Gogal V Deng
Filed 7/22/25
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
MICHAEL GOGAL et al., D084405
Plaintiffs, Cross-defendants and
Appellants,
(Super. Ct. No.
v. 37-2022-00017670-CU-NP-NC)
XINHUI DENG et al.,
Defendants, Cross-complainants
and Respondents.
APPEAL from an order of the Superior Court of San Diego County,
Cynthia A. Freeland, Judge. Affirmed.
Gogal Law Office and Michael Gogal, for Plaintiffs, Cross-defendants
and Appellants.
Xinhui Deng, in pro. per. and Jianhua Wu, in pro per., for Defendants,
Cross-complainants and Respondents.
The Supreme Court has held that lawyers appearing in propria persona
to litigate their own claims cannot recover prevailing party contract-based
attorney’s fees under Civil Code section 1717.1 (Trope v. Katz (1995) 11
Cal.4th 274, 280 (Trope).) The related issue presented by this appeal has
been the subject of inconsistent opinions from California appellate courts.
Where a litigant purports to retain their attorney-spouse to represent them
on a claim or defense they share with their spouse, under what
circumstances, if any, can they recover their share of prevailing party
attorney’s fees for work on the case performed by the lawyer-spouse?
In Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44
(Gorman), a nonlawyer coplaintiff unsuccessfully sought to recover contract-
based fees for services rendered by her husband-attorney in successfully
litigating a construction defect claim involving a house they coowned. The
Gorman panel assumed that a “true attorney-client relationship” did not
exist because the spouses’ interests were “joint and indivisible,” meaning the
nonattorney wife’s involvement in the case did not impact either the damages
recoverable or the work required of the husband-attorney. (Id. at p. 95.) A
few years later, in Rickley v. Goodfriend (2012) 207 Cal.App.4th 1528
(Rickley), a nonlawyer spouse sought to recover prevailing party attorney’s
fees for legal services provided by her lawyer-spouse after they jointly and
successfully prosecuted a postjudgment contempt proceeding. This time, the
authority to award fees came from a statute rather than a contract, but the
court did not rely on this distinction. Rejecting much of the analysis in
Gorman, the Rickley court concluded that the existence of an attorney-client
relationship in this context depended primarily on whether the nonattorney
consulted her spouse “in her professional capacity” and “for the purposes of
1 Subsequent undesignated statutory references are to the Civil Code.
2
obtaining legal advice.” (Rickley, at p. 1538.) The matter was remanded back
to the trial court for further findings on that issue. (Ibid.)
Plaintiffs Michael Gogal and Hildy Baumgartner-Gogal, a married
couple (tenants),2 prevailed on a retaliatory eviction claim brought under
section 1942.5 against their former landlords, defendants Xinhui Deng and
Jianhua Wu (landlords). For most of their lawsuit, tenants were represented
by Michael, a licensed attorney. Postjudgment, tenants moved under section
1942.5 to recover half of Michael’s fees billed in the case, which they
attributed to representing Hildy. Notwithstanding that the tenants provided
declarations indicating that Hildy believed she had retained Michael in his
capacity as an attorney, the trial court applied Gorman to deny this request
because tenants’ interests were “joint and indivisible,” as neither the
damages tenants sought nor the work Michael performed were impacted by
Hildy’s presence in the suit. (See Gorman, supra, 178 Cal.App.4th at p. 95.)
It might be simple to follow Gorman and merely assume fees are not
awardable because Michael represented Hildy in a litigation involving a joint
claim. But in our judgment, a more nuanced analysis is required. Indeed, as
even Gorman recognized, the critical question is whether “a true attorney-
client relationship exists between spouses.” (Gorman, supra, 178 Cal.App.4th
at p. 95.) We agree with Rickley that courts must examine the record to
determine whether such a relationship exists between spouses. They cannot
merely assume as a matter of law, irrespective of the evidence, that it does
not. Here, the trial court’s reliance on seemingly applicable language in
Gorman seems to have distracted it from making the crucial inquiry as to
the existence of an attorney-client relationship between Hildy and Michael.
2 Our subsequent use of tenants’ first names is for clarity and not
intended as any sign of disrespect.
