IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE DIANEARMESTO, a single woman, Respondent,

v. PARRIS ANDREA ROSOLINO, fka PARRIS ANDREA TILTON, fka PARRIS ANDREA LORING, a single woman, Appellant. No. 70424-9-1

UNPUBLISHED OPINION FILED: July 7, 2014 Verellen, A.C.J.

—When a trial court imposes an extreme discovery sanction 

### such as striking defenses to a claim and imposing a defaultjudgment, ourSupreme 

### Courtstrictly requires that the trial court"explicitly consider" less restrictive sanctions.1 Here, the trial court recited that "the court considered and imposed lesser sanctions and 

### they have notsufficed."2 Butthere is no indication inthe record whetherthe court considered lesser sanctions of limiting or precluding the testimony ofthe defendant ratherthan a default. The record also must support the trial court's finding thatthe 

### sanctioned party's misconductwas willful. The record on appeal does not demonstrate whetherthe trial court's finding ofwillfulness was premised in part on Parris not paying monetary sanctions, despite her informa pauperis status.

1 Burnetv. Spokane Ambulance, 131 Wn.2d 484, 494, 933 P.2d 1036 (1997). 

### 2Clerk's Papers at 1831.No. 70424-9-1/2 Parris appeals from trial courtorders striking her defenses to Armesto's defamation claim and entering defaultjudgment as a discovery sanction, imposing a 

### broad injunction, awarding Armesto attorney fees for herentire lawsuit pursuantto CR 11, and awarding damages inexcess of$500,000. We reverse the defaultjudgment and award of CR 11 sanctions. We vacate the permanent injunction. Because guidance may be helpful on remand, we also address
some questions regarding the injunction.FACTS Parris was born on November4, 1963. Her birth certificate states that she is the daughter ofLeslie Bashore and Ed Loring. She was raised by Bashore, who separated 

### fromLoring.3 When Parris was approximately three years old, Bashore married Frank Rosolino, a noted musician. Rosolino never adopted Parris. Parris lived with Bashore and Rosolino until Bashore committed suicide. Parris, then age 7, was adopted by her maternal grandparents, Clark and Darline Tilton. Inthe 1972 adoption proceedings, the King County Superior Courtfound that Loring was Parris's father, consistentwith the information on her birth certificate. In 1978, Rosolino died of an apparently self-inflicted gunshotwound. Armesto, who dated and lived with Rosolino, was a named beneficiary in Rosolino's will and executrix of his estate. Rosolino's willmade bequests to Armesto and to Rosolino's
sons. The willexpressly disinherited others, as well as those not specifically named. Parris was not named in the will.

Loring was deceased by the time events relevant to this appeal occurred.No. 70424-9-1/3 

### Parris filed forbankruptcy in 2004. Also in 2004, Parris commissioned a DNA4 testto determine whether she was biologically related to Rosolino. The testfound to a 96 percentdegree ofcertainty that she is not biologically related to Rosolino. A sibling 

### DNAtestfrom 2008 produced an "inconclusive" result.5 During 2005 and 2006, Parris began to research potential royalties associated with the Rosolino estate. In2007, Parris changed her last name to Rosolino in King County District Court. Also in 2007, Parris contacted record companies claiming to be 

### Rosolino's daughter and seeking to access funds associated with Rosolino's estate. Inconjunction with these efforts, Parris repeatedly posted extremely inflammatory material on the Internet and in otherwritings, claiming thatArmesto killed Rosolino and committed otheregregious crimes. Inpublishing these allegations, Parris claimed to be Rosolino's biological daughter and an heirto his estate. Armesto initiated a lawsuit against Parris for defamation, false light, and intentional infliction ofemotional distress. The complaint alleged that Parris "is notthe 

### natural born daughter ofMr. Rosolino, and he never adopted her," that Parris changed her name in 2007 "falsely claiming to have once been a Rosolino," and that Parris 

### frequently purported to be Rosolino's "natural born daughter" and claimed rights to Rosolino's estate.6 Parris primarily defended the action pro se, but had counsel attimes. The trial court granted her in forma pauperis status. She filed a counterclaim againstArmesto, which she later dismissed. 

