Filed 12/4/15 Certified for Publication 12/22/15 (order attached)




          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                SECOND APPELLATE DISTRICT

                                             DIVISION FOUR

KARLA DANETTE MITCHELL,                                         No. B264143

        Petitioner,                                             (Los Angeles County
                                                                Super. Ct. No. BC505842)
        v.

SUPERIOR COURT OF LOS
ANGELES COUNTY,

        Respondent;

ERNESTINE LISA JOHNSON,

        Real Party in Interest.


        ORIGINAL PROCEEDINGS in mandate. Elizabeth A. Lippitt, Judge.
Petition granted.
        Law Offices of Herb Fox, Herb Fox; Law Office of A. Liberatore, and
Anthony Liberatore, for Petitioner.
        No appearance for Respondent.
        Bretoi & Associates and Jeffrey S. Bretoi for Real Party in Interest.


                              ________________________________
      This petition seeks to vacate the trial court’s order of April 20, 2015,
granting the motion in limine of defendant and real party in interest, Ernestine Lisa
Johnson. The trial court’s order excluded the testimony of three of plaintiff’s
proposed witnesses and was imposed as an evidence sanction for plaintiff’s alleged
failure to respond completely to an interrogatory.
      The court stayed the action, issued notice to the parties of its intention to
grant the peremptory writ in the first instance and gave real party in interest the
opportunity to file plenary opposition to the petition. No opposition was filed.
      We have determined that respondent committed an abuse of discretion and
that issuance of an alternative writ and oral argument would not measurably
contribute to our consideration of the issue and would cause undue delay.
(Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222-1223; Ng v. Superior
Court (1992) 4 Cal.4th 29, 35; Palma v. U.S. Industrial Fasteners, Inc. (1984)
36 Cal.3d 171, 180.)
                                       FACTS
      The material facts are undisputed. Petitioner Karla Danette Mitchell is the
plaintiff in an action filed against Johnson and Doe defendants, in which plaintiff
has sued for personal injury and property damage allegedly suffered in an
automobile accident in 2012. Plaintiff asserts she has incurred wage loss, loss of
use of property, hospital and medical expenses, general damage, property damage,
loss of earning capacity, and miscellaneous related damages.
      Defendant propounded form interrogatories published by the Judicial
Council. Interrogatory No. 12.1 relates to general investigation of an incident and
provides: “State the name, ADDRESS, and telephone number of each individual:
[¶] (a) who witnessed the INCIDENT or the events occurring immediately before
or after the INCIDENT; [¶] (b) who made any statement at the scene of the
INCIDENT; [¶] (c) who heard any statements made about the INCIDENT by any
                                           2
individual at the scene; and [¶] (d) who YOU OR ANYONE ACTING ON
YOUR BEHALF claim has knowledge of the INCIDENT (except for expert
witnesses covered by Code of Civil Procedure section 2034).”
      In response to interrogatory No. 12.1 and to defendant’s request for
supplemental answers to interrogatories, plaintiff did not identify any witness to
the “incident” except one of her children, Destin Shares, who was a passenger in
the vehicle.
      Subsequently, plaintiff identified several witnesses whom she intended to
                                                                                    1
call at trial, including Steve Meier, Dante Shamburger and Khiana Ferguson.
Each of these witnesses would testify to plaintiff’s physical limitations allegedly
resulting from the accident. In particular, these witnesses intended to describe how
plaintiff’s accident-related physical disabilities interfere with her care of her
special-needs son, impact the performance of her job as a grocery store worker,
and her related lost wage claim and dictate problems in her activities of daily
living. None of the three witnessed the accident.
      Defendant filed a motion in limine to exclude the testimony of any witnesses
not previously disclosed in discovery, arguing that the testimony of such witnesses
should be excluded as an evidence sanction for plaintiff’s failure to divulge their
identity in response to interrogatories, in particular, interrogatory No. 12.1
      The trial court agreed with defendant and granted defendant’s motion in
limine, excluding the testimony of the three witnesses at trial.

       We note that defendant’s motion in limine failed to identify with
1


particularity the witnesses or testimony defendant sought to exclude from trial;
defendant merely objected to “any additional witnesses not previously disclosed
[in discovery] . . . .” In reply papers filed in the trial court, defendant identified six
witnesses whose testimony should be excluded because plaintiff did not identify
them in response to discovery. Before the trial court and in the petition for writ of
mandate, plaintiff has addressed only proposed witnesses Meier, Shamburger, and
Ferguson; this opinion likewise is limited to those three witnesses.
                                            3
                                    DISCUSSION
      We conclude that respondent abused its discretion in excluding the
testimony of the three witnesses.
      We read interrogatory No. 12.1 to seek the identities of percipient witnesses,
witnesses who were at the scene immediately before or after the accident, those
privy to statements by percipient witnesses to an accident and those who might
have personal knowledge of the accident itself. The interrogatory does not seek
the identity of witnesses—such as those whose testimony was excluded by the trial
court—who may testify to the physical injuries or physical disabilities suffered by
a plaintiff as a result of the accident. Our view that interrogatory No. 12.1 should
be narrowly construed to refer to witnesses of the incident itself is bolstered by
other form interrogatories, in particular, Nos. 12.4 and 16.1, which distinguish
between an “incident” and a plaintiff’s “injuries.”
      Moreover, exclusion of a party’s witness for that party’s failure to identify
the witness in discovery is appropriate only if the omission was willful or a
violation of a court order compelling a response. (See Code Civ. Proc., §§
2023.030, 2030.290, subd. (c), 2030.300, subd. (e); see also Saxena v. Goffney
(2008) 159 Cal.App.4th 316, 333-335; Thoren v. Johnston & Washer (1972)
29 Cal.App.3d 270, 273-275.) Even if interrogatory No. 12.1 could be construed
as a request for the identity of witnesses who would testify to post-accident
physical disabilities and difficulties, there was no evidence that plaintiff’s failure to
identify the witnesses was willful or that plaintiff contravened a court order to
provide discovery.
      Accordingly, it was error to impose an evidence sanction based on plaintiff’s
failure to divulge the names of the three witnesses in response to interrogatory
No. 12.1 or to defendant’s general request for supplemental responses to
interrogatories.
                                            4
                                  DISPOSITION
       Let a peremptory writ of mandate issue directing respondent to vacate its
order of April 20, 2015, and to issue a new order denying defendant’s motion in
limine No. 2 to the extent it excludes the testimony of Meier, Shamburger, and
Ferguson.
       This court’s temporary stay order is vacated.
       Pursuant to California Rules of Court, rule 8.493, costs are awarded to
plaintiff.




                                                       COLLINS, J.


We concur:




WILLHITE, Acting P. J.




MANELLA, J.




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Filed 12/22/15

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            SECOND APPELLATE DISTRICT

                                     DIVISION FOUR


KARLA DANETTE MITCHELL,                            B264143

        Petitioner,                                (Los Angeles County
                                                   Super. Ct. BC505842)
        v.
                                                   ORDER CERTIFYING OPINION
SUPERIOR COURT OF LOS ANGELES                      FOR PUBLICATION
COUNTY,

        Respondent;

ERNESTINE LISA JOHNSON,

         Real Person in Interest.


THE COURT:

        The opinion in the above-entitled matter filed on December 4, 2015, was not
certified for publication in the Official Reports. Good cause appearing, it is ordered that
the opinion in the above-entitled matter be published in the official reports.




WILLHITE, ACTING P.J.                    MANELLA, J.                             COLLINS, J.
