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District Court of Appeal, Second District, Division 2, California.

HOLLYWOOD CIRCLE, INC., a corporation, Petitioner and Appellant, v. DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL; Alcoholic Beverage Control Appeals Board, et al., Defendants and Respondents.*

No. 24541.

Decided: November 16, 1960

Rosenthal & Rosenthal, by Allen M. Rosenthal, Beverly Hills, for appellant. Stanley Mosk, Att. Gen., Warren H. Deering, Deputy Atty. Gen., for respondents.

Hollywood Circle, Inc. appeals from an order of the superior court denying its exparte application for an alternative writ of mandate1 directed to Alcoholic Beverage Control Appeals Board (hereinafter called Appeals Board) and Department of Alcoholic Beverage Control (designated below as Department). The Department had made an order revoking petitioner's on-sale general alcoholic beverage license; petitioner appealed to the Appeals Board and it dismissed the appeal upon the ground it was not filed within the statutory period. Hollywood Circle, Inc. sought a writ of mandate requiring the Appeals Board to vacate its order of dismissal and to proceed with the hearing of the appeal upon its merits. The writ having been denied, it appeals. We have concluded that appellant's position is sound.

Appellant, being the holder of said on-sale license, was charged with violation of §§ 25601 and 24200(b) of the Alcoholic Beverage Control Act (Business & Professions Code).2 After hearing held the Department adopted a hearing officer's recommendation that appellant's license be revoked. The Department mailed the decision to appellant on March 23, 1956. Appellant filed a petition for reconsideration which was denied on May 2 and thereafter on May 3, 1956 it mailed to the Appeals Board a notice of appeal from the Department's ruling. Same was filed on May 7, 1956. The mailing of the notice of appeal was done 41 days after the Department had mailed notice of its decision to appellant. Section 23081, Business & Professions Code,3 then read: ‘Within 40 days after the decision of the department is delivered or mailed to the parties, any party aggrieved by a final decision of the department may appeal shall board from such decision. The appeal shall be in writing and shall state the grounds upon which a review is sought. A copy of the appeal shall be mailed by the appellant to each party who appeared in the proceeding before the department, including the department which shall thereafter be treated in all respects as a party to the appeal.’ Stats., 1954, 1st Ex.Sess., Ch. 20, p. 276. On July 12, 1956, the Appeals Board dismissed the appeal for lack of jurisdiction because it had been filed more than 40 days after the mailing of the Department's decision. In this connection it held that § 1013, Code of Civil Procedure,4 did not apply to such departmental decisions. Appellant contended and now argues that § 1013, Code of Civil Procedure, was applicable and that as the mailing was done at Sacramento, addressed to appellant at Los Angeles, its time to appeal was extended to 45 days.

Appellant next sought in the superior court mandamus requiring the Department and Appeals Board to recognize its appeal; general demurrer to the petition was sustained without leave and mandamus was denied. Hollywood Circle, Inc. appealed from that order. The District Court of Appeal affirmed, holding in Hollywood Circle v. Dept. of Alcoholic Bev. Control, 153 Cal.App.2d 523, 314 P.2d 1007, that: ‘2. Section 1013 of the Code of Civil Procedure does not affect the time specified in section 23081 of the Business and Professions Code. The Appeals Board is a constitutional governmental body. Bus. & Prof.Code, § 23075. There appeals to be no intent by the people in enacting the current liquor control laws in their Constitution, nor by the legislature in implementing them, to extend in any manner the time for filing a notice of appeal specified in section 23081 of the Business and Professions Code.’ 153 Cal.App.2d at page 527, 314 P.2d at page 1010. The Supreme Court denied a hearing on October 30, 1957, and the United States Supreme Court denied certiorari on March 10, 1958, 356 U.S. 902, 78 S.Ct. 562, 2 L.Ed.2d 580. Appellant's petition for mandate alleges: ‘[I]n March of 1958, Petitioner was ordered by the Department to and did surrender its said on-sale general alcoholic beverage license and was compelled to and did liquidate its profitable business without ever having had its appeal heard upon the merits.’

