Metropolitan News-Enterprise


Wednesday, May 27, 2015


Page 1


Third District Court of Appeal Grants Writ in Case Where Two Judges Took Actions in Absence of Authority


By a MetNews Staff Writer


The Third District Court of Appeal has granted a writ of mandate in a case where two Superior Court judges in California’s Nevada County took unconventional actions.

After Kathleen Leonard, a defendant in a limited civil case, permissibly amended her cross complaint, and sought damages in excess of $25,000, Judge Linda J. Sloven refused to allow the case to be reclassified as an unlimited jurisdiction case.

Later, Judge R. Michael Smith, filling in one day for Sloven, struck Leonard’s notice of appeal from Sloven’s order granting a cross-defendant’s anti-SLAPP motion.

In an opinion filed Friday, Justice Ronald Robie said that once the damages sought exceeded $25,000, “the trial court was required to reclassify the case.”

A motion to reclassify, which Sloven denied, was “was unnecessary,” Robie said, “because upon the clerk filing the first amended cross-complaint on April 11, 2014, (given that counsel offered to pay the filing fee but his offer was refused), the case should have been classified as unlimited.”

He wrote that “the court here erred in failing to recognize that the case was already reclassified at the moment the clerk filed the first-amended cross-complaint on April 11, 2014” and the cross-complainant’s lawyer offered to pay the fee.

Medical Records Attached

The action against Leonard was brought by Retailers’ Credit Association Of Grass Valley, Inc. based on an alleged debt to Dignity Health, doing business as Sierra Nevada Memorial Hospital. In suing Leonard, the debt collection company attached to the complaint copies of the medical records of Leonard and her son.

Her cross-complaint, as amended, added Dignity Health as a cross-defendant and sought damages against it and Retailers’ Credit Association based on the public disclosure of privileged medical records. Retailers’ Credit Association brought an anti-SLAPP motion based on the litigation privilege, which Sloven granted.

Leonard filed a notice of appeal, which Smith ordered stricken.

Can’t Strike Notice

“Apparently, the trial court determined that the 60-day period to file a notice of appeal from an unlimited action did not apply because the case here was a limited action, for which the 30-day period to file a notice of appeal applied,” Robie noted, proceeding to declare that the trial court “had no authority” to strike the notice.

He explained:

“Once Leonard filed her notice of appeal, purportedly from an unlimited civil case, this appellate court, not the trial court, had jurisdiction to determine whether that filing was timely….Thus, the trial clerk properly filed the notice of appeal and the trial court was without authority to unfile it or set it aside.”

The case is Leonard v. Superior Court, Retailers’ Credit Association of Grass Valley, Inc. RPI, 15 S.O.S. 2589.

The Court of Appeal on Oct. 30 denied Leonard’s writ petition, and Leonard sought review in the California Supreme Court. Review was granted on Nov. 20 and the matter was retransferred to the Court of Appeal, with instructions to direct the Nevada Superior Court to show cause why a writ should not be granted.

Leonard’s attorney, Patrick H. Dwyer of Penn Valley, commented yesterday that while he is “very pleased” over the Court of Appeal’s decision, “it’s unfortunate that I had to go to the California Supreme Court to vindicate my client’s position.”

He added that the case “is nowhere near over,” and said that what he hopes to establish, through a further appellate opinion, is the impermissibility of attaching medical records to pleadings.


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