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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA BARBARA
Dated and Entered: 12/20/2023 Time: 10:00 AM
Judicial Officer: Thomas P Anderle
Deputy Clerk: Veronica Robles Dept: SB Dept 3
Deputy Sheriff: Gary Siegle
Court Reporter: Lindy DeBoer Case No: 20CV04132
Mark Sellars et al vs Patrick Leahy et al
Parties Present:
Tappeiner, David J Attorney for Plaintiff (via Zoom)
Napper, David Attorney for Defendant (in person appearance)
NATURE OF PROCEEDINGS: Demurrer to Second Amended Complaint; Motion: Strike Portions
of the Second Amended Complaint
David Napper, presented oral argument.
After argument the Court adopted the tentative ruling as follows:
HEARING
1. Defendants Patricia Wollum and Susan Reynolds’ Demurrer to Plaintiffs’ Second Amended
Complaint.
2. Defendants Patricia Wollum and Susan Reynolds’ Motion to Strike Portions of
Plaintiffs’ Second Amended Complaint.
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: David J. Tappeiner
For Defendants Channe Coles and The Law Office of Channe G. Coles: R.
Chris Kroes
For Defendants Patricia Wollum and Susan Reynolds: Gabriella L. Sternfeld, David A. Napper,
Gregory K. Sabo
For Defendant Patrick Leahy: Self-Represented
Emails: david@dtlawpartners.com; rckassistant@mccarthykroes.com;
service@cgdrlaw.com; bcaudill@ctsclaw.com;
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RULING
For the reasons set forth herein:
1. The demurrer of defendants Wollum and Reynolds, to plaintiffs’ second amended
complaint, is sustained in part and overruled in part as follows:
a. The demurrer is overruled as to the first cause of action for elder abuse, the fourth
cause of action for intentional infliction of emotional distress, and the fifth cause of
action for negligence.
b. The demurrer is sustained with leave to amend as to the second cause of action for
financial elder abuse, as to Wollum and Reynolds only.
2. Defendants Wollum and Reynolds motion to strike portions of plaintiffs’ second amended
complaint is denied.
3. Plaintiffs shall file and serve their third amended complaint, if any, no later than January
12, 2024.
4. Should plaintiffs fail to file and serve a third amended complaint by January 12, 2024,
Wollum and Reynolds shall file and serve their answer to the second amended complaint,
except as to the second cause of action for financial elder abuse, no later than January 26,
2024.
Background
This action was commenced by the filing of a complaint on December 11, 2020, by plaintiff Mark
Sellars (Sellars), in which Sellars alleges he is the biological son of Rosemary Free Leahy
(Rosemary) and the trustee of the Rosemary Free Trust u/d/t dated September 13, 2000 (the trust).
(Complaint, ¶ 1.) (Note: Due to common surnames and to avoid confusion, the court will refer to
Rosemary by her first name. No disrespect is intended.) The original complaint alleges two causes
of action against defendant Patrick Leahy (Leahy) for elder abuse and financial elder abuse of
Rosemary. Leahy is Rosemary’s spouse. (Id. at ¶ 3.)
Leahy, who is self-represented, filed an answer to the original complaint on January 5, 2021,
generally denying certain allegations and admitting others and asserting ten affirmative defenses.
On January 23, 2023, the court granted the motion of Sellars for leave to file a first amended
complaint (FAC). Sellars filed the FAC on the same date. The FAC added named plaintiffs Sellars
as trustee of the trust and Rebecca Morin (Morin) who is Rosemary’s conservator, and named
defendants the Law Office of Channe G. Coles, Channe Coles (Coles) (collectively, the Coles
Defendants), Patricia Wollum (Wollum), Susan Reynolds (Reynolds), and Help Unlimited. The
FAC alleges five causes of action: (1) elder abuse (against all defendants); (2) financial elder abuse
(against all defendants); (3) legal malpractice (against the Coles Defendants); (4) intentional
infliction of emotional distress (against all defendants); and (5) negligence (against all defendants).
On April 19, 2023, Help Unlimited filed a verified answer to the FAC and a cross-complaint against
cross-defendants Leahy and Honor Home Care Services California, Inc. (Honor), alleging causes of
action for indemnity, contribution, and declaratory relief.
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On April 20, 2023, the Coles Defendants filed a demurrer to the FAC together with a motion to
strike portions of the FAC.
On May 23, 2023, plaintiffs filed a request for dismissal without prejudice of all claims and causes
of action alleged against Help Unlimited.
On May 26, 2023, Help Unlimited filed a request for dismissal of its cross-complaint against Leahy
and Honor, without prejudice.
Also on May 26, 2023, plaintiffs filed an amendment to the FAC to substitute Honor for Help
Unlimited wherever it appeared in the FAC.
On June 22, 2023, Wollum and Reynolds filed a demurrer to the FAC together with a motion to
strike portions of the FAC.
On July 5, 2023, plaintiffs filed responses to the demurrer and motion to strike of the Coles
Defendants and the demurrer and motion to strike of Wollum and Reynolds, asserting that
plaintiffs have elected to amend the FAC and to amend a “Doe” amendment (which plaintiffs
contend was filed as a second amended complaint), by filing a third amended complaint to address
the issues raised by the Coles Defendants, Wollum, and Reynolds’ respective demurrers and
motions to strike.
On July 6, 2023, plaintiffs filed a motion for leave to file a third amended complaint which plaintiffs
asserted was prepared in response to the demurrers and motions to strike discussed above. The
motion was opposed by the Coles Defendants.
On July 11, 2023, plaintiffs filed a request for dismissal of all causes of action against Honor,
without prejudice.
On July 12, 2023, Wollum and Reynolds filed a notice requesting that the court take their demurrer
and motion to strike off-calendar.
On July 19, 2023, the court continued the hearing on the pending demurrer to and motion to strike
the FAC filed by the Coles Defendants to be heard together with plaintiffs’ motion for leave to file a
third amended complaint.
On July 26, 2023, plaintiffs filed an amended motion for leave to file a third amended complaint.
On August 16, 2023, the court ordered the motion of plaintiffs for leave to file a third amended
complaint off-calendar based on improper and untimely service of that motion. (See Aug. 16, 2023,
Minute Order.)
