KURWA v. KISLINGER

Appellant’s Petition for Review

Cal.May 18, 2016

5234617 CASE NO.: | FILED IN THE SUPREME COURT OF CALIFORNIA MAY 18 2016 Frank A. McGuire BADRUDIN KURWA, Deputy [ RC 3.25(b Plaintiff and Appellant, V. SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent. MARK KISLINGER,et al., Real Parties in Interest After a Decision By The Court of Appeal Second Appellate District, Division 5 Case Number: B264641 Superior Court of Los Angeles The Honorable Dan Thomas Oki Case Number: KC 045 216 PETITION FOR REVIEW Robert S. Gerstein, SBN 35941 Steven H. Gardner, Esq., SBN 70921 12400 Wilshire Blvd., Suite 1300 8730 Wilshire Blvd., Suite 400 Los Angeles, CA 90025 Beverly Hills, California 90211 Telephone: (310) 820-1939 Telephone: (310) 246-2300 Facsimile: (310) 820-1917 Facsimile: (310) 246-2328 Attorneysfor Petitioner, BADRUDIN KURWA CASE NO.: IN THE SUPREME COURT OF CALIFORNIA BADRUDIN KURWA, Plaintiff and Appellant, V. SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent. MARK KISLINGER,etal., Real Parties in Interest After a Decision By The Court ofAppeal Second Appellate District, Division 5 Case Number: B264641 Superior Court of Los Angeles The Honorable Dan Thomas Oki Case Number: KC 045 216 PETITION FOR REVIEW Robert S. Gerstein, SBN 35941 Steven H. Gardner, Esq., SBN 70921 12400 Wilshire Blvd., Suite 1300 8730 Wilshire Blvd., Suite 400 Los Angeles, CA 90025 Beverly Hills, California 90211 Telephone: (310) 820-1939 Telephone: (310) 246-2300 Facsimile: (310) 820-1917 Facsimile: (310) 246-2328 Attorneysfor Petitioner, BADRUDIN KURWA TABLE OF CONTENTS PETITION FOR REVIEW 2.0.0... 0... cece eects 1 ISSUES PRESENTED FOR REVIEW ....... 0.0... 00 eee eee ee 2 STATEMENT OF THE CASE ......... 0000. c cee eee eee 2 STATEMENT OF FACTS 2.0.2... c ccc eee eens 8 NECESSITY FOR REVIEW ... 0.0.6cccos 1] THIS COURT SHOULD GRANT REVIEW IN ORDER TO DECIDE WHETHER KURWA V. KISLINGER(2013) 57 CAL.4TH 1097, SHOULD BE APPLIED TO ALLOW PREVAILING PARTIES TO DEPRIVE LOSING PARTIES OF THEIR RIGHT TO APPEAL PERMANENTLY. ..... 11 CONCLUSION .......... bbb bbb bb ebbtbtebeeterenes 17 CERTIFICATE OF WORD COUNT........... 000 cece eee 19 TABLE OF AUTHORITIES CASES Barquis v. Merchants Collection Assn. (1972) 7 Cal. 3d94 Loeccccece eens 11 Don Jose's Restaurant, Inc. v. Truck Ins. Exchange (1997) 53 Cal.App.4th 115 2.2... ee ee eee eee 12, 14 Four Point Entertainment, Inc. V. New World Entertainment, Ltd. (1997) 60 Cal.App.4th 79 2.2...cccee eee 16 Gomes v. County ofMendocino (1995) 37 Cal.App.4th 977 oo... cece eee eee eens 15 Hill v. Clovis (1998) 634 Cal.App.4th 434 2.0... eee eee eee 15,17 Kurwav. Harrington, Foxx, Dubrow & Canter (2007) 146 Cal.App.4™ 841 0.0... cece cece eee 2,9, 11 Kurwav. Kislinger (2013) 57 Cal.4th 1097 2.0... eee eee ee eee 2, 11-12, 15, 16 Le Francois v. Goel (2008) 35 Cal. 4th 1094...ceeence ene 5 Vedanta Society ofSouthern California v. California Quartet, Ltd. (2000) 84 Cal.App.4th 517 2.0.0.0... cee eee eee 14, 15,17 STATUTES Civil Code Section 1441 20...eee 6 Civil Code section 3523 ...... 0... cee ce eee eee ees 11 CASE NO.: IN THE SUPREME COURT OF CALIFORNIA BADRUDIN KURWA, Plaintiff and Appellant, V. SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent. MARK KISLINGER,et al., Real Parties in Interest After a Decision By The Court of Appeal Second Appellate District, Division 5 Case Number: B264641 Superior Court of Los Angeles The Honorable Dan Thomas Oki Case Number: KC 045 216 PETITION FOR REVIEW Petitioner Badrudin Kurwapetitions this Honorable Court for review of the decision of the Court of Appeal of the State of California, Second Appellate District, Division Five, filed herein on April 7, 2016, dismissing Petitioner’s appeal herein. A copy of the opinion is attached as Appendix A. ISSUES PRESENTED FOR REVIEW Doesthis Court’s decision in Kurwa v. Kislinger (2013) 57 Cal.4th 1097, allow a prevailing party in the trial court to deprive the losing party of the right to appeal permanently by refusing to take further action on a cause ofaction previously dismissed without prejudice, and with an agreement to waivethe statute of limitations? STATEMENT OF THE CASE _ Dr. Kurwafirst brought this action against Dr. Kislinger and others on November 23, 