Cho v. City Of San Jose

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION [7] 8 ANTHONY SUNG CHO, Case No. 21-cv-05503-VKD 9 Plaintiff, ORDER DENYING DEFENDANT 10 v. RODRIGUEZ'S MOTION TO STAY PROCEEDINGS 11 CITY OF SAN JOSE, et al., Re: Dkt. No. 36 Defendants. [13] 14 Pending before the Court is defendant Matthew Rodriguez’s motion to stay the 15 proceedings.1 Dkt. No. 36. Plaintiff Anthony Sung Cho opposes the motion.2 Dkt. No. 38. The 16 Court held a hearing on the stay motion on October 18, 2022. Dkt. No. 41. Having considered the 17 parties’ submissions and arguments made at the hearing, the Court denies Officer Rodriguez’s 18 motion. 19 I. BACKGROUND 20 This case arises out of an encounter between Mr. Cho and police officers with the San Jose 21 Police Department, one of whom was Officer Rodriguez. On the evening of July 18, 2020, 22 Mr. Cho was driving a stolen vehicle and was observed by the officers at a Shell gas station on 23 Story Road in San Jose, California. Dkt. No. 36 at 2; Dkt. No. 38 at 3. As the officers [25] 1 The defendants in this case are the City of San Jose (“City”) and four San Jose police officers: Steven Gaona, Tyler Moran, Zachary David Preuss, and Matthew Rodriguez. Officer Rodriguez [26] has independent representation and has submitted this motion on his own behalf. The City and the other officer defendants have taken no position on Officer Rodriguez’s request for a stay. [27] 1 approached, Mr. Cho ran away. Dkt. No. 36 at 2. Several officers, including Officer Rodriguez, 2 chased Mr. Cho and caught up with him at a shopping center parking lot. Id. The parties dispute 3 what happened next. Mr. Cho contends that he tripped, fell, and then remained on the ground with 4 his hands raised in surrender. Dkt. No. 38 at 3. He maintains that any use of force against him by 5 the officers was unreasonable. Id. The defendant officers contend that Mr. Cho ignored 6 commands to produce his hands from underneath his body and otherwise resisted their attempts to 7 secure him. Dkt. No. 36 at 2. This required use of force—including baton strikes—to overcome 8 Mr. Cho’s resistance. Id. Mr. Cho alleges he sustained serious injuries as a result of the officers’ 9 actions. Dkt. No. 1 ¶ 25. 10 Officer Rodriguez is the subject of a pending criminal prosecution in People v. Rodriguez, 11 Santa Clara County Case No. C21012705. Dkt. No. 36 at 2. This criminal prosecution concerns 12 Officer Rodriguez’s conduct in a separate law enforcement action on July 22, 2020 involving a 13 woman named Guadalupe Esperanza Marin.3 Id. Ms. Marin has also filed a civil action, Marin v. 14 City of San Jose et al., No. 21-6372 (N.D. Cal.), alleging that Officer Rodriguez used excessive 15 force against her. Id. Officer Rodriguez says that no trial date has been set in the criminal case, 16 but he expects it will be set for trial in spring or summer of 2023. Id. at 3. 17 During discovery in this case, the parties disagreed about whether Officer Rodriguez 18 should be allowed to assert his Fifth Amendment privilege against self-incrimination with respect 19 to questions posed to him in deposition. See Dkt. No. 30. At the time the dispute was presented, 20 Officer Rodriguez asserted that he was the subject of a pending investigation regarding possible 21 criminal prosecution for his encounter with Mr. Cho. Id. at 5. He also argued that his testimony 22 concerning the encounter could be used by the prosecutor in the pending Marin criminal 23 prosecution to establish that he acted with a common plan of intent and not as a result of a mistake 24 or accident. Id. The Court concluded, for purposes of the parties’ discovery dispute, that “Officer 25 Rodriguez must submit to a deposition and must invoke his privilege against self-incrimination as 26 to each question that he believes requires assertion of the privilege; he need not answer such [27] 1 questions at this time.” Dkt. No. 32 at 3. The Court’s order was without prejudice to Mr. Cho’s 2 ability to challenge the propriety of Officer Rodriguez’s assertion of the privilege. 