Case Number: BC683665 Hearing Date: June 01, 2018 Dept: 3

LANI AMANN, ET AL.,

Plaintiff(s),

vs.

INDIRA RANI KAPUR, ET AL.,

Defendant(s).

Case No.: BC683665

[TENTATIVE] ORDER ON DEFENDANT’S MOTION TO STAY CASE

Dept. 3

1:30 p.m.

June 1, 2018

1. Background Facts

Plaintiffs, Lani and Randy Amann filed this action against Defendant, Indira Rani Kapur for damages arising out of an automobile accident that killed their son, Lance Amann.

Defendant is being criminally prosecuted for vehicular manslaughter in connection with the incident that gives rise to this wrongful death action.

2. Motion for Stay of Proceedings

At this time, Defendant moves to stay the proceedings herein, contending she cannot meaningfully participate in discovery without implicating her fifth amendment privilege. Plaintiffs oppose the motion, arguing a blanket stay is not appropriate and objections should be raised and considered on a question by question basis.

a. Law Governing Stay of Civil Actions when Parallel Criminal Actions are Pending

Any party or witness in a discovery proceeding may claim the 5th Amendment privilege against disclosure of information that might tend to incriminate him or her under either federal or state law. Zonver v. Sup.Ct. (1969) 270 CA2d 613, 620-621. No “punishment” can be imposed against a party or witness for claiming the privilege against self-incrimination. But, at the same time, a party is not permitted to take advantage of his or her adversary by invoking the 5th Amendment; i.e., the party “may be required either to waive the privilege or accept the civil consequences of silence if he or she does exercise it.” Blackburn v. Sup.Ct. (1993) 21 CA4th 414, 425-426. In any case, a blanket claim of “self-incrimination” is insufficient. The court must have the opportunity to determine whether specific questions pose a threat of self-incrimination. Fuller v. Sup.Ct. (2001) 87 CA4th 299, 305. The party or witness must assert the privilege as to particular questions asked or other evidence sought. A blanket refusal to appear or testify is not sufficient. Warford v. Medeiros (1984) 160 CA3d 1035, 1045.

A defendant claiming the privilege against self-incrimination to avoid discovery risks the court excluding his or her testimony as to such matters at time of trial. See Marriage of Hoffmeister (1984) 161 CA3d 1163, 1169. Alternatively, a plaintiff may seek a protective order prior to trial to bar a defendant from testifying to such matters when the case comes to trial. Pacers, Inc. v. Sup.Ct. (1984) 162 CA3d 686, 688-689.

The court may stay discovery until disposition of any pending criminal proceedings or until the statute of limitations has run on criminal prosecution, so that defendant can no longer claim a 5th Amendment privilege. Pacers, supra, at 689. Such a stay is discretionary; defendant has no right to a blanket stay on 5th Amendment grounds. Klein v. Sup.Ct. (1988) 198 CA3d 894, 905. In Avant! Corp. v. Sup.Ct. (2000) 79 CA4th 876, 885, the court enumerated the factors to be considered in determining whether or not to stay the action. Additionally, a stay is not favored where the statute of limitations on criminal prosecution has years to run. Fuller, supra, at 309.

In Avant!, supra, the court delineated the factors to be considered in determining whether to grant a blanket stay as follows:

In addition, the decision maker should generally consider the following factors: (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.

b. Analysis

In this case, it is clear that there is an ongoing criminal proceeding. When Defendant filed opposition to the motion, Defendant was scheduled to be arraigned on 5/11/18. The Court wishes to hear from Defendant, at the time of the hearing on this motion, concerning whether a trial date has been set in the criminal proceedings. The Court notes that criminal defendants have the right to a speedy trial. Assuming Defendant intends to invoke that right, the Court is inclined to grant a brief stay of the proceedings in this civil action pending resolution of the criminal proceedings. The Court notes that, assuming the criminal trial is set in the next three months, there will be little to no prejudice to Plaintiffs as a result of the stay.

If, however, there will be delays in connection with the criminal proceedings, then the Court would be more inclined to deny the request for a blanket stay and to require the parties to assert any privilege on a question-by-question basis.