2012-00131295-CU-MM

Felix Ramirez vs. David Milton Lewis

Nature of Proceeding:    Motion for Stay or for Protective Order

Filed By:   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 GRANTED, in part, and MOOT, in part,
as follows.

Defendant’s request for judicial notice is GRANTED.

The instant action is for dental negligence, informed consent and intentional
misrepresentation.  Plaintiff alleges that Defendant negligently treated and cared for
his dental problems and failed to get his informed consent to the procedures.  Plaintiff
further alleges that Defendant misrepresented to Plaintiff that he had serious dental
issues requiring a number of different dental procedures.

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 in connection with UPS employees, whose
dental care was provided by the Teamsters.

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 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).)

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. This
action was filed in 2012 and trial is scheduled for December 1, 2014.  It is unknown
when the federal prosecution will resolve since Defendant was only recently indicted.
Moreover, Plaintiff argues that Defendant has substantial insurance coverage, thus, he
is not at risk of personally losing a substantial amount of property through the judicial
process.

However, the Court finds that a temporary stay is appropriate.  Thus, further
depositions are stayed for a period of 6 months or until resolution of the criminal
matter, whichever is sooner.

Accordingly, the motion to stay is GRANTED; the alternative motion for a Protective
Order as to defendant’s deposition is therefore MOOT.

Plaintiff’s request for sanctions is DENIED.

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