2017-00208869-CU-OE

Leila Quintana vs. Kaiser Foundation Hospitals

Nature of Proceeding: Motion to Compel Form Interrogatories, Set Three

Filed By: Granieri, Christy W.

Plaintiff’s Motion to Compel Further Responses to Form Interrogatories Set Three, Nos 12.1, 12.2, and 12.6, is granted.

Plaintiff alleges that she was discriminated against on the basis of her disability. Plaintiff initially propounded Set 1 Form Interrogatories that contained a definition of “Incident” that Kaiser objected to. Form Interrogatory 4(a)(2) allows a party to define incident with a unique description. The definition of Incident in Form Interrogatories Set One was:

The term INCIDENT(S) means the circumstances, events, acts, and/or omissions that gave rise to Plaintiff Leila Quintana’s causes of action for (1) discrimination based on a disability in violation of FEHA; (2) retaliation in violation of FEHA; (3) failure to prevent discrimination and retaliation in violation of FEHA; (4) retaliation in violation of Labor Code Section 1102.5; and (8) (sic) declaratory and injunctive relief pursuant to California Code a/Civil Procedure Section 1060 and Government Code Sections 12920 and 12920.5, et seq.

Kaiser served objections to Set One on July 25, 2017, contending the definition of Incident was “vague, ambiguous, overbroad unintelligible and calls for speculation.” As a result of the objection to the term “Incident” plaintiff decided to serve four additional sets of Form Interrogatories that re-defined the definition of “Incident” in an attempt to address Kaiser’s concerns. Form Interrogatories Sets Two, Three, Four and Five were served by mail on August 29, 2017. Set Three defines incident as:

the circumstances, events, acts, and/or omissions that gave rise to Plaintiff Leila Quintana’s cause of action for retaliation in violation of FEHA

These additional sets of Form Interrogatories were served before plaintiffs’ deadline to move to compel responses to Form Interrogatories Set One.

Kaiser objected to Sets Two-Five on the basis they were duplicative of the prior discovery. Kaiser again objected to the definition of Incident in each set, contending

that the new definitions of incident were likewise objectionable. Kaiser contends plaintiff merely took the definition in Set One and divided it up into four separate definitions of incident (disability discrimination, retaliation, failure to prevent discrimination and retaliation, retaliation under Labor Code section 1102.5) without curing the objection.

In its opposition, Kaiser contends plaintiff has waived her right to seek further responses to sets Two-Five because she never moved to compel responses to Set One. However, plaintiff in effect replaced Set One with Sets Two-Five before the deadline for a motion to compel on Set One had passed. It might have been prudent for plaintiff to withdraw Set One, however she did not. Plaintiff concedes that the same numbered interrogatories were chosen, 12.1, 12.2, and 12.6, but contends that since the definition of incident was now different in each of the Sets Two-Five, they were not identical interrogatories to those served in Set One. The Court agrees, and finds that plaintiff did not waive her right to compel further responses to Form Interrogatories, Sets Two-Five.

Alternatively to the waiver argument, Kaiser contends this motion is moot and must be dropped. After this motion was served, Kaiser serve Amended Responses to Special Interrogatories, Sets Two, Three, Four, and Five. Kaiser contends the amended responses moot the motion. However, a party seeking to compel discovery is not required to drop a motion if responses are served before the hearing. The party is entitled to a court order compelling verified compliant responses. The motion to compel may be heard even if tardy responses are served after the motion is filed. Unless the propounding party takes the motion off calendar, the court may determine whether the responses are legally sufficient. Sinaiko Healthcare Consulting, Inc. v Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 404. Kaiser is ordered to respond to Form Interrogatories, Set Three, without objection to the definition of Incident, on or before January 31, 2018. The Court finds that plaintiff’s definition of Incident in Set Three is sufficient.

Sanctions are denied as both the motion and the opposition were filed with substantial justification.