### 4Deoxyribonucleic acid. 5Clerk's Papers at 138. 6Clerk's Papers at 3, 5.No. 70424-9-1/4 During discovery, the trial court sanctioned Parris inJuly 2011, but that orderwas 

### subsequently vacated. The trial court later intervened when Parris refused to answer questions about her biological parentage and her alleged effortto embezzle. On July 26, 2012, the court ordered Parris to supplement her discovery responses and to pay a $500 sanction. Parris refused to comply with either. The trial court imposed additional sanctions totaling $2,610 and required Parris to pay within five days. The trial court stated that itwould strike Parris's defenses to the complaint ifshe failed to comply with its orders. Parris did not pay the sanctions or provide the discovery requested. The trial court struck Parris's defenses to the complaint and allowed Armesto to submit proposed findings offact and conclusions of law for entry ofdefaultjudgment. The trial court accepted the findings substantially inthe form presented and later entered supplemental findings and conclusions. The trial courtfound that Loring, not Rosolino, was Parris's biological father. The courtvacated the 2007 Seattle district court order changing Parris's last name to Rosolino and permanently enjoined Parris from certain speech and conduct, including use ofthe name Rosolino. The court awarded Armesto $400,000 indamages for emotional distress and $100,000 in economic damages. The court also ordered Parris to pay Armesto's attorney's fees under CR 11. Parris appeals.No. 70424-9-1/5
ANALYSIS Discovery Sanctions 

### Parris asserts thatthe trialcourt abused its discretion under CR 37 byentering a defaultjudgment in favor ofArmesto as a discovery sanction for Parris's failure to pay


### over $3,000 interms and refusal to comply with discovery orders. We agree. CR 37 provides that ifa party fails to obey an orderto provide or permit discovery, the court in which the action is pending may enter "such orders inregard to the failure as arejust," including: (A) An orderthatthe matters regarding which the orderwas made or any other designated facts shall be taken to be established for the 

### purposes ofthe action inaccordance withthe claim ofthe party obtaining the order; 

### (B) An order refusing to allow the disobedient party to supportor 

### oppose designated claims ordefenses, or prohibiting him from introducing designated matters in evidence; 

### (C) Anorderstriking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceedings or any partthereof, or rendering ajudgmentby default againstthe disobedient party;


### In lieu ofany ofthe foregoing orders or inaddition thereto, the court 

### shall require the party failing to obey the orderorthe attorney advising him or both to pay the reasonable expenses, including attorney fees, caused 

### bythe failure, unless the courtfinds thatthe failure was substantially 

### justified or that othercircumstances make an award ofexpenses unjust.'71 When the trialcourt chooses one ofthe harsher remedies allowable under CR 37(b), it mustbe apparentfrom the record thatthe trialcourt explicitly (1) finds thatthe party willfully or deliberately violated the discovery rules and orders, (2) finds thatthe



### 7CR 37(b)(2).No. 70424-9-1/6 

### opposing party was substantially prejudiced in its ability to prepare for trial, and 

### (3) considers whether lessersanctions would have sufficed.8 Our Supreme Court recently held that 

### [fjindings regarding the Burnetfactors must be made on the record orally or in writing. Thus, where [a discovery sanction order] is entered without oral argument or a colloquy on the record, findings on the Burnetfactors must be made inthe order itselfor in some contemporaneous recorded 

### finding.[9] Trial courts are afforded broad discretion in imposing sanctions, and a determination on sanctions should not be disturbed absent a clear abuse ofdiscretion.10 Here, the limited findings and record do not satisfythe requirements thatthe trial court explicitly considered less restrictive sanctions and made a properwillfulness determination. The trial court order recites that "[tjhis Court has considered and imposed lesser sanctions and they have not sufficed" and that Parris's violation was 

### willful.11 The orderstates that Parris was previously compelled, sanctioned, or held in contempt and that she violated the court's November 16, 2012 discovery order by failing 

### to respond fully to deposition questions andby failing to pay $500 interms and $2,610 in attorney fees. Ofgreatest concern is the trial court's conclusion that no lesser sanctions are practical because attempts at prior sanctions failed. The record reveals that the other sanctions the trial court attempted were narrow and few. The trial court ordered Parris

