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Biscaro v. Stern

January 28, 2010

DANIELA BISCARO, PLAINTIFF AND RESPONDENT,
v.
MARC GREGORY STERN, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Los Angeles County. Maren E. Nelson, Commissioner; Robert A. Schneider, Judge; and Michael L. Convey, Judge. Reversed and remanded. (Los Angeles County Super. Ct. No. BD428155).

The opinion of the court was delivered by: Rubin, Acting P. J.

Filed 1/28/10; prior opn. vacated by order filed 1/28/10

CERTIFIED FOR PUBLICATION

Following the trial court's failure to rule on his request for accommodation of his disabilities, Marc Stern appeals from issuance of a restraining order against him and from a default judgment awarding a condominium to his former wife as her separate property. We reverse and remand for further proceedings.

PROCEEDINGS

Marc Stern and respondent Daniela Biscaro married in 1998. Their marriage produced no children. In June 2005, respondent filed a petition for dissolution. Appellant did not file a response. In May 2006, the court entered appellant's default.

On September 14, 2007, respondent filed an ex parte application for a temporary restraining order against appellant arising from a fight a month earlier between appellant and respondent's adult son. Appearing at the hearing in order to oppose a restraining order, appellant requested courtroom accommodation of his neuropsychiatric disabilities that interfered with his ability to communicate and remember. He gave the court a copy of a written request for accommodation that he had filed with court administrators in another proceeding. The court incorporated appellant's written request into the court's files. The court denied respondent's ex parte application, apparently because of the length of time respondent had waited to seek a restraining order after the fight between appellant and respondent's son. The court instead set a regularly noticed hearing for October 5 on respondent's motion. The court promised appellant it would rule on his request for accommodation of his disabilities before the next hearing and that he would receive the ruling in the mail. The record on appeal does not show any such ruling issued.

Appellant did not appear three weeks later at the October 5 hearing on the restraining order, which was before a judge different from the bench officer who had promised to rule on appellant's request for accommodation. Noting appellant's request, the judge presiding at the October 5 hearing stated:

"The file indicates a request for accommodation by [appellant] under the Americans with Disability Act. Therefore, I've waited until 10:05 for a matter noticed at 8:30. [Appellant] has not appeared. I will proceed based on [respondent's] declaration."

The court granted respondent's motion for a restraining order. It directed appellant to stay at least 100 yards from respondent, her home and work, and her adult son.

On December 10, 2007, appellant filed a motion for reconsideration and modification of the restraining order. In support of his motion, appellant noted he had requested at the September 14 hearing accommodation of his neurological disabilities caused by multiple traumatic injuries to his brain's frontal lobes that hindered his ability to remember, reason, and communicate. He had asked for a neuropsychologist's assistance in the courtroom, but the court did not rule on his request. He argued the lack of assistance meant he could not meaningfully participate in the proceedings to protect his interests. Respondent opposed the motion for reconsideration, arguing it was untimely.

Appellant was not present when the motion for reconsideration was heard. The court denied appellant's motion in a hearing lasting one half of one page of the reporter's transcript. After respondent's counsel introduced herself, the following was the hearing's entirety:

"[Respondent's Counsel]: I received a voice mail from my client approximately 9:20 that her tires have been ...


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