Judge Kerry Bensinger, Case Number: 22STCV13267, Date: 2023-10-03 Tentative Ruling

On April 21, 2022, Plaintiff, Erik Denton, individually, and as the Successor-in-Interest to Joanna Denton Carrillo (“Joanna”), Terry Denton Carrillo (“Terry”), and Sierra Denton Carrillo (“Sierra”), filed this wrongful death and survivorship action against Defendants, City of Los Angeles (“City”) and County of Los Angeles, arising from the death of Plaintiff’s three children, Joanna, Terry, and Sierra, at the hands of their mother, Liliana Carrillo. Criminal charges have been filed against Ms. Carrillo.[1]

On September 1, 2023, the City filed this Motion for Stay of Proceedings pending resolution of People v. Liliana Carrillo, BA494899. Plaintiff opposes[2] and the City replies.

On August 30, 2023, Plaintiff filed Motions to Compel City’s Further Responses to Form Interrogatories, Special Interrogatories, and Request for Production of Documents and a Motion for Discovery of Peace Officer Personnel Records (Pitchess Motion). The City did not file oppositions.

On September 19, 2023, the City filed an ex parte application to continue the hearing dates for Plaintiff’s Discovery Motions. As part of the application, the City requested relief under Code of Civil Procedure, section 473(b) to file oppositions to Plaintiff’s discovery motions. On September 20, 2023, the Court granted in part City’s application and continued Plaintiff’s discovery motions to September 29, 2023. The Court indicated that if the City’s motion to stay is denied, the Court would address the City’s 473(b) arguments.

“The Constitution does not ordinarily require a stay of civil proceedings pending the outcome of criminal proceedings. [Citations.] ‘In the absence of substantial prejudice to the rights of the parties involved, [simultaneous] parallel [civil and criminal] proceedings are unobjectionable under our jurisprudence.’ [Citation.] ‘Nevertheless, a court may decide in its discretion to stay civil proceedings ... “when the interests of justice seem [ ] to require such action.” ’ [Citations.]” (Keating v. Office of Thrift Supervision (9th Cir.1995) 45 F.3d 322, 324.)

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.’ [Citation.] This means the decisionmaker should consider ‘the extent to which the defendant's fifth amendment rights are implicated.’ [Citation.] 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. [Citation.]” (Id. at pp. 324-325.)

California courts have endorsed the Ninth Circuit’s approach. (Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 885 (Avant!); Alpha Media Resort Investment Cases (2019) 39 Cal.App.5th 1121, 1131(Alpha Media) [“Several California courts have acknowledged under similar circumstances the wisdom of a Ninth Circuit case, Keating v. Office of Thrift Supervision”].)

Given the Court’s consideration of the Keating/Avant! factors as discussed below, the City’s contentions do not prevail.

The City does not invoke the privilege against self-incrimination. Nor can it. As a fundamental matter, the City does not have a Fifth Amendment privilege against self-incrimination. (See Braswell v. United States (1988) 487 U.S. 99, 102 [the Fifth Amendment privilege against self-incrimination applies to, and may be invoked by, natural persons, not corporations or other organizations]; see also United States v. White (1944) 322 U.S. 694, 699 [“[s]ince the privilege against self-incrimination is a purely personal one, it cannot be utilized by or on behalf of any organization, such as a corporation”].) And the City cannot assert Ms. Carrillo’s privilege against self-incrimination on her behalf. (People v. Wisely (1990) 224 Cal.App.3d 939, 944 [the “privilege against self-incrimination is personal”]; People v. Douglas (1990) 50 Cal.3d 468, 501 [the privilege against self-incrimination “may not be vicariously asserted by another”].) Given these fundamentals, the City’s reliance on Pacers, Inc. v. Superior Court (1984) 162 Cal.App.3d 686 (Pacers) is misplaced. Pacers starts with the proposition that “where… a defendant’s silence is constitutionally guaranteed, the court should weigh the parties’ competing interests.” (Pacers, 162 Cal.App.3d at p. 690 (emphasis added.) Because the City does not have a Fifth Amendment privilege to assert and cannot assert one on behalf of Ms. Carrillo, the parties do not have competing interests. This preliminary factor weighs heavily in Plaintiff’s favor.

