Filed 6/10/22 Ioane v. Cal. Dept. of Real Estate CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

MICHAEL SCOTT IOANE, SR.,

Plaintiff and Appellant,

v.

CALIFORNIA DEPARTMENT OF REAL 

ESTATE,

Defendant and Respondent.

F082864

(Super. Ct. No. 20CV-02520)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Merced County. Donald J. 

Proietti, Judge.

Michael Scott Ioane, Sr., in pro. per., for Plaintiff and Appellant.

Rob Bonta, Attorney General, Tamar Pachter, Assistant Attorney General, Molly 

K. Mosley and Robert E. Asperger, Deputy Attorneys General, for Defendant and 

Respondent.

-ooOoo-

* Before Franson, Acting P. J., Peña, J. and Smith, J.
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Plaintiff Michael Scott Ioane, Sr., appeals from a judgment denying his petition 

for writ of administrative mandate challenging the revocation of his broker’s license by 

the Commissioner of the Department of Real Estate (DRE). The basis for the revocation 

was Ioane’s failure to report information about a 2012 felony conviction in his broker 

renewal application. Ioane contends (1) the grounds for discipline stated in the DRE’s 

accusation did not provide him adequate notice of the grounds ultimately relied upon by 

the DRE, (2) the superior court erred by relying on a ground not relied upon by the DRE, 

and (3) he provided truthful answers on the renewal application, the DRE already had a 

file containing information about the federal criminal case, and he supplied the details 

when asked for a supplemental disclosure by the DRE. As explained below, we reject 

these contentions. 

We therefore affirm the judgment.

FACTS

In December 1988, the DRE issued Ioane a restricted real estate broker license. In 

May 1991, the DRE issued an unrestricted real estate broker license to him. 

In April 2009, an indictment was filed in the United States District Court, Eastern 

District of California, charging Ioane and two other defendants with conspiring to 

defraud the United States (18 U.S.C. § 371) and presenting false or fictitious financial 

documents to the Internal Revenue Service (18 U.S.C. §§ 2, 514). 

In October 2011, a federal jury found Ioane guilty on one felony count of 

conspiracy to defraud the United States and four felony counts of presenting false or 

fictitious financial documents. In January 2012, the district court sentenced Ioane to 

108 months in prison, running concurrently with supervised release for 36 months. 

In August 2015, while in prison, Ioane told his wife to complete and submit a 

broker renewal application to the DRE. He provided directions to her over the telephone 

and told her to sign the application on his behalf. Item 16 of the application asked if the 
3

applicant had been convicted of any violation of the law at the misdemeanor or felony 

level within the prior six-year period. Ioane’s wife marked the box designated “Yes.” 

Item 16 also instructed the applicant to complete item 22 for all such convictions. On the 

dotted line immediately before the yes and no boxes in item 16, Ioane’s wife typed: 

“You have file.” 

Item 22 contains eight columns with headings for (1) the name and address of the 

court of conviction, (2) the arresting agency, (3) the date of conviction, (4) whether the 

conviction was for a felony or misdemeanor, (5) the code section violated, (6) the code 

violated, (7) the disposition (i.e., the sentence), and (8) the case number. Ioane’s renewal 

application contained no information in response to item 22. Ioane’s wife did not provide 

the conviction details because Ioane told her that the DRE would have the conviction 

information and “not to worry about it.” He also told her that if the DRE wanted more 

information about his convictions he would “ ‘figure it out.’ ”

The instructions to item 22 require the applicant to complete one line for each 

conviction. If the applicant is unable to provide the information, the instructions require 

all the requested information the applicant can obtain, with an explanation for the missing 

information. Item 28 is designated “SIGNATURE OF APPLICANT (MUST BE AN 

ORIGINAL SIGNATURE)” and appears immediately after four paragraphs labeled 

“Broker Certification.” The first sentence of the certification states: “I certify under 

penalty of perjury that the answers and statements given in this application are true and 

correct and that if licensed I will not violate any provisions of the Real Estate Law nor 

abuse the privileges of a real estate licensee.” Ioane’s wife signed his name and entered 

August 19, 2015, as the date. 

On September 28, 2015, the DRE sent Ioane a letter stating some of the required 

contact information was missing from his renewal application. The letter asked for 

three telephone numbers and a business email address. Ioane filled in the letter’s blanks 
4

with the required telephone numbers and email address. The completed letter was 

received by the DRE on November 30, 2015. 

