City of Downey v. Johnson

• Decision Date: 09 July 1968
• Citation: 69 Cal.Rptr. 830,263 Cal.App.2d 775
• Court: California Court of Appeals Court of Appeals
• Parties: CITY OF DOWNEY, a municipal corporation, Plaintiff and Respondent, v. Willie JOHNSON, Executor etc., Defendant and Appellant. Civ. 31319.

Page 830

69 Cal.Rptr. 830

263 Cal.App.2d 775

CITY OF DOWNEY, a municipal corporation, Plaintiff and Respondent, v. Willie JOHNSON, Executor etc., Defendant and Appellant.

Civ. 31319.

Court of Appeal, Second District, Division 5, California.

July 9, 1968.

[263 Cal.App.2d 776] Willie Johnson, Executor of the Will of Ella J. Dotsey, decd., in pro. per. for defendant and appellant.

Royal M. Sorensen, City Atty. of Downey, Burke, Williams & Sorensen, and Carl K. Newton, Los Angeles, for plaintiff and respondent.

AISO, Associate Justice pro tem. ^*

Plaintiff City of Downey, a municipal corporation, brought this eminent domain proceeding to condemn certain parcels of land located within said city to acquire a municipal hospital building site. Plaintiff obtained an interlocutory judgment in condemnation covering parcels 39, 40, 41 and 42 described in its second amended complaint. Payments were ordered to be allocated: 'to defendants Antonio Macias and Francis L. Macias the sum of $11,250.00, or to defendant Willie Johnson, as Executor of the Will of Ella J. Dotsey, deceased, the sum of $15,100.00, according to the determination of ownership by final judgment in the pending action Los Angeles Superior Court number 765596; to defendant Willie Johnson, as Executor of the Will of Ella J. Dotsey, deceased, Parcel 40--$31,300.00, Parcel 41--$14,000.00, and Parcel 42--$14,600.00 * * *' Willie Johnson, Executor of the Will of Ella J. Dotsey, deceased, in propria persona appeals from the aforesaid interlocutory judgment.

We noted from the notice of appeal, ¹ the appeal record, and the briefs ² that there were possible irregularities in this case as all indications pointed to a nonlawyer executor of a deceased person's will prosecuting in propria persona an appeal from a condemnation judgment. Concern arose as to our jurisdiction to hear the appeal when Mr. Willie Johnson acknowledged in open court that he was not a member of the State Bar of California nor of any other bar.

Since threshold questions of jurisdiction and validity of the judgment appeared inescapable, we requested supplementary briefs and heard supplemental oral argument addressed to the issues we shall shortly consider.

The action was commenced against Ella J. Dotsey, Willie Johnson's mother, for four parcels of real property which she owned or in which she claimed an interest. The original complaint and the lis pendens named only Ella J. Dotsey as a defendant. The first amended complaint named both Ella J. Dotsey and Willie Johnson, Conservator of the Estate of Ella J. Dotsey. The summons on the first amended complaint and the first amended complaint were served personally on both Ella J. Dotsey and Willie Johnson, Conservator of the Estate of Ella J. Dotsey on September 16, 1964. Thereafter on September 24, 1964, Willie Johnson, as Conservator of the Estate of Ella J. Dotsey filed an answer and a cross-complaint, signing the answer, 'Willie Johnson Conservator of the Estate of Ella J. Dotsey in pro per' and the cross-complaint, 'Willie Johnson in pro per.' No answer for Ella J. Dotsey herself appears to have been filed.

We skip the various mesne proceedings until we come to a document filed on October 18, 1965, entitled, 'SUBSTITUTION OF ATTORNEYS' ³ and an order entitled, 'FINAL PRE-TRIAL CONFERENCE ORDER' dated October 20, 1965, and filed November 4, 1965, reciting that a pretrial conference was held on October 18, 196(5) and setting forth the following order among others, 'Mr. Willie Johnson, as Executor of the Estate of Ella J. Dotsey, deceased, has been substituted in place of and in stead (sic) of Willia (sic) Johnson, conservator of the Estate of Ella J. Dotsey, by the filing of a substitution of attorneys this date.' Whether this order was intended to be a substitution Thereafter various pretrial and trial proceedings were had, including trial of the fair market value issue to a jury, with Willie Johnson, Executor of the Will of Ella J. Dotsey, deceased, in propria persona conducting the defense, and which resulted in the interlocutory judgment from which this appeal is taken.

of parties as well as of attorneys is not clear.

We address ourselves to three questions: (1) Is there a valid notice of appeal giving us jurisdiction to entertain this appeal? (2) Did Willie Johnson Qua executor or conservator have the right to appear, conduct the trial, and prosecute this appeal in this representative capacity in propria persona? (3) Should question (2) be answered in the negative, what is the effect upon the judgment?

We have concluded that the answer to question (1) is 'Yes,' to question (2), 'No' and (3) the judgment is invalid. For purposes of convenience and greater clarity, we shall take up the questions in the following order: (2), (1), and (3).

