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As of: Apr 11, 2015
PLCM GROUP, INC., Plaintiff and Respondent, v. DAVID DREXLER, Defendant,
Cross-complainant and Appellant; DEARBORN INSURANCE COMPANY et al.,
Cross-defendants and Respondents.
No. S080201.
SUPREME COURT OF CALIFORNIA
22 Cal. 4th 1084; 997 P.2d 511; 95 Cal. Rptr. 2d 198; 2000 Cal. LEXIS 3716; 2000 Cal.
Daily Op. Service 3621; 2000 Daily Journal DAR 4831; 2000 Daily Journal DAR 5892

May 8, 2000, Decided


SUBSEQUENT HISTORY:
2000.

As Modified June 2,

PRIOR-HISTORY: Los Angeles County Court. Court


of Appeal of California, Second Appellate District,
Division Three. B110667. Super. Ct. No. BC140906.
David A. Workman, Judge.
COUNSEL: David Drexler, in pro. per.; Hart & Watters
and
Thomas
L.
Watters
for
Defendant,
Cross-complainant and Appellant.
Shand S. Stephens and Laurie J. Falik for Plaintiff and
Respondent and for Cross-defendants and Respondents
Dearborn Insurance Company and Anglo-American
Insurance, Ltd.
Wilson, Elser, Moskovitz, Edelman & Dicker, Patrick M.
Kelly, Martin K. Deniston and Jonathan C. Balfus for
Cross-defendant and Respondent Assicurazioni Generali,
S.P.A.

Benjamin C. Sybesma and Joel H. Levinson for


California Correctional Peace Officers Association as
Amicus Curiae on behalf of Plaintiff and Respondent.
Eric B. Simon for California International Chemical
Company, Inc., as Amicus Curiae on behalf of Plaintiff
and Respondent.
James R. Edwards, Steven Alan Bennett, John H.
McGuckin, Jr., and Susan J. Hackett for American
Corporate Counsel Association as Amicus Curiae on
behalf of Plaintiff and Respondent and Cross-defendants
and Respondents.
Richard A. Rothschild and Lauren Saunders for Western
Center on Law and Poverty and Bet Tzedek Legal
Services as Amici Curiae.
Horvitz & Levy, Barry R. Levy, Daniel J. Gonzalez, Jon
B. Eisenberg; and Carole Runcie Sherman for the Los
Angeles County Bar Association as Amicus Curiae.

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to be awarded." ( Sears v. Baccaglio, supra, at pp.


1150-1151.) As we explained in Santisas, the statute as
amended reflects the legislative purpose "to establish
uniform treatment of fee recoveries in actions on
contracts containing attorney fee provisions and to
eliminate distinctions based on whether recovery was
authorized by statute or by contract." ( Santisas v.
Goodin, supra, 17 Cal. 4th at p. 616; see also Trope v.
Katz, supra, 11 Cal. 4th at p. 289 [the legislative purpose
underlying Civil Code section 1717 "is to ensure that
contractual attorney fee provisions are enforced
evenhandedly"].)
A The Court of Appeal concluded that the superior
court had authority under Civil Code section 1717 to
award attorney fees to in-house counsel. We agree.
In Trope v. Katz, supra, 11 Cal. 4th 272, we
considered whether an attorney who chooses to litigate in
propria persona rather than retain an attorney to represent
him in an action to enforce a contract containing an
attorney fee provision can recover attorney fees under
Civil Code section 1717. We answered the question in the
negative. We explained that, by definition, the term
"attorney fees" implies the existence of an attorney-client
relationship, i.e., a party receiving professional services
from a lawyer. (11 Cal. 4th at p. 280; see Kay v. Ehrler
(1991) 499 U.S. 432, 435-436 [111 S. Ct. 1435, 1437,
113 L. Ed. 2d 486] ["the word 'attorney' assumes an
agency relationship"].)
Nor can an attorney acting in propria persona receive
compensation from his opponent "simply because the
time he devotes to litigating a matter on his own behalf
has value." (Trope v. Katz, supra, 11 Cal. 4th at p. 285.)
Such an award would constitute disparate treatment,
inimical to a statute designed to establish mutuality of
remedy: "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 can not 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." ( Id. at pp.
285-286.) We pointed out that the ordinary meaning of
the phrase "attorney's fees" is the consideration that a
litigant actually pays or becomes liable to pay for legal
representation, and observed that an attorney litigating in
propria persona pays no such compensation. ( Id. at p.

