Legal News and Appellate Tips

Each week, TVA appellate attorney Tim Kowal reviews several recent decisions out of the appellate courts in California, and elsewhere, and reports about the ones that might help you get an edge in your cases and appeals.

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Tag: Finality and Final Orders

1999 Judgment Not “Final,” 40-Year-Old Murder Convict Must Receive Juvenile Hearing Under Proper 57

In a 4-3 decision, the majority in People v. Padilla (May 26, 2022, no. S263375) --- Cal.5th ---, started with the proposition that California’s Prop 57, which requires minors to be charged in juvenile court, is retroactive in all nonfinal cases. But when is a case “final”? Here, Padilla, who at age 16 murdered his mother by stabbing her 45 times, was convicted way back in 1999. That seems pretty final, right?

Turns out, “finality” is not quite literal, but more a term of legal art. The majority was more comfortable with blurring the lines than was the dissent, which is why the 4-3 split.

What is surprising about this case is that the high court justices were so evenly split on the question of what makes a judgment “final” — a foundational point of appellate procedure.

The upshot of the majority opinion is that, once a judgment has been successfully reopened to review via a collateral attack, all bets are off, and the judgment is no longer final. So the Prop 57 challenge was available, even to attack the underlying charges — despite the fact that these had been beyond the scope of the collateral challenge.

The upshot of the dissenting opinion is that, although a judgment may be challenged via collateral attack, the review and remedies available should be limited to those available by the collateral challenge. So here, the collateral challenge did not reach the underlying charges, so these should remain “final” and beyond appellate review.

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A Cautionary Tale Against Taking an Appeal Too Early: Kurwa v. Kislinger (Cal. 2007)

What's the worst can happen by taking an appeal too early? I am asked this often, and the California Supreme Court case of Kurwa v. Kislinger (2017) 4 Cal.5th 109 always comes to mind. The worst that can happen? Five years of litigation, four trips to the Court of Appeal, two trips to the Supreme Court, and easily six figures in fees, just to get back to where you were when you first asked that question.

The nub of the problem in Kurwa was that plaintiff had two obstacles to appealability. Plaintiff used a too-clever-by-half ploy to get around one (stipulating to waiver of his remaining claim without prejudice, and a tolling agreement to boot). After realizing on appeal this could not create jurisdiction, plaintiff dismissed the rest of his claims with prejudice.
But there was a second obstacle: defendant's cross-claim was still pending. And because the trial court refused to dismiss the judgment based on the ill-conceived stipulation, plaintiff was stuck "in a legal cul de sac."

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