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WH Michael
David
MICHEL
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FACKLER
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Attorneys forDefendants,
MICHAEL ROBERTS CONSTRUCTION, INC.,
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‘SUPERIOR COURT OF THE STATE OF CALIFORNIA
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AUTHORITIES IN SUPPORT OF MOTION
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MINOR AND SEBASTIAN TORRES- DECEDENT
ALVAREZ, A MINOR,
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Date: October 3, 2019
Time: 9:00 a.m.
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Plaintiffs,
vs. Department: 24
NY
Reservation No.: R-2112665
BAYROCK MULTIFAMILY, LLC;
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MICHAEL ROBERTS CONSTRUCTION, Complaint Filed: December 10, 2018
INC.; SHEEEHAN CONSTRUCTION, INC. Trial Date: December 23, 2019
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JOSE OLIVARES and DOES 1-40,
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Defendants.
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Pursuant to California Rule of Court 3.1113, defendants submit the following appendix of
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out-of-state authorities, true and correct copies of which are attached hereto as exhibits for the
FSF
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convenience of the Court and counsel:
NA
KR
Lyons v. Johnson (9th Cir. 1969) 415 F.2d 540 (Exhibit "A");
NO
KH
Serafino v. Hasbro, Inc. (Ast Cir. 1996) 82 F.3d 515 (Exhibit "B");
No
nN
Christenson v. Christenson (Minn. 1968) 281 Minn. 507, 162 N.W.2d 194 (Exhibit "C");
ao
wR
/Tf
APPENDIX OF OUT-OF-STATE AUTHORITIES IN SUPPORT OF MOTION TO STAY ACTION
-1-
McKelvey y.Freeport Housing Authority (1961) 220 N.Y.S.2d 628 (Exhibit "D").
Dated: September 23, 2019 MICHEL & FACKLER
NY
A Professional yi oration
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Michael D. Michel, Esq.
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David L. Crowe, Esq.
Attorneys forDefendants MICHAEL
WB
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SHEEHAN CONSTRUCTION, INC. and
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APPENDIX OF OUT-OF-STATE AUTHORITIES IN SUPPORT OF MOTION TO STAY ACTION
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EXHIBIT A
Lyons v. Johnson, 415 F.2d540 (1969)
13 Fed.R.Serv.2d 774
Opinion
415 F.2d 540
United StatesCourt ofAppeals Ninth Circuit. JOHNSEN, Senior CircuitJudge.
Jo Ann LYONS, Appellant, Two ofthesethree appealsare from dismissalsofcivilrights
Vv. damage actionsunder 42 U.S.C. §§ 1983 and 1985 against
Wilbur R, JOHNSON etal.,Appellees. different
defendants.The third *541 appeal isfrom anearlier
Jo Ann LYONS, Appellant, order inone ofthe suitsdenying appellant'srequestfor an
v. injunction.
F.J. DELARIOS etal.,Appellees. One of the suitswas against a Califomia deputy district
Jo Ann LYONS, Appellant, attorney,some policeofficersand other persons.The other
v. suit was against a magistrate of a municipal cowt and
F. J. DELARIOS etal.,Appellees. an attorney appointed to representor assist appellantin
some misdemeanor charges onwhich proceedings had been
Nos. 22172, 22172-A, 22068. suspended fora time under § 1368 ofthe CaliforniaPenal
| Code (‘a doubt * * * as to the sanityof the defendant’).
Aug, 26, 1969, Rehearing Denied Oct. 14, 1969. From theimplicationsof thecomplaints, appellantwas after
hospitalexamination apparentlydeemed nat tolack capacity
Synopsis
tostand trial.
Both complaints sought damages forconspiracy
Civilrights actionsfordamages. The United StatesDistrict
and acts,allegedto have been engaged inagainstappellant,
Court forthe Northern Districtof California,Burke and
which were recognized by her as having been separatebut
Zirpoli,JI.,dismissed theactionson motions ofdefendants
apparently regardedashaving had similaraims— gettingher
following plaintiffs refusal to submit to depositional
put (shebelieved)intoa statemental institution.
interrogationordiscovery in relation
to her claims.Plaintiff
appealed. The Court of Appeals, Johnsen, Senior Circuit Dismissal of the suitswas made because of appellant's
Judge, held that where therewas no justification
for a continued and unyieldingrefusal tosubmit herselfto any
protectiveorder theactionswere properly dismissed,though depositionalinterrogation
or discoverywhatsoever inrelation
plaintiff's
refusalto submit tointerrogationordiscovery was to herclaims.She ignoreda number of notices
which had been
based upon a claim ofprivilegeagainstself-incrimination. served upon her forthatpurpose. When the courtthereupon
entered an orderdirectingher to appear upon another such
Judgments affirmed; appeal from denial of injunction notice,she presentedherself at the depositionscene, but
dismissed asmoot. refused toanswer any question except tostatehername. To
allotherinquiriesmade of her,shemerely responded thatshe
was invoking herprivilegeagainst self-incrimination
under
Attorneys and Law Firms
the FifthAmendment. The interrogation
had sought to elicit
*540 Neri Ramos (argued), San Francisco, Cal., for information from her as toher version of the background,
appellant. aspects and incidentson which she was predicating her
claims.
John B. Marchants (argued),of Sedgwick, Detert,Moran
& Amold, San Francisco, Cal.,John H. Sears (argued),of When motions were thereafter
filedin both suitsfororders
Bronson, Bronson & McKinnon, SanFrancisco,Cal.,Ropers, requiring appellantto answer such questions or granting
Majeski & Phelps,Redwood City,Cal.,Reisch & Sherman, dismissalof her suits,thecourt accorded a fulland patient
So. San Francisco,Cal.,forappellees. hearing inthe matter.
