J Robert Baur, Jr et al vs Bendar Al-Bashir et al

Case Number

Case Type Civil Law & Motion Hearing Date / Time Mon, 08/31/2026 - 10:00 Nature of Proceedings 1. CMC; 2. Demurrer/Motion to Strike; 3. Motion: Stay Tentative Ruling J. Robert Baur, Jr., et al. v. Bendar Al-Bashir, et al. Case No. 26CV00587 Hearing Date: August 31, 2026 HEARING: (1) Demurrer to the Third, Fourth, and Sixth Causes of Action of Plaintiffs' Complaint and Motion to Strike Portions of Plaintiffs' Complaint (2) Motion to Stay Civil Proceeding Pending Expiration of Criminal Statute of Limitations

ATTORNEYS: For Plaintiffs J. Robert Baur, Jr., and Alisa Bales Baur: Briana E. McCarthy, Ronald J. Zonen, William Frusetta, McCarthy & Kroes For Defendant Stephanie Al-Bashir: Royce J. Borgeson, Henderson & Borgeson, PC For Defendant Bendar Al-Bashir: Joshua E. Lynn, Elizabeth A. O'Brien, Lynn & O'Brien, LLP

TENTATIVE RULING: The demurrer and motion to strike of defendant Bendar Al-Bashir is ordered off-calendar. Defendant shall, on or before September 16, 2026, file and serve a response to the first amended complaint filed by plaintiffs on August 17, 2026. The motion of defendant Bendar Al-Bashir to stay civil proceeding pending the expiration of criminal statute of limitations is denied.

Background: As alleged in the complaint of plaintiffs J. Robert Baur, Jr., (R Baur) and Alisa Bales Baur (A Baur) (collectively, Plaintiffs): On January 15, 2025, while Plaintiffs were walking on Glenview Road in Montecito, California, R Baur was shot while he paused to read a notification on his phone. (Complaint, P.P. 6-9.) The bullet entered the back of his upper left arm, breaking the bone. (Complaint, P. 9.) Having heard a "pop", A Baur looked around trying to figure out where the sound came from and saw no one. (Ibid.)

R Baur told A Baur to call "911," which A Baur did. (Complaint, P. 9.) A Baur also flagged down a passing vehicle. (Complaint, P. 10.) The driver of that vehicle, Carlos Godinez (Godinez), stopped to help and applied a work strap as a tourniquet to R Baur's arm. (Ibid.) Just before Godinez returned from his truck with the work strap, Bendar Al-Bashir (B Al-Bashir) arrived on foot and poured a white powdery substance called "Bleedstop" on the general area of the wound. (Complaint, P. 11.) Among the "911" calls was one made by B Al-Bashir stating there had been an accidental discharge of a firearm. (Complaint, P. 12.)

B Al-Bashir did not inform Plaintiffs that he had fired the bullet that entered R Baur's arm. (Ibid.) At the scene, B Al-Bashir told deputies he did not know what had happened and denied any knowledge of a firearm being discharged. (Ibid.) Deputies later discovered a bullet hole in the kitchen window of the residence of B Al-Bashir and Stephanie Al-Bashir (S Al-Bashir) (Complaint, P. 13.) From that kitchen window, there is a direct view of the intersection where Plaintiffs were walking. (Complaint, P. 13.)

B Al-Bashir was the only person at that residence at the time of the shooting. (Ibid.) S Al-Bashir told deputies that B Al-Bashir, who is S Al-Bashir's son, had been living with her since the pandemic in 2020 and described B Al-Bashir as "a bit paranoid", sometimes using binoculars to watch people walk by the house and keeping a wall calendar in his bedroom with descriptions and activities of people he watched. (Complaint, P. 15.) Deputies concluded that, while inside the residence, B Al-Bashir manipulated and handled a loaded firearm in the direction of the roadway and area where Plaintiffs were walking, and that, during that handling, a round was discharged through the kitchen window, striking R Baur. (Complaint, P. 14.)

