Montecito Bank & Trust vs Theresa Colosi et al

Case Number

22CV04591

Case Type

Hearing Date / Time

Fri, 10/31/2025 - 10:00

Nature of Proceedings

Motion Release Funds Held by Court

Tentative Ruling

For all reasons discussed herein, the motion of defendant Christian Guier for release of funds held by the court as a result of the interpleader action is continued to December 5, 2025. On or before November 7, 2025, defendant Guier shall serve, and file proof of service of, compliant written notice of the motion on defendant Theresa Colosi in accordance with this ruling. Any opposition to the motion by defendant Theresa Colosi must be filed and served on or before November 20, 2025. Any reply by defendant Christian Guier to any opposition to the motion filed by defendant Colosi, shall be filed and served on or before November 26, 2025.

Background:

The following background is taken from court files and records in this and other related actions, and is provided for context.

Theresa L. Colosi (Colosi) and Christian Guier (Guier), who are each defendants in this case, are, respectively, the biological mother and father of John Doe. Pursuant to a domestic violence restraining order issued in Santa Clara County Superior Court case number 1-08-CP-016402 entitled In the Matter of Theresa Colosi and Christian Guier (the Paternity Action), Colosi was prohibited from having any unsupervised contact with John Doe. In May 2019, Cynthia Hann (Hann), also a defendant in this case, was designated and hired to supervise Colosi’s scheduled visitations with John Doe.

On December 8, 2019, Hann was scheduled to supervise a visit between Colosi and John Doe. During that visit, Colosi suddenly attacked Hann by repeatedly striking her on the head with a metal canister. Colosi had previously chartered a private plane to fly her and John Doe, whom Colosi had planned to abduct, from Lompoc to Montana. Hann and John Doe were able to escape until police and paramedics arrived, but Colosi fled and took the private plane from Lompoc to Montana. Colosi was arrested by Montana authorities, and extradited to Santa Barbara.

Prior to the assault on Hann described above, Colosi had, on June 24, November 20, November 22, and December 6, 2019, used funds in her deposit accounts at Montecito Bank & Trust (MBT), the plaintiff in this case, to purchase a series of fifty 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.” Colosi was in possession of the cashier’s checks when she was arrested in Montana. MBT holds the funds set aside for payment of those checks.

On December 23, 2019, Colosi was charged with five felony and misdemeanor criminal counts in Santa Barbara County Superior Court case number 19CR12190 entitled People v. Theresa Lynn Colosi.

In addition, Guier has obtained orders from the Santa Clara County Superior Court, under which Colosi was ordered to pay to Guier substantial amounts for child support and related expenses. Guier was unable to obtain the cashier’s checks or any funds, because those checks were being held as evidence in the criminal case against Colosi.

On June 5, 2020, Hann filed, as Santa Barbara County Superior Court case number 20CV01984 entitled Cindy M. Hann vs. Theresa Lynn Colosi (the Hann Action), 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. That complaint seeks punitive damages and attorneys’ fees pursuant to Code of Civil Procedure section 1021.4, which applies to actions for damages against a defendant based upon that defendant’s commission of a felony for which that defendant has been convicted.

On November 17, 2022, MBT filed its original complaint in this case against Colosi, Guier, and the County of Santa Barbara (the County), alleging one cause of action for interpleader of the sum of $1,345,454.33 with the clerk of this court. MBT alleges that this amount represents the funds backing the cashier’s checks purchased by Colosi and further described above.

On January 31, 2023, Guier filed an answer to MBT’s original complaint. In that answer, Guier alleges that he is a judgment creditor of Colosi in the total amount of $836,573.12, plus interest, which arises from judgments entered on June 11, 2020, January 25, 2021, and November 1, 2022, in the amounts of, respectively, $420,354.92, $350,040, and $66,178.20.

On March 9, 2023, MBT filed a request for dismissal of this action as to the County only, without prejudice.

On April 4, 2023, with leave to add Hann as a party granted by this court on March 24, 2023, MBT filed in this case, its operative first amended complaint in interpleader (the FACI) against Colosi, Guier, and Hann (collectively, defendants). On that same date, MBT filed a notice of the deposit of the amount of $1,345,454.33 (the Interpleaded Funds).

In the FACI, MBT alleges that an actual dispute exists as to the ownership of and rights to the cashier’s checks and the Interpleaded Funds, that the respective claims of defendants to the checks and the Interpleaded Funds are adverse and conflicting, and that MBT is unable to safely determine which of the claims is valid or the identity of the owners or recipients of the Interpleaded Funds. MBT further alleges that it has no claim to the cashier’s checks or the Interpleaded Funds beyond the obligation to pay those funds, and does not take any position regarding to whom the Interpleaded Funds should be delivered.

