Cindy M Hann vs Theresa Lynn Colosi

Case Number

20CV01984

Case Type

Hearing Date / Time

Mon, 12/15/2025 - 10:00

Nature of Proceedings

CMC; Motion: Attorney Fees; Motion: Quash Subpoena of Deputy County Counsel (cont'd from Ex Parte); Motion: Set Aside All Orders and Judgments / Restore Property; Motion: Strike Third Amended Cross-Complaint

Tentative Ruling

Cindy M. Hann v. Theresa Lynn Colosi 

Case No. 20CV01984

           

Hearing Date: December 15, 2025                                                     

HEARING:              (1)       Motion of Plaintiff Cindy M. Hann for Award of Attorney Fees Against Defendant Theresa Colosi

                             (2)       Motion of Defendant Theresa Colosi to Set Aside Orders and Judgments

                             (3)       Motion of Cross-Defendant Cindy M. Hann to Strike Third Amended Cross-Complaint

                                    (4)       Motion (Ex Parte Application) of Third-Party Michael Munoz to Quash Subpoena

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:

(1)       The motion of plaintiff Cindy M. Hann for an award of attorney fees under Code of Civil Procedure section 1021.4 is granted. The court finds and awards reasonable attorney fees in favor of plaintiff Cindy M. Hann and against defendant Theresa Colosi in the amount of $251,666.67.

(2)       The motion of defendant Theresa Colosi to set aside orders and judgments is denied.

(3)       The motion of cross-defendant Cindy M. Hann to strike the third amended cross-complaint of Theresa Colosi is granted, without leave to amend, as follows: The words “Cindy M. Hann” are ordered stricken from page 9, lines 3 and 22, and from page 10, line 5.

(4)       The motion of third-party Santa Barbara County Counsel Senior Deputy Michael Munoz to quash the subpoena for his testimony and for the production of documents on October 20, 2025, is granted. The subpoena is quashed and no appearance or production of documents as set forth in the subpoena is required.

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 (FACC) 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 August 13, 2024, Colosi filed a motion for leave to file a second amended complaint, setting the hearing for October 21, 2024.

On August 28, 2024, cross-defendant Dan McGrew filed a demurrer to the FACC, setting the hearing for November 4, 2024.

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 January 6, 2025, the court sustained McGrew’s demurrer to the FACC, with leave to amend on or before March 3, 2025. The court also denied Colosi’s motion for leave to file the then-proposed second amended cross-complaint.

On March 3, 2025, Colosi filed her second amended cross-complaint (SACC) under the leave granted on January 6 by the sustaining of McGrew’s demurrer. The SACC asserted seven causes of action. Of these causes of action, only the first, second, and third causes of action were asserted against Hann.

On April 23, 2025, Hann filed a demurrer to the three causes of action of the SACC.

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 her 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 was noticed for hearing on October 20, 2025. The motion for attorney fees is opposed by Colosi.

On August 11, 2025, among other rulings, the court sustained demurrers filed by several parties to the SACC. The court sustained the demurrer of Hann to the first and third causes of action of the SACC, without leave to amend, and sustained the demurrer to the second cause of action of the SACC, with leave to amend. The court’s order stated:

“Cross-complainant Colosi shall file and serve her third amended cross-complaint on or before August 26, 2025. Leave to amend is limited to amendments to the second cause of action (as against cross-defendants Horowitz and Hann only) and to the seventh cause of action (as against cross-defendant Horowitz only), and is limited to the omission of parties in causes of action where the demurrer is sustained without leave to amend in this ruling. No other amendments are permitted by this leave, and, in particular, the amended cross-complaint may not add any new parties or causes of action. To the extent Colosi seeks any other amendment, Colosi must make a noticed motion seeking leave for such other amendment.” (Minute Order, filed Aug. 11, 2025, p. 2.)

Colosi did not file a third amended cross-complaint by August 26, 2025.

On September 22, 2025, among other things, the court ruled on the demurrer of cross-defendant Steve Smith, PsyD., and sustained Smith’s demurrer with leave to amend. The court’s order stated:

“Cross-complainant Theresa Colosi shall file and serve a third amended cross-complaint on or before October 7, 2025. Leave to amend to file a third amended cross-complaint is limited to (i) the fourth cause of action as against cross-defendant Smith, and (ii) to the omission of parties. No other amendments are permitted by this leave, and, in particular, the amended cross-complaint may not add any new parties or causes of action. To the extent Colosi seeks any other amendment, Colosi must make a noticed motion seeking leave for such other amendment.” (Minute Order, filed Sept. 22, 2025, p. 1.)

