Filed 3/4/13

IN THE SUPREME COURT OF CALIFORNIA

DANIELLE BOURHIS et al., )

)

Plaintiffs and Appellants, )

) S199887, S199889

v. )

) Ct.App. 1/2 A132136, A133177

JOHN LORD et al., )

) Marin County

Defendants and Respondents. ) Super. Ct. No. CIV060796

____________________________________)

If a corporation fails to pay its taxes, the state may suspend its corporate 

powers. The state may later revive those powers when the corporation pays its 

taxes. We must decide whether a corporation that files notices of appeal while its 

corporate powers are suspended may proceed with the appeals after those powers 

have been revived, even if the revival occurs after the time to appeal has expired. 

Two opinions from this court in the 1970‟s held that revival of corporate powers 

validates an earlier notice of appeal. (Rooney v. Vermont Investment Corp. (1973) 

10 Cal.3d 351 (Rooney); Peacock Hill Assn. v. Peacock Lagoon Constr. Co.

(1972) 8 Cal.3d 369 (Peacock Hill).) We adhere to those decisions due to 

principles of stare decisis. Accordingly, these appeals may proceed.

I. PROCEDURAL HISTORY

Danielle Bourhis and others, including Brown Eyed Girl, Inc. (Brown Eyed 

Girl), a California corporation, filed the underlying lawsuit for property damage 

against John Lord and others. Before trial, defendants learned that the state had 
2

suspended Brown Eyed Girl‟s corporate powers for nonpayment of taxes. They 

moved in the superior court to preclude it from offering any evidence at trial. The 

court denied the motion contingent on the corporation‟s reviving its corporate 

powers. After it granted a motion for a nonsuit in favor of some defendants, and a 

jury returned a verdict in favor of another defendant, the court entered judgment in 

favor of all defendants on April 5, 2011. Notice of entry of judgment was served 

the next day. Plaintiffs, including Brown Eyed Girl, filed a notice of appeal from 

that judgment on May 26, 2011. On August 30, 2011, the court entered an order 

after judgment awarding costs and attorney fees, which was entered and served the 

same day. On September 13, 2011, plaintiffs, including Brown Eyed Girl, filed a 

notice of appeal from that order.

On December 1, 2011, defendants filed separate motions in the Court of 

Appeal to strike Brown Eyed Girl‟s notices of appeal and to dismiss those appeals 

because its corporate powers were still suspended. In opposition, Brown Eyed 

Girl presented documentation showing that its corporate powers had been revived 

on December 8, 2011. It argued that this revival validated its previous notices of 

appeal, thus making the appeal effective.

On December 29, 2011, the Court of Appeal filed orders denying both 

motions. Both orders included these citations: “(Rooney v. Vermont Investment 

Corp. (1973) 10 Cal.3d 351, 359; Peacock Hill Assn. v. Peacock Lagoon Constr. 

Co. (1972) 8 Cal.3d 369, 373-374; see ABA Recovery Services, Inc. v. Konold

(1988) 198 Cal.App.3d 720, 725, fn. 2.)”

Defendants filed separate petitions for review of the orders denying the 

motions to dismiss the appeals. (See Cal. Rules of Court, rule 8.500(a)(1) 

[interlocutory order of the Ct. App. is subject to review].) We granted both 

petitions and subsequently consolidated the matters.
3

DISCUSSION

With exceptions not relevant here, “the corporate powers, rights and 

privileges of a domestic taxpayer may be suspended, and the exercise of the 

corporate powers, rights, and privileges of a foreign taxpayer in this state may be 

forfeited,” if a corporation fails to pay its taxes. (Rev. & Tax. Code, § 23301; see 

also id., § 23301.5 [similar provision regarding the failure to file a tax return].) 

(All further statutory references are to the Rev. & Tax. Code.) A corporation 

whose powers have been suspended may apply with the Franchise Tax Board for 

reinstatement after satisfying its obligations. (§ 23305.) If the statutory 

requirements are met, the Franchise Tax Board issues a “certificate of revivor.” 

(§ 23305.) “Upon the issuance of the certificate [of revivor] by the Franchise Tax 

Board the taxpayer therein named shall become reinstated but the reinstatement 

shall be without prejudice to any action, defense or right which has accrued by 

reason of the original suspension or forfeiture . . . .” (§ 23305a.)

