Preview
David J. Tappeiner (SBN 243979)
DT LAW PARTNERS, LLP
125 East Victoria, Suite I
Santa Barbara, California 93101
Telephone: (805) 456-8323
Facsimile: (805) 453-8055
Email: david@dtlawpartners.com
Attorneys 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
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SANTA BARBARA
ANACAPA DIVSION
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MARK SELLARS, individually and as Case No. 20CV04132
11 Trustee of the Rosemary Free Trust u/d/t dated )
September 13, 2000; and REBECCA MORIN, ) [Assigned for all purposes to Hon. Thoma:
12 Conservator of the Estate and Person of P. Anderle]
Rosemary Free Leahy,
13 PLAINTIFFS’ NOTICE OF MOTION AND
Plaintiffs, AMENDED MOTION FOR LEAVE TO.
14 FILE SECONDCOMPLAINT;
vs. MEMORANDUM OF POINTS AND
15 AUTHORITIES; DECLARATIONS OF
PATRICK LEAHY; CHANNE COLES, THE DAVID J. TAPPEINER; MARK SELLARS.
16 LAW OFFICE OF CHANNE G. COLES, a AND REBECCA MORIN IN SUPPORT
California corporation; PATRICIA
17 WOLLUM; SUSAN REYNOLDS; HONOR
HOME CARE SERVICES CALIFORNIA, [Proposed]
18 INC., a Delaware corporation doing business New Hearing Date: October 4, 2023
in California; and DOES 1-10, inclusive, Time: 10:00 a.m.
19 Dept.: 3
Defendants.
20 ORIGINAL ACTION FILED: 12/11/2020
21 NO TRIAL DATE SET
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23 TO THE COURT, DEFENDANTS, AND DEFENDANTS’ RESPECTIVE ATTORNEYS
24 OF RECORD:
25 PLEASE TAKE NOTICE that on October 4, 2023, at 10:00 a.m., or as soon thereafter as
26 the matter may be heard, in Department 3 of the Santa Barbara County Superior Court, located at
27 1100 Anacapa Street, Santa Barbara, CA 93101, Plaintiffs Mark Sellars, individually and as
28 Trustee of the Rosemary Free Trust u/d/t dated September 13, 2000, and Rebecca Morin,
PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR,
LEAVE TO FILE SECOND AMENDED COMPLAINT
Conservator of the Estate and Person of Rosemary Free Leahy (“Plaintiffs”), will and hereby do
move this Court for an order granting Plaintiffs leave to file their Second Amended Complaint
for
Elder Abuse; Financial Elder Abuse; Legal Malpractice; Breach of Fiduciary duty; Intentional
Infliction of Emotional Distress; and Negligence pursuant to this Notice of Motion and Motion for
Leave to File Second Amended Complaint (“Plaintiffs’ Amended Motion ”).
Plaintiffs’ Second Amended Complaint for Elder Abuse; Financial Elder Abuse; Legal
Malpractice; Breach of Fiduciary duty; Intentional Infliction of Emotional Distress; and
Negligence (the “Proposed Second Amended Complaint”) has been prepared in response to the
demurrers and motions to strike file by defendants Channe Coles and The Law Office of Channe
10 G. Coles, and by caregiver defendants Patricia Wollum and Susan Reynolds. The Proposed Second
11 Amended Complaint is also necessary to add defendant Honor Home Care Services California,
12 Inc., as Plaintiffs just learned in May 2023 that Honor Home Care Services California, Inc., was
13 the employer of caregiver defendants Patricia Wollum and Susan Reynolds at the time said
14 caregivers committed the acts complained of in the Proposed Second Amended Complaint.
15 Accordingly, in order to add Honor Home Care Services California, Inc., as a defendant
16 herein, and in order to address the issues raised in the demurrers and motions to strike filed by the
17 above-referenced defendants, Plaintiffs’ seek to amend the First Amended Complaint filed by
18 Plaintiffs on January 23, 2023 (the “FAC”) by the Proposed Second Amended Complaint filed
19 herewith, which complaint substantially modifies and supplements the FAC, seeks to add Honor
20 Homes Honor Home Care Services California, Inc., as an additional defendant, and addresses the
21 issues raised in the demurrers and motions to strike filed by the above-referenced defendants.
22 The Proposed Second Amended Complaint attached hereto as Exhibit “1” contains
23 additional changes necessary to address the demurres and motions to strike and to properly add
24 Honor Home Care Services California, Inc., as a defendant herein.
25 In order to clearly show the revisions made in Plaintiff's Second Amended Complaint,
26 "clean" and "strikethrough" versions of the Plaintiffs’ First Amended Complaint and Second
27 Amended Complaint are attached as Exhibit “1” and Exhibit “2” to the Declaration of David J.
28 Tappeiner filed in support hereof, which show all of the proposed revisions made to the FAC.
PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR,
LEAVE TO FILE SECOND AMENDED COMPLAINT
While the above-referenced clean and strikethrough versions clearly show all substantive
changes, such changes are also generally summarized in Mr. Tappeiner’s Declaration.
As set forth more fully in the Memorandum of Points and Authorities attached hereto,
Plaintiffs’ Motion should be granted as (i) the motion is timely; (ii) no undue prejudice or hardship
to any party will result from this amendment; and (iii) the ends of justice will be served.
Plaintiffs’ Motion is made pursuant to California Code of Civil Procedure Section
473(a)(1) on the grounds that Plaintiffs’ Proposed Second Amended Complaint should be
permitted in furtherance of justice. Plaintiffs’ Motion is based on this Notice of Motion, the
Memorandum of Points and Authorities and Declarations of David J. Tappeiner and Mark Sellars
10 filed in support, and all of the files and records of this action, matters of which the Court may take
11 judicial notice, the Proposed Second Amended Complaint attached hereto, and such further
12 argument and evidence as may be presented at or before the hearing.
13 DT LAW PARTNERS, LLP
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/s/ David J. Tappeiner
15 Dated: September 6, 2023
David J. Tappeiner
16 Attorneys for Plaintiffs
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PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR,
LEAVE TO FILE SECOND AMENDED COMPLAINT
MEMORANDUM OF POINTS AND AUTHORITIES
I INTRODUCTION
This cases involves the abuse of Plaintiffs’ elderly mother, Rosemary Free Leahy
(“Rosemary”). Rosemary is age 92, is under Conservatorship, and suffers from severe cognitive
disabilities. As explained in detail in the Plaintiffs’ Proposed Second Amended Complaint, as
Rosemary’s faculties became compromised in or around year 2017, Rosemary’s husband, Partick
Leahy (“Mr. Leahy”) began to abuse Rosemary, financially, emotionally, and otherwise. As if
that was not bad enough, defendant attorney Channe Coles, who claimed to be, and was supposed
to be, representing Rosemary in connecton with the conservatorship proceeding that was initiad
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by her son, Mark Sellars (plaintiff herein), instead egregeiously represented the interests of Mr.
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Leahy, the very person who was abusing Rosemary. Equally egregious, defendants Patricia
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Wollum and Susan Reynolds, caregivers who were hired by Rosemary’s Conservator to provide
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care and protection to Rosemary, failed to report the continued abuse of Rosemary by Mr. Leahy
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that they witnessed, and engaged in actions to assist Mr. Leahy to conceal and avoid being held
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accountable for the egregious abusive actions againt Rosemary, his mentally compromised spouse.
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Each defendant named in Plaintiffs’ Proposed Second Amended Complaint committed
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egregious acts of abuse and negligence against Rosematy and each breached the fiduciary duties
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which they owed to Rosemary, all of which allowed the primary perpetrator of the abuse against
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Rosemary, i.e., her husband Patrick Leahy, to continue to abuse Rosemary. Newly added caregiver
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defendants Patricia Wollum and Susan Reynolds were employed by Honor Home Care Services
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California, Inc. (“Honor”) when they engaged in the heinous conduct described in Plaintiffs’
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Proposed Second Amended Complaint. However, as explained herein and in the Declarations of
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Mark Sellars and Rebecca Morin filed herewith, Plaintiffs were originally told by the former
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professional Conservator that their employer was Help Unlimited, Inc. Since filing the FAC
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naming Help Unlimited as a defendnant, Plaintiffs learned thay Honor was in fact the employer of
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Patricia Wollum and Susan Reynolds at all relevant times.
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PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR,
LEAVE TO FILE SECOND AMENDED COMPLAINT
Based on such information, Plaintiffs dismissed Help Unlimited as a defendant, without
prejudice. Plaintiffs then filed a “Doe Amendment” on May 26, 2023 attempting to add Honor as
“Doe” defendant, however, Plaintiffs then learned that Honor had and has no affiliation with Help
Unmited. As such, Plaintiffs’ Second Amendment was ineffective to add Honor as a defendant
herein. Accordingly, Plaintffs dismissed Honor, without prejudice, and now seek to add Honor as
a defendant pursuant to this Amended Motion.
The acts of each defendant named in the Proposed Second Amended Complaint are acts
committed against a 92-year old incapacitated woman. Said defendants must be held accountable
for their conduct. Therefore, in the furtherance of justice, Plaintiff seeks leave to file their
10 Proposed Second Amended Complaint pursuant to California Code of Civil Procedure § 473(a)(1).
11 Il. STATEMENT OF FACTS AND RELEVANT PROCEDURAL HISTORY
12 This matter began with a Conservatorship that was established Rosemary in related case
13 entitled In Re: Conservatorship of the Estate and Person of Rosemary Free Leahy, Santa Barbara
14 Superior Court Case No. 18PR00576 (the “Conservatorship Proceeding”).
15 After a Conservator was appointed for Rosemary, as additional facts were uncovered
16 confirming Mr. Leahy’s abuse of Rosemary, financially, emotionally, and otherwise, Mark
17 individually and as current Trustee of his mother’s trust, the Rosemary Free Trust u/d/t dated
18 September 13, 2000 (““Rosemary’s Trust”), filed his elder abuse complaint (the “Original
19 Complaint”) in this matter against Mr. Leahy, the sole named defendant at that time.
20 Prior to February 10, 2022, professional fiduciaries Jacquelyn Quinn and then Courtney
21 DeSoto served as Rosemary’s conservators. On February 10, 2022, Rosemary’s daughter and
22 Plaintiff herein, Rebecca Morin (“Becky”), was appointed as Rosemary’s Conservator and
23 continues to act in that capacity.
