Filed 11/6/13

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

DAVID M. VESCO,
Petitioner,

v.

THE SUPERIOR COURT OF VENTURA COUNTY,
Respondent;
TAWNE MICHELE NEWCOMB,
Real Party in Interest. 2d Civil No. B249447 (Super. Ct. No. 56

- 2010

- 00384846

- CU

- OR

- VTA) (Ventura County)

California Rules of Court, rule 1.100 1 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."

The tri al 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 medic al documents on which real party in int e rest relied to obtain a
continuance.

1 All references to rules are to the California Rules of Court.2 We conclude petitioner is a person involved in the accommodation p rocess. Therefor e h e 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 gran ting 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 Newc omb 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 1 1, 2012, the trial court schedule d 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 denie d 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 accommodation s under the American s With Disabilities Act (ADA ) , 42 U nited States Code section
12101 et seq

. , requesting a continuance of trial based on her health, pursuant to rule
1.10 0 (a)( 1 ) . Vesco was not served w ith a copy of the motion n or notifie d of it until after
the trial court granted it.

On April 16, 2013, the trial court sent Vesco's counsel a c opy 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 photocop y all documents in the trial court's possession concerning Newcomb's request for3

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. T he 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.

T he trial court's minute order of May 30, 2013, state s that Newcomb made

a nother confidential request for an accommodation under t he 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 renewe d 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 docu ments 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 a ccommodations to ensure full and equal access to the judicial system. The application may be made ex parte. ( Rule 1.100 (c)(1).) Under th e appropriate circumstances, an accommoda tion may be a trial continuance. ( In re Marriage of James M. & Christine J. C. (2008) 158 Cal.App.4th 1261, 1273, fn. 4.)4 Rule 1.100 (c)(4) provides
, in part, that " [ t ] he applicant's identity and confidential information may not b e disclosed to the publi c or to persons other than those involved in the accommodation process." Here th e question is whether Vesco is a person "involved in the accommodation process." ( Ibid. ) The answer is obvious: It is his t rial 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) 3 7 Cal.2d 227, 232 [ "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. H e cannot have his cake and eat it too " ].) The reason for the waive r 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 c hallenge her claim. A challenge requires access to the medical record s on which a party relies a nd an opportunity to be
heard. O therwise
, 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 th e trial court incorrectly analogized Newcomb's motion to

a Pitchess motion whe n a defendant in a criminal case seeks to discover information
contained in a peac e officer's personne l file

. ( Evid. Code, § 1043 et seq. ; Pitchess v. Superior Court (1974) 11 C al.3d 531

. ) We agree. A Pitchess motion must be noticed with a supporting affidavit disclosing g ood 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.) 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.) Bu t the trial court's duties in a Pitchess motio n 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 t hen5

makes the legal determination whether the information is relevant. (See Evid. Code, § 1045, subd. (b).)

The se are substantial differences between the procedures employed in a
Pitchess mot ion and the procedure employed here. Here the trial court dete rmined that Newcomb's claim of a disability was credible . But Vesco did not have t he 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 informat ion 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.) The proce dure 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.) 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 p r ivacy 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 proceeding s, and take other steps as it deems appropria te to accomplish this goal.
DISPOSITION We grant the petition. Let a peremptory writ o f mandate issue. We
direct the respondent court to vacate its order of June 12, 2013, grant ing a continuance of trial as an accommodation under rule 1.100 without provi ding petitioner notice, an opportunity to view the documents on which real party in interest reli es and an opportunity to be heard, and to enter a new order consistent with this opinion. The order to show cause, having serv ed its purpose, is discharged.6 The parties shall bear their own costs.
CERTIFIED FOR PUBLICATION.

GILBERT, P. J.

We concur:

YEGAN, J.

PERREN, J.Brian J. Back, Judge
Superior Court County of Ventura

______________________________

Law Offices of Mark Pachowicz, C hristina S. Stokholm for Petitioner. No appearance for Respondent. Tawne Michele Newcomb, in pro. per. for Real Party in Interest.