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SUPERIOR COURT OF CALIFORNIA, COUNTY OF ALAMEDA
Rene C. Davidson Courthouse, Department 22
JUDICIAL OFFICER: HONORABLE JEFFREY BRAND
Courtroom Clerk: Maya Walker CSR: None
RG21087478 February 15, 2022
2:30 PM
Garcia VS Mistry
MINUTES
APPEARANCES:
No Appearances
NATURE OF PROCEEDINGS: Hearing on Motion for Stay of Proceedings
The Motion for Stay of Proceedings filed by Bharat Mistry, Shilpaben Mistry, Shivaa LLC,
Shree Shakti LLC on 01/05/2022 is Denied.
Defendants’ Motion to Stay is DENIED in part. Plaintiff’s fourteenth cause of action under
Labor Code, § 3700 is STAYED.
LEGAL FRAMEWORK
The power to stay proceedings is part of a court’s inherent power to manage its docket. (OTO,
LLC v. Kho (2019) 8 Cal.5th 111, 141; see also Code Civ. Proc., § 187.)
The relevant criteria for courts to consider vary with the reason for the stay and the scope of the
stay sought. (Investors Equity Life Holding Co. v. Schmidt (2011) 195 Cal.App.4th 1519, 1534
[stay based on forum non conveniens]; Morris v. AGFA Corp. (2006) 144 Cal.App.4th 1452,
1463-1468 [stay based on forum non conveniens]; Avant! Corp. v. Superior Court (2000) 79
Cal.App.4th 876, 885 [stay of civil proceedings pending disposition of a related criminal case];
Farmers Ins. Exchange v. Superior Court (1992) 2 Cal. 4th 377, 390-391 [stay based on doctrine
of primary jurisdiction]; Caiafa Prof. Law Corp. v. State Farm Fire & Cas. Co. (1993) 15 Cal.
App. 4th 800, 804 [stay based on another state action covering the same subject matter].)
DISCUSSION
1. Stay based on Criminal Investigation
In deciding whether to stay an action pending the outcome of a criminal matter, courts consider:
“(1) the interest of the plaintiffs in proceeding expeditiously with this 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
SUPERIOR COURT OF CALIFORNIA, COUNTY OF ALAMEDA
persons not parties to the civil litigation; and (5) the interest of the public in the pending civil and
criminal litigation.” (Alpha Media Resort Investment Cases (2019) 39 Cal.App.5th 1121, 1132,
quoting Keating v. Office of Thrift Supervision (9th Cir. 1995) 45 F.3d 322, 324-25.)
Here, considering the above factors, the court does not find that a stay of the entire case is
warranted. First, there is no criminal proceeding, nor would a criminal proceeding, alone, require
a stay. (Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 885 [“[t]he Constitution does
not ordinarily require a stay of civil proceedings pending the outcome of criminal
proceedings”].) Plaintiff filed a police report on or about November 13, 2020 (Mistry Decl., ¶ 7)
and no charges have been filed.
Defendants argue that a stay is required to prevent prejudice to Defendant Bharat Mistry for
asserting his Fifth Amendment rights. To the extent that one of the four defendants may have a
right against self-incrimination, “the question of whether a civil proceeding should be stayed
pending the outcome of a parallel criminal proceeding” generally does not hinge “on the
constitutional issue of self-incrimination.” (Avant! Corp., supra, at p. 885.)
Defendants cite Pacers, Inc. v. Superior Court (1984) 162 Cal.App.3d 686 in support of a stay;
however, Pacers does not require a different conclusion. Rather, as the court noted in Fuller v.
Superior Court (2001) 87 Cal.App.4th 299, the proper procedure is to allow the case to proceed
in the natural course. Defendant may invoke his right against self-incrimination with respect to
specific discovery requests or deposition questions, and any disputes may be presented to the
court with a clear record upon which to base a ruling on whether the Fifth Amendment is
implicated. (Id., at pp. 309-310.)
