Cindy M Hann vs Theresa Lynn Colosi
Cindy M Hann vs Theresa Lynn Colosi
Case Number
20CV01984
Case Type
Hearing Date / Time
Mon, 08/11/2025 - 10:00
Nature of Proceedings
CMC; Demurrers (5); Motion to Quash; Motion to Stay
Tentative Ruling
Cindy M. Hann v. Theresa Lynn Colosi
Case No. 20CV01984
Hearing Date: August 11, 2025
HEARING: (1) Demurrer of Cross-Defendants Montecito Bank & Trust, et al., to Second Amended Cross-Complaint
(2) Demurrer of Cross-Defendant Cindy M. Hann to Second Amended Cross-Complaint
(3) Demurrer of Cross-Defendant Dan McGrew to Second Amended Cross-Complaint
(4) Demurrer of Cross-Defendant Sanford Horowitz to Second Amended Cross-Complaint
(5) Demurrer of Cross-Defendants Christian Guier and Lisa Plowman to Second Amended Cross-Complaint
(6) Motion of Cross-Defendants Montecito Bank & Trust and James Jefferson to Quash Subpoenas
(7) Motion of Defendant Theresa Colosi to Stay Enforcement of Judgment
ATTORNEYS: For Plaintiff and Cross-Defendant Cindy M. Hann: Patrick McCarthy, William P. Frusetta, McCarthy & Kroes
For Defendant and Cross-Complainant Theresa Colosi: Self-represented
For Cross-Defendants Montecito Bank & Trust, Janet Garufis, George Leis, James Jefferson, and Amy Hinkens: Rafael Gonzalez, Andrew M. Cox, Mullen & Henzell L.L.P.
For Cross-Defendants Christian Guier and Lisa Plowman: Hana Princip, Price, Postel & Parma LLP
For Cross-Defendant Dan McGrew: Sean A. Andrade, Henry H. Gonzalez, Andrade Gonzalez LLP
For Cross-Defendant Sanford Horowitz: Self-represented
TENTATIVE RULING:
(1) The demurrer of cross-defendants Montecito Bank & Trust, Janet Garufis, George Leis, James Jefferson, and Amy Hinkens to the second amended cross-complaint of cross-complainant Theresa Colosi is sustained, without leave to amend, as to the fifth and sixth causes of action, and as to the cross-complaint as a whole.
(2) The filing of the second amended cross-complaint omitting cross-defendant Dan McGrew as a party against whom any cause of action is now being asserted operated as a dismissal of McGrew as a cross-defendant. McGrew’s demurrer is therefore ordered off calendar as moot.
(3) The demurrer of cross-defendant Sanford Horowitz is sustained, with leave to amend, as to the second (breach of contract) and seventh (ineffective assistance of counsel) causes of action of the second amended cross-complaint.
(4) The demurrer of cross-defendants Christian Guier and Lisa Plowman is sustained, without leave to amend, as to the first and third causes of action, and to the second amended cross-complaint as a whole.
(5) The demurrer of plaintiff and cross-defendant Cindy M. Hann is sustained, without leave to amend, as to the first and third causes of action of the second amended cross-complaint, and is sustained, with leave to amend, as to the second cause of action (breach of contract).
(6) Cross-complainant Colosi shall file and serve her third amended cross-complaint on or before August 26, 2025. Leave to amend is limited to amendments to the second cause of action (as against cross-defendants Horowitz and Hann only) and to the seventh cause of action (as against cross-defendant Horowitz only), and is limited to the omission of parties in causes of action where the demurrer is sustained without leave to amend in this ruling. No other amendments are permitted by this leave, and, in particular, the amended cross-complaint may not add any new parties or causes of action. To the extent Colosi seeks any other amendment, Colosi must make a noticed motion seeking leave for such other amendment.
(7) The motion of Montecito Bank & Trust and James Jefferson to quash subpoenas was granted by written order entered on May 13, 2025. No further hearing is necessary and the hearing set for this date is ordered off calendar.
(8) The motion of defendant Colosi to stay enforcement of the judgment entered in favor of plaintiff Hann on Hann’s complaint is denied.
Background:
(1) Procedural History
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 child on December 8, 2019. The father of the minor had custody of the couple’s child, 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 child and flee the state with the child. 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 child.
Colosi was charged criminally with attempted murder and assault with a deadly weapon using force likely to cause great 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 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 child as a cross-complainant. On June 11, 2024, Colosi filed a First Amended Cross-Complaint (FACC), naming 66 cross-defendants, and omitting Colosi’s child as a cross-complainant.
On July 12, 2024, Hann filed a motion to sever and bifurcate Colosi’s cross-complaint from Hann’s complaint.
On August 13, 2024, Colosi filed a motion for leave to file a proposed second amended cross-complaint, setting the hearing for October 21, 2024. The then-proposed amended cross-complaint would have added 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 removed 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 Dan McGrew filed a demurrer to the FACC, setting the hearing on the demurrer for November 4, 2024.
On August 30, 2024, Colosi filed an amended notice and motion for leave to file a second amended cross-complaint.
On September 30, 2024, the court granted Hann’s motion to sever the Colosi cross-complaint from Hann’s complaint and to proceed with each separately. (Note: Although for administrative purposes the same case number continues to be used, the complaint and cross-complaint thereafter are proceeding as separate actions for all purposes.)
On January 6, 2025, the court sustained the McGrew demurrer with leave to amend. The court also denied Colosi’s motion for leave to file a second amended cross-complaint as then proposed.
On March 3, 2025, Colosi filed her Second Amended Cross-Complaint (SACC) in response to the leave to amend granted in sustaining the demurrer to the FACC, which SACC asserts seven causes of action: (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 and damages for fraudulent transfer of assets; and (7) ineffective assistance of counsel.
