Antonio v. Hempel

Opinion

KLAUS, P. J.

In January 1974, respondents Antonio—who have not filed a brief in this appeal—obtained a judgment against one Doreen Smith, a licensed mineral, oil and gas broker, in the amounts of $5,941 in actual damages and $902 in interest to the date of the judgment, plus costs. In June 1974, respondents applied for an order directing payment of their unsatisfied judgment from the real estate education, research and recovery fund, as authorized by Business and Professions Code section

[130]

10471.

1

The commissioner opposed the application and the matter was placed off calendar so that respondents could first recover from Smith’s bonding company. After they recovered $5,000 from the bonding company, the trial court, in June 1976, awarded respondents $2,883 payable out of the real estate education, research and recovery fund. This amount represented the difference between the amount of the judgment—totaling $6,885—less the $5,000 paid by the bonding company, or $1,885, plus interest from the date of judgment.

The real estate commissioner appeals, contending that the trial court should not have awarded post-judgment interest. The contention is without merit. In

Nordahl

v.

Department of Real Estate

(1975) 48 Cal.App.3d 657 [121 Cal.Rptr. 794], the respondents, who also had obtained a judgment against a real estate department licensee, obtained an order for payment from the fund of the principal sum of the judgment plus interest from the date the claim arose plus costs. The department appealed, contending that recovery under Business and Professions Code section 10471 was limited by the terms of that statute to the “amount of actual and direct loss” caused by the licensee’s misconduct and that such actual and direct loss did not encompass interest. The Court of Appeal disagreed:

“[T]he purpose of section 10471 of the Business and Professions Code is remedial. It is intended to protect the public against loss resulting from misrepresentation and breach of fiduciary duty by real estate brokers who are unable to respond to damage awards. Within the limitations stated it must, therefore, be given a liberal construction. . ..