Another Published Proposition 64 Case

Today California's Fourth Appellate District published Benson v. Kwikset Corp., No. G030956, ___ Cal.App.4th ___ (Feb. 10, 2005) out of Orange County. It holds not only that Proposition 64 applies retroactively to pending section 17200 cases, but that a plaintiff cannot cure a standing defect by amending to add new representative plaintiffs/parties.

This is even harsher than yesterday's Second Appellate District opinion, Branick v. Downey Savings, which held Prop 64 retroactive, but stated that "if a plaintiff filed a representative action under section 17200 or 17500 on behalf of the general public before November 3, 2004 and cannot meet the standing requirements under the statutes as amended by Proposition 64, the plaintiff may, at the trial court�s discretion, be entitled to amend the complaint to substitute a plaintiff who meets the standing requirements."

And it is directly contradictory to the First Appellate District's opinion in Californians for Disability Rights v. Mervyn's LLC, which held that Proposition 64 does not apply retroactively to pending cases at all.

Clearly, it's going to take a decision from the California Supreme Court to straighten this mess out.