3
We nonetheless affirm because our review of the record reveals that tenants
failed to present facts sufficient to establish the existence of a true attorney-
client relationship.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2017, tenants and landlords executed a residential lease for a
home in Carlsbad, California. After three extensions, the lease expired on
June 30, 2022. Four months earlier, tenants approached landlords about
extending the lease until June 30, 2023. A dispute quickly arose, as tenants
accused landlords of insisting on an unlawful rent increase in exchange for
the extension. This dispute, which escalated over the next few months to
include the tenants’ allegations of other unlawful conduct by landlords,
culminated in May 2022 with tenants’ filing of a civil complaint alleging a
claim of retaliatory eviction under section 1942.5.3
In December 2023, the court conducted a bench trial on tenants’ claims
and on landlords’ cross-claims for breach of contract and breach of the
implied covenant of good faith and fair dealing. The court ruled in tenants’
favor on their retaliatory eviction claim, awarding them $4,226.35 in
compensatory damages and $2,000 in punitive damages. It also ruled in
tenants’ favor on most of their other claims and on landlords’ cross-claims,
which resulted in a total judgment of $23,890.38 against landlords.
3 Tenants also brought claims for (1) breach of written contract,
(2) harassment, (3) breach of covenant of good faith and fair dealing,
(4) breach of covenant of quiet enjoyment of the premises, (5) intentional
infliction of emotional distress, (6) negligent infliction of emotional distress,
(7) negligence, (8) constructive eviction, and (9) declaratory relief. In an
amended complaint, tenants added a claim of violations of security deposit
law and bad faith. Tenants’ claim for attorney’s fees is based on judgment in
their favor on their retaliatory eviction claim; thus, we will not discuss these
other claims.
4
Shortly after judgment was entered, tenants filed a motion under
section 1942.5 to recover roughly $152,000 in attorney’s fees. Subdivision (i)
of the statute provides, “In any action brought for damages for retaliatory
eviction, the court shall award reasonable attorney’s fees to the prevailing
party if either party requests attorney’s fees upon the initiation of the action.”
The retaliatory eviction claim as alleged in tenants’ original complaint
included a request for attorney’s fees under this statute.
Tenants’ fee motion sought to recover for work performed by two
attorneys. A small portion of the requested fees consisted of $1,780 billed by
Darwin Bustarde, who rendered services throughout the case but did not
make an appearance. The lion’s share of tenants’ fee request was for work
allegedly performed by Michael on behalf of Hildy.
Tenants filed their complaint as self-represented plaintiffs, but Michael
became their attorney of record in August 2022. Licensed to practice in
California, Michael was a solo practitioner and apparent owner of the Gogal
Law Office, PC. According to Michael’s declaration filed in support of the fee
motion, in August 2022 Hildy “signed a written retainer agreement with the
Gogal Law Office, PC confirming her attorney-client relationship with
Michael Gogal . . . in this litigation. [Michael] represented [Hildy] in this
litigation from that point to the present.” Hildy similarly declared, “On
August 8, 2022, I signed a written retainer agreement with the Gogal Law
Office, PC confirming my attorney-client relationship with Michael Gogal,
Esq. in this litigation. Michael Gogal has since represented me throughout
the remainder of this litigation, including the trial of this matter, and he has
discussed this matter with me to great extent and to my full satisfaction.”
Neither declaration contained any other allegations concerning the nature of
Michael’s purported representation of Hildy.
5
Citing a billing rate of $400 per hour, tenants’ fee motion multiplied the
hours Michael worked on the case (502.2 total hours) by half his billing rate
($200) to arrive at a figure ($100,440) they believed corresponded to Hildy’s
portion of Michael’s fees for his work on the retaliatory eviction claim. They
then urged the trial court to apply a fee enhancement, or “multiplier,” under
Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132, of one-and-a-half times to
account for the difficulty of the case and Michael’s lost business
opportunities. This last step increased the requested amount of Michael’s
fees to $150,660.4
The trial court granted the tenants’ motion as to Bustarde’s fees but
denied it as to Michael’s. In rejecting tenants’ request to recover the latter,
the trial court relied primarily on Gorman, supra, 178 Cal.App.4th 44. “As
in Gorman,” the court found “no indication that [Hildy] suffered any damages
apart from those suffered by [Michael]—indeed, their interests in this matter
were joint and indivisible and flow from [landlords’] unlawful conduct
concerning the lease.” The court made no specific finding as to whether
Hildy consulted Michael for legal advice in his professional capacity.
