Borror v. Department of Investment

• Decision Date: 25 January 1971
• Citation: 15 Cal.App.3d 531,92 Cal.Rptr. 525
• Court: California Court of Appeals Court of Appeals
• Parties: Ruth Marcella BORROR, Plaintiff and Respondent, v. The DEPARTMENT OF INVESTMENT, DIVISION OF REAL ESTATE of the State of California, Defendant and Appellant. Civ. 27718.

Page 525

92 Cal.Rptr. 525

15 Cal.App.3d 531

Ruth Marcella BORROR, Plaintiff and Respondent, v. The DEPARTMENT OF INVESTMENT, DIVISION OF REAL ESTATE of the State of California, Defendant and Appellant.

Civ. 27718.

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

Jan. 25, 1971.

As Modified Feb. 24, 1971.

Hearing Denied March 26, 1971.

Thomas C. Lynch, Atty. Gen. of California, John E. Barsell, Jr., Deputy Atty. Gen., San Francisco, for appellant.

MOLINARI, Presiding Justice.

This is an appeal from a judgment ordering the issuance of a peremptory writ of mandate compelling the appellant, Department of Investment, Division of Real Estate, to set aside its revocation of the real estate salesman's license of Ruth Marcella Borror (hereinafter referred to as 'the licensee').

Statement of the Case

The disciplinary action was imposed pursuant to an accusation which charged the licensee with making fraudulent misrepresentations concerning her financial status and the nature of certain escrow transactions which were employed by the licensee as security in obtaining two loans totaling $10,000, which she later failed to repay. The licensee's default resulted in a civil action for fraud being filed against her. The civil action was settled when the licensee entered into a stipulation in which she admitted that the facts alleged in the complaint were true. This stipulation was subsequently offered into evidence against the licensee at the administrative hearing.

The licensee filed a petition for a writ of mandate seeking to set aside the administrative decision revoking her license. The petition was heard by the trial court, exercising its independent judgment, solely upon the record of the administrative proceeding. The trial court granted the relief requested by the licensee upon two grounds: (1) that the licensee did not receive a fair hearing because she was not properly advised of her right to counsel at the administrative hearing, and (2) that the administrative findings were not supported by competent evidence.

The present appeal involves two principal issues. First, whether the analogies of the criminal law apply in an administrative proceeding with respect to the constitutional right to counsel and, second, whether certain exhibits admitted in evidence at the administrative hearing constituted competent evidence.

Scope of Review

The inquiry by the superior court in the instant case concerned itself with two areas which come within the purview of administrative mandamus proceedings. The first, dealing with the right to counsel, extends to the question whether the Department afforded the licensee a fair administrative hearing and whether it abused its discretion because it did not proceed in the manner required by law. (Code Civ.Proc. § 1094.5, subd. (b); see Le Strange v. City of Berkeley, 210 Cal.App.2d 313, 320, 26 Cal.Rptr. 550.) The second inquiry extends to the question whether the Department abused its discretion in that its findings are not supported by the evidence. (Code Civ.Proc. § 1094.5, subd. (b); Le Strange v. City of Berkeley, supra.)

In determining whether the administrative findings are supported by the evidence, the trial court was governed in the instant case by the 'independent judgment' test since the action it was reviewing was that of a state-level agency of legislative origin involving a vested right in a license. (See Laisne v. State Bd. of Optometry, 19 Cal.2d 831, 834, 123 P.2d 457; Drummey v. State Bd. of Funeral Directors, 13 Cal.2d 75, 85, 87 P.2d 848.) Accordingly, the trial court was authorized to exercise its independent judgment on the evidence and in its review had the right to judge the intrinsic value of the evidence and to weigh it. (Code Civ.Proc. § 1094.5, subd. (c); Le Strange v. City of Berkeley, supra.)

The scope of the trial before the superior court is not an unqualified or unlimited trial de novo, but the trial proceeds upon a consideration of the record of the administrative proceedings which is received in evidence and marked as an exhibit. (See Dare v. Bd. of Medical Examiners, 21 Cal.2d 790, 799--800, 136 P.2d 304; Cont.Ed.Bar, California Administrative Mandamus, §§ 5.63 and 13.4.) The trial court is not, however, necessarily confined to the record before the agency, but it may receive additional evidence where the evidence could not have been produced at the administrative hearing, in the exercise of reasonable diligence, or the evidence was improperly excluded at the administrative hearing. (Code Civ.Proc. § 1094.5, subd. (d); Dare v. Bd. of Medical Examiners, supra, at p. 799; Cont.Ed.Bar, supra.) If it appears from the record that incompetent evidence has been received by the agency, the complaining party may object at the trial to its admissibility. (Dare v. Bd. of Medical Examiners, supra.)

