Rees v. Department of Real Estate

• Court: California Court of Appeals
• Citation: 76 Cal.App.3d 286,142 Cal.Rptr. 789
• Parties: Allan C. REES, Plaintiff and Appellant, v. The DEPARTMENT OF REAL ESTATE of the State of California, Defendant and Respondent. Civ. 39546.
• Decision Date: 29 December 1977

Page 789

142 Cal.Rptr. 789

76 Cal.App.3d 286

Allan C. REES, Plaintiff and Appellant, v. The DEPARTMENT OF REAL ESTATE of the State of California, Defendant and Respondent.

Civ. 39546.

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

Dec. 29, 1977.

Frederick W. Bray, San Francisco, for plaintiff and appellant.

Evelle J. Younger, Atty. Gen., Robert E. Murphy, Deputy Atty. Gen., San Francisco, for defendant-respondent.

RACANELLI, Presiding Justice.

Appellant appeals from the judgment of the trial court denying his petition for a writ of mandate directing respondent to set aside and vacate its order that appellant desist and refrain from performing certain activities ¹ without first obtaining a real estate license. The issues framed by the pleadings were tried below upon the administrative record and the briefs filed by the parties. Following the hearing the trial court rendered its findings of fact and conclusions of law, reproduced in pertinent part in the margin. ² Appellant neither objected to the proposed findings nor submitted counterfindings.

"(a) 'Older 4-plex, 1 bedroom, $145, Garden.

548-8999. $15. RENTAL DATA SYSTEM. 247'

"(b) '$300. 2-PLUS bedroom house, Rockridge.

548-8999. $15. RENTAL DATA SYSTEM. 462'

"(c) '$200. 3-plus BEDROOM HOUSE, SKYLIGHTS.

548-8999. $15. RENTAL DATA SYSTEM'

"(d) '$275. 2-PLUS bedroom house, garage.

548-8999. $15. RENTAL DATA SYSTEM. 265'

"(e) 'SPRUCE, $100, small studio, flat.

548-8999. $15. RENTAL DATA SYSTEM. 404'

Appellant's contentions present questions concerning (1) the sufficiency and propriety of the findings; and (2) whether the real estate licensing statutes and regulations may be validly applied to appellant's business activities.

I

Appellant initially complains that the trial court failed to exercise its independent judgment in making necessary findings and conclusions on the material issues presented. In essence, he contends that the similarity between the findings of the court and those upon which respondent based its administrative decisions suggests an absence of independent exercise of judicial discretion. Such complaint is groundless.

As previously stated, the record does not indicate that appellant either objected to the findings, proposed counterfindings and conclusions, or otherwise manifested that an "omission, ambiguity or conflict (in the findings) was brought to the attention of the trial court . . .." (Code Civ.Proc., § 634.) Under such circumstances, a reviewing court must assume the existence of any findings and conclusions favorable to respondent in support of the judgment. (Code Civ.Proc., § 634; In re Marriage of Dawley (1976) 17 Cal.3d 342, 354, 131 Cal.Rptr. 3, 551 P.2d 323; Banville v. Schmidt (1974) 37 Cal.App.3d 92, 102, 112 Cal.Rptr. 126; Associated Creditors' Agency v. Dunning Floor Covering, Inc. (1968) 265 Cal.App.2d 558, 559, 71 Cal.Rptr. 494; Meacham v. Meacham (1968) 262 Cal.App.2d 248, 253, 68 Cal.Rptr. 746.)

In interpreting the language of Code of Civil Procedure section 634, it has been held that a failure to file objections or counterfindings, or to request special findings as therein provided, constitutes a waiver of any claim that such findings are not sufficiently specific. (Shanahan v. Macco Constr. Co. (1964) 224 Cal.App.2d 327, 333, 36 Cal.Rptr. 584.) Appellant's companion claim of error in the court's failure to specifically find whether respondent exceeded its jurisdiction in not proceeding in the manner required by law, and whether the administrative decision was supported by the findings and evidence, actually relate to conclusions of law rather than factual determinations. The conclusions of law, in and of themselves, are of no legal consequence and "despite their mention in C.C.P. 632, . . . are a relatively useless appendage. The important conclusion of law is the judgment. If the findings support the judgment (as here) it will be affirmed, regardless of whether the findings support the conclusions, or whether the conclusions of law are consistent or properly stated, or even if the conclusions are omitted entirely." (4 Witkin, Cal.Procedure (2d ed. 1971) Trial, § 304, p. 3113; see also Estate of Grimble (1974) 42 Cal.App.3d 741, 750, 117 Cal.Rptr. 125, citing the text.)

