CALIFORNIANS FOR DISABILITY RIGHTS, Plaintiff and Appellant,
v.
MERVYN'S, LLC, Defendant and Respondent.
Supreme Court of California.
*58 Rosen, Bien & Asaro, Andrea G. Asaro, San Francisco, Holly M. Baldwin; Zelle, Hofmann, Voelbel, Mason & Gette, Daniel S. Mason, San Francisco; Disability Rights Advocates, Sidney Wolinsky, Monica Goracke, Laurence W. Paradis, Oakland; The Sturdevant Law Firm, James C. Sturdevant and Monique Olivier, San Francisco, for Plaintiff and Appellant.
Robinson, Calcagnie & Robinson, Sharon J. Arkin, Newport Beach; Arias, Ozzello & Gignac, Los Angeles, and H. Scott Leviant, Tarzana, for Consumer Attorneys of California, Janice Duran and Julia Ramos as Amici Curiae on behalf of Plaintiff and Appellant.
Lexington Law Group, Mark N. Todzo, Eric S. Somers and Lynne R. Saxton, for California League for Environmental Enforcement Now as Amicus Curiae on behalf of Plaintiff and Appellant.
*59 Bramson, Plutzik, Mahler & Birkhaeuser, Robert M. Bramson, Walnut Creek; and Leslie A. Brueckner, for National Association of Consumer Advocates and Trial Lawyers for Public Justice as Amici Curiae on behalf of Plaintiff and Appellant.
Law Office of Richard R. Wiebe and Richard R. Wiebe, San Francisco, for Center for Biological Diversity, Inc., Environmental Protection Information Center and Electronic Frontier Foundation as Amici Curiae on behalf of Plaintiff and Appellant.
Thomas Osborne, Ventura, Michael Schuster and Barbara Jones, for AARP as Amicus Curiae on behalf of Plaintiff and Appellant.
Morrison & Foerster, David F. McDowell, John Sobieski, Los Angeles, Linda E. Shostak and Gloria Y. Lee, San Francisco, for Defendant and Respondent.
Lewis Brisbois Bisgaard & Smith, Roy G. Weatherup, David N. Makous, Eric J. Erickson and Leo Bautista, Los Angeles, for ReadyLink HealthCare, Inc., as Amicus Curiae on behalf of Defendant and Respondent.
Fred J. Hiestand, Sacramento, for The Civil Justice Association of California as Amicus Curiae on behalf of Defendant and Respondent.
Munger, Tolles & Olson, Ronald L. Olson, Steven B. Weisburd and Dean N. Kawamoto, Los Angeles, for the California Chamber of Commerce, the California Bankers Association, the California Financial Services Association, the California Manufacturers & Technology Association and the California Motor Car Dealers Association as Amici Curiae on behalf of Defendant and Respondent.
Sonnenschein Nath & Rosenthal, Paul E.B. Glad, Thomas E. McDonald, San Francisco, and Jennifer A. Bushoft, for Association of California Insurance Companies and American Insurance Association as Amici Curiae on behalf of Defendant and Respondent.
Paul J. Beard III, Sacramento, for Pacific Legal Foundation and Central California Citizens Against Lawsuit Abuse as Amici Curiae on behalf of Defendant and Respondent.
Heller Ehrman, Vanessa Wells, Warrington S. Parker III and Daniel K. Slaughter, San Francisco, for State Farm Mutual Automobile Insurance Company, The Hertz Corporation and Visa U.S.A. Inc., as Amici Curiae on behalf of Defendant and Respondent.
Gibson, Dunn & Crutcher, Gail E. Lees, Kirk A. Patrick, G. Charles Nierlich and Christopher Chorba, Los Angeles, for Express Scripts, Inc., National Prescription Administrators, Inc., Aetna Health of California Inc., and Aetna Life Insurance Company as Amici Curiae on behalf of Defendant and Respondent.
Law Offices of Neal T. Wiener and Neal T. Wiener, for Jarrow Formulas, Inc., as Amicus Curiae on behalf of Defendant and Respondent.
WERDEGAR, J.