3 Officer Rodriguez gave a deposition on June 30, 2022. Dkt. No. 36 at 3. In accordance 4 with the Court’s order, he asserted his Fifth Amendment privilege in response to questions that 5 would require him to “articulate the substantive basis for the use of force decision against Plaintiff 6 Cho” and to “explain[] any actions captured by body-worn camera footage relating to the use of 7 force on Mr. Cho.” Id.; see also Dkt. No. 36-1 ¶ 3. Officer Rodriguez answered all other 8 questions posed by Mr. Cho’s counsel. Dkt. No. 38 at 4. 9 This case is set for trial on January 11, 2023. Officer Rodriguez moves to stay further 10 proceedings for approximately six months, pending the anticipated completion of the Marin 11 criminal prosecution. Mr. Cho opposes the motion. 12 II. LEGAL STANDARD 13 “The Constitution does not ordinarily require a stay of civil proceedings pending the 14 outcome of criminal proceedings.” Keating v. Office of Thrift Supervision, 45 F.3d 322, 324 (9th 15 Cir. 1995). “In the absence of substantial prejudice to the rights of the parties involved, . . . 16 parallel [civil and criminal] proceedings are unobjectionable.” S.E.C. v. Dresser Industries, Inc., [17] 628 F.2d 1368 , 1374 (D.C. Cir. 1980). “[A] court may decide in its discretion to stay civil 18 proceedings . . . when the interests of justice seem to require such action.” Keating, 45 F.3d at 324 19 (quoting United States v. Kordel, 391 U.S. 1 , 12 n.27 (1970)). “The decision whether to stay civil 20 proceedings in the face of a parallel criminal proceeding should be made in light of the particular 21 circumstances and compelling interests involved in the case.” Id. (quoting Fed. Sav. & Loan Ins. 22 Corp. v. Molinaro, 889 F.2d 899, 902 (9th Cir. 1980)). 23 In exercising its discretion, a court should consider “the extent to which the defendant’s 24 Fifth Amendment rights are implicated.” Keating, 45 F.3d at 324 (citing Molinaro, 889 F.2d at 25 902). In addition, a court generally should consider the following factors: (1) the interests of the 26 plaintiff in proceeding and the potential prejudice to him caused by a delay; (2) the burden that 27 proceeding may place on the defendant; (3) the convenience of the court in managing its case load 1 the public in the pending civil and criminal proceedings. Id. at 324-25 (citing Molinaro, 889 F.2d 2 at 903 ). 3 “The proponent of a stay bears the burden of establishing its need.” Clinton v. Jones, 520 4 U.S. 681 , 708 (1997). 5 III. DISCUSSION 6 The Court considers each of the Keating factors bearing on the question of whether 7 proceedings in this action should be stayed. 8 A. Extent to Which Officer Rodriguez’s Fifth Amendment Rights Are Implicated 9 Officer Rodriguez argues that if the trial in this action proceeds as scheduled, he will be 10 forced to choose between asserting his Fifth Amendment privilege against self-incrimination in 11 this civil proceeding, thereby undermining his defense, and testifying to matters that might be used 12 against him in the Marin criminal prosecution.4 Dkt. No. 36 at 4-5. Mr. Cho argues that this case 13 does not overlap in any substantial way with matters at issue in the Marin prosecution. Id. at 5. 14 “[T]he strongest case for deferring civil proceedings until after completion of criminal 15 proceedings is where a party under indictment for a serious offense is required to defend a civil or 16 administrative action involving the same matter.” Dresser Indus., Inc., 628 F.2d at 137517 76. Where the parallel proceedings involve the same event or occurrence, there is likely to be 18 substantial overlap in the evidence. However, where the parallel civil and criminal proceedings 19 involve different incidents, the overlap is necessarily less substantial. 