Acebo v. Real Estate Education, Research & Recovery Fund

Opinion

ELKINGTON, J.

The instant appeal concerns the interpretation of Business and Professions Code section 10471 relating to the Real Estate Education, Research and Recovery Fund (the Fund), under which persons victimized by the fraud of licensed real estate brokers or salesmen may, under certain circumstances, recover their loss from the Fund, which is created by payments from such licensees generally.

The Fund appeals from a judgment in favor of William F. Acebo for $10,000 based upon the fraudulent dereliction of a licensed real estate sales

[909]

man. Acebo has filed no appellate brief, and otherwise had not appeared on the appeal. We choose

not

to treat Acebo’s nonappearance as in the nature of a default and to summarily reverse the judgment. (See 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 439, pp. 4403-4404.) Instead, we consider the merits of the appeal.

Acebo had cross-complained against the salesman licensee for damages for fraud in his capacity as a real estate salesman. Judgment was entered for “cross-complainant William F. Acebo and against cross-defendant . . . in the sum of seven thousand five hundred dollars ($7,500.00), together with attorney’s fees which the court fixes in the amount of two thousand five hundred dollars ($2,500.00).”

Thereafter, in the same action, Acebo made application to the Fund for payment of the amount of his judgment. In the ensuing trial upon that application, uncontroverted evidence revealed that Acebo, as a result of the fraud “was out thirty-seven fifty” dollars, and in addition “two thousand dollars in attorney’s fees.”

Judgment was thereafter entered: “That appellant William F. Acebo shall be entitled to payment from the Real Estate Education, Research and Recovery Fund of the State Department of Real Estate of the State of California, and said Department shall pay to applicant the sum of ten thousand dollars ($10,000.00), together with interest thereon a seven percent (7%) per annum from and after the date of the judgment herein.”