Filed 7/23/26
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE LAW FIRM OF FOX AND B347829
FOX,
(Los Angeles County
Plaintiff and Appellant, Super. CT. No. 22STCV21229)
v.
MIGUEL ARTEAGA,
Defendant and Respondent.
APPEAL from a post-judgment order of the Superior Court
of Los Angeles County, Thomas D. Long, Judge. Affirmed.
Frank O. Fox for Plaintiff and Appellant.
Brent Law, Bruce J. Guttman, and Karen K. Brent
for Defendant and Respondent.
Plaintiff and appellant, the Law Firm of Fox and Fox (the
Fox firm) represented itself through Attorney Frank O. Fox in a
lawsuit filed against a former client—defendant and respondent
Miguel Arteaga. Following a judgment in plaintiff’s favor,
plaintiff filed a motion for attorney fees. Although the California
Supreme Court has held an attorney who litigates in propria
persona cannot recover attorney fees under Civil Code section
1717 (Trope v. Katz (1995) 11 Cal.4th 274, 292 (Trope)), plaintiff
took the position that it was entitled to attorney fees because the
retainer agreement signed by defendant expressly waived the
Trope bar. We agree with the trial court that any waiver of
Trope’s interpretation of Civil Code section 1717 (section 1717)
was ineffective and affirm its order denying attorney fees.
BACKGROUND
A dispute arose between plaintiff and defendant over fees
owed to the Fox firm from Attorney Fox’s representation of
defendant in his divorce and restraining order proceedings. A
jury found in favor of the Fox firm, holding defendant liable for
$21,187.67. Defendant’s motions for judgment on the pleadings
and for a new trial were denied and judgment was entered in
favor of the Fox firm. 1
Plaintiff filed a motion for attorney fees wherein it sought
$139,114. Plaintiff relied on a provision in the retainer
agreement that stated, if plaintiff prevailed in a lawsuit to collect
money owed, plaintiff would be entitled to reasonable attorney
fees “which shall not be in anyway limited, denied or waived
pursuant to Civil Code section 1717 or under the ruling of Trope
1 The summary of the underlying lawsuit is taken from our
unpublished opinion affirming the judgment in The Law Firm of
Fox & Fox v. Arteaga (Mar. 20, 2026, B341820 [nonpub. opn.]).
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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.” (Italics added.)
Defendant argued the Fox firm was not entitled to attorney
fees on several grounds: (1) the Fox firm was not in an attorney–
client relationship with itself and therefore did not incur any
attorney fees; (2) public policy and California law prohibits
circumvention of the reciprocity provisions of section 1717; and
(3) if defendant waived the application of Trope, said waiver was
not made with “informed consent” because the language in the
retainer was “confusing.”
In denying the motion, the trial court found the “waiver of
Trope and statutory law violates public policy, is oppressive, and
is unenforceable.” (Italics added; some capitalization omitted.)
DISCUSSION
I. Standard of Review
“Generally, an order granting or denying an award of
attorney fees is reviewed under the abuse of discretion standard
of review. [Citation.] However, the determination of whether the
criteria for an award of attorney fees and costs have been met is a
question of law for our de novo review. [Citations.] As for any
disputed factual issues, the trial court’s findings are reviewed
under the substantial evidence rule and must be affirmed if
supported by substantial evidence. [Citation.]” (Soni v. Wellmike
Enterprise Co. Ltd. (2014) 224 Cal.App.4th 1477, 1481.) We
conduct a de novo review as the merits of the appeal turn on a
question of law.
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II. Section 1717 and Trope
Section 1717, subdivision (a) provides in part: “In any
action on a contract, where the contract specifically provides that
attorney’s fees and costs, which are incurred to enforce that
contract, shall be awarded either to one of the parties or to the
prevailing party, then the party who is determined to be the
party prevailing on the contract, whether he or she is the party
specified in the contract or not, shall be entitled to reasonable
attorney’s fees in addition to other costs.” (Italics added.)
In Trope, the law firm of Trope & Trope (the Trope firm)
represented itself in an action against a former client for fees due
under a retainer agreement. (Trope, supra, 11 Cal.4th at pp.
277–278.) After the Trope firm prevailed, it sought attorney fees
under a clause in the retainer agreement that read “‘[i]n the
event it becomes necessary to file an action to recover the fees
and costs set forth in this agreement, the [c]ourt may award
reasonable attorneys’ fees for the recovery of said fees and costs.’”
