Stanford Law School - Robert Crown Law Library

Filed 10/13/04

IN THE SUPREME COURT OF CALIFORNIA

BRONCO WINE COMPANY et al.,
Petitioners,
v.
JERRY R. JOLLY, as
S113136
Director, etc., et al.,
Ct.App. 3, No. C037254
Respondents;

NAPA VALLEY VINTNERS
) ORDER MODIFYING OPINION
ASSOCIATION,
[NO CHANGE IN JUDGMENT]
Intervener.
____________________________________)

BY THE COURT:
The opinion herein, appearing at 33 Cal.4th 943, is modified as follows:
1. In the sentence beginning on page 951 and continuing on page 952, the
word "almost" is inserted between the words "used" and "exclusively," so that the
sentence reads, "Under Bronco's ownership, all three of these brands have been
used almost exclusively to sell wines made from grapes grown outside Napa
County."
2. In the second sentence of footnote 5 on page 952, the term "scientific
surveys" is replaced with the term "survey results," so that the sentence reads,
"The Legislature's findings to the contrary, however, are supported both by

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testimony and survey results presented at the hearings disclosing consumer
confusion relating to such labels."
3. In the first sentence of the last partial paragraph on page 978, the word
"any" between the words "preempt" and "more" is deleted, so that the sentence
reads, "Bronco further suggests that subsequent to the enactment of 27 United
States Code section 205(e) in August 1935 and the adoption, by agencies within
the Department of the Treasury, of implementing regulations, both Congress and
the federal regulators manifested intent that the federal wine labeling regulations
would preempt more stringent state wine labeling regulations."
4. In the last two sentences of the full paragraph on page 980 and the
citation between the sentences, the words "additionally and broadly" between the
words "regulation" and "barred" are deleted, the word " 'production' " is replaced
with the word "sale," the reference to section 6 in the citation is deleted, and the
words "for wines produced" between the words "barred" and "in" are deleted, so
that these sentences and citation read, "Third, by 1942, a California regulation
barred the sale of wines labeled with so-called coined (or semi-generic) brand
names if the 'brand designation resembles an established wine type name such as
. . . Madeira, . . . Port, . . . Claret, [or] Burgundy, etc. . . . ' (See 1942 Regs., art. II,
§ 8.) Under this and subsequent versions of the same regulation, a label such as
'Burgundy brand' was long barred in California.50"
5. In the second sentence of the first paragraph on page 981, the words "for
wines produced in California" between the words "prohibited" and "name,"
together with the accompanying commas, are deleted, so that the sentence reads,
"The third provision described above prohibited name types that the federal
regulations have permitted since 1941 upon a proper showing."
The modification does not affect the judgment.

