Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd.

Decision Date22 April 1959
Citation338 P.2d 50,169 Cal.App.2d 785
CourtCalifornia Court of Appeals Court of Appeals
PartiesDEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL, State of California, Plaintiff and Respondent, v. ALCOHOLIC BEVERAGE CONTROL APPEALS BOARD, State of California; the Hallwell Company, a California Corporation dba 353 Club, Defendants, Alcoholic Beverage Control Appeals Board, State of California, Appellant. Civ. 23539.

Charles P. Just, Chief Counsel, Alcoholic Beverage Control Appeals Board, Sacramento, for appellant.

Stanley Mosk, Atty. Gen., and Edward M. Belasco, Deputy Atty. Gen., for respondent.

VALLEE, Justice.

The Department of Alcoholic Beverage Control filed an accusation against the Hallwell Company, a corporation, charging violation of section 25602 of the Business and Professions Code. A hearing was held and the hearing officer recommended a 15 day suspension of Hallwell's general on-sale liquor license. The department adopted the hearing officer's recommendation, and the decision of the department was mailed to Hallwell by certified mail on October 3, 1957.

On October 29, 1957, Hallwell mailed a letter to the department in Sacramento which stated that it was enclosing two copies of the following documents: 1. Request for reconsideration of decision; 2. Request for hearing before the director of the department; 3. Notice of appeal of said decision. The letter also said:

'I talked to Mr. Green, attorney for your local office, and he advised me the law states that my clients have thirty days to petition for reconsideration of the decision, and forty days in which to file an appeal from the date of the decision; but that these two dates run concurrently. But I hope and trust that the herewith Notice of Appeal will not preclude a careful reconsideration of the hearing officer's decision.'

The letter with enclosures was received and filed by the department on October 31, 1957.

Only one document was enclosed with the letter. In the first paragraph this document states that Hallwell 'petitions for reconsideration of the proposed decision * * *.' The second paragraph reads in part: 'Said request for reconsideration shall be based upon the following grounds: 1 * * * 6. That in behalf of said Licensee a Notice of Appeal is filed herewith.'

The department denied the petition for reconsideration and so notified Hallwell by certified mail on November 5, 1957. On November 18, 1957, Hallwell mailed a letter to the appeals board which included a copy of the petition for reconsideration previously filed with the department. These documents were received by the board on November 19, 1957, and on the same day the board sent the attorney for Hallwell a letter, which reads:

'Your communication of November 18, 1957, together with documents dated October 29, 1957, have been received. The documents have been assigned file number AB-849.

'Your motion to have this Board consider said documents as a notice of Appeal is placed on the calendar for oral argument on December 11, 1957, at 2:00 p. m. in Room 918, Mirror Building, Second and Spring Streets, Los Angeles, California.'

On December 11, 1957, a hearing was held. The board rendered its decision on April 4, 1958, determining that the documents filed by Hallwell with the department on October 29, 1957, constituted a valid notice of appeal and that the appeal was timely. 2

The department petitioned the superior court for a writ of prohibition to prevent the board from considering Hallwell's appeal. The parties stipulated it was the policy of the board to consider appeals mailed to the department as received by and filed with the appeals board on the date the appeals are received by the department, and all appeals received by the department within 40 days from the date the decisions of the department are mailed to the parties are heard by the appeals board on their merits.

After a hearing the court found the above facts to be true and that Hallwell did not prepare a notice of appeal in writing stating the grounds on which the review from the decision of the department was sought and did not file such a document with the board within 40 days from the date the decision of the department was mailed; Hallwell did not mail a copy of such document to the department; Hallwell did not request the department to prepare a transcript of the administrative proceedings or offer to pay or pay the costs thereof. The court concluded the department was not and is not an agency of the board for the purpose of accepting service of documents or receiving and filing appeals; Hallwell failed to file an appeal with the board as provided in section 23081 of the Business and Professions Code. Judgment followed, ordering that a writ issue prohibiting the board from hearing and deciding 'the appeal.' The board appeals.

The board contends: 1. The documents filed by Hallwell constituted a notice of appeal. 2. The policy and rule of the board that a notice of appeal forwarded to the department is deemed filed with the board is a valid exercise of the powers vested in the board. 3. The petition for a writ of prohibition is premature; the department has not exhausted its administrative remedies and is not aggrieved by the decision of the board.

