On June 07, 2021 a
Motion-Secondary
was filed
involving a dispute between
Donald And Tedi Anderson,
Fritzsche, Deanna R,
Fritzsche, Gary E,
James & Mary Hackett,
Kevin M Charnesky And Jerri G Charnesky,
Miller, Stephen E,
Snow-Line Preservation Association, Llc,
Steven Glass And Carol Glass,,
and
California Department Of Alcoholic Beverage Control,
County Of San Bernardino,
Does 1-100,
Hudson, Michael,
San Bernardino County,
Snow-Line Orchard, Llc,
The Hudson Living Trust,
for Business Tort/Unfair Business Practice Unlimited
in the District Court of San Bernardino County.
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THIERRY R. MONTOYA (CA Bar No. 158400)
supERIORFCéUL a fl.
tmontoya@fbtlaw.com
N BENJAMIN L. CARTER (CA Bar N0.A336060) COUNTY 0F 32;
bcarter@fbtlaw.com
$$$$$ng
3’" KRNARDMO D'STR'CT
FROST BROWN TODD
1 MacArthur Place, Suite 200 MAR- 1
6 2023
Santa Ana, CA 92707
Tel: (714) 852-6800
Fax: (714) 852-6899 8y ,4
AMHoaqu..fi%m
\OOOVQUIAUJ
Attorneys for Defendants SNOW—LINE ORCHARD, LLC, THE
HUDSON LIVING TRUST, and MICHAEL HUDSON
SUPERIOR COURT 0F THE STATE OF CALIFORNIA
COUNTY OF SAN BERNARDINO, SAN BERNARDINO DISTRICT
10
SNOW-LINE PRESERVATION CASE N0.: CIVSB21 17580
11 ASSOCIATION, LLC, a California Limited
Liability Company, Assigned for all purposes to:
12 Honorable Wilfred J. Schneider, Jr.
Plaintiff and Petitioner, Department S32 - SBJC
TODD
13
ANA V BY FAX
BROWN 14 DEFENDANTS SNOW-LINE ORCHARD,
SANTA
SNOW-LINE ORCHARD, LLC, a California LLC, THE HUDSON LIVING TRUST
15 Limited Liability Company; AND MICHAEL HUDSON’S REPLY IN
FROST
THE HUDSON LIVING TRUST, a California SUPPORT OF MOTION TO STAY;
16 trust;
DECLARATION OF THIERRY R.
MICHAEL HUDSON, an individual; MONTOYA; PROPOSED ORDER
17 COUNTY OF SAN BERNARDINO, a
Municipal Corporation; Date: March 23, 2023
18 CALIFORNIA DEPARTMENT OF Time: 8:30 a.m.
ALCOHOLIC BEVERAGE CONTROL, a Dept: S32
19 Governmental Agency, and
DOES 1 through 100, inclusive, Action Filed: June 7, 2021
20
Defendants, Respondents, and
21 Real Parties in Interest.
22
23
24
In support of their Motion to Stay, Defendants SNOW—LINE ORCHARD, LLC, THE
25
HUDSON LIVING TRUST, and MICHAEL HUDSON (“the Snow—Line Orchard Defendants”) file
~26
this Reply. The Snow-Line Orchard Defendants set forth three grounds in support 0f their
request for
27
a stay: 1) Plaintiffs consented to the compulsory stay by filing no response in opposition; 2) Plaintiffs’
28
1
DEFENDANTS SNOW-LINE ORCHARD, LLC THE HUDSON LIVING TRUST AND MICHAEL HUDSON’S
REPLY IN SUPi’ORT OF MOTION TO STAY
A515105.0866913 4889-4500—8727v]
-\
‘w \r M
discovery practices Will prejudice Defendants absent a stay; and 3) Plaintiffs will not be prejudiced by
a stay. Consistent with their request, the Snow-Line Orchard Defendants specifically request that the
deposition notice 0f Defendant MICHAEL HUDSON and the requests for production addended
Ul-erJN
thereto be quashed because Plaintiffs should not be allowed to circumvent the presumptive stay by
unilaterally noticing a deposition and because Plaintiffs’ fishing expedition should be constrained.
