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,

Petitioner,

v.

SUPERIOR COURT OF LOS 

ANGELES COUNTY,

Respondent;

ERNESTINE LISA JOHNSON,

Real Party in Interest.

 No. B264143

 (Los Angeles County

 Super. Ct. No. BC505842)

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.

________________________________
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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 
3

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 

call at trial, including Steve Meier, Dante Shamburger and Khiana Ferguson.

1

 

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. 

 

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

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. 
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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. 
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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.
Filed 12/22/15

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

KARLA DANETTE MITCHELL,

Petitioner,

v.

SUPERIOR COURT OF LOS ANGELES 

COUNTY, 

 Respondent;

ERNESTINE LISA JOHNSON,

 Real Person in Interest. 

 B264143

 (Los Angeles County

 Super. Ct. BC505842)

 ORDER CERTIFYING OPINION 

 FOR PUBLICATION

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.