Section 1717: Trope Limitation Did Apply Where Employed Associate Of Plaintiff Lawyer Was Used to Successfully Sue Former Client For Unpaid Fees

Second District, Division 1 Finds Witte Is Most Analogous “Fit.”

     What do irony, zeugma, and Witte have in common?  Trope.

     Civil Code section 1717 is an oft-used fee shifting provision used where there is a contractual fee clause. However, the California Supreme Court in Trope v. Katz, 11 Cal.4th 274, 291 (1995) [one of our Leading Cases] put an important gloss on recovery for attorneys who litigate their cases on an in propria persona basis–no fee recovery under 1717 because such an attorney “does not pay or become liable to pay consideration in exchange for legal representation.” Here is another unpublished decision relating to the Trope restriction, with many of the outcomes dependent on the particular facts at play.

     In Nicholson v. Avina, Case No. B215752 (2d Dist., Div. 1 Dec. 17, 2010) (unpublished), lawyer dba as “The Law Offices of Lawyer” prevailed in an action against a former client for unpaid legal fees, obtaining a compensatory award of $69,927.13, plus routine costs. Lawyer used an associate he employed at his law firm to prosecute the case. Lawyer sought to recover attorney’s fees of $7,933.75 for prevailing, but the trial court refused to award them. Lawyer appealed.

     Lawyer lost on appeal.

     This case seemed to be an interesting one for the appellate court, because it acknowledged that “Trope only goes so far; it does not preclude an attorney who represents himself from recovering fees paid to another attorney whom he retains to assist him in representing himself.” (Slip Opn., p. 4.) After surveying decisions such as Witte v. Kaufman, 141 Cal.App.4th 1201, 1208, 1210-1211 (2006), Gilbert v. Master Washer & Stamping Co., 87 Cal.App.4th 212, 214 (2001), and Gorman v. Tassajara Development Corp., 178 Cal.App.4th 44, 96 (2009), the Court of Appeal determined that the better “fit” was Witte, where a law firm provided a defense to defendants law firm and its attorneys. Gilbert and Gorman were distinguishable because they involved situations in which other members of firms represented legal matters that were personal to the sued attorneys and unrelated to their firms’ interests.