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Opinion Information

Date:	Docket Number:
Wed, 10/13/2004	S113136M

Disposition
Aug 5 2004	Opinion: Reversed

Dockets
Jan 28 2003	Petition for review filed   By counsel for Respondents {Manuel R. Espinoza et al.,}. / 40(K).
Jan 28 2003	2nd petition for review filed   By counsel for Intervenor {Napa Valley Vintners Association}. / 40(K).
Jan 28 2003	Record requested
Jan 29 2003	Received Court of Appeal record   one doghouse
Feb 13 2003	Application to appear as counsel pro hac vice filed   by attorney Kelly B. Kramer for petitioners Bronco Wine Company and Barrel Ten Quarter Circle, Inc.
Feb 13 2003	Application to appear as counsel pro hac vice filed   Application of attorney Peter M. Brody to appear on behalf of petitioners Bronco Wine Company and Barrel Ten Quarter Circle, Inc.
Feb 19 2003	Answer to petition for review filed   by counsel for petitioners (Bronco Wine Co. and Barrel Ten Quarter Circle, Inc.). (Timely filed per rule 40k)
Mar 21 2003	Time extended to grant or deny review   The time for granting or denying review in the above-entitled matter is hereby extended to and including April 28, 2003, or the date upon which review is either granted or denied.
Apr 16 2003	Petition for Review Granted (civil case)   Petitions Werdegar, J., was recused and did not participate. Votes: George, CJ., Kennard, Baxter, Chin, Brown and Moreno, JJ.
Apr 16 2003	Application to appear as counsel pro hac vice granted   The application of Peter M. Brody of Washington, D.C. for admission pro hac vice to appear on behalf of petitioners Bronco Wine Company et al. is hereby granted. (See Cal. Rules of Court, Rule 983.)
Apr 16 2003	Application to appear as counsel pro hac vice granted   The application of Kelly B. Kramer of Washington, D.C. for admission pro hac vice to appear on behalf of petitioners Bronco Wine Company et al. is hereby granted. (See Cal. Rules of Court, Rule 983.)
Apr 18 2003	Received Court of Appeal record   four doghouses
Apr 28 2003	Certification of interested entities or persons filed   by counsel for respondents (Manuel R. Espinoza as Director etc., et al.).
Apr 29 2003	Request for extension of time filed   by respondents and intervenor requesting to June 16, 2003 to file opening briefs on the merits. Documents filed: Extension request, Declaration of Terry Senne, and Proof of Service.
Apr 30 2003	Certification of interested entities or persons filed   by counsel for Intervenor (Napa Valley Vintners Assoc.).
May 1 2003	Certification of interested entities or persons filed   by counsel for petitioners (Bronco Wine Company & Barrel Ten Quarter Circle, Inc.).
May 1 2003	Extension of time granted   On application of respondents and intervenor and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including June 16, 2003.
Jun 17 2003	Opening brief on the merits filed   by counsel for respondents (Manuel R. Espinoza et al.). (40k)
Jun 17 2003	Opening brief on the merits filed   by counsel for intervenor (Napa Valley Vintners Assoc.). (40k)
Jun 17 2003	Request for judicial notice filed (in non-AA proceeding)   by counsel for Intervenor (Napa Valley Vintners Assoc.).
Jun 27 2003	Opposition filed   by counsel for petitioner (Bronco Wine et al.). Opposition to request for judicial notice filed by intervenor.
Jun 30 2003	Association of attorneys filed for:   Keker & Van Nest, LLP and Dickenson, Peatman & Fogarty, P.C., counsel for Intervenor (Napa Valley Vintners Assoc.) hereby associate the firm of Horvitz & Levy LLP.
Jul 9 2003	Request for extension of time filed   by counsel for petitioners (Bronco Wine Co. & Barrel Ten Quarter Circle, Inc.) requesting to August 16, 2003 to file answer brief on the merits. (granted - order being prepared)
