TENZER v. SUPERSCOPE INC

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Court of Appeal, Second District, Division 3, California.

Michael L. TENZER, Plaintiff and Appellant, v. SUPERSCOPE, INC., a corporation, Defendant and Respondent.

Civ. 67906.

Decided: October 27, 1983

Merle H. Horwitz, Beverly Hills, for plaintiff and appellant. Nossaman, Guthner, Knox & Elliott, Costa Mesa, and Alvin S. Kaufer, Los Angeles, for defendant and respondent.

An amended complaint filed by plaintiff and appellant Michael L. Tenzer (Tenzer) against defendant and respondent Superscope, Inc. (Superscope) and defendant Joseph Tushinsky (Tushinsky) alleged three causes of action:  breach of contract and unjust enrichment, estoppel and fraud.   The complaint prayed for general and punitive damages in the amount of $1,590,000 and $1,000,000 respectively.

After a hearing on the merits, Superscope's motion for summary judgment pursuant to Code of Civil Procedure section 437c was granted.   Appellant filed a timely appeal from the judgment in favor of Superscope.1  For the reasons stated below, we affirm the judgment.

STATEMENT OF FACTS

Superscope is a corporation listed on the New York Stock Exchange and authorized to do business in California.   Tushinsky is the Chairman of the Board of Directors of Superscope.

Tenzer was elected as a member of the Superscope Board of Directors on May 11, 1979.   At Tushinsky's request, Tenzer attended a Board meeting on the day prior to his election during which the critical nature of Superscope's finances was discussed and the directors were told of the need to sell the corporate headquarters.   These same topics were again discussed at the Board meeting held immediately after Tenzer's election.

On June 22, 1979, another meeting of Superscope's Board occurred.   At this meeting, the outside directors,2 such as Tenzer, were told of the desperate financial condition of Superscope.   Superscope's broker, Coldwell Banker, had been unsuccessful for nearly a year in attempting to sell the corporate headquarters.   The Board was told that a cash sale was required and that, although negotiations were continuing, the possible deal with Girard Fund contained too many contingencies.

Tenzer had been in the real estate and housing business for some 20 years and had extensive contacts within the real estate industry.   After learning of Superscope's financial condition and after a telephone conversation in which Tushinsky requested Tenzer seek a purchaser for the corporate headquarters, Tenzer considered various personal contacts as possible purchasers.   Shortly thereafter, Paul Amir (Amir) informed Tenzer of his interest in purchasing property similar to Superscope's headquarters.   Tenzer told Amir that he knew of such property but would need the permission of the sellers before he could identify the property.   While Tenzer was aware of other real estate opportunities for Amir, he nevertheless contacted Tushinsky.   Without disclosing Amir's name, Tenzer told Tushinsky that he knew a person capable of purchasing the corporate headquarters for cash.   He also informed Tushinsky (a fact which Tushinsky disputes) that he expected a finder's fee in the amount of 10 percent of the transaction for disclosing the purchaser's name.   According to Tenzer, Tushinsky indicated that the fee was satisfactory and that if a $16,000,000 sale were to close when expected, the fee would be earned and payable upon such closing.

Neither Tenzer nor Tushinsky discussed the need to reduce the finder's fee agreement to writing.   Tenzer felt that his personal relationship with Tushinsky and Tushinsky's integrity were sufficient enough.   Tenzer then informed the parties of the other's identity.   Tenzer states that he would not have introduced Amir to Tushinsky without the finder's fee agreement.

Tenzer discussed the “Amir situation” with someone either during or after the June 22, 1979, Board meeting.   He does not, however, recall specifically with whom he had this conversation, but remembers Tushinsky's participating.   At a July 27, 1979, board meeting, Tenzer states that he informed the Board that he was entitled to a finder's fee.   However, he at no time disclosed the fact that the fee was 10 percent of the transaction or that it would amount to $1,590,000.3

Tenzer's complaint asserts that he was to be paid for his special services which consisted of “finding, referring and assisting in reaching the eventual transaction with the buyer of [Superscope's] property.”   Tenzer also asserts in his complaint that he did in fact obtain, introduce and assist in obtaining a buyer and an acceptable and unconditional offer to purchase Superscope's headquarters.