In addition, because plaintiffs attempted to file an amended complaint rather than a substantive
opposition to the demurrer, the court sustained the demurrer of the Coles Defendants to the first
amended complaint based on the court’s finding that plaintiffs had implicitly acknowledged that
the Coles Defendants’ demurrer had merit. The court granted plaintiffs leave to amend and
ordered plaintiffs to file and serve their second amended complaint no later than September 6,
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2023. (See Aug. 16, 2023, Minute Order.) The court further ordered the motion to strike of the
Coles Defendants off-calendar.
On September 7, 2023, plaintiffs filed a motion for leave to file a second amended complaint to add
Honor as a “Doe” defendant.
Also on September 7, 2023, plaintiffs filed a second amended complaint (SAC) adding Honor as a
defendant and alleging six causes of action: (1) elder abuse (against all defendants); (2) financial
elder abuse (against all defendants); (3) legal malpractice (against the Coles Defendants); (4)
intentional infliction of emotional distress (against all defendants); and (5) negligence (against all
defendants).
On October 4, 2023, the court granted plaintiffs’ motion for leave to file the SAC.
Plaintiffs filed identical versions of the SAC on September 7, 2023, and October 10, 2023.
The allegations of the operative SAC are set forth in 147 factually detailed paragraphs. The
allegations are presented in a narrative fashion which at times lacks chronological coherence. As
alleged in the SAC:
Before marrying Leahy in 1999, Rosemary executed a premarital agreement. (SAC, ¶ 29.)
Rosemary repeatedly told Mark she did not want Leahy in charge of her assets. (SAC, ¶ 29.) In
September 2000, Rosemary executed estate planning documents that purportedly prohibited Leahy
from acting as a trustee or as Rosemary’s agent, and under which Sellars was named as her
successor trustee. (SAC, ¶¶ 29, 30.) The trust has held most of Rosemary’s assets since it was
established. (SAC, ¶ 12.)
Rosemary began suffering from cognitive disabilities in 2017. (SAC, ¶ 1.) Rosemary’s primary
physician of 15 years indicated that he believed Rosemary might be suffering from early
Alzheimer’s disease. (SAC, ¶ 32.)
As soon as Leahy learned of the diagnosis of Alzheimer’s disease by Rosemary’s primary care
physician, Leahy started to abuse Rosemary, financially, emotionally, and otherwise. (SAC, ¶¶ 1,
32.) Among other things, Leahy isolated Rosemary from her family by interfering with and cutting
off Rosemary’s ability to communicate with her family, spoiled or interfered with family visits, and
removed Rosemary from the care of her primary physician. (SAC, ¶¶ 31, 32, 37, 38, 39.) Leahy also
used Rosemary’s money for gambling, encouraged Rosemary to take out loans to pay for gambling
losses, used Rosemary’s credit cards and other assets to pay for expenses for Leahy’s children, and
had an ongoing affair with another woman, among other things. (See SAC, ¶ 40.)
In 2017, Rosemary asked Sellars to move into her home. (SAC, ¶ 34.) After Sellars moved into
Rosemary’s home, he discovered that she was not being treated for her cognitive difficulties and
that there existed financial issues including that the money spent on gambling by Rosemary and
Leahy was greater than the amount Rosemary had allocated towards gambling when she had
capacity. (SAC, ¶¶ 35, 36.)
Because Sellars believed Rosemary was being abused by Leahy, on December 5, 2018, Sellars filed a
petition (the conservatorship petition) for the appointment of a conservator of Rosemary (the
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conservatorship proceeding). (SAC, ¶¶ 1, 2.) In the conservatorship proceeding, Sellars requested
that he be appointed Rosemary’s conservator. (SAC, ¶ 2.)
Leahy hired Coles to prepare a verified objection to the conservatorship petition on behalf of
Rosemary (the objection), which was filed on January 21, 2019. (SAC, ¶¶ 2, 40(g), 63 & Exh. D.)
The objection was verified by Rosemary even though Rosemary did not participate in its
preparation. (SAC, ¶ 65; see also Exh. D, verification page [signed by Rosemary as the
“Objector”].) The objection included assertions that Rosemary was not suffering from Alzheimer’s
disease or dementia, that Rosemary was receiving excellent medical care, that Rosemary
voluntarily chosen not to see or speak to any of her children or grandchildren, that Rosemary’s
finances were protected, and that Sellars was attempting to cause harm to Rosemary. (SAC, ¶ 64.)
In connection with the conservatorship proceeding, Rosemary was examined by Dr. Rebecca
Goodman. (SAC, ¶ 62.) Dr. Goodman concluded that Rosemary suffered from moderate dementia
and lacked awareness about recent major family dynamics and her medical condition and
confirmed the appropriateness of having a conservator appointed for Rosemary. (SAC, ¶ 62.)
Once Dr. Goodman’s findings were filed with the court, Leahy and Coles withdrew the claim that a
conservatorship was unnecessary and objected to Sellars being appointed as conservator despite
Rosemary’s wishes as expressed under the documents Rosemary had executed in 2000. (SAC, ¶ 66.)
Coles also prepared an affidavit which was signed by Rosemary purporting to revoke an advance
health care directive and power of attorney that had been executed by Rosemary in September 2000
and under which Sellars and Morin were named as, respectively, Rosemary’s primary and
alternate agents. (SAC, ¶ 67 & Exh. E.)
In the conservatorship proceeding, professional fiduciary Jacquelyn Quinn (Quinn) was appointed
as Rosemary’s conservator. (SAC, ¶ 68.) Quinn served as Rosemary’s conservator until January 23,
2020, when professional fiduciary Courtney DeSoto (DeSoto) was appointed as Quinn’s successor.
(SAC, ¶ 69.) After Morin moved in to live with Rosemary, Morin was appointed as Rosemary’s
conservator on February 10, 2022. (SAC, ¶ 70.)
Morin subsequently investigated the purported abuse committed by Leahy and the relationship
between Leahy and Coles. (SAC, ¶ 71.) Morin discovered email correspondence between Leahy and
Coles on a computer at Rosemary’s house which confirmed that the objection had been prepared
solely by Leahy and Coles and not by Rosemary. (SAC ¶ 74 & Exhs. F-K.) Based on the content and
context of the email correspondence, and Rosemary’s mental difficulties, it was or should have been
clear to Coles that Leahy was responding to the emails and not Rosemary and that Rosemary could
not have provided the detailed information necessary to prepare the objection. (SAC, ¶¶ 75, 80, 81,
82.) The email correspondence confirmed facts supporting the family’s belief that Coles was
working against Rosemary’s interests and that the objection had been prepared by Leahy and
Coles and not by Rosemary. (SAC, ¶¶ 73-75.)
