Vesco v. Superior Court of Ventura Cnty.

Citation Codes

Equivalent Citations

citation codes

Docket Number

2d Civil No. B249447

Attorney(S)

See 2 Witkin, Cal. Procedure (5th ed. 2008) Courts, § 32. Brian J. Back, Judge, Superior Court County of Ventura. (Super. Ct. No. 56–2010–00384846–CU–OR–VTA)

Judges

Arthur Gilbert

See more information ...

Smart Summary

Factual and Procedural Background

David M. Vesco sued to recover possession of a home occupied by Tawne Michele Newcomb. Trial was set for April 22, 2013. Newcomb moved to continue based on urgent medical procedures; the court initially denied the motion without prejudice. Newcomb then filed an ex parte request for accommodations under California Rules of Court, rule 1.100 and the ADA; Vesco was not served with the request before the court granted a continuance to June 3, 2013. Vesco sought ex parte access to the documents the court relied on; the trial court denied that application. Vesco petitioned this court for writ relief and was summarily denied in May 2013. The trial court later continued the trial again to June 17 and then, on June 12, 2013, to August 12, 2013. Vesco renewed his petition for writ of mandate in this court challenging the lack of notice and access to the documents supporting Newcomb's ADA accommodation requests.

Legal Issues Presented

Whether petitioner Vesco is a person "involved in the accommodation process" under rule 1.100(c)(4) such that he is entitled to notice, access to the medical/confidential documents on which Newcomb relied, and an opportunity to be heard before the court grants a continuance as an accommodation;
Whether the trial court erred in granting continuances based on Newcomb's ex parte accommodation requests without providing Vesco notice, access to supporting documents, or an opportunity to challenge the requests.

Arguments of the Parties

Petitioner's (Vesco's) Arguments

Vesco argued the trial court erred by granting Newcomb continuances without allowing him to view the documents supporting her ADA requests or to be heard.
He asserted prejudice because he continued to pay the mortgage and maintenance while Newcomb lived in the home rent-free.
He claimed Newcomb's asserted objective was to delay trial and that she had a history of filing false documents, so he needed to review her medical documentation to determine whether to seek reconsideration or writ review under rule 1.100(g).

Real Party in Interest's (Newcomb's) Position

Newcomb filed ex parte accommodation requests under rule 1.100 and the ADA asserting she needed urgent medical procedures and requested continuances as accommodations for her disability.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
In re Marriage of James M. & Christine J.C. (2008) 158 Cal.App.4th 1261, 1273, 70 Cal.Rptr.3d 715	That under appropriate circumstances an accommodation may be a trial continuance.	Cited to show that a continuance can constitute an accommodation under rule 1.100.
Evid. Code, § 996 & City & County of S.F. v. Superior Court (1951) 37 Cal.2d 227, 232, 231 P.2d 26	Patient-litigant exception: when a party raises physical condition as an issue, privilege to withhold medical records is waived.	Applied to conclude that Newcomb's reliance on her medical condition waived the privilege and that Vesco is entitled to access records to challenge the claim.
Pitchess v. Superior Court (1974) 11 Cal.3d 531, 113 Cal.Rptr. 897, 522 P.2d 305	Procedures for discovery of peace officer personnel records (Pitchess motions).	Discussed and rejected as an appropriate analogue; the court agreed the trial court erred in treating Newcomb's request like a Pitchess motion because the procedures and underlying circumstances differ.
People v. White (2011) 191 Cal.App.4th 1333, 1339, 120 Cal.Rptr.3d 332	Personnel records in Pitchess proceedings are presented by a custodian of public records, not a party.	Used to distinguish Pitchess procedures from the present situation where a party submitted the medical materials.
People v. Mooc (2001) 26 Cal.4th 1216, 1226, 114 Cal.Rptr.2d 482, 36 P.3d 21	Describes in camera examination of records and the limited duties of the court in Pitchess proceedings.	Relied on to explain the limited, ministerial nature of the court's role in Pitchess proceedings and to contrast that role with the broader determinations required when evaluating a party's claimed disability.
In re Marriage of Johnson (1982) 134 Cal.App.3d 148, 154, 184 Cal.Rptr. 444	Right of a party to have a trial as soon as circumstances permit.	Cited to support that Vesco is entitled to timely trial and therefore may challenge continuance requests that delay his trial.

Court's Reasoning and Analysis

The court began with rule 1.100, which permits accommodations (including continuances) and bars disclosure of an applicant's confidential information to persons "other than those involved in the accommodation process." The court determined Vesco is a person "involved in the accommodation process" because the continuance directly affects his trial and he is the party forced to accommodate the delay. The court explained that when a party places a medical condition at issue, the party waives any privilege as to the relevant medical records (citing Evid. Code § 996 and City & County of S.F.), so an opposing party must have access to challenge credibility. The court rejected the trial court's analogy to Pitchess procedures, noting key differences: Pitchess motions involve personnel records presented by a custodian and the court's role is limited and ministerial, whereas here the party's claimed disability required assessment of credibility and permitted challenges. The court concluded that rule 1.100's allowance for ex parte applications does not eliminate the notice requirement under Rule 3.1203(a), and therefore Vesco was entitled to notice, access to the documents Newcomb relied upon, and an opportunity to be heard. The court noted the trial court could protect Newcomb's privacy by in camera proceedings, sealing records, and protective orders, but the complete exclusion of Vesco from the process was improper.

