Sanctions Stick for Failure to Withdraw Moot Motion to Quash

Evilsizor v. Sweeney, No. A140059 (D1d1 Oct. 28, 2014)

Interesting discovery issue that comes up a lot. In a divorce case, husband subpoenaed some bank docs from wife. The docs, however, also contained private information about wife’s dad, who filed a motion to quash, without bothering to meet and confer. As soon as he found out, husband amended the subpoena to exclude dad’s info, and made various efforts to resolve any dispute.

But dad did not withdraw the motion to quash, and the husband was required to file an opposition, which sought sanctions under Code of Civil Procedure § 1987.2 for pursuing a substantially unjustified discovery motion. Dad then withdrew the motion before the hearing, which the trial court nonetheless held to address potential sanctions. The trial court ruled that, although the initial motion was not unjustified, husband went to lengths to address dad’s concerns and to avoid litigating the issue, but dad declined to resolve the issue after the subpoena was amended. It awarded a sanction of $2,225 against the father.

The court first addresses an issue of appealability.  Generally, under Code of Civil Procedure § 904.1, orders imposing sanctions of less than $5,000 are appealable under only upon final judgment.  The statute is ambiguous in that it addresses “parties,” but it isn’t clear whether it is directed to the parties to the action or the parties to the discovery motion. The court declines to resolve the issue and exercises its discretion—expressly afforded by § 904.1(b)—to take up the matter on a writ.

On the merits, § 1987.2, the quashal statute, permits the imposition of sanctions when a “motion was made” without substantial justification.  The court decides that “made” means not only when the motion was filed, but includes the time during which it was pursued. So by failing to withdraw the motion after it was no longer substantially justified, dad came within in the ambit of the court’s power to issue sanctions. Further, the trial court was within its rights to order attorneys’ fees, even though husband’s counsel was pretty quick to threaten sanctions and could have avoided the hearing and opposition just by informing the court that he had amended the subpoena to address the objections. Judging that was all within the sound discretion of the trial court and would not be second guessed on appeal.

Affirmed.