1) Plaintiffs consented t0 the compulsory stay by filing no response in
opposition
\DOONON
The Motion to Stay should be granted because Plaintiffs filed no response in opposition to the
Snow-Line Orchard Defendants’ jurisdictional plea, i.e., that the primary jurisdiction doctrine compels
an immediate stay in deference t0 an ongoing parallel administrative appellate proceeding. Cf. Code
10
CiV. Proc., § 418. 10(e) (“Failure to make a motion [to quash service of summons] at the time of filing
11
a demurrer or motion to strike constitutes a waiver of . . . lack of personal jurisdiction”) Plaintiffs’
12
TODD
implicit concession is unsurprising given the compulsory nature of the primary jurisdiction doctrine.
13
ANA
See United States v. Gen. Dynamics Corp, 828 F.2d 1356 (9th Cir. 1987) (“[An] issue either is Within
BROWN 14
SANTA
agency’s primary jurisdiction 0r it is not, and if issue is within agency’s primary jurisdiction, court
15
FROST
may not act until agency has made initial determination”). The decision of the California Supreme
16
Court in Jonathan Neil & Associates., Inc. v. Jones (2004) 33 Cal.4th 917, as modified (Oct. 20, 2004)
17
is instructive.
18
The Jones Coun held that the trial court abused its discretion in not staying and referring the
19
insurance premium issue to the appropriate administrative agency. Id. at 935. In that case, an insured
20
obtained a jury verdict and an award 0f punitive damages against its insurer for breach if implied
21
covenant 0f good faith and fair dealing. On review, the California Supreme Court reversed the
22
judgment based upon the primary jurisdiction doctrine. Crucially, the high court criticized the trial
23
court for failing to stay the case at the outset of litigation:
24
The conduct of the trial that did occur in this case, without the benefit 0f the
25 premium issues, confirms the
Insurance Commissioner’s final determination of the
need Commissioner primary jurisdiction. The record reveals
to afford the Insurance
26
that at least six witnesses currently or formerly employed by the DOI testified about
27 the operation of [the rule governing he premiums assessed t0 truckers for their use
0f independent truckers or subhaulers] or the inner workings 0f the [California
28
2
DEFENDANTS SNOW-LINE ORCHARD, LLC THE HUDSON LIVING TRUST AND MICHAEL HUDSON’S
REPLY IN SUP’PORT OF MOTION TO STAY
AS]5]05.0866913 4889-4500-8727v]
Preview
w v _v , ‘ THIERRY R. MONTOYA (CA Bar No. 158400) supERIORFCéUL a fl. tmontoya@fbtlaw.com N BENJAMIN L. CARTER (CA Bar N0.A336060) COUNTY 0F 32; bcarter@fbtlaw.com $$$$$ng 3’" KRNARDMO D'STR'CT FROST BROWN TODD 1 MacArthur Place, Suite 200 MAR- 1 6 2023 Santa Ana, CA 92707 Tel: (714) 852-6800 Fax: (714) 852-6899 8y ,4 AMHoaqu..fi%m \OOOVQUIAUJ Attorneys for Defendants SNOW—LINE ORCHARD, LLC, THE HUDSON LIVING TRUST, and MICHAEL HUDSON SUPERIOR COURT 0F THE STATE OF CALIFORNIA COUNTY OF SAN BERNARDINO, SAN BERNARDINO DISTRICT 10 SNOW-LINE PRESERVATION CASE N0.: CIVSB21 17580 11 ASSOCIATION, LLC, a California Limited Liability Company, Assigned for all purposes to: 12 Honorable Wilfred J. Schneider, Jr. Plaintiff and Petitioner, Department S32 - SBJC TODD 13 ANA V BY FAX BROWN 14 DEFENDANTS SNOW-LINE ORCHARD, SANTA SNOW-LINE ORCHARD, LLC, a California LLC, THE HUDSON LIVING TRUST 15 Limited Liability Company; AND MICHAEL HUDSON’S REPLY IN FROST THE HUDSON LIVING TRUST, a California SUPPORT OF MOTION TO STAY; 16 trust; DECLARATION OF THIERRY R. MICHAEL HUDSON, an individual; MONTOYA; PROPOSED ORDER 17 COUNTY OF SAN BERNARDINO, a Municipal Corporation; Date: March 23, 2023 18 CALIFORNIA DEPARTMENT OF Time: 8:30 a.m. ALCOHOLIC BEVERAGE CONTROL, a Dept: S32 19 Governmental Agency, and DOES 1 through 100, inclusive, Action Filed: June 7, 2021 20 Defendants, Respondents, and 21 Real Parties in Interest. 