Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. SCVSS68052, Janet M. Frangie, Judge.
Stanley W. Hodge and Arshak Bartoumian for Defendant and Appellant.
Cheong, Denove, Rowell & Bennett and John D. Rowell for Plaintiffs and Respondents.
OPINION
HOLLENHORST, Acting P. J.
Because this appeal involves the same factual background as a prior appeal in this matter, we take judicial notice of the prior opinion issued by this court in Bohl v. Pryke (May 4, 2007, E039392 [nonpub. opn.] (case No. E039392) and the record from that appeal. (Evid. Code, § 459.)
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. In order to prove their case, Bohl and TCT (herein collectively referred to as Plaintiffs) sought specific discovery from Pryke, including his “sources.” Given the nature of the lawsuit, Pryke raised the California reporter’s shield laws to avoid revealing his sources. Plaintiffs moved to compel Pryke to answer. The trial court followed the procedure required by Mitchell v. Superior Court (1984) 37 Cal.3d 268 (Mitchell). 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 Pryke’s answer and enter his default. Proceeding to the default prove-up hearing, Plaintiffs introduced evidence to support their claims and request for damages. Thus, the court awarded damages, including punitive, and costs to Plaintiffs.
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or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.”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 reporter’s shield.
Mitchell, supra, 37 Cal.3d 268, allows a court to require a plaintiff to make a prima facie showing of falsity before a media defendant must reveal purported “sources.”
Pryke appealed, and this court reversed the judgment and the order striking Pryke’s answer and entering default. (Case No. E039392.) We ordered Pryke’s answer to be reinstated, and we remanded the matter for further proceedings. Specifically, we directed the trial court “to consider whether imposition of other sanctions against Pryke is warranted.” On remand, Plaintiffs filed their “Renewed Motion for Issue and Monetary Sanctions and Reasonable Attorneys Fees and Costs Against Defendant Pryke” on January 4, 2008. Pryke opposed the motion, and on February 13, 2008, the court granted the motion. The court imposed “a monetary sanction against [Pryke] for Plaintiffs’ reasonable expenses, including attorney’s fees, incurred in connection with the various motions to compel, the attempts by Plaintiffs’ attorney to secure responses from [Pryke], the opposition to the Motion to Reconsider and the instant Renewed Motion for Sanctions in the amount of $29,180.00, payable within the next 30 days and payable directly to Plaintiffs’ attorney.”
Pryke appeals, contending the trial court abused its discretion in ordering sanctions, including attorney fees, against him. He also contends the order is unlawful because it is beyond the five-year statute of limitations for bringing a case to trial.
II. DISCOVERY SANCTIONS
A. Law Applicable to Discovery Sanctions
In general, management of discovery lies within the sound discretion of the trial court. Thus, a discovery order is reviewed under the abuse of discretion standard. (County of Los Angeles v. Superior Court (2005) 130 Cal.App.4th 1099, 1104.) The discovery act provides for powerful sanctions for abuse of discovery: “They 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 Medical Center v. Superior Court (1998) 18 Cal.4th 1, 12.) The trial court’s selection of a particular discovery sanction is an exercise of discretion, “subject to reversal only for manifest abuse exceeding the bounds of reason.” (Kuhns v. State of California (1992) 8 Cal.App.4th 982, 988; Cadiz Land Co. v. Rail Cycle (2000) 83 Cal.App.4th 74, 117.)
B. Law of the Case
Pryke contends this court’s prior opinion reversing the trial court’s terminating sanction, which had struck Pryke’s answer and entered a default, acts as “law of the case.” It appears that Pryke is arguing that, because we reversed the terminating sanction, the trial court was outside its power to consider Plaintiffs’ renewed motion for sanctions. Specifically, Pryke states: “The Court of Appeal considered the very issue before the trial court and that was pointed out to the trial court in the opposition i.e., whether a sanction should be imposed upon [Pryke] and if so, what that sanction should be.” However, as Pryke also notes, this court remanded the matter to consider “‘whether the imposition of other sanctions against Pryke is warranted.’” The fact that this court reversed the terminating sanction did not preclude the trial court from issuing other sanctions against Pryke. To the extent that Pryke argues otherwise, his argument is misplaced.
