The UCL Practitioner
Wednesday, February 02, 2005
Impact of CDR v. Mervyn's on Judge Sabraw's tentative ruling
On Friday, Alameda County Superior Court Complex Litigation Judge Ronald M. Sabraw issued a 28-page tentative ruling on various Prop. 64 motions (mostly demurrers and motions for judgment on the pleadings) pending in eleven cases assigned to his Department, including the lead case, Foundation Aiding the Elderly v. Covenant Care, Inc., no. RG03-087211. (Many thanks to the half-dozen or so people who sent me a copy of the ruling.) The motions are all set for hearing next Thursday, February 10, 2005, at 9:00 a.m. Judge Sabraw's tentative ruling is unique in that it was issued nearly two full weeks before the hearing, and permits supplemental briefing to "allow all potentially affected persons to address the tentative basis for the Court's decision"—which is that Proposition 64 applies retroactively to pending cases. No doubt, the CDR v. Mervyn's decision will be addressed in detail in the supplemental briefing due on Monday, February 7. The tentative ruling will obviously have to be revised to address CDR.

An interesting thing about CDR is that it did not mention (much less follow) the Second District's decision in United Investors Life Ins. Co. v. Waddell & Reed, Inc., ___ Cal.App.4th ___ (Jan. 20, 2005). In both cases, the defendant raised the Prop. 64 retroactivity issue by filing a motion to dismiss a pending appeal. The United Investors court denied the motion based on Code of Civil Procedure section 902, holding that even if the plaintiff lacked trial-level standing after Prop. 64, that did not mean it was stripped of standing to pursue its appeal. The implication is that Prop. 64 might be an alternative ground that the defendant could advance for affirmance on the merits, but Prop. 64 did not, by itself, eliminate the appeal. By contrast, the CDR court decided the motion to dismiss on the substantive ground that Prop. 64 did not apply to the case at any level, trial or appellate. If the CDR court believed that the Prop. 64 retroactivity issue should be analyzed differently at the appellate level than at the trial level, then presumably it would have acknowledged the distinction that the United Investors court perceived, and decided the case on the same narrow basis. In any event, the end result—denial of the motion to dismiss—is identical.
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