Merco Constr. Engineers, Inc. v. Municipal Court

• Decision Date: 25 July 1978
• Docket Number: SULLY-MILLER
• Citation: 21 Cal.3d 724,581 P.2d 636,147 Cal.Rptr. 631
• Court: California Supreme Court
• Parties: , 581 P.2d 636 MERCO CONSTRUCTION ENGINEERS, INC., Plaintiff and Appellant, v. The MUNICIPAL COURT FOR the LONG BEACH JUDICIAL DISTRICT OF LOS ANGELES COUNTY, Defendant and Respondent;CONTRACTING COMPANY, Real Party in Interest and Respondent. L.A. 30825.

Page 631

147 Cal.Rptr. 631

21 Cal.3d 724, 581 P.2d 636

MERCO CONSTRUCTION ENGINEERS, INC., Plaintiff and Appellant, v. The MUNICIPAL COURT FOR the LONG BEACH JUDICIAL DISTRICT OF LOS ANGELES COUNTY, Defendant and Respondent SULLY-MILLER CONTRACTING COMPANY, Real Party in Interest and Respondent.

L.A. 30825.

Supreme Court of California, In Bank.

July 25, 1978.

Grant & Popovich and Irvin Grant, Santa Monica, for plaintiff and appellant.

John H. Larson, County Counsel, and David B. Kelsey, Deputy County Counsel, for defendant and respondent.

Herbert M. Rosenthal, Ronald W. Stovitz, San Francisco, Joseph P. Charney and Kenyon F. Dobberteen, Los Angeles, as amici curiae on behalf of defendant and respondent.

No appearance for real party in interest.

CLARK, Justice.

Appeal from judgment denying petition for writ of mandate directing, inter alia, the respondent Long Beach Municipal Court to allow petitioner, Merco Construction Engineers, Inc., a corporation (Merco), to appear in a civil action through a corporate officer not an attorney. ¹ Merco relies on Code of Civil Procedure section 90, purporting to authorize such an appearance. ² We conclude the Legislature cannot constitutionally vest in a person not licensed to practice law the right to appear in a court of record in behalf of another person, including a corporate entity. We therefore affirm the judgment.

Both the municipal court and Sully-Miller contend the Legislature is precluded by the separation of powers clause from designating those persons who are authorized to practice law. ³ The exclusive right to deter mine who is qualified to practice law is claimed to be an inherent power of the judiciary. ⁴ Statements of our courts have consistently supported such contention.

In Brydonjack v. State Bar (1929) 208 Cal. 439, 281 P. 1018 we noted that "(a)dmission to practice is almost without exception conceded everywhere to be the exercise of a judicial function . . . ." (Id. at p. 443, 281 P. at p. 1020.) More than three decades later we stated that "(h)istorically, the courts, alone, have controlled admission, discipline and disbarment of persons entitled to practice before them." (Brotsky v. State Bar (1962) 57 Cal.2d 287, 300, 19 Cal.Rptr. 153, 158, 368 P.2d 697, 703.) We have also dealt directly with the compulsion of legislation purporting to set standards for admission to practice law. In the case of In re Lavine (1935) 2 Cal.2d 324, 41 P.2d 161, a "pardon statute" purported inter alia to restore to an attorney disbarred upon conviction of a crime, the right to practice law following an executive pardon of the offense. Prior to enactment of the statute, granting a full pardon had been judicially held insufficient of itself to entitle the attorney to reinstatement. The statute, accordingly, purported to overturn a judicial rule governing admission to practice law.

While recognizing "that the legislature may prescribe reasonable rules and regulations for admission to the bar" we held such "legislative regulations are, at best, but minimum standards unless the courts themselves are satisfied that such qualifications as are prescribed by legislative enactment are sufficient. . . . In other words, the courts in the exercise of their inherent power may demand more than the Legislature has required. (Citations.)" (In re Lavine, supra, 2 Cal.2d 324, 328, 41 P.2d 161, 162.) We concluded "that in so far as the . . . 'pardon statute' purports to reinstate, or to direct this, or any other, court to reinstate, without any showing of moral rehabilitation, an attorney who has received an executive pardon of the offense upon the conviction of which his disbarment was based, the same is unconstitutional and void as a legislative encroachment upon the inherent power of this court to admit attorneys to the practice of law and is tantamount to the vacating of a judicial order by legislative mandate." ⁵ (Id., at p. 329, 41 P.2d at p. 163; see also Stratmore v. State Bar (1975) 14 Cal.3d 887, 889-890, 123 Cal.Rptr. 101, 538 P.2d 229; Emslie v. State Bar (1974) 11 Cal.3d 210, 225, 113 Cal.Rptr. 175, 520 P.2d 991; In re Bogart (1973) 9 Cal.3d 743, 750, 108 Cal.Rptr. 815, 511 P.2d 1167; Brotsky v. State Bar, supra, 57 Cal.2d 287, 300, 19 Cal.Rptr. 153, 368 P.2d 697.)

