NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

JACKSON, J.

INTRODUCTION

Plaintiff Martin Juknavorian appeals a judgment awarding attorney's fees and costs to defendant Sands & Associates. We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff filed this action against defendant for malpractice, alleging defendant was negligent in representing him in a marital dissolution action. At the same time, he filed a document indicating he was rejecting an arbitration award in favor of defendant for attorney's fees. After various proceedings, the trial court sustained defendant's demurrer without leave to amend and dismissed the action. The court explained that "[p]laintiff failed to timely file a complaint for a request for a trial de novo for excessive legal fees after non-binding arbitration and such time has now passed." Additionally, it found the malpractice action was barred by the statute of limitations. Plaintiff appealed. On appeal, we held the trial court correctly found both the malpractice action and the action for attorney's fees were time-barred. (Juknavorian v. Sands & Associates (Apr. 22, 2009, B207759) [nonpub. opn.].)

After the remittitur issued, defendant filed a motion for attorney's fees and costs under the attorney's fees provision in its contract with plaintiff. Plaintiff opposed the request for attorney's fees on the ground defendant was self-represented. The trial court, after noting plaintiff opposed only the request for attorney's fees and not the request for costs, awarded defendant attorney's fees of $20,147.50 and costs of $3,581.87.

DISCUSSION

In examining the propriety of the trial court's award of attorney's fees under Civil Code section 1717 (section 1717), there are four cases which assist in the resolution of the issue. In Trope v. Katz (1995) 11 Cal.4th 274, 292, the Supreme Court held "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." The court explained that section 1717 was enacted "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. [Citations.] 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 cannot 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." (Trope, supra, at pp. 285-286, italics omitted.)

Thereafter, in PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, the Supreme Court addressed the question "whether an entity that is represented by in-house counsel may recover attorney fees under Civil Code section 1717." (PLCM Group, Inc., supra, at p. 1088.) It answered that question in the affirmative, concluding that "[l]ike private counsel, in-house counsel stand in an attorney-client relationship with the corporation and provide comparable legal services." (Ibid.)

The court distinguished Trope, explaining that "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. . . . 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 private firm on a retainer." (PCLM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1093, fn. omitted.)

In Gilbert v. Master Washer & Stamping Co. (2001) 87 Cal.App.4th 212, 220, the court held that "an attorney litigant represented by other attorneys in his firm[] is not a litigant in propria persona and thus Trope does not bar his recovery of reasonable attorney fees under Civil Code section 1717." The court explained that the attorney litigant incurs fees within the meaning of section 1717 because he or she "will experience a reduced draw from the partnership (or a reduced salary from the professional corporation) to account for the amount of time his or her partners or colleagues have specifically devoted to his or her representation, or absorb a share of the reduction in other income the firm experiences because of the time spent on the case. This is different from the `opportunity costs' the attorney loses while he or she is personally involved in the same case, because the economic detriment is caused not by the expenditure of his or her own time, but by other attorneys working on his or her behalf." (Gilbert, supra, at p. 221.)

Finally, in Witte v. Kaufman (2006) 141 Cal.App.4th 1201, the court addressed the question whether a law firm whose members successfully represented it on a special motion to strike pursuant to Code of Civil Procedure section 425.16 was entitled to attorney's fees under that section. The court concluded the law firm, KLA, was not entitled to attorney's fees. (Witte, supra, at p. 1211.) It explained that, "unlike PLCM Group and Gilbert, but like Trope, there is no attorney-client relationship between KLA and its individual attorneys. The individual KLA attorneys are not comparable to in-house counsel for a corporation, hired solely for the purpose of representing the corporation. The attorneys of KLA are the law firm's product. When they represent the law firm, they are representing their own interests. As such, they are comparable to a sole practitioner representing himself or herself. Where, as in Gilbert, an attorney is sued in his or her individual capacity and he obtains representation from other members of his or her law firm, those other members have no personal stake in the matter and may, in fact, charge for their work. Not so with a law firm that is sued in its own right and appears through various members. [¶] Here, KLA incurred no attorney fees in bringing its motion to strike, because all the work was done by members of the firm on their own behalf. Thus, KLA [was] not entitled to attorney fees." (Ibid.)