NEITHER CONSERVATOR NOR EXECUTOR CAN APPEAR IN PROPRIA PERSONA

We have found no California statutory or case authority adjudicating whether a conservator or an executor who is not a licensed lawyer may appear in his representative capacity 'in propria persona' in a judicial action or proceeding which is not an integral part of the proceedings within the jurisdiction of the probate court. Neither respondent's counsel nor Willie Johnson have presented us with any.

This condemnation proceeding involves the City of Downey's taking property In invitum in which Ella J. Dotsey in her lifetime and, after her demise, her devisees, heirs, and creditors have a material interest. As such it is not within the jurisdiction of the probate court (see e.g. Central Bank v. Superior Court (1955) 45 Cal.2d 10, 14, 285 P.2d 906; Estate of Schloss (1961) 56 Cal.2d 248, 253, 14 Cal.Rptr. 643, 363 P.2d 875; Auslen v. Superior Court (1962) 58 Cal.2d 820, 823, 27 Cal.Rptr. 8, 377 P.2d 72), of which court the conservator, or executor is, in a sense, an appointed officer.

The cases from the other jurisdictions appear to be unanimous in holding that in absence of statutory authorization, ⁴ neither an executor, administrator, nor a guardian may appear except through a licensed attorney in proceedings involving matters other than his personal rights as such a representative, e.g. accounting to a probate court. '(A) person who is not a licensed attorney and who is acting as an administrator, executor or guardian cannot practice law in matters relating to his trusteeship on the theory that he is practicing for himself.' (Arkansas Bar Assn. v. Union Nat. Bank (1954) 224 Ark. 48, 51--52, 273 S.W.2d 408, 410; accord: In re Otterness (1930) 181 Minn. 254, 258, 232 N.W. 318, 73 A.L.R. 1319; State Bar Assn. of Connecticut v. Connecticut Bank & Trust Co. (1959) 146 Conn. 556, 558--559, 153 A.2d 453; Frazee v. Citizens Fidelity Bank & Trust Co. (1964) (Ky.) 393 S.W.2d 778, 782; State ex rel. Baker v. County Court of Rock County (1965) 29 Wis.2d 1, 138 N.W.2d 162; Collins v. O'Brien (1953) 93 U.S.App.D.C. 152, 208 F.2d 44, 45 (dictum); cf. McShane v. United States (CA9, 1966) 366 F.2d 286, 288.)

Summarizing the philosophy of the foregoing cases, the court in Kasharian v. Wilentz (1967), supra, 93 N.J.Super. 479, 226 A.2d 437, 438--439, holding that a nonlawyer administrator Ad prosequendum cannot maintain an action in propria persona for the wrongful death of his son, stated:

'While we find no case precisely in point, the philosophy of the decided cases is that nominal representatives or even active fiduciaries of the persons in beneficial interest, not themselves lawyers 'The harmful consequences of unlicensed law practice in the present context are strikingly demonstrated by the activities of this plaintiff in this and other cases brought by him in connection with the same occurrences complained of where confusion has reigned supreme because of the many unintelligible, untimely and inappropriate documents he has drawn Pro se and served and filed, not to mention the consequent serious prejudice to the substantial rights, if any there may be, of the class of persons having beneficial interest in such cases.'

should not be permitted to conduct legal proceedings in court involving the rights or liabilities of such persons without representation by attorneys duly qualified to practice law. (Citations.)

We hold that Willie Johnson neither Qua conservator ⁵ nor Qua executor was entitled to appear in propria persona and conduct the trial proceedings below or to prosecute the appeal before this court. We do not decide here the right or capacity of a conservator or an executor to appear in propria persona in probate court proceedings affecting rights personal to his office as executor or conservator to which he has been appointed by the probate court.

It is not clear whether the answer of Willie Johnson, Conservator of the Estate of Ella J. Dotsey, was intended to be an answer on behalf of Ella J. Dotsey. It is also ambiguous whether Willie Johnson, Executor, was substituted in as a party defendant. There is no doubt, however, of Willie Johnson's intent to appear on behalf of Ella J. Dotsey and of her estate in a representative capacity. He filed various notices of motions reading, 'Defendant ELLA J. DOTSEY, by WILLIE JOHNSON, Conservator of her person and estate, will * * * move * * *' or 'defendant ELLA J. DOTSEY, by Willie Johnson, Executor of her Will, intends to * * *.' The substitution of attorneys ⁶ purports to 'substitute Willie Johnson, Executor of the Estate of Ella J. Dotsey, Deceased, as Attorney of Record, in Pro Per.'

Willie Johnson as a non-lawyer appearing in his representative capacity in propria persona did not have the right to appear and defend this action.

NOTICE OF APPEAL VALID

The notice of appeal from the interlocutory judgment ⁷ was signed, 'Willie Johnson Executor of the Will of ELLA J. dec'd' ⁸ and was filed within the proper time.

By virtue of the express wording of Rule 1(a) of the Rules of Appeal, ⁹ we draw a distinction between the capacity of a person acting in propria persona to sign and file...