News & Publications

The Recorder (October 17, 2013)

When a trial court decides a core issue in a pretrial proceeding but leaves peripheral claims pending, appellate relief is generally unavailable because there is no final judgment.  Litigants have tried to create the necessary finality by voluntarily dismissing the peripheral claims without prejudice, while agreeing to preserve the voluntarily-dismissed claims for potential litigation following the appeal (typically by a defense waiver of the statute of limitations).

In The Recorder, Gary Wax discusses the California Supreme Court case Kurwa v. Kislinger (2013) 57 Cal.4th 1097, which made that practice impermissible.

Kurwa establishes that parties cannot have their cake and eat it too—that is, expedite an appeal by agreeing to dismiss some claims without prejudice, while ensuring the ability to revive the dismissed claims later through a statute of limitations waiver.