APPEAL from a judgment of the Superior Court of San Diego County, Richard E.L. Strauss, Luis R. Vargas and Kevin A. Enright, Judges. Affirmed. (Super. Ct. No. GIC837068).
The opinion of the court was delivered by: McDONALD, J.
CERTIFIED FOR PUBLICATION
Plaintiff Adam Rankin filed this lawsuit alleging that defendant Longs Drug Stores California, Inc. (Longs) violated California law because Longs's employment application contained a question (the question) asking whether Rankin had been convicted of a crime involving the use or possession of illegal drugs during the preceding seven years.*fn1 Rankin sought, on behalf of himself and all others similarly situated during the relevant class period, the statutory recovery specified under Labor Code section 432.7, subdivision (c). The court certified the class, rejected Longs's pretrial motions arguing that section 432.7 was preempted by federal law, and proceeded to trial.
At trial, the court rejected Longs's arguments that the federal laws in effect during the class period preempted section 432.7, and rejected Longs's claim that federal legislation enacted after the class period (the Combat Methamphetamine Epidemic Act of 2005, (CMA))*fn2 was a clarification of, rather than a change in, existing laws for purposes of the federal preemption issue. However, the trial court invited the parties to address whether enactment of the CMA should operate to abate any action against Longs alleging violation of section 432.7. After further briefing, the court found the enactment of the CMA operated to abate an action seeking an award under section 432.7, and dismissed Rankin's action. This appeal followed.
I. FACTUAL AND PROCEDURAL BACKGROUND
Longs operates nearly 400 stores in California and, within each store, operates a pharmacy at which controlled substances are dispensed. Longs is required to license each of its pharmacies with the State of California and to register each pharmacy with the federal Drug Enforcement Administration (DEA). At each of the Longs stores, all employees have access to controlled substances and pseudoephedrine (a precursor chemical) with the opportunity to steal those substances. Longs also operates a wholesale distribution center registered with the DEA. At that facility, controlled substances are received and stored until reshipped to Longs retail stores. All employees of the wholesale distribution center are or may at times be involved in handling controlled substances.
During the class period, Longs's application for employment contained the following question concerning prior convictions:
"Have you been convicted during the last seven years of a felony, a crime concerning use or possession of illegal drugs, or any misdemeanor which resulted in imprisonment?"*fn3
In October 2004 Rankin completed an employment application containing the question. Rankin responded he had been convicted in the State of Washington of possession of fewer than 40 grams of marijuana.
Rankin filed this action seeking an award under section 432.7, alleging Longs violated section 432.7 by asking questions about certain prior convictions. In July 2005 the court granted Rankin's class certification motion, and defined the class as all individuals who submitted an employment application to Longs between October 13, 2003, and September 5, 2005 (the class period), containing the question. The class notice was sent to nearly 78,000 people, and fewer than 500 opted out of the class.
In several pretrial motions, Longs argued the federal Controlled Substances Act (21 U.S.C. §§ 801-904 (CSA)) and an implementing DEA regulation (21 C.F.R. § 1301.76(a) (2005)) barred the application of section 432.7 to Longs under federal preemption principles. The trial court consistently rejected Longs's argument. However, shortly before trial, Congress enacted the CMA, which gives rise to the present appellate dispute.
The CMA On March 9, 2006, Congress enacted legislation that included the CMA. Among other things, the CMA amended the CSA to permit retail pharmacies to ask applicants whether they had ever been convicted of any crime involving controlled substances, "notwithstanding state law." (21 U.S.C., § 830(e)(1)(G).) Although some provisions of the CMA became effective 30 days after its enactment, numerous other provisions (including the provision regarding permissible questions) were expressly ...