Assuming, arguendo, that the proper standard of review of the evidence required the application of the independent judgment test (see Bixby v. Pierno (1971) 4 Cal.3d 130, 93 Cal.Rptr. 234, 481 P.2d 242; Code Civ.Proc., § 1094.5, subd. (c)), the record clearly demonstrates that the trial court "exercised its independent judgment on the evidence" in reaching its decision. Appellant's implied assertion, without supporting authority, that the superficial similarity between the judicial and administrative findings somehow casts doubt upon the validity of the former is specious and without merit.

Appellant's remaining claim of insufficiency of the evidence regarding application of the licensing statutes and regulations to his activities is discussed hereafter.

II

Appellant argues that respondent has no jurisdiction to regulate the business activities in question. This argument is broadly premised on three theories: (1) that the provisions of the California Real Estate Law ³ are inapplicable in the absence of substantial evidence supporting a factual determination of the requisite licensee status; (2) his acts fall within the "finder's" exception to the licensing requirements; (3) the licensing statutes, as applied, are unconstitutionally overbroad.

Licensee Status

Appellant challenges the findings and conclusions of the court that his activities are circumscribed by the licensing statutes and regulations governing real estate licensees (Bus. & Prof.Code, §§ 10130-10132 ⁴) and "advance fee" rental agents (Cal.Adm.Code, tit. 10, art. 17, § 2850 ⁵). He argues that these provisions apply only to conduct of licensed brokers or salesmen (it was stipulated that appellant was not so licensed) and that there was no evidence he acted in the capacity of a licensee. Neither argument is supported in reason or the record.

The evidence considered below discloses that appellant owns and operates a property rental data service initially under the name of "Rental Data Systems" and thereafter as "Consumer Data Systems" (CDS) providing rental information to prospective tenants. The service consists of a printed pamphlet furnished to subscribers upon payment in advance of a $15 fee, containing descriptions and terms of available rentals; the "availability list" or pamphlet is produced in a typical classified-advertisement format and lists the address of the rental and telephone number of the advertiser. Appellant provides his advertising service to rental advertisers free of charge; his major source of advertisers consists of landlords or agents familiar with his "free advertising" service, and other listings obtained through direct solicitation of advertisers culled from the classified section of local newspapers of general circulation. Appellant solicits potential subscribers to his service by publishing many of his advertisers' rentals in such newspapers, generally describing the rental unit and cost but without identifying data. These "ads" are internally coded and provide appellant's business address and telephone number, e. g., finding number 1. (Fn. 2, infra.) Prospective tenants inquiring about advertised rentals are informed that the listed rentals are currently available and, upon advance payment of the subscription fee, are furnished a copy of a completed pamphlet containing the address and telephone number for each described rental. The subscription includes the privilege to "call-in" daily for a period of 30 days to receive up-dated matching rental information; ⁶ the call-in service was renewable for an additional 30 days at the rate of $5 per renewal. The subscription fee was not automatically refunded in the event a rental was not obtained by the subscriber. While CDS did not directly participate in rental negotiations between an advertiser and prospective tenant, CDS would routinely solicit information relating to specific lease terms and conditions and would frequently inquire of both advertiser and subscriber whether they would negotiate certain terms (mainly allowance of pets and children); occasionally, it would offer opinions concerning average rental prices in a given area.

The record amply supports the court's findings that appellant, without being validly licensed, solicited listings of nonowned rentals and prospective tenants for "a compensation or in expectation of a compensation." (§ 10131.)

In a factually similar case interpreting an earlier version of section 10131, where the licensee urged a similar defense of being engaged solely in the sale of information (lists of names and descriptions of available rentals), it was held that such conduct constituted the placing of real estate for rent within the meaning of the licensing statute. (Dyer v. Watson (1953) 121 Cal.App.2d 84, 88-89, 262 P.2d 873.)

Additionally, the record demonstrates that appellant was regularly engaged in the business of furnishing rental information to prospective tenants for a $15 nonrefundable advance fee, conduct constituting regulable activities as an "Advance fee rental agent" within the meaning of section 2850 of the Administrative Code. The trial court's findings, supported by substantial evidence, as here, may not be disturbed on appeal. (Green Trees Enterprises, Inc. v. Palm Springs Alpine Estates, Inc. (1967) 66 Cal.2d 782, 784, 59 Cal.Rptr. 141, 427 P.2d 805.)

Appellant's claim that the subject licensing statutes and regulations cannot apply by reason of his nonlicensed status is illusory. A similar claim was made and rejected in People ex rel. Savage v. L. A. Trust Deed etc. Exchange (1961) 190 Cal.App.2d 66, 74, 12 Cal.Rptr. 144, 149, where the court stated: "As to the status of appellant salesmen, it was contended below ....