The UCL Practitioner

New Prop. 64 retroactivity opinion: Hartford Fire Ins. Co. v. Superior Court

This afternoon, the Court of Appeal (First Appellate District, Division One) issued its opinion in Hartford Fire Insurance Co. v. Superior Court, ___ Cal.App.4th ___ (Nov. 30, 2005). That is the case in which I handled the oral argument. Unfortunately, we lost. The opinion contains an interesting discussion of Myers v. Philip Morris Companies, Inc., 28 Cal.4th 828 (2002).

New UCL arbitration/unconscionability decision: Aral v. EarthLink, Inc.

Yesterday, the Court of Appeal (Second Appellate District, Division Four) affirmed a trial court order denying a motion to compel arbitration of a UCL class action. Aral v. EarthLink, Inc., ___ Cal.App.4th ___ (Nov. 29, 2005). First, the Court determined that the plaintiff's UCL claim for monetary restitution, as opposed to injunctive relief, would have been arbitrable:

Under the holding in Cruz [v. PacifiCare Health Systems, Inc., 30 Cal.4th 303 (2003)], when a party brings a claim under the UCL seeking both injunctive and restitutionary relief and the dispute is subject to arbitration, the proper procedure is to sever the claim for injunctive relief and compel arbitration of the claim for restitutionary relief only. Aral is seeking both injunctive relief and restitution of funds which were allegedly acquired by means of unfair business practices. Thus, the trial court erred in ruling that the entire claim should go forward in court.

(Slip op. at 9.) Nonetheless, the Court of Appeal affirmed the trial court's order because the arbitration clause was invalid in its entirety under Discover Bank v. Superior Court, 36 Cal.4th 148 (2005). Its provisions prohibiting class actions and requiring California consumers to arbitrate in Georgia were both procedurally and substantively unconscionable:

The arbitration provision in the DSL service agreement put forth as the parties’ final agreement by EarthLink requires California consumers with minor monetary claims to arbitrate in Georgia and forbids class actions. Under recent Supreme Court authority, provisions in adhesion contacts that preclude class actions are unconscionable where the case involves allegations that a large number of consumers have been cheated out of a small sum of money. Moreover, EarthLink sought an order specifying that arbitration of a minor monetary claim by a California resident take place in Georgia. A forum selection clause that discourages legitimate claims by imposing unreasonable geographical barriers is unenforceable under well-settled California law.

(Slip op. at 2, 10-21.) The Court also rejected the defendant's argument that Georgia law, rather than California law, should govern the question of whether the arbitration clause was unconscionable:

[The plaintiff] resides in California, seeks to represent only California consumers, and relies solely on California’s UCL to support his claim. The fundamental policy at issue is not simply the right to pursue a class action remedy, but the right of California to ensure that its citizens have a viable forum in which to recover minor amounts of money allegedly obtained in violation of the UCL. Forcing consumers to travel to a far location and depriving them of any hope of class litigation would pose an insurmountable barrier to recovery of small sums unjustly obtained, and undermine the protections of the UCL.

(Slip op. at 25.)

"Courts Chase Attorney Over 17200 Lawsuits"

Yesterday's Daily Journal ran a story about attorney Harpreet Brar, who has been accused of abuses similar to those of the Trevor Law Group. According to the story, Brar is "the last of a dying breed of lawyers" who allegedly abused the UCL and whose conduct spurred the supporters of Prop. 64 into action. The Deputy Attorney General in charge of the separate civil prosecutions against Trevor, Brar and a handful of others is quoted as saying that he knows of no other lawyers filing such suits: "'We'd receive complaints about "a lawyer just like Trevor," and in most cases they weren't,' the attorney general deputy said."

MCLE program this Thursday in San Jose

Just a reminder to sign up to attend "Be Careful What You Wish For: The UCL After Prop. 64" this Thursday at 6:00 p.m. at the Wyndham Hotel in San Jose. I will be speaking, along with attorney Michael Sweet of Winston & Strawn and Santa Clara County Superior Court Judge James P. Kleinberg. We've been working hard on the presentation and it promises to be a good one. Click here to register.

