Foiled By One Final Judgment Rule.

Plaintiff ophthalmologist, who lost her license to practice medicine, brought an action against another doctor for breach of fiduciary duty, among other causes of action.  The defendant doctor cross-complained for defamation. The two had previously undertaken a venture to provide medical services to patients of a health maintenance organization and formed a corporation for that purpose. After the loss of plaintiff’s license, defendant and the HMO executed a different agreement. In ruling on a motion in limine, the trial court found “once plaintiff and defendant created a corporation to conduct their business, they owed each other no fiduciary duty.” Plaintiff agreed to dismiss her cause of action for breach of fiduciary duty with prejudice, and the two doctors agreed to dismiss their respective defamation claims without prejudice to “test the issue” of fiduciary duty and “get a ruling” from the appellate court before disposing of their defamation claims. The California Supreme Court did not appreciate their creative plan and ruled the one final judgment rule precludes an appeal: “When, as here, the trial 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 potential litigation upon conclusion of the appeal from the judgment rendered, the judgment is one that ‘fails to complete the disposition of all the causes of action between the parties,’ [] and is therefore not appealable.” (Kurwa v. Kislinger (Cal. Sup. Ct.; October 3, 2013) 57 Cal.4th 1097, [309 P.3d 838; 162 Cal.Rptr.3d 516].