On April 22, 2025, cross-defendants Montecito Bank & Trust (MBT), Janet Garufis, George Leis, James Jefferson, and Amy Hinkens (collectively, the MBT Cross-Defendants) filed their demurrer to the fifth and sixth causes of action of the SACC.
On April 23, 2025, Hann filed her demurrer to the first, second, and third causes of action of the SACC.
On May 8, 2025, cross-defendants MBT and Jefferson filed their motion to quash subpoenas for trial testimony or the production at trial of documents served on MBT personnel.
On May 13, 2025, the court entered its order granting the May 8 motion of MBT and Jefferson to quash subpoenas. Also on May 13, McGrew filed his demurrer to the SACC.
On May 14, 2025, the court commenced trial on Hann’s complaint.
On May 27, 2025, cross-defendant Sanford Horowitz filed his demurrer to the SACC.
On May 29, 2025, the jury returned a verdict in the trial of Hann’s complaint in favor of Hann and against Colosi.
On June 5, 2025, Colosi filed a notice of appeal of the judgment and order after trial with respect to Hann’s complaint.
On June 9, 2025, the court continued all matters then on calendar to this hearing date of August 11. The court also advanced the hearing on the motion to quash, then set for August 18, to August 11.
On June 12, 2025, Colosi filed her motion to stay enforcement of judgment, noticed for hearing on August 11.
On June 13, 2025, cross-defendants Christian Guier and Lisa Plowman filed their demurrer to the first and third causes of action of the SACC.
On June 16, 2025, the court entered its judgment on the Hann complaint in favor of Hann and against Colosi in the amount of $755,000.00.
On July 11, 2025, cross-defendant Steve Smith filed his demurrer to the SACC, noticed for hearing on September 22 (and so not now before the court).
On July 29, 2025, Hann filed opposition to Colosi’s motion to stay enforcement of judgment. No opposition or other response has been filed to any demurrer or to any other matter on calendar for this hearing.
(2) Allegations of Second Amended Cross-Complaint
Colosi alleges in her SACC:
The Santa Clara County Family Court issued child custody and visitation order in the child paternity case of Colosi v. Guier, in conjunction with Guier’s demand on November 21, 2018, to abruptly move away over 300 miles from Los Gatos, California, where the minor child was born and lived, to Santa Barbara to live with Guier’s girlfriend, Plowman. (SACC, ¶ 1.)
In accordance with the child custody and visitation order for parenting time every Wednesday and Sunday and the move-away to Santa Barbara, Colosi signed a visitation/ exchange supervisor agreement with Hann on December 26, 2018. (SACC, ¶ 2.) Hann demanded that Colosi pay her in cash and in advance for the then-upcoming date of January 2, 2019. (Ibid.) On December 26, 2018, Colosi delivered an original copy of the agreement with Hann and $300 in cash to a mailbox designated by Hann. (Ibid.) At the arranged meeting time and place for the parenting time on January 2, 2019, Hann failed to show up with the minor child. (Ibid.) Colosi proceeded to the Santa Barbara Police Department and made report. (Ibid.)
In the next six months of 2019, Hann failed to schedule and Guier failed to make the minor child available for court-ordered parenting time. (SACC, ¶ 3.)
On March 28, 2019, the Santa Clara Family Court Judge interviewed the minor child in conjunction with the minor child’s counsel’s pursuit of a restraining order against Colosi. (SACC, ¶ 4.) The minor child stated a firm desire to live with Colosi. (Ibid.)
At the hearing on June 6, 2019, Colosi testified about the custodial interference by Guier in cooperation with Hann and requested formal removal and replacement of Hann. (SACC, ¶ 4.) The Judge nonetheless declined to modify or set aside the supervision order and instead granted the restraining order, with an exception for visitation on Wednesdays and Sundays with Hann as the supervisor. (Ibid.)
Subsequent to the June 6 hearing and orders, Hann demanded that Colosi sign a new agreement now requiring $100 per hour. (SACC, ¶ 4.) Colosi signed the agreement. (Ibid.) Between June and December 2019, Colosi saw the minor child only sporadically due to the ongoing custodial interference by Guier in cooperation with Hann, and counsel for Hann and for the minor child. (Ibid.) Hann would demand payment and then cancel the visitation. (Ibid.) At last accounting, Hann owed Colosi nearly $2,000. (Ibid.) The emotional distress and mental anguish the Colosi experienced culminated in the incident on December 8, 2019. (Ibid.)
Subsequent to the December 8 incident, a Santa Barbara Deputy Sheriff contacted Colosi’s landlord, using Hann’s disclosure of Colosi’s confidential address, and the landlord disclosed the privacy-protected name of Colosi’s bank. (SACC, ¶ 5.) The Deputy received the information without Colosi’s knowledge or consent, and without a search warrant. (Ibid.) The Deputy then sought and obtained a search warrant on December 10, 2019, for time-specific information about Colosi from a MBT on State Street in Santa Barbara. (Ibid.) The Deputy emailed the warrant to the Solvang branch of MBT. (Ibid.) The Solvang branch manager spoke to the Deputy and provided information, including false information that Colosi had withdrawn a large sum of money from her account the day prior. (Ibid.) That information was used to support a motion to increase bail, which resulted in the revocation of bail. (Ibid.)
The information also resulted in Colosi being arrested in Whitefish, Montana. (SACC, ¶ 5.) The Santa Barbara District Attorney’s Office, including cross-defendant DA Investigator Dan McGrew, used the information in proceedings against Colosi. (SACC, ¶ 6.)
Defense counsel for Colosi, including cross-defendant Sanford Horowitz, failed to defend Colosi’s civil protections as guaranteed by the U.S. and California constitutions. (SACC, ¶ 7.) Among other things, Horowitz failed to advise Colosi of her right to appeal the denial of her petition for relief under Penal Code section 1010.36 and substituted out of her case in breach of contract. (Ibid.)
