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Manela v. Superior Court
California Court of Appeal
177 Cal. App. 4th 1139, 99 Cal. Rptr. 3d 736 (2009)
David Manela (plaintiff) and Mira Manela (defendant) married and had a child, Jacob, who was four years old when David filed for divorce. Mira sought sole custody of Jacob, alleging that David had a seizure disorder that would endanger Jacob. According to Mira, David regularly had seizures lasting between 45 seconds and two and a half minutes. Mira claimed that the seizures were loud and frightening, causing David to vomit and be unable to speak. David claimed he merely had a tic that was controlled by medication. David filed a declaration written by neurologist Dr. Ben Gross, who had been treating David for a tic disorder for nine years. Dr. Gross’s declaration stated that the tic disorder was controlled by medication and there was no neurological reason to prevent David from caring for Jacob. The trial court cited Dr. Gross’s declaration in granting primary physical custody to Mira and unrestricted secondary physical custody to David. Mira subpoenaed Dr. Hart Cohen and Dr. Andrea Morrison, seeking all records pertaining to their treatment of David, arguing that the records would support Mira’s allegations. David argued the physician-patient privilege protected the records, and the trial court granted David’s motion to quash. Mira appealed, arguing, in part, that David waived the privilege as to Dr. Morrison because David tendered the issue of the seizure disorder.
Rule of Law
Holding and Reasoning (Kitching, J.)
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