Filed 7/22/24 Wirija v. Superior Court CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

JOSEPH WIRIJA et al.,

Petitioners,

v.

THE SUPERIOR COURT OF LOS 

ANGELES COUNTY,

Respondent.

CITY OF PASADENA et al.,

 Real Parties in Interest.

 B332647

 (Los Angeles County

 Super. Ct. No. 22STCV28168)

PETITION FOR WRIT OF MANDATE from an order of the 

Superior Court of Los Angeles County, Lynne M. Hobbs, Judge.

Petition granted.
2

Hanger, Steinberg, Shapiro & Ash, Jody Steinberg, 

Nicholas S. Walls, and Roxanne F. Swedelson for Petitioners.

No appearance for Respondent.

Michele Beal Bagneris, City Attorney, Danielle St. Claire 

and Sophia M. Retchless, Deputy City Attorneys, for Real Party 

in Interest City of Pasadena.

Ford, Walker, Haggerty & Behar, William O. Woodland 

and Mark P. LaScola for Real Party in Interest Austin Nok Lum 

Wong.

________________________

INTRODUCTION

In November 2021, a car struck and killed Yangyang Liu 

while she was crossing South Allen Avenue in Pasadena. In 

August 2022, Liu’s husband, Joseph Wirija, and her parents, 

Ansheng Liu and Lele Chen (collectively, Petitioners), brought a 

wrongful death and survival action against the driver, Austin 

Nok Lum Wong, and the City of Pasadena (the City).

Wong was criminally charged for Liu’s death in January 

2023 and pleaded no contest to vehicular manslaughter in June 

2023. The same week as Wong’s plea, Petitioners moved to 

depose Wong in their civil case. Wong objected on Fifth 

Amendment grounds and sought an order from the superior court 

staying discovery, arguing that he retained his privilege against 

self-incrimination until his sentencing. After a hearing, the 

superior court stayed all proceedings against all parties, 

including the City, until Wong’s sentencing on July 12, 2024. The 

superior court subsequently extended this stay to October 8, 

2024.
3

Petitioners filed a petition for writ of mandate in this court

seeking an order lifting the stay. We now grant the petition and 

direct the superior court to lift the stay forthwith. 

FACTUAL AND PROCEDURAL BACKGROUND

A. The Complaint

Petitioners sued Wong and the City on August 30, 2022.1 

The operative first amended complaint alleged Wong negligently 

caused Liu’s death by “driving in great excess of the speed limit” 

and acting with “extreme recklessness.” Petitioners further 

alleged the City created a dangerous condition on public property

through faulty design and maintenance of the intersection where 

Liu died. The complaint included a survival action count against 

Wong and the City for injuries suffered by Liu prior to her death.

B. Criminal Proceedings Against Wong

In connection with Liu’s death, Wong was charged with 

vehicular manslaughter with gross negligence (Pen. Code, § 192, 

subd. (c)(1)) on January 24, 2023. Wong pleaded no contest to 

this charge on June 22, 2023. Wong’s plea agreement stipulated

he would surrender to custody on July 13, 2023 and, after serving 

364 days in county jail, he would be sentenced on July 12, 2024 to 

“2 years felony formal probation, execution of sentence suspended 

for the mid-term of 04 years.” The minute order reflects that, as 

part of his plea, Liu expressly waived his rights against self1 The initial complaint also named the City of San Marino as 

a defendant, but Petitioners voluntarily dismissed this defendant 

without prejudice in May 2023.
4

incrimination: “Defendant advised of and personally and 

explicitly waives the following rights: [¶] trial by court and trial 

by jury; [¶] confrontation and cross-examination of witnesses; 

[¶] subpoena of witnesses into court to testify in your defense; 

[¶] against self-incrimination.”2

C. Wong’s Motion To Stay Discovery

The same day Wong entered his plea, Petitioners notified 

Wong they intended to depose him on July 6, 2023. Wong

objected to the deposition and, on July 3, 2023, he filed a motion 

to stay discovery against him on Fifth Amendment grounds. 

