KRIEGER v. BULPITT

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

KRIEGER et al. v. BULPITT et al.*

Civ. 18660.

Decided: April 28, 1952

Alexander Ruiz, in pro per. Arnold D. Krieger and Morgan W. Gordon, Beverly Hills, for respondents.

From a judgment determining that defendant was the owner of a Beechcraft airplane, No. NC 66440, and that third party claimant (Alexander Ruiz) held the proceeds of the sale of the airplane in trust for defendant, Mr. Ruiz appeals.

Chronology

1. On or about March 8, 1949, defendant and plaintiffs entered into an agreement reading as follows:

‘March 8, 1949

‘Krieger, Harper & Klein

139 South Beverly Drive

Beverly Hills, California

‘Re: Bulpitt vs. Bulpitt

Superior Court No. SMD–6373

‘Gentlemen:

‘I have heretofore employed you as my attorneys to represent me and my interests in the above entitled divorce proceeding. You have, at my request, filed substitution of counsel, appeared at a hearing, and have expended time and effort investigating and familiarizing yourself with the issues.

‘Being mindful of the considerable amount of services which will be required and the fact that the plaintiff, by and thru her attorney, is seeking to obtain all of the property jointly belonging to Dr. Helen Bulpitt and myself, and the difficulties which necessarily will be encountered in obtaining a sizable portion of said estate for me by way of settlement or litigation, and being unable at present to give you a retainer, as requested by you, or to pay for your services as rendered herein, I propose an offer to you of the following contingent arrangement with regard to payment of your fees: I do agree and propose to pay you for your services rendered and to be rendered herein a sum equivalent to ten per cent (10%) of the amount of property, both real and personal, which you may obtain for me as my sole property by way of settlement or litigation, it being understood that the payment to you shall be fixed and determined in accordance with the values on such real and personal property, accounts receivable, chattels, choses in action, and shall be the appraised value thereof as fixed and determined by an appraiser or appraisers; it being understood, however, that in any event, the amount of your fee shall not be less than five thousand dollars ($5,000.00), nor more than $7,500.00.

‘Your signature affixed hereunder shall constitute your acceptance of the foregoing arrangement for payment of your fees, which shall thereafter constitute our written agreement.

‘Paul A. Bulpitt, M.D.

Paul Adams Bulpitt.

‘Accepted:

‘Krieger, Harper & Klein,

By A. D. Krieger.'

2. Pursuant to said employment plaintiffs negotiated a property settlement with the attorneys for defendant's wife; defendant orally approved the agreement but thereafter refused to execute it and permitted his wife to obtain an interlocutory decree of divorce by default in the action which she had previously filed against him.

3. After defendant refused to pay plaintiffs an attorneys' fee pursuant to his agreement of March 8, 1949, they instituted an action against him alleging the express contract and the trial court granted a summary judgment in plaintiffs' favor making the following specific findings of fact:

‘That on the 8th day of March, 1949, the parties herein did enter into a written agreement, by which the defendant promised and agreed to pay plaintiffs as their fees and compensation a sum equal to ten per cent (10%) of the appraised value of the property, both real and personal, which plaintiffs obtain for defendant as his sole property by way of settlement or litigation in the suit then pending, entitled ‘Helen Green Bulpitt vs. Paul Adams Bulpitt.’ That the defendant, in said written agreement, contracted to pay plaintiffs a stipulated minimum fee of Five Thousand Dollars ($5,000.00) for their services, with a maximum fee therein fixed at Seventy-five Hundred Dollars ($7500.00).

‘4. That each and all of the material allegations in plaintiffs' complaint are true, and that plaintiffs are entitled to compensation in accordance with said written agreement. That plaintiffs have failed to establish, however, the maximum fee fixed and stipulated in said written contract between the parties, but have fully established the right to the allowance of the minimum fee therein fixed and stipulated in the sum of Five Thousand Dollars ($5,000.00).’

