Case Number: BC696778 Hearing Date: January 07, 2019 Dept: 4A

Motion to Stay Civil Action

The Court considered the moving, opposition, and reply papers.

On March 6, 2018, Plaintiffs Genevieve Guido-Castro, Ryan Ellis McKinney, and Lyndsay Allen (“Plaintiffs”) filed a Complaint against Defendants Connor Joseph Romero (“Connor”), Nick Romero (“Nick”), and Andrea Romero (“Andrea”) (collectively “Defendants”). On June 11, 2018, Plaintiffs filed a First Amended Complaint alleging general negligence, negligent entrustment, training, and/or supervision, and negligence per se based on a boating incident occurring on March 12, 2016.

Defendant Connor, joined in motion by Defendants Nick and Andrea, requests that the court stay the civil action pending resolution of the felony complaint, BLF1600134, pending in the Superior Court of California for the County of Riverside.

Defendants argues that a stay of the civil action is necessary to protect Connor’s Fifth Amendment rights in connection with the criminal proceeding, which arises from the same underlying facts as the civil action. Defendants argue that Connor, Nick, and Andrea will be prejudiced because they will be unable to meaningfully defend themselves. Nick and Andrea are Connor’s parents.

“The Fifth Amendment of the United States Constitution includes a provision that ‘[no] person . . . shall be compelled in any criminal case to be a witness against himself, . . .’ Although the specific reference is to criminal cases, the Fifth Amendment protection ‘has been broadly extended to a point where now it is available even to a person appearing only as a witness in any kind of proceeding where testimony can be compelled.’ (Gonzales v. Superior Court (1980) 117 Cal.App.3d 57, 62). The Fifth Amendment is codified in Evidence Code section 940, which provides: ‘To the extent that such privilege exists under the Constitution of the United States or the State of California, a person has a privilege to refuse to disclose any matter that may tend to incriminate him.’ There is no question that the privilege against self-incrimination may be asserted by civil defendants who face possible criminal prosecution based on the same facts as the civil action. (Pacers, Inc. v. Superior Court (1984) 162 Cal.App.3d 686, 688-689.) ‘All matters which are privileged against disclosure upon the trial under the law of this state are privileged against disclosure through any discovery procedure.’ (Code Civ. Proc., § 2016(b).).” (Brown v. Superior Court (1986) 180 Cal.App.3d 701, 708.)

“Even where the civil discovery process is directed against an individual defendant who is also a defendant in a related criminal case, the Ninth Circuit has held that ‘[t]he 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.’” (Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 885 (citations omitted).)

“[C]ourts must also consider the interests of the plaintiff in civil litigation where the defendant is exposed to parallel criminal prosecution. Plaintiffs are entitled to an expeditious and fair resolution of their civil claims without being subjected to unwarranted surprise. Among the myriad purposes of the civil discovery statutes is to safeguard against surprise and gamesmanship, and to prevent delay. . . . ‘The fact that a man is indicted cannot give him a blank check to block all civil litigation on the same or related underlying subject matter. Justice is meted out in both civil and criminal litigation.’ (Avant! Corp., supra, 79 Cal.App.4th at 882.) Added to the mix, of course, is the interest of the courts in fairly and expeditiously disposing of civil cases, and in efficiently utilizing judicial resources. (Gov. Code, § 68607; Code Civ. Proc., § 128(a); Cal. Stds. Jud. Admin., § 2.1.) Staying civil discovery to await the outcome of a related criminal case might benefit the litigants and does not implicate constitutional issues. (Avant! Corp., supra, 79 Cal.App.4th at 882.) 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 be eliminated.’ (Cal. Stds. Jud. Admin., § 2.) Courts must control the pace of litigation, reduce delay, and maintain a current docket so as to enable the just, expeditious, and efficient resolution of cases.” (Fuller v. Superior Court (2001) 87 Cal.App.4th 299, 306-07.)

“Courts faced with a civil defendant who is exposed to a related criminal prosecution have responded with various procedural solutions designed to fairly balance the interests of the parties and the judicial system. Accommodation of the various interests, however, is usually made to a defendant in a civil action ‘from the standpoint of fairness, not from any constitutional right.’ Courts that are confronted with a civil defendant who is exposed to criminal prosecution arising from the same facts ‘weigh the parties’ competing interests with a view toward accommodating the interests of both parties, if possible.’ Courts have broad discretion in controlling the course of discovery. Hence, in a discovery dispute . . . the trial court must exercise its discretion in assessing and balancing ‘the nature and substantiality of the injustices claimed’ on all sides. (Avant! Corp., supra, at 882.) Historically, courts have devised a number of procedures designed to accommodate the specific circumstances of the case. One accommodation is to stay the civil proceeding until disposition of the related criminal prosecution. (Id.) Another possibility is to allow the civil defendant to invoke the privilege against self-incrimination, even if doing so may limit the defendant’s ability to put on a defense. (Id.) Other accommodations have included conferring an immunity on the party invoking the privilege, or precluding a litigant who claims the constitutional privilege against self-incrimination in discovery from waiving the privilege and testifying at trial to matters upon which the privilege had been asserted. Each of these procedural tools is devised based on the circumstances of the particular case. ‘The alleviation of tension between constitutional rights has been treated as within the province of a court’s discretion in seeking to assure the sound administration of justice.’ (Id.).” (Fuller, supra, 87 Cal.App.4th at 307.)

Connor argues that any prejudice to Plaintiffs is outweighed by the potential harm to Connor of giving up his Fifth Amendment rights, and in the alternative, invoking his Fifth Amendment rights and depriving him and his parents of a full and fair opportunity to defend themselves in this action. Plaintiff argues that Defendants have not met their burden to assert the Fifth Amendment privilege

The Court finds that a stay of discovery as to Defendant Connor until disposition of the related criminal case is a proper accommodation. The criminal case is pending and was filed in 2016. The instant civil matter was filed less than a year ago. Therefore, weighing the interests of both parties, it appears that limiting discovery pending resolution of the criminal case protects Plaintiffs’ and Defendants’ interests. Permitting discovery only as to non-party witnesses would be overly broad to protect the Fifth Amendment rights of Connor. (See Reply 2:9-12.)

For the foregoing reasons, the motion is GRANTED. The final status conference and trial date are vacated. The court sets an OSC re status of criminal case and trial setting conference for January 2, 2020, at 8:30 a.m.

Defendant Connor Joseph Romero is ordered to give notice of this ruling.