280.) We concluded that an attorney acting in propria


persona should not be entitled to lost opportunity costs,
as the equivalent of such incurred liability. ( Id. at p.
285.)
We rejected the argument that the Legislature wished
to facilitate or encourage self-representation by attorney
litigants. We cited the United States Supreme Court
decision in Kay v. Ehrler, supra, 499 U.S. 432, which
observed that a lawmaking body may instead prefer to
discourage pro se representation because it may often
conflict with the general public and legislative policy
favoring the effective and successful prosecution of
meritorious claims. (Trope v. Katz, supra, 11 Cal. 4th at
p. 292.) " 'Even a skilled lawyer who represents himself
is at a disadvantage in contested litigation. Ethical
considerations may make it inappropriate for him to
appear as a witness. He is deprived of the judgment of an
independent third party in framing the theory of the case,
evaluating alternative methods of presenting the
evidence, cross-examining hostile witnesses, formulating
legal arguments, and in making sure that reason, rather
than emotion, dictates the proper tactical response to
unforeseen developments in the courtroom. The adage
that "a lawyer who represents himself has a fool for a
client" is the product of years of experience by seasoned
litigators.' " (Ibid., quoting Kay v. Ehrler, supra, 499 U.S.
at pp. 437-438 [111 S. Ct. at p. 1438].) We expressly
declined to address the question, not raised in Trope,
whether in-house counsel fees could be recovered under
the statute, stressing that "nothing in our opinion should
be read as endorsing or precluding such an award."
(Trope v. Katz, supra, 11 Cal. 4th at p. 291.)
None of the foregoing considerations apply in the
case of in-house counsel. There is no problem of
disparate treatment; in-house attorneys, like private
counsel but unlike pro se litigants, do not represent their
own personal interests and are not seeking remuneration
simply for lost opportunity costs that could not be
recouped by a nonlawyer. A corporation represented by
in-house counsel is in an agency relationship, i.e., it has
hired an attorney to provide professional legal services on
its behalf. Nor is there any impediment to the effective
and successful prosecution of meritorious claims because
of possible ethical conflict or emotional investment in the
outcome. The fact that in-house counsel is employed by
the corporation does not alter the fact of representation by
an independent third party. Instead, the payment of a
salary to in-house attorneys is analogous to hiring a

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Positive
As of: Apr 11, 2015
In re the Marriage of ROBERT and PAMELA GREENBERG. ROBERT N.
GREENBERG, Appellant, v. PAMELA P. GREENBERG, Respondent.
No. B226064
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT,
DIVISION SIX
194 Cal. App. 4th 1095; 125 Cal. Rptr. 3d 238; 2011 Cal. App. LEXIS 502

April 28, 2011, Filed


PRIOR-HISTORY:
Superior Court of Ventura County, No. SD034644,
Brian John Back, Judge.

Procedure (2010) ch. 62, 62.04; 11 Witkin, Summary


of Cal. Law (10th ed. 2005) Husband and Wife, 10.]

HEADNOTES-1

COUNSEL: Robert N. Greenberg, in pro. per., for


Appellant.

CALIFORNIA OFFICIAL REPORTS HEADNOTES

No appearance for Respondent.

(1) Costs 22--Attorney Fees--Sanctions--Family Law


Proceedings.--The trial court did not err in awarding
attorney fees and sanctions to a wife following a hearing
on an order to show cause compelling her former
husband, a propria persona attorney, to honor a judgment
dividing the parties' community property, where the
sanctions order was supported by substantial evidence
and easily within the trial court's discretion. The
husband's appeal flew in the face of an adverse factual
finding. Where, as here, an appeal is premised upon facts
expressly not credited by the trial court, i.e., an adverse
factual finding, the appeal is frivolous, and sanctions may
be imposed.

JUDGES: Opinion by Yegan, J., with Gilbert, P. J., and


Coffee, J., concurring.

[Kirkland et al., Cal. Family Law Practice and

OPINION BY: Yegan


OPINION
YEGAN, J.--Abraham Lincoln once said, "He who
represents himself has a fool for a client." Here, the client
is an attorney who represented himself in the trial court.
He now represents himself on appeal. He is unschooled
on the basics of appellate law, suggesting that Lincoln's
observation applies on appeal. We understand that
emotions run high in family law litigation and that this
may cloud the judgment of a party. But this does not

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Positive
As of: Apr 11, 2015
THE PEOPLE, Plaintiff and Respondent, v. THEODORE ABRAHAM COHEN et
al., Defendants and Appellants
Crim. No. 15353
Court of Appeal of California, Second Appellate District, Division One
12 Cal. App. 3d 298; 90 Cal. Rptr. 612; 1970 Cal. App. LEXIS 1629

October 26, 1970


SUBSEQUENT HISTORY:
A petition for a
rehearing was denied November 24, 1970, and the
petition of appellant Theodore Cohen for a hearing by the
Supreme Court was denied January 14, 1971.
PRIOR-HISTORY:
Superior Court of Los Angeles
County, Lester E. Olson, Judge.
COUNSEL: Theodore A. Cohen, in pro. per., for
Defendant and Appellant Theodore Abraham Cohen.
Howard Meyerson, James H. Davis and Richard C.
Voorhies for Defendant and Appellant Susan Cohen.
Thomas C. Lynch, Attorney General, William E. James,
Assistant Attorney General, and William V. Ballough,
Deputy Attorney General, for Plaintiff and Respondent.
JUDGES: Opinion by Thompson, J., with Lillie, Acting
P. J., concurring. Separate dissenting and concurring
opinion by Fourt, J. *
*
Retired Associate Justice of the Court of
Appeal sitting under assignment by the Chairman
of the Judicial Council.

