In an earlier decision in the same case, the Supreme Court dismissed Kurwa’s appeal from an order dismissing the breach of fiduciary duty claims in his complaint and Kislinger’s cross-complaint, holding the judgment was not final or appealable because it was based on a stipulation for dismissal without prejudice and with a waiver of the statute of limitations on both parties’ defamation claims. This time the Supreme Court again dismissed Kurwa’s appeal since the trial court had still not entered a final judgment. Though Kurwa had voluntarily dismissed his defamation claim with prejudice, Kislinger had not. However, the Supreme Court clarifies that when the parties try to force a premature appeal as they did in this case, the proper remedy in the appellate court is a dismissal of the appeal and a remand to the trial court to allow it to vacate its nonfinal judgment and the mistaken stipulation on which it was based, leaving the parties in the status quo ante, with the trial court empowered (and required) to proceed to enter a true final judgment once all claims have either been dismissed with prejudice or resolved on the merits.
California Supreme Court (Kruger, J.); December 18, 2017; 2017 WL 6419309.