In holding that Michael’s fees were not recoverable, the trial court also
addressed Rickley, supra, 207 Cal.App.4th 1528, on which tenants placed
substantial reliance. The court “respectfully disagree[d]” with tenants’
reading of Rickley as stating that “a non-attorney spouse in a joint
representation between the spouses may recover attorney’s fees for their
4 Although Trope, supra, 11 Cal.4th 274, dealt with contract-based fees,
tenants conceded below that it also barred an award of statutory fees for
Michael’s portion of the claim, which is why they calculated the fees for
Hildy’s portion by halving the market rate. Tenants do not take a different
position on appeal, so we assume without deciding that Trope applies to a
motion for attorney’s fees under section 1942.5.
6
spouse-attorney’s legal services so long as there is an attorney-client
relationship and the attorney’s fees are authorized by statute.” Rather than
extract this “bright-line rule,” the court read this portion of the opinion as
merely stating that “on the then-existing record . . . the trial court failed to
consider the conditions on which the [attorney-spouse] agreed to represent
her [nonattorney] spouse.”
DISCUSSION
A. Legal Framework
“California follows what is commonly referred to as the American rule,
which provides that each party to a lawsuit must ordinarily pay his own
attorney fees.” (Trope, supra, 11 Cal.4th at p. 278.) Code of Civil Procedure
section 1021 codifies this general rule but also allows for statutory
exceptions. (See also Trope, at pp. 278–279 [discussing statute].) Subdivision
(i) of section 1942.5—invoked by tenants in an attempt to recover Michael’s
attorney fees—is one such exception. As noted, this subdivision provides that
attorney’s fees “shall” be awarded to a party who prevails on a retaliatory
eviction claim so long as a party requested a fee award when the case was
initiated. (Ibid.)
“ ‘ “ ‘On review of an award [or denial] of attorney fees after trial, the
normal standard of review is abuse of discretion. However, de novo review of
such a trial court order is warranted where the determination of whether the
criteria for an award of attorney fees and costs in this context have been
satisfied amounts to statutory construction and a question of law.’ ” ’ ”
(Sandlin v. McLaughlin (2020) 50 Cal.App.5th 805, 828–829; accord, Carver
v. Chevron U.S.A., Inc. (2002) 97 Cal.App.4th 132, 142 [“it is a discretionary
trial court decision on the propriety or amount of statutory attorney fees to be
awarded, but a determination of the legal basis for an attorney fee award is a
7
question of law to be reviewed de novo”].) Accordingly, we review for legal
error whether an attorney-client relationship existed as required for Hildy to
recover Michael’s fees rendered on her behalf. (Musaelian v. Adams (2009)
45 Cal.4th 512, 520 [attorney’s fees are awardable when “there was an
attorney-client relationship, the attorney performed services on behalf of
the client, and the attorney’s right to fees grew out of the attorney-client
relationship”].) “The question of whether an attorney-client relationship
exists is one of law. [Citations.] However, when the evidence is conflicting,
the factual basis for the determination must be determined before the legal
question is addressed.” (Responsible Citizens v. Superior Court (1993)
16 Cal.App.4th 1717, 1733.)
“In determining the existence of an attorney-client relationship we
should ask whether the ‘totality of the circumstances’ so indicate.” (Koo v.
Rubio’s Restaurants, Inc. (2003) 109 Cal.App.4th 719, 732.) The focus of the
inquiry is whether a party “receiv[ed] professional services from a lawyer.”
