                                                                              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                           NOT FOR PUBLICATION                                NOV 21 2011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


                                          -2-
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.




                                          -3-