Cross-defendant Hann relies on allegations in Colosi’s criminal case No. 19CR12190, in her complaint. (SACC, ¶ 8.) Hann has failed to produce requested discovery, including the medical report of her injury, with respect to this case. (Ibid.)
The SACC also alleges that doctrines of equitable tolling and equitable estoppel should be applied to any applicable limitations period because Colosi was rendered indigent for over four years with no access to counsel. (SACC, ¶ 29.) The MBT Cross-Defendants must be estopped from asserting the statute of limitations defense because their misconduct induced Colosi into forbearing suit within the applicable limitations period. (Ibid.)
As noted above, the SACC alleges seven causes of action. As pertains to the demurrers under consideration in this hearing, the first cause of action (contempt of court, etc.) is asserted against Guier, Plowman, and Hann. The second cause of action (breach of contract) is asserted against Hann and Horowitz. The third cause of action (intentional infliction of emotional distress) is asserted against Hann, Guier, and Plowman. The fourth cause of action (professional negligence) is not asserted against any cross-defendant related to these demurrers. The fifth cause of action (invasion of privacy) is asserted against the MBT Cross-Defendants. The sixth cause of action (fraudulent transfer) is asserted against the MBT Cross-Defendants. The seventh cause of action (ineffective assistance of counsel) is asserted against Horowitz.
Analysis:
“We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed. [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]” (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6, internal quotation marks omitted.)
(1) Demurrer of MBT Cross-Defendants
(A) Requests for Judicial Notice
In support of the demurrer of the MBT Cross-Defendants, the MBT Cross-Defendants request that the court take judicial notice of: (MBT Cross-Defendants’ Request for Judicial Notice [MBT RJN], exhibit 1) MBT’s complaint in interpleader, Santa Barbara Superior Court case number 22CV04591, filed November 17, 2022; (exhibit 2) the first amended complaint in case number 22CV04591, filed April 3, 2023; (exhibit 3) the notice of deposit of funds in case number 22CV04591, filed April 4, 2023; and (exhibit 4) the order in case number 22CV04591, entered November 1, 2023, for discharge of liability and award of costs and fees.
The court will grant judicial notice of these court records. (See Evid. Code. § 452, subd. (d)(1).)
(B) Invasion of Privacy
Colosi’s fifth cause of action is for invasion of privacy. Colosi bases this cause of action on her allegations that Colosi had a legally protected privacy interest in her financial information that was invaded with the publication of that information. (SACC, ¶ 22.) In the course of this invasion of privacy, MBT transferred all of Colosi’s assets to the County of Santa Barbara Clerk’s Office on April 3, 2023.
“California courts have recognized four distinct types of right of privacy claims: ‘(1) intrusion upon one’s physical solitude or seclusion; (2) public disclosure of private facts; (3) false light in the public eye; and (4) appropriation.’ [Citation.]” (Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1256, fn. 4.) The only potential type of right of privacy claim based upon the allegations of the SACC is public disclosure of private facts, i.e., disclosure of Colosi’s financial information: “To establish tort liability for this type of invasion of privacy, the plaintiff must plead and prove (1) public disclosure (2) of a private fact (3) that would be offensive and objectionable to the reasonable person and (4) is not of legitimate public concern.” (Id. at p. 1256, fn. omitted.)
The MBT Cross-Defendants argue that such an action is barred by the litigation privilege of Civil Code section 47, subdivision (b). As alleged in the SACC, the alleged communication consisting of the public disclosure asserted by Colosi is the disclosure of financial information to law enforcement in December 2019. (SACC, ¶¶ 5, 21.) In December 2019, such communications were absolutely privileged by the litigation privilege as to all torts except malicious prosecution. (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 355, 374 [litigation privilege applied to communications with law enforcement; Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 961 [litigation privilege applied to claims for invasion of privacy].)
In 2021, the Legislature amended section 47, subdivision (b) to qualify the privilege for communications between a person and a law enforcement agency. (Stats. 2020, ch. 327, § 2.) Because the alleged communication to satisfy the disclosure element of this cause of action occurred in 2019, the privilege applies to bar this action. (See As You Sow v. Conbraco Industries (2005) 135 Cal.App.4th 431, 459 [statute not ordinarily given retroactive effect where the statute would change the legal effects of past events].)
This cause of action is therefore barred by the litigation privilege of Civil Code section 47, subdivision (b) as against all MBT Cross-Defendants. The demurrer to the fifth cause of action will therefore be sustained without leave to amend on this ground.
The MBT Cross-Defendants alternatively demur on the grounds that there are no allegations of conduct as against cross-defendants Garufis, Leis, and Jefferson. No such allegations appear in the SACC. The demurrer will also be sustained on this ground.
The MBT Cross-Defendants alternatively demur on the grounds that this action is barred by the statute of limitations. In Cain v. State Farm Mut. Auto. Ins. Co. (1976) 62 Cal.App.3d 310, 313 (Cain), the court held that former “Code of Civil Procedure section 340, subdivision 3, prescribes the applicable statute of limitations in actions for violation of one’s right to privacy.” In 1976, when Cain was decided, former section 340, subdivision 3 provided:
“Within one year: [¶] … [¶] (3) An action for libel, slander, assault, battery, false imprisonment, seduction of a person below the age of legal consent, or for injury to or for the death of one caused by the wrongful act or neglect of another ….” (Stats. 1982, ch. 517, § 97, p. 2334.)
