LUCINDA TERRELL and Estate of JACK TERRELL vs. FERREIRA CONSTRUCTION COMPANY, INC. et al

Counsel for Plaintiff further declares: "My office has interacted with Plaintiff Lucinda Terrell as well as her daughter, Stacie Wick. My office has also thoroughly reviewed Ms. Terrell' past medical treatment and recommendations. It is clear to me that any lengthy delay in adjudicating Ms. Terrell' claim will lead to significant prejudice to her." "Ms. Terrell been under the care of multiple physicians since this ultra catastrophic crash. Ms. Terrell was

hospitalized and in a inpatient rehab for months following the crash." "Ms. Terrell also suffers from a declining memory and has significant difficulty recalling detail, communicating, and making decisions. My office primarily communicates with Ms. Terrell through her daughter, Stacie Wick." "Based on Ms. Terrell' medical records and condition, it is evident that she severe physical and cognitive/mental health decline. Attached hereto as Exhibit "A" is a true and correct copy of Ms. Terrell's medical records from Kaweah Health Medical Center and Central California Rehab Hospital." "In addition to her severe head and orthopedic injuries, Ms.

Terrell also suffers from atrial fabulation, hypertension, shortness of breath, anxiety, and PTSD." The right to preference for litigants who qualify under Code of Civil Procedure Sec. 36(a) is mandatory. (Koch-Ash v. Superior Court (1986) 180 Cal.App.3d 689, 698-99; Rice v. Superior Court (1982) 136 Cal.App.3d 81, 86-87.) "The language of Section 36(a) was intended by the Legislature to be mandatory, and thus requires that a litigant qualifying under its terms be given preferential trial setting irrespective of the circumstances leading to the motion for preference." (Rice v.

Superior Court (1982) 136 Cal.App.3d 81, 85.) In opposition to this motion, Defendants argue first that Plaintiff has failed to provide competent medical evidence, but they fail to address section 36.5. The Court rejects this argument, noting that Plaintiff's counsel's declaration sufficiently states Plaintiff "...suffers from a declining memory and has significant difficulty recalling detail, communicating, and making decisions." Next, Defendant Ferreira Coastal Construction Co. argues that its ability to file a summary judgment is precluded by granting preference.

However, "[t]he trial court has no power to balance the differing interests of opposing litigants in applying the provision." (Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1085.) The parties' inability or "[f]ailure to complete discovery or other pre-trial matters does not affect the absolute substantive right to trial preference for those litigants who qualify for preference." (Id.) The only question is whether defendants' motion presents a countervailing concern. For the reasons explained below, the court finds a stay is not warranted at this stage of the case, and accordingly, finds that the motion for trial preference must be granted.

Defendants' Motion for Stay To begin, while "the court has no absolute obligation to stay a civil case whenever a parallel criminal case is pending," "[t]he court, nonetheless, has the authority and discretion to do so when the circumstances indicate that a stay is warranted." (People ex rel. Burns v. Wood (2024) 103 Cal.App.5th 700, 712 [323 Cal.Rptr.3d 251].) The parties agree that, in considering the appropriateness of a stay, the court should consider the extent to which the defendant's fifth amendment rights are implicated, and, additionally, should consider the following factors set forth in Keating v.

Office of Thrift Supervision (9th Cir. 1995) 45 F.3d 322 (Keating): "(1) the interest of the plaintiffs in proceeding expeditiously with [the] 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." (Id., at p. 325; see People ex rel.

Burns v. Wood (2024) 103 Cal.App.5th 700, 713 [323 Cal.Rptr.3d 251] [applying Keating factors]; see also Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 885 [94 Cal.Rptr.2d 505](Avant!).) A. Extent to Which Defendant's Fifth Amendment Rights are Implicated Defendants submit "not providing a stay ... will violate Mr. Lee's Fifth Amendment right," because "[i]f Mr. Lee is unable to refuse to answer [questions relating to the subject accident], a jury may automatically find him to be at fault without hearing Mr.