After obtaining a search warrant, deputies seized multiple firearms belonging to B Al-Bashir, including a semi-automatic handgun and a casing on the kitchen counter to the right of where B Al-Bashir would have been standing or sitting. (Complaint, P.P. 17-18.) Deputies also seized multiple firearms and numerous boxes of ammunition owned by B Al-Bashir and stored in B Al-Bashir's room and another downstairs bedroom. (Complaint, P. 21.) The bullet remains in R Baur's arm because doctors concluded it was safer to leave it in place than to remove it. (Complaint, P. 22.)

Plaintiffs filed their complaint against B Al-Bashir and S Al-Bashir (collectively, Defendants) on January 27, 2026, asserting seven causes of action: (1) negligence (by R Baur against B Al-Bashir); (2) negligence per se (by R Baur against B Al-Bashir); (3) civil battery (by R Baur against B Al-Bashir); (4) civil assault (by Plaintiffs against B Al-Bashir); (5) negligent infliction of emotional distress (by Plaintiffs against B Al-Bashir); (6) intentional infliction of emotional distress (by Plaintiffs against B Al-Bashir); and (7) premises liability (by Plaintiffs against S Al-Bashir).

On April 3, S Al-Bashir filed an answer to the complaint, generally denying its allegations and asserting nine affirmative defenses. On May 11, B Al-Bashir filed a demurrer to and motion to strike portions of the complaint, which is calendared for hearing on August 31, 2026. On June 26, B Al-Bashir filed a motion to stay these proceedings to allow for the expiration of any criminal statute of limitations that might apply to the allegations set forth in the complaint, including the statute of limitations set forth in Penal Code section 801. That motion to stay is also calendared for hearing on August 31, 2026.

On August 17, Plaintiffs filed a first amended complaint (the FAC) asserting the same third, fourth, sixth, and seventh causes of action described above, and asserting a first cause of action for negligence (by Plaintiffs against B Al-Bashir); a second cause of action for willful misconduct (by Plaintiffs against B Al-Bashir); and a fifth cause of action for negligent infliction of emotional distress (bystander) (by A Baur against B Al-Bashir). On August 18, Plaintiffs an opposition to the motion of B Al-Bashir to stay these proceedings. Plaintiffs have not filed with the court an opposition to the demurrer and motion to strike of B Al-Bashir.

Analysis: (1) B Al-Bashir's Demurrer and Motion to Strike Subject to exception that does not apply here, "[a] party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike." (Code Civ. Proc., Sec. 472, subd. (a).) "Because there is but one complaint in a civil action [citation], the filing of an amended complaint moots a motion directed to a prior complaint. [Citation.]" (State Compensation Ins.

Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1131; People ex rel. Strathmann v. Acacia Research Corp. (2012) 210 Cal.App.4th 487, 506 [filing of amended complaint rendered demurrer moot].) "All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days ... before the hearing." (Code Civ. Proc., Sec. 1005, subd. (b); see also Cal. Rules of Court, rule 3.1300(a).)

Court records detailed above reflect that the FAC was filed on August 17, and within the time prescribed in Code of Civil Procedure section 1005 for filing papers opposing the demurrer and motion to strike of B Al-Bashir. For all reasons discussed above, the filing of the FAC no later than the date for filing an opposition to the demurrer and motion to strike of B Al-Bashir moots those motions. For these reasons, the court will order the demurrer and motion to strike off-calendar and require B Al-Bashir to file a response to the FAC within the time allowed to respond to that pleading.

(2) Motion to Stay In the motion to stay, B Al-Bashir contends that the allegations underlying this civil action involve the discharge of a firearm that was investigated by law enforcement as potential criminal conduct. B Al-Bashir asserts that, if this case is allowed to proceed and Plaintiffs take advantage of the broad scope of routine civil discovery, he will inevitably be forced to respond to that discovery and to provide testimony concerning factual allegations which, if proven, could potentially expose B Al-Bashir to criminal liability. B Al-Bashir argues that absent court intervention, he will be required to choose between sacrificing the constitutionally recognized privilege against self-incrimination in order to properly defend himself against Plaintiffs' allegations, or asserting that privilege and suffering the adverse consequences of his silence in this litigation.

