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Lee v. Reid

California Court of Appeals, Third District, El Dorado
Apr 13, 2009
No. C057765 (Cal. Ct. App. Apr. 13, 2009)

Opinion


DON H. LEE, Plaintiff and Appellant, v. DONALD REID et al., Defendants and Respondents. C057765 California Court of Appeal, Third District, El Dorado April 13, 2009

NOT TO BE PUBLISHED

Super. Ct. No. PC20020054

HULL, Acting P. J.

Plaintiff, Don H. Lee, in propria persona, appeals from a postjudgment order of the trial court denying as moot his motion to quash a subpoena duces tecum and further denying his motion for sanctions. Plaintiff contends the motion to quash was not moot and he is entitled to sanctions. We disagree and affirm the order.

Facts and Proceedings

Plaintiff brought the underlying action against defendant Swansboro Country Property Owners’ Association (Swansboro) and others, and Swansboro successfully moved to strike the complaint pursuant to Code of Civil Procedure section 425.16 (the anti-SLAPP statute). On December 12, 2003, the trial court awarded Swansboro attorney fees in the amount of $6,802.50.

On October 16, 2004, Swansboro served upon plaintiff an application and order for appearance and examination of judgment debtor to be held on November 8 along with a subpoena duces tecum. On November 1, plaintiff moved to quash the subpoena as overbroad. The trial court denied the motion to quash as untimely.

On May 29, 2007, in a published opinion, we concluded the motion to quash was not untimely and reversed. (Lee v. Swansboro Country Property Owners Assn. (2007) 151 Cal.App.4th 575.) We remanded for the trial court to reconsider plaintiff’s motion on the merits. (Id. at p. 584.) However, we also noted that, “if [Swansboro] wants to withdraw its subpoena, it may do so in the trial court, obviating the need for the trial court to address the merits of plaintiff’s motion in the remand we are ordering.” (Id. at p. 580.)

Following remand, plaintiff filed a supplemental memorandum in support of motion to quash in which he requested sanctions. At the hearing on the motion to quash, counsel for Swansboro represented to the court that the subpoena duces tecum had been withdrawn and that proof of such withdrawal would be provided to the court.

The trial court thereafter entered an order noting that the parties agreed the motion to quash was now moot and denying plaintiff’s request for sanctions, concluding the motion to quash had not been opposed in bad faith and that none of the requirements of the subpoena duces tecum were oppressive.

Discussion

Plaintiff contends the trial court erred in concluding the motion to quash was moot, because the subpoena “was in fact never withdrawn” and plaintiff was therefore forced to prepare for a hearing on the merits of his motion. Plaintiff points out the record on appeal “is devoid of any evidence of that withdrawal.”

In its minute order, the trial court stated: “At the hearing the parties agreed the issue of the motion to quash was now moot.” Plaintiff argues this is incorrect, because he never agreed the motion was moot.

This is belied by the record. At the hearing, counsel for Swansboro made the following response to a court question as to whether there is any reason the motion to quash should not be granted: “Well, yes, Your Honor, because the subpoena has been withdrawn. And if the Court does not have record of that, I’ll represent to you right now that we will get that on file again to confirm that it has, in fact, been withdrawn.” The trial court then noted that the issue is “somewhat moot” if the subpoena has been withdrawn and the “real issue” is whether plaintiff is entitled to sanctions.

When it became plaintiff’s turn to speak, he argued: “Your Honor, first of all, the entitlement to the relief was at the moment back in 2004 when the motion to quash was filed. I filed a supplemental memorandum which indicates that I should be entitled to an award of sanctions.” Plaintiff never refuted that the subpoena had been withdrawn and that his motion to quash was moot. Instead, plaintiff argued he is nevertheless entitled to sanctions. Therefore, the trial court did not err in noting the motion to quash was moot.

Plaintiff contends the trial court erred in denying his motion for sanctions. However, the sum total of his argument in this regard is a reference to his earlier argument regarding the overbreadth of the subpoena and the following statement: “Code of Civil Procedure Section 1987.2 prescribes that sanctions may be awarded in cases when the subpoena duces tecum is at least partially oppressive.” A point not argued or supported by citation to authority is forfeited. (Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.) A pro per litigant is held to the same procedural rules as everyone else. (Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113, 1125-1126.)

In any event, Code of Civil Procedure section 1987.2 authorizes an award of sanctions in making or opposing a motion to quash “if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.” (Code Civ. Proc., § 1987.2.) The trial court expressly found neither prerequisite for a discretionary award of sanctions had been met. Plaintiff raises no argument as to whether the trial court abused its discretion. To understand our ruling, it might be helpful for plaintiff to keep in mind that the question of the merits of defendant’s opposition to the motion to quash is one that is separate from the question whether that opposition was sanctionable. That is, had the original hearing gone forward, the trial court could have decided the motion to quash had merit, that the opposition to that motion did not, and then ordered the subpoena duces tecum quashed. But that order would not, of itself, have entitled plaintiff to sanctions. A request for sanctions requires an additional showing under Code of Civil Procedure section 1987.2 that the opposition was made in bad faith or without substantial justification or that the requirements of the subpoena were oppressive. The court’s minute order dated October 22, 2007, expressly considered the question whether the opposition was made in bad faith or that the requirements of the subpoena were oppressive. The trial court decided that defendant’s opposition to the motion to quash was not made in bad faith and that the requirements of the subpoena were not oppressive. As noted, plaintiff has not challenged those findings on appeal. We therefore find no error in denying plaintiff’s request for sanctions.

Disposition

The judgment (order) is affirmed. Swansboro is awarded its costs on appeal.

We concur: CANTIL-SAKAUYE, J. DAVIS, J.

Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.


Summaries of

Lee v. Reid

California Court of Appeals, Third District, El Dorado
Apr 13, 2009
No. C057765 (Cal. Ct. App. Apr. 13, 2009)
Case details for

Lee v. Reid

Case Details

Full title:DON H. LEE, Plaintiff and Appellant, v. DONALD REID et al., Defendants and…

Court:California Court of Appeals, Third District, El Dorado

Date published: Apr 13, 2009

Citations

No. C057765 (Cal. Ct. App. Apr. 13, 2009)