Judge: Richard Y. Lee, Case: 30-2020-01173139, Date: 2022-10-27 Tentative Ruling

Plaintiffs Kourosh Nattagh, Sagedmojtaba Mostafavi Ghahfarokhi, Karman Akavan and Dr. Hamid Nikokarie move this Court for an order compelling Responses to Deposition Questions by Defendant Amir Hosseindoust, Defendant Kiasram Khajeouri, and Defendant Nima Alimagham, and for sanctions against Defendants for abuse of the discovery process. Plaintiffs seek sanctions in the amount of $6,300 against Defendants.

The depositions of Defendants Nima Alimagham, Amir Hosseindoost, Kiasram Khajeouri, occurred on May 23, and 26, 2022. [Declaration of Foroozandeh ¶4.]  Each Defendant asserted the Fifth Amendment protection against self-incrimination and refused to answer questions. [Id.¶8.] Moving party indicates that, “Plaintiffs' counsel met and conferred on the record, but Defendants' attorney would not instruct their clients to answer any of the deposition questions.” [Motion page 3:19-21.] This motion followed.

Motion to Compel Answers Generally

Although not specifically cited by Plaintiffs, Ca Code of Civ. Proc. §2025.460(e) provides, in relevant part, “If a deponent fails to answer any question …the party seeking that answer or production may adjourn the deposition or complete the examination on other matters without waiving the right at a later time to move for an order compelling that answer or production under Section 2025.480.”

Additionally, Ca Code of Civ. Proc. §2025.480(a), provides, in relevant part, “If a deponent fails to answer any question…the party seeking discovery may move the court for an order compelling that answer or production.”

The Fifth Amendment Privilege

The 5th Amendment to the United States Constitution provides that no person shall be compelled in any criminal case to be a witness against himself or herself. This provision applies to proceedings in state courts through the 14th Amendment. [See Malloy v Hogan (1964) 378 U.S. 1, 8.] The California Constitution contains a substantially identical provision. [See Cal Const art I, § 15; People v Capers (2019) 7 Cal.5th 989, 1010.]

There is no constitutional right to refuse to testify in a civil proceeding. [Conservatorship of Bryan S. (2019) 42 Cal.App.5th 190, 194.] However, the privilege against self-incrimination not only protects individuals from being forced to testify against themselves in pending criminal proceedings, it also protects individuals from being forced to answer official questions in any other proceedings, civil or criminal, formal or informal, in which they reasonably believe that the answers might incriminate them in a criminal case. [Hudec v Superior Court (2015) 60 Cal.4th 815, 819; Spielbauer v County of Santa Clara (2009) 45 Cal.4th 704, 714.] Thus, criminal defendants have an absolute right not to testify against themselves, while individuals involved in other proceedings may be compelled to testify but cannot be required to incriminate themselves. [Conservatorship of Bryan S., supra, 42 Cal.App.5th at 194–195.]

Any party or witness in a discovery proceeding may claim the 5th Amendment privilege against disclosure of information that might tend to incriminate him or her under either federal or state law.  [Zonver v. Sup.Ct. (Zonver) (1969) 270 Cal.App.2d 613, 620-621.]   

No “punishment” can be imposed against a party or witness for claiming the privilege against self-incrimination. But, at the same time, a party is not permitted to take advantage of his or her adversary by invoking the 5th Amendment; i.e., the party “may be required either to waive the privilege or accept the civil consequences of silence if he or she does exercise it.”  [Blackburn v. Sup.Ct. (Kelso) (1993) 21 Cal.App.4th 414, 425-426.]  In any case, a blanket claim of “self-incrimination” is insufficient. The court must have the opportunity to determine whether specific questions pose a threat of self-incrimination.  [Fuller v. Sup.Ct. (IPC Int'l Corp.) (2001) 87 Cal.App.4th 299, 305.]

The party or witness must assert the privilege as to particular questions asked or other evidence sought. A blanket refusal to appear or testify is not sufficient. [Warford v. Medeiros (1984) 160 Cal.App.3d 1035, 1045.]