In addition, during his deposition in this action, Leahy admitted that Rosemary could not have
prepared the objection to the conservatorship proceeding because of her “memory”. (SAC, ¶ 79.)
Leahy’s deposition testimony also confirms that the objection was drafted by Leahy and Coles.
(SAC, ¶ 78.)
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Coles met with Rosemary in person while she was suffering from the mental difficulties diagnosed
by Dr. Goodman in the conservatorship proceeding. (SAC, ¶ 80.) Coles knew or should have known
that Rosemary did not have the capacity or memory to formulate or provide the detailed
information provided used by Coles to prepare the objection and knew or should have known that
Leahy was providing the information that Coles included in the objection filed on Rosemary’s
behalf. (SAC, ¶¶ 80, 81.)
In the conservatorship proceeding, Coles sought approval for payment of legal fees (the Coles fee
petition). (SAC, ¶ 83.) Sellars filed an opposition to the Coles fee petition (the fee petition
opposition). (SAC, ¶ 83 & Exh. M.) In the fee petition opposition, Sellars claimed, among other
things, that Rosemary lacked the capacity to contract with Coles, that Coles provided no benefit to
Rosemary and failed to act in her best interests, and that it appeared that Coles was representing
Leahy’s interests and not the interests of Rosemary. (SAC, ¶ 83 & Exh. M.) The court denied the
Coles fee petition. (SAC, ¶ 84.)
Although Sellars and other members of Rosemary’s family were upset about Coles’ conduct and
believed that Coles was not representing Rosemary’s interests, there was no written or other
concrete evidence to support such claims at that time. (SAC, ¶ 83, 89.) Evidence supporting the
claims was uncovered after Morin became Rosemary’s conservator in February 2022 and after
Leahy was deposed in this action March 2022. (SAC, ¶¶ 89, 90, 93.)
In addition, Rosemary’s prior conservators had no interest in investigating a claim of malpractice
against Coles. (SAC, ¶ 89.) Furthermore, Rosemary was under a disability when the actions and
conduct described above and in the SAC were undertaken by Coles. (SAC, ¶¶ 91, 92.)
The SAC also includes allegations relating to a restraining order entered on December 11, 2020,
and the purported abuse of Rosemary by Reynolds and Wollum. (See SAC, ¶¶ 8, 18, 19, 42, 43, 45,
46, 47, 48, 50, 52, 53, 55-60 & Exh. A [Attachment 11].) These allegations are relevant to the present
motion and will be discussed below.
On October 6, 2023, the Coles Defendants filed a demurrer to the SAC on the grounds that each
cause of action alleged in the SAC is barred by the statute of limitations under Code of Civil
Procedure section 340.6. Also on October 6, 2023, the Coles Defendants filed a motion to strike the
SAC, or portions thereof, on the grounds that the general allegations and all causes of action
include irrelevant, false, and improper matter, and that allegations relating to plaintiffs’ claim for
punitive damages are conclusory and improper. The demurrer and motion to strike were opposed
by plaintiffs. On November 22, 2023, the Coles Defendants’ demurrer was overruled and the
motion to strike was denied.
On November 11, 2023, Wollum and Reynolds filed the present demurrer to the SAC on the
grounds that the entire SAC and its first, second, fourth, and fifth causes of action fail to allege
sufficient facts to constitute causes of action pursuant to Code of Civil Procedure section 430.10,
subdivision (e). Also on November 11, 2023, Wollum and Reynolds filed the present motion to strike
references to punitive damages and attorney fees in the SAC because plaintiff’s “prayers for relief
in the form of punitive damages and attorneys’ fees are not drawn in conformity with the laws of
this state or with Court rules and is otherwise irrelevant and improper."
Plaintiffs oppose the demurrer and the motion to strike.
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Analysis
1. Demurrer
“When any ground for objection to a complaint, cross-complaint, or answer appears on the face
thereof, or from any matter of which the court is required to or may take judicial notice, the
objection on that ground may be taken by a demurrer to the pleading.” (Code Civ. Proc., § 430.30,
subd. (a).) “Our consideration of the facts alleged includes ‘those evidentiary facts found in recitals
of exhibits attached to [the] complaint.’ [Citation.]” (Alexander v. Exxon Mobil (2013) 219
Cal.App.4th 1236, 1250.)
“[A] court must treat a demurrer as admitting all material facts properly pleaded, it does not,
however, assume the truth of contentions, deductions or conclusions of law.” (Travelers Indem. Co.
of Connecticut v. Navigators Specialty Ins. Co. (2021) 70 Cal.App.5th 341, 358, citing Aubry v. Tri-
City Hospital Dist. (1992) 2 Cal.4th 962, 967.)
“To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action;
each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.”
(C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)
Allegations against Wollum and Reynolds
It is undisputed that Wollum and Reynolds were employed by Honor and paid to provide
caregiving services to Rosemary.
Allegations in the SAC pertaining to Wollum and Reynolds include:
On December 11, 2020, the court entered a temporary restraining order (TRO), a copy of which is
attached as Exhibit A to the SAC. (SAC, ¶ 41 & Exh. A.) Relevant portions of the TRO include: (1)
Leahy is not to upset Rosemary by talking with her about ongoing legal proceedings and, in
response to any of her questions regarding such matters, should refer her to her lawyer for
answers; (2) Leahy is not to speak with Rosemary in any manner which disparages her relatives; (3)
Leahy shall not interfere with caregivers, including family members, who are authorized by the
conservator to care for Rosemary; and (4) Any person may make an audio or video recording of
any visit. (Ibid.)
“The recordings authorized by the Court in the Elder Abuse Restraining Order Matter not
only confirmed Mr. Leahy’s continued abuse of Rosemary but also revealed that caregiver
defendants Wollum and Reynolds were not only negligent but engaged in conduct which caused
Rosemary substantial emotional distress and themselves and abused Rosemary by, inter alia: (i)
conspiring with Mr. Leahy to conceal his abuse and to cast Rosemary’s family members in a
negative light; (ii) discussed the distressing legal matters with Mr., Leahy in front of Rosemary
despite the fact that each of them were aware that such matters were not to be discussed in front
of Rosemary; (iii) failed to report the ongoing abuse of Rosemary by Mr. Leahy which they
witnessed; (iv) intentionally did not include information about Mr. Leahy’s abuse of Rosemary
in the reports they filed with Rosemary’s Conservator; and (v) in an attempt to cast Rosemary’s
family members in a false light, filed knowingly false reports with Rosemary’s Conservator,
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accusing Rosemary’s family members of engaging in conduct which they did not engage in,
which reports were refuted in their entirety by actual evidence.” (SAC, ¶ 43 & Exhs. B, C.) Leahy
discussed legal proceedings with Wollum and Reynolds, in the presence of Rosemary, at length.