In a letter dated December 11, 2015, the DRE advised Ioane that his “renewal 

application contained a violation conviction question that was either not answered or did 

not include sufficient explanation.” The letter’s first question asked if Ioane had ever 

been convicted of any violation of law. Ioane answered “Yes.” Based on this answer, 

the letter directed Ioane to “provide the date of conviction, a brief description of exactly 

what the conviction was for, the type of code and the code number that you were 

convicted of, whether it was a misdemeanor or felony at the time the conviction occurred, 

the original sentences imposed, and charges in disposition.” The letter also instructed 

Ioane to provide a complete disclosure in part III, to personally sign where indicated on 

the form, and to sign each page of any additional attachments. 

In the blank area of the letter’s part III, Ioane explained two misdemeanor 

convictions that occurred before he received his license. The administrative law judge 

found his supplemental disclosure did not include an additional page. Immediately below 

part III, Ioane signed and dated the supplemental disclosure. Ioane’s petition asserted the 

supplemental disclosure mailed to the DRE included a third, handwritten page describing 

two misdemeanor convictions in 1999 and the federal felonies involving a conspiracy to 

evade payment of tax and related aiding and abetting charges. The supplemental 

disclosure stated that the federal tax was owed by his clients (a corporate business of a 

doctor and his wife), no restitution was owed, and the doctor was paying the $207,000 in 

taxes owed. 

In June 2017, Ioane sent a letter to the DRE that attached a complete copy of the 

supplemental disclosure, which included the third, handwritten page describing his 

federal conviction. He also stated he was appealing the conviction and enclosed a copy 

of filings made in the Ninth Circuit and United States Supreme Courts. 
5

In July 2017, the DRE filed an accusation against Ioane alleging he concealed and 

failed to disclose his 2012 federal felony convictions in his responses to items 16 and 22 

of the original broker renewal application. The accusation alleged Ioane’s failure to 

report the conviction was an attempt to procure a license renewal by fraud, 

misrepresentation or deceit, which was cause for revocation of his real estate license. In 

response to the accusation, Ioane submitted a notice of defense to the DRE. Ioane’s

notice of defense asserted that the accusation was false and that Ioane had made a full and 

complete disclosure of all convictions in his December 2015 supplemental disclosure. 

In January 2018, the DRE issued an order suspending Ioane’s license and 

notifying him of his rights to a hearing. The order was mailed to Ioane at the Taft 

Correctional Institution. Ioane requested a hearing and stated he was currently under a 

legal disability. In August 2019, the license expired and it has not been renewed. 

On June 23, 2020, a telephonic hearing was held before an administrative law 

judge of the Office of Administrative Hearings. In July 2020, the administrative law 

judge issued her proposed decision. The decision’s factual findings 5 through 8 

described Ioane’s wife’s completion of the renewal application and the responses given to 

items 16 and 22. The factual findings also described the testimony of Ioane and his wife 

about the completion of the renewal application and the various assumptions he made. 

Ioane stated that (1) he did not possess detailed information about his convictions 

because of his incarceration; (2) he assumed the DRE “ ‘had some responsibility’ ” for 

locating the information; (3) the DRE knew about the conviction and that he was 

incarcerated; and (4) he assumed the DRE “ ‘did regular checks’ ” on his criminal 

background. Ioane also stated he assumed the California Franchise Tax Board, which 

also had a case against him, had all his conviction information and “ ‘would have sent its 

file to [the] DRE.’ ” 
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The administrative law judge addressed the accusation’s charges in the following 

findings:

“The instructions clearly stated that he was to provide an explanation for 

missing conviction information. Even if [Ioane] did not have detailed 

conviction information with him in prison, he could have said so in 

Item 22, but chose not to do so. His omissions were serious. He was 

careless in assuming his ‘Yes’ and ‘You have file’ responses to Question 16 

were adequate to answer the clearly stated directions provided by the 

application. [Ioane’s] failure to disclose conviction details on his 

application constitutes an attempt to procure a license renewal by fraud, 

misrepresentation, or deceit.... In addition to his intentional omissions, 

[Ioane] was dishonest when he had Mrs. Ioane complete and forge his 

signature on the application under penalty of perjury, and certifying that all 

of the information in the application was true and correct. [Ioane] is 

reminded that holding a real estate license is a privilege, and his conduct in 

this case was an abuse of that privilege. 

“[¶] ... [¶]

“[Ioane] claimed there is no basis for revocation of his license because he 

provided his conviction details to DRE in the supplemental disclosure. 

[Ioane’s] testimony in this regard was unpersuasive. He disclosed his 

conviction details in a supplemental disclosure, only after failing to provide 

his conviction details on his application. His obligation was to first provide 

his conviction details on the application, not for the first time in the 

supplemental disclosure.” 

