Opinion
Review Granted Dec. 15, 1994.
Review Granted Previously published at: 28 Cal.App.4th 1409, 33 Cal.App.4th 1262
Opinion on pages 1262-1274 omitted.
REVIEW GRANTED.
COUNSEL
Trope and Trope and Thomas Paine Dunlap, Los Angeles, for plaintiffs and appellants.
[34 Cal.Rptr.2d 220] Hart & Watters and Thomas L. Watters, Los Angeles, for defendant and respondent.
OPINION
CHARLES S. VOGEL, Associate Justice.
Sorrell Trope and Eugene L. Trope, engaged in the practice of law as the firm of Trope and Trope, appeal from a postjudgment order denying them recovery of attorney's fees and limiting prejudgment interest to the net amount of the judgment.
FACTS
On November 6, 1985, Trope and Trope entered into a written agreement to perform legal services for Bertram Katz in his marital dissolution action. One of the terms of the agreement provided for the recovery of attorney's fees and costs. Trope and Trope represented Katz from November 1985 until February 1989 when it withdrew as counsel. At that time, Trope and Trope carried an account receivable for services and advances in the amount of $163,652.88 which Katz refused to pay.
The clause provided: " In the event it becomes necessary to file an action to recover the fees and costs set forth in this agreement, the Court may award reasonable attorneys' fees for the recovery of said fees and costs."
On December 1, 1989, Trope and Trope, representing itself, filed an action against Katz for breach of contract to recover earned but unpaid fees from Katz. Katz's answer alleged that Trope and Trope had overcharged him and challenged the reasonableness of the fees; additionally, Katz cross-complained for legal malpractice. The matter was tried to a jury. The jury found Trope and Trope liable for professional negligence and awarded Katz $118,500 in damages; on the breach of contract claim, the jury found in favor of Trope and Trope in the amount of $163,000.
Following the entry of the judgment, Trope and Trope moved to fix attorney's fees at $223,385.00 and costs at $13,743.71. Katz opposed the request for fees and costs contending, among other grounds, that Trope and Trope was not entitled to attorney's fees because the firm represented itself and incurred no expenses because it engaged no other lawyers to represent its interest. In addition, both parties filed motions to recover prejudgment interest on their respective awards.
On July 20, 1992, the trial court referred the motions for attorney's fees and costs and prejudgment interest to a referee, Retired Judge George M. Dell. On November 20, 1992, Judge Dell filed his report and recommendation, advising the trial court that, based on the California Supreme Court's decision in City of Long Beach v. Sten (1929) 206 Cal. 473, 274 P. 968, Trope and Trope could not recover attorney's fees as a matter of law. In addition, the referee recommended Trope and Trope recover prejudgment interest on the difference between the $163,000 awarded to the law firm on the breach of contract claim and the $118,500 awarded to Katz for legal malpractice. The trial court heard Trope and Trope's objections to the referee's report and recommendations and approved and adopted the referee's recommendations in total.2 This appeal by Trope and Trope follows.
Neither side has appealed from the underlying judgments.
DISCUSSION
Trope and Trope makes the following contentions: (1) City of Long Beach v. Sten, supra, 206 Cal. 473, 274 P. 968, is no longer controlling but has been superseded by recent cases from the Courts of Appeal which have allowed attorney's fees to lawyers appearing pro se; and, (2) because its claim for breach of contract was for a liquidated amount, it is entitled to prejudgment interest on the entire damages award unreduced by an offset for Katz's legal malpractice award.
I
City of Long Beach v. Sten, supra, 206 Cal. 473, 274 P. 968, unequivocally holds [34 Cal.Rptr.2d 221] that a lawyer appearing pro se is not entitled to recover attorney's fees for legal services performed on the lawyer's own behalf. The Sten case was an action for condemnation of real property of which one co-owner was a lawyer and the other was a layperson. The city abandoned the condemnation and, according to applicable statute, the landowners were entitled to an award for reasonable attorney's fees. (City of Long Beach v. Sten, supra, 206 Cal. at p. 474, 274 P. 968.) The Supreme Court affirmed the trial court's disallowance of attorney's fees to the lawyer defendant who represented himself, but, ironically, affirmed the allowance of attorney's fees to his non-lawyer co-owner for the services performed by the lawyer-owner.
