Montecito Bank & Trust vs Theresa Colosi et al

Case Number

22CV04591

Case Type

Hearing Date / Time

Fri, 10/13/2023 - 10:00

Nature of Proceedings

Case Management Conference; Motion to Dismiss; Motions to Compel; Motions Release of Funds; Motion Discharge Liability and Award of Fees and Costs

Tentative Ruling

For reasons and in the manner more fully articulated below:

(1) The motion by MBT for discharge and award of fees is granted, and fees of at least $34,571.16 are awarded from the interpleaded funds.

(2) The motion by defendant Colosi to dismiss is denied.

(3) The motions by defendants Guier and Hutcheson for immediate release of funds is denied, without prejudice to their continued pursuit of their claims at the court trial of this action.

(4) The motions to quash filed by various parties failed to provide sufficient notice to defendant Colosi; nonetheless, they raised issues regarding court proceedings which must be addressed by the Court. No appearances or document productions at the hearing will be required for any persons for whom a summons for personal appearance was served.

(5) The motion by defendant Colosi to compel MBT to produce documents is denied in its entirety.

(6) The motion by defendant Colosi to compel Hutcheson to produce documents is denied in its entirety.

(7) The motion by defendant Colosi to compel Hann to produce documents is granted in part and denied in part. Hann shall produce her relevant medical records to Colosi on or before November 3, 2023, or such other date as this Court may set at the hearing on the motion. No sanctions are awarded.

Background: Defendant Theresa L. Colosi (Colosi) is the biological mother of John Doe, a minor. Defendant Christian Guier (Guier) is John Doe’s biological father. Pursuant to a domestic violence restraining order issued by the Santa Clara County Superior Court, Case No. 1-08-CP-016402, In the Matter of Theresa Colosi, Petitioner, and Christian Guier, Respondent, defendant was not allowed to have any unsupervised contact with John Doe. Starting in May 2019, defendant Cynthia Hann (Hann) was designated and hired to supervise Colosi’s scheduled visitations with John Doe.

On December 8, 2019, Hann was scheduled to supervise a 3-hour visit between Colosi and John Doe. Hann, John Doe, and Colosi initially met at a coffee shop in Santa Barbara. Colosi then asked to spend the remainder of the time together at Zodo’s Bowling and Beyond in Goleta. After arriving as Zodo’s, and while still in the parking lot, Colosi suddenly attacked plaintiff by repeatedly striking her on the head with a metal CO₂ canister. Colosi had planned to abduct John Doe and flee, and had previously chartered a private plane to fly them from Lompoc to Montana. However, Hann and John Doe were able to escape and run into Zodo’s until the police and paramedics arrived. Colosi fled from the premises, and did in fact take the private jet from Lompoc to Montana. Colosi was eventually arrested by Montana authorities, and was extradited to Santa Barbara.

On December 23, 2019, Colosi was charged with five counts, including (1) Count 1, attempted murder [Pen. Code, §§ 664/187(a)], a felony, (2) Count 2, assault with a deadly weapon [Pen. Code, § 245(a)(1)], a felony, (3) Count 3, attempted kidnapping of a child under 14 [Pen. Code §§ 664/207(a)/(e)], a felony, (4) Count 4, attempted child stealing [Pen. Code, §§ 664/278], a felony, and (5) Count 5, disobeying domestic relations court order [Pen. Code § 273.6(a)], a misdemeanor. (People v. Colosi, Santa Barbara Superior Court Case No. 19CR12190).

Prior to the December 8, 2019 assault on Ms. Hann, Colosi had on June 24, 2019, November 20, 2019, November 22, 2019, and December 6, 2019, used funds in her deposit accounts at plaintiff Montecito Bank & Trust (MBT) to purchase a series of fifty (50) cashier’s checks from MBT totaling $1,345,454.33. The checks were payable by MBT on the date they were obtained, and were made originally payable to “Theresa Colosi.” MBT holds funds set aside for payment of the checks in that amount. Colosi was in possession of the cashier’s checks when she was arrested in Montana. MBT believes the checks are in the possession of the Whitefish Montana Police Department, on behalf of the Santa Barbara County District Attorney.

Defendant Guier has obtained orders from the Santa Clara Superior Court, under which Colosi was ordered to pay him substantial amounts for child support and related expenses. Defendant Hutcheson also obtained orders from the Santa Clara Superior Court, under which Colosi was ordered to pay him for legal services he rendered when he was appointed to represent the interests of the minor son of Guier and Colosi in the family law proceedings.

Ms. Hann sustained significant injuries when Colosi attacked her. On June 5, 2020, Ms. Hann filed a complaint against Colosi, alleging 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. The complaint seeks punitive damages, as well as recovery of attorneys’ fees pursuant to Code of Civil Procedure section 1021.4, applicable to actions for damages against a defendant based upon that defendant’s commission of a felony for which that defendant has been convicted. That case remains pending, and is assigned to Dept. 5 of this court. (Hann v. Colosi, Santa Barbara Superior Court Case No. 20CV01984.)

On November 17, 2022, MBT filed the current interpleader action. The operative First Amended Complaint in Interpleader (FACI), filed on April 4, 2023, names as defendants Colosi, Guier, and Hann, and alleges that an actual dispute exists as to the ownership of and rights to the cashier’s checks and the funds backing the checks, the respective claims made by the defendants to the checks and funds are adverse and conflicting, and MBT is unable to safely determine which of the claims is valid and who is (are) the correct owners(s) or recipient(s) of the funds. MBT alleges that it has no claim to the checks or the funds backing them, beyond the obligation to pay, and it does not take any position regarding to whom the funds backing the checks should be delivered. MBT alleged that it would, concurrently with the filing of the FACI, deposit the amount of $1,345,454.33 with the Clerk of the Court, representing the full amount of funds backing the checks, and requested that the court order the deposit to be invested in an insured, interest-bearing account, with interest on such amount to be allocated in the same proportions as the original funds are allocated. The FACI also seeks attorneys’ fees pursuant to Code of Civil Procedure section 386.6. The FACI also prays that MBT be discharged from any actual or potential liability arising from or relating directly or indirectly to the checks, the funds backing them, the interpled funds, or any claims by any of the defendants. Also on April 4, 2023, MBT filed its Notice of Deposit of Funds.

On January 31, 2023, Guier filed his Answer to the complaint in interpleader, in which he alleges that he is a judgment creditor against Colosi in the total amount of $836,573.12, plus interest, arising from judgments entered on June 11, 2020 ($420,354.92), January 25, 2021 ($350,040.00), and November 1, 2022 ($66,178.20).

According to court records, Colosi changed her plea to the criminal charges on April 7, 2023, pleading guilty to Count 2 [assault with personal use of a deadly weapon, Pen. Code, § 245, subd. (a)(1), a felony], and admitting the special allegation of causing great bodily injury. In return, the remaining counts were to be dismissed, and a sentence of five years imprisonment imposed.

On April 12, 2023, Kevin Hutcheson, Esq., filed a verified claim. Attorney Hutcheson represented the minor child of Theresa Colosi in the Santa Clara County Superior Court paternity action. His client was the subject of Colosi’s attempted kidnapping. The claim sets forth a series of orders entered by the Santa Clara Superior Court, in which it ordered Colosi to pay Mr. Hutcheson for his services. As of April 1, 2023, the total amount of the orders, including costs and accrue interest thereon, totaled $142,069.74. The lien contends that the orders will continue to accrue interest at the rate of $24.84/day.