 Tenzer, however, insists that he did not enter into any negotiations concerning the transaction,4 that he absented himself from any discussion by Superscope's Board regarding the sale, that he did not vote on any matter pertaining to the sale, and that he merely provided information and background on Amir.

At the July 27, 1979, Board meeting, a written comparison of the offers by Amir and by Girard Fund were presented.   After discussion, the Board voted to accept the Amir offer provided Amir agreed to waive certain contingencies.   The Board also ratified an offer to be made to Girard Fund;  it was understood that other purchasers would not be excluded until Girard accepted its offer.

The written comparisons between the Amir and Girard Fund offers contained no provision for a finder's fee for Tenzer.   The comparisons did indicate that a commission of $490,000 would be due Coldwell Banker if Superscope's headquarters were sold to the Girard Fund, and that a commission of $295,000 would be due Coldwell Banker if the sale to Amir was approved.   The minutes of the Board meeting of July 27, 1979, reveal that after the Board approved the Amir offer and ratified the offer to Girard Fund, a discussion regarding finder's fees for directors was held.   However, a final decision on the finder fee issue was deferred until the next Board meeting on August 24, 1979.

On August 24, 1979, the Board debated whether directors should be allowed finder's fees.   Tenzer participated in the discussion and states that the discussion concerned only whether outside directors should be entitled to finder's fees for future transactions and that no specific reference was made to finder's fees which had already been earned.   The motion to allow payment of finder's fees was defeated.   One of the concerns expressed by the directors was that such finder's fees were not authorized by the bylaws and represented a conflict of interest for Board members.5

A contract for the sale of Superscope's headquarters to Amir was subsequently consummated in August 1979, and the sale was ultimately closed.   Tenzer did not receive a finder's fee for his services.

On March 12, 1980 and February 26, 1981, Tenzer completed questionnaires in his capacity as a director of Superscope, Inc.   These questionnaires were used by Superscope to prepare its proxy statement and annual report for filing with the Securities and Exchange Commission (SEC).   In his deposition, Tenzer admitted reading and signing these documents.   Each questionnaire provides, just above Tenzer's signature, that the information contained in the questionnaires could be relied upon by Superscope in preparing its reports for the SEC.

Tenzer understood the questionnaires were submitted to him in his capacity as a director.   He had been employed previously as a president, chief executive officer and a director of a publicly held company.

Question No. 2 on each questionnaire requests “the amount of any direct remuneration (including bonuses) which was paid to you or accrued for your benefit for services in all capacities with Superscope, ․ for the fiscal year ended December 31, 1980,” and December 31, 1979, respectively.  (Emphasis added.)   Although Tenzer asserts that he had a claim for a finder's fee, he did not disclose it in response to Question No. 2.   In his deposition, he stated that he did not answer the question because “[i]t was not paid to me.”   He also stated that he “had no knowledge whether the company had accrued the finder's fee or not.”

Question No. 6 on both questionnaires asks, “whether you, your spouse or any relative of yours ․ have or had any direct or indirect interest in any contract or other transaction with Superscope or any of its subsidiaries ․”  (Emphasis added.)   Tenzer's response to the 1980 questionnaire was “N/A” and to the 1981 questionnaire “None.”   In his deposition, Tenzer explained that his interpretation of Question No. 6 was that it “relates to contracts the company may have with third parties, such as suppliers, and my response is in a meaning that I have no contingent or other financial interest with regard to any supplier to Superscope that I am aware of.”

Question No. 13 on both questionnaires asks, “Please indicate whether you have any knowledge of any material adverse information regarding the Company and its operations and please set out the nature of said information.”   In neither of these questionnaires did Tenzer disclose his claim for a finder's fee.   Apparently, he felt they pertained to vendors who were suing the company.

