Judge David S. Cunningham, Case Number: 24STCV07273, Date: 2025-01-03 Tentative Ruling

Judge: David S. Cunningham, Case: 24STCV07273, Date: 2025-01-03 Tentative Ruling

Case Number: 24STCV07273 Hearing Date: January 3, 2025 Dept: 11

People of the State of California v. Prologis, Inc. (24STCV07273)

Tentative Ruling Re: Motion for Protective Order

Date: 1/3/25

Time: 10:00 am

Moving Party: Akiva Nourollah and Yaakov Nourollah (collectively the “Nourollahs”)

Opposing Party: People of the State of California ex rel. California Regional Water Quality Control Board, Los Angeles Region (the “Water Board”)

Department: 11

Judge: David S. Cunningham III

________________________________________________________________________

TENTATIVE RULING

The Nourollahs’ motion for protective order is granted.

BACKGROUND

This case arises from a warehouse fire near the Dominguez Channel in Carson, California. The fire and efforts to put it out allegedly caused hazardous materials to enter the Dominguez Channel, creating a foul odor that made thousands of people sick.

Here, the Nourollahs move for a protective order to stay their depositions pending resolution of a parallel criminal action.

DISCUSSION

The Nourollahs contend the motion should be granted because:

* the Nourollahs “have been charged with felony offenses” in the criminal case (Motion, p. 4);

* this case and the criminal case “aris[e] from the exact same alleged events” (id. at pp. 2-3);

* the Fifth Amendment privilege against self-incrimination applies in civil cases when testimonies that could be self-incriminating are sought (see id.at p. 3);

* the Water Board can obtain the requested information by other means (see id. at pp. 5-7; see also Reply, pp. 3, 4-5); and

* the Water Board previously admitted that it does not need the Nourollahs’ testimonies (see Reply, pp. 2-3.)

In response, the Water Board filed a qualified non-opposition. The Water Board claims it would suffer prejudice if a protective order is entered but the case is not stayed or the trial date is not continued (the Water Board’s motion to stay is also set for hearing on January 3^rd). (See Qualified Non-Opposition, p. 2 [arguing that (1) absent a stay, the Water Board would be forced to litigate this case without the Nourollahs’ testimonies, and (2) a stay or continuance is an adequate alternative measure].)

California law permits a court to “stay discovery until disposition of any pending criminal proceedings or until the statute of limitations has run on criminal prosecution, so that defendant can no longer claim a Fifth Amendment privilege.” (Edmon & Karnow, Cal. Practice Guide: Civ. Procedure Before Trial (The Rutter Group June 2024 Update) ¶ 8:136 [citing Pacers, Inc. v. Superior Court (1984) 162 Cal.App.3d 686].) In fact, California law recognizes multiple accommodation options: (1) “stay the civil proceeding until disposition of the related criminal prosecution[;]” (2) “allow the civil defendant to invoke the privilege against self-incrimination, even if doing so may limit the defendant’s ability to put on a defense[;]” (3) “confer[] an immunity on the party invoking the privilege[;]” or (4) “preclude[e] a litigant who claims the constitutional privilege against self-incrimination in discovery from waiving the privilege and testifying at trial to matters upon which the privilege had been asserted.” (Fuller v. Superior Court (2001) 87 Cal.App.4^th 299, 307-308.)

Given these rules, the Court agrees with the Nourollahs. Staying the Nourollahs’ depositions is a sufficient way to protect their interests against self-incrimination while allowing the other parties to seek the requested information via other sources – e.g., non-party depositions, depositions of persons most knowledgeable, and document requests. (See Motion, p. 5.) The Court believes this accommodation option strikes a fair balance.

Moreover, on the current record, the Water Board fails to show prejudice in that it fails to show that the requested information is not available from the other sources. (See Reply, pp. 3-5.)

Accordingly, the motion is granted.

However, the Court is inclined to leave open the possibility of reconsidering this issue in the future once the other sources have been exhausted.

