Himmel v. City Council of Burlingame

BRAY, J.

The notice of appeal states: “Plaintiffs are appealing all rulings, orders, and judgments, interlocutory or final, which in any way, or to any degree are adverse to the interests of the plaintiffs in the above-entitled action. Particular reference is made to proceedings in the above-entitled case of May 18, 1956 and March 16, 1956.”

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Questions Presented

1. May a corporation sue in propria persona?

2. After motion to strike complaint granted, may complaint be amended without leave of court ?

Record

May 16, 1955, complaint for injunction and petition for alternative writ of mandate and/or writ of review and/or writ of prohibition was filed entitled “Burlingame Civic Improvement Club, Incorporated, a Corporation and City of Burlingame, plaintiffs v. City Council of the City of Burlingame, defendants” (this complaint will be referred to as complaint No. 1), signed “Howard Watkinson, President, Burlingame Civic Improvement Club, James Himmel, First Vice-President, Burlingame Civic Improvement Club, Hugh Rosaaen, Jr., Secretary, Burlingame Civic Improvement Club, ” verified by Hugh Rosaaen, Jr. and Joy Ahren Rosaaen, designated as “interested parties to the above-entitled action as are other taxpayers, qualified electors and property owners in the City of Burlingame, who are similarly aggrieved . . .” No name of attorney nor designation of any person in propria persona appears.

The same day an application was made for a temporary restraining order and order to show cause. The proposed order, in the space ordinarily used for the name of the counsel

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for plaintiff, stated the name of the club, its president, first vice-president and treasurer, and secretary, “Office of Secretary,” address and telephone number “For the Plaintiff.” June 6, amended complaint filed (herein designated complaint No. 2.) It is similar to the first complaint except that city of Burlingame is eliminated as a plaintiff and included as a defendant. Also designated members of the city council, the city attorney and city engineer are also the defendants. It is signed “James Himmel” and verified by him as “Founder, First Vice-President, and Treasurer” of the club. No attorney or person in propria persona appears. During the period June 6, 1955, to February 14, 1956, plaintiffs filed three amended complaints (herein designated as complaints Numbers 3, 4 and 5), and innumerable notices of motion. All of these plaintiffs requested leave to withdraw and on February 14 were granted permission to withdraw. It might be added that a considerable part of the complexities and confusions of the record in this matter could have been avoided had the Burlingame Civic Improvement Club employed an attorney to handle its court proceedings instead of leaving them to a layman.