Mark Sellars, et al. v. Patrick Leahy, et al

Case Number

20CV04132

Case Type

Hearing Date / Time

Wed, 10/04/2023 - 10:00

Nature of Proceedings

Plaintiffs’ Motion for Leave to File Second Amended Complaint

Tentative Ruling

For Plaintiffs Mark Sellars, individually and as Trustee of the Rosemary Free Trust

u/d/t dated September 13, 2000, and Rebecca Morin, Conservator of the Estate and

Person of Rosemary Free Leahy: David J. Tappeiner 

For Defendants Channe Coles and The Law Office of Channe G. Coles: R. Chris

Kroes

For Defendants Patricia Wollum and Susan Reynolds: Gabriella L. Sternfeld, David A. Napper, Gregory K. Sabo

For Defendant Patrick Leahy: Self-Represented

    

 

RULING

For the reasons set forth herein: The motion for leave to file a second amended complaint is granted to allow Plaintiffs to add against Honor Home Care Services California, Inc. as a Defendant.

Background

On December 11, 2020, Plaintiff Mark Sellars (“Sellars”) filed his original complaint against Defendant Patrick Leahy (“Leahy”) alleging causes of action for elder abuse and financial elder abuse of Rosemary Free Leahy (“Rosemary”). Sellars is the biological son of Rosemary. (Original Complaint, ¶ 1.) Leahy is Rosemary’s spouse. (Id. at ¶ 3.)

On January 23, 2023, Sellars filed the operative first amended complaint (“FAC”) which substantially changed the nature of this action. The FAC is brought by Mark Sellars, individually and as Trustee of the Rosemary Free Trust u/d/t dated September 13, 2000, and Rebecca Morin, Conservator of the Estate and Person of Rosemary Free Leahy (“Morin”) against: (1) Leahy; (2) Channe Coles and the Law Office of Channe G. Coles (collectively “Coles”); (3) Patricia Wollum; (4) Susan Reynolds; and (5) Help Unlimited.

The FAC alleges causes of action for: (1) Elder abuse – against all Defendants; (2) Financial elder abuse – against all Defendants; (3) Legal malpractice – against Coles; (4) Intentional infliction of emotional distress – against all Defendants; and (5) Negligence – against all Defendants.

Pertinent allegations in the FAC, as they pertain to the present motions include:

Coles, claiming that she was representing Rosemary in a conservatorship proceeding, “colluded and conspired with Mr. Leahy to oppose the establishment of a Conservatorship for Rosemary, representing to this Court that she was advocating for Rosemary, when the truth was that she was advocating for Mr. Leahy. Such malfeasance was discovered and confirmed by Becky, Rosemary’s daughter and current Conservator of the Estate and Person or Rosemary Free Leahy, after Becky was appointed as Rosemary’s Conservator on February 10, 2022.” (FAC, ¶¶ 3, 96.)

“The primary perpetrator of the abuse against Rosemary is Mr. Leahy. However, Ms. Coles is equally responsible as she and Mr. Leahy filed a meritless Objection to the Petition for Conservatorship filed by [Sellars], even though it was clear that Rosemary was incapacitated and needed a Conservatorship. The actions of Mr. Leahy and Ms. Coles set things in motion, which has resulted in Rosemary incurring over $400,000 in legal and other professional fees, which fees could have been avoided entirely but for the abuse committed by the Defendants named herein.” (Id. at ¶ 7.)

Rosemary is 91 years old and suffers from dementia. (Id. at ¶ 25.) Leahy isolated Rosemary from all her family beginning in 2017, so Sellars, with the support of other family, commenced conservatorship proceedings in 2018 to protect Rosemary from Leahy’s continued isolation and abuse. (Id. at ¶ 26.) Leahy and Coles conspired to resist the conservatorship of Rosemary, by filing a meritless objection to Sellars’ petition for appointment of probate conservator filed on December 5, 2018. (Id. at ¶ 29.) “The Objection was prepared by attorney Coles and Mr. Leahy. All of the information provided in the Objection was provided by Mr. Leahy.” (Id. at ¶ 30.) “Every allegation made by Mr. Leahy and Ms. Coles in the Objection has since been proved to be false.” (Ibid.) “[A]fter Mark commenced the Conservatorship Proceeding and despite Rosemary’s obvious memory issues and general lack of capacity, Ms. Coles prepared an affidavit, attempting to revoke Rosemary’s longstanding health care directive, under which she had nominated Mark and then his sisters (Kris and Becky) as her agents. Such attempted revocation was invalid because Rosemary lacked capacity but is further evidence of the fact that attorney Coles was doing the bidding of Mr. Leahy and working contrary to Rosemary’s interests.” (Id. at ¶ 41.) “Mr. Leahy engaged attorney Chane Coles to object to the conservatorship proceeding in order to avoid having a conservator appointed because he feared the conservator would uncover his financial and other abuses of Rosemary. (Id. at ¶ 55.)