Judge Burke explainedto herthe right
of a defendant who has been subjectedto a suitto require
Before JOHNSEN, 'BLY and CARTER, CircuitJudges. the plaintiff
to submit todepositional discovery inrelation
to the claims asserted;advised her that ifshe wanted to
I Harvey M. Johnsen,SeniorCircuit
Judge oftheEighth use theshieldof self-incrimination
againstany interrogation
Circuit,
sitting
bydesignation. whatsoever regarding her claims,she would have toforego
the rightto prosecutethe actions;and informed herthat if
WESTLAW © 2019 Thomson Reuters. No claim to originalU.S. Government Works. 4
Lyons v. Johnson, 415 F.2d540 (1969)
13 Fed.R.Serv.2d 774
she was determined to adhere toher position,itwould be Her obtaining of thisshield,however, could not provide a
necessary forhim to dismissthesuits, sword toher for achieving assertionof her claims against
the defendants without having toconform to theprocesses
Appellant remained adamant and declared: ‘So I willnot
necessary toorderlyand equal forensicfunctioning.Clearly,
waive, and I will not acquiesce and I will stand under
the processof discoveryhas become increasinglyrecognized
the FifthAmendment even ifmy case isdismissed. I will
as oneof theprimary andessentialelementsinmaking federal
merely carry itto a highercourt’.With the furtherspecific
court businessflow and incontributingtothe accomplishing
inquiriesby the courtas towhether she might be willingto
of trialjusticeor settlementtermination of litigation.
The
recede from her position‘ifyou were to appear forfurther
scalesof justice
would hardlyremain equal intheserespects,
deposition’,and whether herrefusalwas intended toapplyto
if a party
canasserta claimagainstanotherand then beable to
both ofthe lawsuits,thesituationwas leftwith no room for
block alldiscovery attemptsagainsthim by assertinga Fifth
any uncertaintyor misunderstanding by appellant— and she
Amendment privilegeto any interrogationwhatsoever upon
makes no such contention here.
his claim.Ifany prejudice istocome from such a situation,
On theseabsolutes,theorderlyfunctioningof acourt andthe
it must, as a matterof basic fairnessin the purposes and
equal administrationof justiceby itcould callonly forthe
concepts on which therightof litigation.
rests,
be tothe party
actionwhich thetrial court
took.No abuse of discretion
within
assertingtheclaim and notto theone who has been subjected
the provisions of Rule 26(b),Fed.R.Civ.P., 28 U.S.C.A.,
to itsassertion.
Itisthe formerwho has made the electionto
could be saidtobe involved, The courtwas not dealingwith
createan imbalance in thepans ofthe scales.
the situationwhere there was shown to be any margin for
a protectiveorder under Rule 30(b)or (d).No aspect was We would not have indulged intheextent ofthisexpression
shown to exist ofunnecessary scope, improper motive or except fora desireto reachthrough to appellantinher self-
unfairmanner asto theexercisingof thediscovery process. representationasto thecourse which she haschosen to take.
She of coursehad therightto make thatchoice, butshe must
now acceptthefactthatthe doorsof thelaw areclosed toany
The naked question thereforesimply was whether a plaintiff
attemptsby her toreassertheralleged claims.
can refuse tosubmit to any discovery whatsoever upon his
Related to what we have held, there may be noted 4
lawsuit,by asserting
a FifthAmendment privilegeagainstany
Moore's Federal Practice1295, § 26.22(5) and Independent
interrogationof him, and thendemand thathe nevertheless
Productions Corp. v.Loewe's Incorporated,22 F.R.D. 266,
be permitted tocontinue with thelegalpursuitof his claim,
279 (S.D.N.Y.1958). Our holdingrequires affirmanceto be
no matter what prejudiceor possibleunequal protection
made of the
dismissalsof bothof appellant's
actions.
As tothe
there might be involved tothe defendant from such a court
appeal taken from thedenial ofan injunction,appellanthas
acquiescence.
failedtocarrythrough thenecessaryprosecutionof it by
filing
*542 It isa little
difficulttovisualize how a possibility briefs,etc.More than this,
however, it
has alsonow become
of self-incrimination
could beinvolved in any mere relevant -moot from dismissalhaving been made of theactionof which
interrogationofappellant asto thebackground, aspects and it wasan incidentora part.Itwillaccordinglybe dismissed.
incidentsof herassertedclaims,unless she hadengaged ina
matter ofperjury asto theallegationsofher complaints;but
The judgments inNos. 22,172 and22,172-A areaffirmed,and
thatquestionwas notone which the courtwas calledupon to
theappeal inNo. 22,068 isdismissed.
consider.If,
however, appellantcouldproperly havehad a fear
of thepossibility
of exposure tosame collateral
orunrelated
incrimination,she has received fullprotectionagainst any All Citations
such possibilityfrom the court'scomplete honoring of the
scope ofthe privilegeassertedbyher. 415 F.2d 540,13 Fed.R.Serv.2d 774
End ofDocument © 2019Thomson Reuters.
No claimtooriginal
U.S.GovernmentWorks.
WESTLAW © 2019 Thomson Reuters. No claim to originalU.S. Government Works. 2
EXHIBIT B
Serafino v.Hasbro, Inc.,82 F.3d 515 (1996)
70 FairEmpl.Prac.Cas. (BNA) 917, 64 USLW 2700
Opinion
82 F.3d 515
United StatesCourt ofAppeals, COFFIN, Senior CircuitJudge.
FirstCircuit.
Plaintiff-appellant
George Serafinobrought alawsuit against
George J.SERAFINO and Anita Hasbro, Inc.(“Hasbro”) and itsCEO, George R. Ditomassi,
M. Serafino, Plaintiffs,
Appellants, Jr, claiming that they unlawfully terminated certain
v. business arrangements and then his employment because
HASBRO, INC., etal.,Defendants, Appellees. his daughter fileda discrimination action against them.
During discovery, Serafino refused to answer questions
No. 95-1991. pertainingto allegedimproprietiessurrounding thebusiness
arrangements, invoking his Fifth Amendment privilege
Heard Jan. 10,1996. againstself-incrimination.
Upon determining thatSerafino's
| silenceon thesemattersunfairlyhampered defendants’ability
Decided April 23,1996. to mount a defense,the district
court dismissed Serafino's
claims withprejudice.
