Case Number(s): 11-O-14288-PEM
In the Matter of: R. Steven Pierce, Bar # 105255, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Robin Brune, Deputy Trial Counsel
180 Howard Street
San Francisco, California 94105
Bar # 149481,
Counsel for Respondent: Ed Lear, Esq,
Century Law Group
5200 West Century Blvd. Suite 345
Los Angeles, California 90045
Bar # 132699,
Submitted to: Settlement Judge
Filed: December 29, 2011, State Bar Court Clerk’s Office San Francisco.
<<not>> checked. PREVIOUS STIPULATION REJECTED
Note: All information required by this form and any additional information which cannot be provided in the space provided, must be set forth in an attachment to this stipulation under specific headings, e.g., "Facts," "Dismissals," "Conclusions of Law," "Supporting Authority," etc.
1. Respondent is a member of the State Bar of California, admitted December 3, 1982
2. The parties agree to be bound by the factual stipulations contained herein even if conclusions of law or disposition are rejected or changed by the Supreme Court.
3. All investigations or proceedings listed by case number in the caption of this stipulation are entirely resolved by this stipulation and are deemed consolidated. Dismissed charge(s)/count(s) are listed under "Dismissals." The stipulation consists of 12 pages, not including the order.
4. A statement of acts or omissions acknowledged by Respondent as cause or causes for discipline is included under "Facts."
5. Conclusions of law, drawn from and specifically referring to the facts are also included under "Conclusions of Law".
6. The parties must include supporting authority for the recommended level of discipline under the heading "Supporting Authority."
7. No more than 30 days prior to the filing of this stipulation, Respondent has been advised in writing of any pending investigation/proceeding not resolved by this stipulation, except for criminal investigations.
8. Payment of Disciplinary Costs-Respondent acknowledges the provisions of Bus. & Prof. Code §§6086.10 & 6140.7. (Check one option only):
<<not>> checked. Costs are added to membership fee for calendar year following effective date of discipline (public reproval).
<<not>> checked. Case ineligible for costs (private reproval).
checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: (Hardship, special circumstances or other good cause per rule 5.132, Rules of Procedure.) If Respondent fails to pay any installment as described above, or as may be modified by the State Bar Court, the remaining balance is due and payable immediately.
<<not>> checked. Costs are waived in part as set forth in a separate attachment entitled "Partial Waiver of Costs".
<<not>> checked. Costs are entirely waived.
9. The parties understand that:
<<not>> checked. (a) A private reproval imposed on a respondent as a result of a stipulation approved by the Court prior to initiation of a State Bar Court proceeding is part of the respondent’s official State Bar membership records, but is not disclosed in response to public inquiries and is not reported on the State Bar’s web page. The record of the proceeding in which such a private reproval was imposed is not available to the public except as part of the record of any subsequent proceeding in which it is introduced as evidence of a prior record of discipline under the Rules of Procedure of the State Bar.
checked. (b) A private reproval imposed on a respondent after initiation of a State Bar Court proceeding is part of the respondent’s official State Bar Membership records, is disclosed in response to public inquiries and is reported as a record of public discipline on the State Bar’s web page.
<<not>> checked. (c) A public reproval imposed on a respondent is publicly available as part of the respondent’s official State Bar membership records, is disclosed in response to public inquiries and is reported as a record of public discipline on the State Bar’s web page.
(Effective January 1, 2011)
IN THE MATTER OF: Steven Pierce State Bar No. 149481
STATE BAR COURT CASE NUMBER: 11-O-14288-PEM
IN THE MATTER OF: Steven Pierce
CASE NUMBER(S): 11-O-14288
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and that he is culpable of violations of the specified statutes and/or Rules of Professional Conduct.
Case No. 11 -O- 14288 (Complainant: self-reported)
FACTS:
At all relevant times, respondent was licensed as a real estate broker and as the designated officer-broker of Pacific Capital Holdings, Inc. ("PCHI.") As the designated officer-broker, respondent was responsible under Business and Profession Code section 10159.2 ("the Code") for the supervision of the activities of the officers, real estate licensees and employees of PCHI.
On or about May 5, 2009, the Department of Real Estate filed an Accusation in case number HI 0668 SF against respondent and others. Attached as Exhibit 1 and incorporated by reference as if fully set forth herein is a true and correct copy of the Accusation.
The Accusation alleged in paragraph 10 that PCHI:
failed to place entrusted funds in a trust account as required by section 10145 of the Code and
Section 2832 of Title 10, the California Code of Regulations ("Regulations");
failed to keep specific trust account records as required by Section 2831 of the Regulations;
failed to properly reconcile the trust account records as required by Section 2831.2 of the
Regulations; and permitted commingling of trust funds with non-trust funds in violation of Section 10176(e) of the
Code and section 2835 of the Regulations.
The Accusation alleged in paragraph 12 that between December 12,.2006 and December 31,
2007, respondent failed to exercise reasonable supervision over the acts of PCHI and its agents and employees in such matter as to allow the acts and omissions on the part of PCHI to occur, as described in paragraph 10 of the Accusation, in violation of Sections 10159.2 and 10177(g) and (h) of the Code and Section 2725 of the Regulations.
The Accusation in paragraph 14 alleged that the facts set forth in the Accusation were grounds for suspension or revocation of respondent’s license rights under Sections 10159.2, 10177(g) and (h) of the Code and Section 2725 of the Regulations.
On November 9, 2009, respondent executed a Stipulation and Agreement in Settlement and
Order ("Stipulation") which was filed on December 16, 2009 and became effective on January 5, 2010. Attached as Exhibit 2 and incorporated by reference as if fully set forth herein is a true and correct copy of the Stipulation.
In the Stipulation at paragraph 4, respondent admitted the factual allegations set forth in paragraph 10 and paragraph 14 of the Accusation were true and correct.
Pursuant to the Stipulation’s Determination of Issues, at subsection (g), the acts and omissions of respondent were grounds for the suspension or revocation of his license under Sections 10159.2, 10177(g) and (h) of the Code and Section 2725 of the Regulations. By engaging in the conduct described in the Accusation, respondent violated Sections 10159.2, 10177(g) and (h) of the Code and Section 2725 of the Regulations.
