S. Shattuck v. H. Shattuck CASE NO. 114CV259637
DATE: 13 June 2014 TIME: 9:00 LINE NUMBER: 16
This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 12 June 2014. Please specify the issue to be contested when calling the Court and counsel.

On 13 June 2014, the motion of defendant Herbert Shattuck (“Herbert”) for a protective order limiting discovery was argued and submitted. Plaintiff Sheila Shattuck (“Sheila”) filed a formal opposition to the motion, in which she requests monetary sanctions.

All parties are reminded that all papers must comply with California Rules of Court, rule 3.1110(f).

Statement of Facts

This personal injury action arises from a domestic dispute between Herbert and his wife, Sheila, which occured on 24 September 2013. Upon learning that Sheila intended to dissolve their marriage, Herbert confronted her at their home. Sheila alleges that Herbert grabbed her upper arms and threw her into a kitchen cabinet. After her back struck the cabinet, Sheila fell, hitting her head against the granite countertop. Once Sheila regained her footing, she attempted to call the police using their home telephone, but Herbert seized the phone out of her hand and began shouting at her. Sheila fled and managed to reach a neighbor’s house, where she called the police. Sheila alleges that, as a result of Herbert’s conduct, she sustained significant injuries to her head, back and elbows.

In her complaint, Sheila asserts four causes of action against Herbert for (1) battery, (2) assault, (3) intentional infliction of emotional distress, and (4) negligent infliction of emotional distress.

A short while after the altercation occurred, the police arrested Herbert and charged him with felony spousal abuse. The criminal action (Case No. C13022910) is still pending.

Discovery Dispute

On 25 February 2014, Sheila served requests for admissions, set one (“RFA”) and form interrogatories, set one (“FI”) on Herbert.

Upon receipt of the discovery requests, Herbert’s counsel contacted Sheila’s counsel. He asked that discovery be stayed until the conclusion of the criminal proceedings against Herbert. The parties agreed to extend the time to provide responses until 21 April 2014, to provide an opportunity to meet and confer on the issue. On 21 April 2014, the parties agreed to further extend the time to provide responses to 25 April 2014.

On 24 April 2014, Herbert’s counsel sent a meet and confer letter to Sheila’s counsel. He reiterated his request that “discovery be stayed pending the conclusion of the criminal proceedings for the reason the defendant, Herbert Shattuck, intends to assert his fifth amendment rights and thus [the] information requested is privilege[d] and would be subject to a protective order.” ( Duffy-Smith Decl., Ex. B.) Counsel indicated that unless the parties agreed to stay discovery pending the conclusion of the criminal proceedings, Herbert would file a motion for a protective order.

The following day, on 25 April 2014, Sheila’s counsel sent a detailed letter in response. Counsel agreed that Herbert may assert the Fifth Amendment privilege against disclosure of information that might incriminate him when responding to the FI and the RFA. Nevertheless, counsel indicated that a blanket claim of privilege is improper. Instead, counsel asserted that Herbert must provide code-compliant responses, including the assertion of any claim of privilege that he deems appropriate. To allow sufficient time to provide these responses, she agreed to further extend the time to provide responses to 30 April 2014. Finally, counsel suggested that Sheila would entertain a stipulated imposition of a stay, conditioned upon Herbert’s deposit of any proceeds from the sale of the marital residence in a blocked account until judgment is entered in the civil proceeding.

On 30 April 2014, Herbert’s counsel sent a letter in reply. He indicated that Herbert would file a motion for a protective order. Counsel also requested, and received, an agreement to extend the time to provide responses to the discovery at issue until 1 May 2014. Counsel did not respond to Sheila’s proposal regarding a stipulated imposition of a stay.

The following day, on 1 May 2014, Herbert filed this motion for a protective order staying discovery. Sheila filed her opposition on 2 June 2014. On 9 June 2014, Herbert filed his reply brief.

Discussion

I. Motion for a Protective Order

Herbert moves for a protective order staying all discovery directed to him on the ground that responding to discovery would force him to choose between his Fifth Amendment rights and meaningful participation in this action.

A. Legal Standards

In general, “[a]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter … if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc., § 2017.010.) For good cause shown, a court may make any order that justice requires to protect any party from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense relative to discovery matters. (Code Civ. Proc., §§ 2030.090, subd. (b), 2033.080, subd. (b).) Generally, the party seeking a protective order must show that the burden, expense, or intrusiveness accruing from the discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.020; see also Emerson Electric Co. v. Superior Court (1997) 16 Cal.4th 1101, 1110-1111.)

