Perfino v. California Department of Alcoholic Beverage Control , 458 F. App'x 699 ( 2011 )

FILED
NOT FOR PUBLICATION NOV 21 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARLOS PERFINO; JESS ZURANICH, No. 10-17057
Plaintiffs - Appellants, D.C. No. 2:09-cv-00833-GEB-
KJM
v.
STATE OF CALIFORNIA MEMORANDUM*
DEPARTMENT OF ALCOHOLIC
BEVERAGE CONTROL; STEVE
HARDY, Ex Officio; ELIZABETH
GRAZIA, Director; LORI AJAX,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, District Judge, Presiding
Submitted November 17, 2011**
San Francisco, California
Before: HAWKINS, McKEOWN, and M. SMITH, Circuit Judges.
Plaintiffs-appellants Perfino and Zuranich (collectively “Perfino”) claim that
due to incorrect, preliminary advice provided by the Department of Alcoholic
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Beverage Control (“ABC”), their then business partner, Juan Ayala, dissolved their
partnership, and withdrew an application to transfer a liquor license to the
partnership. Perfino filed numerous claims against ABC and its employees and
now appeals the district court’s award of summary judgment to ABC on his equal
protection claim, dismissal of the remaining claims, and denial of his motion for
reconsideration. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de
novo the grant of a motion to dismiss and a motion for summary judgment. Alaska
Right to Life Political Action Comm. v. Feldman, 504 F.3d 840, 848 (9th Cir.
2007). “[R]eview of a denial of a motion to reconsider is for abuse of discretion.”
Sch. Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993).
We do not reach the merits of Perfino’s claims as he fails to show (or even
allege) that ABC employees proximately caused his injuries. As the district court
noted in its summary judgment ruling, it was “Ayala’s withdrawal of his
application . . . [that] prevented” Perfino from obtaining the license, rather than any
action of ABC.
Proximate cause does not exist when “reasonable persons could [not] differ
over the question of foreseeability.” Conn v. City of Reno, 591 F.3d 1081, 1101
(9th Cir. 2010), vacated on other grounds, 131 S. Ct. 1812 (2011), reinstated in
relevant part, 658 F.3d 897 (9th Cir. 2011). Here, it is undisputed that two weeks
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into the investigation, a field official provided preliminary advice, which allegedly
resulted in Ayala withdrawing the application before the necessary paperwork was
even submitted. It was not foreseeable that this preliminary but erroneous advice,
without some more definitive agency action, would result in the damages claimed
by Perfino.
Although Perfino brings a number of claims, because he fails to allege or
provide evidence to establish that ABC was the proximate cause of his injuries, all
of these claims fail. The district court correctly dismissed the multiple state and
federal claims, entered summary judgment on the remaining equal protection
claim, and denied the motion for reconsideration.
AFFIRMED.
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