[00:00:00] Speaker 02: Our case for argument this morning is Hoops Vineyard versus County of Napa. [00:00:04] Speaker 02: You have 20 minutes per side. [00:00:05] Speaker 02: Counsel, you can come up when you're ready. [00:00:09] Speaker 02: And please let me know whether you'd like to reserve time for rebuttal. [00:00:14] Speaker 01: Morning, Your Honors. [00:00:14] Speaker 01: May it please the court? [00:00:16] Speaker 01: Joe Infante on behalf of the appellants. [00:00:18] Speaker 01: I'd like to reserve three minutes for rebuttal, please. [00:00:20] Speaker ?: Okay. [00:00:21] Speaker 01: Your honors, this case is not about stopping a state proceeding. [00:00:26] Speaker 01: This case is about preserving access to a federal forum. [00:00:29] Speaker 01: The district court extended Younger beyond its reaches and basically has excluded these plaintiffs and these appellants from having a federal forum. [00:00:38] Speaker 01: Given this court's focus order, I thought I would start with standing and finality unless the court would like me to start with the abstention issues. [00:00:45] Speaker 01: It looks like you're interested. [00:00:46] Speaker 02: I think it'd be helpful for you to start with our focus order. [00:00:49] Speaker 02: I thought so, too. [00:00:50] Speaker ?: Thank you. [00:00:51] Speaker 01: On a first, this is not a land use case. [00:00:54] Speaker 01: This is a constitutional case. [00:00:56] Speaker 01: And weave throughout the constitutional case is really the First Amendment. [00:01:00] Speaker 01: This is a First Amendment case regarding what conduct can occur at licensed wineries. [00:01:06] Speaker 01: And it's important to remember that all of these appellants are already licensed by Napa County to operate wineries. [00:01:13] Speaker 01: Smith Madrone, for instance, has been operating since 1971, 73, I believe. [00:01:18] Speaker 01: All of them, Hoops and Summit Lake, since the early 80s, they've been operating. [00:01:22] Speaker 01: They're licensed by the state of California to operate wineries. [00:01:26] Speaker 01: They are already subject to the Napa County ordinances. [00:01:30] Speaker 01: So this is not a case where they were denied a license or they denied a permit to operate. [00:01:35] Speaker 01: They've been operating for 40 and 50 years under these regulations, under these changing regulations. [00:01:43] Speaker 01: Under the courts below on these issues of standing and finality, I think it's important to remember that also Napa County brought a facial challenge here. [00:01:52] Speaker 01: Not a factual challenge, it brought a facial challenge. [00:01:54] Speaker 01: So all of the well-pled allegations in our Second Amendment complaint must be assumed to be true and interpreted in our favor here. [00:02:04] Speaker 01: So looking first at standing, because all of these wineries are already regulated, are already subject to these ordinances, [00:02:12] Speaker 04: luhan tells us that injury in fact is ordinarily not in question for these claims i'll start with the first amendment claimed i think that's the first question i mean isn't the art on our cases point in different directions with respect to finality for um it's a little more liberal with respect to first amendment but the the due process equal protection we generally don't allow a party to [00:02:35] Speaker 04: use the constitutional framing to get around the finality rule? [00:02:38] Speaker 01: Certainly true. [00:02:38] Speaker 01: I was speaking to the First Amendment claims. [00:02:40] Speaker 01: OK. [00:02:40] Speaker 01: On First Amendment claims, typically it's a more liberal pleading there, especially on facial challenges. [00:02:46] Speaker 01: It's usually injury in fact is presumed. [00:02:48] Speaker 01: But even under the SBA list test, we meet the criteria there. [00:02:54] Speaker 01: The first is, is there an intention to violate the restrictions? [00:02:59] Speaker 04: I guess this may be a question that will come up throughout this morning. [00:03:03] Speaker 04: Who's the we? [00:03:05] Speaker 04: Because it seems like the plaintiffs are differently situated. [00:03:10] Speaker 01: Certainly. [00:03:11] Speaker 01: Yes, they are certainly differently situated. [00:03:13] Speaker 01: Each are in their separate entities, different companies. [00:03:17] Speaker 01: They don't share finances. [00:03:19] Speaker 01: They don't share operations. [00:03:20] Speaker 01: They're in different parts of Napa County. [00:03:24] Speaker 01: Hoops, for example, is on the valley floor right off Highway 29. [00:03:27] Speaker 01: It's actually regulated under the agricultural preserve section of the ordinances. [00:03:33] Speaker 01: You have Summit Lake and Smith Madrone that are up in the hills actually on [00:03:36] Speaker 01: either side of Highway 29. [00:03:39] Speaker 01: They are actually regulated by the agricultural watershed section, but that weaves into the younger issue because they're not the same, right? [00:03:47] Speaker 01: That gets us into Doran, where Doran says, are they different companies? [00:03:51] Speaker 01: Do they have different finances? [00:03:53] Speaker 01: They don't share operations, you know, even below, not below, sorry, in the state court case, [00:03:59] Speaker 01: Napa County argued these wineries are not in privity. [00:04:04] Speaker 04: Well, I guess, I mean, set aside some of those details. [00:04:07] Speaker 04: How is Smith-Madrone similarly situated to the, I mean, as I understand, they're just subject to, as you said, they've had licenses, but they're under at least a slightly different regime. [00:04:22] Speaker 04: So how does that affect the [00:04:26] Speaker 04: First Amendment claims based on Napa's actions. [00:04:31] Speaker 01: Yeah, so the drone has a use permit, whereas Summit Lake and Hoops have a use permit exemption, since it's called there. [00:04:39] Speaker 01: So the drone is a little bit different. [00:04:42] Speaker 01: But the First Amendment claims the acts are the same. [00:04:44] Speaker 01: We allege in our First Amendment claim that, you know, you wanted us to focus on Smith-Bedrone and Summit Lake. [00:04:51] Speaker 01: For those two, they have done these things in the past. [00:04:54] Speaker 01: By these things, I mean private tastings. [00:04:58] Speaker 01: events had customers come to their wineries to consume wine. [00:05:04] Speaker 01: Specifically