Sipper v. Urban

California Supreme Court

Sipper v. Urban

137 P.2d 425, 22 Cal. 2d 138, 1943 Cal. LEXIS 170

CourtCalifornia Supreme Court

DecidedMay 3, 1943

DocketL. A. 18567

StatusPublished

Cited by55 cases

This text of 137 P.2d 425 (Sipper v. Urban) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Sipper v. Urban, 137 P.2d 425, 22 Cal. 2d 138, 1943 Cal. LEXIS 170 (Cal. 1943).

Pincite

Opinions

SHENK, J.

The petitioner filed in the superior court his application for the writ of mandamus to compel the respondent Real Estate Commissioner to vacate an order dated September 19, 1941, suspending his license from September 29, 1941, to and including October 9, 1941, or a period of ten days, and to set aside the findings on which the order of suspension was based. The record does not disclose the date of the filing of the original petition for the writ, but it is conceded that it was filed after the period of suspension had expired and the license of the petitioner presumably had been reinstated.

On October 23, 1941, the commissioner issued an order directing the petitioner to show cause why his license should not be suspended or revoked on the ground that he had engaged in business as a real estate operator during the ten day period in violation of the order of suspension of Septem[140]*140ber 19, 1941. The hearing on the order to show cause was set for November 5, 1941. On January 2, 1942, the petitioner filed an amended petition for the writ wherein he sought the relief prayed for in the original petition and also prayed that the commissioner be directed to dismiss the proceedings commenced by him to further suspend or to revoke the license. By stipulation the hearing set for November 5, 1941, on the order to show cause was continued to a date to be fixed on motion of the commissioner.

In addition to the foregoing the petitioner alleged that the findings and order of the commissioner were not based on any "sufficient, adequate or competent evidence to support" them; that the order was void, and that the commissioner exceeded his authority in making it. It is then alleged that there was filed concurrently with the petition a certified transcript of the proceedings and hearing before the commissioner ; that said transcript was referred to and made a part of the petition without prejudice to the petitioner’s right to a re-examination of the evidence and the witnesses in court.

The petition together with the record of the proceedings before the commissioner, was presented to the trial court on the application for an alternative writ. The trial court examined the allegations of the petition and the record of the proceedings taken before the commissioner and concluded that the same did not present facts justifying the issuance of an alternative writ and entered an order of denial. The appeal is from that order as an order finally disposing of the controversy in the trial court.

The record of the evidence before the commissioner, which as indicated was submitted as a part of the petition, shows the following:

The petitioner was a licensed real estate broker operating in Los Angeles County. He was cited to appear before the Real Estate Commissioner on August 21,1941, to answer charges of conduct which, if true, would require the suspension or revocation of his license. After a hearing, findings were made by the commissioner to the effect that the petitioner had sold a parcel of real property pursuant to the owner’s authorization, but for about $200 more than the authorized price, and had secured that additional amount in a second deed of trust in his own favor, without the knowledge or consent of the owner, and to accomplish his purpose drafted two different sets of instructions to the escrow officer. The commissioner’s [141]*141conclusion was that the petitioner was guilty of conduct which constituted dishonest dealing, and that his license should he suspended for ten days from the effective date of the order, as above stated.

On the appeal the petitioner contends that the trial court erred to his prejudice in not according him a hearing on his petition. In this the petitioner may not be sustained. In his application for a writ it was incumbent upon him to state a prima facie case entitling him to relief. This would be true on any theory that may be advanced for a court inquiry into the lawfulness of the action of the commissioner. The petitioner is not entitled to the writ as a matter of right, but its issuance involves consideration of its effect in promoting justice (Wiedwald v. Dodson, 95 Cal. 450 [30 P. 580] ; Betty v. Superior Court, 18 Cal.2d 619 [116 P.2d 947]; Bartholomae Oil Corp v. Superior Court, 18 Cal.2d 726 [117 P.2d 674] ; 16 Cal.Jur. p. 768 and cases cited), and in turn the trial court may determine that the commissioner has not abused his discretion. (Newport v. Caminetti, 56 Cal.App.2d 557 [132 P.2d 897].) On the allegations of the petition and the record before the commissioner in the present proceeding, it is concluded that no abuse of discretion has anywhere been shown. Indeed, the oral and documentary evidence in the record before the commissioner and before the trial court-would not admit of a contrary conclusion.

