RUBY v. SUPERIOR COURT IN AND FOR CITY AND COUNTY OF SAN FRANCISCO

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District Court of Appeal, First District, Division 1, California.

RUBY et al. v. SUPERIOR COURT IN AND FOR CITY AND COUNTY OF SAN FRANCISCO et al.

Civ. 14973.

Decided: May 15, 1951

Donovan Ruby, Helen Ruby, and John P. Andrews, in pro per. Herbert Pothier and Marcel E. Cerf, Robinson & Leland, all of San Francisco, for respondents.

This Court denied the Petition for an Alternative Writ of Mandate because we were of the opinion that Mandate could not control the refusal of the trial court to substitute John Andrews as one of the parties plaintiff. We are still of that opinion. The trial court interrogated the alleged assignee, a layman, and came to the conclusion that he was merely being brought into the case so that he could, in the guise of appearing in propria persona, in fact represent the petitioners. The record demonstrates that this finding is supported by the evidence and the reasonable inferences therefrom. A substitution intended to permit a layman to practice law should not be permitted. 13 California Law Review 323, 325; 33 California Law Review 622. Whether a motion to substitute shall be granted under Sec. 385 of the Code of Civil Procedure is discretionary with the trial court. Fay v. Steubenrauch, 138 Cal. 656, 72 P. 156; Alameda County Home Investment Co. v. Whitaker, 217 Cal. 231, 18 P.2d 662. Unlike Philbrook v. Superior Court, 111 Cal. 31, 43 P. 402, so heavily relied upon by petitioners, here the trial court was justified in finding that the basic purpose of the assignment was to permit a layman to practice law.

The petition for a rehearing is denied.

PER CURIAM.

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