APPELLANT'S CONTENTIONS ON APPEAL

Tenzer's contentions on appeal may be summarized as follows:

1. There is a finder's fee exception to the statute of frauds contained in Civil Code section 1624, subdivision (5).   Therefore, an oral contract to pay a finder's fee in a real estate transaction is enforceable.

2. Superscope is estopped from asserting the statute of frauds.

3. He may maintain an action for fraud even if the underlying agreement is unenforceable.

4. Summary judgment was inappropriate because of the presence of triable issues of fact.

Superscope controverts each of Tenzer's contentions.

DISCUSSION

Use of Summary Judgment

Section 437c of the Code of Civil Procedure provides that “(a) [a]ny party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense thereto․  [¶] (b) The motion shall be supported or opposed by affidavits, declarations, admissions, answers to interrogatories, depositions and matters of which judicial notice shall or may be taken․  [¶] (c) The motion shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.   In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court, and all inferences reasonably deductible [sic] from such evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from such evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact․”

“The opponent of a motion for summary judgment cannot rely on his pleadings, but must make an independent showing that he has ‘sufficient proof of the matters alleged to raise an issuable question of fact in regard thereto.’   [Citation.]  This rule applies even where the pleadings are verified.   [Citation.]”  (Cullincini v. Deming (1975) 53 Cal.App.3d 908, 913–914, 126 Cal.Rptr. 427.)   Here, the appellant's complaint was verified by Tenzer.

In the present appeal, Tenzer raises a number of contentions as stated above.   In our view, the facts presented in the record below raise no triable issues of material fact.   The questions presented may, therefore, be determined as a matter of law.

A Finder's Fee Agreement Must Be In Writing To Be Enforceable

Civil Code section 1624, provides in pertinent part as follows:  “The following contracts are invalid, unless the same, or some note or memorandum thereof, is in writing and subscribed by the party to be charged or by his agent; ․  5.   An agreement authorizing or employing an agent, broker, or any other person to ․ find a purchaser or seller of real estate ․ for compensation or a commission; ․”

The history and effect of Civil Code section 1624, subdivision 5, was specifically addressed in the recent decision of Grant v. Marinell (1980) 112 Cal.App.3d 617, 169 Cal.Rptr. 414.  “Before 1963, the so-called oral ‘finder's agreement,’ that is an agreement merely to introduce a seller of real estate to a prospective purchaser or a purchaser to a prospective buyer, was held not to be within the statute of frauds, whether such contract was made by a real estate broker or agent or by an unlicensed person.  [Citations.]  [¶] In 1963, however, the Legislature amended subdivision 5 to add, inter alia, the [emphasized] language:  ‘An agreement authorizing or employing an agent or broker to purchase or sell real estate, ․ or to procure, introduce, or find a purchaser or seller of real estate or a lessee or lessor of real estate where such lease is for a longer period than one year, for compensation or a commission.’  (Stats.1963, ch. 814, § 1, p. 1843.)  [¶] If by this amendment the Legislature intended all finder's fee agreements to come within the ambit of the statute of frauds, it failed, as was predicted in the State Bar Journal's review of 1963 legislation (38 State Bar J. 604, 649).  [Fn. omitted.]  The section, as amended, was interpreted to bar only oral finder's agreements between licensed brokers or agents and sellers or purchasers of property.   Subdivision 5, as revised, was still held to be inapplicable to such oral agreements by unlicensed individuals.  [Citations.]  This anomaly resulted in the 1967 amendment (Stats.1967, ch. 52, § 1, p. 953), which added the following [emphasized] language:  ‘An agreement authorizing or employing an agent, broker, or any other person to purchase or sell real estate ․ or to procure, introduce or find a purchaser or seller ․’  [¶] While the 1967 amendment at last appears to put finders on a par with licensed brokers, nothing in either the 1963 or the 1967 amendments indicates a legislative intent to expand the protection of this part of the statute of frauds to any class other than the class originally intended to be benefitted—that is, purchasers or sellers of real property—or a specific intent to change the rule that oral contracts between brokers or between brokers and salesmen to share commissions are valid.”  (Grant v. Marinell, supra, 112 Cal.App.3d at pp. 620–621, 169 Cal.Rptr. 414.)

