Motion for Entry of Default in Cindy M Hann vs Theresa Lynn Colosi| Trellis.Law

On June 05, 2020 a Party Notice was filed involving a dispute between Hann, Cindy M, and Colosi, Theresa Lynn, for Unlimited Other PI/PD/WD (23) in the District Court of Santa Barbara County.

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LAW OFFICES OF
McCARTHY & KROES
125 E. VICTORIA STREET, SUITE A
SANTA BARBARA, CA 93101
(805) 564-2085

PATRICK McCARTHY, SBN: 89591
com.

WILLIAM P. FRUSETTA, SBN: 319097
willi 7kroes.com
Attomeys for Plaintiff, CINDY M. HANN

SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF SANTA BARBARA

10 CINDY M. HANN, an individual, CASE NO.: 20CV01984
11 Plaintiff, PLAINTIFF CINDY HANN’S NOTICE AND
MEMORANDUM OF POINTS &
12 AUTHORITIES IN SUPPORT OF
APPLICATION FOR DEFAULT JUDGMENT
226 13 AND DETERMINATION OF ATTORNEYS’
THERESA LYNN COLOSI, an FEES
os 14 individual; and DOES 1 through 10,
52
Be
inclusive, [Filed concurrently with [ Proposed] Order Granting
ea 15 Application for Default J , Application for
ict
Qe Defendants. Court Judgment, [Proposed] Court,
ag 16 Dismissal of DOES, Request for Judi aa Notice and
Declarations in support of same. ]
17
[Default Judgment by Court (C.C.P. §585(b); CRC
18 3.1800(a)(1))]
19 Date: May 20, 2024
Time: 10:00 am
20 Dept: 5

21 [Assigned for all purposes to
Hon. Colleen Sterne, Dept. 5]
22
Complaint Filed: June 5, 2020
23 Trial Date: Not vet set
24

25
TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD:
26
PLEASE TAKE NOTICE that on May 20, 2024 at 10:00 am. in Department
5 of this
27
Court, locatedat 1100 Anacapa Street, Santa Barbara, CA 93101, Plaintiff CINDY M. HANN’s
28
1
PLAINTIFF CINDY HANN’S NOTICE AND MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF
APPLICATION FOR DEFAULT JUDGMENT AND DETERMINATION OF ATTORNEY S’ FEES
(herein “Hann”) Application for Default Judgment (the “Application”) filed against Defaulted

Defendant THERESA LY NN COLOSI (herein “Colosi”) will be heard. Plaintiff Hann’ s

Application is based on this Notice and attached Memorandum of Points and Authorities in Support

of the Application for Court’s Default Judgment against Defendant Colosi, Request for Dismissal of

DOES 1 - 10, inclusive, Requests for Judicial Notice, [Proposed] Default Judgment, and on the

evidence presented in the concurrently-filed Declarations of Cindy Hann, Robert Hann and William.

Frusetia.

Dated: March 28, 2024. McCARTHY & KROES
10

11 By: /s) WiliawP. Frusetta
PATRICK McCARTHY
12 WILLIAM P. FRUSETTA
Attomeys for Plaintiff, CINDY M. HANN
226 13

os 14
52
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ea 15
ict
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ag 16

18
19

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2
PLAINTIFF CINDY HANN’S NOTICE AND MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF
APPLICATION FOR DEFAULT JUDGMENT AND DETERMINATION OF ATTORNEY S’ FEES
TABLE OF CONTENTS
Pa
Fage
TABLE OF AUTHORITIES

I. INTRODUCTION.

II. FACTUAL BACKGROUND.

III. PROCEDURAL HISTORY

IV. LEGAL AUTHORITY AND ARGUMENT. 10

A. Plaintiff Hann, As a Matter
of Law, Has Established
All Elements
of Her
Causes of Action. 11

10 1. Civil Assault (CACTI 1301) 11

11 a. Intent to cause harmful or offensive contact. 11
12 b. Hann reasonably believed she was about to be touched in a harmful
13 OF OFFENSIVE MANET. 00... eessecsssseessesssessessessuesseessesssccscssecsuesseesseesuesseessesseesseesseesees 12
226
os 14 c. Hann did not consent. 12
52
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ea 15 d. Hann was harmed and Colosi’s conduct was a substantial factorof
ict
Qe Plaintiff’s harm. 13
ag 16

