With appealability seemingly out of reach, the Supreme Court suggests a route out of the cul de sac
In Kurwa v. Kislinger, the Supreme Court today holds that the Court of Appeal was correct to dismiss a plaintiff’s appeal because the defendant’s cross-complaint remains pending, but also makes clear that all is not lost for the plaintiff. This is Kurwa II. The last time the case was before the court, four years ago, the court also found against appealability, for a different problem.
In this lawsuit that began in 2004 and in which the initial notice of appeal was filed in 2010, the plaintiff’s current dilemma arises from the defendant’s refusal to dismiss his cross-complaint and the trial court’s disclaimer of its ability to act further to create an appealable judgment. To add insult to injury, plaintiff won his appeal in the Court of Appeal on the first go-round, only to have the victory wiped out by the Supreme Court’s non-appealability decision in Kurwa I. With an obviously meritorious appeal and seemingly no way to have it heard, today’s unanimous opinion by Justice Leondra Kruger, however, offers plaintiff an escape from what the court terms “a legal cul de sac.” The court says “the trial court does indeed have the power to take action” and remands the case for the trial court to allow the parties to “either proceed to judgment on the outstanding causes of action or dismiss those causes of action with prejudice.”
The court affirms the Second District, Division Five, Court of Appeal, but only with a significant qualification. The Supreme Court reports that the Court of Appeal believed that “that unless and until [the defendant] . . . chooses to dismiss his [cross-complaint], there can be no final and appealable judgment,” a conclusion with which the Supreme Court disagrees.