(PCLM Group v. Drexler (2000) 22 Cal.4th 1084, 1092.) The formation of this
relationship necessarily requires the consultation of an attorney in his or her
“professional capacity.” (People v. Gionis (1995) 9 Cal.4th 1196, 1207 (Gionis)
accord, Gulf Ins. Co. v. Berger, Kahn, Shafton, Moss, Figler, Simon &
Gladstone (2000) 79 Cal.App.4th 114, 126 [“ ‘ “When a party seeking legal
advice consults an attorney at law and secures that advice, the relation of
attorney and client is established prima facie” ’ ”]; Evid. Code § 951 [“ ‘client’
means a person who, directly or through an authorized representative,
consults a lawyer for the purpose of retaining the lawyer or securing legal
service or advice from him in his professional capacity”].) That does not
mean, however, that the mere discussion of legal topics with an attorney is
8
enough to establish an attorney-client relationship; legal advice must be
sought. (Gionis, at p. 1212.)
The presence or absence of other factors may shed light on whether a
bona fide attorney-client relationship was formed. We should consider
whether the attorney is obligated to pay the attorney his or her fees, although
the absence of such an obligation does not preclude a finding that an
attorney-client relationship exists. (Lolley v. Campbell (2002) 28 Cal.4th 367,
373.) Whether the record supports a concern of “self-dealing” by the attorney
is also a relevant consideration. (Healdsburg Citizens for Sustainable
Solutions v. City of Healdsburg (2012) 206 Cal.App.4th 988, 997–998.) In a
case where a spouse-attorney represents his or her nonattorney spouse, and
the spouses are both parties to the lawsuit, we should consider evidence
bearing on whether the claim is a joint claim and whether the attorney-
spouse has an indivisible pecuniary interest in the outcome of the litigation.
(Gorman, supra, 178 Cal.App.4th at p. 95.)
B. The record does not establish that Hildy and Michael had an
attorney-client relationship.
Tenants prevailed on their retaliatory eviction claim and requested
statutorily mandated attorney fees when they initiated their case, which
means that whether Hildy can recover any of Michael’s fees turns on whether
he and Hildy had formed an attorney-client relationship. Hildy claims that
her execution of a retainer agreement with Michael’s firm established that
she “consulted [Michael] in his professional capacity as an attorney to obtain
his legal advice.” Landlords counter that there is no evidence that Hildy
“sought advice from [Michael] because [Michael] initiated and directly
controlled the litigation activities by himself” or that Michael “advised
[Hildy] in a manner that differed from his own interests as a plaintiff.”
9
Accordingly, landlords claim, there was no “true and authentic attorney-
client relationship.”5
As we have noted, the trial court’s analysis was framed by the largely
inconsistent decisions in Gorman and Rickley. These appellate opinions took
decidedly different approaches to resolving whether the nonlawyer spouses in
those cases formed an attorney-client relationship with their lawyer-
spouses.6
In Gorman, a husband-attorney (Gorman) and his nonattorney wife
(Cheng) favorably settled a construction defect claim brought under a
contract that entitled the prevailing party to attorney’s fees. (Gorman, supra,
178 Cal.App.4th at pp. 52–53.) The couple sought those fees under section
1717, which mandates an award to a party prevailing in an action on a
5 Landlords argue for the first time on appeal that (1) section 1717, not
section 1942.5, is controlling as to whether attorney’s fees are recoverable,
and (2) a $1,000 cap on fees and costs contained in the lease limits any award
of fees. These arguments are forfeited. (American Continental Inc. Co. v. C
& Z Timber Co. (1987) 195 Cal.App.3d 1271, 1281; see also County of Orange
v. Smith (2005) 132 Cal.App.4th 1434, 1444 [“ ‘the in propria persona litigant
is held to the same restrictive rules of procedure as an attorney’ ”].) In any
case, sections 1717 and 1942.5 are alternative bases for an award of
attorney’s fee following litigation of a retaliatory eviction claim where the
parties had signed a lease, meaning tenants could proceed under either
statute. And the lease’s cap on attorney’s fees is unenforceable because
subdivision (f) of section 1942.5 states that “[a]ny waiver by a lessee of the
lessee’s rights under this section”—which include a mandatory award of
reasonable attorney’s fees under subdivision (i)—shall be “void as contrary
to public policy.”
