Petty v. Superior Court In and For Los Angeles County

• Decision Date: 10 February 1953
• Citation: 253 P.2d 28,116 Cal.App.2d 20
• Court: California Court of Appeals Court of Appeals
• Parties: . Civ. 19366. District Court of Appeal, Second District, Division 3, California

Page 28

253 P.2d 28

116 Cal.App.2d 20

PETTY v. SUPERIOR COURT IN AND FOR LOS ANGELES COUNTY et al.

Civ. 19366.

District Court of Appeal, Second District, Division 3, California.

Feb. 10, 1953.

Joseph Doyle and L. Dean Petty, Beverly Hills, for petitioner.

Harold W. Kennedy, County Counsel and William E. Lamoreaux, Deputy County Counsel, Los Angeles, for respondent.

Dolley, Knight, Woods, & Hightower, Los Angeles, for real parties in interest.

PARKER WOOD, Justice.

Petition for writ of review. Petitioner, an attorney at law, seeks an annulment of an order of the superior court restraining him from representing the plaintiff and cross-defendant in a certain action.

On March 21, 1952, the petitioner, as the attorney for the plaintiff hereinafter mentioned, commenced an action in the superior court of Los Angeles County, entitled Joseph R. Neaves, Jr., v. C. J. Gibson, et al., wherein the plaintiff sought an accounting by defendants under the terms of certain agreements between plaintiff and defendants covering the drilling for oil on property known as the 'Hawn Deal', and an accounting for expenses in connection with said drilling operations.

On April 6, 1952, defendants answered the amended complaint in said action and filed a cross-complaint. The demurrer of plaintiff and cross-defendant to the amended cross-complaint was set to be heard on October 15, 1952.

On September 12, 1952, the attorneys for said defendants obtained an order to show cause why petitioner herein should not be restrained from representing, as an attorney at law, the plaintiff and cross-defendant. The order was made upon the basis that it would be improper for Mr. Petty to represent Mr. Neaves, because Mr. Petty had been attorney for him and Mr. Gibson in the preparation of the agreements referred to in said action.

On October 1, 1952, the order to show cause was heard upon affidavits as follows: an affidavit of Mr. Knight (one of the attorneys for defendants) which affidavit was the basis for issuing the order to show cause; affidavits of the petitioner herein (Mr. Petty), the plaintiff Neaves, and Mr. Doyle, one of the attorneys for plaintiff; and counter-affidavits of Mr. Knight and defendant C. J. Gibson. On said October 1st, the court ordered that L. Dean Petty (petitioner) be and is restrained from taking any part in the maintenance or trial of the action as attorney of record for plaintiff and cross-defendant, or as attorney assisting any attorney of record for said party, or at all. It was stipulated that the superior court file might be considered by this court.

Petitioner contends that the court acted without and in excess of its jurisdiction; and that the order is wholly without support in the evidence. He argues to the effect that in view of the fact that he represented both Mr. Neaves and Mr. Gibson in the preparation of said agreements, and in view of the nature of such representation and agreements, there was no privileged communication as between him and Mr. Gibson; and that it was not improper for him to represent Mr. Neaves in said action.

The affidavit of Mr. Knight stated that: he is one of the attorneys for defendants in said action; he is also one of the attorneys for said defendants in an action pending in a municipal court, in which an assignee of Mr. Petty sued them for attorney's fees for legal services allegedly rendered for defendants, including the preparation of the certain contracts involved in the present superior court case of Neaves v. Gibson; that Mr. Petty testified, in his deposition in the municipal court case, as follows: that he was employed by Mr. Gibson and Mr. Neaves to prepare all the said contracts; Mr. Gibson directed him many times as to what to do, talked over his problems, and Mr. Petty researched the lease and advised him on it; he first rendered legal services to Mr. Gibson on December 28, 1950, when Mr. Gibson came to his office and outlined the proposed agreement with Mr. Neaves as to the acquisition of the Hawn oil lease, and as to the drilling operations; thereafter and before the next office conference, he had two or more telephone conversations with Mr. Gibson; the next office conference was between January 5th and 10th, when Mr. Gibson and Mr. Neaves were present and the entire deal was discussed at length; after Mr. Petty had outlined the agreements of the parties as he understood them, he told Mr. Gibson that there was quite a bit of work to be done, and he asked Mr. Gibson who was going to be his attorney in the matter; and that Mr. Gibson replied: 'Why don't you draw all the agreements for both of us?' Mr. Petty replied that he would be glad to do the best he could to record the agreements in accordance with their mutual understanding; he was instructed by both of them to draw the agreements; Mr. Petty drew the agreement dated January 11, 1951, ¹ and also the drilling agreement bearing the same date. ² The affidavit of Mr. Knight stated further that Mr. Gibson held several conferences with Mr. Petty, in connection with the preparation of the contracts, at which Mr. Neaves was not present; Mr. Gibson also conversed by telephone with Mr. Petty about certain matters when Mr. Neaves was not present.

