Cindy M Hann vs Theresa Lynn Colosi

Case Number

20CV01984

Case Type

Hearing Date / Time

Mon, 01/06/2025 - 10:00

Nature of Proceedings

1) Demurrer to Cross-Complaint of Theresa Colosi; and, 2) Motion: Leave to Amend Cross Complaint

Tentative Ruling

Cindy M Hann v. Theresa Lynn Colosi

Case No.  20CV01984 

Hearing Date:         1/6/2025                                              

HEARINGS:

Demurrer by cross-defendant Dan McGrew to Colosi’s First Amended Cross-Complaint

                        Theresa Colosi’s motion for leave to file Second Amended Cross-Complaint

           

ATTORNEYS:         

Patrick McCarthy / William P. Frusetta of McCarthy & Kroes for plaintiff and cross-defendant Cindy M. Hann

Defendant and cross-complaint Theresa Colosi is in pro per

Raphael Gonzalez / Andrew M. Cox of Mullen & Henzell LLP for cross-defendants Montecito Bank & Trust, Janet Garufis, George Leis, James Jefferson, and Amy Hinkens

Sean A. Andrade / Henry H. Gonzalez of Andrade Gonzalez LLP for cross-defendant Dan McGrew

                       

TENTATIVE RULINGS:  

The McGrew demurrer to the FACC is sustained, with leave to amend on or before March 3, 2025, or such other date as this Court may specify at the hearing. Colosi’s motion for leave to file her current proposed SACC is denied.

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 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.

After a hearing held on September 30, 2024, this Court bifurcated the Colosi cross-action from the main action, directing that the two would proceed separately from that point in time forward, including any trial.

When cross-defendant Montecito Bank & Trust on October 8, 2024, filed a motion to declare Colosi a vexatious litigant and require her to post security, setting the motion for hearing on December 16, 2024, the entire cross-action was stayed by operation of law pending a determination of that motion. As a result, the pending motion for leave and demurrer were continued to January 6, 2025, to permit the vexatious litigant motion to be resolved. That motion was denied after hearing on December 16, 2024. Consequently, the motion for leave and demurrer may proceed to hearing on January 6, 2025.

McGrew demurrer to Colosi’s FACC: Cross-defendant Dan McGrew demurred to Colosi’s FACC, on grounds that her action against him was barred by her failure to allege facts showing or excusing compliance with the claim presentation requirement, and based upon the statute of limitations bar.

The demurrer acknowledges that the FACC alleges, at ¶ 11, that Colosi complied with the Government Tort Claims Act, without specifying when she filed her claim. It then refers to the accompanying request for judicial notice of the Tort Claim submitted by Colosi, which reflects that it was executed by Colosi on June 20, 2024, and acknowledges that the transaction which gave rise to the claim began on December 8, 2019. Since she was required to submit her claim within six months of accrual, or apply for leave to present a late claim no later than one year after accrual, McGrew asserts that her claim was filed more than four years too late. Without alleging timely compliance with the claim presentation requirement, McGrew contends that the complaint is subject to general demurrer for failure to state a cause of action.

The demurrer proceeds to contend that the statute of limitations bars the entire complaint. Because Colosi acknowledges on her claim that the date of the occurrence or transaction which gave rise to the claim began on December 8, 2019, she had to file a claim by June 2020, and an application to present a late claim by December 2020. She did not timely comply with the claim presentation requirements, and made no claim against County or McGrew until four years after the deadline passed. McGrew therefore concludes that the demurrer must be sustained.

The demurrer is accompanied by a Request for Judicial Notice, which seeks judicial notice of Colosi’s FACC (and its exhibits), and a copy of the Government Tort Claim submitted to County of Santa Barbara by cross-complainant Colosi, dated June 20, 2024, which reflects that it was received by County on June 25, 2024.

Colosi’s June 2024 Claim states that the date of the occurrence or transaction which gave rise to the claim “began 12.8.19 and ongoing.” It then reiterates the information about the obtaining of the search warrant by Deputy MacAulay, and attaches the document which purports to be a partial declaration of McGrew, which is also attached to the FACC. It identifies McGrew as one of the public employees causing the injury, damage, or loss.

