In Turner v. Aon Risk Services, Inc., no. B174111 (Sept. 6, 2005), the Court of Appeal (Second Appellate District, Division Eight) reaffirmed its holding in Consumer Advocacy Group v. Kintetsu Enters, Inc., 129 Cal.App.4th 540 (2005) that Prop. 64 does not apply to pending cases:
The initial question before us is whether applying Proposition 64 to pending cases would violate the established rule against retrospective application of a new statute. Respondents contend that this case should be dismissed because Proposition 64 applies to eliminate appellant’s standing to pursue the present claim. Appellant asserts he has standing because applying the Proposition would violate the well-established principle against retroactive application of new legislation. We agree with appellant. We recently held in Consumer Advocacy Group, Inc. v. Kintetsu Enterprises of America that the application of Proposition 64 to pending cases is a retroactive or retrospective application of the law. (Consumer Advocacy Group, Inc. v. Kintetsu Enterprises of America (2005) 129 Cal.App.4th 540, 569.) Therefore, we find that Proposition 64 does not apply to this case.Slip op. at 3. What's interesting is that the unpublished Turner opinion was issued by a slightly different panel of justices. Justice Cooper authored Kintetsu, and was joined by Justices Boland and Johnson. Justice Flier authored Turner, and was joined by Justices Cooper and Boland. So we have a quorum of four justices in the Second District who believe that Prop. 64 may not be applied retroactively. Kintetsu remains the only citable published opinion that so holds.