24 After Becky was appointed as her mother’s Conservator, and after Mark was able to take
25 Mr. Leahy’s Deposition in connection with the Original Complaint, and the occurrence of the other
26 events described in detail in the Proposed Second Amended Complaint, evidence was discovered
27 supporting the claims made by Plaintiffs against Channe Coles, the Law Office of Channe G.
28 Coles, Patricia Wollum, Susan Reynolds, and the employer of Patricia Wollum and Susan
PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR,
LEAVE TO FILE SECOND AMENDED COMPLAINT
Reynolds. As such, on November 9, 2022, Mark filed his Motion for Leave to File First Amended
Complaint to amend the Original Complaint: (i) to add Becky as a Plaintiff in her capacity as
Rosemary’s Conservator; and (ii) to name attorney Channe Coles, the Law Office of Channe G.
Coles, Patricia Wollum, Susan Reynolds, and Help Unlimited, Inc., as additional defendants. The
Court approved Mark’s motion and the First Amended Complaint (the “FAC”) was filed on
January 23, 2023. It was important to add Becky as a Plaintiff as she has the authority to pursue
the claims against attorney Coles and her law office on her mothe’rs behalf for the malpractice,
breach of fiduciary duty, and other egregious actions undertaken by attorney Coles in the course
of her alleged representation of Rosemary in connection with the Conservatorship Proceeding.
10 On April 26, 2023, attorney Channe Coles and the Law Office of Channe G. Coles filed
11 a Demurrer and Motion to Strike to the FAC. On June 20, 2023, defendants Patricia Wollum and
12 Susan Reynolds filed their own Demurrer and Motion to Strike. The hearing on said demurrers
13 and motions to strike referenced above was originally set for July 19, 2023.
14 In response to the demurrers and motions to strike, Plaintiffs filed a motion seeking leave
15 to file an amended Complaint, setting the hearing date on such motion for August 2, 2023. The
16 demurrer and motion to strike filed by defendants Wollum and Reynolds were then withdrawn.
17 However, attorney Channe Coles and the Law Office of Channe G. Coles (the “Coles’
18 Defendants”) opposed Plaintffs’ Original Motion.
19 As explained above, Honor, the employer of Wollum and Reynolds, needs to be added as
20 a “Doe” defendant by way of this motion. It is necessary to file Motion along with the Proposed
21 Second Amended Complaint referenced herein. Assuming the Court grants the relief requested by
22 Plaintiffs in this Motion and leave is granted for Plaintiffs to file the Proposed Second Amended
23 Complaint, all defendants responsible for the harm and damages caused to Rosemary and her
24 family will be before the Court in this action..
25 Til. ARGUMENT
26 A CALIFORNIA LAW PROVIDES FOR THE LIBERAL AMENDMENT OF
PLEADINGS.
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28 "The court may, in furtherance of justice, and on any terms as may be proper, allow a
party to amend any pleading[.]" Cal. Civ. Proc. Code§ 473(a)(1); see also Cal. Civ. Proc. Code
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PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR
LEAVE TO FILE SECOND AMENDED COMPLAINT
§576 ("Any judge, at any time before or after commencement of trial, in the furtherance of
justice, and upon such terms as may be proper, may allow the amendment of any pleading.").
"There is a strong policy in favor of liberal allowance of amendments." Mesler v. Bragg Mgmt.
Co. (1985), 39 Cal. 3d 290, 296. If the granting of a timely motion for leave to amend "will not
prejudice the opposing party, it is error to refuse permission to amend, and where the refusal also
results in a party being deprived of the right to assert a meritorious cause of action[;] it is not
only error but an abuse of discretion." Morgan v. Super. Ct., 172 Cal. App. 2d (1959) 527,530
(finding that the trial court acted arbitrarily and abused its discretion when it denied a motion for
leave to file an amended complaint that was filed before a trial date had been set). "[I]t is a rare
10 case in which a court will be justified in refusing a party leave to amend his pleadings so that he
11 may properly present his case." Morgan, 172 Cal. App. 2d at 530 (citations omitted) (internal
12 quotation marks omitted).
13 B PLAINTIFFS’ MOTION SHOULD BE GRANTED BECAUSE PLAINTIFFS’
REQUEST FOR LEAVE TO AMEND IS TIMELY AND BECAUSE DEFENDANTS WILL
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NOT BE PREJUDICED IF PLAINTIFFS’ MOTION IS GRANTED.
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16 No defendant named herein will suffer any prejudice whatsoever by granting the relief
17 requested by Plaintiffs. As explained above, after considering the demurrers and motions to strike
18 filed by defendants Channe Coles, the Law Office of Channe G. Coles, and Patricia Wollum, and
19 Susan Reynolds, and after learning that Honor needed to be substituted in as a defendant for
20 previously named Help Unlimited, Plaintiffs determined that the best course of action is to seek
21 leave of this Court to file their Proposed Third Amendment. A separate action could be filed
22 against Honor and the cases could then be consolidated but Plaintiffs’ request to add Honor as a
23 “Doe” defendant in this matter is proper, timely, and promotes judicial economy.
24 Prejudice is the “touchstone” of the Court’s decision on whether to grant leave to amend.
25 Eminence Capital, LLC v. Aspeon, Inc. (9th Cir. 2003) 316 F.3d 1048, 1052. Prejudice however is
26 more than simply requiring a party to respond to a valid cause of action or defend against a stronger
27 case than before the amendment. Hirsa v. Sup. Ct. (1981) 118 Cal.App.3d 486, 490 (“It is difficult
28 to understand how ... a defendant can be prejudiced by amendment to add an additional theory of
liability against it.”); Gonzales v. Brennan (1965) 238 Cal.App.2d 69, 75 (“To be sure without the
PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR,
LEAVE TO FILE SECOND AMENDED COMPLAINT
1 amendment [plaintiff] might have won his lawsuit; with it, he was bound to lose, but as the cases
2 just cited demonstrate prejudice and detriment are not synonymous”); Zellerino v. Brown (1991)
235 Cal.App.3d 1097, 1109 (“prejudice is an unfair result, not an unfavorable one”).
There will be absolutely no prejudice to any defendants named herein if the Court grants
the relief requested by Plaintffs herein. This has essentially become a “new” case in that there are
four (4) defendants being added and Becky has now been added as a Plaintiff. No answers have
been filed expect by Mr. Leahy as to the Original Complaint filed. Furthermore, Honor was only
recently identified as a proper defendant and should be added as a “doe” defendant and pursuant
to the “relation back” doctrine. CCP § 474. In addition, the filing of the Second Amended
10 Complaint is intended to address the concerns and issues raied by the demurrers and motions to
11 strike filed by defendants Channe Coles, the Law Office of Channe G. Coles, Patricia Wollum,
12 and Susan Reynolds. Each such defendant continues to have the right to file a demurrer or motion
13 to strike to Plaintiffs’ Proposed Second Amended Complaint, if any such defendant determines it
14 is appropriate to do so. Lastly, the case not at issue yet, no trial date has been set, and discovery
15 as to the newly added or defendants and those proposed to be added has not commenced.
16 For all of the reasons set forth above, no defendant will be prejudiced by granting the relief
17 requested by Plaintiffs in this Amended Motion.
18 Cc PLAINTIFFS HAVE MET THE FUNDAMENTAL STANDARDS FOR LEAVE
19 TO AMEND.
20 Plaintiffs previously filed a short reply to the Opposition filed by the Coles Defendants,
21 explain that Plaintiffs would be filing this Amended Motion along with their Proposed Second
22 Amended Complaint. All such defendnats shall have the right and opportunity to object to
23 Plaintiffs’ Amended Motion. Thereafter, if such motion is granted, each defendant will also
24 have the opportunity to try to attack the pleading by demurrer, motion to strike, or otherwise.
25 The claims and causes of action plead in Plaintiffs’ Proposed Second Amended
26 Complaint are the same as set forth in Plaintffs’ FAC. Plaintiffs have provided additional facts
27 and evidence to support their claims and to address the issues raised in the demurrers and
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PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR,
LEAVE TO FILE SECOND AMENDED COMPLAINT
motions to strike filed by defendants in response to Plaintiffs’ Original Motion and Plaintiffs’
Original Second Amended Complaint.
Moreover, allowing leave to Plaintiffs to file the Proposed Second Amended Complaint
will serve the ends of justice and judicial economy. More likely than not, if the Court had
sustained the demurrers filed by defendants, the Court would have given Plaintiffs leave to
amend the FAC. Rather than wait, Plaintiffs have elected to instead seek leave of the Court to
file Plaintffs’ Proposed Second Amended Complaint now.
D. AS EXPLAINED IN THE DECLARATION OF DAVID J. TAPPEINER FILED
IN SUPPORT HEREOD, ALTHOUGH THE SECOND AMENDED COMPLAINT
10 SUBSTANTIALLY MODIFIES AND SUPPLEMENTS THE FIRST AMENDED
11 COMPLAINT, NO NEW CAUSES OF ACTION ARE ADDED; RATHER ADDITIONAL
12 FACTS AND EXHIBITS WERE ADDED IN ORDER TO SUPPORT PLAINTIFFS’ CLAIMS
13 AND TO ADDRESS THE ISSUES RAISED BY DEFEDANTS’ DEMMURRERS.
14 Due to extent of the modifications to the FAC made by Plaintiffs’ proposed Second
15 Amended Complaint, rather than attempt to list every such change made, “clean" and
16 "strikethrough" versions of the proposed Second Amended Complaint are attached as Exhibit “1”
17 and Evhibit “2” to the Declaration of David J. Tappeiner filed in support hereof, which clearly
18 show all such changes.
19 Iv. CONCLUSION
20 In light of Plaintiffs’ good faith and timely conduct, the fact that the Second Amended
21 Complaint will serve the ends of justice and judicial economy and will not prejudice any
22 defendant named therein, Plaintiff respectfully request the Court grant Plaintiffs’ Motion and
23 allow Plaintiffs to file their Proposed Second Amended Complaint attached hereto as Exhibit 1
24 and that such complaint be deemed to have been filed upon approval of this Motion.
