HILLEL SANOWICZ, Plaintiff and Appellant, v. BEN BACAL, Defendant and Respondent.
No. B252962
Second Dist., Div. Five.
Feb. 26, 2015.
A petition for a rehearing was denied March 17, 2015
Respondent‘s petition for review by the Supreme Court was denied June 10, 2015, S225520.
234 Cal. App. 4th 1027
Jonathan P. Chodos for Plaintiff and Appellant.
Law offices of Ronald Richards and Associates, Ronald Richards and Nicholas A. Bravo for Defendant and Respondent.
OPINION
GOODMAN, J.*-
INTRODUCTION
Plaintiff Hillel Sanowicz (Sanowicz) and defendant Ben Bacal (Bacal) are licensed real estate salespersons. Sanowicz alleges that he and Bacal agreed to share commissions earned by either of them on certain sales of real property, but that Bacal breached that agreement. Sanowicz sued both Bacal and Sotheby‘s International Realty, Inc. (Sotheby‘s), dismissing the latter shortly after filing suit. This appeal is from the judgment entered by the trial court sustaining without leave to amend Bacal‘s general demurrer to Sanowicz‘s first amended complaint. We hold that two licensed real estate agents may agree to share commissions earned under the circumstances we describe in this opinion. Thus, we reverse, determining that leave should be granted to amend on remand if Sanowicz can do so in a manner consistent with the legal principles discussed.
PROCEDURAL AND FACTUAL BACKGROUND
On September 13, 2012, Sanowicz, a licensed California real estate agent,1 filed his complaint against Sotheby‘s, a licensed California real estate broker,
*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
We take the facts relevant to resolution of this appeal from the first amended complaint as this appeal challenges the trial court‘s order sustaining a demurrer. (Adams v. Paul (1995) 11 Cal.4th 583, 586 [46 Cal.Rptr.2d 594, 904 P.2d 1205].) Sanowicz was a real estate agent employed at John Bruce Nelson & Associates (JBN), a licensed real estate agency, at the time he met Bacal, who was then working at Keller Williams (KW), also a licensed California real estate agency.
While Sanowicz was an agent at JBN, he and Bacal represented, respectively, the potential buyer and seller of a particular parcel of real property. Although that transaction did not close, they kept in contact and eventually Bacal suggested to Sanowicz that they form a “joint venture” in which they jointly would work on real estate transactions. At one point in their collaboration, Sanowicz left JBN and moved to work at KW, at the instigation of Bacal. One of Sanowicz‘s clients was a celebrity who was looking to purchase residential real property. Bacal encouraged Sanowicz to tell potential sellers that he had a celebrity interested in purchasing a property like theirs. Bacal used this representation to create new “representation relationships” with potential sellers of “A class estate properties in exclusive areas of Los Angeles.” Sanowicz and Bacal entered into oral and written agreements that they would share equally any commissions earned, and did actually share some commissions. Three written agreements of this nature are exhibits to the first amended complaint. Each is signed by both Sanowicz and Bacal and concerns a particular parcel of residential real property.
Sanowicz also alleged that in or around September 2010, Sanowicz met Joseph Lam (aka Lam Cheng) who was interested in selling a property at 777 Sarbonne Road, Los Angeles (Sarbonne). Sanowicz then introduced Bacal to Lam with the express understanding and oral agreement that Sanowicz and Bacal would split the commission earned on the sale of Sarbonne. On October 11, 2010, while both were at KW, they entered into a written agreement, on a California Association of Realtors Referral Fee Agreement form, to equally divide any commissions earned on the sale of Sarbonne if Lam were to sell Sarbonne within two years of the date of their agreement. That agreement is exhibit A to the first amended complaint. No signature of a licensed real estate broker appears on this document.
Sanowicz further alleged that Bacal falsely represented to him that Bacal was not continuing to work on the Sarbonne project even though Bacal “was going into escrow on Sarbonne the very next day” after he made that claim. Sanowicz alleged that Sarbonne was sold by Sotheby‘s and Bacal (as broker and agent respectively) for approximately $14 million, with escrow closing on July 16, 2012. This was within two years of the date of the original contract between Sanowicz and Bacal to share commissions on the sale of this property.