OPINION BY: THOMPSON


OPINION
Theodore A. Cohen appeals from a conviction of:
(1) conspiracy to commit grand theft and forgery and to
obtain money by false pretenses; and (2) nine counts of
grand theft. Susan Cohen appeals from a conviction of
one count of grand theft. We modify the judgment to
comply with Penal Code section 654 and to correct a
clerical error, and affirm the judgment as modified as to
Theodore A. Cohen. The judgment as to Susan Cohen is
reversed.
Facts of Offense
Stated in the light most favorable to the judgment,
the record discloses the following. On May 4, 1964,
appellant Theodore Cohen, an attorney-at-law, met with
Jacob Fishter, a field claims representative for State Farm
Automobile Insurance Group, to discuss the claim of
Cohen's clients against State Farm. In order to support
Cohen's claim to a settlement of $ 3,000, Fishter prepared
a statement of a fictitious eyewitness purporting to

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"Defendant T. Cohen: No, your Honor. I


believe that I will have counsel, but not knowing
the charges, I haven't had a chance to discuss it.
"The Court: You are a member of the State
Bar. The Court finds, at least for this appearance,
you are capable of making an intelligent -- You
do wish to represent yourself at this proceeding
only?
"Defendant T. Cohen: No, I don't.
"The Court: You don't wish to represent
yourself?
"Defendant T. Cohen: No, I don't. I am
asking for a continuance so that I might obtain
counsel.
"The Court: You pose a problem for the
Court. You can't be arraigned without an attorney
which you insist upon. How are you to know the
charge if you don't have the documents?
"Defendant T. Cohen: I don't, but I certainly
don't want to become my own attorney of record.
". . . .
"The Court: . . . . As to Theodore Cohen, the
matter will be continued to October the 10th at
9:00 a.m. for arraignment and plea.
"I urge each of you to have an attorney here
on October the 10th to save any further delay in
this matter.
"October the 10th, 9:00 a.m. for arraignment
and plea."
In considering the contention of Cohen to the effect
that he never made a proper waiver of his right to counsel
under the circumstances the Attorney General argues that,
in effect, Cohen was advised of his constitutional rights at
the time of the arraignment on October 3, 1966, and that
he appeared in propria persona on occasions and
indicated that he intended to secure private counsel and
therefore it was unnecessary to advise him any further at
any time.
In People v. Cummings, 255 Cal.App.2d 341 [62
Cal.Rptr. 859], the defendant stated at the preliminary

hearing that he desired to represent himself; at the trial


there was no inquiry by the court with reference to a
waiver of counsel. The appellate court said (pp. 345-346):
"To establish that counsel was effectively waived, it must
be shown that the accused was offered counsel and that
he intelligently and understandingly waived his right.
[Citations.]. 'The determination of whether there has
been an intelligent waiver of the right to counsel must
depend, in each case, upon the particular facts and
circumstances surrounding that case, including the
background, experience, and conduct of the accused.'
[Citations.] This determination must be made before any
plea is accepted by the trial court. [Citations.] The courts
will not lightly find that there has been a waiver and will
indulge in every reasonable presumption against a
waiver of a
fundamental constitutional right.
[Citations.]
"'In order for a trial judge to determine whether
there has been a competent and intelligent waiver of
counsel, he must first ascertain whether the defendant
clearly understands the nature and effect of his waiver.'
[Citations.] More than a superficial inquiry is required of
the trial court. [Citations.]
"A waiver cannot be accepted 'from any one accused
of a serious public offense without first determining that
he "understands the nature of the charge, the elements of
the offense, the pleas and defenses which may be
available, or the punishments which may be exacted."'
[Citations.] While this determination is for the trial judge
to make, in the present case no attempt was made at any
stage of the proceedings below to inquire into appellant's
ability to defend himself or into his understanding of the
offense charged -- its nature, pleas, defenses, or
punishment. [Citations.] . . . A waiver 'may be made
only by a defendant who has been apprised of his rights
and who has "an intelligent conception of the
consequences of his act."' [Citations.]" (Italics added.)
The fact alone that Cohen was an attorney at law
should be of no particular consequence. It is quickly
observed by a reading of the record in this case that
Cohen (as the saying goes) had a fool for a client when he
represented himself, but in addition to that, the whole
mess was compounded and made worse, when at the
same time he was permitted to represent his wife as her
counsel. It was a situation which cried out for correction
at the very first and the problem was alluded to by several
of the judges prior to the time of trial. In Bogart v.