On May 11, 2023, Hann filed her Answer to the first amended complaint in interpleader, in which she alleged that she was the victim of Colosi’s felony assault causing great bodily injury, and is entitled restitution in the criminal case. She further alleges that she has a current action pending against Colosi in this court for which she is entitled to judgment in an amount to be determined by the court, plus interest and costs, and attorneys’ fees pursuant to Code of Civil Procedure section 1021.4. She therefore contends she is entitled to a portion of the funds to be deposited with the Court.

Defendant Colosi appeared in the action on June 2, 2023, when she filed a document entitled Response and Opposition to Interpleader, Request for Permanent Injunction. In that document, Colosi sought a long series of orders from the court including, among other things, denial of interpleader, return of all interpleaded funds, dismissal of and release from all liabilities for the criminal proceedings against her (including her immediate release from jail), the civil case brought against her by Ms. Hann, and the family court proceedings from December 10, 2019 to the present in the Santa Clara Superior Court. On June 12, 2023, Colosi filed a Notice of Motion and Motion for Permanent Injunction.

After hearing on July 21, 2023, the Court denied Colosi’s motion for permanent injunction, based upon its failure to meet the burden of establishing entitlement to such injunction.

MBT Motion for discharge/Colosi motion to dismiss

1. MBT motion for discharge of liability, fees, and costs. On August 8, 2023, MBT filed the current motion for discharge of liability and award of costs and fees. MBT reiterated its allegations regarding Colosi’s purchase of the cashier’s checks totaling $1,345,454.33 for which MBT was holding the funds, and the claims by Colosi, Guier, and Hann to the funds, which caused it to initiate the interpleader action to force the claimants to litigate amongst themselves with respect to the funds. It deposited the funds with the court on April 4, 2023. Responsive pleadings confirm the competing claims, in Colosi’s demands that they all be provided to her, Guier’s assertion of a right to funds pursuant to court judgments, and Hann’s assertion that she is a creditor of Colosi. Further Hutcheson, although not initially named as a defendant, has since filed a claim pursuant to court judgments. Under the statutory procedures, MBT seeks to be discharged from liability with respect to the funds, and seeks the costs and fees incurred in initiating and maintaining the action. MBT disclaims any right to the funds, other than its right to seek fees and costs.

MBT asserts that Colosi’s attempts to assert other claims against MBT do not impact its right to discharge in the interpleader action, in which the only question to be litigated is the right to compel interpleader. MBT seeks the award of fees and costs under Code of Civil Procedure section 386.6. A stakeholder who promptly surrenders possession of a disputed fund should not bear the costs and fees of responding to competing claims (Wells Fargo Bank, N.A. v. Zinnel (2004) 125 Cal.App.4th 393, 401), and such costs and fees should ordinarily be awarded to a diligent bailee. (Messerall v. Fulwider (1988) 199 Cal.App.3d 1324, 1333.) MBT asserts it has followed the procedures set forth in Section 386, and that its request for fees is reasonable. The motion itself seeks $23,908.63, consisting of $23,186.50 in fees (20.9 hours at $340/hour, 25.1 hours at $390/hour, 10.7 hours at $445/hour, and 3.4 hours at $450/hour), and $722.13 in costs, including filing, service, and research fees. The amounts are supported by the declaration of MBT attorney Rafael Gonzalez.

On September 12, 2023, claimant Christian Guier filed a response to MBT’s motion for discharge. Guier’s response does not object to MBT being paid its costs and fees, as long as it comes out of the interpled amount being held by the court, and is not attributed to him, since the portion of the fund he claims is for the benefit of his minor son.

On September 12, 2023, Colosi filed opposition to MBT’s motion for discharge. On that date, she also filed a separate motion to dismiss (discussed below). The opposition contends the motion for discharge should be denied. She sets forth allegations made by MBT, and contends MBT’s allegation that she was arrested with the checks is false. She notes that County was named as a defendant because the checks were being held in evidence, but then dismissed County. She contends that MBT transferred all the funds it was holding without a court order, and without a statement of the “amount claimed,” as required by Section 386(a). The FAC named Hann as a defendant, but although Hann has filed a civil complaint, she has no claim, given that the court denied Hann’s request for injunction, finding that she had presented no facts in support of her allegations. Her separate lawsuit is being held in abeyance pending final adjudication of the criminal case.

Colosi contends that MBT did not contact or advise Colosi regarding receipt of a claim to her funds, and did not offer to meet and confer regarding any of the issues, either before or after filing its complaint. MBT is aware that Colosi is incarcerated, indigent, and unable to retain counsel. The Legal Resource Center has not responded to several written requests for assistance. The Bar association stated they could not make a referral for legal assistance without assurance of ability to pay $400/hour. Although Colosi requested assignment of legal counsel, that request was denied, in violation of her rights under Payne v. Superior Court (1976) 17 Cal.3d 908. MBT was at all times aware that the cashier’s checks and funds backing them were being held as evidence in the criminal case, and are in the possession or under the control of the DA and the criminal court until further order of the court. At no time has Colosi waived her right to financial privacy.

The opposition argues that because the checks are being held as evidence by the District Attorney, MBT does not have ownership or possession of the checks, nor control of the funds backing the checks, and its transfer of funds it was holding to the court was therefore an unlawful transfer. MBT does not have standing to raise the complaint in interpleader. The funds should be returned to MBT within 10 days to be held in trust until further order of the criminal court, and all records should be sealed. The declaration which Colosi includes with her opposition largely reiterates the facts and argument set forth in the opposition itself.

On October 2, 2023, MBT filed its reply to Colosi’s opposition to the motion for discharge, consolidated with its opposition to her motion to dismiss. It first contends that the existence of the physical checks is no impediment to its motion or the action in interpleader. The DA disclaimed any claim to either the checks or the funds in question, when seeking dismissal from this action. That someone other than MBT has a right to the funds does not prevent the interpleader action, and is the situation interpleader is intended to address. Colosi is free to assert her claim to the funds against the other defendants in the interpleader action. MBT is not aware of any law preventing interpleader of funds backing outstanding cashier’s checks, particularly when the holder of the physical checks disclaimed any interest in them and the funds have been deposited in a formal interpleader action. To the extent the physical checks matter at all, they would only represent a claim by the holder to the interpleaded funds, but County has disclaimed any interest in the funds. As to claimants to the funds, the order will release plaintiff of any obligation under the checks, and leave it to the court to determine proper distribution of the funds. Colosi’s request that the funds be returned to MBT to hold in trust is unacceptable to MBT, since other parties are claiming an interest of the funds; MBT wishes to eliminate any threat of liability from its possession of the funds.

MBT further contends that Colosi’s right to financial privacy is irrelevant to the interpleader, and has not been violated in any event. Colosi never explains or offer authority as to why the fact that she has not waived her right to financial privacy precludes MBT’s discharge. Colosi argues she has been denied counsel, in violation of her rights under Payne v. Superior Court, but the Payne decision only found that the indigent prisoner’s rights were violated by the dual deprivation of the ability to appear in person and obtain appointed counsel. While an indigent prisoner has a right to meaningful access to the courts, she does not have the right to any particular remedy. (Wantuch v. Davis (1995) 32 Cal.App.4th 786, 792-793.) While Colosi may be indigent, her access to the courts has not been impinged, given that she has appeared in person to defend the suit, and has been able to receive and serve legal papers.

MBT asserts that Colosi’s procedural objections lack merit. The motion is not made under Section 386(a), but under Section 386(b), which does not require a statement of an amount claimed. There is also no meet and confer requirement prior to filing an action for interpleader.