Lee's version of the events." Defendants additionally contend the "[f]acts leading up to the incident are relevant to the defense," and, for reasons not explained, "this information can only come from Mr. Lee" and "[w]ithout [his] testimony, either in a deposition or at trial, any defenses would be lost." It is true, and not disputed, Lee may assert his Fifth Amendment right in these proceedings (Lefkowitz v. Turley (1973) 414 U.S. 70, 77 [94 S.Ct. 316, 322, 38 L.Ed.2d 274, 281] (Lefkowitz)), but defendants' stated concerns

do not implicate Fifth Amendment rights (Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 882 [94 Cal.Rptr.2d 505] (Avant!), citing People v. Coleman (1975) 13 Cal. 3d 867, 884-885 [120 Cal. Rptr. 384, 533 P.2d 1024] (Coleman)). Lee has a Fifth Amendment right not to be "involuntarily called as a witness against himself in a criminal prosecution ... [and] not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings," (Lefkowitz, supra, 414 U.S., at p. 77), but the fact that criminal proceedings are pending against Lee " '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' [citation]" (Coleman, supra, 13 Cal. 3d at p. 885; see also, Avant!, supra, 79 Cal.App.4th at p. 882, citing with approval). "Whatever their response to requests for accommodation of the conflicting constitutional rights of a defendant in concurrent civil and criminal proceedings, courts have consistently refrained from recognizing any constitutional need for such accommodation. Rather, 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." (Ibid.)

B. Other Factors 1. Interest of plaintiff in proceeding expeditiously with litigation There is no dispute that plaintiff has an interest in proceeding expeditiously with this litigation. Further, as noted above, plaintiff has made a sufficient showing to establish entitlement to trial preference under Code of Civil Procedure section 36, the very purpose of which "is to protect aged plaintiffs from loss of substantive rights due to passage of time. The statute is itself a legislative determination that that risk exists; its purpose is to safeguard against that risk." (Rice v.

Superior Court (1982) 136 Cal.App.3d 81, 93 [185 Cal.Rptr. 853].) This factor militates against the granting of a stay.

2. The burden the proceedings may impose on defendants. Defendants raise a number of contentions regarding the burden that would be imposed upon them in the absence of a stay. a. Discovery to Ferreira PW Defendants first indicate that plaintiff served extensive discovery on Ferreira PW "requesting this entity make a determination as to the liability in this matter" and they contend Ferreira PW is "handcuffed in responding to written discovery related to the accident as it cannot make a factual determination relative to any liability issues on Mr.

Lee's behalf." It is not clear from defendants' motion, however, in what respect Ferreira PW is called upon by plaintiff's discovery to "make a factual determination relative to any liability issues on Mr. Lee's behalf." Appropriate orders could be warranted in some circumstances where Ferreira PW is directed to make liability determinations "on Mr. Lee's behalf," for example, as in Avant!, where requests for admission were served on a corporate defendant with a definition of "you" inclusive of Lee (see id., at pp. 881, 887), but there is no indication that plaintiff has served discovery of this kind here.

In reply, defendants provide a somewhat more extensive description of plaintiff's discovery demands, but none of the demands appear to support that a stay or other orders are warranted based on Lee's potential assertion of his Fifth Amendment right. According to defendants, plaintiff has demanded information related to Lee's supervisor; the truck owned by Ferriera PW that Lee was driving; and the training, supervision and fleet of Ferriera PW, but none of this appears to call for "a determination relative to any liability issues on Mr.

Lee's behalf." Defendants additionally contend Ferriera PW is called to "admit certain actions of Carter Lee," but if they do not have "sufficient information or knowledge" to respond, for example, incident to Lee's assertion of Fifth Amendment rights or otherwise, they are only required to state as much, along with a representation "that a reasonable inquiry concerning the matter in the particular request has been made, and that the information known or readily obtainable is insufficient to enable that party to admit the matter." (Code Civ.

Proc., Sec.

2033.220, subd. (b)(3).) As the discovery issues are presented here, Ferreira PW suffers no clear prejudice that the court can discern. b. Vehicle & materials held by law enforcement Defendants maintain Ferreira PW has not been able to inspect the vehicle Lee was driving at the time of the accident because it remains in police custody, and further, the "Tulare County police department" (the court does not recognize the name of this law enforcement agency) "has not released the Traffic Collision Report relating to Decedent's death and has not released the MAIT report" and "[t]he officers and/or other individuals will be identified in these reports and those will be witnesses that all parties will need to depose."

Plaintiff appears to impliedly concede the significance of such items and information, arguing, in effect, that the importance of Lee as a witness does not support the granting of any stay, as "[m]otor-vehicle collisions, including fatal collisions, are frequently investigated and proven through evidence other than a driver's testimony," such as through "physical evidence, scene evidence, vehicle damage, roadway evidence, photographs, video, EDR/ECM data, telematics, GPS or fleet-tracking data, dispatch records, route records, cell phone records, witness testimony, law-enforcement investigation, expert reconstruction, maintenance records, employment records, and corporate safety materials."

Plaintiff, though, does not directly respond to defendants' concerns. That said, defendants' concerns are, as submitted, vaguely stated and, critically, not supported by evidence. Counsel for defendants submits a declaration stating, on information and belief, only that Lee was set to be arraigned on June 29, 2026, and that he has criminal defense counsel. Nothing supports that the vehicle or materials defendants purportedly seek, and which are, or were, under the possession, custody or control of law enforcement, are unobtainable. c.

