Judge: Gary I. Micon, Case: 24CHCV02368, Date: 2025-01-27 Tentative Ruling

Case Number: 24CHCV02368    Hearing Date: January 27, 2025    Dept: F43

Dept. F43

Date: 01-27-25

Case # 24CHCV02368, Willis, et al. v. Galoosian, et al.

Trial Date: None set.

MOTION TO STAY PROCEEDINGS AND MOTION FOR A PROECTIVE ORDER

MOVING PARTIES: Defendants Roobik Galoosian and Floricita Alvarez-Galoosian

RESPONDING PARTY: Plaintiff Jeff Willis

RELIEF REQUESTED

Order staying this action and all discovery and related discovery proceedings for 120 days with a report to the court at 90-day intervals to determine if the additional stays are necessary.

RULING: Both motions are denied, with prejudice.

SUMMARY OF ACTION

On June 28, 2024, plaintiffs Jeff Willis and Lauren Ross (Plaintiffs) sued defendants Roobik Galoosian and Floricita Alvarez-Galoosian (Defendants) for trespass, wrongful injury to trees under Civil Code section 733, 833, and 3346, mandatory doubling of damages and discretionary trebling of damages under Civil Code section 3346, subdivision (a), negligence, and negligence per se.  The complaint alleges that on October 29, 2023, Defendants entered Plaintiffs’ property, without Plaintiffs’ permission, cut down a portion of a fence, and removed a Sycamore Tree and 300 square feet of Creosote bushes from Plaintiffs’ property.

On October 10, 2024, plaintiff Jeff Willis filed a police report with the Los Angeles County Sheriff’s Department (LACSD) claiming Defendants vandalized his property.  (Declaration of Jeff Willis, ¶ 4.)  LACSD investigated the claims.  (Willis Dec., ¶ 5.)  On October 29, 2024, Defendants’ attorney, Maurice Chenier, learned that LACSD was investigating Defendants’ alleged conduct regarding cutting down the tree and surrounding areas and attempted to interview Defendants.  (Declaration of Maurice Chenier, ¶ 4.)  On January 9, 2025, LACSD Detective Steve Erickson emailed plaintiff Willis stating “the District Attorney’s Office declined filing the case regarding the vandalism report.”  (Willis Dec., ¶ 5, Exh. A.)  Defendants’ counsel, Maurice Chenier, states he met and conferred both in writing and telephonically with Plaintiffs’ counsel before filing this motion in order to secure an agreement to pursue this matter in a civil forum rather than a criminal forum.  (Chenier Dec., ¶¶ 2, 7, Exh. 1.)

On November 20, 2024, Defendants moved to stay this action pending the resolution of “criminal complaint filed by the plaintiffs on October 10, 2024.”  Defendants filed an amended motion on November 22, 2024.  On November 21, 2024, Defendants also filed a motion for a protective order on all discovery and related proceedings.  Plaintiff Willis filed an opposition on January 13, 2024.  Defendants replied on January 17, 2024. 

SUMMARY OF ARGUMENTS

Defendants argue the court must stay this motion because there is a parallel criminal complaint arising out of the same factual allegations against Defendants.  If the court forces Defendants to comply with discovery in this action, Defendants will be forced to disclose facts which could incriminate them in a criminal proceeding.  The Fifth Amendment to the U.S. Constitution and California Constitution provide a right against self-incrimination, and to protect this right the court must stay this motion pending the end of the criminal case.  Allowing Plaintiffs to go forward with discovery will violate Defendants’ privilege under the U.S. Constitution and the California Constitution.  Further, Plaintiffs filed this criminal complaint in order to harass Defendants.

Plaintiff Jeff Willis opposes, arguing that this motion is moot.  LACSD Detective Erickson emailed plaintiff Willis that the District Attorney’s Office declined to file a case against Defendants, and because the 1-year statute of limitations for misdemeanors under Penal Code section 802, subdivision (a), has already expired, the District Attorney cannot file a criminal action against Defendants.  Defendants’ Fifth Amendment argument lacks merit because none of Defendants’ cited cases give a court authority to stay a civil action pending completion of a criminal matter that does not exist.  Further, Defendants’ motion contains several falsehoods including that Plaintiffs filed a criminal complaint against Defendants.

In reply, Defendants argue that Plaintiffs refuse to dismiss the Penal Code claims from their complaint or to issue a statement that they will not resurrect criminal complaints against Defendants.  Defendants will be forced to waive a confidential privilege against self-incrimination to defend this action because Plaintiffs base their negligence per se claim in several sections of the Penal Code.  Plaintiffs’ counsel did not authenticate the Detective Erickson’s email, and the email does not contain a statement of “no prosecution” from the applicable District Attorney’s Office.  Because there is a reasonable possibility that criminal charges can be brought based upon the claims, Defendants have a right to continue to assert the fundamental privilege against self-incrimination under the Fifth Amendment to U.S. Constitution and the California Constitution.  Further, Defendants also move for dismissal of this action based on “force waiver of privilege” under Civil Procedure Code section 128.  The court should either dismiss this action or dismiss the Penal Code sections and order Plaintiffs to product a statement from the District Attorney’s Office that this matter will not be prosecuted.

