2012-00121297-CU-PN
Randy Caguiat vs. David Milton Lewis D.M.D
Nature of Proceeding:
Filed By:
Motion to Stay
Zaro, Robert B.

Defendant David Milton Lewis, D.M.D.’s Motion to Stay, Or in the Alternative, For
Protective Order Re: Defendant’s Deposition is DENIED. Sanctions are neither
requested nor imposed.

Defendant’s request for judicial notice is GRANTED.Although in reply, defendant objects to the one day late filing and service of the
Opposition papers, the Court has considered them, as the Reply papers address the
merits of the motion.

The First Amended Complaint is alleged as a putative class action with 22 named
plaintiffs alleging four causes of action against Defendant David Milton Lewis, D.M.D:
the 1st for dental negligence, 2nd for dental battery, 3rd for fraud and 4th for intentional
infliction of emotional distress. Plaintiff alleges that Defendant Lewis falsely
represented to each patient that the dental procedures were reasonable and
necessary, with intent to defraud and deceive the patient, when the procedures were
not necessary and were performed for Lewis’ financial gain.

On February 20, 2014, Defendant Lewis was indicted by a Federal Grand Jury on one
count of Conspiracy to Commit Health Care Fraud and to Commit Mail Fraud and
seventeen counts of Health Care Fraud.

Defendant Lewis’ attorney in the federal criminal action, Malcolm Segal, submits his
declaration that based upon his review of the federal Indictment, the pleadings in this
case and materials provided in the licensing proceedings, he has concluded that the
Plaintiffs’ First Amended Complaint in this case involves issues identical to those
charged in the federal Indictment.

Defendant moves to stay the entire action, or in the alternative, for a protective order
precluding Plaintiff from taking Defendant’s deposition, until the disposition of the
criminal case. Defendant moves on the grounds that he is unable to effectively defend
both actions simultaneously and would require Defendant to assert the Fifth
Amendment Privilege against Self-Incrimination.

Stay

The motion to stay is DENIED.

“‘The Constitution does not ordinarily require a stay of civil proceedings pending the
outcome of criminal proceedings.’ (Keating v. Office of Thrift Supervision (9th Cir.
1995) 45 F.3d 322, 324.) Keating observed that the question of whether a civil
proceeding should be stayed pending the outcome of a parallel criminal proceeding
often rests not on the constitutional issue of self-incrimination, but on the issue of
abuse of discretion. ‘In the absence of substantial prejudice to the rights of the parties
involved, [simultaneous] parallel [civil and criminal] proceedings are unobjectionable
under our jurisprudence.’ ‘Nevertheless, a court may decide in its discretion to stay civil
proceedings… when the interests of justice seem[] to require such action.’ [Citations.] (
Ibid.)” (Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 885.)

As noted in Avant!, the Ninth Circuit further stated in Keating that the decision to stay
civil proceedings turns on “the particular circumstances and competing interests
involved in the case,” including the extent to which the defendant’s Fifth Amendment
rights are implicated along with five additional factors: (1) plaintiffs’ interest in
proceeding expeditiously with this litigation and the potential prejudice to plaintiffs of a
delay; (2) the burden which any 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., at 885 (citing Keating, at 324-325).) The Avant! court also noted that a defendant “has no
absolute right not to be forced to choose between testifying in a civil matter and
asserting his Fifth Amendment privilege” and that “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.” (Id., at 885-886 (citing Keating, at 326
and Baxter v. Palmigiano (1976) 425 U.S. 308, 318).)

Plaintiffs’ original complaint was filed March 27, 2012 and trial in this action is
calendared for June 15, 2015. Plaintiffs should not be restricted from conducting
discovery in the entire civil case because Lewis intends to assert his right against self-
incrimination in his deposition. The burden on Lewis would be minimal if discovery
were to continue without him, as his civil attorney can represent his interests. Plaintiffs
concede that defendant is entitled to a protective order as to his deposition alone,
while the criminal case is pending. The convenience of the courts is best served when
motions to stay proceedings are discouraged. Avant!, supra, at 888.

After consideration of the relative weight of the five factors above, this Court does not
find that a stay of the entire action is warranted under the circumstances here.
The present case is also distinguishable from Pacers, Inc. v. Superior Court (1984)
162 Cal.App.3d 686, which held that a trial court abused its discretion by precluding a
party from testifying at trial as a consequence of asserting the Fifth Amendment in
earlier proceedings and thereby effectively punished him for exercising his
constitutional rights. Here, it does not appear to the Court that Defendant is likely to be
“punished” merely as a result of asserting the Fifth Amendment privilege. This is not to
say that there may not be some undesirable consequences, but that alone is
insufficient to justify the imposition of a complete stay of all proceedings.

Protective Order

The motion for protective order is also DENIED, without prejudice. It does not appear
that counsel for Defendant met and conferred with Plaintiffs prior to moving for a
protective order. Despite plaintiff’s concession, the Court is constrained by the
language of the various code of civil procedure sections, infra, requiring a meet and
confer.

Code Civil Proc. § 2017.020(a) provides: “The court shall limit the scope of discovery if
it determines that the burden, expense, or intrusiveness of that discovery clearly
outweighs the likelihood that the information sought will lead to the discovery of
admissible evidence. The court may make this determination pursuant to a motion for
protective order by a party or other affected person. This motion shall be accompanied
by a meet and confer declaration under Section 2016.040.” [Emphasis added]
Similarly, C.C.P., sec. 2025.420 (a) provides: “Before, during, or after a deposition, any
party, any deponent, or any other affected natural person or organization may promptly
move for a protective order. The motion shall be accompanied by a meet and confer
declaration under Section 2016.040.”

C.C.P., sec. 2016.040 provides in full that “A meet and confer declaration in support of
a motion shall state facts showing a reasonable and good faith attempt at an informal
resolution of each issue presented by the motion.”

Although the defense filed a declaration by Malcolm Segal, defendant’s criminal defense attorney in the federal action, in support of this motion to stay and/or for
protective order, no “meet and confer declaration” as mandated by the statutory
language has been submitted in support.

However, by denying the stay, the Court is not in any way minimizing or ignoring the
Fifth Amendment interests involved here. The privilege against self-incrimination may
be asserted as appropriate in response to current and future discovery, whether
written discovery or deposition questions. Both parties concur that defendant Lewis’
Fifth Amendment rights are implicated here, but the Court may not disregard the intent
of the Legislature as set forth in the mandatory statutory language.

If and when Plaintiff moves to compel Defendant’s discovery responses and/or
deposition testimony over a Fifth Amendment objection or moves for some other
sanction in connection with the assertion of Fifth Amendment rights, the Court will then
evaluate the merits of the objection and if warranted, fashion an appropriate remedy
which balances the various competing interests. See, e.g. Fuller v. Superior Court
(2001) 87 Cal. App. 4th 299, 302-303.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.