Williams v. Inglewood Bd. of Realtors

• Citation: 219 Cal.App.2d 479,33 Cal.Rptr. 289
• Court: California Court of Appeals Court of Appeals
• Decision Date: 21 August 1963
• Parties: Daniel T. WILLIAMS, Plaintiff and Respondent, v. INGLEWOOD BOARD OF REALTORS, a California corporation, Defendant and Appellant. Civ. 26884.

Page 289

33 Cal.Rptr. 289

219 Cal.App.2d 479

Daniel T. WILLIAMS, Plaintiff and Respondent, v. INGLEWOOD BOARD OF REALTORS, a California corporation, Defendant and Appellant.

Civ. 26884.

District Court of Appeal, Second District, Division 2, California.

Aug. 21, 1963.

Rehearing Denied Sept. 19, 1963.

Hearing Denied Oct. 16, 1963.

David Lynn, Inglewood, for appellant.

Rubin, Small & Juster, Beverly Hills, for respondent.

ASHBURN, Justice.

In this action for damages for wrongful expulsion from membership in Inglewood Board of Realtors, Inc., plaintiff recovered judgment against defendant Board in the sum of $9,000, and defendant appeals therefrom.

The record is in such shape as to add substantially to the burden of the court. Appellant's opening brief says: 'All points raised on appeal (including the Statement of the Case) are supported by records contained in the Clerk's Transcript and documentary evidence contained in the Exhibits designated for inclusion in the appeal record * * *. The Reporter's Transcript has not been prepared because the oral proceedings are not necessary or relevant to the appeal.' Appellant's arguments proceed upon the assumption that the exhibits may be used to establish insufficiency of the evidence and errors of law. This is a mistaken notion and respondent has raised the point, citing pertinent authorities.

The California Rules of Court provide for only four different types of record, namely, (1) clerk's transcript with reporter's transcript (complete or partial), (2) settled narrative statement, (3) agreed statement, and (4) judgment roll alone. See, 3 Witkin, California Procedure, § 126, page 2303; 3 Cal.Jur.2d § 247, page 757. The record before us does not fall within any of these categories although literally it comes within the following language of subdivision (a), Rule 5, of California Rules of Court: '* * * including the clerk's minutes and any written opinion of the superior court and exhibits either admitted in evidence or rejected, which he [appellant] desires incorporated in the record on appeal.' However, it is clear from the authorities that this language was designed as an aid to simplification and economy in preparation of a reporter's transcript, not as a substitute for same and not as the creation of a hybrid form of record.

The presentation of a record consisting of judgment roll and exhibits or other papers from the clerk's file without a reporter's transcript was condemned in Estate of Larson, 92 Cal.App.2d 267, 269, 206 P.2d 852, 853, wherein the court, speaking through Mr. Presiding Justice Peters, said: 'Such procedure cannot be permitted. * * * This appeal must be treated as a judgment roll appeal, and only those facts appearing in the findings should or will be considered.'

Lakeside Park Ass'n v. Sweeney, 157 Cal.App.2d 101, 103, 320 P.2d 513, 514: 'Appellant first contends that the findings are contrary to the evidence. There is no record of the oral proceedings or any part thereof. The record on appeal here consists only of the clerk's transcript which contains the judgment roll and copies of some of the documents in evidence. Therefore, in disposing of appellant's contention this appeal must be treated as one on the judgment roll. On such an appeal the question of the sufficiency of the evidence to support the findings is not open. In re Estate of Larson, 92 Cal.App.2d 267, 206 P.2d 852.'

The case of White v. Jones, 136 Cal.App.2d 567, 569, 288 P.2d 913, says: 'Appellant does not attack the form of the findings or their sufficiency to support the judgment. His only contention is that the findings (he does not specify which) are contrary to the evidence. Appellant has not taken advantage of either Rule 4(a), Rule 4(b), Rule 6 or Rule 7(a) of the Rules on Appeal, so as to bring to this court the oral proceedings or any part thereof. The record on appeal here consists only of the clerk's transcript which contains the judgment roll and certain documents received in evidence in the court below.

'In disposing of appellant's contention this appeal is therefore to be treated as one on the judgment roll. On such an appeal the question of sufficiency of the evidence to support the findings is not open. In re Estate of Larson, 92 Cal.App.2d 267, 206 P.2d 852.

'The judgment here can only be attacked for errors which affirmatively appear upon the face of the judgment roll. Appellant cannot broaden the scope of this court's inquiry by incorporating in the clerk's transcript the documentary evidence received in the court below. Hunt v. Plavsa, 103 Cal.App.2d 222, 229 P.2d 482; Palpar, Inc., v. Thayer, 83 Cal.App.2d 809, 189 P.2d 752; Utz v. Aureguy, 109 Cal.App.2d 803, 241 P.2d 639; Glogau v. Hagan, 107 Cal.App.2d 313, 237 P.2d 329.

