Golde v. Fox

Decision Date27 September 1979
Citation159 Cal.Rptr. 864,98 Cal.App.3d 167
PartiesEdward Maurice GOLDE, Plaintiff and Appellant, v. David H. FOX, as Real Estate Commissioner of California, Defendant and Respondent. Civ. 43983.
CourtCalifornia Court of Appeals Court of Appeals

Ralph Nathanson, Jeremy A. Archdeacon, Oakland, for plaintiff and appellant.

George Deukmejian, Atty. Gen., Charles X. Delgado, Deputy Atty. Gen., San Francisco, for defendant and respondent.

MARTIN, * Associate Justice.

Appellant appeals from a superior court judgment denying his petition for a writ of mandate to compel respondent David Fox, commissioner of the department of real estate (hereinafter called Commissioner) to set aside his decision revoking appellant's broker's license and substituting therefor a restricted salesman's license.

The Commissioner's office filed an accusation charging the appellant with having entered a guilty plea to violation of section 11359 of the Health and Safety Code (possession of marijuana for sale); that said offense is "a crime involving moral turpitude" and thus "grounds for disciplinary action under the provisions of section 10177(b) of the Business and Professions Code." An amended version of the accusation further alleged that the appellant's acts constitute "a crime that is substantially related to the qualifications, functions, or duties of the business or profession for which the license was issued and is grounds for disciplinary action under the provisions of section 490 of the Business and Professions Code." A hearing was requested to determine whether appellant's real estate broker's license should be suspended as revoked. Said hearing was had before an administrative law judge (Kendall), with the resultant proposed decision issued November 5, 1976, recommending revocation of appellant's license but also recommending the issuance of a restricted broker's license.

Commissioner rejected the proposed decision and on July 22, 1977, issued his own order revoking the broker's license, but permitting the issuance of a restricted salesman's license.

Appellant in his petition for writ of mandate alleged the Commissioner "prejudicially abused his discretion in this matter, in that the findings are not supported by the evidence and he failed to make findings on very important matters of evidence, all of them favorable to the petitioner." He prayed for a writ compelling the Commissioner to set aside his order and adopt the proposed decision of the administrative law judge. The matter was tried in the superior court and the writ was denied and judgment was entered on March 22, 1978. A timely notice of appeal was filed.

The facts of this case are not in dispute and most of the allegations of the petition were admitted. On June 13, 1974, appellant was charged by information with two felonies: violation of section 11359 of the Health and Safety Code (possession of marijuana for sale), and violation of section 11360 of the Health and Safety Code (transportation of a controlled substance). He pled guilty to the possession for sale charge on condition that the transportation charge be dismissed. Appellant thereafter pursuant to Penal Code section 1203.03 underwent 90 days of diagnostic evaluation at Vacaville Medical Facility and on February 5, 1975, was placed on felony probation on condition he serve one year in the county jail. The facility at Vacaville felt he was an acceptable candidate for probation and felt county jail time was indicated. Among other notable conditions of probation was abstinence from flying an airplane, and a requirement of submission to chemical testing for drug usage. He was granted early release from county jail on July 8, 1975. The details of appellant's offense are set forth in testimony that he initiated at the administrative hearing and in the probation report. On June 4, 1974, he landed a small airplane at the Santa Nella Airport in Merced County. He had a certified private pilot's license. The plane contained 800 to 1,000 pounds of marijuana with an agreed street value of $256,000. He had obtained the marijuana in Mexico. It would appear the airplane ran out of gasoline, appellant having overrun his rendezvous point. The arresting police officers felt the appellant was cooperative only to a point since he would not and did not divulge any information about the marijuana or its import.

Appellant admitted to being an occasional user of marijuana. He stated he was to meet a truck for delivery three to five miles on the California side of the Mexican border but could not locate the truck so decided to fly back to Oakland where he had rented the airplane. However, he explained landing where he did on the basis that as he flew over he observed a body of water and felt there was an excellent opportunity to develop the land.

