Filed 5/16/22 Rosen v. Century Law Group CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
JONATHAN ROSEN, B309991
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC650926)
v.
CENTURY LAW GROUP, LLP, et
al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los
Angeles County, Monica Bachner, Judge. Affirmed.
Jonathan Rosen, in pro. per., for Plaintiff and Respondent.
Century Law Group and Karen A. Larson for Defendants
and Appellants.
INTRODUCTION
Defendants and appellants Century Law Group (CLG) and
Edward Lear (Lear) (collectively, CLG) appeal from an order
denying their motion for attorneys’ fees. CLG contends the trial
court erred in denying its motion because: (1) the retainer
agreement between CLG and plaintiff and respondent Jonathan
Rosen (Rosen) contains a prevailing party attorneys’ fee
provision; and (2) that CLG was represented by an attorney who
was “of counsel” for CLG does not preclude an award of attorneys’
fees under Civil Code section 1717. For the reasons discussed
below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2015, Rosen retained CLG to defend him in a
legal malpractice lawsuit. The retainer agreement between CLG
and Rosen contained an attorneys’ fees clause, which provided: “If
any action at law or in equity, in court or in arbitration, is
necessary to enforce or interpret the terms of this Retainer
Agreement, the prevailing party shall be entitled to reasonable
attorneys’ fees (including fees for services rendered by our law
firm’s attorneys, waiving any contrary holding in Trope v. Katz
(1995) 11 Cal.4th 274)[1] incurred by our law firm, costs and
necessary disbursements, in addition to any other relief to which
it may be entitled.”
Rosen subsequently sued CLG, alleging causes of action for
professional negligence, breach of contract, and breach of
1 In Trope v. Katz (1995) 11 Cal.4th 274, 278 (Trope), our
Supreme Court held that an attorney litigant who proceeds in
propria persona rather than retaining another attorney may not
recover reasonable attorneys’ fees under Civil Code section 1717.
2
fiduciary duty. Following a bench trial, the trial court entered
judgment in favor of CLG.2 The final judgment provided, in part:
“Final Judgment is entered in favor of the Defendants, [CLG],
and [Lear] and against Plaintiff [Rosen]. [Rosen] is to recover
nothing . . . , Defendants are to recover $9,498.19 plus interest.
The Court shall reserve jurisdiction to award attorneys’ fees, if
recoverable, and court costs, and to effectuate this judgment.
Defendant[s] [are] entitled to $6,188.59 [in] cost[s]. Judgment is
entered on the cross-complaint on behalf of [CLG] and [Lear] and
against Plaintiff [Rosen].”
CLG moved for $216,610 in attorneys’ fees incurred in
defending CLG against Rosen’s claims pursuant to Civil Code
section 1717. CLG supported its motion with a declaration from
its attorney, Karen Larson,3 and billing records. Ms. Larson
declared “[t]he number of hours [she] incurred defending Mr.
Lear and the firm is 471 hours.”
After the trial court issued a tentative ruling denying
CLG’s motion, CLG filed a request for clarification, asking the
court to “articulate whether the Trope waiver applies to fees
incurred on the basis that 1. Defendants prevailed against
Plaintiffs’ lawsuit on three causes of action; and 2[.] Defendants
prevailed on their cross-complaint for breach of contract.”
2 We affirmed the judgment in an unpublished opinion. (See
Rosen v. Century Law Group (March 18, 2022, B306323) [nonpub.
opn.].)
3 In her declaration in support of CLG’s motion for attorneys’
fees, Ms. Larson declares she is “associated with CLG as an
independent contractor.” In its opening brief on appeal, CLG
states Ms. Larson is “of counsel with CLG.”
3
Following a hearing,4 the trial court denied CLG’s motion for
attorneys’ fees in a written order, concluding “the gravamen of
the case was the underlying legal malpractice claim, thus
Defendants are not entitled to attorney’s fees.” It further held:
“Even if the lawsuit was on the contract, Defendants are not
entitled to legal fees as they are self-represented litigants.”
CLG filed a motion for reconsideration, again seeking
clarification regarding whether the Trope waiver was enforceable.
The record on appeal does not appear to contain opposition or
reply papers, nor does it contain a ruling on the motion for
reconsideration.
CLG timely appealed from the order denying its motion for
attorneys’ fees.
DISCUSSION
A. Applicable Law and Standard of Review
Civil Code section 1717, subdivision (a) provides: “In any
action on a contract, where the contract specifically provides that
attorney’s fees and costs, which are incurred to enforce that
contract, shall be awarded either to one of the parties or to the
prevailing party, then the party who is determined to be the
party prevailing on the contract . . . shall be entitled to
reasonable attorney’s fees in addition to other costs.”
