Case Number: BC549772 Hearing Date: June 14, 2018 Dept: 47

Roscoe BK Restaurant, Inc., et al. v. Glenn A. Murphy, Esq., formerly known as Aaron G. Stites, dba Litigation & Advocacy Group, formerly known as Stites Law Firm

(1) MOTION FOR ISSUE AND EVIDENCE SANCTIONS; REQUEST FOR MONETARY SANCTIONS;

(2) APPLICATION TO FIX DATE AND TIME FOR INSPECTION OF DOCUMENTS

MOVING PARTY: (1) Defendant Glenn Murphy;

(2) Plaintiff Roscoe BK Restaurant, Inc. and Dale Ma

RESPONDING PARTY(S): (1) Plaintiff Roscoe BK Restaurant, Inc. and Dale Ma;

(2) No opposition filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiffs allege that Defendant attorney Glenn Murphy committed malicious prosecution by targeting Plaintiffs in three substantially identical, frivolous disability and race discrimination lawsuits against Plaintiffs.

Defendant Glenn Murphy moves for issue, evidence and/or monetary sanctions.

Plaintiff applies for an order fixing date and time for inspection and copying of documents responsive to Defendant’s first set of requests for production.

TENTATIVE RULING:

Defendant Glenn Murphy’s motion for issue, evidence and/or monetary sanctions is DENIED.

Plaintiffs Roscoe BK Restaurant, Inc. and Dale Ma’s application for an order fixing a date for Defendant to inspect and copy the original files responsive to Defendant’s first set of requests for production of documents is DENIED.

DISCUSSION:

Motion For Issue and Evidence Sanctions; Request For Monetary Sanctions

Defendant Glenn Murphy moves for issue, evidence and/or monetary sanctions on the ground that Plaintiff violated this Court’s October 27, 2017 order granting Defendant’s motion to compel. Defendant seeks the imposition of issue and evidence sanctions as set forth at Pages 2 – 4 of the notice of motion.

The court has the authority to impose sanctions against a party that engages in the misuse of the discovery process. CCP § 2023.030. This includes failing to respond to an authorized method of discovery and disobeying a court order to provide discovery. CCP §§ 2023.010 (d) and (g). A party engaging in such conduct may be subject to monetary, issue and/or evidentiary, and terminating sanctions. CCP §§ 2023.030(a), (b) (c) and (d).

Where a party fails to obey an order compelling responses, “ the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction . . . In lieu of or in addition to that sanction, the court may impose a monetary sanction. . . .” CCP § 2030.290(c); § 2031.300(c).

“[T]he question before this court is not whether the trial court should have imposed a lesser sanction; rather, the question is whether the trial court abused its discretion by imposing the sanction it chose. [Citation.] Moreover, imposition of a lesser sanction would have permitted [defendants] to benefit from their stalling tactics. [Citation.] The trial court did not abuse its discretion by tailoring the sanction to the particular abuse. [Citation.]” (Id. at pp. 36-37.)

Collisson, supra, 21 Cal.App.4th at 1620.

The separate statement reflects that the gist of Defendant’s motion is that Plaintiff’s responses are not “code compliant,” as previously ordered by this Court. The court agrees that the supplemental or amended responses are not technically 100% code compliant. However, these responses simply do not rise to the level of “willful” disobedience of this court’s order in this regard. It is clear to this court that the plaintiff is attempting, in good faith, to provide proper responses and to produce all required documents. Be that as it may, this Court agrees that these recent responses must be clearer to state that “all” documents in the demanded category have (or will be) produced, and that no documents are being withheld based upon any objections.

Also, as Defendant’s own separate statement recognizes, if a party fails to produce documents in compliance with a response, CCP § 2031.320 provides for a motion to compel compliance. Although Plaintiff did not provide any responses to certain demands for production[1]—despite this Court’s October 27, 2017 order compelling further responses, this Court is not inclined to hand Defendant a shortcut to victory by virtue of the requested issue and evidence sanctions.[2] The motion for issue and evidence sanction is DENIED. Likewise, Defendant’s request for monetary sanction is also DENIED.

Application for Order Fixing Date and Time For Inspection and Copying of Documents Responsive To Requests For Production

Plaintiffs move for an order fixing a date for Defendant to inspect and copy the original files responsive to Defendant’s first set of requests for production of documents.

The motion is DENIED. There is no provision in the Code of Civil Procedure for such an order. Quiet simply, if Defendant does not want to make the effort to coordinate the inspection of the documents he seeks, the Court will not punish or sanction Plaintiffs if Defendant brings a motion seeking to do so. It is in Defendant’s best interest to work with Plaintiffs to facilitate the document inspection.

Plaintiffs to give notice, unless waived.

IT IS SO ORDERED.

Dated: June 14, 2018 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.

[1] Demands Nos. 6, 22.

[2] Indeed, it appears that most (if not all) of the documents being requested are contained in public court files, all of which should already be in the possession of the Defendant, since he was the attorney who prosecuted those cases.