The UCL Practitioner

Pending appellate cases raising Tobacco-related issues

A couple of Court of Appeal cases in which the parties filed supplemental briefs addressing the impact of Tobacco are very close to decision: 

• Shaw v. Bayer Corp. (In re Baycol Cases I & II), no. B204943 (Second Appellate District, Division Seven).  This case stems from an order sustaining a demurrer to class allegations without leave to amend (among other rulings).  Supplemental briefs addressing Tobacco were filed on July 6 and August 3, 2009.  The case was argued and submitted last Friday, August 28, which means we can expect an opinion within 90 days of that date.
  
  
• Kaldenbach v. United of Omaha Life Ins. Co., no. G038539 (Fourth Appellate District, Division Three).  This case is an appeal from an order denying certification of an entire class.  It was argued last October, but submission was subsequently vacated.  On June 18, 2009, the parties submitted simultaneous supplemental briefs on Tobacco.  The matter was ordered resubmitted on July 8, 2009. 

As those who closely follow the appellate decisions know, these two divisions are light years apart in their general approach to class certification and the UCL, so it will be quite interesting to see what happens in these cases. 

In addition, the two Tobacco "grant and hold" cases are proceeding apace.  In McAdams v. Monier, no. C051841, and Pfizer v. Superior Court (Galfano), no. B188106, the parties' supplemental briefs pursuant to Rule of Court 8.200(b)(1) will be due today.  Neither docket indicates that an extension of time was sought or obtained for those briefs. 

UPDATE:  The Pfizer docket now contains this entry dated yesterday: 

09/02/2009

Letter sent to counsel re:

On August 19, 2009, the Supreme Court remanded the matter to this court with directions to vacate the decision and to reconsider in light of In Re Tabacco II [sic]. Petitioner shall have until September 18, 2009 to file a supplemental opening brief. RPI shall have until October 5, 2009 to file a supplemental responding brief. Thereafter, this court will make a decision as to whether to conduct another oral argument in this matter. If so, the matter would tentatively be set for this court's November calendar. (K)

Mervyn's set for further oral argument on remand to Court of Appeal

The First Appellate District, Division Four has scheduled Californians for Disability Rights v. Mervyn's for a further oral argument on November 7, 2006 at 9:30 a.m., allowing ten minutes per side. The argument apparently relates to CDR's request to substitute parties on appeal. For more discussion of that issue, see this blog post.

Updated lists of Prop. 64 opinions, pending appeals, and briefs

My lists of Prop. 64 opinions, pending appeals, and briefs have been updated. I've also revised and expanded my welcome page and added a new resource to my list of UCL practice guides.

Writ of supersedeas granted in Estrada v. Fed Ex Ground

Thanks to the reader who notified me that on January 26, 2006, the Court of Appeal (Second Appellate District, Division One) granted the defendant's petition for a writ of supersedeas and ordered the appeal expedited in Estrada v. FedEx Ground Package System, Inc., nos. B187951 and B189031. This appellate proceeding challenges an order in which the trial court allowed a pre-Prop. 64 UCL judgment to stand, even though class certification had not been granted, because (a) the plaintiff was injured, (b) the other claims were certified, and (c) the UCL claim could easily have been certified, too, had the law required it. In other words, the trial court held that even if Prop. 64 applied, its requirements were, in effect, satisfied. My original post on the Estrada order is here. The Court of Appeal has ordered an expedited briefing schedule and has already set the matter for oral argument on July 26, 2006 at 9:00 a.m. before Justices Spencer, Mallano, and Vogel. If anyone from LA can attend, I'd love to receive a report. This promises to be a very interesting case.

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.

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.

New Prop. 64 pending appeal

Many thanks to the reader who sent me this information:

[A] notice of appeal [was filed] on 7/26 in the case of Guzman v. JK Harris & Company et al., Case No. RG04-179762, Superior Court of CA for the County of Alameda. The court concluded that Prop 64 applied and threw out the 17200 cause of action for, among other reasons, because plaintiffs had previously filed a claim in arbitration in which they were awarded what amounted to full restitution, and -- having been compensated already -- they lacked standing to pursue a 17200 claim for restitution and injunctive relief on behalf of a class because they had no "injury in fact."

The Guzman case will be added to my list of pending Prop. 64 appeals. Meanwhile, you can search for more trial-level information (including a copy of the trial court's order) at the Alameda County Superior Court's website.