In Lyons v. Chinese Hosp. Assn., ___ Cal.App.4th ___ (Feb. 6, 2006) (published Feb. 24, 2006), the Court of Appeal (First Appellate District, Division Two) held that the defendant waived its right to argue that Prop. 64 applied to the case by not raising the issue soon enough:
In a letter filed less than one week before oral argument, defendant CHA advised this court of its intent to rely at oral argument upon three cases relating to the issue of the retroactive application of Proposition 64. Proposition 64 was passed by the electorate on November 2, 2004, and became effective the following day. It amended certain provisions of the Unfair Competition Law and the false advertising law. At no time during the past year has defendant raised in this appeal any issue relating to the retroactive impact of Proposition 64. Clearly defendant has waived the right to raise the issue in this appeal. (Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4; Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2004) 9:21, p. 9-6.)(Slip op. at 2 n.2.) The Court of Appeal then held that the trial court should have awarded attorneys' fees under Code of Civil Procedure section 1021.5 to a UCL plaintiff who successfully obtained injunctive relief but whose other causes of action failed.