Second District Says Prop 64 IS Retroactive
Class Action Fairness Decimation Act of 2005 Passes Swiftly

Fourth District Also Says Prop 64 Is Retroactive

A third appellate court has weighed in on the retroactivity of Prop 64. The First Appellate District held on February 1st, in Californians for Disability Rights v. Mervyn’s, LLC, that the new law does not apply to pending cases. Eight days later, the Second Appellate District disagreed in Branick v. Downey Savings & Loan Association.

It took the Fourth Appellate District, just one more day to join the debate. In Benson v. Kwikset Corp., ___ Cal.App.4th ___ (Feb. 10, 2005), Division Three of the Fourth District held that Prop 64 does apply to pending cases. Moreover, unlike the Branick decision, the Benson decision rejected the possibility of granting leave to amend so that a suitable plaintiff could be substituted in to pursue the unfair competition claim. In that respect, there are now three different published opinions for trial courts to follow:

1. Mervyn's: Prop 64 does not apply to pending cases;

2.  Branick: Prop 64 does apply, but a new plaintiff can substitute in to meet standing requirements; and

3. Benson: Prop 64 does apply, and no substitution of parties may cure the lacking of standing under the new rule.

The Supreme Court is likely to grant review of all three cases. There will certainly be more to follow. To read the full text of Benson, you can open or download a copy of the opinion in word format or in pdf.


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