Ortega v. Santomassimo et al

Filing 14

Order Sua Sponte Dismissing Complaint with Leave to Amend. Plaintiff must file an amended complaint on or before 2/17/23. The Court vacates the hearing date of 3/3/23 on Defendants' motion to dismiss. Signed by Judge Gonzalo P. Curiel on 1/19/23.(All non-registered users served via U.S. Mail Service to both addresses)(jmo)

Case 3:22-cv-01795-GPC-DDL Document 14 Filed 01/19/23 PageID.204 Page 1 of 3

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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TIM EDWARD ORTEGA,

Case No.: 22cv1795GPC(DDL)
Plaintiff,

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v.

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MICHAEL P. SANTOMASSIMO;
WELLS FARGO BANK, N.A.,

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ORDER SUA SPONTE DISMISSING
COMPLAINT WITH LEAVE TO
AMEND

Defendants.

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On November 16, 2022, Barbara-Susan, as next friend to Plaintiff Tim Edward
Ortega, signed and filed a “petition for declaratory judgment and record.” (Dkt. No. 1.)
Plaintiff did not sign the complaint. Attached to the complaint are purported documents
relating to a power of attorney signed by Plaintiff Tim Edward Ortega in favor of
Barbara-Susan. (Dkt. No. 1-2.)
Parties may “plead and conduct their own cases personally” or proceed with
counsel. 28 U.S.C. § 1654 (“In all courts of the United States the parties may plead and
conduct their own cases personally or by counsel as, by the rules of such courts,
respectively, are permitted to manage and conduct causes therein.”). The right to proceed
pro se in civil cases is a personal privilege and a non-attorney has “no authority to appear
as an attorney for others than himself.” C.E. Pope Equity Trust v. United States, 818 F.2d
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22cv1795GPC(DDL)

Case 3:22-cv-01795-GPC-DDL Document 14 Filed 01/19/23 PageID.205 Page 2 of 3

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696, 697 (9th Cir. 1987); Johns v. Cnty. of San Diego, 114 F.3d 874, 876 (1997) (general

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power of attorney could not provide the personal right to assert constitutional claim).

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In addition, a power of attorney does not grant a non-attorney the right to bring a

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lawsuit on behalf of the principal. See Ryan v. Hyden, No. 12CV1489–MMA (BLM),

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2012 WL 4793116, at *4 (S.D. Cal. Oct. 9. 2012) (nonlawyer son with power of attorney

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for parents could not draft pleadings and pursue claims on their behalf as it constituted

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the unauthorized practice of law under California law) (quoting In re Marriage of

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Caballero, 27 Cal. App. 4th 1139, 1151 (1994) (“Despite broad statutory language of the

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power of attorney with respect to claims and litigation, the attorney in fact may not act as

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an attorney at law on behalf of his principal, even though the principal could appear in

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propria persona.”)) and citing 7 Cal. Jur. 3d, Attorneys at Law § 135 (“One may not act

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as an attorney for another by virtue of a special power of attorney . . . a power of attorney

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is not a vehicle for acting as an attorney at law.”)); see also Lomax v. City of Antioch

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Police Officers, No. C 11–02858 CRB, 2011 WL 4345057, at *3-4 (N.D. Cal. Sept. 14,

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2011) (uninjured father acting as attorney-in-fact for injured son lacked standing to bring

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complaint on behalf of son and other family members for their injuries; power of attorney

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did not permit father to engage in the unauthorized practice of law); In re Foster, 2012

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WL 6554718, *5 (9th Cir. B.A.P. Dec. 14, 2012) (concluding that an attorney-in-fact, as

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opposed to an attorney-at-law, is not authorized to sign a complaint or otherwise appear

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on behalf of a principal); Drake v. Superior Ct., 21 Cal. App. 4th 1826, 1831 (1994)

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(“Long before passage of the Power of Attorney Act, the law distinguished between an

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attorney in fact and an attorney at law and emphasized that a power of attorney is not a

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vehicle which authorizes an attorney in fact to act as an attorney at law.”).

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Therefore, despite the power of attorney granted to her by Plaintiff, Barbara-Susan

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cannot not file a complaint or petition on behalf of Mr. Ortega. Because Plaintiff has not

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signed the complaint, the Court SUA SPONTE DISMISSES the complaint with leave to

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amend. Plaintiff must file an amended complaint on or before February 17, 2023 and

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must prosecute the case himself. If an amended complaint is not filed by the deadline,
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22cv1795GPC(DDL)

Case 3:22-cv-01795-GPC-DDL Document 14 Filed 01/19/23 PageID.206 Page 3 of 3

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the Court will dismiss the action with prejudice. In light of the dismissal, the Court

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VACATES the hearing date of March 3, 2023 on Defendants’ motion to dismiss.

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IT IS SO ORDERED.
Dated: January 19, 2023

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cc:
Tim Edward Ortega
11718 SE Federal Highway, #435
Hobe Sound, FL 33455

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