Brown Eyed Girl purported to file notices of appeal while its corporate 

powers were suspended. In general, a “corporation may not prosecute or defend 

an action, nor appeal from an adverse judgment in an action while its corporate 

rights are suspended for failure to pay taxes.” (Reed v. Norman (1957) 48 Cal.2d 

338, 343.) Thus, the notices of appeal were invalid when filed. However, Brown 

Eyed Girl later received a certificate of revivor. When that certificate is received, 

as one court put it, “[t]he legal rights of a suspended corporation are then revived, 

as an unconscious person is revived by artificial respiration.” (Benton v. County of 

Napa (1991) 226 Cal.App.3d 1485, 1490.) “In a number of situations the revival 

of corporate powers by the payment of delinquent taxes has been held to validate 

otherwise invalid prior action.” (Peacock Hill, supra, 8 Cal.3d at p. 371.) We 

must decide whether the revival of corporate powers in this case validated the 

earlier notices of appeal.
4

If revival of corporate powers occurs while a valid appeal can still be taken, 

the question appears easy; the revival would validate a prior notice of appeal and 

permit the appeal to proceed. The appeal would be timely, and little purpose 

would be served by requiring the corporation to file another, essentially identical, 

notice of appeal. But appeals are subject to jurisdictional time limits. A notice of 

appeal must be filed within 60 days after service of the notice of entry of 

judgment. (Cal. Rules of Court, rule 8.104(a).) “The time to file notice of appeal, 

both in civil and criminal cases, has always been held jurisdictional in California.” 

(9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 614, p. 689.) As to both 

appeals at issue here, this time had expired before Brown Eyed Girl‟s corporate 

powers were revived. Should the later revival validate the earlier invalid notice of 

appeal in this circumstance?

When it denied the motions to dismiss the appeals, the Court of Appeal 

cited Rooney, supra, 10 Cal.3d 351, and Peacock Hill, supra, 8 Cal.3d 369. In 

Peacock Hill, the Peacock Hill Association moved to dismiss the appeal of 

Peacock Lagoon Construction Co. (Construction) on the ground that 

Construction‟s corporate powers had been suspended. We refused to dismiss the 

appeal. Citing cases in which “it was held that the purpose of section 23301 of the 

Revenue and Taxation Code is to put pressure on the delinquent corporation to pay 

its taxes,” we said that “that purpose is satisfied by a rule which views a 

corporation‟s tax delinquencies, after correction, as mere irregularities.” (Peacock 

Hills, supra, 8 Cal.3d at p. 371.) We added that “[t]here is little purpose in 

imposing additional penalties after the taxes have been paid.” (Ibid.)

Peacock Hill relied in part on Traub Co. v. Coffee Break Service, Inc.

(1967) 66 Cal.2d 368, where a party had moved to set aside a final judgment in 

favor of a corporation whose corporate status had been suspended. The Traub

court had “concluded that the trial court was correct in its view that a final 
5

judgment is immune from the collateral attack attempted.” (Peacock Hill, supra, 8 

Cal.3d at p. 372.) We explained that “[i]n Traub we cited with approval several 

Court of Appeal decisions in which the corporate plaintiff was allowed to maintain 

a lawsuit even though it had been suspended at the time it filed its complaint. In 

each case, the corporation had secured reinstatement prior to the date set for trial, 

but after the defendant had brought the suspension to the attention of the trial 

court. The appellate courts reasoned that the plea of lack of capacity of a 

corporation because of its suspension for failure to pay taxes, is a plea in 

abatement which is not favored in law and must be supported by the facts at the 

time of the plea. In each case it was held that revival of the corporate powers 

before trial was sufficient to permit the corporation to maintain its action.” (Ibid.)

The Peacock Hill court concluded that “as to matters occurring prior to 

judgment the revival of corporate powers has the effect of validating the earlier 

acts and permitting the corporation to proceed with the action. We are satisfied 

that the same rule should ordinarily apply with respect to matters occurring 

subsequent to judgment. . . . [¶] In the instant case, the corporate powers of 

Construction have been revived by the payment of taxes, and it may proceed with 

its appeal.” (Peacock Hill, supra, 8 Cal.3d at pp. 373-374.)

Justice Mosk dissented. He agreed with the majority that section 23301‟s 

purpose was to put pressure on a delinquent corporation to pay its taxes, but, he 

argued, “that purpose is frustrated by permitting a delinquent corporation, merely 

through tardy payment of taxes, to validate all of the actions taken during its 

period of suspension. Under that concept the stick becomes a carrot; all incentive 

to avoid punitive disabilities dissolves. Upon exposure of its delinquency the 

corporation suffers little more than fleeting embarrassment, and, indeed, it is then 

rewarded by authentication of all its previous illegal acts. [¶] In the present case, 

for example, Construction‟s powers had been suspended prior to trial and 
6

remained in that status until after judgment and the filing of the notice of appeal. 