2. Stay based on Concurrent Jurisdiction
“The Workers’ Compensation Act invests the Workers’ Compensation Appeals Board
(“WCAB”) with exclusive jurisdiction over disputes regarding an employee’s right to
compensation or an employer’s liability.” (Mitchell v. Scott Wetzel Services, Inc. (1991) 227
Cal.App.3d 1474, 1478, citing Lab. Code, § 5300, subds. (a) & (b).) “The Supreme Court has
made clear that when a civil action and a workers’ compensation proceeding are concurrently
pending, ‘the tribunal first assuming jurisdiction’ should determine exclusive jurisdiction.”
(Hollingsworth v. Superior Court (2019) 37 Cal.App.5th 927, 929, quoting Scott v. Industrial
Acc. Commission (1956) 46 Cal.2d 76, 81.) As a general rule, claims for personal injuries arising
out of and in the course of employment are limited to recovery under the workers’ compensation
system. (Id.; see also Operating Engineers Local 3 v. Johnson (2003) 110 Cal.App.4th 180, 185.)
Here, Plaintiff concedes to staying the fourteenth cause of action under Labor Code, § 3700.
(Opposition, at pp. 5-6.) Plaintiff’s FEHA claims (COA 1-7) are not for personal injury, nor are
Plaintiff’s claims for wrongful termination (COA 12 and 13). (City of Moorpark v. Superior
Court (1998) 18 Cal.4th 1143, 1155.) Plaintiff’s causes of action under the Labor Code (COA
15-21) are statutory violations, not personal injury claims, and so are Plaintiff’s claims for unfair
immigration related practices and unfair business practices (COA 22 and 23).
Plaintiff’s claims for assault and battery (COA 8 and 9) are against her employer, Defendant
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SUPERIOR COURT OF CALIFORNIA, COUNTY OF ALAMEDA
Bharat Mistry, and therefore exempt from workers compensation jurisdiction. (Labor Code, §
3602, subd. (b)(1); see also Operating Engineers Local 3, supra, at p. 186, fn. 2 [finding “injuries
caused by willful physical assault by the employer” outside the exclusive jurisdiction of the
WCAB].)
Plaintiff’s claims for emotional distress are a closer call. (See Cole v. Fair Oaks Fire Protection
Dist. (1987) 43 Cal.3d 148 [finding claims for intentional infliction of emotional distress may be
compensable under workers’ compensation law].) However, Defendants cite no relevant case
law on the matter, so for purposes of this motion, the court determines that Plaintiff’s claim for
IIED and NIED (COA 10 and 11) are outside the scope and course of Plaintiff’s employment.
(Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 345 [holding “that a claim for emotional
distress arising out of sexual harassment is not preempted by workers’ compensation law”]
disagreed with on other grounds in Richard v. CH2m Hill, Inc. (2001) 26 Cal.4th 798.)
Next Defendants argues that a stay is warranted to prevent conflicting rulings, citing Jones v.
Brown (1970) 13 Cal.App.3d 513. The court in Jones held that “the determination by the Board
that there was workmen’s compensation coverage is res judicata on this issue and is binding on
the superior court.” (Id., at p. 521.) Similarly, Dakins held that the WCAB’s decision whether a
plaintiff’s injuries arose out of and in the course of employment were identical to, and therefore
had preclusive effect upon, plaintiff’s petition for writ of mandate seeking to compel the WCAB
to issue a service-related disability pensions. (Dakins v. Board of Pension Commissioners (1982)
134 Cal.App.3d 374.)
As noted above, Plaintiff’s claims do not fall within the WCAB’s jurisdiction, thus there is no
risk of conflicting rulings. Further, in denying Defendants’ motion, the court need not decide
whether a WCAB holding would lead to conflicting rulings or have res judicata effect. Nor could
this court make such a determination in the abstract. (Dakins, supra, at p. 382 [“In determining
the validity of a plea of res judicata three questions are pertinent: Was the issue decided in the
prior adjudication identical with the one presented in the action in question? Was there a final
judgment on the merits?”].) On the record before the court, the WCAB has not issued any
decision. Defendants may bring the appropriate motion if and when the WCAB issues a decision
that Defendants believe has preclusive effect on the present case.
The Court orders counsel to obtain a copy of this order from the eCourt portal.
