Filed 10/30/14 Beer v. Dept. Alcoholic Bev. Control CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

XIAM BEER,

Plaintiff and Appellant,

v.

DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL et al.,

Defendants and Respondents. B251940 (Los Angeles County Super. Ct. No. BC511535)

G. GREGORY WILLIAMS et al.,

Plaintiffs and Appellants,

v.

DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL et al.,

Defendants and Respondents. B252749 (Los Angeles County Super. Ct. No. BC511535)

APPEAL in No. B251940 from orders of the Superior Court of Los Angeles County. Robert S. Harrison, Commissioner. Appe al dismissed as to J une 25, 2013 order. Affirmed as to September 20, 2013 order.2 APPEAL in No. B252749 fro m a judgment and orders of the Superior Court of Los Angeles County. Joseph R. Kalin, Judge. Appeal dismissed as to October 11, 2013 and October 31, 2013 orders. Affirmed as to Octobe r 31, 2013 judgment.

______ G. Gregory Williams and Plernpit Polp antu, in pro. per., for Plaintiff and Appellant in No. B251940. G. Gregory Williams and Plernpit Polpan tu, in pro. per., for Plaintiffs and Appellants in No. B252749. Kamala D. Harris, Attorney General, A licia M. B. Fowler, Assistant Attorney General, Jerald L. Mosley and Mark Schreiber, Deputy Atto rneys General, for Defendants and Respondents Department of Alcoholic Beverage Control and Melissa

Beach in Nos. B 251940 and B252749. No appearance for Defendants and Re spondents RLR Investments, LLC; R & L Transfer, Inc.; and Mich elle Walsh in No. B252749. No appearance for Defendant and Respondent Morgan Imports, LLC in

No. B252749.

______ These two appeals are being considered together for purposes of oral argument and decision. In the first appeal, filed on October 9, 2013, Xiam Beer, a partnership, appeals from the June 25, 2013 order deny ing its fee waiver request and from the September 20, 2013 order striking it from the complaint due to nonpa yment of fees. We dismiss that appeal as to th e June 25, 2013 order denying the fee waiver request because it is not timely and affirm the September 20, 2013 order striking the complaint because Xiam Beer did not pay its fees. In the se cond appeal, filed on November 22, 2013, G. Gregory Williams and Pern plit Polpantu app eal from the judgment entered on October 31, 2013, after the trial court sust ained without leave to amend the demurrer of the Department of Alcoholic Beverage Co ntrol (Department) and Melissa Beach. We conclude the demurrer was properly sustai ned and thus affirm the judgment. The3 November 22, 2013 notice of appeal also references two nonappealable orders dated October 11, 2103 and October 31, 2013. We, th erefore, dismiss that appeal to the extent

it is from those orders.

DISCUSSION

1. The October 9, 2013 Appeal by Xiam Beer The October 9, 2013 notice of appeal is from (1) the June 25, 2013 order denying Xiam Beer’s fee waiver request and (2) the September 20, 2013 order striking Xiam Beer from the complaint due to nonpayment of fees. 1

As to the June 25, 2013 order denying Xiam Beer’s f ee waiver request, the notice of appeal is not timely. The order was ente red on June 25, 2013, and a file-stamped copy indicating the date of service was personally se rved by the clerk of the court that day. Xiam Beer thus had 60 days from June 25, 2013 to appeal from the order, i.e., on or before August 26, 2013 (Aug ust 24, 2013 was a Saturday ). (Cal. Rules of Court, rule 8.104(a)(1)(A) [party has 60 days to f ile a notice of appeal from service by the court clerk of a file-stamped copy of the judgment showing th e date of service].) The notice of appeal was not filed within that pe riod, but rather 44 days later on October 9, 2013. The notice of appeal, therefore, is not timely, and the appeal must be dismissed to

the extent it is from the June 25, 2013 order denying Xiam Beer’s fee waiver request. ( Van Beurden Ins. Services, Inc. v. Custom ized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56 [“time for appeali ng a judgment is jurisdictional; once the deadline expires, the appellate court has no power to entertain the appeal”].) As to the September 20, 2013 order st riking Xiam Beer from the complaint, the notice of appeal is timely, but the appeal is not meritorious. It is undisputed that Xiam Beer did not pay the fees necessitated by the denial of its fee waiver request, and its challenge to the denial of its fee waiver reque st is untimely. Accordingly, it has no basis

to overturn the order striki ng it from the complaint due to nonpayment of fees, and the September 20, 2013 order striking Xiam Beer from the comp laint is affirmed.