(Ibid.) The question was whether section 1717 triggered the
applicability of the attorney fees provision even if the Trope firm
represented itself. (Id. at p. 277.)
The analysis in Trope initially considered the language in
section 1717 that allows recovery of “attorney’s fees” that are
“incurred.” Trope defined “‘attorney fees’” as a “‘[c]harge to [a]
client for services performed’” (Trope, supra, 11 Cal.4th at p. 280,
quoting Black’s Law Dict. (6th ed. 1990) p. 614.) It explained,
“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.” (Id. at p. 280.)
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“To ‘incur’ a fee . . . is to ‘become liable’ for it [citation], i.e.,
to become obligated to pay it.” (Trope, supra, 11 Cal.4th at p.
280, quoting Webster's New Internat. Dict. (3d ed 1961) p. 1146.)
“It follows that an attorney litigating in propria persona cannot
be said to ‘incur’ compensation for his [or her] time and his [or
her] lost business.” (Id. at p. 280.)
Reading these definitions together, Trope concluded that
the Legislature did not intend 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.” (Trope, supra, 11 Cal.4th at p. 283.)
Trope also supported its holding with the legislative
purpose of section 1717. “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.” (Trope,
supra, 11 Cal.4th at pp. 285–286.) This “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
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to each.” (Id. at p. 277.) The creation of “disparate treatment”
would conflict with the legislative purpose of section 1717. 2
Given Trope’s interpretation of the language in section
1717 and its recognized policy concerns, plaintiff, as a self-
represented law firm, was not entitled to recover attorney fees.
III. Plaintiff’s Efforts to Avoid the Trope Bar
A. The Differing Retainer Agreements
Plaintiff attempts to distinguish Trope on the basis that,
unlike the contract in Trope, the agreement signed by defendant
contained a provision that expressly allowed the Fox firm to
recover fees even if it represented itself in a lawsuit seeking
payments due under the retainer agreement. But the decision in
Trope was grounded in the language of section 1717 and the
legislative purpose of the statute, not the language in the
retainer agreement. It is of no moment that defendant signed an
agreement purporting to waive the statutory language requiring
attorney fees be “incurred” to be recoverable.
A holding that the waiver provision in plaintiff’s retainer
agreement was effective would require us to (1) contradict Trope
in that we would have to find an attorney “incurs” section 1717
fees when he or she, in propria persona, litigates a lawsuit to
2 Plaintiff cites Santisas v. Goodin (1998) 17 Cal.4th 599, 614
for the proposition that a unilateral attorney fees provision in a
retainer agreement is not against public policy. Although
Santisas held section 1717 applies to contracts where the
attorney fee provision “authoriz[ed] recovery of attorney fees by a
‘prevailing party,’” (id. at p. 614), it did not address any policy
considerations where, as here, a clause in a retainer agreement
permits a self-represented attorney to recover attorney fees but
deprives a self-represented nonattorney of the same remedy.
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recover money owed by a client, and (2) ignore Trope’s
assessment of, and reliance on, the purpose behind section 1717
of supporting mutuality of remedy and reciprocal agreements.
We are not at liberty to controvert the dictates of our Supreme
Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57
Cal.2d 450, 455; People v. Marcus (2020) 45 Cal.App.5th 201, 209,
fn. 6 [Court of Appeal is “bound by our Supreme Court’s
interpretation of the language in [a] statute”].)
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 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. (Exxess Electronixx
v. Heger Realty Corp. (1998) 64 Cal.App.4th 698, 707–708
(Exxess) [where section 1717 applies, parties cannot circumvent
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the statute, including restrictions on attorney fees thereunder, by
contractually agreeing to contrary provisions].)
B. The Lockton Decision
Plaintiff briefly discusses Lockton v. O’Rourke (2010) 184
Cal.App.4th 1051, 1074–1076 (Lockton) as support for its
position. 3 In Lockton, the plaintiff filed a lawsuit against his
former attorneys (individually and the law firm), asserting
contract and tort causes of action based on the failure to preserve
his claims. (Id. at p. 1059.) The lawsuit was ultimately
dismissed following a successful demurrer. (Ibid.) The retainer
agreement permitted the law firm to recover, as attorney fees,
the value of time spent to prosecute or defend an action to enforce
or defend the agreement. (Id. at p. 1075.) Lockton concluded the
contract and tort claims were inexorably intertwined but, because
the law firm represented itself, it could not recover fees under
section 1717 and Trope. (Id. at pp. 1074–1075) In this respect,
Lockton is consistent with our holding. But that did not end the
discussion.
