Update on the Gap Wardrobing Settlement
Fourth District Also Says Prop 64 Is Retroactive

Second District Says Prop 64 IS Retroactive

Barely a week after the Court of Appeal, First Appellate District, ruled that Proposition 64 does not apply to pending cases, the Court of Appeal, Second Appellate District, has published a contrary opinion in Branick v. Downey Savings & Loan Association. You can save or view the opinion in word format or as a pdf file. This all but assures that the Supreme Court will review the Prop 64 retroactivity issue this year. That does not, of course, mean that we will have an answer from the high court this year.

What is most remarkable about the opinion is not so much what it said, but when it was said. The decision was published just 8 days after oral argument, clearly for the purpose of publishing the Second District's view of the retroactivity issue. Justices Mosk and Armstrong, joined by Superior Court Judge Sandy Kriegler, sitting on assignment as justice pro tem, expressly rejected the First District view. Justice Mosk, writing for the unanimous panel, wrote:

On the day of oral argument in this case, the First District Court of Appeal issued its decision in Californians for Disability Rights v. Mervyn’s, LLC (Feb. 1, 2005, A106199) ___ Cal.App.4th ___ [2005 WL 230019] (Californians For Disability Rights).) In that case, the First District held that Proposition 64 does not apply in cases pending at the time of its enactment. Plaintiffs request that we take judicial notice of that decision. Although we grant plaintiffs’ request, as discussed below, we disagree with the First District’s reasoning regarding the applicability of Proposition 64 to pending cases.

The court's holding in Branick focuses on Government Code § 9606, which provides that the presumption against retroactivity of new statutes does not apply when a statutory enactment repeals a statute that provides a purely statutory cause of action. In that instance, the enactment takes immediate effect in all pending cases—including cases in which a judgment has been entered but the matter is pending on appeal—unless the enactment contains a saving clause. (citing Governing Board v. Mann (1977) 18 Cal.3d 819, 829; Northern Cal. Carpenters Regional Council v. Warmington Hercules Assocs. (2004) 124 Cal.App.4th 296, 302; Beckman v. Thompson (1992) 4 Cal.App.4th 481, 489.)

So far, none of the key cases, published or unpublished, have involved wage and hour or other [good] Labor Code claims, which are generally amenable to pursuit under the Unfair Competition Law even after Proposition 64 because they are often suitable for class action proceedings (e.g., Bell v. Farmers Ins. Exch. (2004) 115 Cal.App.4th 715), and usually involve a deprivation of money or property. (Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163. onetheless, wage and hour lawyers can't afford to overlook Prop. 64 retroactivity issues in their pending cases.

There are going to be many cases in which the state of the law at the time of filing will be significantly different than the state of the law when the opposition is due, different still when the reply is filed, and even further developed when the hearing takes place. It has never been more important to shepardize the issue before filing every brief.

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