Judge Edward B. Moreton, Jr., Case Number: 23SMCV01324, Date: 2023-09-15 Tentative Ruling

Judge: Edward B. Moreton, Jr., Case: 23SMCV01324, Date: 2023-09-15 Tentative Ruling

Case Number: 23SMCV01324 Hearing Date: September 15, 2023 Dept: 205

[TENTATIVE] ORDER RE: DEFENDANTS’ MOTION FOR STAY OF PROCEEDINGS

MOVING PARTY: Defendants Silk Road Soug, Lama Nakam and Aboubaida Osman

RESPONDING PARTY: Plaintiff David Earl Christensen, individually and as successor in interest to Eric Johnson Christensen

BACKGROUND

This case arises from a fatal car accident. Defendant Aboubaida Osman’s car struck and killed Eric Johnson Christensen who was riding a motorcycle.

Plaintiff David Earl Christensen, individually and as successor in interest to Eric Johnson Christensen has brought a wrongful death and survival action against Osman. Plaintiff has also sued the owners of the car, Defendants Silk Road Souq and Lama Nakami. The operative complaint alleges claims for negligence and negligent entrustment.

Osman has been charged with vehicular manslaughter in violation of Penal Code 192(c)(2). The criminal proceeding arises from the same car accident as this present action and is still pending.

This hearing is on Defendants’ motion to stay all proceedings or in the alternative a stay of discovery. Defendants argue that the present action and the criminal proceedings are based on the identical set of fact and circumstances, and allowing the present action to continue will deprive Osman of his constitutionally protected right of due process and potentially violate his right to be free from coerced self-incrimination.

LEGAL STANDARD

“[W]hen 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. The rationale … is based on Fifth Amendment principles as well as the inherent unfairness of compelling disclosure of a criminal defendant’s evidence and defenses before trial.¿Under these circumstances, the prosecution should not be able to obtain, through the medium of the civil proceedings, information to which it was not entitled under the criminal discovery rules.” (Pacers, Inc. v. Super. Ct. (1984) 162 Cal.App.3d 686, 690, citations omitted.)

“It is not enough that the witness fears incrimination from answering the questions; the fear must be¿reasonable¿in light of the witness’s specific circumstances,¿the content of the questions, and the setting in which the questions are asked. In other words, the privilege protects only against ‘real dangers,’ and not ‘remote and speculative possibilities.’¿It is the trial court's function to determine whether such a ‘real danger’ exists.¿‘[Some] discretion must rest in the court whereby it may prevent the mantle of protection from being turned into a cloak for fraud and trickery.’ If the court, in the exercise of its discretion, determines that no threat of self-incrimination is evident, then the burden of showing the danger of self-incrimination shifts to the

individual asserting the privilege.” (Troy v. Super. Ct. (1986) 186 Cal.App.3d 1006, 1011, quotations and citations omitted, emphasis in original.)

“The decision whether to stay civil proceedings in the face of a parallel criminal proceeding should be made in light of the particular circumstances and competing interests involved in the case. This means the decisionmaker should consider the extent to which the defendant’s fifth amendment rights are implicated. In addition, the decisionmaker should generally consider the following factors: (1) the interest of the plaintiffs in proceeding expeditiously with this litigation or any particular aspect of it, and the potential prejudice to plaintiffs of a delay; (2) the burden which any particular aspect of the proceedings may impose on defendants; (3) the convenience of the court in the management of its cases, and the efficient use of judicial resources; (4) the interests of persons not parties to the civil litigation; and (5) the interest of the public in the pending civil and criminal litigation.” (Avant! Corp v Superior Court (Nequist) (2000) 79 Cal App 4th 876, 885.)

REQUEST FOR JUDICIAL NOTICE

Defendants request judicial notice of a case summary for People of California v. Aboubaida Osman, LASC Case No. LAX3AR10666, as proof that Osman has been charged with a felony. The Court grants the request pursuant to Cal. Evid. Code sections 452(d), 452(h) and 453.

DISCUSSION

Defendants have shown the civil and criminal proceedings clearly arise out of the same set of facts, and Osman’s fear of self-incrimination is reasonable in light of these circumstances.

