Metropolitan News-Enterprise


Thursday, December 31, 2009


Page 1


Failure to Rule on ADA Request Held Fatal to Default Judgment




A trial judge erred in proceeding with a hearing where the defendant was not present and there had been no ruling on the defendant’s previous request for accommodation under the Americans With Disabilities Act, this district’s Court of Appeal has ruled.

Div. Eight yesterday certified for publication its Nov. 30 opinion reversing orders requiring Marc G. Stern to stay 100 yards away from his ex-wife, Daniela Biscaro, and confirming a condominium to her as separate property.

A default in Biscaro’s dissolution action was entered in May 2006. In September 2007, she asked for a restraining order based on a fight Stern had with Biscaro’s adult son.

At the TRO hearing that month, Stern explained that he had neuropsychiatric problems and presented a copy of an accommodation request he had submitted in another case. The judge denied the TRO but set a regular hearing for the following month, and advised that a ruling on the accommodation request would be made and notice given to the parties by mail.

The ruling was never made, apparently, and Stern did not appear at the hearing, which was before another judicial officer. After Stern failed to appear, the jurist noted that a request for accommodation was made, but said that because Stern had not appeared, even though the court had “waited until 10:05 for a matter noticed at 8:30,” the matter would proceed by declaration, resulting in a ruling in favor of the ex-wife.

Stern moved for reconsideration, explaining that because of brain injury, he could not meaningfully defend himself without the assistance of a neuropsychologist in the courtroom. The judge denied the motion following a very brief hearing.

Several months later, Biscaro asked the court for an expedited judgment confirming a condominium as her separate property so that she could sell it before her impending move out of the state. The court entered a default judgment.

Acting Presiding Justice Laurence Rubin, writing for the Court of Appeal, said the trial court failed to perform its duty under Rule 1.100 of the California Rules of Court, which requires a ruling, which ordinarily must be in writing, on every request for accommodation.

The request, Rubin added, must be granted unless the court finds that the applicant has failed to make a proper request, the accommodation would unduly burden the court, or the “accommodation would fundamentally alter the nature of the service, program, or activity.”

In Stern’s case, the jurist said, the court erred in failing to rule on the request, and there is nothing in the record showing that grounds for denial of the request existed, so reversal of the restraining order is required.

Rubin went on to say that the default judgment on the condominium should not have been entered because Biscaro had not alleged in her dissolution petition, as to which Stern defaulted, that the condominium was separate property. The rule that a party who obtains a default cannot be awarded greater relief than asked for in the pleading as to which default was entered applies, the jurist said.

The case is Biscaro v. Stern, B205856.


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