"Jurists Debate Who Can Sue After Prop. 64": Californians for Disability Rights v. Mervyn's LLC

Today's Daily Journal has this article (subscription) on the Court of Appeal's unpublished opinion in Californians for Disablitity Rights v. Mervyn's LLC (no. A106199) (Apr. 17, 2007). As I explained in this lengthy post, the Supreme Court issued a "grant and transfer" order after the Court of Appeal refused to allow Californians for Disability Rights to substitute a new plaintiff to pursue the case on appeal, and instead dismissed the appeal entirely, leaving CDR with no remedy in any court.

In its unpublished opinion, the Court of Appeal determined that neither dismissal nor substitution of parties would be necessary:

This case has had a strange procedural history on appeal. We denied Mervyn’s motion to dismiss the appeal, and the Supreme Court reversed. We then granted Mervyn’s motion to dismiss the appeal, and the Supreme Court reversed. This odd result is largely a product of the difficulty of applying Proposition 64—which is silent about its intended effect on pending cases—to particular cases in various stages of litigation. ....

[United Investors Life Insurance Co. v. Waddell & Reed, Inc. (2005) 125 Cal.App.4th 1300 and Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235], when read in conjunction, lead to the following conclusion: CDR is a party aggrieved by entry of judgment against it and thus has standing to appeal the judgment even if CDR has no authority to maintain its suit in superior court (United Investors, supra, 125 Cal.App.4th at pp. 1304-1305); and, if CDR succeeds in its effort to reverse the judgment on appeal, it may seek leave in the superior court to amend its complaint to substitute a plaintiff who meets the Proposition 64 standing requirement. (Branick, supra, 39 Cal.4th at pp. 240-244.)

....

We shall consider the merits of the appeal. Proposition 64 does not compel dismissal of the appeal given CDR’s appellate standing as an aggrieved person. (Code Civ. Proc., § 902.) Briefing on the merits was suspended when Mervyn’s filed its motion to dismiss the appeal. Only CDR’s opening brief has been filed. Briefing shall resume with the filing of Mervyn’s respondent’s brief.

Slip op. at 4, 5-6.