*1 No. 30825. July [L.A. 1978.] ENGINEERS, INC., CONSTRUCTION
MERCO Plaintiff and Appellant, COURT FOR THE LONG BEACH JUDICIAL
THE MUNICIPAL COUNTY, DISTRICT OF LOS ANGELES
Defendant Respondent; COMPANY, CONTRACTING SULLY-MILLER Real in Interest and Party Respondent.
Counsel and & Irvin Grant for Plaintiff
Grant and Appellant. Popovich Larson, Counsel, B. John H. and David County County Kelsey, Deputy Counsel, and for Defendant Respondent. Rosenthal, Stovitz, P. F.
Herbert Ronald M. Kenyon Joseph Charney Defendant and Curiae on behalf of Dobberteen as Amici Respondent. No Real in Interest and for Party Respondent. appearance Opinion writ of
CLARK, J. denying petition Appeal judgment alia, inter Beach mandate Long Municipal directing, respondent Inс., Court to Merco allow Construction Engineers, corpora- petitioner, an tion in a civil action officer not (Merco), appear Merco relies on Code of Civil Procedure section attorney.1 purporting to authorize We conclude appearance.2 Legislature licensed to law the vest in right constitutionally practice in a of record behalf of another person, including We affirm the therefore judgment. corporate entity. contend
Both Sully-Miller those clause from designating powеrs separation precluded by law.3 The exclusive are authorized who an inherent claimed law is determine who is qualified *4 our courts have consistently Statements of the judiciary.4 power such contention. supported noted 439 P. we
In State Bar 208 Cal. (1929) 1018] [281 Brydonjack conceded almost without is exception “[a]dmission practice (Id., . . . 443.) the exercise of a function .” to be everywhere judicial interest, 1The basic real civil action was commenced in municipal party Merco for damages Sully-Miller (Sully-Miller) against petitioner Contracting Company filed an and cross-complaint, breach of contract. Merco answer resulting from an alleged treasurer, Rotblatt, not a Phil Merco’s through purporting appear the and the cross- member of State Bar. demurred to both answer Sully-Miller (See Vann v. on the a in propria could complaint ground corporation appear persona. 192, 401].) (1975) 199 was sustained Shilleh 54 demurrer Cal.Rptr. [126 answer. Merco but for reasons was overruled as to the cross-complaint, procedural writs of then certiorari and mandamus the instant commenced proceedings, filing superior petition an set aside its order court to seeking directing municipal demurrer, demurrer, order in and to Merco to overrule sustaining permit appear In court concluded Code of Civil persona. propria denying petition superior 2, (see Procedure section 90 fn. to authorize post), nonattomey appear purporting in behalf of a Constitution offends the of the state clause separation powers 3, (see fn. and the clauses of and federal the state post) protection equal Const., Cal.Const., I, XIV, 1; (See Constitutions. U.S. Amend. The instant § § art. followed. appeal 2Section at times herein: “Where a in the pertinent party provided director, officer, whether or court it or an municipal may employee, at law.” not such is an attorney Section was and reenacted as Code of Civil Procedure section subsequently repealed 87, that it identical to former section also to applies except proceedings 1976, 1288, (Stats. ch. 3, Constitution, III, articlе “The of state 3California provides: powers executive, Persons with the exercise of charged are government legislative, judicial. others, either one not exercise of the except power may permitted Constitution.” curiae, 4Such the State Bar California and the contention is also amici urged Aid Foundation of Los court as Legal Angeles, support respondent. courts, we than three decades later stated that
More
“[historically,
alone,
admission,
and disbarment of
controlled
discipline
beforе them.”
v. State Bar
57 Cal.2d
(1962)
entitled to
(Brotsky
practice
697,
We have
94 A.L.R.2d
Cal.Rptr.