In June 2012, prior to the sale of Sarbonne, Sanowicz asked Bacal to disclose what “joint projects” he continued to work on and “to document his prior arrangements with Sanowicz on the sharing of commissions.” In response, Bacal identified “a few projects and represented he was not working on others.” Based on these discussions, Sanowicz and Bacal entered into compensation-sharing agreements on still other projects.2 Sanowicz claims in his complaint that there are additional property transactions on which Bacal has earned commissions which are subject to the commission-sharing agreements but which Bacal has concealed from Sanowicz, with the result that Bacal owes Sanowicz additional commission income.
Sanowicz seeks one-half of the $210,000 agent‘s commission Bacal received on the sale of Sarbonne, with interest. In addition, Sanowicz seeks one-half of the commissions earned on other sales made as required by their joint venture agreements.
The first amended complaint contained six causes of action: (1) for breach of fiduciary duty based on Bacal allegedly inducing Sanowicz to move from JBN to KW on the promise to share contacts and commissions and based on their partnership and “joint enterprise” arrangements; (2) for fraud for making the representations that induced Sanowicz to move to KW and to lull Sanowicz into not demanding that they enter into a new joint venture agreement “that addressed the move to Sotheby‘s“; (3) for negligent misrepresentation; (4) for breach of contract to pay the half of commissions earned under their agreement on the Sarbonne transaction; (5) for conversion of the half of the commission earned by Bacal on the sale of Sarbonne which Sanowicz contends is due to him by reason of their commission-sharing agreement; and (6) for money had and received.
Bacal‘s principal legal contention was that
In addition to filing a legal memorandum in opposition, Sanowicz‘s counsel filed his own declaration, to which were attached evidentiary materials. Bacal filed objections, generally challenging admission of any factual matters not the proper subject of judicial notice; he also objected to specified portions of the declaration and its attachments.
On October 3, 2013, the trial court issued its ruling by minute order which stated:
“The Demurrer filed by Defendant Ben Bacal to the First Amended Complaint is sustained without leave to amend.
“Under
“Defendant‘s Motion to Strike is moot.
“The case is ordered dismissed with prejudice.”
Plaintiff timely appeals from the judgment. A court order sustaining a demurrer without leave to amend is required to state “the specific ground or grounds upon which [its] decision or order is based.” (
STANDARD OF REVIEW
“A general demurrer searches the complaint for all defects going to the existence of a cause of action and places at issue the legal merits of the action on assumed facts.” (Carman v. Alvord (1982) 31 Cal.3d 318, 324 [182 Cal.Rptr. 506, 644 P.2d 192].)
On appeal, “[w]hen a demurrer [has been] sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse.” (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865 [62 Cal.Rptr.3d 614, 161 P.3d 1168]; see
CONTENTIONS AND ANALYSIS
Sanowicz contends that this statute does not apply under the factual circumstances alleged in the first amended complaint because the commission-sharing arrangements between him and Bacal were merely agreements between two properly licensed agents working for the same broker “as agents for [that broker].”6 Sanowicz further contends that several of these arrangements were in writing, while others were oral. Thus, he argues that the statutory provision mandating that commissions be paid to brokers does not bar payments pursuant to commission-sharing arrangements once the broker has received the commission.7
Bacal‘s contrary contention, accepted by the trial court, is that
Sanowicz relies on the statutory language, which on its face does not preclude the written or oral commission-sharing arrangements he alleges he and Bacal made. Bacal‘s rejoinder is premised on the second paragraph of
Grand v. Griesinger, supra, 160 Cal.App.2d 397, explains the broker-agent relationship in the following terms. “The entire statutory scheme [(including
Sanowicz does not dispute the nature of the broker-client relationship and the need for written contracts in that relationship, or the restrictions on persons to whom the commissions on real estate transactions are paid-initially. Instead, Sanowicz distinguishes the application of these statutes and the cases upon which Bacal relies for his contention, arguing that “the core premise of the demurrer was without merit.” Thus Sanowicz argues that Bacal misinterprets the scope of
In reply, Sanowicz argues that the “protected class” in a residential real estate sales transaction is the client, the seller or purchaser of the home, rather than the broker or the agent, and that it would be error to interpret
It is well established that (1) the agreement “authorizing or employing [a] ... broker ... to purchase or sell real estate” is invalid if it is not in writing (
These restrictions, while broad, are not as encompassing as Bacal contends. Thus, (1) a broker may share a commission with the unlicensed principal in the transaction because the principal is not performing acts for which a real estate license is required (Williams v. Kinsey (1946) 74 Cal.App.2d 583, 592-593 [169 P.2d 487]); (2) when an unlicensed person performs both activities that require a license and activities that do not require a license, he or she may recover for the latter if that portion of the contract is severable and there is separate legal consideration for the severed portion of the agreement (see Mailand v. Burckle (1978) 20 Cal.3d 367, 384 [143 Cal.Rptr. 1, 572 P.2d 1142] [franchise agreement severed; potential for recovery on severed portion acknowledged]); and (3) the statute of frauds does not bar recovery by an agent of commissions due him or her based on an oral contract (
Bacal relies on three key circumstances in support of his contention: (1) the absence of the broker‘s signature on the commission sharing writings (exhibits A and B to the first amended complaint); (2) the absence from the first amended complaint of an allegation that the broker had approved the purported agreements between the agents to share commissions; and (3) Grand v. Griesinger, supra, 160 Cal.App.2d 397, which he contends states that only a broker may sue for real estate commissions.
