Judge Stephen P. Pfahler, Case Number: 23STCV23998, Date: 2024-04-11 Tentative Ruling

Judge: Stephen P. Pfahler, Case: 23STCV23998, Date: 2024-04-11 Tentative Ruling

Case Number: 23STCV23998 Hearing Date: April 11, 2024 Dept: 68

Dept. 68

Date: 4-11-24

Case # 23STCV23998

Trial Dates: Not Set

DEPOSITION

MOVING PARTY: Plaintiff, Jane RS Doe

RESPONDING PARTY: Unopposed/Defendant, Mark Berendt

RELIEF REQUESTED

Motion to Compel Deposition of Mark Berendt in Mule Creek State Prison, Ione, CA

SUMMARY OF ACTION

Plaintiff Jane RS Doe alleges a school teacher at defendant Los Unified School District Miramonte Elementary School, Mark Berendt, sexually molested Plaintiff beginning in 2007. Plaintiff was born on May 17, 1999. Berendt was arrested in 2012 for the alleged molestation of numerous students on the campus.

On October 3 and 21, 2022, Plaintiff filed a complaint for Intentional Infliction of Emotional Distress; Negligence; Negligent Supervision; Negligent Hiring/Retention; Negligent Failure to Warn, Train, or Educate; Breach of Fiduciary Duty; Constructive Fraud; Sexual Battery; and, Sexual Assault. Defendant Berendt, in pro per, answered the complaint on November 27, 2023. On February 1, 2024, Plaintiff filed a first amended complaint for Intentional Infliction of Emotional Distress; Negligence; Negligent Supervision; Negligent Hiring/Retention; Negligent Failure to Warn, Train, or Educate; Breach of Fiduciary Duty; Constructive Fraud; Sexual Battery; and, Sexual Assault.

On July 26, 2023, the court deemed 23STCV14520 related to 22STCV18640. On February 23, 2024, a notice of related cases was filed with 22STCV382369, 23STCV02661, and 23STCV14520. On July 26, 2023, the court deemed 23STCV14520, John VKB Doe v. Doe 1, related, with 22STCV18640 deemed the lead. On December 20, 2023, the 23STCV14520 complaint was dismissed without prejudice. On February 22, 2024, the court consolidated 22STCV18640 with 22STCV38269, John MGB Doe and 23STCV02661, Jane HAB Doe.

RULING: Granted.

Plaintiff, Jane RS Doe moves to compel the deposition of Mark Berendt, a person currently incarcerated in Mule Creek State Prison, Ione, CA for 23 counts of lewd acts on a minor and sentenced to 25 years. Plaintiff filed a notice of non-opposition and the court electronic filing system shows no responsive document from Mark Berendt as of the tentative ruling publication cutoff.

A court order is required to compel the deposition.

“If the witness be a prisoner, confined in a jail within this state, an order for his examination in the jail upon deposition, or for his temporary removal and production before a court or officer may be made as follows:

1. By the court itself in which the action or special proceeding is pending, unless it be a small claims court.

2. By a justice of the Supreme Court, or a judge of the superior court of the county where the action or proceeding is pending, if pending before a small claims court, or before a judge or other person out of court.

“Such order can only be made on the motion of a party, upon affidavit showing the nature of the action or proceeding, the testimony expected from the witness, and its materiality.”

(Code Civ. Proc., § 1996.)

“If the witness be imprisoned in a jail in the county where the action or proceeding is pending, his production may be required. In all other cases his examination, when allowed, must be taken upon deposition.” (Code Civ. Proc., § 1997.)

To the extent Jane RS Doe action seeks the deposition of Barendt, and Barendt faces a potential threat to personal interests in the form of a civil judgment, the court must consider the due process rights of Barendt. The court finds justification in allowing the deposition to proceed. Barendt may rely upon this deposition in defense of the action, if requested. (Wantuch v. Davis (1995) 32 Cal.App.4th 786, 792–795; See Yarbrough v. Superior Court (1985) 39 Cal.3d 197, 207.)

The court therefore grants the order allowing the deposition to proceed. The court and the parties must still craft a solution for obtaining the deposition in cooperation with the Department of Corrections. (Payne v. Superior Court (1976) 17 Cal.3d 908, 924–925.) An OSC re: Related Cases remains set for April 29, 2024. Because the majority, if not all cases subject to the related case hearing arise from the conduct of Mark Berendt, the court invites the parties to consider a single joint deposition with all plaintiffs and LAUSD appearing, rather than potential piecemeal motions.

The court invites consideration of this option, and consultation with the Department of Corrections for a determination of the protocols and means for conducting prisoner depositions. The parties may discuss options including audiovisual interface, or even through writing. The court sets an OSC re: Status of the Deposition with an invitation for supplemental briefing providing updates on potential dates and methods for April 29, 2024.

Plaintiff to give notice.