MOSS GROPEN, Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; CYRUS SHABRANG et al., Real Parties in Interest.
D080950
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
March 30, 2023
CERTIFIED FOR PUBLICATION;
ORIGINAL PROCEEDING on a petition for a writ of mandate. Relief granted.
McMahon Lynch Law Firm and Robert J. Lynch for Petitioner.
No appearance for Respondent.
Peabody & Buccini, Thomas M. Peabody, and Aaron D. Burden for Real Parties in Interest.
Moss Gropen brought suit against, among other defendants, Cyrus Shabrang and Michael Noud (Shabrang and Noud together as Real Parties in Interest) arising out of Gropen‘s treatment at a hospital. After the filing of an amended complaint, a demurrer, and some discovery issues, Real Parties in Interest noticed Gropen‘s deposition.1 Gropen appeared at the noticed deposition with his wife Laura Gropen.2 Defense counsel objected to Laura‘s presence at the deрosition because she is a percipient witness in the action and could be deposed in the future. Gropen‘s deposition did not proceed beyond the parties stating their objections on the record.
Real Parties in Interest subsequently filed a motion for protective order and sanctions, asking the court to exclude Laura from Gropen‘s deposition. At the hearing on the motion, Gropen‘s counsel explicitly requested under
Gropen timely filed this petition for a writ of mandate, arguing that the superior court abused its discretion in granting the protective order and erred by not considering the evidence that Gropen was diagnosed with PTSD. Gropen also maintains that his request that Laura attend his deposition is a
We conclude that Gropen‘s request for an accommodation under Rule 1.100 was timely, and the court abused its discretion by failing to consider his request. As such, we will grant the requested relief and remand this matter back to the superior court with instructions to deny the motion for protective order and sanctions and properly consider Gropen‘s request under Rule 1.100.
FACTUAL AND PROCEDURAL BACKGROUND
On October 22, 2021, Gropen filed a first amended complaint, naming Palomar Medical Center, Kenneth Trestman, Fang Wu, Danielle Greer, and Real Parties in Interest as defendants.4 The operative complaint contains two causes of action: negligence and false imprisonment. Gropen alleges he checked into Palomar Medical Center for a prescheduled appointment for a thoracentesis. He also was experiencing back pain at that time. Gropen claims the treating doctor refused to perform a thoracentesis and sent Gropen to the emergency room. Eventually, Gropen was admitted “with a large loculated right pleural effusion with atelectasis of the middle and lower lobe.”
Gropen avers that he was never treated for his back pain. Rather, he was kept isolated in the hospital and had a chest tube placed. He was put in a room with no windows and had limited contact with medical personnel and no contact with his family. He received “substandard nutrition” and suffered “iatrogenic delays” in urination and defecation, causing extreme rashes and soiling. Gropen was in agony and “suffered uncontrollable sobbing and anxiety.” Although psychiatric care was requested, none was provided. Accordingly, Gropen suffered PTSD and extensive physical pain. On February 24, 2022, Wu and Greer served a deposition notice for Gropen, noticing his deposition for April 7, 2022. However, the deposition was taken off calendar at the end of March. The parties subsequently met and conferred about scheduling the deposition and agreed that Gropen would sit for a deposition on July 7, 2022. To this end, Real Parties in Interest noticed Gropen‘s deposition.
Gropen appeared for his deposition on July 7 along with his attorney and his wife. Counsel for Real Parties in Interest informed Gropen‘s attorney that Laura would not be permitted to attend the deposition because she was not a party in the case and had been identified as a witness. All defense counsel objected on the record regarding Laura‘s presence at the deposition. Gropen‘s
As promised, Real Parties in Interest filed a motion for protective order and a request for sanctions. They argued a proteсtive order excluding Laura from the deposition was necessary and appropriate to prevent collusive testimony. Real Parties in Interest requested sanctions in the amount of $3,090.
In opposing the motion for a protective order, Gropen described that he suffers from PTSD (to the point of having suicidal thoughts), which is triggered when he is asked to discuss his experiences in the hospital leading to the instant lawsuit. When he is experiencing PTSD, Gropen explained that “[t]he presence of [his] wife nearby has a calming effect and lessens the experience for [him].”
Before the hearing on the motion for protective order, the court issued a tentative ruling granting the protective order and awarding sanctions.
