THE LAW FIRM OF FOX AND FOX v. MIGUEL ARTEAGA (2026)

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 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.

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.)

“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 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 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 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 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 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

DISPOSITION

The order denying plaintiff's motion for attorney fees is affirmed. Defendant is to recover costs on appeal.

FOOTNOTES

FOOTNOTE.  

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.]).

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.

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.

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.

6.   In the order granting review, the Supreme Court noted the case “may be cited, not only for its persuasive value, but also for 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.)

KUMAR, J.* FN* 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.

We concur: MOOR, Acting P. J. KIM (D.), J.