for Smith Madrone, we allege in the complaint that Smith Madrone has held events in the past. [00:05:10] Speaker 01: It has held and invited customers for private tastings. [00:05:14] Speaker 04: Where in the complaint would we find the best allegation for purposes of Smith Madrone's threat of prosecution, given that they're differently situated? [00:05:26] Speaker 01: Certainly well for the threat of prosecution what you have I think really the best allegation for that is to say what Napa's position is and that's in paragraph 351 of our complaint. [00:05:38] Speaker 01: It's also exhibit 41 to a complaint and this is a statement made by Napa County at trial in the state court case and this is what they say. [00:05:46] Speaker 01: This is a quote, what the county has interpreted and applied is you can't have hospitality. [00:05:52] Speaker 01: You can't have people coming onto the grounds, tasting wine, buying merchandise, holding events, DJs, other kinds of public events. [00:06:01] Speaker 02: And that applies to holders of the of the permit that Smith Madrone has as well as to the other as well as the others. [00:06:08] Speaker 01: Yes. [00:06:08] Speaker 01: Now, Smith Madrone has a little bit more permissions than Summit Lake does, according to Napa County, because what Napa County says for Summit Lake is you get zero customers. [00:06:20] Speaker 01: No one can come to your winery to consume wine. [00:06:24] Speaker 01: If anyone comes to your winery to consume wine, it's going to be a violation of the ordinances. [00:06:29] Speaker 01: Now, for Smith-Madrone, it's a little bit different. [00:06:32] Speaker 01: Now, historically, our allegation is Smith-Madrone didn't have a limit on the number of customers that could come to its winery to consume wine on a private basis, because that's actually what its use permit says. [00:06:45] Speaker 01: It says, you know, buy appointment. [00:06:48] Speaker 01: It won't be open to the public. [00:06:50] Speaker 01: And that's what they complied with. [00:06:52] Speaker 01: But sometime, and we don't really know how or why it happened, 2012, 2015, somewhere in that timeframe, it changed for Smith-Bidrone. [00:07:02] Speaker 01: And now Napa County's position is you can have 10 customers, well, they didn't call it customers, they say visitors. [00:07:10] Speaker 01: And that's one of our issues here is we don't really know what a visitor means. [00:07:13] Speaker 01: I don't think Napa knows what a visitor means. [00:07:15] Speaker 01: But they say you can have 10 visitors per week and 520 visitors per year. [00:07:23] Speaker 00: But Council, what I still haven't heard though, you started with the framing of the First Amendment and our focus order also pointed to Dry House. [00:07:33] Speaker 00: There, the SBA did already indicate that there was some disciplinary enforcement activity. [00:07:39] Speaker 00: So what specifically, what communications or what specific actions have been taken? [00:07:45] Speaker 00: vis-a-vis Smith-Madrone, or is it just simply the position that you say has been clearly conveyed in Napa? [00:07:53] Speaker 01: I think for Smith-Madrone, Summit Lake certainly has had enforcement against it. [00:07:56] Speaker 01: Napa County has told it. [00:07:58] Speaker 01: Summit Lake, do not do these things or you're going to get a violation. [00:08:01] Speaker 01: For Smith-Madrone, under Dry House, it doesn't have to be an action against Smith-Madrone, it can be against others. [00:08:07] Speaker 01: So we certainly have the, they're aware of the enforcement against Summit Lake. [00:08:11] Speaker 01: They're certainly aware of the enforcement against hoops. [00:08:14] Speaker 01: I mean, there is a ordinance enforcement actually against hoops. [00:08:17] Speaker 01: There is a $4 million judgment against hoops. [00:08:21] Speaker 01: There is a permanent injunction against hoops. [00:08:23] Speaker 01: That certainly is enforcement. [00:08:25] Speaker 01: In our complaint, we also alleged that there has been enforcement against others. [00:08:31] Speaker 01: We allege in paragraph 252 of the complaint that Napa County has enforced these changing interpretations, these restrictions on speech to other wineries and under dry house, that's enough. [00:08:45] Speaker 01: It doesn't have to be, the law doesn't require you to break the law. [00:08:52] Speaker 01: You don't have to break the law before you get into court. [00:08:54] Speaker 01: That's not what we require of parties. [00:08:57] Speaker 01: It's so long as you are aware of enforcement against others, that is enough. [00:09:02] Speaker 01: That is enough to state a claim. [00:09:04] Speaker 02: Can you move to talking about Summit Lake and Smith Madrone's due process equal protection and permit taking claims and to the question of whether those claims are actually right for our review? [00:09:16] Speaker 01: Certainly when we're looking at at ripeness again, it's important to know that Napa County only challenge those as applied claims. [00:09:26] Speaker 01: They didn't challenge any of our facial claims. [00:09:28] Speaker 01: So when you look at counts 5, 6, 9, 10, 11, they're a mix of facial and as applied claims. [00:09:36] Speaker 01: Napa County only moves on the apply claims, they don't move on the facial claims. [00:09:39] Speaker 01: And again, that's actually this court's Laval decision, where when you're looking at a facial claim, you don't have to comply with the finality and the ripeness. [00:09:49] Speaker 01: I know the court asked us to look at the focus decision talked about Williamson County. [00:09:55] Speaker 01: Now Williamson County was partially overruled by Nick. [00:10:00] Speaker 01: The second part of Williamson County doesn't apply anymore. [00:10:03] Speaker 01: You don't have to go file a state or court action and be rejected or that. [00:10:09] Speaker 01: And then you have Packdale which clarified further Williamson County because all Packdale requires is [00:10:15] Speaker 01: de facto finality has the county in this situation, do they have a position on this? [00:10:25] Speaker 04: Do they? [00:10:25] Speaker 04: It seems like the rest of your arguments are that they don't, that it changes from week to week, and so aren't those a little bit in tension? [00:10:34] Speaker 01: There's a push-pull on this argument here, on the vagueness, certainly, because you're right, Napa County [00:10:42] Speaker 01: They don't know what these terms mean. [00:10:44] Speaker 01: I mean, they have clearly admitted in the state court case. [00:10:49] Speaker 01: They've admitted in public that they don't know what these terms mean. [00:10:52] Speaker 01: And these terms have changed from time to time. [00:10:55] Speaker 01: But I think their position is we don't care that they're vague. [00:11:02] Speaker 01: We don't care that these things change from time to time. [00:11:06] Speaker 01: I mean, there is a [00:11:10] Speaker 01: There's a memo, it's actually in our, we cite to it in paragraph 313 to 323 in our complaint. [00:11:18] Speaker 01: There's a memo from Napa County from 2015. [00:11:22] Speaker 01: And what that memo says, I think it's to the Board of Supervisors, it says, our winery ordinances are vague. [00:11:30] Speaker 01: Our winery ordinances are unworkable. [00:11:33] Speaker 01: Enforcement doesn't know what to do with these ordinances. [00:11:37] Speaker 01: It doesn't know what to do with these terms That's what Smith Madrone applied for a permit under these ordinances. [00:11:43] Speaker 01: If it only has a use permit already There is no perm. [00:11:46] Speaker 04: It already has a use permit Right, but but if the concern is kind of what the regime under current Ordinances are and how the county will enforce it. [00:11:56] Speaker 04: Why doesn't it have as I understand the the the others are in [00:12:01] Speaker 04: have been in discussions, but why didn't Smith-Madrone have to push that a little further to show that it's right? [00:12:08] Speaker 01: Sure. [00:12:08] Speaker 01: The others are in discussion because they had the small winery exemption and Napa County had a compliance program, a voluntary compliance program. [00:12:16] Speaker 01: If you were an exemption, you could come in and ask Napa County to determine what your rights were. [00:12:22] Speaker 01: Uh, now the allegation from the Smith drone is not an exemption. [00:12:26] Speaker 01: It's a, it has a use permit. [00:12:28] Speaker 01: So I don't think it really fits into that program, but the allegation we make in our complaint is, you know, Smith drone didn't do that. [00:12:36] Speaker 01: It didn't voluntarily seek compliance or seek something from Napa county because what it's seen is that the wineries that did that. [00:12:45] Speaker 01: It took years. [00:12:46] Speaker 01: There are actually currently wineries, I believe today, who are still in that compliance program, and we're going on seven or eight years. [00:12:54] Speaker 01: And what happens is when you come out of that compliance program, you have less rights. [00:12:59] Speaker 01: You have less. [00:13:00] Speaker 01: That example is really Summit Lake. [00:13:04] Speaker 01: Summit Lake went and tried to do that compliance program and tried to say, what are our rights? [00:13:09] Speaker 01: And in order to increase a little bit of production, [00:13:13] Speaker 01: a couple visitors, a handful of visitors, what Napa County said was you need to widen and pave the road that leads not only to your winery, but four or five other wineries, and it's going to cost you more than a million dollars to do so. [00:13:29] Speaker 01: And they simply didn't have the money to do it. [00:13:32] Speaker 01: They couldn't finish the compliance program. [00:13:34] Speaker 01: And that's the exact same claim for Summit Lake is the county said, pay this road that's going to service all these homes and other wineries. [00:13:43] Speaker 01: It's going to cost you a million dollars. [00:13:44] Speaker 01: And for the benefit of that, you're going to get four or five visitors per day. [00:13:50] Speaker 01: The math doesn't work, right? [00:13:52] Speaker 01: That's the Nolan and Dolan. [00:13:54] Speaker 01: You don't have the proportionality there. [00:13:56] Speaker 01: So they had to come out of that program. [00:13:58] Speaker 01: But Smith-Madrone, because they've seen this, they didn't do it. [00:14:03] Speaker 01: But I don't think they needed to do it, because they saw the effect. [00:14:06] Speaker 01: They saw what they would be required to do. [00:14:08] Speaker 01: They saw the exactions. [00:14:09] Speaker 01: They saw the 75% rule, which is the Dormant Commerce Clause problem. [00:14:15] Speaker 04: And we also have what I guess to this goes a little bit to some of the concerns that underlie ripeness. [00:14:22] Speaker 04: What does a district court order look like that would provide Smith Madrone relief under those claims? [00:14:30] Speaker 01: The ultimate order the ultimate orphans from I think the ultimate order from the district court is just first Smith around to say Napa County is precluded from limiting the number of visitors you can have per day because your permit doesn't have that restriction. [00:14:46] Speaker 01: Napa County is prohibited from making you engage in a prior restraint so that you could have events because they had events before but now we've got to engage in a prior restraint and go seek approval from Napa County Napa County, you know in the. [00:15:01] Speaker 01: In the state court case, Napa County took the position that small wineries and small winery exemptions couldn't use any grapes that were not grown on their property or not grown in Napa County. [00:15:13] Speaker 01: So for Smith-Madrone, the answer is you don't have to abide by that. [00:15:19] Speaker 01: The injunctive relief for Smith-Marone here is pretty clear. [00:15:23] Speaker 01: It's very similar to the injunctive relief for Summit Lake, even though, yes, it does have a use permit, and Summit Lake has a small-winer exemption, and Hoops has a small-winer exemption. [00:15:33] Speaker 01: I don't want to forget about Hoops. [00:15:34] Speaker 01: I think for Hoops and Summit Lake, I think the injunctive relief in the end is the same for them. [00:15:41] Speaker 01: It's you're an exemption, and these are your rights as an exemption. [00:15:47] Speaker 01: But then overarching all of that, I don't, we're looking at our equal protection claim, equal protection claim, Napa County wineries are a single use in Napa County. [00:15:58] Speaker 01: They're just a use of winery. [00:16:01] Speaker 01: But under California law, all uses must be treated the same, treated equally. [00:16:08] Speaker 01: But when you look at the 2019 winery database attached to our complaint, and all the various