REIMEL v. COHON (1967)

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

Malcoln E. REIMEL, Director of the Department of Alcoholic Beverage Control of the State of California, Plaintiff and Appellant, v. ALCOHOLIC BEVERAGE CONTROL APPEALS BOARD, Defendant and Respondent; Charles COHON and Irving Sirbu, Real Parties in Interest and Respondents. (and 5 other cases).

Civ. 22905, 22906, 22994, 22995, 23282 and 23401.

Decided: December 15, 1967

Thomas C. Lynch, Atty. Gen of the State of California, and L. Stephen Porter, Deputy Atty. Gen., San Francisco, for appellants. J. Bruce Fratis, San Francisco, for respondents Charles Cohon, Irving Sirbu, Jack Dorian and Walter Matoff. Charles P. Just, Chief Counsel, Alcoholic Beverage Control Appeals Bd., Sacramento, for respondent Appeals Bd. Saveri & Saveri, Richard Saveri, San Francisco, for respondents Catherine Carella and Michael Carella. Rinaldo A. Carmazzi, Barbagelata, Broderick, Carmazzi & Arnold, San Francisco, for respondents Fred and Henry J. Lancelotti.

OPINION ON DENIAL OF REHEARING

We have considered the licensee-respondent's respective petitions for rehearing.

Respondents Carella (1 Civ. 22994) and Carella and Maniscalco (1 Civ. 22995) vigorously urge that this court failed to consider an important issue properly raised in their briefs. This issue is stated as ‘There was no proof of publication of the pertinent minimum price schedules Prior to their effective date.’ The contention raises a theory relating to the Time of publication as distinguished from the Fact or Manner of publication. We have again reviewed the record. The only pertinent statement of defense raised below alleged: ‘XI. That said minimum retail price schedules and the filings thereof were invalid and ineffective to establish the minimum resale prices of the distilled spirits subject of the Accusation and did not comply with s 24755 of the Business and Professions Code.’

The contention now being discussed reasonably might have been considered as within the issues at the time of the Department hearing. However, the theory was not pointed out, argued or considered at the hearings before the Department, the Appeals Board or the superior court, and the Department was afforded no opportunity to meet it. It is urged for the first time on this appeal. ‘A party is not permitted to change his position and adopt a new and different theory on appeal.’ (Ernst v. Searle, 218 Cal. 233, 240—241, 22 P.2d 715, 718; 3 Witkin, Cal.Procedure, p. 2264, s 96.) This rule is applicable to appeals such as those before us. (See Nelson v. Department of Alcoholic Beverage Control, 166 Cal.App.2d 783, 788, 333 P.2d 771.) Licensee-respondents Lancelotti (1 Civ. 23401) who presented the same point on their appeal concede that it was not urged below by them.

Rehearing denied.

SIMS, Acting Presiding Justice.

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