McPherson v. Real Estate Commissioner

DOOLING, J.

This is an appeal by the Real Estate Commissioner from a judgment in mandate compelling him to set aside his orders suspending the broker’s license of respondent McPherson for 30 days and the salesman’s license of respondent Hawkins for 90 days. Since the Real Estate Commissioner is a state officer exercising statutory powers his determination in a disciplinary proceeding is subject to a trial de novo before the superior court, in which the court is entitled to exercise its independent judgment on the evidence. (Code Civ. Proc., § 1094.5, subd. (c);

Moran

v.

Board of Medical Examiners,

32 Cal.2d 301, 308 [196 P.2d 20].) The trial court found that in the real estate transactions in question respondents were guilty of no conduct justifying the disciplinary action taken against them and the only question presented before us is whether there is sufficient evidence in the record to support the trial court’s findings.

Respondent Hawkins was a licensed real estate salesman working for respondent McPherson, a licensed real estate broker. Acting for one Brewer, respondent Hawkins procured from Gee a written contract to purchase real property owned by Brewer for $17,700. Gee made a deposit of $300. Gee’s contract of purchase was made conditional upon his selling a home that Gee owned in Los Altos. Hawkins testified that before the sale had been consummated Gee telephoned to Hawkins’ wife and told her that he didn’t like the house and wanted to get rid of it. He wanted to get his money back out of it. Hawkins talked to Gee the next day and told Gee that he would try to resell the property for him but that he would have to make a commission. Gee replied: “I don’t care what you do as long as I get my $300 back.” Hawkins then told Brewer that he was going to try to sell the property

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again for Gee. Brewer told Hawkins that he didn’t care, he had a deal with Gee and didn’t care what they did with the property. Hawkins procured purchasers from Gee who paid $18,500. The transaction was handled through a title company with a deed delivered by Brewer to Gee and a deed from Gee to the second purchasers. Gee put no further money into the transaction and received back his $300 deposit, Brewer received the amount to which he was entitled under his contract with Gee and Hawkins and McPherson received their commission on the sale from Brewer to Gee and the net difference in the two selling prices, less taxes and other expenses. Brewer testified that Hawkins had told him that he was reselling the property again. “I told him I didn’t care how many times he sold it, as far as I was concerned I had sold it to Mr. Gee.” Brewer further testified that he was not interested in the resale price or what commission was received on the second sale, that he had no complaint against anyone and was well satisfied.