Judge: Mark E. Windham, Case: 22STLC07165, Date: 2024-10-21 Tentative Ruling

Case Number: 22STLC07165    Hearing Date: October 21, 2024    Dept: 26

 Gomez v. Rodriguez, et al.

MOTION FOR ORDER TO SET OSC RE CONTEMPT

(CCP §§ 1209(a)(5), LASC Rule 3.11)

TENTATIVE RULING:

Plaintiff Nixon Gerardo Gomez’s Motion for Order to Show Cause Regarding Contempt is DENIED.

ANALYSIS:

On October 24, 2022, Plaintiff Nixon Gerardo Gomez (“Plaintiff”), in propria persona, filed the instant action for breach of contract, common counts, and fraud, against Defendant Maria Gabriela Rodriguez (“Defendant”). Defendant answered the Complaint, also in propria persona, on December 2, 2022. On January 24, 2024, Plaintiff filed a motion to compel discovery responses to plaintiff’s request for form interrogatories, set one, and requests for admission, set one. On April 4, 2024, the court granted Plaintiff’s motion for order compelling responses to form interrogatories, set one and request for admissions, set one. (Minute Order, 04/04/24, p. 5.) The court ordered Defendant to respond to Plaintiff’s form interrogatories within 20 days and to pay Plaintiff sanctions of $120 within 30 days. (Ibid.)

Plaintiff filed the instant Motion for Order to Show Cause Re: Contempt Against Defendant on August 7, 2024. No opposition has been filed to date.

Discussion

Plaintiff brings this motion to direct Defendant to show cause why she should not be held in contempt for failing to comply the April 4, 2024 court order. Contempt is any act, in or out of court, “which tends to impede, embarrass or obstruct the court in the discharge of its duties.” (In re Shortridge (1893) 99 Cal. 526, 532.) Contempt includes “[d]isobedience of any lawful judgment, order, or process of the court.” (Code Civ. Proc., § 1209 subd (a)(5).) A contempt proceeding is commenced by the filing of an affidavit showing (1) the rendition of a valid order; (2) respondent’s actual knowledge of the order; (3) respondent’s ability to comply with the order; and (4) respondent's willful disobedience of the order. (Code Civ. Proc., § 1211, 2nd para.) Each allegation (valid order, knowledge, ability to comply and willful disobedience) must be pleaded by factual statements; however the affidavit may be amended to correct technical insufficiencies if the respondent would not be prejudiced thereby. (Code Civ. Proc., § 1211.5(b).) Contempt includes “[d]isobedience of any lawful judgment, order, or process of the court.” (Code Civ. Proc., § 1209 subd. (a)(5).

Plaintiff does not provide an affidavit to commence a contempt proceeding. “An affidavit is a written declaration under oath, made without notice to the adverse party.” (Code Civ. Proc., § 2003.) Nor does Plaintiff provide an unsworn statement or declaration of the alleged facts certified or declared to be true under penalty of perjury as permitted by Code of Civil Procedure section 2015.5. Instead, Plaintiff simply provides unsworn argument that Defendant failed to comply with the April 4, 2024 court order. (Motion, p. 3.) “In the absence of a sufficient affidavit the entire proceeding is void ab initio [citations omitted]. (Palm Springs Alpine Estates, Inc. v. Superior Court for Los Angeles County (1967) 255 Cal.App.2d 883, 888.]

Conclusion

Therefore, Plaintiff Nixon Gerardo Gomez’s Motion for Order to Show Cause Regarding Contempt is DENIED.

Court clerk to give notice.