Petition for review filed in Schwartz v. Visa

On November 7, 2005, a petition for review was filed in Schwartz v. Visa International Service Assn., 132 Cal.App.4th 1452 (2005). As I mentioned in a couple of earlier posts, the Court of Appeal's Prop. 64 retroactivity ruling wiped out a multi-million-dollar litigated final judgment. Here is a link to the docket. If anyone has a copy of the petition, please send it to me and I'll put it up.

Two new unpublished Prop. 64 retroactivity opinions

I hope everyone had a Happy Thanksgiving. Last week, the Court of Appeal (Fourth Appellate District, Division One) issued two more unpublished opinions on Prop. 64 retroactivity. Both are consistent with that Division's prior rulings. Privacy Rights Clearinghouse v. JetBlue Airways Corp., no. D045568 (Nov. 22, 2005); Bivens v. Gallery Corp., no. D045557 (Nov. 22, 2005). In a third case before that Division, the Prop. 64 retroactivity issue was raised but not decided. Gutierrez v. Nick Pecoraro Painting & Decorating, Inc., no. D044666 (Nov. 23, 2005).

New UCL preemption decision: Viva! v. Adidas

On Monday, the Court of Appeal (First Appellate District, Division One) held that federal law preempted a UCL "unlawful" prong claim predicated on an alleged violation of Penal Code section 653o, which "bans the import of products made from certain animals, including kangaroos, into California." Viva! International Voice for Animals v. Adidas Promotional Retail Operations, Inc., ___ Cal.App.4th ___ (Nov. 21, 2005) (slip op. at 1). This is the case that was argued on the same day that I argued the Prop. 64 retroactivity issue before the same Division in the Insurance Broker cases. The Prop. 64 retroactivity issue was also argued in the Viva! case, but the Court determined that "[i]n light of this conclusion, we need not reach ... other issues raised by defendants, including the applicability of Proposition 64, pending before the Supreme Court in Californians for Disability Rights v. Mervyn’s (2005) 126 Cal.App.4th 386, review granted April 27, 2005, S131798 and Branick v. Downey Savings & Loan Assn. (2005) 126 Cal.App.4th 828, review granted April 27, 2005, S132433." (Slip op. at 17-18 n.14.)

I had no idea that Adidas made its shoes out of kangaroo leather.

New class action decision: Figueroa v. Northridge Hospital Medical Center

In Figueroa v. Northridge Hospital Medical Center, ___ Cal.App.4th ___ (Oct. 20, 2005), which was published last week, the Court of Appeal (Second Appellate District, Division Two) held that an order denying a motion for leave to amend the complaint to add class action allegations is not an appealable order, at least when the parties and claims are otherwise unchanged. This case involved a UCL claim, but it did not arise in the context of Prop. 64. Nonetheless, it's obviously relevant. Many plaintiffs are seeking leave to amend their complaints to satisfy Prop. 64's requirements, including class action allegations. The lesson to be learned here: if leave to amend is denied, file a writ petition, not an ordinary appeal.

The "statutory repeal rule" - Post #2

This is the second in my series of posts about California Supreme Court cases interpreting the so-called "statutory repeal rule." My first post in the series addressed two cases from the 1930s, Callet v. Alioto, 210 Cal. 65 (1930) (per curiam) and Krause v. Rarity, 210 Cal. 644 (1930) (in bank). In both cases, the Supreme Court mentioned the "statutory repeal rule" but decided it did not apply.