The motion to stay is support by a declaration of counsel for B Al-Bashir, Joshua E. Lynn (attorney Lynn), who asserts that, based on his review of the pleadings, the underlying criminal investigation of B Al-Bashir, and counsel's experience, civil discovery in this matter will focus on the same facts and circumstances that formed the basis of the detention and felony booking of B Al-Bashir following the January 15, 2025, incident alleged in the complaint. (Lynn Dec., P. 2.)

Attorney Lynn further asserts that, though the District Attorney of Santa Barbara County has declined to file criminal charges, the statute of limitations that applies to the charges for which B Al-Bashir was detained has not expired such that any testimony, admissions, statements, or other information obtained through civil discovery concerning the conduct of B Al-Bashir, or B Al-Bashir's knowledge, intent, handling of the firearm, or statements made before, during, or after the incident, could lead to future prosecutorial review of the matter. (Lynn Dec., P. 3.) Attorney Lynn contends that it is entirely within the district attorney's office to make a filing decision up to and including the last day upon which the statute of limitations expires. (Ibid.)

Attorney Lynn also states that they worked as a Deputy District Attorney at the Office of the District Attorney of Santa Barbara County for about 15 years. (Lynn Dec., P. 3 second].) During that time, attorney Lynn worked alongside attorney Ronald Zonen (attorney Zonen) who now works for the firm Plaintiffs have retained to represent them in this case. (Ibid.) According to attorney Lynn, attorney Zonen knows what information would be needed from B Al-Bashir that could then be presented to the district attorney's office in an attempt to have a criminal case filed within the appropriate statute of limitation. (Lynn Dec., P. 4.)

Attorney Lynn contends that if a defendant in a civil case is convicted of a felony charge based upon the same facts upon which that civil case is based, the plaintiff in the related civil matter will then have an advantage in regard to presumed liability. (Lynn Dec., P. 5.) For these reasons, attorney Lynn believes that attorney Zonen and Plaintiffs' counsel will seek such information from B Al-Bashir through discovery. (Ibid.) Attorney Lynn argues that Plaintiffs have a strong incentive to pursue discovery concerning the facts underlying the incident which would directly implicate B Al-Bashir's privilege against self-incrimination because that discovery concerns the same conduct that was the subject of the criminal investigation. (Lynn Dec., P. 6.)

Without a stay, attorney Lynn contends, B Al-Bashir would be forced to decide between asserting his constitutional rights in the criminal case and, as a direct result, losing his civil case, and waiving important rights and risk prosecution based upon the exact same facts. (Ibid.)

In support of the opposition to the motion to stay, Plaintiffs submit a declaration of their counsel, Brianna E. McCarthy (attorney McCarthy), who states that, over the past year and a half, their office has been in communication with the Office of the District Attorney of Santa Barbara County regarding the subject incident. (McCarthy Dec., P. 4.) During that time, attorney McCarthy pointed out to a senior deputy district attorney that Sheriff reports show "[t]he Glock 48 was fully loaded with a round chambered; the magazine was then removed, another round was added, and the magazine was reinserted into the firearm"; that "[n]o firearm-cleaning supplies were found in the kitchen, and investigators identified no apparent reason for [B Al-Bashir] to have been handling a fully loaded Glock 48"; that "[w]hen questioned by the responding officers, [B Al-Bashir] denied any knowledge or involvement in the shooting itself"; that [B Al-Bashir's] calendar and notes indicated that he had been surveilling passersby for some time, and neighbors reported that he had confronted and/or threatened them in a hostile manner; and that R Baur "was shot in the back of the arm, and [B Al-Bashir] was the only person inside the residence and on the property at the time." (Ibid.)

