Cindy M Hann vs Theresa Lynn Colosi
Cindy M Hann vs Theresa Lynn Colosi
Case Number
20CV01984
Case Type
Hearing Date / Time
Mon, 12/16/2024 - 10:00
Nature of Proceedings
Motion: Order to Post Security//Deem Cross-Complainant as Vexatious Litigant; Petition to Commence Trial or Defer 5-year Dismissal Rule (cont'd from ex parte 11/5/24)
Tentative Ruling
Cindy M. Hann v. Theresa Lynn Colosi
Case No. 20CV01984
Hearing Date: 12/16/2024
HEARINGS: Motion by plaintiff Cindy M. Hann to commence trial or to defer five-year dismissal rule
Motion by MB&T cross-defendants to have cross-complainant Theresa Colosi declared a vexatious litigant and to post security.
ATTORNEYS: Patrick McCarthy / William P. Frusetta of McCarthy & Kroes for plaintiff Cindy M. Hann
Defendant and cross-complainant Theresa Lynn Colosi is in pro per Rafael Gonzalez / Andrew M. Cox of Mullen & Henzell LLP for cross-defendants Montecito Bank & Trust, Janet Garufis, George Leis, James Jefferson, and Amy Hinkens
TENTATIVE RULINGS: The motion by plaintiff Hann to commence trial on her personal injury action within the 5-year period is granted, and the current trial date of June 23, 2025, will be advanced to May 12, 2025.
For the reasons more fully articulated below, MB&T’s motion to have Colosi declared a vexatious litigant and ordered to post security is denied.
The Court notes that it previously severed the underlying complaint from Colosi’s recently-filed cross-complaints naming many putative cross-defendants, and ordered that the underlying action would proceed entirely separately from Colosi’s cross-action. As a result, while these two motions are proceeding under the same case number and being heard at the same time, they are functionally completely unrelated, and the resolution of one will have no impact on the resolution of the other.
Plaintiff Hann’s motion to commence trial before June 5, 2025, or to defer the five-year dismissal rule: The current case was filed on June 5, 2020. The five-year period within which to bring the action to trial therefore expires on June 5, 2025. When the court set the current trial date of June 23, 2025, neither the court nor the parties recognized that the trial date was beyond the five-year period. Hann therefore moves to have the trial commence prior to June 5, 2025, or to defer the five-year dismissal rule, claiming various tolling, waiver, and/or estoppel provisions.
Defendant Colosi has opposed the motion and, misunderstanding the nature of the motion, has asserted that the action against her must now be dismissed.
MB&T cross-defendants’ motion for security from cross-complainant Theresa Colosi as a vexatious litigant: The MB&T cross-defendants (collectively MB&T) have moved to have cross-complainant Theresa Colosi declared a vexatious litigant and for an order requiring her to post security in the amount of at least $15,000, in order to proceed to pursue her cross-action against them.
MB&T contends that Colosi qualifies as a vexatious litigant because she has (a) repeatedly filed unmeritorious papers while proceeding in propria persona in civil actions, including at least 11 separate unmeritorious filings across three civil actions, (b) attempted to conduct unnecessary and irrelevant discovery, including repeated subpoenas of individuals associated with MB&T that have been quashed as irrelevant, and (c) waged a campaign of frivolous, harassing litigation against MB&T and its personnel attempting to blame MB&T for the consequences of her own criminal conduct and to retaliate against MB&T for filing its interpleader action.
MB&T contends that Colosi has no reasonable probability of prevailing against them, for a variety of reasons, including that her cross-complaints make no specific allegations against the individual cross-defendants, that some of the causes of action make no sense and are not civil causes of action or causes of action at all, that some are not viable against non-governmental defendants, that her claims are not supported by factual allegations in the SACC, and that her claims are barred by statutes of limitation. Her core theory that MB&T’s disclosure of private financial information to law enforcement caused criminal and family court judgments against her is “preposterous,” and barred by the absolute privilege of Civil Code section 47(b). To the extent her claims are based upon MB&T’s initiation of the interpleader action, which terminated in MB&T’s favor, they are also absolutely privileged under Civil Code section 47.
MB&T estimates that it will incur approximately $15,000 in fees to defend the cross-complaint through the demurrer stage, and another $60,000 if the action proceeds through to the summary judgment stage.
Evidence The motion is supported by the declaration of MB&T attorney Rafael Gonzalez, who declares that on September 20, 2024, he appeared before an administrative law judge with the Office of Administrative Hearings in In the Matter of the First Amended Accusation Against: THERESA COLOSI, M.D. Physician’s and Surgeon’s Certificate No. A 66895, Case No. 800-2020-063591, OAH No. 2024040593. At that time, the administrative law judge granted MB&T’s motion to quash subpoenas which Colosi has served upon George Lies (MB&T President and COO), S. Lachlan Hough (MB&T Lead Director of Board of Directors), Steven Zola (MB&T Board Member), Amy Hinkens (MB&T former employee), and himself (as MB&T counsel), on the grounds that the discovery sought was irrelevant to the action to revoke Colosi’s medical license. The declaration then further proceeded to estimate the fees which would be incurred in defending the action through the demurrer stage ($15,000), and if the action survived demurrer, the estimate of fees to take it through the summary judgment stage ($60,000).
The motion was further supported by a request for judicial notice, supported by the declaration of attorney Andrew Cox, seeking judicial notice of the following:
(2) 11/1/23 Order Granting Plaintiff Montecito Bank & Trust’s Motion for Discharge of Liability and Award of Costs and Fees, in Montecito Bank & Trust v. Colosi, SBSC Case No. 22CV04591 (Ex. 2);
(3) 7/16/24 Ruling After Trial Regarding Claims of Cynthia M. Hann, entered in Montecito Bank & Trust v. Colosi, SBSC Case No. 22CV04591 (Ex. 3);
(4) Response and Opposition to Interpleader, Request for Permanent Injunction, filed by Colosi on 6/3/2023 in Montecito Bank & Trust v. Colosi, SBSC Case No. 22CV04591 (Ex. 4);
(5) Notice of Motion and Motion for Permanent Injunction, filed by Colosi on 6/12/2023 in Montecito Bank & Trust v. Colosi, SBSC Case No. 22CV0491 (Ex. 5);
(6) Reply to Plaintiff MBT’s Opposition to Defendant Theresa Colosi’s Motion for Permanent Injunction, filed by Colosi on 7/18/2023 in Montecito Bank & Trust v. Colosi, SBSC Case No. 22CV04591 (Ex. 6);
(7) 7/21/2023 Minute Order in Montecito Bank & Trust v. Colosi SBSC Case No. 22CV04591 (Ex. 7);
(8) Notice of Motion and Motion; Memorandum of Points and Authorities; and Declaration in Support of Motion to Compel Responses to Requests for Production of Documents, Set One and Monetary Sanctions, filed by Colosi on 8/10/23 in Montecito Bank & Trust v. Colosi, SBSC Case No. 22CV04591 (Ex. 8);
(9) Opposition to MBT’s Motion for Discharge of Liability and Award of Costs and Fees; Declaration, filed by Colosi on 7/18/2023 in Montecito Bank & Trust v. Colosi, SBSC Case No. 22CV04591 (Ex. 9);
(10) Notice of Motion and Motion to Dismiss, filed by Colosi on 9/12/2023 in Montecito Bank & Trust v. Colosi, SBSC Case No. 22CV04591 (Ex. 10);
(11) Subpoenas issued by Colosi to MB&T Officers (a) George Leis, (b) Janet Garufis, and (c) James Jefferson, and to former MB&T branch manager Amy Hinkens, for appearance on 9/29/2023 in Montecito Bank & Trust v. Colosi, SBSC Case No. 22CV04591 (Ex. 11);
(12) Supplement to Colosi’s Motion to Dismiss, filed by Colosi on 10/5/2023 in Montecito Bank & Trust v. Colosi, SBSC Case No. 22CV04591 (Ex. 12);
(13) Subpoenas issued by Colosi to MB&T President George Leis and former branch manager Amy Hinkens, for appearance on October 13, 2023, in Montecito Bank & Trust v. Colosi, SBSC Case No. 22CV04591 (Ex. 13);
(14) Subpoena issued by Colosi to MB&T counsel Rafael Gonzalez for appearance on June 10, 2024, in Montecito Bank & Trust v. Colosi, SBSC Case No. 22CV04591 (Ex. 14);
(15) Oder on Ex Parte Application to Quash Subpoena Duces Tecum, filed 6/10/24 in Montecito Bank & Trust v. Colosi, SBSC Case No. 22CV04591 (Ex. 15);
(16) Motion in Limine, filed by Colosi on 6/6/2024 in Montecito Bank & Trust v. Colosi, SBSC Case No. 22CV04591 (Ex. 16);
(17) 6/10/24 Minute Order entered in Montecito Bank & Trust v. Colosi, SBSC Case No. 22CV04591 (Ex. 17);
(18) Cal. Supreme Court denial of Colosi’s petition for writ of habeas corpus, In re Colosi (2/14/24), 2024 Cal. L EXIS 701 (Ex. 18); and
(19) Subpoenas issued by Colosi to (1) MB&T President George Leis, (2) MB&T Board of Directors member S. Lachlan Hough, (3) MB&T counsel Rafael Gonzalez, (4) former MB&T branch manager Amy Hinkens, and (5) MB&T Board of Directors member Steven Zola, for appearance on September 23, 2024, in In the Matter of the First Amended Accusation Against: THERESA COLOSI, M.D. Physician’s and Surgeon’s Certification No. A. 66895, Respondent Case No. 800-2020-063591, OAH No. 2024040593 (Ex. 19).
