Cindy M Hann vs Theresa Lynn Colosi
Cindy M Hann vs Theresa Lynn Colosi
Case Number
20CV01984
Case Type
Hearing Date / Time
Mon, 09/30/2024 - 10:00
Nature of Proceedings
Motion: Bifurcation re: Cross Complaint
Tentative Ruling
Cindy M Hann v. Theresa Lynn Colosi
Case No. 20CV01984
Hearing Date: 9/30/2024
HEARING: Plaintiff’s motion to sever/bifurcate defendant Colosi’s cross-complaint or, in the alternative, to strike the cross-complaint in its entirety
ATTORNEYS: Patrick McCarthy / William P. Frusetta of McCarthy & Kroes for plaintiff and cross-defendant Cindy M. Hann
Defendant and cross-complainant Theresa Lynn Colosi is in pro per Sean A. Andrade / Henry H. Gonzalez of Andrade Gonzalez LLP for cross-defendant Dan McGrew
Rafael Gonzalez / Andrew M. Cox of Mullen & Henzell LLP for cross-defendants Montecito Bank & Trust, Janet Garufis, George Leis, James Jefferson, and Amy Hinkens
Sanford Horowitz, cross-defendant, in pro per
TENTATIVE RULING:
The motion to sever the Colosi cross-complaint from the main action will be granted. While documents for both the Hann complaint and the Colosi cross-complaint will continue to be filed in Case No. 20CV01984, the Hann complaint and the Colosi cross-complaint will proceed separately, including any trial. The Court declines plaintiff Hann’s invitation to strike the cross-complaint in its entirety.
BACKGROUND: This action was commenced by plaintiff Cindy M. Hann (Hann) on June 5, 2020, seeking damages for personal injuries sustained when defendant Theresa Colosi (Colosi) allegedly attacked Hann, in the course of Hann’s supervision of a parental visitation between Colosi and her minor son on December 8, 2019. The father of the minor had custody of the couple’s son, and a domestic violence restraining order issued by the Santa Clara Superior Court precluded any unsupervised contact by Colosi with the minor. The father had hired Hann to be the professional family visitation supervisor to supervise Colosi’s twice-weekly visitations with the minor. The complaint alleged that Colosi struck Hann in the head with a large metal cylinder multiple times, in an attempt to incapacitate Hann so that Colosi could abduct her son and flee the state with him. The complaint alleged causes of action for (1) civil assault and battery, (2) intentional infliction of emotional distress, and (3) avoidance, recovery and damages for fraudulent transfers under common law and the California Uniform Fraudulent Transfer Act.
While the attempt to abduct the minor was unsuccessful, Colosi was able to flee the scene. She was ultimately located and captured in Montana, where she had flown on a private chartered plane she had allegedly hired to transport both her and her son.
Colosi was charged criminally with attempted murder and assault with a deadly weapon using force likely to cause grate bodily injury, both felonies. She ultimately pleaded guilty to the assault with a deadly weapon charge, with an enhancement for infliction of great bodily injury. Earlier this year, she was released from jail after serving time in the Santa Barbara County Jail for the conviction.
On April 19, 2024, Colosi finally 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. The original cross-complaint purported to name Colosi’s minor son as a cross-complainant. On June 11, 2024, Colosi filed a First Amended Cross-Complaint (FACC), naming 66 cross-defendants, and omitting Colosi’s son as a cross-complainant. Both cross-complaints were both largely hand-written, and are difficult to decipher. The FACC appears, however, to allege events related to the underlying family law case and events surrounding it; the complaints she made in 2019 to various persons and entities related to alleged custodial interference; the impacts on a child from loss of his mother; psychiatric evaluations performed on the minor’s father; information allegedly illegally provided by Montecito Bank & Trust to law enforcement in violation of the Financial Privacy Act, as well as its filing of an interpleader action against her; release by the Sheriff’s Office and District Attorney of defamatory information about her to the press; and her claim that a victim is not eligible for compensation if the victim provoked or aggravated the suspect (etc.). The FACC prays that Hann’s complaint be dismissed with prejudice, and for “criminal and civil prosecution and penalties, compensation, and any and all other relief that the Court deems proper from cross-complaint defendants commensurate with the extraordinary damage that they have negligently, maliciously, and criminally caused to cross-complainants Theresa Colosi and her minor son L.G.” The FACC contains no allegations against a significant number of the named cross-defendants.
On July 12, 2024, Hann filed the current motion to sever or bifurcate her personal injury action from Colosi’s cross-complaint, or alternatively to strike the cross-complaint in its entirety, setting the hearing for September 23, 2024.
