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self-study / Constitutional Law

Feb. 24, 2021

Restraining orders and the Fifth Amendment to the Constitution

Stanley Mosk Courthouse

Dean Hansell

Judge, Los Angeles Court Superior Court

Northwestern University Pritzker School of Law, 1977

Pomona Courthouse South

Bryant Y. Yang

Judge, Los Angeles County Superior Court

UC Berkeley School of Law

California law permits a person to obtain a restraining order to prohibit unlawful conduct under certain circumstances. A person can seek protection from violence, threats of violence, and harassment under several civil statutes, including the Civil Harassment Restraining Order (CHRO) law, the Domestic Violence Prevention Act (DVPA), the Elder Abuse and Dependent Adult Civil Protection Act (EADACPA), the Gun Violence Restraining Order (GVRO) law, and the Workplace Violence Safety Act (WVSA). A restraining order proceeding often occurs simultaneously with a criminal investigation or criminal case, presenting a dilemma for the retrained party because any statements by the restrained party in the civil case could be used against him or her in the criminal case.

To protect against criminal liability, the restrained party can invoke his or her privilege against self-incrimination under the Fifth Amendment. This two-part article explores the effects of such an invocation in the civil proceeding when a parallel criminal action exists, and whether the invocation of that privilege constitutes good cause for a stay of the civil case. Part one of this article discusses case law examining whether the Fifth Amendment requires a stay of civil proceedings, and then examines the case law specifically with regard to the CHRO law. Part two will examine proceedings under the DVPA, the EADACPA, the GVRO law and the WVSA.

Although there is a split in authority, the majority of appellate decisions hold that a civil litigant generally cannot invoke the Fifth Amendment privilege against self-incrimination to delay the civil case or evade civil sanctions when asserting that privilege. In unpublished opinions, various courts of appeal hold that trial courts do not abuse their discretion in denying requests for stays or continuances made by defendants invoking their Fifth Amendment privileges in CHRO proceedings, under Code of Civil Procedure Section 527.6, in DVPA proceedings, under Family Code Section 6360, and in EADACPA proceedings, under Welfare and Institutions Code Section 15657.03. No court of appeal has directly analyzed the effects of asserting the Fifth Amendment privilege in GVRO and WVSA proceedings. However, based on the applicable case law, a trial court likely would not abuse its discretion if — after a particularized inquiry into the claim of Fifth Amendment privilege and the competing interests involved in the case — it declines to stay the GVRO or WVSA proceeding and requires the subject of the petition to decide whether to assert the privilege, even if doing so limits the subject’s ability to put on a defense.

Weight of the Case Law Provides that the Fifth Amendment Generally Does Not Require a Stay of the Civil Proceedings or Protect Against Civil Sanctions

The Fifth Amendment privilege against self-incrimination may be asserted in either criminal or civil proceedings. Kastigar v. United States, 406 U.S. 441, 444 (1972). In a criminal case, a defendant “has an absolute right not to be called as a witness and not to testify.” Cramer v. Tyars, 23 Cal. 3d 131, 137 (1979). In a civil case, however, a witness or party cannot refuse to testify, but may exercise a limited privilege not to answer questions that may tend to incriminate him or her in criminal activity. Id. (citing Evid. Code Section 940). Pursuant to Evidence Code Section 913, a fact finder in either a criminal or civil case may not draw an adverse inference from a witness’ invocation of the privilege against self-incrimination. People v. Holloway, 33 Cal. 4th 96, 131 (2004).

There is a split in the case law as to whether a litigant in a civil action can assert the privilege against self-incrimination to delay the civil case or evade civil sanctions when asserting that privilege. The majority of the appellate decisions hold that a litigant who faces parallel criminal and civil cases generally cannot use the Fifth Amendment to stay the civil case or prevent sanctions.

In Pacers, Inc. v. Superior Court, 162 Cal. App. 3d 686 (1984), the 4th District Court of Appeal issued a writ and held that the trial court abused its discretion when it sanctioned the petitioners for invoking their privilege against self-incrimination and denied the petitioners’ motion to stay discovery. The petitioners were employees of a bar who got into a fight with undercover federal agents. The federal agents sued the petitioners in state court and the U.S. Attorney’s Office for the Southern District of California sought to indict petitioners for assault and battery. After the petitioners asserted their Fifth Amendment privilege against self-incrimination at their depositions and “refused to answer any questions,” the federal agents asked the state trial court for an order prohibiting the petitioners from testifying at trial, which the trial court granted. The trial court also denied the petitioners’ request to delay their depositions until after the criminal law statute of limitations ran on their criminal prosecutions.

