Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County No. 05CECG03527. Alan M. Simpson, Judge.
Gabriel G. Atamian, in pro. per., for Movant and Appellant.
McCormick, Barstow, Sheppard, Wayte & Carruth, Marshall C. Whitney, Anil Pai, Jerry D. Casheros and Alice M. Dostálová for Defendant and Respondent.
OPINION
DAWSON, J.
The trial court dismissed a medical malpractice action with prejudice after the plaintiff died and her sons and brother did not follow the procedures that would have allowed the decedent’s personal representative or successor in interest to continue the lawsuit.
The brother, representing himself on appeal, claims the trial court erred in dismissing the lawsuit. The defendant doctor contends, among other things, that the brother is not an aggrieved party and therefore lacks standing to pursue this appeal.
We conclude that the record fails to demonstrate that (1) the brother is the decedent’s “personal representative” as that term is used in Code of Civil Procedure sections 377.31 and 377.60 and the Probate Code or (2) he is the decedent’s “successor in interest” for purposes of section 377.31. Thus, the brother has not established that he has standing to appeal.
All further statutory references are to the Code of Civil Procedure unless indicated otherwise.
Accordingly, the appeal will be dismissed.
FACTS AND PROCEEDINGS
This appeal involves a medical malpractice lawsuit brought against William M. Rich, a gynecologist (defendant).
Gabriel G. Atamian is the sole appellant in this matter. Atamian is the brother of Margaret Beberian, the plaintiff in this case.
Defendant performed a total abdominal hysterectomy on Margaret Beberian in January 2002. About two and half years later, in November 2004, defendant discovered that Margaret Beberian had cancer on a portion of her uterus that was not removed during the surgery.
In November 2005, Margaret Beberian sued defendant for medical malpractice claiming he negligently performed the hysterectomy and was negligent in failing to diagnose her cancer after the surgery. She also alleged the delay in the diagnosis of the cancer allowed it to spread.
Margaret Beberian, age 76, died in January 2006. At that time, she was not represented by a lawyer in the medical malpractice lawsuit.
On February 15, 2006, Philip Beberian and Atamian filed a document titled “Motion to Amend Complaint for the First Time.” The caption of this document listed the following as plaintiffs: “Philip Beberian, Admistrator [sic] of the Estate of Margaret Beberian, DEceased; and, Gabriel G. Atamian, MD,MSEE,JD, Brothert [sic] and Guardian ad Litem of Margaret Beberian, Deceased.” The motion stated that the proposed amendment only changed the caption because Margaret Beberian had died in January 2006.
It appears that a hearing was held on February 21, 2006. A reporter’s transcript of that hearing is not a part of the record. In April 2006, Philip Beberian filed a request for a continuance that stated: “This matter came before the Court on February 21, 2006, and at the time, it appeared to the Judge that the ‘Motion to Amend Complaint for the First Time’ was inappropriately drafted in accordance with the local rules.”
On April 28, 2006, Philip Beberian filed another “Motion to Amend Complaint for the First Time.” The caption of this motion differed from the prior motion in that it listed only Margaret Beberian as the plaintiff.
On May 2, 2006, a hearing was held. George Beberian attended because his brother Philip was sick. George Beberian stated that they were trying to get the amendment to the complaint granted. The trial court indicated that it would not hear the motion to amend the complaint that day and that, if it were to consider the motion, it appeared that the proposed amended complaint was not an appropriate complaint. Also during the hearing, the trial court and parties discussed granting the moving parties time to try to find a lawyer willing to take the case. After that discussion, the trial court stated that a status conference would be held on July 11, 2006.
On June 29, 2006, a hearing was held on an ex parte application to file an amended complaint. Atamian appeared on behalf of the moving parties. Atamian told the trial court that he had a juris doctorate degree but was not a practicing attorney who had passed the bar. Counsel for defendant opposed the application.
At the end of the June 29, 2006, hearing, the trial court denied the application. A basis for the denial is reflected in the trial court’s statement: “There’s no reason to have this on calendar for what [Atamian] is trying to do today in an ex parte situation—proceeding.”