Bacal errs in his underlying premise. The gravamen of Sanowicz‘s complaint is not a suit to collect the commission due to the broker. Instead, Sanowicz is suing to collect a portion of the commissions already paid to the broker; it is based on the allegation that the commissions already have been paid to the broker KW that Sanowicz seeks to enforce the commission-sharing arrangements which he alleges he had made with Bacal (with the knowledge and consent of KW). Sanowicz also alleges that the commission on the Sarbonne sale has already been paid to Sotheby‘s. He is suing to collect “his portion” of commission already paid to brokers based on the
Neither party has cited a case which addresses the application of
We turn to examine the statute itself. In doing so, we note that if its language is clear and unambiguous there is no need for judicial construction. “[W]e are guided by the well-established principle that our function is to ‘ascertain the intent of the lawmakers so as to effectuate the purpose of the law.’ [Citation.] We determine such intent by first focusing on the words used by the Legislature, giving them their ordinary meaning. [Citation.]” (California School Employees Assn. v. Governing Board (1994) 8 Cal.4th 333, 338 [33 Cal.Rptr.2d 109, 878 P.2d 1321].)
In this case, the plain meaning of the statute at issue12 is clear, as is the scope of actions that the statute is intended to address. They are exactly those subjects clearly set out in the statute-nothing more and nothing less. As relevant to this matter, the statute addresses the rules on payment of compensation by brokers to agents and by agents. It closely limits these activities, but it does not forbid them entirely. In stating that an agent may
As the Legislature did not forbid commission-sharing arrangements between agents (or between brokers, or between brokers and agents), there is no support for the general demurrer argument upon which Bacal prevailed below.
Cause of action for conversion
Sanowicz also addresses the separate theory which Bacal advanced below as to why the fifth cause of action, for conversion, was defective for reasons independent of
As pled by Sanowicz, this claim incorporates by reference all of the preceding 48 paragraphs of the complaint.14 Sanowicz then alleges that defendants have “absconded with or diverted funds in the amount of $210,000 to themselves ... and [have] taken joint venture assets ... [and] have converted one-half of the $210,000, or $105,000 that properly belong[ed] [to Sanowicz] ... to themselves.”
To establish a viable cause of action for conversion, Sanowicz must establish an actual interference with his ownership or right of possession of property. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 610 [176 Cal.Rptr. 824].) To do that he must have “either ownership and the right of possession or actual possession [of the property] at the time of the alleged conversion thereof.” (General Motors Acceptance Corp. v. Dallas (1926) 198 Cal. 365, 370 [245 P. 184].) “[A] mere contractual right of payment, without more, will not suffice” to support a claim for conversion. (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 452 [61 Cal.Rptr.2d 707].)
Sanowicz‘s allegation that Bacal converted the commissions due when Bacal allegedly received funds from the broker on the sale of Sarbonne but refused to pay Sanowicz‘s share to him, and by implication exercised dominion and control over the funds to the exclusion of Sanowicz, is consistent with this discussion of the elements necessary to sustain a claim for conversion. Thus, Sanowicz alleges actual possession by Bacal of an amount of money part of which is due to Sanowicz which Bacal refused on Sanowicz‘s demand to pay to him. These allegations are sufficient to overcome the general demurrer here. (See Shopoff & Cavallo LLP v. Hyon (2008) 167 Cal.App.4th 1489, 1507–1508 [85 Cal.Rptr.3d 268]; Baird v. Olsheski (1929) 102 Cal.App. 452, 454 [283 P. 321].)
Additional contentions
On appeal, Bacal asserts for the first time two additional contentions in support of the trial court‘s ruling, (1) that Sanowicz has omitted an indispensable party from his complaint, and (2) that Sanowicz is not the real party in interest, viz., Sanowicz lacks standing to sue.
