Bohl v. Pryke

Bohl v. Pryke Bohl v. Pryke Filed 5/4/07 Bohl v. Pryke CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO NANCY K. BOHL et al., Plaintiffs and Respondents, v. RAYMOND PRYKE, Defendant and Appellant. E039392 (Super.Ct.No. SCV68052) OPINION APPEAL from the Superior Court of San Bernardino County. Christopher J. Warner, Judge. Reversed. Law Office of Stanley W. Hodge, Stanley W. Hodge and Arshak Bartoumian, for Defendant and Appellant. Cheong, Denove, Rowell & Bennett, and John D. Rowell, for Plaintiffs and Respondents. I. INTRODUCTION Nancy Bohl (Bohl) and her company, The Counseling Team (TCT), initiated this action against Raymond Pryke (Pryke) and other defendants after Pryke published a series of false and defamatory articles in three local newspapers which he personally owned and operated. The articles accused Bohl of various crimes and misconduct, resulting in causing her and TCT economic harm. Given the nature of the lawsuit, Pryke raised the California reporters shield laws[1]to avoid revealing his sources. Bohl and TCT (herein collectively referred to as Plaintiffs) moved to compel Pryke to answer. After Plaintiffs made a prima facie showing of falsity, the trial court ordered Pryke to answer the discovery. He failed to do so, and the trial court eventually granted Plaintiffs motion to strike Prykes answer and enter his default. Proceeding to the default prove-up trial, Plaintiffs introduced evidence to support their claims and request for damages. Thus, the court awarded damages, including punitive, and costs to Plaintiffs. Pryke appeals. II. PROCEDURAL BACKGROUND AND FACTS Bohl is a licensed psychotherapist with a Ph.D. in Psychology. She is the founder and president of her company, TCT. Bohl and TCT provided counseling services to San Bernardino law enforcement personnel from 1984 until 1999. TCT obtained such contracts over the years through a competitive bidding process. Years later, Bohl began a personal relationship with Sheriff Gary Penrod, whom she has since married. Shortly after her personal relationship with Penrod began, Bohl became the target of newspaper articles published by Pryke. Starting in 1999, Pryke, who is the publisher, editor, and author of the headlines for the articles, published a series of articles about Plaintiffs in three local newspapers that he personally owned and operated. The articles accused Bohl of various crimes and misconduct, such as sleeping with the sheriff to obtain the service contracts, cheating the County of San Bernardino on the bills for such services, and breaching the confidentiality of therapeutic dialogue by disclosing the content with the sheriff or other law enforcement brass. On June 16, 2000, Plaintiffs initiated this action against the reporter, the newspapers, and their editors/publishers. On April 10, 2001, defendants filed an untimely special motion to strike (anti-SLAPP motion) under Code of Civil Procedure section 425.16, the Strategic Lawsuit Against Public Participation, (SLAPP) statute. On July 3, 2001, Pryke was identified as Doe 1. He joined in the anti-SLAPP motion. In order to respond to the motion, Plaintiffs sought specific discovery. Pryke failed to respond to the discovery. Instead, he raised Californias shield law (see fn. 1, ante) to avoid revealing his sources. On January 11, 2002, Plaintiffs moved to compel responses to the discovery sought, and the trial court followed the procedure required by Mitchell v. Superior Court (1984) 37 Cal.3d 268 (Mitchell). Mitchell allows a court to require a plaintiff to make a prima facie showing of falsity before a media defendant must reveal purported sources. On November 12, 2002, the trial court found that Plaintiffs had met the standard in Mitchell, supra, 37 cal.3d 268, and ordered Pryke to answer certain questions. Pryke neither answered the questions nor filed a writ with this court regarding the courts ruling. Instead, prior to the court-ordered deadline, the parties agreed to stay the all-matters-pending mediation. The case did not settle. On May 13, 2003, Plaintiffs attempted to revoke the stay and obtain the discovery identified in the November 12, 2002, order. Further attempts at mediation were made by the parties; however, by August 2003, Plaintiffs wanted the discovery responses because it did not appear that further mediation would help. On September 17, 2003, Plaintiffs moved for terminating sanctions on the grounds that Pryke failed to provide the discovery responses pursuant to the November 12, 2002, order. Pryke obtained new counsel and filed a petition for writ of mandate or prohibition with this court on October 20, 2003.