2004 (AA 9). On April 7, 2005, Dr. Kurwa filed the operative Second Amended Complaint against Dr. Kislinger, his professional corporations, and Physician Associates. It included causes of action for breach of contract, breach of the implied covenant of goodfaith andfair dealing, and breach offiduciary duty, all on behalf both of Dr. Kurwaas an individual and derivatively on behalf of Trans Valley, causes ofaction for fraud, an accounting and defamation on behalf of Dr. Kurwaindividually, and for tortious interference and removalof a corporate director derivatively on behalf of Trans Valley (AA 11). ~ On August 11, 2005, Appellant amended his Second Amended Complaint to substitute Respondent’s Attorney, Dale B. Goldfarb and Mr. Goldfarb’s firm, Harrington, Foxx, Dubrow & Canter as DOES1 and 2 (AA 1421). Those parties filed an anti-SLAPP motion (AA 1421) the denial ofwhich was upheld by this Court in Kurwav. Harrington, Foxx, Dubrow & Canter (2007) 146 Cal.App.4" 841. On September 26, 2007, thetrial court granted summary judgment to all defendants save Dr. Kislinger and his associated professional corporations (AA 1239). The Court of Appeal affirmed in an unpublishedopinion filed on January 14, 2009 (AA 1177-1184). The September 26, 2007 order also granted Dr. Kislinger’s motion for summary adjudication as to the claim for tortious interference with contractual relations (AA 1239-41). The case against the remaining defendants, Dr. Kislinger and his medical corporations, was called for trial on March 2, 2010. On that date, the trial court heard Dr. Kislinger’s in imine motions. At the hearing, Dr. Kurwa voluntarily dismissed his causes of action for fraud, breach of contract, and breach of the implied covenant of good faith and fair dealing, electing to pursue only his claims for breach fiduciary duty, and for an accounting (RT 9-11). Thetrial court then proceeded to grant three of Dr. Kislinger’s motionsin limine, including one precluding Dr. Kurwa from presenting evidence of fiduciary duty, another precluding him from presenting evidenceofthe capitation contract with Physician Associates, or the 1997 written form of the contract with Dr. Kislinger, and a third holding that he had no standing, thus precluding him from presenting any evidenceat all (AA 1402-03). The parties also stipulated to dismiss the remaining cross- claims for defamation they had against each other without prejudice, agreeing that they could be reinstated only if the judgment was reversed on appeal, and waivingthe statute of limitations. The stipulation was entered as an orderofthe trial court on March 22, 2010. (RJN 212, Ex. N). On August 23, 2010, the trial court purportedly entered Judgmentfor Dr. Kislinger and his professional corporations. (AA 1404). Dr. Kurwafiled timely notice of appeal on October 12, 2010 (AA 1406). On appeal, the Court of Appeal determined that the judgment wasfinal and appealable. (AA 1431-34). Proceeding to the merits of the case, the court reversed the judgmentin full. (AA 1435-39), Justice Kriegler dissented, contending that the appeal should have been dismissed. (AA 1440). This Court, having granted review,held that a trial court disposition could not be final and appealable if there remained a cause of action which a party had dismissed without prejudice, subject to an agreementto waive the statute of limitations. On that basis, that Court dismissed the appeal, nullifying the Court of Appeal’s decision. Kurwav. Kislinger, (2013) 57 Cal. 4m 1097. (AA 1441). On remand, Dr. Kurwafiled a Motion for Order Re-setting Case for Final Status Conference and Trial Upon Remand. (See RJN 9, Ex. A). In the motion, Dr. Kurwaaskedthetrial court either (1) to rescind the parties’ stipulation as to dismissal of the defamation causesofaction as the result of mutual mistake, which would have had the result of makingthe trial court’s order a final, appealable judgment by operation of law,or (2) to reconsider its decision on the motions sua sponte in light of the Court of Appeal’s earlier opinion in this matter under Le Francois v. Goel (2008) 35 Cal. 4th 1094. Thetrial court denied the motion (See RJN 14, Ex. A), and another motion which soughtto set aside the stipulation as void for impossibility