Colosi’s motion to dismiss seeks an order restraining MBT from instituting or further prosecuting any other proceeding in any court of this state until after final adjudication of the criminal case, but cites no authority for such an injunction, which is wholly inappropriate. MBT has an interest in eliminating liability with respect to the funds, and defendants other than Colosi have an interest in timely access to some part of the interpleaded funds. In the absence of substantial prejudice to the rights of the parties, parallel civil and criminal proceedings are unobjectionable. (Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 885.

Given the obligation to respond to Colosi’s various filings, MBT has incurred additional fees and costs totaling $10,663.00, for which it seeks reimbursement from the interpleaded funds. 27 hours of attorney time billed at between $390/hour and $450/hour were incurred in prosecuting this motion, opposing the motion to dismiss, responding to Colosi’s two sets of requests for production, opposing Colosi’s motion to compel, and moving to quash her subpoenas of MBT employees. Additionally, $103 in costs was incurred. The current total of fees and costs for which MBT seeks reimbursement from the interpleaded funds is $34,571.63.

2. Colosi motion to dismiss. On September 12, 2023, Colosi filed a separate motion to dismiss, to which she also attached her opposition to MTB’s motion to discharge, as set forth above. The motion to dismiss seeks orders dismissing the interpleader action, restoring the transferred funds, and sealing all records in the action. It incorporates the declaration of Theresa Colosi attached to her opposition to the motion for discharge, discussed above. The motion is based upon the arguments that (1) the cashiers checks and funds backing them are being held in evidence in the criminal case, and are under the sole jurisdiction of the criminal court until final adjudication of that case; (2) MBT does not have ownership or possession of either the cashier’s checks or the funds backing them, and its transfer of the funds it was holding in trust to back the checks, to the court, was therefore unlawful; and (3) at not time has Colosi waived her right to financial privacy, and yet MBT disclosed her protected information in the public filing of the complaint in interpleader and subsequent filings in this action, and Colosi strenuously objects to the ongoing violation of her financial privacy. Based upon these arguments, she seeks dismissal of the complaint with prejudice, return of all interpleaded funds to MBT to hold in trust in an interest-bearing account pending resolution of the criminal case, an order permanently sealing all records in this action, and an order that MBT, Guier, Hann, and Hutcheson be restrained from instituting or further prosecuting any other proceeding in any court in this state until the criminal case is finally adjudicated.

On October 2, 2023, MBT filed its consolidated reply to Colosi’s opposition to its motion for discharge and opposition to the motion to dismiss, which is discussed above.

On October 5, 2023, Colosi filed a supplement to her motion to dismiss, in which she contends that the action must be dismissed, because MBT presented no evidence in support of its allegation that multiple parties requested that plaintiff provide the interpleaded funds to them.

Motions to compel filed by Colosi

1. Motion to compel MBT to provide responses. On August 10, 2023, Colosi filed a motion to compel MBT to provide responses to Requests for Production of Documents, Set One, and for monetary sanctions. The motion attached a December 9, 2022, letter to MBT attorney Gonzalez, which stated in part that it was a request for copies of the search warrants, inventories, all information provide by the bank (documents and verbal, electronic communications, emails) and by whom, as required by Government Code section 7460. She contends that MBT has not complied with the request. The motion also referenced an April 1, 2020 request for records pursuant to the Financial Privacy Act. She seeks sanctions of $24,000, consisting of 40 hours at $600/hour.

On September 15, 2023, plaintiff MBT filed opposition to Colosi’s motion to compel. It asserted that the motion must be denied, because the request was not made under the discovery statues but under Government Code section 7460, making it at most a request for documents under the Financial Privacy Act. That act does not authorize a motion to compel, but only injunctive relief. If construed as a motion for injunction, it is deficient for the reasons her prior motion for injunction failed. Further, any Financial Privacy Act violations are unrelated to the interpleader action, and cannot be raised or litigated within it. Additionally, it contends any action on the 2020 Financial Privacy Act request is time-barred, given that more than three years passed between the request and the motion, in violation of the limitation period set forth in Section 7488. No proper demand for inspection pursuant to Code of Civil Procedure section 2031.010 was served, only a letter asking for documents, which is only an informal request, and it does not comply with format requirements for an inspection demand. Finally, the request for sanctions should be denied, given the lack of compliance with inspection demand requirements, given that the motion seeks matters outside the scope of permissible discovery, and given that, as a pro per litigant, she cannot recover attorney’s fees, but only reasonable expenses.

In reply, Colosi asserts that MBT failed to respond both to the discovery request and her request to meet and confer, leading to her filing the motion. She asserts that her December 9, 2022 letter is a clear, valid Request for Production of Documents, which falls both under the Civil Discovery Act and the California Right to Financial Privacy Act. Under both, MBT is obligated to produce the requested documents, within 30 days under the Civil Discovery Act, and with 5 days under the Financial Privacy Act. No records have been produced. The remedy under the Civil Discovery Act is a motion to compel. Failure to comply with the Financial Privacy Act is a criminal offense, relief for which is obtained via a criminal complaint with law enforcement.

2. Motion to compel Hutcheson to provide responses. On August 14, 2023, Colosi filed a motion to compel Kevin Hutcheson to provide responses to Requests for Production of Documents, Set One, and for monetary sanctions. The motion contends she served the request upon counsel for Hutcheson on June 17, 2023, and has received no response. The request sought a complete copy of Hutcheson’s non-privileged business filed documents on the underlying “CP/family law case,” including the names, addresses, phone numbers, and documents for all of her son’s medical and mental health/therapy provides, as well as his schools. She seeks monetary sanctions of $3,600, consisting of 6 hours at $600/hour.

On September 1, 2023, Hutcheson filed opposition to the motion, in which he contended that no Request for Production of Documents had been served upon him. The document she sent to him did not meet many of the requirements for a request under Code of Civil Procedure section 2031.030. It was not in proper form, and was objected to in responses sent to Colosi. As an example, it did not specify a reasonable place for inspection or copying, but demanded that Hutcheson make copies at his expense and mail them to Colosi, which would result in the documents not being available to other parties to this action. The main objection to the request was that the documents were not relevant to this action, were available to Colosi since they were filed in the court which issued the orders, or were privileged in some way.

3. Motion to compel Hann to provide responses. On August 14, 2023, Colosi filed a motion to compel Cindy Hann to provide responses to Requests for Production of Documents, Set One, and for monetary sanctions. The motion contends she served the request upon counsel for Hann on June 12, 2023. The request sought a complete copy of Hann’s supervisor business file/documents on the underlying “CP/family law case,” and a complete copy of her medical records related to the December 8, 2019 incident. It asserts she spoke with office staff on June 30, 2023, who assured her they would provide her with Ms. Hann’s medical records by the following week, but she had not received them. The motion seeks monetary sanctions of $4,800, consisting of 8 hours at $600/hour.

On September 15, 2023, claimant Cinthia Hann filed opposition to Colosi’s motion to compel, contending that the discovery requests and motions targeting parties other than Hann had not been served upon her, and the three motions to compel were filed without proofs of service. Hann further objects that the discovery request seeking matters pertinent to the child custody dispute was improper. The opposition objects that the postmark on the request was June 21, and it was received June 23, so the request was not served on June 12. A response was served on July 28. The production date the request set forth was insufficient and void ab initio because it did not provide sufficient time or reflect the added 5 days for mailing. Counsel’s office’s statement with respect to a package of medical records referred to a package being prepared for default judgment. That package is being prepared, and was delayed by Hann’s July 2023 surgery. They pertain to the personal injury action, and will be provided to Colosi in that action. Finally, sanctions are not warranted.