to set
also dealt
with
compulsion
legislation purporting
directly
law. In the case of In re Lavine
for admission to
standards
practice
311],
42 P.2d
statute”
While “that the legislature may prescribe recognizing we held to the bar” for admission “legislative regulations best, are, at minimum standards unless the courts but regulations as are are satisfied that such themselves prescribed by qualifications words, are sufficient. ... other the courts enactment than the their inherent demand more exercise of legislature power *5 (In Lavine, 324, 2 Cal.2d re 328.) has required. supra, [Citations.]” (See fn. . . statute’ We concluded “that in so far as the . ‘pardon reinstatе, reinstate, this, other, or to to or to direct any purports rehabilitation, an who has without of moral any showing the of the offense conviction of which received executive pardon upon based, was the same is unconstitutional and void as his disbarment the inherent of this court to admit encroachment upon power legislative is to the of a of the law and tantamount the vacating attorneys practice 329; also Stratmore (Id., order mandate.”5 legislative 101, 887, 538 P.2d Bar 14 Cal.3d 889-890 (1975) v. State Cal.Rptr. [123 175, 210, 225 520 11 Cal.3d v. State Bar 229]; (1974) Emslie Cal.Rptr. [113 815, 743, 511 750 9 Cal.3d (1973) re 991]; Cal.Rptr. P.2d Bogart [108 287, Bar, 57 Cal.2d v. State 1167]; P.2d supra, Brotsky We deem it without serious established challenge legislative law are valid enactments to admission to only relating practice do for admission or extent not conflict with rules adopted they approved is of law not admission to practice 5The judiciary govern “inherent power” VI, 1 in article section It is provision. provided constitutional dealt with expressly Court, courts of appeal, in the Supreme this is vested State power “judicial courts, courts, courts are courts of All except and justice superior record.” 729 exists, When conflict enactment must judiciary. give Merco instant case does not It this states in way. challenge concept.
its brief that issue “is not . . . whether has presented legislature to confer the law power privilege practicing lay persons,” upon that the “inherent Court to admit acknowledges power Supreme law is not in dispute.” The issue is whether a Merco can according corporation court in in the same aas natural Prior to propria persona way рerson. of section
enactment 90 it was well established that a could corporation court, “A so either itself appear. corporation represent or an officer or not an who is agent attorney.” Shilleh, 192, 199; (Vann v. 54 see also Roddis supra, Cal.App.3d 311 Ins. (1967) All-Coverage Exchange Cal.App.2d Cal.Rptr. [58 530]; Himmell v. Council (1959) City Cal.App.2d
996]; Paradise v. Nowlin because, rule Merco contends established for the first inapplicable time, for expressly provides representation propria persona. contends,
A Merco is not party appearing propria persona, engaged of law dictates of the Constitution and this contrary court, because such is not in a party appearing representative capacity. it,
Merco that while and a recognizes being corporation person within nevertheless many lacks attributes legal concepts, rights natural It thus to enactment of section persons.6 acknowledges prior 90 it lacked the make appearance except through bar, member of the but claims wаs so because the only had not declared a to be a of self- purposes *6 to Merco’s representation. According reasoning, Legislature by section 90 at last passing of a expanded legal “personhood” and the courts should that of respect expansion corporate of on the court’s rights control the against charges infringing authority law. of practice
Merco’s further examination of existence. argument corporate requires fundamental, course, It a is of that a distinct is “corpоration legal entity from its stockholders and from its officers.” v. (Maxwell separate Cafe 73, 142 Alcoholic Control P.2d “A (1956) 78 64].) Dept. Cal.App.2d [298 ... in its . . . ... is as liabilities distinct corporation rights corporate (“. 6The words of the . . the a statute word includes controlling ‘person’ corporation Proc., (Code 17)), well as a a § natural Civ. make it clear is not person” corporation Code, (See a natural § deemed to be also person legal contemplation. Corp.