6 Attorney-client relationships have been recognized between an
attorney-spouse and a nonattorney spouse when the former represented the
latter in litigation that did not involve a joint claim. (See, e.g., Lopez v. Lopez
(2022) 81 Cal.App.5th 412; Rickley v. County of Los Angeles (9th Cir. 2011)
654 F.3d 950.)
10
contract that has a fee-shifting provision. (Gorman, at pp. 91–92.) Gorman
and Cheng were represented throughout the litigation by two firms with
which Cheng executed retainer agreements. (Id. at p. 95.) One of the law
firms was Gorman & Miller, PC (the Gorman firm), which used Gorman and
other members to litigate the couple’s claim. (Ibid.)
The trial court awarded Gorman and Cheng only a portion of the fees
they requested. (Gorman, supra, 178 Cal.App.4th at p. 53.) But because it
was not clear how the court determined the award amount, the Sixth
Appellate District reversed and remanded for further proceedings. (Ibid.)
In doing so, the court confirmed that fees billed by the second law firm and
members of the Gorman firm other than Gorman could be recovered. (Id. at
pp. 93–97.)
As to the fees for the work that Gorman personally performed, the
court explained: “We can certainly imagine cases in which a true attorney-
client relationship exists between spouses. However, in this case, husband
and wife sued for and obtained recovery for the defective construction of their
residence. There is no indication that Cheng suffered any damages apart
from those suffered by her husband. Their interests in this matter appear to
be joint and indivisible. There is no claim that Gorman spent extra time in
this case representing his wife in addition to the time he spent representing
himself. There is no claim that each of them owes half his fees. Their
community estate is liable for their contracts. [Citation.] Since Gorman’s
billable hours appear to be entirely attributable to representing his common
interests with Cheng, we conclude that the rule of Trope applies to this
situation.” (Gorman, supra, 178 Cal.4th at p. 95.)
Gorman does not mention the principle that an attorney must be
consulted in his or her professional capacity for legal advice in order for an
11
attorney-client relationship to exist. Nor does the opinion attempt to define
the difference between a “true” attorney-client relationship and any other
kind. It is thus unclear whether Gorman purported to establish an inflexible
legal rule that there can never be an attorney-client relationship between
spouses where their interests in the litigation and the damages they suffered
were “joint and indivisible.” (Gorman, supra, 178 Cal.App.4th at p. 95.) In
the alternative, perhaps the opinion is merely holding that such
circumstances will not support a finding of a “true” attorney-client
relationship in the absence of other evidence indicating that the nonattorney
spouse is playing more than a nominal role.
In contrast to Gorman, the court’s opinion in Rickley, supra, 207
Cal.App.4th 1528, focused on more traditional criteria for determining
whether an attorney-client relationship was created. In Rickley, an attorney
(Roit) represented herself and her nonattorney spouse (Rickley) in an action
to hold their neighbors in contempt for failing to comply with a judgment on a
nuisance claim on which they had prevailed. (Id. at pp. 1530–1531.) Rickley
and Roit were also assisted by a second attorney. (Ibid.) After the trial court
found the neighbors guilty of contempt, Rickley and Roit moved for an award
of attorney’s fees under Code of Civil Procedure section 1218, which in
subdivision (a) gives a court discretion to award them if the party who
initiates contempt proceedings prevails. (Rickley, at p. 1531.) The court
granted the request for the other attorney’s fees but denied it for Roit’s. (Id.
at p. 1532.) The trial court believed there was “ ‘no binding authority’ for an
award of fees in a contempt proceedings [sic] to a pro se plaintiff, whether the
plaintiff-attorney was the sole plaintiff or also sued with her partner.” (Ibid.)
After the couple appealed, the Second Appellate District explained
“that the dispositive factor in awarding fees is . . . whether there was an
12
attorney-client relationship between Roit as an attorney and Roit and her
spouse Rickley as homeowners. In this case, the trial court did not consider
the existence of this relationship.” (Rickley, supra, 207 Cal.App.4th at
pp. 1537–1538.) Departing from Gorman, the Rickley court stated that
neither “identical damages, nor joint and indivisible interests between the
spouse-attorney and the other spouse” necessarily defeat an attorney-client
relationship. (Rickley, at p. 1538.) “Instead,” it concluded, “we must
determine whether Rickley consulted Roit in her professional capacity and
whether their relationship in terms of this lawsuit, was for the purposes of
obtaining legal advice.”7 (Rickley, at p. 1538.) Because the trial court never
made any determination about whether an attorney-client relationship
existed, the appellate court remanded the matter to decide that issue “before
the issue of entitlement to fees can be adjudicated.” (Ibid.)
