TENTATIVE RULING

Defendants Jeffrey Tamkin and Tamkin Development Corporation’s Motion to Stay Civil Action Pending Resolution of Criminal Proceedings is DENIED.

Defendants Jeffrey Tamkin and Tamkin Development Corporation to give notice. 

REASONING

Defendants Jeffrey Tamkin and Tamkin Development Corporation (“Defendants”) move the Court for an order staying this civil action pending the resolution of an indictment and attendant criminal proceeding against Defendant Jeffrey Tamkin (Los Angeles Superior Court Case No. 514932 (People v. Jeffrey Herter Tamkin)). Defendants argue that a stay is necessary to protect Tamkin’s Fifth Amendment rights in connection with the criminal proceeding, which arises from the same underlying facts as this civil action, and because Tamkin is the only officer and manager of Tamkin Development Corporation, the corporation would be prejudiced by an inability to defend itself. Plaintiff Mark Rogo (“Plaintiff”) has not filed an opposition to the motion.

“[T]he Constitution does not ordinarily require a stay of civil proceedings pending the outcome of criminal proceedings,” but “a court may decide in its discretion to stay civil proceedings when the interests of justice seem to require such action.” (Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 885, quotation marks, ellipses, and brackets omitted.) To determine “whether to stay civil proceedings in the face of a parallel criminal proceeding,” the court “should consider the extent to which the defendant’s fifth amendment rights are implicated.” (Ibid., quotation marks omitted.) The court should also consider the following five 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.” (Ibid.)

Defendants provide evidence that Tamkin was indicted on October 31, 2023, for 110 counts of grand theft, fraud in the offer or sale of securities, money laundering, and fraudulent securities scheme related to notes issued to approximately 20 individuals. (Mot., Liu Decl. ¶ 3, Ex. 1.) Plaintiff is identified as having served as a grand jury witness prior to the indictment. (Ibid.) However, despite Defendants’ representations in their motion, Plaintiff is not identified as a victim in the indictment, nor do any of the counts relate to Tamkin’s alleged failure to repay the loan and any interest due to Plaintiff. Thus, it is not clear from the indictment provided that this civil action and the criminal proceeding concern the same facts except to allege the same conduct by Tamkin as to other individuals. Given that the criminal case does not concern conduct against Plaintiff, the Court is not convinced that all discovery in this case will require Tamkin to choose between testifying here and asserting his Fifth Amendment rights.

Further, the factors identified in Avant! Corp. v. Superior Court, supra, 79 Cal.App.4th at page 876, weigh in favor of denying Defendants’ request for a stay. First, Tamkin Development Corporation does not have a Fifth Amendment privilege against self-incrimination. (Id. at p. 883 [“unlike private individuals, corporations have no privilege against self-incrimination”].) As to Tamkin, Plaintiff’s interest in proceeding expeditiously with this litigation or any particular aspect of it and the potential prejudice to Plaintiff weighs in favor of denying the motion, as requiring Plaintiff to wait for the resolution of the criminal proceeding “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.” (Id. at 887.) Third, as to the burden which any particular aspect of the proceedings may impose on Defendants, it is not clear that Tamkin Development Corporation cannot “appoint an agent who could, without fear of self-incrimination, furnish such requested information as was available to the corporation” (id. at pp. 887-888), which also weighs in favor of denying the motion. Further, Tamkin can assert his Fifth Amendment privilege to certain deposition questions or discovery requests. The third factor, the convenience of the court in the management of its cases, also weighs in favor of denying the motion because “denial of the stay motion promotes the convenience of the court in the management of its cases.” (Id. at p. 888.) The fourth factor, the interests of persons not parties to the civil litigation, has no bearing on the present motion, as there is no evidence before the Court that any other individuals besides Tamkin and Plaintiff are concerned with the outcome of this action. Finally, the fifth factor, the interest of the public in the pending civil and criminal litigation, weighs in favor of denying the motion because the “public has a significant interest in a system that encourages individuals to come to court for the settlement of their disputes.” (Id. at p. 889.)

For these reasons, Defendants Jeffrey Tamkin and Tamkin Development Corporation’s Motion to Stay Civil Action Pending Resolution of Criminal Proceedings is DENIED.