Holding and Implications

HOLDING: The petition is granted; a peremptory writ of mandate issues directing the superior court to vacate its June 12, 2013 order granting a continuance as an accommodation under rule 1.100 without providing petitioner notice, an opportunity to view the documents on which the real party in interest relied, and an opportunity to be heard, and to enter a new order consistent with this opinion.

Implications: The direct effect is that the trial court's June 12, 2013 continuance order is vacated and the superior court must re-proceed consistent with the opinion, affording petitioner notice, access to supporting materials, and an opportunity to be heard while taking measures to protect the applicant's privacy where appropriate. The parties shall bear their own costs. The opinion addresses the proper procedure under rule 1.100 in these circumstances and does not purport to announce a broader new precedent beyond its application here.

Show full summary ...

Da v. d M. VESCO, Petitioner,

GILBERT

See
2 Witkin, Cal. Procedure (5th ed. 2008) Courts, § 32. Brian J. Back, Judge, Superior Court County of Ventura. (Super. Ct. No. 56–2010–00384846–CU–OR–VTA) Law Offices of Mark Pachowicz, Camarillo, Christina S. Stokholm for Petitioner.
No appearance for Respondent.
Tawne Michele Newcomb, in pro. per. for Real Party in Interest.
GILBERT, P.J.

California Rules of Court, rule 1.100 allows persons with disabilities to apply for “accommodations” to ensure they have full and equal access to the courts. Rule 1.100 (c)(4) prohibits disclosure of the applicant's confidential information to persons “other than those involved in the accommodation process.”

All references to rules are to the California Rules of Court.

The trial court twice granted real party in interest's motion for continuance of trial pursuant to rule 1.100. Petitioner received no prior notice and the court denied his request to view the medical documents on which real party in interest relied to obtain a continuance.

We conclude petitioner is a person involved in the accommodation process. Therefore he has the right to notice, to view the documents on which the real party in interest relies, and to an opportunity to be heard. We issue a peremptory writ of mandate. We direct the superior court to vacate its June 12, 2013 order granting a continuance to real party in interest.

FACTS

David M. Vesco is plaintiff in a civil action. He alleges that: He and defendant Tawne Michele Newcomb were in a long-term relationship. During the relationship, Vesco purchased a home. Although Newcomb did not contribute to the purchase or maintenance of the home, she now has its sole possession. While Newcomb is living in the home, rent-free, Vesco is paying the mortgage and other expenses. Vesco seeks to recover possession of the home.

On June 11, 2012, the trial court scheduled trial in the action for April 22, 2013.

On April 4, 2013, Newcomb filed a motion to continue trial, claiming that she needed urgent medical procedures. Vesco opposed her motion. On April 12, 2013, the trial court denied Newcomb's motion without prejudice to her right to refile it with supporting documentation.

On April 15, 2013, Newcomb filed an ex parte motion for accommodations under the Americans With Disabilities Act (ADA), 42 United States Code section 12101 et seq., requesting a continuance of trial based on her health, pursuant to rule 1.100(a)(1). Vesco was not served with a copy of the motion nor notified of it until after the trial court granted it.

On April 16, 2013, the trial court sent Vesco's counsel a copy of its minute order that stated: “Defendant Tawne Newcomb has made a confidential ADA request. As part of the court's response to the request, the trial date in this matter is continued from April 22, 2013, to June 3, 2013, at 1:30 p.m., in Courtroom 20.”

On April 18, 2013, Vesco filed an ex parte application to examine and photocopy all documents in the trial court's possession concerning Newcomb's request for ADA accommodation. Vesco claimed that (1) Newcomb's sole objective was to delay trial so she could remain in the home he was paying for; (2) she had a proven history of filing false documents with the court; and (3) he needed to review her request to determine the basis for the court's order, and whether he should seek reconsideration or writ review of the order pursuant to rule 1.100 (g).

On April 18, 2013, the trial court denied Vesco's ex parte application. The hearing was not reported.

On April 24, 2013, Vesco petitioned this court for a writ of mandate ordering the trial court to allow him access to all materials it relied on to grant the trial continuance. On May 29, 2013, we summarily denied his petition.

The trial court's minute order of May 30, 2013, states that Newcomb made another confidential request for an accommodation under the ADA. The court ordered the trial continued to June 17, 2013, so that it would have time to review the request.

On June 12, 2013, pursuant to Newcomb's ADA request, the court again continued the trial to August 12, 2013.

On June 16, 2013, Vesco renewed his petition for writ of mandate in this court.