CONCLUSIONS OF LAW:
By engaging in the violations set forth above, respondent failed to support the laws of this state of this
state, and thereby respondent willfully violated Business and Professions Code, section 6068(a).
PENDING PROCEEDINGS:
The disclosure date referred to, on page 2, paragraph A(7), was December 12, 2011.
AUTHORITIES SUPPORTING DISCIPLINE:
The Standards for Attorney Sanctions for Professional Misconduct call for ninety days actual suspension for any violation of 4-100. (Standard 2.2(b)). Here, the State Bar did not charge 4-100 but a violation of Business and Professions Code, section 6068(a).
There are two private reproval cases on point. In the Matter of Respondent C (1991) 1 Cal. State Bar Ct. Rptr. 439; In the Matter of Respondent E (1991) 1 Cal. State Bar Ct. Rptr. 716.
In Respondent C, the Court imposed a private reproval for a violation of Business and Professions Code, section 6068(a). The underlying misconduct was a failure to communicate. Business and Professions Code, section 6068(m) had not yet been enacted, so the Court found a violation of 6068(a).
In Respondent E, the attorney, who was in practice for 40 years, mishandled one check for an expert witness, placing it in his general account instead of his trust account. It took him a year to correct the financial mismanagement. The Court was persuaded by his lack of discipline with many years of practice as well as the fact that the attorney had no personal knowledge of the problem but had failed to supervise staff. The Court found the respondent culpable of Business and Professions Code, 6106.
In this
matter, the Dept. of Real Estate has confirmed respondent’s account that the
respondent had no personal knowledge and that he had failed to supervise staff.
No client was harmed in that the funds were in the wrong account but they were
not misappropriated. Respondent worked for a large brokerage firm as the
broker-agent and periodically visited the branch offices. Staff under his
supervision handled rental property funds contrary to the law. Under these
circumstances the State Bar sees this private reproval with public disclosure
as appropriate public protection.
Case Number(s): 11-O-14288-PEM
In the Matter of: R. Steven Pierce
a. Restitution
<<not>> checked. Respondent must pay restitution (including the principal amount, plus interest of 10% per annum) to the payee(s) listed below. If the Client Security Fund (“CSF”) has reimbursed one or more of the payee(s) for all or any portion of the principal amount(s) listed below, Respondent must also pay restitution to CSF in the amount(s) paid, plus applicable interest and costs.
1. Payee:
Principal Amount:
Interest Accrues From:
2. Payee:
Principal Amount:
Interest Accrues From:
3. Payee:
Principal Amount:
Interest Accrues From:
4. Payee:
Principal Amount:
Interest Accrues From:
<<not>> checked. Respondent must pay above-referenced restitution and provide satisfactory proof of payment to the Office of Probation not later than .
<<not>> checked. Respondent must pay the above-referenced restitution on the payment schedule set forth below. Respondent must provide satisfactory proof of payment to the Office of Probation with each quarterly probation report, or as otherwise directed by the Office of Probation. No later than 30 days prior to the expiration of the period of probation (or period of reproval), Respondent must make any necessary final payment(s) in order to complete the payment of restitution, including interest, in full.
1. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
2. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
3. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
4. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
<<not>> checked. If Respondent fails to pay any installment as described above, or as may be modified by the State Bar Court, the remaining balance is due and payable immediately.
<<not>> checked.
1. If Respondent possesses client funds at any time during the period covered by a required quarterly report, Respondent must file with each required report a certificate from Respondent and/or a certified public accountant or other financial professional approved by the Office of Probation, certifying that:
a. Respondent has maintained a bank account in a bank authorized to do business in the State of California, at a branch located within the State of California, and that such account is designated as a “Trust Account” or “Clients’ Funds Account”;
b. Respondent has kept and maintained the following:
i. A written ledger for each client on whose behalf funds are held that sets forth:
1. the name of such client;
2. the date, amount and source of all funds received on behalf of such client;
3. the date, amount, payee and purpose of each disbursement made on behalf of such client; and,
4. the current balance for such client.
ii. a written journal for each client trust fund account that sets forth:
1. the name of such account;
2. the date, amount and client affected by each debit and credit; and,
3. the current balance in such account.
iii. all bank statements and cancelled checks for each client trust account; and,
iv. each monthly reconciliation (balancing) of (i), (ii), and (iii), above, and if there are any differences between the monthly total balances reflected in (i), (ii), and (iii), above, the reasons for the differences.
c. Respondent has maintained a written journal of securities or other properties held for clients that specifies:
i. each item of security and property held;
ii. the person on whose behalf the security or property is held;
iii. the date of receipt of the security or property;
iv. the date of distribution of the security or property; and,
v. the person to whom the security or property was distributed.
2. If Respondent does not possess any client funds, property or securities during the entire period covered by a report, Respondent must so state under penalty of perjury in the report filed with the Office of Probation for that reporting period. In this circumstance, Respondent need not file the accountant’s certificate described above.
3. The requirements of this condition are in addition to those set forth in rule 4-100, Rules of Professional Conduct.
checked. Within one (1) year of the effective date of the discipline herein, Respondent must supply to the Office of Probation satisfactory proof of attendance at a session of the Ethics School Client Trust Accounting School, within the same period of time, and passage of the test given at the end of that session.
SIGNATURE OF THE PARTIES
Case Number(s): 11-O-14288-PEM
In the Matter of: R. Steven Pierce
By their signatures below, the parties and their counsel, as applicable, signify their agreement with each of the recitation and each of the terms and conditions of this Stipulation Re Facts, Conclusions of Law and Disposition.