1 The notice of appeal states that the order denying the fee waiver request was entered on or about July 25, 2013. Th e order was entered on June 25, 2013.4 2. The November 22, 2013 Appeal by Williams and Polpantu The November 22, 2013 notice of appeal is from the judgment entered on October 31, 2013, after the trial court sustained wi thout leave to amend the demurrer to the complaint of the Department and Beach. In reviewing a judgment following the su staining of a demurrer without leave to amend, we decide de novo whet her the complaint states facts sufficient to state a cause of action. ( Hoffman v. State Farm Fire & Casualty Co. (1993) 16 Cal.App.4th 184, 189.) We treat the demurrer as admitting all facts properly pleaded, but we do not assume the truth of contentions, deductions or conclusions of law. ( City of Dinuba v. County of

Tulare (2007) 41 Cal.4th 859, 865 .) We also consider judicially noticed material. ( Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074 , 1081.) “[W]hen the allegations of the complaint contradict or are inconsistent with [judicially noticed] facts, we accept the latter and reject the former. [Citations.]” ( Blatty v. New York Times Co. (1986) 42 Cal.3d 1033, 10 40.) “The judgment must be affi rmed ‘if any one of the several grounds of demurrer is well taken. [Citations .]’ [Citation.] Howe ver, it is error for a trial court to sustain a demurrer when the plai ntiff has stated a cause of action under any possible legal theory. [Citation.]” ( Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) If we agree the complain t does not state a cause of action, we review the trial

court’s denial of leave to amend for an abuse of discretion. ( Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1381.) The plaintiff has the

burden to demonstrate that he can amend the complaint to cure the legal defects in the pleading. ( Wilner v. Sunset Life Ins. Co. (2000) 78 Cal.Ap p.4th 952, 959.) On June 7, 2013, Williams , Polpantu and Xiam Beer filed a complaint alleging causes of action against the Department and Beach for constructive fraud, interference with prospective economic advantage, wrongf ul eviction, breach of Government Code section 815.6, violation of 42 U.S.C. section 1983, inten tional infliction of emotional distress and declaratory and injunctive relief. They also alleged a cause of action against the Department for violation of Business and Professions Code section 17200. All causes5 of action related to the involu ntary surrender of the beer and wine wholesale license held by Polpantu. That involuntary surrende r was processed by the Department and specifically by Beach as an employee of the Department. According to the complaint’s allegations and the facts of which the trial court took judicial no tice, on September 25, 2012, the Department placed Polpantu’s license on “surrender” status when it received information that Polpan tu no longer was a tenant at the lo cation specified in the license. A pending applicati on exists for transfer of the licen se to Polpantu and Williams. On November 1, 2012, Polpantu appealed the involuntary surrender to the Department, which, on April 18, 2013, filed an order di smissing the appeal. Then, on May 13, 2013, Polpantu filed a writ petition in this Court seeking to overturn th e Department’s order dismissing the appeal. This Court summari ly denied the petition on May 23, 2013, and

the matter became final on that date. Neverthe less, the June 7, 2013 complaint followed.

Business and Professions Code section 23090 .5 provides, “No court of this state, except the Supreme Court and the courts of appeal to the extent specified in this article, shall have jurisdiction to review, affirm, re verse, correct, or annul any order, rule, or decision of the [D]epartment or to suspen d, stay, or delay the operation or execution thereof, or to restrain, enjoin, or interfere with the [D]epartme nt in the performance of its duties, but a writ of mandate shall lie from the Supreme Court or the courts of appeal in any proper case.” This section provides fo r “judicial review of the orders, rules or decisions or other acts of the [D]epartment in the performance of its duties when acting in

its administrative rather than in its limited judicial cap acity,” for which review is governed by Business and Profe ssions Code section 23090. ( Samson Market Co. v. Kirby (1968) 261 Cal.App.2d 577, 581 .) According to Williams a nd Polpantu, their complaint “challenges the legality of th[e] de facto revoc ation and state enforcement of an unlawful

eviction. This core set of ultimate facts is specifically [pleaded ], incorporated by

reference and forms the factual basis for each of the . . . causes of action directed against” the Department and Beac h. (Italics omitted.) This is the same type of challenge pursued in the writ petition filed by Polpantu , which Williams and Po lpantu concede was

