Thoren v. Johnston & Washer

• Decision Date: 08 December 1972
• Citation: 105 Cal.Rptr. 276,29 Cal.App.3d 270
• Court: California Court of Appeals Court of Appeals
• Parties: Walter W. THOREN, Plaintiff and Appellant, v. JOHNSTON AND WASHER, a corporation, and Century Conditioning Corporation, a corporation, Defendants and Respondents. Civ. 39643.

Page 276

105 Cal.Rptr. 276

29 Cal.App.3d 270

Walter W. THOREN, Plaintiff and Appellant, v. JOHNSTON AND WASHER, a corporation, and Century Conditioning Corporation, a corporation, Defendants and Respondents.

Civ. 39643.

Court of Appeal, Second District, Division 1, California.

Dec. 8, 1972.

L. L. Blanchard, Larry Rabineau, Los Angeles, and Michael L. Younger, Santa Monica, for plaintiff and appellant.

Cummins, White & Breidenbach, W. F. Rylaarsdam, Kinkle, Rodiger, Graf, Dewberry & Spriggs, and Mario A. Iorillo, Los Angeles, for defendants and respondents.

THOMPSON, Associate Justice.

This is an appeal from a judgment of nonsuit entered after the trial court granted respondents' motion to exclude the testimony of a witness offered by appellant. We affirm the judgment.

On October 23, 1967, appellant was employed as a carpenter by Peter Kiewit Construction Company. While working for his employer, he descended a subbasement at a hospital construction site. Appellant tripped over a wire and injured his right arm. Having pursued his remedies under he Workmen's Compensation Law against his employer, appellant brought suit against respondents, subcontractors on the job, alleging that the wire over which he had tripped was exposed in a dangerous condition because of their negligence. He filed his complaint on September 30, 1968.

On January 16, 1969, respondents served terrogatory 'B--2' asks: 'State the names, Code of Civil Procedure section 2030. Interrogatory 'B--2' asks: 'State the names, addresses, or last known whereabouts, home telephone numbers, places of employment, and job titles or capacities of all witnesses known to you, your attorneys, employers, agents, investigators or insurance company, who arrived or claim to have arrived, or whom you believe to have arrived, at the scene of the accident immediately or shortly after its happening.' On January 27, 1969, appellant answered interrogatory B--2 with 'See B--1.' The answer to interrogatory B--1 is 'Dick Moscrop, 11156 Yukon Avenue, Inglewood.'

Trial in the matter at bench began before a jury on August 30, 1971. In his opening statement, appellant's counsel referred to expected testimony of Robert B. Clubb who arrived at the scene of the accident shortly after it occurred. Clubb had taken pictures of the accident scene and could testify to the condition of the bottom of the subbasement where the accident occurred and the nature of loose wires there. Respondents moved to exclude the testimony of Clubb on the ground that appellant had willfully omitted his name in the answer to interrogatory B--2. The trial court conducted a hearing on the motion outside the presence of the jury. At that hearing, it developed that Clubb was a representative of the United Brotherhood of Carpenters and Joiners of America, and that he was appellant's 'representative as far as organized labor is concerned.' As soon as Clubb heard of appellant's accident, he went to the job site and inspected the scene. Clubb took pictures of the scene which he sent to appellant's attorney. That attorney conceded that Clubb was responsible for the case at bench reaching his office, and Clubb testified in effect that the referral was made in his capacity as appellant's union representative. The only prior reference to Clubb in discovery conducted in the litigation was appellant's statement at his deposition that Clubb had taken pictures of the accident scene the day after the injury occurred. The trial court found that the omission of Clubb's name from the answer to interrogatory B--2 was willful and barred his testimony of observations at the accident scene. Without that testimony, appellant was unable to establish that anyone other than his own employer was responsible for the loose wire over which he had tripped. The trial court therefore granted respondents' motion for a nonsuit.

On this appeal from the resulting judgment, appellant does not argue that the evidence before the trial court, viewed in the light most favorable to him, would support a judgment in his favor. He contends that the trial court erred in granting respondents' motion to exclude the testimony of Clubb. We find no abuse of trial court discretion in that ruling.

The power of the trial court to bar the testimony of a witness willfully excluded from an answer to an interrogatory seeking the names of witnesses to an occurrence is found in the express language of the discovery act and is an inherently necessary one if the purposes of the act are to be achieved.

Code of Civil Procedure section 2019, subdivision (b), provides with respect to depositions that 'the court may make any . . . order which justice requires to protect the party or witness from annoyance, embarrassment, or oppression.' Section 2019(b) is made applicable to discovery in the form of interrogatories by Code of Civil Procedure section 2030. An order which bars the testimony of a witness whose name was deliberately excluded in an answer to an interrogatory seeking the names of witnesses protects the interrogating party from the oppression otherwise flowing from the answer. One of the principal purposes of civil discovery is to do away with 'the sporting theory of litigation--namely, surprise at the trial.' (Chronicle Pub. Co. v. Superior Court, 54 Cal.2d 548, 561, 7 Cal.Rptr. 109, 115, 354 P.2d 637, 643.) The purpose is accomplished by giving 'greater assistance to the parties in ascertaining the truth and in checking and preventing perjury,' and by providing 'an effective means of detecting and exposing false, fraudulent and sham claims and defenses.' (Greyhound Corp. v. Superior Court, Merced County, 56 Cal.2d 355, 376, 15 Cal.Rptr. 90, 99, 364 P.2d 266, 275.) Where the party served with an...