Judge Stephen P. Pfahler, Case 21CHCV00215 2023-05-03 Tentative Ruling

Judge: Stephen P. Pfahler, Case: 21CHCV00215, Date: 2023-05-03 Tentative Ruling

Case Number: 21CHCV00215 Hearing Date: May 3, 2023 Dept: F49

Dept. F-49

Date: 5-3-23

Case # 21CHCV00215

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

SANCTIONS

MOVING PARTY: Plaintiff, Ryan Canning

RESPONDING PARTY: 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.

RULING: Denied in Part/Granted in Part.

Plaintiff Ryan Canning moves for terminating sanctions, or in the alternative issue and evidentiary sanctions against defendant, Shawn Kerwin.

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

“Discovery sanctions ‘should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.’” (Young v. Rosenthal (1989) 212 Cal.App.3d 96, 118-119 citing Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793; Newland v. Superior Court (1995) 40 Cal.App.4th 608, 613.) A prerequisite to the imposition of the dismissal sanction is that the party has willfully failed to comply with a court order. (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280; Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 487 overruled on other grounds in Garcia v. McCutchen (1997) 16 Cal.4th 469, 478, fn. 4.); Young v. Rosenthal (1989) 212 Cal.App.3d 96, 114.) Preventing parties from presenting their cases on the merits is a drastic measure; terminating sanctions should only be ordered when there has been previous noncompliance with a rule or order and it appears a less severe sanction would not be effective. (Link v. Cater (1998) 60 Cal.App.4th 1315, 1326; Department of Forestry & Fire Protection v. Howell¿(2017) 18 Cal.App.5th 154, 191 [“Terminating sanctions are to be used sparingly because of the drastic effect of their application.”].) “The trial court may order a terminating sanction for discovery abuse ‘after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.’” (Los Defensores, Inc. v. Gomez¿(2014) 223 Cal.App.4th 377, 390.)

A prerequisite to the imposition of the dismissal sanction is that the party has willfully failed to comply with a court order. (Mileikowsky v. Tenet Healthsystem, supra, 128 Cal.App.4th at pp. 279-280; Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 487 overruled on other grounds in Garcia v. McCutchen (1997) 16 Cal.4th 469, 478, fn. 4.); Young v. Rosenthal (1989) 212 Cal.App.3d 96, 114.) “Discovery sanctions ‘should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.’” (Young v. Rosenthal (1989) 212 Cal.App.3d 96, 118-119 citing Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793; Newland v. Superior Court (1995) 40 Cal.App.4th 608, 613.) Preventing parties from presenting their cases on the merits is a drastic measure; terminating sanctions should only be ordered when there has been previous noncompliance with a rule or order and it appears a less severe sanction would not be effective. (Link v. Cater (1998) 60 Cal.App.4th 1315, 1326.)

Evidence or issue sanctions may be imposed only after parties violated discovery orders compelling further responses, except in exceptional circumstances, including where there was sufficiently egregious misconduct regarding a failure to respond to discovery, or a prior discovery order would be futile. (New Albertsons, Inc. v. Sup. Ct. (2008) 168 Cal.App.4th 1403, 1428.) To avoid sanctions, the burden of proving that a discovery violation was not willful is on the party on whom the discovery was served. (Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250, 252- 253.)

On August 8, 2022, the court granted motions compelling responses to Form Interrogatories, Special Interrogatories, and Request for Production of Documents. On November 10, 2022, the court granted Plaintiff’s motion to compel verified responses to Form Interrogatories. Plaintiff maintains that no responses were provided or the responses failed to comply with either order. [Declaration of George Schwartz.] In reviewing the motion, the court only addresses the subject dispute, and declines to consider the statements regarding the prior conviction of Kerwin or other questions regarding credibility.

The declaration of Schwartz supports a finding of a violation of the orders, but the court finds the imposition of terminating sanctions in the form of striking the answer of Kerwin and entering a default overly harsh and inequitable. Kerwin appears to actually demonstrate an effort to litigate the action. While the court expects a party in pro per to conduct themselves in accordance with known rules, the court generally reserves terminating sanctions where intentional conduct or abandonment of the action is shown. The court finds neither standard applies in this situation. Nevertheless, the continued improper responses supports a finding for evidentiary and issue sanctions.

The court therefore denies the motion for terminating sanctions, but grants the motion for issue and evidentiary sanctions. Defendant will be precluded from presenting certain evidence and arguments on issues precluded from the incomplete discovery responses, which will be determined at the time of trial. The court declines to impose further monetary sanctions given Kerwin was recently released from incarceration, and presumably continues to recover from time outside the labor market as well as continuing impacts caused from the prior conviction.

Trial remains set for December 4, 2023.

Plaintiff to provide notice.