Prejudice resulting from absence of testimony by Lee i. As to Lee The question of prejudice to Lee is a difficult one. If this court grants plaintiff's motion for trial preference, Lee will face trial soon, at a time that he almost certainly will face possible criminal prosecution involving the same facts as this civil matter. And, as noted, Lee may assert his Fifth Amendment right in these proceedings (Lefkowitz, supra, 414 U.S., at p. 77) and, accordingly, is under "no obligation to disclose to [plaintiff] information [he] reasonably believe[s] might be used against [him] in a criminal proceeding" (Pacers, Inc. v.

Superior Court (1984) 162 Cal.App.3d 686, 689 [208 Cal.Rptr. 743] (Pacers)). It is foreseeable in this case that Lee will be, at some point, deposed and, if he invokes his Fifth Amendment right, faces the possibility of plaintiff's seeking to exclude his participation as a witness at trial. In this event, Lee, like the defendants in Pacer, will be "forced ... to choose between [his] silence and a 'meaningful chance of avoiding the loss through judicial process of a substantial amount of property.' [Citation.]" (Ibid.) "A party asserting the Fifth Amendment privilege," however, "should suffer no penalty for his silence," and "[i]n this context 'penalty' is not restricted to fine or imprisonment.

It means, ... the imposition of any sanction which makes assertion of the Fifth Amendment privilege 'costly.'" (Ibid., citations and some quotation marks omitted for clarity.) In Pacers, the court found that a trial court's order precluding defendants facing criminal prosecution in another case from testifying in their civil trial after having asserted Fifth Amendment rights during a deposition "made asserting that privilege 'costly'" and, therefore, that the trial court abused of discretion in making such order. (Ibid.)

The court, moreover, found that an order, "in accord with federal practice," "staying discovery until expiration of the criminal statute of limitations would [have] allow[ed] [the plaintiffs] to prepare their lawsuit while alleviating [defendants'] difficult choice between defending either the civil or criminal case." (Ibid.) Ultimately, though, the rule stated in Pacers was that "[w]here ... a defendant's silence is constitutionally guaranteed, the court should weigh the parties' competing interests with a view toward accommodating the interests of both parties, if possible." (Ibid.)

Juxtaposed somewhat to Pacers, Coleman, as noted above, observed that " '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.' [Citation.]" (Id., at p. 885.) Specifically, Coleman observed, " 'the overall interest of the courts that justice be

done may very well require that the compensation and remedy due a civil plaintiff should not be delayed (and possibly denied). The court, in its sound discretion, must assess and balance the nature and substantiality of the injustices claimed on either side.' [Citation.]" (Ibid.) Coleman further observed, again somewhat at odds with the later-determined Pacers case, that in the context of concurrent civil litigation, as opposed to concurrent proceedings with "the potential of imposing serious personal deprivations" (e.g., prison disciplinary hearings), "the need for accommodation is far less compelling, and does not appear to be of constitutional dimensions.

In such circumstances the defendant's choice as to the better forum - civil or criminal -in which to make his case is generally one of strategy rather than desperation." (Id., at p. 886.) Ultimately, though, the consistent thread in Pacers and Coleman is that the court's determination is based on a weighting of the parties' respective interests. The court finds, with respect to the request for a blanket stay at this stage, the balance of the parties' respective interests tips in favor of plaintiff, given her established entitlement to trial preference under Code of Civil Procedure section 36.

The court's determination is also based, in part, on the fact that, at this stage, Lee has not been subject to deposition and there has been no resulting effort to exclude his participation as a witness at trial. If Lee is not faced with a possibility of being excluded from testifying at trial incident to refusing to answer questions in discovery, as the defendants in Pacers were, it will only be Lee's ultimate election whether to ultimately present his testimony in defense against civil liability, and his "choice as to the better forum -- civil or criminal -- in which to make his case [will] generally [be] one of strategy rather than desperation." (Coleman, supra, 13 cal. 3d at p. 886.)

If Lee is faced with that prospect, however, appropriate orders may be warranted, depending on the circumstances then presented, as within the court's "discretion in seeking to assure the sound administration of justice." (Id., at p. 885.) ii. As to the entity defendants The question of prejudice to the entity defendants is not as complicated. Avant! specifically distinguished Pacers as a case informed by principles derived from cases involving claims against individual, as opposed to business entity, defendants. (Id., at p. 883.)