The court in Grant, supra, held that because the defendant was a broker who hired a finder, he was not among those persons to be benefited by the legislation and therefore was not entitled to raise the statute of frauds as a defense.

 In the present appeal, Superscope was a seller of real estate and Tenzer an unlicensed finder.   Under the express language of Civil Code section 1624, subdivision 5, which was interpreted by Grant, it is clear that Superscope's arrangement with Tenzer was required to be in writing to be enforceable.

Tenzer cites several decisions which he claims establish a finder's exception to the statute of frauds where the finder is an unlicensed person.   His reliance on these decisions is misplaced.

While it may have been the law prior to the 1967 amendment to Civil Code section 1624 that a finder's agreement with an unlicensed person in a real estate transaction was not required to be in writing to have been enforceable (see, e.g., Porter v. Cirod, Inc. (1966) 242 Cal.App.2d 761, 51 Cal.Rptr. 784), appellant fails to cite us any decision rendered subsequent to the 1967 amendment which supports his assertion of the lack of a necessity of a writing.   Rather, the decisions cited by appellant fall generally into two groups.

The first group consists of decisions which hold that a finder in a real estate transaction need not be licensed as a real estate broker to collect his fees as a finder.  (See, e.g., Tyrone v. Kelley (1973) 9 Cal.3d 1, 12–13, 106 Cal.Rptr. 761, 507 P.2d 65;  Rees v. Department of Real Estate (1977) 76 Cal.App.3d 286, 295, 142 Cal.Rptr. 789.)   The second group of decisions involves oral agreements for finder's fees in nonrealty transactions.  (See, e.g., Zalk v. General Exploration Co. (1980) 105 Cal.App.3d 786, 164 Cal.Rptr. 647 (oral finder's fee agreement involving the purchase of companies with mining properties);  and Tyrone v. Kelley, supra, (oral finder's fee agreement to locate a lender).)

These decisions cited by Tenzer simply do not support his proposition that despite the express language of Civil Code section 1624, subdivision 5, a finder's fee agreement with an unlicensed person need not be in writing.   Tenzer's cause of action for breach of an express contract is therefore unenforceable because of failure to comply with the statute of frauds.

Tenzer's First Cause of Action Also Fails To State an Action for Unjust Enrichment

 Tenzer also characterizes his first cause as an unjust enrichment action.   His use of unjust enrichment in this context is somewhat unclear.   We interpret his first cause of action as an attempt also to plead a breach of an implied contract or to recover under a quantum meruit theory.

Under either of these two possibilities, his first cause of action fails.   In Buckaloo v. Johnson (1975) 14 Cal.3d 815, 122 Cal.Rptr. 745, 537 P.2d 865, a real estate broker sought to recover a commission from the sale of certain real property.   The broker's claim for a commission was based upon the seller's erection of a sign directing potential purchasers to contact their local brokers.   Our Supreme Court held that “[a]ny action ․ based on contract or implied contract must fail for want of compliance with the statute of frauds.”  (Emphasis added.)  (Id., at p. 821, 122 Cal.Rptr. 745, 537 P.2d 865;  see also King v. Tilden Park Estates (1958) 156 Cal.App.2d 824, 832, 320 P.2d 109, dealing with the unenforceability of oral agreements involving a real estate broker's fee despite a claim under a quantum meruit theory.   See Wm. E. Doud & Co. v. Smith (1967) 256 Cal.App.2d 552, 559, 64 Cal.Rptr. 222 and Gould v. Otto (1927) 81 Cal.App. 409, 411–412, 254 P. 272.)