The Interest of the Plaintiff in Proceeding Expeditiously and Potential Prejudice to Plaintiff of a Delay

The City characterizes Plaintiff’s interest as a financial one and argues that such an interest is not weighty enough to preclude the issuance of a stay. The City construes Plaintiff’s interest too narrowly. Plaintiff has a legitimate interest in learning about the events leading up to the tragic loss of his children and in prosecuting his claims expeditiously. Plaintiff seeks discovery regarding the implementation of the California Child Abuse and Neglect Reporting Act (CANRA) and the role others played leading up to Ms. Carrillo’s alleged murder of her children, including that of the Los Angeles Police Department (LAPD) and the Los Angeles County Department of Child and Family Services (DCFS). A stay would prevent Plaintiff’s expeditious discovery of information relevant to the prosecution of his claims. As the Fuller Court stated, “Plaintiffs are entitled to an expeditious and fair resolution of their civil claims without being subjected to unwarranted surprise. Among the myriad purposes of the civil discovery statutes is to safeguard against surprise and gamesmanship, and to prevent delay.” (Fuller, supra, 87 Cal.App.4th at p. 306; see also, Alpha Media, supra, 39 Cal.App.5th at p. 1132 [“[t]he trial court’s concerns about delaying these proceedings for at least one more year were well founded”]; Avant!, supra, 79 Cal.App.4th at pp. 887 [“On the first additional factor, there is hardly a question of the interest of Nequist in proceeding expeditiously with this litigation or any particular aspect of it, and the potential prejudice to Nequist of a delay. To require Nequist to wait for the result of the related criminal action ‘would increase the danger of prejudice resulting from the loss of evidence, including the inability of witnesses to recall specific facts, or the possible death of a party.’” (Citation)].)

Given the current posture of the criminal case, the delay here may be significant, most likely well over a year. As best the Court can tell from the limited information provided by the parties, Ms. Carrillo is facing three counts of murder, various enhancements, and special circumstance allegations. Although there is some reference to the possibility of a disposition in the case because “the defendant is expected to enter a plea of ‘not guilty by reason of insanity’” (Zygielbaum Decl., ¶ 6), such a disposition is complicated and may entail a significant amount of time to prepare and present the medical/psychological evidence and testimony. It has already been over two years since the alleged crime. Further delays risk diminished memory, loss of witnesses and records. (Avant!, supra, at p. 887.)

The Burden Which Any Particular Aspect of the Proceedings May Impose on Defendants

This factor is where the City stakes it claim for a stay. The City advances two primary arguments: (1) Ms. Carrillo’s potential assertion of her Fifth Amendment rights prejudices the City’s ability to prepare its case and (2) disclosure of information in response to civil discovery may negatively impact the integrity of the criminal case.

With respect to the Coty’s first argument, Ms. Carrillo has not asserted her Fifth Amendment rights in response to discovery demands in this case and, if and when she does, the Court will address the issues at that time. To seek a stay now is premature. For example, in Fuller v. Superior Court (2001) 87 Cal.App.4th 299, 303, the appellate court affirmed the denial of a motion to stay discovery because the request was premature. In Fuller, “African-American shoppers who claim they were beaten by security guards, sued the individual guards, the guards’ employer IPC International Corporation (IPC), and others, alleging various tort causes of action. Petitioners noticed the depositions of the individual guard defendants. Fearing criminal prosecution arising from the same incident, the security guards moved the trial court for a protective order precluding the depositions, or staying them until the criminal statute of limitations expires.” (Id. at p. 302.) The Fuller Court stated that “the depositions should be allowed to proceed. The security guards can interpose appropriate objections so that the trial court can then rule on the validity of their invocation of the privilege with respect to specific questions. If the security guards invoke their privilege, the court will be able to fashion whatever protective order it deems reasonable to balance the interests of the parties and the judicial system. Accordingly, we deny the writ petition without prejudice.” (Ibid.)