According to attorney McCarthy, the senior deputy district attorney indicated that they had considered all of the points described above, and that the reason for rejecting a criminal filing in this matter was that, even though the evidence strongly suggests that B Al-Bashir fired the gun that injured R Baur, there is insufficient evidence to establish proof beyond a reasonable doubt that the weapon was fired in a "willful" manner as required by statute. (McCarthy Dec., P. 5.) Attorney McCarthy was also advised that several other senior district attorneys had reached the same conclusion. (Ibid.) The district attorney's office has declined to file criminal charges against B Al-Bashir, and has advised that it never considered charges against S Al-Bashir. (McCarthy Dec., P. 6.)

Attorney McCarthy also submits a declaration of Anthony S. Davis (DA Davis), who states they are a Senior Deputy District Attorney for the County of Santa Barbara. (McCarthy Dec., exhibit 2, P. 1.) DA Davis states that they are one of the attorneys who reviews reports, interviews, and detectives, and who determines whether the individual cases brought to the district attorney's office by law enforcement should be filed, rejected, or sent back for further investigation. (McCarthy Dec., exhibit 2, P. 2.)

DA Davis reviewed the case against B Al-Bashir which was investigated by the Santa Barbara County Sheriff's Department. (McCarthy Dec., exhibit 2, P. 3.) B Al-Bashir was accused of firing a handgun through the kitchen window of his home causing injury to R Baur. (Ibid.) At the time, R Baur was walking on the street with his wife in front of Defendants' home. (Ibid.) After reviewing the law enforcement reports of the incident and speaking with the detectives involved, DA Davis made the determination that no criminal charges should be brought against B Al-Bashir. (McCarthy Dec., exhibit 2, P. 4.)

Relevant here, the Civil Discovery Act, codified as Code of Civil Procedure section 2016.010 et seq., generally authorizes a party to "obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence." (Code Civ. Proc., Sec. 2017.010.) "Evidence Code section 940 excludes from discovery information which may tend to incriminate a party." (Fuller v.

Superior Court (2001) 87 Cal.App.4th 299, 305 (Fuller).) That section provides: "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." (Evid. Code, Sec. 940.) "This principle has been construed to allow assertion of the privilege against self-incrimination ' "in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory...." [Citations.]' [Citation.]" (Fuller, supra, 87 Cal.App.4th at pp. 305-306.)

However, "[j]ustice is meted out in both civil and criminal litigation." (Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 882 (Avant!).) "[A] civil defendant does not have the absolute right to invoke the privilege against self-incrimination. [Citation.] 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. [Citations.]' [Citation.] Courts recognize the dilemma faced by a defendant who must choose between defending the civil litigation by providing testimony that may be incriminating on the one hand, and losing the case by asserting the constitutional right and remaining silent, on the other hand." (Fuller, supra, 87 Cal.App.4th at pp. 305-306.)

"Courts faced with a civil defendant who is exposed to a related criminal prosecution have responded with various procedural solutions designed to fairly balance the interests of the parties and the judicial system. Accommodation of the various interests, however, is usually made to a defendant in a civil action 'from the standpoint of fairness, not from any constitutional right. [Citation.]' [Citation.] Courts that are confronted with a civil defendant who is exposed to criminal prosecution arising from the same facts 'weigh the parties' competing interests with a view toward accommodating the interests of both parties, if possible.' [Citation.]" (Fuller, supra, 87 Cal.App.4th at p. 307.) One such procedural solution "is to stay the civil proceeding until disposition of the related criminal prosecution." (Fuller, supra, 87 Cal.App.4th at p. 307.)

The factors to be considered by the court "in determining the question of whether a civil proceeding should be stayed pending the disposition of the parallel criminal proceeding, are: (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 persons not parties to the civil litigation; and (5) the interest of the public in the pending civil and criminal litigation." (Avant!, supra, 79 Cal.App.4th at p. 887.)

