Hatch v. Bush

• Decision Date: 03 May 1963
• Court: California Court of Appeals Court of Appeals
• Parties: , 13 A.L.R.3d 503 Robert E. HATCH, Plaintiff and Appellant, v. Stanley F. BUSH and Norma Joseph, Defendants and Respondents. Civ. 20339.

Page 397

30 Cal.Rptr. 397

215 Cal.App.2d 692, 13 A.L.R.3d 503

Robert E. HATCH, Plaintiff and Appellant, v. Stanley F. BUSH and Norma Joseph, Defendants and Respondents.

Civ. 20339.

District Court of Appeal, First District Division 1, California.

May 3, 1963.

Julian D. Brewer, San Francisco, for appellant.

M. Mitchell Bourquin, John D. Costello, San Francisco, for respondents.

BRAY, Presiding Justice.

Plaintiff appeals from judgment based on order granting summary judgment.

QUESTION PRESENTED.

Was any triable issue of fact presented?

RECORD.

Plaintiff's complaint alleges that he is an attorney at law, and that within two years preceding the commencement of the action defendants became indebted to him in the sum of $20,000 as the reasonable value of services rendered by plaintiff 'to and for the use and benefit of defendants and at their special instance and request.' Defendants' demurrer to the effect that the alleged cause of action had been adjudicated by the San Francisco Superior Court was overruled. Defendants then answered, denying generally and specifically the allegations of the complaint other than the allegation that plaintiff is an attorney. As a separate defense, it was alleged that defendants are the grandnephew and grandniece respectively and the sole next of kin and heirs at law of Annie M. Gudehus, now deceased; that 'as such, defendants employed plaintiff as an attorney to assemble the property of the decedent and to prepare, initiate and conduct the probate of the estate of said Annie M. Gudehus, of which defendants were appointed, qualified and acting as co-administrators thereof; that at no time did defendants, or either of them, prior to the death of decedent or subsequent thereto, employ plaintiff to perform or render, and at no time did plaintiff perform or render, any other or legal services for them, or either of them;' that on January 18, 1960, the first and final account, report and petition for distribution in that estate was presented to the probate court; that plaintiff at the hearing thereof appeared and applied for attorney's fees and compensation for services rendered to the defendants as co-administrators and in the probate of said estate; that said court awarded plaintiff the sum of $1,251.26 in full for such services; that said sum was paid by 'estate check' to plaintiff upon the account and assets of said estate; that the order of the probate court has become final.

Thereafter defendants made demand upon plaintiff for a bill of particulars, 'including detailed statement of the date and place of the services alleged, the time consumed thereupon, and the reasonable value of each item thereof.'

Plaintiff filed a 'Response to Alleged 'Demand for Bill of Particulars" in which he stated that section 454, Code of Civil Procedure, makes no provision for anything mentioned in the demand, providing only that defendants are entitled to a 'copy of the account' if one is sued on. 'None is, neither has a demand been made for a copy thereof.' If it be construed that a demand for copy of account has been made, it is impossible to furnish such copy as there never has been an original. If the demand be construed as a proper demand under the section, the following is the best possible response: 'Stanley F. Bush and Norma Joseph, in account with Robert E. Hatch, Attorney at Law--To legal services rendered . . . $20,000.00.'

Upon defendants' motion the court ordered plaintiff to serve a further bill of particulars 'specifying with particularity the items or matters upon which services are to be charged to defendants by plaintiff, the time extended upon each and all of said items or matters, and the reasonable value of the services upon each.'

In response, plaintiff submitted a verified 'Amendment to Bill of Particulars' in which he reiterated his statement that section 454 does not provide for a bill of particulars and that it is impractical to render such a bill in this case. He then submitted the following:

Item 1. Commencing November 16, 1958, to and including December 4, 1958, when defendants were appointed administrators of the Gudehus estate plaintiff rendered legal services to defendants of 'legal and other nature.' At the request of defendant plaintiff examined the affairs of said Annie M. Gudehus while she was in the hospital 'in the light of defendants' interests therein * * * together with the personal and business necessities of said Annie M. Gudehus while still alive,' upwards of 50 hours, which at $50 per hour would exceed $2,500.