Right to Counsel

The administrative record discloses that upon the commencement of the administrative proceedings the licensee was served with a copy of the Accusation together with a Notice of Defense pursuant to Government Code, section 11505. ¹ In the Notice of Defense the licensee was requested to supply the name and address of her attorney. She signed her own name in the space provided for the attorney's name and checked the block reading: 'I Do not intend to be represented by an attorney.' The Notice of Hearing advising the licensee of the time and place of the administrative hearing (§ 11509) contained the following pertinent language: 'As in all adversary proceedings, you may be present at the hearing, and may be represented by counsel * * *.'

At the hearing, the licensee was asked by the hearing officer if she was appearing without an attorney. She answered, 'Yes, I am.' Later, the hearing officer asked the licensee, 'Why don't you get your own attorney?' The licensee stated, 'I can't afford an attorney.' The hearing officer then responded, 'There is an Office of Economic Opportunity.' In a subsequent motion for reconsideration after the agency's decision the licensee was therein represented by counsel.

The trial court determined that the licensee was not accorded a fair hearing because the hearing officer did not advise her of her right to counsel and the consequences to her if the allegations of the accusation were found to be true. The court found that the notice provided for in section 11509 did not suffice to advise the licensee of her right to counsel, and held that due process requires that in addition to the notice contained in section 11509, the hearing officer must personally advise a respondent of his right to counsel. The trial court deemed the inquiries made to the licensee at the hearing with respect to representation by counsel insufficient and concluded that it was incumbent upon the hearing officer to have advised the licensee that she could face a criminal prosecution in the event the accusation against her was sustained.

It is apparent that the trial court purported to apply the due process requirements of criminal cases to administrative hearings. In criminal proceedings and trials it is the duty of the trial judge to advise the accused of his right to counsel when he is brought before the magistrate upon an arrest (Pen.Code, §§ 858, 859), when he is arraigned before the trial court (Pen.Code, § 987), and before accepting a guilty plea. (Pen.Code, § 1018.) 'In order to fully apprise the accused of that right, the trial court should inform him not only that he has a right to counsel but also that the court will appoint an attorney to represent him without cost to him if he is indigent.' (In re Fresquez, 67 Cal.2d 626, 629, 63 Cal.Rptr. 271, 273, 432 P.2d 959, 961; see In re Smiley, 66 Cal.2d 606, 614--615, 58 Cal.Rptr. 579, 427 P.2d 179.)

The right of an accused to counsel in a criminal case may be waived. (In re Fresquez, supra, 67 Cal.2d 626, 629, 63 Cal.Rptr. 271, 432 P.2d 959; Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 82 L.Ed. 1461.) Such a waiver must be an intelligent one and depends, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience and conduct of the accused. (In re Fresquez, supra; Johnson v. Zerbst, supra, at p. 464, 58 S.Ct. at p. 1023.) '* * * the court cannot accept a waiver of counsel from anyone accused of a Serious public offense without first determining that he 'understands the nature of the charge, the elements of the offense, the pleas and defenses which may be available, or the punishments which may be exacted.' (Citations.)' (Emphasis added; In re James, 38 Cal.2d 302, 313, 240 P.2d 596, 603; People v. Carter, 66 Cal.2d 666, 672, 58 Cal.Rptr. 614, 427 P.2d 214; In re Johnson 62 Cal.2d 325, 335, 42 Cal.Rptr. 228, 398 P.2d 420; In re Fresquez, supra, 67 Cal.2d at p. 630, 63 Cal.Rptr. 271, 432 P.2d 959.) 'The scope of the inquiry will, of course, vary according to the Seriousness of the crime charged, and the trial judge is not required to demand that a defendant, as a prerequisite to defending himself, demonstrate either the acumen or the learning of an attorney.' (Emphasis added; In re Fresquez, supra, 67 Cal.2d at p. 630, 63 Cal.Rptr. at p. 4, 432 P.2d at p. 962; People v. Carter, supra, 66 Cal.2d at p. 673, 58 Cal.Rptr. 614, 427 P.2d 214; People v. Williams, 2 Cal.3d 894, 908, 88 Cal.Rptr. 208, 471 P.2d 1008.)

In the light of the foregoing principles it is clear that in a criminal case it is the primary duty of the court to advise an accused that he is entitled to be represented by counsel and that counsel will be appointed for him if he is indigent. If the accused chooses to waive his right to counsel the court may not accept such a waiver where the accused stands charged of a Serious offense unless the court first determines that he understands the nature of the offense, the elements of the offense, the pleas and defenses available to him, and the punishment which may be exacted. This determination...