Opposition Colosi filed brief opposition to the motion, in which she notes that the motion cites numerous documents from Case No. 22CV04591, the interpleader action, asserting that the action was filed, served, and prosecuted against her while she was detained and indigent, with no access to legal aid/counsel, which she contends presented clear equity issues. She also notes that the motion cited the criminal action, 19CR01290. Both cases are currently under appeal. She objects that MB&T cited no evidence to support its claims from this case.
Colosi contends that MB&T made deliberately false statements about her “bind in prison” and “having her professional license revoked,” but she was never in prison and never had her professional license revoked. She contends MB&T also falsely stated that it interpleaded funds backing checks that went unclaimed, but that it has always been aware that the checks were being held as evidence by the Santa Barbara County District Attorney and were never “unclaimed.” She asserts the court has previously acknowledged the importance and relevance of “Payne (1976)” with respect to detained indigent defendants.
She notes that Judge Sterne declined to relate 19CR12190 or 22CV04591 to this case. She asserts that Judge Geck acknowledged in court on 6/10/24 that Colosi likely had a civil rights violation cause of action against MBT, but declined to hear it in her court. She cites to the California Constitution, and contends that it applies to both government and private entities, that prosecution of its violations is through a private right of action, and that neither the U.S. Constitution nor the California Constitution contain statutes of limitations.
She concludes that MB&T has failed to show she is a vexatious litigant, or that there is no reasonable probability that she will prevail against it, and requests that the court deny the motion, and bifurcate the causes of action against the MB&T cross-defendants and their counsel from the remainder of the cross-complaint.
Reply In reply, MB&T first notes that the vexatious litigant statutes do not limit an inquiry to the action in which the motion is filed, and extends to any litigation in which the person is acting in propria persona, and repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or sole intended to cause unnecessary delay. It is therefore appropriate to look to other actions. It asserts that Colosi made no attempt to refute that her filings show she is a vexatious litigant, never arguing that her filings had merit, that the discovery she sought was necessary, that her conduct across the interpleader action, her petition for habeas corpus, and her cross-complaints do not constitute frivolous or harassing tactics; or that she is not attempting to relitigate the validity of her criminal conviction and the interpleader judgment entered in MB&T’s favor.
MB&T reiterates its position that there is no reasonable probability that Colosi will prevail in her cross-complaint against them, and nothing in her opposition suggests otherwise. MB&T is not asserting claims against Colosi, and have demonstrated that her claims against them have no reasonable probability of success. MB&T has submitted documents from the Court’s docket demonstrating frivolous filings and tactics and attempts to relitigate decided issues. Further, on the face of her own pleading, she has no reasonable probability of success: (1) she sued several MB&T cross-defendants without making any specific factual allegations against them; (2) while the SACC nominally asserts 18 causes of action against MB&T cross-defendants none are viable. Many make no sense or are not civil causes of action, are not viable against non-governmental defendants, are not supported by any factual allegations, and are attempts to blame M&BT for Colosi’s own actions. While she contends constitutional rights may be enforced through private rights of action, she does not identify the causes of action to which she is referring, provide any specific facts or evidence to support her claims, and does not explain why she has a reasonable probability of prevailing; (3) MB&T is protected by absolute litigation privilege from any liability for statements made to law enforcement during the investigation of a crime, and this is the core allegation of her cross-complaints; (4) while she contends that the constitutions do not contain statutes of limitation, that does not mean that constitutional rights cannot be terminated by a statute of limitations; (5) MB&T is protected by the absolute judicial privilege for its initiation of the interpleader action, and since that action terminated in its favor, it can have no malicious prosecution liability based upon it; (6) Colosi asserts causes of action against MB&T for violation of constitutional rights that are not viable against private actors, and claims under the Tom Bane Civil Rights Act are not viable because they require the private actor to interfere with a right by “threat, intimidation, or coercion.”
MB&T asserts that its statements made in its motion were true, referring to the active administrative proceeding before the Medical Board of California in which the Attorney General of California is seeking to revoke her medical license, and in referring to Colosi’s confinement in the Santa Barbara County Jail.
MB&T further contends that Colosi’s incarceration does not excuse her vexatious litigation. Finally, it asserts that her request to bifurcate the causes of action against MB&T and their counsel from the remainder of the cross-complaint, because the request was not asserted in a noticed motion, and she cites no authority for bifurcation. To the extent causes of action are cognizable, they appear to have substantial overlap between the various cross-defendants, and bifurcation would require separate juries to adjudicate the same issues, create no efficiency, and would pose a significant risk of inconsistent rulings.
ANALYSIS: Motion to commence trial . The motion will be granted. The Court inadvertently set the June 23, 2025, Trial Confirmation Conference in this case beyond the expiration of the statutory five-year period within which the action should be brought to trial. It will therefore advance the existing trial date to May 12, 2025.
The Court recognizes that due process requires that defendant Colosi be provided adequate opportunity to prepare her defense in this case. There currently exist approximately 5 months prior to the May 12, 2025, trial date, for her to do so. To the extent that she, after diligent and good faith efforts, is unable to complete her trial preparation in advance of the May 12, 2025 trial date, she may, upon an evidentiary showing of good cause, bring a motion to continue that trial date to a later date. To the extent that her proposed continued trial date extends beyond the June 5, 2025, five-year anniversary of the filing of the action, the filing of any such motion will constitute Colosi’s agreement to extend the five-year period to include such continued trial date.
MB&T cross-defendants’ motion to declare Colosi a vexatious litigant and require her to post security. For the reasons articulated more fully herein, the Court declines to find that Colosi is a vexatious litigant within the intent and spirit of the vexatious litigant statutes, and therefore denies cross-defendants’ motion to require her to post security.
1. Request for judicial notice.
In bringing the motion, MB&T has sought judicial notice of a series of the records of this court, subpoenas issued by Colosi in Case No. 22CV04591, a record of the California Supreme Court, and subpoenas issued by Colosi in the administrative proceedings related to the possible revocation of Colosi’s medical license.
Pursuant to Evidence Code section 452(d), and Del E. Webb Corp. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604, it is appropriate to take judicial notice of the state court records, and the Court will judicially notice the court records. This includes exhibits 1-10, 12, and 15-18 to the MB&T Request for Judicial Notice.
The Court notes that while the subpoenas (MB&T Request for Judicial Notice exhibits 11 and 13) seeking the appearance of MB&T personnel at September 29 and October 13, 2023 hearings, and the subpoena issued to MB&T counsel Rafael Gonzalez for appearance on June 10, 2024 (MB&T Request for Judicial Notice exhibit 14), were purportedly issued by Colosi in Case No. 22CV04591, they are not independently found in that court file, nor has judicial notice been requested of any documents in the court’s file to which they might have been attached and authenticated as exhibits.