[2] We denied the writ, and on November 5, 2003, the trial court granted Plaintiffs motion and struck Prykes answer, thus entering his default. On July 15, 2004, following the entry of Prykes default, Plaintiffs dismissed their case against the reporter and proceeded against Pryke only. On October 6, 2005, the court conducted a prove-up hearing. After hearing the evidence, the court found in favor of Plaintiffs on October 21. Bohl was awarded $750,000 for emotional distress and $750,000 for injury to her reputation. TCT was awarded $500,000 for its economic damages. After finding clear and convincing evidence of malice, and specifically finding the conduct to be egregious, repetitive, and manifold, the court awarded to Plaintiffs $1,000,000 in punitive damages, based on evidence of Prykes financial condition. Plaintiffs also received an award of costs in the amount of $10,839. III. ORDER GRANTING TERMINATING SANCTIONS Citing to the United States and California Constitutions, Pryke contends that he was denied his constitutional rights when the trial court granted terminating sanctions against him. He argues that the courts order was completely arbitrary, capricious and unlawful. While Pryke cites to case law that supports his claim that terminating sanctions are subject to limitations, he fails to provide any argument, let alone citation to the record, as to how the trial court abused its discretion and denied him his constitutional rights under the facts in this case. Instead, the first time that he offers any support for his contention is in his reply brief. Ordinarily, we will not consider an issue raised in this way (Alameida v. State Personnel Bd. (2004) 120 Cal.App.4th 46, 55; Camp v. Boyd (1919) 41 Cal.App. 83, 87); however, because Plaintiffs thoroughly addressed the issue in their respondents brief, we have chosen to address it on the merits. Putting aside Prykes due process claim for the moment, we turn to his claim that the trial court abused its discretion in granting Plaintiffs motion for terminating sanctions. Before we begin our analysis, we must point out that in his opening brief, Pryke challenges the trial courts November 5, 2003, order granting the terminating sanctions; however, in his reply brief, he references the paperwork he filed subsequent to the courts decision and in support of his January 6, 2004, motion to reconsider motion for sanctions. The information provided to the court after the court rendered its decision is irrelevant. (Santa Teresa Citizen Action Group v. City of San Jose (2003) 114 Cal.App.4th 689, 706.) Moreover, Pryke has not challenged the courts decision regarding his motion to set aside order for sanctions. Thus, in reaching our decision, we only consider the evidence in the record that was before the court when it rendered its decision in November 2003. In order to understand why the trial court believed that only terminating sanctions were appropriate, we need to examine the procedural history of the case. On June 16, 2000, Plaintiffs initiated this action.[3] Service of the summons on all named defendants was completed in August 2000. Although the defendants were originally represented by Ewaniszyk & Higgins, on October 19, 2000, a substitution of counsel was filed identifying Reid & Hellyer as defendants attorneys of record. The Register of Actions notes that on December 8, 2000, Plaintiffs filed a motion to compel the deposition of Mark Gutglueck. As of January 12, 2001, the parties were setting the deposition, and the motion to compel was identified as being continued by stipulation or taken off calendar. By January 22, 2001, the deposition had occurred and the motion to compel was deemed moot. On April 10, 2001, defendant filed an anti-SLAPP motion. Nine days later, on April 19, Plaintiffs filed a motion to compel further responses to questions at deposition of Gutglueck. On April 26, 2001, Plaintiffs further moved to strike the anti-SLAPP motion and for an order lifting the discovery stay. As a result of the anti-SLAPP motion, all discovery proceedings were stayed. (Code Civ. Proc., 425.16, subd. (g).) On May 8, 2001, when the motion for order lifting discovery stay was to be heard, the clerks minutes state: MATTER IS CONTINUED AT REQUEST OF COURT. . . . THE COURT RESETS THE MOTIONS FROM TODAY AND WILL RESET THE DEFENDANTS SLAPP MOTION IF NECESSARY. THE MOTION TO COMPEL SET FOR 5/21/01 IS STATUTORILY STAYED UNTIL THE HEARING OF THESE MOTIONS AND WILL ALSO BE RESET ON 5/16/01. On May 16, 2001, the trial court denied Plaintiffs motion to strike the anti-SLAPP motion, and reset the anti-SLAPP motion and the motion to compel. The court further heard Plaintiffs motion to lift the discovery stay and ruled as follows: COURT GRANTS DISCOVERY IN THE SPECIFIC AREAS OF THE DEPOSITIONS OF R. PRYKE, M. HAEKEL, S. MORAN AND M. GUTGLUECK; ALSO THE AREA OF OBTAINING RESPONSES TO REQUEST OF 3/22/01. On June 5, 2001, Plaintiffs motion to compel further responses to questions at deposition of Gutglueck was heard. The court granted the motion as to certain questions, and there was a stipulation as to the others. On July 3, 2001, nearly 13 months after the complaint was filed, Pryke was identified as Doe 1. On July 23, he filed a joinder in the anti-SLAPP motion. The anti-SLAPP motion was to be heard on September 11, 2001; however, several times the parties stipulated to have the motion continued to February 14, 2002. It was later continued to January 7, 2003. On January 11, 2002, Plaintiffs filed two motions to compel further responses to special interrogatories. One