Synopsis
Former employees, who were fatherand daughter,brought In this appeal, we must determine whether dismissal
action instatecourt against former employer alleging that constitutesan impermissible infringement on Serafino's
former employer subjected daughter to sexual harassment constitutionalright against self-incrimination.After due
and retaliated
againstboth fatherand daughter fordaughter's consideration,we conclude thatthedistrict
courtactedwithin
filingof charges. Former employer removed action. The itspower and discretionindismissing Serafino'sclaims,and
United StatesDistrict
Court forthe District
of Massachusetts, affirm.
Michael A. Ponsor, J.,893 F.Supp. 104,held that father's
invocationof privilegeagainstself-incrimination
torefuseto
answer questionsat hisdepositionwarranted dismissalof his
claims.Father and daughterappealed. The Court ofAppeals, BACKGROUND!
Coffin,Senior CircuitJudge, heldthat father's
invocationof
privilegeagainstself-incrimination
warranteddismissalof his Sincethisappealisfrom anordergrantinga motionto
claims, dismiss,we derivethefactsfromthe pleadings.
PHC,
Inc.v.Pioneer Healthcare,Inc.,
75 F.3d 75, 77 (1st
Affirmed. Cir.1996).
From 1972 untilhisterminationinDecember 1994,Serafino
worked asa mechanic and thengroup leaderforthe Milton
*516 Appeal from theUnited StatesDistrictCourt forthe Bradley Company (“MiltonBradley”), a divisionof Hasbro
Districtof Massachusetts; Hon. Michael A. Ponsor, U.S. since 1985,locatedinSpringfield,Massachusetts.In addition
DistrictJudge. to his regular employment, Serafino had three unusual
businessarrangements with MiltonBradley.In 1976,Serafino
Attorneys and Law Firms
createdHampden BatteryService,Inc.(‘Hampden Battery”),
Morris M. Goldings with whom Ellen S. Shapiro,Boston, which servicedand reconditionedbatteriesused in Milton
MA, was on briefforappellants. Bradley vehicles.Then, in 1984, he formed ABC Janitorial
Services(“ABC”), which performed nightlycleaning service
Arthur G. Telegenwith whom Amy B.G. Katz,Boston, MA, at Milton Bradley buildings.Finally,in 1985, he assumed
Charles $. Cohen, and David G. Cohen, Springfield,MA, responsibilityfor supervising ground maintenance at the
were on briefforappellees. company's facilities,
for which he was guaranteed 20hours a
week ofovertime.
Before TORRUELLA, Chief Judge,COFFIN, Senior Circuit
Judge, andCYR, CircuitJudge.
Anita Serafino,2 George Serafino'sdaughter, alsoworked
at Milton Bradley. In January 1992, she fileda complaint
WESTLAW © 2019 Thomson Reuters. No claim to originalU.S. Government Works. 4
Serafino v.Hasbro, Inc.,
82 F.3d 515 (1996)
70 FairEmpl.Prac.Cas. (BNA) 917, 64 USLW 2700
with theMassachusetts Commission Against Discrimination
alleging thata co-worker had sexually harassed her.In Isn'tittruethat Mr. Peckham got financialbenefitfrom
July 1993, both Serafinosfiled a complaint in Hampden your companies thatwas illegal?
Superior Court against Hasbro and Ditomassi alleging
sex discrimination and retaliation.In particular,George
Serafino alleged thatDitomassi, as a retaliatorymeasure, George Serafino was discharged from Milton Bradley in
instructedtwo high-ranking company employees, Joseph December 1994, Shortlythereafter,the Serafinosamended
Gulluni and Arthur Peckham, to terminate the three their complaint to include this termination as a further
extracurricular
business ventures.The overtime arrangement act of retaliation.
In response, defendants removed the
was discontinued on January 1, 1993, the business case to federalcourt, on the ground that consideration
relationshipwith Hampden Battery in April of 1993, and of the discharge would require the court to interpreta
the relationshipwith ABC in mid-1994. Based on these collectivebargaining agreement, bringing Serafino'sclaim
events,Serafinoadvanced threetheories
of liability:
violation within Section301 of theLabor Management RelationsAct,
of Mass.Gen.L.Ann. ch. 15183, quantum meruit,and 29 U.S.C.§ 185.
intentional
interferencewith advantageous relationship.
On March 31, 1995,4 defendants submitted a motion to
2 To avoid confusion,Anita Serafinowill always be dismiss Serafino'sclaims.They claimed thatby refusingto
referred
to byherfullname; GeorgeSerafino,attimes, respond totheirquestions,Serafinohad prevented them from
willbereferred
to onlyas“Serafino.” discovering important information about the very benefits
thathe suedto recover.
Defendants assertedthatthe questions
3 Chapter 151B protectspeople against unlawful surrounding thebenefitswere centraltothe case:
discrimination.
Wheelock College v. Massachusetts
Comm'n AgainstDiscrimination,
371 Mass. 130,137,
355 N.E.2d 309 (1976).Serafinoaccused defendants A few daysearlier,
Hasbro filed
a civil
RICO complaint
of violating
chapter 151B, § 4(4A),which makes it against
Serafino,
Gulluniand Peckham alleging
a course
unlawfulforany person“tocoerce,intimidate,
threaten ofconductinvolvingkickbacks,
overchargingandother
or interfere
with suchotherpersonforhaving aidedor ilegalactivity.
encouragedanyotherpersonin the exercise
or enjoyment If ...Serafino paid criminal bribes to Milton Bradley
ofany suchrightgranted
or protected
bythischapter.” employees tomaintain his unusually favorable overtime
*517 Serafinowas deposed inthe fall
of 1994. Defendants arrangement, batterybusiness and cleaningservices,then
pursued a line of questioning concerning improprieties he is in no position toclaim that defendants somehow
surrounding Hampden Battery, ABC and the overtime wrongfully took these benefits away ...[or that] his
benefits,
focusing, inparticular,
on how Serafino,
Gulluni and terminationwas [not]proper.
Peckham might have illegally
benefittedfrom theseventures.
