The UCL Practitioner
Friday, August 26, 2005
Report on this morning's Prop. 64 oral argument and some thoughts on retroactivity
My sincere and eternal thanks to the reader who attended this morning's oral argument in the Petrini Van & Storage case, and provided this detailed summary:
Petrini Van & Storage v. Superior Court,
Third Appellate District, case no. C049042

Oral argument on Friday, August 26, 2005, 9:30 a.m.

Panel: Justices Richard Sims, Rod Davis, Tani Cantil-Sakauye

Attorneys: Stephen C. Tedesco, Littler Mendelson, San Francisco argued for Petitioner. Kimberley Owens appeared only for Petitioner. Matthew J. Gauger, Weinberg Roger & Rosenfeld, Sacramento, argued for Real Party in Interest.

Writ from Sacramento Superior Court, Judge Loren McMaster's denial of defendant Petrini Van and Storage's Motion for Judgment on the Pleadings.

Summary of Oral Argument:

Justice Sims expressed awareness that whomever loses the decision by the Third District Court would petition for review before the Supreme Court, which counsel for petitioner acknowledged.

The sole issue addressed was whether Prop. 64 was applicable to pending cases. The focus was on whether it affected a vested right. Petitioner contended that the right to bring a representative action was purely statutory, and did not exist at common law. Tedesco contended that the substantive rights in this action, the prevailing wage laws, were not affected by Prop. 64.

Each of the three Justices suggested that the matter might be returned to the trial court to cure the standing defect by allowing the Union or a plaintiff with a cognizable injury to substitute in as plaintiff. Tedesco said that is a different lawsuit, the public withdrew this plaintiff's right to proceed with this suit by enacting Prop. 64.

Gauger, attorney for real party plaintiff/respondent Munoz, contended that the trial court's tentative ruling was well reasoned. Munoz had arranged his affairs to pursue a Business & Professions Code section 17200 suit. Justice Cantil questioned how an uninjured plaintiff could "arrange his affairs". Gauger responded that he did so by deciding to file individually, as a representative of the public, rather than as the carpenter's union, to make sure that the carpenters are paid the prevailing wage. He asked that the stay be lifted, and Munoz be permitted leave to amend, or alternatively, that another individual replace Munoz as the plaintiff.

Justice Sims interjected that everyone in the lawsuit has a substantive right at stake. He stated that this was "just a procedural standing issue". It was very hard for him to believe that the people of California cannot change standing in the middle of a suit. He read portions of Prop. 64, which referred to cases being "prosecuted", stating he understood the use of the word "prosecuted" to meant that the voters intended to change standing midstream. If Prop. 64 was only intended to apply in the future, the drafters would not have to say "and prosecuted", just writing "filed" would be enough.

Justice Davis inquired at the end of the argument, whether the case could be remanded to secure the cooperation of a public prosecutor. Tedesco responded that the prosecutor has not filed, and the right to bring a suit, includes the right not to sue.


It appears that the Third District will find that Prop. 64 is procedural only, and does not affect substantive rights, and it was written to reflect an intent that it be applied to pending cases. The Court may reverse and remand, to permit plaintiff leave to amend.
Here are my initial impressions based wholly on the above summary. I'm not sure that the language of Prop. 64 that Justice Sims identified means the electorate intended that the amendments apply to pending cases. Defendants have relied on certain words in Proposition 64’s preamble to support an inference of retroactivity, including these:
However, Proposition 64 also contains language suggesting that it was intended to apply prospectively only, including the following:
Read in context, any “retroactivity” language in Proposition 64 is ambiguous, at best, which means the Proposition was not intended to apply retroactively. As the Supreme Court has put it, “‘a statute that is ambiguous with respect to retroactive application is construed … to be unambiguously prospective.’” Myers v. Philip Morris Cos., 28 Cal.4th 828, 841 (2002) (quoting INS v. St. Cyr, 533 U.S. 289, 320-21, fn.45 (2001)) (emphasis added); see also id. at 843 (noting that Evangelatos requires an “unequivocal and inflexible statement of retroactivity”). Here, as in Myers, “the time-honored presumption against retroactive application of a statute … would be meaningless if the vague phrases relied on by [defendants] were considered sufficient to satisfy the test of a ‘clear[] manifest[ation], or an ‘unequivocal and inflexible’ assertion of … retroactivity.” Myers, 28 Cal.4th at 843 (quoting Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939, 946 (1997); Evangelatos v. Superior Court, 44 Cal.3d 1188, 1207 (1988)).
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