On appeal, the 4th District held that the trial court had “forced petitioners to choose between their silence and a ‘meaningful chance of avoiding the loss through judicial process of a substantial amount of property.’” It concluded that the petitioners had been “penalized for exercising a fundamental constitutional right” and that the federal agents “had no right to information protected by the privilege against self-incrimination.” It further determined, based on federal case law, that “an objecting party is generally entitled to a stay of discovery in the civil action until disposition of the criminal matter.” But see Keating v. Office of Thrift Supervision, 45 F.3d 322, 325-26 (9th Cir. 1995) (“A defendant has no absolute right not to be forced to choose between testifying in a civil matter and asserting his Fifth Amendment privilege. Not only is it permissible to conduct a civil proceeding at the same time as a related criminal proceeding, even if that necessitates invocation of the Fifth Amendment privilege, but it is even permissible for the trier of fact to draw adverse inferences from the invocation of the Fifth Amendment in a civil proceeding.”). Accordingly, the Court of Appeal held that the petitioners had not violated the discovery rules, the trial court’s order preventing the petitioners from testifying was an abuse of discretion, and the discovery should be delayed until after the statute of limitations ran.

Several courts of appeal have disagreed with the holding in Pacers. See generally Quail Creek Vineyards v. Superior Court, C048743 (Cal. App. 3rd Dist., June 30, 2005) (“Pacers ... is incorrect when it states that in federal practice a party is ‘generally entitled to a stay of discovery in the civil action until disposition of the criminal matter,’ and is guilty of overstatement in concluding that there cannot be any penalty for asserting the privilege against self-incrimination.”) (citation omitted). In Fuller v. Superior Court, 87 Cal. App. 4th 299 (2001), the 2nd District Court of Appeal held that a civil litigant does not have the absolute right to invoke the privilege against self-incrimination. In that case, the petitioners were African-American shoppers who sued security guards and the guards’ employer for allegedly beating them. After the petitioners noticed depositions, the security guards moved the trial court to prohibit the depositions and stay the case until the statute of limitations expired based on fear of criminal prosecution. The petitioners, in turn, asked for the trial court to preclude the security guards from testifying at trial to matters they declined to about testify at their depositions. The trial court denied both parties’ requests.

On appeal, the 2nd District denied a writ, holding that the trial court did not abuse its discretion in denying the petitioners’ request for trial-testimony preclusion and in declining to stay the proceedings. It explained, “[A] party is not entitled to decide for himself or herself whether the privilege against self-incrimination may be invoked. Rather, this question is for the court to decide after conducting ‘a particularized inquiry, deciding, in connection with each specific area that the questioning party seeks to explore, whether or not the privilege is well founded.’” It concluded that, because a litigant does not have the absolute right to invoke the privilege against self-incrimination, “[a] party or witness in a civil proceeding ‘may be required either to waive the privilege or accept the civil consequences of silence if he or she does exercise it.’” The Court of Appeal held that a trial court has to balance the interest of the litigant asserting the privilege versus “the interests of the plaintiff in civil litigation ... to an expeditious and fair resolution of their civil claims without being subjected to unwarranted surprise” and “the interest of the courts in fairly and expeditiously disposing of civil cases ... efficiently utilizing judicial resources.” It implicitly ruled contrary to Pacers, holding that “the security guards may not invoke a blanket privilege against self-incrimination with respect to the whole deposition.” However, because the security guards had not yet invoked the privilege and the trial court could not conduct a particularized inquiry as to specific questions, the Court of Appeal held that it was premature to request a protective order or an order precluding trial testimony. The Court of Appeal further held, contrary to Pacers, that a stay of three years would fly “in the face of the policies” requiring the fair and expeditious resolution of cases and would expose the parties to the risk of diminished memory and lost records.

