Judge Thomas D. Long, Case Number: 22STCV21229, Date: 2025-05-08 Tentative Ruling

On June 13, 2024, a jury returned a verdict in favor of Plaintiff The Law Firm of Fox and Fox and against Defendant Miguel Arteaga, and it awarded $21,187.67 in damages for unpaid attorney fees in a prior action. Judgment was entered on July 5, 2024.

On August 26, 2024, Plaintiff filed a motion for attorney fees. Because Plaintiff represented itself through Frank O. Fox, the issue is whether the parties’ contractual waiver of Trope v. Katz (1995) 11 Cal.4th 274 (Trope) is enforceable so that Plaintiff may recover attorney fees in this action.

Generally, a prevailing party may recover attorney fees when authorized by contract. (Code Civ. Proc., § 1033.5, subd. (10)(A).) When a contract specifically provides that attorney’s fees and costs shall be awarded to the prevailing party, those fees and costs that are incurred to enforce that contract are recoverable. (Civ. Code, § 1717, subd. (a).)

The parties’ underlying retainer agreement states that in the event of litigation for collection of fees owed, “the prevailing party shall be entitled to reasonable attorney’s fees together with costs of their collection, including an action in small claims Court, wherein attorney would be representing himself. ATTORNEY’S right to receive attorney’s fees and costs pursuant to the terms set forth herein shall not be in anyway limited, denied or waived as a result of ATTORNEY representing himself in any action or in the preparation of any documents or pleadings.” (Motion, Fox Decl. ¶ 3 & Ex. A.)

It further states that Defendant, as the client, “hereby acknowledges and agrees that attorney’s right to recover reasonable attorney’s fees and costs as an attorney representing himself in propria persona in any action or in the preparation of any documents or pleadings in an action to enforce the provisions set forth in this Agreement, which shall not be in anyway limited, denied or waived pursuant to Civil Code Section 1717 or under the ruling in Trope v. Katz (1992) 11 Cal. 4th 274, or any other case or code, which provides that an attorney who chooses to litigate in propria persona rather than retain another attorney to represent him or her in an action to enforce a contract containing an attorney fee provision cannot recover reasonable attorney’s fees under Civil Code Section 1717. CLIENT further acknowledges and agrees that if ATTORNEY is the prevailing party in any Court proceeding involving CLIENT, the Court shall grant to ATTORNEY, in propria persona, its attorney’s fees and costs based on the time that ATTORNEY has spent at his then prevailing rate to enforce the terms set forth in this Agreement and treat said time as if said time was incurred as and for attorney’s fees and costs.” (Motion, Fox Decl. ¶ 3 & Ex. A.)

B. The Waiver of Trope and Statutory Law Violates Public Policy, Is Oppressive, and Is Unenforceable.

Trope held that “an attorney who chooses to litigate in propria persona and therefore does not pay or become liable to pay consideration in exchange for legal representation cannot recover ‘reasonable attorney’s fees’ under Civil Code section 1717 as compensation for the time and effort he expends on his own behalf or for the professional business opportunities he forgoes as a result of his decision.” (Trope, supra, 11 Cal.4th at p. 292.) The Supreme Court specifically noted that contractual attorney fees may be awarded for attorney fees “which are incurred to enforce that contract,” but because a self-represented attorney is not obligated to pay attorney fees, “[i]t follows that an attorney litigating in propria persona cannot be said to ‘incur’ compensation for his time and his lost business opportunities.” (Id. at p. 280.) “Accordingly, the usual and ordinary meaning of the words ‘attorney’s fees,’ both in legal and in general usage, is the consideration that a litigant actually pays or becomes liable to pay in exchange for legal representation. An attorney litigating in propria persona pays no such compensation.” (Ibid.)

Plaintiff attempts to distinguish this case because, unlike in Trope, “Plaintiff and Defendant entered into an Agreement (Exhibit ‘A’) wherein they agreed that the prevailing party in a civil action, relating to the fees incurred by Plaintiff when representing Defendant, would be entitled to the fees incurred (or time spent) in the civil action, in order to enforce the Retainer Agreement, regardless of whether they are represented, and that the provisions in Trope . . . would not apply.” (Motion at p. 3.)

Plaintiff explains, “The issue is personal to the individuals who entered into the Agreement and who agreed to waive their rights, and is not related to any public policy or state interest. The waiver permits an attorney to charge for his time, the same way he would if he was representing a client, except now, he is both the client and the attorney. Without the waiver, he could not charge for his time. There was no violation of any public policy as a result of the waiver.” (Motion at p. 4.)

Plaintiff argues that the attorney fees provision here does no violate public policy because “The paragraph continues that ATTORNEY’s right to receive fees shall not be limited or waived if he represents himself. This doesn’t give Mr. Fox more rights but prevents Defendant from denying Mr. Fox his reciprocal right to receive fees, as the prevailing party, if he represents himself.” (Reply at p. 5.) To the contrary, this provision gives Plaintiff an additional right not available to Defendant: the right to receive fees for self-representation. Had Defendant made the same choice to represent himself, he could not recover fees for his efforts.

As Plaintiff notes, “[f]reedom to contract should not be unduly restricted and agreements will not be declared void as against public policy unless they clearly contravene public policy as declared by statutory enactment or judicial decisions.” (Daun v. USAA Casualty Ins. Co. (2005) 125 Cal.App.4th 599, 608; see Reply at p. 4 [quoting Daun v. USAA Casualty Ins. Co.].)

That is what Plaintiff attempts to do here. To waive Trope is to contravene statutes and unilaterally rewrite Code of Civil Procedure section 1133.5’s limitation of when attorney fees are recoverable and Civil Code section 1717’s limitation to costs “incurred.”

The legislative purpose underlying section 1717 “is to ensure that contractual attorney fee provisions are enforced evenhandedly.” (Trope, supra, 11 Cal.4th at p. 289; see id. at p. 285.) “The statute was designed to establish mutuality of remedy when a contractual provision makes recovery of attorney fees available to only one party, and to prevent the oppressive use of one-sided attorney fee provisions. [Citations.] If an attorney who is the prevailing party in an action to enforce a contract with an attorney fee provision can recover compensation for the time he expends litigating his case in propria persona, but a nonattorney pro se litigant cannot do so regardless of the personal and economic value of such time simply because he has chosen to pursue a different occupation, every such contract would be oppressive and one-sided.” (Id. at pp. 285-286.)

The Court concludes that by representing itself, Plaintiff did not “incur” any fees that are recoverable under Civil Code section 1717. Additionally, the retainer agreement’s waiver of Trope and statutory law is oppressive and violates public policy. Plaintiff may not recover fees for its self-representation in this action.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court