The FACI seeks attorneys’ fees pursuant to Code of Civil Procedure section 386.6, and an order discharging MBT from any actual or potential liability arising from or relating directly or indirectly to the checks, the Interpleaded Funds, or any claims asserted by any defendant in this action.

On April 12, 2023, Kevin Hutcheson (Hutcheson) filed a verified claim in interpleader, in which Hutcheson asserts that he is the attorney appointed in the Paternity Action to represent Colosi’s minor child, and that the Santa Clara County Superior Court has entered orders for Colosi to pay Hutcheson for his services in that action. According to Hutcheson, the amount awarded pursuant to these orders totals, as of April 1, 2023, $142,069.74. (See Hutcheson Verified Claim, ¶ 6.)

On May 11, 2023, Hann filed an answer to the FACI, alleging that Colosi’s felony assault caused Hann great bodily injury, and that Hann is entitled restitution in the criminal case. Hann 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, plus interest, costs, and attorneys’ fees pursuant to Code of Civil Procedure section 1021.4. Hann contends she is entitled to a portion of the Interpleaded Funds.

On June 2, 2023, Colosi appeared in this action by filing a document entitled “Response and Opposition to Interpleader, Request for Permanent Injunction” (the Colosi Response). Among others, the Colosi Response seeks orders denying the FACI, directing the clerk to return the Interpleaded Funds to MBT to be held in trust until further instructions from Colosi, and imposing a permanent injunction.

On June 12, 2023, Colosi filed a motion for a permanent injunction and other orders, which was opposed by MBT and Guier. On July 21, 2023, the court denied that motion.

On August 8, 2023, MBT filed a motion for discharge of liability and an award of costs and fees (the Discharge Motion), which was opposed by Colosi and to which Guier filed a response requesting that any fees or costs awarded to MBT be paid from the Interpleaded Funds only.

In addition, on August 29, 2023, Guier filed a motion for release of funds held by MBT (the Guier Motion), which was opposed by Colosi.

On September 1, 2023, Hutcheson filed a motion for the release of the amount of $145,795.74 from the Interpleaded Funds (the Hutcheson Motion), which was also opposed by Colosi.

On September 12, 2023, Colosi filed motion to dismiss this action.

On October 13, 2023, the court entered an order granting the Discharge Motion and awarding to MBT the amount of at least $34,571.16 to be paid from the Interpleaded Funds; denying Colosi’s motion to dismiss; and denying the Guier Motion and the Hutcheson Motion, without prejudice to the continued pursuit by Hutcheson and Guier of their claims at trial. Further, the court scheduled a trial confirmation conference on May 3, 2023.

Pursuant to the court’s May 6, 2024, trial call order, this case was set for trial on June 10, 2024.

On June 10, 2024, following a trial, the court entered an order (the Trial Order) granting the relief requested by Guier, Hann, and Hutcheson in this action, and directing each of these defendants to prepare and submit proposed orders for distributions of the Interpleaded Funds.

On July 16, 2024, the court signed a ruling submitted by Hann, stating that the court is not issuing any orders with respect to the claim of Hann, without prejudice to a further request by Hann once a judgment is obtained in the Hann Action.

Also on July 16, 2024, the court signed and entered an order (the Guier Order), awarding to Guier the sum of $451,774.15, payable from the Interpleaded Funds, and directing the clerk of the court to issue a check from the Interpleaded Funds payable to the Law Offices of Walter Pierce Hammon and Guier for this sum. (Guier Order, ¶ 1.)

Pursuant to the Guier Order, the court also ordered that there shall remain, in trust with the court, the amount of $150,000 to serve as security for child support and add on arrears, which includes amounts previously ordered and the amount of $50,000 ordered at the June 10, 2024, trial of this case. (Guier Order, ¶ 2.) The court further ordered that the amount of $150,000 remaining with the court shall be disbursed after the Santa Clara County Superior Court calculates additional child support arrears and “add ons”, and designated the Santa Clara County Superior Court as the appropriate venue to calculate the additional child support and add on arrears owed to Guier. (Ibid.)

On August 19, 2024, Colosi filed a notice of appeal from the Trial Order, among other orders entered in this action.

