Cindy M Hann vs Theresa Lynn Colosi

Case Number

20CV01984

Case Type

Hearing Date / Time

Mon, 09/22/2025 - 10:00

Nature of Proceedings

Demurrer to Cross Complaint; Special Motion to Strike (Anti-SLAPP) as to Cross-Complaint

Tentative Ruling

Cindy M. Hann v. Theresa Lynn Colosi 

Case No. 20CV01984

           

Hearing Date: September 22, 2025                                       

HEARING:              (1)       Special Motion to Strike of Cross-Defendant Kevin S. Hutcheson

                             (2)       Demurrer of Cross-Defendant Steve Smith, PsyD. To Second Amended Cross-Complaint

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-Defendant Kevin S. Hutcheson: Self-represented

                                    For Cross-Defendant Steve Smith, PsyD.: Lindsey M. Romano, Gordon Rees Scully Mansukhani, LLP

                                    (For other appearances see list)

                                   

TENTATIVE RULING:

(1)       The demurrer of cross-defendant Steve Smith, PsyD., is sustained with leave to amend. Cross-complainant Theresa Colosi shall file and serve a third amended cross-complaint on or before October 7, 2025. Leave to amend to file a third amended cross-complaint is limited to (i) the fourth cause of action as against cross-defendant Smith, and (ii) to the omission of parties. 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.

(2)       The special motion to strike of cross-defendant Kevin S. Hutcheson is granted in its entirety. The first (contempt of court, etc.), third (intentional infliction of emotional distress), and fourth (professional negligence) causes of action of the second amended cross-complaint as against cross-defendant Hutcheson, comprising all causes of action of the cross-complaint against Hutcheson, are ordered stricken.

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. She has since been 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 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, PsyD., filed his demurrer to the SACC, noticed for hearing on September 22.

On July 24, 2025, Hann filed her motion for an award of attorney fees noticed for hearing on October 20, 2025.

On August 11, 2025, Colosi requested, and the court entered, dismissal as to cross-defendants County of Santa Barbara and Montecito Bank & Trust.

Also on August 11, 2025, the court sustained the demurrers of Montecito Bank & Trust, Janet Garufis, George Leis, James Jefferson, and Amy Hinkens to the second amended cross-complaint, without leave to amend, as to the fifth and sixth causes of action, and as to the cross-complaint as a whole. The court also determined that Dan McGrew had been dismissed by operation of law by the filing of the second amended cross-complaint omitting him as a defendant. The court also sustained the demurrer of cross-defendant Sanford Horowitz, 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. The court also sustained, without leave to amend, the demurrer of cross-defendants Christian Guier and Lisa Plowman as to the first and third causes of action, and to the second amended cross-complaint as a whole. The court also sustained the demurrer of plaintiff and cross-defendant Cindy M. Hann, without leave to amend, as to the first and third causes of action of the second amended cross-complaint, and, with leave to amend, as to the second cause of action (breach of contract). The court granted leave to file a third amended complaint, only with respect to matters where the court granted leave to amend, until August 26, 2025.

On August 14, 2025, cross-defendant Kevin S. Hutcheson filed his special motion to strike as to the second amended cross-complaint, which was noticed for this hearing date of September 22.

On August 15, 2025, cross-defendant Waler Hammon filed his answer to the second amended cross-complaint.

No opposition or other response to either Smith’s demurrer or Hutcheson’s special motion to strike has been filed. Colosi did not file a third amended complaint on or before August 26, 2025, under the leave granted by the sustaining of the prior demurrers.

(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 used the information in proceedings against Colosi. (SACC, ¶ 6.)

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.) 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 demurrer and motion to strike under consideration in this hearing, the first (contempt of court, etc.) and third (intentional infliction of emotional distress) causes of action are asserted against Hutcheson. The fourth cause of action (professional negligence) is asserted against Hutcheson and Smith. The second, fifth, sixth, and seventh causes of action are not asserted against Hutcheson or Smith.

Analysis:

(1)       Demurrer of Smith

“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.)

The only cause of action asserted against cross-defendant Smith is the fourth cause of action for professional negligence. Smith argues that the allegations are insufficient to state a cause of action against him and that the statute of limitations bars the action.

“ ‘The elements of a cause of action for professional negligence are: (1) the duty of the professional to use such skill, prudence and diligence as other members of the profession commonly possess and exercise; (2) breach of that duty; (3) a causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional negligence.’ [Citation.]” (Loube v. Loube (1998) 64 Cal.App.4th 421, 429.)

The entirety of the factual allegations specific to Smith are set forth in paragraph 19 of the SACC:

“Cross-defendant Smith provided professional services to the minor child pursuant to a child custody and visitation order; standard of care requires that the professional communicate with both parents prior to providing services to a minor; Smith made a deliberate decision to fail to contact Colosi (mother); Smith’s deliberate and reckless decision to fail to follow the standard of care cause harm to both the minor child and Colosi.”

In arguing this demurrer, Smith refers to a number of facts set forth in an attached declaration but not alleged in the SACC. (Demurrer, at pp. 3, 4.) “Because a demurrer challenges defects on the face of the complaint, it can only refer to matters outside the pleading that are subject to judicial notice.” (Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482.) Consequently, the court does not consider facts outside the pleading in ruling on this demurrer.

The allegations in the SACC are conclusory and insufficient to state a cause of action for professional negligence. Colosi’s allegations that Smith provided professional services are insufficient to plead the element of the existence of a professional duty. (See Rosales v. Stewart (1980) 113 Cal.App.3d 130, 133 [facts which cause a duty to arise (or from which it is inferred) are essential to the cause of action”].) Colosi must at least allege the nature of the professional relationship from which such a duty would arise. Also, the allegation that the failure to follow the standard of care caused harm to Colosi is conclusory and insufficient. Colosi must allege facts to show both the causal connection to the harm and the nature of the harm suffered. The demurrer will be sustained on this ground.

