The UCL Practitioner

Another Prop. 64 oral argument

Oral argument has been scheduled for November 17, 2005 at 9:00 a.m. in San Diego in Gutierrez v. Nick Pecoraro Painting & Decorating, Inc., case no. D044666 (Fourth Appellate District, Division One). In that case, the respondent moved to dismiss the appeal, arguing (I'm told) that Prop. 64 applied retroactively to strip the appellant of standing. That motion was denied. Later, the parties stipulated to stay the appeal pending the outcome of Mervyn's and Branick. The Court of Appeal rejected that stipulation, however, and ordered the parties to complete merits briefing.

November 17 is an auspicious date. At least one other appeal raising Prop. 64 retroactivity will be argued on that day. Dunham v. Memberworks, Inc., case no. A107261 (First Appellate District, Division Five) will be heard on November 17 at 11:00 a.m. in San Francisco (as I previously reported). If anyone attends one of these arguments and sends me a report, I will put it up. (I won't be able to attend myself due to a calendar conflict.)

Another upcoming Prop. 64 oral argument

The Court of Appeal (First Appellate District, Division Five) recently scheduled Dunham v. Memberworks, Inc., no. A107261, for oral argument on November 17, 2005 at 11:00 a.m. The Prop. 64 retroactivity issue was raised in a motion to dismiss in that case (the opposition to which is available here). The Court of Appeal denied the motion to dismiss without opinion, perhaps for reasons explained in United Investors v. Waddell & Reed, Inc., 125 Cal.App.4th 1300 (2005), which presumably means that the Prop. 64 issue has been deferred and will be decided concurrently with the merits. Given Division Five's recent decision in Wise v. Pacific Gas & Electric Co., ___ Cal.App.4th ___ (Sept. 12, 2005) (Prop. 64 portion of opinion unpublished), the outcome here probably won't be a surprise.

Wednesday's oral argument

As I mentioned the other morning, I argued the Prop. 64 retroactivity question before the Court of Appeal (First Appellate District, Division One) this week. If I had been simply an observer, I would now summarize what occurred and give you a prediction as to the outcome. As an attorney representing one of the parties, I can't speak with that much candor. I will say that I was pleased with the presentation I gave, and anxiously await the court's decision. I can also tell you that the Prop. 64 issue was argued in another case while I was waiting for mine to be called. That case primarily involved another substantive issue, so the parties spent very little time on Prop. 64. Justice Stein observed in both cases that Court of Appeal opinions, whether published or unpublished, are merely "words written on the wind" until the Supreme Court speaks.

Upcoming Prop. 64 oral argument

I've been retained to handle the oral argument for the plaintiffs/respondents in Hartford Fire Ins. Co. v. Superior Court, First Appellate District, Division One, case no. A109257, which is scheduled for this afternoon at 1:30. I'm looking forward to it. We haven't heard yet from the First District, Division One on Prop. 64 retroactivity. The issue was raised, but not decided, in Wilson v. Braun of California, Inc., ___ Cal.App.4th ___ (Sept. 2, 2005).

Report on this morning's Prop. 64 oral argument and some thoughts on retroactivity

My sincere and eternal thanks to the reader who attended this morning's oral argument in the Petrini Van & Storage case, and provided this detailed summary:

Petrini Van & Storage v. Superior Court,
Third Appellate District, case no. C049042

Oral argument on Friday, August 26, 2005, 9:30 a.m.

Panel: Justices Richard Sims, Rod Davis, Tani Cantil-Sakauye

Attorneys: Stephen C. Tedesco, Littler Mendelson, San Francisco argued for Petitioner. Kimberley Owens appeared only for Petitioner. Matthew J. Gauger, Weinberg Roger & Rosenfeld, Sacramento, argued for Real Party in Interest.

Writ from Sacramento Superior Court, Judge Loren McMaster's denial of defendant Petrini Van and Storage's Motion for Judgment on the Pleadings.

Summary of Oral Argument:

Justice Sims expressed awareness that whomever loses the decision by the Third District Court would petition for review before the Supreme Court, which counsel for petitioner acknowledged.