In 2002, section 340, subdivision (3) was amended to become subdivision (c) and to delete “assault, battery” and “for injury … cause by the wrongful act or neglect of another.” (Stats. 2002, ch. 448, § 3.) In its place, the Legislature enacted new section 335.1, which provides: “Within two years: An action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another.” The Cain court relied upon the “for injury to … one caused by the wrongful act or neglect of another, …” language in determining that the then-one year limitations period applied to a cause of action for invasion of privacy.” (Cain, supra, 62 Cal.App.3d at p. 313.) That language now appears in section 335.1 with a two-year limitations period. The court therefore concludes that the limitations period is two years.
“The general rule for defining the accrual of a cause of action sets the date as the time ‘when, under the substantive law, the wrongful act is done,’ or the wrongful result occurs, and the consequent ‘liability arises....’ [Citation.] In other words, it sets the date as the time when the cause of action is complete with all of its elements [citations]—the elements being generically referred to by sets of terms such as ‘wrongdoing’ or ‘wrongful conduct,’ ‘cause’ or ‘causation,’ and ‘harm’ or ‘injury’ [citations].” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397.)
Here, Colosi alleges the wrongful conduct to have occurred, and the subsequent harm to have been suffered in December 2019. The limitations period therefore expired in December 2021.
Colosi first filed her cross-complaint against the MBT Cross-Defendants in April 2024. The relation-back doctrine does not apply to third party cross-defendants. (Boyer v. Jensen (2005) 129 Cal.App.4th 62, 70.) Thus, it appears on the face of the SACC that the cross-complaint was filed after limitations had expired.
Colosi suggests two doctrines apply to suspend the operation of the statute of limitations—equitable tolling and equitable estoppel.
“Equitable tolling is a ‘judicially created, nonstatutory doctrine’ that ‘ “suspend[s] or extend[s] a statute of limitations as necessary to ensure fundamental practicality and fairness.” ’ [Citation.] The doctrine applies ‘occasionally and in special situations’ to ‘soften the harsh impact of technical rules which might otherwise prevent a good faith litigant from having a day in court.’ [Citation.]” (Saint Francis Memorial Hospital v. State Dept. of Public Health (2020) 9 Cal.5th 710, 719–720.) “[E]quitable tolling today applies when three ‘elements’ are present: ‘[(1)] timely notice, and [(2)] lack of prejudice, to the defendant, and [(3)] reasonable and good faith conduct on the part of the plaintiff.’ [Citation.] These requirements are designed to ‘balanc[e] the injustice to the plaintiff occasioned by the bar of his claim against the effect upon the important public interest or policy expressed by the [operative] limitations statute.’ [Citation.]” (Id. at pp. 724–725.)
Colosi has not pleaded any of the elements of equitable tolling. (See Long v. Forty Niners Football Co., LLC (2019) 33 Cal.App.5th 550, 555 [“Where a claim is time-barred on its face, the plaintiff must specifically plead facts that would support equitable tolling.”].) There are no facts alleged regarding timely notice to the MBT Cross-Defendants of this claim. At the same time, the MBT Cross-Defendants pursued their interpleader action to a conclusion as to them, demonstrating prejudice. (MBT RJN, exhibit D.) Indigency and incarceration are not, of themselves, sufficient to demonstrate reasonable and good faith conduct on the part of Colosi in failing to assert her alleged claims against the MBT Cross-Defendants within the limitations period. (See, e.g., Code Civ. Proc., § 352.1, subd. (a) [tolling for imprisonment]; Austin v. Medicis (2018) 21 Cal.App.5th 577, 597 [section 352.1 tolling applies only to imprisonment in the state prison].)
“In appropriate cases, a defendant may be equitably estopped from asserting a statutory limitations period. [Citation.] ‘ “ ‘Generally speaking, four elements must be present in order to apply the doctrine of equitable estoppel: (1) the party to be estopped must be apprised of the facts; (2) he [or she] must intend that his [or her] conduct shall be acted upon, or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) he [or she] must rely upon the conduct to his [or her] injury.’ ” ’ [Citation.]” (Doe v. Marten (2020) 49 Cal.App.5th 1022, 1028.) “In the statute of limitations context, equitable estoppel may be appropriate where the defendant’s act or omission actually and reasonably induced the plaintiff to refrain from filing a timely suit. [Citation.] The requisite act or omission must involve a misrepresentation or nondisclosure of a material fact bearing on the necessity of bringing a timely suit.” (Ibid.)
Colosi does not allege any facts to show that the MBT Cross-Defendants did or communicated anything to Colosi to induce her to refrain from filing a timely suit. Colosi has not alleged equitable estoppel to plead the statute of limitations.
The court therefore sustains the demurrer to the fifth cause of action on the alternative ground of the statute of limitations.
(C) Fraudulent Transfer
Colosi’s sixth cause of action is for recovery and damages for fraudulent transfer of assets. Colosi bases this cause of action on the April 4, 2023, deposit of funds in the interpleader action. (SACC, ¶ 26; MBT RJN, exhibit C.)
The MBT Cross-Defendants assert that the sixth cause of action is barred by privilege and by the judgment in the interpleader action, that this cause of action fails generally to state a cause of action for fraudulent transfer and fails specifically to state a cause of action against the individual MBT Cross-Defendants.
The court has taken judicial notice of MBT’s interpleader action (case No. 22CV04591) naming, among others, Colosi as a defendant. (MBT RJN, exhibits A, B.) The court further has taken judicial notice of the court’s order granting MBT discharge of liability.
