The UCL Practitioner
Friday, April 29, 2005
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.
Technically you are right, but if you point out to a trial court that the California Supreme Court has granted review to five cases to decide the issue of whether the law applies retroactively, I think the trial court will not feel bound by an appellate decision that will be mooted by the Supreme Court's decision.
Yes, I agree with you completely on that. The most prudent thing for trial courts to do at this point is to postpone ruling on the retroactivity question until the Supreme Court does.
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