730 it, an is an from the city persons composing incorporatеd 634-635; 633, v. 26 Cal. of (Curtiss (1864) inhabitant Murry city.” 419, 432, 436 also v. 17 Cal.2d P.2d 134 (1941) Miller McColgan [110 7, Cal. P. A.L.R. Erkenbrecher v. Grant 187 9 1424]; (1921) 641]; [200 448, 155 Inc. v. Bd. 460 (1957) State Jacques, Cal.App.2d Equalization 211, Dandini v. Dandini 120 217 6]; P.2d (1953) Cal.App.2d [318 [260 Witkin, 6 Cal. Law ed. 1033]; (8th 1974) Summaiy To as we must if are to Merco’s that a we follow reasoning, presume, can without a fiction we cannot act is corporation accept. representation, Education, v. 26 American Inc. Cavnar (See (1972) Center Cal.App.3d for 26, v. Ins. 575]; (1967) 36 Roddis Exchange All-Coverage Cal.Rptr. [102 A 304, 250 311 530].) Cal.Rptr. corporation [58 an Brooks v. Small (See in fact in court through agent. except 661, 785, P.2d 1249].) 8 Cal.3d 669 504 Claims Court (1973) Cal.Rptr. [105 does Section 90 grant corporation purport itself—it identity representa change represent purports only If we were to hold that it tive whom through appear. “director, officer, or an itself when through appearing
represents Proc., follow that then it would Civ. (Code 90), necessarily employee” directors, officers, or “self’ is employees, comprised the authorities we have noted. contrary human representing corporation—or qualifications is vital matter other or one of entity—in any pеrson of law in a
concern. Such engaged clearly of law “is performing representative doing capacity. matter therein its services in court of depending . . Protective (1922) various . .” v. Merchants stages (People Corp. 531, Cal. see also Bluestein v. State Bar Cal.3d 363]; P. (1974) [209 175, 529 P.2d Los 599]; 173-174 Baron Cal.Rptr. City Cal.3d Cal.Rptr. Angeles course, are small
We represented recognize, of the State Bar. Such who are not members claims court by persons *7 Proc., et Civ. is (Code authorized statute seq.) by representation decision Insurance Co. (Prudential court approved interpreted 38, 167 A.L.R. Court (1946) Small Claims that “the from Prudential for Merco 820]). proposition quotes a legal common law rule that appearing corporation prohibits be modified Legislature.” proceedings raises for in small claims court special problems Representation that no at (now § Section 117.4) 117g “attorney provides corporations. other than the and defendant shall take
law or person plaintiff part such or the or defense of small filing prosecution litigation Thus, under a claims court.” literal construction of the statute a claims, could be sued it in small could not defend although it because was a natural incapable defending except through person, “other was Even appearance by person” prohibited. though due denials been have resolved in favor of the suggested process might 382-383, literal of the statute at but (id., 384), application pp. p.
court Prudential concluded that can only appear “[s]ince some natural it is that the obvious natural person person proper or defend . . . and such a is may appear prosecute person proper an ‘other not excluded (Id., person’ 117g.”
Prudential stands two which are to our propositions important First, determinations here. a not itself a natural corporation being person, make a court a natural can appearance only through person—obviously Second, other than the because statute person corporate person. be construed as to sue intending deny corporation court,
or defend in small claims it in such can court through as an natural to literal of former section person exception reading 117g.
Prudential is not to extended courts other than small claims when, here, courts has for such Legislature expressly provided stated, extension. As it is this and not the which exercises Legislature ultimate control over admissions to law. The fact we in small claims courts lay approved representation corporate parties does dowe so for other circumstances require special which were deemеd for such in small claims necessary representation do not exist in the court. proceedings municipal net effect our is to invitation to holding today deny Legislature’s with no demonstrable as an skills
permit represent because such be a merely person may director, officer or authorized, We are not employee corporation.
course, to usual course of our function a reject enactment because we deem it serves no desirable But merely purpose. the matter
when at issue involves minimum standards for engaging law, it is court and not the which final policy maker.
732 invitation must
In our view there are reasons many why Prudential, there is no rule Unlike the be preventing rejected. problems of the in the member Merco from municipal by being represented court, Moreover, of in small claims formal rules bar. unlike proceedings to and evidence are be observed by representatives procedure and the court is entitled to to be aided in resolution of the expect parties, rather issues cause by presentation through qualifiеd professionals of 323, 12 than v. Justice Court Cal.3d 327 (Gordon (1974) lay person. [115 632, 72, 551]; 525 71 A.L.R.3d v. Johnson Cal.Rptr. City Downey of 775, 263 779 (1968) Cal.App.2d Cal.Rptr. [69 deem, also, Civil We Code of Procedure section 90 not to serve welfare in that it authorize the of a would in behalf general appearance, of almost selected of corporation, corporation regardless of his or his with the association employment, position length or his character and Thus an training, background. “employ be ee” could a disbarred who becomes for the solely еmployed collection, in and out of court and from bill moving purpose who, he while Or could be to paraprofessional corporation. examination, is nevertheless failed bar to having precluded pass he confines his to law so client/employer practicing 8Such to courts.7 and his municipal to a hire out on a time basis number could themselves part Unlike a cadre of practitioners. unprofessional corporations, creating Bar, to rules of the State would not members they subject professiоnal adhere ethical standards established conduct nor be required could be or Because corporations any governmental professional agency. to ethical restraints would be not subject they by persons represented take unfair situations afforded advantage particular opportunity or no merit —as in debt collections on claims little against persons unmeritorious low income who are inclined default against 94, 7 Cal.3d v. Merchants Collection (1972) claims. Assn. (See Barquis 745, v. Fin. 817]; Ferraro Corp. Cal.Rptr. Pacifiс 226].)8 Cal.Rptr. the Governor signed enacted and was herein 7While pending appeal in municipal civil action recoveries the limitation on Bill No. increasing Assembly $5,000 $15,000. thus (Stats. ch. The amendment provides courts from section 90. authorized purportedly type added inducement engage could be similar to that 8The which thus develop situation might Court, 8 Cal.3d (See Claims supra, claims Brooks Small exists in small court. which now but 86 plaintiffs 90 which indicated only percent we noted study Brooks individuals, of all and that almost percent were in small claims of defendants percent *9 thus Code of Procedure section 90 constitutes (now 87) Civil in a for those who may provide persons engage attempt we deem limited of law. Because those qualified limited we conclude the statute offends the practice, separation and is of and clause of our Constitution no force effect. powers is affirmed. judgment Mosk, J., Richardson, Manuel, J., J., and concurred.