By:
Minute Order Page 3 of 4
SUPERIOR COURT OF CALIFORNIA, COUNTY OF ALAMEDA
Minutes of: 02/15/2022
Entered on: 02/15/2022
Minute Order Page 4 of 4
Preview
SUPERIOR COURT OF CALIFORNIA, COUNTY OF ALAMEDA Rene C. Davidson Courthouse, Department 22 JUDICIAL OFFICER: HONORABLE JEFFREY BRAND Courtroom Clerk: Maya Walker CSR: None RG21087478 February 15, 2022 2:30 PM Garcia VS Mistry MINUTES APPEARANCES: No Appearances NATURE OF PROCEEDINGS: Hearing on Motion for Stay of Proceedings The Motion for Stay of Proceedings filed by Bharat Mistry, Shilpaben Mistry, Shivaa LLC, Shree Shakti LLC on 01/05/2022 is Denied. Defendants’ Motion to Stay is DENIED in part. Plaintiff’s fourteenth cause of action under Labor Code, § 3700 is STAYED. LEGAL FRAMEWORK The power to stay proceedings is part of a court’s inherent power to manage its docket. (OTO, LLC v. Kho (2019) 8 Cal.5th 111, 141; see also Code Civ. Proc., § 187.) The relevant criteria for courts to consider vary with the reason for the stay and the scope of the stay sought. (Investors Equity Life Holding Co. v. Schmidt (2011) 195 Cal.App.4th 1519, 1534 [stay based on forum non conveniens]; Morris v. AGFA Corp. (2006) 144 Cal.App.4th 1452, 1463-1468 [stay based on forum non conveniens]; Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 885 [stay of civil proceedings pending disposition of a related criminal case]; Farmers Ins. Exchange v. Superior Court (1992) 2 Cal. 4th 377, 390-391 [stay based on doctrine of primary jurisdiction]; Caiafa Prof. Law Corp. v. State Farm Fire & Cas. Co. (1993) 15 Cal. App. 4th 800, 804 [stay based on another state action covering the same subject matter].) DISCUSSION 1. Stay based on Criminal Investigation In deciding whether to stay an action pending the outcome of a criminal matter, courts consider: “(1) the interest of the plaintiffs in proceeding expeditiously with this 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 SUPERIOR COURT OF CALIFORNIA, COUNTY OF ALAMEDA persons not parties to the civil litigation; and (5) the interest of the public in the pending civil and criminal litigation.” (Alpha Media Resort Investment Cases (2019) 39 Cal.App.5th 1121, 1132, quoting Keating v. Office of Thrift Supervision (9th Cir. 1995) 45 F.3d 322, 324-25.) Here, considering the above factors, the court does not find that a stay of the entire case is warranted. First, there is no criminal proceeding, nor would a criminal proceeding, alone, require a stay. (Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 885 [“[t]he Constitution does not ordinarily require a stay of civil proceedings pending the outcome of criminal proceedings”].) Plaintiff filed a police report on or about November 13, 2020 (Mistry Decl., ¶ 7) and no charges have been filed. Defendants argue that a stay is required to prevent prejudice to Defendant Bharat Mistry for asserting his Fifth Amendment rights. To the extent that one of the four defendants may have a right against self-incrimination, “the question of whether a civil proceeding should be stayed pending the outcome of a parallel criminal proceeding” generally does not hinge “on the constitutional issue of self-incrimination.” (Avant! Corp., supra, at p. 885.) Defendants cite Pacers, Inc. v. Superior Court (1984) 162 Cal.App.3d 686 in support of a stay; however, Pacers does not require a different conclusion. Rather, as the court noted in Fuller v. Superior Court (2001) 87 Cal.App.4th 299, the proper procedure is to allow the case to proceed in the natural course. Defendant may invoke his right against self-incrimination with respect to specific discovery requests or deposition questions, and any disputes may be presented to the court with a clear record upon which to base a ruling on whether the Fifth Amendment is implicated. (Id., at pp. 309-310.) 