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Aulisio v. Bancroft

California Court of Appeals, Fourth District, Third Division

October 30, 2014

ANTHONY AULISIO, JR., et al., Plaintiffs and Appellants,
BILL BANCROFT et al., Defendants and Respondents.

Appeal from a judgment of the Superior Court of Orange County, No. 30-2012-00573872 Geoffrey T. Glass, Judge.

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[Copyrighted Material Omitted]

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Anthony Aulisio, Jr., in pro. per., and for Plaintiff and Appellant CAAJ Leasing Trust.

Law Office of Neal C. Swensen and Neal C. Swensen for Defendants and Respondents Bill Bancroft and BLB Enterprises, Inc., dba Patrol One.

Law Office of Brian Kindsvater and Brian Kindsvater for Defendants and Respondents John Vach and PD Transport, dba Southside Towing.

Law Office of Andrew W. Macrae and Jeffrey N. Redd for Defendants and Respondents Optimum Professional Property Management, Inc., and Debra Kovach.

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Anthony Aulisio, Jr., appeals from a jury verdict that found defendants, consisting of his homeowner association’s management company (Optimum Professional Property Management and Debra Kovach), the patrol service it employed (BLB Enterprises, Inc., doing business as Patrol One, and Bill Bancroft), and a towing company (PD Transport, doing business as Southside Towing, and John Vach), did not wrongfully tow and convert his Jeep vehicle, nor convert the personal property it contained. CAAJ Leasing Trust (CAAJ), which Aulisio created as sole grantor, trustee, and trust beneficiary, owned legal title to the Jeep and also appeals. Specifically, CAAJ appeals the trial court’s ruling at the outset of trial that CAAJ “can’t participate in the proceedings” with Aulisio appearing in propria persona as the trust’s sole trustee and sole beneficiary.

The trial court relied on precedent that an executor or personal representative may not appear in propria persona in court proceedings outside the probate context on behalf of a decedent’s estate because representing another person or entity’s interest in a lawsuit constitutes the unauthorized practice of law. (Hansen v. Hansen (2003) 114 Cal.App.4th 618 [7 Cal.Rptr.3d 688] (Hansen); City of Downey v. Johnson (1968) 263 Cal.App.2d 775 [69 Cal.Rptr. 830] (City of Downey).) Similarly, in actions involving the trust corpus, a trustee generally may not appear in propria persona “‘because in this capacity [he or she] would be representing interests of others and would therefore be engaged in the unauthorized practice of law. [Citation.]’” (Ziegler v. Nickel (1998) 64 Cal.App.4th 545, 548 [75 Cal.Rptr.2d 312], original italics (Ziegler).) But if a sole trustee is also the trust’s sole settlor and beneficiary, the rationale of these cases ceases to apply: no interests are at stake except those of one person.

The purpose of the State Bar Act (Bus. & Prof. Code, § 6000 et seq.; all undesignated statutory references are to this code) and its prohibition against the unauthorized practice of law (§ 6125) is to protect the public, the courts, and litigants who rely on attorneys by “‘assur[ing] the competency of those performing [legal] services.’” (Drake v. Superior Court (1994) 21 Cal.App.4th 1826, 1830 [26 Cal.Rptr.2d 829].) It may be advantageous to a litigant, the courts, the public, and even lawyers to hire legal representation; indeed, the adage that “a self-represented attorney has a fool for a client” is too often proven true. But nothing in the State Bar Act since its enactment in 1927 has abrogated the right to represent one’s own interests in court. That right of self-determination applies equally to nonlawyers like Aulisio.

Consequently, we conclude that a sole trustee of a revocable living trust who is also the sole settlor and beneficiary of the trust assets he or she is

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charged to protect does not appear in court proceedings concerning the trust in a representative capacity. Instead, he or she properly acts in propria persona and does not violate the bar against practicing law without a license. (§ 6125.) We therefore reverse the judgment as to CAAJ, and remand so Aulisio may appear in propria persona to assert his interest as the sole beneficial owner of the Jeep as a trust asset. As we explain, however, we affirm the judgment against Aulisio in his individual capacity concerning his personal property in the Jeep.



Aulisio includes in the appellate record only the reporter’s transcript of the trial court’s pretrial hearings, a printout of the trial court’s summary register of filings in the case, and the judgment and notice of judgment, but not the trial transcript or any of the actual pleadings, motions, or other filed documents. This scant record barely suffices as a basis to review CAAJ’s appeal of the trial court’s pretrial ruling. (See Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324 [100 Cal.Rptr.3d 335] ["It is the burden of the party challenging a judgment on appeal to provide an adequate record to assess error”].) But as we discuss below, the limited record severely compromises Aulisio’s appeal in his individual capacity because we must presume any gaps in the record support the judgment. (Denham v. Superior Court (1970) 2 Cal.3d 557, 566 [86 Cal.Rptr. 65. 468 P.2d 193] (Denham) [judgment is presumed correct].) Given the skeletal record, we turn to the parties’ briefs for the requisite narrative background.

Defendants towed Aulisio’s 1987 Jeep Cherokee from his driveway or the road outside his home in a condominium complex in June 2009. According to defendants, the patrol company retained by the homeowners’ association cited the Jeep on several occasions for parking in the complex with expired “tags, ” in violation of the association’s parking rules requiring current vehicle registration. When Aulisio did not move the Jeep or update the expired tags, the patrol company cited the vehicle again and had it towed. According to Aulisio, he displayed prominently on the Jeep’s dashboard a “moving pass” issued by the Department of Motor Vehicles that constituted valid, current vehicle registration, and therefore defendants wrongfully cited and towed his Jeep. According to Aulisio, despite his attempts to recover the Jeep and its contents, defendants “refused to return the property..., all of which eventually disappeared with no explanation.”

Aulisio retained a lawyer who filed a complaint on his behalf and on behalf of CAAJ for the allegedly wrongful towing and conversion. CAAJ owned the

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Jeep, but not the contents inside the vehicle, which belonged to Aulisio. For reasons not explained in the record, the lawyer ceased appearing at pretrial proceedings. Aulisio thereafter appeared in propria persona and sought also to appear for CAAJ as its sole trustee and sole beneficiary. Defendants objected to this arrangement, arguing that regardless of whether Aulisio was a trustee, beneficiary, or both, he could not assert the trust’s interests or an interest in the Jeep as a component of the trust corpus because he was not a lawyer. According to defendants, doing so would be tantamount to providing legal representation to the trust, violating section 6125’s bar on the unauthorized practice of law.

The trial court resolved the issue at a hearing on the day of trial. First, the trial court substituted Aulisio, in his capacity as CAAJ’s sole trustee, for CAAJ as a plaintiff in the lawsuit. Confirming “that you, Mr. Aulisio, are the only trustee for the CAAJ Leasing Trust, ” the trial court “amend[ed] the plaintiff’s name [on the complaint] from CAAJ Leasing Trust to Anthony Aulisio, Jr., as trustee for the CAAJ Leasing Trust.” The court explained, “I am doing that sua sponte because the leasing [trustee has] a fiduciary duty with respect to [protecting trust] property.” The trial court correctly substituted the trustee as the proper plaintiff instead of the trust itself because in a cause of action brought on behalf of a trust, the trustee is the real party in interest, not the trust itself or its beneficiaries. ...

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