Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Mateo County Super. Ct. No. CIV463531
Haerle, J.
INTRODUCTION
Respondents Charles Xuereb, M.D., and Sequoia Hospital move this court to dismiss this appeal filed by Boris Zhalkovsky, M.D., on the ground that we lack jurisdiction because appellant voluntarily dismissed the action with prejudice. Appellant opposes the motion and seeks sanctions against respondents for filing a frivolous motion. We will grant the motion to dismiss and deny the motion for sanctions.
FACTUAL AND PROCEDURAL BACKGROUND
Drs. Xuereb and Zhalkovsky are both psychiatrists who, at the time in question, had staff privileges at Sequoia Hospital in Redwood City. During the relevant time, Sequoia Hospital had a contract with Kaiser Permanente which allowed Kaiser members to receive in-patient psychiatric care at Sequoia. For an individual physician at Sequoia to see Kaiser patients, the physician also had to have a contract with Kaiser.
Dr. Xuereb had a contract with Sequoia designating him as the medical director for psychiatric services.
In September 2006, Dr. Zhalkovsky entered into a contract with Kaiser which allowed him to see Kaiser patients at Sequoia Hospital. In October 2006, questions arose regarding medication orders for two of Dr. Zhalkovsky’s patients who were also Kaiser members. Kaiser initiated a peer review investigation of Dr. Zhalkovsky and suspended his right to see Kaiser patients at Sequoia.
Kaiser completed its investigation and concluded that Dr. Zhalkovsky was entitled to be reinstated as a Kaiser contracting physician on the condition that he agree to an education plan. Dr. Zhalkovsky agreed to take the required pharmacology course but refused to take the medical ethics course. As a result, Kaiser canceled its contract with him.
Kaiser is not a party to this action.
Dr. Zhalkovsky filed suit, alleging in his second amended complaint negligence and interference with contractual relations against Dr. Xuereb and Sequoia Hospital, and seeking compensatory and punitive damages. Dr. Zhalkovsky alleged that Dr. Xuereb made false statements regarding Dr. Zhalkovsky’s treatment of two patients, and that these false statements resulted in the investigation.
On July 11, 2008, respondents filed a special motion to strike pursuant to Code of Civil Procedure section 425.16. On September 10, the trial court granted the motion to strike. On September 12, notice of entry of the order was served.
All further unspecified statutory references are to the Code of Civil Procedure.
On October 6, Dr. Zhalkovsky, through counsel, filed a voluntary notice of dismissal of the action with prejudice.
On October 29, Dr. Zhalkovsky, through counsel, filed a notice of appeal from the judgment that was entered on October 6.
On January 20, 2009, respondents filed the instant motion to dismiss the appeal. Dr. Zhalkovsky filed opposition to the motion to dismiss and a motion for sanctions on February 6, 2009.
DISCUSSION
A. The Motion to Dismiss
Respondents contend that, because an order granting an anti-SLAPP motion to strike is an appealable order, appellant’s dismissal (filed prior to the notice of appeal) should be given full effect, rendering this appeal moot.
Respondents are correct that an order granting or denying a section 425.16 anti-SLAPP motion to strike is an appealable order. (§ 425.16, subd. (i); § 904.1, subd. (a)(13); Kyle v. Carmon (1999) 71 Cal.App.4th 901, 906.) An order granting such motion is not independently reviewable on appeal from a subsequent judgment of dismissal. Review of the order requires a timely appeal from the order itself. (Maughan v. Google Technology, Inc. (2006) 143 Cal.App.4th 1242, 1246-1247.)
Presumably not realizing he had an appealable order, appellant filed a voluntary dismissal with prejudice. The notice stated: “This voluntary dismissal is made in order to facilitate an appeal of the Court’s adverse ruling of granting defendant’s motion to strike plaintiff’s second amended complaint.”
