Judge: Shirley K. Watkins, Case: 21STCV21242, Date: 2023-04-27 Tentative Ruling
If ALL parties submit on the tentative, then no appearance is necessary unless some other matter (i.e., Case Management Conference) is on calendar. It is not necessary to call the court to request oral argument. Oral argument is permitted on all tentative rulings.
Case Number: 21STCV21242 Hearing Date: April 27, 2023 Dept: T
21STCV21242 JEFFREY MOHAMED ABED vs SHINGKEI THOMAS HO,
[TENTATIVE] ORDER: Plaintiff Jeffrey Abed’s Motion to Stay Proceedings or alternatively to Stay Discovery are both DENIED.
Defendant Simon Zahterian’s Request for Judicial Notice is GRANTED but not as to hearsay or facts in dispute.
On February 7, 2023, Plaintiff Jeffrey Abed (Plaintiff) filed an ex parte notice of motion for order to stay proceedings, or alternatively to stay discovery pending criminal case. The ex parte hearing was held on February 8, 2023. The matter was ultimately heard on March 21, 2023, and the Court temporarily stayed all proceedings. The matter was re-scheduled for the instant hearing. The Court noted that on July 22, 2022, Plaintiff’s motion to stay proceedings was granted and the action was stayed for 180 days pending the criminal case against Plaintiff.
Discussion
Preliminarily, the Court noted that the action was stayed on July 22, 2022, based upon the ground that resolution of the criminal case could streamline the issues in the instant action and allow more efficient progression of the instant action. (Court’s July 22, 2022, Minute Order.) However, the criminal case has not yet completed a pretrial conference despite the pretrial conference first being set on November 1, 2021. Instead of streamlining the issues or allowing for more efficiency, the stay has worked to delay the action without providing any clarity to the claims at issue. On this issue alone, the Court does not find that continuing the stay of the action or a stay of discovery to be beneficial to the instant action.
The court must have the opportunity to determine whether specific questions pose a threat of self-incrimination. (Fuller v. Superior Court (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.) The court may stay discovery until disposition of any pending criminal proceedings or until the statute of limitations has run on criminal prosecution, so that a party can no longer claim a 5th Amendment privilege. (Pacers, Inc. v. Superior Court (1984) 162 Cal.App.3d 686, 689.) However, such a stay is discretionary; a party has no right to a blanket stay on 5th Amendment grounds. (Klein v. Superior Court (1988) 198 Cal.App.3d 894, 905.)
Per the Court’s prior exercise of its discretion, the Court allowed a stay of discovery. However, with the passage of time, the stay, since July 22, 2022, amounts to an unwarranted blanket stay. Because blanket stays are disfavored, the Court does not find Plaintiff to be entitled to a continued stay.
Defendant Simon Zahterian (Defendant) argued that Plaintiff waived the 5th Amendment privilege. It has been established that a plaintiff waives his constitutional privilege against self-incrimination as to "with reference to any factual issues ... tendered by the complaint." (Fremont Indemnity Co. v. Superior Court (1982) 137 Cal.App.3d 554, 560; accord Dwyer v. Crocker National 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 its case by the imposition of a privilege").) “‘If a plaintiff persists in claiming his privilege, he will have to dismiss his lawsuit with prejudice,’” as "`[plaintiff] cannot have his cake and eat it too.'" (Hartbrodt v. Burke (1996) 42 Cal.App.4th 168, 174-175, quoting Fremont Indemnity Co. v. Superior Court (1982) 137 Cal.App.3d 554.) Defendant’s assertion as to waiver is premature because the specific discovery requests are not yet before the Court (i.e., discovery motions are scheduled but not yet at issue due to the instant stay.) There has not yet been “persistence” by Plaintiff in asserting the privilege over discovery orders requiring Plaintiff to respond. No discovery orders have ever been issued. Because of the July 22, 2022, stay, discovery was at a stand-still. The Court exercises its discretion to discontinue the stay.
The motion to stay the proceedings and/or discovery is DENIED. The previous stay is lifted.