Monday, July 27, 2026
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Court of Appeal:
Parties Cannot, by Contract, Render Trope Inapplicable
By a MetNews Staff Writer
A provision in a retainer agreement saying that a law firm is entitled to attorney fees if it successfully represents itself in a dispute with the client, in an effort to sidestep the California Supreme Court’s 1995 decision in Trope v. Trope, is ineffective, Div. Five of this district’s Court of Appeal has held.
Retired Los Angeles Superior Court Judge Sanjay Kumar, sitting on assignment, authored the opinion, filed Thursday and made public late Friday. It affirms a post-judgment order of Los Angeles Superior Court Judge Thomas D. Long denying an award of attorney fees to the Sherman Oaks law firm of Fox and Fox which had prevailed in an action against ex-client Miguel Arteaga for fees.
The opinion rejects the contention by Fox that the parties were at liberty, by contract, to avoid the holding in Trope, saying that an acceptance of that position would “contradict Trope,” which is binding on courts of appeal.
1995 Holding
In Trope, Justice Stanley Mosk (now deceased) wrote:
“In this appeal we consider whether an attorney who chooses to litigate in propria persona rather than retain another attorney to represent him in an action to enforce a contract containing an attorney fee provision can nevertheless recover ‘reasonable attorney’s fees’ under Civil Code section 1717…as compensation for the time and effort expended and the professional business opportunities lost as a result. We shall conclude that such an attorney litigant cannot recover such fees under section 1717, and hence that the judgment of the Court of Appeal so holding must be affirmed. Were we to construe the statute otherwise, 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. We find no support for such disparate treatment either in the language of section 1717, in the legislative policy underlying it, or in fairness and logic.” Noting that §1717 provides that there shall be an award of attorney fees “which are incurred” in enforcing a contract, where that contract provides for such fees to the prevailing party,” Mosk said:
“[T]he issue is whether in enacting section 1717 the Legislature intended to allow attorneys who represent themselves to recover ‘reasonable attorney’s fees’ for the time and effort they have expended and the professional opportunities they have lost as a result of their decision to litigate a contract dispute in propria persona, even though they have not actually paid or become liable to pay any consideration in exchange for legal representation. As explained above, we believe the Legislature did not so intend.”
Kumar’s Opinion
Rejecting the argument by Fox that the parties can, by agreement, render a court decision inapplicable to their transactions, Kumar wrote:
“In support of its argument that the attorney fees clause is effective, plaintiff repeatedly references general rights of litigants to waive potential benefits, even going so far as to point out that a criminal defendant is permitted to waive his constitutional right to a jury trial. Our understanding of this approach is, if a litigant can waive other important rights then he or she must be able to ‘waive’ what plaintiff describes as a section 1717 ‘benefit.’ The flaw in this analysis is section 1717 conferred no particular benefit on defendant and, for that reason, there was no benefit or right for the attorney fees clause to waive.”
The acting justice continued:
“The true objective of the clause was to effectively rewrite the legislation to provide that an attorney/litigant need not hire an attorney to incur and recover attorney fees. Trope was decided over two decades ago and, over the years, the Legislature has not seen fit to amend section 1717 to counteract its holding or give any impression that self-represented attorneys should be permitted to recover attorney fees. The parties did not have the authority to assume the role of the Legislature and redefine what it means to incur attorney fees pursuant to section 1717.”
CCP §1020
The Fox firm invoked Code of Civil Procedure §1020 which provides:
“Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys...is left to the agreement, express or implied, of the parties....”
Kumar responded:
“First, there is no reason why section 1021 would command a definition of ‘attorney’s fees’ that is different from the ‘usual and ordinary meaning’ relied on by our Supreme Court to interpret section 1717. Second, the public policy ramifications of permitting a self-represented attorney to recover attorney fees but precluding a self-represented nonlawyer from recovering fees are concerns that also exist if a self-represented attorney is entitled to recover fees pursuant to section 1021.”
The case is The Law Firm of Fox and Fox v. Arteaga, B347829.
Frank O. Fox represented Fox and Fox. Mid City/Fairfax attorney Bruce J. Guttman and Santa Clarita practitioner Karen K. Brent acted for Arteaga.
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