The legal conclusions in the proposed decision stated that cause existed to revoke 

Ioane’s license because he “failed to disclose his convictions on his application, 

constituting an attempt to procure a license renewal based on fraud, misrepresentation, or 

deceit, based on Factual Findings 5 through 8, and 15 through 20.” The decision also 

noted that Ioane’s convictions, which involved conspiracy and fraud, had not been 

alleged as a basis for discipline. 

On August 5, 2020, the DRE filed the administrative law judge’s proposed 

decision. A week later, the DRE’s Commissioner adopted the proposed decision in full. 
7

PROCEEDINGS

In September 2020, Ioane filed a petition for writ of mandate and requested an 

immediate stay or injunctive relief. The petition asserted, among other things, that the 

DRE failed to prove he tried to renew his broker’s license by misrepresentation, fraud or 

deceit. In Ioane’s view, the DRE merely proved the details of his felony conviction were 

not supplied on the original license renewal application. 

After the administrative record was lodged with the superior court and the parties 

filed their briefs, the court issued a tentative ruling and then held a hearing on April 12, 

2021. The superior court denied Ioane’s petition for writ of administrative mandate, 

which had the effect of confirming the revocation. The court’s written order stated:

“[Ioane’s] conviction for conspiracy to defraud by itself constituted 

sufficient grounds for license revocation; however, [he] compounded this 

deception by concealing the fact of his incarceration. Exercising its 

independent judgment, this court finds that the Commissioner proper[l]y 

determined that [Ioane] was subject to profess[s]ional discipline and the 

Commissioner did not abuse his discretion by determining that the 

approp[ri]ate discipline was license revocation. This Court further finds 

that, under the circumstances, revocation of [Ioane’s] license is in the 

Public’s Interest.” 

On April 29, 2021, the superior court filed a judgment stating it had issued an 

order denying the petition for writ of mandate, dismissing the action in its entirety, and 

awarding the DRE its costs of suit. A notice of entry of judgment was filed in June 2021. 

Ioane filed a timely appeal.

DISCUSSION

I. JUDICIAL REVIEW OF LICENSE REVOCATIONS

A. Superior Court Review

Superior court review of administrative decisions is governed by Code of Civil 

Procedure section 1094.5, which states in relevant part:
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“(b) The inquiry in such a case shall extend to the questions whether the 

respondent has proceeded without, or in excess of, jurisdiction; whether 

there was a fair trial; and whether there was any prejudicial abuse of 

discretion. Abuse of discretion is established if the respondent has not 

proceeded in the manner required by law, the order or decision is not 

supported by the findings, or the findings are not supported by the 

evidence. 

“(c) Where it is claimed that the findings are not supported by the evidence, 

in cases in which the court is authorized by law to exercise its independent 

judgment on the evidence, abuse of discretion is established if the court 

determines that the findings are not supported by the weight of the 

evidence.”

“The statute distinguishes between ‘cases in which the court is authorized by law 

to exercise its independent judgment on the evidence’ [citation] and cases in which the 

court is not so authorized.” (Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 51 

(Kazensky).) Sometimes the authority to exercise independent judgment is statutory. 

(Ibid.) Other times the authority exists because “the order or decision of the agency 

substantially affects a fundamental vested right ....” (Strumsky v. San Diego County 

Employees Retirement Assn. (1974) 11 Cal.3d 28, 32.) In cases involving a fundamental 

vested right, the superior court must determine whether there has been an abuse of 

discretion because the findings are not supported by the evidence. In conducting this 

inquiry, the superior court must exercise its independent judgment on the evidence and 

must find an abuse of discretion if the agency’s findings are not supported by the weight 

of the evidence. (Ibid.; see Kazensky, at p. 51.)

Here, it is undisputed that the DRE’s revocation of Ioane’s license affected a 

fundamental vested right. A “real estate broker’s license is a ‘vested’ right.” (Milner v. 

Fox (1980) 102 Cal.App.3d 567, 571, fn. 5.) As a result, “the administrative decision is 

reviewed by means of a limited trial de novo in which the trial court not only examines 

the record for errors of law but also exercises its independent judgment upon the weight
9

of the evidence produced before the administrative agency, together with any further 

evidence properly admitted by the court.” (Ibid.)

B. Appellate Court Review

“ ‘Where a superior court is required to make such an independent judgment upon 

the record of an administrative proceeding, the scope of review on appeal is limited. An 

appellate court must sustain the superior court’s findings if substantial evidence supports 

them.’ ” (Kazensky, supra, 65 Cal.App.4th at p. 52.) When reviewing the evidence, 

appellate courts resolve all conflicts in favor of the party prevailing in the superior court 

and give that party the benefit of every reasonable inference in support of the judgment. 