Broadly speaking, we think Rickley’s fact-based analysis frames the
correct approach. While joint interests and coincident damages are relevant
and often determinative considerations, they do not necessarily preclude an
attorney-client relationship any more than separate interests and distinct
damages define it. Gorman can be harmonized with Rickley if it is construed
narrowly to say that in the absence of other evidence, spouses with totally
joint interests and seeking only coincident damages will generally be unable
to establish a true attorney-client relationship. Although we do not decide
what other evidence would suffice, it may include any facts tending to show
7 It is unclear whether these spouses executed a retainer agreement.
This potential distinction between Rickley and Gorman is irrelevant to our
analysis because, as Rickley observed, “ ‘No formal contract or arrangement
or attorney fee is necessary to create the relationship of attorney and client.
It is the fact of the relationship which is important.’ ” (Rickley, supra, 207
Cal.App.4th at p. 1538, quoting Farnham v. State Bar (1976) 17 Cal.3d 605,
612.)
13
that the nonattorney spouse played a significant substantive role in the
litigation rather than merely deferring to the other spouse.
Here, the trial court appears to have read Gorman more as a legal
rule rather than a conclusion to be drawn from the state of factual record.
Even so, the court would have reached the same result had it looked beyond
the inflexible legal principle that Gorman can be read to suggest. Hildy’s
declaration merely recites that she signed a retainer agreement with
Michael’s law office, which tenants believe “confirm[ed] [their] attorney-
client relationship.” The retainer agreement, however, is not in the record.
And although Hildy adds that Michael had “discussed the matter with me to
great extent and to my full satisfaction,” the mere discussion of legal topics
is not enough to establish an attorney-client relationship. (Gionis, supra, 9
Cal.4th at p. 1210.)
The key evidence that is missing in this case concerns Hildy’s role in
the litigation, the circumstances of her consultations with Michael, and their
purpose. Attorney argument that those consultations were indicative of an
attorney-client relationship, of course, is not evidence. (J.P. v. Carlsbad
Unified School Dist. (2014) 232 Cal.App.4th 323, 343.) And Hildy’s hindsight
belief that an attorney-client relationship existed is not relevant to our
inquiry. (Zenith Ins. Co. v. O’Connor (2007) 148 Cal.App.4th 998, 1010
[“hindsight ‘beliefs’ that a[n attorney-client] relationship existed are thus
legally irrelevant”].) Simply put, tenants did not introduce evidence
sufficient to overcome the natural inferences that arise from an attorney-
spouse pursuing an entirely joint claim with entirely coincident damages,
14
evidence that is necessary to demonstrate a bona fide attorney-client
relationship in this context.8
DISPOSITION
The order denying the motion for attorney’s fees is affirmed. Landlords
shall recover their costs on appeal.
DATO, J.
WE CONCUR:
IRION, Acting P. J.
BUCHANAN, J.
8 We do not address tenants’ argument that a reversal is required
because they vindicated an important public interest. The Rickley court
considered the plaintiffs’ vindication of the public interest in enforcing
judgments as a factor favoring an award of Roit’s fees under a discretionary
statutory scheme. (Rickley, supra, 207 Cal.App.4th at pp. 1537–1538; Code
of Civ. Proc., § 1218 [party guilty of contempt “may be ordered to pay . . .
reasonable attorney’s fees”].) An award of attorney’s fees to the party
prevailing on a retaliatory eviction claim under section 1942.5, by contrast,
is mandatory so long as a party sought fees at the beginning of the case.
(§ 1942.5, subd. (i).) Accordingly, the significance of the public interest
tenants believe their suit vindicated is not pertinent to whether an attorney-
client relationship existed.
15