Case Number: EC064684 Hearing Date: May 09, 2016 Dept: A

Thompson v Wershaw

MOTION TO STAY

Calendar: 15
Case No: EC064684
Date: 5/9/16

MP: Defendant, Jonathan Wershow
RP: Defendant, Staples, Inc.

RELIEF REQUESTED:
Order staying case pending resolution of criminal prosecution or protective order for the Defendant with regards to discovery.

DISCUSSION:
This case arises from the Plaintiff’s claim that the Defendant, Jonathan Wershow, assaulted and battered him while the Plaintiff was shopping at Staples. The Plaintiff also claims that Staples is liable because it acted negligently.
This hearing concerns the motion of the Defendant, Jonathan Wershow, for a stay of the civil proceedings until the criminal proceedings that arise from the same alleged conduct are completed. In the alternative, Mr. Wershow seeks a protective order that he not be required to respond to any discovery.
The Court may issue an order staying civil discovery when both civil and criminal proceedings arise out of the same or related transactions. Pacers, Inc. v. Superior Court (1984) 162 Cal. App. 3d 686, 690. In Pacers, the defendants in a civil suit faced with a potential criminal proceeding arising out of the same alleged underlying incident sought to stay the taking of their depositions for approximately two years, when the statute of limitations for potential criminal charges would have lapsed. The trial court denied the request and the Court of Appeal issued a peremptory writ of mandate that directed the trial court to set aside its order. The Court found that an order staying discovery until expiration of the criminal statute of limitations would allow the plaintiff to prepare its lawsuit while alleviating the defendants’ difficult choice between defending either the civil or criminal case.
In Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, the Court held that the decision whether to stay civil proceedings in the face of a parallel criminal proceeding should be made in light of the particular circumstances and competing interests involved in the case. The Court listed the following factors that a trial court should consider in ruling on a motion to stay pending the resolution of criminal proceedings:

1) the extent to which the party seeking the stay’s fifth amendment rights are implicated;
2) the interest of the party opposing the stay in proceeding expeditiously with this litigation or any particular aspect of it, and the potential prejudice to the party opposing the stay or a delay;
3) the burden which any particular aspect of the proceedings may impose on the party seeking the stay;
4) the convenience of the Court in the management of its cases, and the efficient use of judicial resources;
5) the interests of persons not parties to the civil litigation; and
6) the interest of the public in the pending civil and criminal litigation.
Id. at p. 885.

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. Id. 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 adverse inferences from the invocation of the Fifth Amendment in a civil proceeding. Id. at 885 to 886.

In the pending case, the Plaintiff claims that the Defendant, Jonathan Wershaw, caused personal injuries to the Plaintiff by assaulting and battering the Plaintiff on October 17, 2015 at a Staples store located at 1060 Alameda Ave., Burbank. The Defendant’s attorney, Shakira Ferguson, states in paragraph 3 of her declaration that the Defendant was charged with violations of Penal Code sections 368(B)(1) and 245(A)(4) in the case of People v. Jonathan Wershow, case number GA097467. Ms. Ferguson states that a preliminary hearing in the criminal matter has not been schedule and that the next hearing is April 4, 2016. Ms. Ferguson states in paragraph 4 that the Defendant has been advised to refrain from appearing for or testifying at a deposition and to refrain from responding to written discovery in the civil action until the criminal action is concluded.

These facts show that the Fifth Amendment rights of the Defendant, Jonathan Wershaw, are substantially implicated by the civil discovery in this case.

The Plaintiff did not file any opposition papers to provide evidence that there is a strong interest in proceeding expeditiously with this litigation or that the Plaintiff will suffer any prejudice from a stay or delay.
This case was filed on December 4, 2015. Since the civil case was filed five months ago, a stay for the time needed to resolve the criminal proceedings will not cause any substantial interference in the Court’s management of its cases.

The Defendant, Staples, Inc., filed opposition papers to request that it be permitted to engage in discovery with regards to the Plaintiff and with regards to the police department. Since any discovery with regards to the Plaintiff and with regards to the police department does not implicate the Fifth Amendment rights of Jonathan Wershow, the Court will grant this request.

Therefore, the Court will grant the Defendant’s motion for a stay of the proceedings because there are grounds to stay this entire action during the pendency of the criminal case against Jonathan Wershow. However, the Court will allow the Defendant, Staples, Inc., and the Plaintiff to engage in discovery with regards to each other and with regards to the police department.

RULING:
Grant motion to stay proceeding with exception for civil discovery by the Plaintiff and the Defendant, Staples, Inc., that is directed at each other and that is directed at the police department.