Opposition No opposition papers were filed.

Reply Cross-defendant McGrew filed reply papers, noting that Colosi failed to file or serve opposition. It then proceeds to reiterate the arguments that the failure to timely comply with the claims requirement is a jurisdictional defect that requires that the demurrer be sustained, and that even if it were not barred as a result of the claims presentation requirement, it is barred by applicable statutes of limitation.

Colosi’s motion for leave to file SACC: On August 13, 2024, Colosi filed her original motion for leave to amend her cross-complaint, seeking to file a Second Amended Cross-Complaint. On August 30, 2024, she filed an amended motion for leave, seeking to file the SACC. The declaration in support of her motion states that, in response to her FACC, she received a request for clarification from unnamed cross-defendants, and as a result prepared a SACC that she believes to be responsive to those requests. She also has added additional cross-defendants which she declares she believes are necessary parties to the action. The proposed SACC is attached to the amended motion.

While the original and first amended cross-complaints were largely handwritten and in many places illegible, the SACC was apparently drafted on the computer, and is therefore legible.

Hann opposition On October 7, 2024, plaintiff Hann filed opposition to the motion. She contends that most, if not all, of the named cross-defendants will challenge the sufficiency of the pleading if the motion is granted. The proposed causes of action all appear to be lacking sufficient factual allegations, and raise clear statute of limitations issues, as well as the quasi-judicial immunity doctrine which will be applicable to some of the cross-defendants. These defects were pointed out to Colosi in meet and confer communications, yet the proposed SACC does not address the deficiencies. Therefore, Hann requests that, if the Court permits a further pleading to be filed, that it require that each cause of action be clearly delineated, that each cause of action contain allegations as to why it is not time-barred as to the identified cross-defendant(s), that each cause of action contain allegations setting forth a factual basis for the claim, that the causes of action address how or why they are not subject to quasi-judicial immunity, and that each cause of action designate the cross-defendant(s) against whom it is asserted, and anyone not designated in at least one cause of action cannot be named as a cross-defendant in the caption, or must be dismissed.

The events alleged in the SACC occurred between November 21, 2018, and the end of 2019, and are likely all barred by applicable statutes of limitation. Even so, Colosi continues to add new cross-defendants. Hann argues that without some sort of validation of Colosi’s claims, she will “substantially and detrimentally impact Court economy, as well as impose substantial attorneys’ fees on a large number of cross-defendants.” Further, pages 8-17 contain 17 causes of action devoid of any factual allegations. Hann estimates that approximately 50 different attorneys will be filing motions challenging the sufficiency of the pleading and the statute of limitations bar. Requiring her to address the issues up  front can only lead to efficiency.

Hann asserts further that Colosi’s new claims are barred and unwarranted. Many arise from Penal Code sections, including against Hann, and are not the type of claims this Court has jurisdiction to hear. Claims against news entities fall within numerous protections, and most are likely to file anti-SLAPP motions, in which the specification of the facts upon which the claims are asserted will help the judicial evaluation process without prejudicing any party. Public representatives are immune from Colosi’s allegations, specifically by Government Code section 821.76 [a public employee is not liable for injury caused by institution or prosecution of judicial or administrative proceeding within the scope of employment]. Further quasi-judicial immunity protections may apply to various public officials, prosecutors, or representatives sued by Colosi. The number and variety of cross-defendants will be a substantial drain of resources.

MB&T opposition Filed October 8, 2024, MB&T’s opposition first notes that the action was stayed pending resolution of its vexatious litigant motion. It then urged that the motion for leave must be denied because Colosi’s claims are futile, in that they fail to state any viable claims for multiple reasons.

MB&T contends the SACC fails to make specific factual allegations against them. With respect to cross-defendants Leis, Garufis, and Jefferson, Colosi alleges only that they ignored or refused requests of information directed to MB&T, and no facts are alleged to support their personal liability.

