Mark Sellars et al v Patrick Leahy et al

Case Number

20CV04132

Case Type

Hearing Date / Time

Wed, 03/12/2025 - 10:00

Nature of Proceedings

1) Mtn to Quash Business Rcords, Subpoenas and for a Protective Order; 2) Motion To Strike Portions Of Plaintiffs’ 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, The Law Office Of David J.

Tappeiner, 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.: Marilyn R. Victor, Kevin I. Kilroy, Wood, Smith, Henning & Berman LLP

RULINGS

(1) For all reasons discussed herein, the motion of defendant Channe Coles to quash business records subpoenas and for a protective order is denied.

(2) For all reasons discussed herein, the motion of defendant Honor Home Care Services California, Inc., to strike portions of plaintiffs’ third amended complaint is granted. The following allegations, to the extent they are directed or effective as to defendant Honor Home Care Services California, Inc., only, are stricken from plaintiffs’ third amended complaint: (1) page 59, lines 11-12 [“Plaintiffs herein are entitled to damages and an award of attorneys’ fees and costs against each named Defendant, in such amount as proved at trial”]; and (2) prayer paragraphs 4 and 5. Except as herein granted, the motion is otherwise denied.

(3) The trial date of 8/20/25 and the MSC date of 7/25/25 and the final CMC date of 6/4/25 are confirmed.

Background

On January 12, 2024, plaintiffs Mark Sellars (Sellars), individually and as the Trustee of the Rosemary Free Trust u/d/t dated September 13, 2000 (the Trust), and Rebecca Morin (Morin), as the Conservator of the Estate and Person of Rosemary Free Leahy, filed a third amended complaint in this action (the TAC) against defendants Patrick Leahy (Leahy), Channe Coles (Coles), the Law Office of Channe G. Coles (the Coles Law Office), Patricia Wollum (Wollum), Susan Reynolds (Susan), and Honor Home Care Services California, Inc. (Honor) (collectively, defendants). The TAC is, for present purposes, the operative pleading.

The allegations of the TAC are set forth in 151 factually detailed paragraphs, and are presented in a narrative fashion which at times lack coherence. As alleged in the TAC:

Sellars and Morin are, respectively, the son and daughter of Rosemary Free Leahy (Rosemary). (TAC, ¶¶ 1, 4 & 12-13.) (Note: To avoid confusion due to common surnames, the Court will refer to Rosemary by her first name. No disrespect is intended.) Leahy is Rosemary’s spouse. (TAC, ¶¶ 1 & 14.)

In 2017, Rosemary’s primary physician, Dr. Robert Byers (Dr. Byers), indicated that he believed Rosemary might be suffering from Alzheimer’s disease. (TAC, ¶ 32.) Rosemary asked Sellars to move into her home to evaluate Rosemary’s situation and render assistance. (TAC, ¶  34.)

When Leahy learned of Dr. Byers’ diagnosis, Leahy removed Rosemary from Dr. Byer’s care. (TAC, ¶ 32.) After Mark moved into Rosemary’s home, he learned that, among other things, Rosemary had missed doctor appointments, could not drive and was relying on Leahy for appointments and transportation, was having serious financial issues, and that Leahy was spending Rosemary’s money on gambling and interfering with Rosemary’s ability to communicate with her family members. (TAC, ¶¶ 35-39.)

On December 5, 2018, Sellars filed a petition (the Conservatorship Petition or, at times, Conservatorship Proceeding) requesting to be appointed as Rosemary’s conservator. (TAC, ¶ 2.) In connection with the Conservatorship Proceeding, Rosemary was examined by Dr. Rebecca Goodman (Dr. Goodman), who concluded that Rosemary suffered from moderate dementia, that Rosemary’s memory was severely impaired, and that Rosemary was disoriented and lacked awareness about her condition and family dynamics. (TAC, ¶  62.) Dr. Goodman confirmed the appropriateness of having a conservator appointed for Rosemary. (TAC, ¶  62.)

On January 21, 2019, a verified objection (the Objection) to the Conservatorship Petition was filed by Coles in the Conservatorship Proceeding, purportedly on Rosemary’s behalf. (TAC, ¶ 63 & Exh. D.) The Objection included representations that a conservatorship was unnecessary, that Rosemary was not incapacitated or suffering from Alzheimer’s disease or dementia, that Rosemary was receiving excellent medical care, that Rosemary had voluntarily chosen not to see or speak to any of her children or grandchildren, that Sellars was attempting to cause harm to Rosemary, and that Rosemary’s finances were protected. (TAC, ¶ 64.)