On August 13, 2024, Colosi filed a motion for leave to file a Second Amended Cross-Complaint (SACC), setting the hearing for October 21, 2024. The proposed adds new cross-defendants (Christine Garvey; S. Lachlan Hough; Michelle Konoske; Jeff Paul; Joshua Rabinowitz; Peter Rupert; Robert L. Skinner; Kenneth L. Verkler; Mona Miyasato; and Gregory Milligan); and removes some cross-defendants (Family Court Services; Probation Department; County Counsel; Board of Supervisors; Judith Alvarado; Rebecca Smith; Rebecca Powers; William Gallivan, MD; Cottage Hospital; Terry Johnston; and Christopher MacAuley).
On August 28, 2024, cross-defendant defendant Dan McGrew filed a demurrer to the FACC, setting the hearing on the demurrer for November 4, 2024.
On September 9, 2024, Colosi filed opposition to the motion to bifurcate her cross-complaint from the underlying action, in part requesting that the hearing be continued. She represented that she had advised Mr. McCarthy that she was unavailable for the September 23, 2024, hearing, and he had agreed to continue it to permit her to attend.
On September 11, 2024, Hann filed reply papers, in part refuting the contention that attorney McCarthy had agreed to continue the hearing in order to permit Colosi to attend. He explained that he had agreed to continue it one week if the court had that date available, but that he was advised that the first available hearing date was in mid- to late-October, and he was unwilling to move it that far.
At the September 16, 2024, Case Management Conference in the case, Colosi again raised the issue that she was unavailable for the September 23, 2024, hearing on this motion. The Court therefore continued the hearing on plaintiff’s motion to bifurcate the cross-complaint from the main action to September 30, 2024.
The FACC includes 67 cross-defendants, with no clear facts or theories alleged against any of them, and will take substantial resources to resolve. The cross-defendants include 18 media organizations or reporters for those organizations, but contains no defamation allegations, and any claims she may have against them are unrelated to the nature and extent of Hann’s injuries and damages sustained in the attack. Five are affiliated with Montecito Bank & Trust, from which Colosi obtained the $1.3 million in cashiers’ checks which were taken into evidence in the criminal action when Colosi was arrested. All of Colosi’s banking activities related to MB&T occurred in 2019, and may be barred by the statute of limitations. Twelve attorneys are named in the FACC, including 2 who were counsel of record for MB&T in the interpleader action; 3 of which are criminal defense attorneys who represented defendant (Sanger, Horowitz, and PD Matthew Speredelozzi) to which a one-year statute of limitations would apply; 5 of which area current or former district attorneys or deputy district attorneys involved in Colosi’s prosecution, against which there is no known viable cause of action. Santa Barbara Middle School is named, but any claim would appear to be barred by the statute of limitations. There are five medical cross-defendants, including Cottage Hospital (against which there are no charging allegations), the medical professional who performed a psychiatric evaluation of Christian Guier (the father of Colosi’s minor son), and several more against whom no allegations are made. Family members named as parties include Colosi’s minor son who was initially named as a cross-complainant, the minor’s father, and his “girlfriend,” relevant allegations against whom appear to have occurred in 2019. Also, since Colosi has named out-of-state entities and individuals (e.g., New York Post, Whitefish (Montana) Police Department, Whitefish Pilot (media outlet), which could result in the matter being removed to federal court.
The Court has broad discretion to sever cross-complaints, particularly when it introduces new theories of liability or claims for relief that have little or no connection to the plaintiff’s claims and will complicate the case. Hann contends that the Colosi cross-complaint is premature and ambiguous, such that she should not be required to focus on resolving the procedural issues. There are numerous questions regarding the validity of Colosi’s claims, which cross-defendants are proper, whether there are facts to support her claims, whether she has standing to make her claims, and whether the statutes of limitations prevent her from pursuing her claims. Determining these issues for all cross-defendants will take substantial time, and Hann’s case should not be slowed down while those issues are determined.
Hann’s personal injury action was filed in 2020. Liability was established by Colosi’s guilty plea to assault with a deadly weapon with intent to cause great bodily injury, trial will simply establish the nature and extent of her injuries and damages. Severing the cross-complaint will promote efficient use of the court’s resources, by permitting Hann’s case to be resolved. While Colosi’s FACC makes vague references to a conspiracy between Hann, Guier, and Plowman, there are no other facts or theories connected to Hann’s personal injury action, nor does Colosi allege they are related in any way.
Alternatively, Hann asks that the FACC be stricken in its entirety, as a pleading not drawn in conformity with the law. It appears to be a step toward vexatious litigation. It “alleges no facts in support of the allegations” against 67 cross-defendants, and cannot overcome statute of limitations and standing issues. The cost of forcing 67 cross-defendants to retain counsel to challenge the current pleading would impose tens of thousands of dollars in fees to determine if the FACC is sufficiently pled. Hann argues that there must be some showing of merit.