The SACC nominally states 18 causes of action against the MB&T cross-defendants, none of which are viable. Many make no sense, are not civil causes of action or causes of action at all, are unsupported by any factual allegations, and are repeated attempts to blame MB&T for Colosi’s own actions. Her attempt to assert causes of action against MB&T cross-defendants for violation of her constitutional rights are not viable against private actors.

The MB&T cross-defendants are protected by the absolute litigation privilege for any liability for statements made to law enforcement during investigation of a crime; when amending the privilege in 2021 to qualify it, the Legislature expressed no intent to make the change retroactive. Colosi is seeking to impose liability on MB&T and its personnel for allegedly making disclosures to law enforcement during an active criminal investigation in 2019, which is privileged conduct. Further, MB&T is privileged for initiating the interpleader action, under Civil Code section 47, and can have no malicious prosecution liability because that action terminated in MB&T’s favor.

Finally, MB&T contends that any claims Colosi might state against it are barred by applicable statutes of limitation. Her cross-complaint was filed on 4/19/24, but MB&T’s alleged wrongful disclosure of information to law enforcement took place on December 10, 2019, almost 4.5 years prior. Any applicable statutes of limitation bar any claims made by Colosi. Since her SACC fails on its face to allege any viable claims against MB&T cross-defendant, allowing her to amend would be futile.

McGrew opposition Filed on October 8, 2024, the McGrew opposition contends that because he is being sued in his capacity as a County employee, any amendment against him would be futile because her actions against him are barred by her failure to present a timely claim, and there is nothing she could allege that could fix the fatal defect. Compliance with the claim requirement must be specifically alleged. Although she alleges the complied, her allegations do not specify when she filed her claim, because she did not do so until June 20, 2024, after her FACC was filed. Further, the claim specified that the date of the occurrence which gave rise to her claim “began 12.8.19.” she was required to present her claim within 6 months of accrual, or apply for leave to present a late claim no later than one year after accrual (Gov. C., §§ 911.2(a) and 911.4(b)), and the claim was filed 4 years too late. The defect cannot be corrected.

The claims are also barred by the statute of limitations. Colosi acknowledges that the acts accrued in December 2019, but her cross-complaint was not filed until April 19, 2024.

McGrew contends that leave to amend should not be granted, because amendment would be futile.

Reply Colosi’s replies were not timely filed; while reply papers were due to be filed no later than December 27, 2024 (accounting for the 1/1/25 court holiday; see Code Civ. Proc., §§ 12, 12b, 12c, & 1005, subd. (b); ), Colosi did not file them until December 31, 2024.

With respect to the McGrew opposition, Colosi contends that her motion should be granted and McGrew’s demurrer should be vacated. She responds to his contention that the action was filed four years to late, by asserting that McGrew has not acknowledged that she was detained in the Santa Barbara County Jail for more than four years—the precise amount of time by which he contends the action was too late. Further, she contends that she submitted multiple detailed claims to county officials. When no one responded, she contends she was left with no other alternative or remedy to the filing of her cross-complaint on April 19, 2024. She asserts that her claims efforts included her filing of her petition for writ of habeas corpus with the California Supreme Court, but notes that it responded that it does not hear habeas petitions containing allegations of Fourth Amendment violations. She further noted the intervening filing of the MB&T motion for security, and her own motion to trifurcate.

In her argument, she also contends that there are not statutes of limitations set forth in the California Constitution, and her constitutional claims therefore cannot be barred. She requests that the court toll the period that she was detained in County Jail (4 years and 3 months), and the time period that the Court completely stayed the cross-complaint litigation in response to the motion for security, grant her motion for leave, and vacate the hearing on McGrew’s demurrer to her FACC.

With respect to the Hann opposition, Colosi objects that while Hann’s counsel has complained about a lack of sufficient factual allegations, he has refused to provide discovery. She further notes the filing of the MB&T motion for security, and her motion to trifurcate. She contends that Hann’s claim of “statute of limitations questions” has no merit. She requests that the court grant her motion.

