BEST BEST & KRIEGER LLP EXEMPT FROM FILING FEES UNDER ... · ERIC L. GARNER, Bar No. 130665 JEFFREY V. DUNN, Bar No. 131926 STEFANIE D. HEDLUND, ... Steven Orr, Bar No. 136615 355

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APPLICATION AND REQUEST UNDER CALIFORNIA RULE OF COURT 1.100

BEST BEST & KRIEGER LLPERIC L. GARNER, Bar No. 130665JEFFREY V. DUNN, Bar No. 131926STEFANIE D. HEDLUND, Bar No. 239787

5 PARK PLAZA, SUITE 1500IRVINE, CALIFORNIA 92614TELEPHONE: (949) 263-2600TELECOPIER: (949) 260-0972Attorneys for Cross-ComplainantLOS ANGELES COUNTY WATERWORKSDISTRICT NO. 40

OFFICE OF COUNTY COUNSELCOUNTY OF LOS ANGELES

ANDREA ORDIN, Bar No. 38235COUNTY COUNSELWARREN WELLEN, Bar No. 139152PRINCIPAL DEPUTY COUNTY COUNSEL

500 WEST TEMPLE STREETLOS ANGELES, CALIFORNIA 90012TELEPHONE: (213) 974-8407TELECOPIER: (213) 687-7337Attorneys for Cross-Complainant LOS ANGELESCOUNTY WATERWORKS DISTRICT NO. 40

EXEMPT FROM FILING FEESUNDER GOVERNMENT CODESECTION 6103

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES – CENTRAL DISTRICT

ANTELOPE VALLEYGROUNDWATER CASES

Included Actions:Los Angeles County Waterworks DistrictNo. 40 v. Diamond Farming Co., SuperiorCourt of California, County of LosAngeles, Case No. BC 325201;

Los Angeles County Waterworks DistrictNo. 40 v. Diamond Farming Co., SuperiorCourt of California, County of Kern, CaseNo. S-1500-CV-254-348;

Wm. Bolthouse Farms, Inc. v. City ofLancaster, Diamond Farming Co. v. City ofLancaster, Diamond Farming Co. v.Palmdale Water Dist., Superior Court ofCalifornia, County of Riverside, Case Nos.RIC 353 840, RIC 344 436, RIC 344 668

Judicial Council Coordination No. 4408

CLASS ACTION

Santa Clara Case No. 1-05-CV-049053Assigned to The Honorable Jack Komar

APPLICATION AND REQUEST UNDERCALIFORNIA RULE OF COURT 1.100AND THE AMERICANS WITHDISABILITIES ACT BY PUBLIC WATERSUPPLIERS PARTIES AND THE CITY OFLOS ANGELES, DEPARTMENT OFWATER AND POWER; DECLARATIONOF STEFANIE D. HEDLUND; ANDEXHIBITS

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ii


RICHARDS WATSON & GERSHONJames L. Markman, Bar No. 43536Steven Orr, Bar No. 136615355 S. Grand Avenue, 40th FloorLos Angeles, CA 90071-3101(213) 626-8484 (213) 626-0078 faxAttorneys for City of Palmdale

LEMIEUX & O'NEILLWayne Lemieux, Bar No. 435012393 Townsgate Road, Ste. 201Westlake Village, CA 91361(805) 495-4770 (805) 495-2787 faxAttorneys for Littlerock Creek Irrigation District andPalm Ranch Irrigation District

LAGERLOF SENECAL GOSNEY & KRUSEThomas Bunn III, Bar No. 89502301 North Lake Avenue, 10th FloorPasadena, CA 91101-4108(626) 793-9400 (626) 793-5900 faxAttorneys for Palmdale

CHARLTON WEEKS LLPBradley T. Weeks, Bar No. 1737451007 West Avenue M-14, Suite APalmdale, CA 93551(661) 265-0969 (661) 265-1650 faxAttorneys for Quartz Hill Water District

CALIFORNIA WATER SERVICE COMPANYJohn Tootle, Bar No. 1818222632 West 237th StreetTorrance, CA 90505(310) 257-1488; (310) 325-4605-fax

CITY OF LOS ANGELES, DEPARTMENT OFWATER AND POWERCarmen A. Trutanich, City AttorneyRichard M. Brown, General CounselJulie A. Riley, Bar No. 197407Deputy City AttorneyDepartment of Water and PowerPost Office Box 51111, Room 340Los Angeles, CA 90051-0100(213) 367-4513; (213) 367-4588-fax

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REQUEST AND APPLICATION

I. INTRODUCTION

The right to access the courts is a fundamental right under both state and federal law. (See

Tennessee v. Lane (2004) 541 U.S. 509; c.f. Payne v. Superior Court of Los Angeles County

(1976) 17 Cal.3d 908, 922-23 [Absent a state interest supporting the denial of access to courts,

such denial constitutes a “violation of petitioner’s rights under the due process and equal

protection clauses of both the state and federal Constitutions.”].)1

The Americans With Disabilities Act of 1990 (“ADA”),2 and California Rule of Court

1.1003 create an affirmative duty upon all California courts to provide meaningful access to

judicial services to individuals with disabilities. One of the most important functions of a state

court is providing a forum for litigants to resolve civil disputes, and individuals with disabilities

are entitled to full participation in this critical function. As discussed below, courts have a special

duty to investigate and provide accommodations for individuals with disabilities, including trial

witnesses, in order to comply with the requirements of the ADA, Unruh Civil Rights Act, and

Rule 1.100.

