Case Name: Cypriano v. Aramark Corp., et al.

 

Case No.: 113CV248762

 

Defendants Aramark Corporation, Aramark Refreshment Services, LLC, Old Time Coffee Company, and Edgardo Jesus Solorzano move for an order staying the proceedings in this case.  Plaintiff Olivia Anabelle Cypriano, by and through her guardian ad litem, Erin Altadonna, opposes.

 

This lawsuit arises out of a June 13, 2012 motor vehicle accident that resulted in the death of Shayla Cypriano.  (Jones Decl. ¶ 2.)  Plaintiff filed the lawsuit on July 1, 2013.  (Jones Decl. ¶ 3.)  Plaintiff propounded discovery requests in July 2013.  (Jones Decl. ¶¶ 4-5.) Defendant asserted his Fifth Amendment rights in written discovery, with the exception of providing insurance information.  (Jones Decl. ¶ 7-8.)  Discovery has been ongoing between Plaintiff and other Defendants.  (Jones Decl. ¶ 10.)  Trial in this case has been set for October 14, 2014. (Jones Decl. ¶ 11.)  Criminal charges of vehicular manslaughter were filed against Defendant Solorzano on June 5, 2014.  (Polverino Decl. ¶ 3.)  An arraignment is scheduled for August 5, 2014.  (Polverino Decl. ¶ 4.)  Immediately upon notification of the criminal charges, Defendants’ counsel began preparing this motion.  (Jones Decl. ¶ 16.)  Plaintiffs have sent notice of their intent to depose Defendant Solorzano.  (Jones Decl. ¶ 12.)

 

Defendants argue that a stay is needed in this case until the disposition of the criminal matter. Defendants assert that Defendant Solorzano has a constitutionally protected right to remain silent and should not be compelled to provide written discovery or testify until the conclusion of his criminal proceedings.

 

In a civil case, a party may be required either to waive the privilege against self-incrimination or to accept the civil consequences of silence if he does exercise it.  (Alvarez v. Sanchez (1984) 158 Cal.App.3d 709, 712.)  However, if the party is the defendant, lesser sanctions such as the exclusion of testimony may be imposed where invocation of the privilege deprives plaintiff of important testimonial or documentary evidence.  (Ibid. at 712-713, fn. 3.)  In lieu of sanctions, the court may stay civil proceedings until disposition of the related criminal proceedings, so that the party can no longer claim a Fifth Amendment privilege. (Pacers, Inc. v. Superior Court (1984) 162 Cal.App.3d 686, 689-690.)  “This remedy [of staying discovery] is in accord with federal practice where it has been consistently held that when both civil and criminal proceedings arise out of the same or related transactions, an objecting party is generally entitled to a stay of discovery in the civil action until disposition of the criminal matter.”  (Ibid. at 690.)  “However, courts are guided by the strong principle that any elapsed time other than that reasonably required for pleadings and discovery is unacceptable and should eliminated.”  (Fuller v. Superior Court (2001) 87 Cal.App.4th 299, 306 (internal quotations omitted).)

 

The trial court “has the discretion to stay civil proceedings […] when the interests of justice seem[] to require such action.”  (Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 887.)  There are six factors to consider in determining whether to delay a civil proceeding in the face of parallel criminal proceedings: (1) whether the “same matter” is involved in both the civil and criminal proceedings and “the extent to which the defendant’s fifth amendment rights are implicated;” (2) 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; (3) the burden which any particular aspect of the proceedings may impose on defendants; (4) the convenience of the court in the management of its cases, and the efficient use of judicial resources; (5) the interest of persons not parties to the civil litigations; and (6) the interest of the public in the pending civil and criminal litigation.  (Ibid. at 883, 885.)

 

1. Same Matter

 

In Pacers, Inc., a bar fight led to a civil suit, and the United States attorney maintained that there was an open file on the case.  (Pacers, Inc., supra, 162 Cal.App.3d at 687.)   The court held that both cases, the pending civil suit and the potential criminal action, were part of the same transaction and thus a stay of discovery was permissible. (Ibid. at pp. 690-691.)

