2013-00152140-CU-OR

James A Anderson vs. Mark J Gilroy

Nature of Proceeding: Motion for Protective Order

Filed By: Gevelinger, Jacquie

Defendant Mark J. Gilroy’s motion for protective order restricting discovery is ruled
upon as follows.

This action arises out a personal relationship between plaintiff and defendant which
soured in February 2012. Plaintiff alleges that defendant has retained possession
and/or control over multiple pieces of real property (claimed to belong in whole or part
to plaintiff), and withholding profits earned on the real property holdings. The first
amended complaint includes five causes of action for: (1) breach of implied
agreement, (2) promissory estoppel, (3) fraud and deceit, (4) conversion, and (5)
constructive trust.

It appears that Plaintiff served his Special Interrogatories (set one) and Request for
Production of Documents (set one) to Defendant in his dual capacity as an individual
and Trustee of the Mark J. Gilroy Trust Agreement Est. June 30, 2010 (“Trustee”).
Defendant objected to the combined discovery and the parties agreed that the
discovery would be reissued. As a result, Plaintiff issued the following discovery: (1)
Special Interrogatories (set one) to Defendant as the Trustee, (2) Plaintiff’s Amended
Special Interrogatories (set one) to Defendant as an individual, (3) Request for
Production of Documents (set one) to Defendant as the Trustee, and (4) Plaintiff’s
Amended Request for Production of Documents (set one) to Defendant as an
individual. Defendant seeks a protective order excusing him from answering: (1) Special
Interrogatory Nos. 1-71 of Plaintiff’s Special Interrogatories (set one) to Defendant as
the Trustee, (2) Special Interrogatory Nos. 36-73 of Plaintiff’s Amended Special
Interrogatories (set one) to Defendant as an individual, (3) Demand Nos. 1-24 of
Plaintiff’s Request for Production of Documents (set one) to Defendant as the Trustee,
and (4) Demand Nos. 1-24 of Plaintiff’s Amended Request for Production of
Documents (set one) to Defendant as an individual. Defendant argues that the excess
number of requests (144 Interrogatories and 48 Production Demands) are harassing,
burdensome, and seek information already in Plaintiff’s possession.

The motion is DENIED. Defendant has not shown good cause for the protective order.
Here, although cumulatively, Plaintiff has propounded 144 interrogatories, he has
separately propounded 71 interrogatories on Defendant as a Trustee, and 73 on
Defendant as an individual. Plaintiff is entitled to seek discovery from each individual
defendant. Although this number is in excess of the 35 interrogatory limit per
defendant (CCP §2030.030(a)(1)), there appear to be a number of real property
transactions at issue in this case (Defendant argues that there are only 6 real property
transactions and Plaintiff argues that there are 12 real property transactions at issue)
and at least four financial accounts. Even if there are only 6 real property transactions
at issue, as Defendant contends, the Court does not agreed that the number of
interrogatories are excessive.

Defendant further argues that the document requests are intended to harass and
oppress. For example, Plaintiff seeks banks statements from 2002 to the present from
a number of different banks. The Court notes, however, that Plaintiff and Defendant’s
relationship spanned approximately 20 years in which the purported real estate
transactions, multiple bank accounts, and agreements regarding profits took place.
The Court does not agree that the requests are harassing and oppressive. Moreover,
there are no limits to the number of document requests a party may propound and the
Court does not find that each defendant responding to 24 requests is burdensome or
oppressive.

To the extent Defendant argues that the information is within Plaintiff’s possession,
Plaintiff has submitted a declaration stating that when the relationship ended, he did
not take any of the financial records and Defendant has not permitted Plaintiff to
retrieve his property or the documents in question.

Given the above, the motion is DENIED.

Both parties’ requests for sanctions are DENIED.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.