Knowing this, the City argues instead that because Ms. Carrillo may assert her Fifth Amendment rights down the road at some unspecified time and in response to some unspecified question, the City’s ability to prepare its case may be affected. To state the City’s contention is to recognize how vague it is. Indeed, the City fails to explain how the prospect of Ms. Carrillo’s invocation impairs its present ability to respond to discovery or to prepare its defense. In Avant!, the corporation argued that a stay should be issued because its employees might assert their Fifth Amendment rights. (Avant!, supra, 79 Cal.App.4th at pp. 886–887.) The appellate court responded, “Avant’s claim that where the corporation’s employees have Fifth Amendment interests, the implication of the right against self-incrimination must be given serious consideration, while true, is not overriding, particularly where, as here, the trial court had fashioned a remedy to protect the employees’ Fifth Amendment rights by requiring Nequist to limit the definition of “you” to Avant and for Avant to provide “non-privileged information in the custody and control of its officers, employees and agents.” (Ibid.) So too here. The City can provide non-privileged information unimpeded by Ms. Carrillo’s potential assertion of her Fifth Amendment rights. The City can also prepare its case even if it must account for the prospect that Ms. Carrillo may assert her Fifth Amendment rights.

Moreover, the City fails to counter Plaintiff’s point that the focus of the civil case is not on Ms. Carrillo, but rather, as the Plaintiff states, this case is about “the accountability of LAPD officers in the months leading up to the killings.” (Plaintiff’s Opp., p. 10:15-17.) The City fails to identify in any meaningful way how Ms. Carrillo’s assertion of her Fifth Amendment rights impairs its ability to prepare and defend its case, other than the obvious point that it may not be able to elicit testimony from Ms. Carrillo should she invoke her Fifth Amendment rights. As Plaintiff contends, there is a lot more to this case than Ms. Carrillo’s testimony. The City’s first argument lacks traction.

Moving on, the City argues a stay is warranted because civil discovery may negatively impact the integrity of the criminal case. To make its point, the City relies entirely upon the declaration of Deputy District Attorney (DDA) Zygielbaum, the prosecutor assigned to Ms. Carrillo’s case. In his declaration, DDA Zygielbaum states that “[d]isclosure of any part of the LAPD’s homicide investigation, including photos, videos, witness statements, as well as investigative reports, analysis and assessments, would significantly interfere with the ongoing criminal prosecution of Ms. Carrillo. In cases like this, investigation continues during the pendency of the criminal proceedings. Disclosure of this and related information to any non-party to the criminal prosecution would directly compromise both the prosecution and the ongoing investigation.” (Zygielbaum Decl., ¶ 7.) But DDA Zygielbaum does not explain how disclosure would compromise the criminal case. His two-page declaration is devoid of any analysis or factual explanation.

There are several significant problems with this conclusion. The criminal case has been filed, and the preliminary hearing has been completed or will be completed shortly. That means discovery in the criminal case has already been turned over to the defense. Presumably, the discovery produced in the criminal case is the same discovery at issue here. If the City seeks to withhold anything else, the City has not identified it. As far as the Court is aware, the criminal discovery is not subject of a protective order. The City is hard pressed to argue the discovery that has already been produced and disclosed to the defense in the criminal case will somehow prejudice the integrity of the criminal case if it is disclosed again in the civil case. Neither the City nor DDA Zygielbaum explain how disclosure of materials, that have already been disclosed in the criminal case, will negatively affect the integrity of the criminal case.

Nor has the City asserted any privilege to prevent disclosure in the civil case. While the City made a fleeting reference to Evidence Code section 1040(b) in their moving papers, the City made no effort to invoke the privilege. DDA Zygielbaum does not invoke the privilege on behalf of a public entity nor does any authorized law enforcement officer. In fact, no one authorized “by the public entity” has claimed the privilege. (See Evid. Code, § 1040, subd. (b).) Nor has the City attempted to follow the protocol to invoke official information privilege.[3]

Neither the City nor DDA Zygielbaum identify any other subjects or targets of the criminal investigation. No charges are pending against anyone other than Ms. Carrillo. Over two years have passed since the tragic events; more than enough time to develop information that might lead to further criminal investigations. Without any charges pending against anyone other than Ms. Carrillo and no apparent likelihood of further charges being brought (at least no such information was presented to the Court), the City’s concern that others might invoke the Fifth Amendment is far too speculative to warrant a stay.