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Positive
As of: Apr 11, 2015
DAVID J. DUCHROW, Plaintiff and Respondent, v. ERNESTINE FORREST,
Defendant and Appellant.
B233736
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT,
DIVISION ONE
215 Cal. App. 4th 1359; 156 Cal. Rptr. 3d 194; 2013 Cal. App. LEXIS 344

April 30, 2013, Opinion Filed


PRIOR-HISTORY:
APPEAL from a judgment of the Superior Court of Los
Angeles County, No. BC402090, Alan S. Rosenfield,
Judge.
Forrest v. Department of Corporations, 150 Cal. App.
4th 183 [58 Cal. Rptr. 3d 466, 2007 Cal. App. LEXIS
648] (Cal. App. 2d Dist., 2007)
HEADNOTES-1
CALIFORNIA OFFICIAL REPORTS HEADNOTES
(6) Pleading 80--Amendment--To Conform to
Proof--Grant Improper.--A midtrial amendment
allowed an attorney to seek damages from a former client
under a paragraph of the parties' litigation agreement that
permitted a recovery for all time spent on the case if he
withdrew for good cause. In contrast, the original
complaint sought relief under a different paragraph that
required the client to pay for the first 20 hours of the
attorney's work--which she did--and entitled the attorney
to 40 percent of any recovery. Before trial, the client's
defense was simple: Because there was no recovery, the

attorney was not entitled to any attorney fees. But under


the midtrial amendment, the attorney's theory of liability
for breach of the litigation agreement turned on whether
he had good cause to withdraw. And the client's defense
no longer involved a contingency fee agreement but,
instead, required her to respond to multiple charges of
improper conduct. In addition, the question of actual time
spent on the prior suit became a central issue, as did the
reasonableness of the hours claimed. Consequently, under
the amendment, new and substantially different issues
were introduced in the case. The amendment raised new
issues not included in the original pleadings. The
amendment prejudiced the client in several ways and
should not have been permitted.
[Cal. Forms of Pleading and Practice (2013) ch. 21,
Amended and Supplemental Pleadings, 21.25; 3 Kiesel
et al., Matthew Bender Practice Guide: Cal. Pretrial
Civil Procedure (2013) 34.17; 5 Witkin, Cal. Procedure
(5th ed. 2008) Pleading, 1216.]
COUNSEL: Ernestine Forrest, in pro. per., for

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thought to accepting his offer to compromise (see Code


Civ. Proc., 998) or would have seriously considered
settling the case. As Forrest stated in opposing the
amendment, if she had known before trial that Duchrow
was going to seek damages under paragraph 9, she would
have asked herself, "Is this worth it?"
Fifth, Forrest was a transactional attorney with no
litigation experience. Duchrow was a seasoned trial
attorney. When Duchrow testified on direct examination
at trial, he had another attorney, Marc Coleman, ask him
questions. Duchrow's testimony was presented in an
orderly and understandable fashion. Forrest, on the other
hand, took the stand and testified in the narrative. Her
testimony was not easy to follow and was the subject of
several meritorious objections. If Forrest had known
before trial that Duchrow would ask the jury to award
him $360,796.94, she would have retained counsel. As
our Supreme Court has acknowledged: " ' "The adage that
'a lawyer who represents himself has a fool for a client' is
the product of years of experience by seasoned litigators."
' " (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084,
1092-1093 [95 Cal. Rptr. 2d 198, 997 P.2d 511].) While
a transactional attorney might reasonably decide to
represent herself as a defendant in a suit for $44,082.22,
Forrest would have heeded the foregoing adage if she had
known Duchrow would end up requesting $360,796.94 in
damages.
Last, if Duchrow had made a timely motion to
amend, Forrest would have conducted legal research and
argued that paragraph 9 was unenforceable. As noted,
paragraph 9 permitted Duchrow to recover attorney fees
for "all time spent" on a case if he was discharged by a
client or if he withdrew from representation for good
cause.
Forrest could have made a colorable argument--one
we do not decide--that, at most, Duchrow was entitled to
recover in quantum meruit for the reasonable value of his
services, not $400 for every hour he supposedly worked
on the case (800.65 hours). It is well established that
under a contingency fee agreement, when a client
discharges an attorney, with or without good cause, the
attorney may recover under a theory of quantum meruit
for the reasonable value of his or her services. (Fracasse
v. Brent (1972) 6 Cal.3d 784, 790-791 [100 Cal. Rptr.
385, 494 P.2d 9]; Vapnek et al., Cal. Practice Guide:
Professional Responsibility (The Rutter Group 2012)
5:1034 to 5:1034.1, p. 5-126 (rev. # 1, 2011) (hereafter