Signed by: R. Steven Pierce, Ed Lear, Robin Brune
Respondent: R. Steven Pierce
Date: 12/14/2011
Respondent’s Counsel: Ed Lear
Date: 12/20/2011
Deputy Trial Counsel: Robin Brune
Date: 12/22/2011
Case Number(s): 11-O-14288-PEM
In the Matter of: R. Steven Pierce
Finding the stipulation to be fair to the parties and that it adequately protects the public, IT IS ORDERED that the requested dismissal of counts/charges, if any, is GRANTED without prejudice, and:
checked. The stipulated facts and disposition are APPROVED AND THE REPROVAL IMPOSED.
<<not>> checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set forth below, and the REPROVAL IMPOSED.
checked. All court dates in the Hearing Department are vacated.
The parties are bound by the stipulation as approved unless: 1) a motion to withdraw or modify the stipulation, filed within 15 days after service of this order, is granted; or 2) this court modifies or further modifies the approved stipulation. (See rule 5.58 (E) & (F), Rules of Procedure.) Otherwise the stipulation shall be effective 15 days after service of this order.
Failure to comply with any conditions attached to this reproval man constitute cause for a separate proceeding for willful breach of rule 1-110, Rules of Professional Conduct.
Signed by:
Judge of the State Bar Court: Lucy Armendariz
Date: December 29, 2011
IN THE MATTER OF THE ACCUSATION OF:
PACIFIC CAPITAL HOLDINGS, INC a CORPORATION,
Robert Steven Pierce, and
MATHEW PETER MURPHY,
Respondents.
1
The Complainant makes this Accusation in his official capacity.
2
At all times herein mentioned, Respondents PCHI, PIERCE, and MURPHY (herein “Respondents”) were and now are licensed and/or have license rights under the Real Estate Law (Part 1 of Division 4 of the Business and Professions Code) (herein “the Code”).
3
At all times herein mentioned PCHI was and now is licensed by the State of California Department of Real Estate (herein “the Department”) as a corporate real estate broker by and through PIERCE as designated officer-broker of PCHI to qualify said corporation and to act for said corporation as a real estate broker.
4
At all times herein mentioned, PIERCE was and now is licensed by the Department as a real estate broker, individually and as designated officer-broker of PCHI as of December 12, 2006. As said designated officer-broker, PIERCE was at all times mentioned herein responsible pursuant to section 10159.2 of the Code for the supervision of the activities of the officers, agents, real estate licensees, and employees of PCHI for which a license is required.
5
At all time herein mentioned, MURPHY was and now is licensed by the Department as a real estate broker, individually and was designated officer-broker of PCHI from about December 2, 2002 to about December 11, 2006. As said designated officer-broker, MURPHY was at all times mentioned herein responsible pursuant to Section 10159.2 of the Code for the supervision of the activities of the officers, agents, real estate licensees, and employees of PCHI for which a license is required.
6
Whenever reference is made in an allegation in this Accusation to an act or omission of PCHI, such allegation shall be deemed to mean that the officers, directors, employees, agents and/or real estate licensees employed by or associated with PCHI committed such act or omission while engaged in the furtherance of the business or operations of such corporate Respondent and while acting within the course and scope of their authority and employment.
7
At all times herein mentioned Respondents engaged in the business of, acted in the capacity of, advertised, or assumed to act as a real estate brokers for compensation, or in expectation of compensation, within the State of California within the meaning of:
(a) Section 10131(a) of the Code, the operation of the real estate sales brokerage, wherein Respondents sold or offered to sell, bought or offered to buy, solicited prospective sellers or purchasers of, solicited or obtained listing of, or negotiated the purchase, sale or exchange of real property for a business opportunity; and
(b) Section 10131 (b) of the Code, the operation of a property management business with the public wherein Respondents leased or rented and offered to lease or rent, and placed for rent, and/or solicited listings of places for rent, and/or solicited for prospective tenants of real property or improvements thereon, and collected rents from real property or improvements thereon.
8
In so acting as a real estate broker, as described in Paragraph 7, above, PCHI accepted or received funds in trust (herein “trust funds”) from or on behalf of buyers, owners, tenants, borrowers, lenders and others in connection with real estate sales, leasing, renting, and collection of rents on real property or improvements thereon, and thereafter from time to time made disbursements of said funds.
9
The aforesaid trust funds accepted or received by PCHI were deposited or caused to be deposited by PCHI into one or more bank accounts maintained by PCHI at the Oakland, California branch of the Wells Fargo Bank, including but not necessarily limited to “PCH, Inc dba Keller Williams Realty”, account number 668-2025579 (herein “Bank #1”).
10
Between about September 6, 2006 and about December 31, 2007, in connection with the collection and disbursement of said trust funds, PCHI:
(a) Failed to place trust funds entrusted to PCHI into the hands of a principal whose behalf the funds were received, into a neutral escrow depository, or into a trust fund account in the name of PCHI as trustee at a bank or other financial institution, in conformance with the requirements of Section 10145 of the Code and Section 2832 of Title 10, the California Code of Regulations (herein the “Regulation”), in that PCHI placed such funds in to Bank #1, an account that was not in the name of PCHI as trustee;
(b) Failed to keep a columnar record in chronological sequence of all trust funds received and disbursed from Bank #1 containing all the information required by Section 2831 of the Regulations;
(c) Failed to keep a separate record for each beneficiary or transaction, accounting therein for all funds which have been deposited into Bank #1, containing all information required by Section 2831.1 of the Regulations;
(d) Failed to reconcile, at least once a month, the balance of all separate beneficiary or transactions records with Bank #1, as required by Section 2831.2 of the Regulations; and,
(e) Caused, suffered, or permitted money of others which was received and held by PCHI in Bank #1 to be commingled with PCHI’s own money, in violation of Section 10176(e) of the Code and Section 2835 of the Regulations.
11
Between about January 1, 2007 and about December 31, 2007, in connection with PCHI’s real estate brokerage activities, PCHI:
(a) Failed to retain in its possession and make available for inspection to the Commissioners, real estate salesperson licenses for Pamela Flaggs (license #00584267), Leona Greenlow (license #1390252), and Sherry Long (license #1251637), in violation of Section 10160 of the Code and Section 2753 of the Regulations; and,
(b) Failed to have a written agreement with real estate salesperson Teresita Monroe (license #1220607), in violation of Section 2726 of the Regulations.
