People v. Landlords Professional Services

• Decision Date: 28 November 1989
• Docket Number: No. D009858,D009858
• Citation: 264 Cal.Rptr. 548,215 Cal.App.3d 1599
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. LANDLORDS PROFESSIONAL SERVICES, Defendant and Appellant.

Page 548

264 Cal.Rptr. 548

215 Cal.App.3d 1599

The PEOPLE, Plaintiff and Respondent, v. LANDLORDS PROFESSIONAL SERVICES, Defendant and Appellant.

No. D009858.

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

Nov. 28, 1989.

Review Denied March 1, 1990.

[215 Cal.App.3d 1601] W. Dozorsky, for defendant and appellant.

Cecil Hicks, Dist. Atty., Michael R. Capizzi, Chief Asst. Dist. Atty., Maurice L. Evans, Asst. Dist. Atty., Thomas M. Goethals and Theodore A. Johnson, Deputy Dist. Attys., for plaintiff and respondent.

BENKE, Associate Justice.

In this case we consider whether the eviction service provided by Landlords Professional Services (LPS) involved the unauthorized practice of law.

FACTS AND PROCEDURAL HISTORY

In 1982 the Orange County Apartment News carried an advertisement for the eviction services provided by LPS. The ad stated "Evictions as low as $65" and showed the picture of a purposeful and authoritative looking man, arms folded across his chest, stating: "One low price $65 plus costs uncontested or contested in pro per. Attorney for trial extra if needed." Below the picture were the words "Time to Act!" and "Call & talk to us." The advertisement ended with an address and telephone number.

In 1982 Roberta Spiegel decided to evict the tenants of an apartment she owned. A friend recommended LPS. Roberta spoke to Bill Watts, an employee of LPS, who told her to come to the LPS office and The booklet begins with a chronology of an unlawful detainer action as carried out by the eviction service. The chronology was generally factual. However, at the end of the chronology, this bit of advice is imparted concerning what to do after the tenants have been evicted: "You must change the locks at that time. If you do not change the locks you may have a problem. The defendant may re-enter and take possession, and the ball game starts from the beginning."

bring all documentation related to the rental. On arrival Roberta was given a booklet with Mr. Watts's business card attached. The card was imprinted with the words "Landlord's Professional Services" and the name Bill Watts. Beneath Mr. Watts's name was the word "Counselor."

The following pages of the booklet contain examples of the types of forms used in an unlawful detainer action and provides a guide for how those forms should be completed. Often the guidance is purely factual, i.e., where a form requires the name of the city in which the subject property is located the guide states "enter city." The advice given, however, can be more useful. In discussing the "Notice to Pay Rent or Quit," for example, the guide states: "Acceptance of any money after service may void notice. You don't have to accept money after notice expires."

Bill Watts reviewed the normal routine in an unlawful detainer action with Roberta who was unfamiliar with eviction procedures. Roberta asked questions about the procedure and Bill answered them. Roberta told Bill she had already mailed the tenants a three-day notice. Bill told her this was insufficient and she would have to take another notice to the apartment. Bill asked Roberta questions and completed the documents and forms necessary for the unlawful detainer action and eventually filed them.

On December 7, 1982, Ralph Lopes, an investigator with the Orange County District Attorney's Office, called LPS and stated he was a property owner who was interested in eviction services. Lopes stated he was unfamiliar with the eviction process. The procedure for commencing and carrying through an unlawful detainer action was explained by Jacqueline Sutake, an LPS employee. Sutake explained Lopes would have to send LPS all documentation concerning the rental and they would handle the process. Lopes asked what it meant in the LPS ad when it stated "pro per." Sutake explained LPS was not an attorney and Lopes would be representing himself. Sutake stated LPS could not represent him in court. If an answer was filed by the tenant, LPS would type up Lopes's testimony and he could read it in court. Lopes asked if he would need an attorney. Sutake stated if an answer is filed by an attorney, LPS recommends its client obtain one as well but that it is possible to prevail without the assistance of counsel.

Lopes asked if he could turn off the utilities at the rental property. Sutake stated he could not. Lopes asked what would occur if he needed an attorney during the process. Sutake stated he could use his own attorney or "we have attorneys here."

