Supreme Court of California Justia
Docket No. S113136M
Bronco Wine v. Jolly

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


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,
ยง 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.
Opinion Information
Date:Docket Number:
Wed, 10/13/2004S113136M

Parties
1Jolly, Jerry R. (Respondent)
Represented by Terry Senne
Office of the Attorney General
P.O. Box 70550
Oakland, CA

2Napa Valley Vintners Association (Intervener)
Represented by John W. Keker
Keker & Van Nest
710 Sansome Street
San Francisco, CA

3Napa Valley Vintners Association (Intervener)
Represented by James Moxon Emery
Keker & Van Nest
710 Sansome St
San Francisco, CA

4Napa Valley Vintners Association (Intervener)
Represented by Ellis J. Horvitz
Horvitz & Levy LLP
15760 Ventura Blvd 18FL
Encino, CA

5Napa Valley Vintners Association (Intervener)
Represented by Richard Paul Mendelson
Dickenson, Peatman & Fogarty, PC
809 Coombs Street
Napa, CA

6Bronco Wine Company (Petitioner)
Represented by Steven L. Mayer
Howard, Rice, Nemerovski, Canady, Falk & Rabkin
3 Embarcardo Center, 7th Floor
San Francisco, CA

7Bronco Wine Company (Petitioner)
Represented by Peter M. Brody
ROPES & GRAY
1301 K Street, N.W., Suite 800 East
Washington, DC

8Bronco Wine Company (Petitioner)
Represented by Jerome B. Falk
Howard, Rice, Nemerovski, Canady, Falk & Rabkin
3 Embarcadero Center, 7th Floor
San Francisco, CA

9Bronco Wine Company (Petitioner)
Represented by Kelly B. Kramer
ROPES & GRAY
1301 K Street, N.W., Suite 800 East
Washington, DC

10Barrell Ten Quarter Circle (Petitioner)
Represented by Steven L. Mayer
Howard, Rice, Nemerovski, Canady, Falk & Rabkin
3 Embarcardo Center 7Th Fl
San Francisco, CA

11Barrell Ten Quarter Circle (Petitioner)
Represented by Peter M. Brody
ROPES & GRAY
1301 K Street, N.W., Suite 800 East
Washington, DC

12Barrell Ten Quarter Circle (Petitioner)
Represented by Jerome B. Falk
Howard, Rice, Nemerovski, Canady, Falk & Rabkin
3 Embarcadero Ctr 7FL
San Francisco, CA

13Barrell Ten Quarter Circle (Petitioner)
Represented by Kelly B. Kramer
ROPES & GRAY
1301 K Street, N.W., Suite 800 East
Washington, DC

14Department Of Alcoholic Beverage Control (Respondent)
Represented by Terry Senne
Office of the Attorney General
P.O. Box 70550
Oakland, CA

15Abundance Vineyards (Amicus curiae)
Represented by John A. Hinman
Hinman & Carmichael LLP
260 California St #1001
San Francisco, CA

16Jordan Vineyard & Winery Et Al. (Amicus curiae)
Represented by Kevin M. Fong
Pillsbury Winthrop LLP
P O Box 7880
San Francisco, CA


Disposition
Aug 5 2004Opinion: Reversed

Dockets
Jan 28 2003Petition for review filed
  By counsel for Respondents {Manuel R. Espinoza et al.,}. / 40(K).
Jan 28 20032nd petition for review filed
  By counsel for Intervenor {Napa Valley Vintners Association}. / 40(K).
Jan 28 2003Record requested
 