At the hearing on the motion for protective order, Gropen submitted a declaration from Dr. Stephen Signer. Signer is a practicing psychiatrist who is currently treating Gropen for PTSD. Signer indicated that Gropen‘s “PTSD is triggered by certain stressors, including questioning by others related to the incidents that lead up to his trauma.” Singer opined that a deposition of Gropen would “more likely than not” trigger his PTSD. Singer also noted that Laura‘s presence has “an ameliorative affect” on Gropen and recommended that she should be present during Gropen‘s deposition “to lessen the impact of the triggering event.” Gropen‘s attorney explained that he did not obtain Signer‘s declaration until the night before the hearing.
Gropen‘s attorney also pointed out that PTSD is a recognized disability under the ADA, and, per Rule 1.100, Gropen had the right to a reasonable accommodation. Gropen‘s attorney maintained that Laura‘s presence at Gropen‘s deposition was a reasonable accommodation.
The court observed that Gropen‘s attorney was providing “new information” that was not discussed or mentioned at the time of the deposition or in Gropen‘s opposition to the motion for protective order. The court indicated that it was “very fаmiliar with PTSD” and did not “need to know the symptoms and all that stuff.” However, the court found that Gropen‘s request
The court responded as follows:
“Okay. But – yes, you made it clear you wanted his wife there at the deposition. It was clear in your opposition that you wanted the wife there. But the reason for it that you‘re stating for the first time today was not mentioned at the deposition on July 7 nor was it mentioned in your papers.”
When it became clear that the court was going to adopt its tentative ruling, Gropen‘s counsel then requested that the court reduce the amount of sanctions after considering “the degree of pain that . . . Gropen experiences without having his wife there.” The court remained unpersuaded:
“Okay. All right. Well, so, you know, I—I‘m kind of at a loss for words because this is all been brought out today for the first time with ADA claims and claims of PTSD. There is no formal diagnosis before the Court. There is no—look, I—I agree the Court needs to make reasonable accommodations under the ADA. I have seen nothing that would suggest that accommodations are necessary, that he has PTSD, other than what I‘ve heard today for the very first time.
“And it was mentioned in the briefing. It was not mentioned at the deposition. And nor does it—is there any declaration or indication that having the wife present would solve the problem or accommodate him to the point where he would be able to give deposition testimony.
“So . . . [t]he Court will affirm the tentative ruling. The Court finds that imposition of sanctions in this case is not unjust given the fact that we had all these lawyers showing up and we had a deposition that was planned.
“And what concerns me and makes the imposition of sanctions just and not unjust is the fact that this was a surprise. All counsel showed up and they—they were given no notice. And my understanding is the wife is a witness in this case and she wants to attend the deposition testimony. That‘s something that should have been discussed among counsel beforehand. And so for those reasons the Court will impose the sanctions.”
Gropen timely brought this petition for a writ of mandate. We issued a stay of Gropen‘s deposition as well as the August 26 minute order and requested an informal response to the petition. Real Parties in Interest filed an informal response. We subsequently issued an order to show cause why relief should not be granted. Real Parties in Interest then filed a return.
DISCUSSION
Relief by writ of mandate is appropriate to correct a trial court order that constitutes an abuse of discretion. (Bab v. Superior Court (1971) 3 Cal.3d 841, 851; Los Angeles Gay & Lesbian Center v. Superior Court (2011) 194 Cal.App.4th 288, 299.) Further,
Under
Once the request is submitted, the court “must consider, but is not limited by,
The court may deny a request for an accommodation only when it determines that: (1) the applicant fails to satisfy the requirements of the Rule; (2) the requested accommodations “would create an undue financial or administrative burden on the court”; or (3) the requested accommodation “would fundamentally alter the nature of the service, program, or activity.” (
In the instant action, Real Parties in Interest do not challenge Gropen‘s claim that he suffers from PTSD. Moreover, sinсe the inception of the instant action, Gropen has maintained that he suffers PTSD. Accordingly, in the first amended complaint, he alleges: “[Gropen] suffered, and continues to suffer documented . . . PTSD.” In opposing the motion for protective order, both Gropen and his wife filed declarations stating that Gropen had been diagnosed with PTSD. And the psychiatrist treating Gropen submitted a declaration stating that Gropen suffers from PTSD and sitting for a deposition would most likely trigger Gropen‘s PTSD.