17 2. Civil Battery (CACI 1300) 13

18 a. Colosi touched Hann with the intent to han. 13

19 b. Hann did not consent to being attacked. . 13
20 c. Hann was harmed. 14
21
dA reasonable person would have been offended. 14
22
3. Intentional Infliction of Emotional Distress (CACI 1600) 14
23
a. Colosi engaged in extreme and outrageous conduct with the intent of causing, or
24
reckless disregard of the probability of causing emotional distress. 14
25
b. Hann suffered severe or extreme emotional distress. 15
26
c. Colosi’s outrageous conduct is the actual/proximate cause of the
27 emotional distress. 16
28

PLAINTIFF CINDY HANN’S NOTICE AND MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF
APPLICATION FOR DEFAULT JUDGMENT AND DETERMINATION OF ATTORNEY S’ FEES
TABLE OF CONTENTS
(Contimed)
Pa
Fage

4. Avoidance, Recovery and Damages for Fraudulent Transfers (Under
Common Law and Califomia Uniform Fraudulent Transfer Act) 16

a Hann has a right to payment
from Colosi 17

b. Colosi withdrew and took $1,345,454.33 in cashier’ s checks with herto
Whitefish, Montana during her attempt to escape. 17

c. Colosi intended
to hinder, delay or defraud
Hann. 18

d. Hann was injured. 18
10 B. Damages 18
11
1. Special Damages: Total - $30,566.81 18
12
2. Non-economic Damages: Total - $200,000 19
226 13
3. Costs/Expenses: Total - $1,155.55 19
os 14
52
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ea 15 4. Punitive Damages: Total - $500,000 19
ict
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ag 16 5. Prejudgment Interest: Total - $198,145.96 20

17 C. Attomeys’ Fees: Total - $309,956.11 20
18 D. UVTA Remedies. 20
19
V. CONCLUSION 21
20

28
4
PLAINTIFF CINDY HANN’S NOTICE AND MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF
APPLICATION FOR DEFAULT JUDGMENT AND DETERMINATION OF ATTORNEY S’ FEES
TABLE OF AUTHORITIES
Page(s)
Cases
Adamsv. Murakami (1991)
54 Cal.3d 105 20

Bristol Convalescent Hosp. v. Stone (1968)
258 Cal.App.2d 848 10

Chen v. Berenjian (2019)
33 Cal.App.5Sth 811 16

Cheungv. Daley (1995)
35 Cal.App.4th 1673 21

Cioli v. Kenourgios (1922)
10 59 Cal.App.690 17
11
Estate of Blanco (1978)
12 86 Cal.App.3d
826 17

226 13 Fitzgeraldv. Herzer (1947)
78 Cal.App.2d 127 10
os 14
52
Be
ea 15 Forbes v. Cameron Petroleuns, Inc. (1978)
ict 83 Cal.App.3d 257 10
Qe
ag 16
Hughes v. Pair (2009)
17 46 Cal.4th 1035 14, 15
18 In re Marriage
of Harris (1977)
19 74. Cal.App.3d 98 11

20 Mehrtashv. Mehrtash (2001)
93 Cal. App-4th 75. 18
21
Michelsonv. Hamada (1994)
22
29 Cal.App.4th 1566. 20
23
Monastra v. Konica Business Machines, U.S.A., Inc.
24 (1996) 43 Cal.App.4th 1628 21

25 Paynev. Sup. Ct. (1976)
17 Cal.3d. 908 11
26

PLAINTIFF CINDY HANN’S NOTICE AND MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF
APPLICATION FOR DEFAULT JUDGMENT AND DETERMINATION OF ATTORNEY S’ FEES
TABLE OF AUTHORITIES
Continued
agels
People v. Colantuono (1994)
7 Cal.4th 206. 13

People v. Lara (1996)
44 Cal.App.4th 102 13

People v. Page (2004)
123 Cal.App.4th 1466 13

Statutes
Civ. Code
§ 43 11

Civ. Code § 3288 20
10

11 Civ. Code
§ 3333 17

12 Civ. Code § 3439 16, 17, 18, 20

226 13 C.C.P. § 425 19

os 14 C.C.P.
§ 580. 19
52
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ea 15
ict C.C.P.
§ 585. 10
Qe
ag 16
C.C.P. § 587 11
17
C.C.P. § 1021 20
18
19 Cal. Rules of Court, Rule § 3.1800. 10

20 Other Authorities
CACTI 1300. 13
21
CACTI 1301 11
22

23 CACTI 1600 14

24 CACTI 3905 19

25 CACTI 4200 16, 18
26
CACTI 4204. 16
27
Santa Barbara Superior Court’s Local Rule 1307(b)(2) 10
28
6
PLAINTIFF CINDY HANN’S NOTICE AND MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF
APPLICATION FOR DEFAULT JUDGMENT AND DETERMINATION OF ATTORNEY S’ FEES
I INTRODUCTION

Plaintiff
Cindy Hann is a child custody supervisor
who was brutally attackedby Defendant

Theresa Colosi, a mother
who kidnapped
her pre-teen child during a public supervised visitation.