In Hopkins v. Anderson, 218 Cal. 62 (1933), the Supreme Court also mentioned the "statutory repeal rule" and again decided that it did not apply. Hopkins involved a 1929 amendment to the state constitutional provisions governing the jurisdiction of the superior and municipal courts. Id. at 64-66. If applied retroactively, the amendment would have stripped away the plaintiff’s judgment, because the court that entered it would have lacked jurisdiction. See id. The Supreme Court cited Callet v. Alioto both for “the general rule that a cause of action or remedy dependent on statute falls with a repeal of the statute, even after the action thereon is pending, in the absence of a saving clause in the repealing statute” as well as for “the equally well settled and … fundamental rule of statutory construction that every statute will be construed to operate prospectively, and will not be given a retrospective effect, unless the intention that it should have that effect is clearly expressed.” Id. at 66-67. Although the case involved a purely statutory issue—superior and municipal court subject-matter jurisdiction—the Supreme Court declined to apply the amendment retroactively, holding that “[t]here is nothing in the 1929 amendment … indicating that it was intended to have a retroactive operation.” Id. at 67 (emphasis added).

A few years later, the Supreme Court addressed the “statutory repeal rule” again in Southern Service Co. v. County of Los Angeles, 15 Cal.2d 1 (1940). Defendants frequently cite this case in arguing that Prop. 64 applies retroactively, because Southern Service held that a certain amendment to the state tax laws applied retroactively and abated all pending actions. Prior law authorized refunds of taxes illegally assessed but paid without protest. Id. at 5-6. A 1939 amendment changed that law, and prohibited refunds “of any tax voluntarily paid which was levied prior to January 1, 1939 .…” Id. at 6. The Supreme Court observed that the right to a tax refund is “purely statutory,” and that “[t]he legislature may withdraw such a statutory right or remedy, and a repeal of such a statute without a saving clause will terminate all pending actions based thereon.” Id. at 11-12 (citing Callet v. Alioto and other cases). However, the Court applied this principle to the case before it only because the Legislature had expressly indicated that the change in law would apply to taxes “levied prior to January 1, 1939”:

True, the words of the 1939 statute are not expressly words of repeal without a saving clause, but the effect is the same in so far as the application of the principles is concerned when the legislature by apt expression has withdrawn the right and remedy in particular cases, including all pending actions based thereon. The legislature, no doubt having in mind the holding of this court in Krause v. Rarity, 210 Cal. 644, 654, 655, expressly provided that the withdrawal of the right to refund in the particular class of illegal taxes specified should terminate all pending actions. Its expression in this respect is sufficient to accomplish the declared intent and purpose.

Id. at 13. As I explained in my last post on this subject, the Supreme Court in Krause v. Rarity held the “statutory repeal rule” inapplicable because the necessary expression of legislative intent was absent. Accordingly, neither Southern Service nor Kraus v. Rarity supports the notion that Prop. 64 applies retroactively to pending cases.

The next case in which the Supreme Court addressed the “statutory repeal rule” is Sekt v. Justice’s Court, 26 Cal.2d 297, 304-307 (1945). In Sekt, the Supreme Court declared with even more force that this so-called “rule” is merely an application of the legislative intent doctrine.

A 1943 amendment expanded the superior court’s jurisdiction over certain criminal conspiracy cases and increased the potential punishment. Id. at 299. The defendant, who had been tried and convicted in the justice court and whose appeal was pending when the law was changed, argued that the amendment stripped away his conviction because the justice court no longer had jurisdiction over his case. Id. at 299-300. The Supreme Court disagreed for two reasons. First, it determined that the general savings clause of Government Code section 9608 was enacted to “avoid the strict common-law rule that the repeal of criminal statutes terminates all pending prosecutions not reduced to final judgment .” Id. at 300. Second, as “another and completely independent ground,” the Court determined that “the amendment … was not a repeal of the type to bring into operation the common-law rule that the repeal of a criminal statute, without a saving clause, operates to terminate all pending prosecutions.” Id. at 303-304. In so holding, it explained that the rationale behind this rule is grounded in legislative intent:

This rule is well settled at common law and is accepted by most American jurisdictions. It is based on presumed legislative intent, it being presumed that the repeal was intended as an implied legislative pardon for past acts. (See discussion, 22 C.J.S. § 27, p. 81.) This rule results, of course, in permitting a person who has admittedly committed a crime to go free, it being assumed that the Legislature, by repealing the law making the act a crime, did not desire anyone in the future whose conviction had not been reduced to final judgment to be punished under it. But this rule only applies in its full force where there is an outright repeal, and where there is no other new or old law under which the offender may be punished.

