Judge: Curtis A. Kin, Case: 20STCV18935, Date: 2022-08-16 Tentative Ruling

Case Number: 20STCV18935    Hearing Date: August 16, 2022    Dept: 72

MOTION TO COMPEL ANSWERS TO

DEPOSITION QUESTIONS

Date:              8/16/22 (8:30 AM)                              

Case:              Doris Peniche v. California Highway Patrol et al.  (20STCV18935)

TENTATIVE RULING:

Defendant California Highway Patrol’s UNOPPOSED Motion to Compel Answers to Deposition Questions from Third-Party Deponent Remigio Bembi is GRANTED.

Defendant California Highway Patrol moves to compel further answers at deposition from third-party witness Remigio Bembi. Plaintiff identified Bembi as a witness to the events alleged in the action. (James Decl. ¶ 5 & Ex. C [response to Form Interrogatory No. 12.1].)

For each of the questions at issue, as set forth in defendant’s separate statement, Bembi objected based on the Fifth Amendment privilege against self-incrimination. “To the extent that such privilege exists under the Constitution of the United States or the State of California, a person has a privilege to refuse to disclose any matter that may tend to incriminate him.” (Evid. Code § 940.) However, “[t]he witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself—his say-so does not of itself establish the hazard of incrimination.” (Hoffman v. U. S. (1951) 341 U.S. 479, 486.)

“Whenever the proffered evidence is claimed to be privileged under Section 940, the person claiming the privilege has the burden of showing that the proffered evidence might tend to incriminate him; and the proffered evidence is inadmissible unless it clearly appears to the court that the proffered evidence cannot possibly have a tendency to incriminate the person claiming the privilege.” (Evid. Code § 404.)

Despite proper service on Bembi, no opposition was filed. Accordingly, Bembi did not meet his burden in justifying his refusal to answer defendant’s objections on Fifth Amendment grounds.

Moreover, on their face, the questions posed cannot possibly tend to incriminate Bembi. Asking Bembi whether he had his deposition taken previously would not force him to disclose any matters tending to incriminate him in the criminal action for falsely claiming overtime. (James Decl. ¶ 6 & Ex. D; Def. Sep. Stmt. Q1.) Whether Bembi had any physical reason why he could not testify (Q2), looked at documents to prepare for the deposition (Q3), is currently employed (Q4), or formerly worked as an officer with the California Highway Patrol (Q5) would not force Bembi to disclose information pertaining to the criminal charges of overtime fraud.

Whether Bembi knows plaintiff (Qs 6, 7), uses social media (Qs 8, 9), and what Bembi knows regarding plaintiff’s allegations in the First Amended Complaint (Qs 10-14, 26, 30, 31) is not linked to the criminal charges against him. The same is true of whether Bembi heard any gossip about plaintiff (Q 25).

Whether Bembi knows individuals identified in the First Amended Complaint or discovery (Qs 15-24) or lawyers connected with plaintiff’s action (Q 27) would not force Bembi to disclose any information tending to incriminate him in the criminal matter concerning overtime. The same is true concerning who is representing Bembi in any criminal, civil, or administrative matter (Q 28). The Court notes that there is no Question 29 in the separate statement.

Just because a question concerns Bembi’s employment with CHP, even tangentially, does not mean the question is impermissible. This would overstate the privilege against self-incrimination granted by the Fifth Amendment. “[T]he privilege protects against real dangers, not remote and speculative possibilities . . . .” (Warford v. Medeiros (1984) 160 Cal.App.3d 1035, 1043.)

Based on “the nature of the information sought to be disclosed” and the “implications derived from the question asked,” factors relevant to the inquiry of whether the questions require Bembi to incriminate himself (Blackburn v. Superior Court (1993) 21 Cal.App.4th 414, 429) the Court finds that Bembi’s invocation of the Fifth Amendment is unavailing.

The motion is GRANTED. Remigio Bembi is ordered to appear for deposition via videoconferencing software on ___________________, 2022, at _________a.m. Bembi is ordered to answer Questions 1 through 31 set forth in defendant’s separate statement filed in support of the motion.  Further, in connection with any additional questions at the continued deposition, Bembi and his counsel are admonished to consider in connection with any invocation of the Fifth Amendment privilege whether the answer to any such question would actually tend to incriminate Bembi.