C. Violation of Discovery Order
Next, Pryke contends that he was not in violation of any discovery order. After citing Code of Civil Procedure section 2023.010, he then quotes from this court’s prior opinion in case No. E039392. He argues that he “used legitimate means and raised legal issues of the California reporters [sic] shields law . . . . It cannot be argued that [Pryke] has engaged AT THIS TIME in any conduct subject to sanctions outlined in Section 2023.” We disagree. The trial court’s imposition of monetary sanctions was based on our remand, which directed the court “to consider whether the imposition of other sanctions against Pryke is warranted.” Because Pryke fails to offer any other reason or argument challenging the trial court’s decision to impose monetary sanctions, we need not consider this issue any further.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
D. Amount of Monetary Sanction
Next, Pryke complains about the amount of sanctions ordered. To the extent that he argues he was entitled to special protection because of his status as a media defendant, that argument was litigated at the trial court level on November 12, 2002, when the 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 court’s ruling. Thus, such argument is waived.
Furthermore, to the extent that Pryke claims he is not currently in violation of any court order because the discovery sought in 2003 and 2004 has been “fulfilled for years,” we reject his contention. The fact that other parties provided the information sought from Pryke does not absolve him of his obligation to respond to Plaintiffs’ discovery requests. “If a party fails to serve a timely response, and the propounding party moves for and obtains a court order compelling a response, the trial court must impose a monetary sanction against the delinquent party unless that party acted with ‘substantial justification’ or the sanction would otherwise be unjust. (§§ 2030.290, subd. (c), 2031.300, subd. (c).) In addition, if that party subsequently disobeys the court’s order compelling a response, the trial court may then ‘make those orders that are just,’ including the imposition of an issue sanction, an evidence sanction, or a terminating sanction. (§§ 2030.290, subd. (c), 2031.300, subd. (c).) ‘In lieu of or in addition’ to any of those sanctions, the trial court ‘may impose a monetary sanction under’ section 2023.030. (§§ 2030.290, subd. (c), 2031.300, subd. (c).) Section 2023.030 authorizes a trial court to impose a monetary sanction against any party or attorney, or both, who has engaged in misuse of the discovery process. Misuses of the discovery process include, among other things, failing to respond or to submit to an authorized method of discovery; making, without substantial justification, an unmeritorious objection to discovery; making an evasive response to discovery; and disobeying a court order to provide discovery. (§ 2023.010.)” (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 404-405, fn. omitted.)
E. Sanctions and/or Attorney Fees Incurred in Defending the Prior Appeal
Regarding Plaintiffs’ request for monetary sanctions, we (like Plaintiffs) note that Pryke does not suggest the amounts sought are unreasonable. Rather, he claims that he should not be required to pay attorney fees incurred in defending an appeal from the order imposing terminating sanctions. While Plaintiffs argue that Pryke fails to consider the fact that, but for his failure to comply there would not have been an appeal, we note that other than Pryke’s bald assertion, he has offered no citation to the record or supporting legal authority. “‘“[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration. [Citations.]” [Citations.]’ [Citation.]” (Valov v. Department of Motor Vehicles (2005) 132 Cal.App.4th 1113, 1132.)
