Brown v. Connolly

Opinion

ELKINGTON, J.

Plaintiff Joseph A. Brown appeals from a judgment of dismissal after the sustaining of a demurrer to his second amended complaint without leave to amend. A purported appeal by him from the related nonappealable order sustaining the demurrer must be dismissed. (See

Lavine

v.

Jessup,

48 Cal.2d 611, 614 [311 P.2d 8].)

[869]

Brown is an attorney at law. His second amended complaint alleged, as material here, that: (1) he had “entered into a contract in writing with the defendants herein to act as an attorney at law for the defendants, William J. Connolly and the Sunswept Trading Co., Inc., to render legal services for them in an action pending in the Superior Court of the State of California, in and for the City and County of San Francisco, against the General Brewing Company, a California corporation, to recover the sum of $4,500,000; that the said agreement provided that the plaintiff should have and recover as an attorney’s fee (contingent upon recovery) the sum of 25% of $4,500,000”; (2) that after he had rendered substantial services under the contract; including filing an action and prosecuting it diligently, “he was thereupon without right, without fault or cause, or any reason unjustly discharged by the defendants,” and (3) “That by reason of all of the acts of the defendants herein plaintiff was deprived and prevented from earning his fee of 25 % of $4,500,000.” Judgment was prayed against defendants for the sum of $1,125,000 and costs of suit.

The second amended complaint contained no allegation, nor does Brown here make any contention that he could allege, that the defendants had recovered $4,500,000, or anything, on their claim against the General Brewing Company. Nor did the amended complaint contain allegations supporting, or prayer for,

the reasonable value of services

rendered in reliance upon the agreement.

Brown contended in the superior court, and here contends, that an attorney party to a percentage contingency fee contract, who, because of an unjustifiable discharge is prevented from further prosecution of his erstwhile client’s claim, thereupon becomes entitled to the agreed percentage of the entire claim, even though no recovery is ever made thereon.