People of the State of California v. Prologis, Inc. (24STCV07273)

Tentative Ruling Re: Motion to Stay/Continue Trial

Date: 1/3/25

Time: 10:00 am

Moving Party: People of the State of California ex rel. California Regional Water Quality Control Board, Los Angeles Region (“Water Board”)

Opposing Party: Virgin Scent, Inc., Akiva Nourollah, Yosef Nourollah, Yehuda Nourollah, Yaakov Nourollah, and Day to Day Imports, Inc. (collectively “Tenant Defendants”)

Opposing Party: Prologis, Inc. and Liberty Property Limited Partnership (collectively “Prologis Defendants”)

Department: 11

Judge: David S. Cunningham III

________________________________________________________________________

TENTATIVE RULING

The Water Board’s motion to stay/continue trial is denied in part and granted in part. It is denied as to the stay request, and it is granted as to the trial-continuance request. The trial will be continued for three to six months, and the Court will reevaluate the continuance at the end of that period.

BACKGROUND

Here, the Water Board moves to stay the case or continue the trial pending resolution of a parallel criminal action.

DISCUSSION

Water Board

The trial date is March 24, 2025.

The Water Board contends the case should be stayed or the trial date should be continued because:

* Akiva Nourollah, Yosef Nourollah, Yehuda Nourollah and Yaakov Nourollah are named Defendants in the criminal case (see Motion, p. 3);

* Akiva Nourollah and Yakov Nourollah filed a motion for protective order to stay their depositions until the criminal case is resolved to protect their Fifth Amendment interests against self-incrimination (the motion for protective order is also set for hearing on January 3^rd) (see ibid.);

* the Water Board would suffer prejudice if it is forced to litigate this case without all of the Nourollahs’ testimonies (see ibid.; see also id. at pp. 7-11 [claiming adequate substitutes for the Nourollahs’ testimonies do not exist]); and

* it is likely that a stay would benefit all parties by making the “eventual prosecution of [this] case more efficient.” (Id. at p. 3; see also id. at pp. 6-7.)

Tenant Defendants

The Tenant Defendants disagree. They assert:

* all parties and the public would benefit from this case being resolved promptly (see Tenant Defendants’ Opposition, pp. 7-8);

* this Court, not the criminal court, should resolve the complex factual and legal issues (see id. at pp. 3, 7-8);

* the Water Board fails to show that it needs Akiva’s and Yakov’s testimonies (see id. at pp. 9-10);

* the requested information can be obtained by other means (see id. at pp. 10-11); and

* the Water Board already has the information necessary to bring their case. (See id. at p. 11.)

Prologis Defendants

The Prologis Defendants claim:

* the parties stipulated to the trial date (see Prologis Defendants’ Opposition, pp. 4, 9);

* the Water Board previously argued against a stay and asserted that the Nourollahs’ testimonies are irrelevant (see id. at pp. 4, 8);

* the Water Board filed this action despite having knowledge of the criminal case (see id. at pp. 4-5, 11);

* the Water Board fails to show prejudice warranting a stay (see id. at pp. 10-12); and

* the Water Board fails to analyze the factors for a trial continuance. (See id. at pp. 7-10.)

Reply

In reply, the Water Board states:

* judicial estoppel is inapplicable (see Reply, pp. 2-4);

* the Water Board’s knowledge of the criminal case is not a sufficient reason to deny a stay or continuance (see id. at pp. 4-5);

* Due process requires that the Water Board receive an opportunity to depose Akiva and Yakov before trial (see id. at pp. 5-6);

* the Water Board needs the Akiva’s and Yakov’s testimonies (see id. at pp. 6-8); and

* a stay or continuance would not prejudice the other parties. (See id. at p. 9.)

Analysis

For a trial continuance, “[a]n affirmative showing of ‘good cause’ according to Judicial Council standards is required on a motion for continuance before or during trial.” (Edmon & Karnow, supra, at ¶ 12:452.) “[C]ircumstances [that] may indicate the presence of good cause” include:

— unavailability of essential percipient or expert witness because of death, illness or other excusable circumstances; [citation]

— unavailability of a party because of death, illness or other excusable circumstances; [citation]

— unavailability of trial counsel because of death, illness or other excusable circumstances; [citation]

— substitution of trial counsel where there is an “affirmative showing that the substitution is required in the interests of justice”; [citation]

— addition of a new party if the new party has not had a reasonable opportunity to conduct discovery and prepare for trial or the other parties have not had an adequate opportunity to prepare for trial in regard to the new party; [citation]

— a party's inability to obtain essential testimony, documents or other material evidence despite diligent efforts; [citation] or

— a significant unanticipated change in the status of the case as a result of which the case is not ready for trial. [Citation.]

