Doe v. McLaughlin
299 Cal.Rptr.3d 673
Cal. Ct. App.2022Background
- In Illinois, McLaughlin obtained an expungement and sealing order for his 2016 arrest and a sealed settlement/judgment in a related post-judgment proceeding.
- In June–July 2018 Doe (an anonymous Twitter user) posted McLaughlin’s expunged mugshot and disparaging tweets from two accounts; Twitter suspended the accounts for terms-of-service violations.
- McLaughlin sought post-judgment discovery in Illinois; an Illinois court issued a subpoena to Twitter and letters rogatory to California. McLaughlin then served a California subpoena to Twitter under the Interstate Depositions and Discovery Act.
- Doe moved in San Francisco Superior Court to quash the subpoena under Code Civ. Proc. § 1987.1 and sought attorney fees under § 1987.2(c). While the Illinois matter settled and the Illinois subpoena was dismissed, Doe asked the California court to rule on his motion and fee claim.
- The trial court dismissed Doe’s California motion as moot and denied fees, stating Doe had not prevailed; Doe appealed and sought a writ.
- The Court of Appeal held the order denying fees was appealable and affirmed the denial, concluding Doe failed to show all three statutory prerequisites for fees under § 1987.2(c).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Appealability of order denying § 1987.2(c) fees | Order is appealable as ancillary discovery affecting out-of-state litigation | Same; trial court’s order is final on the California discovery matter | Appealable under H.B. Fuller line of cases; court proceeds on appeal |
| Whether Doe “prevailed” under § 1987.2(c) | Halbig supports fee award where subpoena withdrawn and movant retained anonymity; thus Doe prevailed | Subpoena was dismissed because underlying Illinois action settled, not because movant won; trial court found Doe had not prevailed | Doe failed to show he prevailed; trial court’s finding not disturbed |
| Whether the underlying action arose from movant’s exercise of Internet free-speech | Doe argued the subpoena implicated his First Amendment anonymity rights and thus the underlying action arose from his online speech | McLaughlin argued tweets were targeted harassment (not protected) and Doe forfeited the argument on appeal by not developing it in opening brief | Doe forfeited and in any event did not show the underlying action arose from constitutionally protected Internet speech |
| Whether respondent failed to make a prima facie showing of a cause of action | Doe argued McLaughlin offered no prima facie evidence of breach of the settlement/sealing order | McLaughlin produced declarations and evidence supporting a belief that Olivia P. or her agent posted the tweets, supporting a prima facie showing | Doe failed to show McLaughlin lacked a prima facie case; he raised most arguments too late on appeal |
Key Cases Cited
- International Indus., Inc. v. Olen, 21 Cal.3d 218 (Cal. 1978) (litigation’s purpose is dispute resolution, not fees)
- H.B. Fuller Co. v. Doe, 151 Cal.App.4th 879 (Cal. Ct. App. 2007) (California discovery orders addressing out-of-state litigation may be appealable)
- Roe v. Halbig, 29 Cal.App.5th 286 (Cal. Ct. App. 2018) (interpreting “prevails” in § 1987.2(c) by analogy to anti‑SLAPP law)
- Williams v. Superior Court, 3 Cal.5th 531 (Cal. 2017) (disapproving a strict “compelling need” test for intrusive online discovery)
- Melamed v. City of Long Beach, 15 Cal.App.4th 70 (Cal. Ct. App. 1993) (statutory interpretation: conjunctive conditions require all elements be met)
- Coltrain v. Shewalter, 66 Cal.App.4th 94 (Cal. Ct. App. 1998) (defendant may be deemed prevailing when plaintiff voluntarily dismisses; presumption is rebuttable)
- Gerawan Farming, Inc. v. Lyons, 24 Cal.4th 468 (Cal. 2000) (First Amendment protection does not extend to all categories of speech)