Like Fuller, other courts of appeal have held that a trial court does not abuse its discretion in denying a motion to stay or a request for continuance based on the Fifth Amendment privilege against self-incrimination and that a civil litigant may have to face penalties for invoking that privilege. Oiye v. Fox, 211 Cal. App. 4th 1036, 1055 (2012) (“We understand defendant’s desire to remain silent in the face of ongoing criminal proceedings rather than filing his own declaration in opposition to plaintiff’s request for a preliminary injunction [in the tort action]. However, defendant remained free to present other evidence to contradict plaintiff’s declaration of molestation. Other declarants could have provided him with an alibi or otherwise contradicted plaintiff’s claims without waiving defendant’s privilege against self-incrimination. We see no deprivation of due process in the trial court considering the existing evidence and ruling on the request for a preliminary injunction.”); In re Marriage of Lobel, G044553 (Cal. App. 4th Dist., Apr. 30, 2012) (rejecting arguments that the trial court should have granted a continuance because the appellant was unavailable to testify based on her exercising her Fifth Amendment privilege); Quail Creek Vineyards (holding that the trial court abused its discretion in granting a stay because “the trial court seemed to be of the view that it should grant a stay as a matter of course when there is a related criminal matter ... [although] the rule is to the contrary”); Blackburn v. Superior Court, 21 Cal. App. 4th 414, 426 (1993) (“While the privilege of a criminal defendant is absolute, in a civil case a witness or party may be required either to waive the privilege or accept the civil consequences of silence if he or she does exercise it.’”) (citation omitted).

Civil Harassment Restraining Order Proceedings

There does not appear to be a published opinion analyzing the effects of asserting the Fifth Amendment privilege against self-incrimination in CHRO proceedings. In unpublished decisions, however, the 1st, 2nd and 6th District Courts of Appeal have held that a trial court does not abuse its discretion in denying a motion to stay or continue based on the Fifth Amendment. Stuetzle v. Galin, H025053 (Cal. App. 6th Dist., Sept. 26, 2003); Jepsen v. Ekelund, A104752 (Cal. App. 1st Dist., Nov. 29, 2004); Kang v. Kim, B284152 (Cal. App. 2nd Dist., May 17, 2018).

For example, in Kang, the 2nd District held that the trial court did not abuse its discretion in denying a request for continuance, which forced the civil defendant to invoke the Fifth Amendment privilege and limited his ability to put on a defense. In Kang, the trial court issued a temporary restraining order and then continued the matter, when the defense counsel informed the trial court that his client was not present because she had violated the restraining order. At the new hearing date, defense counsel requested a continuance indefinitely because the defendant had a pending criminal case and wanted to assert her Fifth Amendment privilege. The trial court denied the request.

On appeal, the Court of Appeal explained that, under CCP Section 527.6, “there is no mandatory right to a continuance” and that a continuance may be granted upon a showing of good cause. It cited to CCP section 527(g), which provides that “a hearing shall be held on the request of a restraining order within 21 days, or, if good cause appears to the court, 25 days from the date that a petition for a temporary order is granted or denied.” Relying on the fact that the trial court had already granted a continuance beyond the 25-day limit imposed by statute, and citing Fuller, the Court of Appeal held that, “[i]nstead of staying the civil proceeding, the trial court may 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.” See also Stuetzle (“Defendant’s assertion of her Fifth Amendment privilege against self-incrimination did not alone require the court to delay the hearing further. ... [P]laintiff was entitled to the quick and permanent relief section 527.6 was intended to provide.”); Jepsen (holding that the trial court did not abuse its discretion in denying a short 30-day continuance because the appellant, who sought the injunction, should not be able to use the self-incrimination privilege as a tactical advantage and because the Legislature intended to provide “expedited injunctive relief to victims of ‘harassment’” under CCP section 527.6); Lilienthal v. Crawford, B276073 (Cal. App. 2nd Dist., Aug. 8, 2017) (holding that a trial court did not abuse its discretion by granting a continuance because, “[a]lthough a trial court is not required to stay civil proceedings pending the conclusion of a criminal case in order to protect a defendant’s Fifth Amendment rights ... 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”).

In part two of this series, we will continue by examining the privilege against self-incrimination in the context of DVPA, EADACPA, GVRO and WVSA proceedings.. 


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