The Court notes that Case No. 22CV04591 was assigned to a different department of this Court, and the motions in that case were resolved by, and the court trial in that case was conducted by, a different judicial officer. To the extent that the subpoenas were in some manner placed in the file in that case, it is beyond the scope of this Court’s authority to scour that court file and attempt to locate them, when the parties seeking judicial notice of them failed to place them in front of this Court in an appropriate manner. Certainly, the subpoenas could have been properly authenticated in the current motion by declaration, rather than judicial notice, or by seeking judicial notice of court file documents which properly authenticated, attached, and incorporated them. However, this did not happen. Consequently, the Court will decline to take judicial notice of the subpoenas issued in Case No. 22CV04591 (exhibits 11, 13, and 14).
Finally, the subpoenas allegedly issued by Colosi in the administrative proceedings instituted by the State of California related to the question whether her medical license should be revoked (MB&T Request for Judicial Notice exhibit 16), are not court records, nor do they—particularly as documents issued by a party and not by the relevant agency—constitute “official acts” of the legislative, executive, or judicial departments of the United States or of any state. Consequently, they are not a proper subject of judicial notice, and MB&T’s request that this court take judicial notice of them is denied. Once again, the subpoenas could properly have been presented and authenticated through declaration testimony.
Additionally, judicial notice is only appropriate where the matter to be judicially noticed is relevant to the issues. (See Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, overruled on other grounds by In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276.) The subpoenas issued in the context of the administrative hearing are not relevant to MB&T’s motion to declare Colosi a vexatious litigant, because the prohibition against engaging in unnecessary discovery or other tactics that are frivolous or solely intended to cause unnecessary delay (Code Civ. Proc., § 391(b)(3) require that the conduct have been committed by the party while acting in propria persona in any “litigation,” which Section 391(a) defines to mean “a civil action or proceeding commenced, maintained, or pending in any state or federal court.” (Emphasis added; see discussion of the vexatious litigant statutes, below.) The administrative hearing was not commenced, maintained, or pending in a state or federal court, and the subpoenas issued by Colosi in the administrative proceeding are therefore irrelevant to the vexatious litigant motion.
2. Standards for vexatious litigant finding and requirement to post security.
The statutory scheme involving vexatious litigants is set forth in Code of Civil Procedure sections 391 through 391.8. Section 391(b) defines a “vexatious litigant” to mean a person who does certain acts, including any of the following:
The vexatious litigant finding may be sought as a basis to require the plaintiff to furnish security (Code Civ. Proc., §§ 391.1-391.6), or as a basis for imposition of a prefiling order prohibiting the party from filing any new litigation, in pro per, without obtaining leave of the presiding judge (Code Civ. Proc., §§ 391.7-391.8), or both. In this case, only the furnishing of security is at issue.
Section 391(a) defines “litigation” to mean “any civil action or proceeding, commenced, maintained or pending in any state or federal court.” Section 391(c) defines “security” as “an undertaking to assure payment, to the party for whose benefit the undertaking is required to be furnished, of the party’s reasonable expenses, including attorneys’ fees and not limited to taxable cause, incurred in or in connection with a litigation instituted, caused to be instituted, or maintained or caused to be maintained by a vexatious litigant.” Section 391(d) defines “plaintiff” to mean “the person who commences, institutes or maintains a litigation or causes it to be commenced, instituted or maintained, including an attorney at law acting in propria persona.” Section 391(d) defines “defendant” to mean a person “against whom a litigation is brought or maintained or sought to be brought or maintained.” As such, “plaintiff” includes a cross-complainant, and “defendant” includes a cross-defendant. (See Blizzard Energy, Inc. v. Schaefers (2022) 85 Cal.App.5th 802, 807-808.)
Code of Civil Procedure section 391.1(a) provides:
In any litigation pending in any court of this state, at any time until final judgment is entered, a defendant may move the court, upon notice and hearing, for an order requiring the plaintiff to furnish security or for an order dismissing the litigation pursuant to subdivision (b) of Section 391.3. The motion for an order requiring the plaintiff to furnish security shall be based upon the ground, and supported by a showing, that the plaintiff is a vexatious litigant and that there is not a reasonable probability that they will prevail in the litigation against the moving defendant.
Section 391.2 provides further:
At the hearing upon the motion the court shall consider any evidence, written or oral, by witnesses or affidavit, as may be material to the ground of the motion. Except for an order dismissing the litigation pursuant to subdivision (b) of Section 391.3, no determination made by the court in determining or ruling upon the motion shall be deemed to be a determination of any issue in the litigation or of the merits thereof.
Pursuant to Section 391.3, if after hearing the evidence, the court determines that the plaintiff is a vexatious litigant and that there is no reasonable probability that the plaintiff will prevail in the litigation against the moving defendant, the court “shall” order the plaintiff to furnish security in such amount and within such time as the court shall fix, for the benefit of the moving defendant. If the security that has been ordered is not furnished as ordered, Section 391.4 requires that the litigation be dismissed as to the defendant for whose benefit it was ordered furnished.
As set forth in First Western Development Corp. v. Superior Court (1989) 212 Cal.App.3d 860-867-868, “[t]he vexatious litigant statutes were enacted to require a person found a vexatious litigant to put up security for the reasonable expenses of a defendant who becomes the target of one of these obsessive and persistent litigants whose conduct can cause serious financial results to the unfortunate object of his attack. The purpose of the statutory scheme is to deal with the problem created by the persistent and obsessive litigant who has constantly pending a number of groundless actions, often against the judges and other court officers who decide or were concerned in the decision of previous actions adversely to him.” Further, the purpose of the statutes is to curb misuse of the court system by those acting as self-represented litigants who repeatedly relitigate the same issues. (Golin v. Allenby (2010) 190 Cal.App.4th 616, 635.) Their abuse of the system not only wastes court time and resources but also prejudices other parties waiting their turn before the courts. (Singh v. Lipworth (2005) 132 Cal.App.4th 40, 44.)
In considering a motion made pursuant to Section 391.1, the trial court performs an evaluative function, and must weigh the evidence to decide both whether the party is vexatious based on the statutory criteria, and whether he or she has a reasonable probability of prevailing. (Golin v. Allenby, supra, citing Moran v. Murtaugh Miller Meyer & Nelson, LLP (2007) 40 Cal.4th 780, 786.) The court does not assumed the truth of a litigant’s factual allegations, and it may receive and weigh evidence before deciding whether the litigant has a reasonable chance of prevailing. (Ibid.)
The trial court exercises its discretion in determining whether a person is a vexatious litigant. (Golin v. Allenby, supra, 190 Cal.App.4th at p. 636.) As set forth in Morton v. Wagner (2007) 156 Cal.App.4th 963, 970-971, “[a]ny determination that a litigant is vexatious must comport with the intent and spirit of the vexatious litigant statute, the purpose of which is to address the problem created by the persistent and obsessive litigant who constantly has pending a number of groundless actions and whose conduct causes serious financial results to the unfortunate objects of his or her attacks and places an unreasonable burden on the courts. [Citations.] Therefore, to find that a litigant is vexatious, the trial court must conclude that the litigant[’s] actions are unreasonably impacting the objects of the [litigant’s] actions and the courts as contemplated by the statute.”
What constitutes “repeatedly” and “unmeritorious” under the terms of Section 391(b)(3) is left to the sound discretion of the trial court. (Id. at p. 971.) Further, not all failed motions can support a vexatious litigant designation. The repeated motions must be so devoid of merit and be so frivolous that they can be described as “a flagrant abuse of the system,” have “no reasonable probability of success,” lack “reasonable probable cause or excuse,” and are clearly meant to “abuse the processes of the court and harass the adverse party than other litigants.” (Morton, supra, 156 Cal.App.4th at p. 972.)
3. Application.
As noted within this Court’s discussion of the propriety of judicial notice, the subpoenas issued by Colosi in the administrative hearing related to the possible revocation of her medical license, were not issued in a civil action or proceeding commenced, maintained, pending in a state or federal court. Consequently, they were not issued “in any litigation,” as that terms is defined in Section 391(a), and therefore do not constitute the engaging in unnecessary discovery or other tactics that are frivolous (etc.), within the meaning of Section 391(b)(3). They are therefore irrelevant to the vexatious litigant motion, and provide no support for the orders sought by MB&T.