Serafino, invoking his rightsunder the Fifth Amendment In rebuttal,
Serafinodisputed therelevance ofthe questions,
and Article 12 ofthe Massachusetts Declaration of Rights, suggestingthat defendantswere insteadattempting togarner
refused toanswer most questions relatingtothese matters. information fortheirRICO complaint.On July28, 1995,the
Such questions included: district
courtdismissed all
of Serafino's
claims withprejudice
Did you givemoney toother peopleasa conditionfordoing and remanded AnitaSerafino'sclaims tothestatecourt.
business with MiltonBradley?
[Did] Mr. Peckham ever get any financialbenefitfrom
DISCUSSION
ABC Cleaning Services?
Serafino attacksthe district
court'sdecision on two fronts:
Why did [Mr.Gulluni] have you reporttohis officeevery first,
he argues that,as a matter of law, the courtdid not
day? have the power todismiss his claims;second, he contends
that thecourt abused itsdiscretionin concluding thathis
Do you haveany financialrelations
with Mr, Peckham? constitutional
interestwas outweighed by possibleprejudice
todefendants. We address theseissuesinturn.
Were you involvedin criminalactivity
together?
WESTLAW © 2019 Thomson Reuters. No claim tooriginalU.S. Government Works. 2
Serafino v.Hasbro, Inc.,82 F.3d 515 (1996}
70 FairEmpi.Prac.Cas. (BNA) 917, 64 USLW 2700
ensure thattheopposing partyisnot unduly disadvantaged.
See Gutierrez-Rodriguezv.Cartagena, 882 F.2d553, 577 (ist
A. The DistrictCourt'sPower toDismiss Cir.1989)(affirmingdistrict
court's
refusaltoallow defendant
Serafino argues that the legitimateexerciseof one's Fifth totestifyattrial
when he assertedFifthAmendment privilege
Amendment privilege can neverjustifydismissal ofa civil during discovery).After balancingthe conflictinginterests,
claim-a contentionnotwithout force.The Supreme Court has
dismissalmay bethe onlyviable alternative.
5
statedthatthe FifthAmendment “guarantees ...therightof
a person toremain silent
unless he chooses to speak inthe
unfetteredexerciseof hisown will,and tosufferno penalty Though dismissal
has rarely
been imposed oraffirmed,
..for such silence.”
Spevackv. Klein,385 U.S. 511,514, 87 a number of courtshave acknowledged the court's
power to dismiss even in the face of a party's
S.Ct. 625,627, 17 L.Ed.2d 574 (1967) (quotingMalloy v.
proper assertion
of the privilege.
See,eg., Wehling
Hogan, 378 U.S. 1,8,84 S.Ct.1489, 1493-94, 12L-Ed.2d 653
v.Columbia BroadcastingSys.,608 F.2d 1084, 1087
(1964)) (emphasis added).The concept of“penalty” includes
n, 6 (SthCir.1979);Lyons v.Johnson, 415 F.2d
“the impositionof anysanction which makes assertionofthe
$40, 542 (9thCir.1969);Mt. VernonSav. & Loan v.
FifthAmendment privilege‘costly.’”fa.at 515,
87 S.Ct. at PartridgeAssecs.,
679 F.Supp.522,529 (D.Md.1987),
628 (quotingGriffinv.California,380U.S. 609, 614,85 S.Ct. Stop & Shop Cos. v.Interstate
Cigar Co., 110F.R.D.
1229, 1232-33, 14L.Ed.2d 106(1965)). 105, 108 (D.Mass.1986);Jones v. B.C. Christopher
& Co, 466 FSupp. 213,227 (D.Kan.1979),Penn
Unconstitutionalpenaltiesforthe invocationofthe privilege CommunicationsSpecialties,
Inc.v.Hess,65F.R.D.510,
have included disbarmentof alawyer, seeSpevack, 385 U.S. $12(E.D.Pa.1975);Wansongv.Wansong,395 Mass,154,
at516, 87S.Ct. at 629;
forfeiture
of jobsby publicemployees, 157-58,478N.E.2d 1270(1985).
see *518 Gardner v.Broderick, 392US. 273, 278,88 S.Ct. We reiteratethatthebalance must be weighed tosafeguard
1913, ~--,20 L-Ed.2d 1082 (1968) and Uniformed Sanitation the Fifth Amendment privilege:the burden on the party
Men Ass'n v. Commissioner of Sanitation,392 U.S. 280, assertingitshould be no more thanis necessaryto prevent
284-85, 88 S.Ct.1917,1919-20, 20 L.Ed.2d 1089 (1968);and unfairand unnecessary prejudicetotheother side.
See S.E.C.
imposition of substantial
economic sanctions,
see Lefkowitzv. v. Graystone Nash, Inc.,25 F.3d 187, 192 (3d Cir.1994);
Turley,414 U.S. 70,82-83, 94 S.Ct.316,324-25, 38 L.Ed.2d Wehling, 608 F.2d at 1088. As correctlydelineatedby the
274 (1973).While automaticdismissalof acivilactioncould district
court in thiscase,“the Fifth Amendment privilege
fallneatly within this category,see Wehling v.Columbia should beupheld unless defendantshave substantialneedfor
Broadcasting Sys., 608 F.2d 1084, 1087-88 (Sth Cir.1979), particularinformationand thereisno other lessburdensome
we cannot agree thatdismissal isalways impermissible.See effectivemeans of obtainingit.”See Black Panther Party v.
