CINDY M HANN V. THERESA LYNN COLOSI

Case Number

20CV01984

Case Type

Hearing Date / Time

Mon, 03/17/2025 - 10:00

Nature of Proceedings

Cross-complainant Theresa Lynn Colosi’s motion to sever and trifurcate the Montecito Bank & Trust cross-defendants and the County of Santa Barbara cross-defendants from the remainder of the cross-defendants

Tentative Ruling

Cindy M Hann v. Theresa Lynn Colosi

Case No.  20CV01984

Hearing Date:         3/17/2025                                           

HEARING:    Cross-complainant Theresa Lynn Colosi’s motion to sever and trifurcate the Montecito Bank & Trust cross-defendants and the County of Santa Barbara cross-defendants from the remainder of the cross-defendants

           

ATTORNEYS:          Cross-complainant Theresa Lynn Colosi is in pro per

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

                                    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 RULING:  The motion will be denied in its entirety.

Background: The underlying complaint in 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. In 2024, she was released from jail after serving time in the Santa Barbara County Jail for the conviction. Her criminal appeal, filed on September 12, 2024, is pending in the Second District Court of Appeal; no briefs have yet been filed in the appeal.

On April 19, 2024, Colosi answered Hann’s complaint, filing a General Denial which asserted no affirmative defenses, as well as a cross-complaint naming 62 cross-defendants, including Hann and various persons related to Montecito Bank & Trust (MB&T). On June 11, 2024, she filed a First Amended Cross-Complaint (FACC) naming 66 cross-defendants, also including Hann and various persons related to Montecito Bank & Trust. The FACC alleges events related to the underlying family law case and events surrounding it, including alleged interference with her visitation rights with her son, and focuses on events other than her attack on Hann which formed the basis for Colosi’s criminal conviction, or the injuries which Hann suffered in the attack.

On September 30, 2024, the Court heard and granted Hann’s motion to sever the Colosi cross-complaint from the main action, ordering that it would proceed separately from the cross-action, including to trial and judgment. In making that ruling, the found that Colosi’s allegations against Hann had no connection with Colosi’s own conduct in physically assaulting Hann, and that any right to damages against Hann that Colosi could conceivably prove could be enforced against Hann, regardless of whether Hann’s claims for personal injuries and damages arising from the assault had already been adjudicated. It found that severance would be in the interests of justice and would act to prevent prejudice to Hann, because “[t] main action and the cross-action may have arisen from the same larger course of events, but their contentions are fundamentally unrelated, and there is virtually no possibility of inconsistent rulings by the two triers of fact. Fundamental fairness and substantial justice require that Hann be able to proceed to prove her claims without the threat that further potentially substantial delay would adversely impact the availability of the evidence necessary to prove her claims, or cause other prejudice.”

The hearings on Colosi’s motion for leave to file a proposed Second Amended Cross-Complaint (SACC), and a demurrer to the FACC filed by cross-defendant Dan McGrew, were held in abeyance until a motion by MB&T to declare Colosi a vexatious litigant could be resolved. After the ultimate denial of the vexatious litigant motion, McGrew’s demurrer was heard and sustained, with leave to amend, and Colosi’s motion for leave to file her proposed SACC was denied. In making these orders, the Court noted that oppositions to her motion for leave had noted that her proposed pleading—which she had filed as a pro per party—failed to state any proper cause of action, and was defective in multiple respects. It cautioned Colosi about the standards which the law requires pleadings to meet in order to survive demurrer, provided her with some general pleading standards and requirements, and cautioned that her future SACC must properly allege each cause of action against each and every putative defendant, and must plead facts to support the existence of some reason why her various claims related to events which occurred in 2019 and around the time of the assault and arrest would not be barred by the applicable statutes of limitation.

In the interim, Colosi had on December 30, 2024, filed the current Motion to Sever and Trifurcate, setting the hearing on the motion for March 17, 2025.

