89 Cal.App.5th 1068
Cal. Ct. App.2023Background
- Plaintiff Moss Gropen sued medical providers claiming negligence and false imprisonment and alleged he suffers PTSD from his hospital treatment.
- Defendants noticed Gropen’s deposition; Gropen appeared with his wife Laura, who is a percipient witness, and defendants objected to her presence.
- Defendants moved for a protective order to exclude Laura and sought sanctions after Gropen refused to proceed without her.
- At the hearing, for the first time counsel expressly invoked California Rules of Court, rule 1.100 and the ADA, seeking Laura’s presence as a reasonable accommodation for Gropen’s PTSD and submitted a psychiatrist’s declaration supporting the request.
- The superior court found the Rule 1.100 request untimely, granted the protective order, and imposed sanctions; Gropen petitioned for writ of mandate.
- The Court of Appeal held the oral Rule 1.100 request was timely and sufficiently supported, concluded the trial court abused its discretion by failing to consider the accommodation, vacated the protective order and sanctions, and remanded for proper consideration under Rule 1.100.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was an oral Rule 1.100 accommodation request valid and timely? | Oral request at hearing (with declarations) satisfied Rule 1.100 and was timely because deposition date was not within five court days. | Plaintiff failed to follow local form/process and didn’t forward request to ADA coordinator or raise it earlier. | Valid and timely: Rule 1.100 permits oral requests; five-court-day rule was met. |
| Did plaintiff forfeit the accommodation by not invoking Rule 1.100 earlier or in meet-and-confer/opposition? | No—Rule 1.100 only requires request five court days before event; prior invocation not required. | Failure to raise earlier shows untimeliness and forfeiture. | No forfeiture: prior silence did not bar a later timely oral request. |
| Did defendants have a due process right to notice of the Rule 1.100 request (Vesco analogy)? | Defendants had notice of PTSD and of plaintiff’s desire to have his wife present; the hearing gave full opportunity to respond. | Lack of prehearing Rule 1.100 filing denied meaningful opportunity to be heard, per Vesco. | No due process violation: defendants had the substantive evidence and an opportunity to oppose at the hearing; Vesco not analogous. |
| Could the requested accommodation (wife’s presence) be denied because it would fundamentally alter the deposition (risk of collusion)? | Accommodation is reasonable and lessens PTSD; alternatives exist (e.g., depose wife first, noise-cancelling headphones). | Wife is a percipient witness and her presence risks collusive/tainted testimony; exclusion protects deposition integrity. | Court did not rule on this merits ground; remand required so trial court must consider whether accommodation would fundamentally alter the deposition and explore narrower accommodations. |
Key Cases Cited
- Bab v. Superior Court, 3 Cal.3d 841 (writ relief appropriate to correct a trial court’s abuse of discretion)
- Los Angeles Gay & Lesbian Center v. Superior Court, 194 Cal.App.4th 288 (writ of mandate is proper to review certain trial court orders)
- Vesco v. Superior Court, 221 Cal.App.4th 275 (party challenging ex parte ADA accommodations may need access to supporting materials)
- In re Marriage of James and Christine C., 158 Cal.App.4th 1261 (Rule 1.100 denial standards)
- Elkins v. Superior Court, 41 Cal.4th 1337 (local rules cannot conflict with statewide procedural rules)