Judge: Theresa M. Traber, Case: 20STCV19343, Date: 2022-08-10 Tentative Ruling

Case Number: 20STCV19343    Hearing Date: August 10, 2022    Dept: 47

JENNIFER PERAZA vs SAND & SEA, INC., Case No. 20STCV19343

TENTATIVE RULINGS ON UNRESOLVED MOTIONS IN LIMINE (MIL)

Defendants’ MIL # 3:  seeking to exclude any evidence or reference to the criminal record of Defendant Sand & Sea, Inc.’ Chief Executive Officer, Steve Farzan.

TENTATIVE RULING:  DENIED, without prejudice. 

Under Evidence Code § 788, the credibility of a witness may be attacked by showing that he or she has been convicted of a felony.  (Evidence Code § 788.)  This may be done by examination of the witness or by offering the record of the criminal judgment.  (Id.)  There are exceptions to this rule, but Defendants have not relied on any statutory exceptions in their motion or demonstrated that any such exceptions may apply. 

“’Misdemeanor convictions ... are not admissible for impeachment, although evidence of the underlying conduct may be admissible subject to the court's exercise of discretion.’ (People v. Chatman (2006) 38 Cal.4th 344, 373, 42 Cal.Rptr.3d 621, 133 P.3d 534; see also Wheeler, supra, 4 Cal.4th at pp. 295–299, 14 Cal.Rptr.2d 418, 841 P.2d 938.) ‘Past criminal conduct involving moral turpitude that has some logical bearing on the veracity of a witness in a criminal proceeding is admissible to impeach’ a witness. (People v. Harris (2005) 37 Cal.4th 310, 337, 33 Cal.Rptr.3d 509, 118 P.3d 545.) Moral turpitude offenses ‘include[ ] crimes in which dishonesty is an element (i.e., fraud, perjury, etc.).’ (People v. Chavez (2000) 84 Cal.App.4th 25, 28, 100 Cal.Rptr.2d 680.)”  (People v. Cadogan (2009) 173 Cal. App. 4th 1502, 1514 [Emphasis added].)

It is established that both felony convictions and criminal misconduct involving acts of moral turpitude are relevant to question a witness’s credibility.  As the Supreme Court explained in People v. Wheeler (1992) 4 Cal.4th 284, 295, for example, “nonfelony conduct involving moral turpitude is admissible to impeach a criminal witness” because it is probative of the witness’s credibility: 

“‘[I]t is undeniable that a witness' moral depravity of any kind has “some tendency in reason” [citation] to shake one's confidence in his honesty .... [¶] There is ... some basis ... for inferring that a person who has committed a crime which involves moral turpitude [even if dishonesty is not a necessary element] ... is more likely to be dishonest than a witness about whom no such thing is known. Certainly the inference is not so irrational that it is beyond the power of the people to decree that in a proper case the jury must be permitted to draw it ....’ [Citation.]”

(Wheeler, supra, 4 Cal.4th at p. 295.)

Although it is relevant evidence to challenge witness veracity, tThe Court has discretion under Evidence Code § 352 to exclude such criminal evidence if the probative value is substantially outweighed by its prejudicial effect.  (People v. Beagle (1972) 6 Cal.3d 441 (felony convictions); People v. Feaster (2002) 102 Cal.App.4th 1084, 1093-1994 [“The admission of past misconduct involving moral turpitude to impeach a witness in a criminal trial is subject to the trial court’s discretion under Evidence Code section 352].)

The California Supreme Court explained the factors to be considered in assessing whether a felony conviction admissible under § 788 should nonetheless be excluded under § 352.  In People v. Beagle (1972) 6 Cal.3d 441, the Supreme Court held that a trial court may exclude evidence of prior felony convictions offered to impeach a witness upon balancing the following four factors:

(1) Whether the prior convictions reflect adversely on the defendant's honesty or veracity;

                (2) Whether the prior felony conviction is near or remote in time;

(3) Whether the prior felony conviction is for substantially similar conduct for which the accused is on trial;

(4) The effect if the defendant does not testify out of fear of being prejudiced because of impeachment by prior convictions.

(Id., at p. 453.)  The first two factors are to be weighed “against the probability that admission of such evidence ‘will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury,” while the “third and fourth factors provided guidance in assessing the weight of these countervailing considerations.”  (People v. Lassell (1980) 108 Cal. App. 3d 720, 724.) 

Defendants’ motion asserts sweeping generalizations about Mr. Farzan’s criminal convictions and record and fails to offer the kind of detail necessary for the Court to rule on the admissibility of any aspect of the targeted record.  A cornerstone of Defendants’ motion is to refer to the evidence sought to be excluded as a criminal record spanning from 2002 through 2014, without clearly explaining the specifics of the record including the nature or exact dates of any felony convictions.  These are critical touchstones for the Court’s analysis.  Thus, for example, Defendants urge exclusion of all aspects of the criminal record as irrelevant and remote in time.  But a felony conviction in the 2012-2014 period may not be considered so far detached from the period of Plaintiff’s employment in 2017-2019 to warrant exclusion.  (People v. Lassell, supra, at p. 725 (4-year-old conviction is not too remote to be admitted); People v. James (1978) 88 Cal.App.3d 150, (five-year-old prior used); People v. Boothe (1977) 65 Cal.App.3d 685 (six-year-old prior used).)

Because Defendants have failed to provide the kind of detailed information necessary for the Court to assess the admissibility of Mr. Farzan’s criminal record, the Court must deny the motion without prejudice to the objection being raised at trial. 

Defendants’ MIL # 4:  seeking exclusion of evidence or argument about Mr. Farzam’s currently pending criminal proceedings and/or his exercise of his right against self-incrimination.

TENTATIVE RULING:  GRANTED IN PART, as to any mention of Mr. Farzam’s invocation of this right against self-incrimination, and otherwise DENIED, without prejudice. 

“California law, . . ., makes no distinction between civil and criminal litigation concerning adverse inferences from a witness's invocation of the privilege against self-incrimination; under Evidence Code section 913, juries are forbidden to make such inferences in both types of cases. (In re Scott (2003) 29 Cal.4th 783, 815–816, 129 Cal.Rptr.2d 605, 61 P.3d 402.)”  (People v. Holloway (2004) 33 Cal. 4th 96, 131.)  Consistent with these protections, the Court directs Plaintiff to avoid any mention or offer of evidence of Mr. Farzam’s invocation of his right against self-incrimination. 

This ruling does not bar Plaintiff from introducing evidence about Mr. Farzam’s criminal misconduct or felony convictions as a means of attacking his credibility.  (See above.)  Thus, Plaintiff may offer evidence that of Mr. Farzam’s criminal misconduct, including that he attempted to coerce a witness, engaged in identity theft, etc, in 2017, as a means of attacking his credibility as a witness.

Defendants’ MIL # 5:  seeking exclusion of evidence or argument about prior litigation and settlement of sexual harassment lawsuits against Mr. Farzam.

Defendants’ MIL # 6:  seeking exclusion of evidence or argument about other claims and lawsuits against Defendant Sand & Sea.

TENTATIVE RULING:  DENIED.  The Court cannot rule on these motions without information about what specific evidence Plaintiff will offer at trial and the purpose(s) for which it will be offered. 

Defendants’ MIL # 7:  seeking exclusion of evidence or argument about Plaintiff’s childhood sexual abuse.

TENTATIVE RULING:  GRANTED.  Plaintiff’s deposition testimony indicates that she has no residual injury from her childhood sexual abuse.  Moreover, Plaintiff has not opposed  the motion or offered any basis for admitting evidence of her childhood mistreatment.