“Generally, an order granting or denying an award of
attorney fees is reviewed under the abuse of discretion standard
of review. [Citation.] However, the determination of whether the
criteria for an award of attorney fees and costs have been met is a
question of law for our de novo review. [Citations.] As for any
4 The hearing apparently was unreported.
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disputed factual issues, the trial court’s findings are reviewed
under the substantial evidence rule and must be affirmed if
supported by substantial evidence. [Citation.]” (Soni v. Wellmike
Enterprise Co. Ltd. (2014) 224 Cal.App.4th 1477, 1481.)
B. The Trial Court Did Not Err by Denying CLG’s
Motion for Attorneys’ Fees
CLG contends it is entitled to fees as a prevailing party in
the underlying action based on the attorneys’ fee provision in the
retainer agreement. Rosen counters that fees are not authorized
in a legal malpractice action, citing Loube v. Loube (1998) 64
Cal.App.4th 421 (Loube). We agree with Rosen.
In Loube, supra, 64 Cal.App.4th 421, plaintiffs sued their
former attorneys for professional negligence, constructive fraud,
breach of fiduciary duty and breach of contract. (Id. at p. 425.)
After the court entered judgment in favor of the defendant
attorneys, they moved for attorneys’ fees based on a fee provision
in their retainer agreement. (Ibid.) “The retainer agreement
between [plaintiffs] and [defendant attorneys] contained a
narrowly drawn attorney fee provision, more or less adopting the
language of Civil Code section 1717: ‘[I]f legal action or
arbitration is necessary to enforce the terms of this Agreement,
the prevailing party shall recover reasonable attorneys’ fees.’” (Id.
at p. 429.) The Loube court concluded that, although professional
negligence constitutes “both a tort and a breach of contract,”
plaintiffs did not “bring a suit ‘on the contract.’” (Ibid.) The court
reasoned: “Here, although the parties had a contractual
relationship, and [plaintiffs’] claim for legal negligence arose from
the relationship between them, which relationship was founded
on a contract, the cause of action sounded in tort and was no
more ‘on the contract’ than a claim for breach of fiduciary duty or
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for fraud involving a contract. It follows that Civil Code section
1717 provides no basis for an award of attorney fees.” (Id. at p.
430)
CLG’s attempt to distinguish Loube is unavailing. First,
CLG claims (without any explanation) that the fee provision in
the retainer agreement between CLG and Rosen is “broader”
than that in Loube. The attorneys’ fee provision in Loube,
however, is nearly identical to the one here, as the trial court
noted; both are narrowly drawn and largely adopt the language of
Civil Code section 1717. Second, we reject CLG’s argument that
the action was “on the contract” because the operative complaint
included a claim for breach of contract whereas in Loube,
plaintiffs tried only the professional negligence claim.5 Rosen’s
breach of contract claim was entirely premised on the malpractice
claim. Specifically, the complaint alleged CLG breached the
contract by “failing to provide [Rosen] with competent legal
services.” We therefore agree with the trial court that the
gravamen of the action was for legal malpractice, and therefore
the action was not “on a contract” containing an attorneys’ fee
provision. (See, e.g., Hyduke’s Valley Motors v. Lobel Financial
Corp. (2010) 189 Cal.App.4th 430, 436 [“mere fact [ ] complaint
pleaded a breach of contract cause of action is not dispositive” of
whether the action was “on a contract” for purposes of Civil Code
section 1717].)
5 We note the published portion of the opinion in Loube does
not, in fact, discuss why the other causes of action brought by the
plaintiffs, including a cause of action for breach of contract, were
omitted in the discussion of attorneys’ fees. The professional
negligence claim may have been the only claim tried, as CLG
contends, but it is unclear from the published portion of the
opinion.
6
Moreover, CLG argues even if Rosen’s complaint was not
an action “on a contract,” it is nevertheless entitled to attorneys’
fees as a prevailing party on its cross-complaint for breach of
contract. CLG failed, however, to provide the trial court with
evidence from which it could apportion fees for time spent on
prosecuting the cross-complaint. To the contrary, Ms. Larson
does not claim to have expended any hours prosecuting the cross-
complaint. As discussed above, Ms. Larson declares all hours
expended on the matter were spent “defending” CLG.6
Accordingly, we conclude Rosen’s complaint against CLG
was not “on a contract” for purposes of Civil Code 1717, and CLG
failed to submit evidence of any fees incurred in prosecuting its
cross-complaint for breach of contract. CLG therefore has not
demonstrated an entitlement to an award of fees. Because these
conclusions are dispositive, we need not address the remaining
issues CLG raises (i.e., whether the Trope waiver in the retainer
agreement is enforceable, or alternatively, whether the facts of
Trope, supra, 11 Cal.4th 274, are distinguishable).
6 It does not appear Ms. Larson drafted the cross-complaint.
According to the “Case Summary,” CLG filed the cross-complaint
on October 25, 2017 (the cross-complaint is not in the record on
appeal). According to Ms. Larson’s billing records, she did not
begin work on the case until 2019.
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DISPOSITION
The order is affirmed. Rosen is awarded his costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J.
We concur:
MANELLA, P.J.
COLLINS, J.
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