Unfortunately, Mr. Joseph Scalmanini, a major witness in the upcoming trial proceedings

was recently diagnosed with amyotrophic lateral sclerosis (“ALS” or “Lou Gehrig’s Disease”.)

“ALS is a progressive neurodegenerative disease that causes motor neurons in the brain and

spinal cord to die, affecting the brain’s ability to initiate and control muscle movement. ALS

eventually leads to paralysis and death.” (Kiman v. New Hampshire Department of Corrections

(1998) 451 F.3d 274, 276 fn 1.)

Time is of the essence because the disease has progressed rapidly. Mr. Scalmanini is

1 Maryann Jones, And Access for All: Accommodating Individuals with Disabilities in California Courts (1997) 32U.S.F. L. REV. 75, 103 attached hereto as Exhibit “A.”2 42 U.S.C. Section 12101 et seq.3 All further cites to “Rule” are to the California Rules of Court. Rule 1.100 was originally adopted in 1996 as Rule989.3. It was renumbered and reorganized without substantive changes effective January 1, 2007. See CaliforniaRule of Court 1.100, “Historical Note.”

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losing the ability to move, speak and breathe on his own. He is no longer physically capable of

testifying except on a limited daily schedule and only from a location near his home in Northern

California.

Rule 1.100, subdivision (a)(2), applies to any “witness” and required court

accommodations under Rule 1.100, subdivision (a) (3), include "making reasonable modifications

in policies, practices, and procedures" and "providing services at alternative sites." (Emphasis

added.) It is respectfully requested that Mr. Scalmanini testify from a location near his home in

Alamo, Contra Costa County, California. It is further requested that Mr. Scalmanini be allowed

to testify each court day from 10:30 a.m. to noon and from 1:30 p.m. to 3:00 p.m. These

accommodations allow other witnesses to testify daily in three-hour blocks of time.

Pursuant to Rule 1.100, subdivision (c), this request and application is made under seal

and must be kept confidential. No lawyer or party may disclose this information to any third

party without permission from the court. While Mr. Scalmanini’s diagnosis has been made public

in the last few days, the contents of this application should remain confidential to protect the

privacy of Mr. Scalmanini and his doctor.

II. FACTS

Mr. Scalamanini is a designated expert witness for the Phase III trial proceedings.4 He has

analyzed the Antelope Valley Groundwater Adjudication Area (“Basin”) for more than 9 years

including its safe yield and overdraft. In these coordinated proceedings, he is widely considered

to be a major witness – if not the major witness – on the safe yield of the Basin and whether it is

in overdraft.5

Mr. Scalmanini was recently diagnosed with ALS. (Scalmanini Decl., ¶ 1.)6 ALS, also

4 Mr. Scalmanini is retained by attorneys of record for County of Los Angeles Waterworks District No. 40, PalmdaleWater District, California Water Service Company and Quartz Hill Water District. This application is filed by theseattorneys in behalf of Mr. Scalmanini.5 In the Justice Robie mediation process, he was designated by all parties as the architect of a proposed physicalsolution for the Basin after the court determines the Basin’s safe yield.6 A copy of the declaration of Mr. Scalmanini is attached hereto as Exhibit “B.”

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known as Lou Gehrig's disease, is a motor neuron disease that results in muscle weakness leading

to a wide range of serious disabilities, including problems with mobility and speaking. It affects

the muscles that control swallowing, leading to the possibility of aspiration and pneumonia.

(Scalmanini, Decl., ¶ 2)

ALS does not affect a person's mental capability and Mr. Scalmanini is mentally

competent to provide testimony in this matter. (Scalmanini, Decl., ¶ 3.)

ALS is unquestionably a permanent physical impairment that has seriously and

substantially limited Mr. Scalmanini in the following major life activities: speaking, breathing,

walking and movement including performing manual tasks. (Scalmanini Decl., ¶ 4) He should

not travel to Los Angeles to testify in court proceedings but can testify at a location near his

home. (Scalmanini Decl., ¶ 5) His testimony should be limited each day to no longer than 3

hours. Moreover, his testimony should begin at 10:30 a.m. and continue until noon, and then

resume at 1:30 p.m. and conclude at 3:00 p.m. (Scalmanini Decl., ¶ 6)

III. THE AMERICANS WITH DISABILITIES ACT AND RULE 1.100 REQUIRE

CALIFORNIA TRIAL COURTS TO ACCOMMODATE A DISABLED

WITNESS’S NEEDS FOR TRIAL SCHEDULE AND LOCATION

ACCOMMODATIONS

Once the trial court receives a Rule 1.100 application and request, the trial court must

consider the ADA, and any other applicable state and federal laws in determining whether to

provide the accommodation or an alternative accommodation. (Rule 1.100(e).) The ADA is

explained below with the requirements of Rule 1.100.

A. The Americans With Disabilities Act of 1990 Was Created In Order To

Eliminate Discrimination Against Individuals With Disabilities.

