Case Number: BC630977 Hearing Date: June 27, 2018 Dept: 61
Plaintiffs’ Motion to Compel the Deposition of Defendant Saul Galicia is GRANTED. The right to compel the deposition of a party under Code of Civil Procedure section 2025.450 is not disputed.
No blanket privilege applies to any individual defendant. (Avant! Corp. v. Sup.Ct. (Nequist) (2000) 79 Cal App 4th 876, 886-887; Warford v. Medeiros (1984) 160 Cal.App.3d 1035, 1044-1045; See Fuller v. Superior Court (2001) 87 Cal.App.4th 299, 308.) Civil defendant cannot invoke privilege without showing actual possibility of criminal prosecution. (Blackburn v. Superior Court (1993) 21 Cal.App.4th 414, 426-427.) Any and all objections can and must be raised during the deposition. (Warford v. Medeiros, supra, 160 Cal.App.3d 1045.) “The court, in its sound discretion, must assess and balance the nature and substantiality of the injustices claimed on either side… ¶ … While the privilege of a criminal defendant is absolute, in a civil case a witness or party may be required to waive the privilege, or accept the civil consequences of silence if he or she does exercise it. “ (Blackburn v. Superior Court (1993) 21 Cal.App.4th 414, 426.)
“In deciding whether a question may incriminate a witness, the courts have more recently been guided by the principle that protection must be confined to instances where the witness has reasonable cause to apprehend danger from a specific answer to a specific question. ‘The witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself-his say-so does not of itself establish the hazard of incrimination. It is for the court to say whether his silence is justified…. To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. The trial judge in appraising the claim “must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence”’” [Citations.]
(Id., at pp. 427-428.)
Defendant refuses to appear for deposition, and instead contends discovery of other sources of information regarding vehicle maintenance and records regarding the fitness of Galicia as a vehicle operator, suffice. Such an argument lacks support given the authority against blanket refusals to testify, and unfairly deprives Plaintiffs of their right to depose a party defendant. Whether Plaintiffs elect to conduct discovery or not into other sources of information regarding vehicle safety and employer conclusions concerning the fitness of its drivers does not preclude discovery into the circumstances leading to the collision.
Defendant must appear for his deposition and invoke his Fifth Amendment privilege against self-incrimination on a question-by-question basis. Any challenges to the right to invoke the privilege in the form of a motion to compel a deposition answer, can and must be addressed by the court after the deposition.
Counsel for Plaintiffs to provide Notice.