2. Stay based on Concurrent Jurisdiction “The Workers’ Compensation Act invests the Workers’ Compensation Appeals Board (“WCAB”) with exclusive jurisdiction over disputes regarding an employee’s right to compensation or an employer’s liability.” (Mitchell v. Scott Wetzel Services, Inc. (1991) 227 Cal.App.3d 1474, 1478, citing Lab. Code, § 5300, subds. (a) & (b).) “The Supreme Court has made clear that when a civil action and a workers’ compensation proceeding are concurrently pending, ‘the tribunal first assuming jurisdiction’ should determine exclusive jurisdiction.” (Hollingsworth v. Superior Court (2019) 37 Cal.App.5th 927, 929, quoting Scott v. Industrial Acc. Commission (1956) 46 Cal.2d 76, 81.) As a general rule, claims for personal injuries arising out of and in the course of employment are limited to recovery under the workers’ compensation system. (Id.; see also Operating Engineers Local 3 v. Johnson (2003) 110 Cal.App.4th 180, 185.) Here, Plaintiff concedes to staying the fourteenth cause of action under Labor Code, § 3700. (Opposition, at pp. 5-6.) Plaintiff’s FEHA claims (COA 1-7) are not for personal injury, nor are Plaintiff’s claims for wrongful termination (COA 12 and 13). (City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1155.) Plaintiff’s causes of action under the Labor Code (COA 15-21) are statutory violations, not personal injury claims, and so are Plaintiff’s claims for unfair immigration related practices and unfair business practices (COA 22 and 23). Plaintiff’s claims for assault and battery (COA 8 and 9) are against her employer, Defendant Minute Order Page 2 of 4 SUPERIOR COURT OF CALIFORNIA, COUNTY OF ALAMEDA Bharat Mistry, and therefore exempt from workers compensation jurisdiction. (Labor Code, § 3602, subd. (b)(1); see also Operating Engineers Local 3, supra, at p. 186, fn. 2 [finding “injuries caused by willful physical assault by the employer” outside the exclusive jurisdiction of the WCAB].) Plaintiff’s claims for emotional distress are a closer call. (See Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148 [finding claims for intentional infliction of emotional distress may be compensable under workers’ compensation law].) However, Defendants cite no relevant case law on the matter, so for purposes of this motion, the court determines that Plaintiff’s claim for IIED and NIED (COA 10 and 11) are outside the scope and course of Plaintiff’s employment. (Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 345 [holding “that a claim for emotional distress arising out of sexual harassment is not preempted by workers’ compensation law”] disagreed with on other grounds in Richard v. CH2m Hill, Inc. (2001) 26 Cal.4th 798.) Next Defendants argues that a stay is warranted to prevent conflicting rulings, citing Jones v. Brown (1970) 13 Cal.App.3d 513. The court in Jones held that “the determination by the Board that there was workmen’s compensation coverage is res judicata on this issue and is binding on the superior court.” (Id., at p. 521.) Similarly, Dakins held that the WCAB’s decision whether a plaintiff’s injuries arose out of and in the course of employment were identical to, and therefore had preclusive effect upon, plaintiff’s petition for writ of mandate seeking to compel the WCAB to issue a service-related disability pensions. (Dakins v. Board of Pension Commissioners (1982) 134 Cal.App.3d 374.) As noted above, Plaintiff’s claims do not fall within the WCAB’s jurisdiction, thus there is no risk of conflicting rulings. Further, in denying Defendants’ motion, the court need not decide whether a WCAB holding would lead to conflicting rulings or have res judicata effect. Nor could this court make such a determination in the abstract. (Dakins, supra, at p. 382 [“In determining the validity of a plea of res judicata three questions are pertinent: Was the issue decided in the prior adjudication identical with the one presented in the action in question? Was there a final judgment on the merits?”].) On the record before the court, the WCAB has not issued any decision. Defendants may bring the appropriate motion if and when the WCAB issues a decision that Defendants believe has preclusive effect on the present case. The Court orders counsel to obtain a copy of this order from the eCourt portal. By: Minute Order Page 3 of 4 SUPERIOR COURT OF CALIFORNIA, COUNTY OF ALAMEDA Minutes of: 02/15/2022 Entered on: 02/15/2022 Minute Order Page 4 of 4