Judge Stephen P. Pfahler, Case Number: 21CHCV00215, Date: 2023-04-26 Tentative Ruling

Judge: Stephen P. Pfahler, Case: 21CHCV00215, Date: 2023-04-26 Tentative Ruling

Case Number: 21CHCV00215 Hearing Date: November 21, 2023 Dept: F49

Dept. F-49

Date: 11-21-23

Case # 21CHCV00215

Trial Date: 12-4-23 c/f 2-6-23 c/f 5-23-22

SUMMARY JUDGMENT

MOVING PARTY: Plaintiffs, Ryan Canning, et al.

RESPONDING PARTY: Defendant, Shawn Kerwin, pro per

RELIEF REQUESTED

Motion for Summary Judgment

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.

RULING: Denied.

Plaintiffs Ryan Canning and Patricia Bogarin move for summary judgment/summary adjudication on the operative complaint and cross-complaint on grounds that the admissions deemed admitted conclusively establish all claims and bar any challenge from defendant, Shawn Kerwin from challenging the established admissions. Plaintiffs also move for summary judgment/summary adjudication on grounds that the court granted the motion for issue and evidentiary sanctions, thereby precluding evidence on the subject matter of propounded form and special interrogatories and requests for production of documents.

Defendant/Cross-Complainant in a late opposition denies service of actual copies of the motion and denies the ability to access the court case management and document imaging system. Kerwin also maintains the e-mail service was sent to the wrong e-mail address.

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

The proofs of service show electronic service on “SHAWNKERWIN@GMAIL.COM” which differs from the represented email of Kerwin, “shawnrkerwin@gmail.com.” The missing “r” middle initial in the email supports a finding of improper service. The court therefore denies the motion for lack of proper service. (Code Civ. Proc., § 437c, subd.(a)(2).)

The motion itself was improperly scheduled less than 30 days from the January 4, 2024, trial date. “The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise. The filing of the motion shall not extend the time within which a party must otherwise file a responsive pleading.” (Code Civ. Proc., § 437c, subd. (a)(3).) The motion itself lacks any showing of good cause. As addressed below, the court finds no basis of good cause given the lack of legal support and factually specific argument to address two separate pleadings. While the court cannot verify the validity of the e-mail service, the court finds that the lack of an opposition based on the denial of receipt of the motion at a minimum constitutes an additional basis for lack of good cause to sua sponte make a finding of good cause to proceed with the motion. (Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1268.) The motion is therefore denied on this basis.

The court also considers the basis for the merits of the motion. The law of summary judgment provides courts “a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) In reviewing a motion for summary judgment, courts employ a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

The pleadings frame the issues for motions, “since it is those allegations to which the motion must respond. (Citation.)” (Scolinos v. Kolts (1995) 37 Cal. App. 4th 635, 640-641; FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 382-383; Jordan-Lyon Prods., LTD., v. Cineplex Odeon Corp. (1994) 29 Cal.App.4th 1459, 1472.) A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(1).) Plaintiff need not disprove all defenses, if the elements of a cause of action are made. (Oldcastle Precast, Inc. v. Lumbermens Mutual Casualty Co. (2009) 170 Cal.App.4th 554, 564; WRI Opportunity Loans II, LLC v. Cooper (2007) 154 Cal.App.4th 525, 532.) A defendant moving for summary judgment “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established.” (Code Civ. Proc., § 437c, subd. (p)(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inference that may be drawn form that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467; see also Code Civ. Proc., § 437c, subd. (c).) “An issue of fact can only be created by a conflict in the evidence. It is not created by speculation, conjecture, imagination or guesswork.” (Lyons v. Security Pacific National Bank (1995) 40 Cal.App.4th 1001, 1041 (citation omitted).)

The operative pleadings consist of the 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, and the 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.

The motion itself constitutes a series of conclusive arguments without any legal support for the use of admissions, issue or evidentiary sanction rules. The motion also lacks address of the individual elements of each and every cause of action in the complaint and cross-complaint, how the admissions and sanctions order preclude each and every cause of action, and how and which admission or discovery sanctioned item applies to each and every cause of action. Furthermore, Plaintiffs only seek summary judgment/summary adjudication on the conversion, “breach of contract,” breach of fiduciary duty, abuse of process, and breach of rental agreement in their complaint, which fails to identify all causes of action in the operative complaint. The motion only treats the cross-complaint as a single item ,without any address of the supbarts (e.g. each and every individual cause of action).

Matters that are admitted or deemed admitted through RFA discovery devices are conclusively established in the litigation and are not subject to being contested through contradictory evidence. (St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 775 accord Murillo v. Superior Court (2006) 143 Cal.App.4th 730, 736.) On August 8, 2022, the court granted the motion to deem admissions admitted. [Declaration of George Schwartz, Ex. A.] On May 3, 2023, the court granted Plaintiffs’ motion for issue and evidentiary sanctions on propounded form and special interrogatories and requests for production of documents. [Schwartz Dec., Ex. B.]

The 25 admissions establish an alleged forgery, false police report, the existence of a contract, the felony conviction of Defendant, transfer of funds without authorization, intimidation of Plaintiffs at their home, lack of payment to contractors, agreement for transfer of a trademark and failure to perform, failure to perform obligations in the partnership agreement, non-payment of rent on the residential rental agreement, admission of no “physical” injury caused by plaintiff Canning, admission to no embezzlement, admission of no fraud, admission of no negligence, admissions of receipt of all business records, admissions of a lack of medical damages, admission of a lack of documents in support of the vehicle replacement claim, and admission to the lack of any medically supported documents in support of the pain and suffering claim. While the court accepts the subject matter of the admissions, the court declines to make the arguments and determine whether and how the admissions apply to each and every challenged cause of action. The court additionally declines to determine whether the sanctioned discovery items actually establishes an inability of cross-complainant to prove the case, or whether Plaintiffs both prove their claims and establish the lack of any defense to each and every cause of action.

The court therefore denies the motion for summary adjudication on grounds that the motion itself insufficiently addresses each and every cause of action thereby preventing complete adjudication of a single or both pleadings. To the extent Plaintiffs fail to distinguish which causes of action apply to which argument, the court also declines to address the work of moving parties and therefore denies the motion for summary adjudication. The motion is also denied on grounds of untimeliness and failure to show good cause for the presentation of the motion within three weeks of trial.

Trial remains set for December 4, 2023.

Plaintiffs to provide notice.