Id. at 304-305 (emphasis added). The Supreme Court reiterated that “legislative intent is the test” for determining whether a statutory “repeal” applies retroactively or not. Id. at 306 (emphasis added). As for the defendant’s conviction, it would stand under the prior law:

There is substantial and well-reasoned authority to the effect that where the later statute increases the punishment the Legislature has clearly demonstrated its intent that the act should be punished, and since the offender cannot be punished under the new law because of the ex post facto provision of the Constitution, he will be held under the old law. It is presumed from the very purpose of the amendment that the Legislature intended that all offenders should be punished, and a saving clause is implied. …. The very nature of the situation compels the conclusion that the Legislature must have intended that the amendment should operate prospectively, and that as to past offenders they should be punished under the old law. To imply a saving clause in such a situation is simply to give effect to the obvious intent of the Legislature.

Id. at 307, 311. Finally, the Court issued a stern warning to other courts against “blindly applying the common-law [statutory repeal] rule to a situation where the reason for the rule does not exist. Where the reason for the rule ceases the rule should not apply.” Id. at 308 (emphasis added).

My next post on this topic will address cases from the 1960s and 1970s in which the Supreme Court reiterated the legislative intent principle behind the so-called “statutory repeal rule.”

UPDATE: The third post in the series is accessible here.

"Blog's Demise May Chill Other Federal Lawyers' Online Comments"

Law.com has more on the untimely demise of Underneath Their Robes (via How Appealing, of course). And Friday's Recorder reported that "Kozinski Had Name of Blogger All Along" (subscription required).

Recent trial court order declines to apply Prop. 64 retroactively

But first, a brief programming note. I haven't posted this week for a simple reason. I've been swamped. Hopefully the blogging will pick up over the next few business days and then after Thanksgiving. As another aside, I was unspeakably disappointed to learn, earlier this week, that one of our best-known female law bloggers, Article III Groupie, is actually — gasp — a man. He works for the USDOJ. They apparently have no sense of humor. The blog is now password-protected. I hope he doesn't end up getting dooced.

So back to business. The court (Judge Howard J. Schwab) adopted a novel approach to Prop. 64 retroactivity in this order dated October 7, 2005 in Estrada v. Fed Ex Ground Package Systems, Inc. (Los Angeles County Superior Court case no. BC210130). The court ordered broad-ranging injunctive relief in a 17200 action, without class certification and despite Proposition 64, explaining:

The court is also cognizant that on November 2, 2004, the electorate enacted Proposition 64, which requires compliance with CCP section 382, which was not done here. There is a split in authority on the retroactive effect of Proposition 64, which issue is presently before the California Supreme Court.

However the issue is ultimately decided by the California Supreme Court, the court finds based upon the unique factual and procedural background of this particular case, Proposition 64 should not apply herein. Proposition 64 should not be applied retroactively to eliminate pending injunctive relief claims in primarily B & P section 17203 claims, like this, that have already been fully litigated on a representative basis. This matter was a class action and injunctive relief could have been certified as a class issue. There was no necessity to do so by reason of the language of B & P 17203 as it existed at that time. The named plaintiffs filed their law suit and tried the issue of employment status with the expectation that they were prosecuting their claims on said representative basis, without the need for class certification for injunctive relief. It was only after the issue of employment status had been fully litigated and the Court issued its Statement of Decision on July 26, 2004, that the electorate on November 2 of that same year, enacted Proposition 64. When the issue of employment status was litigated, it was based upon not only reimbursement; but also that of potential declaratory and injunctive relief. Therefore by reason of the unique factual and procedural posture of this case, wherein the court had rendered a decision that would impact the issues of reimbursement, declaratory and injunctive relief before the enactment of Proposition 64, the court finds said amendment inapplicable to this case. Relief will be ordered as to all SWAs, whether or not they are class members or named plaintiffs under the provisions of B & P section 17203.

