Grand v. Griesinger

• Decision Date: 13 May 1958
• Citation: 160 Cal.App.2d 397,325 P.2d 475
• Parties: Norman Nathan GRAND, William Samuel Grand, Petitioners and Appellants, Nellie Grand, Petitioner and Respondent, v. F. W. GRIESINGER, Real Estate Commissioner of the State of California, et al., Defendants, Respondents and Cross Appellants. Civ. 22540.
• Court: California Court of Appeals Court of Appeals

Page 475

325 P.2d 475

160 Cal.App.2d 397

Norman Nathan GRAND, William Samuel Grand, Petitioners and Appellants Nellie Grand, Petitioner and Respondent, v. F. W. GRIESINGER, Real Estate Commissioner of the State of California, et al., Defendants, Respondents and Cross Appellants.

Civ. 22540.

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

May 13, 1958.

Francis C. Jones, Los Angeles, for appellants.

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

ASHBURN, Justice.

The Real Estate Commissioner, aftercharges made and hearing duly had, ordered revocation of the respective licenses of Norman Nathan Grand, William Samuel Grand and Nelly Grand ¹ as real estate salesmen. Upon review through administrative mandamus the superior court upheld the ruling as to Norman and William and denied mandate; they appeal from the ruling. As to Nelly Grand the court held that the findings were not supported by the weight of the evidence and accordingly adjudged that the order revoking her license as real estate salesman be vacated, and that a peremptory writ be issued to that end. From this ruling the commissioner takes a cross-appeal.

Appeal of Norman Grand and William Grand

There is little dispute about the facts for most of them are covered by a written stipulation filed at the hearing before the commissioner. Each of the Grands had a real estate salesman's license. Norman's dated from July 1, 1952, William's from June 2, 1953, and Nelly's from March 18, 1954. None of them ever had a broker's license. Their activities concerned real estate rental agencies, which have been held to fall within the terms of § 10131, Business & Professions Code. So far as pertinent it provides: 'A real estate broker * * * is a person who, for a compensation, * * * rents, or places for rent, or collects rent from real estate, or improvements thereon, for another or others.' It has been held that the activities of such an agency require a broker's license as a condition to lawful operation (Dyer v. Watson, 121 Cal.App.2d 84, 89, 262 P.2d 873; 18 Op.Cal.App.Gen. 191). The commissioner's findings describe such activities as follows: '[T]hat the business of said rental agency consisted, generally, of procuring information from landlords about places that were available for rent and of selling service to registered clients for a fee, the service consisting of making available to the clients information concerning rental vacancies, as the information then appeared in the records of the rental agency.' A salesman cannot operate such a rental service on his own account; he must be employed by and act for a broker.

Norman Grand was licensed as a salesman under William C. Banta from August 19, 1952 to March 31, 1953. He then transferred his license to Ellen L. Noy, another broker, and remained so licensed until January 28, 1954; about May 19, 1954, he became licensed as a salesman under Oscar D. Ballew, another broker.

Prior to employment by any broker Norman operated such a rental service under the name 'Guaranteed Rental Service' for about three weeks in August, 1952. Having discovered that operation to be illegal he made a joint venture agreement with broker Banta whereby he acquired a two-thirds interest in Banta's business, known as 'The Guaranteed Rental Service.' The agreement required Grand to assume complete responsibility for the business, operational costs being shared pro rata. All proceeds of the business were to be deposited in a bank, subject to withdrawal on the signatures of both parties. Banta's name was on the window. This operation- --from auguSt, 1952 to apriL 1, 1953-led to bankruptcy of Norman.

On April 1, 1953, he made an agreement with broker Ellen L. Noy, to operate a rental service under the name of Security Realty Service, paying her 25 per cent of the net income and agreeing to protect her 'from any and all added responsibilities and incurred costs of this department.' Norman operated rental services for Mrs. Noy in four different localities. She testified, in part:

'Q. Then the operation of the office was to be under your direction then, is that correct? A. At my office, but the rental department entirely under his----

'Q. Didn't you intend to supervise its direction? A. It was not my job--he was there all the time.

'Q. And was entirely under his contract? A. He was in complete charge of it.

