Chapman v. Farr
Decision Date | 23 June 1982 |
Citation | 132 Cal.App.3d 1021,183 Cal.Rptr. 606 |
Court | California Court of Appeals Court of Appeals |
Parties | Mildred H. CHAPMAN, a Conservatee, by Janette Eileen Chapman, her Conservator, Plaintiff, Cross-Defendant and Respondent, v. Colleen M. FARR, et al., Defendants, Cross-Complainants and Respondents, Dominic Frisone, Larry Frisone and Giovanna Frisone, Defendants, Cross-Defendants and Appellants. Civ. 48352. |
LaCroix & Schumb, by Michael J. Matteucci, San Jose, for defendants, cross-defendants and appellants.
Perry E. Olsen, Watsonville, for defendant, cross-complainant and respondent Farr.
Dawson, Manning & Rose by Richard M. Manning, Scotts Valley, for plaintiff, cross-defendant and respondent Chapman.
*
The trial court awarded damages, injunctive and declaratory relief to plaintiffs and cross-complainants against the Frisones, defendants and cross-defendants, the appellants herein. It did so on the theory that the Frisones, through appellant Larry Frisone loaned cross-complainants (the Farrs) $50,000 at usurious rates. Three months after judgment was entered below, the California constitutional section defining usury 1 was amended by referendum to exclude from its operation "any loans made or arranged by any person licensed as a real estate broker by the State of California and secured in whole or in part by liens on real property, ...."
The loan in question was secured by real property, and the court made a finding that Larry was a licensed real estate broker.
The decisive issue on this appeal is whether the constitutional amendment is retroactive in its effect. We conclude that it is and therefore reverse.
Orden v. Crawshaw Mortgage & Investment Co. (1980) 109 Cal.App.3d 141, 167 Cal.Rptr. 62, 2 appears to us to state the rule correctly: (Id., at pp. 145-146, 167 Cal.Rptr. 62.)
Although this language might be read as cutting off retrospective application of the amendment if the plaintiff has obtained judgment in the trial court, the case law has consistently held to the contrary. As the court stated in Southern Service Co., Ltd. v. Los Angeles (1940) 15 Cal.2d 1, 12, 97 P.2d 963: " "
Most of the decisions applying this rule deal with criminal laws, but as Justice Tobriner noted in Governing Board v. Mann (1977) 18 Cal.3d 819, 830, 135 Cal.Rptr. 526, 558 P.2d 1: "[T]he reach of this common law rule has never been confined solely to criminal or quasi-criminal matters." (Fn. omitted.) One of the cases cited in Mann was Wolf v. Pacific Southwest etc. Corp., (1937) 10 Cal.2d 183, 74 P.2d 263, dealing with usury.
Governing Board v. Mann, supra, 18 Cal.3d 819, 135 Cal.Rptr. 526, 558 P.2d 1, held that 1976 legislation barring governmental entities from imposing sanctions on persons convicted of possession of marijuana applied to proceedings to dismiss a tenured school teacher that began in 1971. Southern Service Co., Ltd. v. Los Angeles, supra, 15 Cal.2d 1, 97 P.2d 963, held that repeal of a statutory right to a refund of illegally collected taxes cut off all pending causes of action based on the statute. (Id., at p. 12, 97 S.Ct. 963.) Another analogous case is Younger v. Superior Court (1978) 21 Cal.3d 102, 110, 145 Cal.Rptr. 674, 577 P.2d 1014, holding that repeal of a statute authorizing persons to petition for destruction of the records of prior marijuana convictions eliminated the remedy where the case was on appeal at the time of repeal. The most recent decision applying this rule is South Coast Regional Com. v. Gordon (1978) 84 Cal.App.3d 612, 148 Cal.Rptr. 775. The court held that the South Coast Regional Commission could not collect attorney fees in an action filed in 1973 since the attorney-fee provision was eliminated in 1977, after the original judgment, but before final appellate review. The court synthesized the case law as follows: ...
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