B. Protective Orders Regarding Parallel Civil and Criminal Proceedings

In Fuller v. Superior Court (2001) 87 Cal.App.4th 299, 306, the Court of Appeal recognized that a civil defendant exposed to criminal prosecution arising from the same facts that underlie a civil lawsuit faces a unique dilemma. (Id.) The defendant must either choose between defending the civil litigation by providing testimony that may be incriminating on the one hand, or losing the case by asserting his or her Fifth Amendment right against self-incrimination and remaining silent, on the other hand. (Id.)

Courts have devised various procedures to accommodate the interests of the parties in these circumstances. A court may stay the civil proceeding until the conclusion of the related criminal prosecution, allow the civil defendant to invoke the privilege against self-incrimination, confer immunity on the party invoking the privilege, or preclude a litigant who claims the privilege against self-incrimination in discovery from waiving the privilege and testifying at trial as to matters upon which the privilege has been asserted. (See Fuller, supra, 87 Cal.App.4th at p. 307; Blackburn v. Superior Court (1993) 21 Cal.App.4th 414, 431-432; A& M Records, Inc. v. Heilman (1977) 75 Cal.App.3d 554, 566.)

In determining which procedure to apply, courts must weigh the parties’ competing interests with a view toward accommodating the interests of both parties, if possible. (Pacers, Inc. v. Superior Court (1984) 162 Cal.App.3d 686, 690.) The trial court has broad discretion in controlling the course of discovery and must exercise its discretion in assessing and balancing “the nature and substantiality of the injustices claimed” on all sides. (See Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 882.)

1. Herbert’s Interests

Herbert contends that a protective order is warranted to preserve his constitutional right against self-incrimination and his ability to defend himself in this action. In essence, he argues that requiring him to respond to discovery while the District Attorney is prosecuting him would force him to decide between defending either the civil or criminal case. Herbert’s argument is persuasive.

If Herbert responds to discovery regarding matters relating to his criminal prosecution, he could assert his privilege against self-incrimination. (See Evid. Code, § 940.) By doing so, he would face a “penalty” of sorts in the civil case, since it is permissible for the trier of fact to draw adverse inferences from his silence. (See Avant! Corp., supra, 79 Cal.App.4th at pp. 885-886.) On the other hand, he could waive the privilege and respond to discovery, enabling him to testify as to those matters later in the civil case. However, if he elects to waive the privilege, then “the prosecutors [could] monitor the civil proceedings hoping to obtain incriminating testimony from [him] through civil discovery.” (See Pacers, Inc., supra, 162 Cal.App.3d at p. 690.) To allow prosecutors access to this information “would not only undermine the Fifth Amendment privilege but would also violate concepts of fundamental fairness.” (Id.) Accordingly, by requiring Herbert to participate in discovery while a parallel criminal prosecution is ongoing, the Court would be penalizing Herbert for the exercise of his constitutional rights.

In opposition, Sheila asserts that nothing prevents Herbert from responding to the FI and RFA by asserting his Fifth Amendment privilege. Sheila, however, does not address the argument that a trier of fact in a civil case may draw an adverse inference from the invocation of the Fifth Amendment privilege. (See Avant! Corp., supra, 79 Cal.App.4th at pp. 885-886.) Thus, the fact that Herbert could respond to discovery by specifically invoking the privilege does not diminish his interest in protecting his constitutional rights without compromising his ability to defend this action.

Thus, the Court finds that Herbert has a strong interest in a protective order staying discovery.

2. Sheila’s Interests

In opposition to the motion, Sheila asserts that she has an interest in an “expeditious resolution” of the litigation, and this interest will be impaired if Herbert’s motion for a protective order is granted. In response, Herbert indicates that Sheila’s concern is misplaced. He indicates that the case is in its early stages and no evidence will be lost or adversely affected by the delay. Thus, Herbert concludes that Sheila will suffer no prejudice as a result of the stay.

Here, Sheila is correct that she has an interest in the prompt resolution of the litigation. (See Pacers, Inc., supra, 162 Cal.App.3d at p.306 [holding that plaintiffs are entitled to expeditious and fair resolution of their claims].) Nevertheless, her interest is not particularly strong. As yet, the Court has not set a trial date in this action, and Sheila does not contend that evidence will be lost or adversely affected by any delay occasioned by the stay. (Cf. Avant! Corp., supra, 79 Cal.App.4th at p. 887 [finding strong interest because delay would increase danger of prejudice resulting from loss of evidence or death of party].)

Accordingly, the Court finds Sheila has an interest in the prompt resolution of the litigation, but the interest is not particularly strong.

3. Accommodating the Parties’ Interests

On balance, Herbert’s interest in staying discovery outweighs Sheila’s interest in the prompt resolution of this lawsuit. First, it is undisputed that Herbert is being prosecuted for a felony arising out of the same events that form the basis of this civil action. Second, requiring him to respond to discovery concerning these events will either force him to waive his constitutional rights or significantly impair his ability to put on a defense. Finally, as Sheila does not contend that evidence will be lost or adversely affected by the delay, she is unlikely to suffer any prejudice due to the issuance of the stay. Accordingly, a protective order staying discovery pending the conclusion of the criminal proceedings is warranted.