 Thereafter, on December 12, 1958, the Supreme Court decided Pesce v. Dept. of Alcoholic Bev. Control, 51 Cal.2d 310, 333 P.2d 15, wherein it held that § 1013, Code of Civil Procedure, does apply to disciplinary proceedings such as the one here under consideration. At page 312, of 51 Cal.2d, at page 17 of 333 P.2d the court said:

‘Both section 1013 and section 25760 provide that the service is complete at the time of deposit in the United States post office. It is this service which is referred to in section 1013 where it is stated ‘* * * but if, within a given number of days after such service * * *’ a right is to be exercised, or an act is to be done, the time for exercising that right or performing that act is extended. Sections 23081 and 25760 contain nothing which would preclude the application of section 1013 in its entirety to the service of the board's decision and to the extension of the period in which an appeal can be taken from such decision. The Business and Professions Code and the Code of Civil Procedure are to be read and construed together under the ‘well-recognized rule that for purposes of statutory construction the codes are to be regarded as blending into each other and constituting but a single statute.’ [Citations.] Applying this rule both the petitioner and the department are authorized to make service in the manner provided by section 1013.' At page 313, of 51 Cal.2d, at page 17 of 333 P.2d referring to the language above quoted from the District Court of Appeal opinion, it is further said: ‘Courts too, are constitutional governmental bodies subject to strict time limits for hearing appeals. See In re Estate of Hanley, 23 Cal.2d 120, 122, 142 P.2d 423, 149 A.L.R. 1250. This, however, furnishes no ground for refusing to apply section 1013 to proceedings before those bodies. Any implications to the contrary in * * * Hollywood Circle, Inc. v. Dept. of Alcoholic Beverage Control, supra, 153 Cal.App.2d 523, 314 P.2d 1007, are disapproved.’ Silva v. Department of Alcoholic Beverage Control, 51 Cal.2d 885, 333 P.2d 18, was decided the same day and to the same effect. From this it follows that the rule stated by the District Court of Appeal never was the law (13 Cal.Jur.2d § 142, p. 674; 14 Am.Jur. § 130, p. 345; 1 So.Cal.L.Rev. 53, 57), and we do not deal with a mere change in a valid law as argued by respondents.

After those decisions became final appeallant presented to the Appeals Board its Application for Relief from Erroneous Dismissal of Appeal, which was denied upon the ground of want of jurisdiction, the board citing § 23090.5 Thereupon appellant filed the application for an alternative writ of mandate which gave rise to the present appeal. The application was denied upon the ground that the previous decision of the District Court of Appeal was res judicata and the board's interpretation of § 23090 correct.

 The controlling question is whether the dismissal of the appeal by the Appeals Board was a refusal to exercise existing jurisdiction, as appellant claims, or, on the other hand, was merely an erroneous exercise of jurisdiction in determining whether jurisdiction resided in the Appeals Board. If the former, the order is void and reachable by special writ; if the latter, an appeal is the remedy for any error in the ruling.

 The law seems settled that a determination of no jurisdiction is merely error when based upon a finding of fact which resolves a conflict in substantial evidence; that it is an excess of jurisdiction when based upon an erroneous view of the law in the absence of disputed facts. In the present instance there was no question of fact to be decided, merely the law question of whether § 1013, Code of Civil Procedure, applies to a disciplinary proceeding before the Department of Alcoholic Beverage Control.