Wong attached a letter from his criminal defense attorney, 

stating: 

“1. Mr. Wong’s criminal case is different than most 

criminal cases where the defendant is either 

convicted by a jury or pleads guilty AND is 

sentenced at the same time or shortly 

thereafter. 

“2. In the Wong case an informal agreement was 

reached with the prosecutor with the consent of 

the judge. The deal is: Mr. Wong pled no 

contest to a violation of Penal Code 

Section 192c(1)—Vehicular Manslaughter with 

gross negligence. As part of the settlement 

Mr. Wong will surrender to the court on 

2 The record before us does not include the transcript of 

Wong’s plea colloquy.
5

July 13th to serve 364 days in the Los Angeles 

County Jail. He was not sentenced. In fact, his 

sentence was continued to July 12, 2024. . . . 

There are many issues involved concerning 

what Mr. Wong must do or cannot do which 

could cause the DA and the court to withdraw 

the informal settlement agreement.”

Petitioners opposed Wong’s motion. They argued Wong had 

“explicitly waived his right against self-incrimination” when he 

pleaded nolo contendere. The record before us does not reflect 

that the City filed a joinder or any response to Wong’s motion 

asking the superior court to stay discovery as to it. 

On August 17, 2023, the superior court issued a tentative 

ruling (which it later adopted as its final ruling with the 

expansion noted below) granting a stay of discovery as to Wong. 

The court stated: 

“In determining that a stay is appropriate, the Court 

weighs the factors set forth in Avant! [Corp. v. 

Superior Court (2000) 79 Cal.App.4th 876] and 

Keating [v. Office of Thrift Supervision (9th Cir.

1995) 45 F.3d 322]. The evidence shows that this 

matter involves the same collision as the criminal 

matter. Defendant has not yet been sentenced in 

accordance with his plea of no contest to the charge 

against him for felony vehicular manslaughter. The 

criminal matter is still pending, however Defendant 

has provided a date as to when the criminal matter 

will be resolved: July 12, 2024, Defendant’s 
6

sentencing date. With a concrete end in sight to 

Defendant’s criminal proceedings, the Court finds it 

appropriate to institute a stay of discovery in the 

interim, as to information which would tend to 

implicate Defendant’s liability for the underlying 

motor vehicle vs. pedestrian collision. All other basic 

discovery shall be allowed.”

After a hearing on the motion on August 21, at which the 

parties all appeared, the court adopted its tentative ruling “with 

the following modification[]”: “The Court hereby stays the case in 

its entirety.” That is, the superior court stayed all proceedings, 

including discovery as to both Wong and the City. The court 

vacated and advanced all existing hearings and conferences to 

July 15, 2024, including several pending motions.

On October 19, 2023, Petitioners filed a petition for writ of 

mandate challenging the superior court’s order staying all 

discovery in the case. After requesting and reviewing

preliminary oppositions from Wong and the City, this court 

issued an order to show cause.

On July 12, 2024, Wong was sentenced and ordered 

released from detention per the terms of his plea agreement. On 

July 15, 2024, petitioners asked the superior court to lift the stay

because “the defendant in the criminal matter has been 

sentenced and released,” but “[c]ounsel for defendant 

represent[ed] to the Court, the stay is not to be lifted due to the 

Court of Appeal’s jurisdiction over the matter.” Although Wong 

had already been sentenced, the superior court on its own motion 
7

declined to lift the stay and continued the matter to October 8, 

2024.3

DISCUSSION

Petitioners argue the superior court erred by staying the 

case as to Wong and the City. Because Wong has now been 

sentenced and the justification for the superior court’s order 

staying proceedings has now dissipated, we grant the petition 

and direct the superior court to lift the stay forthwith. 

A. Applicable Law and Standard of Review

A party to a civil case who is also exposed to criminal 

liability may “invoke[] his privilege against self-incrimination 

during discovery in civil litigation.” (Fuller v. Superior Court

(2001) 87 Cal.App.4th 299, 304-305 (Fuller); see U.S. Const. 

