Yesterday, the Supreme Court granted review in Young America Corp. v. Superior Court, case no. S141766. Briefing has been deferred pending a decision in Mervyn's and Branick. The Court of Appeal's unpublished opinion is here, and my original post on that opinion is here.
With this order, the Supreme Court has broken away from its prior pattern of granting review only in cases in which the underlying Court of Appeal opinion is published. Perhaps the Court perceived that denying review could irreparably harm the petitioner. The Court of Appeal's ruling would have required the trial court to grant the defendant's motion for judgment on the pleadings without leave to amend. If that happened, and if the case were no longer pending when the Supreme Court ruled in Mervyn's and Branick, then the plaintiff would have no way of reinstating the case and benefiting from a potentially favorable ruling on Prop. 64 retroactivity. Issuing a "grant and hold" order ensures that the action will still be pending when the retroactivity question is finally resolved. This case differs from Brazil v. Sara Lee Corp., no. S141348, in which the Supreme Court denied review last month. In that case, the Court of Appeal's unpublished opinion remanded the case for further proceedings to determine whether leave to amend should be granted; the opinion did not mandate dismissal of the action in its entirety. If leave to amend is denied, an appeal may follow that ruling, and the case will likely still be pending when the Supreme Court decides Prop. 64 retroactivity.
This will be my new theory for why the Supreme Court grants review in some Prop. 64 retroactivity cases and not others.