Judge: Virginia Keeny, Case: 22STCV05453, Date: 2023-01-11 Tentative Ruling


Case Number: 22STCV05453    Hearing Date: January 11, 2023    Dept: W

S S v. DAVID NIKNIA, et al.

 

defendant david niknia’s renewed motion for stay of proceedings

 

Date of Hearing:        January 11, 2023                   Trial Date:       None set.

Department:               W                                               Case No.:        22STCV05453

 

BACKGROUND

 

On February 14, 2022, plaintiff SS (“Plaintiff”) filed this action against defendants David Niknia (“Defendant”), Panorama Medical Group (“PMG”), and Ray Salari, M.D. (“Salari”). Plaintiff asserts causes of action for negligence, sexual assault and battery, sexual harassment in a defined relationship, negligent hiring, training, supervision, and retention, and intentional infliction of emotional distress. Plaintiff alleges that Defendant is a licensed physician’s assistant and the chief financial officer and corporate secretary for PMG, which operates a medical practice. (Compl., ¶ 13.) Plaintiff alleges that on October 14, 2021, Defendant inappropriately, and for no medical purpose, touched her inner thighs, buttocks and vagina and his actions constituted a physical and sexual assault and battery on Plaintiff. (Compl., ¶¶ 27-29.) Plaintiff also alleges that PMG and Salari failed to properly investigate, screen, train, or supervise its employees as to prevent sexual harassment and abuse in their business. (Compl., ¶¶ 18-25.)

 

On May 11, 2022, the instant action was stayed for a period of six months due to Defendant Niknia’s ongoing criminal case against him involving Plaintiff and a violation of Penal Code section 289(D)(3), a felony act of forcible penetration of a victim with a foreign object.

 

Defendant Niknia renews his motion to stay proceedings.

 

[Tentative] Ruling

 

Defendant Niknia’s Renewed Motion for Stay of Proceedings is GRANTED, in part.

 

REQUEST FOR JUDICIAL NOTICE

 

Defendant requests this court take judicial notice of LAPD’s 10-14-2021 Investigative Report and the LASC’s docket and Minute Orders for Case #LAVLA096048-01. The court grants Defendant’s request for judicial notice.

 

In opposition, Plaintiff requests this court to take judicial notice of the following documents: (1) the Court’s Minute Order dated May 11, 2022 (Exh. 1); (2) the of Los Angeles Superior Court Criminal Case Summary; People v. Niknia, Case No: LAVLA096048-01 (Exh. 2); and (3) the California Department of Consumer Affairs (“DCA”) California Medical Board Physician Search of Ray Salari, MD., License No: A42406.

 

The court grants Defendant’s request for judicial notice.

 

DISCUSSION

 

On May 11, 2022, the prior court granted Defendant’s motion to stay proceedings and discovery for six months. The court acknowledged that Plaintiff has an interest in expeditious litigation but that the claims against Defendants Salari and PMG are predicated on a finding of Defendant Niknia’s liability. (Minute Order, May 11, 2022.) As a result, the court found it would be in the interest of judicial economy for the entire case, including discovery, to be stayed for a period of time. (Minute Order, May 11, 2022.) The court invited either party to seek a continuance of the stay by a timely-filed motion upon expiration of the stay. Defendant Niknia seeks to continue that stay.

 

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.)

 

Defendant Niknia argues the existence of the criminal case makes it impossible for him to defend himself against Plaintiff’s allegations without compromising his constitutional rights against self-incrimination. Defendant contends Plaintiff’s allegations against him in this action overlap with the subject matter of an active criminal case and proceeding with this civil action would necessarily implicate Defendant's Fifth Amendment rights.

 

In opposition, Plaintiff argues Defendant Niknia is seeking a second stay of the civil matter even though no concrete timetable has been given to conclude and Niknia’s criminal case and another stay will highly prejudice Plaintiff. For example, Plaintiff contends one of the other named defendants, Dr. Salari, is 90 years old. Given Dr. Salari’s age, Plaintiff is unsure as to Dr. Salari’s health status and his advanced age should give Plaintiff preference to begin discovery as time is of the essence. Moreover, Defendant Niknia’s criminal case does not have a trial date or a preliminary hearing date. The preliminary hearing has already been continued seven times. As a result, there is no end in sight and Plaintiff would suffer substantial prejudice.

 

There is no doubt Defendant’s Fifth Amendment rights are implicated as of the pending criminal proceedings against him arise from the same set of facts as those in Plaintiff’s civil action. While Defendant could assert his Fifth Amendment rights in discovery, the court finds that at this time, fairness weighs in favor of staying the action and discovery as to Defendant Niknia. The court notes the same for Defendant Panorama. Defendant Niknia is both the chief financial officer and corporate secretary of Panorama. (Compl. ¶13.) Because Defendant Niknia may be called to testify on Panorama’s behalf, the court stays the action and discovery as to Defendant Panorama as well. The court further notes the preliminary hearing is set for February 3, 2023. (Reply RJN.) With this new preliminary hearing date, the criminal action may hopefully have an end in sight.

 

However, given Defendant Dr. Salari’s age, the court finds fairness weighs in lifting the stay as to Dr. Salari. Plaintiff has demonstrated their interest in proceeding expeditiously and doing so will not burden Defendant Niknia, nor will it impinge on defendant Niknia’s invocation of his 5th amendment rights. Plaintiff may proceed to propound discovery to Dr. Salari, and Dr. Salari may propound discovery to plaintiff. 

 

Accordingly, Defendant Niknia’s Renewed Motion to Stay Proceedings is GRANTED, in part.