Unspecified

Plaintiff argues that because there are no other heirs, he and the estate are on and the same and any recovery will go to him personally and stay with him, and therefore he does not need a lawyer. Defendants rely on Hansen v. Hansen (2003) 114 Cal.App.4th 618. There, the plaintiff filed a complaint as the personal representative of the decedent's estate. Plaintiff was not a lawyer. The court in Hansen held that plaintiff could go forward without a lawyer in the Probate Court, but only because a specific statute allowed it. On the other hand, in the regular civil courts the plaintiff filing on the estate's behalf did need a lawyer (even were there no opposition).

Plaintiff here argues that Hansen is not on point because he is not representing an estate. Rather, he argues, he is the successor-in-interest to the decedent--him personally--and therefore stands in the same manner as any other individual plaintiff. He relies on a number of cases, one of which is Aulisio v. Bancroft (2014) 230 Cal.App.4th 1516. There, the plaintiff was required by the trial court to have a lawyer to appear on behalf of a trust, and the Court of Appeal agreed with the premise, but noted an exception.

The logic of that case was that the trustee is generally not acting on her or his own behalf, but rather on behalf of the trust and the beneficiaries of the trust. But that said, the court noted that where the trustee is also the settlor and sole beneficiary, the rule does not apply. At that point, the trustee is one and the same as the trust, and the plaintiff was therefore allowed to prosecute the case on his own behalf.

So here, the question is whether plaintiff is more like the plaintiff in Hansen or the plaintiff in Aulisio. Without the benefit of further briefing, the court will side with plaintiff. Plaintiff alleges that his 377.32 declaration establishes that he is the sole successor of decedent, there is no personal representative, there is no probate estate, and no one has a superior right to be the successor to the decedent. Plaintiff contends that based on that, he is really a successor-in-interest, not a person representing a third party.

The court tends to agree. Whatever the label, if there are interests of others being bound up in the survival action, the court would agree with the defense that an attorney is needed. But if plaintiff is the one and only successor to the decedent, then plaintiff is in all practical respects the person who is prosecuting the case for his own sole benefit, much like the plaintiff in Aulisio. Therefore, the motion to strike is DENIED.

Having said that, this is an interesting question, and this court would not take it amiss were defendants to seek writ review. (The court actually never takes it amiss; but this might be a case where some direct appellate guidance would be generally helpful.)

this matter today. The matter will be continued until August 25, 2026, at 9:00 am, for that reason. If defendant wants to file a statement on this issue, he may do so by noon on August 19 and plaintiff may respond by noon on August 21. The court will, at the August 25 hearing, want to inquire as to the status of Section 8. | Home