(Ibid.) An appellate court may not substitute its inferences for those of the superior court. 

(Ibid.) 

A superior court’s potential errors are not limited to making findings that are 

based on insufficient evidence. A superior court’s decision also is subject to reversal if it 

“is based on an erroneous conclusion of law” or if the court “failed to make a necessary 

factual determination.” (Kazensky, supra, 65 Cal.App.4th at p. 53.)

In this appeal, Ioane invokes the legal principle that “ ‘an agency’s order must be 

upheld, if at all, “on the same basis articulated in the order by the agency itself.” ’ ” 

(Pacific Gas & Electric Co. v. Public Utilities Com. (2000) 85 Cal.App.4th 86, 96–97.) 

II. IOANE’S CLAIMS OF REVERSIBLE ERROR

As described below, a consistent thread running through this case is Ioane’s failure 

to accurately interpret written documents. Those written documents include the renewal 

application, the accusation, the DRE’s decision, and the superior court’s decision. We 

conclude those documents are subject to the rules applied to determine the meaning of 

any other writing. (See Panterra GP, Inc. v. Superior Court (2022) 74 Cal.App.5th 697, 

708 [appellate courts independently construe pleadings]; Mendly v. County of Los 

Angeles (1994) 23 Cal.App.4th 1193, 1205 [meaning of a court order or judgment 
10

determined under same rules applied to other writings]; Verner v. Verner (1978) 77 

Cal.App.3d 718, 724 [same].)

A. Grounds Alleged in the Accusation

First, we consider Ioane’s argument about whether the accusation adequately 

notified him of the causes for discipline. Paragraph 3 of the accusation refers to items 16 

and 22 of the renewal application and asserts Ioane “concealed and failed to disclose the 

conviction described below in Paragraph 4.” Paragraph 4 referred to the federal felony 

convictions for conspiracy to defraud the United States and four counts of presenting 

false or fictitious documents. 

The grounds for discipline were stated in paragraph 5 of the accusation as Ioane’s 

“failure to report the conviction described above in Paragraphs 3 and 4,” which failure 

constituted cause under Business and Professions Code section 10177, subdivision (a) for 

suspension or revocation of his license, as an “attempt to procure a license renewal by 

fraud, misrepresentation, or deceit.” 

Ioane’s argument on appeal refers to the factual finding No. 18 in the DRE’s 

decision. That finding mentions Ioane’s argument that he provided his conviction details 

to the DRE in the supplemental disclosure and treats Ioane’s argument as beside the 

point. In particular, the finding stated: “[Ioane] disclosed his conviction details in a 

supplemental disclosure, only after failing to provide his conviction details on his 

application. His obligation was to first provide his conviction details on the application, 

not for the first time in the supplemental disclosure.” (Italics added.) In comparing the 

wording of the accusation to the wording of the DRE’s decision, Ioane contends the 

suspension cannot stand because the “accusation was failure to disclose, not failure to 

supply details.” As described below, we conclude Ioane’s “failing to provide his 

conviction details on his application,” which is the ground given in the DRE’s decision, is 
11

the equivalent of the “failure to report the conviction” stated in paragraph 5 of the 

accusation. 

First, paragraphs 3 and 4 of the accusation plainly refer to Ioane’s responses to 

items 16 and 22 in the renewal application and the “failure to report” the federal 

convictions. Reading the accusation’s phrase “failure to report” together with the other 

language used in paragraphs 3 through 5 of the accusation and with the instructions in the 

renewal application, the only reasonable interpretation of that phrase is that Ioane failed 

“to report [the information about] the convictions” in accordance with the requirements 

of item 22’s instructions. Those instructions and the heading to the eight columns in 

item 22 required Ioane to report specific information (i.e., details) about his conviction, 

which he did not do. 

Second, the DRE’s decision referred to Ioane’s “failing to provide his conviction 

details on his application” as the ground for revoking his license. (Italics added.) This 

reference to conviction details on the application (as opposed to the supplemental 

disclosure) plainly means the specific information required by item 22. 

Based on the foregoing interpretation of the accusation and the DRE’s decision, 

we reject Ioane’s contention that his right to due process was violated because (1) the 

accusation did not give him adequate notice of the grounds for the revocation, or (2) the 

DRE’s decision to revoke his license was based on grounds different from those set forth 

in the accusation. In short, Ioane’s interpretations of the allegations in the accusation and 

of the basis for the DRE’s decision are not accurate. 

