KURWA v. KISLINGER

Amicus Curiae Brief of California Academy of Appellate Lawyers

Cal.April 14, 2017

No. $234617 In the Supreme Court of California BADRUDIN KURWA, Plaintiff and Petitioner FILED * APR1 4 2017 MARKB. KISLINGERetal., Jorge Navaireie C Defendants and Respondents. g ote Clerk Deputy After a Decision of the Court of Appeal, Second Appellate District, Division Five Case No. B26464| Appeal from the Superior Courtof the State of California County of Los Angeles. Case No. KC045216 Honorable Dan Thomas Oki, Judge Presiding APPLICATION FOR LEAVE TO FILE AMICUS CURIAEBRIEF IN SUPPORT OF PETITIONER;AMICUS CURIAE BRIEF ‘CALIFORNIA ACADEMY OF COLANTUONO,HIGHSMITH & WHATLEY, PC APPELLATE LAWYERS *MICHAEL G. COLANTUONO (SBN 143551) JON B. EISENBERG, PRESIDENT (SBN 88278) MColantuono@chwiaw.us AMICUS CURIAE COMMITTEE: RYAN THOMAS DUNN (SBN 268196) MARGARETA. GRIGNON,CHAIR (No. 76621) RDunn@chwlaw.us ROBIN MEADOW(No.51126) 420 SIERRA COLLEGE Drive, STE. 140 DENNIS A. FISCHER (No. 37906) GRASS VALLEY, CA 95945-509 | ROBIN B. JOHANSEN(No.79084) TELEPHONE: (530) 432-7357 LAURIE J. HEPLER (No. 160884) FACSIMILE: (530) 432-7356 MICHAEL G. COLANTUONO(No.143551) ORLY DEGANI(No. 177741) REX HEINKE (No. 66163) Attorneys for Amicus Curiae 177505.2 No. $234617 In the Supreme Court of California BADRUDIN KURWA, Plaintiff and Petitioner VS. MARK B. KISLINGERetal., Defendants and Respondents. After a Decision of the Court ofAppeal, Second Appellate District, Division Five Case No. B264641 Appealfrom the Superior Court of the State of California County of Los Angeles. Case No. KC045216 Honorable Dan Thomas Oki, Judge Presiding APPLICATION FOR LEAVE TO FILE AMICUS CURIAE BRIEF IN SUPPORT OF PETITIONER;AMICUS CURIAE BRIEF ‘CALIFORNIA ACADEMYOF COLANTUONO,HIGHSMITH & WHATLEY, PC APPELLATE LAWYERS *MICHAEL G. COLANTUONO(SBN 143551) JON B. EISENBERG, PRESIDENT (SBN 88278) MColantuono@chwlaw.us AMICUS CURIAE COMMITTEE: RYAN THOMAS DUNN(SBN 268196) MARGARETA. GRIGNON,CHAIR (NO. 76621) RDunn@chwlaw.us ROBIN MEADOW(No.51126) 420 SIERRA COLLEGE DRIVE, STE. 140 DENNISA. FISCHER(No.37906) GRASS VALLEY, CA 95945-5091 ROBIN B. JOHANSEN(No. 79084) TELEPHONE:(530) 432-7357 LAURIEJ. HEPLER (No. 160884) FACSIMILE: (530) 432-7356 MICHAEL G. COLANTUONO(No.143551) ORLY DEGANI(No. 177741) REX HEINKE (No. 66163) Attorneys for Amicus Curiae 177505.2 TABLE OF CONTENTS APPLICATION FOR LEAVE TO FILE AMICUS CURIAE BRIEF IN SUPPORT OF PETITIONER. ...........cessssecsssesssssssssssesssscecssecsecsseessssssscessecaee 6 I. INTRODUCTION 0.eccessecssssteseessesssccssesssessessscsecsssnessessesssessussseeaseaee 8 HI. ARGUMENT.....cs cessssssessssesssesssecnscsecneescessecsuessuesssessssnesssenseasssesseessesssesanesscens 9 A. IT IS AN ABUSE OF DISCRETION TO ALLOWA MUTUAL MISTAKE OF LAWTO PERMANENTLY BAR APPEAL..........sssssssssssssecsccssesessusecssecasessessssssssessessecssesseessessssssease 9 1. Thetrial court abusedits discretion because Kislinger acknowledges mutual error of law but does not explain his failure to pursue his PEMAINING CLAIMS oo... eeesessesseeceecsscecsesessesesscsesscsscsessnessseesens II 2. Otherauthority is consistent with allowing Kurwato rescind the mistaken stipulation..............0.. 