The seminal case discussing a stay of civil litigation pending resolution of related criminal proceedings is Pacers Inc. v. Superior Court. In Pacers, plaintiffs were involved in a fight with various Pacers’ employees. Plaintiff sued Pacers and the individual employees in civil

court. At the same time criminal indictments were sought by the U.S. Attorney against the Pacers employees. While the grand jury refused to indict the Pacers employees, the prosecutor maintained an “open file” in the case. (Pacers, 162 Cal.App.3d at 687.) The employees moved to stay the civil action pending final disposition of the criminal proceedings. (Id. at 688.) In holding the civil action should be stayed, the court noted that although no indictments had been issued, defendants were facing possible criminal prosecution involving the same facts as the civil action. (Id. at 690.) The court held that: “The prosecution should not be able to obtain, through the medium of the civil proceedings, information to which it was not entitled under the criminal discovery … To allow the prosecutors to monitor the civil proceedings hoping to obtain incriminating testimony from [defendants] through civil discovery would not only undermine the Fifth Amendment privilege that would also violate the concept of fundamental fairness.” (Id. at 691.)

In the present case, Osman is in a more precarious position than the defendants in Pacers. Specifically, not only is the criminal investigation against Osman open, but there is a real possibility that the charges against him will be prosecuted. If discovery is allowed to proceed against Osman, the prosecutors will have an impermissible opportunity to use the discovery in the present action against Osman in the criminal proceedings. As noted by the court in Pacers, allowing this to happen would result in a violation of the Fourth and Fifth Amendment rights of Osman.

However, assessment of the Avant! factors points in favor of a more limited stay than that requested by Osman. The Court orders a stay only as to discovery directed to Osman. (79 Cal.App.4th at 885.) First, if the Court were to order a complete stay of the proceedings or discovery, Plaintiff would suffer prejudice resulting from the loss of evidence including the inability of witnesses to recall specific facts, or the possible death of a party. For this reason,

Plaintiff should be able to take the depositions of the numerous third parties who witnessed and/or responded to the accident, while their memories are fresh. Plaintiff should also be entitled to conduct discovery against the other defendants.

Second, the Court agrees with Osman that he would suffer a burden in being forced to choose between asserting his Fifth Amendment privilege against self-incrimination and waiving the privilege to defend against this civil action. Plaintiff argues the burden is speculative because Plaintiff has not yet noticed Osman’s deposition, and when the deposition is taken, Osman is free to assert his Fifth Amendment right against self-incrimination. But that is precisely the problem of allowing discovery against Osman to proceed -- it puts him in the difficult position of asserting the Fifth Amendment in the civil action which would then create an adverse inference.

Plaintiff also argues Osman has arguably waived his Fifth Amendment privilege by his prior action, namely filing an answer to Plaintiff’s complaint as well as providing responses to Plaintiff’s written discovery requests. Plaintiff cites no authority that the foregoing constitutes a waiver. While Osman answered discovery in this matter without raising his Fifth Amendment privilege, this does not mean he waived his Fifth Amendment privilege for all purposes going forward. When a witness’s previous disclosure is not an actual admission of guilt or incriminating facts, the witness may assert the privilege and decline to testify as to matter that might incriminate him or her. Plaintiff points to no discovery response in which Osman made any admission of guilt or furnished clear proof of crime. (Vargas v. Johnson, 2022 Cal. Super. LEXIS 72435 at *5 (declining to find waiver of Fifth Amendment privilege even though defendant responded to discovery); Madrid v. Markevich, 2017 Cal. Super. LEXIS 27193 at *3 (declining to find waiver of Fifth Amendment privilege even though defendant made statements to investigating officers and responded to discovery).)

Third, the Court’s interests are minimal here in comparison to protection of Osman’s privilege against self-incrimination, and there are at most minimal interests here regarding (1) persons not parties to the civil litigation and (2) the public interest in the civil and criminal litigation.

In sum, after consideration of the factors above, the court agrees with Plaintiff that a stay of the entire action is not warranted under the circumstances. Plaintiff should be able to take the depositions of the other defendants and third parties, to preserve the evidence. However, the facts suggest that a meaningful deposition of Osman would be unlikely, and that any attempt to pursue such a deposition would draw objections based on privilege against self-incrimination and result in more motion practice that would unnecessarily consume judicial resources. The court finds that a temporary stay of Osman’s deposition, as well as written discovery directed to Osman, is appropriate. To alleviate any prejudice to Plaintiff, Plaintiff shall otherwise be entitled to continue litigating the case.

CONCLUSION

Based on the foregoing, the Court GRANTS IN PART and DENIES IN PART Defendants’ motion for stay or proceedings or in the alternative for stay of discovery.

IT IS SO ORDERED.

DATED: September 15, 2023