Cindy M Hann vs Theresa Lynn Colosi

Case Number

20CV01984

Case Type

Hearing Date / Time

Mon, 10/20/2025 - 10:00

Nature of Proceedings

Motion: Attorney Fees

Tentative Ruling

Cindy M. Hann v. Theresa Lynn Colosi

Case No. 20CV01984

           

Hearing Date: October 20, 2025                                                         

HEARING:              Motion of Plaintiff Cindy M. Hann for Award of Attorney Fees Against Defendant Theresa Colosi

ATTORNEYS:        For Plaintiff and Cross-Defendant Cindy M. Hann: Patrick McCarthy, William P. Frusetta, McCarthy & Kroes

                             For Defendant and Cross-Complainant Theresa Colosi: Self-represented

                             For Cross-Defendant Kevin S. Hutcheson: Self-represented

                                    For Cross-Defendant Steve Smith, PsyD.: Lindsey M. Romano, Gordon Rees Scully Mansukhani, LLP

                                    (For other appearances see list)

                                   

TENTATIVE RULING:

The hearing on the motion of plaintiff Cindy M. Hann for an award of attorney fees against defendant Theresa Colosi under Code of Civil Procedure section 1021.4 is continued to December 15, 2025. On or before November 17, 2025, plaintiff shall file and serve her supplemental brief and evidence as discussed herein. Colosi shall file any supplemental response on or before December 8, 2025.

Background:

On June 5, 2020, plaintiff Cindy M. Hann filed her original complaint in this action against defendant Theresa Colosi. The original complaint asserted three causes of action: (1) civil assault and battery; (2) intentional infliction of emotional distress; and (3) avoidance, recovery, and damages for fraudulent transfers.

The first two causes of action arise out of Colosi’s physical attack on Hann on December 8, 2019. (Complaint, ¶¶ 8, 16-20, 24-26.) The third cause of action seeks to recover assets concealed by Colosi. (Complaint, ¶¶ 29-35.)

On April 7, 2023, Colosi pleaded guilty to criminal charges under Penal Code section 245, subdivision (a)(1). (Frusetta decl., exhibit 2, ¶¶ 1, 9.)

On April 19, 2024, Colosi answered Hann’s complaint, filing a General Denial which asserted no affirmative defenses. Also on April 19, 2024, Colosi filed her original cross-complaint against 62 cross-defendants, including Hann. On June 11, 2024, Colosi filed a first amended cross-complaint naming 66 cross-defendants.

On July 12, 2024, Hann filed a motion to sever and bifurcate Colosi’s cross-complaint from Hann’s complaint. On September 30, 2024, the court granted Hann’s motion to sever the Colosi cross-complaint from Hann’s complaint and to proceed with each separately. (Note: Although for administrative purposes the same case number continues to be used, the complaint and cross-complaint thereafter are proceeding as separate actions for all purposes.)

On May 14, 2025, the court commenced trial on Hann’s complaint.

On May 29, 2025, the jury returned a verdict in the trial of Hann’s complaint in favor of Hann and against Colosi.

On June 5, 2025, Colosi filed a notice of appeal of the judgment and order after trial with respect to Hann’s complaint.

On June 16, 2025, the court entered its judgment on the Hann complaint in favor of Hann and against Colosi in the amount of $755,000.00.

On July 24, 2025, Hann filed this motion for an award of attorney fees in the amount of $251,666.67 pursuant to Code of Civil Procedure section 1021.4.

The motion is opposed by Colosi.

Analysis:

“In an action for damages against a defendant based upon that defendant’s commission of a felony offense for which that defendant has been convicted, the court may, upon motion, award reasonable attorney’s fees to a prevailing plaintiff against the defendant who has been convicted of the felony.” (Code Civ. Proc., § 1021.4.)

“Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment.” (Pen. Code, § 245, subd. (a)(1).) Violation of Penal Code section 245 is a felony. (See Pen. Code, § 17, subd. (a).)

Hann has established that Colosi has been convicted of a felony offense, namely Penal Code section 245, subdivision (a)(1). In opposition, Colosi argues that section 1021.4 should not apply at this time because her criminal conviction is subject to an appeal. “A conviction ‘generally means “the result of a criminal trial which ends in a judgment or sentence that the accused is guilty as charged.” [Citation.]’ [Citation.]” (Egar v. Superior Court (2004) 120 Cal.App.4th 1306, 1308.) Thus, a conviction may be subject to reversal, but until it is reversed, it remains a conviction. Colosi’s conviction may support an award of attorney fees under Code of Civil Procedure section 1021.4.

The first two causes of action of Hann’s complaint are based on the conduct for which Colosi was criminally charged. In opposition, Colosi further argues that section 1021.4 should not apply at this time because the merits of the judgment against her are also on appeal. Attorney fee motions typically are, and frequently must be, made after the judgment is entered and before an appeal of the merits is resolved. (P R Burke Corp. v. Victor Valley Wastewater Reclamation Authority (2002) 98 Cal.App.4th 1047, 1052 [motions made after judgment]; Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 360 [trial court retains jurisdiction to award fees and costs while appeal pending].) The court finds that Hann is “a prevailing plaintiff against the defendant who has been convicted of the felony.”