12
At all times mentioned herein, between about December 12, 2006 and December 31, 2007, PIERCE failed to exercise reasonable supervision over the acts of PCHI and its agents and employees in such a manner as to allow the acts and omissions on the part of PCHI, described above, to occur, in violation of Section 10159.2 and 10177(g) and (h) of the Code and Section 2725 of the regulations.
13
At all times mentioned herein, between about September 6, 2006 and December 11, 2006, MURPHY failed to exercise reasonable supervision over the acts of PCHI and its agents and employees in such a manner as to allow the acts and omissions on the part of PCHI, described above, to occur in violation of Sections 10159.2 and 10177(g) and (h) of the Code and Section 2725 of the Regulations.
14
The facts alleged above are grounds for the suspension of revocation of the licenses and license rights of Respondents under the following provisions of the Code and/or the Regulations:
(a) as to Paragraph 10(a) and PCHI under Section 10145 of the Code and Section 2832 of the Regulations in conjunction with Section 10177(d) of the code;
(b) as to Paragraph 10(b) and PCHI under Section 10145 of the Code and Section 2831 of the Regulations in conjunction with 10177(d) of the Code;
(c) as to Paragraph 10(c) and PCHI under Section 10145 of the Code and Section 2831.1 of the Regulations in conjunction with Section 10177(d) of the Code;
(d) as to Paragraph 10(d) and PCHI under Section 10145 of the Code and Section 2831.2 of the Regulations in conjunction with Section 10177(d) of the Code;
(e) as to Paragraph 10(e) and PCHI under Section 10176(e) of the Code and 2835 of the Regulations;
(f) as to Paragraph 11(a) and PCHI under Section 10160 of the Code and Section 2753 of the Regulations in conjunction with Section 1077(d) of the Code;
(g) as to Paragraph 11(b) and PCHI under Section 2726 of the Regulations in conjunction with Section 10177(d) of the Code;
(h) as to Paragraph 12 and PIERCE under Sections 10159.2, 10177(g) and (h) of the Code and Section 2725 of the Regulations.
WHEREFORE, Complainant prays that a hearing be conducted on the allegations of this Accusation and that upon proof thereof a decision be rendered imposing disciplinary action against all licenses and license rights of Respondents under the Real Estate Law (Part 1 of Division 4 of the Business and Professions Code) and for such other and further relief as may be proper under other applicable provisions of law.
Signed By: E. J. Haberer II
Deputy Real Estate Commissioner: E. J. Haberer II
Dated at Oakland, California
In the Matter of the Accusation of
PACIFIC CAPITAL HOLDINGS, INC.
A CORPORATION,
ROBERT STEVEN PIERCE, AND
MATHEW PETER MURPHY,
Respondents.
It is hereby stipulated by and between Respondents PACIFIC CAPITAL HOLDINGS, INC. (herein “PCHI”), ROBERT STEVEN PIERCE (herein “PIERCE”), and MATTHEW PETER MURPHY (herein “MURPHY”) (herein jointly “Respondents”), individually and jointly, by and through Mary E. Work, attorney of record herein for Respondents, and the Complainant, acting by and through Mary F. Clarke, Counsel for the Department of Real Estate (herein “the Department”), as follows for the purpose of settling and disposing of the Accusation filed on May 5, 2009, in this matter:
1. All issues which were to be contested and all evidence which was to be presented by Complainant and Respondents at a formal hearing on the Accusation, which hearing was to be held in accordance with the provisions of the Administrative Procedure Act (herein APA), shall instead and in place thereof be submitted solely on the basis of the provisions of this Sitpulation and Agreement in Settlement and Order.
2. Respondents have received, read and understand the Statement to Respondent, the discovery Provisions of the APA, and th Accusation filed by the Department in this proceeding.
3. A Notice of Defense was filed on May 13, 2009, by Respondents pursuant to Section 11505 of the Government Code for the purpose of requesting a hearing on the allegations in the Accusation. Respondents hereby freely and voluntarily withdraw said Notice of Defense. Respondents acknowledge that they understand that by withdrawing said Notice of Defense they will thereby waive their right to require the Real Estate Commissioner (herein “Commissioner”) to prove the allegations in the Accusation at a contested hearing held in accordance with the provisions of the APA and that they will waive other rights afforded to them in connection with the hearing such as the right to present evidence in defense of the allegation in the Accusation and the right to cross-examine witnesses.
4. Respondents, pursuant to the limitations set forth below, hereby admit that the factual allegations pertaining to them in the Accusation filed in this proceeding are true and correct (except for Section 2831.1 of Title 10, Chapter 6 of the California Code of Regulations (herein the “regulations”), as described in Paragraphs 10 and 14, subsection (c) on Pages 4 and 5 of the Accusation) and the Commissioner shall not be required to provide further evidence of such allegations.
5. It is understood by the parties that the Commissioner may adopt the Stipulation and Agreement in Settlement and Order as his decision in this matter thereby imposing the penalty and sanctions on Respondents’ real estate licenses and license rights as set forth in the below “Order”. In the event that the Commissioner in his discretion does not adopt the Stipulation and Agreement in Settlement and Order, it shall be void and of no effect, and Respondents shall retain the right to a hearing and proceeding on the Accusation under all the provisions of the APA and shall not be bound by any admission or waiver made herein.
6. The Order or any subsequent Order of the Commissioner made pursuant to this Stipulation and Agreement in Settlement and Order shall not constitute an estoppels, merger, or bar to any further administrative or civil proceeding by the Department with respect to any matters which were not specifically alleged to be cause for accusation this proceeding.
7. Respondents understand that by agreeing to this Stipulation and Agreement in Settlement and Order, Respondents jointly and severally agree to pay, pursuant to Section 10148 of the Business and Professions Code (“herein the Code”), the cost of the audit which resulted in the determination that Respondents committed the trust fund violations found in Paragraph I, below, of the Determination of Issues. The amount of said cost is $4, 418.90.