The order is affirmed.

Curtis, J., and Carter, J., concurred.

Free access — add to your briefcase to read the full text and ask questions with AI

SHENK, J.

The petitioner filed in the superior court his application for the writ of mandamus to compel the respondent Real Estate Commissioner to vacate an order dated September 19, 1941, suspending his license from September 29, 1941, to and including October 9, 1941, or a period of ten days, and to set aside the findings on which the order of suspension was based. The record does not disclose the date of the filing of the original petition for the writ, but it is conceded that it was filed after the period of suspension had expired and the license of the petitioner presumably had been reinstated.

On October 23, 1941, the commissioner issued an order directing the petitioner to show cause why his license should not be suspended or revoked on the ground that he had engaged in business as a real estate operator during the ten day period in violation of the order of suspension of Septem[140]*140ber 19, 1941. The hearing on the order to show cause was set for November 5, 1941. On January 2, 1942, the petitioner filed an amended petition for the writ wherein he sought the relief prayed for in the original petition and also prayed that the commissioner be directed to dismiss the proceedings commenced by him to further suspend or to revoke the license. By stipulation the hearing set for November 5, 1941, on the order to show cause was continued to a date to be fixed on motion of the commissioner.

In addition to the foregoing the petitioner alleged that the findings and order of the commissioner were not based on any "sufficient, adequate or competent evidence to support" them; that the order was void, and that the commissioner exceeded his authority in making it. It is then alleged that there was filed concurrently with the petition a certified transcript of the proceedings and hearing before the commissioner ; that said transcript was referred to and made a part of the petition without prejudice to the petitioner’s right to a re-examination of the evidence and the witnesses in court.

The petition together with the record of the proceedings before the commissioner, was presented to the trial court on the application for an alternative writ. The trial court examined the allegations of the petition and the record of the proceedings taken before the commissioner and concluded that the same did not present facts justifying the issuance of an alternative writ and entered an order of denial. The appeal is from that order as an order finally disposing of the controversy in the trial court.

The record of the evidence before the commissioner, which as indicated was submitted as a part of the petition, shows the following:

The petitioner was a licensed real estate broker operating in Los Angeles County. He was cited to appear before the Real Estate Commissioner on August 21,1941, to answer charges of conduct which, if true, would require the suspension or revocation of his license. After a hearing, findings were made by the commissioner to the effect that the petitioner had sold a parcel of real property pursuant to the owner’s authorization, but for about $200 more than the authorized price, and had secured that additional amount in a second deed of trust in his own favor, without the knowledge or consent of the owner, and to accomplish his purpose drafted two different sets of instructions to the escrow officer. The commissioner’s [141]*141conclusion was that the petitioner was guilty of conduct which constituted dishonest dealing, and that his license should he suspended for ten days from the effective date of the order, as above stated.

On the appeal the petitioner contends that the trial court erred to his prejudice in not according him a hearing on his petition. In this the petitioner may not be sustained. In his application for a writ it was incumbent upon him to state a prima facie case entitling him to relief. This would be true on any theory that may be advanced for a court inquiry into the lawfulness of the action of the commissioner. The petitioner is not entitled to the writ as a matter of right, but its issuance involves consideration of its effect in promoting justice (Wiedwald v. Dodson, 95 Cal. 450 [30 P. 580] ; Betty v. Superior Court, 18 Cal.2d 619 [116 P.2d 947]; Bartholomae Oil Corp v. Superior Court, 18 Cal.2d 726 [117 P.2d 674] ; 16 Cal.Jur. p. 768 and cases cited), and in turn the trial court may determine that the commissioner has not abused his discretion. (Newport v. Caminetti, 56 Cal.App.2d 557 [132 P.2d 897].) On the allegations of the petition and the record before the commissioner in the present proceeding, it is concluded that no abuse of discretion has anywhere been shown. Indeed, the oral and documentary evidence in the record before the commissioner and before the trial court-would not admit of a contrary conclusion.

The order is affirmed.

Curtis, J., and Carter, J., concurred.

Cite This Page — Counsel Stack

Bluebook (online)

137 P.2d 425, 22 Cal. 2d 138, 1943 Cal. LEXIS 170, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sipper-v-urban-cal-1943.

Opinions

Related

Cite This Page — Counsel Stack