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

Case Number

20CV04132

Case Type

Hearing Date / Time

Wed, 02/14/2024 - 10:00

Nature of Proceedings

Defendant Channe Coles’ Application for Order to Show Cause why Plaintiffs and Plaintiffs’ Counsel Should not be held in Contempt

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 and Cross-Complainant Help Unlimited, Inc.: Brandt O. Caudill, Joan E. Trimble

For Defendant Patrick Leahy: Self-Represented

        

RULING

The Court will call the CMC and the L&M matters at 10am; no appearance is required at 8:30am for the CMC.

The Motion: For the reasons set forth herein:

1. Defendant Channe Coles’ Application for Order to Show Cause why Plaintiffs and Plaintiffs’ Counsel Should not be held in Contempt is granted. An Order to Show Cause re: Contempt shall issue.
2. Counsel for Defendant Channe Coles and counsel for Plaintiffs Rebecca Morin and Mark Sellars are ordered to appear at the hearing on this matter, either in person or remotely, to determine an appropriate date for an evidentiary hearing.
3. Defendant Coles is to give notice of this ruling to all parties.

The CMC: Trial is set for 11/20/24 at 11:30am; MSC 10/23/24 at 8:30am in Department #5; next CMC 6/12/24 [If necessary, we will bifurcate Honor Home Care; the Court notes they were dismissed from an earlier complaint on 7/19/23].

This case was filed in 11/2020; we are now on the 3^rd Amended complaint; the Court finds it needs to be resolved.

Background

This action was commenced by the filing of a complaint on December 11, 2020, by Plaintiff Mark Sellars (Sellars), in which Sellars alleges he is the biological son of Rosemary Free Leahy (Rosemary) and the trustee of the Rosemary Free Trust u/d/t dated September 13, 2000. (Note: Due to common surnames and to avoid confusion, the Court will refer to Rosemary by her first name. No disrespect is intended.) The original complaint alleges two causes of action against Defendant Patrick Leahy (Leahy) for elder abuse and financial elder abuse of Rosemary. Leahy is Rosemary’s spouse.

Leahy, who is self-represented, filed an answer to the original complaint on January 5, 2021, generally denying certain allegations and admitting others and asserting ten affirmative defenses.

On January 23, 2023, the Court granted the motion of Sellars for leave to file a first amended complaint (FAC). Sellars filed the FAC on the same date. The FAC added named Plaintiffs Sellars as trustee of the trust and Rebecca Morin (Morin) who is Rosemary’s conservator, and named Defendants the Law Office of Channe G. Coles, Channe Coles (Coles) (collectively, the Coles Defendants), Patricia Wollum (Wollum), Susan Reynolds (Reynolds), and Help Unlimited. The FAC alleges five causes of action: (1) elder abuse (against all Defendants); (2) financial elder abuse (against all Defendants); (3) legal malpractice (against the Coles Defendants); (4) intentional infliction of emotional distress (against all Defendants); and (5) negligence (against all Defendants).

On April 19, 2023, Help Unlimited filed a verified answer to the FAC and a cross-complaint against cross-Defendants Leahy and Honor Home Care Services California, Inc. (Honor), alleging causes of action for indemnity, contribution, and declaratory relief.

On April 20, 2023, the Coles Defendants filed a demurrer to the FAC together with a motion to strike portions of the FAC.

On May 23, 2023, Plaintiffs filed a request for dismissal without prejudice of all claims and causes of action alleged against Help Unlimited.

On May 26, 2023, Help Unlimited filed a request for dismissal of its cross-complaint against Leahy and Honor, without prejudice.

Also on May 26, 2023, Plaintiffs filed an amendment to the FAC to substitute Honor for Help Unlimited wherever it appeared in the FAC.

On June 22, 2023, Wollum and Reynolds filed a demurrer to the FAC together with a motion to strike portions of the FAC.

On July 5, 2023, Plaintiffs filed responses to the demurrer and motion to strike of the Coles Defendants and the demurrer and motion to strike of Wollum and Reynolds, asserting that Plaintiffs have elected to amend the FAC and to amend a “Doe” amendment (which Plaintiffs contend was filed as a second amended complaint), by filing a third amended complaint to address the issues raised by the Coles Defendants, Wollum, and Reynolds’ respective demurrers and motions to strike.

On July 6, 2023, Plaintiffs filed a motion for leave to file a third amended complaint which Plaintiffs asserted was prepared in response to the demurrers and motions to strike discussed above. The motion was opposed by the Coles Defendants.

On July 11, 2023, Plaintiffs filed a request for dismissal of all causes of action against Honor, without prejudice.

On July 12, 2023, Wollum and Reynolds filed a notice requesting that the Court take their demurrer and motion to strike off-calendar.

On July 19, 2023, the Court continued the hearing on the pending demurrer to and motion to strike the FAC filed by the Coles Defendants to be heard together with Plaintiffs’ motion for leave to file a third amended complaint.

On July 26, 2023, Plaintiffs filed an amended motion for leave to file a third amended complaint.

On August 16, 2023, the Court ordered the motion of Plaintiffs for leave to file a third amended complaint off-calendar based on improper and untimely service of that motion. (See Aug. 16, 2023, Minute Order.)

In addition, because Plaintiffs attempted to file an amended complaint rather than a substantive opposition to the demurrer, the Court sustained the demurrer of the Coles Defendants to the first amended complaint based on the Court’s finding that Plaintiffs had implicitly acknowledged that the Coles Defendants’ demurrer had merit. The Court granted Plaintiffs leave to amend and ordered Plaintiffs to file and serve their second amended complaint no later than September 6, 2023. (See Aug. 16, 2023, Minute Order.