On March 3, 2025, Colosi filed her operative Second Amended Cross-Complaint, in response to the Court’s grant of leave to amend following the hearing on the McGrew demurrer.  This SACC names only 20 cross-defendants, which effectively dismisses from this action those cross-defendants who were previously named in Colosi’s FACC but were omitted from the SACC. Further, the SACC added at least 4 cross-defendants (Rosemary Toves and Melody Cleveland, who are alleged to be among the “Montecito Bank & Trust Cross-defendants,” as well as attorneys Sara Sanger and Meghan Behrens), who had not previously been named as cross-defendants in this action. On its face, the SACC alleges causes of action for (1) contempt of court; conspiracy to disobey a lawful child custody and visitation order; (2) breach of contract, (3) intentional infliction of emotional distress, (4) professional negligence; (5) invasion of privacy; (6) recovery of damages for fraudulent transfer of assets; and (7) ineffective assistance of counsel. Hann is named in the first, second, and third causes of action. The cross-complaint does not involve the assault at all, and as against Hann alleges that Hann acted to interfere with a substantial number of Colosi’s court-ordered parenting/visitation days with her son, LG, during 2019, and alleges that “[t]he emotional distress and mental anguish that Colosi experienced proximately caused by Guier, Hann, Hutcheson, and Hammon’s cooperative repetitive withholding of her minor son LG, culminated in an unfortunate incident on December 8, 2019.” (SACC @ ¶  4.). MB&T is named in the sixth and seventh causes of action.

Motion to sever and trifurcate: Through this motion, Colosi seeks to have her claims against the MB&T cross-defendants tried first, her claims against the County of Santa Barbara cross-defendants tried second, and to stay trial of the Hann personal injury complaint against Colosi until after Colosi’s criminal appeal has concluded and the trial of her claims against MB&T and the County has occurred. The motion does not explain why the requested orders would be in the interests of justice, why they would avoid prejudice, or why they would promote the economy or efficiency of handling the litigation.

In is “Background” section, the motion asserts that Hann’s complaint cites and relies on Colosi’s confidential privacy-protected alleged financial information, and deliberate false information unlawfully disclosed by MB&T’s Solvang branch manager, Amy Hinkens, which Sheriff’s Deputy MacAuley unlawfully received and then widely publicized, defaming Colosi and compromising her defense, and on “the multitude of derivatives of the unlawful disclosure by MBT and the unlawful search and seizure by MacAuley. (‘fruit of the poisonous tree’).” It further notes that Colosi’s conviction is on appeal.

The motion then presents legal authorities with respect to the right to privacy (California Constitution and the California Right to Financial Privacy Act), requirements for a search warrant (California Constitution and Fourth Amendment to the U.S. Constitution), and severance (Code Civ. Proc., §§ 598, 1048, subd. (b), and case law). It then requests that the court order trifurcation, with trial of the MB&T cross-defendants first, then trial of the County of Santa Barbara cross-defendants, and then the Hann personal injury complaint, once Colosi’s appeal has terminated.

MB&T opposition: MB&T’s opposition was filed prior to the time when Colosi filed her new SACC. It notes that Colosi’s FACC had named a number of cross-defendants associated with MB&T, but that she had only served MB&T itself, and Janet Garufis, George Leis, James Jefferson, and Amy Hinkens.

MB&T first contends that the motion should be denied as premature, because Colosi’s FACC named dozens of cross-defendants who have not been served, and she may add more cross-defendants in her next amended cross-complaint, many of whom may demur to the SACC. Determining the order of proof at trial is therefore premature, given that the causes of action and parties have not been determined, and no discovery has been conducted. It would prejudice any later-joined cross-defendants to have the issue determined without their presence.

Second, MB&T contends that Colosi’s motion is deficient, in failing to advance a prima facie case for severance or bifurcation. She does not specifically name the cross-defendants she seeks to sever, and while her motion refers to “MBT Cross-Defendants,” she does not identify which persons that includes. Not all defendants related to MBT have been served. She also fails to identify the “County of Santa Barbara Cross-Defendants” she seeks to sever. She cannot show it would further efficiency if she does not clearly identify the parties to be bifurcated.

She doesn’t explain how her scheme would further convenience, advance justice, avoid prejudice, or be conducive to expedition, economy, or efficiency. She claims she will be prejudiced if her plan is not implemented, but does not explain how. She makes a vague reference to “fruit of the poisonous tree,” but that doctrine does not apply to civil cases. Based on her allegations alone, the scheme will do nothing but add unnecessary delay, confusion, and duplication to a frivolous action, requiring the parties to monitor at least three separate litigation tracks. Hann already does not respect the division of severed actions, as demonstrated by her request to move the Hann trial even though it has been severed from the cross-complaint. Even were Colosi to obtain judgment on her alleged constitutional issues against MBT, that would not be binding on the other cross-defendants, requiring the same issues to be tried again, and evidence introduced multiple times.