Additionally, the Court cannot find that Colosi’s filing of a petition for writ of habeas corpus in the California Supreme Court, related to the criminal proceedings against her, is in any way relevant to the vexatious litigant question, nor would its consideration in the current context further the purposes behind the vexatious litigant statutes. The Court will therefore disregard the Supreme Court’s order denying the petition, in resolving the current motion.
With respect to the remaining filings and events which MB&T has used to support its motion, the Court notes that most were related to two pre-trial hearings in Case No. 22CV04591, which were the only pre-trial hearings of note in that case.
The first relevant hearing took place on July 21, 2023, at which time the trial court heard and denied Colosi’s motion for permanent injunction. The documents of which M&BT requested judicial notice related to the July 21, hearing were Nos. 4-7, and consisted of three documents filed by Colosi (i.e., (a) Response and Opposition to Interpleader, Request for Permanent Injunction, filed June 3, 2023 (exhibit 4); (b) Notice of Motion and Motion for Permanent Injunction, filed June 12, 2023 (exhibit 5); and (3) Reply to Plaintiff’s MBT’s Opposition to Defendant Theresa Colosi’s Motion for Permanent Injunction, filed July 18, 2023 (exhibit 6)), as well as the trial court’s Minute Order for the July 21, 2023, hearing (exhibit 7).
The trial court’s Minute Order for the hearing summarized the documents filed by Colosi, including the nature of the permanent injunction sought by Colosi, which makes clear to this Court that Colosi had no understanding at that time of the nature and limited scope of an interpleader action. That lack of understanding was not a focus of the ruling on Colosi’s motion for permanent injunction, however, which denied the motion largely on procedural grounds. The trial court first noted that permanent injunctions are not normally available through pre-trial motion practice but rather were issued after trial, and that Colosi’s motion papers were procedurally insufficient to constitute any sort of motion that could resolve the case without a trial (e.g., summary judgment or summary adjudication, or motion for judgment on the pleadings) and necessarily failed to meet the burden required for any such motion. The trial court noted that Case No. 22CV04591 was an interpleader action, and that entitlement to the funds interpleaded by MB&T—which made no claim to any of the funds in its possession—would be determined at the trial of that action. It further noted that Colosi’s argument that the only reason there were multiple claimants to the funds was because MB&T violated her rights by disclosing the existence of the funds, and publication of their existence gave rise to multiple claims to the funds, was not meritorious, and that the existence of multiple claimants to the funds arose from Colosi’s own conduct and not from any conduct by MB&T.
The second relevant pre-trial hearing in Case No. 22CV04591 took place on October 13, 2023.
MB&T requested judicial notice of a series of documents related to the hearing on the multiple motions that ultimately took place on October 23, 2023, including the trial court’s extensive Minute Order for the hearing (exhibit 1); the Order Granting Plaintiff Montecito Bank & Trust’s Motion for Discharge of Liability and Award of Costs and Fees, entered November 1, 2023 (exhibit 2); Colosi’s Notice of Motion; Memorandum of Points and Authorities; and Declaration in Support of Motion to Compel Responses to Requests for Production of Documents, Set One and Monetary Sanctions, filed August 10, 2023 (exhibit 8); Colosi’s Opposition to MBT’s Motion for Discharge of Liability and Award of Costs and Fees; Declaration, filed on July 18, 2023 (exhibit 9); Colosi’s Notice of Motion and Motion to Dismiss, filed September 12, 2023 (exhibit 10); and Supplement to Defendant Colosi’s Motion to Dismiss, filed by Colosi on October 5, 2023 (exhibit 12).
A review of the trial court’s Minute Order from the October 13, 2023, hearing reveals that the trial court resolved MB&T’s motion for discharge, Colosi’s motion to dismiss, two motions by claimants to the interpleaded funds for immediate release of funds, three motions to quash subpoenas issued by Colosi for personal appearance at the hearing, Colosi’s motion to compel MB&T to produce documents, Colosi’s motion to compel defendant Hutcheson to produce documents, and Colosi’s motion to compel defendant Hann to produce documents. MB&T’s motion for discharge was granted, Colosi’s motion to compel Hann to produce documents was granted in part, and all other motions before the court at that time were denied.
As part of the trial court’s ruling on MB&T’s motion for discharge, it explained the limited nature of an action in interpleader, including that claimants to the funds could only raise issues related to whether the suit was properly for interpleader, the inability by a claimant to obtain any affirmative relief against the plaintiff, the inability to raise in the interpleader action any other claims that the claimant might have against the interpleader plaintiff and the necessity to raise any such claims in a different action, etc. The trial court explained to the parties that the action was properly one for interpleader, and that while Colosi claimed entitlement to 100% of the funds interpleaded, the claims made by defendants Guier, Hutcheson and Hann arose from Colosi’s legal liability to them, Guier in the form of judgments of the Santa Clara Superior Court, Hutcheson in the form of attorneys’ fees awarded to him from Colosi by the Santa Clara Superior Court, and Hann, in the form of her pending personal injury claim against Colosi, arising from the incident for which Colosi had pleaded guilty to felony charges. These competing claims to the funds held by MB&T gave rise to a proper claim for interpleader of those funds, and the entitlements to and/or allocation of the funds to the proper claimants would be ascertained by that court in the trial of the action.
The trial court explained that to the extent that Colosi contended that MB&T had violated her financial privacy rights, to the extent that any such claim is valid, it must be raised in a different lawsuit, and not in the interpleader action.
The trial court found the motions to quash the subpoenas issued by Colosi to compel appearance and production of documents at the civil law and motion hearing provided insufficient notice to Colosi, and the Court would not address them on their merits. However, it instructed Colosi that live witness testimony is only rarely permitted in civil law and motion proceedings, upon prior authorization by the court, and that it could think of no live testimony which would have further informed the court on the issues set to be resolved at that hearing. It further noted that given the assortment of persons whose appearance the subpoenas sought to compel at the hearing, it appeared that their testimony was being sought for matters extraneous to the limited issues which were encompassed or could be raised in the interpleader action.
The trial court denied Colosi’s motions to compel production of documents by MB&T, and by interpleader defendant Hutcheson, again on the basis that the documents she was seeking were irrelevant to the limited issues which were encompassed or could be raised in the interpleader action. However, it granted in part the motion to compel Hann to produce records, finding that Hann’s medical records were relevant to Hann’s claim to the interpleaded funds, and were therefore a proper subject of discovery in the interpleader action.
Up until this point in time, i.e., upon the trial court’s issuance of its ruling on the various motions that were set for hearing on October 13, 2023, Colosi was certainly mistaken about what issues she could have raised in the interpleader action, including that she could not raise issues related to the criminal proceedings or family court proceedings. However, her lack of understanding was itself understandable and not unreasonable, particularly given that she was attempting to represent herself in the interpleader action, and also was, at that time, incarcerated in the Santa Barbara County Jail, with limited access to legal resources through which she could inform herself. The Court cannot find that, prior to October 13, 2023, any of Colosi’s actions in the interpleader action rose to the level of being “a flagrant abuse of the system,” an abuse of the process of the court, were intended to harass MB&T, or would otherwise support a determination that Colosi was a “vexatious litigant” within the intent and spirit of the vexatious litigant statutes. (See Morton v. Wagner, supra, 156 Cal.App.4th 963, 970-972.)
The problem, in terms of MB&T’s contention that Colosi is a vexatious litigant within the meaning of Code of Civil Procedure section 391(b)(2) or (b)(3), who should be ordered to provide a security pursuant to Code of Civil Procedure section 391.1(a), is that this is the bulk of the information it has properly put before the Court which is relevant to the issue of whether Colosi is a vexatious litigant.
The little which remains relates to the trial of the interpleader action, which adds little to the vexatious litigant calculus, and is not sufficient to cause the Court to conclude—at least at this point in time—that Colosi is a vexatious litigant within the meaning of Code of Civil Procedure section 391(b)(2) or (b)(3), as urged by MB&T. The Court notes further that even if the subpoenas which were the subject of the three motions to quash heard and determined by the trial court on October 13 had all been placed properly before it, were all properly before it, its analysis of their impact on this motion would not have changed the result.
