Metropolitan News-Enterprise


Thursday, April 28, 2005


Page 1


Supreme Court to Consider Proposition 64 Retroactivity Issues


By KENNETH OFGANG, Staff Writer/Appellate Courts


The California Supreme Court yesterday agreed to decide whether Proposition 64 applies to litigation pending when the initiative was adopted last November.

The justices, at their weekly conference yesterday in San Francisco, also agreed to decide whether—if the initiative is held applicable to pending cases—a pending case may be amended to add a plaintiff who qualifies under Proposition 64’s heightened standing requirements.

The court also accepted appeals dealing with the anti-SLAPP statute and affirmative action.

With respect to Proposition 64, the justices unanimously granted review in Californians for Disability Rights v. Mervyn’s, LLC, A106199, Benson v. Kwikset Corporation, G030956, and Bivens v. Corel Corp., D043407.

The justices ordered briefing in the Mervyn’s case; the others were placed on grant-and-hold status.

Proposition 64 provides that a private citizen cannot sue to enforce the state’s unfair competition law unless the plaintiff has suffered economic injury, and cannot bring a representative action unless qualified under the class action statutes.

First District’s Ruling

In the Mervyn’s case, the First District Court of Appeal’s Div. Four denied a motion to dismiss an appeal from Alameda Superior Court Judge Henry Needham Jr.’s ruling in favor of the company.

Californians for Disability Rights sued Mervyn’s, alleging that the company—which operates 125 stores across California—discriminates against those with mobility disabilities by failing to provide adequate pathway space between merchandise displays. The complaint cited the Unruh Civil Rights Act and the Disabled Persons Act as authority.

Needham held a bench trial in August 2003 and granted final judgment several months later. While the plaintiff’s appeal was pending, Proposition 64 was approved and Mervyn’s moved to end the case.

Justice Patricia Sepulveda, writing for the Court of Appeal, said the presumption against retroactive application of new laws applies to Proposition 64.

The justice wrote:

“Proposition 64 contains no express declaration of retrospectivity, as Mervyn’s rightly concedes. Proposition 64 is wholly silent on the matter. The terms of the statutory amendments, the legislative analysis, and the ballot arguments make no mention as to whether Proposition 64 is meant to apply retroactively to preexisting lawsuits. The language used in the proposition and ballot materials also fails to provide any implicit indication that the electorate intended the law to be retroactive.”

Sepulveda cited Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, in which the court held that Proposition 51—the 1986 initiative that ended joint-and-several liability for non-economic damages—could not be applied to actions that accrued before the measure’s effective date.

Case Cited

The justice rejected Mervyn’s argument that retroactive application of Proposition 64 would further the measure’s goal of deterring abuse of the unfair competition laws. A similar argument was rejected in Evangelatos, the jurist noted, adding that if the measure’s sponsors wanted the measure to apply retroactively, they could have said so in the text.

In Benson and Bivens, decided by panels in the Fourth District’s Div. Three and Div. One, respectively, the justices relied upon the statutory rights repeal doctrine, which holds that a statute that repeals rights created by an earlier statute applies to all matters in which judgment is not yet final, absent a savings clause.

The other Proposition 64 case granted review is Branick v. Downey Savings and Loan Association, B172981, from this district’s Div. Five. That court also found the initiative applicable to pending cases, but the high court yesterday limited briefing to the question of whether the plaintiff should be permitted, if Proposition 64 applies, to substitute a new, qualified, plaintiff.

The Court of Appeal said such an amendment should be permitted.

In the anti-SLAPP cases, the justices agreed to resolve a conflict as to whether a hospital peer review is an “official proceeding” for purposes of Code of Civil Procedure Sec. 425.16, thus permitting a hospital to seek quick dismissal of a doctor’s suit claiming he was defamed in the process.

In O’Meara v. Palomar-Pomerado Health System, D043099, the Fourth District’s Div. One held that peer review is not an official proceeding, while that district’s Div. Two reached the opposite conclusion in Kibler v. Northern Inyo County Local Hospital District, E035085.

In the affirmative action case, the First District’s Div. Five ruled that San Francisco must arbitrate with its firefighters’ union over a change in promotion rules the city says is necessary to ensure that a fair number of minority employees are promoted.

Div. Five overturned San Francisco Superior Court Judge Ronald Quidichay’s ruling upholding a 2003 amendment that allows the commission to consider candidates beyond the three with the highest scores on an examination.

Justice Linda Gemello, writing for the Court of Appeal, said the commission action was unnecessary to ensure compliance with state and federal antidiscrimination laws, and thus was not exempt from the arbitration requirement of the city’s collective bargaining agreement with the union.

The conflict over minority employment in the San Francisco Fire Department has been longstanding. Past lawsuits have resulted in rulings that established a minority hiring quota, which was later replaced with a nonbinding goal of 40 percent minority representation; in a long-term hiring goal of 10 percent women; and in creation of a banding system that allowed hiring decisions and promotions to be made from among several candidates with the highest test scores.

The case is San Francisco Fire Fighters Local 798 v. City and County of San Francisco, A108422.


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