Finally, Colosi’s scheme presents a significant risk of inconsistent factual findings or judgments from separate juries, requiring that the motion be denied.

Hann opposition: Hann’s opposition indicates that she joins MB&T’s, but also further opposes based on several points.

First, trifurcation of trial would prejudice Hann, because she has only to June 5, 2025 to bring the action to trial under Code of Civil Procedure section 583.310. The trade-off to colossi is questionable, because she fails to explain how trifurcation would promote the ends of justice.

Second, Colosi seems to be claiming that the “constitutional issues” as to MB&T and her criminal appeal are the underlying issues which affect her ability to defend herself against Hann’s personal injury action, but that argument necessarily fails because the personal injury action pre-exists her allegations against MB&T; any claims she has against MB&T will have no impact on the personal injury action.

Third, the concern Colosi expresses with respect to defense of the personal injury action is her claim that “Hann relies nearly exclusively on ‘conviction’ to support her personal injury claim; however, the conviction at issue has been accepted on appeal by the Second District Court of Appeal . . . .” She speculates on what evidence Hann will rely upon at trial, but she is free to interpose any proper evidentiary objections at trial, for ruling by the court.

Colosi Reply to MB&T opposition: In reply, Colosi contends that her SACC, filed March 3, and served on MB&T on 3/10 substantially renders its opposition moot. She notes that, in their opposition, “the MBT cross-defendants yet again violate Dr. Colosi’s inalienable right to privacy as guaranteed by Article I, section 1 of the California Constitution, cite controverted allegations and inadmissible hearsay currently under review by the Second District Court of Appeal, and otherwise attempt to further disparage and defame Dr. Colosi, their own former customer.”

In light of her recently filed SACC, she requests that the court continue the hearing on this motion to April 21, 2025.

Colosi Reply to Hann opposition: Colosi again contends that her filing of the SACC substantially renders Hann’s Opposition moot, and, similar to her reply to the MB&T opposition, notes that “Hann relies entirely on controverted allegations and inadmissible hearsay imported from the related CR case which is currently under review in the Second District Court of Appeal. In the course of the Appeal, Appellant Colosi may challenge and argue all cognizable issues, especially and including violations of the U. S. and California Constitutions, such as Article I, section 1 of the California Constitution which guarantees the inalienable right to privacy and the Sixth Amendment of the U.S. Constitution which guarantees the right of any accused person to effective assistance of defense counsel.”

Colosi requests that the hearing on the motion be continued to April 21, in light of the filing of her SACC.

ANALYSIS:  The Court will deny the motion in its entirety.

1.         Statutory authority for severance.

Code of Civil Procedure section 1048(b) provides:

The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States.

The purpose of severance is to promote the accuracy, fairness, and efficiency of adjudication. (See, e.g., Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 888, n.8.) Severance is inappropriate when separate trials held before separate juries would adjudicate the same questions of fact. From a constitutional standpoint, courts may only sever claims or issues when the claims or issues to be tried first are so distinct and separable from the others that trying them alone may be had without injustice. (Gasoline Prods. Co. v. Champlin Ref. Co. (1931) 283 U.S. 494, 500.) When no statute requiring severance applies, the court has the discretionary power to order severance. (See, e.g., McArthur v. Shaffer (1943) 59 Cal.App.2d 724, 747.) Because the court has inherent power to regulate the order of trial, it can order separate trials pursuant to Section 1048 at any time. (McLellan v. McLellan (1972) 23 Cal.App.3d 343, 353.)

2.         Authority regarding the stay of a civil action pending resolution of criminal proceedings.

In addition to seeking “trifurcation” of MB&T and County cross-defendants from the remaining cross-defendants Colosi’s motion seeks to stay trial of Hann’s already-severed personal injury claims against her pending the resolution of her recently-filed proceedings seeking appellate review of her criminal conviction.

As a preliminary point, if the Court were to grant such a motion, the period of any such stay would not count against the five-year period within which actions should be brought to trial pursuant to Code of Civil Procedure section 583.310, because in computing that time period, the time during which prosecution or trial of the action was stayed or enjoined is excluded. (Code Civ. Proc., § 583.340, subd. (b).) Consequently, Hann’s concerns that a grant of the motion would result in the dismissal of her claims pursuant to Code of Civil Procedure section 583.360 are unfounded.