id.at 1087 n. 6 (“[TJhedistrict
court isnot precluded from Smith, 661 F.2d 1243, 1272 (D.C.Cir.1981), vacated mem.,
using dismissal as a remedy to prevent unfairness tothe 458 U.S. 1118, 102 $.Ct. 3505, 73 L.Ed.2d 1381 (1982)
defendant.”). (enunciatingsimilarbalancingapproach). Having determined
thatthe districtcourt could,within itsdiscretion,dismiss
The Supreme Court has indicatedthatthe assertionofthe thiscase, and thatitutilizedthe proper balancing test,
we
privile
Preview
wong 22538761 | = NY WH Michael David MICHEL A 2175 L. D. North & Michel, Crowe, Professional FACKLER Esq. Esq. Corporation California (SBN (SBN Boulevard, 062131) 088188) Ste 550 ALAMEDAma: GER ZS COUNT 9618 Walnut Creek, California 94596 Telephone: (925) 933-7309 CLERK QF THEAUPERIOR COURT FP Facsimile: (925) 933-7310 By. = Depul¥ gPaI A Attorneys forDefendants, MICHAEL ROBERTS CONSTRUCTION, INC., NH SHEEHAN CONSTRUCTION, INC. and 1950 ADDISON APARTMENT JOINT VENTURE LLC, sued herein as Doe 1 ~T ‘SUPERIOR COURT OF THE STATE OF CALIFORNIA © FOR THE COUNTY OF ALAMEDA Oo FS eee SOPHIA ALVAREZ, INDIVIDUALLY Case No. RG18931581 —& AND AS THE SUCCESSOR IN INTEREST APPENDIX OF OUT-OF-STATE NO OF FRANCIS GABRIEL TORRES SILVA, AUTHORITIES IN SUPPORT OF MOTION DECEASED, AND DONACIANO TO STAY ACTION DUE TO PENDING me W CASWELL AS GUARDIAN AD LITEM CAL-OSHA CRIMINAL INVESTIGATION FOR SANTIAGO TORRES-ALVAREZ, A OF ACCIDENT INVOLVING PLAINTIFES' FP MINOR AND SEBASTIAN TORRES- DECEDENT ALVAREZ, A MINOR, NA Date: October 3, 2019 Time: 9:00 a.m. nA Plaintiffs, vs. Department: 24 NY Reservation No.: R-2112665 BAYROCK MULTIFAMILY, LLC; WB MICHAEL ROBERTS CONSTRUCTION, Complaint Filed: December 10, 2018 INC.; SHEEEHAN CONSTRUCTION, INC. Trial Date: December 23, 2019 ODO JOSE OLIVARES and DOES 1-40, RD OD Defendants. RD KH DD NY Pursuant to California Rule of Court 3.1113, defendants submit the following appendix of RD WY out-of-state authorities, true and correct copies of which are attached hereto as exhibits for the FSF KR convenience of the Court and counsel: NA KR Lyons v. Johnson (9th Cir. 1969) 415 F.2d 540 (Exhibit "A"); NO KH Serafino v. Hasbro, Inc. (Ast Cir. 1996) 82 F.3d 515 (Exhibit "B"); No nN Christenson v. Christenson (Minn. 1968) 281 Minn. 507, 162 N.W.2d 194 (Exhibit "C"); ao wR /Tf APPENDIX OF OUT-OF-STATE AUTHORITIES IN SUPPORT OF MOTION TO STAY ACTION -1- McKelvey y.Freeport Housing Authority (1961) 220 N.Y.S.2d 628 (Exhibit "D"). Dated: September 23, 2019 MICHEL & FACKLER NY A Professional yi oration WD Se Michael D. Michel, Esq. A David L. Crowe, Esq. Attorneys forDefendants MICHAEL WB ROBERTS CONSTRUCTION, INC., SHEEHAN CONSTRUCTION, INC. and YN 1950 ADDISON APARTMENTS JOINT VENTURE LLC fe oOo & KK NY WY PP me A ND Ow BH om Oo wm ODO DN KF§ KH NYO BY WY KN BP NH CA NP NO NN pO aoa NY APPENDIX OF OUT-OF-STATE AUTHORITIES IN SUPPORT OF MOTION TO STAY ACTION -2- EXHIBIT A Lyons v. Johnson, 415 F.2d540 (1969) 13 Fed.R.Serv.2d 774 Opinion 415 F.2d 540 United StatesCourt ofAppeals Ninth Circuit. JOHNSEN, Senior CircuitJudge. Jo Ann LYONS, Appellant, Two ofthesethree appealsare from dismissalsofcivilrights Vv. damage actionsunder 42 U.S.C. §§ 1983 and 1985 against Wilbur R, JOHNSON etal.,Appellees. different defendants.The third *541 appeal isfrom anearlier Jo Ann LYONS, Appellant, order inone ofthe suitsdenying appellant'srequestfor an v. injunction. F.J. DELARIOS etal.,Appellees. One of the suitswas against a Califomia deputy district Jo Ann LYONS, Appellant, attorney,some policeofficersand other persons.The other v. suit was against a magistrate of a municipal cowt and F. J. DELARIOS etal.,Appellees. an attorney appointed to representor assist appellantin some misdemeanor charges onwhich proceedings had been Nos. 22172, 22172-A, 22068. suspended fora time under § 1368 ofthe CaliforniaPenal | Code (‘a doubt * * * as to the sanityof the defendant’). Aug, 26, 1969, Rehearing Denied Oct. 14, 1969. From theimplicationsof thecomplaints, appellantwas after hospitalexamination apparentlydeemed nat tolack capacity Synopsis tostand trial. Both complaints sought damages forconspiracy Civilrights actionsfordamages. The United StatesDistrict and acts,allegedto have been engaged inagainstappellant, Court forthe Northern Districtof California,Burke and which were recognized by her as having been separatebut Zirpoli,JI.,dismissed theactionson motions ofdefendants apparently regardedashaving had similaraims— gettingher following plaintiffs refusal to submit to depositional put (shebelieved)intoa statemental institution. interrogationordiscovery in relation to her claims.Plaintiff appealed. The Court of Appeals, Johnsen, Senior Circuit Dismissal of the suitswas made because of appellant's Judge, held that where therewas no justification for a continued and unyieldingrefusal tosubmit herselfto any protectiveorder theactionswere properly dismissed,though depositionalinterrogation or discoverywhatsoever inrelation plaintiff's refusalto submit tointerrogationordiscovery was to herclaims.She ignoreda number of notices which had been based upon a claim ofprivilegeagainstself-incrimination. served upon her forthatpurpose. When the courtthereupon entered an orderdirectingher to appear upon another such Judgments affirmed; appeal from denial of injunction notice,she presentedherself at the depositionscene, but dismissed asmoot. refused toanswer any question except tostatehername. To allotherinquiriesmade of her,shemerely responded thatshe was invoking herprivilegeagainst self-incrimination under Attorneys and Law Firms the FifthAmendment. The interrogation had sought to elicit *540 Neri Ramos (argued), San Francisco, Cal., for information from her as toher version of the