The WCAB has in held recent cases regarding an applicant’s claim for accommodation under the ADA that even if the accommodation affects defendant’s rights, such as if the applicant requests a continuance, the defendants are not allowed to take part in the interactive process and cannot have access to the medical information. In this published case of the Court of Appeals concluded that other side is a person involved in the accommodation process. Therefore they have the right to notice, to review the document on which the real party in interest relies and an opportunity to be heard. The court issued a preemptory writ of mandate.
Vesco v. Superior Court of Ventura (Newcomb) (Court of Appeal Published) 221 Cal. App. 4th 275:
Newcomb made and ADA accommodation request for a continuance in a case set for trial involving a domestic dispute between Vesco and Newcomb.
California Rules of Court allows persons with disabilities to apply for accommodations to ensure they have full and equal access to the courts. The rules prohibit disclosure of applicant’s confidential information to persons other than those involved in the accommodation process.
The trial court granted a motion for continuance. The petitioner received no prior notice and the court denied petitioner’s request to review the medical documents on which Newcomb relied to obtain a continuance.
Vesco petitioned for writ of mandate for an order that the trial court allow him access to all materials relied on to grant the trial continuance. This request was summarily denied.
Vesco contends the trial court erred in granting Newcomb’s continuance without first allowing him the opportunity to review the documents on which she relies and the opportunity to be heard. Vesco claims he is prejudiced by the continuances.
The Rules of Court allow persons with disabilities covered by the ADA accommodations to ensure full and equal access to the judicial system. The application may be made ex parte. Under the appropriate circumstances the accommodation may be a trial continuance.
The rules further provide that the identity and confidential information may not be disclosed to the public or persons other than those involved in the accommodation process.
The question presented here 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.
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 the party relies and an opportunity to be heard. Otherwise, the challenge is in name only. The fact application may be made ex parte does not dispense with the requirement of notice.
Vesco has the right to have his trial as soon as circumstances permit. It follows that he may challenge Newcombs request for a continuance. He therefore must be given notice, an opportunity to be heard and an opportunity to view the medical records and other materials on which Newcomb relies. Of course, the trial court must protect Newcomb’s privacy as far as practical. For example, it may hold the hearing in camera, order Vesco and his counsel may not disclose the contents of the medical records, seal the record of the proceedings, and take other steps it deems appropriate to accomplish this goal.
The petition was granted vacating the order and allowing petitioner notice and an opportunity to be heard.