Reset A A Font size: Print

District Court of Appeal, First District, Division 2, California.


Civ. 10888

Decided: September 19, 1938

Robert E. Hatch, of San Francisco, for petitioner. J.E. McCurdy, of San Mateo, for respondents.

Petitioner seeks a peremptory writ of mandate to compel the respondent court to grant her application for a change of attorney.

Petitioner sustained personal injuries and engaged Mr. J.E. McCurdy as her attorney to prosecute her claim. They entered into an agreement whereby the attorney's compensation was to be contingent upon the recovery of money by way of settlement or judgment. Mr. McCurdy filed an action in the respondent court on behalf of petitioner and was prosecuting petitioner's claim as agreed. Petitioner filed an application in said action to change her attorney to Mr. Robert E. Hatch. It was stated that the application would be based upon “the ground that plaintiff desires to have Robert E. Hatch to act as her attorney in lieu of the said J.E. McCurdy” and that said motion would be made “upon the authority of Section 284 of the Code of Civil Procedure”. Mr. McCurdy filed in the respondent court an affidavit setting forth the nature of his agreement with petitioner and the nature of the services which he had rendered thereunder. He requested that the respondent court determine the compensation to be paid to him by petitioner as provided in said section 284. Petitioner then filed in said court her written objections to the determination of said compensation, claiming that the provisions of said section relating to the determination thereof were unconstitutional. Petitioner's application was continued on the calendar from time to time but no hearing was had upon said application or upon the request of Mr. McCurdy owing to the failure of Mr. Hatch to appear at said times. Petitioner seeks by this proceeding to compel the respondent court to grant her application without acting upon Mr. McCurdy's request for the determination of his compensation.

Petitioner contends that the portions of said section relating to the determination of the attorney's compensation are unconstitutional and that the writ of mandate should therefore issue as prayed. She cites and relies upon Cassel v. Gregori, Cal.Super., 70 P.2d 721. The cited case is not in point as the motion was there made by the attorney and not by the client. Petitioner made the motion here and the case of Foster v. Superior Court, Cal.App., 79 P.2d 144, is controlling. It therefore becomes unnecessary to discuss the constitutional question. The only distinction pointed out by petitioner is that in the Foster Case the petitioners expressly requested the trial court to determine the compensation as well as to make the substitution. We do not believe this distinction to be material. The right of a party to obtain an order of court for a change of attorney is statutory and the statute in question provides the terms upon which such change may be had. When a party claims the right granted by such a statute, he may not reject the terms upon which that right is granted. In other words, when a party elects to accept the benefits of a statute, he may not escape its burdens by asserting that the statute is unconstitutional. Foster v. Superior Court, supra. The existence of this rule is indicated in Cassel v. Gregori, supra, cited by petitioner, where the court said [page 724], “When the client makes the motion, he does so with knowledge (actual or imputed) of the terms of the statute. *” (See, also, cases cited in note in 11 So.Cal.Law Rev. 291.)

The alternative writ is discharged and the peremptory writ is denied.

SPENCE, Justice.