(SAC, ¶ 45.) Leahy, in speaking with Wollum and Reynolds in front of Rosemary, disparages
Rosemary’s family members, threatens Rosemary with being placed in a nursing home, and berates
Rosemary regarding her memory. (Ibid.) Leahy receives advice from Wollum regarding defeating
the claims against him and, in response to her concerns about potentially being implicated in this
matter, Leahy assures Wollum that he will not disclose their conversations to anyone. (Ibid.)
“The caregivers hired by Rosemary’s Conservator, Courtney DeSoto, including but not limited to
defendants Patricia Wollum and Susan Reynolds, were made aware of the court proceedings
concerning the abuse being committed by Mr. Leahy against Rosemary and knew that the legal
proceedings involving Rosemary were not to be discussed in front of Rosemary at any time. Despite
such knowledge, not only did caregiver defendants Patricia Wollum and Susan Reynolds discuss
such proceedings in front of Rosemary, they encouraged Mr. Leahy to discuss such proceedings in
front of Rosemary by asking him questions about such matters in front of Rosemary. Further, as
shown in the attached transcripts, portions of which are set forth below, each of them negligently,
recklessly, and intentionally colluded and/or conspired with Mr. Leahy to try to assist him with
trying to defeat the elder abuse claims which had been made against him.” (SAC, ¶ 46 & Exhs. B,
C.)
“Not only did defendant caregivers Patricia Wollum and Susan Reynolds know that there was a
Court Order in place specifically prohibiting Mr. Leahy from discussing legal proceedings in front
of Rosemary and from disparaging Rosemary’s family members, as caregivers who were
hired and paid to provide care for Rosemary, common sense dictates that they should not discuss
such matters with or in front of Rosemary, as they knew such discussions were distressing and
confusing to Rosemary. As shown in the attached transcripts, Mr. Leahy verbally abused Rosemary
in front of them and they did nothing, not even alerting the Conservator or Rosemary’s court-
appointed counsel of such abuse.” (SAC, ¶ 47 & Exhs. B, C.)
“Defendant caregivers Patricia Wollum and Susan Reynolds were not just negligent; each of them
recklessly and/or intentionally engaged in conduct which caused Rosemary significant emotional
distress and which, in and of itself, constitutes elder abuse under California’s Elder
Abuse Act (Welfare & Institutions Code § 15610, et seq.). Examples of such conduct are as follows:
(i) they failed to report Mr. Leahy’s repeated verbal abuse of Rosemary; (ii) they asked
Mr. Leahy about the court proceedings in front of Rosemary, knowing that such matters were not
to be discussed in front of her; (iii) they failed to report that Mr. Leahy was disparaging
Rosemary’s family members; (iv) they intentionally omitted such information from the reports
that they made to Rosemary’s Conservator; (v) they advised Mr. Leahy as to what he should say
and/or how he should act in such proceedings in order to attempt to assist Mr. Leahy from being
held accountable for his abuse of Rosemary; and (vi) they filed reports with Rosemary’s
Conservator containing false and disparaging information about Rosemary’s family.” (SAC, ¶ 48.)
“Wollum falsified the information contained in reports submitted to the Conservator. For example,
on December 29, 2020, Conservator Courtney DeSoto emailed Becky and Mark stating that she had
received ‘information from the care agency that not all family members are adhering to the covid
19 protocols, specifically wearing a mask when visiting Rosemary.’ After receiving the email,
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evidence was then provided to Conservator DeSoto that it was in fact the caregivers who were not
wearing masks.” (SAC, ¶ 55.)
“[D]efendant Wollum committed elder abuse against Rosemary by failing to report the abusive
actions of Mr. Leahy, by colluding and conspiring with Mr. Leahy in an attempt to conceal his
ongoing abuse of Rosemary, and even filed false reports with Conservator DeSoto in an attempt to
cast Rosemary’s family members in a false light.” (SAC, ¶ 57.) Caregiver Susan Reynolds engaged
in similar conduct. (SAC, ¶ 58 & Exh. C.)
“The conduct identified in the foregoing paragraphs created circumstances or conditions likely to
produce great distress to Rosemary and such Defendants willfully caused or permitted Rosemary to
suffer or inflicted upon her unjustifiable pain and mental suffering.” (SAC, ¶ 105.)
“The named Defendants willfully caused or permitted Rosemary, with knowledge that she was an
elder and dependent adult, to suffer, or inflicted upon her unjustifiable distress and mental
suffering.” (SAC, ¶ 106.) “As a direct and proximate result of Defendants’ malicious, oppressive,
fraudulent and/or reckless conduct, as alleged herein, Rosemary suffered unjustifiable and
substantial distress and mental suffering.” (SAC, ¶ 107.)
Wollum and Reynolds committed financial elder abuse for all the reasons discussed above,
including failure to report Leahy’s continued abuse of Rosemary, working with Leahy against
Rosemary’s interests, and receiving compensation for such services. (SAC, ¶ 117.)
Wollum and Reynolds intentionally engaged in the above-described conduct which caused severe
emotional distress to Rosemary. (SAC, ¶ 135.) “Each Defendant’s conduct was outrageous. Each
Defendant knew of Rosemary’s emotional, mental and physical frailty and that their conduct would
cause her extreme emotional distress, yet each of them acted in complete disregard of such facts.”
(SAC, ¶ 137.)
“Caregivers Patricia Wollum and Susan Reynolds had the duty to care for and protect Rosemary.
When they were recorded engaging in conduct which was detrimental to Rosemary and adverse to
her interests, they were immediately terminated.” (SAC, ¶ 146.)
Elder Abuse
“The elements of a cause of action under the Elder Abuse and Dependent Adults Act, section 15600
et seq. . . . are statutory, and reflect the Legislature’s intent to provide enhanced remedies to
encourage private, civil enforcement of laws against elder abuse and neglect.” (Intrieri v. Superior
Court (2004) 117 Cal.App.4th 72, 82.)
“(a) ‘Abuse of an elder or a dependent adult’ means any of the following:
“(1) Physical abuse, neglect, abandonment, isolation, abduction, or other treatment with
resulting physical harm or pain or mental suffering.