was directed at the discovery propounded to Pryke, and the other was directed at the discovery propounded to Gutglueck. Neither motion requested sanctions against either Pryke or Gutglueck. Both motions were originally scheduled to be heard on February 5, 2002; however, by stipulation of counsel, the hearing was continued to March 12. On March 12, the matter was taken under submission. On May 10, the court issued its ruling. Recognizing that Mitchell, supra, 37 Cal.3d 268, provides the guiding authority for the issues presented by Plaintiffs motions, the court stated: Given the serious privilege implications in these interrogatories, it is the intention of this court, pursuant to Mitchell, to require a prima facie showing of the falsity of the statements in question before requiring any further answers. Such a showing may be done by declarations, depositions, or other evidence admissible for this purpose. This matter is continued to June 4, 2002 on this departments calendar at 1:30 p.m. for review of such a showing. Such additional material to be submitted 5 days before the hearing. The hearing was continued several times, finally to November 5, 2002. In response to Plaintiffs prima facie showing, defendants maintained that Plaintiffs failed to show that defendants acted with malice. Thus, defendants argued that the motions to compel should be denied. Defendants requested an opportunity to submit declarations under seal to rebut Plaintiffs prima facie showing. They further stated: If the court makes any other ruling, defendants request that they have 21 days to provide supplemental responses and/or request appellate review, with a stay on all further proceedings while the latter is pending. If appellate relief is sought but not granted, then defendants request 21 days thereafter to respond to the discovery. On November 5, 2002, the matter was heard. The trial court issued its decision on November 12, 2002. The court found that Plaintiffs had made the requisite showing under Mitchell, supra, 37 Cal.3d 268, such that disclosure is warranted under the circumstances. After identifying the specific interrogatories to which Gutglueck and Pryke were to provide responses, the court ordered the response due within 30 days of the date of the order. In December 2002, the parties entered into a stipulation to stay all matters and proceedings (hearings on motions, discovery responses, etc., et al.) pending mediation. The trial court ordered the stay pursuant to the stipulation on January 2, 2003. On April 28, 2003, a stipulation to postpone mediation and hearing on the anti-SLAPP motion was filed. Although the trial court accepted the stipulation, it stated: There will be no further continuances allowed. All motions and CMC continued to 6/11/03. On June 11, 2003, at the case management conference, the following was noted in the Register of Actions: THE MEDIATION WITH JUDGE KENNEDY/JAMS HAS BEEN SCHEDULED FOR FURTHER SESSION. MATTER CONTINUED WITH TRIAL ASSIGNMENT ADVISAL GIVEN. On August 15, 2003, at a further case management conference, the Register of Actions notes: PLAINTIFF IS CONTEMPLATING A DISCOVERY SANCTION MOTION RE: IDENTITY OF SOURCE. SECOND SESSION OF MEDIATION IS SET FOR SEPTEMBER (2ND SESSION WITH JUDG2 [sic] KENNEDY/JAMS). MATTER IS SET FOR TRIAL WITH DISMISSAL ADVISAL GIVEN RE: DEFENDANT PRYKE.[4] On September 17, 2003, Plaintiffs filed their motion for sanctions against Pryke and Gutglueck. Plaintiffs requested the following orders against defendants: (1) issue terminating sanctions, striking defendant GUTGLUECKs Answer, (2) render judgment by default against both defendants, and (3) impose monetary sanctions in the amount of $13,150.00 representing fees incurred in bringing this Motion and in previous attempts to secure this discovery. In support of their motion, Plaintiffs represented that in December 2002, a stipulation to stay all matters and proceedings was entered into pending mediation; however, on May 13, 2003, at 12:13 p.m., via facsimile, [P]laintiffs revoked the stay and demanded the answers be provided on or before May 19, 2003. Although Plaintiffs demanded responses in six days, the stipulation provided all pending time limits including, but not limited to, the time for Defendants Raymond Pryke and Mark Gutglueck to respond to the interrogatories propounded to each of them and/or to petition the appellate court with regard to the trial courts order thereon are hereby tolled until 30 days after notice of revocation of this stipulation is served by the revoking party upon the non-revoking parties. Pryke filed his petition for writ of mandate or prohibition with this court on October 20, 2003, which we denied four days later. Thus, the hearing on Plaintiffs motion for terminating sanctions was held on November 19, 2003. Prykes counsel at the time of the hearing associated in the matter on October 31, twenty days prior to the hearing. At the hearing, the trial court provided a brief overview of the procedural history of the case. Specifically, the court noted that when the mediation failed to settle the matter, the discovery