Judge: Virginia Keeny, Case: 21STCV15479, Date: 2023-01-17 Tentative Ruling

Case Number: 21STCV15479    Hearing Date: January 17, 2023    Dept: W

FATEMEH SHAHRIARI v. MOOSA HEIKALI, M.D., et al.

Defendants Moosa Heikali, M.D and Bahram Tabibian, M.D’s motion to stay civil proceedings

Date of Hearing:        January 17, 2023                               Trial Date:       None set.

Department:               W                                                           Case No.:        21STCV15479

BACKGROUND

On April 23, 2022, Plaintiff Fatemeh Shahriari filed a complaint against Defendants Moosa Heikali, MD, Bahram Tabibian, MD, Venus Navarro Julian, MD, and F & M Radiology Medical Center, Inc. dba Sina Urgent Care asserting causes of action for (1) Gross Negligence; (2) Fraudulent Concealment; (3) Intentional Misrepresentation; (4) Medical Malpractice; (5) Medical Battery/Lack of Consent; and (6) Breach of Fiduciary Duty. Plaintiff alleges she went to Sina Urgent Care on January 23, 2020. While there, Dr. Heikali performed an ultrasound for pain Plaintiff was feeling in her right knee. However, before receiving the results of the ultrasound, Plaintiff alleges Dr. Heikali gave Plaintiff a shot in her knee and did not discuss with Plaintiff what the substance was that he was injecting. Plaintiff’s knee began to swell and when she followed up with Dr. Heikali about her knee, Plaintiff alleges Dr. Heikali did not take her seriously. As the pain grew, Plaintiff went to Mission Medical Center where she discovered she had a staff infection. Plaintiff alleges Dr. Tabibian employed Dr. Heikali and Dr. Navarro-Julian was present when Dr. Heikali administered the injection.

Defendants Moosa Heikali, MD and Bahram Tabibian, MD now move to stay the proceedings pending a criminal investigation.

[Tentative] Ruling

Defendants Moosa Heikali, MD and Bahram Tabibian, MD’s Motion to Stay Civil Proceedings is DENIED.

DISCUSSION

Defendants Moosa Heikali, MD and Bahram Tabibian, MD move the court to stay the instant civil proceedings until June 19, 2023 or until the completion of the criminal investigation probing allegations of misconduct by Defendants, whichever is latest.

In deciding whether to stay proceedings when a civil defendant faces parallel criminal charges, courts engage in a two-step process. First, the decision should be made “‘in light of the particular circumstances and competing interests involved in the case’ . . . This means the decision maker should consider ‘the extent to which the defendant’s fifth amendment rights are implicated.’ [Citation.]” (Keating v. Office of Thrift Supervision (9th Cir. 1995) 45 F.3d 322, 324.) Second, the court should consider: “(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.” (Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 885; Keating, supra, 45 F.3d at p. 325.) “[T]he privilege is properly invoked whenever the witness’s answers ‘would furnish a link in the chain of evidence needed to prosecute’ the witness for a criminal offense. [Citation.]” (People v. Cudjo (1993) 6 Cal.4th 585, 617.) “[I]t need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.” (Ibid.)

Defendants argue the criminal investigation and this civil case arise from the same or similar alleged underlying conduct. Accordingly, once the criminal investigation and related proceedings conclude, the likelihood that Defendants can or will assert Fifth Amendment rights will be reduced. Defendants further argue because the lawsuit remains at its beginning stages, a stay of this case prior to any significant action by the court will serve judicial economy without prejudicing the Plaintiffs.

Plaintiff opposes the stay on several grounds. Plaintiff argues that the federal criminal case concerns only Dr. Tabibian and involves facts significantly different from the facts in this case; the state criminal case concerns events in 2017 and 2018, while the complaint concerns events in 2020, and relates to treatment rendered to patients other than Plaintiff; Defendants have waived their privilege; and any 5th Amendment privilege is not even implicated. Plaintiff further contends if the court is inclined to grant a stay of the civil case, Plaintiff requests that she be allowed to continue with her default proceeding against Dr. Navarro.

The court finds Defendants have failed to demonstrate how either Defendants’ Fifth Amendment privilege against self-incrimination will be implicated in the present proceeding. Even if Defendants have pointed to some implication of their Fifth Amendment privilege, a defendant has no absolute right not to be forced to choose between testifying in a civil matter and asserting his Fifth Amendment privilege.¿(Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 885.)¿Not only is it permissible to conduct a civil proceeding at the same time as a related criminal proceeding, even if that necessitates invocation of the Fifth Amendment privilege, but it is even permissible for the trier of fact to draw adverse inferences from the invocation of the Fifth Amendment in a civil proceeding.¿ (Id. at 885-886.) 

First, as noted by Plaintiffs, the Federal proceeding concerns only Dr. Tabibian and involves facts significantly different from the facts in this case. There, the claims against Dr. Tabibian involve Medicare and Medi-Cal fraud. Here, Dr. Tabibian's liability derives from Dr. Heikali's liability of practicing medicine without a valid medical license. Even if the Federal proceeding against Dr. Tabibian has been the cause of repeated stays in the State criminal case against both Defendants, neither Defendant has demonstrated they will suffer any serious burden in having this litigation proceed simultaneously with the pending criminal State action. The court further notes the State action arises from events that occurred between October 1, 2017 and December 14, 2017, which is more than three years prior to Plaintiff receiving any medical treatment in 2020.

The court notes Defendants’ claim that disclosures in this civil action could provide an indirect link to incriminating evidence in the State case. Specifically, Defendants’ medical and licensing history will be reviewed in this action as the two years preceding the allegations in this complaint will provide background to Plaintiff’s claims. However, such issues can be tailored in discovery. If Defendants believe their Fifth Amendment privilege will be implicated during the course of this litigation, Defendants may assert their privilege or seek a protective order from the court narrowing down overly broad discovery requests. Furthermore, the court finds Defendants have not waived their Fifth Amendment privileges. Unlike the defendants in Brown v. Superior Court (1986) 180 Cal.App.3d 701, neither Defendant has responded to discovery.

Although the court is aware of the burden of defending themselves in two criminal trials and a civil trial, Plaintiff also has an interest in proceeding expeditiously with this litigation.  Plaintiff has further established that she may be greatly prejudiced by the delay, given the coverage action pending against her in federal court, as to which both defendants have allowed themselves to be defaulted. 

Accordingly, Defendants Moosa Heikali, MD and Bahram Tabibian, MD’s Motion to Stay Proceedings is DENIED.