Jul 11 2003	Extension of time granted   On application of petitioners and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including August 16, 2003.
Aug 12 2003	Request for extension of time filed   by petitioners requesting to Sept. 5, 2003 to file answer brief on the merits.
Aug 14 2003	Extension of time granted   On application of petitioners and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including September 5, 2003.
Sep 3 2003	Request for extension of time filed   petitioners (Bronco Wine Company and Barrel Ten Quarter Circle, Inc.) requesting to 9/15/03 to file answer brief on the merits. (granted - order being prepared)
Sep 5 2003	Extension of time granted   On application of petitioners and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including September 15, 2003.
Sep 16 2003	Answer brief on the merits filed   by counsel for petitioners (Bronco Wine Co. & Barrel Ten Quarter Circle, Inc.). (40k)
Sep 16 2003	Request for judicial notice filed (in non-AA proceeding)   by counsel for petitioners.
Sep 18 2003	Received document entitled:   Amended proof of service - from petitioners re answer brief on the merits. (Ellis Horvitz, Esq. was inadvertently omitted)
Sep 18 2003	Received document entitled:   Amended proof of service - from petitioner re request for judicial notice. (Ellis Horvitz, Esq. was inadvertently omitted)
Sep 18 2003	Request for extension of time filed   respondents (Manuel R. Espinoza et al.) and intervenor (Napa Valley Vintners Assoc.) requesting to Oct. 24, 2003 to file reply brief on the merits.
Sep 24 2003	Extension of time granted   To October 24, 2003 to file Respondents' {Manuel Espinoza et al.,} and Intervenor {Napa Valley Vinters Association} Reply Brief on the Merits.
Oct 10 2003	Request for extension of time filed   Respondents {Manuel R. Espinoza et al.,} and Intervenor {Napa Valley Vinters Association} requesting for a 30-day extension up to and including November 24, 2003 to file the Reply Brief on the Merits.
Oct 20 2003	Extension of time granted   To November 24, 2003 to file Respondents' {Manuel R. Espinoza et al.,} and Intervenor {Napa Valley Vinters Association} Reply Brief on the Merits.
Nov 17 2003	Application to file over-length brief filed   by counsel for Intervenor. Reply brief is 390 pages over limit.
Nov 17 2003	Received:   oversized reply brief from counsel for Intervenor. (to court for permission to file)
Nov 19 2003	Reply brief filed (case not yet fully briefed)   with permission by counsel for Intervenor (Napa Valley Vintners Assoc.).
Nov 24 2003	Reply brief filed (case fully briefed)   by counsel for respondents (Manuel R. Espinoza et al.).
Dec 23 2003	Received application to file Amicus Curiae Brief   and notice of motion and motion requesting judicial notice - by counsel for various wineries (Abundance Vineyards et al.) in support of petitioners.
Dec 23 2003	Received application to file Amicus Curiae Brief   by Jordan Vineyard & Winery, North Coast Winegrowers Assoc., et al., in support of respondents and intervenor.
Dec 26 2003	Filed:   Letter from counsel for petitioners (dated 12/23/03): requesting that oral argument not be scheduled during 2/19/04 through 3/8/04, or 6/25/03 through 8/3/04.
Jan 6 2004	Permission to file amicus curiae brief granted   Abundance Vineyards, et al.
Jan 6 2004	Amicus curiae brief filed   The application of Abundance Vineyards, et al., for permission to file an amicus curiae brief in support of petitioners is hereby granted. Answer due by any party within 20 days.
Jan 6 2004	Request for judicial notice filed (in non-AA proceeding)   by amici curiae's Abundance Vineyards, et al.
Jan 6 2004	Permission to file amicus curiae brief granted   Jordan Vineyard & Winery, North Coast Winegrowers Assoc. et al.