As a threshold matter, the undisputed available information and evidence shows that there does not presently exist any actual or "threatened criminal proceeding" and that B Al-Bashir is not presently "facing possible criminal prosecution involving the same facts as the civil action" (Pacers, Inc. v. Superior Court (1984) 162 Cal.App.3d 686, 688.) Instead, the present record reflects that, at this stage of the proceedings, B Al-Bashir appears to be under no threat of criminal prosecution arising from the same facts alleged in the FAC.

Even if the motion to stay could present information or evidence showing some possibility that a criminal proceeding will commence against B Al-Bashir in the future (and the court does not find that B Al-Bashir has shown that such possibility exists), B Al-Bashir not have an absolute right to invoke the privilege against self-incrimination in this action absent a showing of substantial prejudice. (Alvarez v. Sanchez (1984) 158 Cal.App.3d 709, 712; Avant!, supra, 79 Cal.App.4th at p. 885 ["[i]n the absence of substantial prejudice to the rights of the parties involved, simultaneous parallel civil and criminal proceedings are unobjectionable under our jurisprudence"].)

Apart from the general, speculative, and conclusory concerns regarding what appears to be a remote possibility of future criminal prosecution, the motion to stay is insufficient to show substantial prejudice to any rights of B Al-Bashir should this litigation proceed.

"[C]ourts are [also] guided by the strong principle that any elapsed time other than that reasonably required for pleadings and discovery 'is unacceptable and should be eliminated.' [Citation.] Courts must control the pace of litigation, reduce delay, and maintain a current docket so as to enable the just, expeditious, and efficient resolution of cases. [Citation.]" (Fuller, supra, 87 Cal.App.4th at pp. 306-307.) B Al-Bashir requests a stay of these proceedings until January 15, 2028, which B Al-Bashir contends is the date on which the applicable statute of limitations will expire. (Memorandum at p. 6.) The circumstances present here do not give B Al-Bashir "a blank check to block all civil litigation on the same or related underlying subject matter." (Avant!, supra, 79 Cal.App.4th at p. 882.)

Considering that B Al-Bashir is presently under no actual or threatened parallel criminal prosecution and that no additional burden will be imposed on B Al-Bashir apart from the burdens inherent in all litigation, the interests of Plaintiffs in proceeding expeditiously with this litigation, and the prejudice to Plaintiffs of a significant delay weigh against a stay of these proceedings until January 15, 2028. For example, if Plaintiffs are precluded from obtaining discovery or litigating their causes of action until January 15, 2028, the attendant and substantial delays in discovery " 'would increase the danger of prejudice resulting from the loss of evidence, including the inability of witnesses to recall specific facts[.]' [Citation.]" (Avant!, supra, 79 Cal.App.4th at p. 887; see also Fuller, supra, 87 Cal.App.4th at p. 309 [finding that the delay "exposes both sides of the litigation to the risk of diminished memory and lost records."].)

Furthermore, absent a showing of any actual or threatened criminal prosecution of B Al-Bashir arising out of the same underlying facts, "denial of the stay motion promotes the convenience of the court in the management of its cases." (Avant!, supra, 79 Cal.App.4th at p. 888.) The concerns asserted in the motion to stay in regard to the nature of the discovery that may be sought from B Al-Bashir by Plaintiffs are also, for the reasons discussed below, premature. "It is clear that [B Al-Bashir] may not invoke a blanket privilege against self-incrimination with respect to [all discovery]. [Citations.]

The trial court must be given the opportunity to determine whether particular questions ... would elicit answers that 'support a conviction' or that 'furnish a link in the chain of evidence needed to prosecute the witness' [citation], and which may thus be subject to constitutional protection." (Fuller, supra, 87 Cal.App.4th at p. 308.) At this stage of the proceedings, the court "has not had an opportunity to ascertain whether [Plaintiffs] seek information in discovery which might tend to incriminate [B Al-Bashir]." (Ibid.)