In a reply filed October 9, 2023, Colosi contends that the June 30 conversation with counsel’s office was as she had portrayed it, in that staff acknowledged receipt of the request, and that records would be produced the following week. She contends that she also sent a letter to attorney McCarthy on August 23, 2023, a copy of which was attached, in which she reiterated the contents of the request for production, and her receipt on August 7 of his July 28 objection to the request for production, contending that because the response was not timely, he had waived any objection to the demand. The reply contends that Hann’s objection to the discovery requests was without foundation. Further, it asserts that Hann’s various complaints and criticisms of Colosi’s documents re unreasonable, given that she has only rudimentary legal research documents and templates; no access to copier, computer, or internet; and is exposed daily to violence, malnutrition, and other inhumane conditions. Under the circumstances, she contends her efforts to defend herself have been extraordinary. Finally, with respect to sanctions, she points to her experience as a Board-Certified Orthopedic Surgeon, whose license is in “retired” status, but notes that retired physicians still often work as expert witnesses, with rates of $600-$750/hour or higher. She asserts that the court must impose monetary sanctions absent specific findings.

Claimant motions for release of funds

1. Guier motion. On August 29, 2023, claimant Christian Guier filed a motion for release of funds. The motion explained that Guier and Colosi were the parents of the minor, and that the court handling the family law issues had issued orders requiring Colosi to pay to him substantial amounts. Her failure to make the payments has had an adverse impact on him, forcing him to sell business property, sell his residence after going into receivership, and incur substantial taxes and fees arising from early withdrawal from retirement savings. Their son is a junior in high school, and is looking forward to going to college, but Guier does not have the financial means to provide that opportunity because of the debts he has undertaken to obtain Colosi’s compliance with the court orders for payment. California courts recognize the importance of providing for minor children, and child support debt is a priority debt, not dischargeable in bankruptcy proceedings. Colosi has knowingly violated the child support orders, and denied her son the support to meet his financial needs. Guier is a judgment creditor in the amount of $436,573.12, plus interest, and there are three outstanding Writs of Execution totaling that amount. That amount mostly consists of child support arrears and fees and costs incurred in pursuing her compliance with the orders. Guier requests that the court enforce the writs of execution and order the release of funds in the amount of $436,573.12, and an additional $100,011.95 for additional child support arrears and ad-on expenses that have accrued since support arears were last ordered in August 2020. The motion attaches various writs of attachment and orders from the Santa Clara County Superior Court, and a print-out document entitled “Statistical Report” which identifies “OurFamilyWizard, LLC,” located in Minneapolis.

Colosi filed an initial opposition to the Guier motion on September 25, 2023, and a supplemental opposition on October 5, 2023. In her initial opposition, she reiterated her contentions about MBT’s alleged violation of her privacy rights in disclosing financial information to law enforcement without her consent, in violation of the Fourth Amendment and the California Right to Financial Privacy Act, and law enforcement used that information and provided conflicting declarations regarding how much money she had in her possession when arrested. She contends that Guier used the protected information to institute new child support proceedings while she was incarcerated, arguing this was improper because child support is suspended when a parent is incarcerated. She also claims to have been unemployed for more than 6 months before the incident that resulted in her detention. Her unlawfully disclosed and seized property, including the cashier’s checks, are being held in evidence in the criminal case until final adjudication and exhaustion of all appeals. As a result, his motion should be denied.  In her supplemental opposition, she asserts that the motion is deficient in that it lacks a declaration, a memorandum of points and authorities, and notice, as required by Code of Civil Procedure section 1005, and the motion to release funds is outside the scope of the action in interpleader since the only question that an be litigated between the plaintiff and the defendants in an interpleader action is whether the plaintiff is entitled to compel defendants to interplead with respect to their conflicting claims to the fund.

On September 29, 2023, defendant and claimant Hann filed an opposition to the motion, and presented evidentiary objections. Hann contends there is no admissible evidence to support the requests, in that the documents attached to the motion are not self-authenticating, lack foundation, and are hearsay. Further, an apparent print-out from Our Family Wizard, LLC has no foundation, is of questionable relevance, and lacks content and authentication. The statements about Guier’s financial difficulties lack foundation, are not under oath, and are hearsay. The motion’s statement of what Guier’s understanding is, is without foundation, hearsay, and speculative.

2. Hutcheson motion. On September 1, 2023, claimant Kevin Hutcheson filed a motion for release of funds. The motion states that claimant was appointed to represent the minor in the Santa Clara County case, and was awarded attorney’s fees to be paid by Colosi. It notes that certified copies of the court orders were filed with his claim. The total owed as of September 29, 2023, is $145,795.74, and the orders will accrue interest at $24.84 per day from that date. “Many courts have said that attorney’s fees for a minor are akin to child support.” The motion seeks the release of the identified amount from the funds held by the court.

Colosi filed an initial opposition to the Hutcheson motion on September 25, 2023, and a supplemental opposition on October 5, 2023. The initial opposition sets forth Colosi’s contention that MBT improperly disclosed her protected financial information to law enforcement without her consent, resulting in the unlawful seizure of her property, including the funds at issue. The checks are being held in evidence by the DA in the criminal case, and are under the jurisdiction of the criminal court until the final adjudication of that case and the exhaustion of all appeals. Hutcheson use the unlawfully disclosed information to submit a claim in interpleader, and this motion for release of funds. She contends evidence obtained in violation of the Financial Privacy Act is inadmissible in any proceeding except a proceeding to enforce its provisions. Further, the motion is deficient in lacking a declaration, memorandum of points and authorities, and notice. In her supplemental opposition, she contends the motion is beyond the scope of the action in interpleader since the only question that can be litigated between the plaintiff and the defendants in an interpleader action is whether the plaintiff is entitled to compel defendants to interplead with respect to their conflicting claims to the fund.

Various motions to quash subpoenas [The Court notes that none of the motions which were filed provided sufficient notice to defendant Colosi. However, since they relate to subpoenas to compel attendance of various persons at the scheduled civil law and motion hearings, at which live witness testimony is not permitted without a court order made on a showing of good cause, the Court is compelled to address the issues presented by the motions.]

1. MBT motion to quash subpoenas. On September 25, 2023, MBT filed a motion to quash subpoenas, supplemented by an errata filed on September 29, 2023, which attached the exhibits which had been inadvertently omitted to the original motion. The motion relates to Colosi’s service on MBT counsel of four separate subpoenas requiring witnesses to appear in person for the hearing on September 29 (which was rescheduled by the court to October 13). They included George Leis, President of MBT, Janet Garufis, CEO of MBT, and James Jefferson, Chief Risk Officer of MBT, and “Amy Henckens c/o Montecito Bank & Trust”, the latter of which was also directed to produce documents at the hearing., including “search warrant #9913 (on/about Dec. 10, 2019), service of warrant, execution of warrant, production in response to search warrant;  any withdraws on 12.9.12 by Theresa Colosi—all contacts/communications with Det. Christopher Mac Auley, anyone from Santa Barbara Sheriff’s Office and anyone from Santa Barbara District Attorney Office.”