13 3. Refusing to rescind the stipulation is as unfair as allowing multiple appeals .............ccccessesesessesseesesseeseseeseens 15 B. THE LAW'S DIRECTION THAT COURTSTIMELY RESOLVE CASES ALSO SUPPORTS A CONCLUSION THAT THE LOWER COURTSABUSED THEIR DISCRETION HEREuo.ecessessessssseessecoreseseeeussesaeessssssasessssssesess 15 fll. CONCLUSION 2.0.cccccesssesseessenseseesecssessessnessssssssssssusssnseasesassseessneessens 16 177505.2 TABLE OF AUTHORITIES Page(s) Cases Berry v. Chaplin (1946) 74 Cal.App.2d 652....ccccccssssssseesssesessesscssessessssessessssseecerseatens 10 California Crane School, Inc. v. National Commission for Certification of Crane Operators (2014) 226 Cal.App.4th 12.0... ccc ccceccssesesssecceescscnsseesseesesseesesesssseenaes 16 Christensen v. Dewor Developments (1983) 33 Cal.3d 778... ccsesseseesesesesesssseceesesssesseessassessesssesssasssseesssesees 11 Don Jose’s Restaurant, Inc. v. Truck Ins. Exchange (1997) 53 CaLApp.4th 115...eeseseereesesssneeeeseeseeeees 12, 13, 14 Four Point Entertainment, Inc. v. New World Entertainment, Ltd. (1997) 60 CalApp.4th 79.0...cccceeeseeesceseeeseseeseneeesnesnsesees 14 Gonzales v. Pacific Greyhound Lines (1950) 34 Cal.2d 749.eccseecsssessssssssssesssssssersssesecssessessssesrsnseasees 10 Guseinov v. Burns (2006) 145 Cal.App.4th 944...cccssssneeseenenssseeseeeseseneeecensess 10 Hill v. City of Clovis (1998) 63 CalApp.4th 434.0... cccsssseeeesesssensssessesscssssssesessessees 13, 14 Hoveida v. Scripps Health (2005) 125 Cal-App.4th 1466.00.00... ccescresssesessereesssesesseeereraes 14 Kahn v. Lasorda’s Dugout, Inc. (2003) 109 Cal.App.4th 1118.0...ceesesseseeeseensseeeescseesssessessessstsenes 9 Kurwav. Kislinger (2013) 57 Cal4th 1097occeessssesssessesesseeees 6, 8, 10,11, 15, 16 177505.2 Conservatorship ofMcQueen (2014) 59 Cal4th 602 wo.esesseesesessessesencsseeeeseesesesseseseessesaescseseeeas 6 Reisman v. Shahverdian (1984) 153 Cal-App.3d 1074...eessscsseseeesesetecessesssssesseescsesesees 10 S.T. v, Superior Court (2009) 177 Cal.App.4th 1009.0...sseseeseeeesesesesecseeeseseeeensessassesenees 9 Sierra Club v. San Joaquin Local Agency Formation Com. (1999) 21 Cal.4th 489 occecccscssesesesssseceeescecesessseeeenssscesseseseaesesees 10 Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal.App.4th 819.0...cccsccsessseseecseseseeeseeesteestsaesseesesaesees 9 Vedanta Soc. of Southern California v. California Quartet, Ltd. (2000) 84 CalApp.4th 517...eeceeneessenseseeeeeesetetetsesessscseseeees 14 Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d 781... cccccccssssccssscssssssesessssesesssetecsnecsscssscescsscssseeees 15 Statutes Civil Code § 1565oeeecesccsseesccssessesseseeseesessecesscsessesssssscsessseusersecseecsessssscsssseseuscaees 10 § 1567 0... ce eeecccscesesctesccsseeccsensesseseeessssssseressscsecsecsaeeeseeesecsecssvsssseseesaseaes 10 § 1578 oo. eeseescseeescssssecesccscesestestesnscessessssssssesesssseceecseeeseeeeeessoussccsacsasaccees 9 . Code of Civil Procedure § 583.130... cesccessssscsessssscsseeessssssecesscssescsssssssseseceesessersscssessssssssasenseeaees 15 Rules California Rules of Court Rule 8.520(C)(1)....cecscescssessescesscssesssccesesesessssssesssseeeseesesessssessessesesenseeaces 18 Rule 8.520(f) 0... ceeecsescssessssscescescesecsssssesssssscscsesseseeeseeseeeneusesssesesssenes 6, 18 4 177505.2 Other Authorities F.P. v. Monier, Case No. 5216566 (review granted Apr. 16, 2014)...eeeeeees 6 Jameson v. Desta, Case No. 5230899 (review granted Jan. 27, 2016)weeeeseeeeeeeee 6 Ryan v. Rosenfeld, Case No. 5232582 (to be argued Apr. 5, 2017)... cscecsssseeeseeneenees 6 5 177505.2 APPLICATION FOR LEAVE TO FILE AMICUS CURIAE BRIEF IN SUPPORT OF PETITIONER Pursuantto rule 8.520(f) of the California Rules of Court, the California Academy of Appellate Lawyers respectfully requests leave to file the attached amicus curiae brief in support of Petitioner Badrudin Kurwaonthe issue as to which the Court granted review: “Can plaintiff take an appealin the current postureof this litigation?” (Order, Aug. 10, 2016.) The California Academy of Appellate Lawyers is a non-profit elective organization of experienced appellate practitioners.Its goals include promoting