DISCUSSION

Vesco contends the trial court erred in granting Newcomb continuances without first allowing him the opportunity to view the documents on which she relies and the opportunity to be heard. Vesco claims he is prejudiced in that he continues to pay the mortgage and maintenance costs on the house while Newcomb lives there rent free.

Rule 1.100 (a) and (b) allows persons with disabilities covered by the Unruh Civil Rights Act, Civil Code section 51 et seq., the ADA, or other applicable state and federal laws to apply for accommodations to ensure full and equal access to the judicial system. The application may be made ex parte. (Rule 1.100 (c)(1).) Under the appropriate circumstances, an accommodation may be a trial continuance. (In re Marriage of James M. & Christine J.C. (2008) 158 Cal.App.4th 1261, 1273, fn. 4, 70 Cal.Rptr.3d 715.)

Rule 1.100 (c)(4) provides, in part, that “[t]he applicant's identity and confidential information may not be disclosed to the public or to persons other than those involved in the accommodation process.” Here the question is whether Vesco is a person “involved in the accommodation process.” ( Ibid.) The answer is obvious: It is his trial that is being continued and he is the person forced to make the accommodation.

When a party raises her physical condition as an issue in a case, she waives the right to claim that the relevant medical records are privileged. (See Evid. Code, § 996 & City & County of S.F. v. Superior Court (1951) 37 Cal.2d 227, 232, 231 P.2d 26 [“The patient-litigant exception precludes one who has placed in issue his physical condition from invoking the privilege on the ground that disclosure of his condition would cause him humiliation. He cannot have his cake and eat it too”].) The reason for the waiver is self-evident. It is unfair to allow a party to raise an issue involving her medical condition while depriving an opposing party of the opportunity to challenge her claim. A challenge requires access to the medical records on which a party relies and an opportunity to be heard. Otherwise, the challenge is in name only. That rule 1.100(c)(1) allows the application to be made ex parte does not dispense with the requirement of notice. (Rule 3.1203(a).)

Vesco contends the trial court incorrectly analogized Newcomb's motion to a Pitchess motion when a defendant in a criminal case seeks to discover information contained in a peace officer's personnel file. (Evid. Code, § 1043 et seq.; Pitchess v. Superior Court (1974) 11 Cal.3d 531, 113 Cal.Rptr. 897, 522 P.2d 305.) We agree. A Pitchess motion must be noticed with a supporting affidavit disclosing good cause. (Evid. Code, § 1043, subds.(a) & (b)(3).) The peace officer's personnel records are presented to the court by a custodian of public records, not by a party to the action. (See People v. White (2011) 191 Cal.App.4th 1333, 1339, 120 Cal.Rptr.3d 332.) It is true that the trial court examines the records in camera, outside the presence of the defendant and his counsel. (People v. Mooc (2001) 26 Cal.4th 1216, 1226, 114 Cal.Rptr.2d 482, 36 P.3d 21.) But the trial court's duties in a Pitchess motion are limited. The court must first perform the ministerial task of determining whether the peace officer's personnel records contain the type of information the defendant is entitled to discover. The court then makes the legal determination whether the information is relevant. (See Evid. Code, § 1045, subd. (b).)

These are substantial differences between the procedures employed in a Pitchess motion and the procedure employed here. Here the trial court determined that Newcomb's claim of a disability was credible. But Vesco did not have the opportunity to challenge the credibility of the claim. No such opportunity is required in a Pitchess motion because the court makes no determination whether the information contained in the personnel file is credible.

The Pitchess procedures are designed to provide a balance between the defendant's right to a fair trial and a peace officer's interest in privacy. (People v. Mooc, supra, 26 Cal.4th at p. 1227, 114 Cal.Rptr.2d 482, 36 P.3d 21.) The procedure employed by the trial court in deciding Newcomb's claim of disability provides no such balance. Vesco was shut out of the process entirely.

Vesco has the right to have his trial as soon as circumstances permit. (See In re Marriage of Johnson (1982) 134 Cal.App.3d 148, 154, 184 Cal.Rptr. 444.) It follows that he may challenge Newcomb's request for a continuance. He therefore must be given notice and an opportunity to view the medical records and other material on which Newcomb relies. Of course, the trial court must protect Newcomb's privacy as far as practical. For example, it may hold the hearing in camera, order Vesco and his counsel not to disclose the contents of the medical records, seal the record of the proceedings, and take other steps as it deems appropriate to accomplish this goal.

DISPOSITION

We grant the petition. Let a peremptory writ of mandate issue. We direct the respondent court to vacate its order of June 12, 2013, granting a continuance of trial as an accommodation under rule 1.100 without providing petitioner notice, an opportunity to view the documents on which real party in interest relies and an opportunity to be heard, and to enter a new order consistent with this opinion. The order to show cause, having served its purpose, is discharged.

The parties shall bear their own costs. We concur:
YEGAN, J.

PERREN, J.

-------- Notes: