BREAKING NEWS: Second District holds Proposition 64 does NOT apply to pending cases
In an opinion issued on May 18, but ordered published yesterday, the Second Appellate District, Division Eight, held that Proposition 64 does NOT apply retroactively to pending cases. Consumer Advocacy Group v. Kintetsu Enterprises, ___ Cal.App.4th ___ (May 18, 2005) (slip op. at 30-35).

... Proposition 64 should not be applied retroactively absent an express intent to do so. Regardless of whether Proposition 64 is described as a substantive, procedural or jurisdictional change, it affects whether litigation may be brought at all. It does not simply regulate the conduct of litigation. It therefore should not be applied retroactively absent an express intent.

(Slip op. at 35.) Originally, the portion of the opinion dealing with Prop. 64 was unpublished, but yesterday, the Court of Appeal modified the opinion to indicate that that portion was to be published. It is unclear why the Court of Appeal did this, as the docket does not indicate that any modification or publication requests were filed. This development recreates the split in binding appellate authority on whether Prop. 64 applies to pending cases.
- posted by Kim Kralowec @ 6:15 AM