and encouraging sound appellate procedures designed to insure proper and effective representation of appellate litigants, efficient administration of justice at the appellate level, and improvementsin the law affecting appellate litigation. The Academy has participated as amicus curiae in manycases before this Court, including, most recently, Ryan v. Rosenfeld, Case No. 5232582 (to be argued Apr. 5, 2017), Jameson v. Desta, Case No. 5230899 (review granted Jan. 27, 2016), F.P. v. Monier, Case No. $216566 (review granted Apr. 16, 2014), Conservatorship of McQueen (2014) 59 Cal.4th 602, and in this Court's earlier review of this same dispute — Kurwa v. Kislinger (2013) 57 Cal.4th 1097. The Academyhasnointerest in or connection to either side of this case. No party or party’s counsel authored the attached amicus curiae brief in whole or in part. Other than the Academyandits 6 177505.2 members, no person or entity, including any party or party’s counsel, made a monetary contribution intended to fund the preparation or submission ofthisbrief. Robert Gerstein, counsel for plaintiff and petitioner Badrudin Kurwa, is a memberof the Academy andits amicus curiae committee, but, in accordance with the Academy’s rules, did not participate in the Academy’s decisionto file this brief or in its preparation. DATED: March 31, 2017 COLANTUONO, HIGHSMITH & WHATLEY, PC ASS Michael G. Colantuono Attorneys for Amicus Curiae California Academy of Appellate Lawyers 177505.2 a S B B I. INTRODUCTION This Court granted review to decide if Appellant Badrudin Kurwa may appeal here, given that he and Respondent Mark B. Kislinger stipulated to dismiss without prejudice and toll defamation claims Kislinger asserts against Kurwa. This Court ruled that stipulation reflected a mistake of law in an earlier phase of this litigation, because parties cannotagreeto create appellate jurisdiction while reserving claims so as to preclude entry of a final, appealable judgment. (Kurwa v. Kislinger (2013) 57 Cal.4th 1097 (Kurwa I).) Yet Kislinger will neither abandon nor try his claims and Kurwa has found no means to compel him to doso. Instead, both lower courts hold him to a mistaken stipulation and impose a Catch-22 — he has no appeal until Kislinger’s claims are resolved, but has no meansto resolve Kislinger’s claims. Dr. Kurwa’s predicament is not unique. Members of the Academyare awareof other situations — including casesfiled after Kurwa I — in whichparties andtrial courts soughtto facilitate appeal by dismissing claims without prejudice pursuant to tolling agreements. Indeed,trial judges have approved — and even urged — such stipulations. Those would-be appellants presumably will face dismissal by appellate courts with greater appreciation for the esoteric point decided in KurwaI, returning their casesto trial courts also in need of the guidance required here. 177505.3 This brief arguesthat a trial court abusesits discretion whenit allows a mutual mistake of law to preclude a party from ever obtaininga final, appealable judgment. Theresult the Court of Appeal wouldallow is contrary to this Court’s stated policy of enforcing the orderly administration of justice and to the Legislature’s commands thatlitigants proceed with reasonable diligence and that courts decide cases without undue delay. Our proposed approach would not require the Court to revisit its prior decisions on the one-final- judgmentrule. It would simplyextend this Court’s precedent that trial courts abuse discretion by denying a party relief from a mutual mistake of law that deprives him of appellate review. Such a holding avoids the need to add yet another exception to the already complex case law regarding the