Plaintiff Hann filed her complaint against Colosi on June 5, 2020. Defendant Colosi was given a

sufficient opportunity to file a responsive pleading and/or answer the complaint but chose not to do

so. Hann filed a Request for Entry of Default and now files this Memorandum of Points &

Authorities in support of the Application for Default Judgment. Hann respectfully requests that

Default Judgment be entered in her favor pursuant to this Application and the Proposed Judgment

against Defendant Colosi as a defaulting defendant.
10 Il. FACTUAL BACKGROUND

11 This action arises from Hann being attackedby Colosi on December8, 2019. Colosi is an

12 orthopedic surgeon and the biological mother of the Minor (herein “the Minor”). Colosi was a

226 13 defendant in the criminal action of People v. Colosi (Santa Barbara Sup. Court, Case No.: 19-CR-

os 14 12190). After approximately a decade of litigation/custody battles, custody of the Minor
was vested.
52
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ea 15 in the biological father. At the time of the attack, Colosi was allowed 3-hour supervised visits
ict
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ag 16 approximately twice
a week. (Decl. Hann, {|1.; Decl. Frusetta, 4/1, See Sealed Exhibit 1 - Dec. 8,

17 2019 Sheriff’ s Report.)

18 Hann, as a child custody supervisor, agreedto and was assignedto oversee visitation between.
19 Colosi and the Minor. On December8, 2019 at approximately 9:30 am., Hann, Colosi and the

20 Minor were en route to the parking lot of “Zodo’s Bowling and Beyond” located in Goleta, CA. In

21 an attemptto incapacitate Hann, Colosi brought
a metal CO2 “SodaStream’” from
her car,

22 approached
Hann from behind, stated
that “[she] can’t take this anymore,” and struck
her in the

23 head/face multiple times, resulting in facial and cranial lacerations with head injury. More

24 specifically, an approximately 2-inch cut from the bridge of her nose up her forehead. Hann was able

25 to tum around after being struck the first time and said “Are you kidding
me?” but nearly collapsed.

26 from
the blunt force. Colosi urged
the Minor to go back to the car, but the Minor
took shelter inside

27 Zodo’s. Colosi startedto follow
the Minor, but retumedto her car and drove away. (Decl. Hann, {ff]

28
7
PLAINTIFF CINDY HANN’S NOTICE AND MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF
APPLICATION FOR DEFAULT JUDGMENT AND DETERMINATION OF ATTORNEY S’ FEES
2-4; Decl. Frusetta, 2, Sealed Exhibit 2 - Dec. 9, 2019 Supplemental Sheriff’s Report.)

a
ee
ee
ee
BE (Dec). Hann, 15; Decl. Frusetta, 13-6, Sealed
Exhibits 1 - 6, Dec. 11, 2019 Supplemental Sheriff’ s Reports.)

As aresult
of the attack, Hann sustained a hematoma and multiple lacerations to her face,

nose, forehead, and scalp which exposed the bone. After emergency care, Hann required plastic
10 surgeryto abate the resulting scar tissue on her forehead. (Decl. Hann, 16; Decl. Frusetta, 118,

11 Sealed Exhibit 17 - Cottage Hospital; Exhibit 19 - Dr. Gross Operative Report; Decl. Robert Hann,

12 Exhibits 22 - 34.) Further, the attack
and fall to the ground damaged Hann’ s right knee and
nos
BHDs 13 contributedto the deterioration of the meniscus. (Decl. Hann, | 7; Decl. Frusetta 19, Sealed Exhibit
no

os 14 18 - Alta Orthopaedic.)
52
es
ae 15 Having been attacked with a weapon, bleeding
and scarred, Hann suffers pain,
ni
Qe
ag 16 embarrassment, and humiliation. In spite of scar revision surgery, Hann still has anxiety due
to the

17 changes to hervisage. Day-to-day interactions or simply looking in the minor are painful reminders

18 of Colosi’s attack. Further, Colosi knows where Hann lived, so Hann remains fearful that Colosi

19 may come to her house and attack again. Now, when
Hann works, she is careful not to tum her back

20 onanyone. As a result of these long-term issues, she attends therapy and continues to struggle
in her

21 day-to-day activities. Indeed, the sheer stress on Hann exacerbated her diverticulitis which led to her

22 hospitalization in April of 2023 followed
by a segmental colectomy in June of 2023. (Decl. Hann, 4

23 7, Exhibits 20 - 21; Decl. Robert Hann, 1-10.)