With respect to the MB&T opposition, Colosi notes that, since she filed her motion for leave, MB&T filed its motion for security, and she has filed a motion to trifurcate. She argues that those motions effectively address the grounds stated for  opposing her motion for leave. She further contends that in meet and confer efforts with counsel, counsel specifically declined to discuss the merits of the case, and firmly limited the conference to procedural issues. She requests the court grant her motion.

ANALYSIS: The McGrew demurrer to the FACC is sustained, with leave to amend. Colosi is directed to file a Second Amended Complaint other than the one which she has proposed to file in her separate motion, no later than March 3, 2025, or such other date as this Court may specify at the hearing.

The Court’s order on the demurrer has mooted Colosi’s motion for leave to file the specific version of the SACC which she attached to her motion, which in any event is insufficient to properly allege virtually any of its causes of action. The motion for leave to file Colosi’s currently proposed SACC is therefore denied.

Demurrer

1.         Standards for demurrer.

The court’s task in ruling on a demurrer is to determine whether the complaint states a cause of action. (People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300.) A demurrer admits the truth of all material facts properly pleaded (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967), no matter how unlikely or improbable they may be (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604), or how unlikely it will be that plaintiff will be able to prove the claim (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214). The court also assumes the truth of all reasonable inferences that may be drawn from the properly pleaded facts. (Reynolds v. Bement (2005) 36 Cal.4th 1075, 1083.) The assumption of truth does not apply, however, to contentions, deductions, or conclusions of law or fact. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters, and therefore lies only where the defects appear on the face of the pleading or are judicially noticed. (Id.)

Where the allegations of the complaint or matters of which judicial notice may be taken reveal a defense to the action, such as a statute of limitations bar, the plaintiff must “plead around” the defense by alleging specific facts which would avoid the apparent defense. Absent such allegations, the complaint is subject to demurrer for failure to state a cause of action. (See Gentry v. eBay, Inc. (2002) 99 Cal.App.4th 816, 825; Lee v. Escrow Consultants, Inc. (1989) 210 Cal.App.3d 915, 917, 921-922.)

2.         Judicial notice.

In support of his demurrer, McGrew has requested judicial notice of a Government Tort Claim submitted by cross-complainant Colosi to the County of Santa Barbara on June 20, 2024. The burden is on the party requesting judicial notice to supply the court with sufficient, reliable and trustworthy sources of information about the matter, and resort to accurate sources of information is necessary to enable a court to take judicial notice of many matters. (People v. Maxwell(1978) 78 Cal.App.3d 124, 130.)

The request contends that judicial notice is proper under Evidence Code section 452(c) and 452(d). Section 452(c) permits judicial notice to be taken of the official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States. A claim submitted by a private party to a public agency is not an official act of that agency, and Section 452(c) does not support judicial notice of the claim.

Section 452(d) permits the court to take judicial notice of the records of any court of this state or any court of record of the United States or of any state of the United States. The claim submitted by Colosi to the County of Santa Barbara is not an official record of any court, and Section 452(d) does not support judicial notice of the claim.

The request for judicial notice also contends that taking judicial notice of the claim is proper, citing Clarke v. Upton (E.D. Cal. 2010) 703 F.Supp.2d 1037, 1042, which states that the taking judicial notice of the filing date and content of two Tort Claims and their rejection by the County was appropriate because “These matters are matters of public record and set forth facts ‘capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned.’” The Court notes, that under the circumstances presented in the Clarke case, the presentation both of the plaintiffs’ claims and the County’s rejections of both of those claims assisted in authenticating the two claims themselves as documents capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned, a circumstance which is not present in this case. Further, the Clarke court’s findings were expressly based upon Rule 201 of the Federal Rules of Evidence which is not applicable in California state trial court proceedings.

Certainly, the provisions of Evidence Code section 452(h)—not cited by McGrew herein—similarly permit a court to take judicial notice of “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy,” that provision is subject to the terms of Evidence Code section 352. Section 453 provides that a trial court shall take judicial notice of any matter specified in Section 452 if a party requests it and (a) gives each adverse party sufficient notice of the request to enable the adverse party to meet the request, and (b) furnishes the court with sufficient information to enable it to take judicial notice of the matter.