one-final-judgmentrule. ll. ARGUMENT A. IT ISAN ABUSE OF DISCRETION TO ALLOW A MUTUAL MISTAKE OF LAWTO PERMANENTLY BAR APPEAL Werespectfully submit that it was an abuseofdiscretion for the lower courts to deny Kurwarelief here, barring him from appellate review because of a mutual mistake of law and his opponent's strategic behavior. Of course, to fail to exercise discretion when warranted is to abuse that discretion. (S.T. v. Superior Court (2009) 177 Cal.App.4th 1009, 1016; Kahn v. Lasorda’s Dugout, Inc. (2003) 109 Cal.App.4th 1118, 9 177505.2 1124.) The permitted scope of discretion “resides in the particular law being applied, i.e., in the legal principles governing the subject of the action.” (Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal.App.4th 819, 832-833, internal quotation and citation omitted.) But what guides the exercise of discretion in this unusualsituation? On one hand, there can be no question a court may invalidate any contract, including a_ stipulation, arising from “[a] misapprehension of the law byall parties, all supposing that they knew and understood it, and all making substantially the same mistake as to the law.” (Civ. Code, § 1578.) Here, not only did the parties misapprehend the law — so did the trial court, which approveda stipulation embodying the misunderstanding of the law that this Court corrected in KurwaI. The law allowsparties to unwind contracts based on mistake for a simple reason: there can be nofree, mutual, and communicated consent to a contract based upon a commonmistake of law. (Civ. Code, §§ 1565, 1567.) On the other hand, a mistake of law is insufficient in itself to require a trial court to set a stipulation aside; the court retains discretion to refuse rescission if doing so would notserve justice. (Gonzales v. Pacific Greyhound Lines (1950) 34 Cal.2d 749, 755 [“Relief from a stipulation may be granted in the sound discretion of thetrial court in cases wherethefacts stipulated have changed,thereis fraud, mistake of fact, or other special circumstance rendering it unjust to enforce the stipulation.”]; cf. Berry v. Chaplin (1946) 74 Cal.App.2d 652, 10 177505.2 658 [“Courts will not permit the course of justice to be controlled or the conduct of an action to be circumscribed in such manneras to defeat the endsofjustice.”].) We submit that discretion to enforce a mistaken stipulation is appropriately limited when the mistake of law is clear and strips a party of her appeal right. Waiver of the right to appeal “should be clear and express” (Reisman v. Shahverdian (1984) 153 Cal.App.3d 1074, 1088) and any doubt must be resolved against it (Guseinov v. Burns (2006) 145 Cal.App.4th 944, 953). (See also Sierra Club v. San Joaquin Local Agency Formation Com. (1999) 21 Cal.4th 489, 509 [“[A]ll things being equal, we deem it preferable to apply our decisions in such a manneras to preserve, rather than foreclose,a litigant’s day in court on the merits of his or her action.”].) Moreover, courts need not countenance “procedural gamesmanship” (Christensen v. Dewor Developments (1983) 33 Cal.3d 778, 784) that frustrates appeal. I. THETRIAL COURTABUSEDITS DISCRETION BECAUSE KISLINGERACKNOWLEDGES MUTUAL ERROR OF LAW BUT DOES NOTEXPLAIN HIS FAILURETO PURSUEHIS REMAINING CLAIMS Kislinger does not deny that he refuses to proceed with a defamation cause of action arising from a business relationship dissolved a decade ago or that his refusal bars Kurwa’s appeal. Rather, he stands ona stipulation arising from the mutual mistake of law corrected in Kurwa I. Kislinger’s counsel acknowledged his 11 177505.2 mistake by admitting the intent of the stipulation was to allow his “hsclient to first “’test the issue’ of fiduciary