Dyer v. Watson

The real estate commissioner revoked the license of Cornelia Rita Dyer, a licensed real estate broker. She petitioned the superior court for a writ of mandate compelling the commissioner to vacate his order of revocation. The petition was denied and she appeals from the judgment.

In an accusation, filed by a deputy commissioner, it was charged that between June 1, 1950, and October 5, 1950, Cornelia Rita Dyer (hereinafter referred to as licensee), either personally or through her representatives, obtained $5.00 from each of 20 designated persons by falsely representing to them that she possessed hundreds of bona fide listings of vacant rental properties at stated rental rates in particular areas; that in each instance she should have known that the properties she referred said persons to were not for rent, or were not as represented, and therefore each sum of $5.00 was obtained under false pretenses. It was charged further therein that during the month of March, 1951, she as a licensed real estate broker caused to be published classified advertisements in the Los Angeles Examiner containing substantially the following wording: “$1 a day and up restricted-unrestricted $5 fee renters see Cornelia Dyer L. A. ’s oldest, largest most personal rental service for best rentals available at lowest cost furnished houses and apartments”; said advertisements contained itemized lists of “approximately 30 to 50” purported vacancies at rental rates of $30 to $50 monthly furnished, and also represented that she was in possession of over 900 others, furnished and unfurnished; said advertisements were false and misleading and were known by licensee to be false and misleading at the time she caused them to be published. It was also stated .therein that by reason of the alleged facts the licensee acted in violation of section 10176, subdivisions (a), (b) and (i), and section 10177, subdivisions (c) and (f) of the Business and Professions Code.

In a. supplemental accusation it was charged that, between June 3, 1950, and July 5, 1951, the licensee obtained $5.00 under false pretenses from each of 12 persons;' and that licensee’s advertisements in newspapers were false and misleading. In a second supplemental accusation she was charged with 13 additional similar violations, including a charge that she violated subdivision (e) of section 10176.

After a hearing the real estate commissioner found that from June, 1950, to July, 1951 (inclusive), the licensee represented to the public at large and to 16 persons (specifically designated therein) that she possessed hundreds of bona fide

The commissioner made the following determination of issues: Licensee has been guilty of violations of section 10176 of the Business and Professions Code as follows: making false promises of a character likely to influence, persuade or induce [violation of subdivision (b) ]; a continued and flagrant course of misrepresentation or making of false promises through real estate agents or salesmen [violation of subdivision (c)]; conduct which constitutes fraud or dishonest dealing [violation of subdivision (i) ].

Licensee alleged, among other things, in her petition for a writ of mandate that the commissioner acted without jurisdiction in revoking her license; the evidence before the hearing officer was insufficient to show that licensee violated any of said sections of the Business and Professions Code, and such evidence does not support the findings of the hearing officer or the order of revocation.

The matter was submitted upon the record of the proceedings before the commissioner. The trial court found that the commissioner did not proceed without or in excess of his jurisdiction ; the findings. of the commissioner are supported by the weight of the evidence; and the findings support the order of the commissioner.

Appellant (licensee) contends that the commissioner did not hive jurisdiction, because appellant was not required to have a real estate broker’s license to engage in the business of such rental agent. Section 10131 of the Business and Professions Code provides: “A real estate broker ... is a person who, for a compensation, . . . negotiates the purchase or sale or exchange of real estate, or who, for compensation, . . . rents or places for rent, or collects rent from real estate, or improvements thereon, for another or others.”' Appellant argues that she did not, for compensation or otherwise, rent or place for rent real estate or improvements thereon ; that she did not for compensation, from the landlord, rent anything or place anything for rent; that she did not rent anything, in that, she merely sold to registrants a list of names and addresses and let them seek their future landlord from such list; that she merely sold information that was selective and fitted to the price bracket and other requirements of the customer. Appellant states in her brief, in summarizing the

Appellant also contends that the evidence was not sufficient to support the findings of the commissioner. She argues that the evidence to the effect that the places were not available or suitable for renting was hearsay in that the testimony of the complaining witnesses regarding nonavailability and nonsuitability were statements that had been made to them out of the presence of appellant. As above shown, all the prospective renters (except one) in the 16 alleged violations testified that they had seen the newspaper advertisements prior to going to appellant’s place of business. Each of them testified that he told appellant or one of her agents that he wanted to rent an apartment or house under certain conditions; that he paid $5.00 to appellant and received from her listings of residential property and a receipt for $5.00.

