Pearle Vision v. P. ex rel. Brown
In this second appeal in this action by cross complainants Pearle Vision, Inc. (Pearle), Pearle VisionCare, Inc. (Pearle VisionCare) (together, sometimes appellants), appellants assert that the court erred in sustaining cross defendants the California Attorney General and the Director of the California Department of Consumer Affairs' (DCA) demurrer to their cross complaint. That cross complaint against the Attorney General and DCA asserted that Business and Professions Code sections 655 and 2556, as well as other code sections restricting relationships between opticians/optical retailers and optometrists violated, among other things, the commerce clause and due process clause of the federal Constitution. The Attorney General and DCA demurred to the cross complaint, and the court sustained that demurrer without leave to amend and dismissed the cross complaint.
On appeal, Pearle and Pearle VisionCare assert that the court erred in sustaining the Attorney General and DCA's demurrer because the cross complaint properly alleged the challenged laws and regulations violated the commerce clause of the federal Constitution because they (1) discriminate against out of state optical retailers in both purpose and effect; (2) are unduly burdensome on out of state optical retailers; and (3) out of state optical retailers and in-state optometrists are "similarly situated" for purposes of a commerce clause analysis. Pearle and Pearle VisionCare also assert that the cross complaint properly alleges a violation of the due process clause of the federal Constitution because Business and Professions Code section 655, as interpreted by the Attorney General and DCA, does not give parties such as Pearle and Pearle VisionCare fair notice of what practices are in violation of that section. While this appeal was pending, in a case entitled National Ass'n of Optometrists & Opticians v. Lockyer (E.D.Cal. 2006) 463 F.Supp.2d 1116 (NAOO), the federal district court found that Business and Professions Code sections 655 and 2556, as well as some companion statutes and regulations, were unconstitutional because they violated the dormant aspect of the commerce clause. That decision is currently on appeal before the Ninth Circuit Court of Appeals.
The parties have now settled this case by agreeing that the constitutional claims raised in this action will be litigated in federal court by the Attorney General and the plaintiffs in NAOO, and that Pearle and Pearle VisionCare will abide by the final adjudication of that case. In conjunction with that settlement, the parties have stipulated to vacate the trial court's ruling sustaining the Attorney General and DCA's demurrer and dismissal of Pearle and Pearle VisionCare's cross-complaint, so as to avoid the danger of inconsistent rulings and the possibility of regulatory confusion in California. The parties assert that vacation of the superior court's ruling will also promote efficiency by having the issue litigated in a single forum.
Court accept the parties' stipulation under Code of Civil Procedure section 128, subdivision(a)(8) (section 128(a)(8)) and grant the parties' joint motion for vacatur of judgment.
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