duty and ‘get a ruling’ on non-defamation claims” (Kurwa I, supra, 57 Cal.4th at p. 1101). This statement evidences a mutualerror of law — Kurwa’s,Kislinger’s, the trial court’s, and the Court of Appeal’s — which this Court corrected in Kurwa I. (Id. at p.1105; see AA at pp. 64-65 [counsel agree to “preserve [Kislinger’s] defamation [claim] without prejudice for such time as this case may come back from appeal,” 69-70 [trial court dismissing claims without prejudice pursuantto stipulation], 72-73 [stipulation to dismiss signedbytrial court].) Kislinger’s brief in this Court does not further explain his actions or disclose any intent to pursue the remaining claims which prevent final judgment, nor does he deny a mutual mistake of law. His AnswerBrief on the Merits (ABOM)claims heis not using the stipulated judgment to protect himself but is “merely honoring the agreement that was bargained for” (ABOM,p. 2) — an agreement founded on mutual mistake of law. One cannot “honor” an agreement never properly formed, although one mighttry to take advantage of such an “agreement.” Kislinger claims his defamation claim has not beenresolved(id. at p. 13), but he fails to acknowledgethatthetolling agreementwhich bars Kurwa’s appealalso allows Kislinger to pursue his defamation claim — if and when he should choose. No one disputes that a trial court has the power to compela party in Kislinger’s position to pursue or abandona claim. This Court 12 177505.2 should nowhold that under circumstanceslike those here,trial courts have the duty to doso. A trial court's discretion should not extend to keeping caseslike this in an “appellate netherworld” in which appeal is neither possible nor subject to the running of time in which to pursue it. (Don Jose’s Restaurant, Inc. v. Truck Ins. Exchange (1997) 53 Cal.App.4th 115, 118 (Don Jose’s).) This scenario creates a permanent, unresolvable conflict between the parties — a perversion of the purpose of courts andthecivil laws they enforce to resolve disputes so that parties need notresort to extra-legal meansto do so. Kislinger notes “litigation has been pending for more than 12 years” and asks the Court to end it (ABOM,p.15), but does not acknowledge that his defamation claim is the bar to final judgment; he does not wantpeace, but an unappealable victory. Our system of justice does not allow such a victory outside the realm of private binding arbitration — for which the parties here did not contract. 2. Other authority is consistent with allowing Kurwato rescind the mistaken stipulation The Court of Appeal addressed a similar situation in which the parties stipulated to a separate judgmentthat did not decide every cause of action, but which they stipulated would confer appellate jurisdiction. (Hill v. City of Clovis (1998) 63 Cal.App.4th 434, 441-442 (Hill).) Neither party there raised the appealability of the separate judgment; the Court of Appeal raised it sua sponte and concludedit lacked appellate jurisdiction, citing, inter alia, Don Jose’s. (Id. at 13 177505.2 pp. 442, 443, 446.) The Court also foundthe parties’ dismissal without prejudice of some claims, as in Don Jose’s, expressed an intention to retain them fortrial after appeal. (Id. at p. 444.) The Court madeclear, however, that the appellants would notbe left without recourse when it vacated both the judgmentandthe stipulation which producedit. (Id. at p. 446.) Thus, even without a request to unwinda stipulation that could prevent appeal, Hill recognized that a mutual mistake of law should not prevent appeal, suggesting that to deny such an appeal would be an abuseof discretion. Similarly, Four Point Entertainment, Inc. v. New World Entertainment, Ltd. (1997) 60 