different years of databases are attached there as well, Napa County doesn't treat any winery the same. [00:16:21] Speaker 01: They're all different. [00:16:23] Speaker 01: If you go to a winery in Napa County, if you go through that list, and we took out some of the examples. [00:16:27] Speaker 01: One of my favorite examples was there's a winery that has more visitors than like 300 other wineries combined, something like that. [00:16:37] Speaker 01: But none of that is based on objective criteria. [00:16:41] Speaker 01: Now, I know on equal protection, I'm stuck with rational basis, and it's a really hard standard of review. [00:16:47] Speaker 01: But there is no rational basis for that, because they don't do it on square footage. [00:16:51] Speaker 01: They don't do it on number of bathrooms, number of parking spaces. [00:16:56] Speaker 01: That's nowhere in their ordinance. [00:16:59] Speaker 01: It's just random, it's made up. [00:17:01] Speaker 01: And they actually, they know that. [00:17:03] Speaker 01: They know that they don't treat hotels and restaurants in the county. [00:17:08] Speaker 01: They don't restrict the number of visitors they can have by how many people or by visitors. [00:17:14] Speaker 01: They do it by building size. [00:17:16] Speaker 01: Same with, they understand that they're actually the only county in California. [00:17:20] Speaker 01: This is in our complaint, that the only county in California that limits the number of customers a business can have, a winery can have. [00:17:29] Speaker 02: Your honor, unless you have questions, I reserve the- Do either of you have questions on abstention? [00:17:34] Speaker 00: I was going to jump to the retaliation claims at some point, but- Go ahead. [00:17:39] Speaker 00: I'll make sure that you have three minutes for- Well, let's jump to the retaliation claims. [00:17:44] Speaker 00: Can you walk us through whether you have anything more, and I'm not saying that it's not enough, but the temporal proximity, the one month after the denial of interventions, [00:17:58] Speaker 00: Is that it, essentially, or is there more? [00:18:01] Speaker 01: I think that's it, but I think that's enough. [00:18:04] Speaker 01: That's what the courts tell us. [00:18:06] Speaker 01: The temporal proximity, it's within one month. [00:18:10] Speaker 01: The cases tell us that there are cases that say within 8 months is enough to put that question to a jury. [00:18:17] Speaker 01: Here we have within 1 month of seeking to intervene, Napa County sent these sting emails to these 2 wineries trying to entrap them. [00:18:29] Speaker 01: Now, I think the mistake that the district court made is it said, well, it's just enforcing its [00:18:35] Speaker 01: Ordinances, and they already told you you couldn't do these things, but that therein lies the problem, right? [00:18:40] Speaker 01: It already told some at Lake. [00:18:42] Speaker 01: The Napa has told something like you can't have private tastings. [00:18:47] Speaker 01: Within one month seeking to intervene, Napa County sends an email to Summit Lake trying to schedule a private tasting. [00:18:57] Speaker 00: No, but it would be more helpful and perhaps this is hard to do without discovery to have alleged and they sent it to no one else. [00:19:08] Speaker 00: If they sent it to all the wineries, then is that any evidence at all? [00:19:13] Speaker 01: That's a fantastic question and that's something actually I've been thinking about and I actually have it in my notes, right? [00:19:20] Speaker 01: But that's a discovery question. [00:19:21] Speaker 01: If we get into discovery and Napa County produces information that shows, look, we sent this exact same email to 300 other wineries within that time period. [00:19:34] Speaker 01: That's pretty good evidence for Napa County that this was not done in retaliation and it was business as usual. [00:19:39] Speaker 01: But if discovery shows that no, these were the only two wineries that got this, it's pretty good evidence for us that that was retaliation. [00:19:49] Speaker 01: But that's a discovery question and that's why that claim needs to get to discovery. [00:19:54] Speaker 01: And I think the Hoops retaliation is very similar because for Hoops, Napa County took enforcement action against the personal residence of one of the owners of Hoops [00:20:05] Speaker 01: contemporaneous with the counterclaim or the cross complaint in that case, which was completely separate and unrelated to that state court case. [00:20:19] Speaker 02: Okay, thank you. [00:20:19] Speaker 02: I have three minutes for rebuttal. [00:20:21] Speaker 02: Thank you. [00:20:36] Speaker 03: Good morning, your honors. [00:20:37] Speaker 03: Ryan McGinley Stemple on behalf of Napa County. [00:20:40] Speaker 03: I want to start by acknowledging and thanking the court for its focus order. [00:20:44] Speaker 03: My original plan with the court's indulgence was to briefly address abstention before spending the bulk of my time. [00:20:50] Speaker 03: Addressing the three justiciability issues identified by the court and then time permitting addressing any questions regarding retaliation But in light of the prior my colleagues arguments I'm happy to jump straight into justiciability if the court has no further questions on abstention Well, I guess if I could add an overlay to that it seems like the district court didn't reach a [00:21:12] Speaker 04: justiciability and because if the if the justiciability doesn't affect all the parties we we have jurisdiction the district court has jurisdiction to consider it why wouldn't we remand for the district court to sort out so there there are a few cases where the Supreme Court and we have suggested [00:21:39] Speaker 04: sort out the abstention where there's an abstention, but let the district court reach justiciability in the first instance. [00:21:46] Speaker 03: Well, for a couple of reasons, I don't think that's necessary, Your Honor. [00:21:49] Speaker 03: I think first, you know, the gravitational pull of this case as, you know, the abstention arguments key in on is with respect to the county's action between hoops and the county. [00:22:00] Speaker 03: And so, you know, [00:22:02] Speaker 03: If younger abstention applies to Hoops, the other two wineries can't piggyback off of Hoops' standing to create an Article III case or controversy. [00:22:13] Speaker 03: I also would say that I don't