Judge Stephen P. Pfahler, Case 21CHCV00215 2022-08-04 Tentative Ruling

On March 19, 2021, Plaintiff in pro per filed a complaint for conversion, breach of written agreement, breach of oral partnership agreement, breach of fiduciary duty, unjust enrichment, abuse of process, and breach of oral rental agreement. On April 23 and 26, 2021, Kerwin, in pro per, filed a cross-complaint for assault and battery, defamation of character, corporate defamation, abuse of personal credit, embezzlement and misuse of business funds negligence leading to theft of all personal property, fraud, profiteering and investment fraud, then answered the complaint.

On July 13, 2021, the court granted the motion of Plaintiff Canning to expunge the December 14, 2020 recorded mechanics lien. Plaintiff, in pro per, answered on September 14, 2021.

Defendant Shawn Kerwin moves to dismiss the complaint, and requests leave to file a cross-complaint. Defendant moves for dismissal on grounds that Plaintiffs violated Defendant’s Fourth Amendment rights due to the uploading of 47 documents by Plaintiffs, which Kerwin contends were in a locked cabinet and apparently not made available to Plaintiffs. Defendant additionally requests monetary sanctions.

Plaintiffs in opposition challenges the motion as both untimely and lacking legal merit. The untimeliness arguments characterize the motion as one for a demurrer, thereby rendering it filed more than 30 days after the filing of the complaint.

This is the second motion for dismissal filed by Defendant based at least in part to the alleged unlawful use of private documents and uploaded presentation. The caption of the motion also requests leave to file a cross-complaint, but the motion lacks any address of this request.

The court therefore declines to address any unsupported argument for leave to file a cross-complaint. Any such motion must be separately filed, served, and reserved. The court also declines to characterize the motion as a demurrer and therefore declare it untimely.

As for the request for dismissal, the court finds no applicability to the alleged unlawful obtainment of documents by Plaintiffs and a Fourth Amendment violation. Plaintiffs in no way acted under color of authority at any relevant time. More fundamentally, nothing in the motion presents a basis for dismissal even if the documents were improperly obtained.

The motion is therefore denied. The request to strike the exhibits filed with the opposition is also denied. The “request” constitutes an improperly noticed and untimely served counter motion, which the court declines to consider.

[1]The court consolidated the four motions from Plaintiffs and the motion to dismiss from Defendant to the single hearing date, in order to allow Defendant the opportunity to appear in a single hearing.

Motion to Compel Responses to Form Interrogatories, Special
Interrogatories and Request for Production of Documents

On March 19, 2021, Plaintiffs Ryan Canning and Patricia
Bogarin, in pro per, filed a complaint for conversion, breach of written
agreement, breach of oral partnership agreement, breach of fiduciary duty,
unjust enrichment, abuse of process, and breach of oral rental agreement. On
April 23 and 26, 2021, Defendant Kerwin, in pro per, filed a cross-complaint for
assault and battery, defamation of character, corporate defamation, abuse of
personal credit, embezzlement and misuse of business funds negligence leading
to theft of all personal property, fraud, profiteering and investment fraud,
then answered the complaint.

On July 13, 2021, the court
granted the motion of Plaintiff Canning ONLY to expunge the December 14, 2020
recorded mechanics lien. Plaintiffs Ryan Canning and Patricia Bogarin, in pro
per, answered on September 14, 2021.

Counsel for Plaintiffs substituted into the case on
December 29, 2021. The substitution of counsel only indicates representation
for Ryan Canning.

Plaintiff Ryan Canning ONLY (not Patricia Bogarin) moves
to compel Defendant, Shawn Kerwin to provide responses to Requests for
Production of Documents, Form Interrogatories, and Special Interrogatories. The
subject items were served on January 12, 2021, and remain outstanding.
Defendant in opposition represents that responses were served via a legal
assistant identified as Crystal Armstrong on March 22, 2022. Defendant also
adds argument regarding a violation of Fourth Amendment rights against improper
search and seizure to which the court finds no application. Plaintiff in reply
contends Defendant only served responses to the request for production of
documents. Plaintiff next contends that the response to request for production
of documents directing Plaintiffs[2] to visit their former
residence in order to retrieve the documents constitutes an invalid response,
which the court should therefore deem a non-response. Plaintiff requests an
order compelling responses and an order deeming admissions admitted for the
non-responded items as well.

The opposition contains a March 22, 2022 dated copy of the proof
of service listing all items sought. The proof of service is executed by
Crystal Armstrong and shows service on the office for Plaintiffs’ counsel.[3] Defendant also includes
copies responses to special interrogatories and request for production of
documents only. Lacking are the represented copies of admissions or form
interrogatories. The responses in fact only direct Plaintiffs to their former
home, and otherwise lack any responsive information.

To the extent Defendant presents proof of service of
responses to Special Interrogatories and Request for Production of Documents,
the court denies the motion. The court declines to rule on the merits of the
responses in the subject motion, and therefore denies the request in the reply.

The court accepts the copy of the proof of service regarding
responses to request for admissions and form interrogatories, but Defendant
still lacks actual proof of said responses, and Plaintiffs deny receipt. The
court therefore grants the motion as to form interrogatories. The court also
grants the motion to deem admissions admitted.

Defendant Kerwin is ordered to serve verified responses to Form
Interrogatories (set one) without objections, within ten days, even if this
means re-serving the form interrogatories. (Code Civ. Proc., §§ 2030.290,
subds. (a-b).) The court also grants the motion to deem admissions admitted,
but Defendant may move for relief from admissions upon a showing of proof of
service of responses and in compliance with the procedures in Code of Civil Procedure
section 2033.280, subdivision (a).

Sanctions not imposed given Defendant is
incarcerated, and therefore presumably in an indigent state for any payment of
sanctions. (Code Civ. Proc., §§ 2030.290, subd. (c) and 2033.280, subd. (c).)

[1]The court consolidated the
four motions from Plaintiffs and the motion to dismiss from Defendant to the
single hearing date, in order to allow Defendant the opportunity to appear in a
single hearing.

[2]The responses of Kerwin
were directed to both Plaintiffs even though only Canning moves to compel
responses.

[3]Counsel George Schwartz
indicates representation of both Ryan Canning and Patricia Bogarin, even though
the substitution of attorney shows nothing executed by Patricia Bogarin.