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May 2017

One Day Too Late is One Day Too Many

Gordon & Rees partner Matt Kleiner and associate Jordan Derringer were successful in obtaining the dismissal of an appeal in the case Chiesa v. Mark Twain Convalescent Hospital by arguing that the filing of a notice of appeal, even if only one day late, was one day too many. 

The case was originally handled by partner Kathleen Rhoads of the Sacramento office.  At the trial court level, Gordon & Rees prevailed on a demurrer to the plaintiff’s first amended complaint alleging survival and wrongful death claims arising out of medical malpractice against Mark Twain Convalescent Hospital. The trial court sustained the demurrer without leave to amend and ruled that the plaintiff did not demonstrate the requisite standing to maintain the survivor claims. 

On appeal, the plaintiff argued, among other things, that she properly pled her wrongful death claims. In the notice of appeal, the plaintiff noted an incorrect date for the order upon which the appeal was predicated.  Based upon the dates set forth in her notice of appeal, the appeal was timely.  However, the plaintiff’s notice of appeal contained incorrect dates and she had filed the appeal one day too late.  A motion to dismiss the appeal as untimely was filed and granted by the Court of Appeal.  Significantly, a co-defendant/respondent did not recognize the procedural defect in the notice of appeal. 

The granting of the motion to dismiss was significant, not only because it disposed of the appeal, but because the substantive arguments advanced by the plaintiff in her opening brief were strong and the trial court’s order denying leave to amend may likely have been reversed on appeal allowing the wrongful death claim to proceed.

Matthew G. Kleiner
Kathleen M. Rhoads