NEWMAN, J. It be that of the I dissent. section 87 Code of Civil may is not a Procedure answer to perfect vexing problem participation of this by nonlawyers adjudicatory proceedings. majority intervenes, however, now to restrict seriously Legislature’s power seek and answers to that imaginative improved vexing problem.
I am not here that the violated has persuaded vague III, in article commands section of California Constitution. Nor am I the word with “court” persuaded say, (compared, phrase “administrative should tribunal”) trigger automatically monopoly VI, Constitution, that some think inheres in article 9 of the people the State Bar. Indem. (Cf. Co. v. Industrial Acc. Com. regarding Eagle Bеnnett, Cal. 247-249 and 341]; Non-Lawyers and Practice Law State and Federal (I960) Agencies Before 705; A.B.A.J. State Bar (Dec. 1978) 1977-Jan. [“90,000 Reports p.
California in 1984”].) lawyers
Bird, J.,C. concurred.
TOBRINER, J. I dissent. decisions this court’s ultimate
Although past recognize policymaking law,” role as none of the regulations affecting “practice instances, entered were in favor of the judgments We stated: plaintiff. many “[I]n claims, institutional creditor has a volume large constant invokes the repeatedly courts, jurisdiction small claims becomes inevitably proficient type natural, then, It is litigation. such a claimant will only have decisive over advantage the individual defendant his first and courtroom participating perhaps only proceeding. This advantage if the institutional is a may compounded creditor Since a corporation. someone, must it to do appear by possible for it so proper . . . who but at the time will representative training same not fall within legal (Id., 669; restriction on statutory appearance omitted.) fn. by attorneys.” *10 the its in authorities relied cavalier by majority position upon supports of the Code of Without concrete that section 87 this case. showing the will the or harm Civil Procedure judicial system general impair enactment the corporations may majority rejects explicit public, in by nonattorney employees represented individuals, sole with entities on an In footing equal placing in enjoyed propria partnerships proprietorships concern articulated the the increasing public persona rights, Legislature to insure the need of services and with the legal growing expense financial of less than to courts in controversies сontinued access major which this to to address the serious problem Failing proportions. directed, enactment invalidates the statutory majority legislation to the abuses that nonattorneys simply presence speculating view, serve as a basis such fails to In may engender. my speculation enactment, even to a in which the matter judiciary invalidating Unless and shares with the until policy making authority Legislature. with the a interferes such demonstrably legislatively prescribed procedure I believe that the should administration judiciary grant justice, itself modest innovation the instant opportunity prove operation.