Ms. Sutake testified she did not advise her clients on questions of law. She did, however, explain the unlawful detainer procedure and would share with clients her personal experiences as a landlord. If the case presented was more complex than the routine uncontested unlawful detainer action, she would suggest the client contact an attorney. Ms. Sutake explained her activities were always supervised by an attorney. When an unfamiliar situation arose she would ask an attorney for help and the attorney would determine if the complexity of the case required the services of a lawyer. In most cases her work was reviewed by an attorney before being filed.

In February 1983, the Orange County District Attorney filed a civil complaint against LPS and five other eviction services, alleging the unauthorized practice of law. (Bus. & Prof.Code, §§ 6125, 6126.) The complaint sought monetary penalties pursuant to Business and Professions Code sections 17200 (unfair competition) and 17500 (false or misleading statements) and The trial court also granted the following permanent injunction:

injunctive relief. At the conclusion of the hearing below the trial court ordered LPS to pay $8,000 in civil penalties for eight violations of Business and Professions Code section 17200 and $9,000 for nine violations of Business and Professions Code section 17500. The finding of eight violations of section 17200 was based on evidence concerning services provided by LPS to seven clients, including Ms. Spiegel, and on the telephone conversation between Ms. Sutake and Investigator Lopes. The finding of nine violations of section 17500 was based on the same evidence with one additional violation based on the advertisement appearing in the Orange County Apartment News.

"Defendants, their agents, officers, employees and representatives are enjoined from engaging in or performing directly or indirectly any and all of the following acts:

"1. The preparation, other than at the specific and detailed direction of a person in propria persona or under the direct supervision of an attorney, of written instruments relating to evictions such as: three day notices, summons and complaints, at issue memoranda, judgments, writs of execution or other legal documents relating to evictions.

"2. Explaining orally or in writing, except under the direct supervision of an attorney, to individual clients: (A) the effect of any rule of law or court; (B) advising such persons as to the requirements for commencing or maintaining a proceeding in the Courts of this state; or (C) advising or explaining to such clients the forms which are legally required or how to complete such forms.

"3. Holding themselves out or allowing themselves to be held out to newspapers, magazines, or other advertising, or representing themselves as being able to provide, except through an attorney, any of the following: legal advice, the preparation of legal documents (other than as a secretarial service), or any explanation of any rules of law or court in relation to evictions or as being qualified to do any of the above activities.

"4. Any employee, agent, officer or representative of L.P.S., not a licensed member of the California Bar, is prohibited from practicing law in any form or holding themselves out as having the right to practice law in any form."

II

DISCUSSION

LPS argues there was insufficient evidence to support the finding it engaged in the unauthorized practice of law.

A

Business and Professions Code section 6125 states: "No person shall practice law in this State unless he is an active member of the State Bar." Business and Professions Code section 6126, subdivision (a), provides: "Any person advertising or holding himself or herself out as practicing or entitled to practice law or otherwise practicing law who is not an active member of the State Bar, is guilty of a misdemeanor."

The code provides no definition for the term "practicing law." In Baron v. City of Los Angeles (1970) 2 Cal.3d 535, 542, 86 Cal.Rptr. 673, 469 P.2d 353, our Supreme Court noted that as early as 1922, before the passage of the State Bar Act, it had adopted a definition of "practice of law" used in an Indiana case: " ' "[A]s the term is generally understood, the practice of law is the doing and performing services in a court of justice in any manner depending therein throughout it various stages and in conformity with the adopted rules of procedure. But in a larger sense it includes legal advice and counsel and the preparation of legal instruments and contracts by which legal rights are secured although such matter may or may not be depending in court." ' " (Quoting People v. Merchants Protective Corp. (1922) 189 Cal. 531, 535, 209 P. 363, quoting Eley v. Miller (1893) 7 Ind.App. 529, 34 N.E. 836; In Re Utz (1989) 48 Cal.3d 468, 483, fn. 11, 256 Cal.Rptr. 561, 769 P.2d 417; see also 7 Am.Jur.2d, Attorneys at Law, §§ 101-117.)

While concluding this definition a proper and sufficient one, the court in Baron, nonetheless, noted that "ascertaining whether a particular activity falls within this general definition may be a formidable endeavor." (Baron v. City of Los Angeles, supra, 2 Cal.3d at p. 543, 86 Cal.Rptr. 673, 469 P.2d 353; see also Agran v. Shapiro (1954) 127 Cal.App.2d Supp. 807, 812, 273 P.2d 619.) The Baron Court then stated: "In close cases, the courts have determined that the resolution of legal questions for another by advice and action is practicing law ...