The UCL Practitioner
Thursday, February 10, 2005
 
MORE BREAKING NEWS: Fourth District comes down in favor of Prop. 64 retroactivity
The Fourth Appellate District, Division Three (Sills, P.J., Rylaarsdam, & Bedsworth, JJ), just issued its opinion on rehearing in Benson v. Kwikset Corp., ___ Cal.App.4th ___ (Feb. 10, 2005). The court held, among other things, that Prop. 64 applies to pending cases. That holding was unanimous, but Justice Sills dissented in part as to other aspects of the opinion. I will endeavor to post more later.

UPDATE: The most salient feature of the Benson decision, as far as Prop. 64 retroactivity is concerned, is its significant divergence from one key part of the Branick court's reasoning. Both courts held that Prop. 64 may apply to pending cases under the "statutory repeal" rule. Branick went on to hold that the trial court had discretion to grant the original plaintiff leave to amend to add a different plaintiff who could satisfy the new "injury" requirement. (Slip op. at 16-17.) Benson, in stark contrast, "disagree[d] with plaintiff's suggestion that, if he cannot satisfy the injury-in-fact or class action requirements, he should be permitted to substitute in another party who could do so." (Slip op. at 18.) Benson, Branick, and CDR v. Mervyn's thus represent a three-way split among the Districts. There's a lot more to be said about Benson, and I'll post more on the decision early next week.
Comments:
I just filed a demurrer at 4pm today - wish I knew about Benson. At least I used Branick!
 
An interesting point the opinion does not mention is that prop 64 does not apply to CC 1770 actions. Benson should still have standing under CC 1780, even if he did not suffer injury or lost money. All he needs is to have damages. The trial Court surely found that!
 
I don't agree with this analysis:

"Benson, in stark contrast, "disagree[d] with plaintiff's suggestion that, if he cannot satisfy the injury-in-fact or class action requirements, he should be permitted to substitute in another party who could do so." (Slip op. at 18.) Benson, Branick, and CDR v. Mervyn's thus represent a three-way split among the Districts. "

The only reason substitution of plaintiff will not be allowed in Benson is because any replacement plaintiff's claim would be time barred. I have other appeals pending before this court. If they say the same thing, I will be able to add more plaintiffs with standing as their claims are not time barred.

In other words, it's not quite as bad as Kimberly portrays it.
 
Jeff has hit upon what may be the best way to distinguish Benson when seeking leave to amend to substitute an "injured" plaintiff. I certainly wasn't trying to portray the decision as "bad" or "good" (although I happen to think it's awful); I was just quoting its language. I still think it creates a three-way split, since the Branick court seemed to believe the trial court has very broad discretion to grant leave to amend. It will be quite interesting to see how this plays out.
 
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