Smith also demurs on the grounds of the statute of limitations. “ ‘ “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.)

The SACC does not allege when the professional negligence claim arose against Smith, nor any facts upon which the time of accrual can be inferred. Consequently, the court cannot determine on the face of the SACC that the action is necessarily barred by the statute of limitations. The demurrer will not be sustained on this ground.

Because this is the first cross-complaint to which the court has addressed claims against Smith, the court will grant leave to amend.

(2)       Special Motion to Strike of Hutcheson

“A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (Code Civ. Proc., § 425.16, subd. (b)(1).) A motion under section 425.16 is sometimes referred to as an “anti-SLAPP motion” and section 425.16 the “anti-SLAPP statute.”

“As used in this section, ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” (Code Civ. Proc., § 425.16, subd. (e).)

“Litigation of an anti-SLAPP motion involves a two-step process. First, ‘the moving defendant bears the burden of establishing that the challenged allegations or claims “aris[e] from” protected activity in which the defendant has engaged.’ [Citation.] Second, for each claim that does arise from protected activity, the plaintiff must show the claim has ‘at least “minimal merit.” ’ [Citation.] If the plaintiff cannot make this showing, the court will strike the claim.” (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009.) “At this first step, courts are to ‘consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.’ [Citation.] The defendant’s burden is to identify what acts each challenged claim rests on and to show how those acts are protected under a statutorily defined category of protected activity.” (Ibid.)

            (A)       First Prong

“A claim arises from protected activity when that activity underlies or forms the basis for the claim. [Citations.] Critically, ‘the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech.’ [Citations.] ‘[T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute.’ [Citations.] Instead, the focus is on determining what ‘the defendant’s activity [is] that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.’ [Citation.] ‘The only means specified in section 425.16 by which a moving defendant can satisfy the [“arising from”] requirement is to demonstrate that the defendant’s conduct by which plaintiff claims to have been injured falls within one of the four categories described in subdivision (e)....’ [Citation.] In short, in ruling on an anti-SLAPP motion, courts should consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062–1063.)

As noted above, Colosi asserts three causes of action against Hutcheson: the first (contempt of court, etc.), third (intentional infliction of emotional distress), and fourth (professional negligence).

Colosi alleges that Hutcheson served as the minor child’s counsel. (SACC, ¶ 4.) Hutcheson pursued a restraining order against Colosi without just cause. (Ibid.) In the first cause of action, Colosi asserts as the basis of liability that Hutcheson was ethically bound to represent the interests of the minor child and to ensure the minor child’s access to his mother, which Hutcheson failed to do. (SACC, ¶ 11.)

“As a preliminary matter, the California Supreme Court stated: ‘ “A cause of action ‘arising from’ defendant’s litigation activity may appropriately be the subject of a section 425.16 motion to strike.” [Citation.] “Any act” includes communicative conduct such as the filing, funding, and prosecution of a civil action. [Citation.] This includes qualifying acts committed by attorneys in representing clients in litigation.” (PrediWave Corp. v. Simpson Thacher & Bartlett LLP (2009) 179 Cal.App.4th 1204, 1221.)

Colosi’s first cause of action asserts liability against Hutcheson arising out of Hutcheson’s litigation activity as the minor child’s counsel in the context of court proceedings. Hutcheson has met his first prong burden as to the first cause of action.

Colosi’s third cause of action is for intentional infliction of emotional distress. With respect to this cause of action Colosi asserts liability arising out of act and omission in disobeying the existing child custody and visitation order and in cooperating together to do so. (SACC, ¶ 16.) As to Hutcheson, whose only alleged conduct is his representation of the minor child in court proceedings, this cause of action, too, arises out of protected conduct of litigation activity. Hutcheson has met his first prong burden as to the second cause of action.

Colosi’s fourth cause of action is for professional negligence. In this cause of action, Colosi additionally alleges: “Cross-defendant Hutcheson was at all times aware of his professional duties and responsibilities to [the] minor child …; he made a deliberate decision to breach his legal duty to [the minor child]; his failure caused harm and intentionally inflicted emotional distress on both Colosi and [the minor child].” (SACC, ¶ 18.)

The alleged breach of legal duty in paragraph 18 necessarily refers to the incorporated allegations of representing the minor child in court proceedings pursuing a restraining order and addressing other family court orders. Again, these activities are shown to arise out of protected petitioning activity. Hutcheson has met his first prong burden as to the third cause of action.

            (B)       Second Prong

As discussed above, Hutcheson has met his first prong burden as to each of the causes of action asserted by Colosi against Hutcheson.

“At the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them. When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage. If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached. There, the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff’s showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment. If not, the claim is stricken. Allegations of protected activity supporting the stricken claim are eliminated from the complaint, unless they also support a distinct claim on which the plaintiff has shown a probability of prevailing.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 396.)

“ ‘We have described this second step as a “summary-judgment-like procedure.” [Citation.] The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law. [Citation.] “[C]laims with the requisite minimal merit may proceed.” ’ [Citation.] … As to the second step inquiry, a plaintiff seeking to demonstrate the merit of the claim ‘may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence.’ [Citations.]” (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 940.)

Colosi has not filed opposition or other response to this anti-SLAPP motion. Consequently, Colosi has not met her second prong burden to provide evidence to support her claim. The motion will therefore be granted to strike these causes of action against Hutcheson, consisting of all causes of action against him in the SACC.