DR. DOE VS. KAISER PERMANENTE ET AL

Matter on the Law & Motion / Discovery calendar for Monday, August 25, 2025, Line 1. 2 - DEFENDANT KASIER FOUNDATION HOSPITALS' Motion To Preclude Evidence Withheld From Discovery On Fifth Amendment Grounds.

Continued on the court's own motion for hearing on Tuesday, August 26, 2025. The court's substantive tentative ruling appears below. This tentative will be reposted on Monday, August 25.

Defendants' motion to preclude evidence is denied without prejudice. Pursuant to CCP 2025.420 [protective order], defendants seek to preclude plaintiff from offering evidence or arguing about certain issues that are germane to this case because plaintiff refused to answer several questions at his deposition based on his Fifth Amendment right against self-incrimination.

There is authority for such a motion. (See A&M Records, Inc. v. Heilman (1977) 75 Cal.App.3d 554, 566 ["The accomplishment of this purpose compels the court to prevent a litigant claiming his constitutional privilege against self-incrimination in discovery and then waiving the privilege and testifying at trial. Such a strategy subjects the opposing party to unwarranted surprise. A litigant cannot be permitted to blow hot and cold in this manner."].)

The court, however, denies the motion without prejudice. None of the adduced issues is relevant to disposition of the motion for summary judgment/adjudication presently before the court, which has been denied on procedural grounds.

Second, the court agrees with plaintiff that the motion is fairly viewed as a motion in limine that the trial judge should resolve. The trial judge should determine what evidence is or is not allowed based on the specifics before him or her rather than have the trial judge attempt to interpret another judge's ruling.

Nothing in this order precludes defendants from refiling the motion should they file a new summary judgment motion, and nothing in this order precludes defendants from objecting to plaintiff's summary judgment evidence in a future summary judgment motion based on plaintiff's invocation of his Fifth Amendment right.

Plaintiff's request for sanctions is denied. Defendant had substantial justification in bringing the motion. =(301/CVA) | |