Judge Lee W. Tsao, Case Number: 21NWCV00087, Date: 2023-08-31 Tentative Ruling

Judge: Lee W. Tsao, Case: 21NWCV00087, Date: 2023-08-31 Tentative Ruling

DEPARTMENT SE-C LAW & MOTION PROCEDURES ARE AS FOLLOWS: APPEARANCES: The Court will hear oral arguments on all matters at the scheduled time of hearing. If all counsel intend to submit on the Tentative Order and do not want oral argument, please advise the clerk, in Department “C”, by calling (562-345-3702). If all sides submit on the Tentative Order and the clerk is so advised, the Tentative Order will become the final order of the court and the prevailing party shall give written Notice of Ruling per CRC 3.1312. If the Moving and Responding parties do not agree to submit on the Tentative Order, the motion will be called as calendared for hearing. There is no need to contact Department “C”, as the matter will remain on calendar for hearing. If the Moving party does not call Department “C” to submit on the Tentative Order and there is no appearance by any party, then the motion(s), at the Court’s discretion, may be taken off calendar without ruling on the motion(s). ORDERS: The minute order reflecting the Court’s Order will constitute the final Order. No additional orders should be submitted to the Court for signature unless required by law or by the Court. Prevailing party shall give written Notice of Ruling per CRC 3.1312. Minute orders, which constitute the final Order of the Court, will only be sent to the parties via U.S. mail for the following: OSC re: sanctions, OSC re: contempt or matters taken under submission after oral arguments or briefing. Counsel or parties may request copies of all other minute orders/final orders either at the clerk’s office or in writing. If a request is in writing, a self-addressed stamped envelope and the appropriate fee for copies shall be submitted.

Case Number: 21NWCV00087 Hearing Date: August 31, 2023 Dept: SEC

ROJAS v. EL RANCHO UNIFIED SCHOOL DIST.

CASE NO.: 21NWCV00087

HEARING: 08/31/23

Plaintiff ALEJANDRO ROJAS’s Motion to Stay Civil Action Pending Resolution of Alejandro Rojas’s parallel criminal proceedings is DENIED.

Opposing Party to give notice.

Plaintiff ALEJANDRO ROJAS (“Plaintiff”) filed this employment action on February 16, 2021, against Defendants EL RANCHO UNIFIED SCHOOL DIST., and FRANCIS ESPARZA (collectively “Defendants”). Plaintiff alleges that “[b]eginning in September of 2019, while Plaintiff was employed by ERUSD as its Assistant Superintendent of Business Services, he sent multiple emails… in which he disclosed his reasonable belief that ERUSD was engaging in acts that were in violation of California laws.” (Complaint ¶12.) “After Plaintiff disclosed the violation of the law, and prospective violations of law… ERUSD… began to engage in adverse employment actions against Plaintiff.” (Complaint ¶20.) Plaintiff alleges that he was forced to resign on August 16, 2020 due to sex-based discrimination, retaliation from whistleblowing, and “intolerable working conditions”.

A felony complaint was filed against Plaintiff on August 9, 2022. The criminal case alleges that Plaintiff used his position as Superintendent of the Bassett Unified School District to divert more than $1 million of public funds for his personal gain. The next hearing is scheduled to occur on October 11, 2023.

In support of this Motion, Plaintiff argues that he will be prejudiced if forced to choose between providing meaningful discovery responses in this case or invoking his Fifth Amendment right to remain silent out of concern about his testimony’s effect in the pending criminal matter. Defendants seek discovery responses from Plaintiff about his prior employment at Bassett Unified to prove he was unfit to work at El Rancho Unified.

The law is clear that there is no entitlement to a stay of a civil action whenever there are pending criminal charges. (Avant! Corp. v. Sup. Ct (2000) 79 Cal.App.4th 876, 882.) “It seems fairly clear that one liable to criminal prosecution who undertakes himself to litigate related issues as a Plaintiff in a civil suit, is entitled to no relief from the peril of self-incrimination. [Citation.]” (People v. Coleman (1975) 13 Cal.3d 867, 884.) “There may be cases where the requirement that a criminal defendant participate in a civil action, at peril of being denied some portion of his worldly goods, violates concepts of elementary fairness in view of the defendant’s position in an inter-related criminal prosecution. On the other hand, the fact that a man is indicted cannot give him a blank check to block all civil litigation on the same or related underlying subject matter…. The overall interest of the courts that justice be done may very well require that the compensation and remedy due a civil plaintiff should not be delayed (and possibly denied). The court, in its sound discretion, must assess and balance the nature and substantiality of the injustices claimed on either side. [Citation Omitted.]” (Id. at 885.)

“[T]he courts have never allowed a plaintiff to use… the self-incrimination privilege as a ‘shield and as a sword.’ The courts have prevented the plaintiff in such a situation from [blowing] hot and cold.” (Dwyer v. Croker Nat’l Bank (1987) 194 Cal.App.3d 1418, 1432.) “Also, the courts have been quick to find a waiver of the privilege when a plaintiff seeks damages on the one hand and then attempts to inconvenience or hinder or delay the defense in the prosecution of this case by the imposition of a privilege. (Id. at 304-305.) Indeed, a plaintiff who persists in refusal to answer discovery by invoking the privilege against self-incrimination risks dismissal of the lawsuit.

Here, the Court finds that a stay of discovery is not appropriate. In filing the Complaint in the pending civil matter, Plaintiff is deemed to have waived the privilege against self-incrimination with respect to any factual issues raised therein. (Fremont Indemnity Co. v. Sup. Ct (1982) 137 Cal.App.3d 554, 560.) “A plaintiff cannot bring an action and then place it in limbo until it is safe for him to pursue it, requiring the adverse parties to accommodate his convenience while memories fade, witnesses disappear, and the pending litigation frustrates the futures of the defendants.” (Harbrodt v. Burke (1996) 42 Cal.Ap.4th 168, 174.)

The Motion is DENIED.

In Reply, Plaintiff argues that this Court should not consider Defendants’ Opposition because it is untimely under CRC Rule 3.515(d). This argument lacks merit. CCP §404.5 and CRC Rule 3.515 pertain to the Court’s authority to stay an action pending a determination of the appropriateness of coordination. The instant civil action and related criminal action are not being considered for coordination. Therefore, the normal filing and service requirements apply. (CCP §1005(b).) Defendants’ Opposition is not untimely.