Appealability, Discovery: Plaintiff “Internet Troll” In California Discovery Litigation, Whose Motion To Quash Was Dismissed, Was Not Entitled To Attorney Fees Under CCP § 1987.2(c)

Appellate Court Also Rebukes Parties And Attorneys Whose Main Quest Is To Recoup Fees After A Defeat.

            Here is how Doe v. McLaughlin, Case No. A161534 (1^st Dist., Div. 2 Sept. 21, 2022) (published) began:

            “Forty-four years ago our Supreme Court admonished that ‘The purpose of litigation is to resolve participants’ disputes, not compensate participating attorneys. Our courts are sufficiently burdened without combat kept alive solely for attorney fees.’ (International Industries, Inc. v. Olen (1978) 21 Cal.3d 218, 224.) We reiterated the admonition in 2006 (Abouab v. City and County of San Francisco (2006) 141 Cal.App.4th 643, 675), an admonition that is as true today—if not truer—than it was in 1978.”

            This involved plaintiff, an admitted “Internet troll,” who became embroiled in a California discovery proceeding hinged to an Illinois case, seeking to quash a subpoena after plaintiff posted a mugshot of defendant despite the fact defendant’s criminal case records in Illinois were expunged and defendant/his ex-girlfriend settled Illinois litigation between themselves.   The California judge dismissed the motion to quash, primarily because defendant and his ex-girlfriend had settled their dispute.  CCP § 1987.2(c) allows for fee recovery if the moving party prevails, actions were based on the exercise of speech rights on the Internet, and the responding party fails to make a prima face showing of a cause of action, with the statute being akin to the anti-SLAPP statute.  Plaintiff had sought over $34,000 in fees.

            The 1/2 DCA affirmed, finding that plaintiff’s appellate attorney should have known the quest for fees was unwarranted based on the state of the record. 

            Although discovery orders are generally nonappealable, this one was because the entire purpose of the California proceeding was to resolve the discovery battle.  (H.B. Fuller Co. v. Doe, 151 Cal.App.4^th 879, 883-884 (2007).)

            However, the lower court correctly denied the motion to quash.  Plaintiff did not prevail under either of the two approaches described in Roe v. Halbig, 29 Cal.App.5^th 236, 305-306 (2018), given that defendant settled the Illinois action with ex-girlfriend.  Beyond that, plaintiff’s conduct was targeted harassment which is a free speech rights exception, not to mention that defendant did present a prima facie case.  

            ETHICS FOOTNOTE—The appellate court, in a footnote, reminded appellant’s counsel that he had an obligation to point out that a case had been disapproved and point out contrary authority to judges or justices.