(§ 25009.) The licensing requirements of the statute seem clearly applicable, as recently interpreted in Owen v. Off, 36 Cal.2d 751, 753-757 [ 227 P.2d 457], and Rhode v. Bartholomew, 94 Cal.App.2d 272, 276-282 [ 210 P.2d 768]. The only difference in fact between the Owen and the Rhode cases and our case is that in those cases the person acting as broker or agent undertook to sell stock owned by his principal, whereas here it was stock of an original issue of two corporations in which the principal held a large interest, apparently a controlling interest, as stockholder.
(See also, Freeman v. Jergins (1954) 125 Cal.App.2d 536 [ 271 P.2d 210]; McKenna v. Edwards (1937) 19 Cal.App.2d 327 [ 65 P.2d 810].) In Owen v. Off (1951) 36 Cal.2d 751 [ 227 P.2d 457], upon which defendant places principal reliance, plaintiff was employed by defendants for compensation to sell their stock. The complaint alleged that the defendants "engaged the plaintiff to find a purchaser for and to sell, or effect the sale of, their 1,275 shares of stock in the Figueroa Building Corporation"; that defendants agreed to pay plaintiff a specified commission; and that through plaintiff's efforts a sale of the stock was effected; but that no compensation was paid to plaintiff.
The few reported California opinions which concern the licensing requirements of the person who negotiates the sale of an incorporated business do not address the issue of the business opportunity licensing requirement, but rather the concomitant question of the need for a securities broker's license, often in addition to the business opportunity or real estate broker's license. In these cases, the acknowledged business opportunities or real estate transactions, which resulted in the transfer of corporate stock, concerned a building ( Owen v. Off (1951) 36 Cal.2d 751 [ 227 P.2d 457]), a broadcasting company and its radio station ( Stoll v. Mallory (1959) 173 Cal.App.2d 694 [ 343 P.2d 970]), a resort and marina business ( Weber v. Jorgensen (1971) 16 Cal.App.3d 74 [ 93 Cal.Rptr. 668]), a mortgage company ( Lyons v. Stevenson (1977) 65 Cal.App.3d 595 [ 135 Cal.Rptr. 457 ]) and a mortuary ( Nationwide Investment Corp. v. California Funeral Service, Inc. (1974) 40 Cal.App.3d 494 [ 114 Cal.Rptr. 77]). A number of California cases have dealt with the issue of the "finder's exception" which exempts a person who merely finds a buyer, but does not negotiate a transaction, from the licensing requirements.
[3] Furthermore, one who negotiates a sale for the owner of stock must be licensed as his agent even though the owner himself would not be required to be licensed to make the sale personally. ( Owen v. Off, 36 Cal.2d 751, 752-753 [ 227 P.2d 457].) This rule is equally applicable even though the agent conducts only a single or isolated transaction. ( Owen v. Off, supra, 36 Cal. 2d at pp. 755-756.)
5; California Corporations Code ("Corp. Code") §§ 25210(a) and 25504 and Owen v. Off, 36 Cal.2d 751, 757 (1951); Nationwide Inv. Corp. v. California Funeral Services, 40 Cal.App.3d 494, 503 (1974); Rhode v. Bartholomew, 94 Cal.App.2d 272, 282 (1949)). e. That neither Kraft Americas, L.P. nor Rune Kraft had either a real estate broker's license or a securities broker-dealer license at any time before, during or after the Oldcastle-Inland ESOP Transaction.
( Lyons v. Stevenson (1977) 65 Cal.App.3d 595, 600-604 [ 135 Cal.Rptr. 457]; Weber v. Jorgensen (1971) 16 Cal.App.3d 74, 82 et seq. [ 93 Cal.Rptr. 668]; Stoll v. Mallory (1959) 173 Cal.App.2d 694, 698 et seq. [ 343 P.2d 970]; see McKenna v. Edwards (1937) 19 Cal.App.2d 327, 330 [ 65 P.2d 810].)Owen v. Off (1951) 36 Cal.2d 751 [ 227 P.2d 457], held that a single transfer of shares was sufficient to invoke the Corporate Securities Law. The court did not consider whether the transfer of shares was merely incident to a sale of real property — only a portion of owner corporation's shares being sold.
In the context of licensing statutes, however, a contrary rule has been said to apply, namely, that when penalties are provided by statute, the courts "will not impose additional penalties for noncompliance with the licensing requirement." ( Vitek, Inc. v. Alvarado Ice Palace, Inc. (1973) 34 Cal.App.3d 586, 592 [ 110 Cal.Rptr. 86]; contra, Owen v. Off (1951) 36 Cal.2d 751, 753 [ 227 P.2d 457].) This exception to the general rule appears to rest, at least in part, on an application of the principle expressio unius exclusius alterius est (to express one thing is to exclude another).
( Id., at p. 502.) Nationwide presents a similar fact situation as that found in Owen v. Off (1951) 36 Cal.2d 751 [ 227 P.2d 457], where the plaintiff was also specifically engaged to negotiate a securities transaction. From Weber, Stoll, Nationwide, and Owen, the following principles can be derived regarding a person who is not licensed as a securities broker: (1) If a real estate broker in procuring a buyer for a "business" is unaware that the transaction will be effectuated through the transfer of stock and does not participate in the negotiations surrounding the actual transfer, he may recover compensation for his services; (2) a real estate broker may still recover compensation for his services although he knows the transaction will result in the transfer of securities, if the transfer of the securities is "incident to" the sale of real or personal property; (3) a real estate broker may not recover a commission if he is employed specifically to sell or purchase securities; (4) if a person is neither licensed as a real estate broker nor a securities broker and contracts to negotiate a secu
) Although the purchase of Humphrey occurred after the 1968 law, if there was any doubt concerning the scope of the 1949 law, the Legislature by adding the new words to section 25210 made its intent conspicuous that a transaction includes purchase or sale of securities. Owen v. Off, 36 Cal.2d 751 [ 227 P.2d 457] materially assists us in this opinion because, as here, the plaintiff was urging an interpretation of former sections of the code that was different in meaning than the patent wording. Plaintiff argued first that neither an agent nor a broker is required to be licensed to effect sales of securities "on behalf of" the owner and second that a single or isolated transaction should not be deemed subject to licensing requirements.
'" (P. 573.) Owen v. Off (1951), 36 Cal.2d 751 [ 227 P.2d 457], is not in point as there the plaintiff was employed by the defendants for compensation to sell their stock. The plaintiff contended that a single isolated sale of stock did not bring him within the Corporate Securities Act.