background, appellant. aspects and incidentson which she was predicating her claims. John B. Marchants (argued),of Sedgwick, Detert,Moran & Amold, San Francisco, Cal.,John H. Sears (argued),of When motions were thereafter filedin both suitsfororders Bronson, Bronson & McKinnon, SanFrancisco,Cal.,Ropers, requiring appellantto answer such questions or granting Majeski & Phelps,Redwood City,Cal.,Reisch & Sherman, dismissalof her suits,thecourt accorded a fulland patient So. San Francisco,Cal.,forappellees. hearing inthe matter. Judge Burke explainedto herthe right of a defendant who has been subjectedto a suitto require Before JOHNSEN, 'BLY and CARTER, CircuitJudges. the plaintiff to submit todepositional discovery inrelation to the claims asserted;advised her that ifshe wanted to I Harvey M. Johnsen,SeniorCircuit Judge oftheEighth use theshieldof self-incrimination againstany interrogation Circuit, sitting bydesignation. whatsoever regarding her claims,she would have toforego the rightto prosecutethe actions;and informed herthat if WESTLAW © 2019 Thomson Reuters. No claim to originalU.S. Government Works. 4 Lyons v. Johnson, 415 F.2d540 (1969) 13 Fed.R.Serv.2d 774 she was determined to adhere toher position,itwould be Her obtaining of thisshield,however, could not provide a necessary forhim to dismissthesuits, sword toher for achieving assertionof her claims against the defendants without having toconform to theprocesses Appellant remained adamant and declared: ‘So I willnot necessary toorderlyand equal forensicfunctioning.Clearly, waive, and I will not acquiesce and I will stand under the processof discoveryhas become increasinglyrecognized the FifthAmendment even ifmy case isdismissed. I will as oneof theprimary andessentialelementsinmaking federal merely carry itto a highercourt’.With the furtherspecific court businessflow and incontributingtothe accomplishing inquiriesby the courtas towhether she might be willingto of trialjusticeor settlementtermination of litigation. The recede from her position‘ifyou were to appear forfurther scalesof justice would hardlyremain equal intheserespects, deposition’,and whether herrefusalwas intended toapplyto if a party canasserta claimagainstanotherand then beable to both ofthe lawsuits,thesituationwas leftwith no room for block alldiscovery attemptsagainsthim by assertinga Fifth any uncertaintyor misunderstanding by appellant— and she Amendment privilegeto any interrogationwhatsoever upon makes no such contention here. his claim.Ifany prejudice istocome from such a situation, On theseabsolutes,theorderlyfunctioningof acourt andthe it must, as a matterof basic fairnessin the purposes and equal administrationof justiceby itcould callonly forthe concepts on which therightof litigation. rests, be tothe party actionwhich thetrial court took.No abuse of discretion within assertingtheclaim and notto theone who has been subjected the provisions of Rule 26(b),Fed.R.Civ.P., 28 U.S.C.A., to itsassertion. Itisthe formerwho has made the electionto could be saidtobe involved, The courtwas not dealingwith createan imbalance in thepans ofthe scales. the situationwhere there was shown to be any margin for a protectiveorder under Rule 30(b)or (d).No aspect was We would not have indulged intheextent ofthisexpression shown to exist ofunnecessary scope, improper motive or except fora desireto reachthrough to appellantinher self- unfairmanner asto theexercisingof thediscovery process. representationasto thecourse which she haschosen to take. She of coursehad therightto make thatchoice, butshe must now acceptthefactthatthe doorsof thelaw areclosed toany The naked question thereforesimply was whether a plaintiff attemptsby her toreassertheralleged claims. can refuse tosubmit to any discovery whatsoever upon his Related to what we have held, there may be noted 4 lawsuit,by asserting a FifthAmendment privilegeagainstany Moore's Federal Practice1295, § 26.22(5) and Independent interrogationof him, and thendemand thathe nevertheless Productions Corp. v.Loewe's Incorporated,22 F.R.D. 266, be permitted tocontinue with thelegalpursuitof his claim, 279 (S.D.N.Y.1958). Our holdingrequires affirmanceto be no matter what prejudiceor possibleunequal protection made of the dismissalsof bothof appellant's actions. As tothe there might be involved tothe defendant from such a court appeal taken from thedenial ofan injunction,appellanthas acquiescence. failedtocarrythrough thenecessaryprosecutionof it by filing *542 It isa little difficulttovisualize how a possibility briefs,etc.More than this, however, it has alsonow become of self-incrimination could beinvolved in any mere relevant -moot from dismissalhaving been made of theactionof which interrogationofappellant asto thebackground, aspects and it wasan incidentora part.Itwillaccordinglybe dismissed. incidentsof herassertedclaims,unless she hadengaged ina matter ofperjury asto theallegationsofher complaints;but The judgments inNos. 22,172 and22,172-A areaffirmed,and thatquestionwas notone which the courtwas calledupon to theappeal inNo. 22,068 isdismissed. consider.If, however, appellantcouldproperly havehad a fear of thepossibility of exposure tosame collateral orunrelated incrimination,she has received fullprotectionagainst any All Citations such possibilityfrom the court'scomplete honoring of the scope ofthe privilegeassertedbyher. 415 F.2d 540,13 Fed.R.Serv.2d 774 End ofDocument © 2019Thomson Reuters. No claimtooriginal U.S.GovernmentWorks. WESTLAW © 2019 Thomson Reuters. No claim to originalU.S. Government Works. 2 EXHIBIT B Serafino v.Hasbro, Inc.,82 F.3d 515 (1996) 70 FairEmpl.Prac.Cas. (BNA) 917, 64 USLW 2700 Opinion 82 F.3d 515 United StatesCourt ofAppeals, COFFIN, Senior CircuitJudge. FirstCircuit. Plaintiff-appellant George Serafinobrought alawsuit against George J.SERAFINO and Anita Hasbro, Inc.