Dyer v. Watson

• Decision Date: 04 November 1953
• Citation: 121 Cal.App.2d 84,262 P.2d 873
• Court: California Court of Appeals Court of Appeals
• Parties: DYER v. WATSON, Real Estate Com'r et al. Civ. 19451.

Page 873

262 P.2d 873

121 Cal.App.2d 84

DYER v. WATSON, Real Estate Com'r et al.

Civ. 19451.

District Court of Appeal, Second District, Division 3, California.

Nov. 4, 1953.

As Modified Nov. 9, 1953.

Hal Hughes, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., and Lee B. Stanton, Deputy Atty. Gen., for respondents.

PARKER WOOD, Justice.

The real estate commissioner revoked the license of Cornelia Rita Dyer, a licensed real estate broker. She petitioned the superior court for a writ of mandate compelling the commissioner to vacate his order of revocation. The petition was denied and she appeals from the judgment.

In an accusation, filed by a deputy commissioner, it was charged that between June 1, 1950 and October 5, 1950, Cornelia Rita Dyer (hereinafter referred to as licensee), either personally or through her representatives, obtained $5 from each of 20 designated persons by falsely representing to them that she possessed hundreds of bona fide listings of vacant rental properties at stated rental rates in particular areas; that in each instance she should have known that the properties she referred said persons to were not for rent, or were not as represented, and therefore each sum of $5 was obtained under false pretenses. It was charged further therein that during the month of March, 1951, she as a licensed real estate broker, caused to be published classified advertisements in the Los Angeles Examiner containing substantially the following wording: '$1 a day and up restricted--unrestricted $5 fee renters see Cornelia Dyer L. A.'s oldest, largest most personal rental service for best rentals available at lowest cost furnished houses and apartments'; said advertisements contained itemized lists of 'approximately 30 to 50' purported vacancies at rental rates of $30 to $50 monthly furnished, and also represented that she was in possession of over 900 others, furnished and unfurnished; said advertisements were false and misleading and were known by licensee to be false and misleading at the time she caused them to be published. It was also stated therein that by reason of the alleged facts the licensee acted in violation of section 10176, subdivisions (a), (b) and (i), and section 10177, subdivision (c) and (f) of the Business and Professions Code.

In a supplemental accusation it was charged that, between June 3, 1950 and July 5, 1951, the licensee obtained $5 under false pretenses from each of 12 persons; and that licensee's advertisements in newspapers were false and misleading. In a second supplemental accusation she was charged with 13 additional similar violations, including a charge that she violated subdivision (c) of section 10176.

After a hearing the real estate commissioner found that from June, 1950 to July, 1951 (inclusive), the licensee represented to the public at large and to 16 persons (specifically designated therein) that she possessed hundreds of bona fide listings of vacant properties at stated rental rates in particular areas, and upon the payment of a registration fee she would furnish addresses of listings of real property which were then actually available for rental for the stated price, and if the addresses were not suitable the registrant could by telephone contact licensee's office and secure additional addresses without payment of additional fees; that in truth neither licensee nor her representatives knew whether or not said listings were actually available for rental; licensee intentionally concealed from said registrants the fact that she had no actual knowledge of the availability of said listings, and she further concealed from said registrants that licensee's telephone facilities were inadequate and long delays would be encountered in seeking to reach her office by telephone, and that they would be informed that no further listings were available; in reliance upon the representations of licensee and without knowledge of the falsity thereof 16 persons (designated therein) registered with and paid to licensee the registration fee required and received addresses of listings as being available for immediate rental and when said persons called at said addresses, they were advised that said places were not available for rental and in several instances said places had not been listed with licensee; prior to the time licensee would furnish any addresses of real property represented as being available for rental purposes, licensee would enter into a written agreement with each registrant, which agreement provided in part that the service which licensee offered consisted 'of referring Registrants to Landlords who have listed their vacancies with her for rent,' that no guarantee is made 'as to the price of rental, location or acceptance of Registrant' by landlord, nor is registrant 'obliged to accept any rental not to his liking'; said provision of the written agreement was in direct conflict with the oral representations of licensee that rentals were available in particular areas at specified rents, and licensee falsely concealed said conflict from the persons contacting her; licensee's acceptance of compensation from various persons for her services in the procurement of real property for rental purposes created the relationship of principal and agent within the purview of section 10131 of the Business and Professions Code, and she had a duty to make a full and fair disclosure of all the facts as to the actual availability of the real property for rental purposes; in violation of her duty as an agent she did falsely represent to her principals that the real properties were available for rental purposes without actually having knowledge thereof and that said false representations were made for the purpose of inducing others to enter into the principal-agency relationship with her.

The commissioner made the following determination of issues: Licensee has been guilty of violations of section 10176 of the Business and Professions Code as follows: making false promises of a character likely to influence, persuade or induce [violation of subdivision (b)]; a continued and flagrant course of misrepresentation or making of false promises through real estate agents or salesmen [violation of subdivision (c)]; conduct which constitutes fraud or dishonest dealing [violation of subdivision (i)].

Licensee alleged, among other things, in her petition for a writ of mandate that the commissioner acted without jurisdiction in revoking her license; the evidence before the hearing officer was insufficient to show that licensee violated any of said sections of the Business and Professions Code, and such evidence does not support the findings of the hearing officer or the order or revocation.

The matter was submitted upon the record of the proceedings before the commissioner. The trial court found that the commissioner did not proceed without or in excess of his jurisdiction; the findings of the commissioner are supported by the weight of the evidence; and the findings support the order of the commissioner.

Appellant (licensee) contends that the commissioner did not have jurisdiction, because appellant was not required to have a real estate broker's license to engage in the business of such rental agent. Section 10131 of the Business and Professions Code provides: 'A real estate broker * * * is a person who, for a compensation, * * * negotiates the purchase or sale or exchange of real estate, or who, for compensation, * * * rents, or places for rent, or collects rent from real estate, or improvements thereon, for another or others.' Appellant argues that she did not, for compensation or otherwise, rent or place for rent real estate or improvements thereon; that she did not for compensation, from the landlord, rent anything or place anything for rent; that she did not rent anything, in that, she merely sold to registrants a list of names and addresses and let them seek their future landlord from such list; that she merely sold information that was selective and fitted to the price bracket and other requirements of the customer. Appellant states in her brief, in summarizing the evidence with respect to the various transactions involved, that 'in each case a customer approached your Appellant or some of her employees at her place of business, signed a contract, the effect of which is that the customer sought and paid for, and your Appellant received payment and agreed to furnish, certain information respecting rental vacancies for residential purposes.' Appellant was a real estate broker and, among her employees, in her place of business there were two real estate brokers and two real estate saleswomen. In 15 of the 16 violations found by the commissioner, the prospective renters had seen appellant's rental advertisements in newspapers prior to going to her place of business. Many of the advertisements, received in evidence as exhibits, included a brief description of the rental property, a statement of the amount to be paid as rent, and the words: 'Lic. Real Estate Broker Cornelia Dyer Lowest Fee Best Rentals.' Said renters told appellant, in effect, that they wanted to rent apartments or houses under certain terms and conditions. Each renter paid $5 to appellant, and appellant issued a receipt for said sum. The receipts stated, in part, that the sum was received for a certain number of days of rental service, and that the service which appellant offered 'consists of referring Registrants to Landlords who have listed their vacancies with her for rent.' At the top of the receipt there were words as follows: 'Cornelia...