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The Second District Court of Appeal ruled Wednesday that Proposition 64, the November ballot measure restricting suits under California’s unfair competition law, is retroactive and applies to pending cases. The ruling comes eight days after the First District ruled just the opposite. In Branick v. Downey Savings and Loan, BC280755, Justice Richard Mosk wrote that it is “a general rule � that a cause of action or remedy dependent on a statute falls with a repeal of the statute” unless otherwise specified. Justice Orville Armstrong and Los Angeles County Superior Court Judge Sandy Kriegler, sitting by assignment, concurred. The justices remanded the case to trial court to allow plaintiffs to amend their complaint. If they can find a plaintiff injured by Downey’s alleged misdeeds, the attorneys can continue to pursue the suit. The case, which concerned recording fees charged by a savings and loan, was litigated by a team of prominent plaintiff lawyers, including several from Lerach Coughlin Stoia Geller Rudman & Robbins and Milberg Weiss Bershad & Schulman. Representing the defense were Matthew Hodel and Michael LeBoff of the Irvine firm Hodel Briggs Winter. While the First District had said that statutes are not retroactive unless they specifically say so, the Second District concluded the opposite: Without an explicit “saving clause,” the proposition’s curbs apply to all pending cases. The Second District opinion embraced and echoed arguments made in several cases by defense lawyers. Lisa Perrochet, a partner with Horvitz & Levy in Encino who had made such arguments in other cases, applauded the decision. “It’s just so simple, as it should be,” she said. “I mean, it’s not rocket science. They got the straightforward answer and the right answer.” Perrochet said she was glad that the conflicting rulings came so close together to one another. “The relief is that we didn’t have to wait too long for it because there are so many trial courts trying to figure out what to do” with pending 17200 cases filed before Election Day. James Wheaton, a lawyer with the Environmental Law Foundation who doesn’t want pending cases thrown out, took the decision in stride. “This was not unexpected, given the tenor of oral arguments” in the Second District case, he said. “Obviously, what this does is guarantee that the Supreme Court will reach out and take one of these cases.” The full text of the opinion will appear in Friday’s California Daily Opinion Service.

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