Court Finds Form Interrogatory 12.1 Does Not Require Identification of All Types of Witnesses

Author: Kristi Blackwell

March 1, 2016 2:01am

The California Court of Appeal for the Second Appellate District, Division Four recently ruled Form Interrogatory No. 12.1, which asks a party to identify witnesses to an incident, does not require a plaintiff to identify witnesses who will testify at trial regarding how plaintiff’s injuries from the accident have affected plaintiff’s daily life.

In Mitchell v. Superior Court (2015) B264143, a personal injury case arising from an automobile accident, the defendants propounded Form Interrogatories to plaintiff, including Form Interrogatory No. 12.1, which states as follows:

State the name, ADDRESS, and telephone number of each individual:

  • Who witnessed the INCIDENT or the events occurring immediately before or after the INCIDENT;
  • Who made any statement at the scene of the INCIDENT;
  • Who heard any statements made about the INCIDENT by any individual at the scene; and
  • 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 plaintiff’s response to Form Interrogatory No. 12.1, she identified only her son, who was a passenger in her vehicle at the time of the incident.  Plaintiff did not identify any additional witnesses in response to defendants’ supplemental interrogatories.

Later, plaintiff identified three witnesses she intended to call at trial to testify regarding her physical limitations due to her injuries from the accident and the impact of the accident on her daily life, including the restrictions on her ability to care for her special-needs son and to perform her job duties as a grocery store worker.

Defendants filed a pre-trial motion in limine to exclude the testimony of any witnesses not previously disclosed in discovery, including the three aforementioned witnesses.  The trial court granted the motion in limine and excluded the three witnesses from testifying at trial.

The Court of Appeal found the trial court abused its discretion in excluding the testimony of the three witnesses.  The Court held Form Interrogatory No. 12.1 does not require a plaintiff to disclose witnesses who may testify to the impact of plaintiff’s physical injuries or disabilities on the plaintiff’s life.

The Court narrowly interpreted Form Interrogatory No. 12.1 as asking for the identities of percipient witnesses, i.e., those who have personal knowledge of the accident, those who were at the accident scene, and those privy to statements by percipient witnesses to an accident.  In support of its conclusion, the Court noted Form Interrogatories 12.4 and 16.1 distinguish between an “incident” and plaintiff’s “injuries.”

In addition, the Court held the exclusion of a party’s witness for 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.  The Court did not find any such willfulness or violation in this case.

Based on this Court of Appeal’s interpretation of Form Interrogatory No. 12.1, the defense should not rely solely on this interrogatory as a means of determining who the plaintiff will call as witnesses at trial.  In order to obtain the identities of witnesses plaintiff intends to call at trial to testify regarding the impact of the accident on the plaintiff’s life, the defense can propound a special interrogatory specifically requesting these names.


Kristi Blackwell is a Partner at Tyson & Mendes.  She specializes in general liability, professional liability and business litigation. Contact Kristi at 858.459.4400 or

Download the full article here.

Copyright © 2018 Tyson & Mendes LLP. All Rights Reserved. Website by Big Behavior.