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Non-Attorney Executor May Not Bring Suit in Pro Per, C.A. Says; Dismisses Appeal
By a MetNews Staff Writer
A judge properly struck a complaint filed in pro per by the executor of the estate of her late father on the ground she is not an attorney and therefore cannot represent the beneficiaries, the Sixth District Court of Appeal has held but, rather than affirming the orders, dismissed the appeal, declaring that the executor is also precluded from representing the estate on appeal.
The decision was filed Aug. 9 and certified for publication on Friday.
Presiding Justice Mary J. Greenwood said that the executor, Leslie Ann Peralta, was correctly barred by Santa Clara Superior Court Judge Rise Jones Pichon from representing the beneficiaries—her two younger siblings, as well as herself—in a partition action against their stepmother and a mortgage company.
As to representing the estate on appeal, she wrote:
“Leslie filed the instant appeal as the representative of Frank’s estate. Although she had authority to file the notice of appeal without an attorney, her conduct in filing briefs and other pleadings as representative of the estate constituted the unlicensed practice of law, and those pleadings must be stricken.”
She continued:
“Without citing any cognizable legal authority, Leslie contends that this court, as a court of review, does not have jurisdiction to consider Respondents’ motions to dismiss, brought on the grounds that Leslie cannot prosecute the appeal in propria persona, as that is the same basis the trial court used to grant the motion to strike at issue in the appeal. It is well established that appellate courts have jurisdiction to dismiss an appeal that has been abandoned by a failure to file an opening brief….As is clear from the legal authority cited by Respondents in the motions to dismiss, the pleadings filed by an appellant improperly proceeding in propria persona must be stricken….As a result, there is no lawfully filed opening brief before us. Leslie had sufficient notice that this was a potential result of these proceedings and failed to take corrective action by retaining counsel to file an amended opening brief It is thus appropriate for us to dismiss the appeal.”
The case is Peralta v. Sanchez, H045037.
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