 

There is no contention here that the civil and criminal matters do not arise out the same or related transactions.  The criminal case and the civil suit both arise out of the car crash killing Plaintiff’s mother, and so the same matter is involved in both cases. (See ibid. at pp. 690-691.)

 

1. Interest of Plaintiffs

 

Defendants argue that Plaintiff’s interest is recovery of monetary damages: an interest less important than Defendant Solorzano’s Fifth Amendment rights.  Defendants also argue that the stay is temporary, so Plaintiff will stay have her day in court.  Defendants also argue that a concern that witnesses’ memories will fade is mitigated by the fact that many key witnesses in the criminal case will likely be asked to provide testimony in the civil case.  Also, Defendants argue that a stay would ensure that there are not inconsistent verdicts.

 

Plaintiffs argue that the strongest reason for not imposing a stay is the interest of expediting litigation for the claimant.  Plaintiff argues that she is young and needs the compensation to support her.  Her grandmother has been relying on government benefits to support her.  Plaintiff also argues that the trial could go on forever during the appeal period and that no criminal trial date has been set.  Plaintiff also argues that if a stay is granted, there is the increased danger of prejudice resulting from loss of evidence, including the inability of witnesses to recall specific facts, or the possible death of a party.

 

In Aspen Financial Services v. Dist. Ct. (Nevada, 2012) 289 P.3d 201, 209, the Nevada Supreme Court found that delay caused by the stay would greatly prejudice the plaintiffs’ ability to present an effective case in view of the complex nature of their claims, and that a stay may impede the plaintiff’s ability to obtain negative inferences of the invocation of the Fifth Amendment privilege.  However, when there has been an indictment, the prejudice to plaintiff of staying proceedings is somewhat reduced since the criminal litigation has reached a crisis that will lead to a reasonably speedy resolution. (Trustees of Plumbers and Pipefitters Nat. Pension Fund v. Transworld Mechanical, Inc. (S.D.N.Y. 1995) 886 F. Supp. 1134, p. 1140 (“[Plaintiff’s] interests […] are trumped by defendants’ interest in avoiding the quandary of choosing between waiving their Fifth Amendment rights or effectively forfeiting the civil case. This is particularly true where the subject matter of both cases overlaps to a significant decree and the Criminal Case is expected to be resolved by the end of the year”)).)  In King v. Olympic Pipeline Co. (Washington, 2000) 16 P.3d 45, 56, the court noted that criminal proceedings may benefit the civil proceeding by producing a result that completely resolves the civil liability issues and that resolution of the criminal case may enhance the possibilities for settlement in the civil action. In McCormick v. Rexroth (N.D.Cal. March 15, 2010) 2010 WL 934242, at *3), the court found that because the criminal trial would proceed within a matter of weeks and many of the witnesses would testify in both the criminal and the civil trials, the risk that witnesses’ memories would fade or that evidence would be lost was reduced.

 

Although there is no certainty as to the timing or outcome of a criminal trial, the criminal case is proceeding and is not just a mere possibility.  In addition, the criminal proceedings may benefit the civil proceedings by resolving some issues of civil liability, and witnesses for both cases will be similar, reducing the risk of evidence being lost.  Therefore, prejudice to Plaintiff from a stay is relatively not significant.

 

1. Burden on Defendants

 

Defendants argue that precluding them from establishing a defense because of Defendant Solorzano’s assertion of the Fifth Amendment would make that constitutional privilege too costly and impose a severe and unwarranted penalty.  Defendants argue that a stay is an appropriate and narrowly tailored remedy. Defendant argues that if the motion were granted, then costs would be saved because there would only need to be one deposition, instead of two where Defendant Solorzano asserts his Fifth Amendment rights and the other where he answers the questions.  Defendants also argue that Defendant Solorzano would be prejudiced if the prosecution could use information gained from the civil trial.  Defendants also argue that they need to get the police reports that will be crucial to their defense.