20 Officer Rodriguez’s motion papers do not explain with any specificity how testimony he 21 might give at trial in this case could incriminate him in the Marin criminal prosecution. See 22 generally Dkt. Nos. 36, 39. At most, Officer Rodriguez’s criminal defense counsel attests that the 23 prosecution could argue that his testimony concerning “the substantive basis for the use of force” 24 against Mr. Cho or “explaining any actions as captured by body-worn video camera footage” of 25 the incident is “relevant to issues of knowledge, preparation or motive” in the Marin prosecution, [27] 4 Mr. Cho argues that it is unlikely any criminal charges related to the incident involving Mr. Cho 1 as permitted by California Evidence Code § 1101(b). Dkt. No. 36-1 ¶¶ 3-4. Mr. Cho responds 2 that the two proceedings are unrelated and the relevant facts do not significantly overlap. Dkt. No. 3 38 at 5. Mr. Cho says he does not require any affirmative testimony from Officer Rodriguez to 4 prove the elements of his case in chief, but Mr. Cho does expect to cross-examine Officer 5 Rodriguez if he testifies at trial. Dkt. No. 41. Further, Mr. Cho confirmed at the hearing that, as 6 his Monell claims against the City have been dismissed,5 he will not seek to introduce affirmative 7 evidence about the Marin incident during the trial of this case. Id. 8 While there are some similarities between the Marin incident and Officer Rodriguez’s 9 encounter with Mr. Cho, it is unclear whether Officer Rodriguez’s testimony in this case will be 10 admissible or used in any other manner in the Marin criminal prosecution. “[O]ther acts evidence 11 under [California Evidence Code] section 1101(b) should be received with extreme caution and if 12 its connection with the crime is not clearly perceived, the doubt should be resolved in favor of the 13 accused.” People v. Winkler, 56 Cal. App. 5th 1102 , 1153 (2020) (quotation marks and citations 14 omitted). The Cho and Marin incidents occurred four days apart, arise from somewhat similar 15 circumstances (i.e. allegedly stolen vehicles), and involve allegations that Officer Rodriguez used 16 excessive force. However, the facts of each case do not otherwise overlap, apart from the fact that 17 Officer Rodriguez was involved in both incidents. 18 In these circumstances, the Court finds that Officer Rodriguez’s Fifth Amendment rights 19 would be no more than minimally implicated if the trial in this action proceeds as scheduled. See 20 Amatrone v. Champion, No. 15-CV-01356, 2017 WL 3334889 , at *3 (N.D. Cal. Aug. 4, 2017) 21 (finding that movant’s Fifth Amendment rights were not sufficiently implicated to warrant a stay 22 where there was some overlap between the facts of the criminal and civil cases, but movant had 23 not met his burden of establishing “a large degree of overlap”); Hymes v. Bliss, No. 16-CV-0428824 JSC, 2018 WL 6079443 , at *3 (N.D. Cal. Nov. 21, 2018) (denying continuance of trial where both 25 civil and criminal cases involved allegations of proscribed conduct against inmates but did not 26 implicate the same nucleus of facts); see also McCormick v. Rexroth, No. C 09-4188 JF, 2010 WL 27 1 934242, at *2 (N.D. Cal. Mar. 15, 2010) (finding that civil and criminal cases implicated the same 2 “nucleus of facts” where both arose out of the same physical altercation between plaintiff and 3 defendant). 4 B. Other Keating Factors 5 1. Plaintiff’s Interests 6 Mr. Cho asserts an interest in having his claims resolved as scheduled, and further 7 observes that delay prejudices him to the extent evidence may become unavailable or less reliable 8 over time. Dkt. No. 38 at 7. Officer Rodriguez concedes that Mr. Cho “has an interest in a more 9 immediate resolution of his claim,” but he argues that a limited, six-month stay would “not 10 significantly change [Mr. Cho’s] position or ultimate ability to recover monetary damages.” Dkt. 11 No. 39 at 3. 12 Mr. Cho certainly has an interest in having his case resolved without unnecessary delay. 13 ESG Capital Partners LP v. Stratos, 22 F. Supp. 3d 1042, 1046 (C.D. Cal. 2014); see also Sw. 14 Marine, Inc. v. Triple A Mach. Shop, Inc., 720 F. Supp. 805, 809 (N.D. Cal. 1989) (“Witnesses 15 relocate, memories fade, and persons allegedly aggrieved are unable to seek vindication or redress 16 for indefinite periods of time on end.”). Over two years have passed since the incident at issue and 17 the parties have completed all discovery. The matter is set for trial in less than three months. 