B. Grounds for Superior Court’s Decision

Ioane also contends the superior court’s decision was based on a ground not 

invoked by the DRE. Ioane supports this contention by quoting the following portion of 

the superior court’s order: “[Ioane’s] conviction for conspiracy to defraud by itself 
12

constituted sufficient grounds for license revocation; however, [he] compounded this 

deception by concealing the fact of his incarceration.” 

Ioane’s argument, like his renewal application, omits language that is important to 

determining the document’s meaning. Ioane’s argument implies that the foregoing 

sentence is the actual basis upon which the superior court upheld the DRE’s decision. It 

is not. The superior court’s decision went on to state: 

“Exercising its independent judgment, this court finds that the

Commissioner proper[l]y determined that [Ioane] was subject to 

profess[s]ional discipline and the Commissioner did not abuse his 

discretion by determining that the approp[ri]ate discipline was license 

revocation. This Court further finds that, under the circumstances, 

revocation of [Ioane’s] license is in the Public’s Interest.”

This statement shows the superior court applied the correct standard of review—

that is, independent judgment—and determined the DRE’s Commissioner properly 

determined Ioane was subject to discipline. The statement about a proper determination 

must be read in context, which is provided in part by the DRE’s decision. The DRE’s 

decision explicitly stated that Ioane’s “convictions, though not alleged as a basis for 

discipline here, involved conspiracy and fraud” and were substantially related to the 

qualifications of a real estate licensee. As a result of this statement and the cause for 

revocation explicitly stated in the DRE’s decision, the DRE determined Ioane was subject 

to discipline because he failed to disclose his convictions on the original renewal 

application in accordance with the instructions to items 16 and 22. 

As a result, the superior court’s determination, which was based on the court’s 

independent judgment that the DRE’s Commissioner properly determined license 

revocation was the appropriate discipline, is reasonably interpreted as meaning the 

superior court found Ioane failed to provide details about his federal convictions in 

accordance with the renewal application’s instructions and, moreover, that failure was 
13

deceitful. Thus, reading the entire superior court decision, we interpret it as establishing 

the superior court did not rely on a ground different from that relied upon by the DRE. 

C. Truthful Answers

Ioane contends he gave truthful answers on the renewal application and, therefore, 

the DRE’s determination that he attempted to procure a license renewal based on fraud, 

misrepresentation, or deceit cannot stand. We reject this contention because he did not 

provide any information in response to item 22 of the renewal application. His omission 

of the required information qualifies as fraud or deceit because the administrative law 

judge, the DRE’s Commissioner, and the superior court all could infer an intention to 

deceive because (1) some of the information was available to Ioane and (2) Ioane failed 

to follow the instructions and provide an explanation for why that information was not 

available. That explanation would have informed the DRE that Ioane was in prison. 

Based on the information in the administrative record about Ioane’s federal 

convictions, it is highly improbable (and, therefore, not believable) that Ioane could not 

provide the name of the court and the city where he was convicted. While he might have 

forgotten the street address, the triers of fact reasonably could have found it was 

improbable that he forgot where his jury trial was held and that it was a federal court 

proceeding. Similarly, it is improbable he would have been unable to remember if he 

was convicted of felonies or misdemeanors. As a result, we conclude the superior court’s 

finding of deceit, like the DRE’s finding, is supported by substantial evidence. Ioane’s 

contention that “there is simply no evidence of fraud, dishonesty or deceit, i.e., 

suppression of a fact, by one bound to disclose it” misses the point that substantial 

evidence can be circumstantial. In other words, there does not need to be direct evidence 

of his state of mind. As our Supreme Court has stated in criminal appeals: “ ‘Evidence 

of a defendant’s state of mind is almost inevitably circumstantial, but circumstantial 

evidence is as sufficient as direct evidence to support a conviction.’ ” (People v. Nguyen
14

(2015) 61 Cal.4th 1015, 1055.) This principle applies with equal force to findings made 

in civil proceedings. For instance, in Gemini Aluminum Corp. v. California Custom 

Shapes, Inc. (2002) 95 Cal.App.4th 1249, the Fourth District quoted an earlier case for 

the principle that “ ‘[a] subjective state of mind will rarely be susceptible of direct proof; 

usually the trial court will be required to infer it from circumstantial evidence.’ ” (Id. at 

p. 1263.) Here, the superior court’s finding of Ioane’s intent to deceive is supported by 

substantial, circumstantial evidence. 

In summary, Ioane has failed to demonstrate either the DRE or the superior court 

committed reversible error. 

DISPOSITION

The judgment is affirmed. Respondent shall recover its costs on appeal.