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The plaintiff and civil defense bars are preparing to square off in a Santa Ana courtroom next month in a duel over the scope of Proposition 64, the voter-approved measure that bars attorneys from bringing cases without a named plaintiff. Briefs are due Dec. 3 in Consumer Advocates v. DaimlerChrysler, G029811, a case that both sides agree would ordinarily have been routine. But the car warranty dispute filed under Business & Professions Code �17200 is expected to prompt the first appellate opinion on whether Prop 64 applies to cases already pending. Consequently, each side is pulling out its biggest guns. “Everybody’s going to concentrate on this one,” said Sharon Arkin, a partner with Robinson, Calcagnie & Robinson and the new president of the Consumer Attorneys of California. Timothy Blood, a partner with Lerach Coughlin Stoia Geller Rudman & Robbins, said his firm will step in to handle the appeal for the plaintiffs in the case, which was originally brought by Santa Ana solo Martin Anderson. Anderson did not respond by press time to a phone call seeking comment. The plaintiff bar is pulling together to fight retroactivity arguments. CAOC has organized meetings in San Diego, San Francisco and Los Angeles to strategize on the issue. The first meeting, held Tuesday in the San Diego office of Lerach Coughlin, attracted about 50 lawyers, Arkin said. “We’re planning on doing an amicus letter in the DaimlerChrysler case,” she said. “I’m sure there will be many from the defense side. They have so many more resources.” Indeed, on the defense side, Lisa Perrochet, the Horvitz & Levy partner representing DaimlerChrysler, has been swamped with offers from defense lawyers to help with the DaimlerChrysler briefs. “I have got a whole bunch of calls from a whole bunch of lawyers” on the DaimlerChrysler case, she said. Many of the calls, she added, include offers of support in the form of amicus curiae briefs, although she does not know how many will actually be filed. Perrochet argues that all current 17200 cases without named, injured plaintiffs — including those awaiting trial, in trial and on appeal — should be dismissed immediately. She said she plans to make two basic arguments for why Prop 64 should apply to those cases. First, she said, the referendum changes a procedural — as opposed to a substantive — right, and should therefore apply to all pending cases. Second, the private attorney general provision was a statutory right to action and thus can be immediately overturned by new legislation. “The statute giveth, and the statute taketh away,” she said. The plaintiff bar, of course, strongly disagrees. “I think they’re wrong on that. It’s a great spin to put on it, but it’s actually not the case,” said Robert Cartwright Jr., a former CAOC president. He and other plaintiff lawyers say the private attorney general statute provided a substantive right that Prop 64 can change only prospectively. Arkin and Blood argue that Prop 64′s silence on retroactivity indicates that the intent is for it to apply only to cases filed after the measure was approved by voters. “In the initiative process, the proponents could have written it any way they wanted,” said Arkin. “They could have made it retroactive if they wanted.”

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