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

Case Number

20CV04132

Case Type

Hearing Date / Time

Wed, 01/08/2025 - 10:00

Nature of Proceedings

Motion To Quash Plaintiffs’ Third Amended Summons, Amendments and Third 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, Rimon Law, P.C., Jason P. Koch, Law Office of Jason P. Koch

                                   

For Defendant Patrick Leahy: Self-Represented

                                   

For Defendants Channe Coles and the Law Office of Channe G. Coles: R. Chris Kroes, Linda Elias-Wheelock, McCarthy & Kroes

For Defendants Patricia Wollum and Susan Reynolds: Gregory K. Sabo, David A. Napper, Gregory K. Sabo, Benjamin Nachimson, Chapman Glucksman

For Defendant Honor Home Care Services California, Inc. [specially appearing]: Marilyn R. Victor, Kevin I. Kilroy, Wood, Smith, Henning &Berman LLP

RULING

For all reasons discussed herein, the motion of Honor Home Care Services California, Inc., to quash Plaintiffs’ third amended summons, amendments, and third amended complaint is DENIED. Honor Home Care Services California, Inc., shall file and serve its responsive pleading within the time prescribed in Code of Civil Procedure section 418.10, subdivision (b).

Background

On December 11, 2020, Plaintiff Mark Sellars (Sellars) filed an original complaint in this action alleging two causes of action for elder abuse and financial elder abuse against Defendant Patrick Leahy (Leahy). As alleged in the original complaint, Sellars is the biological son of Rosemary Free Leahy (Rosemary) and the Trustee of the Rosemary Free Trust u/d/t dated September 13, 2000 (the Trust). (Complaint, ¶ 1.) (Note: Due to common surnames and to avoid confusion, the Court will refer to Rosemary by her first name. No disrespect is intended.) Leahy is Rosemary’s spouse. (Id. at ¶ 3.)

On January 5, 2021, Leahy filed an answer to the original complaint responding to its allegations and asserting ten affirmative defenses.

On January 23, 2023, the Court entered a Minute Order granting the motion of Sellars for leave to file a first amended complaint (the FAC), which Sellars filed on the same date. The FAC added as Plaintiffs Sellars as the Trustee of the Trust and Rebecca Morin (Morin), and as Defendants the Law Office of Channe G. Coles, Channe Coles (Coles) (collectively, the Coles Defendants), Patricia Wollum (Wollum), Susan Reynolds (Reynolds), and Help Unlimited, Inc., (Help Unlimited). The FAC alleges five causes of action: (1) elder abuse; (2) financial elder abuse; (3) legal malpractice (against the Coles Defendants only); (4) intentional infliction of emotional distress; and (5) negligence.

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

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

On May 23, 2023, Plaintiffs dismissed without prejudice 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.

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

On July 5, 2023, Plaintiffs separately filed responses to the demurrers and motions to strike of the Coles Defendants, Wollum, and Reynolds, stating that Plaintiffs elect to amend the FAC by filing an amended pleading (incorrectly referred to by Plaintiffs as a “third” amended complaint) to address issues raised in the respective demurrers and motions to strike of the Coles Defendants, Wollum, and Reynolds.

On July 6, 2023, Plaintiffs filed a motion for leave to file what Plaintiffs refer to as a “third” amended complaint (which is procedurally a second amended complaint), which the Coles Defendants opposed.

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

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

On July 19, 2023, the Court continued the hearing on the demurrer and motion to strike of the Coles Defendants, to permit these motions to be heard with Plaintiffs’ motion for leave to file an amended complaint.

On July 26, 2023, Plaintiffs filed an amended motion for leave to file an amended complaint (again incorrectly referred to by Plaintiffs as a “third” amended complaint), ostensibly in response to the Coles Defendants’ opposition to Plaintiffs’ original motion for leave.

On August 16, 2023, the Court ordered the motion of Plaintiffs for leave to file a “third” (i.e., second) amended complaint off-calendar due to service deficiencies, sustained the demurrer of the Coles Defendants to the FAC with leave to amend, and ordered the Coles Defendants’ motion to strike portions of the FAC off-calendar. (Aug. 16, 2023, Minute Order.)