When Ms. Coles attempted to collect legal fees from Rosemary in connection with the conservatorship proceedings, the request was denied and the Court made comments including: the “services were provided at the behest of Patrick Leahy, and were directed by him;” and “although Ms. Coles may in fact be entitled to payment for her fees, the payor is more properly identified as Patrick Leahy, to whose primary benefit the legal services were undertaken, not the conservatorship estate of Rosemary . . . “ (Id. at ¶ 57.) At deposition, on March 9, 2022, Leahy “admitted he constructed the objection, sent the emails to Ms. Coles and that Rosemary was not capable of either accessing her emails or putting together the facts inside the objection due to her cognitive condition, which Ms. Coles knew or should have known.” (Id. at ¶ 59.) “Ms. Coles had to have known at the time the Objection was prepared and filed that the content of the Objection came from Mr. Leahy and not Rosemary.” (Id. at ¶ 60.)

On April 19, 2023, Help Unlimited filed a cross-complaint against Honor Home Care Services California, Inc. (“Honor Home Care”) and Leahy. Plaintiffs dismissed Help Unlimited, without prejudice, on May 23, 2023. On May 26, 2023, Plaintiffs, rather than making a “Doe” amendment, filed an “amendment to complaint” purporting to correct “Help Unlimited” to Honor Home Care. Subsequently, on July 11, 2023, Plaintiffs dismissed Honor Home Care without prejudice.

On April 20, 2023, Ms. Coles filed a demurrer to Plaintiffs’ FAC.

Defendants Wollum and Reynolds also demurred to the FAC and filed a motion to strike but subsequently took both off calendar.

Rather than oppose them on substantive grounds, on July 5, 2023, Plaintiffs filed “responses” to the demurrers and motions to strike. The responses stated that Plaintiffs had elected to amend the FAC in response to the demurrers and motions to strike.

On July 6, 2023, Plaintiffs filed their motion for leave to file [second] amended complaint. On July 11, 2023, Ms. Coles filed an opposition to Plaintiffs’ motion to amend.

On July 27, 2023, Plaintiffs filed an amended motion for leave to file [second] amended complaint.

On August 16, 2023, a hearing was held that addressed Defendants’ demurrer and motion to strike as well as Plaintiffs’ motion for leave to file a second amended complaint. As a result, among other orders, Defendants’ demurrer was sustained with leave to amend, Plaintiffs’ motion for leave to file second amended complaint was taken off-calendar because it was not timely served, and Plaintiffs were ordered to file and serve their second amended complaint no later than September 6, 2023.

Along with filing their second amended complaint, as ordered, Plaintiffs filed the present motion for leave to file second amended complaint on September 7, 2023. Note: Plaintiffs’ second amended complaint was filed one day late due to an issue with the Court’s electronic filing system. It will not be considered late. Plaintiffs argue that the motion is necessary in response to the issues raised by demurrer and motion to strike filed by Ms. Coles. Plaintiffs further argue that the motion is necessary to properly add Defendant Honor Home Care.

No oppositions, or other documents, have been filed by any Defendant with respect to the current motion.

Analysis

As an initial matter, the motion as it pertains to issues raised in the prior demurrer and motion to strike need not be ruled upon. The Court has already sustained the demurrer and Plaintiffs were given leave to amend. No further permission to amend the complaint, with respect to the causes of action contained therein, is needed at this time.

The only remaining issue is that of adding Honor Home Care as a Defendant.

“The Court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect . . .” (Code Civ. Proc., § 473, subd. (a)(1).)

“If discovery and investigation develop factual grounds justifying a timely amendment to a pleading, leave to amend must be liberally granted.” (Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596.)

“While a motion to permit an amendment to a pleading to be filed is one addressed to the discretion of the Court, the exercise of this discretion must be sound and reasonable and not arbitrary or capricious. [Citations.] And it is a rare case in which ‘ “a Court will be justified in refusing a party leave to amend his pleadings so that he may properly present his case.” ’ [Citations.] If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion. (Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530.)

“[I]t is an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.)

Here, of all the Defendants, the only one to have answered is Leahy as to the original complaint. There is currently no trial date, and it does not appear that any party will be prejudiced by allowing Plaintiffs to add Honor Home Care as a Defendant. As such, the motion will be granted.

To the extent that Plaintiffs request that the Court make any rulings regarding relation back, the Court will decline. An amended complaint, making substantive changes, starts a new round of pleadings and the amended pleading is subject to the same pleading challenges as the original. Honor Home Care would be deprived of due process were the Court to make rulings in this regard without affording Honor Home Care an opportunity to brief the issue and present argument.