think that Hoops would have standing for under the Dormant Commerce Clause for the same reasons as some at Lake and Smith-Madrone. [00:22:21] Speaker 03: They're just not subject to the 75% grape threshold unless they expand their winery development area, for instance. [00:22:29] Speaker 03: That just leaves some at Lake and Smith Madrone and I think that, you know, I'm happy to walk the court through the various, you know, claims and questions as to why I just don't think that that is necessary. [00:22:41] Speaker 03: I just think that they haven't adequately alleged, you know, concrete specific facts to take this out of kind of an advisory opinion universe. [00:22:51] Speaker 03: You know, with respect to [00:22:54] Speaker 03: The first question was regarding the expressive activity and pre enforcement First Amendment claims one through four. [00:23:02] Speaker 03: They haven't alleged a course of conduct that is arguably affected with a constitutional interest that is arguably prescribed by the statutes in question within the meaning of Susan B Anthony. [00:23:12] Speaker 03: Summit Lake alleges at paragraph 126 that it has limited the amount of on premises sales due to fear of county enforcement, but that's not prescribed small small wineries with a use permit exemption are allowed to sell wine on premises bottles. [00:23:29] Speaker 03: That is they just aren't allowed to have tastings under 18 point. [00:23:35] Speaker 03: I don't see any specific allegations actually from Summit Lake itself saying it wants to host tastings. [00:23:43] Speaker 03: There's sort of generic allegations as to all plaintiffs as a mass that they wish to invite guests to their business to allow customers to taste their products and intend on holding cultural business and social events. [00:23:56] Speaker 03: But the problem with that is as to Smith-Madrone, it's allowed to do tastings by appointment under the terms of its use permit. [00:24:02] Speaker 03: So again, not something that's arguably prescribed. [00:24:05] Speaker 03: And as to both, tasting, the conduct of tasting is not arguably, it's not expressive. [00:24:11] Speaker 03: It's not, it's a conduct that doesn't implicate the First Amendment. [00:24:15] Speaker 03: As I think, you know, the district court recognized sort of glancingly in rejecting kind of the facial, their sort of facial challenge exception to younger. [00:24:27] Speaker 03: It's, I believe it's footnote four of one ER 15. [00:24:31] Speaker 03: citing the bnl productions case which in turn walks through the home away case in terms of this types of business activity is not expressive and doesn't implicate the first amendment relatedly you know in terms of the rubric of business social and cultural events you know business events similarly the types of you know events at a winery don't implicate expressive activity either so [00:24:55] Speaker 03: Which does leave, you know, social and cultural events, which, you know, in certain contexts may have an expressive component to them. [00:25:02] Speaker 03: But again, the problem there is they've hitched their wagon to the marketing of wine definition in terms of taking issue with their perceived inability to have events on. [00:25:13] Speaker 03: And that definition, that's 18.08.370, [00:25:18] Speaker 03: It talks about a marketing plan that's approved in conjunction with granting a use permit. [00:25:23] Speaker 03: So that was rolled out with the winery definition ordinance in 1990. [00:25:27] Speaker 03: And it's about approving a certain number of events a year that are not social or cultural events, that are winery-related events, business-focused. [00:25:39] Speaker 03: And in order to tap into, they haven't even applied for those use permits. [00:25:45] Speaker 03: Council acknowledged hoops and Summit Lake are subject to the small winery use permit exemption. [00:25:52] Speaker 03: And Smith-Madrone has a historical use permit from before the WDO. [00:25:58] Speaker 03: That is the winery definition ordinance, excuse me. [00:26:01] Speaker 03: And that the other issue is if you're trying to, the county has a process under Chapter 5, 5.36.010 of the county code, [00:26:11] Speaker 03: for temporary events of the sort of social, cultural variety. [00:26:15] Speaker 03: And that's a ministerial process. [00:26:17] Speaker 03: It's not sort of subject to the kind of discretion that creates a problem under the First Amendment. [00:26:22] Speaker 03: And so they haven't alleged a course of activity in the future that they intend to engage in that either implicates a constitutional interest because of the lack of expressive component to it, or that is arguably prescribed. [00:26:35] Speaker 03: And then in terms of the threat of future enforcement, I would agree that [00:26:40] Speaker 03: you know. [00:26:41] Speaker 03: Smith-Madrone is not similarly situated in terms of being worried about enforcement impacts vis-a-vis hoops. [00:26:49] Speaker 03: It doesn't have the same exact entitlement. [00:26:54] Speaker 03: Unlike, there hasn't been past enforcement against either Summit Lake or Smith-Madrone, there has been, to be sure, some give and take between Summit Lake and the county over the scope of its entitlements and warrant to increase visitation. [00:27:07] Speaker 03: But I don't read Exhibit 18 [00:27:10] Speaker 03: to the complaint, the second amended complaint to be, you know, anything enforcement related. [00:27:16] Speaker 03: The authority, I think notably also in distinction with the Susan B. Anthony case, the authority to file a complaint is limited to county officials. [00:27:27] Speaker 03: You know, that was part of the problem in that case with the threat of enforcement was that any person, it was sort of a citizen standing type provision where, you know, in a post-Dobbs world we see that happening. [00:27:37] Speaker 03: in the context of reproductive rights. [00:27:39] Speaker 03: That's not what we're dealing with here. [00:27:41] Speaker 03: And so you don't have that same threat of future enforcement. [00:27:44] Speaker 03: And you know, I think Council mentioned the winery database, you know, the visitation numbers. [00:27:49] Speaker 04: Has the county disavowed enforcement in the way that the wineries fear? [00:27:55] Speaker 03: So the county [00:27:57] Speaker 03: Does not disavows enforcement as to on premises sales of wine at both wineries and I think