It was not until plaintiff brought the suspension to the attention of the appellate 

court by its motion to dismiss the appeal that Construction at long last paid its 

delinquent taxes. Presumably, if plaintiff had not moved to dismiss Construction‟s 

appeal, the latter simply could have continued in its suspended status until the 

appeal had been decided and for an indefinite period thereafter, depending upon 

whether or not it was advantageous to obtain revival of its corporate powers. How 

the majority‟s holding validating the revival of all acts of this suspended 

corporation taken after judgment will in the future impose any significant 

„pressure‟ upon a corporation to pay its franchise taxes is difficult to 

comprehend.” (Peacock Hill, supra, 8 Cal.3d at p. 374 (dis. opn. of Mosk, J.).)

Justice Mosk also cited section 23305a‟s provision that “reinstatement shall 

be without prejudice to any action, defense or right which has accrued by reason 

of the original suspension or forfeiture . . . .” He argued that “no rights could have 

accrued to the suspended corporation during the period of original suspension — it 

could not lawfully function for any purpose — so that the clause necessarily refers 

to rights accruing against the suspended corporation.” (Peacock Hill, supra, 8 

Cal.3d at p. 376 (dis. opn. of Mosk, J.).)

In Rooney, this court cited Peacock Hill, supra, 8 Cal.3d 369, for the 

proposition that “[t]he revival of corporate powers validated the procedural steps 

taken on behalf of the corporation while it was under suspension and permitted it 

to proceed with the appeal.” (Rooney, supra, 10 Cal.3d at p. 359.)

Defendants argue that Rooney, supra, 10 Cal.3d 351, and Peacock Hill, 

supra, 8 Cal.3d 369, are distinguishable. They correctly note that neither opinion 

provides precise dates or expressly states whether the revival came before or after 

the time limit in which to appeal had expired. Thus, defendants argue, the revival 

in those cases might have occurred while there was still time to appeal, which 
7

would mean the court did not decide the question presented here. In both cases, 

however, it appears the revival came after the time limit to appeal had expired. In 

Rooney, this court stated that the revival had occurred “20 days after the 

suspension had been called to defendants‟ attention by the filing of plaintiffs‟ 

brief.” (Rooney, supra, at p. 359.) Because the plaintiffs were the respondents on 

appeal, the court was referring to the filing of the respondents‟ brief. Normally, 

that brief would be filed well after the time limit in which to file a notice of appeal 

had expired, and the opinion gives no suggestion the appeal was so expedited as to 

make it an exception to the norm. The timing of the revival relative to the time 

limits is even less clear in Peacock Hill. There, this court merely stated that one 

party had moved to dismiss Construction‟s appeal on the ground Construction‟s 

corporate powers had been suspended, that Construction had filed a declaration 

opposing the motion stating it had applied for a certificate of revivor, and that, 

“[s]ubsequently,” Construction filed a certificate of revivor that the Franchise Tax 

Board had issued. (Peacock Hill, supra, at p. 371.) It is possible, although it 

seems unlikely, that all of these events had occurred before the time in which to 

file a valid notice of appeal had expired.

Although the scope of Peacock Hill and Rooney is thus not entirely clear, it 

appears both opinions intended the rule favoring revival to be unqualified. If the 

revival of either case had occurred while a valid appeal could still be taken, which 

would have made it an easy question, surely the opinion would have so indicated. 

In dissent, Justice Mosk cited section 23305a‟s language that revival must not 

prejudice an “action, defense or right” that had already accrued. This citation 

would be relevant only if the revival had occurred after it was too late to appeal; 

otherwise, the appellant could simply have filed a new notice of appeal. Justice 

Mosk‟s dissent thus strongly implies that the revival came after the time limit to 

appeal had expired. The majority opinion in Peacock Hill did not specifically 
8

respond to Justice Mosk‟s argument regarding section 23305a, but it appears the 

majority implicitly concluded that the section did not invalidate the appeal even if 

the corporate revival occurred after it was too late to appeal. Accordingly, 

Peacock Hill and Rooney govern.

