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Kurwa v. Kislinger

Filed 12/18/17 IN THE SUPREME COURT OF CALIFORNIA BADRUDIN KURWA, ) ) Plaintiff and Appellant, ) ) S234617 v. ) ) Ct.App. 2/5 B264641 MARK B. KISLINGER et al., ) ) Los Angeles County Defendants and Respondents. ) Super. Ct. No. KC045216 ____________________________________) After the trial court dismissed some of plaintiff’s claims with prejudice, the parties agreed to dismiss their remaining claims against one another without prejudice and to waive the applicable statutes of limitations. The evident purpose of this maneuver was to permit plaintiff to appeal the trial court’s partial order of dismissal. The plan hit a speed bump, however, when this court held that the trial court’s judgment was not final and appealable because the parties had effectively preserved their remaining claims for future litigation. (Kurwa v. Kislinger (2013) 57 Cal.4th 1097 (Kurwa I).) Since then, plaintiff has made several efforts to secure a final and appealable trial court judgment. He has been blocked at every turn. First the trial court disclaimed any power to revisit the parties’ agreement. Then, when plaintiff attempted to finalize the judgment by dismissing his own outstanding claims with prejudice, the Court of Appeal dismissed the appeal, concluding that no appeal will lie unless defendant, too, disposes of his outstanding cross-claim. Defendant, 1 who had prevailed in the trial court, of course has shown no inclination to help plaintiff out of this bind, and the offending cross-claim remains pending. Having attempted to circumvent the one final judgment rule, plaintiff has now wound up in a legal cul de sac. We agree with the Court of Appeal that the present appeal is not plaintiff’s way out, though we reach that conclusion for a different reason: While plaintiff has dismissed his outstanding claim with prejudice, the trial court still has taken no action to render a final and appealable judgment. But we take this opportunity to make clear that, contrary to its earlier supposition, the trial court does indeed have the power to take action. So long as no final and appealable judgment has been entered in this case, the trial court retains the authority to render one. We accordingly affirm the judgment of the Court of Appeal and remand to permit the trial court to exercise its authority to vacate its defective 2010 judgment and the parties’ underlying stipulation. The parties may then either proceed to judgment on the outstanding causes of action or dismiss those causes of action with prejudice. Either way, the trial court can and should enter a final judgment from which plaintiff can finally appeal. I. In 1992, plaintiff Badrudin Kurwa and defendant Mark B. Kislinger, both ophthalmologists, formed a corporation that entered into contracts to provide medical services to patients of a health maintenance organization (HMO). In 2003, Kurwa’s license to practice medicine was suspended for 60 days and he was placed on probation for five years. Kislinger notified the HMO that Kurwa’s license had been suspended, that Kurwa would no longer provide medical services, and that this automatically …
Original document
Source: California Supreme Court