Jan 29 2003Received Court of Appeal record
  one doghouse
Feb 13 2003Application 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 2003Application 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 2003Answer 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 2003Time 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 2003Petition 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 2003Application 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 2003Application 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 2003Received Court of Appeal record
  four doghouses
Apr 28 2003Certification of interested entities or persons filed
  by counsel for respondents (Manuel R. Espinoza as Director etc., et al.).
Apr 29 2003Request 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 2003Certification of interested entities or persons filed
  by counsel for Intervenor (Napa Valley Vintners Assoc.).
May 1 2003Certification of interested entities or persons filed
  by counsel for petitioners (Bronco Wine Company & Barrel Ten Quarter Circle, Inc.).
May 1 2003Extension 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 2003Opening brief on the merits filed
  by counsel for respondents (Manuel R. Espinoza et al.). (40k)
Jun 17 2003Opening brief on the merits filed
  by counsel for intervenor (Napa Valley Vintners Assoc.). (40k)
Jun 17 2003Request for judicial notice filed (in non-AA proceeding)
  by counsel for Intervenor (Napa Valley Vintners Assoc.).
Jun 27 2003Opposition filed
  by counsel for petitioner (Bronco Wine et al.). Opposition to request for judicial notice filed by intervenor.
Jun 30 2003Association 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 2003Request 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 2003Extension 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 2003Request for extension of time filed
  by petitioners requesting to Sept. 5, 2003 to file answer brief on the merits.
Aug 14 2003Extension 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 2003Request 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 2003Extension 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 2003Answer brief on the merits filed
  by counsel for petitioners (Bronco Wine Co. & Barrel Ten Quarter Circle, Inc.). (40k)
Sep 16 2003Request for judicial notice filed (in non-AA proceeding)
  by counsel for petitioners.
Sep 18 2003Received document entitled:
  Amended proof of service - from petitioners re answer brief on the merits. (Ellis Horvitz, Esq. was inadvertently omitted)
Sep 18 2003Received document entitled:
  Amended proof of service - from petitioner re request for judicial notice. (Ellis Horvitz, Esq. was inadvertently omitted)
Sep 18 2003Request 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 2003Extension 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 2003Request 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 2003Extension 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 2003Application to file over-length brief filed
  by counsel for Intervenor. Reply brief is 390 pages over limit.
Nov 17 2003Received:
  oversized reply brief from counsel for Intervenor. (to court for permission to file)
Nov 19 2003Reply brief filed (case not yet fully briefed)
  with permission by counsel for Intervenor (Napa Valley Vintners Assoc.).
Nov 24 2003Reply brief filed (case fully briefed)
  by counsel for respondents (Manuel R. Espinoza et al.).
Dec 23 2003Received 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 2003Received application to file Amicus Curiae Brief
  by Jordan Vineyard & Winery, North Coast Winegrowers Assoc., et al., in support of respondents and intervenor.
Dec 26 2003Filed:
  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 2004Permission to file amicus curiae brief granted
  Abundance Vineyards, et al.
Jan 6 2004Amicus 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 2004Request for judicial notice filed (in non-AA proceeding)
  by amici curiae's Abundance Vineyards, et al.
Jan 6 2004Permission to file amicus curiae brief granted
  Jordan Vineyard & Winery, North Coast Winegrowers Assoc. et al.
Jan 6 2004Amicus 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 2004Response to amicus curiae brief filed
  Intervenor's answer to brief of amici curiae Abundance Vineyards et al.
Jan 26 2004Filed:
  Respondent's joinder in Intervenor's answer to brief of amici curiae Abundance Vineyards et al.
Jan 27 2004Response to amicus curiae brief filed
  petitioners answer to brief of amici curiae Jordan Vineyard & Winery, et al. (40k)
Jan 29 2004Application 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 2004Application to appear as counsel pro hac vice granted
  Thomas W. Beimers to appear on behalf of petitioners Bronco Wine Company et al.,
Apr 12 2004Supplemental 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 2004Received:
  letter from counsel for Intervenor, Napa Valley Vintners Association, re scheduling of oral argument.
Apr 26 2004Supplemental brief filed
  Napa Valley Vintners Assoc.( Intervenor)
Apr 26 2004Supplemental brief filed
  Respondent ( Jolly).
Apr 26 2004Supplemental brief filed
  By petitioners {Bronco Wine Co. et al.,}
Apr 28 2004Case ordered on calendar
  5-24-04, 9am, SF.
May 3 2004Supplemental brief filed
  Reply by Petitioners {Bronco Wine Co., et al.,}.
May 3 2004Supplemental brief filed
  Letter Reply of Intervenor ( Napa Valley Vintners) .
May 3 2004Supplemental brief filed
  Letter Reply of Respondent ( Jolly).
May 3 2004Request 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 2004Received:
  petitioner's errata to reply supplemantal brief.
May 6 2004Received:
  Petitioners' errata to supplemental reply brief.
May 11 2004Request for judicial notice filed (granted case)
  By counsel for Intervenor {Napa Valley Vintners Association}.
May 14 2004Filed:
  Petitioners' (Bronco Wine Company et al.,} response to Intervenor's Motion for Judicial Notice.faxed.
May 24 2004Cause argued and submitted
 
Aug 5 2004Opinion 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 2004Rehearing petition filed
  by counsel for petitioners (Bronco Wine Company and Barrel Ten Quarter Circle, Inc.).
Aug 25 2004Time extended to consider modification or rehearing
  to and including November 3, 2004.
Aug 30 2004Filed:
  Respondent's (Jerry R. Jolly) joinder in intervenor's answer to petition for rehearing.
Aug 30 2004Answer to rehearing petition filed
  by counsel for Intervenor Napa Valley Vintners Assoc.
Oct 13 2004Rehearing denied
  Opinion modified. Werdegar, J., was recused and did not participate.
Oct 13 2004Opinion modified - no change in judgment
 
Oct 13 2004Remittitur issued (civil case)
 
Oct 18 2004Received:
  Receipt for remittitur - from CA3.
Mar 21 2005Certiorari denied by U.S. Supreme Court
 

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