How Soon Should You Withdraw a Motion That Becomes Moot?

Michele Trausch
November 3, 2014

In Evilsizor v. Sweeney (14 C.D.O.S. 12327), the answer was ASAP!

In a contentious dissolution proceeding, a husband sought documents by subpoena from his wife’s bank account, not knowing that his wife’s father’s financial information was contained in the records sought.

The wife’s father, instead of contacting her husband’s lawyer or the bank, moved to quash the subpoena. The husband’s lawyer responded by agreeing to amend the subpoena which he did on September 12, 2014.

But the father did not take his motion off calendar, despite correspondence between counsel. On September 19, 2014, the husband filed a response, demanding fees for having to respond at all in light of his amended subpoena.

The hearing went forward on October 2, 2014 and the father was ordered to pay attorneys’ fees. The motion to quash was not filed in bad faith but should have been withdrawn given the husband’s correction once he became aware of the father’s information being contained in the documents.

While not an appealable order, the appellate court granted review in part on the basis that the father was not a party to the litigation. The Court of Appeal held that the delay in withdrawing the motion (approximately 20 days) was “without substantial justification” under CCP 1987.2(a) and therefore sanctions in the form of attorneys’ fees were justified.

Lesson learned: The appellate court noted that this is a good example of how attorneys could have avoided this dispute and the resulting fees. For example, the husband’s attorney could have simply informed the trial court that he had amended the subpoena rather than filing a detailed opposition and the father’s attorney could have avoided the expenditure of unnecessary fees by dropping his motion once the amended subpoena was issued. We can safely assume that both sides spent far in excess of the relatively minimal sanctions awarded at the trial court level in litigating this through appeal.