responses that were ordered in November 2002 became due. Thus, as of May 2003, the court opined that Pryke was required to provide responses. Before hearing argument of counsel, the court stated what it intended to do: I will tell you what the intended [sic] is and it is to strike the answer of Mr. Pryke and strike Mr. Prykes anti-SLAPP motion and enter Mr. Prykes default. In doing so, I recognize that sanctions are not there to punish necessarily, they are there to obtain compliance and process litigation in the most economic and least expensive manner possible. [] Given the nature of the litigation and I searched - I dont know that I searched my soul, but I searched virtually everything else I could come to in terms of trying to figure out what an interim effective sanction would be and it is this Courts opinion that there is no such interim effective sanction. You either respond to the discovery, which is critical and pivotal to the SLAPP motion and vitality of the litigation, after the Court has ordered you to do so more than one year ago or you dont. [] Mr. Pryke has chosen with the services of two different lawyers in this case at this point . . . to ignore the Courts order and without that discovery, the action cannot proceed. So the only way that the action can proceed in the estimation of the Court is to remove the offending partys ability to participate at the level of liability and simply allow that party to do what it may relative to the damage aspects of the case. Prykes counsel responded: Well, as I did mention, I think that before a discovery sanction should be imposed, especially a drastic one such as this, that the SLAPP motion should be heard, but youve considered that. And I dont know that there is any authority for striking a SLAPP motion without having it being heard on the merits as a discovery sanction. [] Secondly, as I mentioned in my papers, as the Court knows, Im new to the case and I have advised Mr. Pryke and he is in agreement that rather than . . . accept a sanction, such as striking of the answer and a default being entered, that he would provide the information. There are obvious reasons why that is an unpleasant thing for a publisher to do, but rather than accept a dismissal or a striking of the answer, he would do so and thats why I suggested that if you were going to make such an order, that it be contingent upon failure to provide the information within X days. Now that I am involved in the case, I can tell the Court that it is - that information would be provided within the next, I dont know, ten days. Plaintiffs counsel objected, stating that Pryke has had a year to provide this information. . . . [] The time for complying with the Courts order has long since come and gone and its just not fair to plaintiff in this case that they are - that there not be the kind of serious consequences that naturally would flow from the failure to comply with this Courts order. The trial court agreed with Plaintiffs counsel, noting that Pryke has had the opportunity to do any number of things, but has thumbed his nose at the court, and only now insists that he will comply if given some more time. Thus, the court stated: Well, that dont [sic] work, at least not here, and its a viable approach as to how to deal with these things. It will be the Fourth District Court of Appeal which gives a seal of approval. In response to the courts representations, Prykes prior counsel respectfully disagreed with its factual statements: Your Honor, I dont believe the responses were due in May of this year. I dont believe the responses were due at all until [Plaintiffs counsel] sent out his notice of motion in September of this year. As the Court rightly points out, Mr. Pryke then went to the appellate court and was rebuffed there and came back down, so I think that the time frame has been compressed quite a bit, No. 1. [] No. 2, the Court also made the comment that there was some agreed to discovery. I dont know precisely what the Court is alluding to, but we were in discussions with [Plaintiffs counsel] and we were objecting to discovery, but then the - decided certain objections at certain times were, were probably going to be unavailing. So if thats what the Court meant by agreed to discovery, then I would agree that thats an accurate rendition. [] But my point, ultimate point is Mr. Pryke has not had a year. We were supposed to go back to JAMS in early September. Mr. Pryke at the last minute had a letter sent to me saying that he couldnt make it. He had another engagement he had to do. . . . I called JAMS. It would be my hope, your Honor, that this matter should go back to JAMS with Judge Kennedy, because I concur with this Courts assessment, Judge Kennedy should be able to fashion a settlement in this matter and I think Mr. Pryke should be given another opportunity, your Honor. Rejecting Prykes counsels arguments, the court granted Plaintiffs motion and struck Prykes answer. Misuse of the discovery process may result in the imposition of a variety of sanctions. These include payment of costs, sanctions barring the introduction