Appellant Cannot Maintain an Action for Fraud

Tenzer next contends that he has successfully pled a cause of action for fraud by alleging that Superscope promised to pay a commission without the intent of performing its promise.   In Kroger v. Baur (1941) 46 Cal.App.2d 801, 803, 117 P.2d 50, the Court of Appeal addressed this issue, stating:  “An agreement authorizing or employing an agent or broker to purchase or sell real estate for compensation or a commission is invalid unless the same, or some note or memorandum thereof, is in writing, and subscribed by the party to be charged or by his agent.  (Civ.Code, sec. 1624;  Code Civ.Proc., sec. 1973.)   Appellant contends that his action is not upon the invalid agreement, but is an action for damages for fraud, upon the theory that the oral promise to pay him a commission was made without any intention of performing it and for the purpose of inducing him to waive a written memorandum.   If the law can be thus nullified by the transparent device of predicating a tort action upon the invalid oral promise on the ground that the promisor did not intend to perform it, then the section might just as well be stricken from the statute.   To license such a circuitous procedure to evade the provisions of such legislation would be to nullify and destroy its wholesome effect and the protection it affords against fraud.   Assuming, as we must, that the allegations of the complaint are true, nevertheless the hardship thus falling upon the plaintiff must be borne by him, as this situation is precisely that which the statute of frauds was designed to prevent.”  (Emphasis added.)  (See also Keely v. Price (1972) 27 Cal.App.3d 209, 103 Cal.Rptr. 531;  cf. Southern Cal. etc. Assemblies of God v. Shepherd of Hills etc. Church (1978) 77 Cal.App.3d 951, 144 Cal.Rptr. 46.)

 Applying the above quoted language in Kroger to the present appeal, Tenzer cannot avoid the statute of frauds by alleging that Superscope never intended to perform an unenforceable oral contract.   To allow Tenzer successfully to plead a fraud action would abrogate the effect of the statute of frauds.

Superscope Is Not Estopped from Raising the Statute of Frauds

Tenzer contends that Superscope is estopped from asserting the statute of frauds.6  He relies principally on the decisions in Le Blond v. Wolfe (1948) 83 Cal.App.2d 282, 188 P.2d 278;  Monarco v. Lo Greco (1950) 35 Cal.2d 621, 220 P.2d 737;  and Pac. etc. Dev. Corp. v. Western Pac. R.R. Co. (1956) 47 Cal.2d 62, 301 P.2d 825.

This very point as well as a detailed consideration of the decisions cited by Tenzer were carefully considered and rejected in Keely v. Price, supra, 27 Cal.App.3d 209, 103 Cal.Rptr. 531.   In Keely, the court stated, “[p]laintiff argues that a defendant is precluded from asserting the statute of frauds where the plaintiff would be unconscionably injured or the defendant unjustly enriched and the plaintiff, in reliance on the oral promise, has changed his position.  (Monarco v. Lo Greco (1950) 35 Cal.2d 621 [220 P.2d 737] ․)  Although plaintiff has pled that he changed his position in reliance on defendant's promise and that defendant was unjustly enriched, the Monarco ruling has not been generally applied to oral contracts to pay a real estate broker's commission.  ‘The rule is established in California that an estoppel to plead the statute of frauds cannot be predicated upon the ․ refusal to comply with an oral promise to pay a commission.’  [Citations.]

“Plaintiff relies on a single case for the proposition that the estoppel doctrine is applicable to oral agreements to pay real estate brokers' commissions.  (Le Blond v. Wolfe (1948) 83 Cal.App.2d 282 [188 P.2d 278] ․)  Although the Le Blond case was cited with approval by the Supreme Court in Monarco v. Lo Greco (1950) supra, 35 Cal.2d 621 [220 P.2d 737], and in Pacific etc. Dev. Corp. v. Western Pac. R.R. Co. (1956) supra, 47 Cal.2d 62, 70 [301 P.2d 825], and by the appellate court in King v. Tilden Park Estates (1958) supra, 156 Cal.App.2d 824 [320 P.2d 109], the Monarco case did not involve real estate brokers' commissions, and the other two cases citing Le Blond distinguished Le Blond on its facts, and relied on the general rule which bars real estate brokers from applying the estoppel doctrine to oral contracts to pay a broker's commission.