4. Defendant discharged plaintiffs as his attorneys and employed third party claimant to represent him and on the 30th day of March, 1951, third party claimant purchased from defendant the Beechcraft airplane here in question.

5. On April 16, 1951, plaintiffs levied execution issued pursuant to the summary judgment which they had obtained against defendant, upon the Beechcraft airplane.

6. Mr. Ruiz filed a third party claim to the airplane and sought to have title determined pursuant to the provisions of section 689 of the Code of Civil Procedure. After hearing, the court found third party claimant was not the owner of the airplane, but that defendant was the owner thereof and $3,701.66, the sum remaining in third party claimant's possession as the balance of the purchase price obtained upon the sale by him of the airplane, was held by him in trust for the benefit of defendant, and the sum should be applied to the payment of plaintiffs' judgment against defendant.

Judgment was entered accordingly.

The sole question involved on this appeal is:

Was the judgment obtained by plaintiffs against defendant void?

This question must be answered in the affirmative and is governed by these pertinent rules:

(1) Whether a judgment is void on its face must be determined from an inspection of the judgment roll alone. (Hunter v. Superior Court, 36 Cal.App.2d 100, 112[7], 97 P.2d 492.)

(2) If a judgment is void there is nothing which the parties can do either by conduct, stipulation or judicial decree that will give it validity. (Hunter v. Superior Court, supra, 36 Cal.App.2d at page 113[8], 97 P.2d 492.)

(3) A contract which is void as against public policy is entirely unenforceable. A judgment or decree attempting to enforce it does not impart any validity to it, and such judgment is subject to attack in a collateral proceeding. (Hunter v. Superior Court, supra, 36 Cal.App.2d at page 114, 97 P.2d 492; cf. McFayden v. Town of Calistoga, 74 Cal.App. 378, 384[6], 240 P. 523.)

(4) The doctrine of estoppel is inapplicable to a contract which is void as against public policy and the court, of its own motion, will refuse to enforce such a contract when its invalidity becomes apparent. (Brown v. Brown, 8 Cal.App.2d 364, 368[4], 47 P.2d 352.)

(5) A contract between an attorney and client in a divorce action for a contingent fee is against public policy and is void. (Newman v. Freitas, 129 Cal. 283, 289*, 61 P. 907, 909, 50 L.R.A. 548; cf. Hill v. Hill, 23 Cal.2d 82, 87, 142 P.2d 417.

The statements in Ayres v. Lipschutz, 68 Cal.App. 134, 139[5], 228 P. 720, relied on by plaintiff, which tend to indicate a different rule are not the law for the reason that the Supreme Court in denying a hearing expressly reaffirmed the rule in Newman v. Freitas, supra.

Applying the foregoing rules to the facts of the instant case, an examination of the judgment roll discloses that the judgment which plaintiffs obtained against defendant was predicated upon a contract for a contingent fee in a divorce action which, under rule (5), supra, was a void contract as against public policy and therefore under rules (2), (3) and (4), could not be given vitality by any act of the parties or the court, it having been the duty of the court, on its own motion, to refuse to enforce the judgment when the invalidity appeared.

There is no merit in plaintiffs' argument that the void contract was evidence of the reasonable value of their services and that we should therefore affirm the judgment, because the trial court did not predicate its judgment upon the reasonable value of services rendered but gave judgment upon the theory of an express contract.

For the foregoing reasons the judgment is reversed with directions to the trial court to enter a judgment in favor of third party claimant. The purported appeals from other orders are dismissed.

FOOTNOTES

FOOTNOTE.  FN* In Newman v. Freitas, Mr. Justice Van Dyke, speaking for the Supreme Court of California, in referring to a contract for a contingent fee in a divorce action, thus states the rule: ‘Therefore any agreement for divorce, or any collateral bargaining promotive of it, is considered unlawful and void. (2 Bishop on Marriage, Divorce, and Separation, sec. 696; Greenwood on Public Policy, 490.)’

McCOMB, Justice.

MOORE, P. J., and FOX, J., concur.