The ADA provides protection to individuals who can show they are “disabled,” which is defined as someone who has a physical or mental impairment that substantially limits a major life activity, has a rеcord of such impairment, or is regarded as having such an impairment. (
Yet, Real Parties in Interest argue that Gropen forfeited his request for an accommodation under Rule 1.100 because he did not comply with the procedure for requesting accommodations. Additionally, they contend the superior court would have violated their due process rights if it had granted Gropen‘s request for an accommodation without allowing Real Parties in Interest a meaningful opportunity to be heard on the issuе. Finally, Real Parties in Interest assert that, even if Gropen had properly raised the issue of an accommodation, the court did not abuse its discretion in denying the request because the requested accommodation (Laura‘s presence at Gropen‘s deposition) would fundamentally alter the nature of Gropen‘s deposition. (See
Relying on
Nevertheless, Real Parties in Interest gloss over Gropen‘s oral request for the accommodation and, instead, point to other requirements in Rule 1.100. Accordingly, Real Parties in Interest assert that
Real Parties in Interest also note that San Diego County Superior Court follows local rule 1.2.1, Policy Against Bias and Access to Court Services, which provides in part: “To ensure access to the courts for persons with disabilities, the court has appointed ADA coordinators at each of its facilities to address for accommodation. Such requests shall be made as far in advance as possible and pursuant to
Further, Real Parties in Interest observe that the San Diego County Superior Court‘s website includes a tab entitled, “Accommodations For Persons With Disabilities Using Court Facilities,” which details the proсess for requesting ADA accommodations from the superior court:
“Accommodation requests are governed by Rule 1.100 of the California Rules of Court. Requests should be made by completing the Disability Accommodation Request (SDSC Form # ADM-410), which may be obtained at any court location and is available here [hyperlink]. The completed ADM-410 Form may be submitted to the ADA Coordinator‘s Office or the business office at the court location where the accommodation is needed.”8
Real Parties in Interest point out that Gropen did not comply with local rule 1.2.1 or complete and submit the form as set forth on the San Diego County Superior Court‘s website. We concludе these suggested procedural shortcomings did not render Gropen‘s oral request for an accommodation insufficient.
We see nothing in the San Diego County Superior Court‘s local rules that creates any additional hurdle to requesting an accommodation under
Rule 1.100 also contains a temporal component. Subdivision (c)(3) of this rule provides:
“Requests for accommodations must be made as far in advance as possible, and in any event must be made no fewer than 5 court days before the requested implementation date. The court may, in its discretion, waive this requirement.”
Below, the superior court declined to consider Gropen‘s accommodation request because it found the request untimely. Although Real Parties in Interest noted Rule 1.100, subdivision (c)(3), they did not spend much time in their briefs discussing the timeliness of Gropen‘s request. However, because the timeliness of the request was critical to the court‘s decision not to consider it, we turn to that issue now.
The superior court found Gropen‘s request untimely because he did not request an accommodation under Rule 1.100 while meeting and conferring with the defendants about the timing of his deposition, and he did not invoke Rule 1.100 in opposing the motion for a protective order. Yet, Gropen‘s failure to request an accommodation in either instance did not make his request at the protective hearing untimely. All Rule 1.100 requires is that Gropen request an accommodation at least five court days before the subject event. (See
In hindsight, it would have been more efficient had Gropen raised the issuе of his wife‘s presence at his first deposition before Real Parties in Interest noticed his deposition, but his failure to do so is not fatal to his cause here.
Similarly, Gropen‘s failure to explicitly request an accommodation per Rule 1.100 in his opposition to the motion for protective order did not forfeit his subsequent oral request or otherwise make it untimely. Again, the only requirement under Rule 1.100 regarding the time of making a request is that the request be made five court days before the subject event. Further, there is no requirement a request be made in writing or in written opposition to a motion for protective order. A request can be made orally.9 (See
Based on the foregoing, we conclude that Gropen‘s request for an accommodation under Rule 1.100 was not untimely. Moreover, Gropen cоmplied with the procedural requirements of Rule 1.100. Nevertheless, relying on Vesco v. Superior Court (2013) 221 Cal.App.4th 275 (Vesco) and claiming a violation of their due process rights, Real Parties in Interest maintain that the superior court could not have granted Gropen‘s request because they had not been provided with proper notice and a meaningful opportunity to be heard on the issue. Real Parties in Interest‘s reliance on Vesco is misplaced. Further, we find no due process violation on the record before us.