Colosi’s request implicates different policies than those which underlie severance and/or bifurcation or trifurcation. Indeed, a body of law exists governing the circumstances under which a stay of civil proceedings pending resolution of related criminal proceedings might be warranted. It arises from the inherent tension between a criminal defendant’s right to assert his or her privilege against self-incrimination, and the broad discovery rights which exist in civil actions, where the civil and criminal proceedings arise from the same allegedly criminal conduct.

Pursuant to Code of Civil Procedure section 2017.010, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved, if the matter either is itself admissible in evidence, or appears reasonably calculated to lead to the discovery of admissible evidence. Evidence Code section 940 provides that, to the extent such privilege exists under the Constitution of the United States or the State of California, a person has a privilege to refuse to disclose any matter that may tend to incriminate him. Courts have construed the principle to permit the privilege against self-incrimination to be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory. (Pacers, Inc. v. Superior Court (1984) 162 Cal.App.3d 686, 688, citing Kastigar v. United States (1972) 406 U.S. 441, 444.) Privileged matters thus lie beyond the reach of discovery, and trial courts may not compel individuals to make responses that they reasonably believe could tend to incriminate them or subject them to criminal prosecution. (Fuller v. Superior Court (2001) 87 Cal.App.4th 299, 305.)

However, while the privilege of a criminal defendant is absolute, in a civil case a witness or party may be required either to waive the privilege or accept the civil consequences of silence if he or she does exercise it. (Alvarez v. Sanchez (1984) 158 Cal.App.3d 709, 712.) The fact that a person has been indicted “cannot give him a blank check to block all civil litigation on the same or related underlying subject matter. Justice is meted out in both civil and criminal litigation.” (Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 882.)

Even so, when confronted with a civil defendant who is exposed to criminal prosecution arising from the same facts, and the defendant’s silence is constitutionally guaranteed, the court should weigh the parties’ competing interests with a view toward accommodating the interests of both parties, if possible. (Pacers, Inc. v. Superior Court, supra, 162 Cal.App.3d at p. 690, citing United States v. Kordel (1970) 297 U.S. 1, 9.) Accommodation of the various interests is usually made to a defendant in a civil action from the standpoint of fairness, however, and not from any constitutional right, since the privilege against self-incrimination is not applicable to matters that will subject a witness to civil liability. (Blackburn v. Superior Court (1993) 21 Cal.App.4th 414, 425.)

Trial courts have a wide variety of possible procedural resolutions available to them, to allow them to fairly balance the interests of the parties and the judicial system, and to adopt the procedural tool best suited by the circumstances of the particular case. (Fuller v. Superior Court, supra, 87 Cal.App.4th at p. 307-308.) While parallel civil and criminal proceedings are unobjectionable under our jurisprudence in the absence of substantial prejudice to the rights of the parties involved, a court may decide in its discretion to stay civil proceedings when the interests of justice seem to require such action. (Keating v. Office of Thrift Supervision (9th Cir. 1995) 45 F.3d 322, 345.) Further, staying civil discovery to await the outcome of a related criminal case might benefit the litigants and does not implicate constitutional issues. (Fuller v. Superior Court, supra, 87 Cal.App.4th at p. 306.)

In weighing the parties’ competing claims and interests and determining whether a civil proceeding should be stayed pending disposition of a parallel criminal proceeding, the court considers the following factors: “(1) the interest of the plaintiff[] in proceeding expeditiously with [the] litigation or any particular aspect of it, and the potential prejudice to plaintiff[] of a delay; (2) the burden which any particular aspect of the proceedings may impose on defendant[]; (3) the convenience of the court in the management of its cases, and the efficient use of judicial resources; (4) the interests of persons not parties to the civil litigation; and (5) the interest of the public in the pending civil and criminal litigation.” (Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 887.)