Because the Court finds that Colosi’s conduct to date does not rise to the level that would render her “vexatious” within the meaning of Code of Civil Procedure section 391(b)(2) or (b)(3), the motion must be denied, and the Court need not reach the issue of whether “there is not a reasonable probability” that Colosi will prevail in the litigation against MB&T. (Code Civ. Proc., § 391.1, subd. (a).)
Hearing Date: 12/16/2024
HEARINGS: Motion by plaintiff Cindy M. Hann to commence trial or to defer five-year dismissal rule
Motion by MB&T cross-defendants to have cross-complainant Theresa Colosi declared a vexatious litigant and to post security.
ATTORNEYS: Patrick McCarthy / William P. Frusetta of McCarthy & Kroes for plaintiff
Cindy M. Hann
Defendant and cross-complainant Theresa Lynn Colosi is in pro per
Rafael Gonzalez / Andrew M. Cox of Mullen & Henzell LLP for cross-
defendants Montecito Bank & Trust, Janet Garufis, George Leis,
James Jefferson, and Amy Hinkens
For the reasons more fully articulated below, MB&T’s motion to have Colosi declared a vexatious litigant and ordered to post security is denied.
The Court notes that it previously severed the underlying complaint from Colosi’s recently-filed cross-complaints naming many putative cross-defendants, and ordered that the underlying action would proceed entirely separately from Colosi’s cross-action. As a result, while these two motions are proceeding under the same case number and being heard at the same time, they are functionally completely unrelated, and the resolution of one will have no impact on the resolution of the other.
Plaintiff Hann’s motion to commence trial before June 5, 2025, or to defer the five-year dismissal rule: The current case was filed on June 5, 2020. The five-year period within which to bring the action to trial therefore expires on June 5, 2025. When the court set the current trial date of June 23, 2025, neither the court nor the parties recognized that the trial date was beyond the five-year period. Hann therefore moves to have the trial commence prior to June 5, 2025, or to defer the five-year dismissal rule, claiming various tolling, waiver, and/or estoppel provisions.
Defendant Colosi has opposed the motion and, misunderstanding the nature of the motion, has asserted that the action against her must now be dismissed.
MB&T cross-defendants’ motion for security from cross-complainant Theresa Colosi as a vexatious litigant: The MB&T cross-defendants (collectively MB&T) have moved to have cross-complainant Theresa Colosi declared a vexatious litigant and for an order requiring her to post security in the amount of at least $15,000, in order to proceed to pursue her cross-action against them.
MB&T contends that Colosi qualifies as a vexatious litigant because she has (a) repeatedly filed unmeritorious papers while proceeding in propria persona in civil actions, including at least 11 separate unmeritorious filings across three civil actions, (b) attempted to conduct unnecessary and irrelevant discovery, including repeated subpoenas of individuals associated with MB&T that have been quashed as irrelevant, and (c) waged a campaign of frivolous, harassing litigation against MB&T and its personnel attempting to blame MB&T for the consequences of her own criminal conduct and to retaliate against MB&T for filing its interpleader action.
MB&T contends that Colosi has no reasonable probability of prevailing against them, for a variety of reasons, including that her cross-complaints make no specific allegations against the individual cross-defendants, that some of the causes of action make no sense and are not civil causes of action or causes of action at all, that some are not viable against non-governmental defendants, that her claims are not supported by factual allegations in the SACC, and that her claims are barred by statutes of limitation. Her core theory that MB&T’s disclosure of private financial information to law enforcement caused criminal and family court judgments against her is “preposterous,” and barred by the absolute privilege of Civil Code section 47(b). To the extent her claims are based upon MB&T’s initiation of the interpleader action, which terminated in MB&T’s favor, they are also absolutely privileged under Civil Code section 47.
MB&T estimates that it will incur approximately $15,000 in fees to defend the cross-complaint through the demurrer stage, and another $60,000 if the action proceeds through to the summary judgment stage.
Evidence The motion is supported by the declaration of MB&T attorney Rafael Gonzalez, who declares that on September 20, 2024, he appeared before an administrative law judge with the Office of Administrative Hearings in In the Matter of the First Amended Accusation Against: THERESA COLOSI, M.D. Physician’s and Surgeon’s Certificate No. A 66895, Case No. 800-2020-063591, OAH No. 2024040593. At that time, the administrative law judge granted MB&T’s motion to quash subpoenas which Colosi has served upon George Lies (MB&T President and COO), S. Lachlan Hough (MB&T Lead Director of Board of Directors), Steven Zola (MB&T Board Member), Amy Hinkens (MB&T former employee), and himself (as MB&T counsel), on the grounds that the discovery sought was irrelevant to the action to revoke Colosi’s medical license. The declaration then further proceeded to estimate the fees which would be incurred in defending the action through the demurrer stage ($15,000), and if the action survived demurrer, the estimate of fees to take it through the summary judgment stage ($60,000).
The motion was further supported by a request for judicial notice, supported by the declaration of attorney Andrew Cox, seeking judicial notice of the following:
(2) 11/1/23 Order Granting Plaintiff Montecito Bank & Trust’s Motion for Discharge of Liability and Award of Costs and Fees, in Montecito Bank & Trust v. Colosi, SBSC Case No. 22CV04591 (Ex. 2);
(3) 7/16/24 Ruling After Trial Regarding Claims of Cynthia M. Hann, entered in Montecito Bank & Trust v. Colosi, SBSC Case No. 22CV04591 (Ex. 3);
(4) Response and Opposition to Interpleader, Request for Permanent Injunction, filed by Colosi on 6/3/2023 in Montecito Bank & Trust v. Colosi, SBSC Case No. 22CV04591 (Ex. 4);
(5) Notice of Motion and Motion for Permanent Injunction, filed by Colosi on 6/12/2023 in Montecito Bank & Trust v. Colosi, SBSC Case No. 22CV0491 (Ex. 5);
(6) Reply to Plaintiff MBT’s Opposition to Defendant Theresa Colosi’s Motion for Permanent Injunction, filed by Colosi on 7/18/2023 in Montecito Bank & Trust v. Colosi, SBSC Case No. 22CV04591 (Ex. 6);
(7) 7/21/2023 Minute Order in Montecito Bank & Trust v. Colosi SBSC Case No. 22CV04591 (Ex. 7);
(8) Notice of Motion and Motion; Memorandum of Points and Authorities; and Declaration in Support of Motion to Compel Responses to Requests for Production of Documents, Set One and Monetary Sanctions, filed by Colosi on 8/10/23 in Montecito Bank & Trust v. Colosi, SBSC Case No. 22CV04591 (Ex. 8);
(9) Opposition to MBT’s Motion for Discharge of Liability and Award of Costs and Fees; Declaration, filed by Colosi on 7/18/2023 in Montecito Bank & Trust v. Colosi, SBSC Case No. 22CV04591 (Ex. 9);
(10) Notice of Motion and Motion to Dismiss, filed by Colosi on 9/12/2023 in Montecito Bank & Trust v. Colosi, SBSC Case No. 22CV04591 (Ex. 10);
(11) Subpoenas issued by Colosi to MB&T Officers (a) George Leis, (b) Janet Garufis, and (c) James Jefferson, and to former MB&T branch manager Amy Hinkens, for appearance on 9/29/2023 in Montecito Bank & Trust v. Colosi, SBSC Case No. 22CV04591 (Ex. 11);
(12) Supplement to Colosi’s Motion to Dismiss, filed by Colosi on 10/5/2023 in Montecito Bank & Trust v. Colosi, SBSC Case No. 22CV04591 (Ex. 12);
(13) Subpoenas issued by Colosi to MB&T President George Leis and former branch manager Amy Hinkens, for appearance on October 13, 2023, in Montecito Bank & Trust v. Colosi, SBSC Case No. 22CV04591 (Ex. 13);
(14) Subpoena issued by Colosi to MB&T counsel Rafael Gonzalez for appearance on June 10, 2024, in Montecito Bank & Trust v. Colosi, SBSC Case No. 22CV04591 (Ex. 14);
(15) Oder on Ex Parte Application to Quash Subpoena Duces Tecum, filed 6/10/24 in Montecito Bank & Trust v. Colosi, SBSC Case No. 22CV04591 (Ex. 15);
(16) Motion in Limine, filed by Colosi on 6/6/2024 in Montecito Bank & Trust v. Colosi, SBSC Case No. 22CV04591 (Ex. 16);
(17) 6/10/24 Minute Order entered in Montecito Bank & Trust v. Colosi, SBSC Case No. 22CV04591 (Ex. 17);
(18) Cal. Supreme Court denial of Colosi’s petition for writ of habeas corpus, In re Colosi (2/14/24), 2024 Cal. L EXIS 701 (Ex. 18); and
(19) Subpoenas issued by Colosi to (1) MB&T President George Leis, (2) MB&T Board of Directors member S. Lachlan Hough, (3) MB&T counsel Rafael Gonzalez, (4) former MB&T branch manager Amy Hinkens, and (5) MB&T Board of Directors member Steven Zola, for appearance on September 23, 2024, in In the Matter of the First Amended Accusation Against: THERESA COLOSI, M.D. Physician’s and Surgeon’s Certification No. A. 66895, Respondent Case No. 800-2020-063591, OAH No. 2024040593 (Ex. 19).
