Himmel v. City Council of Burlingame

• Court: California Court of Appeals
• Writing for the Court: BRAY; PETERS, P. J., and FRED B. WOOD
• Citation: Himmel v. City Council of Burlingame, 169 Cal.App.2d 97, 336 P.2d 996 (Cal. App. 1959)
• Decision Date: 26 March 1959
• Docket Number: No. 17691,17691
• Parties: James HIMMEL, as Trustee of an Express Trust, and Burlingame Civic Improvement Club, Incorporated, a Corporation, Beneficiary of said Express Trust, Plaintiffs and Appellants, v. CITY COUNCIL OF The City of BURLINGAME, Lester B. Morgan, Andrew C. Byrd, Charles W. Rooth, Charlotte Johnson and Josephine Thayer, Members of said City Council, George J. Marr, City Engineer of the City of Burlingame, Burress Karmel, City Attorney of the City of Burlingame, Defendants and Respondents.

Page 996

336 P.2d 996

169 Cal.App.2d 97

James HIMMEL, as Trustee of an Express Trust, and Burlingame Civic Improvement Club, Incorporated, a Corporation, Beneficiary of said Express Trust, Plaintiffs and Appellants, v. CITY COUNCIL OF The City of BURLINGAME, Lester B. Morgan, Andrew C. Byrd, Charles W. Rooth, Charlotte Johnson and Josephine Thayer, Members of said City Council, George J. Marr, City Engineer of the City of Burlingame, Burress Karmel, City Attorney of the City of Burlingame, Defendants and Respondents.

No. 17691.

District Court of Appeal, First District, Division 1, California.

March 26, 1959.

Hearing Denied May 20, 1959.

James Himmel, Burlingame, appellant, in pro. per.

Burress Karmel, City Atty., Burlingame, for respondents.

BRAY, Justice.

The notice of appeal states: 'Plaintiffs are appealing all rulings, orders, and judgments, interlocutory or final, which in any way, or to any degree are adverse to the interests of the plaintiffs in the above-entitled action. Particular reference is made to proceedings in the above-entitled case of May 18, 1956 and March 16, 1956.' ^*

Questions Presented.

1. May a corporation sue in propria persona?

2. After motion to strike complaint granted, may complaint be amended without leave of court?

Record.

May 16, 1955, complaint for injunction and petition for alternative writ of mandate and/or writ of review and/or writ of prohibition was filed entitled 'Burlingame Civic Improvement, Club, Incorporated, a Corporation and City of Burlingame, plaintiffs, vs. City Council of the City of Burlingame, defendants' (this complaint will be referred to as complaint No. 1), signed 'Howard Watkinson, President, Burlingame Civic Improvement Club, James Himmel, First Vice-President, Burlingame Civic Improvement Club, Hugh Rosaaen, Jr., Secretary, Burlingame Civic Improvement Club,' verified by Hugh Rosaaen, Jr. and Joy Ahren Rosaaen, designated as 'interested parties to the above-entitled action as are other taxpayers, qualified electors and property owners in the City of Burlingame, who are similarly aggrieved * * *' No name of attorney nor designation of any person in propria persona appears.

The same day an application was made for a temporary restraining order and order to show cause. The proposed order, in the space ordinarily used for the name of the counsel for plaintiff, stated the name of the club, its president, first vice president and treasurer, and secretary, 'Office of Secretary,' address and telephone number 'For the Plaintiff.' June 6, amended complaint filed (herein designated complaint No. 2.) It is similar to the first complaint except that City of Burlingame is eliminated as a plaintiff and included as a defendant. Also designated members of the city council, the city attorney and city engineer are also the defendants. It is signed 'James Himmel' and verified by him as 'Founder, First Vice-President, and Treasurer' of the club. No attorney or person in propria persona appears. During the period June 6, 1955, to February 14, 1956, plaintiffs filed three amended complaints (herein designated as complaints number 3, 4 and 5), and innumerable notices of motion. All of these plaintiffs requested leave to withdraw and on February 14 were granted permission to withdraw. It might be added that a considerable part of the complexities and confusions of the record in this matter could have been avoided had the Burlingame Civic Improvement Club employed an attorney to handle its court proceedings instead of leaving them to a layman.