8 Burnet, 131 Wn.2dat494. 

### 9Teterv. Deck, 174 Wn.2d 207, 217, 274 P.3d 336 (2012) (citation omitted). 

### 10 Mayer v. Sto Indus., Inc., 156 Wn.2d 677, 684, 132 P .3d 115 (2006). 11 Clerk's Papers at 1831.No. 70424-9-1/7


### to answer requests for production and pay $500 in July 2012, and on November 16, 

### 2012, ordered herto answer and pay $500 plus $2,610 within five days orthe court would strike her defenses to the complaint. Other discovery hearings are of little consequence. The July 2011 sanction was subsequently vacated. Atthe November 1, 2012 hearing, the court cautioned Parris to carefully consider before she refused to
answer any questions about paternity or embezzlement, but did not impose or discuss 

### any sanctions.12 Striking defenses and entering a defaultjudgment is the ultimate discovery sanction against a defendant. There is no indication inthe record before us thatthe trial court considered less severe sanctions such as limiting the scope of Parris's testimony 

### at trial or precluding any testimony by Parris. Ifthe court considered such alternatives and rejected them, the record should contain an indication, either in a written orderor a 

### transcription of a hearing, with an explicit explanation as to why those lesser sanctions 

### were notsuitable here.13 The ordergranting defaultjudgmentdoes notfully setforth the basis for the trial court's determination that lesser sanctions would not have been adequate. 

### Regarding willfulness, it is clearthat Parris intentionally refused to answer 

### legitimate discovery questions. Parris willfully refused to answerquestions about her claim that she is the natural born daughter ofRosolino and aboutthe basis for her



### 12We grantArmesto's unopposed motion to supplementthe record with the November 1 and November 16, 2012 hearings. 

### 13 See Burnet, 131 Wn.2d at497 ("itwas an abuse ofdiscretion for the trial court to impose the severe sanction of limiting discovery and excluding expertwitness 

### testimony
. . . withoutfirst having at least considered, on the record, a less severe sanction that could have advanced the purposes ofdiscovery") (emphasis added).No. 70424-9-1/8 related claim that she is an heir entitled to royalties. Parris's objections to both requests 

### for production and her objections during herdeposition establish no validjustification for failing to answerthose questions. But it is unclearfrom the record whetherthe court based its willfulness finding, in part, upon Parris's failure to pay the sanctions when Parris may have merely lacked the ability to pay them. 

### The trial court's January 17, 2013 order identifies Parris's failure to pay the $500 sanctions imposed on July 26, 2012 and the $2,610 imposed on November 16, 2012 as part ofthe basis for imposition ofdefault as a discovery sanction. A person's financial inability to comply with a monetary penalty imposed by a court does not support a 

### finding that the party willfullyfailed to comply.14 Accordingly, when a court has recognized a party's informa pauperis status, the record must be sufficiently developed to allow the determination whetherthe party's inability to pay sanctions lacks a valid
excuse orjustification (such as a showing thatthe party no longer has informa pauperis status). Absent a factual basis inthe record demonstrating that Parris willfully failed to pay monetary sanctions, we cannot conclude thatthe trial court's finding ofwillfulness

was based on a sound exercise of its discretion. It is not clearwhetherthe trial court "explicitly considered" whether lesser sanctions would have been ineffective and whetherthe trial court's willfulness finding is based upon Parris's inability to pay. Underthe circumstances ofthis case, the record does not reveal whether the trial court properly exercised its discretion in imposing the extreme discovery sanction ofdefault. We reverse the defaultjudgment.


### 14 See Thomas v. Gerber Productions. 703 F.2d 353 (9th Cir. 1983) (abuse of discretion to impose $750 discovery sanction when court knows unable to pay the sanction).No. 70424-9-1/9
CR11 Parris challenges the trial court's award to Armesto of$162,117.20 in attorney fees as a CR 11 sanction against Parris. This award encompassed the entire cost of 

### Armesto's lawsuit, including prosecuting her own claim and defending against Parris's counterclaim. 

### An award ofattorney fees under CR 11 is limited to amounts "'reasonably expended in responding to [specified] sanctionable filings,"' and appellate courts will 

