Hatch v. Bush

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

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:

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 ease. 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, (e) 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” his 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 cheek 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 representation of and legal service to the administrators and continued so to

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 after-wards. “. . . we did whatever was necessary at that time; I think I even paid the medical bill out of my pocket. We went through all of her papers and records. . . . There was a tremendous volume of papers and documents ... all of which I had to process.” Defendants “were very cooperative, but they had had no experience in such matters, and I had to do the bulk of it. We had to spend a good deal of time looking for bank accounts . . . there was over $70,000 in savings accounts and a lot of records indicating that she had other accounts. I went all over San Francisco from the Mission to the Park District checking on old accounts to find out what was left, and finally located them all and consolidated them and brought everything up to date. She had several safe deposit boxes which we had to go through and get all of her things out of. I spent a great deal of time, and the first thing that

The only showing on the motion made by plaintiff was his declaration under penalty. He “categorically and unequivocally” denied the assertions in Costello’s declaration to the

Summary Judgments

Section 437c, Code of Civil Procedure, provides the procedure for summary judgments: “. . . if it is claimed the action has no merit ... on motion . . . supported by affidavit of any person or persons having knowledge of the facts . . . judgment may be entered, in the discretion of the court unless the other party, by affidavit or affidavits shall show such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue of fact.” “The procedure is drastic and should be used with caution in order that it may not become a substitute for existing methods in

Then comes the declaration of the court reporter giving a transcript of plaintiff’s testimony at the hearing of the administrators’ account.

Now we turn to plaintiff’s declaration. In it, he does not purport to state any facts concerning the services rendered by him. He contents himself with denying that he “appeared” at the hearing and presented his claim to the court, denies that he testified to the rendition by him of all the services specified in the bill of particulars. He does not, however, deny that he testified as set forth in the reporter’s transcript. He contents himself with claiming that the probate court had no jurisdiction to consider his claims or to make the order awarding him fees, which order he concedes was made. He denies payment to him of his fees but does not deny receipt of the administrators’ check, which he has not cashed.

Having in mind that on a motion of this kind “The motion must be determined on facts set forth in the affidavits, and not on allegations of the complaint” (Nini v. Culberg, supra, p. 663) we find that plaintiff has set up no facts upon which the trial court could have determined that there were any issues of fact to be tried.

Plaintiff’s alleged cause of action was on a quantum meruit. In the affidavits no contention is made that he did not render service to the administrators. In fact, it is conceded that he did. The issue, then, became one of law, namely, whether the administrators as individuals could be liable for services rendered by an attorney to them as administrators.

Plaintiff did not see fit to state in his declaration what those services were. The only evidence of services before the court was that contained in the reporter’s transcript which defendants themselves placed before the court. Those services clearly appear to be ones rendered to the administrators for the benefit of the estate. These cannot be charged to the administrators personally. Section 911, Probate Code,

In Chapman v. Pitcher (1929) 207 Cal. 63 [ 276 P. 1008 ], the trial court sustained a demurrer, without leave to amend, to a complaint alleging a contract between an attorney and the executors for services to be rendered by him to them and the estate. In affirming the action of the trial court, the appellate court pointed out that prior to 1905 the attorney had no claim that he could enforce against the estate as he was not a person interested in the estate. But, by the amendments in that year of sections 1616 and 1619, Code of Civil Procedure (the substance of which now appears in Prob. Code, § 911) the attorney now has an interest in the estate to the extent of his compensation for services rendered to the administrators and the estate. The court then pointed out that the attorney had failed “to observe the procedure prescribed by statute which is necessary to establish a claim or- demand against an estate of a deceased person, nor was an action commenced against the estate to establish the demand here attempted to be enforced by personal action against the defendants.” (P. 69.)

“The effect of the statutory changes on the matter of the personal liability of an executor is noted in Zagoren v. Superior Court, 117 Cal.App. 548 [ 4 P.2d 279 ], at page 551, as follows: ‘We are satisfied that since the amendment of sections 1616 and 1619 of the Code of Civil Procedure, in 1905 and 1909 (Stats. 1905, pp. 727 and 776; Stats. .1909, p. 987)', an executor or administrator is not personally liable for the payment of attorney’s fees in probate matters, but such fees are now proper expenses of administration, payable like other expenses of administration. This conclusion is not only irresistible from a reading of the statutes as amended, but also by

“ ‘In Estate of Kelleher, supra, the court said: “The fees for attorneys’ services, being a proper expense of administration are payable like other expenses of administration, and are not a personal charge against the executor.” ’ (See also Platnauer v. Forni, 131 Cal.App. 393 , 398 [ 21 P.2d 638 ].) ’’ (Houghton v. Coberly (1962) 201 Cal.App.2d 820 , 823-824 [ 20 Cal.Rptr. 489 ].)