“In Pacific etc. Dev. Corp. v. Western Pac. R.R. Co. (1956) supra, 47 Cal.2d 62, 70 [301 P.2d 825], the court distinguished Le Blond as follows:  ‘Nor is there any merit to plaintiff's contention that defendant is estopped to plead the statute of frauds by reason of the fact that Stratton, on behalf of defendant, finally concluded an option agreement with Lenfest for purchase of the property and the sale was subsequently consummated.   This is not a case of unconscionable injury to plaintiff because of a change of position in reliance upon the alleged contract of employment (Le Blond v. Wolfe, 83 Cal.App.2d 282 [188 P.2d 278] ․) or an unjust enrichment of defendant through acceptance of the benefits of the alleged contract without itself being obligated thereunder.  (Monarco v. Lo Greco, 35 Cal.2d 621 [220 P.2d 737] ․)  The fact that plaintiff rendered services and conducted unsuccessful negotiations with Lenfest does not constitute a change of position to plaintiff's detriment, nor does the fact that defendant refused to pay plaintiff a real estate commission upon an option which defendant later procured through direct negotiations with Lenfest constitute an unjust enrichment within the meaning of the estoppel doctrine.   To hold otherwise, in the absence of any showing of fraud, would defeat the purpose of the statute of frauds in relation to real estate transactions.  [Citations.]’

“King v. Tilden Park Estates (1958) supra, 156 Cal.App.2d 824, 831 [320 P.2d 109], also distinguished Le Blond stating:  ‘Le Blond v. Wolfe, 83 Cal.App.2d 282 [188 P.2d 278] ․, cited by the appellant, is easily distinguishable.   In that case, the plaintiff real estate broker had a written contract obligating the seller to pay him a commission.   The broker released the seller from this obligation in reliance on the oral promise of the defendant purchaser to pay the commission.   The appellate court affirmed the judgment for the plaintiff, holding that the doctrine of estoppel applied as the plaintiff had immediately changed his position to his detriment by releasing the seller.   In the instant case, the appellant alleged an oral agreement with the seller Ross (the existence of which Ross denied), which appellant allegedly gave up in return for the respondent's oral promise.   It is elementary that the giving up of an unenforceable right is not sufficient consideration for a new promise.’

“In Le Blond v. Wolfe, supra, the plaintiff therein released the owners of the property from their obligation to pay him a commission in reliance on an oral promise to pay․  [¶]  Thus, it appears from Le Blond v. Wolfe, and from King v. Tilden Park Estates, and from some language in Pacific etc. Dev. Corp. v. Western Pac. R.R. Co., that where the plaintiff broker changes his position in reliance on the defendant's oral promise to pay the commission by releasing the owners of the property from a binding obligation to pay a commission, an exception to the general rule is created, and the defendant is estopped from asserting the statute of frauds․  The existence of an enforceable contract with the sellers appears to be a crucial factor in applying the estoppel doctrine.   In King v. Tilden the court specifically and unequivocally stated that for the rule of Le Blond to apply the broker's contract with the sellers for the payment of the commission must have been an enforceable, written contract which plaintiff gave up in reliance on defendant's oral promise.”  (Id., at pp. 212–214, 103 Cal.Rptr. 531.)   (Emphasis in original.)

 Unlike Le Blond, Tenzer had no enforceable right to a fee which he gave up in reliance upon a subsequent oral promise to pay a finder's fee.   Therefore, the present situation does not fall within the limited exception to the general rule that an estoppel cannot be predicated upon the refusal to comply with an oral promise to pay a commission.   A holding to the contrary would essentially abrogate the statute of frauds by making the very conduct sought to be prohibited sufficient to estop a party from asserting the doctrine's protection.   We thus reject Tenzer's attempt circuitously to avoid the statute of frauds.