24 Ill. PROCEDURAL HISTORY

25 OnJune 5, 2020, Plaintiff filed her complaint alleging: (1) Civil Assault; (2) Civil Battery; (3)

27
1 Montecito Bank & Trust’ s Complaint in Interpleader indicates that the amount withdrawn was really $1,345,454.33in
28 cashier's checks payable to Defendant Colosi herself. Request for Judicial Notice 118.

PLAINTIFF CINDY HANN’S NOTICE AND MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF
APPLICATION FOR DEFAULT JUDGMENT AND DETERMINATION OF ATTORNEY S’ FEES
Intentional Infliction of Emotional Distress; and (4) Avoidance, Recovery and Damages for

Fraudulent Transfers (Under common law and Califomia Uniform Fraudulent Transfer Act).

(Request for Judicial Notice (herein “RFJN”), 11.)

OnJune 11, 2020, Colosi was served with the Summons & Complaint. The proof of service

wes filed with the court on June 22, 2020. (RFJN, 12.)

July 13, 2020 was the statutory deadline for Colosi to file an Answerto the Complaint. No

Answer or responsive pleading was filed by the deadline, nor has one been filed to-date. (REJN, 13;

On October 17, 2023, Plaintiff personally served a Statement of Damages on Colosi. (REJN,

9/4.) The Request for Entry of Default was filed and served on Defendant Colosi on March 15, 2024.

10 (REJN, 915.) The Request
for Entry of Default included notice that Plaintiff
was seeking

11 Punitive/exemplary damages in the amount of $500,000 in the statement of damages section.

12 All Doe defendants (DOES 1-10) are dismissed herewith. (RFJN, 116.)

226 13 On Apnil 7, 2023, Colosi plead guilty to one charge of Felony Assault with a Deadly Weapon

os 14 and not guilty to other charges”. (REJN, §917, 10; Peoplev. Colosi; Santa Barbara Sup. Ct. Case No.:
52
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ea 15 19-CR-12190.)
ict
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ag 16 On November 17, 2022, Montecito Bank & Trust filed a complaint in interpleader regarding

17 $1,345,454.33 it holds which backs the series of cashier’ s checks obtained by Colosi that were never

18 cashed. (REJN, 118.)
19 OnJune 2, 2023, Colosi appeared in the interpleader action by filing a motion entitled:

20 Request for Permanent Injunction; and Response and Opposition to Interpleader. (REJN, 119.)

21 On February 5, 2024, Plaintiff’ s initial Application for Default was heard and denied without

22 prejudice. At the hearing, the Court ordered Defendant Colosi “to file her answer no later than

23 March4, 2024.” (REJN 13.) Colosi did not file an answer.

24 The Criminal Action has ended. On March 12, 2024, Colosi’s sentencing hearing occurred,

25 and Colosi was released from incarceration. (RFJN, 714.)

27 2 The criminal charges against Colosi were: (1) Felony Attempted Murder, (2) Felony Assault with Deadly Weapon; (3)
Felony Attempted Kidnapping; (4) Felony Child Stealing; (5) Misdemeanor Violation of Court Orderto prevent
28 Domestic Violence; and two enhancements. (REJN, 417.)

PLAINTIFF CINDY HANN’S NOTICE AND MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF
APPLICATION FOR DEFAULT JUDGMENT AND DETERMINATION OF ATTORNEY S’ FEES
Iv. LEGAL AUTHORITY AND ARGUMENT

C.C.P. § 585 provides for entry of a default court judgment
where a defendant fails to answer

the complaint. A plaintiff, after a defendant
fails to respond, may apply to the court for the relief

demanded
in the complaint, and the court shall hear the evidence offered and render in his/her favor .

