DEMURRER TO COMPLAINT
Defendant has failed to respond to discovery and disobeyed a court order. Therefore, Defendant’s conduct is sanctionable.
Nonmonetary Sanctions Defendant’s conduct warrants nonmonetary sanctions. Defendant has not responded to either the Motion to Compel or this Motion. Monetary sanctions failed to compel any action from Defendant; thus, nonmonetary sanctions are appropriate. Terminating sanctions are appropriate when the “violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules.” (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279.) “[A]bsent unusual circumstances, such as repeated and egregious discovery abuses, two facts are generally prerequisite to the imposition of a nonmonetary sanction. There must be a failure to comply with a court order and the failure must be willful.” (Lee v. Lee (2009) 179 Cal.App.4th 1553, 1559.)
Defendant was served with the notice of ruling by mail and email on October 14, 2025. (ROA 31.) Thus, Defendant knew of the order and failed to comply. Thus, its failure to comply with this Court’s order is willful. Additionally, Defendant has not opposed this Motion seeking terminating sanctions. Thus, if the threat of terminating sanctions being imposed and a prior court order did not compel Defendant to participate in the action, less severe sanctions would not compel compliance. Therefore, terminating sanctions are appropriate. Accordingly, the Defendant’s Answer is stricken and default is entered against Defendant.
Monetary Sanctions “[S]anctions may not be imposed solely to punish the offending party.” [Kwan Software Engineering, Inc. v. Hennings (2020) 58 Cal.App.5th 57, 75.) Imposing additional monetary sanctions would solely punish Defendant because previous monetary sanctions were insufficient to compel compliance. Thus, Plaintiff’s request for monetary sanctions is denied. Plaintiff to give notice.
10. AYERS VS. BMW OF NORTH AMERICA, LLC 2025-01510262 DEMURRER TO COMPLAINT
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The hearing on the Demurrer to the Complaint brought by Defendant BMW of North America (ROA No. 15) is VACATED.
The Court previously continued this demurrer and ordered compliance with Code of Civil Procedure section 430.41. (ROA No. 19.) Defendant was served this order by email, on April 21, 2026. (ROA No. 54.) Pursuant to this prior order, a declaration establishing compliance with Code of Civil Procedure section 430.41 was due to be filed by Defendant no later than May 12, 2026; however, no compliance has been shown.
As previously indicated, the Court will not turn to the merits of the demurrer until strict compliance with Code of Civil Procedure section 430.41 is shown. Upon such a showing, Defendant may seek to have this matter reset.
11. TORRES VS. CITY OF HUNTINGTON BEACH 2023-01334230 MOTION FOR SUMMARY JUDGMENT AND/OR ADJUDICATION
Regarding Defendant Malco Maintenance’s Motion for Summary Judgment on the City of Huntington Beach’s Cross-Complaint, the Court entered an order approving the good-faith settlement between Plaintiff and moving party on 5/15/26.
Movant’s counsel shall appear at the hearing to state whether the motion should remain on the Court’s calendar in light of the approval of the good-faith settlement. If Movant is maintaining the motion, the Court will continue the hearing to allow moving Defendant and Cross- Complainant City to file supplemental briefs addressing the effect of the good faith settlement on the City’s Cross-Complaint.