(Id. at ¶ 12:455 [citing Rules of Court, rule 3.1332(c)], emphasis in original.)

Given these rules, the Court finds that the Water Board’s stay request is overbroad and should be denied. In the tentative ruling on the motion for protective order, which the Court incorporates, the Court grants the motion without prejudice to the main issue – whether the Water Board should be barred from deposing Akiva and Yakov until the criminal case is finished – possibly being reevaluated after the Water Board exhausts alternative discovery sources, for example, non-party depositions, depositions of persons most knowledgeable, and document requests. As explained there, the Court believes this accommodation option strikes a fair balance between protecting Akiva’s and Yakov’s interests against self-incrimination and the other parties’ interests in seeking the requested information via other sources to move the litigation toward trial and/or resolution. A full-blown stay would be incongruent with this balance and, on the current record, does not appear appropriate.

The trial-continuance request is a different story. The Water Board filed this case less than 10 months ago. The trial is set to start one year from the filing date. One year is exceptionally short for a complex case of this magnitude, novelty, and complexity, especially considering the related and consolidated matters, the numerous diverse parties, the competing interests, and the work delays caused by the holiday season. The impact of this shortened timeframe is intensified by the Court’s decision to make Akiva’s and Yakov’s testimonies unavailable to the Water Board. Akiva and Yakov are witnesses and parties. The Fifth Amendment privilege is an excusable reason for rendering them unavailable. At this late hour, effectively impelling the Water Board to use other discovery methods to acquire what might be, and likely is, essential information establishes a good-faith basis to continue the trial for three to six months.

The prior stipulation does not change the analysis. The Water Board agreed to the trial date within the first three months of the litigation and did so with caveats. (See Reply, p. 6.) Again, Akiva and Yakov are witnesses and parties. It is reasonble to expect that they have material information. Since the Water Board is now going to have to try to get that information from other sources, an effort that appears to have proven difficult up to this point (see ibid.), strict enforcement of the stipulation would be unreasonable.

Similarly, the judicial-estoppel argument is unavailing. “Even if the necessary elements of judicial estoppel are found, because judicial estoppel is an equitable doctrine [citations], whether it should be applied is a matter within the discretion of the trial court [citations].” (Blix Street Records, Inc. v. Cassidy (2010) 191 Cal.App.4^th 39, 46-47.) Yes, the Water Board opposed a stay in the administrative action, but a stay is inappropriate here. The Court is only granting a limited trial continuance due to the changing facts, namely, Akiva’s and Yakov’s unavailability and the need to request information from other sources. It would be inequitable to apply judicial estoppel to the situation here.

The concern about the criminal court deciding the complex legal and factual issues is unpersuasive. The Court is not granting a continuance until the criminal trial ends. The proposed continuance is short to medium. This Court will still be in a position to decide those issues after the continuance.

Finally, the cases cited by the parties are mostly unhelpful and do not compel a different result. People ex rel. Harris v. Rizzo (2013) 214 Cal.App.4th 921 is distinguishable for the reasons stated in the reply. (See Reply, pp. 4-5.) People v. Coleman (1975) 13 Cal.3d 867, People ex rel. Burns v. Wood (2024) 103 Cal.App.5th 700, and Pacers, Inc. v. Superior Court, supra, 162 Cal.App.3d 686 are distinguishable for the reasons stated in the Prologis Defendants’ opposition. (See Prologis Defendants’ Opposition, p. 11.)

In summary, the Water Board’s motion is:

* denied as to the stay request; and

* granted, as modified, as to the trial-continuance request.

The Court intends to continue the trial for three to six months and to reexamine the continuance at that time.