.00 is a
12   nondischargeable debt pursuant to 11 U.S.C. § 523(a)(4).”     A
13   judgment incorporating these findings was entered on November 29,
14   2012.       That judgment was not appealed.
15           Hamilton filed a motion for an award of prejudgment interest
16   on November 28, 2012.      The same day, Hamilton also filed a motion
17   for an award of attorney’s fees (the “Fee Motion”).4     Charalambous
18   did not oppose either motion in the bankruptcy court.
19           In the Fee Motion, Hamilton asserted that she was entitled to
20   recover her attorney’s fee incurred in the discharge litigation
21   under the provision in the brochure given to her by Charalambous.
22   Relying upon Cal. Code Civ. P. § 1021, which allows recovery of
23   attorney’s fees by a prevailing party, Hamilton submitted time
24   records indicating a total of $254,291.25 in charges, which she
25   sought to recover from Charalambous.
26           Since Charalambous did not oppose the Fee Motion, the court
27
             4
28           Hamilton did not request costs as part of the Fee Motion,
     only fees based on attorney time records.

                                         -4-
 1   did not hold a hearing.   Instead, on January 22, 2013, it entered
 2   a Memorandum of Decision disposing of both of Hamilton’s motions.
 3   While it granted Hamilton’s request for prejudgment interest, the
 4   bankruptcy court denied Hamilton’s motion for an award of
 5   attorney’s fees.
 6        In the Memorandum of Decision, the bankruptcy court did not
 7   discuss the application of Cal. Code Civ. P. § 1021 to Hamilton’s
 8   fee request.    Instead, the court analyzed Hamilton’s request under
 9   Cal. Civ. Code § 1717, which provides, in pertinent part, “where
10   the contract specifically provides that attorney’s fees . . .,
11   which are incurred to enforce that contract, shall be awarded
12   . . . to the prevailing party, then the [prevailing] party . . .
13   shall be entitled to reasonable attorney’s fees . . . .”    Under
14   Cal. Civ. Code § 1717(d)(1), “the prevailing party on the contract
15   shall be the party who recovered a greater relief in the action on
16   the contract.   The trial court may also determine that there is no
17   party prevailing on the contract for purposes of this section.”
18   Because the bankruptcy court ruled in Charalambous’ favor on
19   Hamilton’s claims under §§ 523(a)(2)(A) and (a)(6), and because
20   the bankruptcy court did not rely upon the existence of a contract
21   to grant Hamilton relief under § 523()(4), the bankruptcy court
22   declined to award Hamilton attorney’s fees under the California
23   statute.
24        Hamilton filed a timely appeal of the denial of attorney’s
25   fees in the Memorandum of Decision on February 1, 2012.
26                                JURISDICTION
27        The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334
28   and 157(b)(2)(B) and (I).   We have jurisdiction under 28 U.S.C.

                                      -5-
 1   § 158.
 2                                    ISSUES
 3   1.   Whether Charalambous has standing to appear in this appeal.
 4   2.   Whether the bankruptcy court abused its discretion in denying
 5        an award of attorney’s fees and costs to Hamilton under state
 6        law.
 7                              STANDARD OF REVIEW
 8        Whether an appellee has standing to appear in an appeal is
 9   reviewed de novo.   Caudill v. N.C. Machinery, Inc. (In re Am.
10   Eagle Machinery, Inc.), 231 B.R. 320 (9th Cir. 1999).
11        A bankruptcy court’s denial of attorney’s fees is reviewed
12   for abuse of discretion.    Renwick v. Bennett (In re Bennett),
13   298 F.3d 1059, 1063 (9th Cir. 2002).      Whether a state statute
14   permits an award of attorney’s fees is reviewed de novo.     Kona
15   Entm’t, Inc. v. Estate of Bishop, 229 F.3d 877, 883 (9th Cir.
16   2000).
17        A bankruptcy court abuses its discretion if it applies the
18   wrong legal standard or its factual findings are illogical,
19   implausible or without support in the record.     TrafficSchool.com
20   v. Edriver Inc., 653 F.3d 820, 832 (9th Cir. 2011).
21                                  DISCUSSION
22                                      I.
23               Charalambous has standing to appear in this appeal.
24        Hamilton argued in her Reply Brief that because Charalambous
25   did not oppose the motion for attorney’s fees in the bankruptcy
26   court, his positions should not be considered on appeal.     We
27   disagree.
28        The Panel has previously decided this question in a case