The ADA was enacted in order to “provide a …national mandate for the elimination of

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discrimination against individuals with disabilities.” (42 U.S.C. § 12101(b)(1).) Congress found

that, historically, Americans with disabilities had been discriminated against in many critical

areas, including access to public services, and were thus effectively denied equality of

opportunity and full participation in American life. (Id. at §§ (1) (3), and (8).) Faced with this

evidence and “[i]nvoking ‘the sweep of congressional authority,” Congress wrote the ADA to

eliminate discrimination against individuals with disabilities including allowing disabled persons

participation in state court proceedings. (Lane, at 517; 42 U.S.C. § 12101(b)(1).)7

1. The ADA is Applicable to California Judicial Proceedings.

Title II of the ADA prohibits discrimination against persons with disabilities in the

administration of public services. (Black v. Dep’t of Mental Health (2000) 83 Cal.App.4th 739,

745-746.) It mandates that “no qualified individual with a disability shall, by reason of such

disability, be excluded from participation in or be denied the benefits of the services, programs, or

activities of a public entity….” (Id. citing 42 U.S.C. § 12132.) A “qualified individual” is a

person with a disability who, “with or without reasonable modifications to rules, policies, or

practices…meets the essential eligibility requirements for the receipt of services or the

participation in programs or activities provided by a public entity.” (42 U.S.C. § 12131(2).)

A “public entity” includes state and local governments including California’s courts. (42

U.S.C. § 12131(1)(B); Lane, 541 U.S. at 532.) The ADA is designed to ensure that people with

disabilities are protected from discrimination in their access to and use of public services,

including their right to participate in court proceedings. (Lane, 541 U.S. at 530.) Additionally,

Title II of the ADA unequivocally “applies to the class of cases implicating the accessibility of

judicial services.” (Id. at 532.) Title II’s requirement of court program accessibility is

“congruent and proportional to its object of enforcing the right of access to the courts.” (Id.)

In Tennessee v. Lane, supra, the Supreme Court noted the history of discrimination

7 Jones, And Access for All: Accommodating Individuals with Disabilities in California Courts, supra, 32 U.S.F. L.REV. at 103 quoting Siefken v. Village of Arlington Heights (7th Cir. 1995) 65 F.3d 664, 666.

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against people with disabilities in the provision of public services, including a “pattern of

unconstitutional treatment in the administration of justice.” (541 U.S. at 524-257 [An appointed

Congressional task force “heard numerous examples of the exclusion of persons with disabilities

from state judicial services and programs, including exclusion of persons with visual impairments

and hearing impairments from jury service, failure of state and local governments to provide

interpretive services for the hearing impaired, failure to permit the testimony of adults with

development disabilities in abuse cases, and failure to make courtrooms accessible to witnesses

with physical disabilities.”])

The Supreme Court found that the ADA’s Title II “duty to accommodate” was “perfectly

consistent with the well-established due process principle that, ‘within the limits of practicability,

a State must afford to all individuals a meaningful opportunity to be heard’ in its courts.” (Lane,

541 U.S. at 533 [quoting Boddie v. Conn. (1971) 401 U.S. 371, 379].) Additionally, the Court

stated other duties including “the duty to waive filing fees in certain family-law and criminal

cases, the duty to provide transcripts to criminal defendants seeking review of their convictions,

and the duty to provide counsel to certain criminal defendants.” (Lane, 541 U.S. at 532-533.)

The ADA further requires that, when necessary to ensure meaningful access, a public

entity must make reasonable modifications to its services, programs or activities. (Alexander v.

Choate (1985) 469 U.S. 287, 302.)8 “Reasonable modifications” are those which do not impose

an “undue financial or administrative burden” upon the public entity or “effect a fundamental

alteration in the nature of the service.” (Lane, 541 U.S. at 531-32.)

2. Reasonable Accommodations Must Be Provided To Disabled Individuals

When Necessary To Ensure Meaningful Participation In Court

Proceedings.

A public service or benefit cannot be offered in a way that denies individuals with

8 Alexander concerned a state’s obligations under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Section701 et seq., which was enacted prior to the ADA. The Rehabilitation Act provides the same protections as the ADA,and case law interpreting the Rehabilitation Act is applicable to the ADA in interpretation and application. (Lee v.City of Los Angeles, supra, 250 F.3d at 692; Black v. Dep’t of Mental Health, supra, 83 Cal.App.4th at 750.)

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disabilities the meaningful participation and access to which they are entitled. (Alexander v.

Choate, 469 U.S. at 302.) If a public entity denies a “qualified individual with a disability”

meaningful participation in its services, programs, or activities because of his or her disability,

that individual may have an ADA claim against the public entity. (Lee v. City of Los Angeles (9th

Cir. 2001) 250 F.3d 668, 692.) The ADA requires reasonable accommodations and covers not

only those policies and procedures that intentionally exclude those with disabilities, but also

“facially neutral barriers” that work to discriminate against these individuals.” (Crowder v.

Kitagawa (9th Cir. 1996) 81 F.3d 1480, 1483.)

In other words, meaningful access and participation mean making reasonable

modifications, when necessary, in court services. (See Lane, 541 U.S. at 533.) The only

modifications that are reasonable under the ADA are those that would not fundamentally alter the

nature of the service provided or impose an undue burden on the public entity. (42 U.S.C. §

12112(b)(5)(A); Lane, 541 U.S. at 533.)