The basic principles are explained in Abelleira v. District Court of Appeal, 17 Cal.2d 280, at page 290, 109 P.2d 942, at page 948, 132 A.L.R. 715, wherein the court said: ‘On a number of occasions the courts of this state have recognized he conflicting senses in which the term ‘jurisdiction’ is used, and have emphasized the point that in applications for prohibition or certiorari, the broader meaning is involved. In our own recent decision, Rodman v. Superior Court, 13 Cal.2d 262, 89 P.2d 109, 112, we said: ‘* * * some confusion exists with reference to what constitutes an excess, and what constitutes an error, in the exercise of jurisdiction. However, it seems well settled (and there appears to be no case holding to the contrary) that when a statute authorizes prescribed procedure, and the court acts contrary to the authority thus conferred, it has exceeded its jurisdiction, and certiorari will lie to correct such excess.’' 17 Cal.2d at page 291, 109 P.2d at page 948: ‘Speaking generally, any acts which exceed the defined power of a court in any instance, whether that power be defined by constitutional provision, express statutory declaration, or rules developed by the courts and followed under the doctrine of stare decisis, are in excess of jurisdiction, in so far as that term is used to indicate that those acts may be restrained by prohibition or annulled on certiorari.’ 17 Cal.2d at pages 302–303, 109 P.2d at page 954: ‘The final contention is advanced that through all of the above conclusions may be entirely correct, and that in consequence the District Court of Appeal has no jurisdiction to hear and determine the merits of the case, nevertheless it has power to hear and determine the question of whether it has jurisdiction. * * * The proposition, stated simply, is that a tribunal has jurisdiction to determine its own jurisdiction. This is a truism, and, subject to certain implicit limitations, is ordinarily a correct statement of law. * * * It means only that the trial court or lower tribunal or body to which the question is submitted has such jurisdiction to make the first preliminary determination—not a final one; and no interference is permitted until it does decide the matter one way or the other. Until it acts to assume or refuse jurisdiction over the merits no one is entitled to complain.

‘But once the tribunal, judicial or administrative, has made this determination of the issue, and has acted to assume jurisdiction of the cause, the rule no longer has any meaning. The jurisdiction to determine jurisdiction has been fully exercised by a determination in favor of jurisdiction over the cause; the question is no longer of jurisdiction to determine, but of jurisdiction to act. And jurisdiction to act is always a subject of inquiry by a higher court.’ 17 Cal.2d at page 304, 109 P.2d at page 955: ‘To say that the District Court of Appeal, left alone, may ultimately reach the same conclusion as we do here, and therefore should not be restrained, is no longer an answer. The writ of prohibition is not refused nor held in abeyance because the lower tribunal may ultimately realize the error of its assumption of jurisdiction; it is granted at the time the act in excess of jurisdiction occurs.’

That the question of mere error or excess of jurisdiction is governed by the presence or absence of conflicting evidence upon a question of fact appears from the opinion in Aylward v. State Board etc. Examiners, 31 Cal.2d 833, 839, 192 P.2d 929, 933: ‘Implicit in the cases denying a board's power to review or re-examine a question, however, is the qualification that the board must have acted within its jurisdiction and within the powers conferred on it. Where a board's order is not based upon a determination of fact, but upon an erroneous conclusion of law, and is without the board's authority, the order is clearly void and hence subject to collateral attack, and there is no good reason for holding the order binding on the board.’

In Golden Gate Tile Co. v. Superior Court, 159 Cal. 474, 114 P. 978, it appeared that the trial court had dismissed an appeal from a justice court on the theory that it had no jurisdiction. At page 477 of 159 Cal., at page 979 of 114 P., it is said: ‘[W]here a court has jurisdiction of a cause, it should not be permitted, by an arbitrary or erroneous order, to divest itself of jurisdiction, but it should be compelled to proceed with the case to judgment. Under the circumstances mentioned, it has been held that either writ [of mandamus or the writ of review] is proper. Snover v. Tinsman, 38 N.J.L. 210. One line of cases holds that, where a court has jurisdiction, but determines that it has not, and for that reason dismisses the appeal, thus depriving a party of a hearing, such court may be required to vacate the order dismissing the appeal and to proceed with the trial of the cause; that such a dismissal of the appeal is nothing more or less than a refusal to proceed in the action, and comes within the general rule that, when a court having jurisdiction refuses to act on the ground that it has not jurisdiction, it may be compelled to do so.’ The reasoning of the line of cases referred to was adopted by the Supreme Court. At page 480 of 159 Cal., at page 980 of 114 P.: “If an inferior court should make a finding in favor of its jurisdiction, basing the finding on conflicting evidence, it must be conceded that such a determination would be conclusive upon this court; but where there is no conflict in the evidence, thus presenting a clear question of law only, and an inferior court holds that it has jurisdiction when under the uncontradicted evidence it has not, then its judgment may be annulled on writ of review.” 159 Cal. at page 481, 114 P. at page 981: “The case of Buckley v. Superior Court, 96 Cal. 119, 31 Pac. 8, is opposed to this doctrine, but the views expressed in the dissenting opinion, concurred in by Beatty, C. J., are warranted, it would seem, by examination of the authorities.” 159 Cal. at page 484, 114 P. at page 982: ‘The necessary steps to give the superior court jurisdiction of the appeal were all taken. The said appeal was regularly and properly before that court, and petitioner is therefore entitled to a writ of mandate.’ To the same effect are, Edwards v. Superior Court, 159 Cal. 710, 712, 714, 115 P. 649; Cahill v. Superior Court, 145 Cal. 42, 45–46, 78 P. 467; Grannis v. Superior Court, 146 Cal. 245, 254–256, 79 P. 891; Robinson v. Superior Court, 35 Cal.2d 379, 383–384, 218 P.2d 10; In re Brumback 46 Cal.2d 810, 813, 299 P.2d 217; San Francisco Oakland Terminal Railways v. Superior Court, 48 Cal.App. 586, 588, 192 P. 116; Corrigan v. Superior Court, 72 Cal.App. 383, 385, 236 P. 364.

