Metropolitan News-Enterprise


Thursday, November 7, 2013


Page 3


C.A. Says Litigant Was Entitled to See Documents Supporting Continuance


By a MetNews Staff Writer


The Court of Appeal for this district ruled yesterday that a plaintiff seeking to recover possession of a house from his ex-girlfriend has a challenge her request to continue the trial based on health reasons and inspect the documents supporting her request.

Div. Six said a Ventura Superior Court judge erred in ruling that a state court rule requiring reasonable accommodations for disabled litigants trumps an opposing party’s rights to notice and discovery.

The plaintiff, David M. Vesco, said in his complaint that he and Tawne Michele Newcomb purchased a home together during a long-term relationship. He alleged that Newcomb obtained sole possession of the house and was living there rent-free while he continued to pay the mortgage and other expenses.

Shortly before trial was set to begin, Newcomb filed two successive ex parte motions requesting trial continuances based on health reasons and accommodations under the Americans With Disabilities Act, in accordance with California Rules of Court, rule 1.100.

The trial judge granted both motions, resulting in nearly a four-month delay of the originally scheduled trial date.

Vesco requested that the court allow him to examine and copy all documents relating to Newcomb’s continuance motion, arguing that it was filed solely to delay trial so she could remain in the home he was paying for. He also claimed she had a history of filing false documents with the court.

The judge denied his request, relying on section (c)(4) of Rule 1.100 which states that confidential information submitted in a request for accommodations by persons with disabilities may only be disclosed to those “involved in the accommodation process.”  

After the judge granted Newcomb’s second motion for continuance, Vesco successfully petitioned the Court of Appeal for a writ of mandate.

The rule, Presiding Justice Arthur Gilbert noted, allows medical information to be shielded from persons not “involved in the accommodation process.”

He explained:

“Here the question is whether Vesco is a person ‘involved in the accommodation process.’… The answer is obvious: It is his trial that is being continued and he is the person forced to make the accommodation.”

He rejected the notion that Newcomb should be able to keep her medical records privileged under the circumstances, saying:

“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…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.” 

Gilbert said the fact that one can file a disability accommodation application ex parte “does not dispense with the requirement of notice.”

He further rejected the trial court’s attempt to analogize the situation to a Pitchess motion where a defendant in a criminal case seeks to discover information contained in a police officer’s personnel file, declaring that there were “substantial differences” between the two and that Pitchess in camera procedures to determine the relevancy of information are designed to balance privacy interests with a defendant’s right to a fair trial.

“The procedure employed by the trial court in deciding Newcomb’s claim of disability provides no such balance,” Gilbert wrote. “Vesco was shut out of the process entirely.”

The case is Vesco v. Super. Ct. (Newcomb), 13 S.O.S. 5718.


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