In the remainder of this decision, for brevity, City of Long Beach v. Sten will sometimes be referred to as either " Sten, " the " Sten case" or the " Sten rule" .
Trope and Trope urges that Sten's precedential value has been undercut because the statute upon which the landowner in Sten based his claim for attorney's fees, section 1255a of the Code of Civil Procedure, has since been repealed. The argument is devoid of merit. While it is true that the provision was repealed in 1975, its substance was carried over into other sections. Code of Civil Procedure section 1268.610 now permits the landowner to recover " his litigation expenses" whenever the condemnation action is " dismissed for any reason" and litigation expenses are defined as including " [r]easonable attorney's fees ... reasonably and necessarily incurred to protect the [landowner's] interests in the [condemnation] proceeding." (Code Civ.Proc., § 1235.140, subd. (b).)
The holding of our Supreme Court in Sten is that lawyers may not recover fees for services they render for themselves only. This proposition was adhered to in City of Los Angeles v. Hunt (1935) 8 Cal.App.2d 401, 403, 47 P.2d 1075 [" ... it is settled law that an attorney at law sued as owner of real property in a condemnation proceeding cannot appear for himself, and for his services to himself charge attorney fees to the plaintiff" ], and O'Connell v. Zimmerman (1958) 157 Cal.App.2d 330, 337, 321 P.2d 161 [" When an attorney represents himself in an action he may not recover the reasonable value of his fee, for he has paid no fee nor has he incurred any liability to pay an attorney fee. (City of Long Beach v. Sten [1929] 206 Cal. 473, 474 [274 P. 968]; Patterson v. Donner [1875] 48 Cal. 369.)" ]. For the next 25 years, the Sten rule that lawyers appearing pro se could not recover attorney's fees for services rendered for self-representation remained unchanged and unchallenged.
In 1984, the Court of Appeal (First Appellate District) allowed a lawyer appearing pro. per. in an inverse condemnation action to recover attorney's fees pursuant to Code of Civil Procedure section 1036.( Leaf v. City of San Mateo (1984) 150 Cal.App.3d 1184, 198 Cal.Rptr. 447.) The Leaf court observed that " [ h]istorically, California courts have consistently held that an attorney who acts pro se is not entitled to an award of attorney fees as compensation for professional services thus rendered. ( City of Long Beach v. Sten (1929) 206 Cal. 473 [ 274 P. 968] ... [ condemnation action abandoned by the city; attorney fees provided by statute]; Patterson v. Donner (1874) 48 Cal. 369, 380 [ mortgage foreclosure action; attorney fees provided by contract]; O'Connell v. Zimmerman (1958) 157 Cal.App. 2d 330, 337 [ 321 P.2d 161] ... [ interpleader action; attorney fees provided by statute]; City of Los Angeles v. Hunt (1935) 8 Cal.App. 2d 401, 403- 404 [ 47 P.2d 1075] ... [ eminent domain action; attorney [34 Cal.Rptr.2d 222]fees provided by statute].)" ( Id . at p. 1188, 198 Cal.Rptr. 447.)
Code of Civil Procedure section 1036 provides:
Having paid homage to the Sten case and its progeny, the Court of Appeal then relied on a footnote taken from a later Supreme Court decision which had allowed a nonlawyer representational fees for filing and pursuing a matter before the Public Utilities Commission (PUC). In Consumers Lobby Against Monopolies v. Public Utilities Com. (1979) 25 Cal.3d 891, 915, fn. 13, 160 Cal.Rptr. 124, 603 P.2d 41 (hereinafter CLAM), Justice Mosk commented in a footnote that " the logic of past decisions [ City of Long Beach v. Sten, Patterson v. Donner, Bruno v. Bell (1979) 91 Cal.App.3d 776 [154 Cal.Rptr. 435], O'Connell v. Zimmerman, City of Los Angeles v. Hunt ] that do not allow an attorney to recover fees when he appears on his own behalf is not clear. Although such attorney does not pay a fee or incur any financial liability therefor to another, his time spent in preparing and presenting his case is not somehow rendered less valuable because he is representing himself rather than a third party. Accordingly, it would appear he should be compensated when he represents himself if he would otherwise be entitled to such compensation, absent a showing in a particular case that such an award would place his interests in conflict with those whom he represents." (Emphasis in original.)
