Finn v. Superior Court

Opinion

CROSBY, J.

This writ proceeding to test the superior court’s refusal to dismiss an information presents a classic illustration of the legal axiom that a specific statute prevails over a general one, the so called

“Swarm-Gilbert”

or

“Williamson”

rule in the law of crimes of California.

I

Norman Finn is a mobilehome dealer. Phyllis Wingett listed her furnished mobilehome at the Saltón Sea with him. The listing agreement provided Wingett was to net $10,000, and Finn was to retain any excess as his commission.

[270]

Finn found a buyer who paid $13,500 for the mobilehome unfurnished. He told Wingett he could obtain but $7,500, however, and she accepted— not knowing the buyer had already moved in. The sales contract was signed and the money transferred in Finn’s Orange County office. Wingett later learned the truth concerning the sales price and that Finn had purloined her furnishings. She went to the police.

II

This otherwise simple little grand theft case (Pen. Code, §§ 484/487) is ironically complicated by several sections of the Health and Safety Code enacted as part of a comprehensive scheme of regulating business practices in the sale of mobilehomes entitled the “Mobilehomes-Manufactured Housing Act of 1980” (Health & Saf. Code, § 18000 et seq.). Section 18060.5 of the Health and Safety Code reads in part, “With respect to business practices, it is unlawful to do any of the following: . . . (c) Cause the state or any person to suffer any loss or damage by reason of any fraud or deceit practiced on them or fraudulent representations made to any person in the

sale or purchase

of a . . . mobilehome, or commercial coach or parts or accessories thereof.”

1

(Italics added.) The words “fraud” and “deceit” are defined in Health and Safety Code section 18004.6: “ ‘Fraud’ includes any act or omission which is included within the definition of either ‘actual fraud’ or ‘constructive fraud’ as defined, respectively, in Sections 1572 and 1573 of the Civil Code, and the term ‘deceit’ has the same meaning as defined in Section 1710 of the Civil Code, ft] In addition, the terms ‘fraud’ and ‘deceit’ include, but are not limited to, the following: ft] (a) A misrepresentation in any manner, whether intentionally false or due to gross negligence, of a material fact, ft] (b) A promise or representation not made honestly and in good faith, ft] (c) An intentional failure to disclose a material fact, ft] (d)