The motion first notes that oral testimony is not appropriate at a law and motion hearing, citing California Rules of Court, Rule 3.1306, and City of Crescent City v. Reddy (2016) 9 Cal.App.5th 458, 465. Colosi made no showing of good cause for oral testimony, and obtained no court order. Further, the subpoenas do not seek relevant evidence, since the only issues in this action are whether MBT is entitled to interpleader, is entitled to fees, and which claimants should get the funds. These witnesses have no information relevant to any of those issues, and the documents sought are also irrelevant. To the extent they are an attempt to assert that MBT violated Colosi’s rights under the Financial Privacy Act, that issue is not appropriately raised in this action, and the court already rejected any argument that a violation of her privacy would impede interpleader. The subpoena request for documents is overbroad and not limited to matters pertaining to Colosi. Even those related to Colosi are irrelevant to the interpleader action.

Further, the subpoenas of apex witnesses are improper, unless the party seeking the testimony has made a particularized showing that the official has unique or superior personal knowledge of discoverable information. (Liberty Mutual Ins. Co. v. Superior Court (1992) 10 Cal.App.4th 1282, 1289.) Further, the SDT is deficient in lacking an affidavit showing good cause. Further, it is not directed to an employee of MBT. MBT formerly employed an Amy Hinkens, but has never employed an Amy Henckens. Amy Hinkens no longer works for MBT.

2. Motion by non-party Jennifer J. Lee to quash civil subpoena for personal appearance at trial or hearing, issued by defendant Theresa Colosi. Non-party Jennifer J. Lee is a Deputy County Counsel. Upon County being served with the interpleader complaint, she inquired of MBT counsel about dismissing County, since it had no interest in the funds or the cashier’s checks. MBT then dismissed County. This was Lee’s only involvement in the case. On September 21, 2023, Lee received a Civil Subpoena for Personal Appearance at Trial or Hearing, issued by Colosi. Lee was unable to reach Colosi. The subpoena does not identify what testimony is needed. Lee is uncertain what testimony she could provide, or whether the subpoena is proper for a law and motion hearing, and moves to quash it. Additionally, witness fees and mileage must be tendered upon request (Code Civ. Proc., § 1987, subd. (a); Gov. Code, § 68093), or fees to reimburse the public entity must be tendered at time of service of the subpoena (Gov. Code, § 68096.1), but neither was accomplished. The latter requires payment of $275 to the person accepting the subpoena, for each day the person is required to attend, and are not discretionary. The motion is supported by non-party Lee’s declaration.

3. Second MBT motion to quash subpoena. On October 9, 2023, MBT filed a second motion to quash subpoenas, after Colosi served further subpoenas on George Leis and Amy Henckens on counsel on that date, directing their appearance at the hearings on October 13. The SDT directed to “Amy Henckens” asked for production of “—all search warrants (re: Theresa Colosi) and all records incident to search warrants—Amy Henckens’ personnel file—Theresa Colosi letter to MB&T dated 4.1.20 (records request) and response—records of all communications with Det. Christopher MacAuley, anyone in the Santa Barbara County District Attorney Office, Christian Guier and/or his attorney, CA Attorney General’s Office/Dept. of Financial Innovation and Protection.” The SDT directed to George Leis asked for delivery of “all search warrants (re: Theresa Colosi) and all records incident to search warrants—Def. Colosi’s letter to MB&T dated 4.1.20 requesting records, presented by attorney Peter Muzinich, response—cc of Def. Colosi’s letters to George Leis, Janet Garufis, and Sue Deweese—requesting records—and MB&T’s response, if any—records of all communications with Santa Barbara Co. District Attorney Office, Defend. Christian Guier or his attorney, Calif. Attorney General’s Off./Dept. of Financial Innovat. & Protection.”

Again, MBT objects that oral testimony is not appropriate at a law and motion hearing, that Colosi did not obtain a court order permitting it, or make any showing of good cause for it, and do not seek relevant evidence. To the extent the evidence/documents is relevant at all, it is relevant to Colosi’s claim that MBT violated her Financial Privacy Act rights, but that cannot be litigated in this action. The subpoena request for documents is overbroad and not limited to matters pertaining to Colosi. Even those related to Colosi are irrelevant to the interpleader action. No personnel records are relevant to interpleader, and their production would violate privacy rights. MBT again asserts that subpoenas of apex witnesses are improper without a particularized showing that the individual has unique or superior personal knowledge of discoverable information. Leis is president of MB&T. Further, the SDTs are deficient in lacking an affidavit showing good cause. Further, it is not directed to an employee of MBT. MBT formerly employed an Amy Hinkens, but has never employed an Amy Henckens. Amy Hinkens no longer works for MBT.

4. Objection by Hann to subpoena for personal appearance at hearing. While defendant Hann did not file a motion to quash, she filed an objection to the subpoena served upon her by Colosi for personal appearance at the hearing. The objection notes that none of the matters which are on calendar for October 13, 2023, call for personal appearance or an evidentiary hearing allowing for live testimony. As such, the subpoena is burdensome, oppressive, intended to harass, and needlessly increases the costs of the litigation, and Hann will not appear. She speculates that Colosi might be attempting to turn the civil law and motion hearings into a discovery device and/or deposition. Hann is further unavailable, in that she is out of the country.

ANALYSIS: The Court will grant the motion by MBT for discharge of liability and award of fees and costs in the amount of at least $34,571.63, payable from the funds which were interpleaded, and subject to modification with respect to additional fees and costs which may have been incurred by MBT in bringing its second motion to quash.

The motion by defendant Colosi to dismiss the interpleader action is denied in it entirety.

The motions by defendants Guier and Hutcheson for release of funds are denied at this time, without prejudice to these defendants’ further assertions of their claims in the court trial of this interpleader proceeding. The Court intends to set a prompt trial, after allowing for the remaining defendant to conduct whatever discovery of each other that they believe necessary to address the varying claims made by the defendant to the funds which were interpleaded.

The motions to quash failed to provide sufficient notice to permit the Court to properly rule on them. However, the Court notes that none of the matters which are on its Civil Law and Motion Calendar in this case, set for October 13, 2023, are matters for which live testimony would be permitted. Consequently, regardless of the notice issues presented by the motions, none of the persons whose presence at the hearings was sought by defendant Colosi through her service of subpoenas for personal appearance, are required to appear on October 13.

The motion by defendant Colosi to compel MBT to produce documents is denied, because the items sought from MBT are beyond the scope of, and are irrelevant to any issue in, the limited interpleader litigation.

The motion by defendant Colosi to compel Hutcheson to produced documents is denied, because the items sought from Hutcheson are beyond the scope of, and irrelevant to any issue in, the limited interpleader litigation.

The motion by defendant Colosi to compel Hann to produce document is granted in part and denied in part. The motion is denied with respect to any documents consisting of Hann’s supervisor business file/documents on the underlying “CP/family law case,” because such items are beyond the scope of, and irrelevant to any issue in, the limited interpleader action. The motion is granted with respect to Hann’s medical records, because such records are directly relevant to the nature and validity of Hann’s legal claims against Colosi, and therefore the nature and validity of Hann’s claim for some portion of the funds which were interpleaded. Hann shall produce her medical records from the underlying incident on or before November 3, 2023, or such other date as this Court may specify at the hearing on this motion. No sanctions will be awarded.

MBT Motion for discharge of liability and award of fees and costs/Colosi motion to dismiss, restore funds, and seal records

1.         Legal authority for interpleader, discharge of liability, and award of fees and costs

Code of Civil Procedure section 386 provides, in relevant parts:

(b) Any person, firm, corporation, association or other entity against whom double or multiple claims are made, or may be made, by two or more persons which are such that they may give rise to double or multiple liability, may bring an action against the claimants to compel them to interplead and litigate their several claims.