On September 7, 2023, Plaintiffs filed a motion for leave to file a second amended complaint to add Honor as a “Doe” Defendant.

Also on September 7, 2023, Plaintiffs filed a second amended complaint (SAC) adding Honor as a Defendant and alleging six causes of action: (1) elder abuse (against all Defendants); (2) financial elder abuse (against all Defendants); (3) legal malpractice (against the Coles Defendants); (4) intentional infliction of emotional distress (against all Defendants); and (5) negligence (against all Defendants).

On October 4, 2023, the Court granted Plaintiffs’ motion for leave to file the SAC.

Plaintiffs filed identical versions of the SAC on September 7, 2023, and October 10, 2023.

Plaintiffs filed the operative third amended complaint (TAC) on January 12, 2024, which added Honor back into the action and made other minor modifications.

The allegations of the TAC are set forth in 151 factually detailed paragraphs. Plaintiffs essentially allege that Defendants abused Rosemary financially and emotionally. Plaintiffs allege that Coles untruthfully represented that she was working for Rosemary when she was in fact working for Patrick against Rosemary’s interests.

On September 7, 2023, Coles served form interrogatories (set one) and a demand for production of documents (set one) upon Plaintiffs. Because Plaintiffs provided no responses to the discovery, despite assurances that he would, Coles filed a motion to compel which was granted on December 27, 2023. Plaintiffs were ordered to provide verified responses to the discovery, without objection, no later than January 10, 2024. Sanctions were awarded in the amount of $2,500 in favor of Coles.

On January 9, 2024, Plaintiffs’ counsel emailed Coles’ counsel with attachments from a website that did not work. (Murillo Dec., ¶ 6 & Exh. 2.) On January 16, 2024, an envelope was placed through the mail slot of Coles’ counsel which contained a flash drive that did not work. (Murillo Dec., ¶ 7 & Exh. 3.) Coles’ counsel has notified Plaintiffs’ counsel that they were unable to access any documents, but Plaintiffs’ counsel has never provided usable replacements or offered to produce paper copies.

Coles now seeks an order to show cause why Plaintiffs Mark Sellars and Rebecca Morin, and their attorney, should not be adjudged in contempt of Court.

Plaintiffs oppose the motion but admit that “the production of documents requested has been untimely.” (Opposition, p. 4, l. 10.)  Plaintiffs essentially argue that the discovery requests are overbroad. Other than that, Plaintiffs’ counsel points to unfamiliarity with his new firm’s systems, a lack of legal support, and tragic personal issues.

Analysis

As an initial matter, Plaintiffs’ argument that the requests are overbroad and burdensome is irrelevant. Plaintiffs had the opportunity to oppose the motion to compel, which would have been the proper time to make that argument, yet they failed to do so.

“Disobedience of any lawful judgment, order, or process of the Court” is punishable as a contempt of Court pursuant to Code of Civil Procedure section 1209, subdivision (a)(5).

“The essential facts to establish contempt for violation of a Court order are “ ‘(1) the making of the order, (2) knowledge of the order, (3) ability of the respondent to render compliance, and (4) willful disobedience of the order.’ ” (Moore v. Superior Court of Orange County (2020) 57 Cal.App.5th 441, 456.)

“ ‘It is well settled that the Court has inherent power to enforce compliance with its lawful orders through contempt.’ [Citation.]” (In re M.R. (2013) 220 Cal.App.4th 49, 56.)

“Although the Court has inherent power to punish contempts of Court, the Legislature may place reasonable limitations on this power. [Citations.] The Legislature has enacted such limitations on the Court’s inherent power in Code of Civil Procedure sections 1209 through 1222. Contempt proceedings under these statutes may arise out of either civil or criminal litigation. [Citation.] “ ‘Because of the potential punishment, [a contempt proceeding] is considered quasi-criminal, and the Defendant possesses some of the rights of a criminal Defendant.’ ” [Citation.] Among other things, a contemnor’s guilt must be proved beyond a reasonable doubt when punitive sanctions are imposed [citation], and the accused is entitled to a hearing at which the accused may call and cross-examine witnesses.” (Id. at p. 57.)

“A contemptuous act committed in the Court’s presence is referred to as a direct contempt and may be addressed summarily. [Citations.] An alleged act of contempt not committed in the immediate view and presence of the Court is referred to as an indirect contempt. [Citation.] “ ‘ “The facts supporting indirect contempt arise outside the judge’s presence, requiring a more elaborate procedure to notify the person charged and to afford an opportunity to be heard. [Citations.] A common example is a party’s disobedience of a judge’s order.” ’ ” (Ibid.) “The accused is entitled to a full and fair hearing that satisfies due process.” (Id. at p. 58.)

Plaintiffs’ counsel represents that on January 31, 2024, he “uploaded thousands of documents as full and complete responses to the documents requests made by counsel for the Coles’ Defendants.” (Tappeiner Dec., ¶ 18.) He believes the document production to be complete. (Ibid.)

In reply to Plaintiffs’ opposition, Coles disputes that any documents have been produced or that any code-compliant responses to form interrogatories have been served. (Reply, p. 3, ll. 24-27; Kroes Dec., ¶¶ 7, 15.)

Coles has given Plaintiffs numerous extensions and opportunities to comply with the Courts December 27, 2023 discovery order. (Kroes Dec., ¶¶ 11, 12, 13, 14.) Despite the extensions and opportunities to provide proper responses, Plaintiffs have failed to comply. These circumstances justify issuing an order to show cause re: contempt and to set a hearing date regarding the same.

The application will be granted.