The Leaf court limited its holding as follows: " Thus, we determine that where, as here, an attorney acts pro se in prosecuting an inverse condemnation action, such attorney is entitled to recover the reasonable value of the professional services necessarily rendered during pretrial and trial proceedings." ( Id . at p. 1189, 198 Cal.Rptr. 447.)
The footnote is not a part of Justice Mosk's lead opinion, but is only his reflection regarding the PUC's contention that the Sten case precluded an award of fees to the petitioner. That contention was disregarded and fees were allowed based on equitable considerations. That portion of the four-justice opinion simply holds that the PUC has jurisdiction to award attorney's fees and costs under the common fund doctrine in a quasi-judicial reparation proceeding, and in those actions may make an award to nonattorneys who appear before it in a representative capacity. (Id. 25 Cal.3d at pp. 914-915, 160 Cal.Rptr. 124, 603 P.2d 41.)
The underlying rationale for the holding is that the petitioner obtained a benefit for the public. Other than Justice Mosk's observation about the logic of past decisions, there is not a hint of disapproval of the Sten case and the cases following it. We respectfully suggest that the Leaf court's reliance on this footnote simply gave undue emphasis to what is nothing more than dictum.
In 1985, Division Seven of this Appellate District allowed a lawyer to recover attorney's fees based on the following provision in an engagement letter: " ‘ If either of us should institute litigation concerning fees, the prevailing party shall be entitled to attorney fees and costs in addition to any other expenses of collection theretofore [ sic ] incurred.’ " Relying on the holding of Sten, the trial court had denied appellant's request for attorney's fees. (Renfrew v. Loysen (1985) 175 Cal.App.3d 1105, 1107, 222 Cal.Rptr. 413.) The Court of Appeal reversed, relying on Leaf v. City of San Mateo , supra , 150 Cal.App.3d 1184, 198 Cal.Rptr. 447, and its application of the CLAM footnote and Ellis v. Cassidy (9th Cir.1980) 625 F.2d 227, a case in which pro se lawyers who were compelled to defend themselves in federal civil rights litigation were allowed to recover attorney's fees.
In Ellis v. Cassidy, supra, 625 F.2d 227, the defendant lawyers represented themselves. The appellate court held they were entitled to recover fees, because they had " actually suffered pecuniary loss, since they [were] required to take time away from their practices to prepare and defend the suit. [Citations.] ... The difficulty of placing a dollar value on the legal services performed, present in the situation where a lay defendant represents himself, is largely absent in the case of an attorney who has an established fees and billing practices. Further, these [pro se lawyers] did not seek out a chance for pro se litigation to compensate for an inactive practice; they were forced to defend against frivolous claims made by a plaintiff who is apparently bent on endless litigation." (Id. at p. 231.) The thrust of the decision is to award attorney's fees to rectify an injustice and to advance the policy of discouraging frivolous and harassing litigation by requiring the losing party to pay attorney's fees to his opponents even though they did not hire counsel to defend but instead represented themselves.
[34 Cal.Rptr.2d 223] The Renfrew court places the same emphasis on the CLAM footnote as did the Leaf court, but candidly and correctly notes it is dicta. (Id. at p. 1108, 222 Cal.Rptr. 413.) The Renfrew court found the reasoning of Leaf and Ellis " logical and persuasive," declaring that a lawyer's " livelihood is based on the utilization of time and skill, for which he or she receives compensation" and concluding that a lawyer who uses his or her time and skill to prosecute or to defend an action in essence suffers a loss of income. (Id. at p. 1109, 222 Cal.Rptr. 413.)