* * *

. . . The action of interpleader may be maintained although the claims have not a common origin, are not identical but are adverse to and independent of one another, or the claims are unliquidated and no liability on the part of the party bringing the action or filing the cross-complaint has arisen. The applicant or interpleading party may deny liability in whole or in part to any or all of the claimants. The applicant or interpleading party may join as a defendant in such action any other party against whom claims are made by one or more of the claimants or such other party may interplead by cross-complaint; provided, however, that such claims arise out of the same transaction or occurrence.

(c) Any amount which a plaintiff or cross-complainant admits to be payable may be deposited by him with the clerk of the court at the time of the filing of the complaint or cross-complaint in interpleader without first obtaining an order of the court therefor. Any interest on amounts deposited and any right to damages for detention of property so delivered, or its value, shall cease to accrue after the date of such deposit or delivery.

(d) A defendant named in a complaint to compel conflicting claimants to interplead and litigate their claims, or a defendant named in a cross-complaint in interpleader, may, in lieu of or in addition to any other pleading, file an answer to the complaint or cross-complaint which shall be served upon all other parties to the action and which shall contain allegations of fact as to his ownership of or other interest in the amount or property and any affirmative defenses and the relief requested. The allegations in such answer shall be deemed denied by all other parties to the action, unless otherwise admitted in the pleadings.

(e) Except in cases where by the law a right to a jury trial is now given, conflicting claims to funds or property or the value thereof so deposited or delivered shall be deemed issues triable by the court, and such issues may be first tried. In the event the amount deposited shall be less than the amount claimed to be due by one or more of the conflicting claimants thereto, or in the event the property or the value thereof delivered is less than all of the property or the value thereof claimed by one or more of such conflicting claimants, any issues of fact involved in determining whether there is a deficiency in such deposit or delivery shall be tried by the court or a jury as provided in Title 8 (commencing with Section 577) of Part 2 of this code. [Emphasis added.]

Section 386.5 provides:

Where the only relief sought against one of the defendants is the payment of a stated amount of money alleged to be wrongfully withheld, such defendant may, upon affidavit that he is a mere stakeholder with no interest in the amount or any portion thereof and that conflicting demands have been made upon him for the amount by parties to the action, upon notice to such parties, apply to the court for an order discharging him from liability and dismissing him from the action on his depositing with the clerk of the court the amount in dispute and the court may, in its discretion, make such order.

Section 386.6(a) provides:

A party to an action who follows the procedure set forth in Section 386 or 386.5 may insert in his motion, petition, complaint, or cross complaint a request for allowance of his costs and reasonable attorney fees incurred in such action. In ordering the discharge of such party, the court may, in its discretion, award such party his costs and reasonable attorney fees from the amount in dispute which has been deposited with the court. At the time of final judgment in the action the court may make such further provision for assumption of such costs and attorney fees by one or more of the adverse claimants as may appear proper. [Emphasis added.]

Interpleader is a procedure whereby a person holding money or property to which conflicting claims are being made by others can join the adverse claimants and force them to litigate their claims among themselves. (City of Morgan Hill v. Brown (1999) 71 Cal.App.4th 1114, 1122.) Once the stakeholder’s right to interplead is established, and he or she deposits the money or property in court, her or she may be discharged from liability to any of the claimants. (Ibid.) The purpose of interpleader is to prevent a multiplicity of suits and double vexation. (Ibid.) This enables the stakeholder to avoid multiplicity of actions and the risk of inconsistent results if each of the claimants were to sue him or her separately. (Ibid.) Privity among claimants is not required. (Id, at p. 1123.) Interpleader may be permitted even though one claimant seeks part of the fund, and another seeks the entire fund amount. (Hancock Oil Co. v. Hopkins (1944) 24 Cal.2d 497, 508.)

An interpleader action is traditionally viewed as two suits: one between the stakeholder (the holder of the money or property) and the claimants to determine the stakeholder’s right to interplead, and the other among the claimants to determine who shall receive the funds or property interpleaded. (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 612.) As against the stakeholder (plaintiff in interpleader), claimants may only raise matter which go to whether the suit is properly one for interpleader, i.e., whether the elements of an interpleader are present. (Id., at pp. 612-613.) The only relief available to a claimant against a stakeholder in an interpleader action is to have the action dismissed. (Id., at p. 613.) The claimant defendants in such an action cannot obtain affirmative relief against the plaintiff, and their claims against the plaintiff, if any, arising out of the subject matter of the interpleader cannot be put in issue in the interpleader suit, but will be considered only when presented in another and different action. (Conner v. Bank of Bakersfield (1920) 183 Cal. 199, 203.) A party is entitled to interpleader even when a defendant asserts an independent claim against him; if a claimant of the funds has an independent right of action against the stakeholder, he is free to sue him separately. (Pacific Loan Management Corp. v. Superior Court (1987) 196 Cal.App.3d 1486, 1489.)

Interpleader is not defeated because one or more of the claimants to the fund contends that the stakeholder breached a duty to deliver the property to him. The true test for interpleader is the stakeholder’s disavowal of interest in the property to be interpleaded, coupled with the perceived ability of the court to resolve the entire controversy as to entitlement to that property without need for the stakeholder to be a party to the suit. (Pacific Loan Management Corp. v. Superior Court, supra, 196 Cal.App.3d at p. 1490, citing Security Trust & Savings Bank v. Carlsen (1928) 205 Cal. 309, 314.) In general, every stakeholder has assumed some obligation to deliver the property held by him to a party entitled thereto. However, when a disagreement arises as to the ownership of that property, the holder thereof has no obligation to settle the disagreement before seeking interpleader. (Ibid; see also Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 876.)

In order to obtain attorneys’ fees pursuant to Code of Civil Procedure section 386.6, an interpleader plaintiff must follow all of the requirements of sections 386 and 386.5, including disavowing any interest in the amount being interpleaded, depositing that amount with the court, and seeking and obtaining a discharge from liability. (Southern California Gas Co. v. Flannery (2014) 232 Cal.App.4th 477, 490.)

2.         Application to motions for discharge, and competing motion to dismiss.

MBT is currently holding $1,345,454.33, which comprise the funds set aside for payment of the cashier’s checks purchased by Colosi prior to her December 8, 2019, assault on Ms. Hann, and attempted kidnapping of her son. While the Court has no information on the origin of the funds, Colosi contends that they are all her funds, and that 100% of the funds being held by MBT should be returned to her.

There exist additional claimants to the funds, arising from various conduct by and events involving Colosi, which have given rise to both liquidated and not-as-yet-liquidated debts owed by Colosi to the claimants. Guier claims a right to a portion of the funds based upon court judgments in his favor, and against Colosi, in the family court litigation in Santa Clara County. His claim seeks the total amount of $836,573.12, plus interest, arising from judgments entered on June 11, 2020 ($420,354.92), January 25, 2021 ($350,040.00), and November 1, 2022 ($66,178.20). Similarly, claimant Hutcheson claims a right to a portion of the funds, arising from his status as attorney for the minor son of Colosi and Guier in the Santa Clara County litigation. His claim seeks a total of $142,069.74, plus interest at $24.84/day from April 1, 2023. The claims made by Guier and Hutcheson are valid, legal claims for money against Colosi, which are legally enforceable against her.