. . aS appears
to bejust. (C.C.P. § 585(b).) Further, in cases referred to in subsections (b) and (c), the

court may permit the use of affidavits in lieu of personal testimony, as to all or any part of the proof

required or pennittedto be offered, received, or heardin such cases. (C.C.P. § 585(d).)

Santa Barbara Superior Court’s Local Rule 1307(b)(2) provides: “Where live testimony is

not required by law or by court order, the preferred procedure for applications for court judgment on.
10 default is by declarations pursuant to Code of Civil Procedure section 585, subdivision (d).” Based

11 on the attached declarations, Plaintiff Hann respectfully requests that the Court enter judgment

12 against Colosi without a live prove-up hearing.

226 13 Further, Hann has complied with the requirements to seek a default court judgment set forth

os 14 in Cal. Rules of Court, rule § 3.1800(a), which states, “A party seeking a default judgment on
52
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ea 15 declarations must use mandatory Request for Entry of Default (Application to Enter Default) (form
ict
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ag 16 CIV-100).” Form CIV-100 is filed simultaneously herewith.

17 “Upon the failure of the defendants to answer the complaint within the time allowed by law,

18 and upon the entry of default, in the absence
of fraud, the right of the defendantto participate
in the
19 litigation is terminated...” (Forbes v. Cameron Petroleuns, Inc. (1978) 83 Cal.App.3d 257, 262-

20 63.) Furthermore, defaults generally admit, so far as the default
party is concemed, the absolute

21 truth of all aptly pleaded allegations of the complaint. (Bristol Convalescent Hosp. v. Stone (1968)

22 258 Cal.App.2d 848, 859.) The default of defendant in an ordinary action admits, so far as such

23 defaulting defendant is concemed, the absolute verity of all the allegations of the complaint giving

24 tise to liability. (Id.) By permitting default to be entered, defendant confesses truth of all material

25 allegations in the complaint. (Fitzgeraldv. Herzer (1947) 78 Cal.App.2d 127, 131.) Therefore,

26 Colosi, having failed to answer the complaint and having default be entered, generally admits
to the

27 truth of the allegations of Hann’ s complaint.

28
10
PLAINTIFF CINDY HANN’S NOTICE AND MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF
APPLICATION FOR DEFAULT JUDGMENT AND DETERMINATION OF ATTORNEY S’ FEES
Hann has complied with the requirements of Code of Civil Procedure section 587 which

requires that an application
for entry of a default, orof ajudgment, be accompaniedby an affidavit

showing that a copy of the application has been made to an unrepresented defendant at her last

known address. (C.C.P. § 587; see In re Marriage of Harris (1977) 74 Cal.App.3d 98, 100.) See

Decl. Frusetta
at J 11 evidencing
service on Colosi at her last and current address to ensure service.)

Last, a defendant
who is both incarcerated without access to courts and indigent may not

have default judgment entered against them. (Paynev. Sup. Ct. (1976) 17 Cal.3d. 908.) Colosi is not

indigent, has repeatedly appeared at the Case Management Conferences in this action, and made a

general appearance in the companion case filed in interpleader. More importantly, as of March 12,
10 2024, Colosi is no longer incarcerated. (Decl. Frusetta, 115; RFJN, 199, 14; C.C.P. § 1014.)

11 A Plaintiff Hann, As a Matter of Law, Has Established All Elements of Her C auses of
Action.
12
Plaintiff’ s Complaint alleges three Causes of Action against Defendant Colosi: (1) Civil
226 13
Assault and Battery; (2) Intentional Infliction of Emotional Distress; and (3) Avoidance, Recovery
os 14
52
Be and Damages for Fraudulent Transfers under Common Law and Califomia Uniform Fraudulent
ea 15
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Transfer Act. As detailed below, Plaintiff has submitted evidence herewith in the form of her

Declaration, the Sheriff’s Report, and her medical records/billing
that establish each element of her
17
three claims.
18
1 Civil Assault (CACI 1301)
19
“The essential elements of a cause of action for assault are: (1) defendant
20
acted with intent to cause harmful or offensive contact, or threatenedto
21 touch plaintiff in a harmful or offensive manner; (2) plaintiff reasonably
believed she was about to be touched in a harmful or offensive manner or it
22 reasonably appeared to plaintiff thar defendant was about to carry out the
threat; (3) plaintiff did not consentto defendant’s conduct; (4) plaintiff was
23 harmed; and (5) defendant’s conduct was a substantial factor in causing
plaintiff's harm.” (So v. Shin (2013) 212 Cal.App.4th 652, 668-69.)
24

25 a Intent to cause harmful or offensive contact.