8. Respondents further understand that by agreeing to this Stipulation and Agreement in Settlement and Order, the findings set forth below in the Determination of Issues have been corrected. The maximum costs of said audit shall not exceed $4,418.90.
Determination of Issues
1. The acts and omissions of Respondents as described in the Accusation are grounds for the suspension or revocation of the licenses and license rights of Respondents under the following provisions of the Code, and /or Regulations:
(a) As to Paragraph 10(a) and PCHI under Section 10145 of the Code and Section 2832 of the Regulations in conjunction with Section 10177(d) of the Code;
(b) As to Paragraph 10(b) and PCHI under Section 10145 of the code and Section 2831 of the Regulations in conjunction with Section 10177(d) of the Code;
(c) As to paragraph 10(d) and PCHI under Section 10145 of the code and Section 2831.2 of the Regulations in conjunction with Section 10177(d) of the Code;
(d) As to Paragraph 10(e) and PCHI under Section 10176(e) of the Code and 2835 of the Regulations;
(e) As to paragraph 11(a) and PCHI under Section 10160 of the Code and Section 2753 of the Regulations in conjunction with Section 10177(d) of the Code;
(f) As to Paragraph 11(b) and PCHI under Section 2726 of the Regulations in conjunction with Section 10177(d) of the Code;
(g) As to Paragraph 12 and PIERCE under Section 10159.2, 10177(g) and (h) of the Code and Section 2725 of the Regulations; and
(h) As to paragraph 13 and MURPHY under Sections 10159.2, 10177(g) and (h) of the Code and Section 2725 of the Regulations.
Order
I
1. Thirty (30) days of said suspension shall be stayed for two (2) years upon the following terms and conditions:
(a) Respondents PCHI shall obey all laws, rules and regulations governing the rights, duties and responsibilities of real estate licensee in the State of California; and
(b) That no final subsequent determination be made, after hearing or upon stipulation, that cause for disciplinary action occurred within two (2) years from the effective date of this Order. Should such a determination be made, the Commissioner may, in his discretion, vacate and set aside the stay order and reimpose all or a portion of the stayed suspension. Should no such determination be made, the stay imposed herein shall become permanent.
2. The remaining thirty (30) days of said 60-day suspension shall be stayed upon the condition that Respondent PCHI petitions pursuant to Section 10175.2 of the Code and pays a monetary penalty pursuant to Section 10175.2 of the Code at a rate of $50.00 for each day of the suspension for a total monetary penalty of $1,500.00:
(a) Said payment shall be in the form of a cashier’s check or certified check made payable to Recovery Account of the Real Estate Fund. Said check must be delivered to the Department prior to the effective date of the Order in this matter.
(b) No further cause for disciplinary action against the real estate licenses of Respondent PCHI occurs within two (2) years from the effective date of the Decision in this matter.
(c) If Respondent PCHI fails to pay the monetary penalty as provided above prior to the effective date of this Order, the stay of the suspension shall be vacated as to Respondent PCHI and the order of suspension shall be immediately executed, under this Paragraph I this Order, in which event Respondent PCHI shall not be entitled to any repayment nor credit, prorated or otherwise, for the money paid to the Department under the terms of this Order.
(d) As to Paragraph 10(d) and PCHI under Section 10145 of the Code and Section 2831.2 of the regulations in conjunction with Section 10177(d) of the Code;
(e) As to Paragraph 10(e) PCHI under Section 10176(e) of the Code and 2835 of the Regulation;
(f) As to Paragraph 11(a) and PCHI under Section 10160 of the Code and Section 2753 of the Regulations in conjunction with Section 10177(d) of the code;
(g) As to Paragraph 11(b) and PCHI under Section 2726 of the Regulations in conjunction with Section 10177(d) of the Code;
(h) As to Pargraph 12 and Pierce under Section 10159.2, 10177(g) and (h) of the Code and Section 2725 of the Regulations; and,
(i) As to Paragraph 13 and Murphy under Sections 10159.2, 10177(g) and (h) of the Code and Section 2725 of the Regulations.
WHEREFORE, Complainant prayers that a hearing be conducted on the allegations of this Accusation and that upon proof thereof a decision be rendered imposing disciplinary action against all licenses and license rights of Respondents under the Real Estate Law (Part 1 of Division 4 of the Business and Professions Code) and for such other and further relief as may be proper under other applicable provisions of law.
It is hereby stipulated by and between Respondents PACIFIC CAPITAL HOLDINGS, INC. (herein “PCHI”), ROBERT STEVEN PIERCE (herein “PIERCE”), and MATTHEW PETER MURPHY (herein “MURPHY”) (Herein jointly “Respondents”), individually and jointly, by and through Mary E. Work, attorney of record herein for Respondents, and the Complainant, acting by and through Mary F. Clarke, Counsel for the Department of Real Estate (herein “the Department”), as follows for the purpose of settling and disposing of the Accusation filed on May 5, 2009, in this matter;
1. All issues which were to contested and all evidence which was to be presented by Complainant and Respondents at a formal hearing on the Accusation, which hearing was to be held in accordance with the provisions of the Administrative Procedure Act (herein APA), shall instead and in place thereof be submitted solely on the basis of the provisions of this Stipulation and Agreement in Settlement and Order.
2. Respondents have received, read and understand the Statement to Respondent, the Discovery Provisions of the APA and the Accusation filed by the Department in this proceeding.
3. A Notice of Defense was file on May 13, 2009, by Respondents pursuant to Section 11505 of the Government Code for the purpose of requesting a hearing on the allegations in the Accusation. Respondents hereby freely and voluntarily withdraw said Notice of Defense. Respondents acknowledge that they understand that by withdrawing said Notice of defense they will thereby waive their right to require the Real Estate Commissioner (herein “Commissioner”) to prove the allegations in the Accusation at a contested hearing held in accordance with the provisions of the APA and that they will waive other rights afforded to them in connection with the hearing such as the right to present evidence in defense of the allegations in the Accusations and the right to cross-examine witnesses.