of certain evidence, sanctions deeming that certain issues are determined against the offending party, and sanctions terminating an action in favor of the aggrieved party. [Citations.] Misuse of the discovery process includes failing to respond or submit to authorized discovery, providing evasive discovery responses, disobeying a court order to provide discovery, unsuccessfully making or opposing discovery motions without substantial justification, and failing to meet and confer in good faith to resolve a discovery dispute when required by statute to do so. [Citations.] (Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1214.) The discovery sanction at issue here was imposed in connection with five interrogatories. Pursuant to the statute governing that method of discovery (Code of Civil Procedure former section 2030, subdivisions (k) & (l)), the trial court is authorized to impose a broad range of sanctions for misuse of the discovery process. (Code Civ. Proc. former 2030, Stats. 1986, ch. 1334, 2, pp. 4728-4729, amended by Stats. 1987, ch. 86, 12; Stats. 1988, ch. 553, 4; Stats. 1988, ch. 575, 1; Stats. 1991, ch. 1090 (AB 1484), 11, pp. 5076-5077.) These include monetary sanctions, contempt sanctions, issue sanctions ordering that designated facts be taken as established or precluding the offending party from supporting or opposing designated claims or defenses, evidence sanctions prohibiting the offending party from introducing designated matters into evidence, and terminating sanctions that include striking part or all of the pleadings, dismissing part or all of the action, or granting a default judgment against the offending party. (Cedars-Sinai Med. Ctr. v. Superior Court (1998) 18 Cal.4th 1, 12.) A terminating sanction may be imposed only after a motion to compel is made and granted, and the party to be sanctioned has failed to comply with that order. (Code Civ. Proc., former 2030, subd. (l), Stats. 1986, ch. 1334, 2, pp. 4728-4729, amended by Stats. 1987, ch. 86, 12; Stats. 1988, ch. 553, 4; Stats. 1988, ch. 575, 1; Stats. 1991, ch. 1090 (AB 1484), 11, pp. 5076-5077.) However, in determining whether to impose a terminating sanction, the trial court considers the totality of the circumstances: conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery. (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.) Terminating sanctions have been held to be an abuse of discretion unless the partys violation of the procedural rule was willful [citations] or, if not willful, at least preceded by a history of abuse of pretrial procedures, or a showing less severe sanctions would not produce compliance with the procedural rule. [Citations.] [Citation.] (Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1215.) The relevant facts in this case fail to support the trial courts decision to issue terminating sanctions. The action was initiated in June 2000. Pryke was not identified as a defendant until July 2001. In January 2002, Plaintiffs filed a motion to compel further responses to special interrogatories directed at Pryke; however, no request for sanctions was made. In May 2002, the trial court issued its decision on the motion. Specifically, it found that before Pryke was required to provide further responses, Plaintiffs had to make a prima facie showing of the falsity of the statements in question pursuant to Mitchell, supra, 37 Cal.3d 268. Plaintiffs made such showing, and on November 12, 2002, the trial court ordered Pryke to provide further responses to five interrogatories. This ruling was the first substantive decision from the trial court that found Pryke could not hide behind the California reporters shield law. In December 2002, prior to the due date for Prykes responses, the parties entered into a stipulation to stay all matters (including the responses) pending a voluntary mediation. The stipulation was accepted by the court on January 2, 2003. Although Plaintiffs attempted to revoke the stipulation on May 13, 2003, they failed to provide the necessary 30 days response time required by the stipulation. In June 2003, mediation was still being pursued. In August 2003, Plaintiffs indicated they were contemplating a discovery sanction. On September 17, 2003, Plaintiffs filed their motion for terminating sanctions based on Prykes failure to provide further responses to five interrogatories that were identified in the trial courts November 12, 2002, order. On October 20, 2003, Pryke filed a petition for writ of mandate or prohibition with this court regarding that November 12, 2002, order. We denied the petition. As previously noted, the issuance of terminating sanctions amounts to an abuse of discretion unless either (1) a showing less severe sanctions would not produce compliance with the procedural rule, or (2) the partys violation of the procedural rule was willful [citations] or, if not willful, at least preceded by a history of abuse of pretrial procedures. (Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co., supra, 133 Cal.App.4th at p. 1215.) Given the procedural history discussed above, we are hard pressed to find