(Order at 3-4.) At first blush, this order seems directly contrary to Schwartz v. Visa Int'l Service Assn., ___ Cal.App.4th ___ (Sept. 28, 2005), in which the Court of Appeal reversed a multi-million-dollar final judgment in a fully litigated UCL action without a whisper of concern for the plaintiff's reliance on prior law. But unlike Schwartz, this case involved injured plaintiffs whose other claims had been certified for class treatment. The UCL claim could also have been certified, if the law had required it. This order is entirely consistent, therefore, with the Court of Appeal's holding in Mervyn's: "Application of Proposition 64 to cases filed before the initiative’s effective date would deny parties fair notice and defeat their reasonable reliance and settled expectations." Californians for Disability Rights v. Mervyn's, LLC, 126 Cal.App.4th 386, 397 (2005) (review granted). The final injunctive relief order, with a copy of the original Statement of Decision from July 2004, is here. Many thanks to the reader who passed these orders on to me.

Second District, Division Eight holds (again) that Prop. 64 does NOT apply to pending cases

In an unpublished opinion handed down yesterday, the Second Appellate District, Division Eight, reaffirmed its holding that Prop. 64 does NOT apply retroactively to pending cases:

The initial question before us is whether appellant has standing to bring this action. Respondents contend that this case should be dismissed because Proposition 64 applies to eliminate appellant’s standing to pursue the present claim.

This issue is before our Supreme Court. (See, inter alia, Consumer Advocacy Group, Inc. v. Kintetsu Enterprises of America (2005) 129 Cal.App.4th 540, review granted Sept. 28, 2005, S135587.)

Statutes do not operate retrospectively unless the Legislature or, in this case, the electorate plainly intended them to do so. (Landgraf v. USI Film Products (1994) 511 U.S. 244, 274, fn. 27; Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 243.) In Hughes Aircraft Co. v. United States ex rel. Schumer (1997) 520 U.S. 939, 951, the question was, as it is in this case, whether legislation affecting standing should be applied to cases that were pending when the statute was enacted. The Supreme Court declined to apply the statute that expanded standing for several reasons, among which were a deeply rooted presumption against retroactivity and the absence of a clear legislative intent calling for retroactive application.

The same factors call for a prospective application of Proposition 64. In addition to the general rule calling for prospective application, there is nothing in Proposition 64 and the ballot pamphlet that indicates an intent that the measure should be applied retroactively. This conclusion stands whether or not Proposition 64 is classed as “procedural,” rather than as substantive. The important point is that “the operation on existing rights would be retroactive because the legal effects of past events would be changed,” which means that the statute should operate prospectively in the absence of a clear intent to the contrary. (Aetna Cas. & Surety Co. v. Ind. Acc. Com. (1947) 30 Cal.2d 388, 394.)

Accordingly, we find that Proposition 64 does not apply to this case, and that appellant has standing to bring this action.

Pitluck v. Beverly Enterprises, Inc., no. B179680 (Second Appellate District, Division Eight) (slip op. at 7). As you may recall, the Second Appellate District, Division Eight, authored the Kintetsu opinion, which also held that Prop. 64 may not be applied to pending cases. In an earlier post, I observed that four different justices from that Division—Justices Cooper, Boland, Johnson, and Flier—have adopted Kintetsu's reasoning. Justice Rubin now joins them for a quorum of five. When I was arguing Prop. 64 retroactivity before the First District, Division One last month, I think it was Justice Stein who joked that if he went with the defendants then he'd have to duck around his colleagues from Division Four, and avoid meeting their eyes when he passes them in the hallway. Looks like that's already happening in the halls of the Second District.

As always, thanks to JS for finding this case among the dozens of unpublished opinions.

