Sanowicz v. Bacal
234 Cal. App. 4th 1027
| Cal. Ct. App. | 2015Background
- Sanowicz and Bacal are licensed real estate agents who allegedly agreed to share commissions from transactions; Palm problem of Sarbonne sale involved Bacal and Sotheby’s after Bacal left his prior broker.
- Sanowicz and Bacal formed oral and written commission-sharing agreements while both at KW; Sarbonne sale later involved Sotheby’s with Bacal as broker.
- First amended complaint asserted six causes of action including fiduciary duty, fraud, negligent misrepresentation, contract, conversion, and money had and received.
- Bacal demurred claiming Business and Professions Code §10137 bars agent-to-agent commission-sharing; trial court sustained without leave to amend.
- Court reviews demurrer de novo, reverses, and concludes §10137 does not categorically bar agent-to-agent sharing; remand for amendment if consistent with law.
- Court notes absence of reporter’s transcript and addresses potential amendments to cure defects.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §10137 bars agent-to-agent commission sharing. | Sanowicz: sharing among licensed agents is allowed if through broker. | Bacal: statute requires broker consent and signed writing; sharing among agents unlawful. | §10137 does not categorically bar; possible to amend to state a valid claim. |
| Whether broker signature or consent is required for enforceability. | Sanowicz argues consent and involvement of broker can be implied. | Bacal: lack of broker’s signature defeats enforceability. | Lack of broker signature not fatal at this stage; remand for amendment. |
| Whether conversion claim is viable given money involved. | Sanowicz alleges actual possession and misappropriation of his share. | Bacal contends no identifiable property right; money demands unsupported. | Conversion claim survives with identifiable sum and interference with possession. |
| Indispensable party/standing issues raised on appeal. | Sanowicz may proceed without Sotheby’s pending joinder. | Sotheby’s is indispensable; lack of joinder prejudices defense. | Waived/ resolved as nonessential; not fatal to remand analysis. |
Key Cases Cited
- Grand v. Griesinger, 160 Cal.App.2d 397 (Cal.App.2d 1958) (broker–agent relationship; writing and signing requirements; scope of §10137)
- Iusi v. Chase, 169 Cal.App.2d 83 (Cal.App.2d 1959) (real estate commissions; oral contracts enforceable by agents)
- Colburn v. Sessin, 94 Cal.App.2d 4 (Cal.App.2d 1949) (contracts among brokers/agents not subject to statute of frauds)
- Williams v. Kinsey, 74 Cal.App.2d 583 (Cal.App.2d 1946) (broker may share commission with unlicensed principal; severable portions)
- Mailand v. Burckle, 20 Cal.3d 367 (Cal. 1978) (severability and recovery for non-licensed portions)
- Schifando v. City of Los Angeles, 31 Cal.4th 1074 (Cal. 2003) (standard for leave to amend on demurrer; de novo review)
- PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP, 150 Cal.App.4th 384 (Cal.App. 2007) (conversion elements; money as subject of conversion)