4. Respondents, pursuant to the limitations set forth below, hereby admit that the factual allegations pertaining to them in the Accusations filed in this proceeding are true and correct (except for Section 2831.1 of Title 10, Chapter 6 of the California Code of Regulations (herein the “regulations”), as described in Paragraphs 10 and 14, subsection (c) on Pages 4 and 5 of the Accusation) and the Commissioner shall not be required to provide further evidence of such allegations.
5. It is understood by the parties that the Commissioner may adopt the Stipulation and Agreement in Settlement and Order as his decision in this matter thereby imposing the penalty and sanctions on Respondents’ real estate licenses and license rights as set forth in the below “Order”. In the event that the Commissioner in his discretion does not adopt the Stipulation and Agreement in Settlement Order, it shall be void and of no effect, and Respondents shall retain the right to hearing and proceeding on the Accusation under all the provisions of the APA and shall not be bound by any admission or waiver made herein.
6. The Order or any subsequent Order of the Commissioner made pursuant to this Stipulation and Agreement in Settlement and Order shall not constitute an estoppels, merger, or bar to any further administrative or civil proceedings by the Department with respect to any matters which were not specifically alleged to be causes for accusation in this proceeding.
7. Respondents understand that by agreeing to this Stipulation and Agreement in Settlement and Order. Respondents jointly and severally agree to pay, pursuant to Section 10148 of the Business and Professions Code (“herein the Code”), the cost of the audit which resulted in the determination that respondents committed the trust fund violations found in Paragraph I, below, of the Determination of Issues. The amount of said cost is $4,418.90.
8. Respondents further understand that by agreeing to this Stipulation and Agreement in Settlement and Order, the findings set forth below in the Determination of Issues become final, and that the Commissioner may charge said Respondents, jointly and severally, for the costs of any audit conducted pursuant to Section 10148 of the Code to determine if the trust fund violations found in Paragraph I, below, of the Determination of Issues have been corrected. The maximum costs of said audit shall not exceed $4,418.90.
DETERMINATION OF ISSUES
The acts and omissions of Respondents as described in the Accusation are grounds for the suspension or revocation of the licenses and license rights of Respondents under the following provisions of the Code, and/or Regulations:
(a) as to Paragraph 10(a) and PCHI under Section 10145 of the Code and Section 2832 of the Regulations in conjunction with Section 10177(d) of the Code;
(b) as to Paragraph 10(b) and PCHI under Section 10145 of the Code and Section 2831 of the Regulations in conjunction with Section 10177(d) of the Code;
(c) as to Paragraph 10(d) and PCHI under Section 10145 of the Code and Section 2831.2 of the Regulations in conjunction with Section 10177(d) of the Code;
(d) as to Paragraph 10(e) and PCHI under Section 10176(e) of the Code and 2835 of the Regulations;
(e) as to Paragraph 11(a) and PCHI under Section 10160 of the Code and Section 2753 of the Regulations in conjunction with Section 10177(d) of the Code;
(f) as to Paragraph 11(b) and PCHI under Section 2726 of the Regulations in conjunction with Section 10177(d) of the Code;
(g) as to Paragraph 12 and PIERCE under Sections 10159.2, 10177(g) and (h) of the Code and Section 2725 of the Regulations; and,
(h) as to Paragraph 13 and MURPHY under Section 10159.2, 10177(g) and
(i) of the Code and Section 2725 of the Regulations.
ORDER
I
1. Thirty (30) days a said suspension shall be stayed for two (2) years upon the following terms and conditions:
(a) Respondent PCHI shall obey all law, rules and regulations governing the rights, duties and responsibilities of a real estate licensee in the State of California; and,
(b) That no final subsequent determination be made, after hearing or upon stipulation, that cause for disciplinary action occurred within two (2) years from the effective date of this order. Should such a determination be made, the Commissioner may, in his discretion, vacate and set aside the stay order and reimpose all or a portion of the stayed suspension. Should no such determination be made, the stay imposed herein shall become permanent.
2. The remaining thirty (30) days of said 60-day suspension shall be stayed upon the condition that Respondent PCHI petitions pursuant to Section 10175.2 of the Code and pays a monetary penalty pursuant to Section 10175.2 of the Code at a rate of $50.00 for each day of the suspension for a total monetary penalty of $1,500.00:
(a) Said payment shall be in the form of a cashier’s check or certified check made payable to the Recovery Account of the Real Estate Fund. Said check must be delivered to the Department prior to the effective date of the Order in this matter.
(b) No further cause for disciplinary action against the real estate licenses of Respondent PCHI occurs within two (2) years from the effective date of the Decision in this matter.
(c) If Respondent PCHI fails to pay the monetary penalty as provided above prior to the effective date of this Order, the stay of the suspension shall be vacated as to Respondent PCHI and the order of suspension shall be immediately executed, under this Paragraph I of this Order, in which event Respondent PCHI shall not be entitled to any repayment nor credit, prorated or otherwise, for the money paid to the Department under the terms of this Order.
(d) If Respondent PCHI pays the monetary penalty and any other moneys due under this Stipulation and Agreement in Settlement and Order and if no further cause disciplinary action against the real estate license of Respondent PCHI occurs within two (2) years from the effective date of this Order, the entire stay hereby granted under Paragraph I of this Order, as to Respondent PCHI only, shall become permanent.
3. Pursuant to Section 10148 of the Code, Respondent PCHI, shall, jointly and severally with Respondent PIERCE and MURPHY pay the sum of $4,418.90 for the Commissioner’s cost of the audit which led to this disciplinary action. Respondents shall pay such cost within sixty (60) days of receiving an invoice therefor from the Commissioner. The Commissioner may indefinitely suspend all licenses and licensing rights pending a hearing held in accordance with Section 11500, et seq., of the Government Code, if payment is not timely made as provided for herein, or as provided for in a subsequent agreement between Respondent PCHI and the Commissioner. The suspension shall remain in effect until payment is made in full or until Respondent PCHI enters into an agreement satisfactory to the Commissioner to provide for payment, or until a decision providing otherwise is adopted following a hearing held pursuant to this condition.