On February 12, 1951, Mr. Petty prepared a supplemental agreement ³ for said persons. On March 21, 1951, he prepared another supplemental agreement ⁴ for them. On March 22, 1951, he prepared another supplemental agreement ⁵ for them.

The affidavit of Mr. Petty stated that: he is the assignor of plaintiff in said municipal court case against C. J. Gibson for attorney's fees; Mr. Gibson, in his answer in that case, denied that legal services were performed for him by petitioner herein; Mr. Gibson, in his deposition in that case, testified that he did not employ petitioner as his attorney or agree to pay him for legal services in preparing said agreements; petitioner has been attorney for Mr. Neaves for some years prior to filing the complaint herein, and in 1950 petitioner represented him in two oil well ventures similar to the one in the present case, wherein Mr. Neaves and Mr. C. J. Gibson were parties; in said other ventures Mr. Gibson was represented by other attorneys; about January 5, 1951, Mr. Gibson and Mr. Neaves came to his office and jointly engaged petitioner and instructed him, in the presence of each other, to draw all necessary agreements concerning the oil well venture known as the 'Hawn Lease'; his services in the preparation of the agreements continued from approximately January 5th to March 31, 1951; he billed Mr. Neaves and Mr. Gibson each for 1/2 the legal services; thereupon Mr. Gibson denied that he had employed petitioner and he refused to pay for any part of said services; all communications made to petitioner in connection with the subject matter of the present action and the preparation of said agreements were commonly known by Mr. Neaves and C. J. Gibson; at no time during said negotiations or any conference did Mr. Gibson or Mr. Neaves communicate to petitioner any communications which were confidential in nature in that they were not fully disclosed and understood by all parties to the agreements and incorporated in the agreements; no controversy, to petitioner's knowledge, arose in connection with the agreements until approximately October, 1951, when questions regarding proper accounting of the agreements were raised, ultimately resulting in the filing of the present action on March 21, 1952.

The affidavit of Joseph Doyle, attorney at law, stated that: on April 1, 1952, he became associated with Mr. Petty in the representation of plaintiff Neaves in the present action; in the complaint in the municipal court case, it was alleged that C. J. Gibson became indebted to Mr. Petty for $775.85, that $124.70 of said amount had been paid leaving an unpaid balance of $651.15, and that the indebtedness was incurred on an open book account for services rendered by Mr. Petty at Mr. Gibson's request; in the verified answer of C. J. Gibson in said case he denied said allegations of the complaint; that as between the averments in said answer and the averments in the affidavit of Mr. Knight there is contrast and conflict--the answer 'contending' there was no relation of attorney and client, and the affidavit 'contending' there was such a relation; the said agreements in the present case are the type of agreement normally found in a joint oil well venture and are not the type of agreement in which there would be any confidential communications; Mr. Gibson, in his deposition, denied that he engaged Mr. Petty as attorney to represent him in the preparation of any of said agreements or in any matter in connection with the present case.

The affidavit of Mr. Neaves, plaintiff herein, states that: Mr. Petty has been his attorney for some years prior to the filing of this action; about January 3, 1951, Mr. Gibson approached plaintiff for the purpose of entering into a joint oil well venture known as the 'Hawn Lease'; in the initial conferences regarding the venture, they jointly consulted Mr. Petty regarding the preparation of the necessary agreements; they jointly employed and instructed Mr. Petty to prepare all necessary agreements in connection with said venture; many conferences were had in Mr. Petty's office at which both plaintiff and Mr. Gibson were present; other conferences were had between plaintiff and Mr. Gibson not in the presence of Mr. Petty; certain conferences were had by plaintiff and Mr. Gibson with Mr. Petty individually; all said conferences pertained exclusively to the Hawn oil well venture; all communications made to Mr. Petty by plaintiff and Mr. Gibson were commonly known to both plaintiff and Mr. Gibson; at no time, to plaintiff's knowledge and belief, were any communications made by Mr. Gibson to Mr. Petty regarding any matter other than the preparation of the said agreements; Mr. Gibson failed to give a proper accounting and...