“ ‘ “The purpose of interpleader is to prevent a multiplicity of suits and double vexation. [Citation.] ‘The right to the remedy by interpleader is founded, however, not on the consideration that a [person] may be subjected to double liability, but on the fact that he is threatened with double vexation in respect to one liability.’ [Citation.]” [Citation.] “In an interpleader action, the court initially determines the right of the plaintiff to interplead the funds; if that right is sustained, an interlocutory decree is entered which requires the defendants to interplead and litigate their claims to the funds.” [Citation.] Then, in the second phase of an interpleader proceeding, the trial court also has “the power under [Code of Civil Procedure] section 386 to adjudicate the issues raised by the interpleader action including: the alleged existence of conflicting claims regarding the interpleaded funds; plaintiffs’ alleged position as a disinterested mere stakeholder; and ultimately the disposition of the interpleaded funds after deducting plaintiffs’ attorney fees.” [Citation.]’ [Citation.]” (Southern California Gas Co. v. Flannery (2014) 232 Cal.App.4th 477, 487.) The order of discharge of liability and award of attorney fees and costs is a final judgment as to the party interpleading the funds. (Id. at p. 490.)
The harm alleged by the sixth cause of action is the transfer of the assets interpleaded. “ ‘The statute [providing for interpleader] in its present form, Code of Civil Procedure section 386, subdivision (b), requires only that the stakeholder file a verified pleading disclaiming any interest in the money or property claimed. It is the stakeholder’s avowed disinterest in the interpleaded proceeds which gives him the right to interplead.’ [Citation.] … [W]here a party disavows interest in the interpleaded stake, imposition of tort liability for commencing the interpleader is precluded.” (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 873–874, italics omitted.)
The order of discharge in the interpleader action thus precludes liability for MBT for interpleading the assets. Because MBT cannot be liable, the remaining MBT Cross-Defendants also cannot be liable for the interpleader (regardless of the fact that no allegations are pleaded as to individual liability for this cause of action).
The demurrer to the sixth cause of action will therefore be sustained without leave to amend. Because of this disposition, it is not necessary for the court to address other grounds for demurrer to this cause of action.
Insofar as the demurrer will be sustained to both the fifth and sixth causes of action of the SACC, which are all of the causes of action asserted against the MBT Cross-Defendants, the demurrer will be sustained as to SACC as a whole.
(2) Demurrer of Dan McGrew
(A) Requests for Judicial Notice
In support of his demurrer, cross-defendant McGrew requests that the court take judicial notice of: (McGrew Request for Judicial Notice, exhibit A) the FACC filed in this matter; and (exhibit B) the government tort claim submitted by Colosi to the County of Santa Barbara. These requests for judicial notice are granted. (See Evid. Code, § 452, subds. (d)(1), (h).)
(B) Demurrer
The caption of Colosi’s FACC includes a large number of cross-defendants, including cross-defendant Dan McGrew. The text of the FACC includes handwritten allegations that are difficult to connect to particular causes of action or cross-defendants. The SACC is printed and legible. The caption does not include cross-defendant Dan McGrew. Each of the seven causes of action asserted in the SACC include a statement of the parties against whom each cause of action is asserted. (See Cal. Rules of Court, rule 2.112(4).) None of the causes of action identify McGrew as a party against whom the cause of action is asserted. (SACC, p. 9, ll. 2-3, 22-23, p. 10, ll. 5-6, 19, p. 11, ll. 4-5, 23-24, p. 12, ll. 5-6.) McGrew points out that as a consequence of this failure, McGrew cannot determine what claims are being made against him. In this context it is also significant that the court sustained McGrew’s demurrer to the FACC with leave to amend, leading to the filing of the SACC.
“It has long been the rule that an amended complaint that omits defendants named in the original complaint operates as a dismissal as to them.” (Fireman’s Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1142.)
The court construes Colosi’s failure to include McGrew in the SACC, either in the caption or in the text of the SACC as a party against whom a cause of action is asserted, as an intentional omission of a defendant named in the prior complaint. Under such circumstances, the filing of the SACC operated as a dismissal of McGrew as a cross-defendant.
Because McGrew has already been dismissed from the SACC as a matter of law, McGrew’s demurrer to the SACC is moot and will be ordered off calendar.
(3) Demurrer of Sanford Horowitz
(A) Requests for Judicial Notice
In support of his demurrer, Horowitz requests that the court take judicial notice of: (Horowitz Request for Judicial Notice [Horowitz RJN], exhibit A) records from the court’s file in People v. Colosi, case number 19CR12190; and (exhibit B) Colosi’s request for relief from default filed in the appeal in People v. Colosi (B340639, app. pending) on September 12, 2024. The court grants these requests for judicial notice of court records. (See Evid. Code, § 452, subd. (d)(1).)
(B) Demurrer
Colosi asserts two causes of action against cross-defendant Horowitz: the second cause of action for breach of contract and the seventh cause of action for ineffective assistance of counsel. Horowitz demurs to these two causes of action on the grounds that Colosi has failed to allege all essential elements or has done so uncertainly. Horowitz also demurs to the fourth cause of action for professional negligence to the extent it is read to apply to Horowitz.
As to the fourth cause of action, this action is expressly asserted only against cross-defendants Kevin Hutcheson and Steve Smith, PsyD. (SACC, p. 10, l. 19.) The court therefore construes the fourth cause of action as not being asserted against Horowitz, with only the second and seventh causes of action being asserted against Horowitz.
Horowitz argues that both causes of action require Colosi to plead her factual innocence in the criminal proceeding, which Colosi has not done. Neither of Colosi’s two causes of action are expressly designated as an action for legal malpractice (often alternatively referred to as “professional negligence”). Labels of causes of action are not, however, determinative. (See Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.) Colosi’s seventh cause of action is labelled “ineffective assistance of counsel.” There is no civil action by that name. Instead, looking at the factual allegations underlying the seventh cause of action (see ibid.), it is clear that professional negligence is the cause of action asserted by the seventh cause of action. Colosi has one paragraph of charging allegations for the seventh cause of action: “All named Cross-defendants had a duty to Colosi to provide legal representation that meets Constitutional standards, all of them breached their Constitutional duty and their breach proximately harmed Colosi and her minor [child] ….” (SACC, ¶ 28.)