under Section 1441 of the Civil Code. (RJN 89, Ex. D), on November7, 2014. On November13, 2014, the Court of Appeal denied Dr. Kurwa’swrit petition from that decision, commenting that “Dr. Kurwais not without other means to attempt to make the judgment reviewable.” B259558 (RJN 9, Ex. E). This Court denied review. (RJN 118, Ex. G). Thereafter, Dr. Kurwa moved to amend his complaint by addition of a cause ofaction to rescind the stipulation becauseit had been entered into under a mistake of law. (See RJN, 132, Ex. H). The trial court denied that motion as well (/bid.) Dr. Kurwa then petitioned the Court of Appeal a second time for a writ of mandate, seeking relief from that decision, as well as the previous decisionsofthe trial court which together barred Dr. Kurwa from obtaining appellate review. In the alternative, Dr. Kurwa asked that, if it found no other remedy available, the Court of Appeal consider on its merits the question of whetherthe trial court should have granted Dr. Kislinger’s motions in limine (the basis for the judgment this Court found not to befinal or appealable). (RJN 134-. 37, 140-59, Ex. H). The Court of Appeal denied the SecondPetition on July 10, 2015, by a two-to-one vote. Making nofurther commentas to “other meansto attempt to make the judgment reviewable,” the majority found no abuseofdiscretion in the trial court’s denial of leave to amend, and rejected the requests for relief from the trial court’s prior actions as “untimely and repetitive.” (RJN 162, Ex. I) The dissenter would have granted thealternative writ directing the trial court to vacate its order granting Dr. Kislinger’s motionsin limine and allowing Dr. Kurwato proceedtotrial, or to show cause why “Dr. Kurwa’s claims should not be granted.” In the dissenter’s view, the majority has placed Dr. Kurwain the “seemingly Kafkaesque situation” of being unable to correct a miscarriage ofjustice, though the court had earlier told him that he was “not without other means to attempt to make the judgment reviewable.” (Ibid.). This Court denied review (RJN 211, Ex. M). Meanwhile, Dr. Kurwa had dismissed his defamation cause of action with prejudice on April 23, 2015 (AA 1457), and thereafter filed notice of appeal June 1, 2015. (AA 1461). The Court of Appeal, however, dismissed the appeal for failure to satisfy the one final judgmentruleas stated in this Court’s earlier decision of this case. (App. A). STATEMENTOF FACTS (NOTE: With the exception of a few undisputed facts presented in support of Dr. Kislinger’s motions, the facts as stated below are drawn from the allegations of Dr. Kurwa’s Second Amended Complaint, by page and § number.) Drs. Kurwaand Kislinger are licensed ophthalmologists (AA 13,12-13). Prior to 1991, Dr. Kurwa and Dr. Kislinger each had his own separate practice (AA 13, 915). In about 1991, Dr. Reginald Friesen brought them together for the purposeofcreating a joint venture capable of handling large capitation agreementsfor the provision of ophthalmological services to medical groups (AA 13-14, 416). Acting through Trans Valley Eye Associates, Inc., a corporation they had created for the purpose, they eventually obtained several such capitation contracts, including one with Huntington Provider Group (AA 14, $18). On July 30, 1992, Drs. (Bud) Kurwa and (Mark) Kislinger both signed a handwritten “Agreement between Bud and Mark” in which they outlined the structure within which they would jointly pursue and share such business (AA 1295). The venture was successful. As stated by this Court, “in the year prior to termination the Capitation Agreement[with Physician Associates] resulted in receipts of approximately $1.9 million dollars.” Kurwa, supra, 146 Cal.App.4" at 843. There wasalso a documententitled “Agreement Between Dr. Kurwaand Dr. Kislinger,” dated April 29, 1997, which was attached to the Second Amended Complaintas an exhibit. It further develops the structure of the relationship between the two ophthamologists, stating their understanding that they were “partners in TransValley,” that, if any of their managed-care contracts werelost, the remaining contracts would be equally split between them, and that any new managed-care contracts obtained by either party would be jointly