Opposition Colosi filed brief opposition to the motion, in which she notes that the motion cites numerous documents from Case No. 22CV04591, the interpleader action, asserting that the action was filed, served, and prosecuted against her while she was detained and indigent, with no access to legal aid/counsel, which she contends presented clear equity issues. She also notes that the motion cited the criminal action, 19CR01290. Both cases are currently under appeal. She objects that MB&T cited no evidence to support its claims from this case.
Colosi contends that MB&T made deliberately false statements about her “bind in prison” and “having her professional license revoked,” but she was never in prison and never had her professional license revoked. She contends MB&T also falsely stated that it interpleaded funds backing checks that went unclaimed, but that it has always been aware that the checks were being held as evidence by the Santa Barbara County District Attorney and were never “unclaimed.” She asserts the court has previously acknowledged the importance and relevance of “Payne (1976)” with respect to detained indigent defendants.
She notes that Judge Sterne declined to relate 19CR12190 or 22CV04591 to this case. She asserts that Judge Geck acknowledged in court on 6/10/24 that Colosi likely had a civil rights violation cause of action against MBT, but declined to hear it in her court. She cites to the California Constitution, and contends that it applies to both government and private entities, that prosecution of its violations is through a private right of action, and that neither the U.S. Constitution nor the California Constitution contain statutes of limitations.
She concludes that MB&T has failed to show she is a vexatious litigant, or that there is no reasonable probability that she will prevail against it, and requests that the court deny the motion, and bifurcate the causes of action against the MB&T cross-defendants and their counsel from the remainder of the cross-complaint.
Reply In reply, MB&T first notes that the vexatious litigant statutes do not limit an inquiry to the action in which the motion is filed, and extends to any litigation in which the person is acting in propria persona, and repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or sole intended to cause unnecessary delay. It is therefore appropriate to look to other actions. It asserts that Colosi made no attempt to refute that her filings show she is a vexatious litigant, never arguing that her filings had merit, that the discovery she sought was necessary, that her conduct across the interpleader action, her petition for habeas corpus, and her cross-complaints do not constitute frivolous or harassing tactics; or that she is not attempting to relitigate the validity of her criminal conviction and the interpleader judgment entered in MB&T’s favor.
MB&T reiterates its position that there is no reasonable probability that Colosi will prevail in her cross-complaint against them, and nothing in her opposition suggests otherwise. MB&T is not asserting claims against Colosi, and have demonstrated that her claims against them have no reasonable probability of success. MB&T has submitted documents from the Court’s docket demonstrating frivolous filings and tactics and attempts to relitigate decided issues. Further, on the face of her own pleading, she has no reasonable probability of success: (1) she sued several MB&T cross-defendants without making any specific factual allegations against them; (2) while the SACC nominally asserts 18 causes of action against MB&T cross-defendants none are viable. Many make no sense or are not civil causes of action, are not viable against non-governmental defendants, are not supported by any factual allegations, and are attempts to blame M&BT for Colosi’s own actions. While she contends constitutional rights may be enforced through private rights of action, she does not identify the causes of action to which she is referring, provide any specific facts or evidence to support her claims, and does not explain why she has a reasonable probability of prevailing; (3) MB&T is protected by absolute litigation privilege from any liability for statements made to law enforcement during the investigation of a crime, and this is the core allegation of her cross-complaints; (4) while she contends that the constitutions do not contain statutes of limitation, that does not mean that constitutional rights cannot be terminated by a statute of limitations; (5) MB&T is protected by the absolute judicial privilege for its initiation of the interpleader action, and since that action terminated in its favor, it can have no malicious prosecution liability based upon it; (6) Colosi asserts causes of action against MB&T for violation of constitutional rights that are not viable against private actors, and claims under the Tom Bane Civil Rights Act are not viable because they require the private actor to interfere with a right by “threat, intimidation, or coercion.”
MB&T asserts that its statements made in its motion were true, referring to the active administrative proceeding before the Medical Board of California in which the Attorney General of California is seeking to revoke her medical license, and in referring to Colosi’s confinement in the Santa Barbara County Jail.
MB&T further contends that Colosi’s incarceration does not excuse her vexatious litigation. Finally, it asserts that her request to bifurcate the causes of action against MB&T and their counsel from the remainder of the cross-complaint, because the request was not asserted in a noticed motion, and she cites no authority for bifurcation. To the extent causes of action are cognizable, they appear to have substantial overlap between the various cross-defendants, and bifurcation would require separate juries to adjudicate the same issues, create no efficiency, and would pose a significant risk of inconsistent rulings.
ANALYSIS: Motion to commence trial . The motion will be granted. The Court inadvertently set the June 23, 2025, Trial Confirmation Conference in this case beyond the expiration of the statutory five-year period within which the action should be brought to trial. It will therefore advance the existing trial date to May 12, 2025.
The Court recognizes that due process requires that defendant Colosi be provided adequate opportunity to prepare her defense in this case. There currently exist approximately 5 months prior to the May 12, 2025, trial date, for her to do so. To the extent that she, after diligent and good faith efforts, is unable to complete her trial preparation in advance of the May 12, 2025 trial date, she may, upon an evidentiary showing of good cause, bring a motion to continue that trial date to a later date. To the extent that her proposed continued trial date extends beyond the June 5, 2025, five-year anniversary of the filing of the action, the filing of any such motion will constitute Colosi’s agreement to extend the five-year period to include such continued trial date.
MB&T cross-defendants’ motion to declare Colosi a vexatious litigant and require her to post security. For the reasons articulated more fully herein, the Court declines to find that Colosi is a vexatious litigant within the intent and spirit of the vexatious litigant statutes, and therefore denies cross-defendants’ motion to require her to post security.
1. Request for judicial notice.
In bringing the motion, MB&T has sought judicial notice of a series of the records of this court, subpoenas issued by Colosi in Case No. 22CV04591, a record of the California Supreme Court, and subpoenas issued by Colosi in the administrative proceedings related to the possible revocation of Colosi’s medical license.
Pursuant to Evidence Code section 452(d), and Del E. Webb Corp. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604, it is appropriate to take judicial notice of the state court records, and the Court will judicially notice the court records. This includes exhibits 1-10, 12, and 15-18 to the MB&T Request for Judicial Notice.
The Court notes that while the subpoenas (MB&T Request for Judicial Notice exhibits 11 and 13) seeking the appearance of MB&T personnel at September 29 and October 13, 2023 hearings, and the subpoena issued to MB&T counsel Rafael Gonzalez for appearance on June 10, 2024 (MB&T Request for Judicial Notice exhibit 14), were purportedly issued by Colosi in Case No. 22CV04591, they are not independently found in that court file, nor has judicial notice been requested of any documents in the court’s file to which they might have been attached and authenticated as exhibits.
The Court notes that Case No. 22CV04591 was assigned to a different department of this Court, and the motions in that case were resolved by, and the court trial in that case was conducted by, a different judicial officer. To the extent that the subpoenas were in some manner placed in the file in that case, it is beyond the scope of this Court’s authority to scour that court file and attempt to locate them, when the parties seeking judicial notice of them failed to place them in front of this Court in an appropriate manner. Certainly, the subpoenas could have been properly authenticated in the current motion by declaration, rather than judicial notice, or by seeking judicial notice of court file documents which properly authenticated, attached, and incorporated them. However, this did not happen. Consequently, the Court will decline to take judicial notice of the subpoenas issued in Case No. 22CV04591 (exhibits 11, 13, and 14).
