Altschul v. Schweitzer

Opinion

WIENER, J.

Plaintiff Ora Altschul appeals from the judgment of dismissal entered after the court sustained defendant’s demurrer without leave to amend. We reverse with instructions to the trial court to overrule the demurrer.

Factual and Procedural Background

On August 17, 1984, Gary S. Schweitzer, an attorney, died testate. On October 10, the San Diego Superior Court issued letters testamentary to Melvin L. Schweitzer as executor of the estate under the Independent Administration of Estates Act.

The executor’s attorney, James E. Clark, began to collect assets of Schweitzer’s estate for their distribution to decedent’s two minor children. One such asset included a $29,000 account receivable from Altschul representing attorney’s fees for services rendered by the decedent. The claim was turned over to an agency for collection.

On November 30, 1984, and on several occasions after that, Altschul’s attorney, Rita E. Moss, contacted Clark. These conversations included dis

[332]

cussions relating to Altschul’s inability to pay the debt and her contention decedent had failed to render his services in a competent manner. These discussions culminated in a compromise reflected in Clark’s December 10, 1984, letter to Moss in which he stated the estate “reject[ed] any suggestion that there has been any negligence committed by Mr. Schweitzer,” but the estate was willing to cancel Altschul’s obligation because she “appears to ... be judgment proof.” In consideration for cancelling her $29,000 debt, Altschul released any cause of action she might have against the estate.

Altschul’s counsel drafted a compromise and settlement agreement and sent it to Clark. The executor signed the agreement and returned it. In a letter to Altschul’s counsel received February 4,1985, Clark said the “agreement you forwarded to my office has been executed . . . Before releasing it from my possession in consummating the settlement, however, I feel that it is appropriate to petition the court for special instructions.”

On March 20, 1985, the court denied the petition for compromise. According to Clark the court found there was insufficient evidence to support Altschul’s claim for malpractice and accordingly the court believed it improper for the estate to abandon its claim for $29,000 in fees which would have been for the benefit of the minor beneficiaries.