administered (AA 29-30). In 1999, a new corporation, Physician Associates, was established to buy Huntington Provider Group. Drs. Kurwa and Kislinger each madecapital contributions of $100,000 to the new venture based on the assurance that Physician Associates would take over Huntington Provider Group’s contract with Trans Valley and continue it permanently (AA 14-15). In 2001, Trans Valley entered into a new contract with Physician Associates (AA 15, 31). The contract included a term providing for automatic termination in the event a group physician’s license was “revoked, expired or suspended...,” or subject to probation (AA 43). Byan order of the California Medical Board, Dr. Kurwa was suspended from the practice of medicine for 60 days beginning 16 days after September 26, 2003, and placed on 5 years probation (AA 1280). Later in 2003, Dr. Kislinger’s attorney, Dale Goldfarb, sent a letter to the president of Physician Associates pointing out that (1) Dr. Kurwahad been suspended from the practice of medicine, and (2) Trans Valley was not a professional corporation which could lawfully 10 engagein the practice of medicine. The letter invited the HMOto make Dr. Kislinger’s own recently formed medical corporation the exclusive ophthalmology provider for Physician Associates (AA 15- 16,55). See Kurwa, supra at 843-844. Thereafter, on October 31, 2003, the president of Physician Associates informed Dr. Kurwathat the contract with Trans Valley had been terminated because Trans Valley was not organized as a medical corporation (AA 55). The contract with Physician Associates wastaken over by Foothill EyeCare Services effective December1, 2003 (AA 58). The complaint alleges that Foothill EyeCare Services is owned and/orcontrolled by Dr. Kislinger (AA 16). NECESSITY FOR REVIEW THIS COURT SHOULD GRANT REVIEW IN ORDER TO DECIDE WHETHERKURWA V. KISLINGER(2013) 57 CAL.4TH 1097, SHOULD BE APPLIED TO ALLOW PREVAILING PARTIES TO DEPRIVE LOSING PARTIES OF THEIR RIGHT TO APPEAL PERMANENTLY. It is a maxim “as old as the law” that there cannot bea right without a remedy. Barquis v. Merchants Collection Assn. (1972) 7 Cal. 3d 94 at 112; Civil Code section 3523 (“For every right there is a remedy.”). The question here is whether a decision of this Court, 1] Kurwav. Kislinger (2013) 57 Cal.4th 1097, should be read to enable the prevailing party in trial court to deprive a losing party claiming error of the remedy of appeal. Adopting the reasoning ofDon Jose's Restaurant, Inc. v. Truck Ins. Exchange (1997) 53 Cal.App.4th 115, this Court decided in Kurwathat there can be nofinal, appealable judgment where the parties have dismissed causes of action without prejudice, and with an agreementto waive the statute of limitations. Because both parties in this case had dismissed causesofaction without prejudice, and with a waiver agreement, this Court dismissed Petitioner’s prior appeal, setting aside the Court of Appeal’s decision in Petitioner’s favor. Since this Court’s decision, Petitioner has made repeated efforts to set aside the stipulation under which the causes ofaction wereSet aside and the waiver agreed to, but with no success(see pp. 4-7, supra). Now, Dr. Kurwahasvoluntarily dismissed the cause of action he previously dismissed without prejudice. It is only Dr. Kislinger, the party which will be respondentif this appeal goes forward, that now has a cause of action dismissed without prejudice. Forthefirst time in this case, therefore, this question can now 12 be raised: Doesthe presence of a cause of action dismissed without prejudice by aprevailing party, accompanied by an agreementto waivethe statute of limitations, make it impossible fora trial court to rendera final, appealable judgment? Asthe history of this case has shown,thereis critical difference between a case in whichthe losing party has dismissed a cause of action without prejudice and with a waiver of the statute, and one in which the prevailing party has doneso. Losing parties can go forward to appeal by simply dismissing their causes of action with prejudice, so that the judgment becomes a final, appealable judgment. On the other hand, where the prevailing party (the prospective respondent) has dismissed a cause of action without prejudice, and