                                       -6-
 1   precisely on point.   Caudill v. N.C. Mach., Inc., (In re Am. Eagle
 2   Mach., Inc.), 231 B.R. at 320 (9th Cir BAP 1999).   In that case,
 3   the appellant argued that since the appellee had not opposed or
 4   participated in the proceedings leading to entry of the order on
 5   appeal, the appellee should not be allowed to argue its position
 6   or participate in the appeal.   The BAP ruled that opposition in
 7   the bankruptcy court to the issue on appeal was not a prerequisite
 8   to the appellee’s participation on appeal.   Instead, the Panel
 9   noted that the only requirement for appellee standing in that case
10   was whether that appellee was “directly and adversely affected
11   pecuniarily by an order of the bankruptcy court . . . .”
12   In re Am. Eagle Mach., Inc. 231 B.R. at 238, citing
13   In re Fondiller, 707 F.2d 441, 442-43 (9th Cir. 1983).
14        Although Charalambous did not oppose Hamilton’s motion for an
15   award of attorney’s fees in the bankruptcy court, he would
16   obviously hold a direct pecuniary interest in the outcome of this
17   appeal.   Thus, Charalambous has standing to appear in this appeal
18   and we have considered his arguments in resolving the issues.
19                                   II.
20              The bankruptcy court abused its discretion because
                it applied the incorrect statute in its decision
21              concerning Hamilton’s motion for attorney’s fees.
22        Hamilton argues that she was entitled to recover attorney’s
23   fees incurred in the litigation in the bankruptcy court.   As
24   instructed by the Supreme Court in Traveler’s Cas. & Sur. Co. of
25   Am. v. Pac. Gas & Elec. Co., 549 U.S. 443 (2007), in bankruptcy
26   cases,
27        The American rule that “the prevailing litigant is
          ordinarily not entitled to collect a reasonable
28        attorney’s fees from the loser, Alyeska Pipe Line Serv.

                                     -7-
 1           Co. v. Wilderness Soc’y, 421 U.S. 240 . . . may be
             overcome by, inter alia, an “enforceable contract”
 2           allocating such fees, Fleishchman Distilling Corp. v.
             Maier Brewing Co., 386 U.S. 714 . . . . A contract
 3           allocating attorney’s fees that is enforceable under
             substantive, nonbankruptcy law is allowable in
 4           bankruptcy except where the Bankruptcy Code provides
             otherwise.
 5
 6   Id. at 443.
 7           Here, the applicable “substantive, nonbankruptcy law” is
 8   California state law.      S. Cal. Permanente Med. Grp. v. Ehrenberg
 9   (In re Moses), 215 B.R. 27, 32 (9th Cir. BAP 1997).       California
10   law allows enforcement of agreements for attorney’s fees in Civil
11   Code § 1717 (“CC § 1717")5 and Code of Civil Procedure § 1021
12   (“CCP § 1021")6.      Although the parties do not dispute that these
13   provisions of the California codes govern attorney’s fees, they
14   contest which of these two provisions should be applied in this
15   case.       As we discuss below, CCP § 1021 applies in tort as well as
16   contract disputes, but CC § 1717 applies only in contract
17   disputes.      The dispute between Hamilton and Charalambous that
18   resulted in a decision in favor of Hamilton under § 523(a)(4) for
19   defalcation was, at bottom, a tort dispute.      Thus, the bankruptcy
20
21           5
                 CC § 1717 provides that:
22           (a) “In any action on a contract, where the contract
             specifically provides that attorney's fees and costs, which
23           are incurred to enforce that contract, shall be awarded to
             . . . the prevailing party, . . . the party prevailing on the
24           contract . . . shall be entitled to reasonable attorney's
             fees in addition to other costs.”
25
             6
                 CCP § 1021 provides that:
26
             “Except as attorney's fees are specifically provided for by
27           statute, the measure and mode of compensation of attorneys
             and counselors at law is left to the agreement, express or
28           implied, of the parties. . . ."