In complaint No. 3 the plaintiff was designated as 'James Himmel, as Trustee of an Express Trust, Director and Founder of Burlingame Civic Improvement Club, Incorporated, a Corporation, Beneficiary of said Express Trust.' In complaints No. 4 and No. 5 so withdrawn plaintiffs in each were 'James Himmel, as Trustee of an Express Trust, and Burlingame Civic Improvement Club, Incorporated, a Corporation, Beneficiary of said Express Trust.'

Finally, February 14, 1956, 'First Amended Complaint for Injunction, Writ of Mandate and General Relief, Incorporating Modifications to all Prior Pleadings in Order to Correct Formal and Technical Defects' was filed (herein referred to as complaint No. 6). Here the plaintiffs are 'James Himmel, as Trustee of an Express Trust, and Burlingame Civic Improvement Club, Incorporated, a Corporation, Beneficiary of said Express Trust.' It is signed and verified, 'James Himmel, in Propria Persona, Plaintiff as Trustee of an Express Trust for Burlingame Civic Improvement Club, Incorporated, a Corporation, Beneficiary of said Express Trust.' Defendants failed to appear to complaints No. 2 and No. 6. Their defaults were taken and judgments entered against them. Later the defaults and judgments were set aside. Plaintiffs made several motions, other than those they withdrew, among others, motions to set aside the orders relieving defendants from default, which were denied. In view of our rulings on the major questions presented we deem it unnecessary to consider the actions of the court thereon.

The record is highly confused and in many instances it is difficult to determine just what the court's order was. Thus on June 24, 1955, a minute order entry appears, 'It is ordered that the motion to strike be granted.' At that time there were before the court a motion to strike the original complaint (complaint No. 1) and the amended complaint (complaint No. 2). Plaintiffs contend that the order referred to complaint No. 1, defendants that it referred to complaint No. 2. As nearly as we can figure out from the record, it was complaint No. 1 that was stricken. At the time of the hearing of the motion, complaint No. 1 had been superseded by complaint No. 2 filed on June 6. (See 2 Witkin, California Procedure, p. 1603, § 592, to the effect that an amended complaint supersedes the original one.) Plaintiffs had the right to amend their complaint once, of course, before answer or demurrer filed. Code Civ.Proc. § 472. Therefore, the striking of complaint No. 1 was an idle act, and of no importance. Later, the court ordered complaints No. 2 and No. 6 stricken from the record. This brings us to the question, was the court's action proper in striking complaint No. 2 and if so, were plaintiffs entitled to file their amended complaint (complaint No. 6) without leave of court?

1. Corporation In Propria Persona.

Primarily the propriety of the court's order striking complaint No. 2 depends upon whether in California a corporation may sue in propria persona. That it may not has been flatly determined in this state. Paradise v. Nowlin, 1948, 86 Cal.App.2d 897, at page 898, 195 P.2d 867, at page 867, so holds: 'A natural person may represent himself and present his own case to the court although he is not a licensed attorney. A corporation is not a natural person. It is an artificial entity created by law and as such it can neither practice law nor appear or act in person. Out of court it must act in its affairs through its agents and representatives and in matters in court it can act only through licensed attorneys. A corporation cannot appear in court by an officer who is not an attorney and it cannot appear in propria persona. [Citations.]' Plaintiffs rely upon A. Victor & Co. v. Sleininger, 255 App.Div. 673, 9 N.Y.S.2d 323, holding that a corporation could be represented by a director who was not an attorney. The Paradise case expressly refused to follow that case, pointing out that 'The later New York cases have negated this concept.' 86 Cal.App.2d at page 899, 195 P.2d at page 868. The Paradise case distinguished Prudential Insurance Co. of America v. Small Claims Court, 76 Cal.App.2d 379, 173 P.2d 38, 167 A.L.R. 820, which held that a corporation could appear in propria persona in the small claims court by pointing out that as attorneys are prohibited by law from appearing in that court, a corporation could not defend tiself there unless it could appear in propria persona, but no such situation...