Coles had Rosemary sign the Objection despite the fact that email correspondence written by Leahy from Rosemary’s email address shows that the Objection was written by Leahy and Coles. (TAC, ¶¶ 65 & 74.) Coles also met with Rosemary in person and knew or should have known that Rosemary did not have the memory or capacity to provide the information used by Coles to prepare the Objection, and that Coles was communicating with Leahy and not Rosemary. (TAC, ¶¶ 80-82 & 88.)

Once Dr. Goodman’s findings verifying Rosemary’s incapacity were filed with the Court, Leahy and Coles withdrew their claim that a conservatorship was unnecessary and instead objected to the appointment of Sellars as Rosemary’s conservator. (TAC, ¶ 66.) Coles prepared an affidavit to be signed by Rosemary and purporting to revoke an Advance Health Care Directive and power of attorney executed by Rosemary in 2000 and under which Sellars was named as Rosemary’s primary agent. (TAC, ¶ 67 & Exh. E.)

To avoid further proceedings over Rosemary’s conservatorship, Sellars agreed to the appointment of professional fiduciary Jacquelyn Quinn (Quinn) as Rosemary’s conservator. (TAC, ¶ 68.) The Court granted the Conservatorship Petition, and established a temporary conservatorship for Rosemary on March 21, 2019. (TAC, ¶ 2.) Quinn served as Rosemary’s conservator from March 26, 2019, to January 23, 2020, when professional fiduciary Courtney DeSoto was appointed as Rosemary’s successor conservator. (TAC, ¶¶ 2, 4, & 68-69.)

Notwithstanding the conservatorship of Rosemary, Leahy continued to abuse Rosemary and interfere with Rosemary’s communications with her family. (TAC, ¶¶ 41 & 69.) Due to Leahy’s continued abuse of Rosemary and interference with Rosemary’s communications with her family, DeSoto commenced an action for an elder abuse restraining order (the TRO Action), in which the Court entered a restraining order (the TRO) against Leahy upon certain specified terms and conditions. (TAC, ¶ 41 & Exh. A.) The TRO authorized the audio or video recording of any visit with Rosemary provided a copy was sent to DeSoto’s counsel. (TAC, ¶¶ 41-42 & 69.)

Wollum and Reynolds were hired and paid to provide care to Rosemary and attend to her basic needs. (TAC, ¶¶ 50 & 52.) Honor is the employer of Wollum and Reynolds. (TAC, ¶¶ 8 & 61.) Wollum and Reynolds knew that Leahy had claims pending against him for abusing Rosemary, and were aware of the TRO entered in the TRO Action. (TAC, ¶ 50.)

Recordings made pursuant to the TRO confirmed that Wollum, and Reynolds had conspired with Leahy to, among other things, cast Rosemary’s family members in a negative light, discuss legal matters in front of Rosemary in violation of the TRO, conceal or fail to report the abuse of Rosemary by Leahy, and file false reports with DeSoto which omitted information regarding Leahy’s abuse of Rosemary, among other things. (TAC, ¶ 43-48, 52-53 & 55-60.) Reynolds also made a report to Honor, falsely claiming that a confrontation had occurred between Rosemary’s family and Leahy on January 11, 2021. (TAC, ¶¶ 58-59.)

In the TAC, plaintiffs allege five causes of action: (1) elder abuse (against all defendants); (2) financial elder abuse (against all defendants); (3) legal malpractice (against Coles and the Coles Law Office only); (4) intentional infliction of emotional distress (against all defendants); and (5) negligence (against all defendants).

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 an unopposed motion to quash service of the TAC and the third amended summons (the first motion to quash). On May 1, 2024, the Court entered a Minute Order granting the first motion to quash.

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 an amendment to the TAC to correct the name of Doe 1 to Honor.

On November 6, 2024, Honor filed a second motion for an order quashing service of the third amended summons, the amendments to the TAC described above, and the TAC (the second motion to quash). The second motion to quash was opposed by plaintiffs.

On January 8, 2025, the Court entered a Minute Order denying the second motion to quash, and ordering Honor to file and serve its responsive pleading within the time prescribed under Code of Civil Procedure section 418.10, subdivision (b).