On July 7, 2006, Philip Beberian and Atamian filed a petition for writ of mandate requesting this court to compel the trial court to grant leave to amend the complaint to add two indispensable parties—namely, himself and Philip Beberian, the administrator of the estate of Margaret Beberian. (Philip Beberian et al. v. Fresno County Superior Court (Aug. 3, 2006, F050727).) On July 20, 2006, they also filed a request for a temporary stay of the proceedings in the trial court.
The status conference scheduled for July 11, 2006, was held and only counsel for defendant appeared. The trial court acknowledged that a petition for writ of mandate had been filed with the Fifth Appellate District and stated it was not aware of any stay. Counsel for defendant stated he was not aware of any stay. At the close of that hearing the trial court stated it would set another status conference in two weeks.
At the July 25, 2006, status conference, only counsel for defendant appeared and the trial court stated it would dismiss the case.
On August 2, 2006, the trial court entered a written order dismissing the action with prejudice. The order stated that (1) a status conference was scheduled for July 11, 2006, and no one appeared on behalf of plaintiff, and (2) another status conference was set for July 25, 2006, and again no one appeared on behalf of plaintiff. The grounds stated for the dismissal was “that plaintiffs have failed to appear at two consecutive Court-ordered conferences … have not followed its orders on other occasions in attempting to prosecute this case.”
The next day, August 3, 2006, this court issued an order denying the petition for writ of mandate stating: “Petitioners have failed to show the inadequacy of their legal remedy of taking the steps necessary to file a properly amended complaint in the above referenced superior court action.” (Philip Beberian et al. v. Fresno County Superior Court, supra, F050727.)
On August 10, 2006, a notice of entry of the order of dismissal and judgment in favor of defendant was filed in the superior court. Atamian filed a notice of appeal on September 7, 2006.
On September 6, 2006, Philip Beberian filed a document titled “Declaration of Philip Beberian in Support of Motion For Order Substituting Successor in Interest For Deceased Plaintiff.” Also on that date, Atamian filed an objection to the order of dismissal. The objection stated that (1) the trial court violated sections 472 and 473 by (a) denying the motion to amend the complaint and (b) not pointing out the deficiencies or inadequacies so that the moving parties would have been able to correct and eradicate them, and (2) the trial court acted as an inquisitor, dictating to the moving parties how to proceed and not allowing Atamian to proceed as a self-representing litigant. No action was taken on the postjudgment filings.
Atamian mentioned during oral argument that the superior court did not act on his postjudgment filings. The superior court correctly abstained from addressing these filings. Indeed, if the superior court had tried to enter a ruling on Atamian’s postjudgment filings, it would have acted without authority and the ruling would have been void. When Atamian filed his notice of appeal one day after the postjudgment filings, the superior court’s jurisdiction over the matter ended, and jurisdiction was vested in this court. (Betz v. Pankow (1993) 16 Cal.App.4th 931, 937-938; see § 916 [effect of perfecting an appeal].) Therefore, regardless of how the filings are characterized (for example, they could be treated as a motion to reconsider under § 1008), the superior court lacked the authority to rule on them. (Betz v. Pankow, supra, at p. 938.)
DISCUSSION
I. Standards Applicable to Self-representing Parties
Atamian’s opening brief asserts that holdings of the United States Supreme Court establish that self-representing litigants are not required to perform to the same standards as practicing attorneys.
In Haines v. Kerner (1972) 404 U.S. 519 (Haines), a unanimous United States Supreme Court stated that a civil rights action brought under title 42 United States Code section 1983 by an inmate who did not have access to counsel is scrutinized under a less stringent standard than pleadings drafted by lawyers. (Haines, supra, at p. 520.) The United States Supreme Court has reaffirmed the principles established in Haines. (Hughes v. Rowe (1980) 449 U.S. 5, 10, fn. 7.)