the losing party has agreed to waivethe statute, that prevailing party can permanently block the losing party from appealing. It can do so by refusing to dismiss with prejudice, and holding the losing party to its waiver agreement. Application in the first instance fulfills the purpose of the one 13 single judgmentrule: to stop parties from bringing piecemeal appeals by requiring them to resolve their claims fully before appeal. Application in the second allowsparties to deprive their opposition of the ability to appeal at all. That is the difference at issue here. In the only opinion which has directly considered the difference, Vedanta Society ofSouthern California v. California Quartet, Ltd. (2000) 84 Cal.App.4th 517, 525, footnote 8, the author of the seminal Don Jose's Restaurant opinion concluded that Don Jose's Restaurant and its progeny “have no application where the party dismissing causesof action without prejudice is the respondent on appeal.” Jd. The question here is whether this Court should now adopt the reasoning of Vedanta as it did the reasoning ofDon Jose's Restaurant. The history of this case since this Court’s reversal and remand provide a powerfulillustration of why it should do so. During the intervening years, Respondenthere has (1) refused either to dismiss with prejudice or go forward to adjudicate its own defamationaction, and (2) held Petitionerstrictly to their stipulation, including the agreement to waivethe statute of limitation. The result is an 14 insurmountable barrier to appeal. Petitioner asks this Court to grant review in order to decide whetherthat is a necessary consequence of the single final judgmentrule this Court reaffirmed in Kurwa, or a perversion ofit. The Court of Appeal here concluded that this Court had already decided the issue against Petitioner, by citing with approval Hill v. Clovis (1998) 634 Cal.App.4th 434, a case in which only the respondent on appeal had a cause of action dismissed without prejudice. (Opn., p. 3). But Petitioner does not understandthat citation to be a rejection of the Vedanta approachbythis Court. It is familiar law that “[a] decision is authority only for the point actually passed on by the court and directly involved in the case,” Gomes v. County ofMendocino (1995) 37 Cal.App.4th 977 at 985 and that [gleneral expressions in opinions that go beyondthefacts of the case will not necessarily control the outcomein a subsequent suit involving different facts. Id. So here, the issue of whether a respondent’s dismissal of a cause of action without prejudice, and with a waiverofthestatute, 15 would alone prevent the judgment from becoming final and appealable wasnotpresented to this Court by the facts in Kurwa. Giventhat, at the time this Court decided Kurwa, both appellant and respondent here had such causesof action, Kurwa cannot be taken to decide what the result would have beenif the only cause of action dismissed without prejudice had been respondent’s. Nor, indeed, wasthe issue explicitly raised by the Hill court. On the contrary, the Hill court, following Four Point Entertainment, Inc. V. New World Entertainment, Ltd. (1997) 60 Cal.App.4th 79, found a wayto avoid the problem. In Hill, the parties had stipulated to a judgmentagainst the plaintiff despite the fact that two causes of action in a cross-complaint remained dismissed without prejudice. The stipulation also included a waiverofthe statute of limitations. Jd, 446. Recognizing the dangerthat the losing party in sucha situation could be precluded from appealing entirely, the Hil] court decided it would “not leave appellants entirely without recourse.” It dismissed the appeal, but also directed the trial court to “vacate the judgment and on whichit wasbased.”Jd. 16 By that means, the Hil] court ensured that the appellant in Hill would not be bound byhis waiverofthe statute of limitations asto the causes of action dismissed without prejudice, and therefore that he would ultimately be able to force the respondent either to dismissits causes of action with prejudice, to proceedto litigate them, or to face dismissal underthe statute of limitations. In short, the Hill extricated the plaintiff there from the dilemmain which Petitioner here finds