Jacobson v. Simmons Real Estate

• Decision Date: 28 March 1994
• Docket Number: No. C016159,C016159
• Citation: 28 Cal.Rptr.2d 699,23 Cal.App.4th 1285
• Court: California Court of Appeals Court of Appeals
• Parties: Eric JACOBSON, Plaintiff and Appellant, v. SIMMONS REAL ESTATE, Defendant and Respondent.

Page 699

28 Cal.Rptr.2d 699

23 Cal.App.4th 1285

Eric JACOBSON, Plaintiff and Appellant, v. SIMMONS REAL ESTATE, Defendant and Respondent.

No. C016159.

Court of Appeal, Third District, California.

March 28, 1994.

[23 Cal.App.4th 1288] Eric Jacobson, in pro. per.

Shepard & Haven, Mark A. Hurst, Nancy L. Dye and Karen E. Halbo, Sacramento, for defendant and respondent.

SIMS, Associate Justice.

Plaintiff obtained a judgment against defendant for breach of a written contract and was awarded his costs. Although he is not an attorney and appeared in the action pro se, plaintiff sought an award of attorney fees pursuant to the attorney fee clause of the contract for the time he spent on the case. The trial court declined to award the requested fees. On appeal, plaintiff contends he was entitled to a fee award as a matter of law, the denial of fees violates his state and federal rights to due process and equal protection, and the amount of his fee request was reasonable. We affirm.

FACTS AND PROCEDURAL BACKGROUND

Plaintiff rented a storage locker from defendant. During a seven-year period, plaintiff made numerous late payments of rent Plaintiff filed a complaint in propria persona, and the matter was ordered to judicial arbitration. Plaintiff retained an attorney to represent him in that proceeding. The arbitrator found that defendant had systematically received plaintiff's late payments and was estopped from demanding strict compliance with the terms of the rental agreement. Plaintiff was awarded $1500.00 "together with costs of suit as submitted by cost bill." The award was entered as a judgment on October 28, 1992, and notice of entry of judgment was mailed the same day.

which were accepted [23 Cal.App.4th 1289] by defendant. However, when plaintiff fell behind in rent in April 1986, defendant entered his locker without prior notice to plaintiff and sent its contents to an auction house which consigned the items to a landfill.

On November 16, 1992, plaintiff filed a memorandum of costs which was untimely under the 15-day limit of rule 870 of the California Rules of Court. (Further references to Rules are to the California Rules of Court.) Plaintiff noticed a motion for attorney fees of $2,138.95 for work performed by his counsel, plus $5,900 in "fees compensating plaintiff for his labor in self-representation...." The motion was based on Code of Civil Procedure section 1033.5, subdivision (a)(10)(A), which allows attorney fees when authorized by contract, and the South Davis Storage Rental Agreement (Rental Agreement) which provided: "If it shall become necessary for either party hereto to engage attorneys to institute legal action for the purpose of enforcing its rights hereunder or for the purpose of defending legal action brought by the other party hereto, the party or parties prevailing in such litigation shall be entitled to receive all costs, expenses and fees (including reasonable attorney's fees) incurred by it in such litigation (including appeals)." The motion also relied on the decision in Consumers Lobby Against Monopolies v. Public Utilities Com. (1979) 25 Cal.3d 891, 160 Cal.Rptr. 124, 603 P.2d 41 (CLAM ).

On November 20, 1992, defendant noticed a motion to tax certain of plaintiff's costs. Plaintiff filed his opposition the day before the scheduled hearing, which was untimely under rule 317(a) which requires that papers opposing a motion must be filed five days prior to the hearing. The trial court excused the untimely filings pursuant to Code of Civil Procedure section 473, awarded plaintiff various costs and the attorney fees claimed on behalf of his counsel, and omitted to award any funds for plaintiff's self-representation. Plaintiff appeals.

DISCUSSION

I

Before considering plaintiff's substantive arguments, we consider his contention the trial court failed to give his fee request due consideration because it ruled on the merits of the request immediately after deciding that plaintiff's untimely filings were excusable under Code of Civil Procedure section 473. The point lacks merit.

The trial court received plaintiff's opposition to the motion to tax costs on December 9, 1992, the day before the scheduled hearing. During a conversation with a court employee, plaintiff was informed that the court would not consider the opposition because it was not filed a sufficient number of days prior to the hearing. However, at the hearing, the trial court excused the untimely filing. Nothing in the record suggests the trial court was unfamiliar with plaintiff's untimely submission or was otherwise unprepared to rule on the fee request. Absent any indication to the contrary, we presume the trial court regularly performed its official duty and was sufficiently prepared to rule on the fee request. (Evid.Code, § 664; cf. People v. Wader (1993) 5 Cal.4th 610, 661, 20 Cal.Rptr.2d 788, 854 P.2d 80.)