Vapnek).) Similarly, under a contingency fee agreement,


when an attorney withdraws from representation based on
"justifiable cause," he or she is entitled to recover in
quantum meruit. (Rus, Miliband & Smith v. Conkle &
Olesten (2003) 113 Cal.App.4th 656, 671-676 [6 Cal.
Rptr. 3d 612]; Estate of Falco (1987) 188 Cal.App.3d
1004, 1012-1016 [233 Cal. Rptr. 807]; Vapnek, supra,
5:1073 to 5:1079, pp. 5-135 to 5-137 (rev. # 1, 2011).)
In contrast, an attorney who withdraws without
justifiable cause may not recover any attorney fees under
a contingency fee agreement. (Rus, Miliband & Smith v.
Conkle & Olesten, supra, 113 Cal.App.4th at pp.
672-676; Estate of Falco, supra, 188 Cal.App.3d at pp.
1014-1017; Vapnek, supra, 5:1070 to 5:1071, p.
5-135.) And the granting of a motion to withdraw does
not ipso facto establish justifiable cause for a quantum
meruit recovery. (See Rus, Miliband & Smith v. Conkle &
Olesten, at pp. 673-674; Estate of Falco, at p. 1014;
Vapnek, supra, 5:1085 to 5:1085.1, 10:49, pp. 5-137
to 5-138, 10-11 (rev. # 1, 2011).)
"Where justifiable cause for withdrawal is shown,
the attorney's right to quantum meruit recovery for
services rendered is the same as where the attorney has
been discharged after partial performance." (Vapnek,
supra, 5:1087, p. 5-138 (rev. # 1, 2011).) A quantum
meruit recovery requires a trial court to consider several
factors: " '[t]he nature of the litigation, its difficulty, the
amount involved, the skill required in its handling, the
skill employed, the attention given, the success or failure
of the attorney's efforts, the attorney's skill and learning,
including his [or her] age and experience in the particular
type of work demanded.' " (Mardirossian & Associates,
Inc. v. Ersoff, supra, 153 Cal.App.4th at p. 272.)
In her opening brief, Forrest states, "A line of cases
including ... Estate of Falco[, supra, 188 Cal.App.3d
1004] ... and more recently Rus, Miliband & Smith v.
Conkle & Olesten[, supra, 113 Cal.App.4th 656], ... have
supported a conclusion that where an attorney abandons
or withdraws from a case and there is no recovery, as is
true here, without a finding of good cause and possibly
even with one, the abandoning, withdrawing attorney
cannot recover fees."
When an attorney seeks a recovery in quantum
meruit after withdrawing from a case for ethical reasons,
he or she " 'has the burden of proof to show: (1) counsel's
withdrawal was mandatory, not merely permissive, under
statute or State Bar rules; (2) the overwhelming and

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Caution
As of: Apr 11, 2015
In re the Marriage of CAROLINE ANN and JAMES PAUL GREEN. JAMES
PAUL GREEN, Appellant, v. CAROLINE ANN GREEN, Respondent
No. A039868
Court of Appeal of California, First Appellate District, Division Five
213 Cal. App. 3d 14; 261 Cal. Rptr. 294; 1989 Cal. App. LEXIS 1045

August 11, 1989


PRIOR-HISTORY:
Superior Court of San Mateo
County, No. 301652, Allan J. Bollhoffer, Judge.
COUNSEL: James Paul Green, in pro. per., and Frances
L. Hancock for Appellant.
Bernard N. Wolf, Dowgialo & Wolf and David P. Uccelli
for Respondent.
JUDGES: Opinion by King, J., with Low, P. J., and
Haning, J., concurring.
OPINION BY: KING
OPINION
In this case we hold that in marital dissolution
proceedings (1) the proper date for valuation of the
community interest in a spouse's law practice is normally
the date of separation; (2) failure to request a statement of
decision is fatal to a challenge on appeal of the exercise
of the trial court's discretion in refusing to allow full
credit to a spouse for payment of community obligations
from postseparation separate property earnings, where the

court allows some credits but refuses others finding them


related to the payor's support obligation; (3) Code of Civil
Procedure section 998's provision for a statutory offer to
compromise is inapplicable to proceedings under the
Family Law Act; (4) once mandatory mediation of a
custody or visitation dispute has been provided, the court,
upon trial of that issue, may deny a party's request for
additional mediation, and (5) as a matter of law under the
facts of this case, respondent is entitled to an award of
attorney fees on appeal pursuant to Civil Code section
4370.5. In addition, we uphold the trial court's
imposition of sanctions against appellant pursuant to
Code of Civil Procedure section 128.5, subdivision
(b)(2)(A).
James Paul Green appeals a judgment of dissolution
of marriage raising numerous issues primarily related to
property division. We affirm.
James and Caroline Ann Green had been married for
eight years when they separated on March 18, 1985.
After a hearing on October 17, 1985, the trial court issued
an order pendente lite awarding temporary sole physical
custody of their three minor children to Caroline. It also

