Judge: Richard Y. Lee, Case: 30-2020-01228884, Date: 2023-07-27 Tentative Ruling

Defendant/Cross-Defendant, Antonio Hernandez (“Hernandez” or “Defendant”), moves for an order to stay all discovery in the case directed to him.

Hernandez contends that the Traffic Collision Report indicates that Hernandez was the driver of the subject motor vehicle that resulted in the death of Joe Joodong Jeon (the “Decedent”); that Officer Lacarra indicated that Defendant caused the accident by failing to yield to Decedent in the roadway in violation of California Vehicle Code section 21954(b); that Defendant, thus, could be charged with vehicular manslaughter in violation of Penal Code section 192(c)(2), driving as an unlicensed driver in violation of Penal Code section 12500(a), and failing to exercise due care for the safety of a pedestrian upon a roadway in violation of California Vehicle Code section 21954(b); that there is no statute of limitations for vehicular manslaughter; that the applicable statute of limitations for driving without a license is one year; and that at the time of the motion, criminal charges have not yet been filed, but that the threat of criminal prosecution is very serious, and that as both a criminal case and the civil action would turn upon the same issues and facts, there is a concern that discovery in the present civil case will unfairly prejudice Defendant’s defense in a criminal matter and that Defendant seeks to preserve his Fifth Amendment rights. Hernandez argues that a stay of discovery would not prejudice Plaintiffs and could proceed as to other parties; that no third parties will be impacted by a stay; that it is in the public’s interest that the Constitution right against self-incrimination be upheld; and that without a discovery stay, Plaintiffs would be filing numerous discovery motions in response to Defendant’s repeated assertions of the Fifth Amendment privilege.  Thus, Hernandez asserts there is good cause to grant a stay to preserve his Fifth Amendment privilege to avoid self-incrimination, and that the Court should stay discovery in this civil case directed at or related to Defendant until there has been a full and complete resolution of the criminal matter, or the applicable statute of limitations has run.

Defendant/Cross-Complainant, Golden Rain Foundation (“GRF”) contends that although he has the burden, Hernandez fails to offer any evidence to show he faces a real and reasonable threat of criminal prosecution; that the statutes of limitation have run on the criminal charges at issue; that even if there was a fear of some type of criminal prosecution, a stay of all discovery directed towards Hernandez should be denied; that Hernandez’s testimony is essential as the driver of the vehicle and the key witness as to how the incident occurred, as well as to establish the basic underlying facts of this matter; that GRF’s liability is directly linked to the acts and/or omissions of Hernandez as it is being sued as being either directly or vicariously liable for the acts of Hernandez, and/or for his employer who failed to verify that Hernandez had a valid driver’s license; that if Hernandez is excused from responding to all discovery, GRF would be greatly prejudiced in presenting its defenses; that Hernandez is not severely prejudiced because he faces no real risk of criminal prosecution as the limitation statutes have run; that both judicial economy and the public interest are served by moving forward with this litigation; and that the Court can examine specific inquiries rather than impose a blanket prohibition to determine if any of the information sought supports any real risk to Hernandez.

Plaintiffs, Sung Hae Jeon and Yang Hae Jeon (“Plaintiffs”), filed a joinder to GRF’s opposition, and also contend that there is no threat of criminal prosecution against Hernandez and Plaintiffs’ counsel received an email on October 26, 2020, from the Seal Beach Police Department informing them that the District Attorney’s Office had decided not to seek criminal charges against Hernandez.

“Where, . . ., a defendant’s silence is constitutionally guaranteed, the court should weigh the parties’ competing interests with a view toward accommodating the interests of both parties, if possible. An order staying discovery until expiration of the criminal statute of limitations would allow real parties to prepare their lawsuit with alleviating petitioners’ difficult choice between defending either the civil or criminal case.” (Pacers, Inc. v. Superior Court (1984) 162 Cal.App.3d 686, 690) In federal practice, “it has been consistently held that when 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. [Citations.]” (Ibid.) “The rationale of the federal cases in based on the 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. [Citation.]” (Ibid.) A court may stay discovery involving civil defendants facing possible criminal prosecution involving the same facts as the civil action. (Id. at pp. 688-690.)