25 Respectfully Submitted,
26 DT LAW PARTNERS, LLP
27 /s/s David J. Tappeiner
Dated: September 6, 2023 B
28 David J. Tappeiner
Attorneys for Plaintiffs
PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR,
LEAVE TO FILE SECOND AMENDED COMPLAINT
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PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR
LEAVE TO FILE SECOND AMENDED COMPLAINT
EXHIBIT 1
EXHIBIT 1
EXHIBIT 1
EXHIBIT 1
David J. Tappeiner (SBN 243979)
DT LAW PARTNERS, LLP
125 East Victoria, Suite I
Santa Barbara, California 93101
Telephone: (805) 456-8323
Facsimile: (805) 453-8055
Email: david@dtlawpartners.com
Attorneys 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
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SANTA BARBARA
ANACAPA DIVISION
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MARK SELLARS, individually and as Case No. 20CV04132
11 Trustee of the Rosemary Free Trust u/d/t
dated September 13, 2000; and REBECCA [Assigned for all purposes to Hon.
12 MORIN, Conservator of the Estate and Thomas P. Anderle]
Person of Rosemary Free Leahy,
13 PLAINTIFFS’ SECOND AMENDED
Plaintiffs, COMPLAINT FOR:
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vs. 1. ELDER ABUSE;
15 2. FINANCIAL ELDER ABUSE;
PATRICK LEAHY; CHANNE COLES, 3. LEGAL MALPRACTICE;
16 THE LAW OFFICE OF CHANNE G. 4. BREACH OF FIDUCIARY DUTY;
COLES, a California corporation; 5. INTENTIONAL INFLICTION OF
17 PATRICIA WOLLUM; SUSAN EMOTIONAL DISTRESS: AND
REYNOLDS; HONOR HOME CARE 6. NEGLIGENCE
18 SERVICES CALIFORNIA, INC., a
Delaware corporation doing business in NO TRIAL DATE SET
19 California; and DOES 1-10, inclusive,
20 Defendants.
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Plaintiffs Mark Sellars, individually and as Trustee of the Rosemary Free Trust u/d/t dated)
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September 13, 2000, and Rebecca Morin , Conservator of the Estate and Person of Rosemary Free}
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Leahy, by and through their attorneys, DT LAW PARTNERS, LLP, submit this Second Amende
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Complaint for Elder Abuse; Financial Elder Abuse; Legal Malpractice; Intentional Infliction off
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Emotional Distress; Breach of Fiduciary Duty, and Negligence against the defendants identifie:
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PLAINTIFFS’ SECOND AMENDED COMPLAINT FOR ELDER ABUSE; FINANCIAL ELDER ABUSE; LEGAL MALPRACTICE;
BREACH OF FIDUCIARY DUTY; INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS: AND NEGLIGENCE
above and remaining Doe Defendants 1-10 (individually and collectively, “Defendants”), and i
support thereof allege as follows:
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THIS SECOND AMENDED COMPLAINT IS NECESSARY IN ORDER TO ADD
HONOR HOME CARE SERVICES CALIFORNIA, INC., AS A “DOE” DEFENDANT
IN THESE PROCEEDINGS AND TO ADDRESS THE ISSUES RAISED IN THE
DEMURRER AND MOTION TO STRIKE FILED BY DEFENDANTS CHANNE COLES
AND THE LAW OFFICE OF CHANNE G. COLES
1 Rosemary Free Leahy (“Rosemary”) began suffering from cognitive disabilities in or
10 around 2017. As soon as Rosemary became compromised, her third-husband, Patrick Leahy (“Mr]
11 Leahy”), started to abuse Rosemary, financially, emotionally, and otherwise. Because of the abuse|
12 committed against Rosemary by Mr. Leahy, her son, Mark Sellars (“Mark”), filed to have
13 Rosemary conserved on December 5, 2018, which was ultimately granted. Rosemary is now 92!
14 years old. Unfortunately, her dementia is now so advanced that she has had to be moved from he
15 home to a memory care facility, something Rosemary wished would never happen.
16 2. As Mark had been designated by Rosemary to act as her Conservator, in his Petition for
17 Appointment of Probate Conservator for Rosemary in related case In Re: Conservatorship of th
18 Estate and Person of Rosemary Free Leahy, Santa Barbara Superior Court Case No. 18PR005764
19 (the “Conservatorship Proceeding”), Mark requested that he be appointed as Rosemary’s
20 Conservator. As explained further below, as Mr. Leahy filed a meritless objection to Mark’s
21 request, a temporary conservatorship was established for Rosemary by Court order dated Marc
22 21, 2019 (filed on March 26, 2019, the same date Letters of Temporary Conservatorship were}
23 issued), appointing professional fiduciary Jacquelyn Quinn as Rosemary’s temporary Conservator]
24 Ms. Quinn later became the general Conservator for Rosemary
25 3. On December 11, 2020, Mark individually and as current Trustee of his mother’s trust, the
26 Rosemary Free Trust u/d/t dated September 13, 2000 (“Rosemary’s Trust”), filed his elder abuse
27 complaint (the “Original Complaint’) in this matter against Mr. Leahy, the sole named defendant
28 at that time. 2
PLAINTIFFS’ SECOND AMENDED COMPLAINT FOR ELDER ABUSE; FINANCIAL ELDER ABUSE; LEGAL MALPRACTICE;
BREACH OF FIDUCIARY DUTY; INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS: AND NEGLIGENCE
4. Prior to February 10, 2022, as explained further below, professional conservators
Jacquelyn Quinn and then Courtney DeSoto served as Rosemary’s conservators. On February 10)
2022, Rosemary’s daughter and Plaintiff herein, Rebecca Morin (“Becky”), was appointed as
Rosemary’s Conservator and continues to act in that capacity.
5. After Becky was appointed as her mother’s Conservator, and after Mark was able to take
Mr. Leahy’s Deposition in this case, and the occurrence of the other events described hereinafter
evidence was discovered which supports the claims made herein against the recently added|
defendants, attorney Channe Coles, the Law Office of Channe G. Coles, and caregivers Patrici
Wollum (“Wollum”) and Susan Reynolds (“Reynolds”), each of whom were added as defendants}
10 pursuant to Plaintiffs’ First Amended Complaint dated January 23, 2023 (the “FAC’), which was
11 approved by the Court pursuant to Mark’s Motion for Leave to File First Amended Complaint.!
12 6. When Mark filed his Motion for Leave to File First Amended Complaint, based o1
13 information that was provided to Becky and Mark, it was believed that a company known as Help|
14 Unlimited, Inc., was the employer of defendant caregivers Reynolds and Wollum. As such, the
15 Court approved the request to add Help Unlimited, Inc., as an additional defendant.
16 7. On April 26, 2023, attorney Channe Coles and the Law Office of Channe G. Coles filed
17 a demurrer to the FAC and a motion to strike certain portions of the FAC.
18 8. After the FAC was filed, it was discovered that Honor Home Care Services California, Inc]
19 (“Honor”), was the employer of defendants Wollum and Reynolds rather than Help Unlimited.
20 Inc., as originally believed. Based on such discovery, on or about May 26, 2023, Plaintiffs filed]
21 an amendment to the FAC, seeking to substitute Honor as a defendant in place of Help Unlimited]
22 Inc., and to dismiss Help Unlimited, Inc., as a defendant, without prejudice.
23 9. The above-referenced amendment was approved and Honor was served with the summons}
24 and complaint. Thereafter, after Honor was served, it was discovered that Honor has no affiliatio
25 with Help Unlimited, Inc. As such, the above-referenced amendment was ineffective to add Hono
26 as a defendant in this action. Accordingly, on July 11, 2023, Honor was dismissed as a defendant.
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28 ' On January 23, 2023, the Court approved Mark’s Motion for Leave to File First Amended Complaint and such
irst Amended Complaint (the “FAC”) was filed on the same date.
PLAINTIFFS’ SECOND AMENDED COMPLAINT FOR ELDER ABUSE; FINANCIAL ELDER ABU LEGAL MALPRACTICE;
BREACH OF FIDUCIARY DUTY; INTENTIONAL INFLICTION OF EMOTIONAL DISTRI AND NEGLIGENCE
without prejudice. However, under Plaintiffs’ Motion for Leave to File this Second Amende
Complaint, Plaintiffs seek to add Honor as a defendant.
10. On June 20, 2023, defendants Wollum and Reynolds filed a joint demurrer and motion to
strike, which have since been withdrawn.
11. The demurrer and motion to strike filed by attorney Channe Coles and the Law Office off
Channe G. Coles (the “Coles’ Defendants”) remain pending. At the hearing on August 16, 2023
this Court ordered Plaintiffs to file their revised motion for leave to file this Second Amende
Complaint.
IL.
10 CURRENT PARTIES
11 12. Mark is Rosemary’s biological son and the current Trustee of the Rosemary Free Trust
12 u/d/t dated September 13, 2000 (“Rosemary’s Trust”), which trust held most of Rosemary’s
13 assets since it was established
14 13. Becky is Rosemary’s biological daughter and the court-appointed Conservator of
15 Rosemary’s Estate and Person in the Conservatorship Proceeding.
16 14. Mr. Leahy is Rosemary’s spouse and, at all times mentioned herein, was an individual
17 residing in Santa Barbara County, California.
18 15. Defendant Channe Coles is a duly licensed attorney by the State Bar of California
19 practicing in Santa Barbara County, State Bar Number 261234.
20 16. Defendant The Law Office of Channe G. Coles is a California corporation doing
21 business in Santa Barbara at 19 East Mission Street, Suite B, Santa Barbara, CA 93101.
22 17. For the reasons stated above, defendant Help Unlimited, Inc., has been dismissed without
23 prejudice.
24 18. Defendant Wollum is or was employed by Honor and was paid to provide caregiving
25 services to Rosemary and, in connection with such services, engaged in wrongful acts at]
26 Rosemary’s home in Santa Barbara County, which acts caused injury to Rosemary.
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PLAINTIFFS’ SECOND AMENDED COMPLAINT FOR ELDER ABUSE; FINANCIAL ELDER ABUSE; LEGAL MALPRACTICE;
BREACH OF FIDUCIARY DUTY; INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS: AND NEGLIGENCE
1 19. Similarly, Defendant Reynolds is or was employed by Honor and was paid to provide
caregiving services to Rosemary and, in connection with such services, engaged in wrongful acts|
at Rosemary’s home in Santa Barbara County, which acts caused injury to Rosemary.
20. For the reasons stated above, Plaintiffs are filing their Motion for Leave to file this
Second Amended Complain to add Honor as a defendant and to address issues raised by the Coles’
Defendants in their Demurrer and Motion to Strike. Honor is a Delaware corporation doing
business in California, with its principal place of business is at 201 3rd Street, Suite 1010, Sa
Francisco, California 94103.
