Metropolitan News-Enterprise


Wednesday, January 16, 2008


Page 1


C.A.: Judges Violated ADA by Denying Trial Delay to Bipolar Pro Per




Two Orange Superior Court judges violated the Americans With Disabilities Act and a related court rule by denying a continuance to a self-represented litigant who checked herself into a hospital the day before her divorce trial was to resume, the Fourth District Court of Appeal ruled yesterday.

Div. Three, while expressing sympathy “with the trial court’s frustration with the many continuances granted” in a divorce case involving a woman suffering from two forms of cancer as well as bipolar disorder, said Christine C.—as she was identified in the opinion—should have been accommodated under the ADA and California Rules of Court, Rule 1.100.

Christine C. and her husband, a physician and founder of a business that performs medical reviews for health insurance companies, married in 1989 and separated in 2004. She had recently undergone surgery following discovery of cancerous tumors, and was eventually diagnosed with both breast cancer and non-Hodgkin’s lymphoma.

The couple was divorced in November 2004, the court reserving jurisdiction over issues that included child support, valuation of the husband’s business and the family residence, and a claim that the husband had hidden assets.

Applied Ex Parte

Trial was originally scheduled for August 2005, but the wife, who was represented by counsel at the time, applied ex parte for a continuance due to her psychiatric condition. Her psychiatrist explained in a declaration that she suffered from bipolar disorder, and had for several years, was under a great deal of stress, and “would be in better psychological and emotional shape to deal with the trial and would be less at risk of a breakdown” if granted a 90-day continuance.

Orange Superior Court Judge Claudia Silbar denied the continuance, but said she would “certainly respond to” an emergency request in the middle of the trial. When trial began, the wife was in a wheelchair; she was not present on the second day of trial, when she filed a request with Judge Nancy Wieben Stock, then the assistant presiding judge and ADA coordinator for the court.

Under Rule 1.100, every trial and appellate court is required to designate at least one judge as an ADA coordinator, with authority to rule on requests for accommodation by disabled persons. A request must be granted, the rule says, unless the request is not in compliance with the rule, or the proposed accommodation “would create an undue financial or administrative burden on the court” or  “fundamentally alter the nature of the service, program, or activity.” 

  Wieben Stock referred the request to Silbar, who—after taking the psychiatrist’s testimony by telephone—granted the mid-trial continuance, setting trial for the end of November. The date was subsequently continued, without objection, to March 2006.

Counsel Withdraws

In the interim, the wife’s counsel withdrew for financial reasons. Also, the judge denied a motion by the wife to order liquidation of some community property securities.

She claimed in the motion that her “financial condition has seriously deteriorated.”

In late February 2006, the wife filed another ADA request with Wieben Stock, asking for another continuance. The request was accompanied by a declaration from the psychiatrist, who said the patient was “in a totally depleted state emotionally” and was in need of hospitalization and “absolute rest from any further legal stress” for an estimated three months.

When the trial resumed on March 1, 2006, the wife was not present, having checked herself into a hospital. A non-lawyer friend of hers spoke to both Wieben Stock and Silbar on that date, explaining the situation.

Wieben Stock denied the request, saying the medical documentation of the request was inadequate and that granting it would “fundamentally alter the nature” of the trial by countermanding the trial judge.

Silbar ruled that there was no reason for another continuance after “entertaining the ...matter 29 times.”  Following trial, she ordered the husband to pay $4,000 a month in child support, ordered the wife to pay $25,000 in attorney fees, valued the husband’s business at $557,000—less than half of what the wife’s expert would have testified it was worth—and awarded the husband a credit of more than $180,000 for his interest in the family residence.

The wife, after retaining new counsel, moved for a new trial, arguing that the denial of her last request for continuance violated the ADA and Rule 1.100. In denying the motion, Silbar emphasized the number of continuances, chided the wife for bringing a request to Wieben Stock “without the court’s knowledge,” and criticized “the psychologist or psychiatrist or whatever her title is,” saying her comments had been inconsistent and that she “completely lacked credibility.”

The judge went on to say that it was “absolutely absurd” that the “very simple dissolution” case had gone on for more than two years because of the wife’s “manipulations to obtain continuances” and that it was “unacceptable” for her to expect that the case would be delayed yet again based on an “informal statement that she checked herself into a hospital the night before trial resumes.”

She added:

“Let the Court of Appeal look at the record and let the Court of Appeal understand that we cannot—if we allowed every case to continue for twoandahalf years, we wouldn’t get anything done.”

Justice Richard Fybel, writing yesterday for the Court of Appeal, said it had looked at the record and decided that both judges erred in failing to accommodate the wife under Rule 1-100.

It was undisputed, Fybel said, that Christine C. was disabled within the meaning of the ADA and that she followed the rule’s procedural requirements. Accordingly, the court had no discretion to deny the request absent an “undue” burden on the court or a “fundamental” impact on the court’s services.

The grounds stated by the two judges did not qualify, Fybel said, because the ADA weighs heavily in favor of access to the courts by disabled persons and the wife’s hospitalization and pro per status precluded her from exercising her rights. Unlike the usual request for continuance, he added, a denial of ADA accommodation is not reviewed merely for lack of discretion.

It was error, he added, for Wieben Stock, as ADA coordinator, to defer to the trial judge. And it was error for Silbar to base her denial of the continuance on her fear of “making a mockery of the system” by creating a precedent for delay.

“Judge Silbar’s frustration was understandable, but the issue was not whether a trial continuance should be granted in every case:  The only issue presented was whether to grant a trial continuance as an ADA accommodation pursuant to California Rules of Court, rule 1.100 under the circumstances of this case,” the justice wrote.

“Here, Christine suffered from bipolar disorder and cancer and, on advice of her psychiatrist, had been hospitalized the day before trial was set to resume.  Christine had been representing herself in propria persona because she could not afford to pay her counsel and because the trial court had denied her request to liquidate and distribute some community assets.”

Honey Kessler Amado represented the husband on appeal. The wife was represented by Thomas Paine Dunlap and Brian P. Lepak of Trope and Trope and Richard A. Derevan of Snell & Wilmer.

The case is In re Marriage of C., G037159.


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