The U.S. Department of Justice regulations implementing the ADA emphasize the duty to

provide reasonable accommodations and a public entity’s duty to take proactive measures to

ensure full compliance with the law. (Black v. Dep’t of Mental Health, 83 Cal.App.4th at 749-

750.) For example, if a public entity finds that the requested accommodation would clearly result

in a fundamental alteration or undue burden, the entity “shall still take any other action that would

not result in such an alteration or such burdens but would nevertheless ensure that, to the

maximum extent possible, individuals with disabilities receive the benefits or services provided by

the public entity.” (28 C.F.R. § 35.164 [emphasis added].)

A court is not allowed to take no action; it must provide accommodation to individuals

with disabilities in order to allow them meaningful access to he programs, services, or activities.

Furthermore, in determining what type of service is necessary, “a public entity shall give primary

consideration to the requests of the individual with disabilities.” (28 C.F.R. § 35.160(2)

[emphasis added].) This requirement means the court must engage in an “interactive process”

with the disabled individual to identify alternatives if the requested accommodation is denied.

(See, e.g., Vinson v. Thomas (9th Cir. 2002) 288 F.3d 1145, 1154) [discussing the requirement to

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engage in the interactive process in Rehabilitation Act cases].) Indeed, in the employment

context, it is well established under California law that failure to engage in the interactive process

is itself a violation of the law. (See Gov. Code § 12940(n); Wysinger v. Automobile Club of So.

Calif. (2007) 157 Cal.App.4th 413; Claudio v. Regents of University of Calif. (2005) 134

Cal.App.4th 224, 242-244.)

In summary, there is a duty to avoid discrimination and accommodate disabled individuals

so that they may participate in court services. The duty is consistent with the well-established

principle that each state must afford to all individuals a meaningful opportunity to be heard in its

courts. (Lane, 541 U.S. at 533 [citing Boddie, 401 U.S. at 379.]) The “ordinary considerations of

cost and convenience alone cannot justify a state’s failure to provide individuals with meaningful

right of access to the courts.” (Lane, 541 U.S. at 534.) Those with disabilities are entitled to the

benefits, services, and activities that the courts offer, even if that means that reasonable

accommodations will have to be made at additional costs.

B. California Rule of Court 1.100 Provides Procedures For Implementing The

ADA In California Courts

Rule 1.100, subdivision (a)(2), applies to any “witness” and required court


in policies, practices, and procedures" and "providing services at alternative sites."9

1. Rule 1.100 Requires Courts To Allow Disabled Individuals Meaningful

Participation In Court Proceedings.

Article VI, Section 6 of the California Constitution gives the Judicial Council the

authority “to adopt rules of court administration, practice and procedure, and perform other

9 See Judicial Council of California, Public Hearings Report: Access for persons with Disabilities (Feb. 1996),available at http://www.courtinfo.ca.gov/programs/access/documents/dis_hear.pdf.9 Id. at 2-1.

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functions prescribed by statute.” Rules adopted by the Judicial Council have the force of law.

(Brooks v. Union Trust & Realty Co. (1905) 146 Cal.134, 138.) California Rule of Court 1.100

provides procedures for disabled persons who seek to participate in court activities, programs, or

services to request accommodations. The California Court’s Access and Fairness Advisory

Committee proposed the Rule, which the Judicial Council adopted effective January 1, 1996.10

Rule 989.3 and its successor Rule 1.100 were enacted “to help implement the Americans

with Disabilities Act, which requires public entities, including the courts, to make reasonable

modifications in policies, practices, or procedures to avoid discrimination against persons with

disabilities.” (See Rule 989.3 (1996) Drafter’s Notes.) Under both Rules, strict compliance with

the ADA also requires that public entities ensure that “equally effective communication exists

between the entity and persons with disabilities as between the entity and persons without

disabilities.”

2. Rule 1.100 Allows Disabled Individuals To Request And Receive

Accommodations To Be Able To Have Meaningful Participation In Court

Proceedings.

Rule 1.100 is to remove existing physical and program barriers that would impede

disabled individuals from having full, equal, and meaningful access to the courts and addressing

common concerns highlighted by persons with disabilities. Both the adoption of Rule 1.100 and

the Advisory Committee’s comprehensive report “were major steps in implementing the ADA in

California courts” and “evidence a commitment on the part of the Judicial Council to bring the

California courts into compliance with the letter and the spirit of the ADA.”11 Rule 1.100

“level[s] the playing field” for persons with disabilities seeking access to courts.12

10 The Judicial Council Access and Fairness Advisory Committee was appointed in March 1994 pursuant toGovernment Code Section 68501 “to review and make recommendations about fairness issues in the courts related torace, ethnicity, gender, persons with disabilities, and sexual orientation.” Background Information, Access andFairness Committee, California Courts (2008), available at http://www.courtinfo.ca.gov/programs/access/about.htm.11 Jones, supra, at 76.12 Id. See also Siefken, 65 F.3d at 666.

