Thanks to the reader who advised me that on August 8, 2006, Californians for Disability Rights filed a petition for rehearing in the Mervyn's case. Two days later, the Supreme Court granted itself an extension of time, through October 20, 2006, to rule on the petition. On August 16, 2006, Mervyn's filed its answer to the petition. I do not yet have copies of either of these briefs and would be grateful to anyone who forwards a copy. Here is a link to the Mervyn's docket.
UPDATE: The editor of Mealey's California Section 17200 Report kindly forwarded a copy of the Mervyn's petition for rehearing. The petition asks the Supreme Court to clarify that the Branick holding (which allows plaintiffs to seek leave to amend to substitute an affected person) will apply to the Mervyn's case itself on remand. It also asks for permission to seek leave to amend in the Court of Appeal instead of the trial court, which is an excellent strategy. That would allow the Court of Appeal to proceed to address the merits of the appeal faster than if the case were first remanded to the trial court. Depending on the state of the appellate record, that might also be a good strategy for some of the other cases, like Mervyn's, that were already pending on appeal when Prop. 64 passed.
UPDATE: A reader just forwarded a copy of the answer to the petition for rehearing, which Mervyn's filed on Wednesday. Mervyn's argues (among other things) that leave to amend can never be granted post-judgment. That strikes me as a dubious argument because Branick itself was pending on appeal, post-judgment, when Prop. 64 passed. In Branick, the Court of Appeal decided to address the substantive issue, and resolved it in the plaintiff's favor, before it addressed Prop. 64 retroactivity. But for its retroactivity holding, the judgment of dismissal would have been reversed and the plaintiff's case reinstated at the trial court level. Instead, the Court of Appeal opinion ends by saying that the case is remanded for the trial court to determine whether to grant leave to amend.
In Mervyn's, the Court of Appeal elected to decide the defendant's motion to dismiss first, and issued a published opinion denying the motion. That opinion addressed Prop. 64 retroactivity only. Supreme Court review was sought and granted, and the Court of Appeal suspended further briefing pending the outcome of the Supreme Court petition.
Because of these procedural distinctions, the Supreme Court's opinion in Branick simply concludes by saying that the Court of Appeal's judgment is affirmed. The Mervyn's opinion, by contrast, states that the Court of Appeal's judgment is reversed and the case remanded for further proceedings. It seems to me that the next step in Mervyn's is for the Court of Appeal to decide whether the motion to dismiss the appeal must now be granted. It makes a great deal of sense to ask the Supreme Court to clarify whether that court may consider the request for leave to amend, because if an affected party may be substituted at the appellate level, there is no need to dismiss the appeal. What does not make sense would be to hold, contrary to Branick, that substitution is not permitted as a matter of law in Mervyn's, simply because of the procedural method the Court of Appeal chose to employ in deciding the Prop. 64 retroactivity question.