Moreover, Plaintiffs point out they requested some $70,815 in attorney fees, including fees for preparation of the original motion for sanctions ($3,150), preparing for and appearing at the hearings ($10,000), preparing for and attending other hearings regarding the motion to the compel ($13,530), and preparing for the renewed motion ($6,405). The request for fees incurred with respect to the appeal was for the amount of $37,730. Given the fact that the trial court imposed sanctions in the amount of $29,180, an amount less than that requested for Plaintiffs’ nonappeal fees, we are hard pressed to conclude the trial court awarded fees to Plaintiffs in relation to the prior appeal. In fact, the trial court’s minute order specifically omits any reference to fees incurred with respect to the appeal. The court listed “attorney’s fees, incurred in connection with the various motions to compel, the attempts by Plaintiffs’ attorney to secure responses from [Pryke], the opposition to the Motion to Reconsider and the instant Renewed Motion for Sanctions . . . .” Accordingly, we reject Pryke’s challenge to the award of sanctions on grounds that it included fees associated with the prior appeal.
F. Errors at the Trial Court Level Require Reversal
Pryke asserts “there is nothing noting the renewed motion against [him] to get attorney fees for an appeal that [P]laintiffs . . . LOST. [¶] Reversal is mandated also by the insufficiency of the evidence presented at the renewed motion hearing as to attorney’s fees at the time of the appeal.” Again, we note that Pryke’s assertion is made in a perfunctory fashion. There is no citation to the record, and Pryke’s conclusionary assertions are inadequate to tender a basis for relief on appeal. (Troensegaard v. Silvercrest Industries, Inc. (1985) 175 Cal.App.3d 218, 228 [error waived because no argument, citation to authorities, or reference to record].)
G. Five-Year Statute of Limitations for Bringing a Case to Trial
Finally, Pryke argues that because Plaintiffs failed to bring their case to trial within the mandatory statutory period of five years (§ 583.310), any orders are unlawful and the case must be dismissed (§ 583.360). In response, Plaintiffs argue: (1) Pryke failed to point to any part of the record showing that this issue was ever raised at the trial court level prior to the order awarding sanctions on February 13, 2008; and (2) following the order awarding sanctions, and after the notice of appeal was filed, Pryke’s motion to dismiss under section 583.360 was denied by the trial court. Accordingly, Plaintiffs argue there is no basis to reverse based on the five-year statute of limitations. We agree with Plaintiffs.
On October 15, 2008, Plaintiffs requested this court to take judicial notice of designated parts of the writ proceedings in Pryke v. The Superior Court; Bohl et al. (E046703 [writ den. 10/8/2008] (case No. E046703)) which were initiated on September 26, 2008. In that appeal, Pryke sought an order from this court directing the trial court to dismiss Plaintiffs’ action pursuant to sections 583.310 and 583.360. On October 8, 2008, we denied Pryke’s petition. On November 6, 2008, this court reserved its ruling on Plaintiffs’ request for judicial notice for consideration with this appeal. We now grant that request and will take judicial notice of the record in the writ proceedings in case No. E046703. (Evid. Code, § 459.)
Section 583.310 requires an action to be “brought to trial within five years after the action is commenced against the defendant.” Dismissal is mandatory if the action is not brought to trial within the statutory period. Section 583.360 states: “(a) An action shall be dismissed by the court on its own motion or on motion of the defendant, after notice to the parties, if the action is not brought to trial within the time prescribed in this article. [¶] (b) The requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute.” (§ 583.360; see also Sanchez v. City of Los Angeles (2003) 109 Cal.App.4th 1262, 1269.)
Under certain conditions, the five-year period may be extended or tolled. Those conditions include: (1) suspension of the jurisdiction of the trial court to try the case; (2) voluntary or involuntary stay of the prosecution; (3) impossibility, impracticability, or futility in bring the action to trial; (4) stipulation; or (5) oral agreement in open court. (§§ 583.330, 583.340.)
Here, the action was filed on June 16, 2000. On April 10, 2001, the defendants filed an anti-SLAPP motion which was pending until Pryke’s answer was stricken on November 19, 2003. As a result of the anti-SLAPP motion, all discovery proceedings were stayed. (§ 425.16, subd. (g).) During this same time, the docket statement notes a stipulation to stay proceedings pending mediation was filed on December 23, 2002.