3.         Analysis and application.

Colosi’s Notice of Motion begins by noting that she seeks to trifurcate the Montecito Bank & Trust Cross-Defendants and the County of Santa Barbara Cross-Defendants from the rest of the cross-defendants—which would, of course, including Hann. It then notes that she seeks to have her cross-complaint against the MB&T cross-defendants tried first, followed by trial of her cross-complaint against the County of Santa Barbara cross-defendants. Presumably, she also seeks to have the trial of her cross-complaint against the remaining cross-defendants to proceed after the other two trials have concluded. Finally, the motion seeks to have Hann’s personal injury claims against Colosi, which have already been severed from the action

            A.        Request for trifurcation and severance.

As noted above, the purpose of severance is to promote the accuracy, fairness, and efficiency of adjudication, and is inappropriate when separate trials held before separate juries would adjudicate the same questions of fact. Further, it is only appropriate where the claims or issues to be tried first are so distinct and separable from the others that trying them alone may be had without injustice.

Colosi’s motion for trifurcation never explains what is to be gained from doing so. The motion makes vague reference that failing to trifurcate, thereby addressing the “existing substantial Constitutional issues” against MB&T and County, would significantly prejudice her. She does not explain what prejudice would result, or why it would necessarily arise from the failure to trifurcate the action. Other than referencing provisions of the California and U.S. Constitutions, she does not explain what the purported “substantial Constitutional issues” are, or why they require that the claims against MB&T be tried first, the claims against County second, and everyone else last. Neither does she provide any explanation how severance could possibly promote efficiency in, or the accuracy of, the adjudication.

Further, it appears to the Court that such trifurcation would result in needless duplication of efforts in presentation of the same evidence in multiple trials, requiring that separate juries would be adjudicating the same issues of fact, thereby giving rise to the risk of potentially conflicting results.

Colosi’s claims against the MB&T cross-defendants and the County cross-defendants, as set forth in her newly-filed SACC, appear to be intertwined. MB&T and County are both cross-defendants in the same cause of action in Colosi’s SACC, i.e., her fifth cause of action for invasion of privacy. While the allegations are somewhat jumbled, they appear to contend that the Solvang branch of MB&T provided “deliberately false” information that Colosi had “withdrawn” a large sum of money, to Sheriff’s Deputy MacAuley pursuant to an emailed search warrant which was specific to the State Street location of MB&T. That information was disclosed to Montana law enforcement, who used it to locate and arrest Colosi in Montana, and seize Colosi’s personal property “including that which MBT had unlawfully disclosed and MacAuley unlawfully received without a search warrant.” The information was also allegedly disclosed to media, defaming Colosi, and was used to raise Colosi’s bail. It further was the subject of an interpleader action filed by MBT (Case No. 22CV04591), which she asserts is currently under appeal.

Because the motion fails to establish any legitimate basis for trifurcation of the action, and because it clearly appears to the court that trifurcation would be inefficient, duplicative, and could lead to inconsistent adjudications of fact or law, the Court will deny the motion.

            B.        Request for stay of Hann’s personal injury action

Colosi’s motion to stay the trial of Hann’s personal injury claims against her pending disposition of her criminal appellate proceedings is denied. Granting a stay of the personal injury action would not further any of the policies which underlie such stays. Colosi does not articulate any reason why a stay would be necessary to protect her right against self-incrimination, or is necessary in some way to prevent prejudice to her. Further, the Court can ascertain no prejudice to Colosi which would be averted by a grant of her motion for stay. Consequently, the motion will be denied.

Further, while court records support Colosi’s contention that her criminal case is undergoing appellate review, those same court records do not support her contention that stay of the personal injury action would serve any legitimate purpose in this action. Indeed, it appears to the court that imposition of any such stay would only result in delay and further prejudice to Ms. Hann.

Colosi’s Notice of Appeal, filed in her criminal case in this court (Case No. 19CR12190), indicates that the appeal is made after entry of a plea of guilty or not contest or an admission of a probation violation, and is based on the sentence or other matters occurring after the plea that do not affect the validity of the plea, and that appeal is being taken of the denial of her motion for pre-trial diversion treatment.

While Colosi’s motion implies that any use of or reference to the fact of her “conviction” in the personal injury trial would be improper while her appeal is pending, she has not shown that her appeal would implicate her conviction at all, and court records would seem to refute any implication that it would.

The Court concludes that a stay of the personal injury claims against Colosi pending the resolution of her criminal appeal is both unsupported by the motion, and unwarranted under the circumstances which exist. Consequently, to the extent Colosi’s current motion seeks such a stay, it is denied.