Castleman v. Scudder

PEEK, J.

This is an appeal from a judgment entered pursuant to an order of the trial court sustaining, without leave to amend, respondent’s demurrer to appellants’ petition for a writ of mandamus.

By their petition appellants sought to compel respondent to restore to them their licenses as business opportunity brokers which had been revoked by respondent after a hearing pursuant to an accusation filed by a deputy real estate commissioner. Said accusation charged petitioners with engaging in the practice of making claims for broker’s commissions based upon authorizations to sell which did not bear a definite termination date, in violation of section 10301(f) of the Business and Professions Code of the State of California, the pertinent portions of which provided as follows:

"The commissioner may, upon his own motion, and shall, upon the verified complaint in writing of any person, investigate the actions of any person engaged in the business or acting in the capacity of a business opportunity licensee, within this State, and he may temporarily suspend or permanently revoke a business opportunity license at any time if the licensee, within the immediately preceding three years, while a business opportunity licensee, in performing or attempting to perform any of the acts within the scope of this chapter has been guilty of any of the following: . . .

"(f) The practice of claiming or demanding a fee, compensation or commission under any exclusive agreement authorizing or employing a licensee to sell, buy or exchange

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a business, business opportunity, or interest therein, or the good will of an existing business, for compensation or commission where such agreement does not contain a definite, specified date of final and complete termination.”

The transcript of the hearing before the commissioner discloses that petitioners stipulated that prior to September 15, 1945, the effective date of said act, exclusive listing agreements were signed with certain named persons and delivered to petitioners; that subsequent to said date actions at law were instituted against such persons and that all of said agency agreements contained the clause: “This agency shall continue 30 days from date hereof and thereafter until three days have elapsed after receipt of written notice from the Owner, terminating this agency, sent by registered mail, or delivered in person to said agent.”