Stare decisis twist
When the Supreme Court grants review, the Court of Appeal's opinion is no longer considered published and therefore no longer citable as precedent. See Rule of Court 976(d)(1). Accordingly, Mervyn's, Branick, Benson, Bivens, and Lytwyn are now all uncitable. However, two published Prop. 64 opinions remain: Frey v. TransUnion Corp., 127 Cal.App.4th 986 (2005), and Thornton v. Career Training Center, Inc., 128 Cal.App.4th 116 (2005). No review petitions have been filed in those cases, and the Supreme Court did not reach out to take them, as it did Lytwyn. This means that as of right now, the only citable appellate cases hold that Prop. 64 does apply retroactively to pending litigation. Under familiar rules of stare decisis, trial courts are bound to follow those cases. The Supreme Court has until approximately May 23 in Frey and June 3 in Thornton to grant review. See Rule of Court 28.2(c)(1). It should do so, or depublish them.
- posted by Kim Kralowec @ 7:45 AM