21. Remaining Does | through 10, inclusive, are individuals, corporations, partnerships, or
10 other entities whose identity and form are unknown to Plaintiffs, who therefore sue sai
11 individuals, corporations, partnerships or other entities under such fictitious names, pursuant to the
12 provisions of Section 474 of the California Code of Civil Procedure. Plaintiffs will amend this
13 Complaint to allege the true names and capacities of such individuals, corporations, partnerships
14 or other entities at such time as the same have been ascertained. Plaintiffs are informed and
15 believe, and based thereon allege, that each of the fictitiously named individuals, corporations,
16 partnerships or other entities is liable and responsible in some manner for the claims, demands]
17 losses, acts, and damages alleged herein.
18 22. Plaintiffs believe and allege that the tortious acts and omissions of Defendants and
19 the fictitiously named individuals, corporations, partnerships or other entities, and each of them
20 were done in concert with each other and pursuant to a common design and agreement to}
21 accomplish a particular result, and that Defendants and the fictitiously named individuals)
22 corporations, partnerships or other entities, and each of them, enabled, aided and abetted each othe
23 in accomplishing the acts and omissions alleged herein.
24 Ti.
25 VENUE AND JURISDICTION
26 23. This Court has jurisdiction over this action pursuant to the California Constitution,
27 Article VI, Section 10, which grants the superior court “original jurisdiction” in all other causes”
28 5
PLAINTIFFS’ SECOND AMENDED COMPLAINT FOR ELDER ABUSE; FINANCIAL ELDER ABUSE; LEGAL MALPRACTICE;
BREACH OF FIDUCIARY DUTY; INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS: AND NEGLIGENCE
except those given by statute to other courts. The statutes under which this action is brought do
not specify any other basis for jurisdiction.
24. This Court has jurisdiction over Defendants because, upon information and belief,
the individually named defendants are citizens of the United States and at all times relevant
hereto did reside in Santa Barbara County, California and/or each defendant has sufficient
minimum contacts in California or have otherwise intentionally availed themselves of the
California market so as to render the exercise of jurisdiction over such defendants by the
California courts consistent with traditional notions of fair play and substantial justice.
25. Venue is proper in this Court because all of the wrongs committed against
10 Rosemary occurred here in Santa Barbara County, the corporate defendants maintain offices,
11 have agents, and/or transact business in the State of California, in Santa Barbara County, and, at
12 all relevant times hereto, the individually named defendants resided here or have otherwise
13 consented to venue here. In addition, the Conservatorship Proceeding for Rosemary remains
14 pending here.
15 Iv.
16 ROSEMARY’S BACKGROUND, EVENTS LEADING TO INITIATION OF
17 CONSERVATORSHIP FOR ROSEMARY AND ELDER ABUSE OF ROSEMARY
18 ENGAGED IN BY MR. LEAHY
19 26. Rosemary was a lifelong medical professional. She received her degree from Columbia
20 University, became the Director of Nurses at Santa Barbara Cottage Hospital, and eventually
21 served as the Nursing Administrator of the USC-LAC medical center.
22 27. Rosemary raised her children as a single-mother and worked hard to build a home for
23 them in Santa Barbara despite her commutes to Los Angeles for many years.
24 28. Through her hard work, Rosemary took care of her children, acquired assets and was
25 financially secure. Rosemary was always smart, tough, and opinionated and valued her family
26 over anything else.
27 Mil
28
PLAINTIFFS’ SECOND AMENDED COMPLAINT FOR ELDER ABUSE; FINANCIAL ELDER ABUSE; LEGAL MALPRACTICE;
BREACH OF FIDUCIARY DUTY; INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS: AND NEGLIGENCE
1 29. Before marrying Mr. Leahy in 1999, Rosemary had a Premarital Agreement prepared and
executed in order to ensure that her assets were protected in the case of a divorce from Mr.
Leahy. While Rosemary owned substantial assets that time of marriage, including her home, Mr,
Leahy had virtually no assets. Rosemary repeatedly told Mark that she did not want Mr. Leahy
to be in charge of any of her finances. She also made this clear in her estate planning documents,
prohibiting Mr. Leahy from acting as her trustee or agent.
30. In addition to the Premarital Agreement, Rosemary executed estate planning documents
in September 2000, under which Mark was named as her successor Trustee, Executor, and
primary agent for health and financial decisions.
10 31. As explained above, as Mr. Leahy continued to abuse Rosemary, which included
11 isolating her from her family and cutting off all communications, Mark had no choice but to file
12 his petition to have Rosemary conserved.
13 32. As part of his scheme to keep Rosemary isolated, Mr. Leahy removed Rosemary from the|
14 care of her primary physician, Dr. Robert Byers, who had been Rosemary’s physician for at least
15 15 years. In 2017, Dr. Byers indicated that he believed that Rosemary might be suffering from
16 early Alzheimer’s Disease and ordered further testing. Future appointments were scheduled for
17 Rosemary in order to have her further evaluated. As soon as Mr. Leahy learned of Dr. Byers’
18 diagnosis and realized the uncovering of his abuse and financial wrongdoings were imminent, he
19 panicked and removed Rosemary from the care of Dr. Byers.
20 33. Although Rosemary was experiencing cognitive decline, she still had the ability to
21 understand that she needed assistance. She sought such assistance from her children and adult
22 grandchildren and did not seek assistance from Mr. Leahy because she knew he could not be
23 trusted.
24 34. Prior to the time Mark commenced the Conservatorship Proceeding, Rosemary asked
25 Mark to move into her home in 2017, to evaluate her situation and render assistance. It was clear|
26 to Mark at that time that his mother was beginning to have memory issues and needed help, so
27 Mark agreed.
28 Mil
PLAINTIFFS’ SECOND AMENDED COMPLAINT FOR ELDER ABUSE; FINANCIAL ELDER ABUSE; LEGAL MALPRACTICE;
BREACH OF FIDUCIARY DUTY; INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS: AND NEGLIGENCE
1 35. After Mark moved into Rosemary’s home to assist her, he learned that her prescriptions
were cut off due to numerous missed doctor’s appointments. Rosemary could not drive and ha
been relying on Mr. Leahy to assist her with maintaining appointments and for transportation. Ag
part of his overall plan, Mr. Leahy ensured that Rosemary was not treated for her cognitive
difficulties and that her prescriptions went unfilled.
36. In addition to the foregoing, Mark discovered serious financial issues concerning
Rosemary, including but not limited to the fact that the amount of money that was being spent o
gambling by Rosemary and Mr. Leahy (primarily using Rosemary’s money) was many times
greater than Rosemary allocated towards gambling when she had capacity.
10 37. Mr. Leahy exercised control over and unduly influenced Rosemary, his impaired wife, in
11 ways that allowed him to socially and physically isolate her from her familiar network of protectio
12 — email, Skype, phone calls and regular visits with her family.
13 38. Mark, Becky, and other of Rosemary’s family attempted hundreds of contacts with
14 Rosemary that were unsuccessful due to Mr. Leahy’s continued isolation of Rosemary and his
15 attempts to unduly influence Rosemary to fear her family.
16 39, Examples of Mr. Leahy’s abuse of Rosemary before and after a conservator was
17 appointed for her include and are not limited to the following:
18 a. At the first supervised visit with Rosemary in March 2019, mediator Lol
19 Sorenson reported that Rosemary did not know she was not seeing her family and thereb
20 confirmed Mr. Leahy’s isolation and abuse of Rosemary;
21 b For the first family unsupervised visit in April 2019, Mr. Leahy was told by
22 the temporary conservator not to be present but was present and disrupted the visit.
23 Cc. Mr. Leahy kept the only working landline phone behind a locked home
24 office door.
25 d Mr. Leahy continually interfered with Rosemary’s ability to communicate
26 with family members (e.g., phones unplugged from phone-jacks, tampering with her cell phone.)
27 e Mr. Leahy routinely unduly influenced Rosemary prior to visitations by
28 family to spoil visits. 8
PLAINTIFFS’ SECOND AMENDED COMPLAINT FOR ELDER ABUSE; FINANCIAL ELDER ABU LEGAL MALPRACTICE;
BREACH OF FIDUCIARY DUTY; INTENTIONAL INFLICTION OF EMOTIONAL DISTRI AND NEGLIGENCE
f. Mr. Leahy removed Rosemary from her home prior to scheduled visitations
(e.g., Easter 2019).
g Mr. Leahy attempted to remove Rosemary from her home prior to visitation
(the family caught him leaving as they arrived). The visit was unpleasant and cut short because off
Mr. Leahy (Thanksgiving 2019).
h. Throughout 2020, Mr. Leahy tampered with Rosemary’s communications
to prevent contact with family. This included using the pandemic to limit phone and in perso!
communications and visits.
i Mr. Leahy took Rosemary to the Chumash Casino at least 16 times since
10 the pandemic began, five of which times occurred after he was clearly admonished not to do so
11 by Courtney DeSoto, Rosemary’s Conservator at the time. During this same time period, Mr.
12 Leahy had a sign posted on Rosemary’s door that read “No Visitors Please! We are vulnerable
13 and don’t want to get the virus.” He used COVID as a pretense to prevent family contact
14 between Rosemary and her family.
15 J Mr. Leahy paraded Rosemary to the Courthouse during the pandemic. He
16 had her stand next to him, as a prop, while he said: “[w]e object” to the fee request made by
17 Mark in the Conservatorship Proceeding.
18 k. Mr. Leahy thereafter again exploited and abused Rosemary when he had
19 her read from a script that he provided to her during the remote October 15, 2020 hearing in the
20 Conservatorship Proceeding.
21 L Later, on October 15, 2020, Mr. Leahy unduly interfered with Mark’s
22 attempt to visit Rosemary. This event, coupled with other nefarious actions taken by Mr. Leahy,
23 caused Rosemary’s then-acting conservator, Courtney DeSoto, to have to seek a restraining order|
24 against Mr. Leahy, Case No. 20CV04056 (the “Elder Abuse Restraining Order Matter.”)
