Brice v. Department of Alcoholic Beverage Control

• Citation: 153 Cal.App.2d 315,314 P.2d 807
• Court: California Court of Appeals
• Decision Date: 19 August 1957
• Parties: Norman F. BRICE, Edwin G. Brice, Walter W. Brice and Irwin C. Brice, individually and as copartners, d/b/a Brice Brothers, Petitioners and Respondents, v. DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL, Respondent and Appellant. Civ. 17225.

Page 807

314 P.2d 807

153 Cal.App.2d 315

Norman F. BRICE, Edwin G. Brice, Walter W. Brice and Irwin C. Brice, individually and as copartners, d/b/a Brice Brothers, Petitioners and Respondents, v. DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL, Respondent and Appellant.

Civ. 17225.

District Court of Appeal, First District, Division 1, California.

Aug. 19, 1957.

Edmund G. Brown, Atty. Gen., Charles A. Barrett, Deputy Atty. Gen., for appellants.

Walter F. Calcagno, San Francisco, for respondents.

PETERS, Presiding Justice.

The licensees were charged with having sold intoxicating liquor to a minor. The officer who presided at the hearing of the accusation issued a proposed decision finding the charges to be true and recommended a 15-day suspension of the off-sale general liquor license of the licensees. The proposed decision was adopted as the decision of the Department. The licensees appealed to the Alcoholic Beverage Appeals Board and it sustained the decision of the Department. The licensees then petitioned the Superior Court for a writ of mandate. The matter was heard on August 12, 1955. On that same day the Superior Court entered a minute order reading in part: 'It was by the Court ordered that the petition be granted, Writ to issue. Findings to be prepared.' On September 22, 1955, findings of fact and conclusions of law were signed and filed. Thereafter, a motion for a new trial was filed which was denied on January 5, 1956. Judgment ordering the issuance of the writ was signed and filed January 11, 1956. The Department of Alcoholic Beverage Control appeals from that judgment, the notice of appeal having been filed March 5, 1956.

At the inception of the argument we are met by the contention of respondents that the appeal should be dismissed because the notice of appeal was filed too late. It is argued that the 60-day period to appeal commenced running (a) from August 12, 1955, the date of the first minute order, or (b) from September 22, 1955, the date the findings and conclusions were signed, or (c) that the denial of the motion for a new trial on January 5, 1956, started a 30-day period to run in which the appeal had to be filed. If any of these contentions is correct then the notice of appeal, filed on March 5, 1956, was filed too late. The appellant contends that it had 60 days from January 11, 1956, the date the judgment was signed, filed and entered in the judgment book, in which to appeal, and that the notice of appeal filed on March 5, 1956, was, therefore, filed within time. The position taken by appellant is undoubtedly correct.

Did the time to appeal start to run from the minute order of August 12, 1955?

Respondents contend that it did, citing Steen v. Board of Civil Service Com'rs, 26 Cal.2d 716, 160 P.2d 816. That case held that an appeal lies from a minute order denying an application for a writ of mandate, where the order of denial does not provide for further action by the trial court. It is probably true that the rule of that case applies to a simple order granting a writ of mandate. But, in the instant case, the minute order expressly stated: 'Writ to issue. Findings to be prepared.' This demonstrates to a certainty that further court action was contemplated. Respondents argue that this provision was meaningless because, in such a proceeding, findings are not required. It is probably true that in such a proceeding findings are not required, but that does not alter the fact that by its minute order the court expressly stated that further court action was contemplated. Rule 2(b)(2) of the Rules on Appeal provides: 'The date of entry of an appealable order which is entered in the minutes shall be the date of its entry in the permanent minutes, unless such minute order as entered expressly directs that a written order be prepared, signed and filed, in which case the date of entry shall be the date of filing of the signed order.' This rule was adopted to provide an objective test by which the finality of orders could be determined for purposes of appeal. It was intended to establish certainty as to just when the period to appeal commences to run. It was designed to remove the traps for the unwary that existed under prior law, and was not passed to create new traps. Pessarra v. Pessarra, 80 Cal.App.2d 965, 183 P.2d 279; Herrscher v. Herrscher, 41 Cal.2d 300, 259 P.2d 901; 3 Witkin, California Procedure, p. 2294; 17 So.Cal.L.Rev. 79, 86. The direction in the minute order that 'Writ to issue. Findings to be prepared' is a direct indication that a formal order was to follow, and thus brings into operation the last part of Rule 2(b)(2). The minute order of August 12, 1955, was, therefore, a preliminary order which did not operate to start the period running in which to appeal.

Did the time to appeal start to run from the entry of the findings of fact and conclusions of law on September 22, 1955?

