Kowal Law Group Logo
model train

A Stipulated Judgment to Facilitate an Appeal Held Appealable

Tim Kowal     December 2, 2021

If you are involved in declaratory relief lawsuits, you might be confronted with the need for a stipulated judgment, as happened Tos v. State of California (D3 Nov. 30, 2021) ___ Cal.Rptr.3d ___ 2021 WL 5576552 (no. C089466). The advice suggested in the case is particularly welcome because there are horror stories about stipulated judgments in other cases in both state courts and federal courts. So here is the right way to do it.

Tos challenged the constitutionality of California's high-speed rail bond act (as violative of restrictions on debt). Tos filed a complaint for declaratory relief, and then filed a motion for judgment on the pleadings. Tos lost. That was the end of the line in the trial court for Tos. As the issues were purely legal, there was no point paying another fare. So Tos and the state stipulated to entry of judgment.

Now, under Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 402, the general rule is that stipulated judgments (or consent judgments) are not appealable. (E.g., a stipulation could moot the appeal.) And the horror scenario to be avoided is the *Kurwa v. Kislinger* trap. Yet there are exceptions to the rule. But sometimes the exceptions are not well-articulated. (Like in this recent case.)

But Tos v. California succinctly explains the exception, and finds that the stipulated judgment is appealable:

"The parties agree they entered into the stipulated judgment because all of the Tos parties’ claims depended on a determination that Assembly Bill No. 1889 is unconstitutional. The stipulated judgment is thus appealable under the exception in Norgart to the general rule that consent judgments are not appealable except where “ ‘consent was merely given to facilitate an appeal following adverse determination of a critical issue.’ ” (Norgart v. Upjohn Co., supra, 21 Cal.4th at p. 400; Wilshire Ins. Co. v. Tuff Boy Holding, Inc. (2001) 86 Cal.App.4th 627, 634, fn. 6 [“The stipulated judgment, made to hasten appeal rather than settle the dispute, is appealable”].)"

Key Distinction: Here is the distinction between Kurwa v. Kislinger (applying the general rule that stipulated judgments are not appealable) and Tos (applying an exception to that rule). In Kurwa, there were other claims the plaintiff wanted to preserve, and so the parties entered into a tolling agreement for those claims, and the plaintiff dismissed them without prejudice. Also, the defendant had a pending cross-complaint. In Kurwa, it was clear the parties were simply "manufacturing appellate jurisdiction," rather than waiting for a final judgment as the law requires.

In contrast, in Tos the stipulated judgment disposed of the only claim in the case. There was no cross-complaint. The judgment was with prejudice to the plaintiff's claims. This satisfied the court that the parties were not attempting to "manufacture appellate jurisdiction" as happened in Kurwa.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
Get “Not To Be Published,” a weekly digest of these articles, delivered directly to your inbox!
Subscribe

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly.

Leviticus

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody."

—T.H. White, The Once and Future King

"So far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. The idea is put strikingly in the Anglo-Saxon legal proverb, 'Buy spear from side or bear it,' that is, buy off the feud or fight it out."

— Roscoe Pound, An Introduction to the Philosophy of Law

"A judge is a law student who grades his own papers."

— H.L. Mencken

“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”

— James Madison, Federalist 62

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor."

Rubin v. Green (1993) 4 Cal.4th 1187

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality."

— Will Durant

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else."

— Hon. Sir Owen Dixon, Chief Justice of Australia

"Counsel on the firing line in an actual trial must be prepared for surprises, including requests for amendments of pleading. They cannot ask that a judgment afterwards obtained be set aside merely because their equilibrium was slightly disturbed by an unexpected motion."

Posz v. Burchell (1962) 209 Cal.App.2d 324, 334

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws."

— Plato (427-347 B.C.)

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind."

— Sir Thomas More in Robert Bolt's A Man for All Seasons

Copyright © 2024 Kowal Law Group
menuchevron-down
linkedin facebook pinterest youtube rss twitter instagram facebook-blank rss-blank linkedin-blank pinterest youtube twitter instagram