Portfolio Recovery Associates vs. Robert Rice

2012-00122790-CL-CL

Portfolio Recovery Associates vs. Robert Rice

Nature of Proceeding:      Motion for Terminating Sanctions

Filed By:    Rundquist, Andrew

Plaintiff Portfolio Recovery Associates, LLC’s unopposed motion for terminating
sanctions, or in the alternative, to “further compel response to discovery” is ruled upon              as follows.

On December 21, 2012, this Court granted Plaintiff’s motion to compel Defendant
Robert Rice to provide verified responses to Plaintiff’s special interrogatories, and
requests for production.  Defendant has yet to comply with that order.  In addition, the
Court also granted Plaintiff’s motion for an order that its requests for admissions be
deemed admitted unless responses were served prior to the hearing.

Plaintiff now seeks a terminating sanction in the form of a default judgment.
Defendant’s failure to respond to discovery and failure to comply with the Court’s order
constitutes misuse of the discovery process.  (CCP §2023.010(d),(g).)  In ordering
sanctions, the Court has broad discretion in the selection of the appropriate sanction to
be applied under the factual circumstances.  (Doppes v. Bentley Motors, Inc. 174
Cal.App.4th 967, 991-992.)  Indeed a discovery sanction cannot place the propounding
party in a better position than they would have been in if they had received the
requested discovery.  (Puritan Insurance Co. v. Superior Court (1985) 171 Cal.App.3d
877, 884.)  Here, Defendant fails to provide any evidence of the discovery to which
Defendant failed to respond.  Counsel simply states in the moving papers that the
discovery “targets each of the elements in the plaintiff’s cause of action and any
defenses raised by the defendant in the defendant’s answer.”  Arguments of counsel
are not evidence.  (Porterville Citizens for Responsible Hillside Development v. City of
th
Porterville (2007) 157 Cal.App.4   885, 895, fn. 9. [“It is axiomatic that arguments of
counsel are not evidence”].)  The Court is unable to determine that a terminating
sanction in the form of the requested default judgment would not result in Plaintiff
obtaining greater relief from this motion than it would have obtained had Defendant
responded to the discovery.  Thus, a terminating sanction could result in an improper
windfall to Plaintiff and the motion for terminating sanctions is denied.

The alternate request for an order further compelling responses is granted.  Defendant
shall serve verified responses, without objection, to Plaintiff’s first sets of special
interrogatories and document requests no later than December 30, 2013.  Defendant’s
failure to provide responses pursuant to this additional order could indicate an
abandonment of his defense and subject him to more severe sanctions.

This minute order is effective immediately.  No formal order pursuant to CRC rule
3.1312 or other notice is required.

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