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« "High Court Will Resolve Whether Proposition 64 Is Retroactive" | Main | "Court Mulls Making Prop. 64 Retroactive" »

Wednesday, May 31, 2006


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I think this is an excellent summary, Kimberly -- I was also there and I don't see anything in my notes that I would add. And I think I agree with pretty much all of your interpretation (though you were mostly just reporting, I know) except maybe as to that argument by Hodel.

I think the point he was trying to make (maybe inartfully, although I thought otherwise he did the best job of the four) was that there's no doubt that Prop 64 was intended to stop the abuse of the UCL by *some* plaintiffs' counsel who represented uninjured parties. Voters (those who understood what they were doing, anyway) likely *would* be surprised, as he suggested, to find that those attorneys would be able to go back for another try. Of course, his argument downplayed (well, omitted) the fact that Prop 64 also affected cases that did not involve abuse at all, which is very likely what renders that argument insulting to plaintiffs' counsel who did not abuse the law.

The problem (from the defense point of view) is that the ability to file lawsuits with no injured plaintiff is so susceptible to abuse that you have to get rid of that ability altogether, as a policy matter, and then there are some plausible policy arguments that amendment should not be allowed either, if only for the virtue of having a bright-line rule. But the fact that all no-injury UCL cases were not alike probably does argue in favor of allowing trial courts to exercise discretion in weeding the bad ones out via an attempted amendment process. Of course, Hodel would not have been the one to bring that up.

I will venture a guess as to the outcome, although I probably shouldn't, especially on an issue where the law is as unclear as this. My guess would be that the Court will (1) find that Prop 64 does apply to pending cases but (2) will allow attempts to amend the pleadings in those cases if an injured plaintiff can be found. Could go either way, but I would bet there is at least a narrow majority for both those propositions.

The fact that there was not a single question about the statutory-repeal rule is hard to interpret. It could mean that the justices have already decided to apply it, except that if they had I can't figure out why they would have been so interested in retroactivity. I would guess (lots of guessing here) that they will not apply that rule but instead will parse out the language on retroactivity, maybe coming up with some compromise such as distinguishing injunctive-relief-only actions as being "forward-looking." (Moreno referred to this repeatedly, though that could be for a dissent.) I'm not sure that distinction makes any sense, personally, but we could very well end up with a baffling compromise decision of the kind that I think we got in the Myers case.

Thanks again for the excellent summary.

Ron Packard

Thanks for the great review. Were there any comments about whether all class members have to show reliance? We have a certified class case that is on hold. The defense has claimed that since the class representative has to show reliance under Prop. 64, that all class members also have to show reliance due to commonality. Thanks, Ron Packard

John Hurley

Excellent summary. I have to say that from a defense persepctive, I was disappointed with the quality of the advocacy on the defense side. I thought the plaintiff-side attorney did a much better job framing the debate in their terms and in answering the questions of the justices. Baxter was tossing softballs at Spencer, and Spencer was swinging and missing.

Still, I have to concur with Mr. Underhill prediction on the likely result -- Prop 64 applies to pending cases but allowing leave to amend. To me, Baxter and Chin at least seemed convinced that Prop 64 should apply to pending cases. The others were a harder read and kept things close to the vest.

michael walsh

That was extremely informative, far more so than any of the articles in today's legal rags.

Wendell Tong

I agree. This is the most informed summary of oral argument I have seen, and in record time, too. Your blog is the best. Thank you for building a community for practitioners.

Scott McMillan

Once again, we appreciate the sacrifice that you've made to put this blog together and to keep it current.


Your summary was so good it staggers the mind that what is probably the best is freely available: a beautiful thing. thank you very much.


Thanks to everyone for your comments and especially for the positive feedback. In answer to Ron's question, the issue of reliance did not come up during the argument at all. Mr. McDowell briefly mentioned that Prop. 64 may have changed the law respecting causation (which sounds like a substantive change to me), but he did not mention reliance.

And to Kevin — thanks for your thoughtful response. Clearly, Mr. Hodel believes his client's particular case is one of those "frivolous," "attorney-driven" cases with a "professional plaintiff." Let's suppose it is. It still would have been more effective to tailor his remarks specifically to his client's case, rather than insult the rest of the plaintiff's bar. Mr. Spencer could at least defend himself. But as you point out, that approach probably would raise an issue concerning amendment that the defense bar would not want to raise.

The broader question is this: Does anyone really want trial courts making judgments about whether each case is "frivolous" or "attorney-driven" when deciding whether to grant leave to amend? What standard of proof would apply to such an analysis? Would it become a mini-summary judgment hearing, without the procedural safeguards built into the summary judgment process? Truly "frivolous" cases can be dealt with in other ways. That was true before Prop. 64 and it is still true now. I simply cannot agree that plaintiffs (or attorneys) who relied on pre-Prop. 64 law when they filed suit should now be considered tainted, and for that reason unable to seek leave to amend as a matter of law.

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