Schantz v. Ellsworth

• Court: California Court of Appeals
• Writing for the Court: KAUFMAN; GARDNER, P.J., and GABBERT
• Citation: 19 Cal.App.3d 289,96 Cal.Rptr. 783
• Parties: Melvin R. SCHANTZ, dba Investment Trends, Plaintiff and Appellant, v. Robert L. ELLSWORTH, Spring Valley Properties, Inc., a corporation, Defendants and Respondents. Civ. 10599.
• Decision Date: 16 August 1971

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96 Cal.Rptr. 783 19 Cal.App.3d 289 Melvin R. SCHANTZ, dba Investment Trends, Plaintiff and Appellant,
v.
Robert L. ELLSWORTH, Spring Valley Properties, Inc., a corporation, Defendants and Respondents. Civ. 10599. Court of Appeal, Fourth District, Division 2, California. Aug. 16, 1971.

[19 Cal.App.3d 290] Blatt & Rosoff and William Blatt, Los Angeles, for plaintiff and appellant.

James Ralston Smith, Laguna Beach, for defendants and respondents.

OPINION

KAUFMAN, Associate Justice.

Plaintiff sued to recover $18,166 in real estate brokerage commissions allegedly earned by him as a result of procuring two leases for defendants. The cause was tried by the court without a jury. Judgment was rendered for defendants. Plaintiff appeals.

The Facts

The court found generally in favor of plaintiff and denied recovery solely on the basis that plaintiff failed to prove he was a duly licensed real estate broker as required by Business & Professions Code, section 10136. Specifically, the court found that 'plaintiff procured leases for defendants with GOODYEAR TIRE AND RUBBER

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COMPANY,' which defendants executed and accepted; that defendants executed certain' commission schedules' attached to the complaint as exhibits 'A' and 'B'; that these 'Commission schedules * * * constitute agreements by defendants to pay real estate [19 Cal.App.3d 291] commissions to plaintiff for the procurement of the above mentioned leases for the terms and at the rates as set forth in said schedules.' ¹

With respect to the licensing problem, the following appears. Although the court made no finding on the point, the undisputed evidence establishes and defendants concede that, at all times pertinent to the transactions here involved, plaintiff was a licensed real estate broker. The license, which was read into evidence, was issued to Melvin Rucker Schantz at 1741 West Katella Avenue, Anaheim. The court found, however, that plaintiff was also conducting a real estate brokerage business at 401 West Katella Avenue in Anaheim under the fictitious name Investment Trends; that 'plaintiff's dealings with defendants were from said location'; and that although plaintiff had complied with the statutory provisions then pertaining to doing business under a fictitious name, '(a)t no time mentioned in the complaint did plaintiff have a real estate license to operate or conduct a real estate brokerage business at 401 West Katella Avenue * * *.' It also appears from the uncontradicted evidence that the office at 1741 West Katella was plaintiff's main office primarily handling resale houses, whereas the real estate brokerage business conducted by plaintiff under the fictitious name Investment Trends was concerned primarily with commercial property and operated from the 401 West Katella Avenue address.

Issue and Discussion

The single issue of substance presented by this appeal is whether to recover in an action for a real estate brokerage commission, a broker must not only prove that he holds a valid real estate broker's license but also that he is licensed to do business at the address from which the brokerage services were rendered and in the fictitious name under which the brokerage services were rendered. ²

[19 Cal.App.3d 292] Defendants' contention is uncomplicated. Business & Professions Code, section 10136 ³...