Case Number: BC721598 Hearing Date: June 21, 2019 Dept: 2

Motion to Stay Discovery as to Defendant, Michael Faustino Elias, filed on 5/23/19, is GRANTED. The court imposes a stay of discovery directed to Defendant that would require his testimony or response. The parties are otherwise permitted to proceed with discovery obtained from other sources. The court orders Defendant to provide the court with a status report with respect to the criminal proceeding in six months. The court sets an OSC re: Status of Discovery Stay and Criminal Proceeding on December 20, 2019, at 8:30 a.m. in Department SS-2.

A civil defendant facing a parallel criminal proceeding does not have an absolute right to stay the civil proceedings pending the outcome of the criminal trial. Defendant cites Pacers Inc. v. Superior Court (1984) 162 Cal. App. 3d 686, which found that that the punishment imposed by the trial court against the defendants was an abuse of discretion because it penalized them for invoking their 5th Amendment rights. Pacers acknowledged that real parties had no right to information protected by the privilege against self-incrimination. Pacers at 689.

The Pacers court found that the more appropriate remedy would be to weigh the parties’ competing interests and accommodate both parties’ interests, which could include staying discovery until the criminal prosecution is completed, even if doing so causes delay in the civil action. Pacers at 690.

Defendant also cites Avant! Corp. v. Superior Court, (2000) 79 Cal. App. 4th 876, 885-886, which is instructive. Avant! holds that in the exercise of its discretion to stay the action, the court considers a number of factors. It is permissible to conduct both proceedings simultaneously. Avant! at 885-886.

The court has discretion to stay the civil proceedings after consideration of the Keating factors, which involves determining the extent to which the criminal defendant’s 5th Amendment rights are implicated. This includes consideration of:

(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! at 885.

A stay is not constitutionally required. In exercising its discretion, the court can fashion any remedy that justice requires. Avant!, at 886.

The consideration of all the Keating factors weigh in favor of a stay of discovery directed to Defendant in order to preserve his rights under the 5th Amendment to the Constitution.

(1) Plaintiffs have an interest in proceeding expeditiously in the resolution of their case. However, while the Pacers court recognized that a stay would cause inconvenience and delay, “protecting a party’s constitutional rights is paramount.”

“We recognize postponing petitioners’ depositions until January 1986 will cause inconvenience and delay to real parties; however, protecting a party’s constitutional rights is paramount.” Pacers, Inc. v. Superior Court (1984) 162 Cal.App.3d 686, 690.

Plaintiffs argue that Defendant has been freely propounding his own discovery to prepare for his defense without limitation, and therefore, he should be estopped from requesting a broad discovery stay. Opposition, 6:1-4. Plaintiffs have not cited any authority that would prohibit Defendant from engaging in his own discovery to prepare for his defense.

(2) The burden on Defendant is great as compelling his testimony and discovery responses about the same facts at issue in his criminal proceeding will implicate his constitutional rights.

(3) Plaintiffs have not established that there are other persons who are not parties to this litigation whose interests are at issue that outweigh Defendant’s constitutional rights.

(4) The convenience of the court and efficient use of its resources are better served by a stay of discovery directed to Defendant to avoid the likely and repeated discovery conflicts and motion practice that will arise when Defendant does invoke the Fifth Amendment privilege in response to discovery and deposition questions concerning the same facts involved in the pending criminal prosecution.

(5) Efficient use of the court’s resources inures to the public’s benefit.

For the same reason, Plaintiffs’ request to limit the discovery stay to permit “non-testimonial evidence from Defendant” is not reasonable as this remedy will likely require the court’s repeated involvement to determine whether any particular question or interrogatory is “testimonial” in nature and implicates Defendant’s 5th Amendment rights.

Moreover, as Pacers makes clear, a civil Defendant facing criminal prosecution has no obligation to disclose information “they reasonably believed might be used against them in a criminal proceeding” as they do not receive immunity against the use of their deposition answers or evidence derived from those answers in a criminal proceeding. Pacers, Inc. v. Superior Court (1984) 162 Cal.App.3d 686, 688–689.

By the same token, Defendant’s 5th Amendment rights are personal, and do not preclude Plaintiffs from discovering information from other sources. People v. Leavitt (1932) 127 Cal. App. 394, 396.

Defendant concedes that issue as Defendant states he seeks to stay “only the discovery that is directed to him.” Reply 4:18-19.

He acknowledges that “other parties and witnesses can proceed freely with discovery.” Reply 4:11-12.

He concludes that the court can “grant the motion and order staying discovery directed to Defendant.” Reply 7:6-7.

The court sets an OSC re: Status of Discovery Stay and Criminal Proceeding on December 20, 2019, at 8:30 a.m. in Department SS-2.

Moving party is ordered to give notice.