“In civil malpractice cases, the elements of a cause of action for professional negligence are: ‘(1) the duty of the attorney to use such skill, prudence and diligence as members of the profession commonly possess; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; and (4) actual loss or damage. [Citations.]’ [Citation.]” (Wiley v. County of San Diego (1998) 19 Cal.4th 532, 536 (Wiley).)
The elements asserted in the SACC align with a cause of action for professional negligence. However, “in a criminal malpractice action actual innocence is [also] a necessary element of the plaintiff’s cause of action.” (Wiley, supra, 19 Cal.4th at p. 545.) Plaintiff has not alleged actual innocence. Moreover, “an individual convicted of a criminal offense must obtain reversal of his or her conviction, or other exoneration by postconviction relief, in order to establish actual innocence in a criminal malpractice action.” (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1201.) The judicially noticed materials show that Colosi was convicted in the criminal matter out of which the seventh cause of action arises. (Horowitz RJN, exhibit A, p. 28.) Nothing in the allegations or judicially noticed material demonstrate that Colosi’s conviction has been reversed or that Colosi has otherwise been exonerated. The demurrer to the seventh cause of action will be sustained.
The second cause of action is for breach of contract.
“[W]hether the actual innocence rule applies in the present context should not be resolved in a formulaic manner, either by labeling the … proceedings ‘criminal’ or ‘civil’ …, by determining whether they took place in the course of [the attorney’s] defense of [the plaintiff] …, or by deciding whether [the plaintiff’s] professional negligence claim arises out of a criminal proceeding …. Rather, we must look to the policy considerations underlying the actual innocence requirement to see whether they justify application of the requirement here.” (Brooks v. Shemaria (2006) 144 Cal.App.4th 434, 442 (Brooks).)
“The relevant considerations, as explained in Wiley, include the following: First, we should not permit a guilty defendant to profit from his or her own wrong. [Citation.] Second, to allow guilty defendants to shift their punishment to their former attorneys would undermine the criminal justice system. [Citation.] Third, ‘a defendant’s own criminal act remains the ultimate source of his predicament irrespective of counsel’s subsequent negligence.’ [Citation.] Fourth, a guilty defendant who is convicted or given a longer sentence as a result of counsel’s incompetence can obtain postconviction relief on that basis; in contrast, ‘a civil matter lost through an attorney’s negligence is lost forever.’ [Citation.] Fifth, there are formidable practical problems with criminal malpractice litigation, including the difficulty of quantifying damages and the complexity of the standard of proof, which must combine the preponderance of the evidence standard with the reasonable doubt standard applicable in a criminal trial.” (Brooks, supra, 144 Cal.App.4th at pp. 442–443.)
Here, Colosi provides only conclusory charging allegations of breach of contract: “The named cross-defendants all entered into contracts with Colosi, Colosi did all the significant things that the contracts required, all named defendants failed to abide by the terms of their respective contracts. As a result of the respective breaches of contract, both Colosi and [the minor child] were harmed. The named cross-defendants’ respective breach of contract was a substantial factor in causing Colosi and [the minor child’s] harm.” (SACC, ¶ 14.)
The only allegations in the body of the complaint that mention conduct of Horowitz generally states that he (and other counsel) “failed to defend Colosi’s civil protections as guaranteed by the U.S. Constitution and the California Constitution, and failed to pursue remedy and relief provided by numerous statues and penal codes,” and “Horowitz failed to advise Colosi of her right of appeal of Judge Pauline Maxwell’s denial of the Petition for Relief under PC 1001.36, refused to discuss when queried, and promptly substituted himself out of the case, in breach of the existing contract.” (SACC, ¶ 7.)
These allegations demonstrate that the breach of contract action is in essence a professional negligence cause of action. All of the conduct that Colosi alleges against Horowitz is conduct asserted to be failing to meet professional duties in the defense of Colosi’s criminal matter. The harm asserted by Colosi for breach of contract all arises from, and is derivative of, Colosi’s criminal conduct. Applying the Wiley factors discussed in Brooks, supra, each of those factors favors including the element of actual innocence in the same manner as for an action for professional negligence. Significantly, Colosi’s asserted harm for breach of contract ultimately all depends upon Colosi’s innocence as to the criminal charges. (See Lynch v. Warwick (2002) 95 Cal.App.4th 267, 275 [actual innocence required to be pleaded and proved in breach of contract claim against attorney arising out of attorney’s professional negligence].)
As with the second cause of action, the judicially noticed materials show that Colosi was convicted in the matter out of which the second cause of action arises, and Colosi has not alleged her actual innocence as established by reversal or other exoneration. The demurrer to the second cause of action will be sustained.
Horowitz alternatively demurs on the ground of judicial estoppel, arguing that Colosi stated in support of her application to the Court of Appeal that it was attorney Mindi Boulet who failed to advise Colosi of her right to appeal. Whether or not this argument has merit with respect to that aspect of Colosi’s claims against Horowitz, a demurrer cannot be sustained to part of a cause of action. (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047.) The demurrer will not be sustained on this ground.
Horowitz also demurs on the ground that the allegations are insufficient substantively to state either the second or seventh cause of action. With respect to the breach of contract cause of action, the elements are “(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) Colosi has not alleged the contract at issue, either by attaching it or by pleading its legal effect, nor has Colosi alleged whether contract is oral or in writing. (See McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.)
In both the second and seventh causes of action, Colosi has not adequately alleged the general conduct asserted to have fallen below the appropriate standard of care. Colosi has also not adequately alleged damages to have been caused such a breach of care or breach of contract. The demurrer to both causes of action will be sustained on these grounds as well.
It is unclear whether Colosi can truthfully allege sufficient facts to state these causes of action. Colosi will nonetheless be given leave to amend to state her best case.