(e) Respondents PCHI, PIERCE, and MURPHY, jointly and severally, shall pay the Commissioner’s costs, not to exceed $4,418.90, of any audit conducted pursuant to Section 10148 of the Code to determine if Respondents have corrected the violations described in Paragraph I of the Determination of Issues, above. In calculating the amount of the Commissioner’s reasonable cost, the Commissioner may use the estimated average hourly salary for all persons performing audits of real estate brokers, and shall include an allocation for travel time to and from the auditor’s place of work. Respondents shall pay such cost within sixty (60) days may indefinitely suspend all licenses and licensing rights of Respondent PCHI under the Real Estate Law until payment is made in full or until Respondent PCHI enters into an agreement satisfactory to the Commissioner to provide for payment. Upon payment in full, the indefinite suspension provided in this paragraph shall be stayed.
II
1. Respondent PIERCE shall obey all laws, rules and regulations governing the rights, duties and responsibilities of a real estate licensee in the State of California; and
2. That no final subsequent determination be made, after hearing or upon stipulation, that cause for disciplinary action occurred within two (2) years from the effective date of this Order. Should such a determination be made, the Commissioner may, in his discretion, vacate and set aside the stay order and reimpose all or a portion of the stayed suspension. Should no such determination be made, the stay imposed herein shall become permanent.
2 The remaining thirty (30) days of said 60-day suspension shall be stayed upon the condition that Respondent PIERCE petition pursuant to Section 10175.2 of the Code and pays a monetary penalty pursuant to Section 10175.2 of the Code at a rate of $50.00 for each day of the suspension for a total monetary penalty of $1,500.00:
a) Said payment shall be in the form of a cashier’s check or certified check made payable to Recovery Account of the Real Estate Fund. Said check must be delivered to the Department prior to the effective date of the Order in this matter.
b) No further cause of disciplinary action against the real estate license of Respondent PIERCE occurs within two (2) years from the effective date of the Decision in this matter.
c) If Respondent PIERCE fails to pay the monetary penalty as provided above prior to the effective date of this Order, the stay of the suspension shall be vacated as to Respondent PIERCE and the order of suspension shall be immediately executed, under this Paragraph II of this Order, in which even Respondent PIERCE shall not be entitled to any repayment nor credit, prorated or otherwise, for the money paid to the Department under the terms of this Order.
d) If Respondent PIERCE pays the monetary penalty and any other moneys due under this Stipulation and Agreement in Settlement and order and if no further cause for disciplinary action against the real estate license of Respondent PIERCE occurs within two (2) years from the effective date of this Order, the entire stay hereby granted Paragraph II of this Order, as to respondent PIERCE only shall become permanent.
3. Pursuant to Section 10148 of the Code, Respondents PIERCE, PCHI, and MURPHY shall, jointly and severally, pay the sum of $4,418.90 for the Commissioner’s cost of the audit which led to this disciplinary action. Repondents shall pay such cost within sixty (60) days of receiving an invoice therefor from the Commissioner. The Commissioner may indefinitely suspend all licenses and licensing rights pending a hearing held in accordance with Section 11500, et seq., of the Government Code, if payment is not timely made as provided for herein, or as provided for in a subsequent agreement between Respondent PIERCE and Commissioner. The suspension shall remain in effect until payment is made in full or until Respondent PIERCE enters into an agreement satisfactory to the Commissioner to provide for payment, or until a decision providing otherwise is adopted following a hearing held pursuant to this condition.
4. Respondents PIERCE, PCHI, and MURPHY, jointly and severally, shall pay the Commissioner’s costs, not to exceed $4,418.90 of any audit conducted pursuant to Section 10148 of the Code to determine if Respondents have corrected the violations described in Paragraph I of the Determination of Issues, above. In calculating the amount of the Commissioner’s reasonable cost, the Commissioner may use the estimated average hourly salary for all persons performing audits of real estate brokers, and shall include an allocation for travel time to and from the auditor’s place of work. Respondents shall pay such cost within sixty (60) days of receiving an invoice therefore from the Commissioner detailing the activities performed during the audit and the amount of time spent performing those activities. If Respondents fail to pay such cost within the sixty (60) days, the Commissioner may indefinitely suspend all licenses and licensing rights of Respondent PIERCE enters into an agreement satisfactory to the Commissioner to provide for payment. Upon payment in full, the indefinite suspension provided in this paragraph shall be stayed.
5. Respondent PIERCE shall, within six (6) months from the effective date of the Decision, take and pass the Professional Responsibility Examination administered by the Department, including the payment of the appropriate examination fee. If Respondent PIERCE fails to satisfy this condition, the Commissioner may order the suspension of the license until Respondent PIERCE passes the examination.
III
(a) Respondent MURPHY shall obey all laws, rules and regulations governing the rights, duties and responsibilities of a real estate licensee in the State of California; and
(b) That no final subsequent determination be made, after hearing or upon stipulation, that cause for disciplinary action occurred within two (2) years from the effective date of this Order. Should such a determination be made, the Commissioner may, in his discretion, vacate and set aside the stay order and reimpose all or a portion of the stayed suspension. Should no such determination be made, the stay imposed herein shall become permanent.
(a) Said payment shall be in the form of a cashier’s check or certified check made payable to the Recovery Account of the Real Estate Fund. Said check must be delivered to the Department prior to the effective date of the Order in this matter.
(b) No further cause for disciplinary action against the real estate licenses of Respondent MURPHY occurs within two (2) years from the effective date of the Decision in this matter.
(c) If Respondent MURPHY Fails to pay the monetary penalty as provided above prior to the effective date of this Order, the stay of the suspension shall be vacated as to Respondent MURPHY and the order of suspension shall be immediately executed, under this Paragraph III of this Order, in which event Respondent MURPHY shall not be entitled to any repayment nor credit, prorated or otherwise, for the money paid to the Department under the terms of this Order.