25 40. Further evidence of Mr. Leahy’s abuse of Rosemary has since been uncovered. The list
26 is long so only some of the more egregious actions undertaken by Mr. Leahy are described
27 below:
28
PLAINTIFFS’ SECOND AMENDED COMPLAINT FOR ELDER ABUSE; FINANCIAL ELDER ABU LEGAL MALPRACTICE;
BREACH OF FIDUCIARY DUTY; INTENTIONAL INFLICTION OF EMOTIONAL DISTRI AND NEGLIGENCE
a. Mr. Leahy took Rosemary to the Chumash Casino repeatedly, even after being
told not by Rosemary’s Conservator, and used her money in order to gamble himself;
b Mr. Leahy facilitated and encouraged Rosemary to tak
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David J. Tappeiner (SBN 243979) DT LAW PARTNERS, LLP 125 East Victoria, Suite I Santa Barbara, California 93101 Telephone: (805) 456-8323 Facsimile: (805) 453-8055 Email: david@dtlawpartners.com Attorneys 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 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA BARBARA ANACAPA DIVSION 10 MARK SELLARS, individually and as Case No. 20CV04132 11 Trustee of the Rosemary Free Trust u/d/t dated ) September 13, 2000; and REBECCA MORIN, ) [Assigned for all purposes to Hon. Thoma: 12 Conservator of the Estate and Person of P. Anderle] Rosemary Free Leahy, 13 PLAINTIFFS’ NOTICE OF MOTION AND Plaintiffs, AMENDED MOTION FOR LEAVE TO. 14 FILE SECONDCOMPLAINT; vs. MEMORANDUM OF POINTS AND 15 AUTHORITIES; DECLARATIONS OF PATRICK LEAHY; CHANNE COLES, THE DAVID J. TAPPEINER; MARK SELLARS. 16 LAW OFFICE OF CHANNE G. COLES, a AND REBECCA MORIN IN SUPPORT California corporation; PATRICIA 17 WOLLUM; SUSAN REYNOLDS; HONOR HOME CARE SERVICES CALIFORNIA, [Proposed] 18 INC., a Delaware corporation doing business New Hearing Date: October 4, 2023 in California; and DOES 1-10, inclusive, Time: 10:00 a.m. 19 Dept.: 3 Defendants. 20 ORIGINAL ACTION FILED: 12/11/2020 21 NO TRIAL DATE SET 22 23 TO THE COURT, DEFENDANTS, AND DEFENDANTS’ RESPECTIVE ATTORNEYS 24 OF RECORD: 25 PLEASE TAKE NOTICE that on October 4, 2023, at 10:00 a.m., or as soon thereafter as 26 the matter may be heard, in Department 3 of the Santa Barbara County Superior Court, located at 27 1100 Anacapa Street, Santa Barbara, CA 93101, Plaintiffs Mark Sellars, individually and as 28 Trustee of the Rosemary Free Trust u/d/t dated September 13, 2000, and Rebecca Morin, PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR, LEAVE TO FILE SECOND AMENDED COMPLAINT Conservator of the Estate and Person of Rosemary Free Leahy (“Plaintiffs”), will and hereby do move this Court for an order granting Plaintiffs leave to file their Second Amended Complaint for Elder Abuse; Financial Elder Abuse; Legal Malpractice; Breach of Fiduciary duty; Intentional Infliction of Emotional Distress; and Negligence pursuant to this Notice of Motion and Motion for Leave to File Second Amended Complaint (“Plaintiffs’ Amended Motion ”). Plaintiffs’ Second Amended Complaint for Elder Abuse; Financial Elder Abuse; Legal Malpractice; Breach of Fiduciary duty; Intentional Infliction of Emotional Distress; and Negligence (the “Proposed Second Amended Complaint”) has been prepared in response to the demurrers and motions to strike file by defendants Channe Coles and The Law Office of Channe 10 G. Coles, and by caregiver defendants Patricia Wollum and Susan Reynolds. The Proposed Second 11 Amended Complaint is also necessary to add defendant Honor Home Care Services California, 12 Inc., as Plaintiffs just learned in May 2023 that Honor Home Care Services California, Inc., was 13 the employer of caregiver defendants Patricia Wollum and Susan Reynolds at the time said 14 caregivers committed the acts complained of in the Proposed Second Amended Complaint. 15 Accordingly, in order to add Honor Home Care Services California, Inc., as a defendant 16 herein, and in order to address the issues raised in the demurrers and motions to strike filed by the 17 above-referenced defendants, Plaintiffs’ seek to amend the First Amended Complaint filed by 18 Plaintiffs on January 23, 2023 (the “FAC”) by the Proposed Second Amended Complaint filed 19 herewith, which complaint substantially modifies and supplements the FAC, seeks to add Honor 20 Homes Honor Home Care Services California, Inc., as an additional defendant, and addresses the 21 issues raised in the demurrers and motions to strike filed by the above-referenced defendants. 22 The Proposed Second Amended Complaint attached hereto as Exhibit “1” contains 23 additional changes necessary to address the demurres and motions to strike and to properly add 24 Honor Home Care Services California, Inc., as a defendant herein. 25 In order to clearly show the revisions made in Plaintiff's Second Amended Complaint, 26 "clean" and "strikethrough" versions of the Plaintiffs’ First Amended Complaint and Second 27 Amended Complaint are attached as Exhibit “1” and Exhibit “2” to the Declaration of David J. 28 Tappeiner filed in support hereof, which show all of the proposed revisions made to the FAC. PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR, LEAVE TO FILE SECOND AMENDED COMPLAINT While the above-referenced clean and strikethrough versions clearly show all substantive changes, such changes are also generally summarized in Mr. Tappeiner’s Declaration. As set forth more fully in the Memorandum of Points and Authorities attached hereto, Plaintiffs’ Motion should be granted as (i) the motion is timely; (ii) no undue prejudice or hardship to any party will result from this amendment; and (iii) the ends of justice will be served. Plaintiffs’ Motion is made pursuant to California Code of Civil Procedure Section 473(a)(1) on the grounds that Plaintiffs’ Proposed Second Amended Complaint should be permitted in furtherance of justice. Plaintiffs’ Motion is based on this Notice of Motion, the Memorandum of Points and Authorities and Declarations of David J. Tappeiner and Mark Sellars 10 filed in support, and all of the files and records of this action, matters of which the Court may take 11 judicial notice, the Proposed Second Amended Complaint attached hereto, and such further 12 argument and evidence as may be presented at or before the hearing. 13 DT LAW PARTNERS, LLP 14 /s/ David J. Tappeiner 15 Dated: September 6, 2023 David J. Tappeiner 16 Attorneys for Plaintiffs 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR, LEAVE TO FILE SECOND AMENDED COMPLAINT MEMORANDUM OF POINTS AND AUTHORITIES I INTRODUCTION This cases involves the abuse of Plaintiffs’ elderly mother, Rosemary Free Leahy (“Rosemary”). Rosemary is age 92, is under Conservatorship, and suffers from severe cognitive disabilities. As explained in detail in the Plaintiffs’ Proposed Second Amended Complaint, as Rosemary’s faculties became compromised in or around year 2017, Rosemary’s husband, Partick Leahy (“Mr. Leahy”) began to abuse Rosemary, financially, emotionally, and otherwise. As if that was not bad enough, defendant attorney Channe Coles, who claimed to be, and was supposed to be, representing Rosemary in connecton with the conservatorship proceeding that was initiad 10 by her son, Mark Sellars (plaintiff herein), instead egregeiously represented the interests of Mr. 11 Leahy, the very person who was abusing Rosemary. Equally egregious, defendants Patricia 12 Wollum and Susan Reynolds, caregivers who were hired by Rosemary’s Conservator to provide 13 care and protection to Rosemary, failed to report the continued abuse of Rosemary by Mr. Leahy 14 that they witnessed, and engaged in actions to assist Mr. Leahy to conceal and avoid being held 15 accountable for the egregious abusive actions againt Rosemary, his mentally compromised spouse. 16 Each defendant named in Plaintiffs’ Proposed Second Amended Complaint committed 17 egregious acts of abuse and negligence against Rosematy and each breached the fiduciary duties 18 which they owed to Rosemary, all of which allowed the primary perpetrator of the abuse against 19 Rosemary, i.e., her husband Patrick Leahy, to continue to abuse Rosemary. Newly added caregiver 20 defendants Patricia Wollum and Susan Reynolds were employed by Honor Home Care Services 21 California, Inc. (“Honor”) when they engaged in the heinous conduct described in Plaintiffs’ 22 Proposed Second Amended Complaint. However, as explained herein and in the Declarations of 23 Mark Sellars and Rebecca Morin filed herewith, Plaintiffs were originally told by the former 24 professional Conservator that their employer was Help Unlimited, Inc. Since filing the FAC 25 naming Help Unlimited as a defendnant, Plaintiffs learned thay Honor was in fact the employer of 26 Patricia Wollum and Susan Reynolds at all relevant times. 27 Mil 28 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR, LEAVE TO FILE SECOND AMENDED COMPLAINT Based on such information, Plaintiffs dismissed Help Unlimited as a defendant, without prejudice. Plaintiffs then filed a “Doe Amendment” on May 26, 2023 attempting to add Honor as “Doe” defendant, however, Plaintiffs then learned that Honor had and has no affiliation with Help Unmited. As such, Plaintiffs’ Second Amendment was ineffective to add Honor as a defendant herein. Accordingly, Plaintffs dismissed Honor, without prejudice, and now seek to add Honor as a defendant pursuant to this Amended Motion. The acts of each defendant named in the Proposed Second Amended Complaint are acts committed against a 92-year old incapacitated woman. Said defendants must be held accountable for their conduct. Therefore, in the furtherance of justice, Plaintiff seeks leave to file their 10 Proposed Second Amended Complaint pursuant to California Code of Civil Procedure § 473(a)(1). 11 Il. STATEMENT OF FACTS AND RELEVANT PROCEDURAL HISTORY 12 This matter began with a Conservatorship that was established Rosemary in related case 13 entitled In Re: Conservatorship of the Estate and Person of Rosemary Free Leahy, Santa Barbara 14 Superior Court Case No. 18PR00576 (the “Conservatorship Proceeding”). 15 After a Conservator was appointed for Rosemary, as additional facts were uncovered 16 confirming Mr. Leahy’s abuse of Rosemary, financially, emotionally, and otherwise, Mark 17 individually and as current Trustee of his mother’s trust, the Rosemary Free Trust u/d/t dated 18 September 13, 2000 (““Rosemary’s Trust”), filed his elder abuse complaint (the “Original 19 Complaint”) in this matter against Mr. Leahy, the sole named defendant at that time. 20 Prior to February 10, 2022, professional fiduciaries Jacquelyn Quinn and then Courtney 21 DeSoto served as Rosemary’s conservators. On February 10, 2022, Rosemary’s daughter and 22 Plaintiff herein, Rebecca Morin (“Becky”), was appointed as Rosemary’s Conservator and 23 continues to act in that capacity. 