Hann’s claim of right to a portion of the funds arises from the fact that she was the victim of Colosi’s physical attack, and has a pending claim for personal injuries against Colosi. While this Court has no direct information on the status of that action, it appears that the personal injury action may have been held in abeyance during the pendency of the related criminal proceedings pending against Colosi, arising from the same events. While Hann’s claim therefore remains unliquidated, and the amount of her claim is therefore uncertain (she seeks not only compensatory damages, but also punitive damages and attorneys’ fees pursuant to Code of Civil Procedure section 1021.4), Colosi’s guilty plea to the criminal charges related to her attack on Hann make all but certain that some amount will be awarded to Hann in the personal injury action. Her claim will also be legally enforceable against Colosi.

MBT has disavowed any claim to the funds (except for that amount which it might be awarded in attorneys’ fees and costs pursuant to Code of Civil Procedure section 386.6, as a result of its initiation and maintenance of the interpleader action), and the County of Santa Barbara has also disavowed any claim to the funds.

While this Court knows that defendant Colosi claims entitlement to 100% of the funds interpleaded, the claims of Guier, Hutcheson, and Hann, arising from Colosi’s legal liability to them, may well reach or exceed the total amount of the funds held by MBT. The competing claims made to the funds held by MBT by Colosi, Guier, Hutcheson, and Hann, therefore establish a classic circumstance for interpleader of the funds held by MBT.

Colosi objects that MBT did not advise her, or meet and confer with her, prior to filing the complaint in interpleader, but the interpleader statutes contain no such requirement. Further, as noted above, a stakeholder has no obligation to attempt to resolve the conflicts between the claimants, either prior to or a part of an interpleader action. She claims that MBT did not wholly comply with Code of Civil Procedure section 386(a) because there was no statement of the amount claimed, but the current interpleader action was filed pursuant to Section 386(b), which does not contain the provision relating to Colosi’s objection. She objects that MBT deposited the funds without first obtaining a court order, but the statutes specifically provide that no such order is required. (Code Civ. Proc., § 386, subd. (c).)

Colosi further contends that MBT has no standing to pursue the interpleader action, because it is not in possession of the physical cashier’s checks, which are being held as evidence in the criminal case and will remain there until the conclusion of that case and all appeals arising therefrom. Colosi provides no authority to support her claim that the funds being held by MBT cannot be interpleaded without its possession of the physical cashier’s checks. MBT has represented that it is aware of no such authority, and this Court likewise is aware of no such authority. Upon interpleader of the funds, the physical checks will become meaningless, except for their importance in the criminal proceeding.

To the extent that defendant Colosi contends that MBT, in some manner, violated her financial privacy rights, and she claims some entitlement to relief for that violation, the law makes clear that to the extent any such claim may be valid, it may not be raised or adjudicated within the confines of the interpleader action. Rather, it can be determined, if at all, only in a separate action brought by Colosi against MBT.

Because the Court has determined that this is an appropriate action for interpleader of the funds, because MBT has disavowed any claim to the funds, and because MBT has followed the proper procedures for interpleader of the funds, the Court will grant the motion for discharge, and will award to MBT fees and costs of at least $34,571.63, to be taken from the interpleaded funds. The Court notes that the amount shown was the total for fees and costs incurred by MBT as of the time it filed its reply to the opposition to the discharge motion, which was prior to the time its second motion to quash was filed. It is therefore possible that the stated figure may need to increase based upon MBT’s proof of additional fees and costs incurred.

The motion by defendant Colosi to dismiss is denied in its entirety.

Guier and Hutcheson motions for release of interpleaded funds

As explained above, in an interpleader action, the trial court ultimately determines the various claims to the interpleaded funds in a court trial. In moving for release of the interpleaded funds prior to such court trial, claimants Guier and Hutcheson are essentially claiming entitlement to judgment as a matter of law, in the full amount of their claims, to the exclusion of any other claimant’s claims or rights to the funds. In essence, they are seeking entry of summary judgment in their favor in the interpleader action. In so moving, however, neither claimant complied with the procedural requirements or protections required for such a motion, nor did either claimant explain how or why their claim must prevail over all other claims to the funds.

The ultimate allocation and distribution of the funds among and between the various claimants thereto (Colosi, Guier, Hutcheson, and Hann) will be determined by the Court at the trial of this action. The Court intends to set a prompt trial date, after providing the parties with an opportunity to conduct discovery, if they choose to do so, with respect to the nature and validity of their co-claimants’ claims.

The Court will therefore deny the motions for immediate release of interpleaded funds, without prejudice to the rights of both Guier and Hutcheson to continue to pursue their claims.

Motions to quash, and objections to, subpoenas requiring appearance at law and motion hearing

Defendant Colosi served subpoenas for personal appearance at the civil law and motion hearings in the case, of multiple MBT officers and employees, of claimant Hann, and of Deputy County Counsel Jennifer J. Lee. The subpoenas served upon MBT personnel further sought the production, at the hearings, of documents. The initial production request sought “search warrant #9913 (on/about Dec. 10, 2019), service of warrant, execution of warrant, production in response to search warrant; any withdraws on 12.9.12 by Theresa Colosi—all contacts/communications with Det. Christopher Mac Auley, anyone from Santa Barbara Sheriff’s Office and anyone from Santa Barbara District Attorney Office.” The subsequently served subpoenas sought production of: (a) of “—all search warrants (re: Theresa Colosi) and all records incident to search warrants—Amy Henckens’ personnel file—Theresa Colosi letter to MB&T dated 4.1.20 (records request) and response—records of all communications with Det. Christopher MacAuley, anyone in the Santa Barbara County District Attorney Office, Christian Guier and/or his attorney, CA Attorney General’s Office/Dept. of Financial Innovation and Protection.”, and (b) “all search warrants (re: Theresa Colosi) and all records incident to search warrants—Def. Colosi’s letter to MB&T dated 4.1.20 requesting records, presented by attorney Peter Muzinich, response—cc of Def. Colosi’s letters to George Leis, Janet Garufis, and Sue Deweese—requesting records—and MB&T’s response, if any—records of all communications with Santa Barbara Co. District Attorney Office, Defend. Christian Guier or his attorney, Calif. Attorney General’s Off./Dept. of Financial Innovat. & Protection.”

In response to the subpoenas, three motions to quash the subpoenas were filed, two by MBT, and one by Ms. Lee. Further, Ms. Hann filed an objection to the subpoena, indicating that she would not be appearing at the October 13 civil law and motion hearings.

Certainly, none of the motions to quash were filed with sufficient notice to comply with the requirements of Code of Civil Procedure section 1005(b), nor were orders shortening time obtained for any of the motions. Consequently, the Court will officially not rule on their merits. However, the motions and objection raise issues with respect to the conduct of civil law and motion proceedings generally, and these civil law and motions specifically, which need to be addressed for Ms. Colosi’s benefit.

First, and perhaps most importantly, none of the matters on calendar for October 13, 2023, are matters for which live testimony would be either appropriate or warranted. Civil law and motion matters are conducted on papers, giving the parties an opportunity for oral argument only. In the absence of extraordinary circumstances, live testimony is not permitted; in the event that a party can show very good cause therefor, a court order permitting live testimony at a civil law and motion hearing is generally required. (See Cal. Rules of Ct, Rule 3.1306, subd. (a) [“Evidence received at a law and motion hearing must be by declaration or request for judicial notice without testimony or cross-examination, unless the court orders otherwise for good cause shown.”]