The motion is supported by requests for judicial notice of Colosi’s Plea in the criminal action, her FACC, the MB&T FAC in Interpleader filed 4/3/23, MB&T’s opposition to Colosi’s request for injunctive relief in the interpleader action, and Hann’s application to seal confidential exhibits and information. It is also supported by the declaration of attorney William Frusetta, which seeks to authenticate the December 11, 2019 Santa Barbara Police Report, which was filed under seal.
Colosi then reiterated the information alleged in her FACC with respect to the circumstances under which the victim of a crime is not eligible for compensation, and the asserts that the cross-complaint details the “felony criminal nature” of Hann’s conduct that “provoked” the incident, and makes her ineligible for compensation.
Colosi contends that Hann’s counsel’s comments regarding the age of the complaint is without foundation, and that he was aware that the action would be held in abeyance pending final adjudication of the related criminal case, and asserts that hew own civil rights and equity are not subject to Hann’s convenience.
Colosi asserts that her cross-complaint is not unrelated to the personal injury matter, as Hann’s counsel would like the Court to believe, given Colosi’s contentions that Hann is ineligible for any compensation under Government Code section 13956.
Finally, she asserts that the cross-complaint, and particularly the SACC, is not irrelevant, not false, and not improperly asserted. She met and conferred with Hann’s counsel and agreed to amend the cross-complaint. Her filing of the SACC is pending court permission to file it.
She concludes by requesting that the Court deny the motion, or at least continue it to a date when Colosi may be present and heard.
The communications between Colosi and Hann’s counsel with respect to the hearing date are then recounted and clarified. Hann then notes that Colosi has continued to file documents without serving them on attorneys of record for the parties, noting that Hann’s counsel has repeatedly advised Colosi of the need to serve copies of whatever gets filed with the court.
Hann objects that while Colosi’s opposition is entitled “declaration,” it does not comply with Code of Civil Procedure section 2015.5 regarding signing under penalty of perjury, and therefore has no evidentiary merit.
Hann notes that in Colosi’s proposed SACC, Colosi has dropped 12 of the originally named cross-defendants, but added 12 more. Formerly handwritten allegations are now typed, but not significantly modified from the FACC, and the remainder of the SACC contains 17 causes of action devoid of substantive factual allegations. Law and motion is inevitable, and the handling of those issues should not delay the resolution of Hann’s damages claim.
Finally, Colosi’s opposition relied on Government Code section 13956, which relates to indemnification of victims of crime by the California Victim Compensation Board, and does not have any bearing on Hann’s damage claims arising from the assault. In her plea in the criminal action, Colosi acknowledged inflicting great bodily injury in initialing Paragraph 9.b.(1)(G), which stated “On December 8, 2019, in Santa Barbara County, I hit Cindy Hann in the head multiple times with a metal cannister. I personally inflicted great bodily injury on Ms. Hann.”
ANALYSIS: The Court will grant the motion, and will sever the cross-action from the main action. The Court declines Hann’s invitation to strike the cross-complaint in its entirety.
1. Statutory authority.
Code of Civil Procedure section 1048(b) provides:
The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States.
The purpose of severance is to promote the accuracy, fairness, and efficiency of adjudication. (See, e.g., Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 888, n.8.) Severance is inappropriate when separate trials held before separate juries would adjudicate the same questions of fact. From a constitutional standpoint, courts may only sever claims or issues when the claims or issues to be tried first are so distinct and separable from the others that trying them alone may be had without injustice. (Gasoline Prods. Co. v. Champlin Ref. Co. (1931) 283 U.S. 494, 500.) When no statute requiring severance applies, the court has the discretionary power to order severance. (See, e.g., McArthur v. Shaffer (1943) 59 Cal.App.2d 724, 747.) Because the court has inherent power to regulate the order of trial, it can order separate trials pursuant to Section 1048 at any time. (McLellan v. McLellan (1972) 23 Cal.App.3d 343, 353.)
2. Application
Colosi’s assault upon plaintiff Hann occurred in December 2019, and this action for the personal injuries and damages sustained by Hann in the assault was filed in June 2020. Prosecution of the personal injury action was necessarily hampered by the pendency of the criminal proceedings against Colosi arising from the same assault, and Colosi’s resulting incarceration, both prior and subsequent to her guilty plea to the charge of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), with an enhancement for the infliction of great bodily injury. (Pen. Code, § 12022.7, subd. (a).)