The sole issue addressed was whether Prop. 64 was applicable to pending cases. The focus was on whether it affected a vested right. Petitioner contended that the right to bring a representative action was purely statutory, and did not exist at common law. Tedesco contended that the substantive rights in this action, the prevailing wage laws, were not affected by Prop. 64.

Each of the three Justices suggested that the matter might be returned to the trial court to cure the standing defect by allowing the Union or a plaintiff with a cognizable injury to substitute in as plaintiff. Tedesco said that is a different lawsuit, the public withdrew this plaintiff's right to proceed with this suit by enacting Prop. 64.

Gauger, attorney for real party plaintiff/respondent Munoz, contended that the trial court's tentative ruling was well reasoned. Munoz had arranged his affairs to pursue a Business & Professions Code section 17200 suit. Justice Cantil questioned how an uninjured plaintiff could "arrange his affairs". Gauger responded that he did so by deciding to file individually, as a representative of the public, rather than as the carpenter's union, to make sure that the carpenters are paid the prevailing wage. He asked that the stay be lifted, and Munoz be permitted leave to amend, or alternatively, that another individual replace Munoz as the plaintiff.

Justice Sims interjected that everyone in the lawsuit has a substantive right at stake. He stated that this was "just a procedural standing issue". It was very hard for him to believe that the people of California cannot change standing in the middle of a suit. He read portions of Prop. 64, which referred to cases being "prosecuted", stating he understood the use of the word "prosecuted" to meant that the voters intended to change standing midstream. If Prop. 64 was only intended to apply in the future, the drafters would not have to say "and prosecuted", just writing "filed" would be enough.

Justice Davis inquired at the end of the argument, whether the case could be remanded to secure the cooperation of a public prosecutor. Tedesco responded that the prosecutor has not filed, and the right to bring a suit, includes the right not to sue.

Conclusion:

It appears that the Third District will find that Prop. 64 is procedural only, and does not affect substantive rights, and it was written to reflect an intent that it be applied to pending cases. The Court may reverse and remand, to permit plaintiff leave to amend.

Prop. 64 oral argument tomorrow in Sacramento

Tomorrow at 9:30, the Third District will hear oral argument in Petrini Van & Storage v. Superior Court, no. C049042. As you may recall, the trial judge in this case (Loren McMaster) issued one of the most detailed and best-reasoned orders holding that Prop. 64 does NOT apply retroactively to pending cases. The order specifically invited appellate review under Code of Civil Procedure section 166.1, and the Third District issued an alternative writ in March. With all the recent activity in the Supreme Court, the Prop. 64 question might not be as important to the appellate panel as it would have been a few months ago, but the argument should still be quite interesting. This will be the first ruling from the Third District on Prop. 64 retroactivity. Calling all Sacramento practitioners: if you attend and send me a report, I'd love to put it up.

17200 blog hiatus

I'm going to be away on vacation for the next week. Please do continue to email me with news about the UCL and/or Proposition 64. In the meantime, here are a few new items:

• The Court of Appeal scheduled oral argument in Petrini Van & Storage, Inc. v. Superior Court, Third Appellate District, case no. C049042, for August 26, 2005 at 9:30 a.m. It will be quite interesting to see what the Third District does with Prop. 64 retroactivity.

• The Court of Appeal also scheduled oral argument in Wilson v. Brawn of California, First Appellate District, Division One, case no. A106368, for July 15, 2005 at 9:00 a.m.

• A petition for review was recently filed in Cohen v. Health Net of California, Inc., ___ Cal.App.4th ___ (Apr. 27, 2005), which the Court of Appeal ordered partially published on May 25. The discussion of Prop. 64 was not published, but the petition for review addresses it. Many thanks to counsel for Mr. Cohen for providing a copy of his brief.

• The most recent issue of Mealey's California Section 17200 Report is now available. I hope that Mealey's will do a profile of me and my blog one of these days (hint, hint).

I think I set a new career record for billable hours this month (and yes, it's only the 24th). I'm hoping that my average weekly blog posts will go back up to normal in July. I'm feeling good and very ready for my vacation as I just got class certification granted in one of my cases today! Posting will resume during the week of July 5th so I'll talk to you then.