(“Hasbro”) and itsCEO, George R. Ditomassi, M. Serafino, Plaintiffs, Appellants, Jr, claiming that they unlawfully terminated certain v. business arrangements and then his employment because HASBRO, INC., etal.,Defendants, Appellees. his daughter fileda discrimination action against them. During discovery, Serafino refused to answer questions No. 95-1991. pertainingto allegedimproprietiessurrounding thebusiness arrangements, invoking his Fifth Amendment privilege Heard Jan. 10,1996. againstself-incrimination. Upon determining thatSerafino's | silenceon thesemattersunfairlyhampered defendants’ability Decided April 23,1996. to mount a defense,the district court dismissed Serafino's claims withprejudice. Synopsis Former employees, who were fatherand daughter,brought In this appeal, we must determine whether dismissal action instatecourt against former employer alleging that constitutesan impermissible infringement on Serafino's former employer subjected daughter to sexual harassment constitutionalright against self-incrimination.After due and retaliated againstboth fatherand daughter fordaughter's consideration,we conclude thatthedistrict courtactedwithin filingof charges. Former employer removed action. The itspower and discretionindismissing Serafino'sclaims,and United StatesDistrict Court forthe District of Massachusetts, affirm. Michael A. Ponsor, J.,893 F.Supp. 104,held that father's invocationof privilegeagainstself-incrimination torefuseto answer questionsat hisdepositionwarranted dismissalof his claims.Father and daughterappealed. The Court ofAppeals, BACKGROUND! Coffin,Senior CircuitJudge, heldthat father's invocationof privilegeagainstself-incrimination warranteddismissalof his Sincethisappealisfrom anordergrantinga motionto claims, dismiss,we derivethefactsfromthe pleadings. PHC, Inc.v.Pioneer Healthcare,Inc., 75 F.3d 75, 77 (1st Affirmed. Cir.1996). From 1972 untilhisterminationinDecember 1994,Serafino worked asa mechanic and thengroup leaderforthe Milton *516 Appeal from theUnited StatesDistrictCourt forthe Bradley Company (“MiltonBradley”), a divisionof Hasbro Districtof Massachusetts; Hon. Michael A. Ponsor, U.S. since 1985,locatedinSpringfield,Massachusetts.In addition DistrictJudge. to his regular employment, Serafino had three unusual businessarrangements with MiltonBradley.In 1976,Serafino Attorneys and Law Firms createdHampden BatteryService,Inc.(‘Hampden Battery”), Morris M. Goldings with whom Ellen S. Shapiro,Boston, which servicedand reconditionedbatteriesused in Milton MA, was on briefforappellants. Bradley vehicles.Then, in 1984, he formed ABC Janitorial Services(“ABC”), which performed nightlycleaning service Arthur G. Telegenwith whom Amy B.G. Katz,Boston, MA, at Milton Bradley buildings.Finally,in 1985, he assumed Charles $. Cohen, and David G. Cohen, Springfield,MA, responsibilityfor supervising ground maintenance at the were on briefforappellees. company's facilities, for which he was guaranteed 20hours a week ofovertime. Before TORRUELLA, Chief Judge,COFFIN, Senior Circuit Judge, andCYR, CircuitJudge. Anita Serafino,2 George Serafino'sdaughter, alsoworked at Milton Bradley. In January 1992, she fileda complaint WESTLAW © 2019 Thomson Reuters. No claim to originalU.S. Government Works. 4 Serafino v.Hasbro, Inc., 82 F.3d 515 (1996) 70 FairEmpl.Prac.Cas. (BNA) 917, 64 USLW 2700 with theMassachusetts Commission Against Discrimination alleging thata co-worker had sexually harassed her.In Isn'tittruethat Mr. Peckham got financialbenefitfrom July 1993, both Serafinosfiled a complaint in Hampden your companies thatwas illegal? Superior Court against Hasbro and Ditomassi alleging sex discrimination and retaliation.In particular,George Serafino alleged thatDitomassi, as a retaliatorymeasure, George Serafino was discharged from Milton Bradley in instructedtwo high-ranking company employees, Joseph December 1994, Shortlythereafter,the Serafinosamended Gulluni and Arthur Peckham, to terminate the three their complaint to include this termination as a further extracurricular business ventures.The overtime arrangement act of retaliation. In response, defendants removed the was discontinued on January 1, 1993, the business case to federalcourt, on the ground that consideration relationshipwith Hampden Battery in April of 1993, and of the discharge would require the court to interpreta the relationshipwith ABC in mid-1994. Based on these collectivebargaining agreement, bringing Serafino'sclaim events,Serafinoadvanced threetheories of liability: violation within Section301 of theLabor Management RelationsAct, of Mass.Gen.L.Ann. ch. 15183, quantum meruit,and 29 U.S.C.§ 185. intentional interferencewith advantageous relationship. On March 31, 1995,4 defendants submitted a motion to 2 To avoid confusion,Anita Serafinowill always be dismiss Serafino'sclaims.They claimed thatby refusingto referred to byherfullname; GeorgeSerafino,attimes, respond totheirquestions,Serafinohad prevented them from willbereferred to onlyas“Serafino.” discovering important information about the very benefits thathe suedto recover. Defendants assertedthatthe questions 3 Chapter 151B protectspeople against unlawful surrounding thebenefitswere centraltothe case: discrimination. Wheelock College v. Massachusetts Comm'n AgainstDiscrimination, 371 Mass. 130,137, 355 N.E.2d 309 (1976).Serafinoaccused defendants A few daysearlier, Hasbro filed a civil RICO complaint of violating chapter 151B, § 4(4A),which makes it against Serafino, Gulluniand Peckham alleging a course unlawfulforany person“tocoerce,intimidate, threaten ofconductinvolvingkickbacks, overchargingandother or interfere with suchotherpersonforhaving aidedor ilegalactivity. encouragedanyotherpersonin the exercise or enjoyment If ...Serafino paid criminal bribes to Milton Bradley ofany suchrightgranted or protected bythischapter.” employees tomaintain his unusually favorable overtime *517 Serafinowas deposed inthe fall of 1994. Defendants arrangement, batterybusiness and cleaningservices,then pursued a line of questioning concerning improprieties he is in no position toclaim that defendants somehow surrounding Hampden Battery, ABC and the overtime wrongfully took these benefits away ...