Page 2

ordered James to pay family support of $ 1,200 per


month in addition to making payments as they came due
on Caroline's car and the family residence of which
Caroline retained exclusive use and possession.
The trial took place between March 24 and April 15,
1987. On April 10, the trial court orally announced its
tentative decision as to the valuation of James's law
practice. On April 15, also orally, it modified that
valuation and announced the rest of its tentative decision.
On April 27, while Caroline's attorney was preparing the
judgment, he wrote to the trial court pointing out that a
computational error resulted in an inconsistency between
the court's tentative decision and its figures regarding
reimbursement. On June 16, the trial court issued its
judgment, explicitly adopting Caroline's calculations.
James's request for a statement of decision ( Code
Civ. Proc., 632), filed on June 26, 1987, was denied as
untimely. 1 After denying James's new trial motion, the
trial court also denied his motion for reconsideration and
ordered him to pay attorney fees as sanctions under Code
of Civil Procedure section 128.5, subdivision (b)(2)(A).
1 The request was clearly untimely since it was
not made 10 days after the court's announcement
of intended decision as required by section 632
after a trial of more than 1 day.
There is an old adage that a lawyer who represents
himself has a fool for a client. Whether that adage
applies to James, who has primarily acted as his own
attorney at trial and on appeal, we leave to the reader to
decide.
I. Law Practice.
The trial court valued James's law practice as of the
date of separation "including accounts receivable, work
in process, hard assets, supplies, library, lease and
leasehold improvements, good will, less liabilities" at $
243,612.

On appeal James challenges certain components of this


evaluation (e.g., goodwill, accounts receivable, hard
assets, library, client list, leasehold) which were
tentatively announced in open court but not separately set
out in the judgment. These claims must fail because
James cannot rely on the trial court's oral comments or

announcement of intended decision to impeach its


judgment. ( In re Marriage of Ditto (1988) 206
Cal.App.3d 643, 646-649 [253 Cal.Rptr. 770].) "Where,
as here, no statement of decision was requested, all
intendments will favor the trial court's ruling and it will
be presumed on appeal that the trial court found all facts
necessary to support the judgment." ( Id., at p. 649, fn.
omitted.) 2
2 Even James's tardy request for a statement of
decision was expressly limited to issues other than
the law practice evaluation.
James disputes the trial court's use of the date of
separation to value the community interest in his law
practice, contending the value should be fixed as of the
date of trial. The selection of the proper date for
valuation of community interests in most law
partnerships requires a reconciliation between Civil Code
sections 4800, subdivision (a) (". . . the court shall value
the assets and liabilities as near as practicable to the time
of trial . . .") and 5118 (". . . earnings . . . of a spouse . . .
while separate and apart from the other spouse, are the
separate property of the spouse."). 3 With "the enactment
of Civil Code section 5118, effective March 4, 1972, any
portion of the law practice assets including goodwill
which are attributable to the earnings and accumulations
of a spouse living separate and apart are the separate
property of the spouse earning or accumulating the
same." ( In re Marriage of Lopez (1974) 38 Cal.App.3d
93, 110 [113 Cal.Rptr. 58].)
3 All further statutory references are to the Civil
Code unless otherwise indicated.
At any given moment the major assets of most law
firms are not capital assets, but those related to the direct
rendering of professional services, most particularly
accounts receivable and work in process. "Many past and
present distinguished California lawyers of initial humble
and impecunious beginnings will attest to the fact that it
is not ordinarily capital investment by a sole legal
practitioner which is the chief contributing factor in the
realization of income and profits." (38 Cal.App.3d at pp.
106-107.)
For this reason we adopt the general rule that in
determining the community property interest in law
partnerships (including goodwill) in marital dissolution
actions, the proper date of valuation is the date of
separation of the parties, not a date as near as practicable

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1 of 1 DOCUMENT

Caution
As of: Apr 11, 2015
SORRELL TROPE et al., Plaintiffs and Appellants, v. BERTRAM BERNARD
KATZ, Defendant and Respondent.
No. S043227.
SUPREME COURT OF CALIFORNIA
11 Cal. 4th 274; 902 P.2d 259; 45 Cal. Rptr. 2d 241; 1995 Cal. LEXIS 5384; 95 Cal.
Daily Op. Service 7738; 95 Daily Journal DAR 13193

October 2, 1995, Decided


PRIOR-HISTORY:
Superior Court of Los Angeles
County, No. C745345, William L. Burby, Judge.
COUNSEL: Trope & Trope and Thomas Paine Dunlap
for Plaintiffs and Appellants.
Lorraine C. Gollub, Gordon Law Offices, Frieda Gordon,
Hill, Farrer & Burrill and Steven W. Bacon as Amici
Curiae on behalf of Plaintiffs and Appellants.
Hart & Watters and Thomas L. Watters for Defendant
and Respondent.
Adrian Van Rijs as Amicus Curiae on behalf of
Defendant and Respondent.
JUDGES: Opinion by Mosk, J., expressing the
unanimous view of the court.
OPINION BY: MOSK, J.
OPINION

MOSK, J.
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 (hereafter 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.
FACTS

