KURWA v. KISLINGER

Appellant’s Response to Amicus Curiae Brief

Cal.May 16, 2017

CASE NO.: 8234617 IN THE SUPREME COURT OF CALIFORNIA SUPREME COURT BADRUDIN KURWA, FILED Plaintiff and Appellant, MAY 1 6 2017. Jorge Navarrete Clerk MARK KISLINGER,etal., Deputy Respondent, 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 RESPONSE TO THE AMICUSCURIAE BRIEF FILED BY THE CALIFORNIA ACADEMY OF APPELLATE LAWYERS Robert S. Gerstein, SBN 35941 Steven H. Gardner, Esq., SBN 70921 171 Pier Ave., # 322 8730 Wilshire Blvd., Suite 400 Santa Monica, CA 90405 Beverly Hills, California 90211 Telephone: (310) 820-1939 Telephone: (310) 246-2300 Facsimile: (310) 246-2328 Attorneysfor Petitioner, BADRUDIN KURWA CASE NO.: 8234617 IN THE SUPREME COURT OF CALIFORNIA | BADRUDIN KURWA, Plaintiff and Appellant, V. MARK KISLINGER,etal., Respondent, After a Decision By The Court of Appeal Second Appellate District, Division 5 Case Number: B264641 Superior Court ofLos Angeles The Honorable Dan Thomas Oki Case Number: KC 045 216 RESPONSE TO THE AMICUS CURIAE BRIEF FILED BY THE CALIFORNIA ACADEMY OF APPELLATE LAWYERS Robert S. Gerstein, SBN 35941 Steven H. Gardner, Esq., SBN 70921 171 Pier Ave., # 322 8730 Wilshire Blvd., Suite 400 Santa Monica, CA 90405 Beverly Hills, California 90211 Telephone: (310) 820-1939 Telephone: (310) 246-2300 Facsimile: (310) 246-2328 Attorneys for Petitioner, BADRUDIN KURWA TABLE OF AUTHORITIES FEDERAL CASES Smith v. Allwright (1944) 321 US 649 20.ceete e enna 2 CASES Guseinov v. Burns (2006)145 Cal.App.45h 944 o.oo. cece ccc cece cece eee e nett n eect eens 3 Kurwav. Kislinger (2013) 57 Cal.4th 1097 1.2.0... 2. eee ee eeecece eee eee eee 2,3 Reisman v. Shahverdian (1984) 153 Cal.App.3d 1074.2... 2.0... cee eee Lecce ee eeeDecca 3 CASE NO.: 8234617 IN THE SUPREME COURTOF CALIFORNIA BADRUDIN KURWA, Plaintiff and Appellant, v. - MARK KISLINGER,et al., Respondent, 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 RESPONSE TO THE AMICUS CURIAEBRIEF FILED BY THE CALIFORNIA ACADEMYOF APPELLATE LAWYERS I write on behalf of Petitioner Badrudin Kurwa in response to the amicuscuriae brief filed by the California Academy of Appellate lawyers. I write to underline two points: 1. First, the Academyaffirmedthat “Dr. Kurwa’s predicament is not unique.” (ACB 8). Respondents contendthat“the practicing bar” now understands that parties cannotstipulate to dismiss causes of action without prejudice (and with a waiverofthe statute of limitations) with the expectation they will thereby expedite appeal of the rest of the case. (AB 2). According to the Academybrief, however, parties continue to enter into such stipulations with the approval, and even at the | urging of, the trial courts, despite this Court’s decision in Kurwav. Kislinger (2013) 57 Cal.4th 1097 (Kurwa I). Whenthe appeals filed on the basis of those stipulations are dismissed under KurwaI, the brief continues, the trial courts to which the cases return will also be “in need of the guidance required here.” (ACB 8). The decision in this case will not, then, be like “a restricted railroad ticket, good for this day andtrain only...” Smith v. Allwright (1944) 321 U.S 649, 669 (Roberts, J., dissenting). There will continueto be litigants seeking relief from the unexpected forfeiture of the right to appeal under similar circumstances, andit will be applicable to them. 2. Second, while offering a third remedy in addition to the two Kurwaproposes, the Academybrief makesit clear that all three have the same goal. Nolitigant should effectively be denied the right to appeal based on an agreement made under the mistaken impression that it would expedite appeal. As the Academybrief points out, “[w]aiver of the right to appeal ‘should be clear and express” (Reisman v. Shahverdian (1984) 153 Cal.App.3d 1074, 1088,with all doubts resolved against waiver. Guseinovv. Burns (2006)145 Cal.App.45h 944, 935. (ACB 11). Both points reinforce the need for a decision which will, by whatever meansthis Court decides best accords with our law, ensure that “the Catch 22" (ACB8) which has ensnared Kurwasince Kurwa Tis eliminated from our legal system. DATED:May17, 2017 Respectfully submitted, STEVEN H. GARDNER LAW OFFICE OF STEVEN H. GARDNER ROBERT S. GERSTEIN LAW OFFICES OF ROBERTS. GERSTEIN » Mb>~ ROBERTS. GERSTEIN Attorneys for Appellant Badrudin Kurwa 3 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 not a party to the within action. My business address is 171 Pier Ave., # 322, Santa Monica, California 90405. On May17, 2017, I served true and correct copies of the foregoing document described as RESPONSE TO THE AMICUS CURIAE BRIEF FILED BY THE CALIFORNIA ACADEMYOF APPELLATE LAWYERSontheinterested parties in this action addressedas follows: SEE ATTACHED MAIL SERVICE LIST [X] BY MAIL:I am readily familiar with the firm’s practice of collection and processing correspondencefor mailing 1 know that the correspondence is deposited with the U.S. Postal Service on the same day this declaration was executed andin the ordinary course of business. I know that the envelope wassealed, 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 COPYprovided to the Court of Appeal for service on the Supreme Court is provided to 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 of the State of California that the foregoing is true and correct. Executed on this 17" Day of May, 2017, at Los Angefes, California. Lud@ Rgsenbaum 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" FL. 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 of Appeal Second Appellate District 300 S. Spring St., Div. 5 Los Angeles, CA 90013