Botched Expedition Leads to Five Years of Jurisdictional Limbo

Kurwa v. Kislinger, No. S23461 (Cal., as amended Jan. 31, 2018)

Back in 2013, the Supreme Court nixed an earlier appeal in this case. But now it’s back.

The first time around, after a key legal ruling in favor of the defendant killed off one claim, the parties agreed to voluntarily dismiss the rest of the claims, to toll the statute of limitations on them, and to take the legal issue up on appeal. But the Supreme Court said they couldn’t do that because the tolling agreement effectively meant that there was no finality in the case in the trial court. The parties were too cute in trying to manufacture appellate jurisdiction.

But the scope of the Supreme Court’s mandate caused a problem. It just dismissed the appeal. Which the trial court took to mean that the stipulation dismissing the other claims effectively remained in place as a judgment (albeit a non-appealable one), depriving the trial court of jurisdiction too. The plaintiff tried all sorts of maneuvers to get out of that jam, but kept getting rebuffed. 

Ultimately, after a series of denied writs and dismissed appeals, Plaintiff managed to get his case back before the Supreme Court. Which yet again explains that there’s no appellate jurisdiction because there is still no final, appealable judgment. 

The Court does, however, explain a consequence of that—the trial court was wrong in its belief that the stipulated defective judgment deprived it of power to act. As the Court explains, “if the trial court has not entered a judgment that is final and appealable, it retains the power to render one.” The Court goes on to note that the trial court can (and perhaps should) vacate the earlier “judgment” as the product of a mutual mistake and then re-enter a legit final judgment from which plaintiff can (finally) take a proper appeal.

Reversed.