Page 10

compelled to conclude the Legislature must have


intended to allow attorneys to recover attorney fees when
appearing in propria persona.
Finally, Trope & Trope contends that the application
of Patterson and Sten in this context would conflict with
the "developing body of law" on the question whether a
litigant can recover attorney fees if he was represented by
in-house counsel. (See Garfield Bank, supra, 25 Cal.
App. 4th 1804.) It reasons that if we hold that a litigant
cannot recover attorney fees unless he actually paid or
became liable to pay consideration in exchange for legal
representation, it would mean that a litigant represented
by in-house counsel could not recover such fees because
it paid its attorney a salary rather than a fee. The
conclusion does not necessarily follow, because an
argument can be made that in such circumstances the
salary is the functional equivalent of the fee. Resolution
of that question, however, must await another day: we
have no occasion in this case to decide whether a litigant
represented by in-house counsel can or cannot recover
"reasonable attorney's fees" under section 1717, and
nothing in our opinion should be read as endorsing or
precluding such an award.
In light of the foregoing, we do not find Trope &
Trope's public policy arguments sufficiently compelling
to support a conclusion that the Legislature must have
intended the words "reasonable attorney's fees" in section
1717 to carry some special significance other than their
usual and ordinary meaning or their established legal
definition because it wished to facilitate or encourage
self-representation by attorney litigants. In fact, the
United States Supreme Court recently observed in its
unanimous decision in Kay v. Ehrler, supra, 499 U.S.
432, that a lawmaking body may instead prefer to
discourage attorneys from electing to appear in propria
persona because such self-representation may often
conflict with the general public and legislative policy
favoring the effective and successful prosecution of
meritorious claims. The high court observed that "Even a
skilled lawyer who represents himself is at a disadvantage
in contested litigation. Ethical considerations may make
it inappropriate for him to appear as a witness. He is
deprived of the judgment of an independent third party in

framing the theory of the case, evaluating alternative


methods of presenting the evidence, cross-examining
hostile witnesses, formulating legal arguments, and in
making sure that reason, rather than emotion, dictates the
proper tactical response to unforeseen developments in
the courtroom. The adage that 'a lawyer who represents
himself has a fool for a client' is the product of years of
experience by seasoned litigators." ( Id. at pp. 437-438
[113 L. Ed. 2d at pp. 492-493], fn. omitted.) The high
court was not only persuaded by this rationale, but
concluded almost entirely on the basis of it alone that
Congress could not have intended to allow attorney
litigants to recover a "reasonable attorney's fee" under the
Civil Rights Attorney's Fees Awards Act of 1976, 42
United States Code section 1988.
For the reasons stated, we hold that an attorney who
chooses to litigate in propria persona and therefore does
not pay or become liable to pay consideration in
exchange for legal representation cannot recover
"reasonable attorney's fees" under section 1717 as
compensation for the time and effort he expends on his
own behalf or for the professional business opportunities
he forgoes as a result of his decision. To the extent they
conflict with this holding, we disapprove Dameshghi,
supra, 3 Cal. App. 4th 1262, and Renfrew, supra, 175
Cal. App. 3d 1105. To the extent they state or imply that
our prior decisions in Patterson, supra, 48 Cal. 369, and
Sten, supra, 206 Cal. 473, are no longer precedents, we
also disapprove Garfield Bank, supra, 25 Cal. App. 4th
1804, Jacobson, supra, 23 Cal. App. 4th 1285, Hambrose
Reserve, supra , 9 Cal. App. 4th 129, and Leaf, supra,
150 Cal. App. 3d 1184. We emphasize, however, that we
express no opinion regarding any other aspect of the
reasoning or the holdings of the latter four Court of
Appeal decisions and that we express no opinion
regarding the applicability of our reasoning in Patterson
and Sten in the context of the equitable exceptions to the
American rule.
The judgment of the Court of Appeal is affirmed.
Lucas, C. J., Kennard, J., Arabian, J., Baxter, J.,
George, J., and Werdegar, J., concurred.

Page 1

1 of 1 DOCUMENT

Caution
As of: Apr 11, 2015
SANDS & ASSOCIATES, Plaintiff and Respondent, v. MARTIN JUKNAVORIAN,
Defendant and Appellant.
B232686
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT,
DIVISION ONE
209 Cal. App. 4th 1269; 147 Cal. Rptr. 3d 725; 2012 Cal. App. LEXIS 1058

October 10, 2012, Opinion Filed


SUBSEQUENT HISTORY: Modified and rehearing
denied by Sands & Associates v. Juknavorian, 2012 Cal.
App. LEXIS 1137 (Cal. App. 2d Dist., Oct. 30, 2012)
Review denied by Sands & Associates v. Juknavorian
(Martin), 2013 Cal. LEXIS 641 (Cal., Jan. 23, 2013)
PRIOR-HISTORY:
APPEAL from a judgment of the Superior Court of Los
Angeles County, No. SC097326, Cesar C. Sarmiento,
Judge.

recover additional attorney fees under the prevailing


party clause in the retainer agreement because it was
self-represented.
[Cal. Forms of Pleading and Practice (2012) ch. 174,
Costs and Attorney's Fees, 174.54; 2 Cathcart et al.,
Matthew Bender Practice Guide: Cal. Trial and Post-Trial
Civil Procedure (2012) 25A.08; 7 Witkin, Cal.
Procedure (5th ed. 2008) Judgment, 161.]

