C.A. Strikes Award of Fees for Services of Lawyer/Spouse

Monday, January 5, 2026

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C.A. Strikes Award of Fees for Services of Lawyer/Spouse

Edmon Devises New Test, Rejecting Inquiry as to Whether There Was True Attorney-Client Relationship

By a MetNews Staff Writer

Div. Three of the Court of Appeal for this district has declared that in deciding whether a prevailing party is entitled to an award of attorney fees based on legal work done by his or her attorney/spouse, the inquiry should not be whether a true attorney-client relationship existed, as held in two cases, but whether the property in question is a community asset.

Presiding Justice Lee Edmon authored the opinion, filed Wednesday and certified for partial publication. In the published portion, Edmon portrayed her approach as more faithful to the California Supreme Court’s 1996 decision in Trope v. Katz than Div. Seven of this district’s Court of Appeal was in its 2012 opinion in Rickley v. Goodfriend or the Fourth District’s Div. One was in last July’s resolution of the appeal in Gogal v. Deng.

In Trope, Justice Stanley Mosk, since deceased, wrote for a unanimous court in saying that an attorney who is in pro per is no more entitled to a fee award than a self-represented layperson. Were it otherwise held, he wrote, “we would in effect create two separate classes of pro se litigants—those who are attorneys and those who are not—and grant different rights and remedies to each,” remarking that “such disparate treatment” would be unwarranted.

Div. Seven’s Opinion

Then-Justice Fred Woods, now retired, wrote in Rickley that a judge erred in denying attorney fees, pursuant to Trope, in connection with legal services performed by a lawyer on behalf of her husband without inquiring as to whether an actual attorney-client relationship between the spouses existed, decreeing that if, on remand, it were to be found that it did, fees were to be awarded. The jurist specified that, contrary to the view expressed in a 2009 Sixth District Court of Appeal opinion in In Gorman v. Tassajara Development Corp., “we do not feel that identical damages” suffered by the lawyer and spouse: nor joint and indivisible interests between the spouse-attorney and the other spouse defeat the attorney-client relationship.”

The question to be answered, Woods said, was whether the husband consulted his wife “in her professional capacity and whether the spouses’s relationship in terms of this lawsuit, was for the purposes of obtaining legal advice.”

Fourth District’s View

Justice William Dato said in Gogal that ‘[w]hile joint interests” of the lawyer and spouse “and coincident damages are relevant and often determinative considerations, they do not necessarily preclude an attorney-client relationship any more than separate interests and distinct damages define it.”

He went on to say:

Gorman can be harmonized with Rickley if it is construed narrowly to say that in the absence of other evidence, spouses with totally joint interests and seeking only coincident damages will generally be unable to establish a true attorney-client relationship. Although we do not decide what other evidence would suffice, it may include any facts tending to show that the nonattorney spouse played a significant substantive role in the litigation rather than merely deferring to the other spouse.”

Rejecting a “true attorney-client relationship” test, Edmon said:

“To the extent that Rickley and Gogal hold that a non-attorney’s ability to recover attorney fees for legal work performed by his or her spouse turns on whether a ‘true’ attorney-client relationship exists between the spouses, we disagree. We assume that in most cases in which attorneys represent themselves and their spouses, the representation is a ‘true’ one in the sense that the non-attorney spouse has authorized the attorney-spouse to act on his or her joint behalf and intends to be bound by the attorney-spouse’s actions. The relevant question under Trope, however, is not the scope of an attorney’s authorization to act, but whether a party is self-represented….

“We believe that whether a litigant represented by an attorney-spouse is ‘self-represented’ within the meaning of Trope depends on whether the litigation concerns a commonly held interest or asset….A community property asset is not owned by the spouses individually, but by the marital community….Thus, when an attorney-spouse represents both himself and his spouse in litigation over a community asset, both spouses are self-represented because a community asset—the attorney-spouse’s labor—is being applied for the benefit of the community as a whole.”

The opinion reverses a $251,200 award of attorney fees to Nicholas Honchariw, a member of the State Bar of California, and his wife, Sharon Honchariw, in their action against a lender in connection with a monetary penalty for a late payment in the form of an increased interest rate. The damage award of $261,489 was undisturbed.

Edmon noted:

“[A]lthough Sharon asserted that she ‘retained’ Nicholas to represent her in this action, neither she nor Nicholas asserted that she had an interest in the property that was separate from Nicholas’s.”

Attorney’s Claim

Nicholas Honchariw sought to avoid the command of Trope that attorney/litigants be denied fees that would otherwise be awardable by arguing that the fees were not being sought under Civil Code §1717, the focus of Mosk’s opinion. That statute authorizes contractual clauses providing for an award of attorney fees to the prevailing party.

Fees, the lawyer contended, were properly awarded under Code of Civil Procedure §1021, which provides:

“Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties….”

Code of Civil Procedure §1033.5 permits an award of “[a]ttorney’s fees, when authorized by…contract.”

The contract between the Honchariws and the lender, PMF CA REIT, LLC, contained a fee-shifting provision.

Zebrowski’s Award Confirmed

Retired Court of Appeal Justice John Zebrowski, acting as a referee, granted the fees and his award was confirmed by Los Angeles Superior Court Judge Bruce G. Iwasaki.

“Section 1717 is inapplicable, and the Trope doctrine barring an award of pro per fees under §1717 is inapplicable,” Honchariw insisted in his brief on appeal.

In the published portion of the opinion, Edmon pointed to Mosk’s comment in Trope that “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” and that “[a]n attorney litigating in propria persona pays no such compensation.” Edmon wrote:

“We can imagine no reason—and plaintiffs suggest none—why the Legislature would have intended that phrase to have a different meaning in Code of Civil Procedure sections 1021 and 1033.5 than it does in Civil Code section 1717.”

‘Palpably Unjust’

In Trope, Mosk quoted a 1989 Idaho opinion as saying:

“[I]f both parties opt to litigate pro se, it would be palpably unjust for one of them (the lawyer litigant) to remain eligible for an attorney fee award, while the other becomes ineligible....In our view, the public perception of fairness in the legal system is of greater moment than a lawyer litigant’s claim to an attorney fee award if he elects to represent himself.”

Edmon wrote:

“Again, we can think of no reason, and plaintiffs suggest none, why the same analysis would not apply equally to Code of Civil Procedure sections 1021 and 1033.5.”

In the unpublished portion, the presiding justice declined to consider the Honchariws’ contention that Zewbrowski erred by not awarding them treble damages, explaining:

“We conclude that plaintiffs have forfeited their challenge to the referee’s findings because their discussion of the relevant evidence is wholly insufficient to permit meaningful appellate review.”

Honchariw v. PMF CA REIT, LLC, 2025 S.O.S. 49.

Nicholas Honchariw represented himself and his wife on appeal. Matthew E. Lilly of the Irvine firm of Finlayson Toffer Roosevelt & Lilly acted for the lender.

The Honchariws were the successful appellants in the 2022 case of Honchariw v FJM Private Mortgage Fund, LLC, decided by Div. Three of the First District Court of Appeal. It was held that a late-payment penalty—such as that the Honchariws sued over in the case against PMF—was unlawful under Civil Code §1671.

That section provides that a liquidated-damage provision is invalid where it was “unreasonable under the circumstances existing at the time the contract was made.”