Amend. 5 [“No person . . . shall be compelled in any criminal case 

to be a witness against himself”]; Cal. Evid. Code, § 940 [“To the 

extent that such privilege exists under the Constitution of the 

United States or the State of California, a person has a privilege 

to refuse to disclose any matter that may tend to incriminate 

him.”].) Such a party may request a stay of the civil proceedings 

pending disposition of his criminal case or expiration of the 

applicable statute of limitations. (See Bains v. Moores (2009) 

172 Cal.App.4th 445, 482 (Bains); Fuller, at pp. 302-304.) 

3 On our own motion, we take judicial notice of the July 12, 

2024 order in People v. Wong, case number GA111570-01, and of 

the superior court’s July 15, 2024 order in the underlying civil 

case. (See Evid. Code, §§ 452, subds. (c)-(d), 459.)
8

“[W]hen both civil and criminal proceedings arise out of the same 

or related transactions, an objecting party is generally entitled to 

a stay of discovery in the civil action until disposition of the 

criminal matter.” (Pacers, Inc. v. Superior Court (1984) 

162 Cal.App.3d 686, 690 (Pacers).) 

Although the right against self-incrimination is 

constitutional, “‘[t]he Constitution does not require a stay of civil 

proceedings pending the outcome of criminal proceedings.’” 

(Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 886

(Avant); accord, People v. Coleman (1975) 13 Cal.3d 867, 885

(Coleman).) Rather, the superior court “‘“may decide in its 

discretion to stay civil proceedings”’” (Avant, at p. 885), “in light 

of the particular circumstances and competing interests 

involved.” (People ex rel. Harris v. Rizzo (2013) 214 Cal.App.4th 

921, 952 (Harris); accord, Avant, at pp. 881-882; Coleman, at 

p. 885.) According to Avant, the court “should consider the extent 

to which Fifth Amendment rights are implicated. In addition, 

factors to be considered include: (1) the interest of the party 

opposing the stay in proceeding expeditiously with the action, 

and the potential prejudice to the party opposing the stay of a 

delay; (2) the burden which any particular aspect of the 

proceedings may impose on the party seeking the stay; (3) the 

convenience to the court in management of its cases and the 

efficient use of judicial resources; (4) the interests of persons not 

parties to the civil litigation; and (5) the interest of the public in 

the pending cases.” (Harris, at p. 952; accord, Alpha Media 

Resort Investment Cases (2019) 39 Cal.App.5th 1121, 1132 (Alpha 

Media); Avant, at p. 885.)

We review for abuse of discretion the superior court’s 

decision to stay civil proceedings pending disposition of a related
9

criminal case. (See Alpha Media, supra, 39 Cal.App.5th at 

p. 1131; Avant, supra, 79 Cal.App.4th at pp. 881-882.) “Under 

this standard, a trial court’s ruling ‘will be sustained on review 

unless it falls outside the bounds of reason.’ [Citation.] We could 

therefore disagree with the trial court’s conclusion, but if the trial 

court’s conclusion was a reasonable exercise of its discretion, we 

are not free to substitute our discretion for that of the trial court.” 

(Avant, at pp. 881-882.)

B. The Superior Court Did Not Abuse Its Discretion by Staying 

Proceedings Until Wong’s Sentencing

1. Wong’s Fifth Amendment Privilege Continued 

Through Sentencing

Petitioners concede Wong’s criminal case and their civil 

suit against him “arise out of the same or related transactions”: 

the collision that killed Yangyang Liu. (See Pacers, supra, 

162 Cal.App.3d at p. 690.) But they argue the superior court

abused its discretion by entering a stay against Wong because the 

court improperly assessed “the extent to which [Wong’s] Fifth 

Amendment rights [were] implicated in the civil proceedings.” 

(See Avant, supra, 79 Cal.App.4th at pp. 885-886.) Petitioners 

assert that “Wong waived his Fifth Amendment privileges 

against self-incrimination when he entered a plea of nolo 

contendere” and “merely postponed sentencing in order to keep 

the jurisdiction of his custody within the criminal court.” 

