Supreme Court holds in Mervyn's and Branick that Prop. 64 applies to pending cases, but trial court has discretion to grant leave to amend

The decisions, both unanimous, were just posted online. In Californians for Disability Rights v. Mervyn's LLC, ___ Cal.4th ___ (2006), the Supreme Court held that Proposition 64 applies to pending cases. Branick v. Downey Savings & Loan Assn., ___ Cal.4th ___ (2006), holds that the trial court has discretion to grant leave to amend to add an affected plaintiff. I will post a further summary as time permits.

UPDATE: The Mervyn's decision is relatively brief. The Court determined that Prop. 64 contains no unequivocal expression of the electorate's intent. (Slip op. at 4-5.) The Court did not address the "statutory repeal rule." (Id. at 8 n.3.) Instead, the holding is based purely on the substantive/procedural distinction. The following language is of interest:

To apply Proposition 64’s standing provisions to the case before us is not to apply them “retroactively,” as we have defined that term, because the measure does not change the legal consequences of past conduct by imposing new or different liabilities based on such conduct. (See Elsner, supra, 34 Cal.4th 915, 937.) The measure left entirely unchanged the substantive rules governing business and competitive conduct. Nothing a business might lawfully do before Proposition 64 is unlawful now, and nothing earlier forbidden is now permitted. Nor does the measure eliminate any right to recover. Now, as before, no one may recover damages under the UCL (Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1266), and now, as before, a private person may recover restitution only of those profits that the defendant has unfairly obtained from such person or in which such person has an ownership interest (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1144-1150).

(Slip op. at 8-9 (footnote omitted) (emphasis added)). I believe that this language implicitly overrules Pfizer. I will post more later, if time permits. I haven't yet read Branick through. Meanwhile, everyone should please feel free to post comments.