While the Court appreciates DDA Zygielbaum’s desire and effort to maintain the integrity of the criminal case and its importance, the showing made here, however, fails to demonstrate how the civil discovery will negatively impact the criminal case.

“Clearly, denial of the stay motion promotes the convenience of the court in the management of its cases.” (Avant! Corp., supra, 79 Cal.App.4th at p. 888.) “[C]onvenience of the courts is best served when motions to stay proceedings are discouraged.” (Id.) “Indeed, California courts are guided by the strong principle that any elapsed time other than that reasonably required for pleadings and discovery ‘is unacceptable and should be eliminated.’ (Cal. Stds. Jud. Admin., § 2.) [To that end, c]ourts must control the pace of litigation, reduce delay, and maintain a current docket so as to enable the just, expeditious, and efficient resolution of cases. (Gov. Code, § 68607; Cal. Stds. Jud. Admin., § 2.)” (Alpha Media, supra, 39 Cal.App.5th at pp. 1132–1133 [cleaned up].) Perhaps if there were evidence that multiple people were subjects or targets and would likely invoke their Fifth Amendment rights, the City’s argument about repetitive motions to stay and disruptive litigation might carry more weight. But absent such evidence, this factor weighs in Plaintiff’s favor.

The obvious non-party who has a substantial interest in this matter is Ms. Carrillo. No doubt, Ms. Carrillo’s Fifth Amendment rights are of paramount concern. And if and when the time comes, the Court will address those concerns. But as stated previously, the City cannot invoke those rights on her behalf and, even “a party is not entitled to decide for himself or herself whether the privilege against self-incrimination may be invoked. Rather, this question is for the court to decide after conducting a particularized inquiry, deciding, in connection with each specific area that the questioning party seeks to explore, whether or not the privilege is well founded. This principle applies in both civil and criminal proceedings, and under both the federal and state Constitutions. Only after the party claiming the privilege objects with specificity to the information sought can the court make a determination about whether the privilege may be invoked.” (Fuller, supra, 87 Cal.App.4th at p. 305 (emphasis in original) [cleaned up].)[4] “The trial court must be given the opportunity to determine whether particular questions posed in the depositions would elicit answers that support a conviction or that furnish a link in the chain of evidence needed to prosecute the witness, and which may thus be subject to constitutional protection.” (Id. at p. 308 [cleaned up].)

The only other interested person identified by the City or DDA Zygielbaum is Dr. Teri Miller, Mr. Denton’s cousin. (Zygielbaum Decl., ¶ 9.) There is no evidence Dr. Miller’s interests favor a stay in this case.

As mentioned above, Plaintiff seeks information from the City that may involve several other nonparties, including LAPD officers, DCFS personnel, lay witnesses, medical personnel, and first responders. The City does not identify any basis to believe these individuals/entities have any interest that would warrant a wholesale stay of these proceedings. To the contrary, the expeditious proceeding may well be in these persons’/entities’ interests.

The City argues the public has an interest in ensuring the criminal prosecution of Ms. Carrillo is not subverted by these parallel civil proceedings. To be sure, the public has a clear interest in the integrity of every criminal prosecution. However, as previously discussed, the City fails to adequately demonstrate how civil discovery here will negatively impact the proceedings in Ms. Carrillo’s criminal case.[5] At the same time, the public has an important interest in issues related to the California Child Abuse and Neglect Reporting Act and its implementation as well as in the proper and efficient resolution of civil cases.

In sum, after considering the Keating/Avant! factors, the City’s motion for a blanket stay of the case is DENIED.

Having denied the City’s motion to stay, the Court addresses the City’s motion for 473(b) relief.

Under section 473, subdivision (b), “[t]he trial court has discretion ... on a showing of ‘mistake, inadvertence, surprise or excusable neglect’ to grant relief from a judgment, dismissal or other order based on its evaluation of the nature of the mistake or error alleged and the justification proffered for the conduct that occurred. ‘The general underlying purpose of section 473(b) is to promote the determination of actions on their merits.’ ” (Austin v. Los Angeles Unified School Dist. (2016) 244 Cal.App.4th 918, 928.)