Moreover, Avant! makes clear that the Fifth Amendment does not provide protection against civil penalties to a corporation alleged to be vicariously liable for an employee either since "it has no Fifth Amendment interests to protect." (Id., at p. 886.) Defendants' argument with respect to the burden on the entity defendants, divorced as it must be from constitutional concerns, is not particularly compelling. Defendants maintain "Mr. Lee's inability to testify because of his concerns of self-incrimination would lead to a one-sided trial in which his silence will severely prejudice himself, his employer Ferreira Power West, and Ferreira Coastal Construction Co."

Defendants explain that "[f]acts leading up to the incident are relevant to the defense position"--whatever that position may be, it is not indicated--and "this information" [for reasons not explained] can only come from Mr. Lee." According to defendants, "[w]ithout Mr. Lee's testimony, either in a deposition or at trial, any defenses [for reasons also not explained] would be lost." The entity defendants, however, are only indirectly burdened by the potential inability to solicit testimony from Lee, given that Lee's testimony would only inferably pertain to the issue of whether Lee's driving conduct was negligent or otherwise unlawful.

The only liability question pertaining directly to defendants is whether Lee was driving in the course and scope of his employment, and defendants already concede Lee was driving in the course and scope of his employment with Ferreira PW. Defendants also assert that, despite having already conceded to plaintiff that Lee was driving in the course and scope of his employment with Ferreira PW and advising that the other entity defendants have been improperly sued, plaintiff has still insisted on "leav[ing] all Ferreira entities in the case to see who has the most insurance," and that, for reasons not explained, "testimony from Carter Lee as to hiring and employment" is somehow important to "adequately" respond to the contention that the other Ferreira entities, other than Ferreira PW, are

vicariously liable for Lee's conduct. The court, however, firstly notes that it is plaintiff's burden to establish that Lee was employed with any Ferreira entity, and acting within the course and scope of his employment with that entity at the time of the accident, to establish liability against any such entity. Secondly, the court fails to see how Lee's testimony would be critical to defendants' position in defending against any such vicarious liability issue presented in this case, as the entity defendants would presumably be the primary and principle sufficient source of information on whether Lee was an employee of any of them.

As to the question indirectly confronted by the entity defendants, and directly confronted by Lee, concerning Lee's liability for his driving conduct, the court is not persuaded, in the absence of an explanation by defendants, that defendants are entirely unable to respond absent Lee's testimony. As plaintiff notes, "[m]otor-vehicle collisions ... are frequently investigated and proven through evidence other than a driver's testimony." Moreover, as already observed, the Fifth Amendment ultimately does not provide protection against civil penalties to a corporation alleged to be vicariously liable for an employee since "it has no Fifth Amendment interests to protect." (Avant!, supra, 79 Cal.App.4th at p. 886.)

At this stage, while the court foresees the possibility that implication of the Fifth Amendment assertions in this case could, at some point, warrant appropriate discovery or other orders, defendants present no specific showing at this stage warranting a blanket stay of the civil case based on the burden which any particular aspect of the proceedings may impose on defendants. d. Remaining factors As to the remaining factors, (i) the convenience of the court in the management of its cases, and the efficient use of judicial resources; (ii) the interests of persons not parties to the civil litigation; and (iii) the interest of the public in the pending civil and criminal litigation, defendants present no especially compelling considerations.

Defendants contend a stay will facilitate convenience in that it will obviate the necessity of "multiple" discovery motions in will be required to file in light of "anticipated discovery." Another, better option, of course, would be for the parties to meet and confer in good faith to obviate the need for such motions. However, if this expects too much, the court is well equipped to handle such matters as they arise. Moreover, as a general matter, " 'convenience of the courts is best served when motions to stay proceedings are discouraged.' " (Avant!

Corp., supra, 79 Cal.App.4th at p. 888.) Defendants present no other meaningful considerations with respect to the interests of non-parties and the public, except to state that such interests, in this case, are "minimal," because "[w]hile [Mr. Terrell's] death is tragic, the public should not be tracking the civil cases filed by Lucinda Terrell and Darrell Terrell [referencing another civil action apparently initiated by the Mr. and Mrs. Terrell's son], and the civil lawsuit will not have any impact on the public as a whole."

The court does not find these considerations tip the balance in favor of granting a stay, and finds, instead, that the interests of third parties who might be called as witnesses would be better served by denial of a stay, so they are not called upon to recall important details long after the relevant events have occurred, and the public has a general, but significant, interest "in a system that encourages individuals to come to court for the settlement of their disputes." (Avant! Corp., supra, 79 Cal.App.4th at p. 889.)

C.

Conclusion

Based on the foregoing, the court finds that the motion to stay should be, and therefore is, denied. If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings. Re: Citibank, N.A. vs. Lozano, Maria