We have no doubt that the documents filed by Hallwell with the department constituted a valid notice of appeal. The first document, a letter, gave the number of the proceeding and stated there was enclosed a 'Notice of Appeal of said decision.' The letter stated Hallwell had 40 days in which to file an appeal from the date of the decision, and 'I hope and trust that the herewith Notice of Appeal will not preclude a careful reconsideration of the hearing officer's decision.' The document enclosed with the letter stated 'That in behalf of said Licensee a Notice of Appeal is filed herewith.' The documents unmistakably referred to the appealable decision of the department and in effect stated that Hallwell appeals therefrom. A notice of appeal is to be construed liberally so as to preserve the right of appeal. 3 Cal.Jur.2d 668, § 182. The rules on appeal provide, 'A notice of appeal shall be liberally construed in favor of its sufficiency.' Rules on Appeal, Rule 1. The policy of the law favors the preservation of the right of appeal and the hearing of appeals on their merits. Pesce v. Dept. of Alcoholic Bev. Control, 51 Cal.2d 310, 333 P.2d 15. Applying these elementary rules of law, we are of the opinion the documents filed with the department constituted a notice of appeal from its decision and that the board correctly so decided. Cf. In re Estate of Damke, 133 Cal. 433, 434, 65 P. 888; Adams v. Talbott, 20 Cal.2d 415, 417, 126 P.2d 347; Nelson v. Angel, 94 Cal.App.2d 136, 139, 210 P.2d 256; Crane v. Livingston, 98 Cal.App.2d 699, 702, 220 P.2d 744; Karrell v. Watson, 116 Cal.App.2d 769, 772, 254 P.2d 651, 255 P.2d 464, in which it is said that the right of a litigant to have the record of his cause reviewed by an appellate court is 'sacred.'

A comparable situation was before the court in Kellett v. Marvel, 6 Cal.2d 464, 58 P.2d 649. There were three judgments in cases numbered D-57350, D-92871, and 306434. The notice of appeal was entitled and filed in D-57350. It specified the appeal was taken from the order denying the plaintiff's motion to resist the defendant's motion for a final decree 'entered and rendered * * * on the 19th day of March, 1931, and entered in Book 787, page 112, on the 27th day of March, 1931.' The order was actually made on March 26. No order was made on March 19, 1931. The date, book, and page of entry recited in the notice of appeal were those of the final judgment in number D-57350. No notice of appeal was filed in D-92871 or in 306434. Construing the notice of appeal as from the final judgment in D-57350 and from the judgments in D-92871 and 306434, the court stated (6 Cal.2d at page 472, 58 P.2d at page 653):

'While it is true that the filing of a notice of appeal is a jurisdictional requirement and cannot be waived, the absence of prejudice and the efficacy of the things done to give notice to the other party that the appeal has been taken may be considered in determining whether there has been a sufficient compliance with the requirement of section 940 of the Code of Civil Procedure that a notice stating the appeal from the judgment or order be filed with the clerk of the court in which the judgment or order is entered. * * * Under the circumstances, where all the cases were consolidated, if only for the purpose of trial, and are bound to be considered together upon appeal, if only for the reason that the evidence taken applied to all, the entry in the register under the number of each case with a reference to the place where the notice itself was to be found in the files, can have resulted in no prejudice to the respondent and must be considered a substantial compliance with the requirement that the notice of appeal be filed in each case. Any other conclusion would be out of line with the rule of liberal construction of notices of appeal where the imperfections have not misled or prejudiced the respondent.'

The next question is whether filing the notice of appeal with the department constituted filing with the board under the latter's policy to consider appeals mailed to the department as received by and filed with it on the date the notices of appeal are received by the department, and that all notices of appeal received by the department within 40 days 3 from the date the decisions of the department are mailed to the parties are heard by the board. If this question is answered in the affirmative, the appeal was timely; if it is answered in the negative, the appeal was not timely.

Section 23077 of the Business and Professions Code provides that the appeals board 'may adopt such rules pertaining to appeals and other matters within its jurisdiction as may be required.' Section 23081 reads:

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