Other courts have also correctly noted that the CLAM footnote is only dicta. (See, e.g., Jacobson v. Simmons Real Estate (1994) 23 Cal.App.4th 1285, 1291, 28 Cal.Rptr.2d 699, and Hambrose Reserve, Ltd. v. Faitz (1992) 9 Cal.App.4th 129, 131, 11 Cal.Rptr.2d 638.)
Citing Smith v. Mt. Diablo Unified Sch. Dist. (1976) 56 Cal.App.3d 412, 418, 128 Cal.Rptr. 572, and In re Olson (1974) 37 Cal.App.3d 783, 789, 112 Cal.Rptr. 579, the Renfrew court elevated the CLAM footnote's dicta into authority for rejecting the Sten rule, finding it to be " persuasive and entitled to substantial weight." This approach is erroneous as it disregarded the precedential effect of the Sten case and thus undercut the doctrine of stare decisis.
The Renfrew court's authority for its approach does not withstand close scrutiny. The Smith case holds that " Although not controlling, the dicta is entitled to substantial weight, particularly in view of its thoroughness. [Citations]." (Smith v. Mt. Diablo Unified Sch. Dist., supra, 56 Cal.App.3d at p. 418, 128 Cal.Rptr. 572.) In re Olson notes that " even though the statements alluded to [in In re Prewitt (1972) 8 Cal.3d 470, 105 Cal.Rptr. 318, 503 P.2d 1326] do not possess the force of a square holding[,] [t]hey are persuasive and were concurred in by the whole court after careful consideration [and,] [a]ccordingly, they are entitled to great weight. [Citation.]" (In re Olson, supra, 37 Cal.App.3d at p. 789, 112 Cal.Rptr. 579.)
It can hardly be argued that the CLAM footnote's aside about the logic of Sten and its progeny is a thorough exposition on the rationale for allowing or disallowing the payment of fees to lawyers who appear pro se. At best, it is a reflection that the logic of the earlier decision is open to question. At most, it is a rhetorical question. It certainly is not a determination that the Sten case is overruled. Moreover, CLAM, supra, 25 Cal.3d 891, 160 Cal.Rptr. 124, 603 P.2d 41, is a decision from a divided court. Justice Mosk authored the lead opinion. Justice Newman wrote a concurring and dissenting opinion, joined in by Chief Justice Bird and Justice Tobriner, expressing his agreement with several parts of Justice Mosk's opinion, including the portion in which the footnote appeared. As the concurring opinion does not even refer to the salient footnote, it is fair to state that the footnote does not express a view concurred in by " the whole court." (In re Olson, supra, 37 Cal.App.3d at p. 789, 112 Cal.Rptr. 579.)
Nevertheless, the Renfrew court concluded that it could " find no justification for ... a rule [denying a pro se lawyer attorney's fees]. Equity and common sense dictate our conclusion that appellant Renfrew should not be denied compensation for the reasonable value of her time as attorney in litigating her own claim against respondent." (Renfrew v. Loysen, supra, 175 Cal.App.3d at pp. 1109-1110, 222 Cal.Rptr. 413.) We disagree. A court's desire to do " the right thing" cannot allow it to depart from an explicit holding of the Supreme Court.