based on Business and Professions Code secti on 23090.5. This Court summarily denied6 that petition. As a result, the demurrer proper ly was sustained on the ground that the trial court lacked jurisdiction over the complaint. Jurisdiction was with this Court or the Supreme Court, and relief was sought in and denied by this Court. Williams and Polpantu then contend that their complaint is something more than a challenge under Business and Professions Code section 23090.5 because it seeks damages against the Department and Beach based on “administrative malfeasance.” Even if this were the case, the Department and Beach are immune from liability for the causes of action asserted against them. “The Tort Claims Act provides that a public entity is not lia ble for an injury ‘[e]xcept as otherwise pr ovided by statute’ (Gov. Code, § 815). [Citation.] The purpose of the Tort Claims Act is not to expand the grounds for public entity liability, but to restrict those grounds to ‘“‘rigidly delineate d circumstances.’”’ [Citation.] Under the Tort Claims Act, public employees generally are liable for injuries caused by their acts or omissions to the same extent as privat e persons. (Gov. Code, § 820, subd. (a).) A public entity is vicariously liable for an injury proximately caused by an act or omission of its employee within the scope of employment if the act or omission would give rise to a cause of action against the employee. (Gov. Code, § 815.2, subd. (a).) But a public entity is not vicariously liabl e if the employee is immune from liability. ( Id. , subds. (a), (b)). [¶] A public employee acti ng within the scope of employment is immune from liability for an inju ry caused by the employee’s ‘instituting or prosecuting any judicial or administrative proceeding . . . even if he acts maliciously and without probable cause.’ (Gov. Code, § 821.6.) C ourts liberally construe ‘administrative proceeding’ to include inves tigatory and other activities in preparation for more formal proceedings. [Citation.]” ( Richards v. Department of Alcoholic Beverage Control (2006) 139 Cal.App.4th 304, 317-318 ( Richards ).) Beach’s actions to effect an involuntary surrender of Polpantu’s license fall within this scope of immunity, thereby immunizing her and the Department (Gov. Code, § 815.2, subd. (b)) from liabilit y for injury alleged by Williams and Polpantu.7 “Moreover, a public entity is immune fro m liability for an inju ry caused by the suspension, revocation, i ssuance, or denial of a license if the public entity is authorized by law to determine whether the license shou ld be suspended, revoked, issued, or denied. (Gov. Code, § 818.4.) The same im munity also applies to a public employee ( id. , § 821.2) and extends to the employer by vi rtue of section 815.2, subdivision (b). The immunity applies only to discretionary activities. [C itations.] Th e Department enjoys broad discretion with regard to licensing decisions. [Citations.]” ( Richards

, supra , 139 Cal.App.4th at p. 318, fns. omitted.) To th e extent Williams and Polpantu maintain that the involuntary surrender of th e license issued to Polpantu in effect constituted a suspension of th e license and that the Depart ment has failed to act on the

license transfer to Williams and Polpantu, they suggest an abuse of the Department’s licensing discretion, a decision for which the Department and Beach are immune. (See

ibid . [public entity immune from common law co unts relating to suspension of license, including causes of action fo r interference with prospective economic advantage and intentional infliction of emotional distress].) Williams and Polpantu claim their cause of action for br each of a mandatory duty as specified in Government C ode section 815.6 survives th e immunity statutes. That section provides, “Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against th e risk of a particular kind of injury, the public entity is liable for an injury of th at kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.” It thus a pplies to mandatory, not discretionary, duties. ( County of Los Angeles v. Superior Court (2002) 102 Cal.App.4th 627, 638-639.) The complaint, however, relates to the Department ’s discretion with respect to Polpantu’s

license. To the extent the complaint contains allegations regarding the Department’s exercise of that discretion, those are matter s that were at issue in the administrative proceedings, which ultimately concluded with this Court’ s denial of the writ petition pursuant to Business and Professions Code section 23090.5. Moreover, Williams and8 Polpantu have not established that a private right of acti on for damages exists based on

the exercise of such discretion. Williams and Polpantu also claim that their cause of action for violation of 42 U.S.C. section 1983 survives the immunity statutes. But, as noted on demurrer, Beach was acting in her official capacity as an em ployee of the Departme nt when she invoked the involuntary surrender of Polpantu’s license. Williams and Polpantu do not allege

otherwise. Neither a state agency nor its employee is a “person” subject to damages

under 42 U.S.C. section 1983 base d on an employee’s acts in his or her official capacity. ( Bank of Lake Tahoe v. Bank of America (9th Cir. 2003) 318 F.3d 914, 918 [neither state nor employees acting in official capacity ar e “persons” for purposes of damages under 42 U.S.C. § 1983], citing Will v. Michigan Dept. of State Police (1989) 491 U.S. 58, 66-67, 71 and Lapides v. Board of Regents (2002) 535 U.S. 613, 617.) As a result, sustaining the demurrer was proper. 2

In addition to the substa ntive ruling on the demurre r, Williams and Polpantu maintain the award of $990 in costs to the Department and Beach pursuant to