On September 25, 2025, Hann filed her motion to dismiss pursuant to Code of Civil Procedure section 581, subdivision (f)(2). This motion was noticed for hearing on December 22, 2025, but is now set for hearing on January 26, 2026.

On October 7, 2025, Colosi filed her third amended cross-complaint (TACC). The TACC reasserts the first, second, and third causes of action against Hann.

On October 20, 2025, the court continued the hearing on the motion for attorney fees for supplemental briefing. The parties provided briefing as requested by the court.

Also on October 20, 2025, Santa Barbara County Counsel Senior Deputy Michael Munoz filed an ex parte application for order shortening time on an attached motion to quash a subpoena issued by Colosi. The ex parte application was heard on October 21. The court set the matter for hearing at this hearing on December 15. No opposition to this motion has been filed.

On November 13, 2025, Hann filed her motion to strike the TACC as filed without leave of court. Colosi opposes this motion.

On November 20, 2025, Colosi filed her motion for an order to set aside all orders and judgments of the trial court in this matter. Hann opposes this motion.

Analysis:

(1)       Motion for Attorney Fees

“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 did not show any of the bills and the amount is otherwise unreasonable.

The evidence presented to support this amount with the moving papers 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.)

In addressing this matter on October 20, 2025, the court noted that there were some difficulties with determining the amount of reasonable 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 court requested that Hann file supplemental papers regarding time and billing. Additionally, the court noted that specific 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 requested 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.

In response to the court’s requests, the parties have each filed supplemental briefing. Addressing the section 1021.4 issue first, Hann argues that the relief sought by the fraudulent transfer claim was satisfied and mooted by the court’s issuance of the protective order on June 4, 2024. Hann argues that the protective order satisfied the purpose of the fraudulent transfer cause of action. Hann further argues that the voluntary dismissal of the fraudulent transfer cause of action does not act as a bar to recovery of attorney fees. Hann also argues that apportionment is not required even if the fraudulent transfer claim were not a qualifying claim under section 1021.4 because the fraudulent transfer claim consumed little attorney time.

In response, Colosi points to her motion to set aside the judgment and orders in this matter and to the pending appeals. Colossi argues that the court’s orders are improper and therefore the request for attorney fees should be denied and other relief be awarded to her.

As noted above, section 1021.4 limits an award of attorney fees to “an action for damages” “ ‘based upon’ the defendant’s commission of a felony.” The law is unclear whether attorney fees incurred in pursuit of a fraudulent transfer cause of action brought in connection with damages claims arising from defendant’s commission of a felony are recoverable under section 1021.4. Given the conclusions below regarding the attorney fees to be awarded that are solely attributed to the damage actions squarely falling within section 1021.4, the court concludes that there is no amount of the attorney fee award that needs to be separately apportioned, and so excluded, from the attorney fee award on account of the concurrent pursuit of the fraudulent transfer cause of action.

Addressing the time and billing issues, Hann has provided evidence of specific time and fees representing $336,609.25. (Frusetta supp. decl., ¶ 1 & exhibit 1.) Hann further provides evidence that the time and fees set forth in the billing statements underrepresent the actual amount of time (and hence fees) actually incurred in pursuing Hann’s claims. (Frusetta supp. decl., ¶ 1.) Of these time and fees, Hann seeks fees in the amount of $251,666.67, which represents the one-third contingency fee. (Frusetta decl., ¶ 6.)

In the supplemental opposition, Colosi does not point to any time or fees as unreasonable outside of the general argument that the request for attorney fees should be denied in its entirety.

Based on the totality of the evidence and the arguments of the parties, the court finds the time and hourly rates reasonable and that the reasonable amount of attorney fees to be awarded (accounting for and excluding attorney time not awardable under Code of Civil Procedure section 1021.4 or otherwise) is $251,666.67. Accordingly, Hann’s motion will be granted in its entirety.

(2)       Motion to Set Aside Orders and Judgments

Colosi filed a motion on November 20, 2025, for an order setting aside all judgments and orders issued by the trial court in this case and for an order for plaintiff and her counsel to restore all of Colosi’s property. This motion is based upon Colosi’s argument that evidence previously presented was warrantless and inadmissible.

Hann argues that the motion is untimely because it did not provide statutory notice. This is correct. The motion was filed and served by mail on November 20. The hearing on December 15 is only 15 court days prior to the hearing rather than the required 16 court days plus five calendar days for mailing. (See Code Civ. Proc., §§ 1005, subd. (b) [16 court days required], 1013, subd. (a) [additional period for service by mail], 12c [counting method].) Nonetheless, Hann has filed opposition which is sufficient to resolve the motion without the necessity of a continuance.