that takes a lot of the air out of summit lakes. [00:28:09] Speaker 03: Sales and it has no intention of bringing enforcement proceedings against Smith Madrone for conducting tastings by appointment which its permit permits they do focus on the winery database and the sort of which is again an information [00:28:24] Speaker 03: you know, collection, it's a tool that's meant to be, you know, helpful to the public. [00:28:29] Speaker 03: It is not something that determines the scope of land use entitlements or, for that matter, anything that drives county enforcement activities. [00:28:37] Speaker 03: So yeah, the county would not be enforcing, is prepared to disavow enforcing the sort of specific numeric visitation numbers in the winery database as to Smith-Madrone in the private tastings context. [00:28:54] Speaker 03: So, you know, I just think that for all of these reasons, their first amendment claims, while admittedly the standard is different as your honor noted between, you know, for standing under the first amendment for pre enforcement and for, you know, equal protection due process, the other claims, I still don't think that they have alleged a concrete enough of an intended future course of conduct that [00:29:16] Speaker 03: implicates that constitutional interest and is arguably prescriptive. [00:29:19] Speaker 04: But those points wouldn't apply, at least in the same way, to the retaliation claims. [00:29:26] Speaker 03: That is correct, Your Honor. [00:29:27] Speaker 03: I think that the retaliation claims were not looking at it through the standing lens. [00:29:30] Speaker 03: We're looking at it through a plausibility lens. [00:29:33] Speaker 03: And the challenge there, and I'll jump there before coming back to the other two sets of justiciability issues, is [00:29:41] Speaker 03: The retaliation claims for Summit Lake and Smith Madrone, as far as I read them, boiled down to three allegedly adverse actions after they sought to intervene in the state court action. [00:29:51] Speaker 03: So as to Smith Madrone, it's actually just one action. [00:29:53] Speaker 03: It's the email that was sent to the wife of a general partner in Smith Madrone, Julianne Codemer, who also represents other wineries, received a cryptic email from an address not affiliated with the county asking about hosting an event at, quote, your venue. [00:30:11] Speaker 03: I don't I don't see how that is sufficient to show a retaliatory animus on behalf of the county when it's you know it does to be sure she did say are you by by chance with the county and the anonymous account said by yes I am but I mean I don't think that that is enough to show either retaliatory animus on the county's behalf or that it came from the county in the first instance from a plausible standpoint. [00:30:33] Speaker 02: I mean, why isn't that plausible that it came from the county? [00:30:39] Speaker 02: I don't understand that. [00:30:40] Speaker 03: Well, I don't think it's plausible that the county had a retaliatory animus as to Smith-Madrone in the context of the face of that email, because again, [00:30:48] Speaker 03: This goes to her personal email, doesn't go to a smithmadrone.com email. [00:30:54] Speaker 03: It comes from Warren Protector, some anonymous account. [00:30:58] Speaker 03: It says your venue. [00:31:00] Speaker 03: And then she says, oh, I represent a bunch of wineries. [00:31:02] Speaker 03: Which one are you identifying? [00:31:04] Speaker 03: Are you with the county by chance? [00:31:05] Speaker 03: And the response is yes. [00:31:07] Speaker 03: So there's no actual mention of Smith Madrone in the context of that email. [00:31:11] Speaker 03: And that alone, I just don't think gets you to a point of either retaliatory animus or [00:31:16] Speaker 03: perhaps even more fundamentally, that it would chill a person of ordinary firmness from engaging in the protected activity at issue. [00:31:26] Speaker 03: Summit Lake, to their credit, as I understand them, alleges sort of two allegedly adverse actions, one being a similar email. [00:31:36] Speaker 03: But that email, that's in paragraph 781, they don't even [00:31:39] Speaker 03: mentioned that meets and bounds that email they just say something like received similar email so to me it's I just think that the complaint is utterly lacking in the specificity required to give rise to a plausible inference that there was a and even if we take. [00:31:54] Speaker 03: Kind of the exact same email and mirror image it in the context of summit like without a reference to summit like with just a reference vaguely to your venue and it deals with somebody who represents multiple wineries. [00:32:05] Speaker 03: That's not enough to show retaliatory animus or chill a person of ordinary firmness. [00:32:11] Speaker 03: So that leaves the road and street standards issue and admitted interestingly enough. [00:32:18] Speaker 03: After they intervene, historically in 2019, 2021, Summit Lake was on notice that this was something they were probably going to have to deal with if they were going to increase visitation at their winery. [00:32:32] Speaker 03: After they sought to intervene, there was a communication about maybe you might be subject to some exemption based on whether or not your parcel map has certain details in it. [00:32:46] Speaker 03: asked the court to just take a look at exhibit 18 to the complaint. [00:32:50] Speaker 03: That's what they say is sort of the ultimate retaliatory blow. [00:32:53] Speaker 03: It's a it's a letter from Jason Dooley from the county and it says, you know, like we looked at this and the parcel map doesn't have [00:33:01] Speaker 03: The sort of required language at issue in order to exempt you from the roads and street standards we studied this in light of this California attorney general opinion which kind of lays out the circumstances that very limited circumstances under which a personal map could be exempt from the are the roads and street standards and yours did not apply. [00:33:22] Speaker 03: And interestingly, in their complaint, they do not allege, but our parcel map did comply with the exemption for the roads and street standards. [00:33:30] Speaker 03: So I don't think that even that, I think Smith-Madrone, the case retaliation is extremely thin. [00:33:38] Speaker 03: But as to some, even with the roads and street standards interface, there's just not enough to show retaliatory