26 A civil action for assault is based upon an invasion of the right of a person to live without

27 being put in fear of personal harm. Every person has “the right of protection from bodily restraint or

28 harm.” (Civ. Code § 43.) Colosi placed
a metal “SodaStream”’ CO2 canister into her vehicle. After
11
PLAINTIFF CINDY HANN’S NOTICE AND MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF
APPLICATION FOR DEFAULT JUDGMENT AND DETERMINATION OF ATTORNEY S’ FEES
she parked in a somewhat remote spot of the Zodo’s parking lot, she grabbed the canister from her

vehicle and brought it with her as she exited the vehicle immediately prior
to the attack. After Hann,

Colosi, and the Minor exited their vehicles, began walking towards Zodo’s, and the struggle

occurred, Colosi yelled
at the Minor to get back in the vehicle. There was a court order prohibiting

Colosi from being alone with the Minor, so Hann spoke with Colosi about that instruction. During

that conversation, Hann tumed to look at the Minor, Colosi said that “[she] can’t take this anymo! ,

then Colosi swung the SodaStream canister and struck Hann repeatedly. (Decl. Hann, {14; See also

Decl. Frusetta, 1-2, C onditionally Sealed Exhibit 1-2 - Sheriff’s Reports.) This resultedin

lacerations and a head injury. (Decl. Frusetta, {]8-9, Conditionally Sealed Exhibits 17-19.) Hann
10 was able to tum around after the first strike and said “Are you kidding
me” and urged the Minor to

11 go into Zodo’s where she and the Minor hid in one of the rooms until emergency responders arrived.

12 (Decl. Hann, 414; See also Decl. Frusetta, 41-2, C onditionally Sealed Exhibits 1-2 - Dec. 8 and9,

226 13 2019 Sheriff’ s Reports.)

os 14 There is no legitimate reason for a person intending to take her child bowling to bring
a 60-
52
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ea 15 liter CO2 canisteras they walk out of the vehicle. This indicates that Colosi had intended to wield
ict
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ag 16 the canister
as a weapon, carried it for that purpose, spoke with Hann and indicated that she had had

17 enough. Intentis clear based on these actions.

18 b Hann reasonably believed she was about to be touched in a harmful or
offensive manner.
19
Hann wes not facing Colosi when she was first stuck. But after the first strike, Hann tumed.
20
back towards Colosi and said “Are you kidding me?” at which point she saw Colosi swinging the
21
canister
at her [Hanns] face. Colosi struck
Hann repeatedly on her face and body. Hann was fully
22
aware that she was being attacked. (Decl. Hann, 14; See also Decl. Frusetta, 4] 1-2, Conditionally
23
Sealed Exhibits 1-2 - Dec. 8-9, 2019 Sheriff’s Reports.)
24
C. Hann did not consent.
25
Hann did not consent to being physically assaulted
or attacked. (Decl. Hann, 49.)
26

27 Il

28
12
PLAINTIFF CINDY HANN’S NOTICE AND MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF
APPLICATION FOR DEFAULT JUDGMENT AND DETERMINATION OF ATTORNEY S’ FEES
d Hann was harmed and Colosi’s conduct was a substantial factor of
Plaintiff's harm.

Colosi’s conduct was the sole causation of the injuries to Hann’s face
and head, the facial

disfigurement and severe emotional stress of which she complains. (Decl. Hann, 17; Decl. Frusetta,

7-9, Exhibits 13; Conditionally Sealed Exhibits 17-19.)

2. Civil Battery (CACI 1300)

“The essential elements of a cause
of action for battery are: (1) defendant
touched plaintiff, or caused plaintiff
to be touched, with the intent to harm
or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff
‘was harmed or offended by defendant’ s conduct and (4) areasonable person
in plaintiffs position would have been offended by the touching.” (So v.
Shin (2013) 212 Cal.App.4th 652, 669.)
10
a Colosi touched Hann with the intent to harm.
11

12 In Califomia, battery is a general intent crime. (People v. Colantuono (1994) 7 Cal.4th 206,

13 217.) As withall general intent crimes, “the required mental state only an intent to do the act that
226
os 14 causes
the harm. . . [Citation] Thus, the crime of battery requires that the defendant actually intend
52
Be
ea 15 to commita ‘willful and unlawful’ use of force or violence upon the person of another.” (People v.
ict
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ag 16 Lara (1996) 44 Cal.App.4th 102, 107.) “It has long been established, both in tort and criminal law,

17 that ‘the least touching’ may constitute battery.” (People v. Page (2004) 123 Cal.App.4th 1466,

18 1473, fn. 1.) Colosi had the forethoughtto bring/carry a metal CO. canister
with her to a scheduled.

