This decision distinguishes Evilsizor v. Sweeney (2014) 230 Cal.App.4th 1304 on the ground that it dealt with a fee award on an ordinary motion to quash a subpoena, not with a fee award on a motion to quash a subpoena on an internet service provider for personal identifying information arising from the moving party’s exercise of free speech rights on the internet.  Fee awards on motions to quash ordinary subpoenas are governed by CCP 1987.2(a), whereas motions to quash subpoenas on internet service providers are governed by CCP 1987.2(c).  It may be sanctionable conduct under 1987.2(a) to continue to pursue a motion to quash after the subpoena has been withdrawn, but that is not true under 1987.2(c) since there is no assurance in a voluntary withdrawal that the subpoena will not be reissued later, further harassing the same party for his exercise of free speech rights.  For that same reason and because 1987.2(c) is closely linked to CCP 425.16, this decision holds that withdrawal of the subpoena before the hearing on the motion to quash does not moot the motion to quash.  Instead, the court should decide the motion to quash to determine whether the moving party is a prevailing party, entitled to an award of costs and fees under the statute. This decision remands a fee award under CCP 1987.2(c) for reconsideration because the trial court failed to adequately explain why it awarded only $22,000 when Roe’s lodestar was $42,000.  A trial court’s award of attorney fees must be able to be rationalized to be affirmed on appeal. When a trial court makes an award that is inscrutable to the parties involved in the case, and there is no apparent reasonable basis for the award in the record, the award itself is evidence that it resulted from an arbitrary determination.  It is not the absence of an explanation by the trial court that calls the award in this case into question, but its inability to be explained.  This case also involved a first impression invocation of CCP 1987.2(c) and so it was particularly hard to understand the trial court’s judgment as to how long it thought the motion to quash should have taken.

California Court of Appeal, Sixth District (Danner, J.); November 20, 2018; 29 Cal. App. 5th 286