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)

Download PDF
Case 3:22-cv-01795-GPC-DDL Document 14 Filed 01/19/23 PageID.204 Page 1 of 3 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TIM EDWARD ORTEGA, Case No.: 22cv1795GPC(DDL) Plaintiff, 12 13 v. 14 MICHAEL P. SANTOMASSIMO; WELLS FARGO BANK, N.A., 15 16 ORDER SUA SPONTE DISMISSING COMPLAINT WITH LEAVE TO AMEND Defendants. 17 18 19 20 21 22 23 24 25 26 27 28 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 1 22cv1795GPC(DDL) Case 3:22-cv-01795-GPC-DDL Document 14 Filed 01/19/23 PageID.205 Page 2 of 3 1 696, 697 (9th Cir. 1987); Johns v. Cnty. of San Diego, 114 F.3d 874, 876 (1997) (general 2 power of attorney could not provide the personal right to assert constitutional claim). 3 In addition, a power of attorney does not grant a non-attorney the right to bring a 4 lawsuit on behalf of the principal. See Ryan v. Hyden, No. 12CV1489–MMA (BLM), 5 2012 WL 4793116, at *4 (S.D. Cal. Oct. 9. 2012) (nonlawyer son with power of attorney 6 for parents could not draft pleadings and pursue claims on their behalf as it constituted 7 the unauthorized practice of law under California law) (quoting In re Marriage of 8 Caballero, 27 Cal. App. 4th 1139, 1151 (1994) (“Despite broad statutory language of the 9 power of attorney with respect to claims and litigation, the attorney in fact may not act as 10 an attorney at law on behalf of his principal, even though the principal could appear in 11 propria persona.”)) and citing 7 Cal. Jur. 3d, Attorneys at Law § 135 (“One may not act 12 as an attorney for another by virtue of a special power of attorney . . . a power of attorney 13 is not a vehicle for acting as an attorney at law.”)); see also Lomax v. City of Antioch 14 Police Officers, No. C 11–02858 CRB, 2011 WL 4345057, at *3-4 (N.D. Cal. Sept. 14, 15 2011) (uninjured father acting as attorney-in-fact for injured son lacked standing to bring 16 complaint on behalf of son and other family members for their injuries; power of attorney 17 did not permit father to engage in the unauthorized practice of law); In re Foster, 2012 18 WL 6554718, *5 (9th Cir. B.A.P. Dec. 14, 2012) (concluding that an attorney-in-fact, as 19 opposed to an attorney-at-law, is not authorized to sign a complaint or otherwise appear 20 on behalf of a principal); Drake v. Superior Ct., 21 Cal. App. 4th 1826, 1831 (1994) 21 (“Long before passage of the Power of Attorney Act, the law distinguished between an 22 attorney in fact and an attorney at law and emphasized that a power of attorney is not a 23 vehicle which authorizes an attorney in fact to act as an attorney at law.”). 24 Therefore, despite the power of attorney granted to her by Plaintiff, Barbara-Susan 25 cannot not file a complaint or petition on behalf of Mr. Ortega. Because Plaintiff has not 26 signed the complaint, the Court SUA SPONTE DISMISSES the complaint with leave to 27 amend. Plaintiff must file an amended complaint on or before February 17, 2023 and 28 must prosecute the case himself. If an amended complaint is not filed by the deadline, 2 22cv1795GPC(DDL) Case 3:22-cv-01795-GPC-DDL Document 14 Filed 01/19/23 PageID.206 Page 3 of 3 1 the Court will dismiss the action with prejudice. In light of the dismissal, the Court 2 VACATES the hearing date of March 3, 2023 on Defendants’ motion to dismiss. 3 4 IT IS SO ORDERED. Dated: January 19, 2023 5 6 7 8 9 10 11 cc: Tim Edward Ortega 11718 SE Federal Highway, #435 Hobe Sound, FL 33455 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 22cv1795GPC(DDL)

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?