19 supervised visitation with Hann and the Minor, indicating
the preexisting thought to use a weapon,

20 then used the canisteras a weapon against Hann, followed
by an attempt to abscond
with the Minor.

21 This demonstrates premeditation. As a Supervised Visitation Provider, it was Hann’s job to ensure

22 the safety and security of the Minor. (Decl. Hann, /2.) Given Hann’s role, it is reasonably to infer

23 that Colosi knew or anticipated
that Hann would interfere with Colosi’s planto kidnap
the Minor.

24 Colosi brought a CO: canister with her and used it to bludgeon Hann’ s head/face. Colosi clearly

25 intended to harm and incapacitate
Hann.

26 b Hann did not consent to being attacked.

27 Hann did not consent to being attacked. (Decl. Hann, {1 9.)

28
13
PLAINTIFF CINDY HANN’S NOTICE AND MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF
APPLICATION FOR DEFAULT JUDGMENT AND DETERMINATION OF ATTORNEY S’ FEES
C. Hann was harmed.

Colosi’s conduct was the sole causation of the injuries to Hann’s face
and head, the facial

disfigurement and severe emotional stress of which she complains. (Decl. Hann, 17; Decl. Frusetta,

"17-9, Exhibits 13, 17-19.)
d A reasonable person would have been offended.

Any reasonable person would have been offended at being physically attacked
and beaten to

the point
of nearly losing consciousness. (Decl. Hann, {| 6-7.) Indeed, the People of the State of

Califomia found Colosi’s bludgeoning of Hann so offensive that it warranted charging her with

felony attempted murder. (RFJN No. 7; Peoplev. Colosi (Santa Barbara Sup. Ct. Case No.: 19-CR-
10
12190.)
11
3 Intentional Infliction of Emotional Distress (C ACI 1600)
12
“A cause of action for intentional infliction of emotional distress exists
13 when there is ‘(1) extreme and outrageous conduct by the defendant with
226 the intention of causing, or reckless disregard of the probability of causing,
os 14 emotional distress; (2) the plaintiff’s suffering severe or extreme emotional
52
Be distress; and (3) actual and proximate causation of the emotional distressby
ea 15 the defendant’s outrageous conduct.” (Hughes v. Pair (2009) 46 Cal.4th
ict
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ag 16
1035, 1050-51.)

17 a Colosi engaged in extreme and outrageous conduct with the intent of
causing, or reckless disregard of the probability of causing emotional
18 distress.
19 A defendant's conduct is “outrageous” when it is so “extreme as to exceed all bounds of that
20 usually tolerated in a civilized community” and “intendedto inflict injury or engaged
in which the
21 realization
that injury will result.” (Id.) Here, Colosi’s conduct
was so extreme and outrageous
that
22 she has been criminally charged with attempted
murder. (REJN No. 7.)
23 Colosi is an orthopedic surgeon with an advanced knowledgeof anatomy and the harm that
24 can arise from blunt force traumato the head. (Decl. Frusetta, {|1, See also C onditionally Sealed
25 Exhibit 1 - Dec. 8, 2019 Sheriff’s Report.) As an orthopedic surgeon, Colosi knew better than.
26 almost anyone that repeatedly bludgeoning a person in the face and head with a 60-liter metal
27 camnister
was likely to result in critical injury and even fatality. It would certainly be a traumatizing,
28
14
PLAINTIFF CINDY HANN’S NOTICE AND MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF
APPLICATION FOR DEFAULT JUDGMENT AND DETERMINATION OF ATTORNEY S’ FEES
manzing, and brutal event that would leave anyone suffering severe emotional distress. Further, was

in front of Colosi’s own pre-teen child. [a
ee
ee
ee
(Decl. Frusetta, 1 1 and3, Conditionally Sealed Exhibits 1 and3 - Dec. 8, 2019 Sheriff’ s Report;

Fourth Supplemental Sheriff’ s Report dated Dec. 11, 2019.)

