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Johnson v. Cahill Contractors4/25/2005
failure to identify the witness was not grounds for excluding his declaration, and holding that the improperly excluded declaration raised a triable issue of fact. (Ibid.)
The court in Biles distinguished Thoren v. Johnson & Washer (1972) 29 Cal.App3d 270 (Thoren), a case upholding the trial court's exclusion of a trial witness for the plaintiff on the ground that the witness had not been disclosed in discovery. (Biles, supra, 124 Cal.App.4th at pp. 1323-1324.) The plaintiff in Thoren was an injured construction worker suing his employer's subcontractor. (Biles, at p. 1323.) As shown at an evidentiary hearing held outside the jury's presence, the proposed witness was a representative of the plaintiff's union who had gone to the job site and taken pictures immediately after the accident, had sent the pictures to plaintiff's attorney, and had referred the plaintiff to that attorney. (Ibid.) Thus, as analyzed in Biles, it was critical to upholding the evidence exclusion order in Thoren that the trial court had held an evidentiary hearing and found facts demonstrating unequivocally that plaintiff had provided a " `willfully false' " discovery response to the defendant about the identity of potential witnesses. (Ibid.)
The Biles court pointed out that no cases have approved the imposition of evidence or issue sanctions absent violation of an order compelling discovery or other willful and flagrant discovery abuses. (Biles, supra, 124 Cal.App.4th at p. 1327 & fn. 8.) According to the court, evidence exclusion may only be imposed as a discovery sanction "when a party repeatedly and willfully fails to provide . . . evidence to the opposing party as required by the discovery rules." (Id. at p. 1327.)
There was no evidence of willful discovery abuse in this case. Although the Brayton Purcell firm represented Gilson at his 2001 deposition, there is no evidence that the attorney who attended the deposition from that firm was in any way involved in this case, or that he was still employed by Brayton Purcell when Johnson's discovery responses were prepared. (See Biles, supra, 124 Cal.App.4th at p. 1324.) There is also no evidence that any Brayton Purcell attorney involved in this case worked on Gilson's suit. Further, Gilson's deposition did not mention Johnson, and did not establish that Gilson worked at the Tishman Building when Johnson worked there. As Biles aptly states, "counsel cannot be charged with knowledge of facts that have not been brought to their attention, nor does the obligation to investigate before serving discovery responses require counsel to search their files in every case in their office, closed or pending, to determine whether any of the law firm's prior clients were ever co-workers of another client." (Id. at p. 1325, fn. omitted.) Finally, the fact that Johnson remembered working with Gilson on one project nearly 30 years ago, but did not recall him being a co-worker on the Tishman Building four years before that, is hardly evidence of willful discovery abuse.
The trial court therefore abused its discretion when it excluded the Gilson deposition transcript on the improper basis that Johnson failed to disclose Gilson as a potential witness concerning Johnson's work at the Tishman Building. Cahill nonetheless urges this court to uphold exclusion of the Gilson testimony based on hearsay grounds. There is authority for excluding such evidence. (See, e.g., Gatton v. A.P. Green Services, Inc. (1998) 64 Cal.App.4th 688, 692-697 [deposition testimony given in a prior case involving other parties was inadmissible hearsay for purposes of summary judgment motion in asbestos personal injury case].) In this case, however, Cahill failed to request a specific ruling
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