dissenting:
I agree with the majority that section 4053(b) has non-preempted applications. However, I disagree that California law permits us to reform section 4053(b) to sever its preempted applications. I would allow the California Legislature to reform section 4053(b) to conform to federal law, if it chooses to do so.
It may be true, as the majority argues, that the Legislature in passing SB1 was concerned with protecting non-preempted consumer information. However, it does not follow by logic or otherwise that the patched-up version of SB1 proposed by the majority would “effectuate[ ] policy judgments clearly articulated” by the Legislature, or that the Legislature would necessarily “prefer[ ] such a reformed version of the statute [over] invalidation of the statute.” Kopp v. Fair Political Practices Comm’n, 11 Cal.4th 607, 47 Cal.Rptr.2d 108, 905 P.2d 1248, 1290 (Cal.1995) (emphasis added). Our very best indicator of the Legislature’s intent — the statute itself — suggests that the Legislature would disfavor our interference.
As the majority acknowledges, the statute’s own severability clause does not state that preempted applications should be severed; on the contrary, it provides only that “if any phrase, clause, sentence, or provision is declared to be invalid or is preempted by federal law or regulation, the validity of the remainder of this division shall not be affected thereby.” Cal. Fin.Code § 4059. Clearly, a “phrase, clause, sentence, or provision” can be severed, but the statute itself does not provide for the more complicated exercise of severing applications adopted by the majority. The majority states that this is a “hyper-technical” reading of the severability clause; I disagree. There is certainly a difference between striking portions or language from a statute, which is what severing a “phrase, clause, sentence, or provision” would do, and leaving intact the language but giving it a different meaning, which is what the majority’s severing an application does. Then what prevents us *1219from following the clear language of the statute? We should; that is why I dissent.
Following the important principle of Separation of Powers leads me to the same result. SB1 was a fiercely-negotiated statute that underwent a long process of revisions before it was finally passed. Had the Legislature wanted to provide for the majority’s severance-of-applications theory, it could have done so. It has done so in the past. See Walnut Creek Manor, Inc. v. Fair Employment & Housing Comm’n, 54 Cal.3d 245, 284 Cal.Rptr. 718, 814 P.2d 704, 717 n. 13 (Cal.1991). It did not do so when it passed SB1.
I would therefore affirm the district court’s holding that, even if a portion of section 4053(b)(1) survives preemption, this court lacks the power to sever the preempted applications.