Schultz

Alan Schultz and Marcia Schultz, guardians ad litem for the minor, Christopher Schultz (collectively, Schultz) appeal from the judgment of the superior cotut dismissing Schultz’s action for legal malpractice and fraud against David M. Harney, after Harney’s demurrer to Schultz’s first amended complaint was sustained without leave to amend. Harney, who was Schultz’s attorney in an earlier action for medical malpractice, charged Schultz fees in excess of the fees allowable under Business and Professions Code section 6146, which limits the amount of attorney fees payable in such actions. In the case at bench, Schultz sued to recover the excess amounts. Because the challenged fees had been expressly approved by the probate court in proceedings under Probate Code section 3601 to approve successive compromises of the minor Christopher’s claims, the court sustained Harney’s demurrer, holding that Schultz’s collateral attack was barred by the doctrine of res judicata.

We conclude that no basis for application of the doctrine of res judicata exists. The request for and allowance of an attorney’s fee in connection with the approval of a minor’s compromise is generally an…