                                         -8-
 1   court’s reliance on CC § 1717 to dispose of Hamilton’s request for
 2   attorney’s fees was misplaced and an abuse of discretion.
 3   A.   There was an agreement between Hamilton and Charalambous
          providing for an award of attorney’s fees to the prevailing
 4        party in a tort dispute.
 5        Under either CC § 1717 or CCP § 1021, an agreement or
 6   contract must exist between the parties that provides for an award
 7   of attorney’s fees to the prevailing party in any litigation
 8   between them.    Such an agreement existed in this case.
 9        In their pretrial order, the parties stipulated as an agreed
10   fact that:
11        9. Charalambous gave Hamilton a brochure which
          contained names of prior clients who would recommend
12        him. The brochure is the written part of the agreement
          with Charalambous.
13
14   Joint Pretrial Order at 3, July 31, 2012 (emphasis added).
15        The bankruptcy court accepted this stipulated fact and
16   incorporated it verbatim as a finding of fact in its Findings of
17   Fact and Conclusions of Law entered on November 19, 2012.    Finding
18   of Fact 16 additionally noted that the brochure had been admitted
19   into evidence.   Elsewhere in the Findings/Conclusions, the court
20   referred to this brochure as part of the “contract” between the
21   parties:
22        Finding of Fact 46: “The court finds that there is no
          indication that defendant was attempting to fraudulently
23        induce plaintiff to enter into the contract (Exhibit 1)
          with defendant.”
24
          * * *
25
          Conclusion of Law 59: “Defendant denied stating he was
26        fully licensed and qualified. The contract (Exhibit 1)
          does not contain any reference or assertion that
27        defendant or JCD was a licensed contractor. The scope of
          the work described in Exhibit 1 does not describe the
28        work of a general contractor but states the contractor

                                      -9-
 1        will have to be selected . . . .”
 2        As noted above, the brochure included a broad attorney’s fee
 3   provision:
 4        Attorney Fees
 5        In any litigation, arbitration, or other proceeding by
          which one party either seeks to enforce its rights under
 6        this Agreement (whether in contract, tort, or both) or
          seeks a declaration of any rights or obligations under
 7        this Agreement, the prevailing party shall be awarded
          reasonable attorney fees, together with any costs and
 8        expenses, to resolve the dispute and to enforce the
          final judgment.
 9
10   The parties do not dispute that this clause in the brochure was
11   part of their agreement, or that its meaning is plain.    Therefore,
12   on this record, we conclude that there was a contract between
13   Hamilton and Charalambous concerning the remodeling project, and
14   that the contract (the written part of which was the brochure)
15   provided for recovery of attorney’s fees by the prevailing party
16   in any tort or contract dispute between the parties.7
17        The parties also do not dispute that Hamilton prevailed on
18   one of her claims in the bankruptcy court, that Charalambous’ debt
19   to her should be excepted from discharge under § 523(a)(4) for
20   defalcation.   Defalcation in California law is a tort.   Brown v.
21   Kenney, 2012 Bankr. LEXIS 4127, 2012 WL 3867425 (Bankr. N.D. Cal.
22   September 4, 2012) (agreeing with an arbitrator’s finding that,
23
          7
             In the Memorandum of Decision, the bankruptcy court stated
24   that it “did not address the validity or existence of a contract
     between the parties. The court’s Findings of Fact and Conclusions
25   of Law are explicitly silent on that issue.” This observation is
     somewhat perplexing. In granting relief to Hamilton under
26   § 523(a)(4), the bankruptcy court determined that an “express
     trust” existed between the parties. The court’s insistence that
27   it did not rule explicitly on the existence or validity of the
     parties’ contract is also seemingly at odds with its Findings 16,
28   46 and Conclusion 59 quoted above.