Respondents rely on cases such as LaMar v. Superior Court, 87 Cal.App.2d 126, 196 P.2d 98, and Hoover v. Lester, 16 Cal.App. 151, 116 P. 382, in support of their contention that this question should be answered in the affirmative. Those cases hold that the entry of judgment is merely a ministerial duty of the clerk, and that the findings and conclusions constitute the court's decision. But these cases and that rule have nothing to do with the time within which to appeal. The case law is unanimous to the effect that an appeal does not lie from the findings of fact or conclusions of law. In re Estate of Resler, 43 Cal.2d 726, 278 P.2d 1; Muchenberger v. City of Santa Monica, 206 Cal. 635, 275 P. 803; Miller v. Sharpe, 54 Cal. 590; Rawley v. Rawley, 94 Cal.App.2d 562, 210 P.2d 891; In re Estate of Murphy, 50 Cal.App.2d 440, 123 P.2d 129; Ouzoonian v. Vaughan, 64 Cal.App. 369, 221 P. 958. This rule is based on the fact that section 664 of the Code of Civil Procedure provides that: 'In no case is a judgment effectual for any purpose until entered,' and upon the rule that until entry the judge can change his previously rendered judgment as he sees fit. Phillips v. Phillips, 41 Cal.2d 869, 264 P.2d 926.

Did a 30-day period in which to appeal start to run on January 5, 1956, when the motion for a new trial was denied?

In support of an affirmative answer to this question respondent places his confidence in Rule 3(a)(1) of the Rules on Appeal, which reads that 'if the motion [for a new trial] is denied, the time for filing the notice of appeal from the judgment is extended for all parties until 30 days after either entry of the order denying the motion or denial thereof by operation of law.' Appellant, appropriately, calls attention to Rule 2(a). It provides that the 'notice of appeal shall be filed within 60 days from the date of entry of the judgment, unless the time is extended as provided in Rule 3.' In other words, Rule 3(a)(1) operates only to extend the time in which to appeal, and never to cut down the time provided by Rule 2(a). See comments of the draftsman of the rules in 17 So.Cal.L.Rev. 79 at p. 94. Since the date of entry of the judgment was January 11, 1956, under Rule 2(a) the appellant had 60 days from that date in which to appeal. Rule 3(a)(1) did not operate to cut that period down. Thus, the appeal filed on March 5, 1956, was filed in time. See Verdier v. Verdier, 118 Cal.App.2d 279, 257 P.2d 723.

The Appeal on its Merits.

Before discussing the facts, brief reference should be made to the rule of law applicable to the review of decisions of the Department of Alcoholic Beverage Control. That agency is a constitutional agency that has succeeded to some of the powers of the State Board of Equalization in alcoholic beverage control matters. Being an agency upon which the Constitution has conferred limited judicial powers, its decisions on factual matters must be affirmed if there is substantial evidence to support them. Cal.Const. Art. 20, § 22; Covert v. State Board of Equalization, 29 Cal.2d 125, 173 P.2d 545; Kirchubel v. Munro, 149 Cal.App.2d 243, 308 P.2d 432; Molina v. Munro, 145 Cal.App.2d 601, 302 P.2d 818; Dethlefsen v. State Bd. of Equalization, 145 Cal.App.2d 561, 303 P.2d 7; Griswold v. Department of Alcoholic Bev. Control, 141 Cal.App.2d 807, 297 P.2d 762. In other words, on the mandamus proceeding, the trial court was not permitted to exercise an independent judgment on the facts, as it may do in reviewing the findings of legislatively created state-wide administrative agencies, but was required to give to the factual determinations of the appellant the same deference that an appellate court must give to the findings of a trial court. Thus, the trial court was simply called upon the determine whether the findings of the Board were supported by substantial evidence.

Tested by this rule the evidence taken before the hearing officer, and weighed by him and the Department, clearly supports the findings of the Department. Phillip Ryan, on the date of the claimed purchase, was a minor, being then 18 years of age. He testified that on the night of June 28, 1954, he purchased a pint of Qilbey's gin and a quart of mix from the liquor store operated by purchased a pint of Gilbey's gin and a quart was made to him by one Ferrari. Admittedly, Ferrari on that date, was employed by respondents. Ryan testified that Ferrari did not ask for any identification or ask him any questions about his age. This was the first time Ryan had ever been in the store. He was driven to the store by another minor, Charles Butler, who remained outside and did not observe the transaction. He did, however, observe Ryan go into the store empty-handed and, in about three minutes, come out with a bag containing a pint of gin and a quart of mix.

The boys testified that the purchase was made about 8:45 p. m. on June 28, 1954. After the purchase they drove to a market and got some ice and paper cups and then drove to Sebastopol. On the way they consumed over half of the gin. In...