Coles’ motion to quash:

On January 21, 2025, Coles filed a motion (the motion to quash) for an order quashing four deposition subpoenas for the production of business records (collectively, the deposition subpoenas) issued by plaintiffs and directed to Cristi Michelon Vasquez, the Law Office of Cristi Michelon Vasquez,, Channel Islands Fiduciary Group, and Dr. Goodman, on the grounds that plaintiffs have failed to provide a notice to consumer pursuant to Code of Civil Procedure section 1985.3. Coles also requests entry of a protective order with respect to the deposition subpoenas, and an award of sanctions against plaintiffs and their counsel.

In support of the motion to quash, Coles submits the declaration of her counsel, R. Chris Kroes (Kroes), who states that on January 13, 2025, counsel for plaintiff issued the deposition subpoenas, copies of which are attached to the Kroes declaration as exhibits A through D. (Kroes Decl., ¶ 2 & Exhs. A-D.) The deposition subpoenas include demands for “business records” described in attachment 3 to each of the subpoenas, to be released to Lawcopy on January 27, 2025. (Id. at ¶ 3 & Exhs. A-D.)

Kroes communicated with plaintiffs’ counsel on three occasions, requesting that plaintiffs issue a notice to consumer to permit Coles an ability to assert objections to within a sufficient time. (Kroes Decl., ¶ 4 & Exhs. E-G.) Plaintiffs’ counsel failed to respond to these communications. (Id. at ¶¶ 5-6.)

Court records reflect that plaintiffs have not filed timely opposition to the motion to quash.

Honor’s motion to strike:

On January 23, 2025, Honor filed a motion to strike portions of the TAC and the two amendments to the TAC filed by plaintiffs on August 21 and 26, 2024, further described above. Court records reflect that plaintiffs have not filed an opposition to the motion to strike.

Analysis

(1) Motion To Quash

Relevant here, a deposition subpoena commanding only the production of business records and things may be used to obtain discovery from a person who is not a party to an action. (Code Civ. Proc., §§ 2020.010, subd. (3), & 2020.020, subd. (b).) (Note: Undesignated code references herein shall be to the Code of Civil Procedure unless otherwise indicated.) Though there is no requirement to show good cause for the production of business records designated in a deposition subpoena, if the business records described in the deposition subpoena “are personal records pertaining to a consumer, the service of the deposition subpoena shall be accompanied either by a copy of the proof of service of the notice to the consumer described in subdivision (e) of Section 1985.3, or subdivision (b) of Section 1985.6, as applicable, or by the consumer’s written authorization to release personal records described in paragraph (2) of subdivision (c) of Section 1985.3, or paragraph (2) of subdivision (c) of Section 1985.6, as applicable.” (Code Civ. Proc., § 2020.410, subds. (c) & (d).)

The terms “personal records” of a “consumer” are defined in Code of Civil Procedure section 1985.3, subdivision (a)(1) and (2). Service of the notice to consumer described under section 2020.410 must be completed “[n]ot less than 10 days prior to the date for production” stated in the deposition subpoena, and “[a]t least five days prior to service upon the custodian of the records, plus the additional time provided by Section 1013 if service is by mail.” (Code Civ. Proc., § 1985.3, subd. (b)(2)-(3).)

“Any consumer whose personal records are sought by a subpoena duces tecum and who is a party to the civil action in which this subpoena duces tecum is served may, prior to the date for production, bring a motion under Section 1987.1 to quash or modify the subpoena duces tecum.” (Code Civ. Proc., § 1985.3, subd. (g); see also Code Civ. Proc., § 2020.030 [provisions of section 1985.3 apply to a deposition subpoena].) A motion to quash a deposition subpoena must be accompanied by a separate statement setting forth the documents or demands at issue, and the factual and legal reasons why their production should not be compelled, among other things. (Cal. Rules of Court, rule 3.1345(a)(5), (b), & (c).)

There exist procedural deficiencies in the motion to quash which prevent the Court from determining its merit. Coles has failed to submit with the motion to quash the separate statement required under California Rules of Court, rule 3.1345(a)(5). For this reason, the Court may deny the motion to quash. (Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 893.)

Coles’ failure to submit with the motion to quash an appropriate and sufficient separate statement as required by court rules also prevents the Court from determining whether plaintiffs were required to serve the notice described under section 1985.3. By way of example, it appears to the Court that each of the deposition subpoenas at issue demand the production of “writings”, as that term is defined in Evidence Code section 250, concerning the Conservatorship Proceeding, including writings between each deponent described above and: (1) Honor; (2) Rosemary; (3) Leahy; and (4) any other person or organization. (Kroes Decl., Exhs. A-D, Attachment 3.)