himself.! The question expressly raised by Vedanta remains,therefore: can a prevailing party, as here, permanently deprive the losing party of his right to appeal by hanging onto its causes of action dismissed without prejudice and holding the losing party to its waiver of the statute as to those causes of action? Petitioner asks this Court to grant review in orderto decide that question. CONCLUSION For the reasonsstated above, Petitioner respectfully requests ‘As this Court decided in Kurwa that appellate courts lack jurisdiction to hear appeals that violate the one final judgmentrule, 57 Cal.4th 1097, 1104, it is not clear from what source the Hill and Four Points courts drew their jurisdiction to vacate the so-called judgments,and stipulations. 17 that review be granted. Dated: May /C, 2016 LAW OFFICES OF ROBERT S. GERSTEIN LAW OFFICES OF STEVEN H. GARDNER » Leo Mhz ROBERTS. GERSTEIN Attorneysfor Plaintiff/Appellant Badrudin Kurwa 18 CERTIFICATE OF WORD COUNT Pursuant to Rule of Court 8.204(c)(1), I certify that the PETITION FOR REVIEWis proportionately spaced, has a typeface of 14 points or more, and contains 3158 words. DATED: May /¢,2016 | LAW OFFICES OF STEVEN H. GARDNER LAW OFFICES OF ROBERT S. GERSTEIN By: VE: USD e-" ROBERTS. GERSTEIN Attorneys for Petitioner Badrudin Kurwa 19 en gn nn rn es e o t a © Filed 4/7/16 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts andparties from citingor relying on opinions notcertified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rufe 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFO ILED Apr 07, 2016 SECOND APPELLATE DISTRICT DIVISION FIVE JOSEPH A. LANE, Clerk dlee Deputy Clerk BADRUDIN KURWA, B264641 Plaintiff and Appellant, (Los Angeles County Super. Ct. No. KC045216) Vv. MARK B. KISLINGER, etal., Defendants and Respondents. APPEAL from a judgmentof the Superior Court of Los Angeles County, Dan Thomas Oki, Judge. Appeal dismissed. Robert S. Gerstein and Steven H. Gardner, for Plaintiff and Appellant. Harrington Foxx Dubrow & Canter, Dale B. Goldfarb, for Defendants and Respondents. RT OF APPEAL — SECOND DIST. © S A M A R - Plaintiff, cross-defendant, and appellant Badrudin Kurwafiled a June 1, 2015 notice of appeal (the 2015 appeal) from the judgment entered on August 23, 2010 (the 2010 judgment), in favor of defendants, cross-complainants, and respondents Mark Kislinger, et al. This court issued an order to show cause to determine if Kurwa’s 2015 appeal should be dismissed. We conclude that Kurwahas taken an untimely appeal from anonfinal judgment. The appealis dismissed. Thetrial court in 2010 madein limine rulings adverse to Kurwa as to some causes of action contained in Kurwa’s complaint. The parties thereafter stipulated that defamation causes of action in both the complaint and cross-complaint would be dismissed without prejudice with waivers ofthe statute of limitations. Kurwathen filed a notice of appeal from the 2010 judgment. A majority of this court determined that Kurwa had taken an appeal from a final judgment, disagreeing with a line of cases beginning with Don Jose’s Restaurant, Inc. v. Truck Ins. Exchange (1997) 53 Cal.App.4th 115 (Don Jose's). The Don Jose ’s court had held that a dismissal without prejudice combined with a waiver ofthe statute of limitations resulted in a non-final judgmentfor purposes of appeal. Our Supreme Court granted review and reversed, holding that “the parties’ agreement holding somecauses of action in abeyancefor possible futurelitigation after an appeal from the trial court’s judgment on others renders the judgmentinterlocutory and precludes an appeal under the one final judgmentrule.” (Kurwav. Kislinger (2013) 57 Cal.4th 1097, 1100 (Kurwa).) The cause returned to thetrial court after issuance of the remittitur. Kurwa attempted to perfect a final judgment. In 2014, Kurwa sought to extricate himself from the 2010 stipulation waiving the statute of limitations by (1) movingto rescind the stipulation, (2) having thetrial court reconsider its adverse rulings made in 2010 judgment, and (3) having the court set aside the stipulation on the ground of impossibility. The trial court rejected Kurwa’s efforts. This court denied Kurwa’s petition for writ of mandate, and review was unanimously