1 Witkin on California Procedure, § 167, page 433, explains the matter thus: ‘A number of decisions purport to hold that mandamus will not lie to compel assumption of jurisdiction where the lower court, after a hearing, has decided that it has no jurisdiction. The theory is that the court in such a case is actually exercising its jurisdiction and that its erroneous decision is therefore merely an error within jurisdiction. * * * These decisions are unsound in principle and wrong in result. First, a distinction must be made where the jurisdictional issue turns on questions of fact, e. g., where domicil is the basis of jurisdiction, and the court decides that domicil was not established. A decision against the weight of the evidence is, at most, error within jurisdiction. But where the essential facts are undisputed, the jurisdictional issue is one of law. And just as a court has no jurisdiction to act, contrary to law, on its decision that it has jurisdiction (see supra, § 153), so it has no jurisdiction to decline to act, contrary to law, after a decision that it lacks jurisdiction. * * *’ At page 435: ‘In brief, a court does not perform its duty to take jurisdiction when it merely gives a hearing on the issue of jurisdiction. Its duty is performed only when it gives a hearing on the merits of the case.’ Section 134, at page 397: ‘A court with jurisdiction over a proceeding is ordinarily under a duty to exercise that jurisdiction by hearing and determining the matter on its merits. If the court erroneously determines that it has no jurisdiction, and dismisses the proceeding without a determination on the merits, the dismissal is an act in excess of its jurisdiction. The obvious remedy of the aggrieved party is a writ of mandamus to compel assumption of jurisdiction * * *.’

 The principles governing these questions of jurisdiction are the same in an administrative proceeding as in a court action. See quotaton from Aylward v. State Board etc. Examiners, supra, 31 Cal.2d 833, 192 P. 929. Because § 1013, Code of Civil Procedure, applies to an appeal to the Alcoholic Beverage Control Appeals Board, the one taken by Hollywood Circle, Inc. was timely and the order dismissing same for want of jurisdiction upon mistaken view of the law, there being no disputed facts, is void. Hence the affirmance upon appeal of that order, void on its face, infuses no life into it; it remains a dead limb upon the judicial tree which anyone in interest may lop off at will through direct or collateral attack.