'Q. That's right, but you nevertheless were the directing broker that controlled the office. A. That was one of the services that I put out in my office, but he was the manager of it and separate contractor on it.'

This continued from April 1, 1953 to January 16, 1954, and Mrs. Noy testified that 'he was on a vacation most of the time.' Late in Arpil he went with Nelly (whose name then was Ferrera) on a visit to Mexico, which seems to have been a honeymoon trip for them. He left his father William, his mother Verna, and his brother Howard in charge of the rental service. William had no salesman's license to operate under Mrs. Noy until June of 1953, and the other two were not licensed at all.

In November, 1953, a new contract was made with Mrs. Noy. Norman and Nelly are named as 'second party' therein. It provides that Mrs. Noy 'will continue to permit the second party to operate a rental service under the fictitious name 'Security Realty', which name is duly licensed to the first party by the State of California Real Estate Commission;' also, 'that all bills, debts, wages, rental service complaints, management, and control of above operation to be the sole responsibility of the second party, in so far as Real Estate Law of the State of California permits;' that Mrs. Noy should have ten per cent of the net profit and the second party 90 per cent thereof. Norman was in complete charge of this rental service so far as Mrs. Noy was concerned, but Nelly was helping him to operate. Norman testified that he divided the profits with William. Because of debts owing her from Norman and Nelly, Mrs. Noy took over the Whittier rental office in January, 1954. The Commissioner found in this connection: 'That during said periods said respondent Norman Nathan Grand deposited funds received in the operation of the respective rental agencies into bank accounts; that these said accounts provided for withdrawals by the said respondent only; that he assumed to pay all expenses incurred in connection with these said agencies; that he had full authority and did exercise full authority to employ and discharge personnel needed to assist him in his business, to compensate such personnel and to pay all other expenses incurred in said businesses,' and the trial court held the finding to be supported by the weight of the evidence.

The Commissioner also found that Norman, during the months of May to August, inclusive, of 1953, employed Verna Grand, his mother, in the business; that she in 158 specific instances 'interviewed, determined their needs, filled out registration cards and accepted registration fees from prospective tenants and clients;' that she had no license whatever and the fact was known to Norman. It was also found that Nelly was employed by Norman and did the same type of work during a period when she had no license, as Norman knew.

William Grand, the father, made an agreement with broker Oscar D. Ballew in December, 1953, for operation of a rental business under the name 'Select Realty,' Grand to be responsible for all expenses and to handle all receipts and to pay Ballew ten per cent of the profit derived from the rental business. Ballew worked for the telephone company every day except Saturday and Sunday, and was in the office only on those days. William testified: 'A. Yes, after I resigned with Mrs. Noy I did have Mr. Ballew for a couple of months--he was in the office and had desk space. I opened up the Select Realty with him as my broker in San Gabriel.' The Commissioner further found that William employed Howard Grand to interview prospective renters, etc., during the period from July 15 to November 1, 1954; that Howard had no license, as William knew, and that he received compensation from William for said services; also, that William's wife Verna was employed and acted for him in the same capacity, she having no license and William being cognizant of that fact. Commissioner's finding XXIV says: 'That the interviewing of prospective renters, determining their needs, completing registration cards, and accepting fees from these prospective renters for the purpose of giving them information concerning places available for rent, was and is a real estate activity requiring a real estate broker or salesman license under the provisions of Sections 10131 and 10132 of the Business and Professions Code of the State of California.' By way of 'determination of issues' the commissioner further found that each of the three respondents 'was and is in violation of Sections 10130, 10131, 10137, 10177(d) and 10177(f), Business and Professions Code of the State of California.'

Though counsel for appellants Norman and William Grand repeatedly asserts insufficiency of the evidence, his brief does not comply with the rule or the authorities governing such a claim. Rule 15(a) of the Rules on Appeal requires: 'Each point in a brief shall appear separately under an appropriate heading, with subheadings if desired. Such headings need not be technical 'assignments of errors' but should be concise headings which are generally descriptive of the subject matter covered. The statement of any matter in the record shall be supported by appropriate reference to the record. * * *' Appellants have not complied with these requirements. Nor has counsel furnished adequate basis for a review of the evidence. 'The rule is well established that a reviewing court must presume that the record contains evidence to support every finding of fact, and an appellant who contends that some...