24 After Becky was appointed as her mother’s Conservator, and after Mark was able to take 25 Mr. Leahy’s Deposition in connection with the Original Complaint, and the occurrence of the other 26 events described in detail in the Proposed Second Amended Complaint, evidence was discovered 27 supporting the claims made by Plaintiffs against Channe Coles, the Law Office of Channe G. 28 Coles, Patricia Wollum, Susan Reynolds, and the employer of Patricia Wollum and Susan PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR, LEAVE TO FILE SECOND AMENDED COMPLAINT Reynolds. As such, on November 9, 2022, Mark filed his Motion for Leave to File First Amended Complaint to amend the Original Complaint: (i) to add Becky as a Plaintiff in her capacity as Rosemary’s Conservator; and (ii) to name attorney Channe Coles, the Law Office of Channe G. Coles, Patricia Wollum, Susan Reynolds, and Help Unlimited, Inc., as additional defendants. The Court approved Mark’s motion and the First Amended Complaint (the “FAC”) was filed on January 23, 2023. It was important to add Becky as a Plaintiff as she has the authority to pursue the claims against attorney Coles and her law office on her mothe’rs behalf for the malpractice, breach of fiduciary duty, and other egregious actions undertaken by attorney Coles in the course of her alleged representation of Rosemary in connection with the Conservatorship Proceeding. 10 On April 26, 2023, attorney Channe Coles and the Law Office of Channe G. Coles filed 11 a Demurrer and Motion to Strike to the FAC. On June 20, 2023, defendants Patricia Wollum and 12 Susan Reynolds filed their own Demurrer and Motion to Strike. The hearing on said demurrers 13 and motions to strike referenced above was originally set for July 19, 2023. 14 In response to the demurrers and motions to strike, Plaintiffs filed a motion seeking leave 15 to file an amended Complaint, setting the hearing date on such motion for August 2, 2023. The 16 demurrer and motion to strike filed by defendants Wollum and Reynolds were then withdrawn. 17 However, attorney Channe Coles and the Law Office of Channe G. Coles (the “Coles’ 18 Defendants”) opposed Plaintffs’ Original Motion. 19 As explained above, Honor, the employer of Wollum and Reynolds, needs to be added as 20 a “Doe” defendant by way of this motion. It is necessary to file Motion along with the Proposed 21 Second Amended Complaint referenced herein. Assuming the Court grants the relief requested by 22 Plaintiffs in this Motion and leave is granted for Plaintiffs to file the Proposed Second Amended 23 Complaint, all defendants responsible for the harm and damages caused to Rosemary and her 24 family will be before the Court in this action.. 25 Til. ARGUMENT 26 A CALIFORNIA LAW PROVIDES FOR THE LIBERAL AMENDMENT OF PLEADINGS. 27 28 "The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading[.]" Cal. Civ. Proc. Code§ 473(a)(1); see also Cal. Civ. Proc. Code 6 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT §576 ("Any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading."). "There is a strong policy in favor of liberal allowance of amendments." Mesler v. Bragg Mgmt. Co. (1985), 39 Cal. 3d 290, 296. If the granting of a timely motion for leave to amend "will not prejudice the opposing party, it is error to refuse permission to amend, and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action[;] it is not only error but an abuse of discretion." Morgan v. Super. Ct., 172 Cal. App. 2d (1959) 527,530 (finding that the trial court acted arbitrarily and abused its discretion when it denied a motion for leave to file an amended complaint that was filed before a trial date had been set). "[I]t is a rare 10 case in which a court will be justified in refusing a party leave to amend his pleadings so that he 11 may properly present his case." Morgan, 172 Cal. App. 2d at 530 (citations omitted) (internal 12 quotation marks omitted). 13 B PLAINTIFFS’ MOTION SHOULD BE GRANTED BECAUSE PLAINTIFFS’ REQUEST FOR LEAVE TO AMEND IS TIMELY AND BECAUSE DEFENDANTS WILL 14 NOT BE PREJUDICED IF PLAINTIFFS’ MOTION IS GRANTED. 15 16 No defendant named herein will suffer any prejudice whatsoever by granting the relief 17 requested by Plaintiffs. As explained above, after considering the demurrers and motions to strike 18 filed by defendants Channe Coles, the Law Office of Channe G. Coles, and Patricia Wollum, and 19 Susan Reynolds, and after learning that Honor needed to be substituted in as a defendant for 20 previously named Help Unlimited, Plaintiffs determined that the best course of action is to seek 21 leave of this Court to file their Proposed Third Amendment. A separate action could be filed 22 against Honor and the cases could then be consolidated but Plaintiffs’ request to add Honor as a 23 “Doe” defendant in this matter is proper, timely, and promotes judicial economy. 24 Prejudice is the “touchstone” of the Court’s decision on whether to grant leave to amend. 25 Eminence Capital, LLC v. Aspeon, Inc. (9th Cir. 2003) 316 F.3d 1048, 1052. Prejudice however is 26 more than simply requiring a party to respond to a valid cause of action or defend against a stronger 27 case than before the amendment. Hirsa v. Sup. Ct. (1981) 118 Cal.App.3d 486, 490 (“It is difficult 28 to understand how ... a defendant can be prejudiced by amendment to add an additional theory of liability against it.”); Gonzales v. Brennan (1965) 238 Cal.App.2d 69, 75 (“To be sure without the PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR, LEAVE TO FILE SECOND AMENDED COMPLAINT 1 amendment [plaintiff] might have won his lawsuit; with it, he was bound to lose, but as the cases 2 just cited demonstrate prejudice and detriment are not synonymous”); Zellerino v. Brown (1991) 235 Cal.App.3d 1097, 1109 (“prejudice is an unfair result, not an unfavorable one”). There will be absolutely no prejudice to any defendants named herein if the Court grants the relief requested by Plaintffs herein. This has essentially become a “new” case in that there are four (4) defendants being added and Becky has now been added as a Plaintiff. No answers have been filed expect by Mr. Leahy as to the Original Complaint filed. Furthermore, Honor was only recently identified as a proper defendant and should be added as a “doe” defendant and pursuant to the “relation back” doctrine. CCP § 474. In addition, the filing of the Second Amended 10 Complaint is intended to address the concerns and issues raied by the demurrers and motions to 11 strike filed by defendants Channe Coles, the Law Office of Channe G. Coles, Patricia Wollum, 12 and Susan Reynolds. Each such defendant continues to have the right to file a demurrer or motion 13 to strike to Plaintiffs’ Proposed Second Amended Complaint, if any such defendant determines it 14 is appropriate to do so. Lastly, the case not at issue yet, no trial date has been set, and discovery 15 as to the newly added or defendants and those proposed to be added has not commenced. 16 For all of the reasons set forth above, no defendant will be prejudiced by granting the relief 17 requested by Plaintiffs in this Amended Motion. 18 Cc PLAINTIFFS HAVE MET THE FUNDAMENTAL STANDARDS FOR LEAVE 19 TO AMEND. 20 Plaintiffs previously filed a short reply to the Opposition filed by the Coles Defendants, 21 explain that Plaintiffs would be filing this Amended Motion along with their Proposed Second 22 Amended Complaint. All such defendnats shall have the right and opportunity to object to 23 Plaintiffs’ Amended Motion. Thereafter, if such motion is granted, each defendant will also 24 have the opportunity to try to attack the pleading by demurrer, motion to strike, or otherwise. 25 The claims and causes of action plead in Plaintiffs’ Proposed Second Amended 26 Complaint are the same as set forth in Plaintffs’ FAC. Plaintiffs have provided additional facts 27 and evidence to support their claims and to address the issues raised in the demurrers and 28 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR, LEAVE TO FILE SECOND AMENDED COMPLAINT motions to strike filed by defendants in response to Plaintiffs’ Original Motion and Plaintiffs’ Original Second Amended Complaint. Moreover, allowing leave to Plaintiffs to file the Proposed Second Amended Complaint will serve the ends of justice and judicial economy. More likely than not, if the Court had sustained the demurrers filed by defendants, the Court would have given Plaintiffs leave to amend the FAC. Rather than wait, Plaintiffs have elected to instead seek leave of the Court to file Plaintffs’ Proposed Second Amended Complaint now. D. AS EXPLAINED IN THE DECLARATION OF DAVID J. TAPPEINER FILED IN SUPPORT HEREOD, ALTHOUGH THE SECOND AMENDED COMPLAINT 10 SUBSTANTIALLY MODIFIES AND SUPPLEMENTS THE FIRST AMENDED 11 COMPLAINT, NO NEW CAUSES OF ACTION ARE ADDED; RATHER ADDITIONAL 12 FACTS AND EXHIBITS WERE ADDED IN ORDER TO SUPPORT PLAINTIFFS’ CLAIMS 13 AND TO ADDRESS THE ISSUES RAISED BY DEFEDANTS’ DEMMURRERS. 14 Due to extent of the modifications to the FAC made by Plaintiffs’ proposed Second 15 Amended Complaint, rather than attempt to list every such change made, “clean" and 16 "strikethrough" versions of the proposed Second Amended Complaint are attached as Exhibit “1” 17 and Evhibit “2” to the Declaration of David J. Tappeiner filed in support hereof, which clearly 18 show all such changes. 19 Iv. CONCLUSION 20 In light of Plaintiffs’ good faith and timely conduct, the fact that the Second Amended 21 Complaint will serve the ends of justice and judicial economy and will not prejudice any 22 defendant named therein, Plaintiff respectfully request the Court grant Plaintiffs’ Motion and 23 allow Plaintiffs to file their Proposed Second Amended Complaint attached hereto as Exhibit 1 24 and that such complaint be deemed to have been filed upon approval of this Motion. 