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.
- posted by Kim Kralowec @ 1:56 PM