The doctrine of stare decisis teaches that a court usually should follow prior 

judicial precedent even if the current court might have decided the issue 

differently if it had been the first to consider it. This doctrine is especially forceful 

when, as here, the issue is one of statutory construction, because the Legislature 

can always overturn a judicial interpretation of a statute. The doctrine of stare 

decisis is not absolute, and sometimes it is appropriate to overrule prior precedent, 

even precedent interpreting a statute. Nevertheless, a court should be reluctant to 

overrule precedent and should do so only for good reason. (People v. Latimer

(1993) 5 Cal.4th 1203, 1212-1213.)

We see no good reason to overrule Rooney, supra, 10 Cal.3d 351, and 

Peacock Hill, supra, 8 Cal.3d 369. The rule stated in those cases has existed for 

four decades. It does not appear the rule has proven unworkable or has unduly 

hampered the state‟s ability to collect its taxes. If the rule does create serious 

problems, the Legislature may change it any time it wishes, something it has not 

done. On the other hand, good reason exists not to overrule those cases. The 

Revenue and Taxation Code statutes at issue here “apply to a host of factual 

situations involving different” kinds of corporate actions. (People v. Latimer, 

supra, 5 Cal.4th at p. 1214.) In the years after we decided Rooney and Peacock 

Hill, appellate courts have cited those cases in resolving a variety of issues 

concerning the suspension of corporate powers, often holding that revival of those 

powers validated prior actions. (E.g., Center for Self-Improvement & Community 

Development v. Lennar Corp. (2009) 173 Cal.App.4th 1543, 1552-1553; Benton v. 

County of Napa, supra, 226 Cal.App.3d at pp. 1490-1492.) We cannot foresee 
9

exactly what effect overruling Peacock Hill and Rooney today would have in other 

contexts, but the effect might be substantial. In this circumstance, we believe that 

the Legislature should modify the rule if it is to be modified.

When the Court of Appeal denied the motions to dismiss the appeals, in 

addition to citing Rooney, supra, 10 Cal.3d 351, and Peacock Hill, supra, 8 Cal.3d 

369, it added, “see ABA Recovery Services, Inc. v. Konold (1988) 198 Cal.App.3d 

720, 725, fn 2.” Why the court did so is apparent. A line of Court of Appeal cases 

has held that the running of a statute of limitations is a substantive defense that 

may not be prejudiced by later revival of corporate powers. (Friends of Shingle 

Springs Interchange, Inc. v. County of El Dorado (2011) 200 Cal.App.4th 1470, 

1486-1487, and cases cited.) As one court explained, “The statute of limitations 

was a substantive defense which accrued by its running during that period of 

appellant‟s suspension, and cannot be prejudiced by revival of the suspended 

corporation.” (Welco Construction, Inc. v. Modulux, Inc. (1975) 47 Cal.App.3d 

69, 74.)

In ABA Recovery Services, Inc. v. Konold, supra, 198 Cal.App.3d at pages 

724-725, the Court of Appeal applied the rule that revival of corporate powers 

does not affect the running of the statute of limitations. But the court also 

compared the rule regarding statutes of limitations with the rule regarding appeals: 

“We question why the timely filing of a notice of appeal, which is jurisdictional 

and cannot be waived, is a procedural act unaffected by a corporation‟s 

suspension, while the statute of limitations, which is not jurisdictional and can be 

waived, is a substantive defense fatal to a suspended corporation‟s cause of action. 

However, we leave the resolution of this apparent inconsistency to the Supreme 

Court.” (Id. at p. 725, fn. 2.)

We acknowledge the tension between the rule articulated in the cases above 

regarding statutes of limitations (no retroactive revival) and the rule we are 
10

affirming today regarding notices of appeal (retroactive revival). But without 

addressing the propriety of the statute of limitations cases, an issue not presented 

in this case, we believe the two approaches can be reconciled. As noted, section

23305a provides that revival “shall be without prejudice to any action, defense or 

right which has accrued by reason of the original suspension or forfeiture . . . .” 

The cases concerning statutes of limitations explain that those statutes provide a 

substantive defense that later revival of corporate powers cannot prejudice. But

Rooney, supra, 10 Cal.3d 351, and Peacock Hill, supra, 8 Cal.3d 369, implicitly 

concluded that the expiration of the time to file a valid notice of appeal does not 

provide an “action, defense or right” within the meaning of section 23305a. This 

conclusion finds support in Schwartz v. Magyar House, Inc. (1959) 168 

Cal.App.2d 182, 190, which held that being “in a position to file a default 

judgment” against a suspended corporation “is not a „right‟ within the 

contemplation of” section 23305a. (See also Center for Self-Improvement & 

Community Development v. Lennar Corp., supra, 173 Cal.App.4th at pp. 1553-

1554 [citing Schwartz with approval on this point].) Similarly, being in a position 

to move to dismiss an untimely appeal is not a “right” under that statute. Thus 

interpreted, the two rules — one concerning appeals, the other concerning statutes 

of limitations — can coexist.