Ordinarily, there is no right to appeal from a voluntary dismissal. (Cook v. Stewart McKee & Co. (1945) 68 Cal.App.2d 758, 761 (Cook).) However, appellant relies on an exception to this rule articulated in Ashland Chemical Co. v. Provence (1982) 129 Cal.App.3d 790 (Ashland). In Ashland, the trial court sustained the defendant’s demurrer without leave to amend, and the plaintiff prematurely appealed. (Id. at p. 792.) Realizing that the trial court had not yet entered an appealable judgment, the plaintiff asked the clerk to dismiss the complaint with prejudice solely for the purpose of expediting the appeal and in no way indicating agreement with, or acquiescence in, the court’s ruling. (Ibid.) The court found that, under those circumstances and particularly because the plaintiff dismissed its complaint only to obtain a final judgment so it could contest the court’s ruling, the plaintiff’s request for a dismissal was tantamount to a request to enter judgment on the defendant’s demurrer and the appeal would be permitted. (Id. at p. 793.)
Appellant argues that his “dismissal of this action with prejudice conferred appellate jurisdiction with this court. This is because a plaintiff may appeal from a voluntary dismissal with prejudice in order to facilitate [an appeal of] an adverse ruling.” Appellant relies on Ashland and two cases following it, Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006 (Stewart) and Casey v. Overhead Door Corp. (1999) 74 Cal.App.4th 112 (Casey), disapproved on other grounds in Jimenez v. Superior Court (2002) 29 Cal.4th 473. However, in both Stewart and Casey, as in Ashland, the adverse rulings were not independently appealable orders. (See, e.g., Ashland, supra, [order sustaining demurrer]; Stewart, supra, 87 Cal.App.4th at p. 1012 [order imposing sanctions]; Casey, supra, 74 Cal.App.4th at p. 116, fn. 2 [ruling on a motion in limine].)
Appellant further contends that our recent decision in Giraldo v. Department of Corrections & Rehabilitation (2008) 168 Cal.App.4th 231 (Giraldo) compels the conclusion that the appeal is proper here. Not so. In Giraldo, the trial court sustained a demurrer to the negligence cause of action and dismissed the constitutional claim; the jury rendered a verdict for several defendants on emotional distress claims. (Id. at pp. 242-244.) On appeal, the defendants argued that this court lacked jurisdiction because, although the plaintiff had voluntarily dismissed her complaint below with the stated intent to expedite the appeal of certain claims, she had no appealable order. We had previously denied the defendants’ motion to dismiss the appeal, and summarily rejected the renewed argument on appeal, simply stating that we would “adhere to our prior determination that defendants’ argument [was] misplaced.” (Id. at p. 244, citing Stewart, supra, 87 Cal.App.4th at p. 1012.) Giraldo does not stand for the proposition that a plaintiff may voluntarily dismiss a complaint in order to expedite an appeal of an independently appealable order, and thus it does not assist appellant.
Appellant has cited no case applying the exception to an appealable order, and our research has revealed none. This is not surprising, since the purpose of the exception is to expedite an appeal of the adverse ruling.
Here, in contrast to Ashland and its progeny, the adverse ruling was an appealable order, and thus the rationale for the exception does not apply. Although it is clear that appellant filed his request for dismissal intending to expedite his appeal, the dismissal instead had the ordinary effect of terminating the action. (Cook, supra, 68 Cal.App.2d at pp. 760-761.) This appeal is thus moot.
We express no opinion on the matter, but appellant may have recourse under section 473, subdivision (b). (See, e.g., Basinger v. Rogers & Wells (1990) 220 Cal.App.3d 16, 22 [“Even after entering a judgment of dismissal pursuant to a party’s voluntary dismissal, the court has jurisdiction to vacate such judgment under section 473.”]; see also, H.D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1369 [developer’s erroneous belief that County would cooperate in developing property was “mistake” sufficient to vacate the dismissal].)
B. The Motion for Sanctions
Appellant seeks sanctions against respondents for filing what appellant refers to as a “frivolous” motion to dismiss. Having concluded that the motion to dismiss should be granted, we necessarily deny the motion for sanctions.
DISPOSITION
The motion to dismiss is granted and the appeal is dismissed. Appellant’s motion for sanctions is denied. Respondents shall recover their costs on appeal.
We concur: Kline, P.J., Richman, J.