HEADNOTES-1

COUNSEL: Law Office of Victor Jacobovitz and Victor


Jacobovitz for Defendant and Appellant.

CALIFORNIA OFFICIAL REPORTS HEADNOTES

Heleni E. Suydam for Plaintiff and Respondent.

(8)
Costs

27--Attorney
Fees--Contract
Provisions--Fees Not Allowed--Law Firm Represented
by Of Counsel Attorneys.--A law firm publicly
designated two attorneys as "of counsel." Those
attorneys, on behalf of the firm, recovered unpaid
attorney fees owed by a former client. The firm could not

JUDGES: Opinion by Mallano, P. J., with Rothschild


and Chaney, JJ., concurring.
OPINION BY: Mallano
OPINION
MALLANO, P. J.--The question on appeal is

Page 6

'incur' compensation for his time and his lost business


opportunities.
"Second, Black's Law Dictionary defines the word
'fee' generally as 'A recompense for an official or
professional service or a charge or emolument or
compensation for a particular act or service. A fixed
charge or perquisite charged as recompense for labor;
reward, compensation, or wage given to a person for
performance of services or something done or to be
done.' ... It goes on to define the phrase 'attorney fees' as
a 'Charge to client for services performed (e.g. hourly fee,
flat fee, contingency fee).' ... Similarly, Webster's defines
the word 'fee' as 'compensation often in the form of a
fixed charge for professional service or for special and
requested exercise of talent or of skill.' ... '[F]ee' denotes
'a payment,' such as the 'remuneration paid or due to a
lawyer, a physician, or (in recent use) any professional ...
, a director of a public company, etc. for an occasional
service' ... . Accordingly, 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." (Trope, supra, 11 Cal.4th at
p. 280, citations omitted.)
Further, "to apply [Trope's] reasoning ... would be to
hold that the time and opportunity that an attorney gives
up when he chooses to litigate a case in propria persona
are somehow qualitatively more important and worthy of
compensation than those of other pro se litigants. There is
no support in either the language or legislative history of
section 1717 for such disparate treatment of pro se
litigants on the basis of their occupations. [] In fact, such
disparate treatment would conflict 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." (Trope, supra, 11
Cal.4th at p. 285.)
The court rejected Trope's public policy contentions,
explaining: "[The law firm] contends it is appropriate to
allow attorney litigants to recover attorney fees under
section 1717 but to deny such recovery to nonattorney
litigants because the latter do not have the same skills as
attorneys, have no established billing rates, and are not
bound by the same ethical rules as attorneys. We see no

reason to conclude, however, that attorney litigants


should receive compensation for their time and effort in
this context merely because they are more skilled than
nonattorneys; indeed, one could quite logically maintain
the opposite, because a nonattorney litigant may often
have to spend more time and exert more effort learning
the law and procedure relevant to his case, and may be
forced to divert even more time from his own pursuits,
whatever they may be. Nor is it relevant that an attorney
must comply with certain ethical rules that do not bind
nonattorneys. And the mere fact that attorneys have
established billing rates so that the value of their time can
be quantified is of little or no significance: were we to
conclude that an attorney litigant can recover attorney
fees because the value of his time can be calculated on
the basis of a fixed hourly rate, it would be irrational not
to conclude that all pro se litigants whose time can
likewise be valued on such a basis--such as [a] doctor [or
an] architect ...--should also receive 'reasonable attorney's
fees.' " (Trope, supra, 11 Cal.4th at pp. 289-290.)
In addition, the Legislature "may ... prefer to
discourage attorneys from electing to appear in propria
persona because such self-representation may often
conflict with the general public and legislative policy
favoring the effective and successful prosecution of
meritorious claims. ... 'Even a skilled lawyer who
represents himself is at a disadvantage in contested
litigation. Ethical considerations may make it
inappropriate for him to appear as a witness. He is
deprived of the judgment of an independent third party in
framing the theory of the case, evaluating alternative
methods of presenting the evidence, cross-examining
hostile witnesses, formulating legal arguments, and in
making sure that reason, rather than emotion, dictates the
proper tactical response to unforeseen developments in
the courtroom. The adage that "a lawyer who represents
himself has a fool for a client" is the product of years of
experience by seasoned litigators.' " (Trope, supra, 11
Cal.4th at p. 292.)
In Trope, the court concluded "an attorney who
chooses to litigate in propria persona and therefore does
not pay or become liable to pay consideration in
exchange for legal representation cannot recover
'reasonable attorney's fees' under section 1717 as
compensation for the time and effort he expends on his
own behalf or for the professional business opportunities
he forgoes as a result of his decision." (Trope, supra, 11
Cal.4th at p. 292.)