denied by the Supreme Court. Taking a different approach in 2015, Kurwa moved to amendhis operative complaint to add a cause of action for rescission of the stipulation due to mistake of law. Thetrial court denied Kurwa’s motion, and a majority of this court again denied Kurwa’s petition for writ of mandate. Review was denied by the Supreme Court. On April 23, 2015, Kurwafiled a dismissal of his defamation cause of action with prejudice. On June 1, 2015, Kurwafiled the currentnotice of appeal, specifying that the appealis taken from the 2010 judgment. We again conclude Kurwais before this court on a defective notice of appeal. First, the 2015 notice of appeal from the 2010 judgmentis untimely. A notice of appeal must generally be filed within 60 days of a judgment, but in no instance more than 180 from entry ofjudgment. (Cal. Rules of Court, rule 8.104 (a)(1)(A)-(C).) Onits face, the notice of appealfiled five years after judgment is untimely as a matter of law. Second, even if the appeal can be construed as timely, the problem in Kurwa continues to exist because Kislinger’s defamation cause of action in the cross-complaint remains outstanding with a waiverofthe statute oflimitations. The impact of an extant cause of action in a cross-complaint with a statute of limitations waiver was specifically addressed in Hill v. City ofClovis (1998) 63 Cal.App.4th 434 (Hill), a case cited with approval in Kurwa. The Kurwa court described Hill as follows: “In Hill [], after the superior court decided for the defense on certain causes of action, the parties stipulated that two causes of action in a cross-complaint were to be ‘“[d]ismissed without prejudice and the statute oflimitationsis tolled until 30 days after remittitur to the Superior Court.”* (/d. at p. 442.) The Court of Appeal, following Don Jose's and the other cases discussed above, held the judgment nonfinal and nonappealable. ‘In effect, the judgment keeps these causes of action undecided and legally alive for future resolution in the trial court. If we allowed the instant appeal to proceed, Clovis would remain freeto refile the dismissed claims andtry them in the superior court if our opinion made such action necessary or advisable. As such, the stipulated “judgment” from which this appeal was takenis notfinal.’ (Hill (], supra, at p. 445.) (Kurwa, supra, 57 Cal.4th at p. 1104.) Kurwacontends the issue is not controlled by Hill, but instead by Vedanta Society ofSo. California v. California Quartet, Ltd. (2000) 84 Cal.App.4th 517, 525 fn. 8 (Vedanta), whichstates: “Because Vedanta prevailed, the fact that it dismissed certain claims in its complaint without prejudice does not makethe judgmentanyless appealable. Don Jose’s Restaurant, Inc. v. Truck Ins. Exchange (1997) 53 Cal.App.4th 115 and its progeny have no application where the party dismissing causes of action withoutprejudice is the respondenton appeal.” According to Kurwa, “Assuming that the Vedanta Society decision remains good law following [Kurwa], the order of August 23, 2010 becamea final judgment on April 23, 2015, and Appellant’s June 1, 2015 notice of appeal from that judgment wastimely.” Vendania is not controlling. The question of appealability was not a disputed issue on appeal in Vendanta. An appellate opinion is not authority for everything stated in it, and casesare not authority for issues not in dispute. (People v. Knoller (2007) 41 Cal.4th 139, 155; Santisas v. Goodin (1998) 17 Cal.4th 599, 620.) Moreover, Vedanta did not include a waiverofthe statute of limitations, and as a result, the footnote discussion of appealability does not address the scenario in this case. Finally, our Supreme Court’s approval of Hill in Kurwa makesclear that the Don Jose’s line of cases applies when a cause ofaction in a cross-complaintis dismissed without prejudice with a waiver ofthe statute of limitations. That is precisely what happenedhere. Kurwaargues that Hill is not entitled to such deference, because in Hill’s disposition the appellate court ordered thetrial court to “vacate the judgmentandthe stipulation on which it is based.” (Hill, supra, 63 Cal.App.4th at p. 446.) The Hill court noted that the appellants “maystill challenge thetrial court’s rejection