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 Part y in Interest. No. B264143

(Los Angeles County Super. Ct. No. BC505842)

ORIGINAL PROCEEDINGS in mandate. Elizabeth A. Lippi tt, Judge.
Petition granted.

Law Offices of Herb Fox

, Herb Fox; Law O ffice of A. Liberatore, and
Anthony Liberatore, for Petitioner.
No appearance for Respondent.

Bretoi & Associates and Jeffrey S. Bretoi for Real Part y in Interest.

__________________ ______________2

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 exclude d the testimony of thre e of plaintiff’s

p roposed 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 insta nce and gave real part y 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 p laintiff
has sued for personal injury and property damage allegedly suffered in an

au tomobile accident in 2012. Plaintiff asserts she has incurred wage loss, los s of

use o f property, hospital and medical expenses, general damage, property damage,
loss of earning capacity

, and miscellaneous related damages

. Defendant propounded form int errogatories published by the Judicial

Coun cil

. 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 occ urring 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 any3

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 i nterrogatory No. 12.1 and to defendant’s request for
supplemental answers to interrogatories, p laintiff 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 Me ier, D ante Shamburger and Khiana Fer guson

. 1

Each of these witnesses would testify to plaintiff’s physical limitations allegedly
resulting from t he accident. I n particular, the se witnesses intended t o 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 e xclude 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 partic ular, i nterrogatory 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 dis covery]

. . . .” 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 mand ate, plaintiff has addressed only proposed witnesses Meier, Shamburger, and Ferguson; this opinion likewise is limited to those three witnesses.4 DISCUSSION
We conclude that respondent abused its discretion in excluding the

testimo ny of the three witnesses.

We read i nterrogatory 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 tho se who might
have personal knowledge of the accident itself

. The interrogatory does not seek

the identi t y of witnesses

— such as those whose testimony was excluded by the trial

court

— who may testify to the physical injur ies or physical disabilities suffered by
a plaintiff as a result of the accident. Our view that i nterrogatory 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

be tween 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. ) E ven if i nterrogatory No. 12.1 could be constr ued
as a request for the identity of witnesses who would testify to post

- accident
physical disabilities and difficulties, there was no evidence that p laintiff’s failure to
identify the witnesses was willful or that plaintiff contravened a court order to

pr ovide 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 i nterrogatory

No. 12.1 or to defendant’s general request for supplemental responses to

int errogatories.5 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

. B2 64143

(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.