                                     -10-
 1   under California law, defalcation was the tort of constructive
 2   fraud).   See also Cal. Civ. Code § 1573 (“Constructive Fraud: In
 3   any breach of duty which, without an actually fraudulent intent,
 4   gains an advantage to the person in fault, or any one claiming
 5   under him, by misleading another to his prejudice, or to the
 6   prejudice of any one claiming under him[.]”   Accordingly, the
 7   dispute between Hamilton and Charalambous resulting in exception
 8   to discharge of Charalambous’ debt to Hamilton was a tort, not a
 9   contract, dispute.8
10   B.   CC § 1717 only applies in contract disputes. In this case,
          CCP § 1021 is applicable to determine whether Hamilton may
11        recover attorneys fees.
12        In the bankruptcy court, Hamilton sought an award of
13   attorney’s fees under CCP § 1021.   The bankruptcy court did not
14   consider Hamilton’s request under CCP § 1021, but rather analyzed
15   the request under CC § 1717.   Since CC § 1717 is only implicated
16   in contract disputes, the bankruptcy court abused its discretion
17   by applying an incorrect rule of law to resolve Hamilton’s motion.
18        CC § 1717(a) provides:
19        In any action on a contract, where the contract
          specifically provides that attorney's fees and costs,
20        which are incurred to enforce that contract, shall be
          awarded either to one of the parties or to the
21        prevailing party, then the party who is determined to be
          the party prevailing on the contract, whether he or she
22        is the party specified in the contract or not, shall be
          entitled to reasonable attorney's fees in addition to
23        other costs.
24   By its terms, then, CC § 1717 only applies in an “action on a
25   contract, where the contract specifically provides that attorney's
26
27        8
             In fact, although Hamilton asserted a cause of action for
     breach of contract in the state lawsuit, she dropped that claim in
28   this adversary proceeding.

                                     -11-
 1   fees and costs, which are incurred to enforce that contract . . .
 2   .”   California courts have uniformly ruled that CC § 1717 is to be
 3   narrowly applied, and is available to a party only if the dispute
 4   involves litigation of a contract claim.   Santisas v. Goodin,
 5   951 P.2d 399, 409 (Cal. 1998) (“[S]ection 1717 applies only to
 6   attorney fees incurred to litigate contract claims.”).   The BAP
 7   has previously relied upon Santisas on this specific issue.
 8   Redwood Theaters, Inc. v. Davison (In re Davison), 289 B.R. 716,
 9   723 (9th Cir. BAP 2003) (“[W]e will follow [Santisas’] holding and
10   narrowly apply CCC § 1717 and approve attorney's fees only if the
11   action involves a contract claim.”).   Therefore, under both
12   California controlling law and BAP authority,9 we must hold that
13   CC § 1717 can only be applied to attorney’s fees disputes based on
14   contract claims.
15         The California Supreme Court has been equally clear that
16   CC § 1717 is inapplicable in actions involving tort claims.
17   Santisas, 951 P.2d at 409 (tort claims are “outside the ambit of
18   section 1717"); accord Redwood Theaters, Inc., 289 B.R. at 724
19   (attorney’s fees for tort claims are not recoverable under
20   CC § 1717).   Our decision in Redwoods Theaters provides additional
21   guidance on the dispute in this appeal.    After noting that
22   CC § 1717 only applies in contract disputes, the panel noted that,
23   “CCP § 1021 does not limit the recovery of attorney's fees to
24   [contract] claims. . . . [A]ttorney's fees may be recoverable
25
           9
             Ordinarily, published BAP decisions are binding on future
26   panels. However, the Ninth Circuit instructs that interpretations
     of state law are not binding precedent. In re Complaint of
27   McLinn, 739 F.2d 1395, 1401 (9th Cir. 1984). Nevertheless, a BAP
     opinion founded upon a California Supreme Court decision is
28   persuasive authority in resolving a question of California law.

