Pesce v. Department of Alcoholic Beverage Control

SHENK, J.

This is an appeal from a judgment of the Superior Court, Alameda County, ordering a writ of mandate directing the Alcoholic Beverage Control Appeals Board to set aside its order dismissing the petitioner’s appeal from a decision of the department.

The question presented is whether section 1013 of the Code of Civil Procedure applies to extend the 40 day period prescribed by section 23081 of the Business and Professions Code for taking an appeal from a decision of the department.

The facts are undisputed. On July 25,1956, the department rendered a decision recommending that the petitioner’s on-sale license be revoked. A copy of the decision, addressed to the petitioner, was deposited by the department in the United States mail at Sacramento on July 26, 1956. The petitioner received it in Oakland on July 27, 1956. On September 4, 1956, he mailed a notice of appeal to the principal office of the board at Sacramento. This notice was received by the board on September 5, 1956. It thus appears that the notice of appeal was received by the board at Sacramento on the 41st day after the copy of the decision was mailed to the petitioner. The board dismissed the appeal on the ground that it was not taken within the time prescribed by section 23081 of the Business and Professions Code. That section provides: “Within 40 days after the decision of the department is delivered or mailed to the parties, any party aggrieved . . . may appeal to the board. . . . The appeal shall be in writing. ... A copy of the appeal shall be mailed by the appellant to each party who appeared . . . including the department which shall thereafter be treated ... as a party. ...”

It is the board’s position that the time for taking an appeal from a decision of the department is limited by section 23081 to 40 days and that to be effective the notice of appeal must be filed with the board within that period. The petitioner contends that the period prescribed by section 23081 is extended by the provisions of section 1013 of the Code of Civil Procedure, and as extended, his notice was filed within the period provided by law.

Section 1013 provides: “In case of service by mail, the notice or other paper must be deposited in the United States post office ... in a sealed envelope, with postage paid, addressed to the person on whom it is to be served. . . . The

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