The Renfrew court noted that in Sten, the Supreme Court " expressly refused to decide whether the rule denying fees to an attorney appearing in his own behalf was a desirable one, but rather felt compelled to follow the rule under the precedent of two earlier cases." (Id. at p. 1108, 222 Cal.Rptr. 413.) The Renfrew court then purported to distinguish these two cases, noting that one was a condemnation case in which the landowners [34 Cal.Rptr.2d 224] hired lawyers based on a contingency which never occurred so that no liability for attorney's fees ever attached (City of Long Beach v. O'Donnell (1928) 91 Cal.App. 760, 762, 267 P. 585) and that the second involved a foreclosure initiated and handled by a mortgagee who was also a lawyer ( Patterson v. Donner (1874) 48 Cal. 369). Significantly, in Patterson v. Donner, the Supreme Court noted that " We do not think that the stipulation in the mortgage sued on, for counsel fee, can apply where no counsel fee was paid by the plaintiff." A mortgage is certainly a contract and it is not distinguishable from any other contract insofar as it allows for the recovery of attorney's fees. Therefore, we can hardly understand how the claim for fees in a foreclosure action is different from the claim on the contract at issue in the Renfrew case. In both situations, lawyers acted for themselves to recover money, but incurred no liability for attorney's fees to a third person. Therefore, Patterson v. Donner, supra, 48 Cal. 369, 380, relied on by the Sten court, is precedent for the disallowance of attorney's fees to a pro se lawyer suing on an engagement contract for the recovery of fees.
From the foregoing review, it is clear that the recent departure from Sten stems from one footnote which pondered the reasons for the Sten holding. The Courts of Appeal in Leaf v. City of San Mateo and Renfrew v. Loysen seized on the footnote to convert what is conceded dicta into a new and different rule of law. We respectfully submit that dicta cannot subvert the clear rule of Sten no matter how reluctant the Supreme Court may have been when it first rendered that rule.
The operative and controlling principle is that the ratio decidendi of a Supreme Court opinion is fully binding as precedent of the lower courts of this state. " The ratio decidendi is the principle or rule which constitutes the ground of the decision, and it is this principle or rule which has the effect of a precedent. It is therefore necessary to read the language of an opinion in light of its facts and the issues raised, to determine (a) which statements of law were necessary to the decision, and therefore binding precedents, and (b) which were arguments and general observations, unnecessary to the decision, i.e., dicta, with no force as precedents. [Citations.]" (9 Witkin, Cal. Procedure (3d ed. 1985) Appeal § 783, p. 753, emphasis in original.)
The specific holding in Sten is that a lawyer appearing pro se may not recover attorney's fees for services rendered on the lawyer's own behalf for self-representation. Justice Mosk's generalized ruminations about the logic of the Sten case were not necessary to the determination of CLAM and cannot serve as authority for reversing Sten. As already explained, CLAM involved a layperson appearing before the PUC (CLAM, supra, 25 Cal.3d at p. 897, 160 Cal.Rptr. 124, 603 P.2d 41), not a lawyer appearing in pro se, and fees were allowed pursuant to the common fund doctrine, not according to any contractual or statutory provision. It is significant that practice before the PUC is not limited to admitted lawyers, but is open to laypersons who may appear on behalf of others. (Id. at pp. 913-914, 160 Cal.Rptr. 124, 603 P.2d 41.) In sum, CLAM is inapposite to Sten; it is sui generis.
Laypersons are not allowed attorney's fees if they appear pro se. (Jacobson v. Simmons Real Estate, supra, 23 Cal.App.4th at pp. 1290-1294, 28 Cal.Rptr.2d 699.)
The Fourth Appellate District followed Renfrew and Leaf in Dameshghi v. Texaco Refining & Marketing, Inc. (1992) 3 Cal.App.4th 1262, 1290, 6 Cal.Rptr.2d 515. In an attempt to minimize the value of the precedent arrayed against its decision, the Dameshghi court noted the CLAM footnote and observed that the Supreme Court had " allowed an attorney [ sic ] acting pro se to recover attorney fees as part of an award under the common fund doctrine." (Id. at p. 1290, fn. 17, 6 Cal.Rptr.2d 515.) Thus, Justice Mosk's footnote is now being incorrectly attributed to a decision allowing attorney's fees to a lawyer, when, in fact, the award was in favor of a layperson. It appears to us it is time to bring this fiction to a halt before dicta swallows the doctrine of stare decisis.