Thus, whether or not there could be an issue of fact in the case as to whether plaintiff did or did not 11 appear ’ ’ at the hearing of the account, or even testified as shown in the transcript, is completely immaterial. As plaintiff’s only right to recover fees for his services is against the estate, it was his duty to present his claim to the probate court. “It is likewise settled that the right of an executor, administrator, or attorney for either, to ordinary compensation is absolute but does not accrue until an order for its payment is made. ’ ’ (Estate of Johnston (1956) 47 Cal.2d 265 , 272 [ 303 P.2d 1 ].) The same is true as to extraordinary compensation. Both statutory fees and extraordinary compensation are matters to be determined by the probate court, in its sound discretion. (See Estate of Turner (1942) 50 Cal.App.2d 332 , 335 [ 123 P.2d 66 ]; Estate of Prather (1920) 183 Cal. 314 , 320 [ 191 P. 521 ].) If plaintiff presented his claim to the probate court, that court made him an award, for the amount of which he does not deny receiving a check, although he did not cash it. If he did not present his claim to the probate court, that fact would not give him a cause of action against the administrators personally. If he did not receive the check, his remedy is on the probate order, not against the administrators upon an alleged quantum meruit.

Plaintiff claims that he performed some of the services which the administrators of the estate are required to perform. He did not present by affidavit any facts by which the trial court could have determined that an issue of fact existed as to whether or not he did render such service. But if there were such issue, it would be immaterial. In the absence of an agreement by defendants to compensate him therefor (and he made no affidavit claiming that any such agreement was made) he has no right of action against the administrators personally therefor.

In his declaration plaintiff stated that to prevent

Plaintiff contends that there is an issue of fact as to nonpayment for his services. No such issue exists. Defendants concede that other than the effect of transmitting the check to plaintiff for the amount allowed by the court (the receipt of which check was not denied by plaintiff) no payment has been made.

Plaintiff contends that he rendered the administrators “nonlegal” services. He presented to the trial court no issue of any such services. In his brief he indicates that there were legal services not directly connected with the probate but for the benefit of the heirs. Again he failed to present this issue to the trial court.

Plaintiff apparently did not understand that on a motion for summary judgment he was required to present to the court facts from which when compared with the facts presented by his adversary the court could determine that there were issues of fact to be later determined. Plaintiff’s declaration was primarily devoted to his contention that he was not required to present his claim to the probate court.

Plaintiff contends that the court erred in requiring him to file a bill of particulars and that the bill of particulars should be stricken. Knight v. Russ (1888) 77 Cal. 410 , 413, [ 19 P. 698 ], holds that in an action by an attorney for fees for his services “it is not necessary to set forth the items of the account in the complaint. It is sufficient to state the facts constituting the cause of action, in ordinary and concise language, and if the defendant desires further particulars, he may call for them, and they must be given him within a limited time. (Code Civ. Proc., §§ 426, 454.) ” (See also Aydelotte v. Bloom (1910) 13 Cal.App. 56 , 58 [ 108 P. 877 ].)

It is rather interesting that plaintiff who in his briefs insists that “The bill of particulars was unlawfully exacted. It should be stricken and disregarded,’’ now contends that because Costello in his declaration made reference to the bill of particulars when he stated that plaintiff at the hearing of the final account had testified to the rendition by

Even if the bill of particulars could be considered as an affidavit on the motion (something to which plaintiff strongly objected, at all times up to the time when on oral argument in this court, his attention was called to the fact that he had not filed any affidavit of the facts), the services claimed therein were not substantially different from those stated by plaintiff in his testimony in the probate court. They clearly are services rendered to the administrators for the benefit of the estate, and compensable only as such. Plaintiff’s contention that the recital of services shows that he was rendering services other than attorney’s services is not supported by

Plaintiff failed to meet the requirement that the party opposing a motion for summary judgment must disclose what the evidence will be to show that there is a real issue of fact to be tried. Here it appears that there were only issues of law to be considered. “Where on a motion for summary judgment the issues are of law only it is the duty of the trial court to determine those issues.” (Doyle v. Hibernia Bank, supra, 156 Cal.App.2d 16 , 20.)

Nothing contained herein shall deny plaintiff’s right to the sum of $1,251.26 awarded plaintiff by the probate court.

The judgment is affirmed. Defendants will recover costs.

Sullivan, J., and Molinari, J., concurred.