'On an appeal based on a record such as that here, we must presume that in the oral proceedings there was substantial evidence to support the findings. In that inquiry we cannot look beyond the 'facts appearing in the findings' and here it is admitted that those facts support the judgment. Transportation Guarantee Co. v. Jellins, 29 Cal.2d 242, 174 P.2d 625; Hunt v. Plavsa, supra.

'Rules 4(b), 6, 7 and 52 of the Rules on Appeal were designed to make appeals less burdensome and expensive. They were not, however, designed to nor do they broaden the questions that may be raised on a record such as the one here.' To the same effect see, Tibbets v. Robb, 158 Cal.App.2d 330, 337, 322 P.2d 585; Garwick v. Gordon, 121 Cal.App.2d 247, 250, 263 P.2d 125; Callahan v. Chatsworth Park, Inc., 204 Cal.App.2d 597, 606, 22 Cal.Rptr. 606; Hearst Publishing Co. v. Abounader, 196 Cal.App.2d 49, 56, 16 Cal.Rptr. 244; O'Callaghan v. Southern Pac. Co., 202 Cal.App.2d 364, 366, 20 Cal.Rptr. 708; Toenniges v. Griffeth, 169 Cal.App.2d 717, 723, 725, 338 P.2d 230, 914; Siedletz v. Griffith, 18 Cal.2d 227, 229, 232, 114 P.2d 598; DeVries v. Brumback, 53 Cal.2d 643, 647-648, 2 Cal.Rptr. 764, 349 P.2d 532; Dumas v. Stark, 56 Cal.2d 673, 674, 16 Cal.Rptr. 368, 365 P.2d 424.

So we are confronted with the task of sorting the chaff from the wheat and thus determining whether there is any merit in the appeal. We are confined to matters which appear upon the face of the judgment roll expressly or by plain implication.

At the inception of this controversy plaintiff Daniel T. Williams and Wylie F. Mathis were realtor members but not directors of defendant Inglewood Board of Realtors, Inc., a nonprofit trade association incorporated under the General Nonprofit Corporation Law (now §§ 9000-9802, Corporations Code), and composed principally of licensed real estate brokers entitled to use the designation realtor. Its governing instrument is designated as 'Constitution and By-Laws,' of which article 12 prescribes the procedure for disciplining and expelling members.

Mathis filed a complaint with defendant Board of Realtors charging Williams, plaintiff herein, with unethical conduct and claiming $750 of a commission on a certain real estate transaction; plaintiff then filed a complaint against Mathis alleging unethical conduct on his part, a violation of the National Code of Ethics which was binding upon the members. Pursuant to the by-laws these complaints were referred to a committee of nine members of defendant, which committee was known as 'Court of Ethics'; they heard both parties on May 6, 1958, found Mathis guilty and fined him $200; they also held that plaintiff was guilty of violation of said National Code of Ethics and fined him $200; also ruled that Mathis was entitled to an award of $312 from plaintiff upon the disputed commission. Mathis appealed from the fine and the award to the Board of Directors as provided by the by-laws and posted his fine on May 16, 1958. The court found that it was 'the custom and practice of said trade association to require the fine or award, or both if involved, in a decision of the Court of Ethics, to be posted in order to perfect an appeal to the Board of Directors; that plaintiff was aware of this custom and practice and had on a previous occasion complied therewith without objection.' Plaintiff also appealed and on June 4, 1958 posted his fine and part (i. e., $168.75) of the award against him, together with his check for $143.25 representing the balance of the award; he later stopped payment on this check and same was never paid. Mathis' appeal was granted on June 2nd, plaintiff was given notice of hearing thereon and both parties were heard by the Board of Directors on June 18, 1958. Plaintiff's appeal was based on newly discovered evidence and he presented at said June 18 hearing all his evidence upon that subject. The board ruled that Mathis' fine be reduced to $50 and that he be awarded recovery of $750 of the real estate commission from plaintiff. Plaintiff never paid any part of this sum except the $168.75 above mentioned and he refused to pay the balance. At that same hearing plaintiff's fine was confirmed at $200.

The court found that the Board of Directors acted throughout the proceeding in good faith. We quote: '[I]n participating in any action by said Board of Directors in the year 1958, in any matter concerning or involving plaintiff as hereinafter found to be true, said defendant directors acted in good faith as agents of said trade association in the course and scope of their capacity of directors respectively and not otherwise. * * * [T]hat the actions taken by said Board of Directors on June 18, 1958 and on July 7, 1958 aforesaid were in good faith but were wrongful and void upon the grounds hereinafter found * * *. [T]hat the action of the Board of Directors on June 18, 1958, in awarding Mathis $750.00 commission from plaintiff, and in reducing Mathis' fine from $200.00 to $50.00, was by majority vote and in good faith by the members hearing the case but it was not by secret ballot filed with the clerk and its said action was therefore a material violation of the by-laws and wrongful and...