Finally, the subpoenas allegedly issued by Colosi in the administrative proceedings instituted by the State of California related to the question whether her medical license should be revoked (MB&T Request for Judicial Notice exhibit 16), are not court records, nor do they—particularly as documents issued by a party and not by the relevant agency—constitute “official acts” of the legislative, executive, or judicial departments of the United States or of any state. Consequently, they are not a proper subject of judicial notice, and MB&T’s request that this court take judicial notice of them is denied. Once again, the subpoenas could properly have been presented and authenticated through declaration testimony.
Additionally, judicial notice is only appropriate where the matter to be judicially noticed is relevant to the issues. (See Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, overruled on other grounds by In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276.) The subpoenas issued in the context of the administrative hearing are not relevant to MB&T’s motion to declare Colosi a vexatious litigant, because the prohibition against engaging in unnecessary discovery or other tactics that are frivolous or solely intended to cause unnecessary delay (Code Civ. Proc., § 391(b)(3) require that the conduct have been committed by the party while acting in propria persona in any “litigation,” which Section 391(a) defines to mean “a civil action or proceeding commenced, maintained, or pending in any state or federal court.” (Emphasis added; see discussion of the vexatious litigant statutes, below.) The administrative hearing was not commenced, maintained, or pending in a state or federal court, and the subpoenas issued by Colosi in the administrative proceeding are therefore irrelevant to the vexatious litigant motion.
2. Standards for vexatious litigant finding and requirement to post security.
The statutory scheme involving vexatious litigants is set forth in Code of Civil Procedure sections 391 through 391.8. Section 391(b) defines a “vexatious litigant” to mean a person who does certain acts, including any of the following:
The vexatious litigant finding may be sought as a basis to require the plaintiff to furnish security (Code Civ. Proc., §§ 391.1-391.6), or as a basis for imposition of a prefiling order prohibiting the party from filing any new litigation, in pro per, without obtaining leave of the presiding judge (Code Civ. Proc., §§ 391.7-391.8), or both. In this case, only the furnishing of security is at issue.
Section 391(a) defines “litigation” to mean “any civil action or proceeding, commenced, maintained or pending in any state or federal court.” Section 391(c) defines “security” as “an undertaking to assure payment, to the party for whose benefit the undertaking is required to be furnished, of the party’s reasonable expenses, including attorneys’ fees and not limited to taxable cause, incurred in or in connection with a litigation instituted, caused to be instituted, or maintained or caused to be maintained by a vexatious litigant.” Section 391(d) defines “plaintiff” to mean “the person who commences, institutes or maintains a litigation or causes it to be commenced, instituted or maintained, including an attorney at law acting in propria persona.” Section 391(d) defines “defendant” to mean a person “against whom a litigation is brought or maintained or sought to be brought or maintained.” As such, “plaintiff” includes a cross-complainant, and “defendant” includes a cross-defendant. (See Blizzard Energy, Inc. v. Schaefers (2022) 85 Cal.App.5th 802, 807-808.)
Code of Civil Procedure section 391.1(a) provides:
In any litigation pending in any court of this state, at any time until final judgment is entered, a defendant may move the court, upon notice and hearing, for an order requiring the plaintiff to furnish security or for an order dismissing the litigation pursuant to subdivision (b) of Section 391.3. The motion for an order requiring the plaintiff to furnish security shall be based upon the ground, and supported by a showing, that the plaintiff is a vexatious litigant and that there is not a reasonable probability that they will prevail in the litigation against the moving defendant.
Section 391.2 provides further:
At the hearing upon the motion the court shall consider any evidence, written or oral, by witnesses or affidavit, as may be material to the ground of the motion. Except for an order dismissing the litigation pursuant to subdivision (b) of Section 391.3, no determination made by the court in determining or ruling upon the motion shall be deemed to be a determination of any issue in the litigation or of the merits thereof.
Pursuant to Section 391.3, if after hearing the evidence, the court determines that the plaintiff is a vexatious litigant and that there is no reasonable probability that the plaintiff will prevail in the litigation against the moving defendant, the court “shall” order the plaintiff to furnish security in such amount and within such time as the court shall fix, for the benefit of the moving defendant. If the security that has been ordered is not furnished as ordered, Section 391.4 requires that the litigation be dismissed as to the defendant for whose benefit it was ordered furnished.
As set forth in First Western Development Corp. v. Superior Court (1989) 212 Cal.App.3d 860-867-868, “[t]he vexatious litigant statutes were enacted to require a person found a vexatious litigant to put up security for the reasonable expenses of a defendant who becomes the target of one of these obsessive and persistent litigants whose conduct can cause serious financial results to the unfortunate object of his attack. The purpose of the statutory scheme is to deal with the problem created by the persistent and obsessive litigant who has constantly pending a number of groundless actions, often against the judges and other court officers who decide or were concerned in the decision of previous actions adversely to him.” Further, the purpose of the statutes is to curb misuse of the court system by those acting as self-represented litigants who repeatedly relitigate the same issues. (Golin v. Allenby (2010) 190 Cal.App.4th 616, 635.) Their abuse of the system not only wastes court time and resources but also prejudices other parties waiting their turn before the courts. (Singh v. Lipworth (2005) 132 Cal.App.4th 40, 44.)
In considering a motion made pursuant to Section 391.1, the trial court performs an evaluative function, and must weigh the evidence to decide both whether the party is vexatious based on the statutory criteria, and whether he or she has a reasonable probability of prevailing. (Golin v. Allenby, supra, citing Moran v. Murtaugh Miller Meyer & Nelson, LLP (2007) 40 Cal.4th 780, 786.) The court does not assumed the truth of a litigant’s factual allegations, and it may receive and weigh evidence before deciding whether the litigant has a reasonable chance of prevailing. (Ibid.)
The trial court exercises its discretion in determining whether a person is a vexatious litigant. (Golin v. Allenby, supra, 190 Cal.App.4th at p. 636.) As set forth in Morton v. Wagner (2007) 156 Cal.App.4th 963, 970-971, “[a]ny determination that a litigant is vexatious must comport with the intent and spirit of the vexatious litigant statute, the purpose of which is to address the problem created by the persistent and obsessive litigant who constantly has pending a number of groundless actions and whose conduct causes serious financial results to the unfortunate objects of his or her attacks and places an unreasonable burden on the courts. [Citations.] Therefore, to find that a litigant is vexatious, the trial court must conclude that the litigant[’s] actions are unreasonably impacting the objects of the [litigant’s] actions and the courts as contemplated by the statute.”
What constitutes “repeatedly” and “unmeritorious” under the terms of Section 391(b)(3) is left to the sound discretion of the trial court. (Id. at p. 971.) Further, not all failed motions can support a vexatious litigant designation. The repeated motions must be so devoid of merit and be so frivolous that they can be described as “a flagrant abuse of the system,” have “no reasonable probability of success,” lack “reasonable probable cause or excuse,” and are clearly meant to “abuse the processes of the court and harass the adverse party than other litigants.” (Morton, supra, 156 Cal.App.4th at p. 972.)
3. Application.
As noted within this Court’s discussion of the propriety of judicial notice, the subpoenas issued by Colosi in the administrative hearing related to the possible revocation of her medical license, were not issued in a civil action or proceeding commenced, maintained, pending in a state or federal court. Consequently, they were not issued “in any litigation,” as that terms is defined in Section 391(a), and therefore do not constitute the engaging in unnecessary discovery or other tactics that are frivolous (etc.), within the meaning of Section 391(b)(3). They are therefore irrelevant to the vexatious litigant motion, and provide no support for the orders sought by MB&T.
Additionally, the Court cannot find that Colosi’s filing of a petition for writ of habeas corpus in the California Supreme Court, related to the criminal proceedings against her, is in any way relevant to the vexatious litigant question, nor would its consideration in the current context further the purposes behind the vexatious litigant statutes. The Court will therefore disregard the Supreme Court’s order denying the petition, in resolving the current motion.