City of Los Angeles v. Morgan, 105 Cal.App.2d 726, 732, 234 P.2d 319, 322: “Nothing can be acquired or lost by it; it neither bestows nor extinguishes any right * * *. It neither binds nor bars anyone. All acts performed under it and all claims flowing out of it are void * * *. No action upon the part of the plaintiff, no inaction upon the part of the defendant, no resulting equity in the hands of third persons, no power residing in any legislative or other department of the government, can invest it with any of the elements of power or of vitality.' 1 Freeman on Judgments, 5th Ed., sec. 322, pp. 643–644.' See also, Pioneer Land Co. v. Maddux, 109 Cal. 633, 642–643, 42 P. 295: Sullivan v. Gage, 145 Cal. 759, 770–771, 79 P. 537; Bank of Italy v. Cadenasso, 206 Cal. 436, 437–438, 274 P. 534; 3 Witkin on California Procedure, § 180, p. 2374; 29 Cal.Jur.2d § 183, p. 138. Denial of rehearing in the District Court of Appeal or of hearing in the Supreme Court, or of certiorari in the United States Supreme Court adds nothing to its authority (see, Bohn v. Bohn, 164 Cal. 532, 537–538, 129 P. 981; Western Lithograph Co. v. State Bd. of Equalization, 11 Cal.2d 156, 157–158, 78 P.2d 731, 117 A.L.R. 838; Cole v. Rush, 45 Cal.2d 345, footnote 3, at page 351, 289 P.2d 450, 54 A.L.R.2d 1137); it remains completely void.

 The doctrine of res judicata upon which respondents rely has no application to a void judgment or order (Aylward v. State Board etc. Examiners, supra, 31 Cal.2d 833, 838, 192 P.2d 929; 29 Cal.Jur.2d, § 219, p. 172), nor does the rule of law of the case apply to a situation where the law has been changed after the first decision (Subsequent Injuries Fund of California v. Industrial Acc. Comm., 53 Cal.2d 392, 394–395, 1 Cal.Rptr. 833, 348 P.2d 193).

 Section 23090, Business & Professions Code (quoted in footnote 5, supra), which prohibits a reconsideration or rehearing by the Appeals Board, has no field for operation with respect to an order of the board which is void on its face. Once it is established that the board has made such an order it has the plain duty of clearing the record of the apparent authority of the order.

English v. City of Long Beach, 35 Cal.2d 155, 160, 217 P.2d 22, 25, 18 A.L.R.2d 547: ‘The fact that the [civil service] board has heard and decided the matter does not preclude another hearing even though the charter does not provide for a rehearing, and the board cannot be said to have exhausted its power to act until it has given English a fair hearing. Cf. Aylward v. State Board, etc., Examiners, 31 Cal.2d 833, 839, 192 P.2d 929.’

The cited Aylward case, supra, dealing with action of the State Board of Chiropractic Examiners, says (31 Cal.2d at page 839, 192 P.2d at page 933): ‘While a board may have exhausted its power to act when it has proceeded within its powers, it cannot be said to have exhausted its power by doing an act which it had no power to do or by making a determination without sufficient evidence. In such a case, the power to act legally has not been exercised, the doing of the void act is a nullity, and the board still has unexercised power to proceed within its jurisdiction.’

In the Pesce and Silva cases, supra, the Supreme Court affirmed judgments directing the Appeals Board to set aside orders dismissing appeals from decisions of the Department. In Silva it appears (51 Cal.2d at page 886, 333 P.2d 18) that the judgment which was affirmed not only ordered the board to set aside its order dismissing appeals, but also to hear and determine suspension order number 1166 on its merits; to hear and determine the application for relief from alleged inadvertence in the caption of the notice of appeal in number 9560, and to hear that appeal on the merits if such relief be granted.

That mandamus is the proper remedy at bar seems plain from the cases just discussed. Robinson v. Superior Court, supra, 35 Cal.2d 379, 383, 218 P.2d 10, 13: ‘The next question to be considered is whether the trial court has failed or refused to perform a duty which may be enforced by mandate. It is clear from the record that the motion for an order confirming the award was denied on the sold ground of lack of jurisdiction and that the trial court did not determine the merits of the application. The law is well settled that a trial court is under a duty to hear and determine the merits of all matters properly before it which are within its jurisdiction and that mandate may be used to compel the performance of this duty. This is so even where the trial court's refusal to pass on the merits is based on the considered but erroneous belief that it has no jurisdiction as a matter of law to grant the relief requested. As stated in Temple v. Superior Court, 70 Cal. 211, 212, 11 P. 699, ‘the court cannot, by holding without reason that it has no jurisdiction of the proceeding, divest itself of jurisdiction, and evade the duty of hearing and determining it.’ Mandate will issue to compel a hearing and determination of the merits where the court has merely sustained an objection on jurisdictional grounds and left the proceeding pending. [Citations.] The writ is also available where the trial court has disposed of a matter by an order dismissing it or denying relief on the sole ground of lack of jurisdiction. [Citations.] Thus, there is no distinction, insofar as the availability of the writ is concerned, between cases where the court merely refuses to proceed because of its erroneous belief that it has no jurisdiction, and those in which the court makes a ruling disposing of the matter on the sole ground it has no jurisdiction. In either case if the effect is to preclude a hearing and judgment on the merits of a matter properly before the court, and there is no other adequate remedy, mandate will lie to test the question of jurisdiction.'

