On Wednesday, the Supreme Court granted review in Bivens v. Gallery Corp., no. S140396. Briefing is deferred pending consideration of Mervyn's and Branick. My original posts on Bivens are here and here, and the Court of Appeal's (previously) published opinion is here.
Last Friday, a petition for review was filed in Hartford Fire Ins. Co. v. Superior Court, ___ Cal.App.4th ___ (Nov. 30, 2005), in which I (unsuccessfully) argued Prop. 64 retroactivity before the Court of Appeal (First Appellate District, Division One). Here is a link to the docket. On December 30, 2005, the Court of Appeal denied our petition for rehearing and modified the opinion to add the following language: "Finally, we deny Turner’s request to order the trial court to allow him to seek leave to amend his complaint to substitute a new plaintiff to satisfy the requirements of Proposition 64. Such a procedure would be inconsistent with the evident intent of the proposition to discourage persons who have not suffered actual injury from initiating litigation for violations of the UCL." Only a handful of the Prop. 64 appellate opinions prohibit the plaintiff from even attempting to seek leave to amend. For instance, the unpublished opinion in Dunham v. Memberworks (First Appellate District, Division Five) (Dec. 29, 2005) specifically held that the trial court has discretion to permit amendment to substitute affected parties. This issue is, of course, already before the Supreme Court in Branick.
Today, the Supreme Court issued a "grant and hold" order in Schwartz v. Visa Int'l Service Assn., 132 Cal.App.4th 1452 (2005). Briefing has been deferred pending the outcome of Mervyn's and Branick. Here is a link to the docket.
And as a programming note, my day job is ramping up considerably lately. As a result, posting may be less frequent than usual over the next several weeks.
On Wednesday, the Supreme Court denied the petition for review in Turner v. Aon Risk Services, no. S138015, an unpublished opinion in which the Second Appellate District, Division Eight held that Prop. 64 does not apply retroactively to pending cases. My original post on the Turner opinion is here.
Last week, on September 28, the Supreme Court issued a "grant and hold" order in Consumer Advocates Group, Inc. v. Kintetsu Enterprises, case no. S135587. Briefing is deferred pending the outcome of Branick and Mervyn's. The Court of Appeal's opinion, which held that Prop. 64 may not be applied to pending cases, was published at 129 Cal.App.4th 450 540 (2005). Like all the other cases in which the Supreme Court has granted review, and to quote Justice Stein from Wednesday's argument, it is now merely "words written on the wind."
Today, the Supreme Court denied review in McCann v. Lucky Money, Inc., no. S134874. As I reported on September 9, the Supreme Court had previously given itself an extension of time to decide whether to grant or deny review, leading to speculation that review might be granted even though the Court of Appeal's discussion of Prop. 64 retroactivity was unpublished.
As I previously reported, on August 19, the Supreme Court gave itself more time—until September 23—to grant or deny review in Cohen v. Health Net of California, Inc., no. S135104. Last week, on August 31, the Court issued a "grant and hold" order, granting review but deferring all further activity in the case until Mervyn's and Branick are resolved. So, we now know that it was, indeed, the Prop. 64 retroactivity issue that piqued the court's interest. This is the second case that the Supreme Court has taken up in which the Court of Appeal's Prop. 64 retroactivity discussion was unpublished.
On Wednesday, the Supreme Court issued a "grant and hold" order in Schulz v. Neovi Data Corp. (case no. S134073) (previously published at 129 Cal.App.4th 1 (2005)). What's interesting about this is that the discussion of Prop. 64 retroactivity is in the unpublished portion of the Schulz opinion. Regular readers may recall that I filed (as did counsel for Mr. Schulz) a request for partial publication of other parts of the Schulz opinion, relating to aider and abettor liability under the UCL. This is the first case in which the Supreme Court granted review of an intermediate appellate ruling in which the Prop. 64 retroactivity analysis was unpublished. It could be that the Court granted review because of two explanatory sentences in the introduction and in the conclusion that reveal the outcome of the unpublished Prop. 64 analysis (which was that Prop. 64 applies to pending cases). Many thanks to the reader who alerted me to this development. The case has been added to my list of pending Prop. 64 appeals.
Also, another new unpublished opinion, Quatman v. Raceway Ford, Inc. (Fourth Appellate District, Division Two) (July 20, 2005), was handed down yesterday. In Quatman, the unaffected plaintiff's UCL claim was reduced to judgment before Proposition 64 passed. The defendant's appeal was pending, but only from the attorneys' fees award, not from the underlying judgment itself. The Court of Appeal explained:
Here, Quatman’s claims under the Unfair Competition Law progressed to final judgment on the merits. No appeal was taken from such judgment. Instead, this appeal is limited to the amount which the trial court awarded to Quatman for his attorney fees and costs. Because there has been no challenge to the merits of the judgment, it stands. While it is true that, in an appeal from a postjudgment order awarding attorney fees we may review the entitlement to, as well as the amount of, the fees awarded [citation], here, the entitlement to the fees vested upon the vesting of Quatman’s claims under the Unfair Competition Law. [citation] Accordingly, the passage of Proposition 64 has not affected Quatman’s standing to continue his pursuit of attorney fees and costs.
Petition for review GRANTED. Further action in this matter is deferred pending consideration and disposition of a related issue in Californians for Disability Rights v. Mervyn's, S131798, and Branick v. Downey Savings & Loan, S132433 (see Cal. Rules of Court, rule 28.2(d)(2)), or pending further order of the court. Submission of additional briefing, pursuant to California Rules of Court, rule 29.1, is deferred pending further order of the court. The request for an order directing depublication of the opinion is denied as moot.
That means that as of today, the only citable precedents on Prop. 64 retroactivity are Kintetsu and Huntingdon Life Sciences. (Many thanks to the reader who brought these developments to my attention.)
Petitions for review were filed on July 15, 18, and 19 in Consumer Advocacy Group, Inc. v. Kintetsu Enterprises, ___ Cal.App.4th ___ (May 17, 2005) (Second Appellate District, Division Eight). Here is a link to the Supreme Court's docket. The Kintetsu opinion addressed a variety of issues, but its probably safe to assume that the review petitions raise the Prop. 64 retroactivity question, which was decided in the plaintiff's favor.