### remand unless the trial court articulates cleargrounds for any award of CR 11 sanctions 

### and limits its award accordingly.15 We review a trialcourt's award ofattorneyfees under CR 11 for an abuse ofdiscretion.16 

### The trialcourt erred by imposing CR 11 sanctions encompassing the entirety of Armesto's attorneyfees without any segregation and without a demonstration thatthe fees were incurred due to specific "sanctionable filings." Here, the trial court made no findings that specific filings by Parris were deficient. Both the lack ofsegregation and the failure to tie the amounts to specific sanctionable filings compel reversal ofthe CR 11 award to Armesto. Injunction 

### Parris also challenges the injunctive reliefgranted. Because we reverse the defaultjudgment, the permanent injunction is necessarily vacated. Becausethe trial court may ultimately confront a renewed requestfor an injunction and some guidance



### 15 Just Dirt. Inc.v. Knight Excavating. Inc.. 138 Wn. App. 409, 418, 157P.3d431 (2007) (quoting Biggs v. Vail. 124 Wn.2d 193, 201, 876 P.2d 448 (1994)). 

### 16 Harrington v. Pailthorp. 67 Wn. App. 901. 910. 841 P.2d 1258(1992).No. 70424-9-1/10 

### may be helpful on remand, we address some troublesome aspects ofthe injunctive reliefgranted. 

### Following entry ofdefault, the trial court entered a permanent injunction. Parris attacks portions ofthe injunction on the grounds of unconstitutional prior restraint


### on speech, vagueness, and overbreadth. Specifically, Parris asserts that (1) the restriction on any Internet postings aboutArmesto is an unconstitutional prior restraint
on speech, (2) the restriction on "implied" defamatory communications is 

### unconstitutionally vague, and (3) the provisions ofthe injunction relating to Parris's
name change exceed the trial court's authority. Freedom ofspeech is not an absolute right, and the State may punish its 

### abuse.17 "Itis important to safeguard First Amendment rights; it is also important to give protection to a person who is intentionally and maliciously defamed, and to discourage 

### that kind ofdefamation inthe future."18 Washington trialcourts have the authority to enjoin dissemination ofabusive speech, which includes defamation and harassment.19 A trial court's decision to grant an injunction and its decision regarding the terms ofthe 

### injunctionare reviewed forabuse ofdiscretion.20

17 Bering v. SHARE, 106 Wn.2d 212, 226, 721 P.2d 918 (1986). 18 Maheuv. Hughes Tool Co.. 569 F.2d 459, 479-80 (9th Cir. 1977). 19 Bering, 106 Wn.2d at 244; Rhinehart v. Seattle Times Co., 98 Wn.2d 226, 237, 654 P.2d 673 (1982), affirmed, 467 U.S. 20, 104 S. Ct. 2199, 81 L. Ed. 2d 17 (1984); Jn re Marriage of Meredith. 148 Wn. App. 887, 902, 201 P.3d 1056 (2009) (remanding to family courtto craft a protective orderto preventfurther harassing and libelous communications); cf. Maheu, 569 F.2d 459, 480 (holding that "the state's interest in deterring malicious defamation, for the purpose ofprotecting privacy and reputation, even when public figures are involved, is compelling"). 

### 20 State v. Kaiser. 161 Wn. App. 705, 726, 254 P.3d 850 (2011).

10No. 70424-9-1/11 

### Prior restraints on speech before publication are disfavored because such restraints burden the exercise ofthe right to speak before any abuse ofthe right is 

### shown.21 Post-publication restrictions, on the otherhand, "simply prohibitfurther 

### exercise of the right after a showing ofabuse."22 Subsequentpunishmentofabusive 

### speech, including an injunction of repetitive defamation, is not a priorrestraint.23 Parris argues thatthe provision enjoining herfrom "expressly or impliedly posting
on the Internet aboutArmesto" encompasses her ability to speaktruthfully about 

### Armesto and thus is not specifically crafted to prohibitonly unprotected speech. Such 

### broad prohibitions can be "unconstitutional prior restraints]."24 Parris also argues that certain terms ofthe injunction are "hopelessly vague," such as the prohibition against posting "'any content on the Internetthat expresses or 

### implies that [she] is the natural, biological or adopted daughterof FrankRosolino.'"25 When "'ordinary people [can't] understand what conduct is prohibited,' a prohibition is 

### void forvagueness."26 Post-publication restraints on defamation can extend to implied comments. Our Supreme Court has long recognized that speech may be defamatory 

### byimplication.27 Moreover, restrictions against implying a biological or adoptive
21 Seattle v. Bittner, 81 Wn.2d 747, 756, 505 P.2d 126 (1973). 22 Bering, 106 Wn.2d at 243. 

