Case Name: Serengeti Financial, LLC v. Wayne Borillo

Case No.: 18-CV-325214

Currently before the Court is the motion by defendant Wayne Borillo (“Defendant”) to compel plaintiff Serengeti Financial, LLC (“Plaintiff”) to provide further responses to requests for production of documents, set one (“RPD”), and for an award of monetary sanctions.

Factual and Procedural Background

This is a limited civil action for breach of contract and common counts. Defendant allegedly entered into a written agreement with CashCall, Inc. (“CashCall”) to borrow money. (Complaint, ¶¶ 6, 7, 11, & 20.) CashCall loaned Defendant the money in accordance with the parties’ agreement. (Ibid.) But Defendant defaulted on the loan on April 1, 2014, and failed to repay the money as agreed. (Id. at ¶¶ 6, 7, 11, & 14.) Plaintiff is a debt buyer and purchased the debt owed to CashCall. (Id. at ¶¶ 5, 10, 12, & 18.) The amount currently due and owing is $13,751.31. (Id. at ¶ 13.)

Based on the foregoing allegations, Plaintiff filed a complaint against Defendant, alleging causes of action for: (1) breach of contract; (2) account stated; and (3) open book account.

Subsequently, Defendant filed an answer to the complaint and a cross-complaint against Plaintiff.

Discovery Dispute

On October 2, 2018, Defendant served Plaintiff with the RPD via U.S. mail. (Salmosen Dec., ¶ 3, Ex. A.) Defendant did not receive any responses to the RPD and, consequently, filed a motion to compel Plaintiff to provide initial responses to the RPD. (Salmosen Dec., ¶ 4.) Plaintiff did not oppose the motion, which proceeded to hearing on February 28, 2019. According to the minute order from the hearing, the Court granted Defendant’s motion and ordered Plaintiff to provide Defendant with code-compliant responses to the RPD within 15 days.

On February 25, 2019, Plaintiff served Defendant with its initial responses to the RPD via U.S. mail. (Salmosen Dec., ¶ 5, Ex. C.)

Approximately one month later, Defendant’s counsel sent a meet and confer letter to Plaintiff’s counsel regarding Plaintiff’s responses to the RPD. (Salmosen Dec., ¶ 6, Ex. D.) Defendant’s counsel asserted that Plaintiff’s responses were deficient because they included objections, which had been waived, and the substantive responses provided were incomplete. (Ibid.) Defendant’s counsel asked that Plaintiff provide further responses to the RPD. (Ibid.)

Thereafter, counsel for the parties continued to meet and confer regarding Plaintiff’s discovery responses. (Salmosen Dec., ¶ 7.) As is relevant here, Plaintiff’s counsel agreed in writing that Plaintiff would to provide further responses to the RPD and a supplemental document production by April 26, 2019, and accordingly granted Defendant an extension of time to file a motion to compel further responses, if necessary, to May 31, 2019. (Id. at ¶ 7, Ex. E.)

Plaintiff did not provide further responses to the RPD or a supplemental document production. (Salmosen Dec., ¶ 8.)

Consequently, on June 11, 2019, Defendant filed the instant motion to compel Plaintiff to provide further responses to the RPD. Plaintiff filed papers in opposition to the motion on August 2, 2019. On August 8, 2019, Defendant filed a reply.

Discussion

Although neither party addresses this issue, as a threshold matter, the Court must determine whether the instant motion is timely.

A motion to compel further responses to requests for production of documents must be filed and served within 45 days of service of responses to the requests. (Code Civ. Proc., § 2031.310, subd. (c).) For responses served by mail within California, five calendar days are added to the time to notice the motion. (Code Civ. Proc., § 1013, subd. (a).) The 45-day deadline applies unless a supplemental response is served or the parties agree in writing to an extended deadline. (Code Civ. Proc., § 2031.310, subd. (c).)

The court lacks jurisdiction to rule on motions to compel further responses brought after the deadline provided by law. (Sexton v. Super. Ct. (Mullikin Med. Ctr.) (1997) 58 Cal.App.4th 1403, 1410 (Sexton); Vidal Sasoon, Inc. v. Super. Ct. (Halpern) (1983) 147 Cal.App.3d 681, 685.) While the 45-day limitation is not necessarily “jurisdictional” in the fundamental sense, it is at least “quasi-jurisdictional” in the sense that it renders the court without authority to rule on motions to compel other than to deny them. (Sexton, supra, 58 Cal.App.4th at p. 1410; see Sperber v. Robinson (1994) 26 Cal.App.4th 736, 745–746 [“The failure to make this motion within the specified period constitutes a waiver of any right to compel a further discovery response.”]; New Albertsons, Inc. v. Super. Ct. (2008) 168 Cal.App.4th 1403, 1427 [same].)

Here, Plaintiff served Defendant with its responses to the RPD via U.S. mail on February 25, 2019. (Salmosen Dec., ¶ 5, Ex. C.) Thereafter, counsel for the parties agreed in writing to extend Defendant’s deadline to file a noticed motion to compel further responses to the RPD to May 31, 2019. (Id. at ¶ 7, Ex. E.) However, Defendant did not filed the instant motion by that date. Instead, Defendant waited to file his motion until June 11, 2019. Because Defendant did not file and serve his notice of motion and moving papers by the agreed upon deadline, May 31, 2019, the instant motion is untimely on its face and the Court lacks jurisdiction to rule on the motion. (See Sexton, supra, 58 Cal.App.4th at p. 1410.)

Accordingly, Defendant’s motion is DENIED.