Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 30-2008-00102924, Kirk H. Nakamura, Judge.
Law Office of Michael A. Younge and Michael A. Younge for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
OPINION
Before Sills, P. J., Moore, J., and Aronson, J.
After a half-day court trial, the court found Belinda Cook had an oral finder’s fee agreement with Derek Leason: she was to introduce him to another investor who would help purchase a large parcel of land in Newberry Springs. The fee was $100,000 to be paid on the close of escrow. The court also found, however, that Cook was not simply a finder: she was a consultant who actively negotiated the purchase of the real property and helped secure financing on the purchasers’ behalf, activities for which a real estate license was required. After Cook conceded she was not duly licensed, the court entered judgment for Leason on the ground any action was barred by Business and Professions Code section 10136. Cook appeals.
I
Cook acknowledges that only a licensed real estate broker may bring an action for fees for real estate brokerage services. (Bus. & Prof. Code, § 10136 [“No person engaged in the business or acting in the capacity of a real estate broker or a real estate salesman within this State shall bring or maintain any action in the courts of this State for the collection of compensation for the performance of any of the acts mentioned in this article without alleging and proving that he was a duly licensed real estate broker or real estate salesman at the time the alleged cause of action arose”].) She concedes she does not have a real estate license but asserts the lack of a license does not make any difference here because she only acted as a finder and a finder may receive compensation in the form of a finder’s fee even if not licensed.
“Numerous cases have held that one who simply finds and introduces two parties to a real estate transaction need not be licensed as a real estate broker. Such an intermediary or middleman is protected by the finder’s exception to the real estate licensing laws....” (Tyrone v. Kelley (1973) 9 Cal.3d 1, 8.) The Supreme Court further explained that, “[t]he finder is a person whose employment is limited to bringing the parties together so that they may negotiate their own contract, and the distinction between the finder and the broker frequently turns upon whether the intermediary has been invested with authority or duties beyond merely bringing the parties together, usually the authority to participate in negotiations. [Citation].” (Tyrone v. Kelley, supra, 9 Cal.3d at p. 9; see also Bus. & Prof. Code, § 10131, subds. (a) & (d) [defines a real estate broker as one who “negotiates the purchase, sale or exchange of real property,” and “[] solicits borrowers or lenders for or negotiates loans”].)
In her complaint, Cook alleged she “was instrumental in securing the property, assisted in securing a loan for the property, prepared financial reports, negotiated contract for the purchase of the property with the seller, negotiated closing costs and expenses.” The testimony at trial mirrored her allegations: she admitted on cross-examination she was “intimately involved in arranging for the financing and arranging for the purchase of the property.” And although she insisted on direct examination she only introduced the parties to the broker who coordinated the purchase and financing for the property and nothing more, she also admitted she attended more than ten meetings where the purchase of the property was discussed and had discussions at these meetings with the seller because he was more comfortable talking with her in Chinese. Thus, substantial evidence supports the trial court’s conclusion that Cook was more than just a finder and that she actively participated in activities for which a real estate license was required. Her action was thus barred as a matter of law. (Bus. & Prof. Code, § 10136.).
II
Recognizing that her activities may have gone beyond just bringing the parties together, Cook suggests section 10136 should not bar her action because she and Leason were intimate and she participated in these additional activities voluntarily “to help make sure that the project is closed so I get paid on my finder’s fee.” It appears that after escrow closed she and Leason spent a weekend together at a hotel where they had sex for the first time. She testified that among other things they discussed her finder’s fee and Leason again promised to pay it. She also testified that her “job is just to make sure I find them, connect them, put them together. And if they have questions, they call me and they ask me. That is it. I was helping them voluntarily, on a voluntary basis. I don’t really have to do it. I did it because I want to make sure I get paid.” We are not persuaded there is an “intimate” or “voluntary” exception to the rule requiring a broker’s license to be compensated for performing brokerage services.
“The purpose of these [real estate broker] licensing requirements is to protect the public from incompetent or untrustworthy practitioners.” (All Points Traders, Inc. v. Barrington Associates (1989) 211 Cal.App.3d 723, 729; see also Salazar v. Interland, Inc. (2007) 152 Cal.App.4th 1031, 1037.) Having an intimate relationship with one of the parties cannot be an exception to the rule for many obvious reasons, not the least of which is because such a relationship has no bearing on the purpose of the licensing requirements. To hold otherwise would be to say that a person who does not have a real estate broker’s license can still be compensated for real estate brokerage services if he or she engages in sex with one of the parties.
Similarly, performing “voluntary” real estate brokerage services to protect a finder’s fee cannot be an exception to the rule because it, too, has no bearing on the nature and status of a finder and the purpose of the licensing requirements. “One who merely introduces two parties to a real estate transaction, whether or not he solicits those persons, does not need to be as knowledgeable about real estate transactions as a licensed broker, unless, of course, he participates in the negotiations.” (Tyrone v. Kelley, supra, 9 Cal.3d at p. 11.) And, although “an unlicensed individual may recover an agreed compensation where he merely finds a buyer, seller, lender, or borrower, [] if in addition to finding such person he goes further and helps to conclude the transaction by taking part in negotiating the details of the transaction, [] he may not recover the agreed compensation.” (Id. at pp. 11-12.) The loss of the finder’s fee is thus not dependent on whether the non-licensee was performing real estate brokerage services for compensation or not; rather, it is forfeited if the non-licensee performs any such services. When Cook argues she performed these services “voluntarily,” she necessarily concedes she has forfeited her finder’s fee in toto.
III
The judgment is affirmed. In the interests of justice no costs are awarded on appeal.
The her complaint Cook alleged she performed some duties for which it would appear a real estate broker’s license might not have been required and for which she might have sought compensation. (See Lindenstadt v. Staff Builders, Inc. (1997) 55 Cal.App.4th 882, 885.) She did not, however, introduce any evidence at trial to support such claims nor she does she argue on appeal that she is entitled to such relief.