By this motion, Colosi challenges both the judgment entered on June 16, 2025, and now on appeal, and orders made with respect to the cross-complaint litigation. All challenges are based upon the evidence considered by the court in making the determinations leading to the judgment or orders. With respect to the judgment on appeal, the court does not have jurisdiction to address such a challenge. (This is contrasted with a collateral motion for an award of attorney fees, for which the court does have jurisdiction, as discussed above.)

“As a general rule, ‘the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from ....’ [Citation.] Thus, generally, the taking of an appeal by the filing of the notice of appeal deprives the trial court of jurisdiction of the cause and vests jurisdiction with the appellate court until issuance of a remittitur by the reviewing court. [Citations.] When the remittitur issues, the jurisdiction of the appellate court terminates and the jurisdiction of the trial court reattaches.” (Andrisani v. Saugus Colony Limited (1992) 8 Cal.App.4th 517, 523.)

“ ‘Essentially, the § 916(a) “stay” means that, upon timely filing of a notice of appeal, ... [j]urisdiction over the appealed matters shifts to the court of appeal and is terminated in the trial court; and the trial court’s power to enforce, vacate or modify the appealed judgment or order is suspended while the appeal is pending.’ [Citation.]” (Blizzard Energy, Inc. v. Schaefers (2021) 71 Cal.App.5th 832, 842, fn. 4.)

With respect to all other orders, the motion is in the nature of a motion for reconsideration.

“When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” (Code Civ. Proc., § 1008, subd. (a).)

“This section specifies the court’s jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.” (Code Civ. Proc., § 1008, subd. (e).)

All of the issues raised by Colosi occurred in 2019 or 2020. (Colosi decl., ¶¶ 1, 5, 7.) Colosi provides no grounds upon which the court would revisit any order issued on the basis of information available at the time such order was issued.

The motion to set aside the judgment and orders in this action will be denied.

(3)       Motion to Strike TACC

A party may file a motion to strike all or part of a pleading. (Code Civ. Proc., § 435, subd. (b)(1).) “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: [¶] … [¶] (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., § 436, subd. (b).)

The court’s order of August 11, 2025, granted Colosi leave to amend based upon the sustaining of Hann’s demurrer to the SACC only until August 26 and with limitations. Colosi did not file an amended pleading by August 26. By the time the August 26 deadline had passed, the court had not made any other orders allowing leave to amend as to Hann. On September 22, 2025, the court granted Colosi leave to amend by October 7, but only either to amend the fourth cause of action against cross-defendant Smith or to omit parties from the amended complaint. Instead, Colosi filed the TACC that repeats allegations against Hann. Colosi did not otherwise make a noticed motion to seek leave to address causes of action against Hann.

By reasserting allegations against Hann, Colosi’s TACC is not filed in conformity with the orders of this court. The court will therefore grant the motion to strike the TACC as to Hann without leave to amend. To accomplish this, the court will strike from the first three causes of action references to Hann by which Hann would be named as a party. Because allegations regarding Hann may be relevant to claims against other parties, generic (non-charging) allegations regarding Hann will remain but not as directed to Hann. The intended effect is to remove Hann as a defendant in the first three causes of action (the only causes of action in the TACC addressed to Hann).

(4)       Motion to Quash Subpoenas

On October 14, 2025, Santa Barbara County Senior Deputy Counsel Munoz was served with a subpoena to appear on October 20, 2025, at 10:00 a.m. in Department 5 of this court.

Munoz moves to quash the subpoena on various grounds, including that the subpoena seeks attorney-client and work product protected information and documents, the information and documents are irrelevant, and the witness fees have not been tendered.

“If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court’s own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.” (Code Civ. Proc., § 1987.1, subd. (a).)

The subpoena at issue seeks to compel the testimony of Munoz at the hearing on October 20, 2025, and to compel Munoz to produce records consisting of trust account details and a search warrant for Montecito Bank & Trust. The court notes that these are not deposition subpoenas, but are subpoenas for personal attendance in court. The hearing on October 20, as well as this hearing on December 15, are hearings of law and motion matters; these are not evidentiary hearings. “Evidence received at a law and motion hearing must be by declaration or request for judicial notice without testimony or cross-examination, unless the court orders otherwise for good cause shown.” (Cal. Rules of Court, rule 3.1306(a).) The court has not issued any order permitting testimony other than by declaration for any matter before the court on October 20 or December 15. There is no good cause shown for the testimony and production of documents pursuant to the subpoena. The motion to quash will therefore be granted.