MATHYS v. TURNER

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

G. MATHYS, Plaintiff and Appellant, v. Richard H. TURNER, also known as R. H. Turner, Defendant and Respondent.

Civ. 20426.

Decided: May 10, 1955

S. V. O. Prichard, Beverly Hills, for appellant. Algerdas N. Cheleden, Los Angeles, for respondent.

This is an action in which the plaintiff as assignee of one Bernard B. Laven sought recovery of $10,905.10 under separate causes of action, the first an express promise to pay $10,000 to Mr. Laven for legal services, the second for the reasonable value of the services in the sum of $10,000. In each cause of action it was alleged that Mr. Laven had expended $905.10 in connection with certain litigation at the special instance and request of defendant. The court awarded plaintiff $1,500 ‘including services and costs.’ Plaintiff appeals.

The first point on the appeal is that the court should have made separate findings as to the amount allowed for costs and the amount awarded as attorney's fees. The appellant argues at length that it is impossible for this court to know how much was allowed as attorney's fees. There would be merit in this point if the objection had not been waived by plaintiff. The minutes of the court show that the court announced its judgment in favor of plaintiff in the sum of $1,500 and ordered ‘findings may be submitted by both parties.’ The record does not show whether the court signed the plaintiff's findings or those of the defendant. We may assume, however, as a fact most favorable to the plaintiff, that the findings are those submitted by the defendant. It does not appear in the record nor is it stated in the plaintiff's briefs that plaintiff requested the court to make separate findings as to costs and attorney's fees. Section 634 of the Code of Civil Procedure requires that proposed findings be served; that objection thereto may be made within five days and that the court shall not sign findings until the lapse of that time. The purpose is to allow objections to the findings as proposed and to request other or different findings. We think the present case presents a classical illustration of the propriety of that procedure. Had the plaintiff raised the point in the trial court that he raises here, it is altogether likely that the court would have made separate findings. It is now too late to urge the objection. Estate of Wacholder, 76 Cal.App.2d 452, 456, 457, 173 P.2d 359; Del Ruth v. Del Ruth, 75 Cal.App.2d 638, 644, 645, 171 P.2d 34; Tooke v. Allen, 85 Cal.App.2d 230, 238, 239, 192 P.2d 804.

The remaining point is that regardless of the amount allowed as costs the balance was as a matter of law wholly disproportionate to the value of the services rendered and grossly inadequate. Although plaintiff's briefs recite in full detail the history of the litigation in which the services of Mr. Laven were employed, a general statement will suffice. In October 1951, Mildred Barath, who was also known under other names, accused Mr. Turner of being the father of her recently born child and an action for support was brought by the child. Mr. Laven was employed to defend that action. In the early stages of the litigation Mr. Turner was ordered to pay $100 per month pendente lite for the child's support and $750 as attorney's fees. Mr. Turner is a Caucasian. He contended that Mildred had been married to a Mr. Johns, a Negro, and that she claimed she was not wholly Caucasian. Mr. Turner and Mr. Laven engaged the services of investigators and as a result of the investigation there was discovered the record of Mildred's marriage to James Cecil Johns. On production of this record, and on motion, the court vacated its previous order for support of the child. The paternity suit was never tried. Mr. Laven was replaced by other counsel and the child's demand was settled for $2,000.

Mr. Laven testified he spent more than 300 hours in working on the case. The court found that at all times he was an Assistant United States Attorney receiving a salary of $6,500 per year, working from 8:30 in the morning to 5:00 in the afternoon, and having the privilege of practicing law in addition to these duties. During the time of his employment he was paid $3,685 as attorney's fees and costs but the court found that the costs were not segregated from the attorney's fees. It thus appears that the allowance of $1,500 would bring the amount paid to Mr. Laven to $5,185, inclusive of monies expended by him in the course of the litigation. In addition to that amount Turner paid $2,000 to two investigators and $1,800 to another. The litigation therefore cost him $8,985, which would not include any fees paid to the attorney who followed Mr. Laven and effected a settlement nor the $2,000 paid in the settlement, nor the $100 per month which was paid pendente lite. While some of these facts were collateral to the principal question of the value of Mr. Laven's services, the court could scarcely have been expected to overlook the fact that at a cost of around $13,000 Mr. Turner's acquaintanceship with Mildred had been an expensive one.

Eminent lawyers called as plaintiff's experts appraised the value of Mr. Laven's services at a minimum of $10,000 upon which the sums paid him on account should be credited. While these opinions deserved and no doubt received the careful consideration of the court it has been observed that most experts expressing opinions as to the value of services whether the valuations be high or low gauge the value by what they consider their own services would have been worth under similar circumstances. The experienced trial judge no doubt evaluated the services of Mr. Laven upon a much broader and more impartial basis.

It is well settled that in evaluating the services of an attorney the court is not required to receive expert testimony nor is it bound by the opinions expressed by the experts even though they be uncontradicted. Agnew v. Larson, 82 Cal.App.2d 176, 185 P.2d 851; Albertsworth v. Glens Falls Indemnity Co., 84 Cal.App.2d 816, 825, 192 P.2d 66; Joost v. Castel, 33 Cal.App.2d 138, 91 P.2d 172; 8 West's Cal. Digest, Attorney and Client, k140, p. 614 and Vol. 21, Evidence, k571(6), p. 642.

The question of the reasonable value of the services was a factual one and the determination was largely within the discretion of the trial court. We have only the question whether there was a manifest abuse of that discretion. Biaggi v. Sawyer, 75 Cal.App.2d 105, 115, 170 P.2d 678. We see no abuse of discretion. Neither would we have considered it an abuse of discretion had the court allowed substantially more than the amount that was allowed. The value of an attorney's services is not always to be determined by the amount of time devoted to the work. Even if there be no question as to the time expended the court must determine the time that was necessarily and profitably expended and, of course, should make no allowance for that which was excessive. The court expressed the opinion that 300 hours was an excessive amount of time to spend on the case and this appears to have been a fair view to take of the matter. If the court believed that the litigation presented no great difficulty or complexity and that the service which was of greatest value to Mr. Turner lay in the investigation which resulted in the discovery of Mildred's marriage record, we would not find ourselves in disagreement.

The judgment is affirmed.

SHINN, Presiding Justice.

PARKER WOOD and VALLÉE, JJ., concur.