In section relies on decisions heavily invalidating majority rule that common law California and other embracing jurisdictions (See, in courts of record. must be attorneys corporations represented All of Paradise v. Nowlin (1948) Cal.App.2d e.g., however, decisions, declarations rights represent judicial authorization the absence statutory specific to cite a decision fails single majority representation. statute, as section has invalidated expressly in which to be nonattomey employee. represented permitting corporation Insurance Co. v. in Prudential Indeed, the Court opinion Appeal 167 A.L.R. Court (1946) Claims Small Cal.App.2d that the lacks conclusion refutes 820], majority’s directly rights corporations. persona grant propria authority the Court of case, Peters on Justice (then Appeal) Insurance Prudential in the absence rule that a corporation “general initially recognized law.” behalf, (Italics its own authority, statutory out, went on Peters Justice addеd.) (76 point rule” however, the earlier decisions that none of establishing “general Here we have a here involved. situation such as is “dealt with statutoiy statute, confers on 117.4], 117g expressly corporations, [now as well as on other or defend .... Thus persons, prosecute here, unlike the above cases the common law there is rule], [articulating for a authorization express statutory propria than an This some other attorney. persona through proper representative serves to all of the cited casеs.” (Id.) distinguish *11 in was a that the Prudential
The holding necessary suggests majority in rule propria persona representa general prohibiting exception that no could since section tion attorney 117g provided by corporations: court, it could “a in small claims although represent party a literal claims, could not defend because be sued in small [under was that it construction of incapable defending statute] natural The contends these 731.) . . . .” (Ante, majority “special p. in in small
circumstances” which justified propria persona representation in fаils to claims do not exist court. This municipal analysis proceedings on which the acknowledge underlying policy holding public based, and Prudential was does that why expressly explain policy should not be with and applied respect municipal justice disputes well as as small claims.
The both section and the at issue policies underlying 117g legislation here are the same: Individuals have been entitled to largely long because in minor small propria persona many relatively disputes amount renders counsel A infeasible. controversy representation by rule counsel in such well could requiring representation deny disputes his resolution of the As was potential litigant dispute. Justice Peters in Prudential: “Justice should not be a aptly expressed rich man’s Carta that would not be luxury. Magna guaranteed justice administration denied or Ever since 1215 those interested in the delayed. have to live to that somewhat justice unsuccessfully struggled up and so far as the is concerned. The delay
promise poor litigant expense incident discouraged poor litigation attempts in amount. to secure redress for claims meritorious but small litigant are as to those as those These cases relatively great importance litigants courts, and heard in but the our highest expense employing will . . .” (76 normal court costs is more than the cause bear. paying Cal.App. p. arise in
Without minor claims municipal frequently question more than the court in which the “cost of counsel is employing 87 the cause will bear.” In Legislature simply recognized enacting individuals, entities, in such well as are often as engaged to an minor and should bе entitled as much individuals disputes of their Just it authorized economical adjudication rights. properly court, I in small claims propria persona representation by corporations its to determine believe acted within powers public policy by permitting corporate appearances municipal courts, unlike small claims majority emphasizes
courts, of record in which “formal rules are courts procedure and the evidence are to be observed by representatives parties, aided in the resolution of issues entitled to to be court is expect than rather the cause lay through qualified professionals presentation interest we the courts’ While (Ante, recognize person.” *12 we doubt the and maximum assistance of counsel efficiency, procedural will in conclusion that persona corporations appearing propria majority’s have been court of record. Individuals unduly permitted handicap has been left in the not system proceed propria persona; legal In the absence of we cannot how shambles. any showing, corporate will have a more deleterious representation judicial effect.
The further that section 87 the dangerously majority suggests opens unrestrained door for “cadre practitioners” ethically unprofessional and unfair the from abusing judicial system taking advantage individual in debt matters. collection litigants, majority especially however, that speculation assuming, engages than individual will cause persona greater injuiy propria or that do so. The between abstrаct distinction proprietors partnerships “natu- constitute sole and which ostensibly proprietorships partnerships, has which “artificial” ral” and constitute persons, persons, corporations, effect of little on the nonattorney representation. bearing practical business or his who his own Both the partner- nonattomey represents who his employer perform nonattorney represents corporate ship, fails in and functions both out court. the same majority exactly latter conclude could not reasonably why explain no public class of danger employees posed greater corporate In the trial courts class. than former past, system abuse of persona propria handling any capable proven quite course of actual arise litigation; majority privileges does not the trial court’s broad over the conduct suggest why authority litigation context of adequately protect public pro. per. representation. course,
Of if the of section 87 do in fact provisions to create a prove or to the significant administration danger public our justice, retains the to invalidate the enactment authority under doctrine. In down “separation powers” the statute in the striking absence of however, I believe the showing, has acted majority and without due prematurely consideration of the important public reflected in the view, policies we should legislation. my hamper efforts to facilitate more Legislature’s accessible and procurable, equal and should allow this innovative legislation opportunity itself in actual prove operation. Bird, J.,C. concurred.