Judge: Carolyn M. Caietti, Case: 37-2022-00019884-CU-MM-CTL, Date: 2023-08-25 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - August 24, 2023

08/25/2023  10:30:00 AM  C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited  Medical Malpractice Motion Hearing (Civil) 37-2022-00019884-CU-MM-CTL MEDINA SELBY VS CHACON MD [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendants Carlos Chacon, M.D. and Divino Plastic Surgery, Inc's Motion for an Order Staying Civil Proceedings is GRANTED IN PART.

Background Plaintiff's First Amended Complaint alleges Defendants negligently treated and performed surgery, post-operative management and care to Plaintiff, resulting in permanent and disfiguring injuries. The FAC asserts causes of action for: (1) medical negligence; and (2) loss of consortium.

This matter first came on calendar at an ex parte hearing on June 8, 2023. The Court deemed the ex parte papers as the moving papers and ordered discovery stayed until August 25, 2023, the date of this hearing, 'except for demands for production which are not covered by the [F]ifth [A]mendment privilege.' (ROA 104.) Discussion In this motion, Defendants maintain Defendant Carlos Chacon is also a defendant in an ongoing criminal action. In light of this criminal action, he objected to Plaintiff's written discovery, asserting his Fifth Amendment right to avoid self-incrimination. Defendants seek an order staying this civil action until the pending criminal action against Defendant Chacon is completed. Alternatively, Defendants seek a protective order that Defendants need not respond to any discovery requests until completion of the criminal prosecution. It is undisputed Defendants refused to produce Plaintiff's medical records, identify witnesses of her medical care and other matters related to Plaintiff's particular treatment.

When both civil and criminal proceedings arise out of the same or related transactions, an objecting party is generally entitled to a stay of discovery in the civil action until disposition of the criminal matter.

(Pacers, Inc. v. Sup. Ct. (1984) 162 Cal.App.3d 686, 690.) This is because it is inherently unfair to compel disclosure of a potential criminal defendant's evidence and defenses before trial. (Ibid.) These rules apply even when the civil defendant is not yet a criminal defendant, but is threatened with prosecution. (Ibid.) In exercising its discretion to stay the civil proceedings, a trial court should consider: (i) the interest of the plaintiffs in proceeding expeditiously with the litigation or any particular aspect of it, and the potential prejudice to plaintiffs of a delay; (ii) the burden which any particular aspect of the proceedings may impose on defendants; (iii) the convenience of the court in the management of its cases, and the Calendar No.: Event ID:  TENTATIVE RULINGS

2983625  36 CASE NUMBER: CASE TITLE:  MEDINA SELBY VS CHACON MD [IMAGED]  37-2022-00019884-CU-MM-CTL efficient use of judicial resources; (iv) the interests of persons not parties to the civil litigation; and (v) the interest of the public in the pending civil and criminal litigation. (Avant!, supra, at p. 885.) The Court considered the factors under Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 882, 885 (Avant!). Here, the parties do not dispute this medical malpractice action arises from Defendants' alleged negligence on November 17, 2021. The criminal action and companion wrongful death civil case concern a different patient who Defendant Chacon treated in 2018 and died (the Espinoza Actions). In reply, Defendants maintain a Second Amended Criminal Complaint refers to other patients and the treatments they received in November 2021. The charging allegations contain broad and generalized descriptions of medical care and treatment and do not identify any particular type of care and treatment.

The Avant! factors regarding the burden of any particular aspect of the proceedings may impose on Defendants; and the convenience of the court in the management of its cases and the efficient use of judicial resources, weigh in favor of granting a short stay until after the preliminary hearing in October.

This way, the parties and the Court can have a clearer understanding of the charges Defendant faces.

Otherwise, the Court anticipates discovery disputes regarding the privilege against self-incrimination will undoubtedly arise and burden Defendants and this Court. However, Plaintiff should receive her medical and billing recordings and diagnostic testing/studies if they have not already been produced by Defendants. The Court will set a status conference after the preliminary hearing, so the parties and Court can reevaluate the Avant! factors and the need for a further stay and/or protective order. The Court reserves on the alternate motion for a protective order in light of this ruling.

Thus, the motion for a stay of discovery is GRANTED IN PART.

Concluding Orders The Court sets a status conference on December 15, 2023, at 10:30 a.m. in Department 70. The parties are permitted to provide the Court with an update on the criminal matter in terms of the results of the preliminary hearing with a letter brief not to exceed 4 pages, filed by December 1, 2023.

Discovery issued to Defendants Carlos Chacon and Divino Plastic Surgery, Inc. is stayed with the exception of Plaintiff's medical and billing records and diagnostic testing/studies in Defendants' possession until the status conference. Plaintiff may proceed with all other discovery.

If the tentative ruling is confirmed without modification, the Court's minute order will be the Court's final order. Defendants are ordered to serve written notice of the Court's final order on all parties by August 29, 2023.

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