Appellate Success In California

Mar 09, 2017 Alana H. Rotter
Dismissing Claims To Hasten An Appeal

A trial court ruling that resolves some causes of action but not others is not immediately appealable.  Parties sometimes try to hasten appellate review of a key ruling by dismissing the remaining, unadjudicated claims and asking the trial court enter a final judgment.  But the Supreme Court has imposed limits on this path.  Here are some guidelines, based on the Court’s opinion in Kurwa v. Kislinger (2013) 57 Cal.4th 1097:

  • Dismissing all remaining claims between the parties with prejudice clears the way to a final, appealable judgment.
  • Dismissing all remaining claims without prejudice should clear the way to an appealable judgment, if the dismissal does not include any conditions allowing the dismissed claims to be revived if the judgment is reversed.
  • Stipulating to waive or toll the statute of limitations on dismissed claims, or any other arrangement that attempts to allow the dismissed claims to spring back to life following a reversal, defeats appealability.  This is so even if the trial court purports to enter judgment based on the stipulation. The Court of Appeal will deem the judgment non-final and dismiss the appeal.

►  The practical message:  If your goal in dismissing claims is to create an appealable judgment, do not stipulate to waive or toll the statute of limitations on the dismissed claims.  Such terms may seem like a way to get immediate appellate review of a key ruling while preserving unadjudicated claims, but they will result in the appeal being dismissed for lack of jurisdiction.