Family Law And Discovery: $9,000 Joint/Several Sanctions Award Against Ex-Wife and Her Attorney Reversed On Appeal

Fourth District, Division 2 Finds Substantial Justification for Motion to Quash Subpoenas

     Code of Civil Procedure section 1987.2 provides for an award of reasonable expenses and attorney’s fees to a party making or opposing a motion to quash a subpoena if his/her actions were made in bad faith or undertaken without substantial justification. Usually, the “substantial justification” part of the equation is key because it is very rare to have sufficient proof of bad faith.

     In Marriage of Nelson, Case No. E048975 (4^th Dist., Div. 2 Aug. 30, 2010) (unpublished), ex-wife and her attorney were jointly and severally sanctioned $9,000 by the lower court for bringing certain motions to quash subpoenas addressed to institutions holding the divorced parties’ accounts, motions which followed earlier rulings by which wife was ordered to reimburse $53,034 in community property funds used to fight a Marvin v. Marvin oral contract battle against husband (notwithstanding the absence of any fee shifting mechanism to reallocate fees).

Lee Marvin in Cat Ballou

     The appellate court reversed the $9,000 in subpoena sanctions because it found there was “substantial justification” in bringing the motions to quash. Specifically, the subpoenas were untimely and issued after the applicable discovery cutoff. Given the correctness of this timeliness challenge, it was error to assess sanctions against ex-wife and her attorney.