oftheir. . . contention if and when Clovis’s first and third causes of action are adjudicated or otherwise disposed of and appellants file a timely appeal from the ultimate judgment{,]” and that the “appellants retain the right of appellate review at the appropriate time, but not earlier.” (/bid.) In a subsequent appeal stemming from the sameaction, the appellate court noted, “The parties added provisions to the stipulated judgment whichresolved the first and third causes of action in the city’s cross-complaint, which had not been addressedearlier,” resulting in a final and appealable judgment. (Hill v. City ofClovis (2000) 80 Cal.App.4th 438, 445.) Wefail to see how the developments following the dismissal ofthe initial appeal in Hill provide support for Kurwa’s position. Our Supreme Court in Kurwadid not order the trial court to vacate the judgmentandstipulations. As Hill itself cautioned,the appellants could obtain appellate review, but not until all causes of action were resolved. (Hill, supra, 63 Cal.App.4th at p. 446.) Kurwa bargained for Kislinger to dismiss his defamation cause of action without prejudice with a waiverofthe statute oflimitations, and he is boundby that agreement, the result of whichis that Kislinger’s defamation cause ofaction has not been resolved. “When,as here, thetrial court has resolved some causes of action and the others are voluntarily dismissed, but the parties have agreed to preserve the voluntarily dismissed counts for potentiallitigation upon conclusion of the appeal from the judgmentrendered, the judgmentis onethat ‘fails to complete the disposition ofall the causes of action betweenthe parties’ [citation] and is therefore not appealable.” (Kurwa, supra, 57 Cal.4th at p. 1105.) Finally, we deny Kurwa’s requestto treat the appeal as a petition for writ of mandate. This court has twice before denied mandate relief. Treating this appeal as a petition for writ of mandate, allowing pretrial review ofrulings on in limine motions which do not resolve all causes of action, would beinconsistent with the reasoning in Kurwa and the numerouscasescited therein. The appeal is dismissed. Costs on appeal are awarded to respondents. KRIEGLER,Acting P.J. Weconcur: BAKER, J. KUMAR, J.* * Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 6 - PROOF OF SERVICE STATE OF CALIFORNIA ) ) ss. COUNTY OF LOS ANGELES ) I am employedin the County of Los Angeles, State of California. I am over the age of 18 years and nota party to the within action. My business addressis 12400 Wilshire Boulevard, Suite 1300, Los Angeles, California 90025. On May 17, 2016, I served true and correct copies of the foregoing document described as PETITION FOR REVIEW ontheinterested parties in this action addressed as follows: SEE ATTACHED MAIL SERVICE LIST [X] BY MAIL: I am readily familiar with the firm’s practice of collection and processing correspondence for mailing I know that the correspondenceis deposited with the U.S. Postal Service on the same day this declaration was executed and in the ordinary course of business. I know that the envelope was sealed, and, with postage thereon fully prepaid, placed for collection and mailing on this date, following ordinary business practice, at Los Angeles, California. [ ] SUBMISSION OF AN ELECTRONIC COPY provided to the Court of Appealfor service on the Supreme Court is providedto satisfy the requirements underrule 8.212(c)(2). [ ] BY PERSONAL SERVICE:I delivered such envelope by handto the addressee mentioned above. I declare under penalty of perjury under the laws ofthe State of California that the foregoingis true and correct. Executed on this 17" Day of May, 2016, at Los Angeles, California. Lu osenbaum SERVICE LIST Kurwav. Superior Court Los Angeles County etal. Case Number: KC 045 216 Steven H. Gardner, Esq., 8730 Wilshire Blvd., Suite 400 Beverly Hills, California 90211 (Co-Counsel for Appellant and Petitioner) Dale B. Goldfarb, Esq. Harrington Foxx 1055 W. 7" St., 29" FI. Los Angeles, CA 90017-2547 (Attorney for Defendant and Real Parties in Interest) Honorable Dan Thomas Oki Los Angeles Superior Court 400 Civic Center Plaza Pomona, CA 91766 (Trial Court Judge) Court ofAppeal Second Appellate District 300 S. Spring St., Div. 5 Los Angeles, CA 90013