ANALYSIS

A court is within its discretion to grant or deny a motion to stay a proceeding where the moving party seeks to stay until risk of criminal prosecution is eliminated.  (See Pacers, Inc. v. Superior Court (1984) 162 Cal.App.3d 686.)  “Where . . . a defendant’s silence is constitutionally guaranteed, the court should weigh the parties’ competing interests with a view toward accommodating the interests of both parties, if possible.  An order staying discovery until expiration of the criminal statute of limitations would allow real parties to prepare their lawsuit while alleviating petitioners’ difficult choice between defending either the civil or criminal case.”  (Id. at p. 690.)  This rationale is based on Fifth Amendment principles and “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.”  (Ibid.)

Any party may obtain discovery regarding a non-privileged matter that is relevant to the subject matter of the pending action.  (Code Civ. Proc., § 2017.010.)  A party may refuse “to disclose any matter that may tend to incriminate him” in any “proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory[.]”  (Evid. Code, § 940; Pacers, Inc., supra, 87 Cal.App.4th at p. 305; see also U.S. Const., Amend. V; Cal. Const. Art. 1, § 15.) However, “a civil defendant does not have the absolute right to invoke the privilege against self-incrimination.”  (Fuller v. Superior Court (2001) 87 Cal.App.4th 299, 305.)  “Courts recognize the dilemma faced by a defendant who must choose between defending the civil litigation by providing testimony that may be incriminating on the one hand, and losing the case by asserting the constitutional right and remaining silent, on the other hand.”  (Id. at p. 306.)  However, “courts must also consider the interests of the plaintiff in civil litigation where the defendant is exposed to parallel criminal prosecution.  Plaintiffs are entitled to an expeditious and fair resolution of their civil claims without being subjected to unwarranted surprise.”  (Ibid.) 

In Pacers, Inc. v. Superior Court, the Court of Appeal reversed a trial court’s denial of a motion to stay a proceeding where the plaintiffs threatened criminal action.  In response to the threat, defendants invoked their Fifth Amendment right against self-incrimination by refusing to answer discovery requests which prosecutors could not obtain under criminal discovery rules.  (Id. at p. 690.)  By denying the motion, the trial court was forcing plaintiffs to forego exercising their Fifth Amendment right to silence and risk a meaningful chance to avoid loss through the judicial process.  Recognizing that granting the motion would postpone depositions, delay the action, and inconvenience the plaintiffs, the Court of Appeal held that defendants’ constitutional rights outweighed these considerations.  (Id. at p. 690.)  The Court of appeal reversed, staying the proceeding until the criminal statute of limitations had run and noted the parties had agreed to waive the five-year time limit on conducting discovery.

However, in Fuller v. Superior Court, the Court of Appeal affirmed the trial court’s denial of a stay of proceeding and discovery stating that the defendants could invoke their Fifth Amendment privilege during their depositions or in response to discovery requests rather than delaying the entire case.  (Fuller v. Superior Court (2001) 87 Cal.App.4th 299.)  There, the criminal statute of limitations did not expire until three years from the trial date.  (Id. at p. 309.)  The Court considered the ramifications of the three-year delay including the risk of diminished memory and lost records.  (Ibid.)  Further, the Court noted that defendants invoking their Fifth Amendment right to specific questions would also give the trial Court a better record on which it could determine whether the Fifth Amendment right is implicated.  (Id. at pp. 309-310.)  In affirming the trial court’s denial, the Court of Appeal presented the trial court with other possible accommodations such as granting immunity against use of deposition answers or evidence derived from those answers, in any criminal prosecution.  (Id. at p. 310.)

Unlike Pacers and Fuller, the one-year statute of limitations for bringing a criminal case against Defendants has expired.  (See Penal Code, § 802, subdivision (a) [stating prosecution for misdemeanors must be commenced within one year after the commission of the offense].)  The alleged conduct occurred on October 29, 2023 meaning the District Attorney’s Office had until October 29, 2024 to begin prosecuting Defendants.  Defendants filed both their motion to stay proceedings and their protective order motion after the statute of limitations ran.  Defendants do not address the statute of limitations, produce a copy of the alleged criminal complaint, or contend one has been filed.  Further, if Defendants believe a discovery request or deposition question asks Defendants to admit or answer in a way which may incriminate Defendants, Defendants may invoke their Fifth Amendment right in their response.

The Court notes that Defendants, in their reply to Plaintiffs’ opposition, attempt to turn this motion to stay into a motion to dismiss.  If Defendants wish to dismiss this case, they must file a separate motion arguing this.

Because the evidence shows the one-year statute of limitations has run and Defendants present not opposing evidence, the Court denies Defendants’ motion, with prejudice.

CONCLUSION

Defendants’ motion to stay this action is denied, with prejudice.  Defendants’ motion for a protective order for all discovery and related discovery hearings is denied, with prejudice.

Defendants to give notice.