The judgment of Colosi’s conviction of a felony is not inadmissible hearsay in the current civil action, when used to prove any fact essential to that judgment. (Evid. Code, § 1300.) Further, a plea of guilty in a criminal prosecution is admissible in a civil action growing out of the same occurrence as an admission against interest, but is neither collateral estoppel nor factually conclusive in any manner. (Evid. Code, § 1220; Teitelbaum Furs, Inc. v. Dominion Ins. Co. (1962) 58 Cal.2d 601, 605-606 [plea of guilty is admissible in a subsequent civil action as an admission, but it would not serve the policy underlying collateral estoppel to make such a plea conclusive]; Vaughn v. Jonas (1948) 31 Cal.2d 587, 595-596 [guilty plea is admissible as an admission, but is not factually conclusive, and its weight and significance under the circumstances are for the jury to determine]; see also Pease v. Pease (1988) 201 Cal.App.3d 29, 32-33.)
Colosi was released in March 2024. It has been nearly five (5) years since the assault which gave rise to this action, and nearly 4 1/2 years since the action was filed. Hann contends that given the felony conviction and Colosi’s guilty plea, liability has been established, and she need only prove the nature and scope of her injuries and damages. That contention is inaccurate, since the fact that Colosi’s felony conviction is based upon her guilty plea, and was not rendered after trial, it is not collateral estoppel in this action. However, both the conviction and the plea are admissible in this action, and the guilty plea constitutes strong evidence against Colosi as an admission against interest.
Perhaps more importantly, however, is Hann’s contention that the FACC is based upon allegations which do not relate to the assault itself or the personal injuries Hann sustained in the assault, including the allegations it makes against Hann. Rather, the FACC make vague references to an alleged conspiracy between Hann, Guier, and Plowman.
In opposition to the motion, Colosi refers to the “felony criminal nature” of Hann’s conduct, which she contends “provoked” the incident and makes Hann ineligible for compensation. While the FACC (and proposed SACC) both allege in conclusory fashion that Hann, Guier, Plowman, and two other defendants repeatedly withheld Colosi’s son from her in 2019 in violation of a lawful custody and visitation order, and that Hann also allegedly “extorted money and priceless parent-child time” from Colosi, which Colosi contends constitutes felonies, there are no specific facts alleged in either pleading to support the conclusory pleading of criminal conduct by Hann.
Even assuming that Colosi would be able to prove some wrongful conduct by Hann in withholding Colosi’s son from her, or extorting money from her, those have no connection with Colosi’s conduct in physically assaulting Hann in course of Colosi’s attempt to kidnap her son—notwithstanding Colosi’s assertions that Hann “provoked the incident on December 8, 2019.” To the extent that Colosi contends that Hann could in some manner be legally deemed to have “provoked” the attack in some manner that would impact Hann’s right to damages for the injuries she suffered in the attack, that issue can be fully litigated and resolved in the course of Hann’s claims for damages. Further, to the extent Colosi is ultimately able to prove that Hann is liable to her in some manner for damages because of the alleged acts of withholding Colosi’s son, or extorting money, any such judgment or right to damages could be enforced against Hann, even if Hann’s claim for personal injuries and damages arising from the assault has already been finally adjudicated.
As noted by Hann’s motion, the FACC and proposed SACC name dozens of cross-defendants, located in multiple states, for a wide variety of nominally identified claims, the factual bases for which cannot be discerned from the allegations. Some are never mentioned other than in the caption. None of the existing allegations against any of the named cross-defendants appear to have any relevance to Colosi’s attack on Hann, or the injuries or damages which Hann suffered in the attack. It will likely take many months to sort out the nature and validity of Colosi’s alleged claims against these many cross-defendants, but since they appear to have no relevance to Hann’s claims for injuries and damages, the considerable delay involved in doing so would continue to prejudice Hann’s case.
For all of these reasons, the Court has concluded that it would be in the interests of justice, and would act to prevent considerable prejudice to plaintiff Hann, to sever the Colosi cross-complaint from the main action. The main action and the cross-action may have arisen from the same larger course of events, but their contentions are fundamentally unrelated, and there is virtually no possibility of inconsistent rulings by the two triers of fact. Fundamental fairness and substantial justice require that Hann be able to proceed to prove her claims without the threat that further potentially substantial delay would adversely impact the availability of the evidence necessary to prove her claims, or cause other prejudice. The main action and the cross-action will proceed separately, including to trial and judgment.
The Court will decline the motion’s request to strike the FACC in its entirety. Colosi has a right to assert claims against those she contends have committed legal wrongs against her, and to the extent she is able to allege viable claims, to have them determined by a trier of fact. The Court cannot simply strike her pleading in its entirety, based upon the motion’s representation of a belief that most or all of the cross-defendants are likely to prevail on statute of limitations or immunity grounds.