Hansen v. Hansen
| Decision Date | 18 December 2003 |
| Docket Number | No. G031499.,G031499. |
| Citation | 114 Cal.App.4th 618,7 Cal.Rptr.3d 688 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Patricia A. HANSEN, as Personal Representative, etc., Plaintiff and Appellant, v. Christine M.L.R. HANSEN, Defendant and Respondent. |
Barry A. Bisson, Huntington Beach, for Plaintiff and Appellant.
Jim Bentson for Defendant and Respondent.
We publish our opinion to confirm the principle announced in City of Downey v. Johnson (1968) 263 Cal.App.2d 775, 780, 69 Cal.Rptr. 830 that a conservator, executor, or personal representative of a decedent's estate who is unlicensed to practice law cannot appear in propria persona on behalf of the estate in matters outside the probate proceedings. When such a non-lawyer brings a nonprobate action in propria persona on behalf of the estate, the proper appellate remedy is to reverse with directions for the trial court to strike the complaint.
Patricia A. Hansen (Patricia), claiming to be the personal representative of the estate of Betty J. Hansen, sued Christine M.L.R. Hansen (Christine),1 purporting to allege claims for breach of contract, fraud, misrepresentation, and breach of fiduciary duty. Patricia filed the complaint as a general civil matter, not as a petition within the probate matter opened for the estate of Betty J. Hansen. The trial court sustained Christine's demurrer to the second amended complaint without leave to amend, and Patricia appealed from the subsequent judgment of dismissal. Patricia is not licensed to practice law. Although Patricia retained counsel for the appeal, she filed and prosecuted the complaint in propria persona. We therefore reverse and remand with directions to strike the complaint without prejudice.
Betty J. Hansen (decedent) died on December 19, 1995. She was the mother of Patricia and Christine.
On August 29, 2001, Patricia, claiming to be the "Personal Representative of the Estate of Betty J. Hansen," filed a complaint against Christine, alleging breach of contract, fraud, misrepresentation, and breach of fiduciary duty. The complaint was filed as a general civil matter. Patricia appeared on behalf of the estate in propria persona.
After several demurrers, Patricia filed a second amended complaint (the Complaint), the operative pleading. The Complaint is a form complaint with attachments. It alleged that in "the early 1990's" Christine removed $130,000 from a bank account held under decedent's social security number. The Complaint suggested the bank account was held in joint tenancy by Christine and decedent, and alleged decedent "did not understand the nature of the joint tenancy estate and believed that she was establishing a trust for the benefit of all her daughters." The Complaint alleged Patricia did not discover Christine had removed the money until the trial of a suit for partition of the family home in October 1999.
The Complaint alleged Christine represented to decedent she would spend the proceeds from the bank account on decedent's care and maintenance and, upon decedent's death, would divide whatever was left equally between Patricia, Christine, and a third sister, Stephanie Hansen. The Complaint alleged Christine represented to Patricia that all of the money withdrawn from the bank account had been expended for decedent's care, but Christine actually spent only $40,000 of the $130,000 in bank account proceeds on decedent's care and kept the rest for herself. Patricia allegedly did not learn Christine had kept the remaining $90,000 until October 1999, when Christine testified at a trial for partition of the family home she had spent only $40,000 on decedent's care.
Christine demurred to the Complaint on the grounds (1) it failed to state a claim and (2) each of the causes of action alleged was time-barred. The trial court sustained the demurrer without leave to amend. The judgment of dismissal was entered on October 30, 2002. Patricia retained counsel to represent decedent's estate in this appeal from that judgment.
The appellate record does not contain anything establishing Patricia was ever appointed the personal representative of decedent's estate. After oral argument, Patricia moved to augment the record with letters testamentary appointing her the executor of decedent's estate. Attached to the letters testamentary is a document, apparently signed by Patricia, in which she appointed herself the personal representative of decedent's estate. The letters testamentary with the attachment were filed on March 10, 2000 in Orange County Superior Court case No. A197560, which apparently is the probate matter for decedent's estate. We received no opposition to the motion to augment the record and granted the motion.
A person who is unlicensed to practice law and who represents a decedent's estate cannot appear in propria persona on behalf of the estate in matters outside the probate proceedings. (City of Downey v. Johnson, supra, 263 Cal.App.2d 775, 780, 69 Cal.Rptr. 830; see also Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2003) ¶ 2:130, p. 2-37 (rev.# 1, 2002).) Since the passage of the State Bar Act in 1927, persons may represent their own interests in legal proceedings, but may not represent the interests of another unless they are active members of the State Bar. (Drake v. Superior Court (1994) 21 Cal.App.4th 1826, 1830, 26 Cal.Rptr.2d 829.) "In line with that prohibition, courts have held, among other examples, that ... [citation] ... [citation] ... a nonlawyer representing his mother's estate as conservator and executor cannot appear in propria persona on behalf of the estate." (Id. at pp. 1830-1831, 26 Cal.Rptr.2d 829, citing City of Downey v. Johnson, supra, 263 Cal.App.2d at p. 779, 69 Cal.Rptr. 830.)
In City of Downey v. Johnson, supra, 263 Cal.App.2d 775, 776, 69 Cal.Rptr. 830, the City of Downey brought an eminent domain action against a decedent's estate. The executor of the estate defended the action in propria persona and in that capacity pursued an appeal from the judgment. (Ibid.) Noting the action was not within the jurisdiction of the probate court, Judge Aiso (sitting by assignment), joined by Justices Kaus and Hufstedler,...
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