The principles established in Haines, however, do not extend to all self-representing litigants. The United States Supreme Court clarified the scope of the Haines decision in a case that did not involve a prisoner by stating: “[W]e have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel.” (McNeil v. United States (1993) 508 U.S. 106, 113 [in ordinary civil litigation, federal procedural rules are not interpreted more leniently for parties who proceed without counsel]; see Foster v. Williams (Tex.App. 2002) 74 S.W.3d 200, 202 [self-representing litigants held to same standards as parties with licensed attorney; liberality in reviewing pleadings is limited to claims by inmates representing themselves].)
In this case, Atamian is not a prisoner and the malpractice claim against defendant is not a civil rights action under title 42 United States Code section 1983. Thus, the less stringent pleading standard described in Haines does not apply in this case. Instead, the pleadings and motions filed by Atamian in the trial court are subject to the standards general applied by California courts in civil litigation. (Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284-1285 [self-representing litigants are not exempt from statutes or court rules governing procedure; nonetheless, courts should exercise special care when dealing with self-representing litigants to make sure verbal instructions and written notices are clear and understandable to laypersons].)
Furthermore, with respect to the rules of procedure applied in this court, we conclude that a self-representing litigant is treated like any other party and, therefore, is subject to the same rules of appellate procedural as parties represented by an attorney. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247 [appellant representing self on appeal must follow correct rules of procedure].)
II. Standing to Appeal
A. Contentions of the Parties
Defendant argues that Atamian does not have standing to appeal the underlying judgment of dismissal because he is not aggrieved by that judgment. Defendant acknowledges that when a plaintiff to a pending action dies, the action may go forward upon a proper motion by the deceased plaintiff’s personal representative or successor in interest. (§§ 377.31 [decedent’s personal representative or successor in interest may pursue actions not abated by original plaintiff’s death], 377.60 [persons with standing to pursue a wrongful death action].) Defendant contends that Atamian (1) did not follow proper procedures and (2) is neither the personal representative nor the successor in interest of Margaret Beberian.
The opening brief filed by Atamian asserts that he was the personal representative of Margaret Beberian and that Philip Beberian was her successor in interest.
B. Standing Requirements
Standing on appeal is governed by section 902, which provides that “[a]ny party aggrieved may appeal in the cases prescribed in this title.”
The Code Commissioners’ notes that accompany section 902 include the statement that “[o]ne not a party to the record may appeal, if aggrieved by the judgment.” (Code commrs. notes, 18 West’s Ann. Code Civ. Proc. (1980 ed.) foll. § 902, pp. 10-11.)
The California Supreme Court has stated that the word “aggrieved” is used in this statute to mean a party whose “rights or interests are injuriously affected by the judgment.” (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 737.) The interest asserted by an appellant “‘“must be immediate, pecuniary, and substantial and not nominal or a remote consequence of the judgment.”’ [Citation.]” (Ibid.)
In this case, the parties appear in agreement that the judgment would aggrieve the personal representative of Margaret Beberian or her successor in interest.
1. Successor in interest
Atamian is the sole appellant and he contends that Philip Beberian is Margaret Beberian’s successor in interest. (See § 377.11 [definition of successor in interest].) Atamian does not contend that he is a successor in interest of Margaret Beberian for purposes of standing in this lawsuit.
In addition, Atamian is not a member of the State Bar of California and is not appearing in this appeal as an attorney representing Philip Beberian. Philip Beberian has not appealed the judgment.
The notice of appeal filed on September 7, 2006, contained both the names and signatures of Atamian and Philip Beberian, but a line was drawn by hand through three of the four places where Philip Beberian’s name was typed on the form and also through his handwritten signature. The appellant’s opening brief and appellant’s reply brief filed in this court refer only to Atamian as an appellant.
Based on these facts, we conclude that Atamian is not Margaret Beberian’s “successor in interest” for purposes of section 377.31. As a result, Atamian’s standing to pursue this appeal must be based on some other ground.