Contrary to Plaintiff’s assertion, “an attorney’s failure to meet a procedural deadline is a proper subject of section 473 relief.” (Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 229.) Because a court can grant such relief does not mean it should. Courts must consider (1) whether the moving party’s mistake is excusable, (2) whether the moving party acted diligently, and (3) whether the opposing party will suffer any prejudice. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258 (Zamora).) “Where the mistake is excusable and the party seeking relief has been diligent, courts have often granted relief pursuant to the discretionary relief provision of section 473 if no prejudice to the opposing party will ensue.” (Ibid.) “ ‘It is well settled that appellate courts have always been and are favorably disposed toward such action upon the part of the trial courts as will permit, rather than prevent, the adjudication of legal controversies upon their merits.’ [Citation.] Thus, ‘the provisions of section 473 of the Code of Civil Procedure are to be liberally construed and sound policy favors the determination of actions on their merits.’ ” (Id. at pp. 255-256.)

Here, the City seeks relief from failing to file oppositions to Plaintiff’s discovery motions (filed on August 30, 2023). The City argues the failure to file its oppositions is attributable to excusable neglect. Joshua A. Quinones, counsel for the City, states in his declaration that Plaintiff’s discovery motions were purportedly “hand-delivered” to him on August 29, 2023. However, Mr. Quinones was not in the office on that date and thus was not aware the motions had been served. Mr. Quinones further states that when he learned the deadline to file oppositions to Plaintiff’s motions had already passed, he emailed plaintiff’s counsel on September 12, 2023 about an extension of the hearing dates on Plaintiff’s motions. (9/19/23 Ex Parte Application, Quinones Decl., ¶¶ 3-6.) Breanna Castaneda, legal secretary in the General Litigation Unit at the Los Angeles City Attorney’s Office, further declares that she failed to calendar oppositions to Plaintiff’s motions under the mistaken belief that the Police Litigation Unit would do so because the motions appeared to concern documents relating to the Los Angeles Police Department. (9/19/23 Ex Parte Application, Castaneda Decl., ¶¶ 2, 11.)

Based on the foregoing, the Court finds the City’s neglect in filing the oppositions to be excusable within the meaning of 473(b). Further, the City diligently sought to rectify the error by ex parte application. Plaintiff argues granting the City 473(b) relief will further delay the discovery Plaintiff seeks and add to the mounting prejudice. However, Plaintiff’s discovery motions were filed less than a month ago. No determination has been made on the merits of those motions. Given the City diligently sought relief and the policy favoring the determination of actions on their merits, the motion for relief under section 473(b) is GRANTED.

The Motion for 473(b) Relief is GRANTED. Plaintiff’s discovery motions are CONTINUED to November 7, 2023 at 1:30 p.m. The City’s oppositions are due by October 18, 2023. Plaintiff’s replies are due by November 1, 2023.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

[1] Unfortunately, neither party submitted a copy of the criminal complaint or information (if one has been filed).

[2] Plaintiff’s opposition was filed and served electronically on September 15, 2023. As such, the City contends Plaintiff’s opposition is a day late. However, as the City was able to file a reply responding to the merits of Plaintiff’s opposition, the City cannot, and does not, claim to have been prejudiced by the late filing. Accordingly, the Court exercises its discretion to consider Plaintiff’s opposition. (Cal. Rules of Court, rule 3.1300(d).)

[3] Prosecutors often appear in camera and file matters under seal when invoking the official information privilege. In doing so, prosecutors identify how disclosure of information may prejudice ongoing investigations or prosecutions and how, on balance, disclosure is not in the public interest. Often, such information includes identification of other suspects or targets; danger to witnesses or informants; destruction of evidence or flight from prosecution. No such showing was made in this case.

[4] Moreover, Plaintiff has already stated he is amendable to delaying her deposition or discovery and/or fashioning appropriate protective orders.

[5] If the City’s concern relates to inflammatory or gruesome photographs or information, the City may seek relief from the Court. And to the extent any piece of evidence may warrant a protective order, Plaintiff represents having offered on numerous occasions to enter a stipulated protective order. Plaintiff states the City has not responded to Plaintiff’s offers.