### 23 Seejd. at 235 (emphasizing "importantdistinction between priorrestraint and subsequent punishment"); Bradburn v. N. Cent. Reg'l Librarv Dist.. 168 Wn.2d 789, 802, 231 P.3d 166 (2010) ("A prior restraint seeks to prohibit future speech ratherthan to punish speech that has occurred."). 

### 24 Meredith, 148Wn. App. at 898. 

### 25 Brief ofAppellant at 10 (quoting Clerk's Papers at 2170). 26 lg\ (alteration in original) (quoting O'Dav v. KingCounty, 109Wn.2d 796, 811, 749 P.2d 142 (1988)). 27 See Mohrv. Grant, 153 Wn.2d 812, 823-26, 108 P.3d 768 (2005).

11No. 70424-9-1/12 

### relationship to an individual may, insome circumstances address specifictortious speech. Here, however, the court itselfrecognizes Parris's arguable status as Rosolino's step-daughter. IfArmesto prevails on remand, any restriction should be properly tailored. For example, a photo ofParris as a child with Rosolino, without additional comment, would not be troublesome. A reference to Rosolino as her step father, alone, would not be troublesome. References to herselfas the natural born, biological, or adoptive daughter or heir of Rosolino would be troublesome. 

### The trial court's purported vacation ofthe district court order changing Parris's last name to Rosolino also raises significantprocedural concerns. Generally, superior 

### courts and district courts have authority to change an individual's name,28 and a "trial court is vested with a broad discretionary powerto shape and fashion injunctive relief to 

### fit particular facts, circumstances, and equities of the case before it."29 However, in awarding remedies for a defaultjudgment, the trialcourt may not order relief inexcess 

### of or substantially different from that described in the complaint.30 Armesto never requested thatthe trialcourt invalidate Parris's name change. The trial court, sua sponte, proposed this remedy. It is also a concern when a superiorcourt purports to

2815A Karl B. Tegland &Douglas J. Ende, Washington Practice: Washington 

### Handbookon Civil Procedure § 9.4, at 179 (2013-2014 ed.) (both superior courts and 

### district courts havejurisdiction over name changes); Moore v. Perrot, 2 Wash. 1, 4, 25 P. 906 (1891) (superior courts have "universal originaljurisdiction."). 

### 29 Rupertv. Gunter, 31 Wn. App. 27, 30, 640 P.2d 36 (1982). 30 In re Marriage ofLeslie, 112 Wn.2d 612, 617, 772 P.2d 1013 (1989). 

### Generally, "'[o]ne has a right to assume thatthe reliefgranted on defaultwill not exceed or substantially differ from thatdescribed inthe complaint and may safely allow a default to be taken in reliance upon this assumption.'" Columbia Valley Credit Exch.. Inc. v. 

### Lampson, 12 Wn. App. 952, 954-55, 533 P.2d 152 (1975) (alteration in original) (quoting Sceva Steel Bldqs.. Inc. v. Weitz, 66 Wn.2d 260, 262, 401 P.2d 980 (1969)).

12No. 70424-9-1/13
vacate a district court order outside ofthe parameters of a RALJ appeal or a writ proceeding. AttorneyFees on Appeal Because Parris's appeal is meritorious, we deny Armesto's requests attorney 

### fees on appeal under RAP 18.9(a).31 We reverse the defaultjudgment and CR 11 sanction award, vacate the 

### permanent injunction,32 and remand for further proceedings consistentwith this opinion.

WE CONCUR:



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### 31 Halvorsen v. Ferguson, 46 Wn. App. 708, 723, 735 P.2d 675 (1986). 

### 32 Ofcourse, Armesto may seek a temporary injunctionpending the outcome of the litigation.

13