McGrew presented the claim to the Court in his request for judicial notice, and provided more than adequate notice to Colosi to enable her to challenge or dispute that the document is the true and entire claim that she presented to the County in June 2024. She has not done so. Further, while the receipt and filing indicia on the face of the Claim provide information that assists in taking judicial notice of the document.

For all of these reasons, the Court will take judicial notice of the June 2024 Claim. However, as the factual situation in the Clarke case indicates, claimants sometimes present multiple Government Tort Claims to a public agency. Because the Court has been presented with insufficient information to permit it to conclude that Colosi’s June 2024 Tort Claim was the only claim she submitted to County, the Court’s judicial notice is limited to that document as “a” Tort Claim submitted by Colosi, not as “the” or “the only” claim presented with respect to the events related to her arrest and criminal prosecution.

3.         Claims presentation requirement for actions against public employees acting in the course and scope of their employment.

Pursuant to Government Code section 905, a party pursuing a claim for money or damages against a local public agency, except for those claims articulated therein, must first present a claim to the agency. The required contents of such a claim are set forth in Government Code section 910, and include, among other information, the date, place and other circumstances of the occurrence or transaction which gave rise to the claim (subdivision (c)); a general description of the indebtedness, obligation, injury, damage or loss incurred so far as it may be known at the time of presentation of the claim (subdivision (d)); and the name or names of the public employee or employees causing the injury, damage, or loss, if known (subdivision (e)).

Pursuant to Government Code section 911.2 (a), a claim relating to a cause of action for death or for injury to personal property or growing crops must be presented no later than six months after the accrual of the cause of action, and a claim relating to any other cause of action must be presented no later than one year after accrual of the cause of action. Pursuant to Government Code section 945.4, no suit for money or damages on a cause of action for which a claim is required may be brought until a written claim has been presented to the public entity and has been acted upon by the board, or deemed to have been rejected by the board.

In general, the claims procedures and statute of limitations that apply to actions against public employees are the same for actions against public entities. (See Gov. Code, §§ 950-051; Rogers v. Centrone (1968) 261 Cal.App.2d 361.) As a result, the presentation of a claim to the public employer, and the public employer’s rejection of the claim, are normally a prerequisite to legal action against a public employee for acts and omissions within the course and scope of public employment. (Gov. Code, § 950.2; Cal. Government Tort Liability Practice (Cont.Ed.Bar 4th ed.) § 5.57.) If a claim must be presented to the employing entity as a condition to suing the employee or former employee, the plaintiff may take no further action until the entity has rejected the claim in whole or in part. (Gov. Code, § 950.6(a).)

If a claim is not filed within the claim presentation period, the claimant may apply to the public entity within a reasonable time not to exceed one year after accrual, for leave to present a late claim. (Gov. Code, § 911.4, subds. (a)-(b).) If the application for leave to present a late claim is denied or deemed denied by the public entity, the claimant may petition for a court order relieving the claimant from the need to comply with the claim presentation requirement. (Gov. Code, § 946.6.) This may only be done, however, if the claimant filed the application to present a late claim with the public agency within the one-year period to do so under Section 911.4(b); doing so is a jurisdictional prerequisite to the filing of a claim-relief petition with the court. (J.J. v. County of San Diego (2014) 223 Cal.App.4th 1214, 1221.) Any such petition must be filed with the court within six months after the application to the board was denied or deemed denied. (Gov. Code, § 946.6, subd. (b).) Section 946.4(c) sets forth the possible grounds on which such a petition may be made.

Under appropriate circumstances, the effect of noncompliance with the claims requirement can be avoided by the pleading and proof by the plaintiff of the facts necessary to show substantial compliance, estoppel, waiver, or that the particular cause of action does not require a claim. (Cal. Government Tort Liability Practice (Cont.Ed.Bar 4th ed.) §§ 5.66-5.86.) However, the failure by a plaintiff to allege facts either demonstrating or excusing compliance with the claim presentation requirement subjects a claim against a public entity or employee to a demurrer for failure to state a cause of action. (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1239.)

