Section 1717: Trope Limitation Is Trumped By Broadly Worded Fees Clause In Unpublished Decision

Second District, Division 4 So Holds, Noting No Decisions On Point.

     We have examined numerous cases that have denied an award of attorney’s fees under Civil Code section 1717 because of the limitation set forth in Trope v. Katz, 11 Cal.4^th 274 (1995), holding that in pro per attorneys representing themselves cannot obtain fee recovery as prevailing parties.

     However, what happens if there is a broadly worded contractual fees clause in a retainer agreement allowing the attorneys to recover the value of their time to prosecute or defend an action to enforce any provision in the retainer?

     This very issue was confronted in Lockton v. O’Rourke, Case Nos. B208440/B212435 (2d Dist., Div. 4 Apr. 23, 2010) (unpublished).  

     The result? Attorneys were entitled to fees under the broadly worded clause. “The parties cite no case in which a fee clause used this [broad] language, and we have found none.” (Slip Opn., p. 27.) The appellate court found that the parties could agree to a broader fee recovery bargain, and enforced just that in reversing a lower court’s denial of fees to attorneys prevailing under a retainer agreement.