18 While a six-month delay might be considered relatively short by some metrics, there is 19 nevertheless uncertainty regarding whether such a stay would be sufficient to accomplish the goal 20 Officer Rodriguez’s seeks, as no trial date has been set in the Marin criminal prosecution and may 21 be set later than summer of 2023. 22 On balance, Mr. Cho’s interests weigh in favor of denying the motion for a stay. 23 2. Defendant’s Burden 24 Officer Rodriguez argues he would face a “heavy burden” if this case proceeds to trial 25 before the Marin criminal prosecution is concluded. Dkt. No. 36 at 4; Dkt. No. 39 at 2. He asserts 26 he would be unable to fully and properly defend himself in this action if he were to assert his Fifth 27 Amendment privilege to remain silent and he would subject himself to possible adverse inferences 1 would suffer any significant prejudice if he chose to invoke his Fifth Amendment rights. Dkt. 2 No. 38 at 7. 3 “A defendant has no absolute right not to be forced to choose between testifying in a civil 4 matter and asserting his Fifth Amendment privilege. Not only is it permissible to conduct a civil 5 proceeding at the same time as a related criminal proceeding . . . but it is even permissible for the 6 trier of fact to draw adverse inferences from the invocation of the Fifth Amendment in a civil 7 proceeding.” Keating, 45 F.3d at 326 (citing Baxter v. Palmigiano, 425 U.S. 308, 318 (1976)). 8 That a defendant might reasonably choose to invoke his Fifth Amendment right, and incur an 9 adverse inference, is not by itself sufficient to justify a stay of a civil action in favor of a criminal 10 prosecution. See ESG Capital Partners, 22 F. Supp. 3d at 1046 (citing Gen. Elec. Co. v. Liang, 11 No. CV 13-08670, 2014 WL 1089264 , at *5 (C.D. Cal. Mar. 19, 2014)). 12 Officer Rodriguez does not identify any burden he will have to bear in this action beyond 13 electing to remain silent. And as discussed above, he discusses the burden or prejudice associated 14 with this election only at a high level of generality. Officer Rodriguez does not suggest he has had 15 insufficient time to prepare for trial in this case or that the trial will interfere with preparation of 16 his defense in the Marin criminal prosecution. “The Ninth Circuit has found that where a 17 defendant has had adequate time to prepare for a related civil trial, the burden on the defendant is 18 substantially diminished.” Id. (citing Keating, 45 F.3d at 325 ). 19 Accordingly, the Court concludes that the burden on Officer Rodriguez will be minimal if 20 the case proceeds to trial as scheduled. 21 3. Interests of the Court 22 Officer Rodriguez concedes that the Court has an interest in managing its own docket. 23 Dkt. No. 36 at 6. Nevertheless, he argues that because his constitutional rights are implicated, a 24 stay is warranted. 25 If Officer Rodriguez had made a compelling showing on the other Keating factors, the 26 Court would be inclined to make every effort to adjust its trial calendar to accommodate his 27 request for a stay. However, he has not made such a showing, and the Court has other matters 1 this consideration does not weigh heavily in the Court’s assessment, it also does not favor Officer 2 || Rodriguez. 3 4. Interests of Third Parties and the Public 4 As a general matter, third parties and the public have an interest in the fair and efficient 5 || resolution of civil matters. The parties have not identified any particular third party or public 6 || interests specific to this case that might weigh materially in favor of either a grant or denial of 7 Officer Rodriguez’s motion to stay. Accordingly, the Court considers these factors as neutral. 8 || IV. CONCLUSION 9 Having considered the parties’ respective interests and the other Keating factors, the Court 10 concludes that, in the circumstances of this case, a stay is not warranted. The Court denies Officer 11 Rodriguez’s motion. 12 IT IS SO ORDERED. 5 13 Dated: October 20, 2022 14 ae 2 VIRGINIA K. DEMARCHI = 16 United States Magistrate Judge