“(2) The deprivation by a care custodian of goods or services that are necessary to avoid
physical harm or mental suffering.
“(3) Financial abuse, as defined in Section 15610.30.” (Welf. & Inst. Code, § 15610.07, subd.
(a); italics added.)
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Wollum and Reynolds, as alleged in the SAC, are mandated reporters and had a duty to report
Leahy’s allegedly abusive behavior towards Rosemary, pursuant to Welfare & Institutions Code
section 15630.
The purposes of the Elder Abuse and Dependent Adult Civil Protection Act include a requirement
for “health practitioners, care custodians . . . to report known or suspected cases of abuse of elders
and dependent adults . . . “ (Welf. & Inst. Code, § 15601, subd. (a).) The plain language of the
regulations includes a duty of care that includes reporting of abuse.
“[T]he Legislature intended to create solely an objective standard for determining when it is
necessary to report suspected abuse.” (People v. Davis (2005) 126 Cal.App.4th 1416, 1427.)
It is a question of fact, not properly decided by demurrer, whether Wollum and Reynolds violated
the Elder Abuse and Dependent Adults Act by their failure to report Leahy’s alleged abuse of
Rosemary, whether that failure caused injury to Rosemary, whether that injury resulted from an
occurrence of the nature which the Elder Abuse and Dependent Adults Act was designed to
prevent, and whether Rosemary was one of the class of persons for whose protection the Elder
Abuse and Dependent Adults Act was adopted.
Plaintiffs have alleged more than sufficient facts, in the SAC, to overcome demurrer. Wollum and
Reynolds’ actions and inactions, as alleged in the complaint and contained in the attached
transcripts, adequately set forth “other treatment” that could be considered elder abuse resulting in
emotional distress. The demurrer to the first cause of action for elder abuse is overruled.
Financial Elder Abuse
“The substantive law of elder abuse provides that financial abuse of an elder occurs when any
person or entity takes, secretes, appropriates, or retains real or personal property of an elder adult
to a wrongful use or with an intent to defraud, or both.” (Teselle v. McLoughlin (2009) 173
Cal.App.4th 156, 174.)
“A person or entity shall be deemed to have taken, secreted, appropriated, obtained, or retained
property for a wrongful use if, among other things, the person or entity takes, secretes,
appropriates, obtains, or retains the property and the person or entity knew or should have known
that this conduct is likely to be harmful to the elder or dependent adult.” (Welf. & Inst. Code, §
15610.30, subd. (b).)
“Under California law, liability may be imposed for assisting in financial elder abuse under an
aiding and abetting standard.” (Gray v. JPMorgan Chase Bank, N.A. - F.Supp.3d - 2023 WL
2471381.)
The allegations contained in the SAC provide that Wollum and Reynolds “received compensation”
for their caregiving services. There are no allegations that Wollum or Reynolds took, secreted,
appropriated, or retained any of Rosemary’s personal money, or other property, to a wrongful use
or with an intent to defraud, nor are there any allegations that Wollum or Reynolds knew anything
about Leahy’s alleged financial abuse of Rosemary and colluded with him.
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As pled, the allegations contained in the SAC are insufficient to state a cause of action for financial
elder abuse. As such, the demurrer to the second cause of action for financial elder abuse will be
sustained. While the court has doubts that plaintiffs will be able to amend the complaint to properly
allege a cause of action for financial elder abuse, plaintiff will be given leave to amend.
Intentional Infliction of Emotional Distress
“The elements of a cause of action for IIED are as follows: (1) defendant engaged in extreme and
outrageous conduct (conduct so extreme as to exceed all bounds of decency in a civilized
community) with the intent to cause, or with reckless disregard to the probability of causing,
emotional distress; and (2) as a result, plaintiff suffered extreme or severe emotional distress.
[Citation.] Additionally, “ ‘ “[i]t must be conduct directed at the plaintiff, or occur in the presence
of the plaintiff of whom the defendant is aware.’ ” [Citation.] ‘ “The requirement that the
defendant’s conduct be directed primarily at the plaintiff is a factor which distinguishes intentional
infliction of emotional distress from the negligent infliction of such injury.” ’ ” [Citations.] (So)
[conduct must be directed to the plaintiff, but malicious or evil purpose is not required].)” (Berry v.
Frazier (2023) 90 Cal.App.5th 1258, 1273.)
Assuming the correctness of plaintiffs’ allegations, reasonable minds could certainly differ whether
Wollum and Reynolds engaged in outrageous conduct with disregard to the probability of causing
Rosemary emotional distress, or that the conduct was beyond the bounds of conduct to be tolerated
in civilized society for caregivers to ignore a TRO, engage in improper conversations with Leahy,
and fail to report alleged abuse by Leahy. The caregivers were hired to care for Rosemary and
assist her with her needs.
Reading the SAC as a whole, and its subparts in their context, plaintiffs have pled sufficient facts to
state a cause of action for intentional infliction of emotional distress.
The demurrer to the fourth cause of action for intentional infliction of emotional distress will be
overruled.
Negligence
“To state a cause of action for negligence, a plaintiff must allege (1) the defendant owed the plaintiff
a duty of care, (2) the defendant breached that duty, and (3) the breach proximately caused the
plaintiff’s damages or injuries. [Citation.] Whether a duty of care exists is a question of law to be
determined on a case-by-case basis. [Citation.]” (Lueras v. BAC Home Loans Servicing, LP (2013)
221 Cal.App.4th 49, 62.)
As caregivers, there can be no doubt that Wollum and Reynolds owed a duty to plaintiff.
“(a) The failure of a person to exercise due care is presumed if:
“(1) He violated a statute, ordinance, or regulation of a public entity;
“(2) The violation proximately caused death or injury to person or property;
“(3) The death or injury resulted from an occurrence of the nature which the statute,
ordinance, or regulation was designed to prevent; and
“(4) The person suffering the death or the injury to his person or property was one of the
class of persons for whose protection the statute, ordinance, or regulation was adopted.” (Evid.
SC-2411 (Revised July 1, 2013) MINUTE ORDER
Code, § 669, subd. (a).) This section of the Evidence Code is commonly referred to as negligence per
se.
The SAC alleges, in addition to other breaches of duty, that Wollum and Reynolds violated the
Elder Abuse and Dependent Adult Civil Protection Act. Even without that allegation, the other
conduct described in the SAC would be sufficient to overcome demurrer as to the negligence cause
of action.
The demurrer to the fifth cause of action for negligence will be overruled.
