Common Fund, Costs: Trope Limitation Prevents Self-Represented Attorney From Obtaining Fees Under Common Fund Theory, But Routine Costs Are Awardable

The 2/6 DCA, in a scholarly opinion written by Justice Yegan, faced the questions of whether a self-represented attorney, who was also the winning party, could seek recovery of attorney’s fees and costs under the nonstatutory common fund theory.  Different answers were the conclusions on the two issues.

            In Leiper v. Gallegos, Case No. B309986 (2d Dist., Div. 6 Sept. 23, 2021) (published), the appellate court agreed with the trial court that the self-represented attorney, under the Trope limitation (although it was an open issue), could not recover almost $96,000 in requested fees in a common fund case.  The reviewing court followed the holding of Bruno v. Bell, 91 Cal.App.3d 776, 783 (1990) to reach the result on fees with respect to pro se attorneys.    However, with respect to costs of around $3,000 (excluding attorney’s fees), the 2/6 DCA panel found no convincing reason why they could not be awarded given a pro se attorney could obtain costs under the routine costs CCP provisions.