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Rule 1.100 applies to requests made by “persons with disabilities,” who are defined as

“individuals covered by California Civil Code section 51 et seq. [the Unruh Civil Rights Act], the

Americans With Disabilities Act of 1990 (42 U.S.C. Section 12101 et seq.) or other applicable

state and federal laws.” It “includes persons who have a physical or mental impairment that

limits one or more of the major life activities, have a record of such an impairment, or are

regarded as having such an impairment.” (Rule 1.100(a)(1).) Requests under Rule 1.100 can be

made not only by litigants but by “any lawyer, party, witness, juror, or other person with an

interest in attending any proceeding before any court of this state.” (Rule 1.100(a) (2).)

3. Rule 1.100 Defines “Accommodations” as “Actions That Result In Court

Services, Programs, or Activities Being Readily Accessible To And

Useable By Persons With Disabilities” Including a “Witness.”

“Accommodations” are defined as “actions that result in court services, programs, or

activities being readily accessible to and useable by persons with disabilities” including

witnesses, and may include “making reasonable modifications in policies, practices, and

procedures.” (Rule 1.100(a) (3).) The erroneous suggestion by some parties that Mr.

Scalmanini’s deposition be taken is not a reasonable accommodation because it would not allow

him to participate as a witness in the trial.

4. Rule 1.100 Allows A Disabled Individual To Make An Ex Parte Request

For Meaningful Participation In Court Proceedings.

A person with a disability can request a reasonable accommodation ex parte on a form

approved by the Judicial Council, in another written format, or orally. (Rule 1.100(c)(1).) Each

superior and appellate court must designate an ADA coordinator and each request must be

forwarded to this individual. (Rule 1.100(b) & (c)(1).) The request must include “a description

of the accommodation sought, along with a statement of the impairment that necessitates the

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accommodation.” (Rule 1.100(c)(2).) Apart from these requirements, Rule 1.100 does not

require any particular showing.13 The court has discretion to require the person to provide

additional information about the impairment. (Rule 1. 100(c)(2).)

Although the request should be made “as far in advance as possible” and “no fewer than 5

court days before the requested implementation date,” the court has discretion to waive the time

requirement. (Rule 1.100(c)(3).) The court must also keep the information confidential. (Rule

1.100(c)(4).) Communications under this Rule must address only the accommodation requested

by the applicant and must not address, in any manner, the subject matter or merits of the

proceedings before the court. (Rule 1.100(d).)

5. Rule 1.100 Requires The Trial Court To Fully And Timely Consider

Requests For Accommodations.

The Rule does not require an evidentiary hearing.14 A court would violate the Rule if the

court were to ignore or summarily deny requested accommodations.15 The court must timely

inform the applicant in writing whether it will grant or deny the accommodation, the nature of the

accommodation to be provided, and the duration of the accommodation provided. (Rule

1.100(e)(2).)

Only three grounds exist for the court to deny the accommodation request. First, the court

may deny the request if the applicant “failed to satisfy the requirements” of the Rule. (Rule

1.100(f)(1).) Second, the court can deny the accommodation if it would “create an undue

financial or administrative burden on the court.” (Rule 1.100(f)(2).) Third, the court can deny

the accommodation if it would “fundamentally alter the nature of the service, program, or

activity.” (Rule 1.100(f)(3).) If an applicant’s request for accommodation is denied immediate

13 See Judicial Council of California (2007) Questions and Answers About Rule of Court 1.100 for Court Personnel,available at http://www.courtinfo.ca.gov/programs/access/documents/q&al.pdf [hereinafter “Q&A for CourtPersonnel”].14 See Judicial council of California, Questions and Answers About Rule of Court 1.100 for Court Users (2007),available at http://www.courtinfo.ca.gov/programs/access/documents/accfair.pdf [hereinafter “Q&A for CourtUsers”].15 See Q&A for Court Personnel, supra.

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appellate review may be sought. (Rule 1.100(g)(2); In re Marriage of James M.C. and Christine

J.C. (2008) 158 Cal.App.4th 1261, 1276.)

C. Rule 1.100 And The ADA Impose An Affirmative Duty On The Court To

Investigate The Existence Of A Disability And Provide Reasonable

Accommodations Once An Applicant Files A Rule 1.100 Request.

1. The ADA Imposes An Affirmative Duty On Courts To Provide Reasonable

Accommodations.

As discussed above, courts have an affirmative duty under the ADA to provide

meaningful access to courts and court services to individuals with disabilities. The ADA’s “duty

to accommodate” requires that “within the limits of practicability, a state must afford to all

individuals a meaningful opportunity to be heard in its courts.” (Lane, 541 U.S. at 532.)

The court’s affirmative obligation to provide meaningful participation places some burden

on the court to investigate both the existence of a disability and the reasonableness of the

requested accommodation. Moreover, the ADA requires an individualized assessment of the

existence of a disability and the reasonableness of the accommodation. (See PGA Tour, Inc. v.

Martin (2001) 532 U.S. 661, 668 [“an individualized inquiry must be made to determine whether

a specific modification for a particular person’s disability would be reasonable under the

circumstances as well as necessary for that person, and yet at the same time not work a

fundamental alteration.”])

2. Rule 1.100 Requires The Court To Conduct An Individualized Assessment

Of The Request For An Accommodation.