that Prykes failure to provide further responses to five specific interrogatories was willful. Pryke had a legitimate argument as to why he was not required to reveal the information, namely, the California reporters shield law. Even the trial court required Plaintiffs to make a prima facie showing under Mitchell, supra, 37 Cal.3d 268, before it agreed that Pryke had to respond. Moreover, the trial court had yet to rule on the anti-SLAPP motion. Given the procedural status of the case, Pryke, with Plaintiffs agreement, attempted to resolve the matter through mediation. When that did not work, he sought assistance from this court via the writ petition in case No. E034582. Although Plaintiffs would characterize Prykes actions as brazen violations of the courts discovery order, there is a strong argument that they amounted to no more than the use of legitimate means for a reporter to protect his or her sources. Even if we were to assume Prykes actions were willful, we cannot say that a less severe sanction would not produce compliance with the procedural rule. (Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co., supra, 133 Cal.App.4th at p. 1215.) As the record shows, Prykes counsel stated, [A]s I mentioned in my papers, as the Court knows, Im new to the case and I have advised Mr. Pryke and he is in agreement that rather than . . . accept a sanction, such as striking of the answer and a default being entered, that he would provide the information. There are obvious reasons why that is an unpleasant thing for a publisher to do, but rather than accept a dismissal or a striking of the answer, he would do so and thats why I suggested that if you were going to make such an order, that it be contingent upon failure to provide the information within X days. Now that I am involved in the case, I can tell the Court that it is - that information would be provided within the next, I dont know, ten days. (Italics added.) Clearly, the trial court could have fashioned the termination sanction contingent upon Prykes failure to comply within 10 days. Moreover, the trial court could have added another sanction, monetary or otherwise,[5]against Pryke for his failure to provide the responses prior to the hearing on the motion to compel. Instead, the trial court chose to strike Prykes answer and enter his default, suggesting an intent to punish Pryke, not accomplish the objects of discovery. A trial court has broad discretion to impose discovery sanctions, but two facts are generally prerequisite to the imposition of nonmonetary sanctions such as the [terminating] sanction imposed here: (1) absent unusual circumstances, there must be a failure to comply with a court order,[6]and (2) the failure must be willful. [Citation.] Even where nonmonetary sanctions are called for, they . . . should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery. [Citations.] . . . [] The sanctions the court may impose are such as are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks, but the court may not impose sanctions which are designed not to accomplish the objects of discovery but to impose punishment. [Citations.] [Citations.] [Citation.] [Citation.] (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327) Under the facts of this case, we find that the trial court abused its discretion in issuing a terminating sanction against Pryke, who, from all appearances, was asserting his rights under the California reporters shield laws. Accordingly, we reverse the order striking Prykes answer and entering his default, and remand the matter to the trial court. On remand, Prykes answer is to be reinstated. Further, the trial court is directed to consider whether the imposition of other sanctions against Pryke is warranted. Given our finding that the trial court abused its discretion in issuing a terminating sanction against Pryke, the judgment entered in favor of Plaintiffs and against Pryke is reversed. IV. DISPOSITION The judgment is reversed. The trial courts order striking Prykes answer and entering his default is reversed. Prykes answer is to be reinstated and the matter is remanded for further proceedings as directed within the body of this opinion. Each party is to bear his or her own costs. NOT TO BE PUBLISHED IN OFFICIAL REPORTS HOLLENHORST Acting P. J. I concur: MCKINSTER J. KING, J., Concurring. I concur with the majority as it relates to reversing the present judgment. Nevertheless, I would remand for further proceedings to allow the trial court to set forth on the record its reasons for striking the complaint and entering default as opposed to choosing a lesser sanction. If the trial court, after further consideration, and the setting forth of its rationale on the record, decides that a lesser sanction can accomplish the desired goal, said sanction can be ordered and the matter reset. If the court determines that a lesser sanction cannot achieve the appropriate result, and sets forth on the record its rationale, then the trial court should reenter its order, and the present judgment should be reinstated. A trial court has broad discretion to impose discovery