2. Motion to Strike
As noted above, Wollum and Reynolds seek to strike references to punitive damages and attorney’s
fees in the SAC.
“The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and
upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any
pleading.” (Code Civ. Proc., § 436.) “Irrelevant matter” includes a “demand for judgment
requesting relief not supported by the allegations of the complaint.” (Code Civ. Proc., § 431.10,
subds. (b)(3), (c).) “The grounds for a motion to strike shall appear on the face of the challenged
pleading or from any matter of which the court is required to take judicial notice.” (Code Civ.
Proc., § 437, subd. (a).)
“In an action for the breach of an obligation not arising from contract, where it is proven by clear
and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the
plaintiff, in addition to the actual damages, may recover damages for the sake of example and by
way of punishing the defendant.” (Civ. Code, § 3294, subd. (a).)
As discussed above, reasonable minds could certainly conclude that Wollum and Reynolds acted
with oppression, fraud, or malice by their actions and inactions.
Punitive damages are potentially recoverable under both the elder abuse and intentional infliction
of emotional distress causes of action. As the demurrer was overruled as to both of those causes of
action, the motion to strike will be denied.
DARREL E. PARKER, EXECUTIVE OFFICER Minutes Prepared by:
Veronica Robles , Deputy
SC-2411 (Revised July 1, 2013) MINUTE ORDER
Preview
SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA BARBARA Dated and Entered: 12/20/2023 Time: 10:00 AM Judicial Officer: Thomas P Anderle Deputy Clerk: Veronica Robles Dept: SB Dept 3 Deputy Sheriff: Gary Siegle Court Reporter: Lindy DeBoer Case No: 20CV04132 Mark Sellars et al vs Patrick Leahy et al Parties Present: Tappeiner, David J Attorney for Plaintiff (via Zoom) Napper, David Attorney for Defendant (in person appearance) NATURE OF PROCEEDINGS: Demurrer to Second Amended Complaint; Motion: Strike Portions of the Second Amended Complaint David Napper, presented oral argument. After argument the Court adopted the tentative ruling as follows: HEARING 1. Defendants Patricia Wollum and Susan Reynolds’ Demurrer to Plaintiffs’ Second Amended Complaint. 2. Defendants Patricia Wollum and Susan Reynolds’ Motion to Strike Portions of Plaintiffs’ Second Amended Complaint. 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: David J. Tappeiner For Defendants Channe Coles and The Law Office of Channe G. Coles: R. Chris Kroes For Defendants Patricia Wollum and Susan Reynolds: Gabriella L. Sternfeld, David A. Napper, Gregory K. Sabo For Defendant Patrick Leahy: Self-Represented Emails: david@dtlawpartners.com; rckassistant@mccarthykroes.com; service@cgdrlaw.com; bcaudill@ctsclaw.com; SC-2411 (Revised July 1, 2013) MINUTE ORDER RULING For the reasons set forth herein: 1. The demurrer of defendants Wollum and Reynolds, to plaintiffs’ second amended complaint, is sustained in part and overruled in part as follows: a. The demurrer is overruled as to the first cause of action for elder abuse, the fourth cause of action for intentional infliction of emotional distress, and the fifth cause of action for negligence. b. The demurrer is sustained with leave to amend as to the second cause of action for financial elder abuse, as to Wollum and Reynolds only. 2. Defendants Wollum and Reynolds motion to strike portions of plaintiffs’ second amended complaint is denied. 3. Plaintiffs shall file and serve their third amended complaint, if any, no later than January 12, 2024. 4. Should plaintiffs fail to file and serve a third amended complaint by January 12, 2024, Wollum and Reynolds shall file and serve their answer to the second amended complaint, except as to the second cause of action for financial elder abuse, no later than January 26, 2024. Background This action was commenced by the filing of a complaint on December 11, 2020, by plaintiff Mark Sellars (Sellars), in which Sellars alleges he is the biological son of Rosemary Free Leahy (Rosemary) and the trustee of the Rosemary Free Trust u/d/t dated September 13, 2000 (the trust). (Complaint, ¶ 1.) (Note: Due to common surnames and to avoid confusion, the court will refer to Rosemary by her first name. No disrespect is intended.) The original complaint alleges two causes of action against defendant Patrick Leahy (Leahy) for elder abuse and financial elder abuse of Rosemary. Leahy is Rosemary’s spouse. (Id. at ¶ 3.) Leahy, who is self-represented, filed an answer to the original complaint on January 5, 2021, generally denying certain allegations and admitting others and asserting ten affirmative defenses. On January 23, 2023, the court granted the motion of Sellars for leave to file a first amended complaint (FAC). Sellars filed the FAC on the same date. The FAC added named plaintiffs Sellars as trustee of the trust and Rebecca Morin (Morin) who is Rosemary’s conservator, and named defendants the Law Office of Channe G. Coles, Channe Coles (Coles) (collectively, the Coles Defendants), Patricia Wollum (Wollum), Susan Reynolds (Reynolds), and Help Unlimited. The FAC alleges five causes of action: (1) elder abuse (against all defendants); (2) financial elder abuse (against all defendants); (3) legal malpractice (against the Coles Defendants); (4) intentional infliction of emotional distress (against all defendants); and (5) negligence (against all defendants). On April 19, 2023, Help Unlimited filed a verified answer to the FAC and a cross-complaint against cross-defendants Leahy and Honor Home Care Services California, Inc. (Honor), alleging causes of action for indemnity, contribution, and declaratory relief. SC-2411 (Revised July 1, 2013) MINUTE ORDER On April 20, 2023, the Coles Defendants filed a demurrer to the FAC together with a motion to strike portions of the FAC. On May 23, 2023, plaintiffs filed a request for dismissal without prejudice of all claims and causes of action alleged against Help Unlimited. On May 26, 2023, Help Unlimited filed a request for dismissal of its cross-complaint against Leahy and Honor, without prejudice. Also on May 26, 2023, plaintiffs filed an amendment to the FAC to substitute Honor for Help Unlimited wherever it appeared in the FAC. On June 22, 2023, Wollum and Reynolds filed a demurrer to the FAC together with a motion to strike portions of the FAC. On July 5, 2023, plaintiffs filed responses to the demurrer and motion to strike of the Coles Defendants and the demurrer and motion to strike of Wollum and Reynolds, asserting that plaintiffs have elected to amend the FAC and to amend a “Doe” amendment (which plaintiffs contend was filed as a second amended complaint), by filing a third amended