If the discovering party moves to compel answers, the burden is on the party or witness to show that the testimony or other evidence could tend to incriminate him or her.  [Warford v. Medeiros, supra, 160 Cal.App.3d at 1045; Marriage of Sachs (2002) 95 Cal.App.4th 1144, 1151-1152.] 

The court must make a “particularized inquiry” as to whether the claimant has met such burden with respect to each claim of privilege. It may be required to conduct “in camera” hearings (outside the jury's presence) to assist such inquiry. It must make findings on the record as to whether the privilege claim is valid as to each question or document.  [Warford v. Medeiros, supra, 160 Cal.App.3d at 1045.]

Finally, although a criminal defendant's 5th Amendment privilege is absolute, parties or witnesses in a civil case must either waive the privilege or accept the civil consequences of exercising it. [Alvarez v Sanchez (1984) 158 Cal.App.3d 709, 712.]

In this instance, reading through the Deposition Testimony of the three Defendants herein, it appears they effectively claimed the 5th Amendment as to practically all questions posed. As to Defendant Hosseindoust, deponent claimed the 5th Amendment privilege as to sixty-seven (67) questions, including question No. 2, “What is your date of birth”. As to Defendant Khajeori, deponent claimed the 5th Amendment privilege seventy-five times (75), including as to question No. 1, “Identify all facts to support your Second Affirmative Defense”. As to Defendant Alimagham, deponent claimed the 5th Amendment sixty-two (62) times, including for example, No. 38, “What is your educational background?” [Separate Statement, pages 1-17; Declaration of Foroozandeh¶¶11-15, Exs. A-C.]

Although Defendants did not technically refuse to appear at deposition, the failure to answer the most basic questions is effectively a blanket refusal to testify.

Furthermore, Defendants have not satisfied their burden that the specific questions posed could tend to incriminate him or her.  Rather, in Opposition, Defendants dedicate just four sentences to sustaining their burden wherein they simply argue, “Defendants are currently represented by criminal defense attorney Scott Well regarding an ongoing criminal investigation.” [Opp. page 7:14-15.] Although Attorney Well provides a declaration that he represents Defendants in an “ongoing criminal matter” [Declaration of Well¶1], he fails to indicate in any meaningful way how any of the specific questions posed herein could possibly incriminate the Defendants in the pending criminal matter.

Notably, however, Defendants submit the Declaration of Defense Attorney Ethan S. Robinson who declares, “The parties’ business had previously received the attached notice regarding its illegal operations. A true and correct copy of the notice is attached hereto as Exhibit A.” It is unclear if this is the “criminal investigation” to which Defendants are referring in their Opposition. Ex. A is a letter from the City of Costa Mesa from October 2017 indicating the Medical Marijuana Dispensary must cease operations, and the failure to do so “will result in enforcement action, including but not limited to fines of up to $500.00/day and/or legal action to abate the nuisance and to recover the City’s enforcement costs.”

However, to the extent this letter serves to establish the “illegal” activity, it appears insufficient. The privilege against self-incrimination does not apply when the witness might merely be exposed to civil liability [Oiye v Fox (2012) 211 Cal.App.4th 1036, 1054; Blackburn v Superior Court (1993) 21 Cal.App.4th 414, 426] or to other nonpenal consequences [see Spielbauer v County of Santa Clara, supra, 45 Cal.4th at 715–718.]

All in all, there is insufficient information before the Court establishing there is a pending criminal matter involving the Defendants, which, if compelled to answer the questions posed herein, could incriminate them in that matter.

The motion is DENIED without prejudice.

The Court directs the attorneys to meet and confer as to each of the questions posed and as to any outstanding issues. If the parties are unable to resolve their differences, Plaintiffs may again files motions to compel and may seek discovery sanctions, including the costs and attorneys fees required to file today’s motion.

Counsel should also meet and confer about the possibility that should Defendants continue to assert the 5th Amendment, the Court will consider striking the 4th Affirmative Defense (Failure to Mitigate) from their Answer to the First Amended Complaint.

Moving party to give notice.