Judge Michael P. Linfield, Case 22STCV15352 2023-05-01 Tentative Ruling

Judge: Michael P. Linfield, Case: 22STCV15352, Date: 2023-05-01 Tentative Ruling

SUBJECT: Motion to Stay Action Pending Resolution of a Criminal Investigation and/or Criminal Proceedings, If Any

Defendant’s Motion to Stay Action Pending Resolution of a Criminal Investigation and/or Criminal Proceedings, If Any is DENIED.

Defendant states that “[a]t its core, this is a lawsuit by a multi-billionaire over what to her would be pocket change. It is a lawsuit against a person who has spent years assisting the Sterlings, even saving the life of Plaintiff’s husband, Don Sterling, on one occasion, where the threat of criminal prosecution complicates the defense. The risk to Mr. Fawaz is that the civil action for amounts of money Plaintiff would not even notice is a sham and merely a vehicle to conduct discovery for a criminal prosecution.” (Reply, p. 1:23-28.) The Court simply notes that most of this argument is irrelevant to the issue before the Court; further, the assertion that Defendant saved Mr. Sterling’s life is not only irrelevant, but there is no evidence of this alleged fact. (See, e.g., Paleski v. State Dept. of Health Services (2006) 144 Cal.App.4th 713, 732 [“an assertion is not evidence.”]; Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1173 [“absolutely no evidence was submitted to support this factual claim . . . . Argument of counsel is not evidence.”])

On May 9, 2022, Plaintiff Rochelle Sterling, as Trustee of the Sterling Family Trust, filed her Complaint against Mohammad M. Fawaz, a.k.a. Mohammad Moet Fawaz, a.k.a. Moet Fawaz.

On February 27, 2023, Defendant filed his Motion to Stay Action Pending Resolution of a Criminal Investigation and/or Criminal Proceedings, If Any (“Motion”).

On April 18, 2023, Plaintiff filed her Opposition. Plaintiff concurrently filed her Evidentiary Objections to Declaration of Gary Kurtz, Esq.

Plaintiff filed evidentiary objections to Declaration of Gary Kurtz, Esq. The following are the Court’s rulings on the evidentiary objections.

Objection	SUSTAINED	OVERRULED
1	SUSTAINED
2	SUSTAINED
3		OVERRULED
4	SUSTAINED
5		OVERRULED
6		OVERRULED

“[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 of the federal cases 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.)

Defendant claims that Plaintiff made a criminal complaint with the Beverly Hills Police Department regarding the incidents alleged in the complaint. (Motion, p. 3:4–6.) Defendant requests a stay until the disposition of a criminal matter, if filed, or the expiration of the statute of limitations. (Id. at p. 3:9–10.)

Defendant argues: (1) that the Court has the authority to stay proceedings; (2) that the Court should stay this action; (3) that the potential prejudice of a stay to Plaintiff would be mild at most; (4) that the potential prejudice to Defendant if a stay were denied would be significant; (5) that the convenience of the Court does not seem to be a factor here; and (6) that there is no discernible interest here to non-parties or the public. (Motion, pp. 3:25, 4:4, 5:19, 5:24, 6:1, 6:10, 6:17, 6:22.)

Plaintiff opposes the Motion, arguing: (1) that Defendant never mentioned the Fifth Amendment prior to this Motion, even though the case has been ongoing for nearly a year; (2) that Defendant has the burden here; (3) that Defendant waived the privilege by untimely objections to discovery and tacit admissions; (4) that Defendant has not offered any admissible evidence in support of his Motion; (5) that Plaintiff’s rights override Defendant’s privilege against incrimination; and (6) that consideration of the other relevant factors support denial of a stay. (Opposition, pp. 2:10, 4:25, 5:5–7, 6:9, 7:25, 8:17.)

The Court finds that Defendant has not met his burden for a stay. No admissible evidence has been put forth that would indicate to the Court that Defendant is currently under criminal investigation or that criminal proceedings have begun. The alleged criminal complaint has not been provided, nor has any other official documentation been provided to the Court. Defendant submitted a letter that lacks all of the normal indicia that give documents credibility: the letter is not signed, there is no name above the signature line, and the letter is undated. (See Exh. A to Kurtz Declaration, attached to Motion.) The Court has sustained Plaintiff’s objection to this supposed evidence; there is no reason why the Court should believe it is an authentic letter as opposed to a stalling tactic.

Without evidence, the Court cannot conclude that Defendant faces a threat of self-incrimination, and Defendant does not meet his subsequent burden. (Troy, supra, at 1011.) Further, as of this date, Defendant has not actually invoked his Fifth Amendment rights.

The Court also considers the case law cited by the Parties. In Pacers, the parties asserting their Fifth Amendment privilege against self-incrimination were sued in civil court and indicted. (Pacers, supra, at 687.) In Troy, the party asserting his Fifth Amendment privilege did not meet his burden, even though he had a previous criminal record, was on parole, and the civil suits were related to his prior convictions. (Troy, supra, at 1009–10, 1012.) In Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 883, the issue involved corporate Fifth Amendment rights, not individual Fifth Amendment rights. Thus, these cases are inapposite.

Defendant’s Motion to Stay Action Pending Resolution of a Criminal Investigation and/or Criminal Proceedings, If Any is DENIED.