We deem it established without serious challenge that legislative enactments relating to admission to practice law are valid only to the extent they do not conflict with rules for admission adopted or approved by the judiciary. When conflict exists, the legislative enactment must give way. Merco in the instant case does not challenge this concept. It states in its brief that the issue presented "is not . . . whether the legislature has the power to confer the privilege of practicing law upon lay persons," and acknowledges that the "inherent power of the Supreme Court to admit persons to practice law is not in dispute."

The issue according to Merco is whether a corporation can appear in court in propria persona in the same way as a natural person. Prior to enactment of section 90 it was well established that a corporation could not so appear. "A corporation cannot represent itself in court, either in propria persona or through an officer or agent who is not an attorney." (Vann v. Shilleh, supra, 54 Cal.App.3d 192, 199, 126 Cal.Rptr 401, 406, see also Roddis v. All-Coverage Insurance Exchange (1967) 250 Cal.App.2d 304, 311, 58 Cal.Rptr. 530; Himmell v. City Council (1959) 169 Cal.App.2d 97, 100, 336 P.2d 996; Paradise v. Nowlin (1948) 86 Cal.App.2d 897, 898, 195 P.2d 867.) Merco contends the established rule is inapplicable because, for the first time, section 90 expressly provides for representation in propria persona. A party appearing in propria persona, Merco contends, is not engaged in the practice of law contrary to the dictates of the Constitution and this court, because such party is not appearing in a representative capacity.

Merco recognizes that it, while being a corporation and a person within many legal concepts, nevertheless lacks attributes and rights of natural persons. ⁶ It thus acknowledges that prior to enactment of section 90 it lacked the right to make a court appearance except through a member of the bar, but claims this was so only because the Legislature had not declared a corporation to be a person for purposes of self-representation. According to Merco's reasoning, the Legislature by passing section 90 at long last expanded the legal "personhood" of a corporation, and the courts should respect that expansion of corporate rights against charges of infringing on the court's authority to control the practice of law.

Merco's argument requires further examination of corporate existence. It is fundamental, of course, that a "corporation is a distinct legal entity separate from its stockholders and from its officers." (Maxwell Cafe v. Department of Alcoholic Beverage Control (1956) 142 Cal.App.2d 73, 87,298 P.2d 64, 68.) "A corporation . . . in its corporate rights and liabilities . . . is as distinct from the persons composing it, as an incorporated city is from an inhabitant of that city." (Curtiss v. Murry (1864) 26 Cal. 633, 634-635; see also Miller v. McColgan (1941) 17 Cal.2d 432, 436, 110 P.2d 419; Erkenbrecher v. Grant (1921) 187 Cal. 7, 9, 200 P. 641; Jacques, Inc. v. State Board of Equalization (1957) 155 Cal.App.2d 448, 460, 318 P.2d 6; Dandini v. Dandini (1953) 120 Cal.App.2d 211, 217, 260 P.2d 1033; 6 Witkin, Summary of Cal.Law (8th ed. 1974) 4316.)

To presume, as we must if we are to follow Merco's reasoning, that a corporation can act without representation, is a fiction we cannot accept. (See American Center for Education Inc. v. Cavnar (1972) 26 Cal.App.3d 26, 36, 102 Cal.Rptr. 575; Roddis v. All-Coverage Insurance Exchange (1967) 250 Cal.App.2d 304, 311, 58 Cal.Rptr. 530.) A corporation cannot in fact appear in court Except through an agent. (See Brooks v. Small Claims Court (1973) 8 Cal.3d 661, 669, 105 Cal.Rptr. 785, 504 N.Y.S.2d 1249.) Section 90 does not even purport to grant to a corporation a right to represent itself it purports only to change the identity of the representative through whom it may appear. If we were to hold that a corporation represents itself when appearing through a "director, an officer, or an employee" (Code Civ.Proc., § 90), then it would necessarily follow that the corporate "self" is comprised of directors, officers, or employees, contrary to the authorities we have noted.

The qualifications of the human representing a corporation or for that matter any other person or entity in court is one of vital judicial concern. Such person is clearly engaged in the practice of law in a representative capacity. The practice of law "is the doing and performing services in a court of justice, in any matter depending therein through its various stages . . . ." (People v. Merchants Protective Corporation (1922) 189 Cal. 531, 535, 209 P. 363, 365; see also Bluestein v. State Bar (1974) 13 Cal.3d 162, 173-174, 118 Cal.Rptr. 175, 529 P.2d 599; Baron v. City of Los Angeles (1970) 2 Cal.3d 535, 543, 86 Cal.Rptr. 673, 469 P.2d 353.)

We recognize, of course, that corporations are represented in small claims court by persons who are not members of the State Bar. Such representation is authorized by statute (Code Civ.Proc., § 117 et seq.) as interpreted and approved by court decision (Prudential Insurance Co. v. Small Claims Court (1946) 76 Cal.App.2d 379, 173 P.2d 38). Merco quotes from Prudential for the proposition that "the common law rule that prohibits a corporation from appearing in legal proceedings In propria persona may be modified by the Legislature."

Representation in small claims court raises special problems for corporations. Section 117g (now § 117.4) provides that no "attorney at law or other person than the plaintiff and defendant shall take any part in the filing or the prosecution or defense of such litigation in the...