complaint to address the issues raised by the Coles Defendants, Wollum, and Reynolds’ respective demurrers and motions to strike. On July 6, 2023, plaintiffs filed a motion for leave to file a third amended complaint which plaintiffs asserted was prepared in response to the demurrers and motions to strike discussed above. The motion was opposed by the Coles Defendants. On July 11, 2023, plaintiffs filed a request for dismissal of all causes of action against Honor, without prejudice. On July 12, 2023, Wollum and Reynolds filed a notice requesting that the court take their demurrer and motion to strike off-calendar. On July 19, 2023, the court continued the hearing on the pending demurrer to and motion to strike the FAC filed by the Coles Defendants to be heard together with plaintiffs’ motion for leave to file a third amended complaint. On July 26, 2023, plaintiffs filed an amended motion for leave to file a third amended complaint. On August 16, 2023, the court ordered the motion of plaintiffs for leave to file a third amended complaint off-calendar based on improper and untimely service of that motion. (See Aug. 16, 2023, Minute Order.) In addition, because plaintiffs attempted to file an amended complaint rather than a substantive opposition to the demurrer, the court sustained the demurrer of the Coles Defendants to the first amended complaint based on the court’s finding that plaintiffs had implicitly acknowledged that the Coles Defendants’ demurrer had merit. The court granted plaintiffs leave to amend and ordered plaintiffs to file and serve their second amended complaint no later than September 6, SC-2411 (Revised July 1, 2013) MINUTE ORDER 2023. (See Aug. 16, 2023, Minute Order.) The court further ordered the motion to strike of the Coles Defendants off-calendar. On September 7, 2023, plaintiffs filed a motion for leave to file a second amended complaint to add Honor as a “Doe” defendant. Also on September 7, 2023, plaintiffs filed a second amended complaint (SAC) adding Honor as a defendant and alleging six causes of action: (1) elder abuse (against all defendants); (2) financial elder abuse (against all defendants); (3) legal malpractice (against the Coles Defendants); (4) intentional infliction of emotional distress (against all defendants); and (5) negligence (against all defendants). On October 4, 2023, the court granted plaintiffs’ motion for leave to file the SAC. Plaintiffs filed identical versions of the SAC on September 7, 2023, and October 10, 2023. The allegations of the operative SAC are set forth in 147 factually detailed paragraphs. The allegations are presented in a narrative fashion which at times lacks chronological coherence. As alleged in the SAC: Before marrying Leahy in 1999, Rosemary executed a premarital agreement. (SAC, ¶ 29.) Rosemary repeatedly told Mark she did not want Leahy in charge of her assets. (SAC, ¶ 29.) In September 2000, Rosemary executed estate planning documents that purportedly prohibited Leahy from acting as a trustee or as Rosemary’s agent, and under which Sellars was named as her successor trustee. (SAC, ¶¶ 29, 30.) The trust has held most of Rosemary’s assets since it was established. (SAC, ¶ 12.) Rosemary began suffering from cognitive disabilities in 2017. (SAC, ¶ 1.) Rosemary’s primary physician of 15 years indicated that he believed Rosemary might be suffering from early Alzheimer’s disease. (SAC, ¶ 32.) As soon as Leahy learned of the diagnosis of Alzheimer’s disease by Rosemary’s primary care physician, Leahy started to abuse Rosemary, financially, emotionally, and otherwise. (SAC, ¶¶ 1, 32.) Among other things, Leahy isolated Rosemary from her family by interfering with and cutting off Rosemary’s ability to communicate with her family, spoiled or interfered with family visits, and removed Rosemary from the care of her primary physician. (SAC, ¶¶ 31, 32, 37, 38, 39.) Leahy also used Rosemary’s money for gambling, encouraged Rosemary to take out loans to pay for gambling losses, used Rosemary’s credit cards and other assets to pay for expenses for Leahy’s children, and had an ongoing affair with another woman, among other things. (See SAC, ¶ 40.) In 2017, Rosemary asked Sellars to move into her home. (SAC, ¶ 34.) After Sellars moved into Rosemary’s home, he discovered that she was not being treated for her cognitive difficulties and that there existed financial issues including that the money spent on gambling by Rosemary and Leahy was greater than the amount Rosemary had allocated towards gambling when she had capacity. (SAC, ¶¶ 35, 36.) Because Sellars believed Rosemary was being abused by Leahy, on December 5, 2018, Sellars filed a petition (the conservatorship petition) for the appointment of a conservator of Rosemary (the SC-2411 (Revised July 1, 2013) MINUTE ORDER conservatorship proceeding). (SAC, ¶¶ 1, 2.) In the conservatorship proceeding, Sellars requested that he be appointed Rosemary’s conservator. (SAC, ¶ 2.) Leahy hired Coles to prepare a verified objection to the conservatorship petition on behalf of Rosemary (the objection), which was filed on January 21, 2019. (SAC, ¶¶ 2, 40(g), 63 & Exh. D.) The objection was verified by Rosemary even though Rosemary did not participate in its preparation. (SAC, ¶ 65; see also Exh. D, verification page [signed by Rosemary as the “Objector”].) The objection included assertions that Rosemary was not suffering from Alzheimer’s disease or dementia, that Rosemary was receiving excellent medical care, that Rosemary voluntarily chosen not to see or speak to any of her children or grandchildren, that Rosemary’s finances were protected, and that Sellars was attempting to cause harm to Rosemary. (SAC, ¶ 64.) In connection with the conservatorship proceeding, Rosemary was examined by Dr. Rebecca Goodman. (SAC, ¶ 62.) Dr. Goodman concluded that Rosemary suffered from moderate dementia and lacked awareness about recent major family dynamics and her medical condition and confirmed the appropriateness of having a conservator appointed for Rosemary. (SAC, ¶ 62.) Once Dr. Goodman’s findings were filed with the court, Leahy and Coles withdrew the claim that a conservatorship was unnecessary and objected to Sellars being appointed as conservator despite Rosemary’s wishes as expressed under the documents Rosemary had executed in 2000. (SAC, ¶ 66.) Coles also prepared an affidavit which was signed by Rosemary purporting to revoke an advance health care directive and power of attorney that had been executed by Rosemary in September 2000 and under which Sellars and Morin were named as, respectively, Rosemary’s primary and alternate agents. (SAC, ¶ 67 & Exh. E.) In the conservatorship proceeding, professional fiduciary Jacquelyn Quinn (Quinn) was appointed as Rosemary’s