Petitioners’ argument is unpersuasive. 

As a threshold matter, the Petition did not include a 

transcript of the hearing because there was no court reporter 

present. Nor did Petitioners include a statement “summarizing 

the proceedings, including the parties’ arguments and any 
10

statement by the court supporting its ruling.”

4 (Cal. Rules of 

Court, rule 8.486(b)(3)(A).) “If the petition does not include the 

required record or explanations . . . the court may summarily 

deny” the petition. (Rule 8.486(b)(4); accord, Humane Society of 

U.S. v. Superior Court (2013) 214 Cal.App.4th 1233, 1253.) In 

any event, “‘A judgment or order of the lower court is presumed 

correct. All intendments and presumptions are indulged to 

support it on matters as to which the record is silent, and error 

must be affirmatively shown. This is not only a general principle 

of appellate practice but an ingredient of the constitutional 

doctrine of reversible error.’” (Denham v. Superior Court (1970) 

2 Cal.3d 557, 564-566 [inferring facts to support challenged 

ruling and declining writ relief where hearing was not 

transcribed]; see Fuss v. Superior Court (1991) 228 Cal.App.3d 

556, 559.) 

The superior court did not abuse its discretion by staying

discovery against Wong. First, although Wong had pleaded no 

4 Petitioners included a one paragraph statement in their 

attorney’s declaration attesting that, “During argument by 

counsel, the Court expressed its surprise that Defendant Wong 

had knowingly, understandingly, and explicitly waived his Fifth 

Amendment privilege against self-incrimination as to the 

circumstances bringing about the civil action and parallel

criminal action. Nonetheless, the Court granted Defendant 

Wong’s Motion to Stay Discovery and/or for Protective Order and 

stayed all proceedings. Following the Court’s ruling, counsel for 

Real Party in Interest and Defendant CITY OF PASADENA 

expressed that had the Court limited the stay to discovery 

directed at Defendant Wong, they would have requested the stay 

be extended to their client, however, the stay of all proceedings 

satisfied that request.”
11

contest to the criminal charge when the court imposed the stay of 

discovery, the Petitioners have not demonstrated the superior 

court abused its discretion by implicitly finding that the civil 

proceeding implicated Wong’s Fifth Amendment rights. Even 

after entering his plea, under clearly established law, Wong

retained his Fifth Amendment privilege with respect to his 

forthcoming sentencing. (See Mitchell v. United States (1999)

526 U.S. 314, 322-327 (Mitchell) [Fifth Amendment privilege 

extends to sentencing even after a defendant has entered a guilty 

plea]; People v. Fonseca (1995) 36 Cal.App.4th 631, 635 [“[I]t is 

clear in California that one retains the [Fifth Amendment] 

privilege at least until he has been sentenced.”].) 

As Wong contends, the criminal court or the prosecution 

could potentially withdraw the plea agreement on the basis of 

any of Wong’s discovery responses in the civil case, and they 

could also use such responses against him at his forthcoming 

sentencing. As observed in Mitchell, “[w]here the sentence has 

not yet been imposed a defendant may have a legitimate fear of 

adverse consequences from further testimony. . . . [T]he 

acceptance of a guilty plea does not eliminate the possibility of 

further incrimination.” (Mitchell, supra, 526 U.S. at p. 326.) 

Further, allowing “prosecutors to monitor the civil proceedings 

hoping to obtain incriminating testimony . . . through civil 

discovery would not only undermine the Fifth Amendment 

privilege but would also violate concepts of fundamental 

fairness.” (Pacers, supra, 162 Cal.App.3d at p. 690.)

That Wong waived his right against self-incrimination at 

his plea hearing does not change our analysis. As the United 

States Supreme Court has explained, when a court takes a 

waiver of the defendant’s rights at a plea colloquy, the purpose of 
12

the waiver “is to inform the defendant of what she loses by 

forgoing the trial, not to elicit a waiver of the privilege for 

proceedings still to follow. A waiver of a right to trial with its 

attendant privileges is not a waiver of the privileges which exist 

beyond the confines of the trial.” (Mitchell, supra, 526 U.S. at 

p. 324.)

