Hendricks v. Superior Court

BRAY, P. J.

Petition for writ of prohibition to prohibit the superior court from paying out certain moneys deposited in court for payment of judgment in a personal injury action.

Question

Has the court in a personal injury action jurisdiction to foreclose an attorney’s lien on the judgment in said action?

Record

On April 5, 1956, petitioner, who had been injured in an automobile accident, executed in writing an attorney’s contingent fee retainer agreement with Attorney Seibert L. Sefton, under which the attorney was to receive one-third of the amount recovered. Attorney Sefton filed suit in her behalf

[588]

to recover damages for her injuries. Thereafter petitioner terminated the agreement. Thereupon the attorney filed in the personal injury action a notice of his lien on any recovery. Petitioner then filed a declaratory relief action seeking to have the agreement declared void. (See

Hendricks

v.

Sefton

(1960) 180 Cal.App.2d 526 [4 Cal.Rptr. 218].) There the court held the agreement to be a valid one, that petitioner did not have sufficient cause for terminating it, and affirmed the judgment of the superior court which held that the attorney had a valid, enforceable lien for his fee upon any recovery in the personal injury action.

The personal injury action proceeded to trial, another attorney acting for petitioner. Judgment of $26,109.70 was recovered in favor of petitioner. The defendant in that action deposited in court the amount of the judgment. Thereafter Attorney Sefton moved the court in that action to allow him to withdraw the sum of $8,333.33. Petitioner opposed the motion, contending that the court had no power to determine the attorney’s right to this money, and claiming that Sefton had breached the contract by refusing to advance the costs of the action as required by the contract. She also claimed that in any event, the attorney’s fees should be computed on the balance remaining after the costs of the litigation were deducted from the amount of the recovery. The trial court nevertheless ordered that the sum of $8,333.33, which was one-third of the gross recovery, be paid over to the attorney.