4.         Statute of limitations applicable to tort claims against public employees, acting in the course and scope of their employment.

Pursuant to Government Code section 945.6(a), the time to bring suit against a public entity on a cause of action for which a claim is required must be commenced no later than six months after notice of rejection of the claim is personally delivered or deposited in the mail or, if notice of rejection is no given, within two years from the accrual of the cause of action.

To the extent that the claims against a public employee are not based upon the employee’s conduct within the scope of his or her employment, and the limitations of the Government Tort Claims Act do not apply, ordinary statutes of limitation would apply to the causes of action.

5.         Application

A.        Contention that FACC is barred by failure to comply with the claim presentation requirement

Colosi’s FACC contains sparse reference to cross-defendant McGrew, naming him as a cross-defendant in the caption (FACC @ p.2, line 1), referring to him as a District Attorney’s Office recipient of alleged financial information about Colosi received from Montecito Bank & Trust, after which the District Attorney’s office released that information to the press and accused Colosi of serious crimes for which no credible evidence existed, and used the information in multiple legal proceedings in criminal violation of her rights (FACC @ ¶ 8); mentioning him in her petition for writ of habeas corpus filed with the California Supreme Court, and attached as an exhibit to her FACC, through its attachment, in turn, of one page of a highly redacted document purporting to be a declaration of McGrew describing the preparation of the search warrant by Detective McCauley, and a comment that he had been notified by Montecito Bank & Trust that they do not honor search warrants sent via email. (FACC, attachment to Exhibit 1.) The petition for writ of habeas corpus itself noted at page 3 that the events related to the search warrant took place in December of 2019. The handwritten notation on the McGrew declaration purported to reflect a May 22, 2020, execution date. (The Court notes that it is unclear who inserted the handwritten notations, that the full declaration is not provided, and the single page that is provided does not reflect that it was executed by Mr. McGrew, either under penalty of perjury or otherwise.)

The FACC is tremendously uncertain, and because of its limited allegations related to cross-defendant McGrew, the Court cannot discern that any recognized cause of action is properly alleged against him. Those failures are not the subject of McGrew’s demurrer, however, which is limited to his contention that the FACC is barred both by the statute of limitations and as a result of Colosi’s failure to timely comply with the claim presentation requirement.

The FACC alleges, at ¶ 11, that “I have complied with the Government Tort Claims Act.” In an attempt to refute that allegation and establish that Colosi did not timely comply with the Government Tort Claims Act, and in support of his contention that Colosi’s action is barred by that failure, McGrew requested judicial notice of a Claim which cross-complainant Colosi submitted to County in June 2024. As noted above, the Court has taken judicial notice of the June 2024 claim, limited to its status as “a” claim presented by Colosi. The Court had insufficient information in front of it to enable it to take judicial notice of the claim as “the” or “the only” claim submitted by Colosi with respect to the matters set forth in her FACC.

Even so, it is clear from the face of the Claim of which the Court has taken judicial notice that, absent Colosi’s ability to allege additional facts with respect to, for example, her presentation of an earlier claim with respect to the claims set forth in her FACC, her timely compliance with late claim procedures, or the possible application of waiver or estoppel doctrines to excuse her timely compliance with the claim presentation requirement, her claims against cross-defendant McGrew are in fact barred. While the June 2024 claim states that the circumstances which gave rise to her claim “began 12.8.19 and ongoing,” the events set forth in with respect to McGrew appear to have taken place in 2019, and do not clearly articulate any conduct by McGrew that was “ongoing” beyond that time. Although such conduct might have taken place, the somewhat jumbled manner in which the claim is drafted makes determination of any “ongoing” conduct indecipherable. Similarly, the allegations of the FACC do not allege any conduct by cross-defendant McGrew which could be interpreted as having taken place at a time which would have made the June 2024 claim timely presented.

