In California ex rel. Grayson v. Pacific Bell Tel. Co., ___ Cal.App.4th ___ (Aug. 31, 2006), the Court of Appeal (Third Appellate District) held that Prop. 64 applies retroactively to pending cases. Although decided more than a month after Mervyn's, the decision asserts that "the [retroactivity] issue is awaiting resolution by the Supreme Court." Slip op. at 25 & n.4 (listing cases, including Mervyn's and Branick, that are supposedly still pending before the Supreme Court). I'm very surprised no one at the Court caught this error. Thanks to the reader who emailed to bring this case to my attention.
UPDATE: On September 12, 2006, the Court of Appeal issued a modification order. It deleted the discussion of Prop. 64 retroactivity in its entirety, including footnote 4, and replaced it with this sentence: "The Supreme Court rejected this contention in Californians for Disability Rights v. Mervyn’s, LLC (2006) 39 Cal.4th 223, 227, holding 'the new provisions do apply to pending cases.'"