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The plaintiff bar scored a surprising victory Tuesday when the First District Court of Appeal ruled that Proposition 64 — the November ballot initiative that restricts the state’s private attorney general act — is not retroactive. The ruling on a motion for dismissal came in a case argued just last week that few expected to produce a precedent-setting opinion. The court was plain in its ruling. “The language used in the proposition and ballot materials � fails to provide any implicit indication that the electorate intended the law to be retroactive. If anything, the statutory language and ballot materials suggest an intention that the law apply prospectively to future lawsuits,” wrote Justice Patricia Sepulveda, who authored the 11-page ruling with Justices Laurence Kay and Timothy Reardon concurring. The case, Californians for Disability Rights v. Mervyn’s ,A106199, involved a complaint under the state’s unfair competition law, Business & Professions Code § 17200, that said aisles in Mervyn’s department stores are too narrow for disabled shoppers. The opinion came after a series of conflicting trial court rulings, most in favor of retroactivity. Plaintiff and defense lawyers have been furiously working up their arguments on the question of Prop 64′s application since Nov. 3, the day after the initiative passed. “This is a victory all around for the plaintiff bar. It’s very strongly worded,” said Kimberly Kralowec, a plaintiff lawyer with the Furth Firm whose 17200 Web log has become a popular source of information on retroactivity arguments. San Francisco plaintiff attorney James Sturdevant, who argued the case before the appeal court on Jan. 25, was elated Tuesday. “It’s a superb opinion, skillfully written with very tight analysis that flows directly from decades of jurisprudence from the California Supreme Court,” he said. Prop 64′s author disagreed. “The opinion correctly states that the initiative is silent on its application to pending cases. But we certainly felt when we drafted it that it would be held applicable,” said William Stern, a civil defense lawyer with Severson & Werson in San Francisco. “This is a statutory cause of action, and under a longstanding line of cases, the repeal of a statutory cause of action means that the cause fails with the statute.” David McDowell and Linda Shostak, partners with Morrison & Foerster who represented Mervyn’s, did not return calls by press time. Lisa Perrochet, an appellate law partner with Horvitz & Levy in Encino, said the ruling was the talk of the defense bar Tuesday afternoon. “I had to go out and get a cup of coffee because of the thousands of calls and e-mails going around,” Perrochet said. She took umbrage with several aspects of Sepulveda’s opinion, including her reliance on the 1994 U.S. Supreme Court decision Landgraf v. USI Film Products,511 U.S. 244. “Boy, did she miss the boat,” said Perrochet. “She failed to appreciate the distinction between federal procedural rule and state procedural rule.” Stern speculated that the opinion was hastily authored. “They clearly went out of their way to decide the retroactivity question,” he said. “I think they wanted to be the first on the street to issue a ruling.” Both sides expect the First District ruling to be appealed to the state Supreme Court. Earlier Tuesday there was another Prop 64 surprise in Consumer Advocates v. DaimlerChrysler , G029811, a case that had been widely expected to generate the first appeal court ruling on retroactivity. That case, too, attracted a host of amici curiae , and lawyers with Lerach Coughlin Stoia Geller Rudman & Robbins parachuted in to argue the appeal since it was believed to be of such importance for the plaintiff bar. But in a Tuesday morning anticlimax, the Fourth District Court of Appeal — which had earlier asked for supplemental briefing on retroactivity — issued an unpublished decision that did not address the issue. Californians for Disability Rights v. Mervyn�s will be available at C.D.O.S.after 3 p.m. today.

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