Mortgage Finance Corp. v. Strizek

VAN DYKE, P. J. Appellant, as plaintiff, brought this action against respondents, as defendants, to recover for services alleged to have been performed by it as a real estate broker. It alleged that it was duly licensed at the time it performed the services and when its cause of action arose. Respondents in their answer denied these allegations and also generally denied the allegations as to the merits. When the cause came on for trial, the court, on motion of respondents and acting under section 597 of the Code of Civil Procedure, first tried the special defense that appellant was not licensed. It held that the defense was made out and, accordingly, entered judgment that appellant could not maintain the action. In this the court acted under the provisions of the Business and Professions Code, section 10136, which declares that:

“No person engaged in the business or acting in the capacity of a real estate broker or a real estate salesman within this State shall bring or maintain any action in the. courts of this State for the collection of compensation for the performance of any of the acts mentioned in this article without alleging and proving that he was a duly licensed real estate broker . . . at the time the alleged cause of action arose.”

It appears without dispute that appellant had been licensed as a real estate broker for the year 1950-1951; that on April 3,1951, the Real Estate Commissioner noticed a hearing upon [819]charges of misconduct made against appellant and on June 22 ordered that appellant’s license be revoked, the order to be effective as of July 9, 1951; that on July 6, 1951, appellant filed a petition for a writ of mandamus in the Superior Court in and for the City and County of San Francisco to review the commissioner’s decision, whereupon that court issued an alternative writ and at the same time made the following order: “It is hereby ordered . . . that until further order in the premises, you, the said D. D. Watson, Real Estate Commissioner, and all of your agents, deputies, employees and attorneys, do absolutely desist and refrain from exercising or attempting to exercise any control or authority over petitioner [appellant] and its business, and from proceeding to revoke petitioner’s license to do business in this State.” By statutory provision appellant’s license would expire at midnight, June 30, 1951, unless renewed upon application. Appellant made no application for renewal prior to the expiration date, nor did it make any application for renewal thereafter.