Government Code section 6103.5 is erroneou s because neither the Department nor Beach

filed a memorandum of costs. Government Code section 6103 provides, “Neither the state nor any county, city, district, or other political subdivision, nor any public officer or body, acting in his official capacity on behalf of the state, or any county, city, district, or other political subdivision, shall pay or deposit any fee for th e filing of any document or paper, for the performance of any official servic e, or for the filing of any stipulation or agreement which may constitute an appearan ce in any court by any other party to the stipulation or agreement.” Government C ode section 6103.5, subdivision (a), in turn states, “Whenever a judgment is recovered by a public agency named in [s]ection 6103,

2 Williams and Polpantu do not set forth any fact they could allege in an amended complaint to cure the defects in the operative pleading. Acco rdingly, they have presented no ground for leave to amend. They do argu e that the trial court erred by denying their motion for sanctions filed in conjunction with their oppos ition to the demurrer by the Department and Beach. Given the demurrer wa s meritorious, no basi s exists to sanction the Department and Beach for filing a frivolous demurrer.9 either as plaintiff or petitioner or as defendant or respondent, in a ny action or proceeding to begin, or to defend, which under the provis ions of [s]ection 6103 no fee for any official service rendered by the clerk of the court . . . has been paid . . . , the clerk entering the judgment shall include as a pa rt of the judgment the amount of the filing fee, and the amount of the fee for the service of process or notices which would have been paid but for [s]ection 6103, designating it as such. The clerk entering the judgment shall include as part of the judgment the amount of the f ees for certifying and preparing transcripts if the court has, in its discretion, ordered those fees to be paid.” The proposed judgment, including the costs award, wa s served on Williams and Polpan tu, and neither objected to the form of the judgment or any part thereof. Based on the lack of objection, and given

the mandate of Government Code section 6103. 5, subdivision (a), the amount of fees that would have been paid but for Government Co de section 6103 could be entered in the judgment without the filing of a memorandum of costs. 3 The November 22, 2013 notice of appeal also references an October 11, 2013 order striking Xiam Beer from the complain t as to defendant Morgan Imports, LLC, and an October 31, 20 13 order striking Xiam Beer from the complaint as to defendants RLR Investments, LLC; R & L Transfer, Inc.; a nd Michelle Walsh. It is unclear from the record why the complain t was again stricken as to Xiam Beer given the September 20, 2013 order striking it from the complaint for nonpay ment of fees. Nevertheless, both the October 11, 2013 and October 31, 2013 orders afforded Xiam Beer leave to amend and thus are not appealable orders . (Code Civ. Proc., § 581d; County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 312 [w hen motion granted with leave to amend, appeal lies only from ensuing dismissa l entered after plaintiff fails to amend].)

3 Williams and Polpantu also contend that the trial cour t could not enter judgment against them and award costs once it had determin ed that it lacked juri sdiction. They are incorrect. A trial court has jurisdiction to de termine its own jurisdic tion and then to enter judgment and award costs, which are incidental to the judgment. ( Brown v. Desert Christian Center (2011) 193 Cal.App.4th 733, 740-741.)10 As a result, the November 22, 2013 appeal is dismissed to the extent it relates to those nonappealable orders. 4

DISPOSITION The appeal in No. B251940 is dismissed to the extent it is from the order denying Xiam Beer’s fee waiver request. The order striking Xiam Beer from the complaint, also part of the appeal in No. B2 51940, is affirmed. The judg ment entered after the order sustaining without leave to ame nd the demurrer of the Department and Beach, at issue in the appeal in No. B2527 49, is affirmed. The appeal in No. B252749 is dismissed to the extent it is from the nonappealable Octobe r 11, 2013 and October 31, 2013 orders striking Xiam Beer from the co mplaint. The parties shall b ear their own costs on appeal.

NOT TO BE PUBLISHED.

ROTHSCHILD, P. J. We concur:

CHANEY, J. MILLER, J. *

4 Williams and Polpantu main tain that Xiam Beer’s Oc tober 9, 2013 notice of appeal stayed all matters in the trial court, wh ich then had no authority to enter any orders after that date, including ruling on the demu rrer. The notice of appeal, however, related only to Xiam Beer on a collateral issue regard ing its fee waiver request and the striking of the complaint. As a result, the court could rule on the demurrer, which related to Williams and Polpantu w ith respect to their claims agai nst the Department and Beach. The basis for the October 11, 2013 and Octobe r 31, 2013 orders striking Xiam Beer from the complaint is not, as noted , clear from the record, given the prior September 20, 2013 order striking it from the complaint. In any ca se, those orders are not appealable because, they afforded Xiam Beer leave to amend, and, therefore, any issues regarding those orders can be addressed after the conc lusion of the October 9, 2013 appeal.

* Judge of the Los Angeles Superior Cour t, Assigned by the Ch ief Justice pursuant to article VI, section 6 of the California Constitution.