Thursday, October 03, 2013

Kurwa v. Kislinger (Cal. Supreme Ct. - Oct. 2, 2013)

There was no doubt about how this one was going to come out.  At all.  At least by anyone who knows anything at all about these sorts of things.

The trial court essentially dismisses several of plaintiff's causes of action, which get bounced with prejudice, but there are other causes of action (e.g., defamation) that remain.  The parties don't want to bother with these secondary claims, but at the same time, plaintiff doesn't want to waive them either.  Particularly if the main claims get revived on appeal.

So everyone agrees to dismiss the remaining causes of action without prejudice and to waive the statute of limitations with respect to them.  That way, if the case gets reversed on appeal, everything's back to where it once was.  Otherwise it's all gone.

You can see why the parties do that.  It may well make eminent practical sense.

The problem -- as the California Supreme Court unanimously holds -- is that you can't do that.  There's a one final judgment rule.  When you dismiss part of the case without prejudice, especially when you've also waived the limitations period, the case isn't over.  Part of the case may well be over, but part of the case is in what we call the "netherworld".  It still exists.  It hasn't been dismissed with prejudice.  So you can't appeal. You can file a writ (and good luck with that; enjoy the postcard that you'll get in response).  But you can't manufacture an appeal as a matter of right.  That's the rule.  Notwithstanding the contrary holding of the Court of Appeal.  Reversed.

Of course that's the rule.  It's been the rule forever.  There was no doubt whatsoever that the California Supreme Court would so hold.  One case.  One appeal.  Done.  Can't do what they tried here.  Doesn't work.

I'll nonetheless make one comment.  One that doesn't detract from the fact that this was a no-brainer.  But that nonetheless might make one think twice about this otherwise straightforward opinion.

California routinely interprets the one final judgment rule a lot more liberally than other jurisdictions.  That's been the case for a long, long time.  For example, in California, class certification decisions can be appealed as a matter of right under the "death knell" doctrine.  Not true in federal court, or in a lot of other states.  Similarly, in our great state, the dismissal of one defendant is immediately subject to appeal even if other defendants remain.  Not so elsewhere.

In a plethora of ways, California is eminently more practical -- more attuned to the economic realities of modern litigation -- than other jurisdictions.  You especially see that in the exceptions we've created to the one final judgment rule.  We're flexible.  We allow lots of appeals that other places do not.

So when the California Supreme Court says, as it does at the end of its opinion, that its hands are tied -- that "California law provides no case-by-case efficiency exception to the one final judgment rule for appealability" -- I think you should take that claim with a grain of salt.  We've done a lot of things in this area either as an evolution of the common law or as an interpretation of what it means to be a "final" judgment.  So even if the result of the present case is preordained as a practical matter -- because I have a keen sense of the Court's feelings on this point -- it's not actually preordained.  The California Supreme Court could have come out differently.  It could have made an exception.  It could have done so legitimately.  It simply decided not to.

That may perhaps be the right rule.  But we should be honest about what it is.  It's a policy choice.  Our hands are not tied.

And we're not alone.  Yes, the California Supreme Court notes that some other courts (e.g., federal courts) have particular statutes or rules that create particularized exceptions from the one final judgment rule, and that we don't have those.  But guess what else federal courts -- like all other courts -- have?  The ability to interpret what a "final judgment" is.  A term that's indisputably of no fixed meaning.  That's flexible.  (Don't believe me?  Look at 28 USC 2072(c).  The Supreme Court is expressly allowed to decide what counts as "final" for purposes of the federal statute governing appellate review.  Something that it did even before the enactment of 2072(c) anyway.  If the Supreme Court can do it, so can the California Supreme Court.)

So the result here is not surprising.  But let's not pretend the Court's bound.  It's not.