Superior Mortgage Co. v. Division of Real Estate

WHITE, P. J. Petitioners, Superior Mortgage Company, a corporation, Robert M. Calhoun and Harry J. Calhoun, appeal from the judgment in favor of the respondents, Division of Real Estate of California, and D. D. Watson, Commissioner of said division, for whom his successor in office, F. W. Greisinger, has been substituted.

[784]The judgment from which petitioners have appealed discharges the alternative writ theretofore issued to them and denies their petition for a peremptory writ of mandate requiring defendants “to restore to petitioners the license to carry on their business as Real Estate Brokers, and to dismiss the proceedings now pending and in which an order suspending petitioners’ licenses was made.”

The alternative writ required defendants to cancel their order of revocation or to show cause “why you have not done so, and why a peremptory writ of mandate should not forthwith issue.” It was followed by defendants’ “Return by Way of Answer” admitting that copies of the complaint, findings, conclusions and judgment in the municipal court case Number 205365, entitled Haygood v. Calhoun, attached to the petition as exhibits are true and correct copies, denying many allegations of the petition as well as those contained in two exhibits thereto, copy of petitioners’ objections to the proposed findings of fact and conclusions of law filed by them in said municipal court action, and the affidavit of their former Attorney Gluskin.

By their return, respondents call attention to the findings of the municipal court that appellants obtained from plaintiffs Haygood by “fraud, deceit, and misrepresentations” a promissory note and trust deed and $503.16 in money, of which $439.76 was usurious interest exacted on said note, and that plaintiffs were damaged thereby in the sum of $63.40, in addition to said interest collected, which amount is also covered by said municipal court judgment.

In this connection respondents urge that said municipal court judgment is a final judgment, that it is res judicata and conclusive upon the issue of petitioners’ violation of the provisions of section 10177.5 of the Business and Professions Code of California. They further state “that the purpose of the Legislature in adopting Section 10177.5 was to eliminate the necessity of a second hearing on the same issue ...”

At the hearing on the petition for said writ of mandate, the matter was submitted upon the petition and return, together with the record of the administrative proceedings which had resulted in the revocation of petitioners’ licenses as real estate brokers. The record of said administrative proceeding shows that the petitioners were there represented by counsel; that respondents introduced before the hearing officer the records of the municipal court in the Haygood ease; and that appellants (although given ample opportunity to introduce