On April 29, 2025, Guier filed an ex parte application (the Guier Ex Parte) for an order releasing the amount of $92,961.30 from the Interpleaded Funds to Guier. The Guier Ex Parte was supported by a letter to this Department dated April 28, 2025, and a “Sua Sponte order modifying order made on 4/7/25” (the Arrears Order) entered in the Paternity Action on April 10, 2025, in which the Santa Clara County Superior Court granted Guier’s ostensible request to collect on child support and add on arrears from the funds being held through this court, in the amount of $92,961.30. (Apr. 29, 2025, Guier Ex Parte Appl., Exh. C [Arrears Order] at p. 2, ll. 5-6.)

Colosi opposed the Guier Ex Parte on the grounds that, among other things, Colosi was not properly served and does not consent to electronic service. (See Apr. 30, 2025, Colosi Decl., ¶ 2.)

On May 1, 2025, the court denied the Guier Ex Parte.

On July 16, 2025, Guier filed a noticed motion for an order releasing the amount of $92,961.30 from the Interpleaded Funds. The present motion is supported by a declaration of Walter Pierce Hammon (Hammon), who is Guier’s counsel.

Hammon states that on April 10, 2025, a hearing was held before the Santa Clara County Superior Court as a result of additional arrearage claims and additional money due and owing by Colosi to Guier, and asserts that the money being held by this court as security for support should be used to satisfy these additional arrearages as determined by the Santa Clara County Superior Court. (Hammon Decl., p. 2, ll. 14-15 & 20-24; see also Arrears Order.) Hammon further states that the Santa Clara County Superior Court has determined that there exist child support and add on arrears totaling $92,961.30, and there is a pending request for additional arrears. (Id. at p. 2, ll. 24-26.) Guier believes that there will be further arrears which may be satisfied in part through the balance of the Interpleaded Funds. (Id. at p. 3, ll. 1-3.)

On October 13, 2025, ostensibly in response to the present motion, Colosi filed a declaration stating: “I have not, and do not now, consent to electronic communication of any kind from ... Guier [or] his attorneys and agents on Santa Barbara Superior Court case no. 22CV04591.”

No other party has filed an opposition or other response to the motion.

Analysis:

The “proof of electronic service” of the present motion filed by Guier on July 24, 2025, states that present motion and the supporting Hammon declaration were served on Colosi by electronic transmission to the following electronic addresses: “col.the.22cv@gmail.com; tlclac2007@gmail.com”. (Jul. 24, 2025, Proof of Service at pdf p. 2 [Attachment].)

Though electronic service is generally authorized under Code of Civil Procedure section 1010.6, subdivision (a), Colosi is an unrepresented party in this action, and must expressly consent to receive electronic service, which may be given by either “[s]erving a notice on all parties and filing the notice with the court...” or “ [m]anifesting affirmative consent through electronic means with the court or the court’s electronic filing service provider, and concurrently providing the party’s electronic address with that consent for the purpose of receiving electronic service. The act of electronic filing shall not be construed as express consent.” (Code Civ. Proc., § 1010.6, subd. (c)(1)-(3).)

There is no record showing that Colosi served and filed a notice consenting to receive electronic service in this action. Instead, the present record reflects that Colosi has expressly stated that she does not consent to electronic service.

The court’s records in this case also reflect that on April 16, 2024, Colosi filed a notice of change of address to which all notices and documents should be sent to Colosi. That notice does not identify any electronic address, including those described in the proof of service of the present motion and above.

Moreover, the various pleadings, motions, and other documents filed by Colosi in this case do not identify or provide electronic address for the purpose of receiving electronic service. The court’s records also reflect that Colosi has not filed any documents in this case by electronic means either with the court or an electronic filing service provider. For these and all further reasons discussed above, there is no information or evidence showing that Colosi has expressly consented, or manifested any affirmative consent, to receive electronic service of the present motion.

For all reasons discussed above, the present record reflects that Guier has not provided Colosi with statutorily compliant written notice of the present motion, as required by Code of Civil Procedure section 1010, and “fundamental principles of due process....” (Jones v. Otero (1984) 156 Cal.App.3d 754, 757; California Advocates for Nursing Home Reform v. Smith (2019) 38 Cal.App.5th 838, 870 [discussion of due process requirements].) Though the failure by Guier to provide Colosi with compliant notice of the present motion justifies a denial of that motion, the court will instead continue the hearing to provide Guier an opportunity to serve Colosi with compliant written notice, and to file proof of service of that written notice.

Further, the court will require Colosi to file and serve any opposition to the motion within the time provided in subdivision (b) of Code of Civil Procedure section 1005, subject to any extensions of time that may apply under Code of Civil Procedure section 1013. Guier must also timely file and serve any reply to any opposition to the motion that may be filed by Colosi.