25 Respectfully Submitted, 26 DT LAW PARTNERS, LLP 27 /s/s David J. Tappeiner Dated: September 6, 2023 B 28 David J. Tappeiner Attorneys for Plaintiffs PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR, LEAVE TO FILE SECOND AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT EXHIBIT 1 EXHIBIT 1 EXHIBIT 1 EXHIBIT 1 David J. Tappeiner (SBN 243979) DT LAW PARTNERS, LLP 125 East Victoria, Suite I Santa Barbara, California 93101 Telephone: (805) 456-8323 Facsimile: (805) 453-8055 Email: david@dtlawpartners.com Attorneys 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 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA BARBARA ANACAPA DIVISION 10 MARK SELLARS, individually and as Case No. 20CV04132 11 Trustee of the Rosemary Free Trust u/d/t dated September 13, 2000; and REBECCA [Assigned for all purposes to Hon. 12 MORIN, Conservator of the Estate and Thomas P. Anderle] Person of Rosemary Free Leahy, 13 PLAINTIFFS’ SECOND AMENDED Plaintiffs, COMPLAINT FOR: 14 vs. 1. ELDER ABUSE; 15 2. FINANCIAL ELDER ABUSE; PATRICK LEAHY; CHANNE COLES, 3. LEGAL MALPRACTICE; 16 THE LAW OFFICE OF CHANNE G. 4. BREACH OF FIDUCIARY DUTY; COLES, a California corporation; 5. INTENTIONAL INFLICTION OF 17 PATRICIA WOLLUM; SUSAN EMOTIONAL DISTRESS: AND REYNOLDS; HONOR HOME CARE 6. NEGLIGENCE 18 SERVICES CALIFORNIA, INC., a Delaware corporation doing business in NO TRIAL DATE SET 19 California; and DOES 1-10, inclusive, 20 Defendants. 21 22 23 Plaintiffs Mark Sellars, individually and as Trustee of the Rosemary Free Trust u/d/t dated) 24 September 13, 2000, and Rebecca Morin , Conservator of the Estate and Person of Rosemary Free} 25 Leahy, by and through their attorneys, DT LAW PARTNERS, LLP, submit this Second Amende 26 Complaint for Elder Abuse; Financial Elder Abuse; Legal Malpractice; Intentional Infliction off 27 Emotional Distress; Breach of Fiduciary Duty, and Negligence against the defendants identifie: 28 PLAINTIFFS’ SECOND AMENDED COMPLAINT FOR ELDER ABUSE; FINANCIAL ELDER ABUSE; LEGAL MALPRACTICE; BREACH OF FIDUCIARY DUTY; INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS: AND NEGLIGENCE above and remaining Doe Defendants 1-10 (individually and collectively, “Defendants”), and i support thereof allege as follows: I THIS SECOND AMENDED COMPLAINT IS NECESSARY IN ORDER TO ADD HONOR HOME CARE SERVICES CALIFORNIA, INC., AS A “DOE” DEFENDANT IN THESE PROCEEDINGS AND TO ADDRESS THE ISSUES RAISED IN THE DEMURRER AND MOTION TO STRIKE FILED BY DEFENDANTS CHANNE COLES AND THE LAW OFFICE OF CHANNE G. COLES 1 Rosemary Free Leahy (“Rosemary”) began suffering from cognitive disabilities in or 10 around 2017. As soon as Rosemary became compromised, her third-husband, Patrick Leahy (“Mr] 11 Leahy”), started to abuse Rosemary, financially, emotionally, and otherwise. Because of the abuse| 12 committed against Rosemary by Mr. Leahy, her son, Mark Sellars (“Mark”), filed to have 13 Rosemary conserved on December 5, 2018, which was ultimately granted. Rosemary is now 92! 14 years old. Unfortunately, her dementia is now so advanced that she has had to be moved from he 15 home to a memory care facility, something Rosemary wished would never happen. 16 2. As Mark had been designated by Rosemary to act as her Conservator, in his Petition for 17 Appointment of Probate Conservator for Rosemary in related case In Re: Conservatorship of th 18 Estate and Person of Rosemary Free Leahy, Santa Barbara Superior Court Case No. 18PR005764 19 (the “Conservatorship Proceeding”), Mark requested that he be appointed as Rosemary’s 20 Conservator. As explained further below, as Mr. Leahy filed a meritless objection to Mark’s 21 request, a temporary conservatorship was established for Rosemary by Court order dated Marc 22 21, 2019 (filed on March 26, 2019, the same date Letters of Temporary Conservatorship were} 23 issued), appointing professional fiduciary Jacquelyn Quinn as Rosemary’s temporary Conservator] 24 Ms. Quinn later became the general Conservator for Rosemary 25 3. On December 11, 2020, Mark individually and as current Trustee of his mother’s trust, the 26 Rosemary Free Trust u/d/t dated September 13, 2000 (“Rosemary’s Trust”), filed his elder abuse 27 complaint (the “Original Complaint’) in this matter against Mr. Leahy, the sole named defendant 28 at that time. 2 PLAINTIFFS’ SECOND AMENDED COMPLAINT FOR ELDER ABUSE; FINANCIAL ELDER ABUSE; LEGAL MALPRACTICE; BREACH OF FIDUCIARY DUTY; INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS: AND NEGLIGENCE 4. Prior to February 10, 2022, as explained further below, professional conservators Jacquelyn Quinn and then Courtney DeSoto served as Rosemary’s conservators. On February 10) 2022, Rosemary’s daughter and Plaintiff herein, Rebecca Morin (“Becky”), was appointed as Rosemary’s Conservator and continues to act in that capacity. 5. After Becky was appointed as her mother’s Conservator, and after Mark was able to take Mr. Leahy’s Deposition in this case, and the occurrence of the other events described hereinafter evidence was discovered which supports the claims made herein against the recently added| defendants, attorney Channe Coles, the Law Office of Channe G. Coles, and caregivers Patrici Wollum (“Wollum”) and Susan Reynolds (“Reynolds”), each of whom were added as defendants} 10 pursuant to Plaintiffs’ First Amended Complaint dated January 23, 2023 (the “FAC’), which was 11 approved by the Court pursuant to Mark’s Motion for Leave to File First Amended Complaint.! 12 6. When Mark filed his Motion for Leave to File First Amended Complaint, based o1 13 information that was provided to Becky and Mark, it was believed that a company known as Help| 14 Unlimited, Inc., was the employer of defendant caregivers Reynolds and Wollum. As such, the 15 Court approved the request to add Help Unlimited, Inc., as an additional defendant. 16 7. On April 26, 2023, attorney Channe Coles and the Law Office of Channe G. Coles filed 17 a demurrer to the FAC and a motion to strike certain portions of the FAC. 18 8. After the FAC was filed, it was discovered that Honor Home Care Services California, Inc] 19 (“Honor”), was the employer of defendants Wollum and Reynolds rather than Help Unlimited. 20 Inc., as originally believed. Based on such discovery, on or about May 26, 2023, Plaintiffs filed] 21 an amendment to the FAC, seeking to substitute Honor as a defendant in place of Help Unlimited] 22 Inc., and to dismiss Help Unlimited, Inc., as a defendant, without prejudice. 23 9. The above-referenced amendment was approved and Honor was served with the summons} 24 and complaint. Thereafter, after Honor was served, it was discovered that Honor has no affiliatio 25 with Help Unlimited, Inc. As such, the above-referenced amendment was ineffective to add Hono 26 as a defendant in this action. Accordingly, on July 11, 2023, Honor was dismissed as a defendant. 27 28 ' On January 23, 2023, the Court approved Mark’s Motion for Leave to File First Amended Complaint and such irst Amended Complaint (the “FAC”) was filed on the same date. PLAINTIFFS’ SECOND AMENDED COMPLAINT FOR ELDER ABUSE; FINANCIAL ELDER ABU LEGAL MALPRACTICE; BREACH OF FIDUCIARY DUTY; INTENTIONAL INFLICTION OF EMOTIONAL DISTRI AND NEGLIGENCE without prejudice. However, under Plaintiffs’ Motion for Leave to File this Second Amende Complaint, Plaintiffs seek to add Honor as a defendant. 10. On June 20, 2023, defendants Wollum and Reynolds filed a joint demurrer and motion to strike, which have since been withdrawn. 11. The demurrer and motion to strike filed by attorney Channe Coles and the Law Office off Channe G. Coles (the “Coles’ Defendants”) remain pending. At the hearing on August 16, 2023 this Court ordered Plaintiffs to file their revised motion for leave to file this Second Amende Complaint. IL. 10 CURRENT PARTIES 11 12. Mark is Rosemary’s biological son and the current Trustee of the Rosemary Free Trust 12 u/d/t dated September 13, 2000 (“Rosemary’s Trust”), which trust held most of Rosemary’s 13 assets since it was established 14 13. Becky is Rosemary’s biological daughter and the court-appointed Conservator of 15 Rosemary’s Estate and Person in the Conservatorship Proceeding. 16 14. Mr. Leahy is Rosemary’s spouse and, at all times mentioned herein, was an individual 17 residing in Santa Barbara County, California. 18 15. Defendant Channe Coles is a duly licensed attorney by the State Bar of California 19 practicing in Santa Barbara County, State Bar Number 261234. 20 16. Defendant The Law Office of Channe G. Coles is a California corporation doing 21 business in Santa Barbara at 19 East Mission Street, Suite B, Santa Barbara, CA 93101. 22 17. For the reasons stated above, defendant Help Unlimited, Inc., has been dismissed without 23 prejudice. 24 18. Defendant Wollum is or was employed by Honor and was paid to provide caregiving 25 services to Rosemary and, in connection with such services, engaged in wrongful acts at] 26 Rosemary’s home in Santa Barbara County, which acts caused injury to Rosemary. 27 Mil 28 PLAINTIFFS’ SECOND AMENDED COMPLAINT FOR ELDER ABUSE; FINANCIAL ELDER ABUSE; LEGAL MALPRACTICE; BREACH OF FIDUCIARY DUTY; INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS: AND NEGLIGENCE 1 19. Similarly, Defendant Reynolds is or was employed by Honor and was paid to provide caregiving services to Rosemary and, in connection with such services, engaged in wrongful acts| at Rosemary’s home in Santa Barbara County, which acts caused injury to Rosemary. 20. For the reasons stated above, Plaintiffs are filing their Motion for Leave to file this Second Amended Complain to add Honor as a defendant and to address issues raised by the Coles’ Defendants in their Demurrer and Motion to Strike. Honor is a Delaware corporation doing business in California, with its principal place of business is at 201 3rd Street, Suite 1010, Sa Francisco, California 94103. 21. Remaining Does | through 10, inclusive, are individuals, corporations, partnerships, or 10 other entities whose identity and form are unknown to Plaintiffs, who therefore sue sai 11 individuals, corporations, partnerships or other entities under such fictitious names, pursuant to the 12 provisions of Section 474 of the California Code of Civil Procedure. Plaintiffs will amend this 13 Complaint to allege the true names and capacities of such individuals, corporations, partnerships 14 or other entities at such time as the same have been ascertained. Plaintiffs are informed and 15 believe, and based thereon allege, that each of the fictitiously named individuals, corporations, 16 partnerships or other entities is liable and responsible in some manner for the claims, demands] 17 losses, acts, and damages alleged herein. 