The court will exercise its discretion to award reasonable attorney fees under section 1021.4.

Hann requests an award of attorney fees in the amount of $251,666.67. This amount is equal to the amount of the one-third contingency fee asserted by Hann. (Frusetta decl., ¶ 6.)

Colosi objects to the award because Hann does not show any of the bills and the amount is otherwise unreasonable.

The evidence presented to support this amount consists of the following statements made in the declaration of attorney William Frusetta:

“Our office handled this case on a contingency fee basis; taking one-third of the total gross recovery. The jury awarded $755,000.00 to Cindy Hann. One third of that amount is $251,666.67. Attached hereto as Exhibit 3 is a true and correct copy of the Jury Verdict.” (Frusetta decl., ¶ 6, emphasis omitted.)

“This amount, as an attorney's fees award is more than fair and reasonable. I have reviewed the written time entries which our office kept on this case from January, 2020 through June, 2025. Throughout this five-year period, there are a total of 1092 hours reflected therein of attorney time.” (Frusetta decl., ¶ 7.)

“I know, from my own personal knowledge, that not all hours were accounted for as this has always been a contingency case. I know that substantially more hours were spent on the case than are reflected within those billing records. Should the court desire, I can and will make those billing records available.” (Frusetta decl., ¶ 8.)

“Our fees are and were, reasonable and necessary to successfully prosecute this case. Dr. Colosi, although in pro-per, was defiant and fought this case from beginning to end. For all these reasons, I believe it is appropriate to award attorney’s fees in the amount of $251,666.67.” (Frusetta decl., ¶ 9.)

There are some difficulties with determining the amount of attorney fees on this record. Hann cites to Sommers v. Erb (1992) 2 Cal.App.4th 1644 (Sommers) in support of the evidence presented for the attorney award requested. In Sommers, the court, addressing an attorney fee award under section 1021.4, stated:

“With respect to the reasonableness of the requested amount of attorney’s fees, we note that in Serrano v. Priest (1977) 20 Cal.3d 25, 48, footnote 23, the California Supreme Court stated:

‘ “The starting point of every fee award, once it is recognized that the court’s role in equity is to provide just compensation for the attorney, must be a calculation of the attorney’s services in terms of the time he has expended on the case. Anchoring the analysis to this concept is the only way of approaching the problem that can claim objectivity, a claim which is obviously vital to the prestige of the bar and the courts.” [Citation.]’

“Here, of course, the fee request was based on a contingency fee arrangement between Sommers and his counsel. As we stated in [Wood v. McGovern (1985) 167 Cal.App.3d 772, 779 to 780], contingent fee contracts are usual in personal injury cases and a proper factor for the trial court to consider in awarding attorney's fees. In any event, because of the contingency fee arrangement there are no exact time sheets for Sommers’s counsel. However, in a declaration supplied to the trial court, counsel estimated he spent between 130 and 150 hours on the case. In support of this estimate, counsel outlined various tasks and procedures he performed in preparing the case for trial. Counsel also declared his hourly billing rate when he does bill clients is $250. Using these figures, an estimate of the billable fees owed on the case ranged from $32,500 to $37,500. We note the top end of the range is only $833 less than the amount requested under the contingency fee arrangement and awarded by the court.” (Sommers, supra, 2 Cal.App.4th at p. 1651, parallel citation omitted.)

Sommers does not stand for the proposition that a court may ignore the lodestar approach explained in Serrano v. Priest, supra, 20 Cal.3d 25, but rather that a contingency fee calculation may be considered as part of determining the reasonableness of the award under a lodestar method. (See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131-1139 [fee awards under anti-SLAPP statute]; cf. Laffitte v. Robert Half Internat. Inc. (2016) 1 Cal.5th 480, 504 [lodestar calculation used to cross-check percentage fee award in class action litigation].)

The evidence provided regarding time and billing is insufficient to provide a lodestar cross-check for the contingency fee amount sought. Hann has stated that billing records exist and has offered to provide them. The court requests that appropriate billing records be provided for consideration by the court.

Additionally, and specifically to an award under section 1021.4, “an action for damages is ‘based upon’ the defendant’s commission of a felony within the meaning of the statute if and only if the damages claimed by the plaintiff were caused by the same felonious criminal conduct for which the defendant was convicted.” (Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308, 1339.)

Here, Hann’s complaint contains a third cause of action for damages based upon fraudulent transfers. While this cause of action was not the subject of the jury award, this cause of action was included in the litigation up through Hann’s trial brief. (Hann Trial Brief, at pp. 8-10.) The court requests briefing as to the extent to which the attorney fee request is based upon the claims for which reasonable attorney fees are awardable under section 1021.4.

The court will therefore continue the hearing on this motion to allow Hann to provide additional explanation and evidentiary detail regarding the amount of reasonable attorney fees and to allow Colosi an opportunity to respond.