Jan 6 2004	Amicus curiae brief filed   The application of Jordan Vineyard & Winery, North Coast Winegrowers Assoc. et al., for permission to file an amicus curiae brief in support of respondents and intervenor is hereby granted. Answer due by any party within 20 days.
Jan 23 2004	Response to amicus curiae brief filed   Intervenor's answer to brief of amici curiae Abundance Vineyards et al.
Jan 26 2004	Filed:   Respondent's joinder in Intervenor's answer to brief of amici curiae Abundance Vineyards et al.
Jan 27 2004	Response to amicus curiae brief filed   petitioners answer to brief of amici curiae Jordan Vineyard & Winery, et al. (40k)
Jan 29 2004	Application to appear as counsel pro hac vice filed   appear pro hac vice. Thomas W. Beimers for petitioners Bronco Wine Company and Barrel Ten Quarter Circle, Inc.
Feb 2 2004	Application to appear as counsel pro hac vice granted   Thomas W. Beimers to appear on behalf of petitioners Bronco Wine Company et al.,
Apr 12 2004	Supplemental briefing ordered   The court requests the parties to file supplemental briefs in this case, addressing the effect, if any, of the following: 1. General food and beverage statutes enacted in the mid-nineteenth century and early twentieth century by other jurisdictions, including: 1895 Conn. Pub. Acts ch. 235, sections 1, 2, p. 578; 1899 Ind. Acts ch. 121, sec. 1, pp. 189-190; 1890 Md. Laws ch. 604, sec. 1, p. 733; 1882 Mass. Acts ch. 263, secs. 1-3, pp. 206-207; 1895 N.C. Session Laws ch. 122, secs. 1, 2, 5, pp. 176-178; 1905 N.D. Laws ch. 11, secs. 1-2, pp. 19-20; 1903 N.D. Laws ch. 6, secs. 1-2, pp. 9-10; 1905 N.Y. Laws ch. 100, sec. 1, p. 141; 1903 N.Y. Laws, ch. 524, sec. 1, p. 1192; 1893 N.Y. Laws, ch. 338; 1890 Ohio Laws sec. 3, p. 248; 1884 Ohio Laws sec. 3, p. 67; 1895 Pa. Laws No. 233, sec. 3, p. 317; 1905 S.D. Laws ch. 114, secs. 6, 8 & 10, pp. 162-163; 1897 Tenn. Pub. Acts ch. 45, secs. 1, 4, pp. 177-178; 1899 Wash. Laws ch. 113, secs. 1-3, pp. 183-184; 1879 Wis. Laws ch. 248, sec. 3, pp. 501-502. 2. Wine regulation statutes enacted in the mid-nineteenth century and early twentieth century by other jurisdictions, including: 1904 Ark. Acts ch. 103, sec. 5101; 1899 Ark. Acts act 80, pp. 137-138; 1897 Ark. Acts act 42, sec. 4, p. 108; 1887 Colo. Session Laws No. 330, secs. 3 & 4, pp. 18-19; 1887 N.Y. Laws ch. 603 secs. 1-4; 1891 Ohio Laws secs. 2-4, pp. 231-233; 1889 Ohio Laws p. 96 et seq. 3. Cal. Dept. of Pub. Health, Rules and Regulations for the Enforcement of the Cal. Pure Foods and Drugs Acts (1933), reg. 13(d) & (e), p. 18. 4. Cal. Dept. of Pub. Health, Bur. of Food and Drug Inspection, Definitions and Standards - Wines (adopted Dec. 31, 1934; as amended Apr. 13, 1935), pp. 1-3. 5. General food and beverage statutes of other jurisdictions extant in August 1935, including: Ark. Code Ann. ch. 69, secs. 4822, 4823 (1919); Colo. Rev. Stats. Ann. ch. 1, secs. 5, 6 (1930); Mass. Gen. Laws Ann. ch. 94, secs. 1, 187 (1932); 1923 N.D. Laws ch. 222, secs. 4, 6, pp. 289-291; N.Y. Agric. & Mkts. Law art. 17, sec. 2, pars. 2 & 3, sec. 200, pars. 2 & 3 (consol. 1930); Wash. Rev. Code tit. 40, ch. 12, secs. 6145, 6147 (1932). 6. California administrative bulletins and reports published in the mid-1930s and early 1940s, including: Cal. Dept. of Pub. Health Weekly Bull. (Feb. 19, 1938) pp. 13-14; Cal. Dept. of Pub. Health, 36th Biennial Rep. (Sept. 1940) p. 177; Cal. Dept. of Pub. Health, 35th Biennial Rep. (Sept. 1938) p. 142; Cal. Dept. of Pub. Health, 34th Biennial Rep. (Sept. 1936) p. 100. 7. Stats. 1939, ch. 1033, secs. 1-4, p. 2838; Cal. Dept. of Pub. Health, Reg. Establishing Standards of Identity, Quality, Purity and Sanitation and Governing the Labeling and Advertising of Wine in the State of Cal. (May 23, 1942) art. I, sec. 2(aa) & art. III, sec. 12(1). 8. 