Recently I had a situation that involved a party exercising its power to intimidate third party witnesses and prevent them from testifying. I knew witness intimidation was a crime if done in a criminal case, but Google and Westlaw weren't showing me any instances of cases punishing parties to civil actions who engage in such behavior.
So I did a little digging. Turns out, Penal Code 136.1 makes it a misdemeanor (or felony, with certain aggravating circumstances) to prevent or dissuade, or attempt to prevent or dissuade, any witness from testifying in a proceeding. The problem is that a witness is defined as someone who has been subpoenaed or who has already testified or signed a declaration under oath. This means that if the other side gets to your witnesses before you do, it may not be considered a crime at all.
But even if the witnesses have already been subpoenaed or signed a declaration or testified at deposition, I wanted more than just a Penal Code section. As many of us who've worked in the criminal justice system know, it's one thing for acts to be against the law - it's another to successfully get justice when those crimes are committed, especially if the police consider it beneath them to bother.
In cases that involve FEHA claims, you're in luck: it's against Sections 12940(h) and 12955(f) for an employer to harass or discriminate against someone for opposing conduct made unlawful by FEHA, or for assisting in any proceeding involving FEHA claims. Under 12940(i) and 12955(g), it's also unlawful to aid or abet or compel or coerce anyone else to harass or discriminate. So any witness to your client's claims for discriminatory conduct in housing or employment is protected.
In claims not involving FEHA, you could cite generally to the Penal Code sections and cite language that allows judges "inherent authority" to promote fair process and curb abuses. Peat, Marwick, Mitchell & Co. v. Superior Court, 200 Cal. App. 3d 272, 288 (1988).
If anyone has any additional authority on point, please email me at morgan@rickettsandyang.com.