California law previously authorized any person acting for the general public to sue for relief from unfair competition. (Bus. & Prof.Code,[1] former § 17204, as amended by Stats.1993, ch. 926, § 2, p. 5198 (former section 17204); see also Stop Youth Addiction, Inc. v. Lucky Stores, Inc. (1998)
I. BACKGROUND
Plaintiff Californians for Disability Rights (CDR), a nonprofit corporation, sued defendant Mervyn's, LLC (Mervyn's), a corporation that owns and operates department stores, for alleged violations of the unfair competition law. (§ 17200 et seq.) CDR alleged that pathways between fixtures and shelves in Mervyn's stores were too close to permit access by persons who use mobility aids such as wheelchairs, scooters, crutches and walkers. CDR did not claim to have suffered any harm as a result of Mervyn's conduct. Instead, CDR purported to sue on behalf of the general public under former section 17204. As relief, CDR sought an order declaring Mervyn's practices to be unlawful, an injunction barring those practices and requiring remedial action, CDR's costs and expenses of suit, and attorneys' fees. Following a bench trial, the superior court entered judgment for Mervyn's. CDR appealed.
On November 3, 2004, while the appeal was pending, Proposition 64 took effect, having been approved by the voters the preceding day. (See Cal. Const., art. II, § 10, subd. (a).) Mervyn's moved to dismiss the appeal, arguing the measure eliminated CDR's standing to prosecute the action. The Court of Appeal denied the motion, holding that Proposition 64's standing provisions did not apply to cases pending when the measure took effect. We granted Mervyn's petition for review.
II. DISCUSSION
As mentioned, California's statutory unfair competition law (§ 17200 et seq.) (hereafter the UCL) previously authorized "any person acting for the interests of itself, its members or the general public" (former § 17204) to file a civil action for relief. Standing to bring such an action did not depend on a showing of injury or damage. (See Committee on Children's Television, Inc. v. General Foods Corp., supra,
In Proposition 64, as stated in the measure's preamble, the voters found and declared that the UCL's broad grant of standing had encouraged "[f]rivolous unfair competition lawsuits [that] clog our courts[,] cost taxpayers" and "threaten[] the survival of small businesses ...." (Prop. 64, § 1, subd. (c) ["Findings and Declarations of Purpose"].) The former law, the voters determined, had been "misused by some private attorneys who" "[f]ile frivolous lawsuits as a means of generating attorneys' fees without creating a corresponding public benefit," "[f]ile lawsuits where no client has been injured in fact," "[f]ile lawsuits for clients who have not used the defendant's product or service, viewed the defendant's advertising, or had any other business dealing with the defendant," and "[f]ile lawsuits on behalf of the general public without any accountability to the public and without adequate *61 court supervision." (Prop. 64, § 1, subd. (b)(1)-(4).) "[T]he intent of California voters in enacting" Proposition 64 was to limit such abuses by "prohibit[ing] private attorneys from filing lawsuits for unfair competition where they have no client who has been injured in fact" (id., § 1, subd. (e)) and by providing "that only the California Attorney General and local public officials be authorized to file and prosecute actions on behalf of the general public" (id., § 1, subd. (f)).
Proposition 64 accomplishes its goals in relatively few words. The measure amends section 17204, which prescribes who may sue to enforce the UCL, by deleting the language that had formerly authorized suits by any person "acting for the interests of itself, its members or the general public," and by replacing it with the phrase, "who has suffered injury in fact and has lost money or property as a result of unfair competition." The measure also amends section 17203, which authorizes courts to enjoin unfair competition, by adding the following words: "Any person may pursue representative claims or relief on behalf of others only if the claimant meets the standing requirements of Section 17204 and complies with Section 382 of the Code of Civil Procedure, but these limitations do not apply to claims brought under this chapter by the Attorney General, or any district attorney, county counsel, city attorney, or city prosecutor in this state." (§ 17203.)[2]
Proposition 64 does not expressly declare whether the new standing provisions it adds to the UCL apply to pending cases. Mervyn's argument that the measure does so declare is unconvincing. According to Mervyn's, the electorate expressed its understanding that the new standing provisions apply to pending cases by stating in section 17204 that suits under the unfair competition laws "shall be prosecuted exclusively" (italics added) by the persons therein given standing. Mervyn's argues the word "prosecuted" is broad enough to describe the continued prosecution of actions filed before the measure took effect. (Cf. Melancon v. Superior Court (1954)
Certainly the foregoing statements would be consistent with an assumed intention *62 to apply Proposition 64's standing provisions to pending cases. The language is not, however, sufficiently clear to compel the inference that the voters did intend the provisions so to apply. The UCL's reference to the "prosecution" of actions appears in a part of section 17204 that Proposition 64 did not change. Moreover, at least in modern times, we have been cautious not to infer the voters' or the Legislature's intent on the subject of prospective versus retrospective operation from "vague phrases" (Myers v. Philip Morris Companies, Inc. (2002)