[or that] his benefits, focusing, inparticular, on how Serafino, Gulluni and terminationwas [not]proper. Peckham might have illegally benefittedfrom theseventures. Serafino, invoking his rightsunder the Fifth Amendment In rebuttal, Serafinodisputed therelevance ofthe questions, and Article 12 ofthe Massachusetts Declaration of Rights, suggestingthat defendantswere insteadattempting togarner refused toanswer most questions relatingtothese matters. information fortheirRICO complaint.On July28, 1995,the Such questions included: district courtdismissed all of Serafino's claims withprejudice Did you givemoney toother peopleasa conditionfordoing and remanded AnitaSerafino'sclaims tothestatecourt. business with MiltonBradley? [Did] Mr. Peckham ever get any financialbenefitfrom DISCUSSION ABC Cleaning Services? Serafino attacksthe district court'sdecision on two fronts: Why did [Mr.Gulluni] have you reporttohis officeevery first, he argues that,as a matter of law, the courtdid not day? have the power todismiss his claims;second, he contends that thecourt abused itsdiscretionin concluding thathis Do you haveany financialrelations with Mr, Peckham? constitutional interestwas outweighed by possibleprejudice todefendants. We address theseissuesinturn. Were you involvedin criminalactivity together? WESTLAW © 2019 Thomson Reuters. No claim tooriginalU.S. Government Works. 2 Serafino v.Hasbro, Inc.,82 F.3d 515 (1996} 70 FairEmpi.Prac.Cas. (BNA) 917, 64 USLW 2700 ensure thattheopposing partyisnot unduly disadvantaged. See Gutierrez-Rodriguezv.Cartagena, 882 F.2d553, 577 (ist A. The DistrictCourt'sPower toDismiss Cir.1989)(affirmingdistrict court's refusaltoallow defendant Serafino argues that the legitimateexerciseof one's Fifth totestifyattrial when he assertedFifthAmendment privilege Amendment privilege can neverjustifydismissal ofa civil during discovery).After balancingthe conflictinginterests, claim-a contentionnotwithout force.The Supreme Court has dismissalmay bethe onlyviable alternative. 5 statedthatthe FifthAmendment “guarantees ...therightof a person toremain silent unless he chooses to speak inthe unfetteredexerciseof hisown will,and tosufferno penalty Though dismissal has rarely been imposed oraffirmed, ..for such silence.” Spevackv. Klein,385 U.S. 511,514, 87 a number of courtshave acknowledged the court's power to dismiss even in the face of a party's S.Ct. 625,627, 17 L.Ed.2d 574 (1967) (quotingMalloy v. proper assertion of the privilege. See,eg., Wehling Hogan, 378 U.S. 1,8,84 S.Ct.1489, 1493-94, 12L-Ed.2d 653 v.Columbia BroadcastingSys.,608 F.2d 1084, 1087 (1964)) (emphasis added).The concept of“penalty” includes n, 6 (SthCir.1979);Lyons v.Johnson, 415 F.2d “the impositionof anysanction which makes assertionofthe $40, 542 (9thCir.1969);Mt. VernonSav. & Loan v. FifthAmendment privilege‘costly.’”fa.at 515, 87 S.Ct. at PartridgeAssecs., 679 F.Supp.522,529 (D.Md.1987), 628 (quotingGriffinv.California,380U.S. 609, 614,85 S.Ct. Stop & Shop Cos. v.Interstate Cigar Co., 110F.R.D. 1229, 1232-33, 14L.Ed.2d 106(1965)). 105, 108 (D.Mass.1986);Jones v. B.C. Christopher & Co, 466 FSupp. 213,227 (D.Kan.1979),Penn Unconstitutionalpenaltiesforthe invocationofthe privilege CommunicationsSpecialties, Inc.v.Hess,65F.R.D.510, have included disbarmentof alawyer, seeSpevack, 385 U.S. $12(E.D.Pa.1975);Wansongv.Wansong,395 Mass,154, at516, 87S.Ct. at 629; forfeiture of jobsby publicemployees, 157-58,478N.E.2d 1270(1985). see *518 Gardner v.Broderick, 392US. 273, 278,88 S.Ct. We reiteratethatthebalance must be weighed tosafeguard 1913, ~--,20 L-Ed.2d 1082 (1968) and Uniformed Sanitation the Fifth Amendment privilege:the burden on the party Men Ass'n v. Commissioner of Sanitation,392 U.S. 280, assertingitshould be no more thanis necessaryto prevent 284-85, 88 S.Ct.1917,1919-20, 20 L.Ed.2d 1089 (1968);and unfairand unnecessary prejudicetotheother side. See S.E.C. imposition of substantial economic sanctions, see Lefkowitzv. v. Graystone Nash, Inc.,25 F.3d 187, 192 (3d Cir.1994); Turley,414 U.S. 70,82-83, 94 S.Ct.316,324-25, 38 L.Ed.2d Wehling, 608 F.2d at 1088. As correctlydelineatedby the 274 (1973).While automaticdismissalof acivilactioncould district court in thiscase,“the Fifth Amendment privilege fallneatly within this category,see Wehling v.Columbia should beupheld unless defendantshave substantialneedfor Broadcasting Sys., 608 F.2d 1084, 1087-88 (Sth Cir.1979), particularinformationand thereisno other lessburdensome we cannot agree thatdismissal isalways impermissible.See effectivemeans of obtainingit.”See Black Panther Party v. id.at 1087 n. 6 (“[TJhedistrict court isnot precluded from Smith, 661 F.2d 1243, 1272 (D.C.Cir.1981), vacated mem., using dismissal as a remedy to prevent unfairness tothe 458 U.S. 1118, 102 $.Ct. 3505, 73 L.Ed.2d 1381 (1982) defendant.”). (enunciatingsimilarbalancingapproach). Having determined thatthe districtcourt could,within itsdiscretion,dismiss The Supreme Court has indicatedthatthe assertionofthe thiscase, and thatitutilizedthe proper balancing test, we privile