Roe v. Halbig, No. H043248 (D6 Nov. 20, 2018)
Some foil-hatted deplorable claims to be getting at the “truth” of the 2012 Sandy Hill school shootings. He started a GoFundMe campaign and, in testament to the general awfulness of the times in which we live, raised more than $30k. But then GoFundMe shut him down because, well, he’s raising money to spread false conspiracy theories about the murders of innocent children.
Sandy Hill Truther, however, claims he’s the subject of a defamation blog campaign by supporters of the Sandy Hill victims. So he sued some John Does in (where else?) Florida and then tried to subpoena Google to get their subscriber information. Google passed the subpoena on to a still-anonymous Doe, who moved to quash in Santa Clara Superior. Doe also sought sanctions under § 1987.2(c).
Section 1987.2(c) is basically a mini-anti-SLAPP for certain subpoenas. A party who prevails on a motion to quash a subpoena is entitled to recover his or her attorneys’ fees if: (1) an underlying action arises from free speech on the Internet; (2) the subpoena seeks discovery for use in an action filed in a non-California court; (3) the subpoena seeks certain personally identifying information; (4) the information is sought from an ISP; and (5) the subpoenaing party can’t prove up a prima facie case to justify the production of anonymous subscriber information under the framework set out in Krinsky v. Doe 6, 159 Cal. App. 4th 1154, 1172 (2008). Although the statute was passed in 2008, this appears to be the first published case to interpret it.
In response to Doe’s motion, SHT attempted to voluntarily withdraw the subpoena. But Doe disagreed, arguing that that because Doe went to the expense of filing a motion, his or her § 1987.2(c) fee request was not mooted by the withdrawal, and indeed, that the withdrawal made Doe the prevailing party. The trial court agreed. It awarded fees, but only about half of what Doe requested. Everyone appeals.
The mootness question comes down to the meaning of “prevails.” Who prevails when a subpoena is withdrawn in response to a motion to quash? There’s inconsistent definitions of “prevailing party” all over the place in various fee and cost-shifting statutes. Relying on analogies to the anti-SLAPP law that are replete in § 1987.2(c)’s legislative history, the Court adopts the “prevailing defendant” standard that applies under § 425.16(c)(1). Given the Legislative purpose behind the rule, Courts have found that an anti-SLAPP movant prevails and is entitled to a fee award when the plaintiff voluntarily dismisses a case after an anti-SLAPP motion is filed.* Thus, the motion was not moot and Doe was correctly named the prevailing party.
As to the amount of fees, the trial court needed to start by calculating the actual amount of non-duplicative time the attorneys spent on the case. Here, Doe offered documents showing a $42k bill based on 192 hours’ combined time. The Court awarded $22k, but it didn’t explain what time it was excluding, just that it generally thought that $42k was too much. The Court of Appeal, however, couldn’t surmise a plausible rationale to award $22k for 192 hours. (It notes, in dicta, a few possible rationales that don’t make sense.) So the case gets reversed and remanded for the creation of a better record. And the Court points out that Doe is entitled to fees on appeal, which should be awarded by the trial court in the first instance.
Reversed in part.
* As the Court explains, when there’s a voluntary dismissal, there’s a bit of a spit as to whether the moving defendant is presumptively entitled to fees, see Coltrain v. Shewalter, 66 Cal.App.4th 94, 102 (1988), or whether the court should ask if the motion would have been granted in the absence of a dismissal. See Moore v. Liu, 69 Cal.App.4th 745, 751 (1999). Because SHT made no effort to prove up a prima facie case, the distinction doesn’t matter here.
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