On August 15, 2003, the trial court was informed that a second mediation was set for September; however, Plaintiffs were considering filing a discovery sanction motion for Pryke’s failure to disclose his source. Such motion was filed on September 17, 2003. Our records indicate that Pryke filed a petition for writ of mandate requesting a stay on Plaintiffs’ motion for sanctions on October 20, 2003, which was denied on November 24. (Pryke v. San Bernardino Superior Court et al., case No. E034582) Nonetheless, Plaintiffs’ motion for sanctions proceeded on November 19, 2003, when Pryke’s answer was ordered stricken.
On October 4, 2004, Pryke informed the trial court that he had filed a petition for writ of mandate and that a stay order was issued on October 1, 2004. On December 17, 2004, a notice of this court’s order denying Pryke’s petition was filed with the trial court. On February 18, 2005, Pryke notified the trial court that he had filed Chapter 11 voluntary bankruptcy and that the proceedings were stayed. As of April 18, 2005, the stay due to the bankruptcy proceedings remained in effect. On June 22, 2005, the docket log notes the appeals had concluded and that the matter was set for a hearing on the default prove-up. The default hearing began on October 6, 2005. However, on October 13, 2005, Pryke filed a notice to stay proceedings. The decision on the default judgment was filed on October 21, 2005, and notice was sent on October 27. On November 17, 2005, Pryke appealed the judgment. (Case No. E039392) Our opinion was filed on May 4, 2007, and a remittitur was issued on July 12, 2007.
In 2008 Plaintiffs renewed their motion for discovery sanctions against Pryke following this court’s opinion in case No. E039392. The motion was granted on February 13, 2008, and Pryke appealed on March 11, 2008. Despite his appeal, Pryke filed a motion to dismiss pursuant to sections 583.310 and 583.360 (five-year mandatory dismissal statute) on August 12, 2008. The motion was denied on September 9, 2008. On September 26, 2008, Pryke filed a petition for writ of mandate challenging the trial court’s ruling, and this court denied the petition on October 8. (Case No. E046703)
From our calculations, the following number of days for each calendar year since the action was filed counted towards the tolling of the five-year mandatory dismissal statute:
2000: 198 days (June 16 through December 31)
2001: 99 days (January 1 through April 9-anti-SLAPP filed April 10)
2002: 0 days (anti-SLAPP motion pending & stipulation to stay proceedings pending mediation filed on December 23)
2003: 106 days (Stay pending mediation ended on September 17 when Plaintiffs filed their motion for sanctions. Although Pryke filed a petition for writ of mandate with this court on October 20, we are not including this time because there is no indication the trial court proceedings were stayed. In fact, the sanctions motion was heard five days prior to our order denying Pryke’s writ.)
2004: 288 days (2004 was a Leap Year and the matter was stayed from October 1 through December 17 due to Pryke’s petition for writ of mandate to this court)
2005: 170 days (Pryke’s bankruptcy filed on February 18 stayed the matter until June 22 when the court set the matter for a default prove-up. Default judgment was entered on October 21 and an appeal followed.)
2006: 0 days (The case was on appeal.)
2007: 173 days (Remittitur from this court was issued on July 12.)
2008: 70 days (Pryke filed notice of appeal in this case on March 11. It is unclear whether the matter could proceed to trial while on appeal, given Pryke’s challenge to the trial court’s denial of his request to dismiss under the five-year mandatory dismissal statute. In our judgment, it could not. When we total the number of days available to proceed with this action, we get 1,104 days since the case was filed on June 16, 2000. Assuming, without deciding, that Pryke’s calculation that there are 1,825 days in five years, we (like the trial court) conclude that Plaintiffs have not failed to bring their case to trial within five years.
III. DISPOSITION
The order awarding sanctions is affirmed. Plaintiffs are to recover their costs on appeal.
We concur: MCKINSTER, J., KING, J.