Swital v. Real Estate Commissioner

California Court of Appeal Mar 13, 1953 No. Civ. 19305Published

Before: Fox

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Holding. The court held that the trial court erred in summarily denying a petition for a writ of mandate because the petitioner made a prima facie showing that her expulsion from a professional association, which led to the suspension of her real estate license, was void for lack of notice and a hearing.

Issues

Whether a real estate broker's summary expulsion from a professional association without notice or a hearing is void.
Whether a member must exhaust internal association remedies before seeking judicial relief when the expulsion violates due process.
Whether the trial court erred in summarily denying a petition for a writ of mandate to review administrative disciplinary proceedings.

Disposition. reversed

Quotations verified verbatim against the opinion

“Membership in an unincorporated professional society or trade or business association is a valuable right, and such membership may not be terminated except by adherence to the fundamental requirements of the law.”

“An expulsion from an association under such circumstances, which flout the requirements of substantial justice, is void and cannot operate to divest petitioner of her status as a member of the Los Angeles Realty Board.”

“The requirements of notice, hearing and a fair trial antecedent to expulsion are so fundamental that they are imposed upon an association such as here under discussion even though its own constitution, charter, or rules fail to make such provision.”

Fox, J.

Petitioner was a duly licensed real estate broker, maintaining offices in the cities of Glendale and Los Angeles. In January, 1952, an accusation was filed by a deputy real estate commissioner charging that on or about October 17, 1951, and thereafter petitioner “did wilfully use the term ‘realtor’ without legal right so to do; that such illegal use consisted of maintaining a sign, advertising board and window name-plate with the word ‘realtor’ immediately following respondent’s [petitioner’s] name”; that such action was in violation of section 10177(e), Business and Professions Code. The hearing officer made a finding in the precise language above quoted from the accusation and held that this was a violation of the cited section. The commissioner approved this decision and ordered the real estate broker’s license of petitioner suspended for three days.

In her petition for a writ of mandate to review the administrative proceedings, pursuant to the provisions of section 1094.5, Code of Civil Procedure, petitioner alleged, among other grounds, that the evidence at the hearing on the accusation showed that she was a member of the Los Angeles Realty Board and that on October 14, 1951, a letter was sent to her by the secretary of said board stating that she had been dropped from membership of that board on October 1, 1951, “for using the term realtor”; that the board did not meet and by order expel petitioner; that the secretary sent such letter without authorization; that she had thus been dropped as a member of the Los Angeles Realty Board without notice or an opportunity to be heard.

Petitioner further alleged that the evidence adduced at the hearing conclusively showed she had the right to use the word “realtor” and that she did not wilfully use that word without legal right so to do. She then charged that this action of the commissioner in suspending her real estate broker’s license was without and in excess of his jurisdiction, arbitrary, capricious, and an abuse of discretion.

Petitioner prayed that an alternative writ of mandate be issued commanding respondent commissioner to restore her license to act as a real estate broker without any period of suspension, or to show cause whv this should not be done,

[679]

and that the court order a record of the administrative proceedings prepared and filed with the court.

Swital v. Real Estate Commissioner

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