Ortiz v. Cervantes, et al.

(34) Tentative Ruling

Re: Ortiz v. Cervantes, et al. Superior Court Case No. 24CECG02055

Hearing Date: August 20, 2026 (Dept. 501)

Motion: Motion for Order to Show Cause re Contempt

Tentative Ruling:

To deny, without prejudice.

Explanation:

Plaintiff moves for the issuance of an order to show cause why defendant Fernando Lugo Cervantes should not be held in contempt for failure to comply with the court’s January 21, 2026 order that he serve further responses to specified requests for production of documents and special interrogatories.

When contempt is not committed in the immediate view and presence of the court, the facts constituting the contempt shall be presented to the court in an affidavit. (Code Civ. Proc., § 1211, subd. (a).) After notice to the opposing party, the court (if satisfied with the sufficiency of the affidavit) must sign an order to show cause re contempt in which the date and time for a hearing are set forth. (Code Civ. Proc., § 1212; Arthur v. Superior Court (1965) 62 Cal.2d 404, 408 ["an order to show cause must be issued"].)

Indirect contempt (based on conduct outside the presence of the court) requires a showing of the following elements: (1) issuance of a valid order; (2) knowledge of the order; (3) ability to comply with the order; and (4) willful disobedience of the order. (Conn. v. Superior Court (196 Cal.App.3d 774, 784.)

A contempt proceeding is commenced by the filing of an affidavit showing the facts constituting contempt. (Code Civ. Proc., § 1211, subd. (a).) The affidavit frames the issues to be tried. (Reliable Enterprises, Inc. v. Superior Court (1984) 158 Cal.App.3d 604, 616, disapproved on other grounds by Mitchell v. Superior Court (1989) 49 Cal.3d 1230, 1248, fn. 13.) The filing of a sufficient affidavit is a “jurisdictional prerequisite” to a contempt proceeding and without one, any contempt order is void. (In re Koehler (2010) 181 Cal.App.4th 1153, 1169.) The court may permit amendment of the affidavit for any insufficiency at any stage of the proceedings. (Code Civ. Proc., § 1211.5, subd. (b).)

Here, the papers and declaration filed by plaintiff show that the court granted plaintiff’s motion to compel defendant Cervantes’ further responses to request for production, set one, nos. 4-8, 10-12, 15, and 17-23 and special interrogatories, set one, nos. 1-3 and 7, ordered further responses to be served within 30 days, and no further responses were served as ordered. (Bolce Decl., ¶¶ 2, 4, Ex. A.) The declaration additionally includes that the court served notice of its order on all parties by mail. (Id., ¶ 6

3, Ex. B.) The declaration does not address defendant Cervantes’ ability to comply with the order.1 As the declaration does not address all elements of indirect contempt, amendment would be necessary in order for an order to show cause to issue.

However, the court is not inclined to utilize contempt proceedings for gardenvariety discovery violations. “The sanctions the court may impose are such as are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks but the court may not impose sanctions which are designed not to accomplish the objects of the discovery but to impose punishment. [Citations.]” (Caryl Richards, Inc. v. Superior Court (1961) 188 Cal.App.2d 300, 304.) Further, in the context of the imposition of jail time for failure to provide discovery responses as ordered, “[l]esser sanctions, such as the striking of pleadings, imposition of monetary fines, even dismissal of causes of action or defenses, are more plentiful in the precedent” and such Draconian sanctions should be reserved for only the most flagrant abuses. (In re de la Parra (1986) 184 Cal.App.3d 139, 144.)

Accordingly, the motion for an order issuing order to show cause why defendant Cervantes should not be held in contempt is denied.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: KCK on 08/17/26. (Judge’s initials) (Date)

1 The court notes that the underlying discovery at issue was served on defendant’s previous

attorney, responses were signed by defendant’s previous attorney, and no verifications signed by defendant were included in the evidence with the January 21, 2026 motion. Under these circumstances it is questionable whether defendant has the ability to comply with the order and whether the failure to comply was willful. 7