• What's a Final Judgement?
  • March 7, 2013
  • Law Firm: Carroll Burdick McDonough LLP - San Francisco Office
  • Can parties devise an appealable "final judgment" after the most important claims in the case have been dismissed -- by agreeing to dismiss the remaining claims without prejudice, and waiving any statute of limitations for re-filing in the future? This problem arises frequently, because it makes no sense to spend time and money litigating peripheral claims when the trial court has killed the core of the dispute.

    • Right now the controlling rule says no. A line of cases led by Don Jose's Restaurant v. Truck Ins. Exchange precludes appeal from a judgment based on such a "contingent" dismissal of the remaining claims, because of the risk of piecemeal appeals.
    • But a Los Angeles decision last year in a case called Kurwa v. Kislinger expressly disagreed, recognizing the many problems with the Don Jose's rule, and allowing appeal. The Kurwa majority was willing to ease California's "one final judgment" rule in this situation, while the dissenter saw no reason to depart from Don Jose's.

    The California Supreme Court essentially had to step into this conflict over the fundamental issue of "when a judgment is final enough to be appealed." Its grant of review automatically depublished Kurwa under California rules, making it non-citable -- but that is no commentary on the Supreme Court's view of the merits. I believe that the Court will at least modify the Don Jose's rule to make litigation more efficient for the parties. We will probably see a decision this year.

    • The practical message: If you find yourself on the losing end of a crucial dispositive ruling, but lesser aspects of your case survive, you should evaluate options for appeal (and writ petition) even more carefully than usual -- bearing in mind that the law controlling this situation may change in 2013.