Colosi attacked Hann simply for doing the job that the Court had appointed Hann to do - to

supervise the Minor
s visitation with the non-custodial parent, Colosi. (Decl. Hann, 2.) What was

10 supposed
to be time for Colosi to connect and spent time with her son tumed into a bloody mauling

11 and attempted kidnapping outside of a bowling alley.

12 As aresult of Colosi’s elaborate kidnapping scheme and brutal attack in front of a child, any
nos
355
no 13 reasonable person would find that she engaged in extreme and outrageous conduct
with the intent of

os 14 causing, or reckless disregard of the probability of causing the victim severe emotional distress.
52
es
sea 15 b Hann suffered severe or extreme emotional distress.
ni
Qe
ag 16 A plaintiff must show that the “emotional distress [is] of such substantial quality or enduring

17 quality that no reasonable [person] in civilized society should be expected to endure it.” (Hughes v.

18 Pair (2009) 46 Cal.4th 1035, 1050-51.) By the virtue of our laws, we as a civilized society have

19 agreed that no one should be expectedto endure the severe emotional distress
that results from an

20 unprovoked physical attack
that results in oris likely to result in great bodily injury. Indeed, criminal

21 law often provides
that physical attackso severe in nature that it injures or incapacitates the victim is

22 so outrageous and intolerable that it warrants incarceration.

23 Here, Hann has suffered severe emotional distress as a direct and proximate
result of Colosi’s

24 bnutal attack. Hann has sought out cognitive and emotional therapy because of the enduring

25 psychological impact. Whether it’s her day-to-day life, the fear that Colosi will cometo her house,

26 or the fear that a client for whom she provides supervised visitation will attack her from behind,

27 Hann experiences serious trauma that has changed her life for the foreseeable
future. (Decl. Hann, {]

28
15
PLAINTIFF CINDY HANN’S NOTICE AND MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF
APPLICATION FOR DEFAULT JUDGMENT AND DETERMINATION OF ATTORNEY S’ FEES
7 -providing
a full story from Ms. Hann about her experience; and Decl. Robert Hann {| 1-10.) The

moming of December 8, 2019 haunts her and has compromised plaintiff’ s work and ability to serve

as a supervised-visitation provider. (Decl. Hann, 17.)

Further, Hann was disfigured
by the attack. The scar on her face is a lasting, unwelcome

reminder
of the homor she endured. (Decl. Robert Hann, (1-10, Exhibits 23-35.) While she has

sought out plastic surgeryto hide and reduce the scar, it cannot
be completely erased. (Id, Exhibits

34-35; Decl. Hann, {|7; Exhibit 22 - Ltr. From Dr. Gross discussing
scar prognosis.) Having a

visible facial scar with people watching or staring or wandering
their eyes to fixate on it or havingto

respond to questions about it for the foreseeable future is embarrassing and an inescapable reminder
10 of the terror she experienced.

11 C. Colosi’s outrageous conduct is the actual/proximate cause of the
emotional distress.
12
Colosi’s conduct, alone, resultedin Hann’s emotional distress. After December 8, 2019,
226 13
Hann was traumatized and began experiencing significant fear, anxiety and protective behavior
os 14
52
Be which is triggered furtherby discussing Colosi or the attack. (Decl. Hann, 117, Exhibit 20.)
ea 15
ict
Qe 4. Avoidance, Recovery and Damages for Fraudulent Transfers (Under Common
ag 16
Law and California Uniform Fraudulent Transfer Act)
17
Under the U

Case Info

Judge

Sterne, Colleen K Track Judge’s New Case

Case No.

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Document Filed Date

March 28, 2024

Case Filing Date

June 05, 2020

County

Parties

Colosi, Theresa Lynn Defendant
Colosi, Theresa Lynn Defendant
Hann, Cindy M Plaintiff
Hann, Cindy M Plaintiff
McCarthy, Patrick Attorney for the Plaintiff
McCarthy, Patrick Attorney for the Plaintiff
William Frusetta Attorney
Briana McCarthy Attorneys for Plaintiffs
Andrea Konstad Attorney
Ronald Zonen Attorneys for Plaintiffs
Rafael Gonzalez Attorneys for Plaintiffs
Colleen Sterne Attorney
Colleen Keeley Attorneys for Plaintiffs
David Allard Attorney
Cary Petersen Attorney
Kevin Hutcheson Attorney
Walter Hammon Attorneys for Plaintiffs
Theresa Lynch Attorney

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Party Notice: Cindy M Hann vs Theresa Lynn Colosi

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