animus or something that would chill a person of ordinary firmness. [00:33:51] Speaker 03: I do want to step back and just briefly tie back into the second question in the focus order involving the dormant commerce clause and the federal preemption claims. [00:34:02] Speaker 03: As to federal preemption, I have a hard time discerning exactly what this claim is even alleging. [00:34:09] Speaker 03: They certainly don't allege an injury, in fact, that's traceable to the county. [00:34:13] Speaker 03: or redressable by this court or the district court as I read it and that's. [00:34:18] Speaker 03: You know, paragraphs 743 to 746 of the amended complaint 2nd, minute complaint as to the dormant commerce clause. [00:34:26] Speaker 03: I think it is critical to focus that they're not, they're not subject to it as it only applies to pre-WDO wineries that expand beyond their winery development area. [00:34:36] Speaker 03: That's 18.104.250 of the county code. [00:34:40] Speaker 03: And winery development area is a term of art. [00:34:43] Speaker 03: It's defined contextually in 18.104.210. [00:34:49] Speaker 03: And it speaks to sort of the physical footprint of the winery, the paving, the structure. [00:34:54] Speaker 03: It's not just expanding your production. [00:34:56] Speaker 03: It's expanding your winery development area that subjects your additional production associated with that area to the 75% grape rule. [00:35:04] Speaker 03: And the purpose of that, which we don't need to get into today because that deals with the merits, but the purpose of that is to not be cannibalizing the agricultural land in the county without using the county grapes that you're making sure that you're actually employing them in making the wine. [00:35:21] Speaker 03: And the problem there is that they say, [00:35:24] Speaker 03: They wish to expand their operations at paragraph 616 and 6 to 5, but they don't say that they wish to expand their winery development operation winery development area. [00:35:35] Speaker 03: They just say they wish to expand. [00:35:36] Speaker 03: I don't think that's enough. [00:35:38] Speaker 03: It's certainly not enough specificity as to what would bring them into. [00:35:44] Speaker 03: applicability under the 75% rule. [00:35:47] Speaker 03: And so just like the private ambulance companies in Sierra Medical lack standing to bring a dormant commerce clause claim on behalf of out of state public ambulance companies, they lack standing to bring a dormant commerce clause claim in their own right and certainly not on behalf of out of county wineries that might have similar grievances. [00:36:08] Speaker 03: As to the the takings claim, the due process claims and the equal protection claims. [00:36:15] Speaker 03: I think your honor, Judge Johnstone keyed in on it earlier is that there's a final decision requirement there. [00:36:21] Speaker 03: They haven't sought one. [00:36:23] Speaker 03: I mean, Smith Madrone has. [00:36:25] Speaker 03: You know, just alleges it operates under a use permit from 1973 and it's never sought to modify it. [00:36:31] Speaker 03: It doesn't allege that it's seeking to modify it or that it's seeking to get a determination as to the scope of its entitlements. [00:36:39] Speaker 03: Summit Lake does allege that the county reached a final decision regarding its 2019 application, but it abandoned that application. [00:36:48] Speaker 03: It didn't actually bring that application to fruition and it hasn't shown that it'd be futile to pursue it. [00:36:55] Speaker 03: You know, it could have finished it, it could have sought a variance under County code section 18.128. [00:37:00] Speaker 03: If that wasn't successful, it could have appealed to the Board of Supervisors under Napa County code 2.88. [00:37:11] Speaker 04: a lot, I think maybe a page of your briefs discussed some of these questions about jurisdictions. [00:37:19] Speaker 04: So why wouldn't it be more prudent to let the district court revisit some of these kind of fact-specific questions about standing and timing and how the local ordinances work than for us to reach it in the first instance? [00:37:36] Speaker 03: well I don't I think you know subject matter jurisdiction I guess I know Kim might permit this court to address just younger but you know it is a you know. [00:37:45] Speaker 03: there's a suesponte obligation with subject matter jurisdiction. [00:37:49] Speaker 04: We have jurisdiction over the appeal, and so whether, I mean some of our cases suggest that a district court can parse those out in the first instance. [00:37:59] Speaker 04: Again, I think, well, arguments in response to the focus order are helpful. [00:38:06] Speaker 04: The county didn't give us a whole lot to work with with respect to these jurisdictional arguments. [00:38:11] Speaker 03: Yes, I think we're keying in on the fact that Stockton v. Brown deals with sort of the roadmap of dealing with abstention. [00:38:19] Speaker 03: And then there may be some aspects of the case, particularly in a third party abstention context, that hang around. [00:38:28] Speaker 03: And it does promote judicial efficiency, especially in circumstances like here, where there just isn't injury, in fact, that's traceable to county conduct that would be redressable by this court. [00:38:42] Speaker 03: I don't think it promotes judicial economy to send it back down to the district court when I do think that the allegations themselves just fall significantly short of where they need to be, even under the First Amendment standard, which I've discussed in some detail. [00:38:58] Speaker 03: And I would just note that Hohn, this court cited, talks about facts the case must be clear, complete, and unambiguous to meet the final decision requirement. [00:39:07] Speaker 03: That's at page 533. [00:39:09] Speaker 03: Now, admittedly, that's a case that found futility. [00:39:12] Speaker 03: But in that case, the Board of Supervisors had denied the landowners application to subdivide a 60 acre parcel of land into four 15 acre parcels. [00:39:22] Speaker 03: And then by legislative act amended the general plan in a way that basically said, you know, rezoned that parcel and said, you can't do what you want to do. [00:39:29] Speaker 03: So that's a very different type of futility than, you know, starting a process with the roads and street standards and then abandoning the application without taking