In Vesco, supra, 221 Cal.App.4th 275, the defendant filed a motion to continue trial because she needed urgent medical procedures. The trial court denied the motion without prejudice to allow the defendant to refile the motion with supporting documentation. (Id. at p. 277.) Instead of refiling the motion, the defendant applied ex parte for an accommodation (a trial continuance) under Rule 1.100. The plaintiff was not provided with notice or a copy of the application until after the court granted the requested accommodation and continued the trial. (Id. at p. 278.) The plaintiff subsequently applied ex parte to examine and photocopy all documents in the trial court‘s
The appellate court granted the plaintiffs requested relief. The court explained that the plaintiff had “the right to have his trial as soon as circumstances permit.” Thus, the plaintiff could challenge the defendant‘s request for a continuance. As such, the court reasoned that the plaintiff “must bе given notice and an opportunity to view the medical records and other material on which [the defendant] relies.” (Vesco, supra, 221 Cal.App.4th at p. 280.)
Here, Real Parties in Interest insist their situation is analogous to the plaintiff‘s circumstances in Vesco. They compare their “fundamental right to an objective deposition of” Gropen to the plaintiffs right to trial as soon as circumstances permitted in Vesco. Real Parties in Interest‘s argument is off the mark. The issue the plaintiff sought to address in Vesco was the trial court‘s refusal to allow him to review the documents and evidence supporting the trial court‘s multiple continuances of the trial date. (See Vesco, supra, 221 Cal.App.4th at pp. 279-280.) Here, there is no analogous concern. Real Parties in Interest are privy to all the evidence on which Gropen relies to request an accommodation. Indeed, the claim that Gropen suffers from PTSD has been known since the inception of the suit. Moreover, it was clear in the opposition to the motion for a protective order that Gropen was seeking to have Laura at his deposition. Thus, Real Parties in Interest had sufficient notice regarding the requested accommodation. And they argued against the court allowing that accommodation by way of their motion for a protective order.
Nonetheless, we acknowledge that Real Parties in Interest were not specifically informed, until the date of the hearing on their motion for protective order, that Gropen was seeking an accommodation under Rule 1.100. However, Rule 1.100 explicitly allows a party to orally request an accommodation. Thus, we fail to see any fundamental due process issue had the superior court considered Gropen‘s request at the hearing. Our conclusion is buttressed by the fact that Real Parties in Interest were given the opportunity to address Gropen‘s argument under Rule 1.100 at the hearing on the motion for a protective order. They did not need to do so because the court found Gropen‘s request untimely and did not consider it. Against this backdrop, we struggle to find the denial of due process that Real Parties in Interest claim.
Although
Additionally, this does not appear to be a situation wherein Laura‘s presence at Gropen‘s deposition would trigger Rule 1.100(f)(3). The only concern that Real Parties in Interest have offered about Laura‘s presence at Gropen‘s deposition is that Laura and Gropen could collude with each other at Laura‘s subsequent deposition. However, a pragmatic and somewhat painless way to address Real Parties in Interest‘s concern would be to take Laura‘s deposition before Gropen‘s deposition and prohibit Gropen from attending Laura‘s deposition. Another possible solution would be to have Laura present at Gropen‘s deposition but be unable to hear the questions (perhaps she could wear noise cancelling headphones). We offer these two possible accommodations merely as examples of simple, manageable solutions to the parties’ dispute. We trust that the parties, with the help of the superior court, can fashion an accommodation that sufficiently protects all the parties’ respective interests here.
In short, we conclude the superior court abused its discretion by failing to cоnsider Gropen‘s oral request for an accommodation under Rule 1.100. (Cf. In re Marriage of Gray (2007) 155 Cal.App.4th 504, 515.) As such, we grant Gropen‘s request for relief and remand this matter back to the superior court so that it can consider Gropen‘s request for an accommodation under Rule 1.100.
The petition for writ of mandate is granted. Let a peremptory writ of mandate issue directing the respondent superior court to (1) vacate its order granting Real Parties in Interest‘s motion for protective order and sanctions and (2) consider Gropen‘s request for an accommodation for his disability under Rule 1.100. The stay issued September 29, 2022 is vacated. All parties shall bear their own costs associated with this writ.
In the interest of justice, this opinion is deemed final as to this court forthwith. (
HUFFMAN, Acting P. J.
WE CONCUR:
DATO, J.
DO, J.