1 Filed 10/28/14 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

KERI EVILSIZOR, Plaintiff,

v. JOSEPH SWEENEY, Defendant and Respondent; JOHN EVILSIZOR, Objector and Appellant. A140059
(Contra Costa County Super. Ct. No. MSD1301648)

Respondent Joseph Sweeney i ssued a subpoena for bank re cords in the course of divorce proceedings with his wife, Keri Evils izor. The subpoena so ught records from his wife’s accounts, but these records included fi nancial information about her father. The father, appellant John Evilsizor, 1 moved to quash the subpoe na, and Sweeney responded by agreeing to amend the subpoena to ex clude information about John’s account
activities. John thereafter withdr ew his motion to quash. But he did so belatedly, and the trial court sanctioned him by or dering him to pay a portion of the attorney fees Sweeney incurred in responding to the motion. On appe al, 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.

1 To avoid confusion between appellant and his daughter, who share the same surname, we will refer to them by their first names.
2 All statutory references are to the Code of Civil Procedure unless otherwise specified.2 I. F ACTUAL AND P ROCEDURAL B ACKGROUND The proceedings to dissolve Sweeney and Keri’s marriage began in April 2013. 3 Judging by the register of actions, the litig ation has been contentious, with disputes arising over child custody and spousal suppor t, and the trial court deeming it to be a “high conflict” case. 4 During discovery, Keri produced docu ments showing she had a bank account with, and a credit card issued by , JP Morgan Chase Bank. On August 9, Sweeney issued a subpoena to Chase seeking records of th ose two accounts. Unbeknownst to Sweeney, John had an interest in the accounts, and so me of his financial information was contained
in the records. John claime d to have learned of the subp oena three days before Chase was to produce the requested records, alt hough how he learned of it is unclear. According to Sweeney, John made no a ttempt 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 noti ce of the subpoena. A hearing date of
October 2 was set. Sweeney’s attorney appa rently did not receive the motion to quash until September 9. The next day, the attorney wr ote to John’s counsel stating the subpoena
would be amended to exclude John’s private information. The letter demanded John to drop his motion “immediately ” and warned that if the motion was not withdrawn by September 16, Sweeney would seek “attorney fees and Sanctions . . . for the unnecessary time spent in resolvi ng this dispute withou t court intervention.” An amended subpoena was issued to Chas e on September 12. It sought records
related to the same accounts as the first subpoena, except it requested Chase to “exclude any deposits for sums paya ble or disbursements to/b y John Evilsizor” on the bank