On September 7, 2023, Plaintiffs filed a motion for an order authorizing the filing of a second amended complaint to add Honor as a Defendant. On the same date, Plaintiffs separately filed a second amended complaint naming Honor as a Defendant, and alleging six causes of action: (1) elder abuse; (2) financial elder abuse; (3) legal malpractice (against the Coles Defendants only); (4) intentional infliction of emotional distress; and (5) negligence.

On October 4, 2023, the Court entered a Minute Order granting the motion of Plaintiffs to file the second amended complaint to add Honor as a Defendant.

On October 6, 2023, the Coles Defendants filed a demurrer to and a motion to strike portions of the SAC, each of which were opposed by Plaintiffs.

On October 10, 2023, Plaintiffs filed a verified second amended complaint which appears to be identical to the second amended complaint filed by Plaintiffs on September 7, 2023. Therefore, the Court will refer to these pleadings, collectively, as the SAC.

On November 8, 2023, Wollum and Reynolds filed a demurrer to and a motion to strike portions of the SAC, each of which were opposed by Plaintiffs.

On November 22, 2023, the Court entered a Minute Order overruling the demurrer and motion to strike filed by the Coles Defendants on October 6, 2023. The Coles Defendants filed their answer to the SAC on December 5, 2023, responding to its allegations and asserting nineteen affirmative defenses.

On December 20, 2023, the Court entered a Minute Order denying the motion of Wollum and Reynolds to strike portions of the SAC, and sustaining the demurrer of Wollum and Reynolds as to the second cause of action alleged in the SAC only. (See Dec. 20, 2023, Minute Order.) The Court ordered Plaintiffs to file and serve a third amended complaint, if any, on or before January 12, 2024. (Ibid.)

On January 12, 2024, Plaintiffs filed a verified third amended complaint (the TAC) alleging five causes of action: (1) elder abuse; (2) financial elder abuse; (3) legal malpractice (against the Coles Defendants only); (4) intentional infliction of emotional distress; and (5) negligence. The allegations of the TAC are set forth in 151 factually detailed paragraphs presented in a narrative fashion which at times lacks chronological coherence. Plaintiffs essentially allege that Defendants abused Rosemary financially and emotionally, and that Coles untruthfully represented that she was working for Rosemary when she was in fact working for Leahy against Rosemary’s interests.

On February 16, 2024, Plaintiffs filed a request for dismissal of the second cause of action for financial elder abuse alleged in the TAC as to Wollum and Reynolds only.

On February 20, 2024, Wollum and Reynolds answered the TAC.

On March 22, 2024, Honor filed a motion to quash service of the TAC and the third amended summons on the grounds that these documents are inconsistent and defective, that the TAC is not drawn in conformity with the Court’s prior order, and that Plaintiffs never filed or served a “Doe Amendment” as to Honor or identified Honor as any particular Doe. Plaintiffs did not oppose the March 22, 2024, motion of Honor.  

On May 1, 2024, the Court entered a Minute Order granting the motion of Honor to quash service of the TAC and third amended summons.

On August 21, 2024, Plaintiffs filed an amendment to the TAC substituting “Honor Home Care California, Inc.,” for fictitious Defendant Doe 1. On August 26, 2024, Plaintiffs filed a second amendment to the TAC to correct the name of Honor.

On October 9, 2024, Plaintiffs filed a proof of service of the summons on the TAC, the TAC, and additional documents further described in the proof of service, on Honor and other parties named in the action.

On November 6, 2024, Honor filed a second motion for an order quashing service of the third amended summons, the first and second amendments to the TAC further described above, and the TAC on the grounds that these documents are untimely, defective, improper, and insufficient to confer jurisdiction over Honor. The present motion to quash of Honor is opposed by Plaintiffs.

Analysis

A Defendant may serve and file a notice of a motion to quash service of a summons on the ground of the court’s lack of jurisdiction over that Defendant. (Code Civ. Proc., § 418.10, subd. (a)(1).) Plaintiffs do not contend, nor does the undisputed record before the Court indicate, that the present motion of Honor is untimely. (Code Civ. Proc., § 418.10, subd. (a) [requiring motion to be served and filed on or before the last day of Defendant’s time to plead].) (Note: Undesignated code references herein shall be to the Code of Civil Procedure unless otherwise indicated.)