Here, in awarding attorney's fees to defendant, the trial court noted plaintiff's reliance on Witte but explained that Witte "actually holds: `[A] self-represented firm or individual attorney may retain outside counsel for assistance, and the fees incurred for the outside representation are recoverable.'" [¶] This Motion for Attorney's Fees is brought ONLY by Sands & Associates. The individuals were not brought into the case, however they did represent Sands & Associates during the entire proceedings—arbitration, State Bar Hearings and this case. The claim is that [Heleni E.] Suydam did most of the work. She and Leonard Sands are `of counsel' to Sands & Associates. In [PCLM Group, Inc. v. Drexler, supra, 22 Cal.4th 1084], the California Supreme Court . . . revisited the attorney fee issue and held a corporate litigant was entitled to recover attorney fees for work performed by in-house counsel, even though such counsel were employees of the corporate litigant. Therefore, the fees of Mr[.] Sands and Ms[.] Suydam are recoverable."

In determining whether the award of attorney's fees was proper, our focus is not on whether the motion was brought by defendant Sands & Associates, as opposed to individual members of the firm (Witte v. Kaufman, supra, 141 Cal.App.4th at p. 1211), but on whether Ms. Suydam and Mr. Sands stood in an attorney-client relationship with defendant, and defendant was seeking to recover the cost of their services, as opposed to the attorneys' lost opportunity costs (PCLM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1093).

Sands & Associates' letterhead lists two members, Ada P. Sands and Vincent S. Gannuscio. Heleni E. Suydam and Leonard S. Sands are listed as "of counsel."

In Ms. Suydam's declaration in support of the motion for attorney's fees and costs, she stated: "I am an attorney with Sands and Associates . . . ." She further stated: "Defendant has incurred $20,147.50 in attorneys fees . . . in this action. . . . This total was calculated by the hourly rate of a paralegal $150.00/hour who billed 2.75 hours in this matter; 2 associate attorneys at $300.00/hour who billed 11.25 hours in this matter and my hourly rate of $350.00/hour with 46.95 hours billed in this matter."

Plaintiff argues, based on Ms. Suydam's statements in her declaration, that "[i]t is obvious" that her "of counsel" status "is a sham and not a reality here. Accordingly, Ms. Suydam, is clearly associated with Sands & Associates and not sufficiently independent to be outside counsel and to allow Sands & Associates to recover attorneys [fees] for its work on behalf of itself."

While we disagree that Ms. Suydam's declaration makes it "obvious" that her "of counsel" status "is a sham," we cannot conclude to the contrary that her declaration establishes that her "of counsel" status is a "reality." Neither the firm's letterhead nor Ms. Suydam's declaration spells out the nature of the "of counsel" relationship, i.e., whether Ms. Suydam and Mr. Sands work independently of Sands & Associates and bill the firm for work they do on its behalf, or whether they are in actuality part of the firm. Furthermore, the declaration does not identify the paralegals and associate attorneys who worked on the case and specify whether or not they are employees of Sands & Associates.

The "loose language" in Ms. Suydam's declaration simply is insufficient to establish the existence of an independent attorney-client relationship between Ms. Suydam and Mr. Sands and defendant (cf. Koo v. Rubio's Restaurants, Inc. (2003) 109 Cal.App.4th 719, 729), and that defendant was seeking to recover the cost of their services, as opposed to the attorneys' lost opportunity costs (PCLM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1093). In the absence of evidence establishing defendant's entitlement to attorney's fees under section 1717, the trial court erred in making the award.

DISPOSITION

The order is reversed. Plaintiff is to recover costs on appeal.

We concur:

PERLUSS, P. J.

ZELON, J.