3 All date references are to the 2013 calendar year unless otherwise specified.
4 Also pending before this court are Swee ney’s appeal of a May 6, 2014 domesticviolence restraining order against him (No. A142396) and Keri’s appeal of a separate order (No. A143054).3 account and to “exclude any charges made by Jo hn Evilsizor” on the credit-card account. John’s attorney was se rved by mail with the amended subp oena on September 12. John’s attorney wrote to Sweeney ’s attorney that same day. A lthough a copy of the letter is not in the appellate record, a response from Swee ney’s attorney dated September 16 is. The response states Sweeney would seek sanctions for unnecessarily having to respond to the motion if John’s motion to quash was not dropped “forthwith.” It also states: “Please be advised that the original subpoena has be en withdrawn. A one[-]minute phone call from your secretary to my Legal Assistant would have informed you of that event and saved your client the cost of the two page letter [of September 12]. Enclosed is our Amended Subpoena Deuces Tecum.” The parties characterize the timing of the correspondence up to this point differently. Sweeney points to the letter his attorney wrote on September 10 as showing he promptly tried to address the concerns ra ised in John’s motion to quash. John points to the September 16 letter as s howing this was the earliest notice he had that the first subpoena had been withdrawn. In any event, Sweeney atte sted below that John’s a ttorney wrote to Sweeney’s attorney on September 17. According to Sw eeney’s declaration, in that letter John’s attorney “acknowledged receipt of the Amended Subpoena bu t refused to drop John’s motion unless the Amended Subpoena was withdrawn .” (Original italics.) Again, however, no such letter appears in the reco rd. Sweeney’s attorney wrote to John’s attorney on September 18 in res ponse to a letter sent “earlier” that same day (i.e., not on September 17). This letter warned that if J ohn did not “articulate a legal basis to proceed with a Motion to Quash after I have withdraw n the original subpoena and am proceeding under the Amended Subpoe na, I will file a Response and se ek attorney fees and sanctions per the Code.” Sweeney’s attorney asked fo r a response “before the end of business since my Response is due tomorrow” (i.e., on September 19). On September 19, Sweeney filed a response to the motion to quas h. In doing so, he focused solely on his demand for attorney fees incurred in responding to John’s motion, without citing a statutory basis for such an award. He sough t $4,450 for 10 hours4 of legal work, and his attorney submitted a d eclaration setting forth his hourly rate and listing the tasks he performed responding to the mo tion to quash. Sweeney also filed a declaration describing the commu nication between the parties. The law office representing John c ontacted the trial court on Friday, September 27, stating John withdrew his moti on to quash. Sweeney’s counsel wrote to the trial court that same day requesting that the scheduled hearing set for the following Wednesday, October 2, go forward to decide whether John should pay attorney fees
under section 1987.2. John’s attorney then wrote another le tter that same day asking the
trial court to take the motion off calendar because the original subpoena had been withdrawn, and John would likely need to a ddress the amended subpoena in a separate motion to quash. The October 2 hearing was not taken off calendar. At the hearing, the parties focused solely on whether Sweeney was entitled to attorney fees. His attorney argued that Sweeney was entitled to fees as the pr evailing party “as required by the code.” John’s attorney ar gued that although section 1987.2 perm its an award of attorney fees in responding to a motion to quash where such a motion is made in bad faith or without justification, that was not the case here be cause John sought in good faith to protect the disclosure of his private financial records. The attorney also explained that it “took
awhile” to confirm with Chas e that the bank would not produce the requested records because counsel was unfamiliar with the proce ss, but he pointed out that John withdrew the motion to quash as soon as he conf irmed the bank would not produce records. The trial court agreed with John that “t he actual initial Motion to Quash does not
seem to have been in bad faith.” The c ourt was concerned, however, that there were “some issues . . . regarding the absolute n eed to even get to th e point where further attorneys’ fees were incurred for something that it just simp ly did not have to happen.” John’s attorney argu ed that an award of attorney fees under section 1987.2 is discretionary and that the original motion to qu ash was justified. He explained he did not
receive confirmation that Chase would no t produce John’s financial information until after Sweeney filed his response to the motion to quash. And he stated the parties likely5 could resolve issues related to the amende d subpoena without the necessity of another motion to quash now that he knew more about the in formation sought. Following further argument, the trial c ourt ordered John to pa y Sweeney $2,225 in attorney fees, half of what had been requested. 5 The court reiterated its belief that John’s original motion to quash was not filed in ba d faith, but it found that Sweeney’s attorney “seemed to have gone to great lengths, basical ly, to try to avoid, number one, having to have this hearing, and number two, trying to address any concerns” about the underlying subpoena. The court focused on the timing, noting that John did not withdraw his motion until September 27 “after an interchange of correspondence that, I believe, began on September 10.” The court’s written order, which was prepar ed by Sweeney’s atto rney, states that John’s motion to quash was withdrawn and d eemed moot, but that John shall pay $2,225 in attorney fees to Sweeney within 10 days. The order does not cite any statutory basis
for the award. The order states the orde r is against “non-party John Evilsizor.” According to the register of actions, John was added as a party to the case on
November 18.

