Superior Court (Cal.) Says that Civil Code 1459.5, Purporting to Overrule Lafferty, Is Not Retroactive and Is Pre-empted Anyway

A Superior Court judge ruled on the applicability of Civil Code 1459.5 to an attorney fee motion brought against a Holder.  The Superior Court held:

The Court is unwilling to apply pending Civil Code 1459.5.  It does not take effect until January 1, 2020 and is pre-empted by the Federal Trade Commission’s May 2, 2019 ruling on the issue of whether the rule’s limitation applies to attorneys’ fees. (84 Fed.Reg. 18711, 19713)

The Superior Court apparently was persuaded by the rule that courts must defer to regulatory agencies’ intepretations, and that regulations issued by federal agencies preempt state laws that conflict with or stand as obstacles to those regulations. (Fidelity Federal Savings & Loan Assn. v. De La Cuesta, 458 U.S. 141, 153-154 (1982); Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 699 (1984).  A copy of the Superior Court’s minute order can be found here.