Lockton then turned to the scope of the language in the
retainer agreement to determine whether it applied to
malpractice actions and held that the “broad language of the fee
clause” permitted recovery of attorney fees for the intertwined
contract and tort claims pursuant to Code of Civil Procedure
3 Plaintiff cites several other cases, including but not limited
to, Khavarian Enterprises, Inc. v. Commline, Inc. (2013) 216
Cal.App.4th 310; People v. Trejo (1990) 217 Cal.App.3d 1026;
Pearl v. General Motors Acceptance Corp. (1993) 13 Cal.App.4th
1023; Engelman v. Bookasta (1968) 264 Cal.App.2d 915. None of
those cases address the issue of whether a self-represented
attorney may recover attorney fees pursuant to section 1717.
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section 1021 (section 1021). 4 (Id. at pp.1075–1076.) Lockton’s
reliance on this provision does not persuade us to reverse the
trial court’s order for several reasons.
Although Lockton was cited in plaintiff’s motion for
attorney fees, there was no argument in the trial court that
section 1021 justified an award of attorney fees; indeed, that
provision was not cited in plaintiff’s motion for attorney fees, the
trial court’s ruling, or plaintiff’s appellate briefing. 5 Because
plaintiff did not seek attorney fees pursuant to section 1021 in
the trial court, he has forfeited that argument on appeal (to the
extent it is developed at all). (See Bitner v. Department of
Corrections & Rehabilitation (2023) 87 Cal.App.5th 1048, 1065
[an issue that was not raised or developed in the trial court may
not be raised on appeal].)
Even if we were to find that the mere citation to Lockton
accompanied by a three-line summary of the case preserved the
issue of whether section 1021 permits self-represented attorneys
4 Section 1021 provides “[e]xcept 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 . . . .”
5 In the motion, the entire argument concerning Lockton was
as follows: “In Lockton v. O’Rourke[, supra,] 184 Cal.App.4th [at
pp.] 1074–1076, the court allowed an award of attorney fees to a
law firm that defended itself against a former client in a
malpractice action. The attorney fee provision in the firm’s
retainer agreement had a clause providing for attorney fees for
the time the firm spent litigating on its own behalf. The court
relied on that clause in reversing the trial court’s denial of the
law firm’s motion for fees.” Plaintiff duplicates this passage in its
opening brief.
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to bypass Trope’s interpretation of section 1717, plaintiff would
not be entitled to relief. Unlike Lockton, we are not tasked with
deciding whether the scope of an attorney fees clause is broad
enough under section 1021 to reach litigation over intertwined
tort and contract claims. Our case presents only an action on a
contract and the Fox firm’s efforts to avoid the implications of
Trope and section 1717. In this regard, Trope recognized a
section 1021 agreement that expressly or implicitly allocates
attorney fees is “subject to the restrictions and conditions of
section 1717 in cases to which that provision applies.” (Trope,
supra, 11 Cal.4th at p. 279; see also Exxess, supra, 64
Cal.App.4th at p. 707 [“section 1717 cannot be circumvented by
seeking fees under the general cost provisions of . . . [section
1021]”].)
This deduction is rational. 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. For these reasons, we agree with our colleagues in
Division Three that the Trope analysis applies equally to self-
represented attorneys who, after prevailing in an action on a
contract, seek attorney fees under section 1021. (Honchariw v.
PMF CA REIT, LLC (2025) 117 Cal.App.5th 827, 839
(Honchariw), review granted Mar. 25, 2026, S295127.)6
6 In the order granting review, the Supreme Court noted the
case “may be cited, not only for its persuasive value, but also for
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DISPOSITION
The order denying plaintiff’s motion for attorney fees is
affirmed. Defendant is to recover costs on appeal.
KUMAR, J. *
We concur:
MOOR, Acting P. J.
KIM (D.), J.
the limited purpose of establishing the existence of a conflict in
authority” that would permit courts “to exercise discretion . . . to
choose between sides of any such conflict.” Although the
Supreme Court did not specify an issue upon which review was
granted, a portion of the opinion addresses “somewhat
inconsistent results” reached by Courts of Appeal in deciding
“whether nonattorneys represented by attorney spouses in joint
litigation are ‘self-represented’ within the meaning of Trope.”
(Honchariw, supra, 117 Cal.App.5th at pp. 839–840.)
∗
Retired Judge of the Superior Court of Los Angeles
County, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
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