As the concurring and dissenting opinion notes, filing a timely notice of 

appeal is a jurisdictional requirement. Although Rooney, supra, 10 Cal.3d 351, 

and Peacock Hill, supra, 8 Cal.3d 369, do not discuss this point expressly, it 

appears the court believed that what is jurisdictionally required is that the notice of 

appeal be timely, not that it be filed by an active corporation. Here, the notices of 

appeal were timely even if invalid when filed. The Rooney and Peacock Hill court 

implicitly concluded that the corporation‟s later reinstatement made the earlier, 

invalid but timely, notices of appeal valid and still timely.
11

III. CONCLUSION

We adhere to Rooney, supra, 10 Cal.3d 351, and Peacock Hill, supra, 8 

Cal.3d 369. Accordingly, we affirm the Court of Appeal‟s orders denying the 

motions to dismiss the appeals.

CHIN, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

BAXTER, J.

WERDEGAR, J.

CORRIGAN, J.

LIU, J.
1

CONCURRING AND DISSENTING OPINION BY KENNARD, J.

A corporation may not “appeal from an adverse judgment in an action 

while its corporate rights are suspended for failure to pay taxes.” (Reed v. Norman

(1957) 48 Cal.2d 338, 343.) According to the majority, that rule does not apply 

when, after expiration of the appeal period, the corporation‟s suspension is lifted. 

The majority reasons that the reinstatement retroactively validates a notice of 

appeal that the suspended corporation filed during the appeal period. I disagree. 

As an appellate court‟s jurisdiction is wholly dependent upon the timely filing of a 

valid notice of appeal, the consequence should be dismissal of the appeal. 

In support of its holding, the majority cites two 40-year-old decisions of 

this court, one of them with a vigorous dissent by Justice Stanley Mosk. In my 

view, those two decisions were wrong then, are wrong now, and should be 

overruled. Because, however, those decisions may have led to some reliance by 

the bench and bar, I would apply the rule I propose to future cases only. This is 

the sole reason for my agreement with the majority‟s disposition.

I. APPELLATE JURISDICTION

A party seeking to appeal must file a notice of appeal within 60 days after it 

is served with a notice of entry of either a judgment or an appealable order, or 

within 180 days after entry of judgment, whichever is earlier. (Cal. Rules of 

Court, rule 8.104(a)(1), (c).) Here, one of the plaintiffs, Brown Eyed Girl, Inc., 

filed a timely notice of appeal. But that notice was filed during suspension of the 
2

corporation‟s powers, rights, and privileges for not paying its taxes. As this court 

said 55 years ago, a corporation whose rights have been suspended “for failure to 

pay taxes” may not appeal from an adverse judgment in a court action. (Reed v. 

Norman, supra, 48 Cal.2d at p. 343.) Thus, here plaintiff‟s notice of appeal, filed 

during the corporation‟s suspension, was invalid. 

After expiration of the appeal period, the corporation paid the delinquent 

taxes and was reinstated. Should the rule be that the reinstatement retroactively 

validates the corporation‟s invalid notice of appeal? The majority‟s answer is 

“yes.” My answer is “no,” as explained below. 

The filing of a timely and valid notice of appeal is a “prerequisite to the 

exercise of appellate jurisdiction.” (Hollister Convalescent Hosp., Inc. v. Rico

(1975) 15 Cal.3d 660, 670.) The lack of such notice deprives the reviewing court 

of “all power to consider the appeal on its merits,” and dismissal is the 

consequence. (Id. at p. 674; Maynard v. Brandon (2005) 36 Cal.4th 364, 372-373; 

In re Chavez (2003) 30 Cal.4th 643, 650; see 9 Witkin, Cal. Procedure (5th ed. 

2008) Appeal, § 601, pp. 677-678.) That rule is also embodied in our court rules. 

(Cal. Rules of Court, rules 8.60(d) [appellate court may not relieve a party from 

the failure to file a timely notice of appeal], 8.104(b) [appellate court must dismiss 

the appeal if the notice of appeal is filed late].) “In the absence of statutory 

authorization, neither the trial nor appellate courts may extend or shorten the time 

for appeal [citation], even to relieve against mistake, inadvertence, accident, or 

misfortune [citations].” (Estate of Hanley (1943) 23 Cal.2d 120, 123.) No statute 

authorizes appellate courts to extend the appeal period for suspended corporations. 