22 23 24 In support of their Motion to Stay, Defendants SNOW—LINE ORCHARD, LLC, THE 25 HUDSON LIVING TRUST, and MICHAEL HUDSON (“the Snow—Line Orchard Defendants”) file ~26 this Reply. The Snow-Line Orchard Defendants set forth three grounds in support 0f their request for 27 a stay: 1) Plaintiffs consented to the compulsory stay by filing no response in opposition; 2) Plaintiffs’ 28 1 DEFENDANTS SNOW-LINE ORCHARD, LLC THE HUDSON LIVING TRUST AND MICHAEL HUDSON’S REPLY IN SUPi’ORT OF MOTION TO STAY A515105.0866913 4889-4500—8727v] -\ ‘w \r M discovery practices Will prejudice Defendants absent a stay; and 3) Plaintiffs will not be prejudiced by a stay. Consistent with their request, the Snow-Line Orchard Defendants specifically request that the deposition notice 0f Defendant MICHAEL HUDSON and the requests for production addended Ul-erJN thereto be quashed because Plaintiffs should not be allowed to circumvent the presumptive stay by unilaterally noticing a deposition and because Plaintiffs’ fishing expedition should be constrained. 1) Plaintiffs consented t0 the compulsory stay by filing no response in opposition \DOONON The Motion to Stay should be granted because Plaintiffs filed no response in opposition to the Snow-Line Orchard Defendants’ jurisdictional plea, i.e., that the primary jurisdiction doctrine compels an immediate stay in deference t0 an ongoing parallel administrative appellate proceeding. Cf. Code 10 CiV. Proc., § 418. 10(e) (“Failure to make a motion [to quash service of summons] at the time of filing 11 a demurrer or motion to strike constitutes a waiver of . . . lack of personal jurisdiction”) Plaintiffs’ 12 TODD implicit concession is unsurprising given the compulsory nature of the primary jurisdiction doctrine. 13 ANA See United States v. Gen. Dynamics Corp, 828 F.2d 1356 (9th Cir. 1987) (“[An] issue either is Within BROWN 14 SANTA agency’s primary jurisdiction 0r it is not, and if issue is within agency’s primary jurisdiction, court 15 FROST may not act until agency has made initial determination”). The decision of the California Supreme 16 Court in Jonathan Neil & Associates., Inc. v. Jones (2004) 33 Cal.4th 917, as modified (Oct. 20, 2004) 17 is instructive. 18 The Jones Coun held that the trial court abused its discretion in not staying and referring the 19 insurance premium issue to the appropriate administrative agency. Id. at 935. In that case, an insured 20 obtained a jury verdict and an award 0f punitive damages against its insurer for breach if implied 21 covenant 0f good faith and fair dealing. On review, the California Supreme Court reversed the 22 judgment based upon the primary jurisdiction doctrine. Crucially, the high court criticized the trial 23 court for failing to stay the case at the outset of litigation: 24 The conduct of the trial that did occur in this case, without the benefit 0f the 25 premium issues, confirms the Insurance Commissioner’s final determination of the need Commissioner primary jurisdiction. The record reveals to afford the Insurance 26 that at least six witnesses currently or formerly employed by the DOI testified about 27 the operation of [the rule governing he premiums assessed t0 truckers for their use 0f independent truckers or subhaulers] or the inner workings 0f the [California 28 2 DEFENDANTS SNOW-LINE ORCHARD, LLC THE HUDSON LIVING TRUST AND MICHAEL HUDSON’S REPLY IN SUP’PORT OF MOTION TO STAY AS]5]05.0866913 4889-4500-8727v]