Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. EC042924, Michelle R. Rosenblatt, Judge.
William R. McPike for Defendants and Appellants.
Eugene C. Moore for Plaintiff and Respondent.
WOODS, Acting P. J.
Appellant trustee David Putnam attempted to represent a trust in legal proceedings during a contractual dispute between the defendant, a subsidiary owned by the trust, and respondent, United Merchant Services of California, a credit processing firm. Appellant is not a licensed attorney. The lower court found Mr. Putnam to be engaged in the unauthorized practice of law, rendered the defendant’s answer a legal nullity and entered a default judgment. Before this court, appellant claims: (1) the lower court erred by preventing him from representing the trust; (2) respondent improperly chose the venue of the contractual dispute; and (3) respondent misnamed the trust in its complaint. Appellant’s claims lack merit. Because Mr. Putnam is not a licensed attorney, he had no authority to represent the trust in this legal dispute. A non-attorney may not represent a trust in legal proceedings. In addition, appellant forfeited venue arguments by failing to submit a timely challenge to venue. Finally, no material prejudice accrued from using the word “Trust” in the complaint and other pleadings. Accordingly, we affirm.
FACTUAL AND PROCEDURAL HISTORY
Appellant David Putnam is a trustee of Turning Leaf Financial Trust (“Turning Leaf”), a trust which holds assets for the benefit of multiple beneficiaries. Mr. Putnam is not a licensed attorney. Turning Leaf held an ownership interest in a subsidiary company, Alternative Solutions Wellness Spa (“Alternative Solutions”). Alternative Solutions became liable for a business debt to respondent United Merchant Services of California related to unpaid “chargebacks” which accrued as a result of maintaining insufficient funds in an account to cover the costs of refunding the respondent for invalid credit transactions. Respondent became entitled to collect the debt as a result of multiple valid contractual assignments. Turning Leaf refused to pay the debt which totaled roughly $32,000.
Respondent sued to collect this unpaid debt arising out of the original contract and a guaranty executed by a representative of Alternative Solutions. A provision in that contract stated that all legal actions should be brought in San Mateo, California. The respondent sued the trust in Los Angeles, California. The respondent named the defendant “Turning Leaf Trust” in the complaint. Appellant attempted to represent Turning Leaf in the legal dispute despite the fact that he is not a licensed attorney. Respondent warned appellant that he should retain counsel since only a licensed attorney may represent a trust in this legal action. The court additionally informed appellant that he could not represent the interests of the trust in a court of law. Nonetheless, appellant proceeded to act as Turning Leaf’s legal counsel. The court entered a default in favor of respondent after finding appellant’s answer to respondent’s motion to be a legal nullity because appellant had unlawfully filed it as a non-attorney engaged in the practice of law. Mr. Putnam filed this timely appeal.
DISCUSSION
I. The Trial Court Did Not Err In Finding Appellant Could Not Represent The Interests of Turning Leaf Trust Because He Is Not An Attorney
This court is presented with the threshold issue of whether a non-attorney trustee may represent a trust with multiple beneficiaries in a breach of contract action. The trial court concluded appellant could not represent the trust since to do so would be to engage in the unauthorized practice of law. Despite repeated warnings, appellant failed to heed the court’s instructions and continued to represent the trust. After the trial court found him unable to represent the trust, it indicated that all legal filings made by him would be considered a legal nullity and entered a default judgment for respondent on all claims.
Appellant relies on Navarro Savings Association v. Lee (1980) 446 U.S. 458 for the proposition that he may, in propria persona, represent the interests of the trust. Navarro, a case dealing with diversity jurisdiction of the federal courts, is inapplicable to this issue. Navarro did not concern whether a non-attorney trustee may represent the trust in court; an in propria persona trustee did not attempt to represent the trust in a formal legal proceeding in Navarro. (Id. at p. 460.) Instead, the Supreme Court concluded that to establish diversity jurisdiction in federal court, the physical location of one of the trustees may be used in order to satisfy the diversity jurisdictional requirement that the parties to the lawsuit reside in separate states. (Ibid.) The Navarro Court concluded a trustee may represent the trust in the capacity of holding, managing, and disposing of assets for the benefit of the beneficiaries to the trust and that a trustee may sue on behalf of the trust. (Id. at p. 464.) Appellant relies on this statement made in Navarro to support his argument that as a non-attorney trustee, acting in pro per, he may represent the trust as counsel in legal proceedings. Appellant misreads Navarro. Navarro stands for the narrow proposition that a non-attorney trustee may sue on behalf of the trust by hiring a licensed attorney to do so. The issue in Navarro centered on jurisdictional requirements, not the right of legal representation by a non-attorney. It did not imply that a non-attorney trustee could represent the trust in court in every instance.
