Diowchi v. Superior Court In and For Los Angeles County

• Decision Date: 22 May 1963
• Citation: Diowchi v. Superior Court In and For Los Angeles County, 31 Cal.Rptr. 214, 216 Cal.App.2d 525 (Cal. App. 1963)
• Court: California Court of Appeals
• Parties: Marion U. DIOWCHI, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF LOS ANGELES, Respondent; Sharon Kathryn MEADOW, Real Party in Interest. Civ. 27159.

Page 214

31 Cal.Rptr. 214

216 Cal.App.2d 525

Marion U. DIOWCHI, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF LOS ANGELES, Respondent Sharon Kathryn MEADOW, Real Party in Interest.

Civ. 27159.

District Court of Appeal, Second District, Division 4, California.

May 22, 1963.

Beilenson, Meyer, Rosenfeld & Susman, by Peter R. Cohen, Beverly Hills, for petitioner.

No appearance for respondent.

Schwartz and Sandler, by Merle H. Sandler, Los Angeles, for real party in interest.

KINGSLEY, Justice.

Petitioner is the assignee for collection of a firm of attorneys. These attorneys (hereinafter collectively referred to as 'Beilensons') were retained by the real party in interest to represent her in a divorce action. During the pendency of that action, respondent court made and entered its order directing the husband to pay directly to them the sum of $7,500 on account of attorney fees and $4,000 on account of costs. This order was secured by a lien, in favor of wife, on certain real and personal property. The husband duly appealed from this order (although it appears from the petition that $5,000 has been paid in partial satisfaction thereof) and that appeal is now pending in Division Three of this court (2d Civ. 27245). Thereafter, according to the petition, Beilensons filed in the divorce action a notice of motion for $13,000 additional fees. Before this motion came on for hearing, the wife purported to discharge Beilensons as her attorneys and moved to effect a substitution of new counsel. Both the motion of Beilensons for additional fees and the motion to substitute attorneys were continued, on motion of the husband, and are still pending in respondent court, subject to certain proceedings in the Supreme Court hereinafter discussed. While these matters were pending in respondent court, Beilensons filed a complaint in intervention in the divorce action, against husband, but not against the wife, seeking to protect the award of fees and costs already made in their favor and any additional award that might be made. This complaint is still pending in respondent court.

It appears that the wife has, in the meantime, quitclaimed to her husband the property on which she held a lien to protect the Beilensons' award, that husband and wife have jointly moved to dismiss the divorce action, and that proceedings are now pending in the Supreme Court of this state to compel such dismissal or, in the alternative, to effect a substitution of the new attorneys for the wife prior to hearing Beilensons' motion for additional fees. ¹ (LA 27128.)

In an attempt further to protect their claim for fees, Beilensons then filed the action immediately involved in this proceeding. This action is a plenary action at law, against the wife only, alleging the original employment, an unlawful discharge of Beilensons as her attorneys in the divorce action, and praying for the reasonable value of their services in the divorce action. The wife demurred to said complaint on the ground that there was another action pending between the same parties for the same cause. (Code of Civ.Proc. § 430, subd. 3.) The demurrer was sustained, and the court made an order that 'this action is abated until final determination' of the divorce action. A motion to vacate this order having been denied, petitioner sought from this court a writ of mandate to compel vacation of the order sustaining the demurrer and staying proceedings. Mandate is an appropriate method to test the validity of the order of the trial court herein involved. (Pacific Engine, Etc., Works v. Superior Court (1955) 132 Cal.App.2d 739, 282 P.2d 937.)

In her 'Return, Demurrer and Answer' to the petition, the real party in interest seeks to controvert the allegations of petitioner as to the wrongfulness of the discharge of the attorneys. Such a denial has no place in this proceeding. We take the complaint in Diowchi v. Meadow as it stands; if its allegations are not true, or if real party in interest has any other defense to the claim for attorney fees, her remedy is to answer the complaint and litigate the issues so formed in the trial court.

In attorney for a wife in a...