In an unpublished opinion issued this afternoon, the First Appellate District, Division Four, reversed Judge Sabraw's order in the FATE cases. Foundation Aiding the Elderly v. Superior Court, case no. A109442. The opinion reads, in relevant part:
We have previously set forth our determination that Proposition 64 does not apply to lawsuits filed before its effective date of November 3, 2004, and need not repeat that analysis. (Californians for Disability Rights v. Mervyn�s, supra, 126 Cal.App.4th at pp. 391-397.) We are aware that several courts of appeal disagree with us, as Covenant Care points out. (Bivens v. Corel Corp. (2005) 126 Cal. App.4th 1392, 1402-1405; Benson v. Kwikset Corp. (2005) 126 Cal.App.4th 887, 900-907; Branick v. Downey Savings & Loan Assn. (2005) 126 Cal.App.4th 828, 840-844.) The disagreement is founded upon an apparent conflict in canons of statutory construction and is unlikely to be resolved until our Supreme Court clarifies whether the general presumption of prospectivity applies to all legislation, as we believe, or applies only when the legislation modifies common law rights or modifies statutory rights short of a repeal or partial repeal, as some others believe.
Our belief that the prospectivity presumption applies to all legislation is based upon our high court�s past application of that presumption to both modifications of common law (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1208), and statutory repeals (Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828, 839-848).