II

Plaintiff contends that, as a nonattorney party who successfully represented only himself in civil litigation, he is entitled as a matter of law to fees reasonably compensating him for his efforts at self-representation. We are not persuaded.

As the prevailing party, plaintiff was statutorily entitled to recover his costs. (Code Civ.Proc., § 1032.) Recoverable costs include "Attorney fees, when authorized by The Rental Agreement provided that attorney fees are recoverable "If it shall become necessary for either party hereto to engage attorneys to institute legal action...." ¹ (Italics added.) Notwithstanding this explicit contractual language, plaintiff claims it is "now the accepted rule in California" that fees need not have been "actually incurred" through the payment of funds to a third party. The point is unavailing.

                Contract."  (Code Civ.Proc., § 1033.5, subd.  (a)(10)(A).)   Because the Rental Agreement listed attorney fees among the recoverable "costs, expenses and fees," plaintiff was entitled to recover his attorney fees as an item of costs
                

Older California decisions declared the rule that an attorney appearing pro se is not entitled to an award of attorney fees. (E.g., City of Long Beach v. Sten (1929) 206 Cal. 473, 274 P. 968.) However, in Renfrew v. Loysen (1985) 175 Cal.App.3d 1105, 1107-1110, 222 Cal.Rptr. 413 the court, relying on dictum in CLAM, questioned the soundness of the rule and held that an attorney prosecuting his own contractual claim pro se is entitled to attorney fees under Civil Code section 1717. (Pp. 1109-1110; see Hambrose Reserve, Ltd. v. Faitz (1992) 9 Cal.App.4th 129, 131, 11 Cal.Rptr.2d 638; Leaf v. City of San Mateo (1984) 150 Cal.App.3d 1184, 1187-1189, 198 Cal.Rptr. 447.)

Plaintiff acknowledges that Renfrew involved an attorney who represented herself in litigation, but claims there is "no well-reasoned basis for a rule which allows awards of contractually-based attorney's fees to a licensed attorney who successfully represents himself but disallows awards of contractually-based attorney's fees to a competent nonattorney who successfully represents only himself." Plaintiff is incorrect.

The "well-reasoned basis" for distinguishing between a licensed attorney who represents himself or herself and a nonattorney who does likewise is that the written contract which provides for the fee award specifies that it is an attorney fee. Plaintiff and defendant could have specified that they would be liable for "legal services fees" rather than "attorney fees," had that been their intention, but they did not do so.

Plaintiff disagrees, suggesting that the term "attorney's fees" refers to "the activity of performing legal representation" rather than to "the status of the actor as a member of the bar." Plaintiff relies on CLAM and the dissenting opinion of Justice Crosby in Atherton v. Board of Supervisors (1986) 176 Cal.App.3d 433, 440, 222 Cal.Rptr. 56, but his reliance on these authorities is misplaced.

Generally, a party is entitled to attorney fees only if specifically authorized by statute or private agreement. (Code Civ.Proc., § 1021.) There are, however, three well-established exceptions to the rule: the "common fund," "substantial benefit," and "private attorney general" theories. (CLAM, supra, 25 Cal.3d at p. 906, 160 Cal.Rptr. 124, 603 P.2d 41.) Under the common fund theory, " ' "one who expends attorneys' fees in winning a suit which creates a fund from which others derive benefits, may require those passive beneficiaries to bear a fair share of the litigation costs." ' " (Id. at p. 907, 160 Cal.Rptr. 124, 603 P.2d 41, quoting Serrano v. Priest (1977) 20 Cal.3d 25, 35, 141 Cal.Rptr. 315, 569 P.2d 1303.) CLAM held that in quasi-judicial rate reparation cases the Public Utilities Commission has discretion to award attorney fees under the "common fund" exception, and that where nonattorneys appear before the Commission in a representative capacity as permitted by Commission rules, nonattorneys may be awarded funds from the common fund. (Id. at pp. 905-909, 913-915, 160 Cal.Rptr. 124, 603 P.2d 41.) In his Atherton dissent, Justice Crosby argued that CLAM "considered the term 'attorney fees' [as used in Serrano] to be descriptive not of the person who performs a particular service but of the service Plaintiff urges us to construe the term "attorney's fees" as used in the Rental Agreement in the manner suggested by Justice Crosby. We decline to do so. The words of a contract are to be understood in their ordinary and popular sense unless used by the parties in some technical sense. (Civ.Code, § 1644; Xuereb v. Marcus & Millichap, Inc. (1992) 3 Cal.App.4th 1338, 1344, 5 Cal.Rptr.2d 154.) In ordinary usage, an "attorney" is a person "legally appointed to act for another." (American Heritage Dict. (2d college ed.) p. 140.) As stated by the majority in Atherton, supra, 176 Cal.App.3d 433, 222 Cal.Rptr. 56, "the very use of the term ' "attorney fees" presupposes that the prevailing party has been represented by an attorney.' [Citation.]" (Id. at pp. 436-437...