In summary, if the trial court committed any error by not allowing Philip Beberian to proceed with his mother’s lawsuit, only Philip Beberian had standing to pursue that error. Atamian may not assert that error on behalf of Philip Beberian because Atamian is representing only himself in this appeal.
2. Personal representative
Atamian contends that he “was the personal representative of the decedent, when the decedent filed the original complaint on November 10, 2005. [¶] In essence, where the 90% of the original complaint which was medical terminology was drafted by Gabriel G. Atamian with the collaboration of the decedent when she was alive.” Based on these contentions, Atamian concludes that the trial court violated sections 377.31 and 377.60 by not permitting him to continue the lawsuit against defendant.
The Law Revision Commission comment to section 377.31 indicates that Probate Code section 58 contains the applicable definition of the “personal representative.” (Cal. Law Revision Com. com., 14 West’s Code Civ. Proc. (2004 ed.) foll. § 377.31, p. 135.)
The comment also states that the personal representative or successor in interest has an absolute right to be substituted for the decedent. (Cal. Law Revision Com. com., 14 West’s Code Civ. Proc., supra, foll. § 377.31, p. 135.)
Probate Code section 58, subdivision (a) defines “personal representative” to mean “executor, administrator, administrator with the will annexed, special administrator, successor personal representative, public administrator acting pursuant to [Probate Code] Section 7660, or a person who performs substantially the same function under the law of another jurisdiction governing the person’s status.” Thus, the term “personal representative” is used in section 377.31 in a technical, legal sense.
The role of “personal representative” is described in part by Probate Code section 8400, which states: “(a) A person has no power to administer the estate until the person is appointed personal representative and the appointment becomes effective. Appointment of a personal representative becomes effective when the person appointed is issued letters.”
In this case, Atamian did not allege that he was appointed as the personal representative with the power to administer the estate of Margaret Beberian. Furthermore, he did not present any documents that demonstrate he was appointed as the personal representative of her estate. In particular, the appellate record does not show Atamian was issued letters by the probate court.
It appears that Atamian’s claim that he is a personal representative of Margaret Beberian is based on a broader, informal definition of the term “representative.” We conclude the use of such a definition when interpreting sections 377.31 and 377.60 is not appropriate. Instead, the technical definition from the Probate Code must be used.
In summary, Atamian has failed to demonstrate that he is a “personal representative” entitled to pursue the malpractice lawsuit against defendant under either section 377.31 or 377.60.
III. Recusal
During oral argument, Atamian requested a justice to recuse himself from this case on the ground that the justice was a former partner in the law firm representing defendant.
Whether a judge should hear a case in which his or her former law firm is representing one of the parties is a common issue. (See Rothman, Cal. Judicial Conduct Handbook (1999) § 7:41, pp. 198-199.) The question has arisen often enough that the Legislature has determined that, after a certain amount of time has passed, judges may hear a case in which their former law firm is appearing. Specifically, section 170.1, subdivision (a)(2)(B) states that a judge is disqualified for a two-year period from hearing a case where a “lawyer in the proceeding was associated in the private practice of law with the judge.”
Atamian’s opening appellate brief observes that the justice was a partner in the law firm until 1992. Therefore, the two-year period expired over a decade ago. As a result, no grounds for disqualification of the justice exist in this matter.
IV. Other Arguments Raised on Appeal
Atamian’s failure to establish his standing requires this court to dismiss his appeal. Accordingly, the remaining arguments that he has raised on appeal cannot be reached by this court.
V. Judicial Notice
Defendant’s “Request to Take Judicial Notice” filed on July 25, 2007, is granted. To the extent that earlier requests for judicial notice have not been ruled upon, those requests are denied.
DISPOSITION
The appeal is dismissed. Defendant shall recover his costs on appeal.
WE CONCUR: GOMES, Acting P.J., KANE, J.
Furthermore, the postjudgment filings have not been ignored. This court has considered (1) the declaration of Philip Beberian, along with its two exhibits—a copy of Margaret Beberian’s death certificate and a copy of pages one and six of her last will and testament—and (2) Atamian’s objection to the order of dismissal.