Doe v. McLaughlin, A161534

• Docket Number: A161534
• Decision Date: 21 September 2022
• Citation: 83 Cal.App.5th 640,299 Cal.Rptr.3d 673
• Parties: John/Jane DOE, Plaintiff and Appellant, v. Ryan MCLAUGHLIN, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

83 Cal.App.5th 640

299 Cal.Rptr.3d 673

John/Jane DOE, Plaintiff and Appellant,

v.Ryan MCLAUGHLIN, Defendant and Respondent.

A161534

Court of Appeal, First District, Division 2, California.

Filed September 21, 2022

Attorney for Plaintiff and Appellant, John/Jane Doe: Law Office of Gerald Clausen; Gerald A. Clausen, San Francisco

Attorney for Defendant and Respondent, Ryan McLaughlin : Walczak Law; Kenneth M. Walczak ; Andrew M. Purdy, San Francisco.

Richman, Acting P. J. 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, 145 Cal.Rptr. 691, 577 P.2d 1031.) We reiterated the admonition in 2006 ( Abouab v. City and County of San Francisco (2006) 141 Cal.App.4th 643, 675, 46 Cal.Rptr.3d 206 ), an admonition that is as true today—if not truer—than it was in 1978.

Appellant Doe and, perhaps more significantly, his¹ appellate attorney apparently did not read the admonition, and they certainly did not heed it, as they continue in what is nothing more than a quest for fees rejected by the trial court. Bad enough. Worse, the quest is by a person described as an "Internet troll" (a label he does not deny), an Internet troll who has had two accounts suspended by Twitter because his postings violated its terms of service—and an Internet troll who seeks to justify his post(s) of a mugshot of respondent McLaughlin that an Illinois court had ordered expunged and destroyed.

Doe's quest began with his motion under Code of Civil Procedure ² section 1987.1 et seq., seeking to quash a subpoena issued in 2018 by an Illinois court in connection with a litigation pending here. By the time Doe's motion came to be heard in San Francisco County Superior Court—almost two years later—the Illinois litigation had been resolved. And the trial court here dismissed Doe's motion. Undeterred, Doe persists, maintaining that he is entitled to attorney fees under section 1987.2, subsection (c), which provides that a party shall be entitled to attorney fees if he or she demonstrates three things: (1) "the moving party prevails" on the motion to quash; and (2) "the underlying action arises from the moving party's exercise of free speech rights on the Internet"; and (3) "the respondent has failed to make a prima facie showing of a cause of action." Doe must demonstrate all three things. He has demonstrated none .

Enough is enough, and the time has come to put a stop to such conduct, and that we do, affirming the trial court.

BACKGROUND³

The Illinois Proceedings

In August 2016, McLaughlin, the head of a Chicago-based public relations consulting firm, was arrested in Chicago for his alleged involvement in a domestic dispute with his former girlfriend, Olivia P. In January 2018, an Illinois court ordered all records in McLaughlin's criminal case expunged, and ordered the Chicago Police Department, the Illinois State Police Bureau of Identification, and the FBI to destroy McLaughlin's arrest records and photograph (on paper and electronic format), including the mugshot.

Meanwhile, in 2017, McLaughlin filed an action in Illinois seeking an order of protection against Olivia P. In April 2018, the parties settled that action, and the terms of the settlement agreement were incorporated in a judgment entered on April 27. While entering judgment, the court ordered sealed the settlement agreement and all of the documents submitted in connection with the Illinois action. The Illinois court retained jurisdiction to enforce the terms of the settlement.

Despite the expungement and sealing orders, Doe, on multiple occasions in June and July 2018, and under two different Twitter accounts, posted messages on Twitter ("tweets") disclosing information about McLaughlin's prior arrest. In those tweets, Doe uploaded McLaughlin's mugshot taken in connection with the arrest, and above the mugshot was a reference to a charge for "domestic battery—bodily harm." At times, the tweets were captioned with comments such as "Huh?"; "Wut?"; "Discuss this"; "Proud of this guy?"; and "Nice." And Doe tagged several of McLaughlin's business contacts and clients, as well as local media outlets, in the tweets.

In early August 2018, McLaughlin requested that Twitter remove the tweets, and on August 10, Twitter suspended Doe's accounts after finding the tweets violated its terms of service.