The burden of alleging the specific facts necessary to avoid or plead around this defense is on the plaintiff, and her failure to do so in her FACC renders the pleading subject to demurrer for failure to state a cause of action. Absent such allegations, the complaint is subject to demurrer for failure to state a cause of action. (See Gentry v. eBay, Inc. (2002) 99 Cal.App.4th 816, 825; Lee v. Escrow Consultants, Inc. (1989) 210 Cal.App.3d 915, 917, 921-922; Romero v. County of Santa Clara (1970) 3 Cal.App.3d 700.)

For the foregoing reason, the Court will sustain cross-defendant McGrew’s demurrer to Colosi’s FACC. Because the Court has no information on whether or not Colosi possesses any facts which would permit her in any way to plead around the defense based upon her apparent failure to timely comply with the claims presentation requirement, the Court will permit Colosi to amend her cross-complaint to attempt to do so.

Because Colosi is currently self-represented, and because she will need an opportunity to either retain an attorney to act on her behalf, or to educate herself with respect to the pleading requirements in the California state civil courts, which are equally applicable to self-represented parties (see discussion below, with respect to Colosi’s motion for leave to file her SACC), the Court will provide her with an extended period in which to file and serve a further amended cross-complaint. Any such further amended cross-complaint (to be designated as a Second Amended Cross-Complaint, since this Court is not permitting her to file the SACC that she has proposed to file in her motion for leave), shall be filed no later than March 3, 2025, or such other date as this Court may specify at the hearing.

B.        Contention that FACC is barred by applicable statutes of limitation.

McGrew’s demurrer on statute of limitations grounds has been mooted by the Court’s ruling on the demurrer based upon Colosi’s failure to timely comply with the claims presentation requirement. However, the Court will note that it generally appears that Colosi’s claims against cross-defendant McGrew are barred by the statutes of limitation applicable to claims against public employees in the course acting in the course of their employment. As such, any further amended cross-complaint Colosi may file naming McGrew as a cross-defendant must also take special care to plead facts which would establish that the causes of action either are not barred by the statute of limitations because of conduct by McGrew which occurred within the statutory period, or that there is some applicable some tolling or other provision that would excuse the failure to earlier file the cross-complaint against McGrew.

In her reply to McGrew’s opposition to her motion for leave to file her SACC (and not in opposition to McGrew’s demurrer), Colosi contended that McGrew’s claims that her cross-complaint was filed four years too late failed to account for the fact that she had been incarcerated in the Santa Barbara County Jail for four years and three months. The Court notes that Code of Civil Procedure section 352.1(a) does provide a tolling of applicable statutes of limitation for incarcerated persons, but provides significant limits on that tolling provision, making it (a) applicable only to those who are imprisoned on a criminal charge or in execution under a sentence of a criminal court for a term less than for life, at the time the cause of action accrued, and (b) limited it to a period not to exceed two years. (Code Civ. Proc., § 352.1, subd. (a).) It further is expressly not applicable to an action against a public entity or public employee on a cause of action for which a claim is required to be presented. (Code Civ. Proc., § 352.1, subd. (b).) Colosi should be aware of these limitations, and the need to account for them in pleading around the statute of limitations bar, in preparing her amended complaint.

Motion for leave to file SACC

1.         Untimely filed reply papers.

The Court notes that the reply papers filed by Colosi were not timely filed. It cautions Colosi in the future to be careful to file all opposition papers (other than summary judgment oppositions, to which separate limitations apply; Code Civ. Proc. § 437c, subd. (b)(2)) no later than 9 court days before the hearing, and all reply papers (other than summary judgment replies; Code Civ. Proc., § 437c, subd. (b)(4)) no later than 5 court days before the hearing. Having expressly advised Colosi of this limitation, the Court may not be as forgiving of the violation of these provisions in the future, and the tardy filing of opposition or reply papers may result in their being disregarded by the Court in resolving the motion before it.