A note of thanks

Thanks to fellow law bloggers The Legal Reader, So Cal Law Blog, Storm's California Employment Law, California Wage Law, and May it Please the Court for linking to my first post on the "statutory repeal rule." Jon-Erik reminds us that it's been a full year since Prop. 64 passed, and we still don't know what it means. Maybe they will figure it out at the Mealey's 17200 conference, which starts today in Santa Barbara. Wish I could be there.

Court of Appeal requires trial court to grant leave to amend to meet Prop. 64 requirements

Many thanks to the reader who forwarded this unpublished Court of Appeal order in Mejia v. Superior Court, case no. B182259 (Second Appellate District, Division Two). The order directs the trial court to grant the plaintiffs leave to amend their complaint to satisfy the requirements of Proposition 64, even though that would mean postponing the trial. The order is dated April 19, 2005, and cites Benson and Lytwyn, two Fourth District cases. Eight days later, the Supreme Court granted review in both of those cases. Evidently, the plaintiffs did not challenge the trial court's retroactivity ruling, and I am unaware of any cases in which the Second District, Division Two, has ruled on Prop. 64 retroactivity. The trial court's order, which was subsequently amended to comply with the Court of Appeal's directive, is accessible here. I'm told that the battle in the trial court is now over whether the amendment "relates back" for statute of limitations purposes.

"The ABCs of Antitrust and California Unfair Competition Law"

The State Bar of California's annual Section Education Institute will feature this two-hour program, which will include "a special focus on the recent changes in 17200." This year's institute will be in Santa Monica on January 27-29, 2006, and the program on the UCL will be on Saturday, Jaunary 28 at 9:45 a.m. The registration form can be accessed here.

By the way, since I work in San Francisco I mostly hear about MCLE events in my area, or statewide events such as the State Bar's annual institute. As a result, most of my announcements concern events here. If people send me information about programs in other parts of the state, I will be more than happy to announce them.

The "statutory repeal rule" – Post #1

This is the first in a series of posts on the "statutory repeal rule" as interpreted by the California Supreme Court. The Court of Appeal opinions holding that Prop. 64 applies retroactively to pending cases all rely on this so-called "rule." I'm going to address the California Supreme Court cases chronologically in an effort to establish that the so-called "rule" is merely an application of the general principle that new statutes apply prospectively only, absent a very clear indication of legislative (or electoral) intent to the contrary. If my workload permits, I'll put up one or two posts a week until I've addressed all the cases.

The first of the early California Supreme Court cases is Callet v. Alioto, 210 Cal. 65 (1930) (per curiam). Callet has been cited in most of the appellate opinions on Prop. 64 retroactivity, and it has become the de facto leading case. Ironically, this is a case in which the Supreme Court held that the "statutory repeal rule" did not apply.

Callet involved the right of injured "guests" to recover damages against negligent drivers. Under the Civil Code, a guest could recover for injuries resulting from the driver's ordinary negligence. Id. at 67 (citing Civ. Code §§1714, 2096). In 1929, the Legislature enacted a new statute limiting a driver's liability to cases of gross negligence, willful misconduct, or intoxication. Id. at 66-67 (citing Veh. Code §141¾). Callet addressed whether this new statute applied retroactively to pending cases. See id.

The first thing the Court did was invoke the ordinary rule that every statute operates prospectively unless a contrary intent is "clearly expressed." Id. at 67. Next, the Court cited the "statutory repeal" canon, noting the exception for rights of action that have accrued "by virtue of a statute codifying the common law." Id. at 68. Ultimately, the Court wound up not applying the "statutory repeal canon" because it found, after carefully analyzing common-law remedies for ordinary negligence, that the right of a guest to recover for injuries caused by ordinary negligence was part of the common law. Id. at 68-70.

