Judge: Stephen P. Pfahler, Case: 21STCV20229, Date: 2022-08-31 Tentative Ruling

Case Number: 21STCV20229    Hearing Date: August 31, 2022    Dept: F49

Dept. F-49

Date: 8-19-22

Case #21STCV20229

Trial Date: 4-24-23

STAY

MOVING PARTY: Defendant, Jose Bravo

RESPONDING PARTY: Defendant, Nissan North America, Inc.

RELIEF REQUESTED

Motion to Stay the Case Pending Criminal Charges

SUMMARY OF ACTION

On October 18, 2020, Plaintiff Eric Finn was driving a 2015 Nissan Sentra vehicle, with plaintiff Asia Finn, and Murdewiyanti and Talent James Finn on SR-14, when the vehicle began decelerating, even though the tachometer showed the engine continued to operate. Eric attempted to reach the shoulder, but was only able to bring the vehicle to the “number 5 lane” before the vehicle completely stopped. “Approximately 20-30 seconds” after coming to a stop, “a 13-ton flatbed tow truck” owned and/or operated by the “Tow Co.” defendants and driven by defendant Jose Bravo collided with the Finn vehicle. The collision led to the deaths of Murdewiyanti and Talent James.

Plaintiffs allege defendant Bravo was driving with a suspended license due to a prior driving under the influence charge. Plaintiff also alleges a prior incident with a driver for the subject “Tow Co.” defendants.

As to Defendant Nissan North America, Inc. (Nissan) Plaintiffs allege that the sudden deceleration was the result of a known defect within the transmission, which Nissan failed to correct. Plaintiff lists a number of vehicles and models allegedly utilizing the subject transmission, and reports of prior incidents reported to the National Highway Traffic Safety Administration (NHTSA).

On May 28, 2021, Plaintiffs filed a 238 paragraph complaint (plus exhibits) for Strict Product Liability: Design Defect and Failure to Warn, Negligence (twice), Breach of Implied Warranty, Negligence Per Se, Intentional Infliction of Emotional Distress, Wrongful Death, Survival Action, and Unfair Business Practices (Business and Professions Code section 17200). On August 18, 2021, Plaintiffs dismissed Nissan from the intentional infliction of emotional distress cause of action.

On September 28, 2021, Department 31 transferred the action to Department 49. On December 6, 2021, the court granted the motion to strike the complaint. On January 5, 2022, Plaintiffs filed their first amended complaint for Strict Product Liability: Design Defect and Failure to Warn, Negligence (twice), Breach of Implied Warranty, Negligence Per Se, Intentional Infliction of Emotional Distress, Wrongful Death, Survival Action, and Unfair Business Practices (Business and Professions Code section 17200). Nissan is the only named defendant in the first, second, third, and ninth causes of action, while the “Tow Co.” defendants are the only named defendants in the fourth, fifth and sixth causes of action. All defendants are jointly named in the seventh, eighth, and ninth causes of action.

RULING: Denied

Defendant Jose Bravo moves to stay the action pending the prosecution of two felony counts for vehicular manslaughter, and one misdemeanor count for driving on a suspended or revoked license.  The motion is presented as to Bravo only and no other parties. Bravo represents that the District Attorney’s office has not granted immunity to testify in the civil action, which will therefore require the invocation of Fifth Amendment privileges during deposition and/or trial. The motion also comes as a result of co-defendant Nissan North America propounding discovery and seeking Bravo’s deposition.

Defendants Nissan North America (Nissan) and Automobile Club of Southern California (ACSC) submit oppositions to the motion. Plaintiff submitted a joinder to the Nissan North America opposition.

Nissan in opposition contends the motion is both premature and procedurally improper. No deposition has been noticed, and Bravo failed to seek a protective order prior to bringing the instant motion. Nissan challenges any “blanket” use of the Fifth Amendment privileges. On the substantive merits, Nissan challenges the necessity for a peremptory stay, due to prejudice, lack of a showing of burden by Bravo, and public interest in expeditiously proceeding with adjudication of the case. Nissan also proposes a protective order whereby Bravo would be precluded from waiving any Fifth Amendment rights in discovery or at trial unless and until Bravo notifies all parties and the court at least 180 days before trial of Bravo’s intent to waive Fifth Amendment rights.

ACSC opposes a blanket stay of the action. ACSC seeks the ability to ask relevant questions without requiring self-incriminating responses. If a stay is still justified, ACSC requests a stay of the entire action. ACSC contends it will be prejudiced if the action is stayed as to Bravo only, while the other Defendants proceed with the action.

Bravo in reply reiterates that a stay of the action as to Bravo is both “fair and reasonable.” Bravo characterizes the requested duration of the stay as “short,” based on the filing of charges on October 15, 2021, and a purported plea deal. The product liability discovery can continue against Nissan without any required input from Bravo. Finally, Bravo maintains that a stay will eliminate potential piecemeal “squabbling” over each and every request leading to the invocation of the Fifth Amendment privilege.