2.         Motion for leave.

Upon being contacted with various parties’ meet and confer efforts with respect to deficiencies in her FACC, Colosi prepared a proposed SACC, and has filed a motion to permit it to be filed. As noted above, several parties have opposed the motion contending, among other things, that the proposed SACC does not allege sufficient facts to state recognized causes of action, that the claims are barred by the applicable statutes of limitation, that there are issues of immunity or privilege which would preclude liability of some cross-defendants, and, with respect to cross-defendant McGrew, that Colosi has failed to timely comply with the Government Tort Claims presentation requirement. In spite of the liberality with which trial courts must address the filing of amended pleadings, the opposing cross-defendants argue that a trial court does not abuse its discretion in denying leave to amend where the proposed amended pleading is so deficient that it fails to state any viable claims, and permitting it to be filed would therefore be futile.

While the Court’s grant of leave to amend in response to the McGrew demurrer effectively moots the motion for leave, the Court notes that the opposition arguments have merit. While this Court has not conducted an exhaustive review of the proposed SACC, it does not appear to sufficiently allege any cause of action. Certainly, that conclusion can largely be attributed to the fact that cross-complainant Colosi is representing herself in this action, and as a non-attorney is unfamiliar with the standards which the law requires pleadings to meet, in order to survive a demurrer.

While this Court is prohibited from providing legal advice to litigants, it can provide the following basic information:

Every recognized cause of action has factual elements, the existence of which must be apparent from the factual allegations made in the complaint or cross-complaint, in order for the cause of action to survive demurrer.

Pursuant to California Rules of Court, Rule 2.112, each separately stated cause of action must specifically state (1) its number (e.g., “first cause of action”), (2) its nature (e.g. “fraud), (3) the party asserting it if more thane one party is represented on the pleading; and (4) the party or parties to whom it is directed (e.g., “against defendant Smith”).

Further, a complaint or cross-complaint must contain “a statement of the facts constituting the cause of action, in ordinary and concise language.” (Code Civ. Proc., § 425.10.) A plaintiff or cross-complainant cannot simply identify a defendant or cross-defendant, and provide a list of “causes of action” that it identifies only by some name, rather than including factual allegations supporting the existence of all of the essential elements of each such cause of action.

The essential elements to be pleaded to state a cause of action are determined by the substantive law. (Foster v. Sexton (2021) 61 Cal.App.5th 998, 1018.) The elements of many civil causes of action are set forth in the California Civil Jury Instructions, which can be used as a checklist of the elements of the cause of action, for which the pleading must allege facts in support of each element. Each cause of action has different elements, for which facts must be alleged to support the existence of each element, as to each defendant or cross-defendant against whom the cause of action is being alleged.  

As just one example, it appears that Colosi’s cross-complaint seeks to allege a cause of action for intentional infliction of emotional distress against several of the putative cross-defendants. (The essential elements of the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051.) The "outrageous" conduct element means that the defendant's conduct was so extreme as to exceed all bounds of decency usually tolerated in a civilized society. (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001.)

In order to adequately allege a cause of action for intentional infliction of emotional distress against any defendant or cross-defendant, the plaintiff or cross-complainant must allege facts to support the existence of each of these elements with respect to each defendant or cross-defendant against whom the claim is alleged.

Further, each cause of action is subject to a limitation period, beyond which the cause of action cannot be maintained, in the absence of the pleading’s allegation of facts showing a tolling of the claim’s accrual, a delayed discovery of the claim (with facts alleged to show when and how the claim was discovered), conduct by the defendant constituting an estoppel to assert the statute of limitations, etc.

Even a cursory view of Colosi’s proposed SACC reveals that it is insufficient to meet the basic pleading standards for a cross-complaint, with respect to most or all causes of action alleged. In order for her cross-complaint to survive demurrer, she must adequately allege facts to support the existence of each element of a cause of action against each cross-defendant to whom it is directed. Further, when a statute of limitations or other bar is apparent from the face of the document, the plaintiff or cross-complainant must allege facts to plead around that bar, such as facts to support the existence of a recognized tolling of the statute of limitations, late discovery of the cause of action (when permissible under the law), delayed accrual of the limitations period (when permissible under the law) etc.

Any future Second Amended Cross-Complaint must not only properly allege the causes of action against each and every putative cross-defendant, but must allege facts to support the existence of some reason why the claims are not barred by the applicable statutes of limitation.