Item 2. 'From the commencement of said probate proceedings, by filing of the petition for appointment of administrators to the point of completion of the probate of said estate, plaintiff did ninety per cent of the work ordinarily performed by the personal representative of the estate and for the fees contemplated by Probate Code 900, et seq. * * * [S]aid fees properly computed would amount to approximately $7,000.00 and on that basis plaintiff would be entitled to the additional sum of $6,300.00.'

Item 2(a): 'The foregoing item, alternately computed on other than the percentage basis prescribed by the Probate Code,' would be in excess of $6,300.

Item 3: '[P]laintiff completely probated said estate as the attorney for the administrators with the exception of the pro forma appearance on the presentation of the final papers and thereby did ninety-nine per cent of the legal work' entitling him to 99 per cent of $7,000 or $6,930.

Item 3(a): The foregoing item, computed on other than the percentage basis prescribed by the Probate Code, based upon the work done, is in excess of $6,930.

Item 4: Said defendants as administrators were entitled to an allowance for extraordinary services in said estate 'such as collection of disputed accounts, performance of services as special administrators * * *.' Plaintiff did all the work for which such extra allowance was available. Defendants did not apply for it, because they were the sole heirs of the estate and the income tax thereon would be greater than the credit they would receive from inheritance and estate taxes. Plaintiff did all of this work, devoting upwards of 40 hours thereto, which at $25 per hour reasonably entitled him to $1,000.

Item 5: Plaintiff is entitled to the reasonable value of extraordinary service rendered, undertaking and collecting an outlawed note of $4,000 owed the estate; arranged for, studied and helped prepare the tax reports for federal estate, state inheritance and income taxes and other services of a legal nature, did all the legal services in having defendants appointed special administrators and with the special administration of said estate, devoting in excess of 100 hours thereto, entitling him at $50 per hour to an additional $5,000.

Thereafter defendants moved for summary judgment on the ground (a) that the services for which plaintiff was attempting to charge defendants were rendered in the representation of defendants in the probate of the estate. (b) Following the substitution of plaintiff by another as attorney for the administrators, plaintiff served and filed in the proceeding a request for special notice as provided by sections 1200-1202, Probate Code. (c) Notice was given him of the time set for the hearing of the final account of the administrators. Plaintiff appeared at the hearing, and 'pled' has claim for ordinary and extraordinary compensation for these services. (d) That plaintiff's claim was heard, determined and adjudicated by the probate court in the order settling the final account which order has become final. (e) That plaintiff's compensation for said services was fixed by the probate court and paid by check of the administrators to plaintiff. Said check has not been presented for payment. (f) That the order of said probate court is res judicata of plaintiff's right to compensation for his services.

On the motion the declaration under penalty of Attorney Costello was presented. It states that on June 6, 1959, he was substituted for plaintiff as attorney for the administrators; that from that date he assumed the representations of and legal service to the administrators and continued so to serve until the entry of the decree of final discharge; that defendants on November 17, 1958, were appointed special administrators of the estate and served as such until December 4, 1958, when defendants were appointed and qualified as administrators of the estate. The declaration then refers to plaintiff's request for notice in the estate, the giving to plaintiff of notice of the hearing of the administrators' final account that on the hearing plaintiff appeared, was sworn and testified to all of the services specified in the bill of particulars and its amendment, and asked for $10,000 in compensation of his services, that on January 22, 1960, the court entered its order allowing and apportioning the attorney's fees of the successive attorney's for said administrators, certified copy of which order is attached to the declaration. Attached, too, is a certified copy of the decree of final discharge. It is further stated that pursuant to the probate court's order an administrator's check for $1,251.26 was sent to plaintiff in payment of the fees ordered; that this check has not been presented to the bank for payment.

Also presented to the court was the declaration under penalty of Paul E. Springer, a court reporter, containing a transcript of the testimony of plaintiff given on the hearing of the administrators' first and final account. Therein plaintiff testified that he was the attorney for Annie Gudehus for 30 years. All that she possessed was acquired through some estate litigation which he had conducted for her many years ago. Shortly before November 17, 1958, defendants called plaintiff telling him of her illness. Plaintiff met defendants at the hospital where she was in a coma. She died shortly afterwards. '* * * we did whatever was...