Second, the Court can think of no live testimony which would have further informed it on the issues that were presented by the motions that were set for hearing, which largely related to the limited scope of an interpleader action. Rather, given the assortment of persons who were subpoenaed to appear, it appears that their testimony was sought with respect to matters extraneous and irrelevant to the issues in the interpleader action. Consequently, even had Colosi sought an order permitting live testimony, it would not have been granted by this Court.

Third, the documents which Colosi sought from MBT employees also do not appear to have any relevance to the limited interpleader issues which this Court has addressed in the other motions on calendar.

Ms. Hann’s objection speculated that the subpoena may have been an improper attempt at conducting discovery. Certainly, Colosi will be permitted in this action to conduct discovery with respect to the nature and validity of the claims made by defendants’ to the funds, should she wish to do so. [The Court will clarify, however, that this does not open up any issues in the family law proceedings which have occurred or will take place in Santa Clara County Superior Court. Rather, the claims made by Messrs. Guier and Hutcheson arise from the valid orders issued by that court awarding them amounts to be paid by Colosi, and their claims will be proven by appropriate presentation to the court of those orders.]  It may also ultimately prove appropriate for certain witnesses to be subpoenaed for appearance and testimony at trial.

However, there was no legitimate reason to subpoena witnesses for appearance at the current civil law and motion proceedings, which largely related only to the propriety of the action in interpleader, the discharge of the stakeholder (MBT), and motions to compel documents relevant to the interpleader action only.

For that reason, the Court will order that no appearances or production of documents pursuant to the subpoenas served by Colosi, need be made at the October 13, 2023, hearing, by any recipient of any of the subpoenas.

Colosi motions to compel                    

As a prefatory matter, the Court notes that multiple recipients of defendant Colosi’s alleged demands for production of documents asserted objections that the requests were not in proper format, and did not contain everything that was required to constitute a formal demand for production under the Civil Discovery Act. In addition to being in pro per in this action, defendant Colosi is currently incarcerated, and will remain for at least another period of months. She has limited access to legal resources. Unlike other pro per parties, she has no ability to visit the Legal Resource Center to obtain assistance in complying with the technical requirements of the documents she seeks to file, serve, or propound. Even so, she is a party to the action and has a right to represent herself in this action, a right to due process of law in all respects, and a right to conduct discovery in this action, particularly with respect to the nature and validity of the other claimants’ claims to the interpleaded funds.

Under these extraordinary circumstances, the Court is advising the remaining parties that, in the interests of achieving substantial justice among all of the parties, the Court intends to be fairly liberal with respect to Colosi’s technical compliance with respect to her discovery requests and responses. Certainly, she must do her utmost to make clear what she is attempting to do, within each document filed, served, and/or propounded in this action. However, the Court expects any party receiving discovery she propounds, or responding to documents she files, to be prepared to respond to them in absolute good faith, in spite of any minor technical imperfections which they may have.

1.         Motion to compel MBT to produce documents.

Colosi requested that MBT provide copies of the search warrants, inventories, all information provide by the bank (documents and verbal, electronic communications, emails) and by whom, as required by Government Code section 7460. Her communication did not reference any provisions of the Civil Discovery Act.

MBT is the “stakeholder” in this interpleader action, in that it deposited with the court funds in its possession, against which it makes no claim, which multiple parties contend they are entitled to receive. As noted above, as against the stakeholder, claimants may only raise matter which goes to whether the suit is properly one for interpleader. (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 612.) Any claims for affirmative relief against the stakeholder that a claimant may have, cannot be put into issue in the interpleader suit, and can only be raised in a separate action. (Conner v. Bank of Bakersfield (1920) 183 Cal. 199, 203.)

Colosi’s motion fails to establish that the documents she seeks have any relevance to the propriety of this action as an interpleader action. Rather, it appears to the Court that the documents she seeks relate solely to her contention that MBT in some manner violated her rights under the California Financial Privacy Act. To the extent that any valid claim under that act exists, it cannot be pursued in this action, and can only be pursued in a separate action against MBT. The documents have no relevance to any issue in this case. Consequently, the Court finds that Colosi’s document request was improperly propounded within the interpleader action. No other action is pending between Colosi and MBT. Consequently, there is no basis for Colosi to either seek the documents within the confines of the current proceeding, or to move to compel their production in this action. The motion to compel will therefore be denied in its entirety.

2.         Motion to compel Hutcheson to produce documents.

The document request which Colosi purportedly propounded upon claimant Hutcheson sought production of his non-privileged business filed documents on the underlying “CP/family law case,” including the names, addresses, phone numbers, and documents for all of her son’s medical and mental health/therapy provides, as well as his schools. None of the information Colosi seeks has even the remotest of relevance to any issue in the interpleader action. The Court will therefore deny the motion to compel in its entirety.

3.         Motion to compel Hann to produce documents.

The document request which Colosi purportedly propounded upon claimant Hann sought a complete copy of Hann’s “supervisor business file/documents on our CP/family law case,” and a complete copy of her medical records related to the December 8, 2019 incident. Hann served a formal response to the demand, in which she objected to the production of documents with respect to either category, and did not agree to produce any documents.

Because Hann did, in fact, respond to the demand, the proper motion to be filed by Colosi was a motion to compel further responses to the demand for production, not a motion to compel any responses, which is what she filed. However, as noted above, this is a distinction which an incarcerated pro per party may not fully appreciate, and the Court will give Ms. Colosi the benefit of the doubt and will address the motion on its merits.

Just as with the Hutcheson demand, any records which Hann may have which would be responsive to a request for her “supervisor business file/documents on our CP/family law case,” are absolutely irrelevant to any issue in the interpleader action. The motion will be denied, with respect to its request for any such documents.

To the extent that the request and subsequent motion to compel seek production of Hann’s medical records arising from the December 8, 2019 attack, however, the documents are relevant. The nature and extent of Hann’s injuries and damages are relevant to the nature and validity of Hann’s legal claims against Colosi, and therefore the nature and validity of Hann’s claim for some portion of the funds which were interpleaded. As such, they would appear to this Court to be proper subjects of discovery in the interpleader action.

Hann objected to production of her medical records, contending that the term “medical records” was vague and ambiguous, that the request for medical records is “not reasonable [sic] calculated to lead to the discovery of admissible evidence” within the interpleader action, that the request is overbroad in time and scope, that the request violates her right to privacy, and that what is “related” to the December 8, 2019 incident is a legal conclusion.

The Court finds that most of the objections were not well taken. Certainly, it is clear that a party has a privacy right in his or her own medical condition. However, that privacy right was waived by Hann in the course of filing her personal injury action against Colosi, and in fact her counsel admits preparing medical records as part of the default prove-up packet he intends to file in that action. The injuries and damages which Hann sustained when she was attacked by Colosi on December 8, 2019 form the basis for any claim Hann has to the funds which have been interpleaded by MBT. Using the general balancing test applicable to assertions of privacy with respect to matters that do not involve invasions of an interest fundamental to personal autonomy (see Williams v. Superior Court (2017) 3 Cal.5th 531), the Court finds that Hann’s privacy interest in the records related to the injuries she sustained in the December 8, 2019 attack by Colosi, are outweighed by Colosi’s right, in this action, to ascertain and discover the nature, scope, and validity of her claim against Colosi and, in turn, her the nature, scope, and validity of Hann’s claim of right to a portion of the funds which have been interpleaded.

The Court will therefore grant the motion to compel, as it relates to the subject medical records, and will order Hann to produce the responsive documents to Colosi no later than November 3, 2023, or such other date as this Court may specify at the hearing on this motion. No sanctions will be awarded.