 

Plaintiff claims that Defendant Solorzano would not need to be deposed twice because Defendant can assert his 5^th Amendment privilege and answer questions that do not implicate the privilege.  Plaintiff also argues that most of discovery has already taken place and the remaining depositions will not be affected by the criminal proceeding.  However, the deposition of Defendant Solorzano has not yet taken place. (Jones Decl. ¶ 12.)

 

Courts take different considerations into account in determining the prejudice to the holder of the Fifth Amendment privilege, including whether the holder has been indicted or if the criminal proceedings will actually occur; the likelihood of self-incrimination; the cost of defending the two cases; and whether the government can receive information under civil discovery rules that the government could not receive under criminal discovery rules.

 

a. Pendency of Criminal Proceedings

 

Defendant’s burdens of facing two proceedings would be high because criminal charges against Defendant are already pending.

 

b. Self-Incrimination

 

A party asserting the Fifth Amendment privilege should not suffer penalty for his silence. (Pacers, Inc., supra, 162 Cal.App.3d at 689.)   The court should not force a party to choose between his silence and a meaningful chance of avoiding the loss through judicial process of a substantial amount of property.  (Ibid.)  The court in Pacers, Inc. found that the parties asserting their Fifth Amendment rights were penalized for exercising that right because they were unable to testify on their own behalf.  (Ibid.)  However, “[a] defendant has no absolute right not to be forced to choose between testifying in a civil matter and asserting his Fifth Amendment Privilege.  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 inferences from the invocation of the Fifth Amendment in a civil proceeding.”  (Keating v. Office of Thrift Supervision (9th Cir. 1995) 45 F.3d 322, p. 326.)  This matter turns on whether the litigant is in real danger of self-incrimination in subsequent criminal proceedings.  (King, supra, 16 P.3d at p. 56.)

 

In this case, the burden of self-incrimination is high because criminal prosecution is going forward, unlike the situation in Aspen. (See ibid.)  In addition, there is a real danger of self-incrimination because the issue in the criminal case is substantially similar to the issue in the civil case. (See King, supra, 16 P.3d at p. 56.)

 

1. Cost of Defending Two Cases

 

In this case, the cost of defending the two cases is not a significant burden. Defendant has had at least twelve months to prepare for the upcoming civil case against him, and will have had at least two months to prepare for the criminal case when the arraignment occurs. (See Keating, supra, 45 F.3d at p. 325.)  

 

1. Government Getting Civil Discovery

 

In King, the court stated that “in the absence of government misconduct, the court does not see why an incidental benefit to the truth finding process should be foreclosed, except to the extent it implicates Fifth Amendment rights.”  (King, supra, 16 P.3d at 58.)  King also held that it is a question for the trial court to determine if invocation of the privilege in response to particular questions in a civil case could supply an avenue for investigation by prosecutors. (Ibid. at 58-59.)  In Aspen, the court held that a private plaintiff victim of a criminal act should not receive slower justice than other plaintiffs because the behavior that the victim alleges is sufficiently egregious to have attracted the attention of the criminal authorities.  (Aspen, supra, 289 P.3d at p. 208.)  The concern for the government getting access to civil discovery occurs more when the government is a party in both actions. (Parallel Civil and Criminal Proceedings (1990) 129 F.R.D. 201, p. 205.)

 

The concern of the government having access to civil discovery is low.  First, the government is not a party to the civil action. (See Parallel Civil and Criminal Proceedings, supra, 129 F.R.D. at p. 205.)  Second, there is a lack of evidence of government misconduct, which lowers the concern of the government having access to civil discovery.  (See King, supra, 16 P.3d at p. 58.)

