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In an unpublished opinion handed down yesterday, the Second Appellate District, Division Eight, reaffirmed its holding that Prop. 64 does NOT apply retroactively to pending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