Coles, Leahy, and Honor are each parties to this action. Coles has failed to explain, with reasoned legal or factual argument set forth within an appropriate separate statement, whether the deposition subpoenas were or were not appropriately served on each party, or why service of the deposition subpoenas on these parties was insufficient to provide the requisite statutory notice. (Code Civ. Proc., § 1985.3, subd. (e); Inabnit v. Berkson (1988) 199 Cal.App.3d 1230, 1235-1236.) As to other persons or organizations described in the deposition subpoenas, Coles also fails to offer sufficient reasoned argument to show why or to what extent the writings to be produced by each deponent to Lawcopy consist of “personal records” of a “consumer” as those terms are defined in section 1985.3, subdivision (a).

Coles also fails to offer any information or argument within an appropriate separate statement sufficient to show why or to what extent the deposition subpoenas require each deponent to produce to Lawcopy any “employment records” of an “employee” as described under subdivision (a) of section 1985.6.

For all reasons further discussed above, Coles has failed to show that plaintiffs were required to serve the notice described in either subdivision (e) of section 1985.3, or subdivision (b) of section 1985.6. Further, Coles has failed to show good cause for a protective order under section 2025.420, subdivision (b), with respect to the writings described in the deposition subpoenas. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.) For these reasons, the Court will deny the motion to quash.

(2) Motion To Strike

“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof[.]” (Code Civ. Proc., § 435, subd. (b)(1).) Upon a motion to strike made under Code of Civil Procedure section 435, the court may “strike out any irrelevant, false, or improper matter inserted in any pleading” or “strike all or part of any pleading not filed in conformity with applicable law, court rules, or an order of the court.” (Code Civ. Proc., §436(a) & (b).) The grounds for a motion to strike must appear on the face of the pleading or from matters of which the court may take judicial notice. (Code Civ. Proc., § 437, subd. (a).)

Noted above, the motion to strike is directed in part to the amendments separately filed by plaintiffs on August 21 and 26, 2024, and described above. Matters alleged in these amendments are extrinsic to, and do not appear on the face of, the TAC. Therefore, and notwithstanding whether the amendments are proper subjects of judicial notice, the motion to strike as to these matters is procedurally inappropriate. (Code Civ. Proc., § 437, subd. (a); Spears v. Spears (2023) 97 Cal.App.5th 1294, 1301, fn. 5.)

Moreover, though the Court noted in its January 8, 2025, Minute Order that the amendments at issue are or may be duplicative or redundant, redundancy or repetitiveness is not a proper ground for a motion to strike. (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 890.) For all reasons discussed above, to the extent the motion to strike is directed to the amendments separately filed by plaintiffs on August 21 and 26, 2024, the motion will be denied.

Honor further asserts that the second cause of action for financial elder abuse arises solely from the acts of its employees, Wollum and Reynolds. Because Wollum and Reynolds have been dismissed from the second cause of action, Honor contends, there exist no remaining claim for financial elder abuse against these employees. Therefore, Honor argues, the second cause of action as to Honor should be stricken as to it.

Even if the Court were to assume without deciding that Honor’s objections to the second cause of action are sufficient to show that plaintiffs have failed to state facts sufficient to constitute a cause of action for financial elder abuse against Honor based on the dismissal of Wollum and Reynolds from that claim (and the Court presently makes no findings as to this issue), “[t]his is ground not for a motion to strike, but for a general demurrer.” (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 529 (Ferraro).) In addition, to the extent Honor contends that the second cause of action includes irrelevant or improper matter based on the dismissal of Wollum and Reynolds from that cause of action, section 436, subdivision (a), “does not authorize attacks on entire causes of action….” (Id. at p. 528.)

Honor fails to otherwise explain why the second cause of action is not “drawn or filed in conformity with the laws of this state, a court rule, or an order of the court”, or why there exist “improprieties in [the TAC’s] form or in the procedures pursuant to which it was filed. “(Ferraro, supra, 161 Cal.App.4th at p. 528, original italics; see also Code Civ. Proc., § 431.10, subd. (b)(1)-(3) & (c) [describing “irrelevant” matter for purposes of a motion to strike].) For all reasons discussed above, the motion to strike as to the second cause of action alleged in the FAC does not properly fall within the provisions of section 436. Therefore, the Court will deny the motion to strike as to that cause of action.

