Manning v. Watson

NOURSE, P. J.

This is an appeal by the Real Estate Commissioner from a judgment granting respondent Manning a peremptory writ of mandate ordering said commissioner to annul his decision and order of suspension of respondent’s license as a real estate broker for a 30-day period and annulling the proposed decision of the hearing officer adopted in said order of the commissioner.

Insofar as here relevant, the accusation which opened the disciplinary action charged respondent with violation of sections 10176 subdivision (i) and 10177 subdivision (f) of the Business and Professions Code, in that on or about May 2, 1947, in the Southern Division of the United States District Court for the Northern District of California respondent was charged with violation of sections 715 and 697 of title 38 U.S.C. and it further alleged that on December 2, 1949, respondent having been convicted of violation of said sections 715 and 697 of title 38 U.S.C. sentence was suspended and respondent placed on probation for a period of six months. Section 10176, subdivision (i), mentions as a ground for suspension or revocation of a real estate license any professional conduct of the licensee “which constitutes fraud or dishonest dealing” and section 10177, subdivision (f), as an additional ground that the licensee “acted or conducted himself in a manner which would have warranted the denial of his application for a real estate license.” 38 U.S.C., section 715, penalizes as a misdemeanor the making or conspiring to be made false statements concerning claims for benefits and section 697 makes said provision applicable to 38 U.S.C., chapter 11C, World War II Servicemen’s Readjustment Benefits.

The only evidence introduced by the commissioner at the trial before the hearing officer to prove facts as a basis for disciplinary action against respondent was a certified copy of the indictment, judgment and order of probation in the criminal proceedings referred to in the above accusation, which evidence was received over respondent’s objection to the effect that it was inadmissible hearsay. Said records show that re

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spondent Manning was indicted in two counts, to both of which he pleaded not guilty and that he was found guilty as to one of these counts (Count II), which charged in substance that he knowingly conspired with the two codefendants to have certified in a home loan report, presented to the Veterans Administration, that the price paid by a veteran for property as to which government loan guaranty was sought was $6,400 and did not exceed the appraised reasonable value of $6,400, whereas they knew and concealed that the total price which they received from said veteran for the property was $7,400. (The eodefendants were realty brokers in whose office respondent worked; they were accused in the disciplinary proceedings together with respondent but they are not involved in this appeal.) The probation order shows that respondent was placed on probation for six months and that because he and the seller had made restitution of the $1,000 overcharge he was, upon compliance with the terms of probation, at the end of the probation period to be released from all further liability. When after the introduction of said records the prosecution rested, respondent moved to dismiss on the ground that there was no competent evidence of the alleged violations of the Business and Professions Code before the hearing officer. The officer reserved his ruling and and it was expressly understood that testimony could be offered by respondent without waiver of the motion. Respondent thereafter testified in substance, that prior to the appraisal a contract of sale had been drawn for a price of $8,500. After the appraisal was made for an amount of $6,400 a new contract was drawn for that price. The seller, a contractor who was remodelling the house, would for that price sell the house only in the incomplete condition in which it was. The buyer wanted him to do additional work and to put in additional material and equipment and agreed to pay $1,000 for said extra work, material and equipment, $500 in cash and $500 in a personal note. Respondent received these from the buyer and turned them over to the seller. Respondent did not get any part of it and was not paid commission on the $1,000. The difficulties arose because the seller did not do everything he said he was going to do. Respondent had not advised the payment of the extra $1,000. He did not deliver any papers to the title company or accompany the buyers to the bank. They put in their application themselves.- Respondent’s attorney testified that respondent contributed $250 to the restitution of the $1,000 paid by the buyer, the balance being restituted by the seller.