Cal.App.4th 79 (Four Point Entertainment), followed Don Jose’s and noted — as here — “the court, not the parties, dismissed the unresolved claims based on a stipulation that is unenforceable because it purports to vest jurisdiction in an appellate court where noneexists.” (Id. at p. 83, fn. 4; see also Hoveida v. Scripps Health (2005) 125 Cal.App.4th 1466, 1470 [dismissing appeal and remanding with directions to vacate judgment and underlying stipulation]; cf. Vedanta Soc. of Southern California v. California Quartet, Ltd. (2000) 84 Cal.App.4th 517, 525,fn. 8 [holding Don Jose’s inapplicable where respondent dismissed claims without prejudice].) Whatjustified judicial refusal to honor mistaken stipulations in Hill, Four Point Entertainment, and Hoveida justifies similar relief here. 14 177505.2 3. Refusing to rescind the stipulation is as unfair as allowing multiple appeals Don Jose’s noted “the one final judgment rule does not allow contingent causes of action to exist in a kind of appellate netherworld.” (Don Jose's, supra, 53 Cal.App.4th at p. 118.) But here, causes of action the trial court adjudicated now exist in that very netherworld due to Kurwa’sinability to appeal, Kislinger’s refusal to try his reserved claims, and the trial court’s refusal to rescind the mistaken stipulation. No time is running on Kurwa’s right to appeal; this conflictis preserved as in amber — neverto be resolved.Just as multiple appeals violate the one-final-judgment rule, so do tactics that prevent even one appeal. (Kurwa I, supra, 57 Cal.4th at p. 1107 [“manipulation of appellate jurisdiction” is “inconsistent with the one final judgment rule”].) B. THE LAW’s DIRECTION THAT COuRTS TIMELY RESOLVE CASES ALSO SUPPORTS A CONCLUSION THATTHE LOWER COuRTS ABUSEDTHEIR DISCRETION HERE The Legislature, this Court, and the Court of Appeal haveall directed litigants to pursue cases promptly and courts to resolve them promptly. Thetrial court’s refusal to require Kislinger to pursue his remaining claims violated that direction. Code of Civil Procedure section 583.130states: “It is the policy of the state that a plaintiff shall proceed with reasonable diligence in 15 177505.2 the prosecution of an action but that all parties shall cooperate in bringing the action to trial or other disposition.” The next sentence states a preference for “the right of parties to make stipulations in their own interests” over dismissal for failure to proceed diligently. But, that policy must have limits; moreover, here, the stipulation was not madein the parties’ “owninterests” but was a mutual mistake of law and — uponthetrial court’s dismissal of the reserved claims — legal error, too. The statute also prefers “trial or disposition of an action on the merits” over other outcomes. (See also Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d 781, 788-789 [remanding with directions to dismiss with prejudice after demurrer sustained and plaintiff sought to dismiss without prejudice, noting “obvious consequence of such a statutory construction would be to prolong, rather than to terminate, lawsuits” and contrary rule “would not serve the orderly and timely disposition of civil litigation’]; cf. California Crane School, Inc. v. National Commissionfor Certification of Crane Operators (2014) 226 Cal.App.4th 12, 22 [“the court has the power to expedite proceedings which, in the court’s view, are dragging on too long withoutsignificantly aiding the trier of fact”].) iil, CONCLUSION Here, the parties’ mutual mistake of law is plain — as Kurwa I demonstrates. This Court therefore need not blaze a newtrail or identify yet another exception to the one-final-judgment rule to determine whether the lower courts