CCP § 1987.2 Prevailing Party Fees In Subpoena Context Might Depend On Who Met Litigation Objectives, Although The Test Is Not Crystal Clear.
John/Jane Roe v. Halbig, Case No. H043248 (6th Dist. Nov. 20, 2018) (published) is an interesting, but somewhat perplexing, opinion on the fees to be awarded to a party which ultimately prevailed because the other side withdrew a subpoena, which did allow for a prevailing party award under Code of Civil Procedure section 1987.2(c). Although adopting a “did you achieve your litigation objectives test,” it was only done under an abuse of discretion standard such that the test is not crystal clear at all as far as providing a benchmark guidance for future litigants. We are not complaining about the result, but benchmarks are good.
What happened was that plaintiff sued certain doe defendants in Florida about alleged comments made by them on websites/social medical websites. Plaintiff served a subpoena on Google, who coughed up the account holders—including the doe defendants. One account holder filed a motion to quash the subpoena under CCP § 1987.2(c), which includes a fee-shifting provision in the prevailing party’s favor. Plaintiff withdrew the subpoena, with the doe defendant found to be the prevailing party although the trial judge only awarding $22,000 out of a requested $42,581 in fees.
The appellate court remanded for a “re-do” of the fee determination.
It did determine that a challenging subpoenaed party could be the prevailing party under circumstances where a subpoena was withdrawn, although did not articulate a clear-cut test. Rather, it found no abuse of discretion with the trial judge adopting a “prevailing party” test where the party achieved its litigation objectives, although discussing under tests under the anti-SLAPP statute (although a catalyst test was rejected) but only deciding that the “litigation objective” standard was a reasonable one to use.
The challenging party did prevail, but the reviewing court was flummoxed about the amount of the fee award. There were some hourly fees which likely should have been honored, but the trial judge cut them down drastically. So, the fee award was sent back down for a “relook.”