 

1. Convenience of Court

 

Defendants argue that without a stay, particularized findings regarding privilege assertions may be necessary.  Should the matter not be stayed, then there must be a determination as to whether each and every question is entitled to the Fifth Amendment Privilege.  It would be more efficient and less prejudicial to Defendants to let the criminal proceedings fully resolve rather than stall the trial, prevent the presentation of crucial facts, and confuse the jury. Also, Defendants argue that statements, testimony, and other evidence presented in the criminal action may benefit the disputed factual issues in the civil case.  Plaintiff argues that a trial date has already been set for this case and a stay would result in a trial continuance, however, the case is barely a year old.

 

It will be more convenient for the judicial process to stay the civil proceedings and wait for the criminal trial to resolve.  Because the criminal charges are real instead of just being a possibility, the likelihood that the stay will result in an indefinite or protracted duration is minimal, unlike the concern in Aspen. (See Aspen, supra, 289 P.3d at 210.)  Once the Fifth Amendment issue is gone, civil discovery and Defendant’s deposition will proceed more smoothly. (See King, supra, 16 P.3d at 59.)  Therefore, the convenience of the court factors weighs in favor of granting a stay.

 

1. Interest of Non-Parties

 

Plaintiff argues that a stay prejudices the persons currently supporting Plaintiff.  Relative to the concerns about Defendant Solorzano’s right to assert the privilege, this consideration is less important.

 

1. Interests of Public

 

Defendants argue that a stay is beneficial to the public because the complaint does not involve an injury to the public.  By allowing the criminal case to proceed first, the public interest is promoted by assuring constitutional protections are not compromised.

 

Senior Judge Milton Pollack of the Southern District of New York referred to the effect of a stay of a civil case upon the public interest as “perhaps the most important factor in the equation, albeit the hardest to define.” (Parallel Civil and Criminal Proceedings, supra, 129 F.R.D. at 205.)  There is a presumption that the public has an interest in prompt resolution of civil cases.  (Aspen Financial Services, supra, 289 P.3d at 211.)  The public interest is not the intensity of public concern, but rather the public welfare.  (King, supra, 16 P.3d at 60.)  The public interest in the civil litigation has often been a compelling basis for denying a stay because of “tangible threat of immediate and serious harm to the public at large.” (Ibid. (citing Brock v. Tolkow (E.D.N.Y.1985) 109 F.R.D. 116, 120).)  Some public interests considered by courts have included the need to protect consumers from misbranded pharmaceutical drugs, the public interest in stable financial markets, and the public interest in speedy resolution of an action to bar an individual from the federally-insured banking industry.  (King, supra, 16 P.3d at 60.)

 

In King, the court ruled that the stake at interest in the civil litigation was the private rights of the parties to determine the civil liability for the tragic death of a child, and that was a private interest, even though the result of the death was the result of a pipeline disaster. (Ibid. at 60-61.)  In Aspen, the court found that there was public interest against a stay in a civil proceeding that was about how defendants defrauded investors in a large-scale real estate scam. (Aspen, supra, 289 P.3d at 211.)  In Avant! Corp., the court held that the public has a significant interest in a system that encourages individuals to come to court for the settlement of their disputes. (Avant! Corp., supra, 79 Cal.App.4th at 889.)

 

The interests of the public in this case are not significant enough to deny a stay. Because the civil case is addressing a wrong done to Plaintiff individually, this is a case addressing a private interest instead of a public interest. (See King, supra, 16 P.3d at 60-61.)

 

1. Conclusion

 

The factors favor a stay of the civil proceedings. Because the criminal proceedings are real instead of just a possibility, the burden on Defendants is significant. For the same reason, the burden on Plaintiff is low. Judicial economy favors a stay.  Lastly, the public interest affected by the stay in the civil proceedings is not significant.

 

The motion for a stay is GRANTED. The settlement conference set on October 8, 2014, and the trial set on October 14, 2014, are vacated, and a stay review is set for January 22, 2015.