5 John does not argue on appeal that the amount of the award was improper.6 II. D ISCUSSION
A. We Exercise Our Discretion to Consider John’s Appeal. Sweeney argues this court lacks juri sdiction because John appealed from a nonappealable order. Section 90 4.1, subdivision (a)(11) provides that an appeal may be taken from “an interlocutory judgment dir ecting payment of monetary sanctions by a party or an attorney for a party if the amount exceeds five thousand dollars ($5,000).” (Italics added.) For sanctions orders of $5,0 00 or less against a party or an attorney for the party, section 904.1, subdivision (b) provid es that such orders “may be reviewed on an appeal by that party after entry of final judgment in the main action.” (Italics added.) Sweeney argues John must wait to appeal until after entry of a final judgment because he is currently a part y to the action and the sanctions award was for less than $5,000 (§ 904.1, subd. (b)), whereas John ar gues the statute does not apply to him because he was not a party at the time he wa s sanctioned. Even though John was not a party at the time sanctions were ordered, the term “that party” in section 904.1, subdivision (b) generall y refers to the party against whom sanctions were imposed , and not necessarily the party to the underlying action. ( Imuta v. Nakano (1991) 233 Cal.App.3d 1570, 1585-1586 [attorney has separate right of appeal of sanctions order under § 1987.2 even though counsel is not officially a party to underlying proceedings].) This suggests the order was not appealable regardless whether John was a party at the
time it was entered.
But we need not resolve whether the sanctions order was appealable because section 904.1, subdivision (b) grants this c ourt discretion to review a sanctions order of less than $5,000 by extr aordinary writ. “[T]he interests of justice . . . warrant resolving this fully briefed appeal—whi ch [Sweeney] did not earlier move to dismiss—by treating it as a petition for extraordinary writ, as pe rmitted by” section 904 .1, subdivision (b). ( Eichenbaum v. Alon (2003) 106 Cal.App.4th 967, 974. ) We exercise our discretion under this authority to re view the sanctions order.7 B. The Trial Court Permissibly Awarded Sa nctions Based on John’s Failure to Withdraw the Motion to Quash. John argues that the award was unauthor ized under section 19 87.2, subdivision (a) because Sweeney did not prev ail on the underlying motion to quash. We are not persuaded. The statute provides that in making an order on a motion to qu ash, “the court may
in its discretion award the amount of the r easonable expenses incurred in . . . opposing the motion, including reasonable attorney’s fees, if the court finds the motion was
made . . . in bad faith or without substantial justification. . . .” The phrase “motion was made” is not defined in section 1987.2, but in general a motion is “deemed to have been made and to be pending before the court for all purposes, upon the due service and filing of the notice of motion.” (§ 1005.5, italics added; see also People v. Dianda (1986) 178 Cal.App.3d 174, 177 [motion is “ ‘made’ at the time of service and filing of the
motion ”], italics added.) But the filing of the motion to quash was not the problem here. The trial court agreed with Jo hn that the motion did not appear to have been filed in bad faith. And Sweeney apparently has never argue d that the motion, as originally filed, lacked substantial justification, as he agreed to amend the subpoena in response to it. By faulting John for not withdrawing the motion sooner, the trial court implicitly found that the statutory reference to when the “motion was made” may be interpreted broadly. We agree and conclude that pursuing a pending motion to quash after it becomes clear that it is unjustified may be considered “making” a motion under section 1987.2, subdivision (a). Such a conc lusion is consistent with section 1005.5, which provides that once a motion is made it is considered “pending before the court for all purposes.” We therefore reject John’s ar gument that the trial court lacked legal authority to award fees under section 1987.2 because the original filing was not in bad faith or without substantial justification.8 C. The Trial Court Did Not Abuse Its Disc retion in Awarding Attorney Fees.
We therefore turn to consider whethe r the delay in withdrawing the motion was
done “in bad faith or without substantial justification” (§ 1987.2, subd. (a), italics added), a question we review for an abuse of discretion. ( In re Marriage of Zimmerman (2010) 183 Cal.App.4th 900, 914.) “ ‘A court’s de cision to impose a particular sanction is “subject to reversal only for manifest abus e exceeding the bounds of reason.” ’ ” ( Doe v. United States Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1435.) We find no manifest abuse in the trial court’s ruling.
We first conclude that the record does not support a finding of bad faith. An
award for sanctions based on ba d faith generally requires a subjective element of bad faith. ( Abbett Electric Corp. v. Sullwold (1987) 193 Cal.App.3d 7 08, 711-712 [sanctions under § 128.5].) John’s attorn ey explained he had wanted to confirm with Chase that it would not produce his financial records before he withdrew his motion. Even if, as Sweeney contends on appeal, this was objectively unreasonable, 6 there is insufficient
evidence in the r ecord to support a finding of subjective bad faith.

6 Sweeney claims that there was no chance the bank would produce records after John filed his motion. (See § 1985.3 , subd. (g) [where a consumer has filed a motion to quash a subpoena, “[n]o witness or deposition offi cer shall be required to produce personal records after receipt of notice that the motion has been brought,” exce pt upon order of the court].)9 But the record does support the trial c ourt’s finding that the delay was “without substantial justification. ” (§ 1987.2, subd. (a).) 7 “Substantial justific ation” means “that a justification is clearly reasonable because it is well grounded in both law and fact.” ( Doe v. United States Swimming, Inc.
, supra , 200 Cal.App.4th at p. 1434.) “[W]hen an appeal is processed on a standa rd of abuse of discretion, th e party aggrieved must be put
on notice of the acts for which it was sanctioned in order to mount an effective review. Failure to delineate the ground s for exercise of discretion precludes meaningful review, a denial of due process.” ( First City Properties, Inc. v. MacAdam
, supra , 49 Cal.App.4th at p. 516 [§ 1987.2 requires order giving ri se to imposition of sanctions to state with particularity the basis for findi ng a violation of the statute].) “The trial court must set
forth the factual basis for the award either in a formal order, a minute order, or in the reporter’s transcript of the hearing on the motion.” ( Boyle v. City of Redondo Beach (1999) 70 Cal.App.4th 1109, 1120-1121 [awa rd of attorney fees under Gov. Code, § 54960.5].) At the hearing, the trial court explained in detail the basis for the award: “In this particular situation, the timing of everything [is] extremely important. As I’ve indicated, while the original Moti on to Quash was not, I believe, do ne in bad faith, the subsequent actions taken when [Sweeney’s attorney] made it very clear that he was attempting to cure this issue, having no previous knowle dge that [John] was even these—were on these bank accounts, he seemed to have gone to grea t lengths, basically, to try to avoid, number