18 22. Plaintiffs believe and allege that the tortious acts and omissions of Defendants and 19 the fictitiously named individuals, corporations, partnerships or other entities, and each of them 20 were done in concert with each other and pursuant to a common design and agreement to} 21 accomplish a particular result, and that Defendants and the fictitiously named individuals) 22 corporations, partnerships or other entities, and each of them, enabled, aided and abetted each othe 23 in accomplishing the acts and omissions alleged herein. 24 Ti. 25 VENUE AND JURISDICTION 26 23. This Court has jurisdiction over this action pursuant to the California Constitution, 27 Article VI, Section 10, which grants the superior court “original jurisdiction” in all other causes” 28 5 PLAINTIFFS’ SECOND AMENDED COMPLAINT FOR ELDER ABUSE; FINANCIAL ELDER ABUSE; LEGAL MALPRACTICE; BREACH OF FIDUCIARY DUTY; INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS: AND NEGLIGENCE except those given by statute to other courts. The statutes under which this action is brought do not specify any other basis for jurisdiction. 24. This Court has jurisdiction over Defendants because, upon information and belief, the individually named defendants are citizens of the United States and at all times relevant hereto did reside in Santa Barbara County, California and/or each defendant has sufficient minimum contacts in California or have otherwise intentionally availed themselves of the California market so as to render the exercise of jurisdiction over such defendants by the California courts consistent with traditional notions of fair play and substantial justice. 25. Venue is proper in this Court because all of the wrongs committed against 10 Rosemary occurred here in Santa Barbara County, the corporate defendants maintain offices, 11 have agents, and/or transact business in the State of California, in Santa Barbara County, and, at 12 all relevant times hereto, the individually named defendants resided here or have otherwise 13 consented to venue here. In addition, the Conservatorship Proceeding for Rosemary remains 14 pending here. 15 Iv. 16 ROSEMARY’S BACKGROUND, EVENTS LEADING TO INITIATION OF 17 CONSERVATORSHIP FOR ROSEMARY AND ELDER ABUSE OF ROSEMARY 18 ENGAGED IN BY MR. LEAHY 19 26. Rosemary was a lifelong medical professional. She received her degree from Columbia 20 University, became the Director of Nurses at Santa Barbara Cottage Hospital, and eventually 21 served as the Nursing Administrator of the USC-LAC medical center. 22 27. Rosemary raised her children as a single-mother and worked hard to build a home for 23 them in Santa Barbara despite her commutes to Los Angeles for many years. 24 28. Through her hard work, Rosemary took care of her children, acquired assets and was 25 financially secure. Rosemary was always smart, tough, and opinionated and valued her family 26 over anything else. 27 Mil 28 PLAINTIFFS’ SECOND AMENDED COMPLAINT FOR ELDER ABUSE; FINANCIAL ELDER ABUSE; LEGAL MALPRACTICE; BREACH OF FIDUCIARY DUTY; INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS: AND NEGLIGENCE 1 29. Before marrying Mr. Leahy in 1999, Rosemary had a Premarital Agreement prepared and executed in order to ensure that her assets were protected in the case of a divorce from Mr. Leahy. While Rosemary owned substantial assets that time of marriage, including her home, Mr, Leahy had virtually no assets. Rosemary repeatedly told Mark that she did not want Mr. Leahy to be in charge of any of her finances. She also made this clear in her estate planning documents, prohibiting Mr. Leahy from acting as her trustee or agent. 30. In addition to the Premarital Agreement, Rosemary executed estate planning documents in September 2000, under which Mark was named as her successor Trustee, Executor, and primary agent for health and financial decisions. 10 31. As explained above, as Mr. Leahy continued to abuse Rosemary, which included 11 isolating her from her family and cutting off all communications, Mark had no choice but to file 12 his petition to have Rosemary conserved. 13 32. As part of his scheme to keep Rosemary isolated, Mr. Leahy removed Rosemary from the| 14 care of her primary physician, Dr. Robert Byers, who had been Rosemary’s physician for at least 15 15 years. In 2017, Dr. Byers indicated that he believed that Rosemary might be suffering from 16 early Alzheimer’s Disease and ordered further testing. Future appointments were scheduled for 17 Rosemary in order to have her further evaluated. As soon as Mr. Leahy learned of Dr. Byers’ 18 diagnosis and realized the uncovering of his abuse and financial wrongdoings were imminent, he 19 panicked and removed Rosemary from the care of Dr. Byers. 20 33. Although Rosemary was experiencing cognitive decline, she still had the ability to 21 understand that she needed assistance. She sought such assistance from her children and adult 22 grandchildren and did not seek assistance from Mr. Leahy because she knew he could not be 23 trusted. 24 34. Prior to the time Mark commenced the Conservatorship Proceeding, Rosemary asked 25 Mark to move into her home in 2017, to evaluate her situation and render assistance. It was clear| 26 to Mark at that time that his mother was beginning to have memory issues and needed help, so 27 Mark agreed. 28 Mil PLAINTIFFS’ SECOND AMENDED COMPLAINT FOR ELDER ABUSE; FINANCIAL ELDER ABUSE; LEGAL MALPRACTICE; BREACH OF FIDUCIARY DUTY; INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS: AND NEGLIGENCE 1 35. After Mark moved into Rosemary’s home to assist her, he learned that her prescriptions were cut off due to numerous missed doctor’s appointments. Rosemary could not drive and ha been relying on Mr. Leahy to assist her with maintaining appointments and for transportation. Ag part of his overall plan, Mr. Leahy ensured that Rosemary was not treated for her cognitive difficulties and that her prescriptions went unfilled. 36. In addition to the foregoing, Mark discovered serious financial issues concerning Rosemary, including but not limited to the fact that the amount of money that was being spent o gambling by Rosemary and Mr. Leahy (primarily using Rosemary’s money) was many times greater than Rosemary allocated towards gambling when she had capacity. 10 37. Mr. Leahy exercised control over and unduly influenced Rosemary, his impaired wife, in 11 ways that allowed him to socially and physically isolate her from her familiar network of protectio 12 — email, Skype, phone calls and regular visits with her family. 13 38. Mark, Becky, and other of Rosemary’s family attempted hundreds of contacts with 14 Rosemary that were unsuccessful due to Mr. Leahy’s continued isolation of Rosemary and his 15 attempts to unduly influence Rosemary to fear her family. 16 39, Examples of Mr. Leahy’s abuse of Rosemary before and after a conservator was 17 appointed for her include and are not limited to the following: 18 a. At the first supervised visit with Rosemary in March 2019, mediator Lol 19 Sorenson reported that Rosemary did not know she was not seeing her family and thereb 20 confirmed Mr. Leahy’s isolation and abuse of Rosemary; 21 b For the first family unsupervised visit in April 2019, Mr. Leahy was told by 22 the temporary conservator not to be present but was present and disrupted the visit. 23 Cc. Mr. Leahy kept the only working landline phone behind a locked home 24 office door. 25 d Mr. Leahy continually interfered with Rosemary’s ability to communicate 26 with family members (e.g., phones unplugged from phone-jacks, tampering with her cell phone.) 27 e Mr. Leahy routinely unduly influenced Rosemary prior to visitations by 28 family to spoil visits. 8 PLAINTIFFS’ SECOND AMENDED COMPLAINT FOR ELDER ABUSE; FINANCIAL ELDER ABU LEGAL MALPRACTICE; BREACH OF FIDUCIARY DUTY; INTENTIONAL INFLICTION OF EMOTIONAL DISTRI AND NEGLIGENCE f. Mr. Leahy removed Rosemary from her home prior to scheduled visitations (e.g., Easter 2019). g Mr. Leahy attempted to remove Rosemary from her home prior to visitation (the family caught him leaving as they arrived). The visit was unpleasant and cut short because off Mr. Leahy (Thanksgiving 2019). h. Throughout 2020, Mr. Leahy tampered with Rosemary’s communications to prevent contact with family. This included using the pandemic to limit phone and in perso! communications and visits. i Mr. Leahy took Rosemary to the Chumash Casino at least 16 times since 10 the pandemic began, five of which times occurred after he was clearly admonished not to do so 11 by Courtney DeSoto, Rosemary’s Conservator at the time. During this same time period, Mr. 12 Leahy had a sign posted on Rosemary’s door that read “No Visitors Please! We are vulnerable 13 and don’t want to get the virus.” He used COVID as a pretense to prevent family contact 14 between Rosemary and her family. 15 J Mr. Leahy paraded Rosemary to the Courthouse during the pandemic. He 16 had her stand next to him, as a prop, while he said: “[w]e object” to the fee request made by 17 Mark in the Conservatorship Proceeding. 18 k. Mr. Leahy thereafter again exploited and abused Rosemary when he had 19 her read from a script that he provided to her during the remote October 15, 2020 hearing in the 20 Conservatorship Proceeding. 21 L Later, on October 15, 2020, Mr. Leahy unduly interfered with Mark’s 22 attempt to visit Rosemary. This event, coupled with other nefarious actions taken by Mr. Leahy, 23 caused Rosemary’s then-acting conservator, Courtney DeSoto, to have to seek a restraining order| 24 against Mr. Leahy, Case No. 20CV04056 (the “Elder Abuse Restraining Order Matter.”) 25 40. Further evidence of Mr. Leahy’s abuse of Rosemary has since been uncovered. The list 26 is long so only some of the more egregious actions undertaken by Mr. Leahy are described 27 below: 28 PLAINTIFFS’ SECOND AMENDED COMPLAINT FOR ELDER ABUSE; FINANCIAL ELDER ABU LEGAL MALPRACTICE; BREACH OF FIDUCIARY DUTY; INTENTIONAL INFLICTION OF EMOTIONAL DISTRI AND NEGLIGENCE a. Mr. Leahy took Rosemary to the Chumash Casino repeatedly, even after being told not by Rosemary’s Conservator, and used her money in order to gamble himself; b Mr. Leahy facilitated and encouraged Rosemary to tak