Notwithstanding any equitable or pragmatic reasons that influenced other Courts of Appeal to depart from the rule in Sten, we believe we are constrained to follow it. We, [34 Cal.Rptr.2d 225] therefore, decline to address Trope and Trope's policy arguments against the Sten rule or the contrary holdings made by courts in other states. (See, in general, Annot. (1977) 78 A.L.R.3d 1119.) These points are best addressed by our Supreme Court should it decide to revisit its holding in Sten.
As an intermediate appellate court, we are bound to decide questions of law according to Supreme Court precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937; In re Christopher A. (1991) 226 Cal.App.3d 1154, 1160-1161, 277 Cal.Rptr. 302.) Leaf v. City of San Mateo , supra , 150 Cal.App.3d 1184, 198 Cal.Rptr. 447, and Renfrew, supra, 175 Cal.App.3d 1105, 222 Cal.Rptr. 413, are not controlling and are contrary to an established rule of law. Trope and Trope's claim that our Supreme Court's decisions to decline to review those two opinions is a validation of their holdings is without merit. In People v. Triggs (1973) 8 Cal.3d 884, 890-891, 106 Cal.Rptr. 408, 506 P.2d 232, the Supreme Court stated: " [W]e declare that our refusal to grant a hearing in a particular case is to be given no weight insofar as it might be deemed that we have acquiesced in the law as enunciated in a published opinion of a Court of Appeal when such opinion is in conflict with the law as stated by this court. Our statements of law remain binding on the trial and appellate courts of this state [citations] and must be applied wherever the facts of a case are not fairly distinguishable from the facts of the case in which we have declared the applicable principle of law. Our refusal to grant a hearing in any given case must not be deemed a sub silentio overruling of our prior decisions. ‘ The significance of such refusal is no greater than this— that this court does not consider that the interests of justice, or the purposes for which the power [to grant a hearing] was given, require its exercise in the particular case.’ [Citations.]" (Emphasis in original; see also Camper v. Workers' Comp. Appeals Bd. (1992) 3 Cal.4th 679, 689, fn. 8, 12 Cal.Rptr.2d 101, 836 P.2d 888, and Advisory Com. Comment, Cal. Rules of Court, rule 28.)
Accordingly, we affirm the order of the trial court disallowing Trope and Trope attorney's fees.
Trope and Trope argues that Sten may be easily circumvented by an attorney who simply assigns his or her cause of action to a third person, such as the attorney's secretary, who would then hire the attorney to prosecute the claim. If the putative assignee prevails in the action, the assignee can recover for the claim and attorney's fees for the work done by the lawyer, money which the assignee would then transfer to the lawyer. Trope and Trope contends this strategy would allow the attorney to recover for the claim and attorney's fees even though the assignment is a sham. In our view, that scenario would constitute a fraud on the court because the assignee, at the behest of counsel, would falsely be representing that the cause of action belonged to him or her. Quite apart from the potential disciplinary actions such conduct could trigger (Bus. & Prof.Code, § 6068, subd. (d) [it is an attorney's duty " never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact" ]), once it was established that the assignment was an artifice, a court would find that Sten's holding still controlled.
II
Trope and Trope also attacks the trial court's computation of the amount of prejudgment interest to which it was entitled. To reach its determination, the court first subtracted Katz's $118,500 malpractice award from the $163,000 breach of contract award to Trope and Trope. The court then allowed 7 percent on this sum ($44,500) from December 1, 1989, the date Trope and Trope filed its complaint, to May 15, 1992, the date judgment was entered. Trope and Trope now contends that the trial court erred in awarding prejudgment interest only upon the difference between its liquidated recovery and Katz's unliquidated recovery. Trope and Trope urges that the prejudgment interest should have been based upon its full recovery of $163,000.
Precedent fully supports the trial court's decision. " It is settled that when a plaintiff sues for a liquidated sum and the defendant establishes an offsetting claim based upon ... defective performance of the same contract by the plaintiff, the amount of the former is to be offset against the latter as of the due date of the original debt and only the [34 Cal.Rptr.2d 226] balance bears interest. (Hansen v. Covell [1933] 218 Cal. 622, 629 [24 P.2d 772].)" (Burgermeister Brewing Corp. v. Bowman (1964) 227 Cal.App.2d 274, 285, 38 Cal.Rptr. 597, emphasis omitted; see also this division's opinion in Leaf v. Phil Rauch, Inc. (1975) 47 Cal.App.3d 371, 120 Cal.Rptr. 749 and cases cited at p. 376, 120 Cal.Rptr. 749.)
