Key Decisions

November 2013 – Appellate Jurisdiction Cannot Be Created By Agreement

(filed under: Key Decisions | November 20, 2013)

Appellate Jurisdiction Cannot Be Created By Agreement

Kurwa v. Kislinger
(Cal. Sup. Ct.), filed October 3, 2013, published October 3, 2013

Badrudin Kurwa sued Mark Kislinger for breach of fiduciary duty and defamation, among other claims. Kislinger cross-complained for defamation.

In pretrial motions, the trial court concluded that Kislinger owed no fiduciary duties to Kurwa.

Rather than proceeding to trial just on the defamation claims, which could then go through an appeal and possible retrial on the fiduciary duty issue, Kurwa and Kislinger agreed to dismiss their respective defamation claims without prejudice and to waive the applicable statute of limitations. According to Kislinger’s counsel, this would allow the parties to “test the issue” of fiduciary duty and “get a ruling” from the appellate court before disposing of the defamation claims.

In granting a petition for review, the California Supreme Court held that this was an impermissible practice.

Under California’s “one final judgment” rule, a judgment that fails to dispose of all the causes of action pending between the parties is generally not appealable. The fact the parties have dismissed causes of action in a manner that would permit those causes of action to be brought later does not mean that the judgment has disposed of all of the causes of action between them. A petition for a writ of mandate, which is not an appeal, is the authorized means of obtaining review of orders that lack the finality the Code of Civil Procedure requires.