Ring v. Smith

• Decision Date: 11 March 1970
• Citation: 5 Cal.App.3d 197,85 Cal.Rptr. 227
• Parties: , Blue Sky L. Rep. P 70,854 David Darrell RING and Leonard Friedman, Petitioners and Appellants, v. Burton E. SMITH, Real Estate Commissioner of the State of California, Defendant and Respondent. Civ. 34465.
• Court: California Court of Appeals Court of Appeals

Page 227

85 Cal.Rptr. 227

5 Cal.App.3d 197, Blue Sky L. Rep. P 70,854

David Darrell RING and Leonard Friedman, Petitioners and Appellants, v. Burton E. SMITH, Real Estate Commissioner of the State of California, Defendant and Respondent.

Civ. 34465.

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

March 11, 1970.

Max Fink, Beverly Hills, for appellants.

Thomas C. Lynch, Atty. Gen., Arthur C. DeGoede, and Edmond B. Mamer, Deputy Attys. Gen., for respondent.

LILLIE, Associate Justice.

Appellant Ring's license as real estate broker, and that of appellant Friedman as real estate salesman, having been revoked by respondent, they unsuccessfully sought a peremptory writ of mandate ordering each such license restored. They appeal from the judgment denying the writ.

On November 22, 1967, appellants entered pleas of Nolo contendere to two counts of an indictment charging violations of the Corporate Securities Act (Corp.Code, § 26104(a)), to wit, sales to two persons of certain corporate stock without a permit. In addition to being fined, each appellant was sentenced to one year in the county jail. Thereafter, on May 17, 1968, one of respondent's deputy commissioners filed an accusation against appellants asserting as grounds for disciplinary action the foregoing two transactions as well as their Nolo contendere pleas. The accusation further alleged that the crimes in question involved moral turpitude, thus subjecting appellants' licenses to suspension or revocation under the provisions of section 10177, Business and Professions Code; ¹ and that their conduct would have warranted the denial of appellants' applications for a real estate license. (Bus. & Prof.Code, § 10177(f).)

On June 21, 1968, a notice of hearing was mailed to appellants and to Max Fink, their attorney, notifying them that the hearing on the accusation would be held on August 8, 1968. Subsequently, on August 7, 1968, appellants and their attorney were notified by mail that the hearing had been reset for November 12 and 13, at a designated place and hour. On November 12, 1968, neither appellant was present at the time and place set for the hearing. Attorney Burton Marks, however, appeared on behalf of Mr. Fink to request a continuance based on a letter from Mr. Fink to the Division of Real Estate for the attention of respondent's counsel, Mr. Kalenius; Marks read the letter into the record. After declaring that he 'understood from (his) clients that this matter would be continued,' Mr. Fink continued, 'in any event, I have, unfortunately, found it necessary to immediately leave for Washington and I will be gone the entire week of November 11'; the letter concluded with the statement that January and March would be convenient months for the hearing which, Fink felt, would require a full week.

Commenting that the hearing was known by appellants and Mr. Fink for 'just a little over three months,' and while he could continue the matter for good cause 'but I have yet to detect good cause,' the hearing officer denied the motion for continuance, and the hearing proceeded without either appellants or their counsel being present. Thereafter, his proposed decision was issued by the hearing officer which respondent commissioner subsequently adopted without change or modification. It provided for revocation of appellants' licenses, cause for such disciplinary action being found to exist pursuant to sections 10177(b) and (f), Business and Professions Code, Supra; further it was expressly found that appellants evaded the pertinent provisions of the Corporate Securities Act 'intending to evade said act with the object of gain to themselves.'

In the subsequent mandamus proceeding, submitted for decision on the transcript of the administrative hearing, the trial court found that all of respondent's findings were supported by the weight of the evidence and that respondent did not abuse his discretion to the prejudice of either appellant, particularly in denying their motion for a continuance of the administrative hearing.