                                     -12-
 1   under CCP § 1021 even though they are not recoverable under
 2   CC § 1717. . . .   California law permits recovery of attorney's
 3   fees by agreement, for tort as well as contract actions.”     Id. at
 4   724.
 5          Hamilton requested an award of attorney’s fees under
 6   CCP § 1021.   That statute provides:
 7          Except as attorney's fees are specifically provided for
            by statute, the measure and mode of compensation of
 8          attorneys and counselors at law is left to the
            agreement, express or implied, of the parties. . . ."
 9
10   CCP § 1021(a).   CCP § 1021 also implicates Cal. Code Civ. P.
11   §§ 1032 and 1033(5):
12          (a) As used in this section, unless the context clearly
            requires otherwise: . . . (4) “Prevailing party”
13          includes the party with a net monetary recovery, a
            defendant in whose favor a dismissal is entered, a
14          defendant where neither plaintiff nor defendant obtains
            any relief, and a defendant as against those plaintiffs
15          who do not recover any relief against that defendant.
            When any party recovers other than monetary relief and
16          in situations other than as specified, the “prevailing
            party” shall be as determined by the court, and under
17          those circumstances, the court, in its discretion, may
            allow costs or not. . . . (b) Except as otherwise
18          expressly provided by statute, a prevailing party is
            entitled as a matter of right to recover costs in any
19          action or proceeding.
20   CC 1032(a) and (b).    CCP 1033.5(a)(10)(A) provides:
21          (a) The following items are allowable as costs under
            Section 1032: . . . (10) Attorney fees, when authorized
22          by any of the following: . . . (A) Contract.
23          Collectively, by their terms, CCP § 1021, and Cal. Code Civ.
24   P. §§ 1032 and 1033 make clear that attorney’s fees may be sought
25   by a prevailing party in disputes sounding in either tort or
26   contract.   Indeed, as the California courts have uniformly ruled,
27   CCP § 1021 and Cal. Code Civ. P. § 1032 are the only bases for
28   awards of attorney’s fees in tort disputes when provided by

                                      -13-
 1   agreement of the parties.   Xuereb v. Marcus & Millichap, Inc.,
 2   3 Cal. App. 4th 1338, 1342 (1992);      Maynard v. BTI Grp, Inc.,
 3   ___ Cal. App.4th ___, slip op. at 1 (Cal. Ct. App. May 29, 2013).10
 4        As discussed above, the bankruptcy court’s ruling in favor of
 5   Hamilton under § 523(a)(4) for defalcation in effect settled a
 6   tort dispute.   As such, CC § 1717 was not to be applied to resolve
 7   Hamilton’s motion for attorney’s fees, and the bankruptcy court’s
 8   reliance on that statute constitutes an abuse of discretion.        The
 9   proper statute for consideration of Hamilton’s request for
10   attorney’s fees is CCP § 1021.   We will therefore vacate the
11   bankruptcy court’s order denying Hamilton’s motion, and remand
12   this matter to the bankruptcy court for consideration of
13   Hamilton’s request under CCP § 1021.11
14
          10
15           On May 30, 2013, Hamilton submitted a request that the
     Panel take judicial notice of the recent Maynard decision. More
16   appropriately, we elect to treat this request as one to submit
     supplemental authorities pursuant to Fed. R. App. P. 28(j).
17   Charalambous was given notice of Hamilton’s request and has not
     objected. In addition, we note that this new decision merely
18   restates existing case law, and would not in itself affect our
     decision in this case. We therefore GRANT Hamilton’s request.
19
          11
             On remand, the bankruptcy court must necessarily consider
20   whether Hamilton was a prevailing party in this litigation for
     purposes of CCP § 1021. While the court apparently determined in
21   its Memorandum of Decision that Hamilton was not a prevailing
     party under CC § 1717, largely because Charalambous successfully
22   defended against Hamilton’s claims for exceptions to discharge
     under §§ 523(a)(2)(A) and 523(a)(6), the legal standard for a
23   prevailing party under CCP § 1021 allows for the exercise of less
     discretion by the trial court, and CCP § 1021, through Cal. Code
24   Civ. P. § 1032(a)(4), defines a prevailing party to include:
     “(1) the party with a net monetary recovery, (2) a defendant in
25   whose favor a dismissal is entered, (3) a defendant where neither
     plaintiff nor defendant obtains any relief, and (4) a defendant as
26   against those plaintiffs who do not recover any relief against
     that defendant. See Michell v. Olick, 49 Cal. App.4th 1194, 1198
27   (Cal. Ct. App. 1996) (holding that a prevailing party under
     CCP § 1021 is "entitled to costs as a matter of right; the trial
28                                                       (continued...)

                                      -14-
 1                               CONCLUSION
 2        We VACATE that portion of the bankruptcy court’s decision
 3   denying Hamilton’s motion for attorney’s fees and REMAND this
 4   matter for further proceedings.
 5
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27        11
           (...continued)
     court has no discretion to order each party to bear his or her own
28   costs.").

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