(d) If Respondent MURPHY pays the monetary penalty and any other moneys due under this Stipulation and Agreement in Settlement and Order and if no further cause for disciplinary action against the real estate license of Respondent MURPHY occurs within two (2) years from the effective date of this Order, the entire stay hereby granted under Paragraph II of this Order, as to Respondent MURPHY only, shall become permanent.
Respondents shall pay such cost within sixty (60) days of receiving an invoice therefore from the Commissioner detailing the activities performed during the audit and the amount of time spent performing those activities. If Respondents fail to pay such cost within the sixty (60) days, the Commissioner may indefinitely suspend all licenses and licensing rights of Respondent MURPHY under the Real Estate Law until payment is made in full or until Respondent MURPHY enters in to an agreement satisfactory to the Commissioner to the Commissioner to provide for payment. Upon payment in full, the indefinite suspension provided in this paragraph shall be stayed.
Dated: 11/18/2009
Counsel: Mary F. Clarke
Department of Real Estate
We have read the Stipulation and Agreement in Settlement and Order and its terms are understood by us and are agreeable and acceptable to us, We understand that we are waiving rights given to us by the California APA (including but not limited to Section 11506, 11508, 11509, and 11513 of the Government Code), and we willingly, intelligently, and voluntarily waive those rights, including the right of requiring the commissioner to prove the allegations in the Accusation at a hearing at which we would have the right to cross-examine witnesses against us and to present evidence in defense and mitigation of the charges.
PACIFIC CAPITAL HOLDINGS, INC., RESPONDENT
Designated Office – Broker: Robert Steven Pierce
Dated: 11/09/2009
Signed By: Robert Steven Pierce
Respondent: Robert Steven Pierce
Dated: 11/09/2009
Respondent: Mathew Peter Murphy
Dated: 11/05/2009
I have reviewed the Stipulation and Agreement and Order as to form and content and have advised my clients accordingly.
Attorney for Respondents
Dated: 11/12/2009
The foregoing Stipulation and Agreement in Settlement and Order is hereby adopted by me as my Decisions in this matter and shall become effective at 12 o’clock noon on January 5, 2010
It is so ordered 12/09/2009
Signed by: Jeff Davi
Real Estate
Commissioner: Jeff Davi
by
CERTIFIED MAIL, AND BY REGULAR U.S. MAIL
CASE NUMBER(s): 11-O-14288
I, the undersigned, over the age of eighteen (18) years, whose business address and place of employment is the State Bar of California, 180 Howard Street, San Francisco, California 94105, declare that I am not a party to the within action; that I am readily familiar with the State Bar of California’s practice for collection and processing of correspondence for mailing with the United States Postal Service; that in the ordinary course of the State Bar of California’s practice, correspondence collected and processed by the State Bar of California would be deposited with the United States Postal Service that same day; that I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date on the envelope or package is more than one day after date of deposit for mailing contained in the affidavit; and that in accordance with the practice of the State Bar of California for collection and processing of mail, I deposited or placed for collection and mailing in the City and County of San Francisco, on the date shown below, a true copy of the within
NOTICE OF DISCIPLINARY CHARGES
in a sealed envelope placed for collection and mailing as certified mail, return receipt requested,
Article No.: 7160 3901 9849 1845 7990, at San Francisco, on the date shown below, addressed to:
Edward O. Lear
3200 West Century Blvd., Suite 345
Los Angeles, CA 90045
in an inter-office mail facility regularly maintained by the State Bar of California addressed to:
N/A
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct. Executed at San Francisco, California, on the date shown below.
Dated: October 5, 2011
Signed:
Meagan McGowan
by
Regular Mail
CASE NUMBER(s): 11-O-14288
I, the undersigned, over the age of eighteen (18) years, whose business address and place of employment is the State Bar of California, 180 Howard Street, San Francisco, California 94105, declare that I am not a party to the within action; that I am readily familiar with the State Bar of California’s practice for collection and processing of correspondence for mailing with the United States Postal Service; that in the ordinary course of the State Bar of California’s practice, correspondence collected and processed by the State Bar of California would be deposited with the United States Postal Service that same day; that I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date on the envelope or package is more than one day after date of deposit for mailing contained in the affidavit; and that in accordance with the practice of the State Bar of California for collection and processing of mail, I deposited or placed for collection and mailing in the City and County of San Francisco, on the date shown below, a true copy of the within
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING
in a sealed envelope placed for collection and mailing at San Francisco, on the date shown below, addressed to:
Ed Lear, Esq.
5200 West Century Blvd., Suite 345
Los Angeles, CA 90045
in an inter-office mail facility regularly maintained by the State Bar of California addressed to:
N/A
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed at San Francisco, California, on the date shown below.
Dated: December 22, 2011
Signed: Araceli Pallen
Declarant:
Araceli Pallen
[Rules Proc. of State Bar; Rule 5.27(B); Code Civ. Proc., § 1013a(4)]
I am a Case Administrator of the State Bar Court of California. I am over the age of eighteen and not a party to the within proceeding. Pursuant to standard court practice, in the City and
County of San Francisco, on December 29, 2011, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND
DISPOSITION AND ORDER APPROVING
in a sealed envelope for collection and mailing at San Francisco, on the date shown below, addressed to:
checked. by first-class mail, with postage thereon fully prepaid, through the United States Postal Service at San Francisco, California, addressed as follows:
EDWARD O. LEAR
CENTURY LAW GROUP LLP
5200 W CENTURY BLVD #345
LOS ANGELES, CA 90045
<<not>> checked. by certified mail, No. , with return receipt requested, through the United States Postal Service at , California, addressed as follows:
<<not>> checked. by overnight mail at , California, addressed as follows:
<<not>> checked. By personal service by leaving the documents in a sealed envelope or package clearly labeled to identify the attorney being served with a receptionist or a person having charge of the attorney’s office, addressed as follows:
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Robin Brune, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San Francisco, California, on December 29, 2011
Signed by: George Hue
Case Administrator: George Hue
State Bar Court