Honor also challenges plaintiffs’ claim for attorney’s fees and punitive damages alleged in the TAC, on the grounds that plaintiffs have failed to include allegations showing that an officer, director, or managing agent of Honor had advance knowledge of the unfitness of any employee who engaged in any alleged wrongful conduct, or had knowledge of, authorized, or ratified any wrongful conduct by an employee.

A reasonable interpretation of the TAC shows that plaintiffs allege claims for punitive damages and attorney’s fees against Honor which are ostensibly based on the purported elder abuse of Rosemary by Honor’s employees, Wollum and Reynolds. (See, e.g., TAC, ¶¶ 108-109, 122-123, & Prayer ¶¶ 4-5.) Relevant under the circumstances present here, Welfare and Institutions Code section 15657 authorizes the recovery of reasonable attorney’s fees and costs against an employer provided that “[t]he standards set forth in subdivision (b) of Section 3294 of the Civil Code regarding the imposition of punitive damages on an employer based upon the acts of an employee” are first satisfied. (Welf. & Inst. Code, § 15657, subd. (c).) “In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)

As further detailed above, plaintiffs allege that, as the corporate employer of Wollum and Reynolds, Honor is liable for punitive damages and attorney’s fees based on the acts of these employees. Under Civil Code section 3294, subdivision (b), “[a]n employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” (Civ. Code, § 3294, subd. (b).)

Civil Code section 3294, subdivision (b), “does not purport to exclude any particular type of employer, such as health care providers, from its coverage.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.)

Wholly absent from the TAC are any facts sufficient to show any advance knowledge by Honor of any unfitness of Wollum or Reynolds, that Honor employed Wollum or Reynolds with a conscious disregard of Rosemary’s rights or safety, or that an officer, director, or managing agent of Honor authorized or ratified any wrongful conduct of Wollum or Reynolds. There are also no allegations sufficient to show any wrongful conduct on the part of any officer, director, or managing agent of Honor with respect to the purported elder abuse or neglect of Rosemary.

For all reasons discussed above, the allegations of the TAC are insufficient to support an award of punitive damages or attorney’s fees against Honor, even if plaintiffs were to prove their allegations at trial. Therefore, the Court will grant the motion to strike on this ground, and order that the allegation appearing in the TAC at page 59, lines 11-12 [“[p]laintiffs herein are entitled to damages and an award of attorneys’ fees and costs against each named Defendant, in such amount as proved at trial”] be stricken as to Honor only, and not as to any other defendant against which plaintiffs have alleged a claim for punitive damages. In addition, the Court will order prayer paragraphs 4 and 5 stricken to the extent these paragraphs allege a claim for punitive damages or attorney’s fees against Honor only, and not as to any other defendant.

As to the remaining allegations identified or referenced in the motion to strike, these allegations appear to be essential to the claims or matters alleged in the TAC with respect to defendants other than Honor. Therefore, the Court will deny the motion to the extent it requests that the Court strike these allegations. (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1281.)

The Court has reviewed the proposed order submitted by Honor and does not intend to sign it. Honor may submit a corrected proposed order which conforms to the Court’s ruling herein.

Honor’s request for judicial notice:

In support of the motion to strike, Honor requests judicial notice of: (1) plaintiffs’ request for dismissal of the second cause of action as to Wollum and Reynolds (the request for dismissal); (2) the amendment to the TAC filed by plaintiffs on August 21, 2024 (the first amendment); and (3) the amendment to the TAC filed by plaintiffs on August 26, 2024 (the second amendment). (Honor RJN, ¶¶ 1-3 & Exhs. A-C.)

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 request for dismissal. 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 this document. (Johnson & Johnson v Superior Court (2011) 192 Cal.App.4th 757, 768.)

Notwithstanding that the separately filed first amendment and second amendment are not necessary to the Court’s determination of whether any portion of the TAC at issue may or should be stricken (Evid. Code, § 350; Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, overruled on other grounds in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276), as the Court will deny the motion to strike as to the first amendment and second amendment, the Court will grant Honor’s request for judicial notice of these documents. For reasons further discussed above, judicial notice of the first amendment and second amendment does not extend to the truth of any facts subject to dispute, or any hearsay or irrelevant matter appearing in these documents.