There Are No Triable Issues of Material Fact

Superscope's bylaws provide that its board of directors, and not the Chairman of the Board individually, shall have the authority to fix the compensation of all officers, agents and employees of the corporation.  (See, ante, fn. 5.)   The bylaws also provide that a majority of the board of directors shall constitute a quorum and that the acts of the majority of a quorum at a meeting duly held shall be regarded as the acts of the board of directors.   (Superscope's bylaws, art. III, § 9.)   The Chairman of the Board is only given the authority to preside at board meetings and such other authority as may be assigned to him by the entire board.

 Tenzer's complaint does not allege that Tushinsky was ever given the additional authority to fix the compensation of Tenzer as a finder.   Tenzer was charged with knowledge of the bylaw provisions regarding Board approval.   He asserts that Tushinsky agreed to pay him a finder's fee; 7  Tushinsky vehemently denies discussing a specific finder's fee.   However, it is undisputed that the agreement, if any, was oral and never formally approved by either Superscope's Board of Directors or shareholders.   His reliance on the bylaws to support his theory for relief is misplaced.   The trial court's grant of summary judgment was correct in view of the absence of any triable issues of material fact.

We have also concluded as a matter of law that the purported oral agreement was unenforceable as violative of the statute of frauds under any of the theories asserted by Tenzer's complaint.   Thus, the trial court's determination that the alleged oral agreement was unenforceable under Civil Code section 1624, subdivision (5), also served as a basis for supporting the judgment.

For the foregoing reasons, we affirm the judgment entered below.

FOOTNOTES

1.   Defendant Tushinsky is not a party to the judgment or this appeal.

2.   An outside director is a director who has no interest or other duties in the corporation other than as a director.

3.   Tenzer felt that it was Tushinsky's duty, and not his, to disclose to the Board the amount of the finder's fee.   He claims that the finder's fee of 10 percent was reasonable given the precarious financial condition of Superscope and the fact that the sale saved Superscope from worldwide bankruptcy.

4.   As an unlicensed person, Tenzer could not receive a fee for services in negotiating a sale of real property.  (See Bus. & Prof.Code, §§ 10131 and 10136;  and Evans v. Riverside Internat. Raceway (1965) 237 Cal.App.2d 666, 674, 47 Cal.Rptr. 187.)   However, Tenzer could receive a fee as a finder if he merely introduced the parties.   His attempt to minimize his involvement in the Amir deal appears to have been motivated by his desire to solidify his position as a finder in the Amir deal and to show that he was not acting as a broker.

5.   Superscope's bylaws provide in pertinent part as follows: “ARTICLE III “DIRECTORS“Section 1. POWERS․  [¶] Without prejudice to such general powers, but subject to the same limitations, it is hereby expressly declared that the directors shall have the power and authority to:  [¶] (a) Select and remove all officers, agents, and employees of the corporation, ․ and ․ fix their compensation ․“Section 14.  FEES AND COMPENSATION OF DIRECTORS.   Directors ․ may receive such compensation, if any, for their services, ․ as may be fixed or determined by resolution of the board of directors.   Nothing herein-contained shall be construed to preclude any director from serving the corporation in any other capacity as an officer, agent, employee, or otherwise, and receiving compensation for such services.”

6.   Actually, Tenzer's amended complaint alleges that Superscope is estopped from denying Tenzer's status as an agent and finder for the corporation.   On appeal, both parties have treated this point as an allegation that Superscope is estopped to assert the statute of frauds.   We shall do the same.

7.   Appellant states in his amended complaint that he relied on Article III, section 14, of the Superscope bylaws which provide that a director may be paid for his services as an agent of the corporation.   However, it does not appear that appellant ever consulted the bylaws regarding Tushinsky's lack of authority to set compensation for a director's services.   Tenzer's reliance on some bylaw provisions while ignoring others reveals the weakness of his position.

LUI, Associate Justice.

KLEIN, P.J., and DANIELSON, J., concur.

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