No good reason appears why a corporation‟s notice of appeal filed during 

suspension, and thus invalid, should become valid when, after expiration of the 

appeal period, the corporate powers are reinstated. To allow this is to vest the 

appellate court with jurisdiction that it lacked during the appeal period when an 
3

invalid notice was filed. Such an outcome is generally unavailable irrespective of 

any mistake, inadvertence, or misfortune. (Estate of Hanley, supra, 23 Cal.2d at 

p. 123.) 

II. THIS COURT’S PRECEDENTS

The majority‟s decision relies on two 40-year-old decisions of this court: 

Peacock Hill Assn. v. Peacock Lagoon Constr. Co. (1972) 8 Cal.3d 369 (Peacock 

Hill), and Rooney v. Vermont Investment Corp. (1973) 10 Cal.3d 351 (Rooney). 

Those two decisions were wrong then, are wrong now, and should be overruled. 

As the majority notes, both Peacock Hill, supra, 8 Cal.3d 369 and Rooney,

supra, 10 Cal.3d 351, implicitly held that an invalid notice of appeal filed by a 

corporation suspended for failure to pay taxes is, upon reinstatement of the 

corporation, retroactively validated. (See maj. opn., ante, at pp. 6-8.) Not at all 

considered by the Peacock Hill majority, however, was this core appellate rule: 

The filing of a timely and valid notice of appeal is a prerequisite for appellate 

jurisdiction. Instead, the majority there simply cited certain cases as holding that 

in “a number of situations” a suspended corporation‟s reinstatement served to 

validate “otherwise invalid prior action.” (Peacock Hill, supra, at p. 371.) The 

cited cases, none of which involved appellate court subject matter jurisdiction, are: 

Traub Co. v. Coffee Break Service, Inc. (1967) 66 Cal.2d 368, Diverco 

Constructors, Inc. v. Wilstein (1970) 4 Cal.App.3d 6, A. E. Cook Co. v. K S Racing 

Enterprises, Inc. (1969) 274 Cal.App.2d 499, and Duncan v. Sunset Agricultural 

Minerals (1969) 273 Cal.App.2d 489. (Peacock Hill, supra, at p. 371.)

The decision in Rooney, supra, 10 Cal.3d 351, came a year after Peacock 

Hill, supra, 8 Cal.3d 369, which Rooney, without any analysis, cited with approval 

for the proposition that reinstatement of a suspended corporation “permitted it to 

proceed with the appeal.” (Rooney, supra, at p. 359.) 
4

Because the filing of a timely and valid notice of appeal is necessary to give 

the appellate court jurisdiction over the appeal, failure to file such a notice results 

in an irrevocable forfeiture of the litigant‟s right to appeal. In my view, this 

forfeiture cannot be vacated or cured by later events, such as reinstatement of 

corporate powers by payment of delinquent taxes, and I would therefore overrule 

the two decisions of this court — Peacock Hill, supra, 8 Cal.3d 369 and Rooney,

supra, 10 Cal.3d 351 — that held to the contrary. But because those decisions 

may have been relied on by the bench and bar, I would, for reasons of fairness, 

apply the rule I propose to future cases only. (See, e.g., Smith v. Rae-Venter Law 

Group (2002) 29 Cal.4th 345, 372; Woods v. Young (1991) 53 Cal.3d 315, 330.) 

Solely on this basis, I agree with the majority‟s disposition here. 

KENNARD, J.
1

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Bourhis v. Lord

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX no opn. filed

Rehearing Granted

__________________________________________________________________________________

Opinion No. S199887/S199889

Date Filed: March 4, 2013

__________________________________________________________________________________

Court: Superior

County: Marin

Judge: James R. Ritchie

__________________________________________________________________________________

Counsel:

Bourhis & Mann, Ray Bourhis, Lawrence Mann; Smith & McGinty, Daniel U. Smith and Valerie T. 

McGinty for Plaintiffs and Appellants.

Brydon Hugo & Parker, Edward R. Hugo, Heidi K. Hugo and Jeffrey Kaufman for Defendants and 

Respondents.
2

Counsel who argued in Supreme Court (not intended for publication with opinion):

Edward R. Hugo

Brydon Hugo & Parker

135 Main Street, Suite 2000

San Francisco, CA 94105

(415) 808-0300