(4) Demurrer of Christian Guier and Lisa Plowman
Colosi’s first (contempt of court) and third (intentional infliction of emotional distress) causes of action are asserted against cross-defendants Guier and Plowman. Guier and Plowman demur on the grounds that these causes of action are barred by the statute of limitations and by the litigation privilege, that these causes of action are otherwise insufficiently pleaded, and that the court has no jurisdiction as to contempt.
(A) Disobedience of Family Court Orders
Colosi’s first cause of action is labeled, “Contempt of Court; Conspiracy to Disobey a Child Custody and Visitation Order.” To support this cause of action, Colosi alleges: “The Family Court had issued a lawful child custody and visitation order, all cross-defendants cited in the first cause of action were aware of the orders, all willfully disobeyed, and/or conspired to disobey, the orders, and Colosi gave ample opportunities to comply.” (SACC, ¶ 12.) The referenced order is alleged to be the order from the Santa Clara Family Court. (SACC, ¶ 4.)
Guier and Plowman argue that the family court orders must be enforced by the family court rather than by civil action. This proposition is correct and is broadly addressed in Burkle v. Burkle (2006) 144 Cal.App.4th 387 (Burkle), a case not cited in the moving papers.
In Burkle, while a marital dissolution proceeding was pending, a wife brought a separate civil action against her husband and two accounting firms. (Burkle, supra, 144 Cal.App.4th at p. 391.) The wife claimed her husband failed to make two interim monthly payments required under the terms of a stipulation and order in the dissolution proceeding, and further claimed his conduct constituted intentional infliction of emotional distress. (Ibid.) The wife also sought a declaration that the husband and the accounting firms were required to provide her with tax returns and related documents she had previously sought in the dissolution proceeding. (Ibid.) The trial court sustained the husband’s and the accounting firms’ demurrers to the wife’s complaint. (Id. at p. 392.) The Burkle court affirmed. (Id. at p. 393.)
“In [Neal v. Superior Court (2001) 90 Cal.App.4th 22 (Neal)] and several other cases, the courts have made it clear that family law cases ‘should not be allowed to spill over into civil law....’ [Citation.] Neal directed the trial court to sustain an ex-wife’s demurrers to her former husband’s causes of action for breach of contract, fraud, abuse of process and declaratory relief. The court observed that almost all events occurring in family law litigation can be reframed as civil law actions, and that it is ‘incumbent on courts to examine the substance of claims, not just their nominal headings.’ [Citation.]” (Burkle, supra, 144 Cal.App.4th at pp. 393–394.) “In short, ‘this case is a family law OSC with civil headings’ [citation], and [the wife] was required to address her claims to the family law court.” (Id. at p. 394.)
“Other cases on the subject merely serve to demonstrate the propriety of the trial court’s disposition in this case. For example:
“• In Neal and [d’Elia v. d’Elia (1997) 58 Cal.App.4th 415], the separate civil actions were improper even though they were filed after final judgments in the family law proceedings had been entered, rather than during the pendency of the dissolution proceeding.
“• In [Askew v. Askew (1994) 22 Cal.App.4th 942], the family law court ‘already had subject matter jurisdiction to divide the community property,’ so the civil trial court in which the husband brought a separate action had no jurisdiction to determine the character of five properties the husband claimed were his separate property. [Citation.]
“• In Bidna v. Rosen (1993) 19 Cal.App.4th 27, 29–30, the husband could not bring a malicious prosecution action based on six totally meritless ex parte applications and orders to show cause filed by his wife in their family law proceedings.
“• See also Greene v. Superior Court (1951) 37 Cal.2d 307, 312 (because of continuing jurisdiction of Santa Barbara divorce court over its custody awards, San Francisco court had no jurisdiction in mother’s action to appoint a guardian), and Kresteller v. Superior Court (1967) 248 Cal.App.2d 545, 549–550 (court which granted divorce had primary, continuing jurisdiction to modify its decree, and wife’s independent action seeking child support in another court was precluded; divorce court which rendered decree ordinarily is in a better position to make a determination whether there has been a change of circumstances).” (Burkle, supra, 144 Cal.App.4th at pp. 396–397, parallel citations omitted.)
Applying the rule of exclusive concurrent jurisdiction, Burkle similarly affirmed the demurrers of the accounting firms.
“In this case, while the accounting firms are not parties to the dissolution action, the family law court had full power to require them to respond to [the wife’s] subpoenas relating to the tax returns, and could likewise require them to produce information on the alleged IRS audit. [Citation.] Accordingly, because the family law court had the power to require production of the records, which [the wife] demanded in connection with the marital dissolution, she was required to seek relief in the marital dissolution proceeding, not in a new action for declaratory relief.” (Burkle, supra, 144 Cal.App.4th at pp. 398–399.)
Colosi’s first cause of action seeks to enforce in this civil action the child custody and visitation orders of a different California court. The Santa Clara court has the power and jurisdiction to enforce its order, both against parties to the family law action and against parties with knowledge of, and interfering with, such order.
Under the analysis of Burkle, “[u]nder well-established precedent precluding parties to dissolution proceedings from engaging in ‘family law waged by other means’ [citation],” this court does not have jurisdiction as to Colosi’s first cause of action, whether asserted against Guier or against Plowman as acting with or for Guier. (See People v. Conrad (1997) 55 Cal.App.4th 896, 903 [“a nonparty to an injunction is subject to the contempt power of the court when, with knowledge of the injunction, the nonparty violates its terms with or for those who are restrained”].)
The demurrer to the first cause of action will be sustained without leave to amend.
