Judge: Ronald F. Frank, Case: 22STCV12093, Date: 2024-01-03 Tentative Ruling
Case Number: 22STCV12093 Hearing Date: January 3, 2024 Dept: 8
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HEARING DATE: January 3, 2024
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CASE NUMBER: 22STCV12093
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CASE NAME: John
Doe v. The Lutheran Church – Missouri Synod, et al.
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MOVING PARTY: Defendants, The Pacific Southwest District of the Lutheran Church-Missouri
Synod, Faith Lutheran Church, Inglewood, California, (erroneously sued as Faith
Lutheran Church, Inglewood California and erroneously named as Faith Lutheran
Church, Inglewood California.
RESPONDING PARTY: Plaintiff, John Doe.
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TRIAL DATE: April
29, 2024
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MOTION:¿ (1)
Motion for Order Staying the Taking of Dean Dammann’s Deposition and Quashing
the Deposition Notice
(2) Motion for Protective Order
Tentative Rulings: (1) DENIED
(2) DENIED, but the Court will
consider ARGUMENT as to a different character of protective order to
accommodate the health and age of the witness, such as taking breaks every 30
minutes, limiting the total duration of the deposition to 3 hours on a given
day, having the witness’ doctor readily available during the deposition, and
other reasonable restrictions
I. BACKGROUND¿
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A.
Factual¿
On April 8, 2023, Plaintiff, John Doe
(“Plaintiff”) filed a Complaint against Defendants ROE 1 through ROE 4. On June
10, 2023, Plaintiff filed a First Amended Complaint alleging personal injuries
and damages from Childhood Sexual Abuse.
On October 30, 2023, Plaintiff served a
notice of deposition of Dean Dammann. Counsel for Defendant notes that on
November 2, 2023, he communicated to Plaintiff’s counsel via written objection
that because of his age, his infirmity, the fact that he was not employed by
any defendant until years after Plaintiff’s alleged abuse in 1970-1972, and his
lack of any relevant information, Dammann would not be produced for his
deposition. The facts note that Mr. Dammann joined defendant, The Pacific
Southwest District of the Lutheran Church – Missouri Synod in 1975 and worked
in the District in Parish Education through December 1, 1997. Defendants assert
that Dammann has been retired for twenty-five (25) years now and had no
interaction with the Plaintiff’s alleged abuser, Paul Alan Hill, at any time
before Mr. Hill came to Faith Lutheran Church as a teacher in 1969.
Defendants note that the parties were unable
to reach an agreement on the issue, thus explaining the purpose of this Motion
to Quash and Motion for Protective Order.
B. Procedural
On November 14, 2023, Defendants filed both a Motion for
Order Staying the Deposition of Dean Dammann’s Deposition and Quashing the
Deposition Notice and a Motion for Protective order. On December 18, 2023,
Plaintiff filed an opposition to both motions. On December 26, 2023, Defendants
filed both reply briefs.
¿II. ANALYSIS ¿
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A. Motion to Quash
Legal Standard
Code
of Civil Procedure, section 2025.410, subdivision (c), which
provides:
In addition to serving [a] written
objection, a party may also move for an order staying the taking of the
deposition and quashing the deposition notice. This motion shall be
accompanied by a meet and confer declaration under Section 2016.040. The
taking of the deposition is stayed pending the determination of this
motion.”
(Code Civ. Proc., § 2025.410, subd.
(c).)
Section 2025.420, subdivision (a) further
provides in relevant part: “Before, during, or after a deposition, any party,
any deponent, or any other affected natural person or organization may promptly
move for a protective order.” (Code Civ. Proc., § 2025.420, subd. (a).)
“The court, for good cause shown, may make any order that justice requires to
protect any party, deponent, or other natural person or organization from
unwarranted annoyance, embarrassment, oppression, or undue burden and expense.”
(Code Civ. Proc., § 2025.420, subd. (b).)
Discussion
Defendants argue, without citing to any
authority, and without drawing any analogies, that this Court should order
Dammann’s deposition not be taken because of his advanced age, significant
health concerns, and witness’s demonstrated lack of relevant knowledge.
Defendants also contend that in this circumstances, as affirmed by the
witness’s doctor, a deposition would be an undue burden upon Dammann.
Defendants indicate that Dammann is 93 years old, suffers from a number of
medical issues which would make it against the doctor’s medical advice for him
to give a deposition.
In
opposition, Plaintiff argues that discovery responses indicate that Dammann was
an employee of Pacific Southwest District, that he had a preexisting
relationship with the perpetrator that could have extended into the abuse
period, and had prior employment within Lutheran Organizations that could have
extended into the abuse period. Plaintiff also explains that both defendants
have also filed motions for summary judgment, arguing lack of supervisory
relationship or control with Defendant Faith Lutheran and perpetrator Paul
Allen Hill. As such, Plaintiff argues that Dammann’s extensive career
interacting with all of the defendants in the case as well as the alleged
perpetrator speaks directly to the issues raised in these motions. Plaintiffs
also contend that Defendants have failed to identify any individual with more
personal knowledge about the historical relationship between Defendants and the
perpetrator than Dammann.
In
their reply brief, Defendants argue that Plaintiff has not established what
relevant information he hopes to obtain by compelling Dammann to sit for a
deposition. They also reiterate that there is no indication Dammann had any
knowledge of or contact with the alleged perpetrator prior to 1975, and to the
extent he has later-acquired knowledge about the alleged perpetrator, its
relevance is outweighed by the interest of sparing Dammann from the burden of a
deposition.
This
Court does not agree with Defendants’ argument that Dammann’s potential
information is outweighed entirely by the burden of Dammann attending his
deposition. The witness was able to communicate in some way with defense counsel
to provide the information given about himself in the discovery responses. If Defendants are correct that Mr. Dammann
has little personal knowledge of relevant facts, the deposition will likely be
quite short. The Court recognizes that cases
of revived memory of childhood sexual abuse often present substantial
difficulties in locating living persons with any knowledge of the conditions or
circumstances of the school, church, or other relevant environment that existed
40, 50, or 60 years ago when the alleged abuse occurred. But since
the Legislature permitted these causes of action to be brought decades after the
normal statute of limitations would have expired, it is implicit that trial
courts would need to manage very senior witnesses with potentially failing or
failed memories of any relevant facts. Instead of entirely quashing the deposition
notice, as discussed below, this Court is willing to limit the scope of the
deposition as to time and scope to lessen the burden on the 93-year-old Dammann.
Defendants will also be given the opportunity to identify other individuals who
may have more personal knowledge on the relevant issues, and who may be less
burdened by sitting for a deposition.
As
such, the Motion to Quash is DENIED.
B. Motion for Protective Order
Defendants’ Motion for a
Protective Order is based on Code of Civil Procedure § 2025.420(b) which allows
this Court to issue a protective order directing that the deposition not be
taken at all. Entering such a protective order, which would be tantamount to quashing
the deposition notice, could leave Plaintiff with no other individual connected
to the Defendant with personal knowledge as to the identified issues bearing on
Plaintiff’s alleged Childhood Sexual Abuse claim. Although not expressly offered
in Defendants’ motion, the Court is willing to hear oral argument on a
protective order limiting the scope, duration, and amount of time necessary to
take such a deposition. The Court is willing to require Plaintiffs to accommodate
ready access to the witness’ doctor during the deposition should a problem
arise.