In mitigation it was shown appellant had no prior criminal record. An attempt was made to show he was under financial and emotional strain. He was in a serious auto accident in 1969 and his marriage had broken up in 1970. He introduced evidence to show he was paying $150 per month child support and had been under a psychiatrist's care since 1971. In 1974 he was placed on lithium carbonate and this has had a stabilizing effect. His doctor indicated "he has suffered from an illness with the mental content characterized by alternating moods as well as grandiose thinking and impaired judgment. Under severe stress on two occasions his symptoms were aggravated, and on one of these occasions he was involved in legal difficulties which resulted in his present situation." Diagnostic report indicated he was not criminally oriented. Probation officer felt the appellant tried to "con" him in part of the interview and further doubted the truth of some of the information gained from the appellant at the time he prepared the probation report. At the time of the hearing he was employed by Red Carpet Realtors and his employer had no reason to doubt his emotional stability, honesty or capability. As a form of rehabilitation appellant agreed to make speeches to service groups and youth groups warning against involvement in drugs and in fact gave several such talks. It had been his stated intention "to make a large sum of money for working for a very short period of time." He concedes his participation in this venture was free and voluntary.

His prior employment had primarily been as a salesperson for industrial firms. At the time of his plea of guilty he was 35 years old and listed his then employment as "law assistant" to a law firm. He states from 1972 to 1974 he was self-employed as a real estate salesman. His doctor indicated he should be allowed, as a form of therapy, to return to the field of real estate where he has shown an affinity for such type of work.

Before considering the issues raised on appeal, the scope of review by this court is noted. Appellant shows some confusion as to the role of this court in reviewing the trial court's ruling, and respondent avoids the question entirely. The trial court followed its independent judgment and reweighed the evidence presented to the administrative law judge. This was the correct scope of review for the trial court, because respondent's decision revoking appellant's license affected a fundamental vested right of appellant. (Bixby v. Pierno (1971) 4 Cal.3d 130, 143, 93 Cal.Rptr. 234, 481 P.2d 242; Cadilla v. Board of Medical Examiners (1972) 26 Cal.App.3d 961, 966, 103 Cal.Rptr. 455; Ring v. Smith (1970) 5 Cal.App.3d 197, 203, 85 Cal.Rptr. 227.)

When the trial court has exercised independent judgment, "on appeal the question is not whether the administrative determination was supported by the weight of the evidence, but whether, disregarding all contrary evidence, there is substantial evidence in support of the Trial court's findings." (5 Witkin, Cal. Procedure (2d ed. 1971) Extraordinary Writs, § 217, p. 3974, emphasis in original; Bixby v. Pierno, supra, 4 Cal.3d at pp. 143, fn. 10, 149, 93 Cal.Rptr. 234, 481 P.2d 242; Yakov v. Board of Medical Examiners (1968) 68 Cal.2d 67, 72, 64 Cal.Rptr. 785, 435 P.2d 553; Manning v. Watson (1952) 108 Cal.App.2d 705, 712, 239 P.2d 688.)

The record on appeal contains neither findings of the trial court nor any request therefor. Code of Civil Procedure section 632 has provided since 1968 that "Unless findings are requested, the court shall not be required to make written findings and conclusions." On the state of the record, therefore, it must be concluded that findings were waived. "Every intendment is to be indulged in favor of the judgment and where the court fails to make findings of fact and conclusions of law it will be presumed that they were waived unless the contrary is made to appear affirmatively by the record on appeal." (Watson v. Borcovich (1939) 34 Cal.App.2d 585, 586-587, 94 P.2d 76, 77; Evid.Code, § 664.)

Our role in the absence of findings is laid out in Price v. Price (1952) 114 Cal.App.2d 176, 179, 249 P.2d 841, 842: "the appellate court will not weigh the evidence to determine what is true and what is not, but will assume that the trial court found every fact essential to support the judgment, and will search the record for the purpose only of determining whether there is substantial evidence supporting the judgment and will resolve all doubts in favor of the judgment. (Citation.)" (See also Beehan v. Lido Isle Community Assn. (1977) 70 Cal.App.3d 858, 861, 137 Cal.Rptr. 528; Lane & Pyron, Inc. v. Gibbs (1968) 266 Cal.App.2d 61, 65, 71 Cal.Rptr. 817.)

In the Commissioner's decision or order revoking appellant's broker's license and directing a restricted real estate salesman's license shall issue, the Commissioner made, among others, the following findings and determinations:

IV

On or about November 4, 1974, in the Superior Court of the State of California, In and For the County of Merced, respondent entered a plea of guilty to...

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