Honor contends that the summons and TAC are defective because it is not possible to determine from their contents the identity of the person or entity, or in what capacity they are, being served. Honor further contends that the amendments to the TAC filed by Plaintiffs and further described above are improper because they are purportedly altered, and because Plaintiffs were aware of Honor’s identity before filing the amendments.

Honor further asserts that under section 583.210, Plaintiffs were required to identify and serve Honor within three years after the present action was commenced by the filing of the original complaint by Sellars on December 11, 2020. Because the three-year time period prescribed in section 583.201 expired on December 11, 2023, and because Plaintiffs were aware of the identity of Honor during this time, Honor argues that the attempt by Plaintiffs to serve it with the TAC, its amendments, and the summons on October 7, 2024, was improper and untimely. For this reason, Honor contends, the action as to Honor must be dismissed.

As more fully discussed below, the manner in which Plaintiffs have referred to Honor in their various motions and pleadings including those in which Plaintiffs sought leave to amend to add Honor as a Defendant in this action, and the filing by Plaintiffs of what appear to be duplicative and repetitive amendments and motions with the Court, has created significant confusion as to the manner in which Plaintiffs intend to add Honor as a party Defendant in this action.

For example, the September 7, 2023, motion of Plaintiffs for an order grating leave to add Honor as a Defendant in this action was made pursuant to section 473, subdivision (a)(1), which authorizes a court to allow a party to amend a pleading on specified statutory grounds, and not section 474, which authorizes a Plaintiff to amend its pleading to designate a fictitiously named Defendant by that Defendant’s true name once it is discovered by the Plaintiff. Notwithstanding the procedural differences between these code sections and for reasons unknown to the Court, Plaintiffs confusingly referred to Honor in their September 7, 2023, motion, and their proposed SAC, as an unspecified “Doe” Defendant notwithstanding that the original complaint filed in this action, in which Plaintiffs first designate Does 1 through 10 as fictitiously named Defendants, does not include any charging allegations against the employer of Wollum and Reynolds.

In addition, though Plaintiffs also name in their FAC fictitious Defendants Does 1 through 10 separately from Help Unlimited, who is also named as a Defendant in the FAC, and assert in the FAC charging allegations against Help Unlimited including that it is or was the employer of Wollum and Reynolds, Plaintiffs do not identify Help Unlimited as the true name of any “Doe” Defendant designated in either the complaint or FAC. (See FAC, ¶¶ 2, 14-15, 20-22, & 63-68.)

As reflected in its October 4, 2023, Minute Order, the Court effectively authorized Plaintiffs to amend the FAC to name Honor directly as a party Defendant in the action. The Court did not, however, address or authorize the substitution of Honor as the true name of any Defendant designated by Plaintiffs as a “Doe”. (See, e.g., Kerr-Mcgee Chemical Corp. v. Superior Court (1984) 160 Cal.App.3d 594, 597-601 [general discussion of the manner in which an entity may become a party Defendant].) For these same reasons, it appears to the Court that the amendments to the TAC filed by Plaintiffs on August 21 and 25, 2024, are or may be duplicative or redundant.

Though Plaintiffs refer to Honor as a “Doe” Defendant in both the SAC and TAC, thereby causing significant confusion for the parties to this action and the Court, a further review of the history of this action, including the nature of the order sought in Plaintiffs’ September 7, 2023, motion described above and the charging allegations of the complaint and FAC, indicate that Honor became a party to this action by being named directly as a new party Defendant pursuant to the Court’s October 4, 2023, Minute Order, rather than by being named as served as a fictitiously named “Doe” Defendant and thereafter substituting Honor as the true name of that “Doe” Defendant. (See, e.g., Warren v. Atchison, T. & S. F. Ry. Co. (1971) 19 Cal.App.3d 24, 38-39 (Warren) [lack of “charging” allegations in prior pleadings showed that Defendants were added as new parties].)

Relevant here based on the reasoning and analysis further discussed above, section 412.20, subdivision (a), sets forth the required contents of a summons directed to a named Defendant. The summons filed with the Court by Plaintiffs on October 2, 2024, is prepared on a form approved by the Judicial Council and therefore is “deemed to comply with” the requirements of section 412.20. (Code Civ. Proc., § 412.20, subd. (c).) Furthermore, the summons includes the names of the parties to this action, is directed to Honor as a Defendant named in the TAC, and includes a directive that Honor file a written pleading in response to the TAC within 30 days after the summons is served. (Code Civ. Proc., § 412.20, subd. (a), (a)(2), & (a)(3).) Honor offers no information or evidence to show why the summons fails to contain each of the remaining items described in subdivision (a) of section 412.20, including subdivisions (a)(1) and (a)(4) through (6).