There are certainly circumstances where a trustee has been permitted to represent the trust, in pro per without legal counsel. (See Finkbeiner v. Gavid (2006) 136 Cal.App.4th 1417, 1418 [holding "a trustee of an inter vivos trust may appear in court in propria persona to modify and terminate the trust”].) The situation in this case differs, however. This case is similar to Ziegler v. Nickel (1998) 64 Cal.App.4th 545, 546 where a non-attorney trustee also attempted to represent the trust in a legal proceeding. Similarly to the case at bar, the non-attorney trustee continued to attempt to represent the trust despite being warned by the court that he could not do so and should hire an attorney. (Id. at p. 547.) The lower court ordered that the non-attorney was required to withdraw as an attorney from the case. (Ibid.) The court of appeal affirmed, reasoning that since the actions of the trustee affect the trust estate, those actions necessarily affect the interest of the beneficiaries. (Id. at p. 549.) Where, as here, the trustee and the beneficiaries would properly be viewed as joint clients of an attorney representing the trustee under the circumstances of the case, a non-attorney trustee who represents the trust in court would necessarily be representing the interests of the other beneficiaries and is thus engaged in the unauthorized practice of law. (Ibid.)
See also Wells Fargo Bank v. Superior Court (2000) 22 Cal.4th 201, 212, in which the Supreme Court recognized that where there is a lawsuit between the beneficiaries of the trust and the trustee, that the attorney for the trustee is not necessarily, by virtue of this relationship, also the attorney for the beneficiaries for the purposes of the attorney-client privilege.
Here, appellant is a trustee, not an attorney, yet he is attempting to represent the trust and by extension the trust beneficiaries in court in the same manner as the individual in Ziegler. California law is clear on this issue—appellant is engaged in the unauthorized practice of law under Business and Professions Code section 6125. (Ibid.) He may not represent the trust. The lower court properly found his court filings to be a legal nullity in entering judgment for respondent.
II. Appellant Forfeits Any Objection to Venue
Appellant also suggests this case should be dismissed due to a forum selection clause contained within the contract giving rise to the initial case against Turning Leaf. That contract provided that all disputes were to be litigated in San Mateo, but respondent brought this case in Los Angeles. Respondent’s failure to bring the action in a particular forum does not constitute reversible error, however, because appellant failed to challenge venue below.
Code of Civil Procedure section 396b provides that the proper time to file a venue transfer motion is within the time allotted to respond to a complaint, or 30 days after service. (Code Civ. Proc., § 412.20, subd. (a)(3).) In Brock v. Superior Court (1947) 29 Cal.2d 629, 634, the court held that a defendant who fails to timely demand in proper manner that the action be transferred to a different county is precluded from later raising the question, except in a narrow category of cases, not at issue here, relating to real property actions where there is an absolute right to contest proper venue. (See Herd v. Tuohy (1901) 133 Cal. 55, 65.)
Here, service of the initial complaint occurred on June 7, 2006. A timely filed motion was not made within 30 days of this date. Because appellant did not file a timely motion to transfer, he cannot complain about venue on appeal. (Brock v. Superior Court, supra,29 Cal.2d at p. 634.)
Appellant also alludes to other legal arguments in his brief for evading liability of the breach of contract action. Such arguments appear to concern the authority of an employee to bind the principal, whether an employee was in fact acting on behalf of the principal, and lack of consideration in regard to the initial contract. However, the arguments were not made below. No basis is provided in appellant’s brief for allowing those arguments to now be considered.
III. The Trial Court Did Not Err By Allowing Respondent To Pursue An Action Against The Appellant By Using the Word “Trust” In Court Pleadings
Lastly, appellant claims that because respondent named “Turning Leaf Financial Trust” as the defendant, instead of “Turning Leaf Financial,” this court should reverse. Appellant makes this claim despite the fact that Turning Leaf is a trust organized under the laws of the State of California. Appellant does not claim that “Turning Leaf Financial” is a different entity from the one intended to be sued by the respondent. Ample facts in the record indicate that respondent sued the correct party. Instead, appellant claims that merely including the word “Trust” in the named party line of the complaint and other court filings is sufficient to warrant reversal. We disagree.
In order to warrant reversal where a party is misnamed, an appellant must demonstrate that he or she is not the actual party intended to be sued by the respondent. (Brum v. Ivins (1908) 154 Cal. 17, 20.) If it is shown that a person was served with process in an action brought against him, the judgment binds him, even if he is incorrectly named. (Ibid.) Suing the wrong party is one thing. But, suing the correct party under a reasonable, but mistaken name is another. The error in naming “Turning Leaf Financial Trust” instead of “Turning Leaf Financial” does not warrant reversal. The respondent reasonably used “Trust” since Turning Leaf is a trust. Although this is not the correct name, there is no confusion as to whom the respondent intended to sue. Appellant cannot use the minor inclusion of the word “Trust” to require reversal in the absence of showing any other prejudicial error which may have accrued from this inclusion.
DISPOSITION
The judgment is affirmed. Respondent is entitled to costs on appeal.
We concur: ZELON, J., JACKSON, J.