16 Tex. Admin. Code ?? 45.45(b) & (c) (1976) & 45.52(1) (1976); Wash. Admin. Code, secs. 314-24-003(5) (1976) & 314-24-040(4). 9. Or. Liquor Control Com. (OLCC) rule 845-10-292(6)(c), eff. 3-01-1977 (currently OLCC rule 845-010-0920(1) & (2)); OLCC rule 845-10-292(6)(e), eff. 3-01-1977 (currently OLCC rule 845-010-0902(f)). (Copies of the regulations adopted in 1933, 1934, and 1942 (see nos. 3, 4 & 7, ante) will be provided to the parties with this order.) Simultaneous supplemental letter briefs shall be filed in the San Francisco office of the court on or before Monday, April 26, 2004. Reply letter briefs may be filed in the San Francisco office of the court on or before Monday, May 3, 2004. The court anticipates that this matter may be set for oral argument in late May or June 2004.
Apr 26 2004	Received:   letter from counsel for Intervenor, Napa Valley Vintners Association, re scheduling of oral argument.
Apr 26 2004	Supplemental brief filed   Napa Valley Vintners Assoc.( Intervenor)
Apr 26 2004	Supplemental brief filed   Respondent ( Jolly).
Apr 26 2004	Supplemental brief filed   By petitioners {Bronco Wine Co. et al.,}
Apr 28 2004	Case ordered on calendar   5-24-04, 9am, SF.
May 3 2004	Supplemental brief filed   Reply by Petitioners {Bronco Wine Co., et al.,}.
May 3 2004	Supplemental brief filed   Letter Reply of Intervenor ( Napa Valley Vintners) .
May 3 2004	Supplemental brief filed   Letter Reply of Respondent ( Jolly).
May 3 2004	Request for judicial notice granted   The various requests for judicial notice in this matter are resolved as follows. The request of Intervenor Napa Valley Vintners Association, filed June 17, 2003, is granted as to Exhibits B-D, and denied as to Exhibit A. The request of petitioner Bronco Wine Company et al., filed September 16, 2003, is granted. The request of amicus curiae on petitioner's behalf, Abundance Vineyards, et al., filed January 6, 2004, is granted.
May 6 2004	Received:   petitioner's errata to reply supplemantal brief.
May 6 2004	Received:   Petitioners' errata to supplemental reply brief.
May 11 2004	Request for judicial notice filed (granted case)   By counsel for Intervenor {Napa Valley Vintners Association}.
May 14 2004	Filed:   Petitioners' (Bronco Wine Company et al.,} response to Intervenor's Motion for Judicial Notice.faxed.
May 24 2004	Cause argued and submitted
Aug 5 2004	Opinion filed: Judgment reversed   and remanded to CA. Majority Opinion by George, C.J. Joined by Kennard, Baxter, Chin, Brown, Moreno, Swager, JJ. (Hon. Douglas E. Swager, AJ CA1/1)
Aug 20 2004	Rehearing petition filed   by counsel for petitioners (Bronco Wine Company and Barrel Ten Quarter Circle, Inc.).
Aug 25 2004	Time extended to consider modification or rehearing   to and including November 3, 2004.
Aug 30 2004	Filed:   Respondent's (Jerry R. Jolly) joinder in intervenor's answer to petition for rehearing.
Aug 30 2004	Answer to rehearing petition filed   by counsel for Intervenor Napa Valley Vintners Assoc.
Oct 13 2004	Rehearing denied   Opinion modified. Werdegar, J., was recused and did not participate.
Oct 13 2004	Opinion modified - no change in judgment
Oct 13 2004	Remittitur issued (civil case)
Oct 18 2004	Received:   Receipt for remittitur - from CA3.
Mar 21 2005	Certiorari denied by U.S. Supreme Court

Briefs
Jun 17 2003	Opening brief on the merits filed
Jun 17 2003	Opening brief on the merits filed
Sep 16 2003	Answer brief on the merits filed
Nov 19 2003	Reply brief filed (case not yet fully briefed)
Nov 24 2003	Reply brief filed (case fully briefed)
Jan 6 2004	Amicus curiae brief filed
Jan 6 2004	Amicus curiae brief filed
Jan 23 2004	Response to amicus curiae brief filed
Jan 27 2004	Response to amicus curiae brief filed

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