BREAKING NEWS: First District reaffirms Mervyn's
In an unpublished opinion issued this afternoon, the First Appellate District, Division Four, reversed Judge Sabraw's order in the FATE cases. Foundation Aiding the Elderly v. Superior Court, case no. A109442. The opinion reads, in relevant part:

We have previously set forth our determination that Proposition 64 does not apply to lawsuits filed before its effective date of November 3, 2004, and need not repeat that analysis. (Californians for Disability Rights v. Mervyn’s, supra, 126 Cal.App.4th at pp. 391-397.) We are aware that several courts of appeal disagree with us, as Covenant Care points out. (Bivens v. Corel Corp. (2005) 126 Cal. App.4th 1392, 1402-1405; Benson v. Kwikset Corp. (2005) 126 Cal.App.4th 887, 900-907; Branick v. Downey Savings & Loan Assn. (2005) 126 Cal.App.4th 828, 840-844.) The disagreement is founded upon an apparent conflict in canons of statutory construction and is unlikely to be resolved until our Supreme Court clarifies whether the general presumption of prospectivity applies to all legislation, as we believe, or applies only when the legislation modifies common law rights or modifies statutory rights short of a repeal or partial repeal, as some others believe.

Our belief that the prospectivity presumption applies to all legislation is based upon our high court’s past application of that presumption to both modifications of common law (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1208), and statutory repeals (Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828, 839-848). We are also concerned that adoption of the statutory repeal exception advocated by Covenant Care would complicate the process of statutory construction by requiring courts to determine whether rights affected by new legislation are founded in common law or statute, and whether the legislation should be characterized as a repeal or partial repeal, as opposed to a revision. Such inquiries take the courts far afield from what should be the guiding principle when interpreting propositions: voter intent. It is the intent of the People, not formulaic standards, that should determine the reach of legislation.

The opinion ends by stating: "Respondent shall issue a new order denying the motion. To permit Covenant Care an opportunity for immediate review, this decision shall be final in this court upon filing. (Cal. Rules of Court, rules 24(b)(3), 28(e)(1).)" I think we will see a lot of publication requests because it is quite clear that some lower court judges are deciding the Prop. 64 retroactivity question based solely on the fact that more appellate decisions favor retroactive application than reject it. Many thanks to the readers who brought this development to my attention. (And check back here later for a copy of the petitioners' excellent brief in this case, which I have received and will be posting online shortly.)

UPDATE:
Here is the writ petition in FATE v. Superior Court. It's one of the best I've seen. And here are several other briefs I've received within the past few days:

Bivens v. Corel: Petition for Review
Cohen v. Health Net: Supplemental Brief re Proposition 64
FATE v. Superior Court: Opposition to Petition for Writ of Mandate
Kids Against Pollution v. California Dental Assn.: Amicus Brief of Civil Justice Association of California

- posted by Kim Kralowec @ 6:40 PM