Trial courts generally have the inherent power to stay proceedings in the interests of justice and to promote judicial efficiency. (Freiberg v. City of Mission Viejo (1995) 33 Cal.App.4th 1484, 1489.) A party may move to stay an action “until expiration of the criminal statute of limitations would allow real parties to prepare their lawsuit” in order to alleviate the choice of testifying against one’s Fifth Amendment right against self-incrimination versus defending a civil action. (Pacers, Inc. v. Superior Court (1984) 162 Cal.App.3d 686, 690.)

The necessity of a stay “depends on the trial court's ability or lack of ability to fashion a remedy that would protect the employees' Fifth Amendment interests while subjecting the corporation to the compulsion of the discovery procedure.” (Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 886.) Five factors determine the necessity of a stay: “(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.” (Id. at 887.)

The court finds the motion procedurally proper. While a motion protective order constitutes an alternative means for considering whether plaintiffs and co-defendants may proceed with discovery against Bravo, it is neither the sole means for raising the issue, nor a required precursor. (People ex rel. City of Dana Point v. Holistic Health (2013) 213 Cal.App.4th 1016, 1031 [“Like A & M Records, Fuller v. Superior Court (2001) 87 Cal.App.4th 299, 104 Cal.Rptr.2d 525 (Fuller) illustrates the established procedure that a trial court must consider a protective order or otherwise hold a hearing to evaluate the important interests at stake before excluding testimony or other evidence when a defendant asserts the Fifth Amendment in a civil trial”]; Fuller v. Superior Court (2001) 87 Cal.App.4th 299, 305–306 [“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”]; A & M Records, Inc. v. Heilman (1977) 75 Cal.App.3d 554, 567.)

The court therefore considers the question of the propriety of allowing discovery as to Bravo pending the criminal prosecution. Plaintiffs clearly have an interest in proceeding with their action, and other than the opposition to ACSC, the remaining defendants either submit no opposition and/or in the case of Nissan support its interests for proceeding on claims unrelated to the conduct of Bravo. Bravo concedes as much in that the motion only seeks to stay the case as to the civil claims designating Bravo as a defendant. The court therefore finds no need to further consider the potential prejudicial impact and interest factors in favor of Plaintiffs and the non-impacted Defendants.

Nevertheless, the court finds the general request for a stay as to Bravo prior to even notice for any deposition and limited discovery lacks support under the efficiency standard and prejudice standard as to Plaintiff and ACSC. While not addressed in the motion, Bravo in reply now states that a plea deal is pending, but it still remains unclear if and when any deal will be reached. The court declines to allow for an open-ended duration of time, even if characterized as a “short” period of time, given the scale of the action. Further, if Bravo pleads to a conviction, it remains unclear whether Bravo will be remanded into custody, thereby making a deposition and discovery all the more difficult.

The motion and reply also fails to account for another important distinction—non-privileged information seeking inquiries. The motion in general lacks specific examples of potential pitfalls for Bravo in the pending criminal plea deal. While Bravo will expectedly invoke the right against self-incrimination for conduct involving the operation of the vehicle, the claims against ACSC only tangentially arise via the vicarious liability claims. Nothing in the motion establishes that each and every question will directly impact Fifth Amendment privileges, including the vicarious liability inquiries. A complete stay on discovery into non-privileged information constitutes a greater impact on the efficiency towards the adjudication of the action.

In other words, the involvement of Bravo is more than just the conduct leading to the criminal charges. A total stay presents an outsized impact to the adjudication of the claims unrelated to the actual operation of the tow vehicle. The parties should be able to inquire into said non-related areas. The court therefore finds a right to proceed on said non-privileged information based claims.

Because the court is not presented with any Fifth Amendment implications at this point or any request for potential remedies, the court allows the parties to determine the scope of the inquiry and potential areas of dispute. Given the assumption that ACSC remains subject to vicarious liability claims for the conduct of Bravo, the court will allow ACSC, Plaintiffs, and Bravo to establish the boundary regarding the potential intersection between relevant discovery inquiries and self-incrimination. The court declines to make advanced findings on issues such as whether potential questions regarding Bravo as an agent or employee of ACSC would actually require invocation of Fifth Amendment privileges or not. The parties may meet and confer on these issues first. The parties may seek court intervention in a single motion regarding the impacts of the Fifth Amendment privileged testimony, if necessary, but the court sees no need for inefficient piecemeal submission of disputes as suggested in the reply. Bravo is presumptively only required to appear for a single deposition session, with the potential for further questions to be determined. The parties may even agree to the appointment of a referee for the supervision of the deposition in order to more efficiently resolve certain disputes at the time. The court also invites to the submission of any stipulated protective order as suggested by Nissan.

The motion is therefore denied. Nothing in the motion supports a finding for a blanket application of potential Fifth Amendment privilege objections before any questions on potential non-self incriminating inquiries have been presented. In this ruling, the court only finds that a preemptive stay of all discovery as to Bravo is unwarranted given the ability to still seek relevant information to the prosecution and defense of the case not related to the Fifth Amendment protections. The imposition of a stay would lead to greater prejudice to the other parties, unfairly increase the burden and impacts interests, and increase demand of judicial resources rather than yield greater efficiency.

Motion for release of coroner photographs set for September 2, 2022.

Bravo to give notice to all parties.