it to the Planning Commission or the Board of Supervisors. [00:39:41] Speaker 03: I would just close by noting that for decades, the county's land use regulations have played a critical role in cultivating the development of Napa Valley wine industry while preserving the valley's agricultural character and the health, safety and welfare of the county's residents. [00:39:59] Speaker 03: These regulations require that wineries go through a comprehensive process to obtain a permit to ensure that they have adequate infrastructure to accommodate increased visitation, such as by hosting tastings and tours. [00:40:11] Speaker 03: Hoops didn't do that here. [00:40:13] Speaker 03: And when it became clear that the state court action wasn't going the way Hoops wanted it to go, it brought this case as a broadside against the ongoing nuisance enforcement action. [00:40:22] Speaker 03: That flies in the face of Younger. [00:40:24] Speaker 03: And the gravitational pull of the county state court action against Hoops is undeniable and casts a broad shadow in this case. [00:40:31] Speaker 03: Whether viewed through the lens of Younger abstention, justiciability, or plausibility, Summit Lake and Smith-Madrone have not pledged viable claims for relief in their own right. [00:40:40] Speaker 03: I would ask that the district court's orders be informed. [00:40:43] Speaker 03: Thank you. [00:40:43] Speaker 03: Thank you, Your Honor. [00:40:56] Speaker 01: Thank you, Your Honor. [00:40:58] Speaker 01: I'd like to hit just a few quick points. [00:41:01] Speaker 01: You know, on this idea of we didn't apply some legs with the drone hoops didn't apply for these permits. [00:41:08] Speaker 01: Part of our case is we don't need to apply. [00:41:11] Speaker 01: We have these rights. [00:41:13] Speaker 01: That's part of our case. [00:41:14] Speaker 01: When you look at our state law, preemption claim and our regulatory taking claim, our argument is under California ABC law, we are allowed to do. [00:41:23] Speaker 01: tastings. [00:41:24] Speaker 01: We are allowed to do samples. [00:41:25] Speaker 01: We're allowed to have food. [00:41:27] Speaker 01: These are all rights given by the state of California. [00:41:31] Speaker 01: Under the Tonkin case, which is a California state case, it says that case holds for the proposition that giving samples is obviously a form of advertising. [00:41:41] Speaker 01: There's the Fox case. [00:41:42] Speaker 01: I call it the Fox case. [00:41:43] Speaker 01: I think it's the State University of New York case. [00:41:45] Speaker 01: It's a U.S. [00:41:46] Speaker 01: Supreme Court case. [00:41:47] Speaker 01: Interestingly, dealing with Tupperware parties, [00:41:50] Speaker 01: But the takeaway from that case is product demonstrations are commercial speech. [00:41:57] Speaker 01: Here, a wine tasting is a product demonstration. [00:42:01] Speaker 01: I'm sure all the judges have had a wine tasting before. [00:42:04] Speaker 01: You get a sip of wine and the question is, do you like this? [00:42:07] Speaker 01: Is it too buttery? [00:42:09] Speaker 01: Is it too big for you, too bold? [00:42:13] Speaker 01: And you work through that tasting to get to the consumer to what do you like? [00:42:18] Speaker 01: What are you gonna buy? [00:42:18] Speaker 01: And they walk through that process and the goal is for that consumer to walk off your premises having bought a case of wine. [00:42:26] Speaker 01: Now I heard counsel say, well, we'll disavow [00:42:30] Speaker 01: enforcement of retail sales and he kind of walked a thread a little needle there because the county position is you can go to these wineries and buy a case of wine or a bottle of wine to go. [00:42:44] Speaker 01: The county says that's okay but what you cannot do especially at Hoops and Summit Lake is you can't try before you buy. [00:42:52] Speaker 01: So you can't do that product demonstration. [00:42:54] Speaker 01: You can't have that commercial speech. [00:42:57] Speaker 01: It's very difficult to sell someone a case of $100 bottles of wine if they're not allowed to try it first. [00:43:04] Speaker 01: They're not allowed to taste it first. [00:43:05] Speaker 01: That gets into the commercial speech claim. [00:43:08] Speaker 01: That's our regulatory taking claim with the state ABC laws. [00:43:11] Speaker 01: That's our preemption claim. [00:43:13] Speaker 01: I do want to talk about this idea that Summit Lake and Smith and Drone are piggybacking off hoops. [00:43:19] Speaker 01: They're not piggybacking off hoops. [00:43:22] Speaker 01: These are independent businesses that have their own constitutional rights. [00:43:26] Speaker 01: They have their own state rights, and they are defending those rights. [00:43:30] Speaker 01: And then circling to hoops, that's the Doran case. [00:43:33] Speaker 01: That's why this case is Doran, and it's not Hicks, and it's not Spargo, it's Doran. [00:43:38] Speaker 01: And we're talking about hoops. [00:43:40] Speaker 01: I think for hoops, you know, the county is this broad brush of this all-encompassing state case. [00:43:46] Speaker 01: The second amended complaint is 801 paragraphs. [00:43:48] Speaker 01: It's 102 pages, it's 14 claims. [00:43:51] Speaker 01: The state claim, 69 paragraphs, 17 pages, two claims. [00:43:56] Speaker 01: It is about public tastings. [00:43:59] Speaker 01: The only issue in the state case is public tasting. [00:44:01] Speaker 01: And we will look at NOPSI, an Amerisource virgin, to the US Supreme Court in a Ninth Circuit case. [00:44:07] Speaker 01: Those cases tell us that parallel proceedings are okay. [00:44:11] Speaker 01: That's what Hoops is bringing. [00:44:13] Speaker 01: Hoops is bringing a parallel proceeding. [00:44:14] Speaker 01: It's choosing a federal form for its federal case, federal claims. [00:44:19] Speaker 01: After a state forum said, no, I'm not going to let you bring those claims here, it has to have a forum somewhere for those claims. [00:44:26] Speaker 01: Okay. [00:44:26] Speaker 02: Let me stop you and see if either of my colleagues have any other questions. [00:44:29] Speaker 02: No? [00:44:30] Speaker 02: Okay. [00:44:30] Speaker 02: Thank you very much for your arguments. [00:44:32] Speaker 02: We thank both counsel for their helpful arguments in this case. [00:44:35] Speaker 02: This case is submitted and we stand in recess for the day. [00:44:38] Speaker 02: Thank you.