“A civil defendant does not have the absolute right to invoke the privilege against self-incrimination.” (Fuller v. Superior Court (2001) 87 Cal.App.4th 299, 305-306, 308.) “A party or witness in a civil proceeding ‘may be required either to waive the privilege or accept the civil consequences of silence if he or she does exercise it. [Citation.]’ (Id. at p. 305.) “ ‘ “Rather this question is for the court to decide after conducting ‘particularized inquiry, deciding, in connection with each specific area that the questioning party seeks to explore, whether or not the privilege is well founded.’ [Citation.]” [Citations.]’ ” (Ibid.) “This principle applies in both civil and criminal proceedings, and under both the federal and state Constitutions. [Citations.]” (Ibid.) “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. [Citation.]” (Ibid.) “A party or witness in a civil proceeding ‘may be required either to waive the privilege or accept the civil consequences of silence if he or she does exercise it. [Citation.]’ (Ibid.) Courts recognize the dilemma faced by a defendant who must choose between defending the civil litigation by providing testimony that may be incriminating on the one hand, and losing the case by asserting the constitutional right and remaining silent, on the other hand. [Citation.]” (Id. at p. 306.) “Staying civil discovery to await the outcome of a related criminal case might benefit the litigants and does not implicate constitutional issues. [Citation.]” (Ibid.)

With regard to whether or not a defendant is entitled to claim the Fifth Amendment privilege, the Court must determine if the defendant is being compelled to give testimony and whether the defendant has been asked to incriminate himself/herself. (Blackburn v. Superior Court (1993) 21 Cal.App.4th 414, 425.) It is also necessary to decide if the defendant has sufficiently shown that privileged information is being sought. (Ibid.) If a witness can no longer be punished, there is no need for the protection of the Fifth Amendment. (Id. at p. 428.) “With regard to a possible tolling of the statute of limitations, [the defendant] must make a sufficient showing to the trial judge that his belief is based on reasonable fear. (Id. at pp. 430-431.)

Here, despite Hernandez’s claims that there is a serious threat of criminal prosecution, there is no evidence of either a currently pending criminal case against Hernandez, or an investigation into a possible criminal prosecution, such that there is no showing that there is any impending or imminent criminal investigation or prosecution arising out of the alleged incident which occurred on October 31, 2019, over three years ago. As a result, Hernandez has not demonstrated a reasonable belief that his testimony in this civil case will require him to incriminate himself.

In addition, Plaintiffs submit an email dated October 26, 2020, received by counsel from the Seal Beach Police Department stating, “[t]he DA office has reviewed the report and evidentiary materials and as [sic] made the decision not to file charges. The report is now releasable, and it is attached.” (Declaration of S. Christopher Yoo, ¶¶ 2-3; Ex. 1.)

Hernandez also claims that there is no statute of limitations for vehicular manslaughter, and that the applicable statute of limitations is one year for driving without a license, but cites to no authority in support of these assertions. Therefore, Hernandez fails to show that he might be criminally prosecuted for the alleged incident.

Additionally, the Traffic Collision Report purports to be attached as Exhibit A to the Declaration of Yass Sepidnameh, but no Traffic Collision Report is attached. (See ROA 109.)

The opposition attaches the Traffic Collision Report. Hernandez appears to be relying on the statement under “CAUSE” found on page 000131 which states, “Based on the independent witness statement for Wit-1, V-1 caused this collision by failing to yield to a pedestrian in the roadway, a violation of California Vehicle code 21954(b).” This conclusion is based on inadmissible hearsay. More specifically, Officer Nick Lacarra’s statement concerning the cause of the incident is based on the statement of a witness and there is no information as to whether this witness’s statement is trustworthy. (See Rupf v. Yan (2000) 85 Cal.App.4th 411, 430, fn. 6 [hearsay statements contained in an official record are inadmissible where the public employee making the report is not the source of the information but personal knowledge not necessary if the source of the information is trustworthy].)

Based on the foregoing, the threat of criminal prosecution is unsupported and too speculative to stay all discovery against or related to Hernandez. The Motion to Stay All Discovery is therefore DENIED.

GRF to give notice.