 The fact that appellant, acting under the coercive sanction of an apparently valid decision of the District Court of Appeal, surrendered its license and liquidated its profitable business does not render this cause moot. Appellant argues: ‘The Department charged appellant with permitting its premises to be used for purposes contrary to public welfare and morals and as a place where people did resort and thereat commit and engage in lewd and lascivious acts. * * * [A]lmost all of the evidence introduced by the Department with respect to lewd conduct by patrons of appelllant, was in the form of events, conversations and occurrences which admittedly took place without the knowledge or consent of, and outside of the presence of, appellant or its officers, agents or employees, and which, in numerous instances, actually took place outside of and away from appellant's place of business. The record was entirely devoid of any evidence tending to show that appellant, its officers, agents or employees, countenanced or consented to any immoral acts upon the premises. * * * The law is well settled that there must be evidence showing that the licensee knew, or should have known, of immoral conduct on his premises, and countenanced or consented to the same.’ Counsel says this brings the case within the purview of Stoumen v. Reilly, 37 Cal.2d 713, 234 P.2d 969, and Tarbox v. Board of Supervisors, 163 Cal.App.2d 373, 329 P.2d 553. Certainly appellant has a right to be heard upon this matter, to clear its name and to resume its business if it can do so. People v. Becker, 108 Cal.App.2d 764, 768–770, 239 (‘Norelcom’) who sold 80,000 shares a dispensing with procedural due process. Universal Consol. Oil Co. v. Byram, 25 Cal.2d 353, 361–362, 153 P.2d 746; Bandini Estate Co. v. Los Angeles County, 28 Cal.App.2d 224, 229, 82 P.2d 185; Irvine v. State Board of Equalization, 40 Cal.App.2d sold its shares is Norel Electronic p. 213.

Order reversed with instructions to the lower court to vacate the order denying application for alternative writ of mandate, to grant such alternative writ, and to take further proceedings not inconsistent with the views herein expressed.


1.  An appeal from said minute order is proper (Steen v. Board of Civil Service Com'rs, 26 Cal.2d 716, 727, 160 P.2d 816).

2.  Section 25601 says: ‘Every licensee, or agent or employee of a licensee, who keeps, permits to be used, or suffers to be used, in conjunction with a licensed premises, any disorderly house or place in which people abide or to which people resort, to the disturbance of the neighborhood, or in which people abide or to which people resort for purposes which are injurious to the public morals, health, convenience, or safety, is guilty of a misdemeanor.’Section 24200(b) makes such violation of the Act a ground for suspension or revocation of a license.

3.  All code references herein point to the Business & Professions Code unless otherwise specified.

4.  Section 1013, Code of Civil Procedure, relating to service by mail, contains the following: ‘* * * The service is complete at the time of the deposit, but if, within a given number of days after such service, a right may be exercised, or an act is to be done by the adverse party, the time within which such right may be exercised or act be done, is extended one day, together with one day additional for every full 100 miles distance between the place of deposit and the place of address, if served by different post officers, but such extension shall not exceed thirty days in all.’

5.  § 23090: ‘A final order of the board on appeal from a decision shall be in writing, and copies thereof shall be delivered to the parties personally or sent to them by registered mail. The order shall be final upon its delivery or mailing, and no reconsideration or rehearing shall be permitted.’

ASHBURN, Justice.

FOX, P. J., and KINCAID, J. pro tem., concur.