2. Other Avant Factors

Petitioners further argue the superior court abused its 

discretion by granting Wong a stay of discovery because it “failed

to give any weight to the Petitioners’ interest or the prejudice 

imposed by the delay.” Petitioners argue they bear a “significant 

burden . . . if forced to litigate following the potential 

disappearance of key witnesses and evidence” and assert “the 

convenience of the court and the efficient use of judicial 

resources” are better served “by moving forward with litigation.”

As stated, because the record before us does not include a 

reporter’s transcript of the hearing or a statement summarizing 

the court’s statements supporting the ruling, Petitioners have not 

demonstrated the superior court erred in granting Wong a stay of 

discovery or that it failed to give due consideration to the Avant 

factors. The superior court did not abuse its discretion in 

considering the other interests relevant to the stay of discovery.

After briefing and argument from the parties, the court’s ruling

stated that it “weigh[ed] the factors set forth in Avant” and 

decided to stay the case until the “concrete end in sight to 

[Wong’s] criminal proceedings” on July 12, 2024. Based on the 

record before us, we cannot say the superior court abused its 

discretion in weighing the Avant factors, even if its minute order 

did not make express findings as to each of them. (See Alpha 
13

Media, supra, 39 Cal.App.5th at pp. 1132, 1134, fn. 10 [affirming 

order on stay of discovery where the court “acknowledged and 

carefully weighed the specific interests asserted by each side,”

although it did not “explicitly address all five [Avant] factors”];

Harris, supra, 214 Cal.App.4th at p. 952 [same, where “the trial 

court balanced the relevant factors”]; cf. Denham, supra, 2 Cal.3d 

at pp. 564-566 [inferring facts in support of challenged order and 

denying writ].) 

Although an 11-month stay is a significant pause in

proceedings, a stay of this length is warranted to “protect[] a 

party’s constitutional rights” despite potential “inconvenience 

and delay” to opposing parties. (Pacers, supra, 162 Cal.App.3d at

p. 690 [directing superior court to impose 13-month stay of 

discovery until expiration of statute of limitations].) Further, 

Petitioners’ assertions regarding the “potential disappearance of 

key witnesses and evidence” are speculative and unsupported by 

the record before us. Petitioners did not identify any specific 

evidentiary prejudice they suffered as a result of the stay. And 

even if judicial economy and the convenience of the court weighed

against a stay, we cannot say the court’s order granting a stay of 

discovery against Wong before he was sentenced was an abuse of 

discretion. (See Avant, supra, 79 Cal.App.4th at pp. 881-882 [“[I]f 

the trial court’s conclusion was a reasonable exercise of its 

discretion, we are not free to substitute our discretion for that of 

the trial court.”].)

C. Because Wong Has Now Been Sentenced, There Is No 

Longer a Need for a Stay of Proceedings

The superior court’s justification for the stay of proceedings 

dissipated after Wong was sentenced on July 12, 2024. Wong is 
14

no longer entitled to a stay of proceedings based on his right 

against self-incrimination in light of his sentencing. (See Harris, 

supra, 214 Cal.App.4th at p. 952; Avant, supra, 79 Cal.App.4th at 

p. 885.) Accordingly, there is also no reason justifying a stay of 

proceedings as to the City.

DISPOSITION

Let a peremptory writ of mandate issue directing the

superior court to vacate its August 21, 2023 order staying the 

case in its entirety. We further direct the superior court to vacate 

its order of July 15, 2024 to the extent it allows the stay to 

remain in place after Wong’s sentencing and direct it to issue a 

new order lifting the stay of proceedings forthwith. This decision 

is final as to this court seven calendar days after the date this 

opinion is filed. (Cal. Rules of Court, rule 8.490(b)(2)(A).) The 

parties are to bear their own costs.

MARTINEZ, P. J.

We concur:

FEUER, J.

STONE, J.