As their first point on appeal, appellants challenge the finding that there was no abuse of discretion in denying their motion for a continuance; to the contrary, they assert they were thus deprived of due process of law since the failure to grant a continuance was tantamount to denying the right to counsel as guaranteed by both the federal and state Constitutions. In support of their position they cite In re Ali, 230 Cal.App.2d 585, 41 Cal.Rptr. 108, a proceeding in habeas corpus wherein a judgment of conviction was vacated upon a showing that on the day of trial defendant appeared without counsel and informed the court that his attorney had notified him the previous evening that he had to enter a hospital for treatment. In granting the relief requested, the court held that an accused should not be prejudiced by denying him a continuance where he is not responsible for counsel's absence due to sickness and where he did not have sufficient time to secure other counsel. Of course the instant situation is different, and appellants concede that the reasons for their motion at the administrative hearing were different from those in Ali although the results are assertedly 'quite similar'--in Ali defendant was convicted of a crime while here two persons were deprived of their licenses to pursue their chosen occupation. As indicated in Mr. Fink's letter, parts of which have been quoted above, appellants themselves were partially responsible for his absence at the hearing since he labored under the impression the matter would be continued because of independent action on their part. Too, and unlike Ali, sickness of counsel was not the reason for the requested continuance since Mr. Fink 'found it necessary to leave immediately for Washington.'

Furthermore, it is statutory law that 'When a hearing officer * * * has been assigned to such hearing, no continuance may be granted except by him * * * for good cause shown.' (Gov.Code, § 11524.) Accordingly, as declared in Givens v. Dept. Alcoholic Bev. Control, 176 Cal.App.2d 529, 532, 1 Cal.Rptr. 446, there is no absolute right to a continuance in a proceeding such as this, hence, unless the refusal of the hearing officer to grant a continuance was an abuse of discretion, there was no denial of due process. The administrative transcript discloses that when the hearing officer asked respondent's attorney whether there was any opposition to the motion for continuance, the latter replied: 'Well, this happened August 8, the same thing. Now it is happening today. It appears we will never get to trial. With reference to the letter (from Mr. Fink), that was marked Saturday (November 9). Monday (November 11) was a holiday, and to this hour it hasn't--or at least about a quarter to 9, it had not arrived at my office, and I knew nothing about this motion for a continuance until (Mr. Marks) informed me this morning (Tuesday, November 12).' Two witnesses--Alpert and Daniels--were waiting to testify. The hearing officer then stated: 'Some of the papers that I have before me indicate that a statement to respondent was first mailed on May 17, 1968. That was pursuant to Section 11505 of the Government Code. There's also the original of a letter which purports to be from Max Fink dated June 3, 1968, in which he requests that the matter be delayed, or the administrative matter be delayed or that it be entirely set aside until the civil action is determined. Then there is a notice of hearing for August 8, 1968, of this matter, and that is dated June 21, 1968. Then finally, there is a notice of change of time and place of hearing dated August 7, 1968 which indicates that the matter is to be held today and tomorrow at 9 a.m. It does seem that the letter (from Mr. Fink) * * * is not very timely in this matter.'

It is pointed out in Givens (citing authorities) that there is no absolute right, even in a criminal trial, to be represented by a particular attorney, when this is made the basis of a motion for a continuance (supra, 176 Cal.App.2d at p. 532, 1 Cal.Rptr. 446); and, of course, the administrative hearing here was not a criminal proceeding nor governed by criminal legal precedents. (Shakin v. Board of Medical Examiners, 254 Cal.App.2d 102, 110, 62 Cal.Rptr. 274, 23 A.L.R.3d 1398.) Too, even in a criminal prosecution the right to counsel may be waived and such waiver may be established if the defendant is unduly dilatory. (People v. Rogers, 150 Cal.App.2d 403, 416, 309 P.2d 949.) In the instant case appellants and their attorney had written notice of the hearing date more than three months prior thereto; indeed, even before notice of the continued date was mailed, it is not denied that appellants' counsel had written to the agency involved suggesting that the matter be delayed or dismissed until a certain civil suit had been determined. The record shows that appellant Ring is an attorney licensed to practice in this state, while appellant Friedman shared space in Ring's real estate office; perhaps this will explain why...