These claims will be addressed, albeit briefly, because the rule that a litigant may not argue new theories for the first time on appeal does not apply to pure questions of law (Carman v. Alvord, supra, 31 Cal.3d 318, 324 [new
Sotheby‘s is the party which Bacal contends is indispensable. However, the case upon which Bacal relies, Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801 [62 Cal.Rptr.2d 78], concerns a distinct issue: whether joinder of all heirs is required in a wrongful death action. And Bacal cites it for the rule that a party is not properly “joined” unless properly served with summons and complaint. Bacal does cite
As Bacal does not adequately discuss this issue, we deem it waived. (Kelly v. CB&I Constructors, Inc. (2009) 179 Cal.App.4th 442, 451-452 [102 Cal.Rptr.3d 32]; see Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 [124 Cal.Rptr.3d 78] [appellate court is not bound to develop arguments on appeal].)
Bacal‘s lack of standing contention (including his claim that Sanowicz is not the real party in interest) is also unavailing. It is predicated upon his assertion that Sanowicz cannot sue to recover commissions that Sanowicz alleges Bacal agreed to split with him. For the reasons discussed above, we have determined that Sanowicz does have such a cause of action, if properly pled, and thus he does have standing to sue Bacal for commissions.
Leave to amend
Because we address the correctness of the trial court‘s ruling rather than its reasoning (Day v. Alta Bates Medical Center (2002) 98 Cal.App.4th 243, 252 [119 Cal.Rptr.2d 606]), and reverse if we find that there is a reasonable possibility the complaint can be cured by amendment (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081), we point out that Sanowicz has now asked for leave to amend, and has indicated how he would amend to add appropriate allegations.
We do not know (for lack of a reporter‘s transcript or recitation in the minute order or other written ruling) what proffer Sanowicz may have made to the trial court during the argument on Bacal‘s demurrer with respect to potential amendments to the complaint to cure the then perceived defects, if any, but we find in Sanowicz‘s opening brief on this appeal, as well as in the
Sanowicz has the burden to establish how the complaint can be amended to state a valid cause of action. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) His having requested an opportunity to amend in the trial court is not a condition precedent to our now granting such relief. (
We hold that sustaining the general demurrer without leave to amend based on the trial court‘s construction of
DISPOSITION
The judgment is reversed and the cause is remanded to the trial court which will have the discretion to consider plaintiff‘s request for leave to amend in light of the disposition of this case on appeal. Appellant shall recover costs on appeal.
Mosk, Acting P. J., and Kriegler, J., concurred.
Notes
As the parties did not include a reporter‘s transcript of proceedings of the hearing on the demurrer and motion to strike, we cannot know if the trial court addressed and resolved the evidence issues on the record during the October 3, 2013 hearing.
On June 4, 2014, we issued an order regarding: briefing, in which we asked the parties to address the effect on this appeal of the absence of a reporter‘s transcript of the trial court proceedings. Having reviewed their submissions we have determined to resolve this matter based on the record properly before us. Thus, we take judicial notice of the fact of filing in the trial court of the declaration of Jonathan Chodos and the exhibits thereto (which were attached to Sanowicz‘s opposition to the demurrer to the first amended complaint) and conclude that none of them (except for the copy of the trial court‘s own minute order containing the ruling on the demurrer to the original complaint) properly was the subject of judicial notice in that court, and that none of them may be considered on this appeal. (See Chodos v. Cole (2012) 210 Cal.App.4th 692, 699, fn. 4 [148 Cal.Rptr.3d 451].) With respect to any arguments made at the October 3 hearing in the trial court, as it is appellant‘s burden to provide a reporter‘s transcript if “an appellant intends to raise any issue that requires consideration of the oral proceedings in the superior court...” (
We also note that the minute order for the date of the hearing does not contain any entry indicating the presence of a reporter and neither party has provided the written order which the trial court would have made appointing a reporter for the hearing on these matters. Nor has either party actually stated that a reporter was present, something that is easily verifiable as one or both parties would have paid or shared the expense of the reporter.
We note this case but do not rely on it for two reasons. It was not cited in appellant‘s opening brief so that respondent would have an opportunity to discuss it in respondent‘s brief, and as it concerned a dispute among brokers rather than agents and it is the scope of restrictions on the latter group, which differ in some respects from those affecting the former group (e.g., provisions within