Anticipating that the Court might enter a stay of discovery in this matter, Sheila requests that the Court require Herbert to provide her with security against any eventual judgment as a condition of the stay. In particular, Sheila seeks an order that Herbert deposit any proceeds from the sale of the marital residence in a blocked account until judgment is entered in this proceeding. (See Opp’n., p. 7: 3-6.) In support of this request Sheila relies solely upon Klein v. Superior Court (1988) 198 Cal.App.3d 894.

In Klein, the son and daughter of a deceased businessman brought a civil action against their brother, Arturo, based on his handling of the family’s assets after his father’s death. The plaintiffs alleged that Arturo had engaged in unauthorized and secret transactions which cheated them out of their rightful portions of their father’s estate. (Id. at p. 898.) At the same time, Swiss authorities instituted a criminal case involving the same issues. (Id.) Arturo moved for an order staying the civil action pursuant to Code of Civil Procedure section 410.30 on the ground of forum non conveniens. (Id. at p. 900.) After the trial court denied the motion, the Court of Appeal issued a writ of mandate directing the trial court to issue a stay. (Id. at p. 905.)

In a related writ petition, Arturo sought review of a trial court order reinstating the plaintiffs’ notices of lis pendens on his real estate. (Id. at p. 914.) The trial court initially ordered the notices expunged because the plaintiffs could not establish that Arturo used his siblings’ funds to purchase the real estate. (Id.) However, after Arturo refused to answer questions regarding the purchase of the real estate and invoked his Fifth Amendment privilege, the trial court reinstated the notices of lis pendens. (Id.)

The Court of Appeal framed the issue as “whether as a condition of the stay, the trial court should provide Plaintiffs some security, in the form of lis pendens notices or otherwise, against an eventual judgment.” (Id. at p. 915.) Relying on the trial court’s authority to condition a stay under Code of Civil Procedure section 410.030 “upon such terms as may be just”, the Court Appeal determined that the trial court could require Arturo to provide a security device as a condition of the stay. (Id. at p. 915.) The Court of Appeal remanded the issue to the trial court to consider “such security devices as justice warrants, including but not limited to the posting of a bond under Code of Civil Procedure section 409.2; the deposit of any proceeds from sale of the real estate in a blocked account while the stay is in effect; or such other devices as may best serve the purpose of protecting Plaintiffs’ rights without unnecessarily encumbering the sale of real property.” (Id. at pp. 915-916.)

Sheila asserts that Klein provides the Court with the authority to condition a stay on discovery upon “such terms as may be just,” including the provision of a security device. Her argument is not persuasive.

In Klein, supra, the Court of Appeal delimited the scope of the terms of Code of Civil Procedure section 410.30, subdivision (a), which explicitly provide that a court may stay an action for forum non conveniens on “any conditions that may be just.” (Code Civ. Proc., § 410.30, subd. (a).) As such, it construed the issuance of a security device as a condition of a stay “that may be just” under section 410.30. (See Klein, supra, 198 Cal.App.3d at pp. 915-916.)

Here, the stay at issue is not premised upon section 410.30, and Sheila does not cite any other authority suggesting that the Court may impose conditions on the stay of discovery. Furthermore, even if the Court has the discretion to attach conditions to the issuance of a stay, Sheila fails to show that good cause exists for such an order as she provides no evidence indicating that such a stay is necessary. She submits no evidence or argument demonstrating that Herbert is attempting to unlawfully transfer his assets in an effort to prevent her from recovering on any potential judgment. Accordingly, good cause does not exist for an order requiring Herbert to provide security as a condition of the stay of discovery, and Sheila’s request is therefore unwarranted.

C. Conclusion

Based on the foregoing, Herbert’s motion for a protective order is GRANTED and Sheila’s request for security is DENIED.

II. Sheila’s Request for Monetary Sanctions

Sheila seeks an award of monetary sanctions against Herbert and his counsel pursuant to Code of Civil Procedure section 2030.090, subdivision (d), in connection with her opposition to Herbert’s motion for a protective order.

Section 2030.090 provides that the court shall impose a monetary sanction against any party who unsuccessfully makes or opposes a motion for a protective order, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (See Code Civ. Proc., § 2030.090, subd. (d).)

Here, Herbert prevailed on the motion. Therefore, Herbert and his counsel acted with substantial justification. Accordingly, Sheila’s request for monetary sanctions is DENIED.

Conclusion and Order

Herbert’s motion for a protective order is GRANTED. The Court orders all discovery in this matter stayed until the conclusion of the criminal proceedings against Herbert in Case No. C13022910.

Sheila’s request for security is DENIED.

Sheila’s request for monetary sanctions is DENIED.