Krause v. Rarity, 210 Cal. 644 (1930) (in bank) was decided just three months after Callet. The case involved the very same new statute, which limited a driver's liability to cases of gross negligence, willful misconduct, or intoxication. Factually, however, Krause was different in a key respect. The plaintiff in Krause was the estate of a decedent killed by the defendant's ordinary negligence, rather than an injured passenger who survived the wreck and then filed suit personally. Id. at 647.

A decedent's estate enjoyed no common-law right to recover for ordinary negligence at all. That right was purely statutory. Id. at 653 (citing Code Civ. Proc. §377). Accordingly, the defendant argued that the new statute repealed that right, and that the plaintiff could recover only if it could prove gross negligence, willful misconduct, or intoxication. Id. at 652.

In rejecting that argument, the Supreme Court relied on the legislative intent, and determined that in light of other statutory language, the legislature could not have intended to halt all pending actions by decedents' estates for ordinary negligence:

It is apparent that, if the new section had been enacted without the proviso, the rule contended for by the defendant Rarity would apply, the plaintiffs' cause of action would have been wiped out, and no recovery could be had on the judgment against said defendant, for the reason that said judgment has not become final. In such case the Legislature would have been unrestrained by constitutional barriers, and its intention, in the absence of a saving clause, would have been conclusively manifest. But the Legislature did not stop with the enactment of the portions of the statute which would have worked a repeal irrevocably, but added the provision which in effect continued the right of action on account of the death of the guest. In other words, there has not been a moment of time since the enactment of section 377 to the present time when an action would not lie on behalf of the heirs on account of the death of the guest.

Id. at 654 (emphasis added). The Court also determined that "[t]here was no abolishment of the right or cause of action, but only a change in the proof required, not to maintain the action, but to permit a recovery." Id.

In several cases from the 1940s, the Supreme Court made it even clearer that the governing principle in any case of statutory interpretation—including a statutory repeal—is legislative intent. I'll talk about these cases in my next post in this series.

UPDATE: Click here for post #2 in the series.

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.)

Update on the Wal-Mart trial

I'm in the office working this morning. Part of our Wal-Mart trial team is also here, as is usual on the weekends these days. I'm told the trial is going very well. We rested our case in chief on Tuesday, and Judge Sabraw denied Wal-Mart's motion for nonsuit on our punitive damages claim. Way to go, team! Personally, I've been extremely busy lately working on this case. The opinion will give you an idea of what I was doing in June and July that caused my average weekly posting rate to plummet.

"Be Careful What You Wish For: The UCL After Prop. 64"

The Santa Clara County Bar Association will present "Be Careful What You Wish For: The UCL After Prop. 64" on December 1, 2005 at 6:00-8:00 p.m. at the Wyndham Hotel in San Jose. I'm pleased to be one of the panelists, along with Santa Clara County Superior Court Judge James P. Kleinberg (author of the famous blogger/journalist ruling) and attorney Michael Sweet of Winston & Strawn. Please register early!

Two more briefs in Mervyn's and Branick

The editor of Mealey's California Section 17200 Report was kind enough to send me the Branick reply brief on the merits. Also, thanks to the reader who forwarded the amicus brief of the California League for Environmental Enforcement Now in Mervyn's. The latter includes an interesting discussion of associational standing, and argues that the "and lost money or property" language should not be interpreted to require something more than the ordinary "injury in fact" standing rules require under Article III. Both of these briefs have been added to my list of Prop. 64 appellate briefs.

Call for more poll responses and amicus briefs

I'm still collecting responses to my impromptu, unscientific Prop. 64 poll from last week. I'm also still collecting amicus briefs in the Mervyn's and Branick cases. The ones that I have so far are listed here. As you can see, I have most (but not all) of the Mervyn's amicus briefs, and only one of the Branick briefs. I also need a copy of the Branick reply brief on the merits. If you have a copy of one of these briefs, please email it to me and I will put it up. As for the poll, I've received some interesting responses, which I will summarize in a future post, but there's got to be more trial-level activity going on out there. What Prop. 64 issues are being actively litigated now that retroactivity is marinating at the Supreme Court? Inquiring minds want to know.