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

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

Case Number: 21CHCV00215 Hearing Date: August 8, 2022 Dept: F49

Dept. F-49

Date: 8-8-221

Case # 21CHCV00215

Trial Date: 2-6-23 c/f 5-23-22

MOTION TO DISMISS

MOVING PARTY: Defendant, Shawn Kerwin, pro per

RESPONDING PARTY: Plaintiff, Ryan Canning

RELIEF REQUESTED

Motion to Dismiss

SUMMARY OF ACTION

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.

RULING: Denied.

Defendant Shawn Kerwin moves to dismiss the complaint, and requests leave to file a cross-complaint. Defendant moves for dismissal on grounds that Plaintiffs Ryan Canning and Patricia Bogarin 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 by Plaintiffs Ryan Canning and Patricia Bogarin. Defendant additionally requests monetary sanctions.

Plaintiffs Ryan Canning and Patricia Bogarin in opposition challenge 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.

Defendant is a late reply presents a series of extortion accusations regarding “tequila patents, trademarks and recipes” as well as efforts made in the defense of the case. Defendant also

reiterates the claims regarding the lack of responses regarding the “47 documents owned by Defendant.”

This is the second motion for dismissal filed by Defendant based at least in part to the alleged unlawful 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. 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.

Trial date remains set for February 6, 2023.

Defendant to provide notice.

Dept. F-49

Date: 8-8-221

Case # 21CHCV00215

Trial Date: 2-6-23 c/f 5-23-22

MOTION TO COMPEL

MOVING PARTY: Plaintiff, Ryan Canning

RESPONDING PARTY: Defendant, Shawn Kerwin, pro per

RELIEF REQUESTED

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

Motion to Deem Requests for Admissions Admitted

SUMMARY OF ACTION

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

RULING: Granted.

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 Plaintiffs2 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).)

Trial date remains set for February 6, 2023.

Moving parties to provide notice.