CDR, arguing the new standing provisions do not apply to pending cases, relies on the "well-established presumption that statutes apply prospectively in the absence of a clearly expressed contrary intent . . . ." (Evangelatos, supra,
When a statute's application to a given case is challenged as impermissibly retroactive, we typically begin our analysis by reiterating the presumption that statutes operate prospectively absent a clear indication the voters or the Legislature intended otherwise. (E.g., Elsner, supra,
Having articulated the presumption, "[t]here remains the question of what the terms `prospective' and `retroactive' *63 mean." (Tapia, supra,
Applying these rules in illustrative cases, we have found to be retroactive, and thus impermissible, the application of new statutes to pending cases in ways that would have: (a) expanded contractors' tort liability for past conduct by imposing broader duties than existed under the common law (Elsner, supra,
In contrast, courts have found to be prospective, and thus permissible, the application to pending cases of new statutes: (a) requiring plaintiffs suing under an environmental law to provide a certificate of merit (In re Vaccine Cases (2005)
To apply Proposition 64's standing provisions to the case before us is not to apply them "retroactively," as we have defined that term, because the measure does not change the legal consequences of past conduct by imposing new or different liabilities based on such conduct.[3] (See Elsner, supra,
Proposition 64 does prevent uninjured private persons from suing for restitution on behalf of others. This is a consequence of section 17203 (as amended by Prop. 64, § 2), which provides that "[a]ny person may pursue representative claims or relief on behalf of others only if the claimant meets the standing requirements of Section 17204 and complies with Section 382 of the Code of Civil Procedure. . . ."[4] In effect, section 17203, as amended, withdraws the standing of persons who have not been harmed to represent those who have. But the section need not for that reason be described as operating retroactively. For a lawsuit properly to be allowed to continue, standing must exist at all times until judgment is entered and not just on the date the complaint is filed. "[C]ontentions based on a lack of standing involve jurisdictional challenges and may be raised at any time in the proceeding." (Common Cause v. Board of Supervisors (1989)
*65 CDR argues that to apply Proposition 64's standing rules to pending cases "would significantly impair the settled rights and expectations of the parties to continue prosecution of their actions." But the only rights and expectations Proposition 64 impairs hardly bear comparison with the important right the presumption of prospective operation is classically intended to protect, namely, the right to have liability-creating conduct evaluated under the liability rules in effect at the time the conduct occurred. (See Elsner, supra,
III. DISPOSITION
The judgment of the Court of Appeal is reversed and the case remanded for further proceedings consistent with this opinion.
GEORGE, C.J., KENNARD, BAXTER, CHIN, MORENO, and CORRIGAN, JJ., concur.
NOTES
Notes
[1] All further statutory citations are to the Business and Professions Code, except as noted.
[2] Proposition 64 also makes changes that do not affect this case. Specifically, the measure provides that any civil penalties imposed under the UCL, which now as before are recoverable only in actions brought by public officials (§ 17206, subd. (a)), are "for the exclusive use by the Attorney General, the district attorney, the county counsel, and the city attorney for the enforcement of consumer protection laws" (§ 17206, subd. (c), as amended by Prop. 64, § 4; see also § 17206, subd. (e)). Proposition 64 also makes identical changes to the false advertising law (§ 17500 et seq.) concerning standing to sue and the use of penalties. (See §§ 17535, 17536, subd. (c), as amended by Prop. 64, §§ 5, 6.)
[3] Given this conclusion, we need not reach Mervyn's additional argument that Proposition 64 applies to pending cases under the statutory repeal rule, i.e., the rule "that an action wholly dependent on statute abates if the statute is repealed without a saving clause before the judgment is final." (Younger v. Superior Court (1978)
[4] Code of Civil Procedure section 382 provides: "If the consent of any one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint; and when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all." We have held that "[s]ection 382 ... authorizes class suits in California.... The burden is on the party seeking certification to establish the existence of both an ascertainable class and a well-defined community of interest among the class members." (Washington Mutual Bank v. Superior Court (2001)
[5] Proposition 64's standing provisions also apply to this case for the additional reason that CRD seeks only injunctive relief. As we recently explained, "it is clear under a long and uniform line of California precedents that the validity of [a] judgment [concerning injunctive relief] must be determined on the basis of the current statutory provisions, rather than on the basis of the statutory provisions that were in effect at the time the injunctive order was entered.... `Because relief by injunction operates in the future, appeals of injunctions are governed by the law in effect at the time the appellate court gives its decision.' [Citations.]" (Marine Forests Society v. California Coastal Com. (2005)