Furthermore, "[i]f [B Al-Bashir] choose[s] to invoke their right against self-incrimination with respect to particular questions, then they should do so at that time. This will provide the trial court with a clear record upon which to base a ruling about whether the constitutional privilege is implicated. Once that determination has been made, the trial court will be in a better position to exercise its discretion and fashion a procedural ruling that can accommodate the various interests of the parties and of the judicial system." (Fuller, supra, 87 Cal.App.4th at pp. 309-310.)

The reply declaration of B Al-Bashir's counsel, Elizabeth O'Brien, suggests that B Al-Bashir has invoked the privilege against self-incrimination in his responses to Plaintiff's discovery requests. (O'Brien Dec., P.P. 2-3.) To the extent a dispute has arisen in regard to those responses or any objections based on the privilege at issue, B Al-Bashir is not without an adequate remedy. For example, B Al-Bashir is not precluded from filing an appropriate motion for a protective order addressing, on a point-by-point basis, each particular discovery request or question on which B Al-Bashir claims the privilege. (See Avant!, supra, 79 Cal.App.4th at p. 888; Warford v. Medeiros (1984) 160 Cal.App.3d 1035, 1045 (Warford) [it has "long been the rule in California" that the privilege against self-incrimination must be claimed on a particular question and submitted to the court].)

In addition, as the court has not been presented with an opportunity to determine the validity of any invocation of the privilege against self-incrimination by B Al-Bashir with respect to any specific discovery request or question at issue, there exists no clear record on which the court may base any ruling in regard to whether any constitutional privilege has been implicated under the circumstances present here. Absent evidence or information showing why B Al-Bashir is or may be exposed to parallel criminal prosecution based on the same facts at issue in these proceedings, B Al-Bashir "is not entitled to decide for himself or herself whether the privilege against self-incrimination may be invoked." (Fuller, supra, 87 Cal.App.4th at p. 305.) " '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." [Citation]' [Citations.]" (Warford, supra, 160 Cal.App.3d at p. 1045, original italics.)

For these and all further reasons discussed above, and under the totality of the circumstances present here, the interests of Plaintiffs in an expedient and fair resolution of the claims at issue, and of the court in the efficient use of judicial resources and avoidance of delay, weigh against a stay of these proceedings. Therefore, the court will deny the motion to stay. The court's ruling herein is without prejudice to any appropriate motion for a protective order that may be filed and served by B Al-Bashir in the future. Nothing herein shall be construed as an indication of the manner in which the court may rule on or determine any such motion.

Plaintiffs' request for judicial notice: In support of their opposition to the motion to stay, Plaintiffs request that the court take judicial notice of the reporter's transcript of proceedings held in this case on June 1, 2026. (RJN at p. 2, ll. 4-9 & McCarthy Dec., exhibit 1.) Plaintiffs contend that the transcript is relevant to the motion to stay because at the June 1, 2026, case management conference, the court addressed the status of the criminal investigation, and commented on counsel's intention to seek a stay.

Plaintiffs fail to explain why comments made by the court at a case management conference constitute the court's conclusions, final decision on the merits of the motion to stay, or binding precedent. (See, e.g., Gogri v. Jack in the Box Inc. (2008) 166 Cal.App.4th 255, 272 [discussing doctrine of precedent]; People v. Lucatero (2008) 166 Cal.App.4th 1110, 1116 ["An observation unnecessary to the decision of a court does not constitute binding precedent."]; People ex rel. Dept. of Transportation v.

Yuki (1995) 31 Cal.App.4th 1754, 1773 [discussing dictum].)

For all reasons discussed above, Plaintiffs have failed to explain why the transcript of the June 1, 2026, proceedings is relevant to the court's determination of the motion to stay. (Evid. Code, Sec. 350; Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, overruled on other grounds in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276.) Therefore, the court will deny Plaintiffs' request for judicial notice of that court record.

Tentative Ruling: Matter of LeRoy P Price and Lorraine E Price Family Trust Tentative Ruling: Matter of LeRoy P Price and Lorraine E Price Family Trust