(B) Intentional Infliction of Emotional Distress
Colosi’s third cause of action is for intentional infliction of emotional distress. The charging allegation for this cause of action is a single paragraph:
“The named cross-defendants actions and omissions in intentionally and repeatedly disobeying the existing lawful child custody and visitation order, and cooperating together to do so, displays outrageous conduct; the named cross-defendants intended to cause Colosi and [the minor child] emotional distress; the named cross-defendants acted with reckless disregard of the probability that Colosi and [the] minor child … would suffer emotional distress; Colosi and [the minor child] have suffered severe emotional distress and mental anguish; the named cross-defendant’s conduct was the actual and proximate cause of Colosi’s emotional distress.” (SACC, ¶ 16.)
As also explained in Burkle, a tort claim for intentional infliction of emotional distress based upon disobedience of a family court order is in substance a matter for the family court and not a separate civil action. (Burkle, supra, 144 Cal.App.4th at pp. 397–398.)
To the extent this cause of action is not otherwise within the province of the family court, the conduct alleged fails to state this cause of action.
“A cause of action for intentional infliction of emotional distress exists when there is ‘(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.’ [Citations.] A defendant’s conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ [Citation.] And the defendant’s conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.’ [Citation.]” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051, internal quotation marks omitted.)
The conduct alleged does not constitute outrageous behavior within the meaning of the intentional infliction of emotional distress tort. (Burkle, supra, 144 Cal.App.4th at pp. 397–398.)
Moreover, the two-year statute of limitations applies to bar this cause of action for the same reasons discussed above in the context of the MBT cross-defendants’ demurrer on that ground.
For all of these reasons, the demurrer to the third cause of action will be sustained without leave to amend. Because the court will sustain the demurrers as to all causes of action asserted against these cross-defendants, the demurrer will also be sustained to the second amended cross-complaint as a whole.
(5) Demurrer of Cindy M. Hann
Colosi asserts the first (contempt of court), second (breach of contract), and third (intentional infliction of emotional distress) causes of action against cross-defendant Hann.
With respect to the first and third causes of action, the demurrer will be sustained, without leave to amend, for the same reasons as discussed above with respect to this cause of action asserted against cross-defendant Plowman.
With respect to the second cause of action, Hann argues that this action is barred by the statute of limitations, and does not otherwise state facts sufficient to allege this cause of action.
As stated above in the discussion of the demurrer to this cause of action by Horowitz, Colosi has failed adequately to allege the contract, the specific breaches of contract giving rise to the action, and the resulting damage. The demurrer will be sustained on this ground with leave to amend.
With respect to the statute of limitations, the absence of allegations regarding the contract, the breach, and the resulting damages makes disposition of this defense impossible in this demurrer. “ ‘ “A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. [Citation.] In order for the bar ... to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred. [Citation.]” [Citation.]’ [Citation.]” (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42.) Among other issues, it is unclear to what extent the cross-complaint may relate back to the date of the filing of Hann’s own complaint.
(6) Motion of MBT and Jefferson to Quash Subpoenas
Cross-defendants MBT and Jefferson move to quash subpoenas for trial testimony or production of documents served on MBT personnel with respect to the trial of plaintiff Hann’s complaint against Colosi on May 12, 2025. The court entered its order granting this motion on May 13, 2025; the trial for which the testimony and documents were subpoenaed has concluded. No further hearing is necessary or appropriate.
(7) Motion of Defendant Colosi to Stay Enforcement of Judgment
On May 29, 2025, the jury rendered its verdict in favor of plaintiff Hann and against defendant Colosi on Hann’s complaint against Colosi (which had been severed for all purposes from the cross-complaint). On June 5, Colosi filed a notice of appeal. On June 12, Colosi filed this motion to stay enforcement of judgment on the grounds that a stay is necessary and appropriate to promote the ends of justice. On June 16, judgment was entered. The judgment states:
“NOW, THEREFORE IT IS ORDERED, ADJUDGED AND DECREED: [¶] That plaintiff Cindy Hann is entitled to judgment in her favor in the amount of seven hundred fifty-five thousand dollars ($755,000.00) against Theresa Colosi. Plaintiff Cindy Hann shall have judgment entered in her favor for this amount plus costs, and attorney’s fees in the amount of $ ______[TBD]. [¶] Per the June 4, 2024 Order of this Court, the Res, held in constructive trust by this Court, shall be immediately distributed to counsel for Cindy Hann, to the fullest extent that the Rest is available to satisfy a portion of the Judgment.” (Judgment, at p. 4.)
“Except as provided in Sections 917.1 to 917.9, inclusive, and in Section 116.810, the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.” (Code Civ. Proc., § 916, subd. (a).)
“Unless an undertaking is given, the perfecting of an appeal shall not stay enforcement of the judgment or order in the trial court if the judgment or order is for any of the following: [¶] (1) Money or the payment of money, whether consisting of a special fund or not, and whether payable by the appellant or another party to the action.” (Code Civ. Proc., § 917.1, subd. (a)(1).)
“If the enforcement of the judgment or order would be stayed on appeal only by the giving of an undertaking, a trial court shall not have power, without the consent of the adverse party, to stay the enforcement thereof pursuant to this section for a period which extends for more than 10 days beyond the last date on which a notice of appeal could be filed.” (Code Civ. Proc., § 918, subd. (b).)
Hann objects to, and opposes, Colosi’s motion to stay enforcement. Colosi’s motion is based upon her general assertions that there are other matters with pending appeals which, Colosi contends, would materially affect the validity of this judgment and that she will suffer nonspecified irreparable harm if the motion is not granted. Colosi has not demonstrated or argued any exception to these rules by which enforcement of a money judgment is not stayed absent an undertaking. (See Sharifpour v. Le (2014) 223 Cal.App.4th 730, 734.)
Upon consideration of the evidence and arguments of the parties, the motion will be denied and the court declines to exercise its discretion (to whatever extent it may possess such discretion) to stay enforcement of the judgment without the giving of an undertaking.