III
Because we reject Trope and Trope's contentions of error and, therefore, affirm the trial court's order, Katz is the prevailing party upon this appeal. (See rule 26(a), Cal. Rules of Court.) Anticipating this result, Katz, citing the attorney's fees provisions in the retainer agreement, seeks an award of attorney's fees on appeal. We believe that the trial court is in the best position to determine (1) whether the retainer agreement entitles Katz to recover attorney's fees on appeal; and (2) if so, the amount thereof. We, therefore, will remand the cause to the trial court to make those determinations. (See, e.g., Citizens Assn. for Sensible Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151, 176-177, 217 Cal.Rptr. 893.)
DISPOSITION
The order appealed from is affirmed and the matter is remanded to the trial court solely to rule upon Katz's request for attorney's fees on appeal.
HASTINGS, J., concurs.
ARLEIGH M. WOODS, Presiding Justice concurring.
I join in the conclusion reached by the majority. With all due respect to the Courts of Appeal which have understandably departed from the rule in City of Long Beach v. Sten (1929) 206 Cal. 473, 274 P. 968, Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937, compels the result reached here by the majority.
I write separately, however, to argue in support of allowing attorneys to recover fees when appearing on their own behalf, and to urge the Supreme Court to take this issue.
As has been stated by those courts which have awarded compensation to attorneys appearing in pro. per., an inappropriate windfall results when a party is allowed to escape its obligation to pay attorney fees simply because the attorney's opponent chose to rely on his or her own skills rather than to employ another attorney. Further, an attorney or law firm, in rendering service for itself, potentially incurs as much pecuniary loss as it would had it employed outside counsel.
The argument as to why an attorney should be paid in this situation when other pro. per.'s are not, is easily met. The pro. per. who is not an attorney by profession does not have the same skills, established billing rate nor is that pro. per. an officer of the court or a person bound by the legal ethics of the profession.
The argument for allowing compensation to the attorney pro. per. is equally compelling. An attorney has only time and the skills of the profession by which to earn a livelihood and as Justice Mosk observed in his now infamous footnote, the time spent in preparing and presenting one's own case " is not somehow rendered less valuable" because the attorney is representing him or herself rather than a third party. Frequently a better and less costly defense can be mounted by the attorney-party who is already familiar with the litigation. Such attorney fees should be allowed.
Nor is there any merit to Trope and Trope's claim that Sten has been superseded by the enactment of Civil Code section 1717. The sole purpose of that statute is to transfer a unilateral contractual right to attorney's fees into a reciprocal provision so that the right to recover those fees flows to whichever party prevails in the action on the contract. (See, e.g., Associated Convalescent Enterprises v. Carl Marks & Co., Inc. (1973) 33 Cal.App.3d 116, 120, 108 Cal.Rptr. 782.) Nothing in the statute even touches upon the issue of a pro se lawyer's right to recover attorney's fees. Enough said.
" In any inverse condemnation proceeding brought for the taking of any interest in real property, the court rendering judgment for the plaintiff by awarding compensation for such taking, or the attorney representing the public entity who effects a settlement of such proceeding, shall determine and award or allow to such plaintiff, as part of such judgment or settlement, such sum as will, in the opinion of the court or such attorney, reimburse such plaintiff for his reasonable costs, disbursements, and expenses, including reasonable attorney, appraisal, and engineering fees, actually incurred because of such proceeding."
Ellis does nothing to overcome the precedential value of Sten as it involved a federal civil rights lawsuit based upon a foreclosure action in Hawaii, a state which apparently had not yet addressed the issue of whether attorney's fees could be awarded to lawyers who represented themselves. (Id., fn. 2 at p. 230.)