sanctions . . . . Even where nonmonetary sanctions are called for, they . . . should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery. [Citations.] . . . [] The sanctions the court may impose are such as are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks, but the court may not impose sanctions which are not designed to accomplish the objects of discovery but to impose punishment. [Citations.] [Citations.] [Citation.] (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327.) [T]erminating sanctions are to be used sparingly, only when the trial court concludes that lesser sanctions would not bring about the compliance of the offending party. (R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 496.) While the trial court recognized the need to consider lesser sanctions, the record is devoid of reasons as to why lesser sanctions were discarded in favor of striking the complaint and entering default. The trial court is intimately familiar with this matter and can presumably set forth its rationale. While I recognize that whether the trial court could have imposed a lesser sanction is not the end all question (see Do It Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal.App.4th 27, 37), it is nonetheless relevant to whether the trial court abused its discretion in striking the complaint and entering default. It is only then can we properly address the trial courts exercise of discretion. I would therefore reverse and remand for the trial courts further consideration as to whether a less drastic sanction is available. After explaining its rationale on the record, the trial court may either modify the sanction imposed and continue forward with resolution of this matter, or enter a new order striking the answer and entering default. If the court strikes the answer and reenters default, reentry of the previous judgment would be appropriate. (See Springmeyer v. Ford Motor Co. (1998) 60 Cal.App.4th 1541, 1575-1576.) /s/ King J. Publication courtesy of California pro bono legal advice. Analysis and review provided by La Mesa Property line attorney. [1]Article I, section 2, subdivision (b), of the California Constitution provides, A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication . . . shall not be adjudged in contempt . . . for refusing to disclose the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public. Evidence Code section 1070, subdivision (a), provides substantially the same. These provisions are sometimes known as the California reporters shield. [2] We hereby take judicial notice of the record in the writ proceedings in case No. E034582. In that appeal, Pryke sought an order from this court directing the trial court to refrain from taking further action on the motion for sanctions absent a determination on the merits of the anti-SLAPP motion. [3]Plaintiffs named the following defendants: Hesperia Resorter, Inc., Apple Valley News, The Adelanto Bulletin, Inc., Valley Wide Newspapers, Jenny Jones, Patty Thomas, Michele Haeckel, and Mark Gutglueck. [4]Apparently, Pryke had not filed his answer to the complaint. In fact, his answer was not filed until October 14, 2003. [5]We take judicial notice of the record in the writ proceedings in case No. E036703. We note that on page 4 of the petition, Pryke represents that [o]n December 23, 2003 the [trial] [c]ourt heard the [m]otion regarding [terminating] sanctions as [to] the [d]efendant Gutglueck. According to the [c]ourt record: Nancy K. Bohls motion for sanctions as to [d]efendant is Granted. The [c]ourt finds that appropriate sanctions are to deny the [d]efendants CCP 425.16/[]SLAPP motion. The [c]ourt finds that defendant frustrated the purpose of his own motion by refusing to comply with discovery stipulations and orders. The [c]ourt takes the issue of monetary sanctions under submission until the 1/6/04 motions are heard. Clearly, another viable sanction that the trial court could have imposed against Pryke was the denial of his anti-SLAPP motion. [6]Taken together, subdivisions (k) and (l) of section 2030 [of the Code of Civil Procedure] make clear that only after an order compelling responses or further responses to interrogatories has been obtained and violated can the court impose an issue sanction, an evidence sanction, or a terminating sanction. A few cases have approved the imposition of evidence and issue sanctions without a court order violation, but those cases involved egregious discovery abuses going far beyond the failure to supplement or amend a response in a timely fashion. (See Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545 . . . [evidence and issue sanctions properly imposed without violation of order compelling production of documents, where requiring requesting party to seek such an order would have been futile in light of responding partys claim that requested documents had been stolen]; Do It Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal.App.4th 27, 36 . . . [evidence sanctions appropriate despite absence of order compelling discovery, where sanctioned party concededly could not provide audit it had promised].)