Monday, December 7, 2015
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C.A. Scraps Sanctions Order Barring Witnesses
By a MetNews Staff Writer
The Court of Appeal for this district held Friday that a judge abused her discretion in barring testimony of three witnesses as a discovery sanction.
Div. Four issued a peremptory writ of mandate, in the first instance, directing Los Angeles Superior Court Judge Elizabeth A. Lippitt to vacate her order, and admit testimony of the witnesses at the forthcoming trial of Karla Daneete Michell’s actions for personal injuries and property damage. The actions stem from an automobile accident in 2012.
A form interrogatory directed:
“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 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).”
Mitchell identified only her son, a passenger in her car, as a witness.
Witness List
She later included three persons on her witness list who would testify as to disabilities she suffered as a result of the collision. Lippitt disqualified them as witnesses based on them not having been named in response to the interrogatory.
Writing for the appeals panel, Justice Audrey Collins said:
“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.’ ”
Willfulness Not Shown
Collins added:
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….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.”
The case is Mitchell v. Superior Court, B264143.
Herb Fox and Anthony Liberatore represented Mitchell. Jeffrey S. Bretoi was the attorney for the defendant, Ermestine Lisa Johnson.
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