With respect to the remaining filings and events which MB&T has used to support its motion, the Court notes that most were related to two pre-trial hearings in Case No. 22CV04591, which were the only pre-trial hearings of note in that case.
The first relevant hearing took place on July 21, 2023, at which time the trial court heard and denied Colosi’s motion for permanent injunction. The documents of which M&BT requested judicial notice related to the July 21, hearing were Nos. 4-7, and consisted of three documents filed by Colosi (i.e., (a) Response and Opposition to Interpleader, Request for Permanent Injunction, filed June 3, 2023 (exhibit 4); (b) Notice of Motion and Motion for Permanent Injunction, filed June 12, 2023 (exhibit 5); and (3) Reply to Plaintiff’s MBT’s Opposition to Defendant Theresa Colosi’s Motion for Permanent Injunction, filed July 18, 2023 (exhibit 6)), as well as the trial court’s Minute Order for the July 21, 2023, hearing (exhibit 7).
The trial court’s Minute Order for the hearing summarized the documents filed by Colosi, including the nature of the permanent injunction sought by Colosi, which makes clear to this Court that Colosi had no understanding at that time of the nature and limited scope of an interpleader action. That lack of understanding was not a focus of the ruling on Colosi’s motion for permanent injunction, however, which denied the motion largely on procedural grounds. The trial court first noted that permanent injunctions are not normally available through pre-trial motion practice but rather were issued after trial, and that Colosi’s motion papers were procedurally insufficient to constitute any sort of motion that could resolve the case without a trial (e.g., summary judgment or summary adjudication, or motion for judgment on the pleadings) and necessarily failed to meet the burden required for any such motion. The trial court noted that Case No. 22CV04591 was an interpleader action, and that entitlement to the funds interpleaded by MB&T—which made no claim to any of the funds in its possession—would be determined at the trial of that action. It further noted that Colosi’s argument that the only reason there were multiple claimants to the funds was because MB&T violated her rights by disclosing the existence of the funds, and publication of their existence gave rise to multiple claims to the funds, was not meritorious, and that the existence of multiple claimants to the funds arose from Colosi’s own conduct and not from any conduct by MB&T.
The second relevant pre-trial hearing in Case No. 22CV04591 took place on October 13, 2023.
MB&T requested judicial notice of a series of documents related to the hearing on the multiple motions that ultimately took place on October 23, 2023, including the trial court’s extensive Minute Order for the hearing (exhibit 1); the Order Granting Plaintiff Montecito Bank & Trust’s Motion for Discharge of Liability and Award of Costs and Fees, entered November 1, 2023 (exhibit 2); Colosi’s Notice of Motion; Memorandum of Points and Authorities; and Declaration in Support of Motion to Compel Responses to Requests for Production of Documents, Set One and Monetary Sanctions, filed August 10, 2023 (exhibit 8); Colosi’s Opposition to MBT’s Motion for Discharge of Liability and Award of Costs and Fees; Declaration, filed on July 18, 2023 (exhibit 9); Colosi’s Notice of Motion and Motion to Dismiss, filed September 12, 2023 (exhibit 10); and Supplement to Defendant Colosi’s Motion to Dismiss, filed by Colosi on October 5, 2023 (exhibit 12).
A review of the trial court’s Minute Order from the October 13, 2023, hearing reveals that the trial court resolved MB&T’s motion for discharge, Colosi’s motion to dismiss, two motions by claimants to the interpleaded funds for immediate release of funds, three motions to quash subpoenas issued by Colosi for personal appearance at the hearing, Colosi’s motion to compel MB&T to produce documents, Colosi’s motion to compel defendant Hutcheson to produce documents, and Colosi’s motion to compel defendant Hann to produce documents. MB&T’s motion for discharge was granted, Colosi’s motion to compel Hann to produce documents was granted in part, and all other motions before the court at that time were denied.
As part of the trial court’s ruling on MB&T’s motion for discharge, it explained the limited nature of an action in interpleader, including that claimants to the funds could only raise issues related to whether the suit was properly for interpleader, the inability by a claimant to obtain any affirmative relief against the plaintiff, the inability to raise in the interpleader action any other claims that the claimant might have against the interpleader plaintiff and the necessity to raise any such claims in a different action, etc. The trial court explained to the parties that the action was properly one for interpleader, and that while Colosi claimed entitlement to 100% of the funds interpleaded, the claims made by defendants Guier, Hutcheson and Hann arose from Colosi’s legal liability to them, Guier in the form of judgments of the Santa Clara Superior Court, Hutcheson in the form of attorneys’ fees awarded to him from Colosi by the Santa Clara Superior Court, and Hann, in the form of her pending personal injury claim against Colosi, arising from the incident for which Colosi had pleaded guilty to felony charges. These competing claims to the funds held by MB&T gave rise to a proper claim for interpleader of those funds, and the entitlements to and/or allocation of the funds to the proper claimants would be ascertained by that court in the trial of the action.
The trial court explained that to the extent that Colosi contended that MB&T had violated her financial privacy rights, to the extent that any such claim is valid, it must be raised in a different lawsuit, and not in the interpleader action.
The trial court found the motions to quash the subpoenas issued by Colosi to compel appearance and production of documents at the civil law and motion hearing provided insufficient notice to Colosi, and the Court would not address them on their merits. However, it instructed Colosi that live witness testimony is only rarely permitted in civil law and motion proceedings, upon prior authorization by the court, and that it could think of no live testimony which would have further informed the court on the issues set to be resolved at that hearing. It further noted that given the assortment of persons whose appearance the subpoenas sought to compel at the hearing, it appeared that their testimony was being sought for matters extraneous to the limited issues which were encompassed or could be raised in the interpleader action.
The trial court denied Colosi’s motions to compel production of documents by MB&T, and by interpleader defendant Hutcheson, again on the basis that the documents she was seeking were irrelevant to the limited issues which were encompassed or could be raised in the interpleader action. However, it granted in part the motion to compel Hann to produce records, finding that Hann’s medical records were relevant to Hann’s claim to the interpleaded funds, and were therefore a proper subject of discovery in the interpleader action.
Up until this point in time, i.e., upon the trial court’s issuance of its ruling on the various motions that were set for hearing on October 13, 2023, Colosi was certainly mistaken about what issues she could have raised in the interpleader action, including that she could not raise issues related to the criminal proceedings or family court proceedings. However, her lack of understanding was itself understandable and not unreasonable, particularly given that she was attempting to represent herself in the interpleader action, and also was, at that time, incarcerated in the Santa Barbara County Jail, with limited access to legal resources through which she could inform herself. The Court cannot find that, prior to October 13, 2023, any of Colosi’s actions in the interpleader action rose to the level of being “a flagrant abuse of the system,” an abuse of the process of the court, were intended to harass MB&T, or would otherwise support a determination that Colosi was a “vexatious litigant” within the intent and spirit of the vexatious litigant statutes. (See Morton v. Wagner, supra, 156 Cal.App.4th 963, 970-972.)
The problem, in terms of MB&T’s contention that Colosi is a vexatious litigant within the meaning of Code of Civil Procedure section 391(b)(2) or (b)(3), who should be ordered to provide a security pursuant to Code of Civil Procedure section 391.1(a), is that this is the bulk of the information it has properly put before the Court which is relevant to the issue of whether Colosi is a vexatious litigant.
The little which remains relates to the trial of the interpleader action, which adds little to the vexatious litigant calculus, and is not sufficient to cause the Court to conclude—at least at this point in time—that Colosi is a vexatious litigant within the meaning of Code of Civil Procedure section 391(b)(2) or (b)(3), as urged by MB&T. The Court notes further that even if the subpoenas which were the subject of the three motions to quash heard and determined by the trial court on October 13 had all been placed properly before it, were all properly before it, its analysis of their impact on this motion would not have changed the result.
Because the Court finds that Colosi’s conduct to date does not rise to the level that would render her “vexatious” within the meaning of Code of Civil Procedure section 391(b)(2) or (b)(3), the motion must be denied, and the Court need not reach the issue of whether “there is not a reasonable probability” that Colosi will prevail in the litigation against MB&T. (Code Civ. Proc., § 391.1, subd. (a).)