Gresham v. Superior Court

California Court of Appeal May 6, 1941 No. Civ. 12952Published

Before: McCOMB

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Holding. Section 6130 of the Business and Professions Code, which prohibits disbarred or suspended attorneys from prosecuting assigned claims, does not apply to attorneys who have voluntarily resigned from the State Bar.

Issues

May a person who has resigned from the State Bar appear in court as a plaintiff in an action assigned to them after their resignation?

Disposition. Writ of mandate issued; demurrer of respondent judge sustained.

Quotations verified verbatim against the opinion

“Section 6130 of the Business and Professions Code prohibits a disbarred or suspended attorney from prosecuting an action in his own behalf as plaintiff when the subject of such action has been assigned to him subsequent to his disbarment or suspension.”

“It has no application to a former member of the State Bar who has resigned from the same.”

“To resign means to give up or surrender voluntarily the privilege of practicing law.”

McCOMB, J.

This is an original application for a writ of mandate to require respondents to set aside an order dismissing an action brought by petitioner as assignee of a judgment to have the same renewed. Respondent court has filed an answer. Respondent Judge Pierson M. Hall has filed a demurrer to the petition on the ground that it fails to state a cause of action as to him.

So far as material here, the essential facts are:

September 28, 1935, petitioner, a member of the State Bar of California, as attorney for plaintiff obtained a judgment

[665]

in favor of plaintiff in an action entitled

Daniel M. Kuter

Ella M. Barnard.

Thereafter said plaintiff assigned to petitioner a one-third interest in said judgment. August 1, 1937, petitioner’s resignation as an active member of the State Bar of California became effective. In September of 1940 Daniel M. Kuter filed an action for the renewal of said judgment. Subsequently Daniel M. Kuter assigned to petitioner the entire judgment which he had previously obtained and which he was endeavoring to have renewed. Petitioner thereafter had himself substituted as sole plaintiff in the last action in the place and stead of Daniel M. Kuter, which action was pending in a court of a justice of the peace. From the order substituting petitioner as plaintiff defendant appealed to the superior court. Respondent refused to permit petitioner to appear in the action in the superior court on the ground that he was prohibited from doing so by the provisions of section 6130 of the Business and Professions Code of the State of California, which reads as follows:

“No. 6130. APPEARING AS PLAINTIFF IN ASSIGNED CAUSE WHILE DISBARRED OR SUSPENDED. No person, who has been an attorney, shall while a judgment of disbarment or suspension is in force appear on his own behalf as plaintiff in the prosecution of any action where the subject of the action has been assigned to him subsequent to the entry of the judgment of disbarment or suspension and solely for purpose of collection.’’

This is the sole question necessary for us to determine:

Gresham v. Superior Court

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