Rule 1.100 establishes a procedure to determine whether the individual has a disability

and whether the request for a reasonable accommodation should be granted. Once an applicant

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files a Rule 1.100 request, the court has an affirmative duty to investigate the existence of a

disability and grant a reasonable accommodation unless the requested accommodation falls within

one of the exceptions under Rule 1.100(f). (C.f. In re Marriage of James and Christine C., supra,

158 Cal.App.4th at 1276 [reversing and remanding after the trial judge failed to make a

determination required under Rule 1.100(f).])

Rule 1.100 does not require any particular showing of proof; an applicant needs only to

demonstrate that he or she has a disability or that the particular accommodation is reasonable

given the circumstances. Once an applicant has given “a description of the accommodation

sought, along with a statement of the impairment that necessitates the accommodation,” the court

must evaluate the request. (Rule 1.100(c)(2).) If the court fails to determine whether the

applicant actually has a disability, it fails to adhere to the requirements of Rule 1.100 and the

ADA.16

As discussed above, in order to provide meaningful participation and access to services,

programs, and activities as mandated by the ADA and Rule 1.100, public entities, including

courts, are required to provide reasonable accommodations to qualified individuals with

disabilities. Nowhere is this more important than in the area of access to justice. The reasonable

accommodations that are required will be as varied as the individuals with disabilities themselves.

Each determination about whether a person has a disability and what accommodations are

reasonable and necessary must be made on an individual basis. (Real v. City of Compton (1999)

73 Cal. App. 4th 1407, 1423 quoting Sutton v. United Air Lines, 527 U.S. 471, 486 ["[The]

determination [whether a person is disabled and what accommodation should be provided] must

be made on an individual basis."])

3. There Are Limited Grounds For Denying A Request Under Rule 1.100.

In In re Marriage of James and Christine C., supra, the Court of Appeal reiterated that

16 See also Q&A for Court Personnel, supra (“It is a violation of the rule to ignore or to summarily deny requests foraccommodation.”)

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courts may only deny requests for accommodations based on the three grounds set forth in Rule

1.100, subdivision (f): "A request for accommodation may be denied only when the court

determines that: (1) The applicant has failed to satisfy the requirements of this rule; (2) The

requested accommodation 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." (Rule 1.100(f).) If a court does not, or cannot, make any of the three

determinations, then the court "[has] no choice but to grant [the] request for an accommodation."

(In re Marriage of James and Christine C., supra, at 158 Cal.App.4th at 1274-1275.) Moreover,

if the court denies the request, it must provide an adequate justification for its denial. (158

Cal.App.4th at 1273-1275.)

IV. TEMPORARY USE OF ANOTHER LOCATION FOR MR. SCALMANINI’S

TESTIMONY IS CONSISTENT WITH THE AMERICANS WITH DISABILITIES

ACT AND RULE 1.100.

A. The State Judicial Council Has Issued An Order Allowing Judge Komar To

Hold Proceedings In Any Location Or Locations He Deems Appropriate.

Use of a courtroom or other location near Mr. Scalmanini’s home would not

fundamentally alter the nature of the judicial proceedings because the Judicial Council has

approved and ordered that Judge Komar may conduct the proceedings in these coordinated

proceedings in any location or locations he deems appropriate: “THE HONORABLE JACK

KOMAR of the Superior Court of California, County of Santa Clara, is hereby assigned pursuant

to Code of Civil Procedure section 404.3 and rule 1450 of the California Rules of Court to sit as

coordination trial judge to hear and determine the coordinated actions listed below, at the site or

sites he finds appropriate.” (Judicial Council Of California, Amended Order Assigning

Coordination Trial Judge, Judicial Council Coordination Proceeding No. 4408, dated August 31,

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2005 [emphasis added].)17

B. Temporary Use Of A Northern California Courtroom Or Other Location

Will Not Be An Undue Burden On The Court System.

The court has conducted court hearings in San Jose and has offered to hold the Phase III

trial proceedings in San Jose. Thus, the requested courtroom location accommodation for Mr.

Scalmanini’s testimony should not be denied because it would not fundamentally alter the nature

of the proceedings nor would it create an undue financial or administrative burden on the court.

Indeed, Rule 1.100, subdivision (a)(2), applies to any “witness” and required court


in policies, practices, and procedures" and "providing services at alternative sites." (Emphasis

added.)

The decision that a reasonable modification would result in an undue burden is to be made

by the court "after considering all resources available for use in the funding and operation of the

service, program, or activity." (28 C.F.R. § 35.150(a) (3).) The court is not only to consider the

funds available for a particular court service, but is required to look at court funding as a whole.

(Id.; Olmstead v. L.C. Zimring (1999) 527 U.S. 581, 607 [In determining whether an

accommodation is reasonable, states should take into account the resources available to them and

the needs of others with disabilities.])

In summary, the court cannot deny the requested accommodations due to some broad

arguments that they would be too costly, but must detail exactly why the court believes the

requested accommodations would be unduly burdensome. Even though there are obvious costs

associated with providing the temporary location accommodations for Mr. Scalmanini, Congress,

California Legislature and the State Judicial Council each determined that the requested

accommodations can only be denied when their costs become an undue financial or

administrative burden for the court. (See U.S. v. Cal. Mobile Home Park Mgmt. Co. (9th Cir.

