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Evilsizor v. Sweeney

California Court of Appeals, First District, First Division

October 28, 2014

KERI EVILSIZOR, Plaintiff,
v.
JOSEPH SWEENEY, Defendant and Respondent JOHN EVILSIZOR, Objector and Appellant.

Contra Costa County Superior Court No. MSD1301648. Honorable Barbara Hinton Trial Judge

Page 1305

[Copyrighted Material Omitted]

Page 1306

COUNSEL

Schenone & Peck and Ronald G. Peckand for Objector and Appellant.

Joseph Sweeney, in pro. per., for Defendant and Respondent.

OPINION

Humes, P.J.

Respondent Joseph Sweeney issued a subpoena for bank records in the course of divorce proceedings with his wife, Keri Evilsizor. The subpoena sought records from his wife’s accounts, but these records included financial information about her father. The father, appellant John Evilsizor, [1] moved to quash the subpoena, and Sweeney responded by agreeing to amend the subpoena to exclude information about John’s account activities. John thereafter withdrew his motion to quash. But he did so belatedly, and the trial court sanctioned him by ordering him to pay a portion of the attorney fees Sweeney incurred in responding to the motion. On appeal, John argues that the court lacked a legal or factual basis for the award. We affirm and hold that a trial court may impose sanctions under Code of Civil Procedure section 1987.2[2] against a litigant for pursuing a motion to quash that, even though legitimately filed, was rendered unnecessary by a subsequent amendment or withdrawal of the subpoena.

Page 1307

I.

Factual and Procedural Background

The proceedings to dissolve Sweeney and Keri’s marriage began in April 2013.[3] Judging by the register of actions, the litigation has been contentious, with disputes arising over child custody and spousal support, and the trial court deeming it to be a “high conflict” case.[4]

During discovery, Keri produced documents showing she had a bank account with, and a credit card issued by, JP Morgan Chase Bank, N.A. On August 9, Sweeney issued a subpoena to Chase seeking records of those two accounts. Unbeknownst to Sweeney, John had an interest in the accounts, and some of his financial information was contained in the records. John claimed to have learned of the subpoena three days before Chase was to produce the requested records, although how he learned of it is unclear.

According to Sweeney, John made no attempt to meet and confer to explore limiting the scope of the subpoena. Instead, John filed a motion to quash on September 5 arguing he had been given insufficient notice of the subpoena. A hearing date of October 2 was set.

Sweeney’s attorney apparently did not receive the motion to quash until September 9. The next day, the attorney wrote to John’s counsel stating the subpoena would be amended to exclude John’s private information. The letter demanded John drop his motion “immediately” and warned that if the motion was not withdrawn by September 16, Sweeney would seek “attorney fees and ...


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