On January 9 and 10, the Court of Appeal issued two unpublished opinions, both of which address amending the complaint to substitute an affected plaintiff who can satisfy Prop. 64's standing requirements:
In Paz v. Sanders Oldsmobile-Cadillac, Inc. (Jan. 9, 2007) (Fifth Appellate District), the trial court held in 2005 that Prop. 64 did not apply retroactively to pending cases. Under Mervyn's, the Court of Appeal had to reverse that holding as well as the resulting judgment in the plaintiffs' favor. It then held, in light of Branick, that the appropriate procedure was to remand the case to the trial court for it to determine, in the first instance, whether leave to amend to substitute an affected plaintiff would be appropriate. Slip op. at 15-16. What's also interesting about this opinion is the fact that, consistent with Mervyn's, the court cited the pre-Prop. 64 "likely to deceive" formulation of the UCL's "fraudulent" prong. Id. at 17. (A copy of the trial court's January 2005 statement of decision in this case is accessible here; my February 2005 post on this case is here.)
In Bivens v. Sanford L.P. (Jan. 10, 2007) (Second Appellate District, Division Seven), the Court of Appeal held that the trial court abused its discretion by refusing to grant leave to amend to substitute an affected plaintiff. Slip op. at 5-7 (citing Branick and Foundation for Taxpayer & Consumer Rights v. Nextel Communications, Inc., 143 Cal.App.4th 131 (2006)). It reversed the judgment that the trial court had granted on the pleadings, and along with it, the award of costs in the defendant's favor. Id. at 7. The plaintiff had arged that "to allow costs arising from a judgment preordained by the passage of Proposition 64 amounted to an unlawful bill of attainder." Id. at 4. That's an interesting argument, but the Court of Appeal did not have to address it. (My December 2004 post on the trial court's tentative ruling on Prop. 64 retroactivity is here, and the tentative ruling itself is here.)
Thanks to the reader who emailed me about these unpublished opinions.