17 A true and correct copy of the Order is attached hereto as Exhibit “C.”

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1994) 29 F.3d 1413, 1417 [In enacting the ADA accommodation requirements, Congress "clearly

contemplated some financial burden resulting from the accommodation[s]” that make services

and activities accessible to individuals with disabilities.])

Clearly, the temporary location accommodation is not an undue financial burden or

administrative burden for the court because the Judicial Council has already authorized courtroom

proceedings at the site or sites [Judge Komar] finds appropriate.” (Emphasis added.)

V. THE REQUESTED TESTIMONY SCHEDULE ACCOMMODATION FOR MR.

SCALMANINI’S TESTIMONY IS CONSISTENT WITH THE AMERICANS

WITH DISABILITIES ACT AND RULE 1.100.

A. The State Judicial Council Has Issued An Order Appointing Judge Komar As

The Coordination Judge In These Complex Civil Litigation Proceedings.

In complex coordinated proceedings, the court has the authority to exercise its discretion

as to the manner of the presentation of evidence including scheduling of witnesses’ testimony.

(E.g., Tide Water Associated Oil Co. v. Superior Court (1955) 43. Cal.3d 815, 825 [“Courts have

inherent power, as well as power under section 187 of the Code of Civil Procedure, to adopt any

suitable method of practice. . . .]). Here, it is not only proper but necessary under Rule 1.100 and

the ADA for the court to allow the requested schedule and location accommodations.

B. Mr. Scalmanini’s Disability Prevents Him From Testifying For An Entire

Day Of Trial In Los Angeles

There can be no reasonable dispute that ALS seriously weakens and impairs a person's

mobility. Mr. Scalmanini has trouble performing manual tasks and it is necessary for him to be

near his home where his family can provide help performing manual tasks. Mr. Scalmanini's

ability to walk is also impaired. Although Mr. Scalmanini still has limited mobility, walking,

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talking and testifying is physically exhausting.

Finally, and most importantly, Mr. Scalmanini's breathing is substantially impaired. As is

common with ALS, Mr. Scalmanini has difficulty breathing, especially after speaking for an

extended period of time. He needs assisted-breathing treatments nightly; the assisted breathing

equipment is large and not portable. Additionally, Mr. Scalmanini needs assistance to operate the

breathing equipment.

For these reasons, Mr. Scalmanini needs to be near his home and where he has help to

administer the breathing treatments. He cannot travel to Los Angeles to testify and his testimony

needs to be limited to no more than 3 hours each day with the schedule requested herein.

VI. THE ACCOMMODATIONS ARE REASONABLE AND WILL NOT UNDULY

BURDEN THE COURT

A. Courts Use Videoconference Technology And It Is Available For The Trial

Proceedings.

The Los Angeles County Superior Court has videoconferencing technology available for

these trial proceedings. Walnut Creek has the nearest courtroom to Mr. Scalmanini’s home.

(Hedlund Decl., ¶ 2.) The videoconference equipment in the Los Angeles County Superior Court

has been tested with videoconference equipment in the Walnut Creek office of Best Best and

Krieger LLP, and arrangements have been made to provide testimony in this manner. (Hedlund

Decl., ¶ 3.) Los Angeles County Waterworks respectfully requests that the court make

reasonable accommodations to allow Mr. Scalmanini to testify via videoconferencing from

Walnut Creek or the Santa Clara Superior Court. Los Angeles County Waterworks has agreed to

pay in full (and already has) for the videoconferencing charges imposed by the Los Angeles

County Superior Court. (Hedlund Decl., ¶ 4.)

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B. The Requested Accommodations Allow All Parties To Conduct Direct Or

Cross-Examination.

It is important to note that, by granting the requested accommodations herein, all parties

will be able to examine Mr. Scalmanini, including both direct and cross-examination. Los

Angeles County Waterworks District No. 40 has provided computer equipment that will allow all

parties to examine Mr. Scalmanini as if he were present in the courtroom. (Hedlund Decl., ¶ 5.)

For example, a party in Los Angeles will have the ability to show exhibits to Mr. Scalmanini

during his examination. (Hedlund Decl., ¶ 5.) Additionally, a document scanner has been

purchased to allow parties to convert an exhibit into electronic form and display it in the

courtroom and before Mr. Scalmanini in the Northern California location. (Hedlund Decl., ¶ 6.)

C. Although Rule 1.100 Concerns Undue Burden Upon The Court, The

Requested Accommodations Do Not Place An Undue Burden Upon All

Parties.

The few parties objecting to Mr. Scalmanini testifying from a location near his home,

have nonetheless asked to take his videotaped deposition near his home, and do so on the same

time schedule as herein requested for Mr. Scalmanini’s trial testimony. Obviously, there would

be no undue burden for those objecting parties to have Mr. Scalmanini testify in a courtroom or

location in Northern California as he would testify in the same location and on the same days and

schedule as proposed for his videotaped deposition. Additionally, the use of videoconference

technology allows a party to participate either in Los Angeles or in Northern California during

Mr. Scalmanini’s trial testimony.

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D. Videotaped Deposition Testimony Will Create An Undue Burden And

Expense For The Court And The Parties, And Would Violate Mr.

Scalmanini’s Rights Under The ADA And Rule 1.100

The videotaped deposition testimony of Mr. Scalmanini would violate the ADA and Rule

1.100 because he would not participate in the trial proceedings due to his serious disability.