McLaughlin filed in the Illinois court an ex parte motion to conduct post-judgment discovery pertaining to Doe's Twitter accounts. On August 28, the Illinois court granted the motion, and issued a subpoena to Twitter requiring the production of documents related to Doe's Twitter accounts. The Illinois court also issued "letters rogatory" to the San Francisco County Superior Court, a document requesting that a foreign court take evidence from a specific person within its jurisdiction and return the evidence for use in a pending case. (3 Nichols Ill. Civ. Prac. (2022) Depositions § 40:22; Ill. Sup. Ct. Rules, rule 205(c).)

The California Proceedings

On September 25, 2018, pursuant to section 2029.350 and the Illinois subpoena, McLaughlin served another subpoena—this time under the authority of the San Francisco County Superior Court (trial court)—to be served on Twitter in San Francisco. In the subpoena, McLaughlin requested the production of business records relating to Doe's Twitter accounts and information personally identifying the holders of the accounts.

Doe hired counsel in California and, on November 27, filed in the trial court a motion to quash the subpoena under section 1987.1, and requesting attorney fees and costs under section 1987.2, subdivision (c).⁴ In the motion to quash, Doe argued he had a First Amendment right to engage in anonymous speech and a right to privacy under the California Constitution. He also contended that McLaughlin failed to make a prima facie showing that the tweets were actionable. Doe further asserted that the subpoena was procedurally defective, as well as overbroad and oppressive. For these reasons, Doe maintained he was entitled to attorney fees.

On December 7, McLaughlin filed an unopposed motion for an order sealing Doe's memorandum of points and authorities in support of the motion to quash, the declaration of Doe's attorney, and any reply by Doe and other documents filed in support of the motion.

On April 16, 2019—and despite McLaughlin not having filed an opposition to the motion—Doe filed a "reply" in support of his motion to quash requesting over $19,000 in attorney fees and costs. McLaughlin filed a response, along with his attorney's declaration, seeking a continuance of the hearing on the motion to quash and explaining his failure to file an opposition.

On April 23, the trial court granted McLaughlin's motion to seal. And on April 30, the court continued the hearing on the motion to quash to May 21 and permitted McLaughlin to file an opposition, and Doe, a reply.

On May 15, McLaughlin filed opposition to Doe's motion to quash and request for fees. McLaughlin sought another continuance of the hearing on the motion pending the resolution of the Illinois motion to quash. As to the merits, McLaughlin argued that the subpoena validly sought to determine whether Olivia P. or someone acting as her agent had violated the settlement agreement and/or the sealing order by posting the tweets about McLaughlin. McLaughlin also asserted that Doe's tweets were not protected under the First Amendment because they were intended purely to harass, intimidate, or threaten him. McLaughlin further sought fees and costs for opposing the motion to quash.

On May 17, Doe replied to the opposition, now requesting over $34,000 in attorney fees. Doe argued that McLaughlin did not make a prima facie showing of cause of action for breach of the settlement agreement. Doe also maintained that McLaughlin failed to establish the tweets were not entitled to First Amendment protection.

Some nine months later, on February 18, 2020, Doe filed in the trial court a status update on the Illinois proceedings on his Illinois motion to quash. Doe stated that the parties in the Illinois action recently had resolved their remaining disputes obviating the need for pursuing the subject discovery. In light of this resolution, the Illinois court dismissed the subpoena and denied as moot Doe's motion to quash. Despite the dismissal of the motion to quash in the Illinois court, Doe requested that the trial court nevertheless decide the California motion to quash.

On February 25, McLaughlin filed a response to the status update, urging the trial court to follow the Illinois court and also deny as moot Doe's California motion to quash. McLaughlin also requested the court deny Doe's request for fees, arguing that neither party could claim to have prevailed on the motion to quash within the meaning of section 1987.2, subdivision (c).

On August 21, the trial court conducted the hearing on Doe's motion to quash, in the course of which the court stated it keeps "getting hung up on the first thing I said here, which is ... 1987.2 ... assumes that the movant has prevailed," going on to advise Doe's counsel that "you haven't prevailed here." And on August 24, the court issued its order denying the motion, stating that "[m]ovant's counsel reports that the motion to quash subpoena duces tecum has been mooted by action in an Illinois court, so the motion is dismissed. No sanctions are awarded, as movant was unable to cite any case law permitting sanctions under these circumstances."

On October 21, Doe filed a notice of appeal (A161534).⁵ And on May 20, 2021, Doe filed a petition for writ of mandate also challenging the order denying attorney fees on the same grounds asserted in the appeal (A162677).

DISCUSSION

Appealability

At the threshold, we must determine whether the...