Mrs. Leatherman testified that she told appellant’s agent that she wanted a one or two bedroom house for herself and children for not more than $50 per month; the agent gave her six listings; one place had been rented a week previously and a lady told her that the agency had been notified previously ; another place had been rented; two other places were single apartments; another place was a converted garage ; each day for about three weeks thereafter she tried to telephone the agency but the agency’s telephone was busy; later she talked with appellant who told her that she did not have time to give listings to people who had already registered hut that she gave listings only to new registrants.

Mrs. Lynch testified that she told appellant’s agent that she wanted to rent a two bedroom apartment for not more than $50 to $60 per month; the agent, after stating that she hoped to find a place for her, supplied her with eight listings; Mrs. Lynch went to all those places and found that seven of them had been taken and that one was a hotel at a rent of $75 per month.

Mrs. Rexroad testified that she told appellant’s agent that she wanted a three-room house—a kitchen, living-room and a separate bedroom—and not a house in the rear; the agent gave her four listings; she went to the address of one listing and it was not for rent; she went to another of the listings and it had been rented for some time; the other listing was one room and a kitchenette “in the rear”; she called the telephone number for one of the listings several times and received no answer; she received three more listings from appellant; she was informed by the owner or manager of one of said places that it had been rented for five weeks and that the agency had been told several times that it had been rented; she was informed by a man at another listing that it had been rented for two months and that he had informed appellant’s agency three or four times that it had been rented; she called the telephone number at the third listing several times but received no answer; she received two more listings; she called the telephone number at one of those listings and was told that the place had been rented for a week and that appellant had been so notified; she called the telephone number at the other listing and was informed that it had been rented for some time; thereafter she received two additional listings; she called the telephone numbers for both of those listings and was informed that they had already been rented.

Eleven other witnesses gave similar statements of the unavailability or unsuitability of the places to which they were sent.

Appellant testified, in part, that in June, 1950, she registered about 800 persons for rental services; the most that she registered in any month was about 1,500; a listing is presumed to be available until cancelled definitely; when a listing is two weeks old it is discarded; each of her agents is responsible for his own cancellations of listings; it is impossible “to qualify” all of the listings, which they give out, to see whether they are still available for rent; when she has a new listing she gives it to more than one prospective tenant —she gives it to as many as ask for that price range.

The testimony that there were no addresses such as certain addresses given by appellant was not hearsay. The

The testimony that persons at some of the places told the registrants that the places had been rented or that appellant had been notified of such renting or that the places were not for rent or had not' been listed with appellant was hearsay. Such testimony may be used, however, for the purpose of explaining the direct evidence that the registrants were unable to rent the places. The testimony was admissible, not to prove the truth of the statements made to the registrants, but to explain the evidence that the places were not available for renting. In section 11513 of the Government Code, chapter 5, entitled “Administrative Adjudication,” it is provided in part: “. . . Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions. Hearsay evidence may be used for the purpose of supplementing or explaining any direct evidence but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. ...” Hearsay evidence alone is insufficient to satisfy the requirement of due process of law, and mere uncorroborated hearsay does not constitute substantial evidence. (Walker v. City of San Gabriel, 20 Cal.2d 879 , 881 [ 129 P.2d 349 , 142 A.L.R 1383 ].) As above shown, the statute specially permitted hearsay in this proceeding before the commissioner. The evidence as to what was said by persons at proposed rental places, with respect to nonavailability of the places for renting, was the kind of evidence on which persons who inquire for rental property are accustomed to rely. Such hearsay evidence did not stand alone and was not uncorroborated. Appellant testified that she was doing business with a tremendous number of people, she registered several hundred persons per month, it was impossible to check all the listings to see whether they were still available, and she presumed that all the listings handed out by her office were available. Furthermore, irrespective of the hearsay evidence, the direct and nonhearsay evidence, above referred to, to the

Section 10176 of the Business and Professions Code provides, in part; “The commissioner may . . . revoke a real estate license .' . . where the licensee . . . has been guilty of . . . (b) Making any false promises of a character likely to influence, persuade or induce, (c) A continued and flag

The judgment is affirmed.

Shinn, P. J., and Vallée, J., concurred.