There would be no opportunity for the court itself to ask questions of Mr. Scalmanini. There

would be no protection and benefit from having a trial court judge available to immediately rule

upon questions and objections. There would be no opportunity to modify questions or adjust the

presentation of evidence based upon rulings by the court during the trial.

Moreover, there would be inevitable undue burden and significant additional cost to the

parties by first having to undertake a lengthy videotaped deposition of Mr. Scalmanini in

Northern California and then replay the videotaped deposition in court but with interruptions for

trial court rulings for objections, etc. Certainly, all parties would incur less expense and save

more time in allowing Mr. Scalmanini to testify as requested herein compared with a certainly

longer videotaped deposition followed by an even longer replay of the videotaped deposition

testimony during the trial.

Finally, videotaped deposition testimony would patently discriminate against Mr.

Scalmanini because it would treat him as a “second class” person unable to testify in court

because of his serious physical impairments. This type of discrimination violates both the ADA

and Rule 1.100 while the requested accommodations herein eliminate this discrimination.

///

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VII. CONCLUSION

For the reasons herein, it is respectfully requested that the application and requested

accommodations be granted and that the court provide the accommodations as requested as soon

as possible together with any other appropriate accommodations as determined by the court.

Dated: January 3, 2011 BEST BEST & KRIEGER LLP

By: /s/ Original SignedERIC L. GARNERJEFFREY V. DUNNSTEFANIE D. HEDLUNDAttorneys for Cross-ComplainantLOS ANGELES COUNTYWATERWORKS DISTRICT NO. 40

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DECLARATION OF STEFANIE HEDLUND

I, Stefanie D. Hedlund, declare:

1. I am an associate of the law firm of Best, Best & Krieger LLP, counsel for cross-

defendant, Los Angeles County Waterworks District No. 40. I have personal knowledge of the

facts stated herein and if called upon to do so, I could and would competently testify to these

facts.

2. I have spoken with the IT department at the Los Angeles Superior Court and

videoconferencing technology is available. Walnut Creek has the nearest courtroom to Mr.

Scalmanini’s home.

3. At my direction, the Best Best and Krieger IT department tested the videoconfence

equipment and connectivity between the Los Angeles Superior Court and Best Best and Krieger’s

Walnut Creek office. With the use of a bridging company to improve the quality of the

connection, the videoconferencing test was successful.

4. Los Angeles County Waterworks has agreed to pay in full (and already has) for the

videoconferencing charges imposed by the Los Angeles County Superior Court.

5. The Webex program is available to allow Mr. Scalmanini to view documents that

are projected in the court room.

6. Best Best and Krieger has purchased a portable scanner that will be available for

all counsel to use. This will allow opposing counsel to scan a document in the court room and

display it using Webex.

I declare under penalty of perjury under the laws of the State of California that the above

is true and correct. Executed this 3rd day of January, 2011, at Truckee, California.

/s/ Original SignedStefanie D. Hedlund

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- 1 -

PROOF OF SERVICE

PROOF OF SERVICE

I, Stefanie D. Hedlund, declare:

I am a resident of the State of California and over the age of eighteen years, andnot a party to the within action; my business address is Best Best & Krieger LLP, 400 CapitolMall, Suite 1650, Sacramento, California 95814. On January 3, 2011, I served the withindocument(s):

APPLICATION AND REQUEST UNDER CALIFORNIA RULE OF COURT 1.100AND THE AMERICANS WITH DISABILITIES ACT BY PUBLIC WATERSUPPLIERS PARTIES AND THE CITY OF LOS ANGELES, DEPARTMENT OFWATER AND POWER; DECLARATION OF STEFANIE D. HEDLUND; ANDEXHIBITS

by posting the document(s) listed above to the Santa Clara County Superior Courtwebsite in regard to the Antelope Valley Groundwater matter.

by placing the document(s) listed above in a sealed envelope with postage thereonfully prepaid, in the United States mail at Irvine, California addressed as set forthbelow.

by causing personal delivery by ASAP Corporate Services of the document(s)listed above to the person(s) at the address(es) set forth below.

by personally delivering the document(s) listed above to the person(s) at theaddress(es) set forth below.

I caused such envelope to be delivered via overnight delivery addressed asindicated on the attached service list. Such envelope was deposited for deliveryby Federal Express following the firm’s ordinary business practices.

I am readily familiar with the firm's practice of collection and processingcorrespondence for mailing. Under that practice it would be deposited with the U.S. PostalService on that same day with postage thereon fully prepaid in the ordinary course of business. Iam aware that on motion of the party served, service is presumed invalid if postal cancellationdate or postage meter date is more than one day after date of deposit for mailing in affidavit.

I declare under penalty of perjury under the laws of the State of California that theabove is true and correct.

Executed on January 3, 2011, at Truckee, California.

/s/ Original Signed

Stefanie Hedlund

Documents

BEST BEST & KRIEGER LLP EXEMPT FROM FILING FEES UNDER ... · ERIC L. GARNER, Bar No. 130665 JEFFREY V. DUNN, Bar No. 131926 STEFANIE D. HEDLUND, ... Steven Orr, Bar No. 136615 355