Though the summons includes language stating that Honor was previously named in this action erroneously, and considering the manner in which Honor has been named as a party Defendant in the action as further discussed above, Honor has not demonstrated why the summons fails to sufficiently identify or is not directed to Honor in compliance with section 412.20. (See Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, 857 [jurisdiction is obtained if person is aware that he is named in an erroneous matter and service is otherwise proper].)

In addition, because Honor was effectively named as a Defendant in the SAC with leave of court pursuant to the October 4, 2024, Minute Order, and not substituted as the true name of a Defendant designated in the original complaint or FAC as a Doe, the action did not commence as to Honor until the date on which the SAC was effectively filed. (Warren, supra, 19 Cal.App.3d at pp. 37-38.) Based on the date of filing of the SAC as further discussed above and to the extent service of the TAC was effectively made on Honor on October 7, 2024, service of the TAC was not be untimely under subdivision (a) of section 583.210, as Honor contends. (Ibid.)

To the extent Honor asserts that it will suffer prejudice if its motion is denied based on the proximity of the January 29, 2025, trial confirmation conference present scheduled in this matter, and the need for Honor to conduct additional discovery or prepare for trial, there is no information or evidence to suggest that Honor is foreclosed or prevented from conducting any discovery it deems necessary prior to trial, or from making any procedurally appropriate motions to address these matters including, if appropriate, a trial continuance. Honor is also not precluded from bringing any procedurally appropriate pleading challenges it deems necessary to address what Honor contends are deficiencies in the TAC. The Court expresses no opinion on these matters at this stage of the proceedings.

Honor offers no additional arguments apart from those further discussed above to show why service of the summons and TAC in the manner reflected in the proof of service filed by Plaintiffs on October 9, 2024 (the proof of service), is otherwise ineffective or improper. The Court further notes that the proof of service is signed under penalty of perjury by Brandon Ortiz (Ortiz), who is identified as a registered California process server. (Oct. 9, 2024, Proof of Service, ¶¶ 7-9.) Ortiz declares that the documents described in the proof of service were personally served on Jennifer Lee of Incorporating Services, LTD, on behalf of Honor or as person authorized to accept service of process, on October 7, 2024. (Id. at ¶¶ 3-5.) Notwithstanding that the proof of service includes language stating that the summons was completed as the person sued under the fictitious name of Doe 1 which, as further discussed above, appears to be either erroneous, redundant, or duplicative, Honor offers no explanation to show why the proof of service, or service of the summons on Honor in the manner described in that document, is otherwise improper or fails to comply with code requirements. (See, e.g., Code Civ. Proc., §§ 413.10 et seq.; 414.10; 415.10; 416.10, 417.10 et seq.) Therefore, and for all reasons discussed above, the Court will deny the motion of Honor to quash service of the summons and TAC.

Request for judicial notice:

In support of the present motion, Honor requests judicial notice of the original complaint filed by Sellars in this action; the motion of Sellars for leave to file the FAC; the cross-complaint of Help Unlimited; the second amendment to the complaint filed by Plaintiffs on May 26, 2023; the motion of Plaintiffs for leave to file the SAC; the TAC; the Court’s June 5, 2024, Minute Order; the amendments to the TAC filed by Plaintiffs on August 21 and 26, 2024; and the summons filed by Plaintiffs on October 2, 2024. (RJN, ¶¶ 1-10.)

The documents for which judicial notice is requested are court records and within the general subject matter for which judicial notice is permitted. (See Evid. Code, § 452, subd. (d)(1).) Though not necessary for present purposes, the Court will grant judicial notice of the documents described above and in paragraphs 1 through 10 of Honor’s request. Judicial notice does not extend to the truth of any facts which are subject to dispute or to any hearsay or irrelevant matter appearing in these documents. (Johnson & Johnson v Superior Court (2011) 192 Cal.App.4th 757, 768.)