7 We reject both parties’ sugge stion that it is unclear whether the trial court relied on section 1987.2 because the written order does not specify st atutory grounds for the award. When Sweeney’s counsel wrote to the trial court on Septem ber 27 asking to keep the motion to quash on calendar, he stated he woul d seek attorney fees under section 1987.2. And John’s counsel acknowledged at the heari ng the request for attorney fees was made under that statute; he simply argued it di d not apply because th e motion was made in good faith. The trial court then referred to the statute’s bad-faith element. Because the reporter’s transcript provides clarity on the st atutory basis for the award of attorney fees, we need not address the parties’ argumen ts on whether the award was appropriate on other possible grounds. (Cf. First City Properties, Inc. v. MacAdam (1996) 49 Cal.App.4th 507, 517 [where reporter’s tr anscript and minute order did not reveal basis for award, trial court did not comply with due process].)10 one, having to have this hear ing, and number two, trying to address any concerns. [¶] The reality is, from the timing of it, I don’t believe this department received any notice that there was even a request to drop the Motion to Quash until Friday September 27th after an interchange of correspondence that, I believe, began on September 10th.” The court concluded by ruling “this was an unnecessary situation where there were attempts to cu re an issue, that Mr. Sweeney and his counsel had no idea about that there was correspondence for a pe riod of almost three weeks regarding how
this could be addressed and that there was no need to have this Motion to Quash the subpoena. [¶] How it was not until Friday, Se ptember 27th, now just several days prior to this hearing, that there was even a reque st to drop the motion, and this is after the Responsive Declaration was filed on September 19th, I don’t believe that this type of expenditure of resources was necessary. A nd that’s why I’m including the sanctions.” This detailed statement by the trial court satisfied the court’s duty to specify the reasons for imposing sanctions ( First City Properties, Inc. v. MacAdam
, supra , 49 Cal.App.4th at p. 516), and it makes clea r the court found that John’s delay in withdrawing the motion lacked substantial justification under s ection 1987.2. We recognize that some courts might have been more sympathetic than the trial court was to John’s contention that he was justified in waiting to withdraw his motion until he
confirmed with Chase that his financial information would not be disclosed. Our review of the parties’ correspondence reveals Sweene y’s attorney was not entirely blameless for the parties’ uncivil relationship. It is true that in his September 10 letter he raised legitimate concerns about John’s decision to file the motion to quash without trying to resolve the issue and promised to take prompt action to address John’s concerns. But it is also true that he was quick to threaten sa nctions and to complain about John’s lack of cooperation and conciliation without always demonstrating those same qualities. In addition, while Sweeney has consistently stressed the burdens imposed upon him by having to respond on September 19 to the motio n to quash, we question whether he could not have simply informed th e trial court that he had amended the subpoena to exclude John’s information rather than filing de tailed declarations about the parties’11 correspondence. And, of course, once John’s law office wrote to the trial court asking that the motion to quash be taken off cale ndar, Sweeney could have simply dropped the matter altogether and guara nteed that additional fees would not be incurred.
But we are not free to substitute our discreti on for that of the trial court so long as its ruling “was a reasonable exercise of its discretion.” ( Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 881-882; see also Walker v. Superior Court (1991) 53 Cal.3d 257, 272 [reviewing court lacks authority to s ubstitute its decision for that of trial court
where lower court acts within bounds of reason].) The tr ial court did not abuse its discretion in awarding Sweeney attorney fees because it was not out side the bounds of
reason to conclude that John wa s not justified in waiting to withdraw his motion to quash.
III. D ISPOSITION The October 2, 2013, sanctions order is a ffirmed. The parties shall bear their own costs on appeal.12 _ ____________ ____________ Humes, P.J.

We concur:

_____________ ____________ Dondero, J.

_____________ ____________ Banke, J.13 Trial Court: Contra Costa County Superior Court
Trial Judge: Honorable Barbara Hinton
Counsel for Appellant, John Evilsizor: Schenone & Peck, Ronald G. Peck

Counsel for Respondent, Joseph Sweeney: Joseph Sweeney, in pro. per.