Judge: Stephen P. Pfahler, Case: 21CHCV00215, Date: 2022-10-25 Tentative Ruling

Case Number: 21CHCV00215    Hearing Date: October 25, 2022    Dept: F49

Dept. F-49

Date: 10-25-22

Case # 21CHCV00215

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

SANCTIONS

MOVING PARTY: Plaintiff, Ryan Canning

RESPONDING PARTY: Unopposed/Defendant, Shawn Kerwin, pro per

RELIEF REQUESTED

Motion for Sanctions

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.

Plaintiff Ryan Canning moves for the imposition of $1,260 in monetary sanctions on grounds that Defendant, Shawn Kerwin’s motion to dismiss the complaint was brought without support, and constituted a “frivolous” effort to harass Plaintiff and cause additional expense.

The court electronic filing system shows no opposition or reply at the time of the tentative ruling publication cutoff.

Plaintiff move for sanctions pursuant to Code of Civil Procedure sections 128.5. Code of Civil Procedure section 128.5 provides for the recovery of sanctions on actions “made in bad faith, that are frivolous or solely intended to cause unnecessary delay.”

(1) “‘Actions or tactics’ include, but are not limited to, the making or opposing of motions or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading. The mere filing of a complaint without service thereof on an opposing party does not constitute ‘actions or tactics’ for purposes of this section.

(2) ‘Frivolous’ means totally and completely without merit or for the sole purpose of harassing an opposing party.”

            …

e) This section shall not apply to disclosures and discovery requests, responses, objections, and motions.

(Code Civ. Proc., § 128.5, subds. (b, e).)

The section “authorizes trial courts to impose sanctions to check abuses in the filing of pleadings, petitions, written notices of motions or similar papers.” (Musaelian v. Adams (2009) 45 Cal.4th 512, 514.) A violation of any of these certifications may give rise to sanctions. (Eichenbaum v. Alon (2003) 106 Cal.App.4th 967, 976.) An objective standard of review applies to sections 128.5 and 128.7. (San Diegans for Open Government v. City of San Diego (2016) 247 Cal.App.4th 1306, 1318; Bockrath v. Aldrich Chemical Co., Inc. (1999) 21 Cal.4th 71, 82.) Whether a claim is meritless or for the sole purpose of harassment must be evaluated by examining whether the factual allegations of the claim had evidentiary support. (580 Folsom Associates v. Prometheus Development Co. (1990) 223 Cal.App.3d 1, 22.) “Code of Civil Procedure section 128.7 imposes a lower threshold for sanctions than is required under Code of Civil Procedure section 128.5. This is because Code of Civil Procedure section 128.7 requires only that the conduct be ‘objectively unreasonable,’ while Code of Civil Procedure section 128.5 also requires ‘a showing of subjective bad faith.’ (Citation.)” (Guillemin v. Stein (2002) 104 Cal.App.4th 156, 167.)

On a procedural level, the motion complies with the safe harbor provisions. (Code Civ. Proc., § 128.5, subd. (f)(1)(B), 128.7, subd. (c)(1).) The court therefore considers the merits of the motion.

The motion to dismiss was brought 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. The court denied the motion, at least in part, on the failure to present a legal basis for dismissal. The court also noted this was the second motion of Kerwin to dismiss.

While the court found the motion lacking merit, the court declines to objectively declare that Kerwin filed the motion for purposes of harassment. Kerwin continues to defend the case in pro per. The court will not assume Kerwin’s knowledge of the law rises to the level of a licensed, practicing attorney in the areas of civil procedure and constitutional rights on search and seizure. The court also appreciates that at the time of the motion, Kerwin was incarcerated, and was further presumably limited in access to judicial resources. While the court acknowledges the justified frustrations of Plaintiff, the court declines to make a finding of both objective and subjectively improper conduct simply based on the presentation of the motion itself, even after the safe harbor letter. Such a ruling would unjustly penalize Kerwin for putting forth efforts to present a defense presumably believed correct under the circumstances.

The motion is denied.

Trial date remains set for February 6, 2023.

Plaintiff to provide notice.