abused their discretion in 16 177505.2 refusing to relieve the parties of a stipulation based on mutual mistake of law. It need only apply existing law empowering courts to relieve parties of such stipulations, favoring resolution of cases on their merits, and promoting timely resolution of cases. To do otherwise strips Kurwaof his right to appeal, leaving this conflict unresolved indefinitely. The Academy urges the Court to hold that a trial court abuses its discretion whenit enforces a stipulation based on a mutual mistake of law that precludes a party from ever obtaining a final, appealable judgment. Such a rule is preferable to yet another exception to the already complex law of the one-final judgmentrule. DATED: March 31, 2017 COLANTUONO,HIGHSMITH & WHATLEY, PC Michael G. Colantuono Attorneys for Amicus Curiae California Academy of Appellate Lawyers 17 177505.2 CERTIFICATE OF COMPLIANCE Pursuant to California Rules of Court, rule 8.520(f), the foregoing Brief of Amicus Curiae in Support of Petitioner contains 2,295 words, including footnotes, but excluding the Application, caption page, and tables. This is fewer than the 14,000-word and 8,400-word limits set by rule 8.520(c)(1) of the California Rules of Court. In preparing this certificate, I relied on the word count generated by Word version 15, included in Microsoft Office 365 ProPlus 2013. DATED: March 31, 2017 COLANTUONO, HIGHSMITH & WHATLEY, PC a Michael G. Colantuono Attorneys for Amicus Curiae California Academy of Appellate Lawyers 18 177505.2 PROOF OF SERVICE Badrudin Kurwav. Mark B.Kislinger, et al. California Supreme Court Case No. 234617 Second Appellate District, Division Five Case No. B26464| 1, Ashley A. Lloyd, declare: Iam employed in the County of Nevada, State of California. I am over the age of 18 and not a party to the within action. My business addressis 420 Sierra College Drive, Suite 140, Grass Valley, California 95945-5091. On April 4, 2017, I served the document(s) described as APPLICATION FOR LEAVE TO FILE AMICUS CURIAE BRIEF IN SUPPORT OF PETITIONER; AMICUS CURIAEBRIEFon the interested parties in this action addressed as follows: SEE ATTACHEDLIST MK BY MAIL: Byplacing a true copy thereof enclosed in a sealed envelope. The envelope was mailed with postage thereonfully prepaid. I am readily familiar with the firm’s practice of collection and processing correspondence for mailing. Under that practiceit would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Grass Valley, California, in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if the postal cancellation date or postage meter date is more than one dayafter service of deposit for mailing in affidavit. I declare underpenalty of perjury underthe lawsofthe State of California that the aboveis true and correct. Executed on April 4, 2017, at Grass Valley, California. Ashley A. Llgyd 19 177505.3 SERVICE LIST Badrudin Kurwav. Mark B.Kislinger, et al. California Supreme Court Case No. 234617 Second Appellate District, Division Five Case No. B264641 Robert S. Gerstein Law Offices of Robert S. Gerstein 171 Pier Avenue, Suite 322 Santa Monica, CA 90405 Attorneys for Appellant Badrudin Kurwa Dale B. Goldfarb Harrington Foxxetal. 1055 West Seventh St., 29th Floor Los Angeles, CA 90017 Attorneys for Respondent Mark B. Kislinger Los Angeles County Superior Court 400 Civic Center Plaza Pomona, 91766 Los Angeles, CA 91766 Re: Case No. KC045216 177505.2 20 Steven H. Gardner Steven H. GardnerP.C. 8730 Wilshire Blvd., Suite 400 Beverly Hills, CA 90211 Attorneys for Appellant Badrudin Kurwa Court of Appeal Second Appellate District Division 5 300 S. Spring Street 2nd Floor, North Tower Los Angeles, CA 90013 Re: Case No. B26464]