conservator. (SAC, ¶ 68.) Quinn served as Rosemary’s conservator until January 23, 2020, when professional fiduciary Courtney DeSoto (DeSoto) was appointed as Quinn’s successor. (SAC, ¶ 69.) After Morin moved in to live with Rosemary, Morin was appointed as Rosemary’s conservator on February 10, 2022. (SAC, ¶ 70.) Morin subsequently investigated the purported abuse committed by Leahy and the relationship between Leahy and Coles. (SAC, ¶ 71.) Morin discovered email correspondence between Leahy and Coles on a computer at Rosemary’s house which confirmed that the objection had been prepared solely by Leahy and Coles and not by Rosemary. (SAC ¶ 74 & Exhs. F-K.) Based on the content and context of the email correspondence, and Rosemary’s mental difficulties, it was or should have been clear to Coles that Leahy was responding to the emails and not Rosemary and that Rosemary could not have provided the detailed information necessary to prepare the objection. (SAC, ¶¶ 75, 80, 81, 82.) The email correspondence confirmed facts supporting the family’s belief that Coles was working against Rosemary’s interests and that the objection had been prepared by Leahy and Coles and not by Rosemary. (SAC, ¶¶ 73-75.) In addition, during his deposition in this action, Leahy admitted that Rosemary could not have prepared the objection to the conservatorship proceeding because of her “memory”. (SAC, ¶ 79.) Leahy’s deposition testimony also confirms that the objection was drafted by Leahy and Coles. (SAC, ¶ 78.) SC-2411 (Revised July 1, 2013) MINUTE ORDER Coles met with Rosemary in person while she was suffering from the mental difficulties diagnosed by Dr. Goodman in the conservatorship proceeding. (SAC, ¶ 80.) Coles knew or should have known that Rosemary did not have the capacity or memory to formulate or provide the detailed information provided used by Coles to prepare the objection and knew or should have known that Leahy was providing the information that Coles included in the objection filed on Rosemary’s behalf. (SAC, ¶¶ 80, 81.) In the conservatorship proceeding, Coles sought approval for payment of legal fees (the Coles fee petition). (SAC, ¶ 83.) Sellars filed an opposition to the Coles fee petition (the fee petition opposition). (SAC, ¶ 83 & Exh. M.) In the fee petition opposition, Sellars claimed, among other things, that Rosemary lacked the capacity to contract with Coles, that Coles provided no benefit to Rosemary and failed to act in her best interests, and that it appeared that Coles was representing Leahy’s interests and not the interests of Rosemary. (SAC, ¶ 83 & Exh. M.) The court denied the Coles fee petition. (SAC, ¶ 84.) Although Sellars and other members of Rosemary’s family were upset about Coles’ conduct and believed that Coles was not representing Rosemary’s interests, there was no written or other concrete evidence to support such claims at that time. (SAC, ¶ 83, 89.) Evidence supporting the claims was uncovered after Morin became Rosemary’s conservator in February 2022 and after Leahy was deposed in this action March 2022. (SAC, ¶¶ 89, 90, 93.) In addition, Rosemary’s prior conservators had no interest in investigating a claim of malpractice against Coles. (SAC, ¶ 89.) Furthermore, Rosemary was under a disability when the actions and conduct described above and in the SAC were undertaken by Coles. (SAC, ¶¶ 91, 92.) The SAC also includes allegations relating to a restraining order entered on December 11, 2020, and the purported abuse of Rosemary by Reynolds and Wollum. (See SAC, ¶¶ 8, 18, 19, 42, 43, 45, 46, 47, 48, 50, 52, 53, 55-60 & Exh. A [Attachment 11].) These allegations are relevant to the present motion and will be discussed below. On October 6, 2023, the Coles Defendants filed a demurrer to the SAC on the grounds that each cause of action alleged in the SAC is barred by the statute of limitations under Code of Civil Procedure section 340.6. Also on October 6, 2023, the Coles Defendants filed a motion to strike the SAC, or portions thereof, on the grounds that the general allegations and all causes of action include irrelevant, false, and improper matter, and that allegations relating to plaintiffs’ claim for punitive damages are conclusory and improper. The demurrer and motion to strike were opposed by plaintiffs. On November 22, 2023, the Coles Defendants’ demurrer was overruled and the motion to strike was denied. On November 11, 2023, Wollum and Reynolds filed the present demurrer to the SAC on the grounds that the entire SAC and its first, second, fourth, and fifth causes of action fail to allege sufficient facts to constitute causes of action pursuant to Code of Civil Procedure section 430.10, subdivision (e). Also on November 11, 2023, Wollum and Reynolds filed the present motion to strike references to punitive damages and attorney fees in the SAC because plaintiff’s “prayers for relief in the form of punitive damages and attorneys’ fees are not drawn in conformity with the laws of this state or with Court rules and is otherwise irrelevant and improper." Plaintiffs oppose the demurrer and the motion to strike. SC-2411 (Revised July 1, 2013) MINUTE ORDER Analysis 1. Demurrer “When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading.” (Code Civ. Proc., § 430.30, subd. (a).) “Our consideration of the facts alleged includes ‘those evidentiary facts found in recitals of exhibits attached to [the] complaint.’ [Citation.]” (Alexander v. Exxon Mobil (2013) 219 Cal.App.4th 1236, 1250.) “[A] court must treat a demurrer as admitting all material facts properly pleaded, it does not, however, assume the truth of contentions, deductions or conclusions of law.” (Travelers Indem. Co. of Connecticut v. Navigators Specialty Ins. Co. (2021) 70 Cal.App.5th 341, 358, citing Aubry v. Tri- City Hospital Dist. (1992) 2 Cal.4th 962, 967.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) Allegations against Wollum and Reynolds It is undisputed that Wollum and Reynolds were employed by Honor and paid to provide caregiving services to Rosemary. Allegations in the SAC pertaining to Wollum and Reynolds include: On December 11, 2020, the court entered a temporary restraining order (TRO), a copy of which is attached as Exhibit A to the SAC. (SAC, ¶ 41 & Exh. A.) Relevant portions of the TRO include: (1) Leahy is not to upset Rosemary by talking with her about ongoing legal proceedings and, in response to any of her questions regarding such matters, should refer her to her lawyer for answers; (2) Leahy is not to speak with Rosemary in any manner which disparages her relatives; (3) Leahy shall not interfere with caregivers, including family members, who are authorized by the conservator to care for Rosemary; and (4) Any person may make an audio or video recording of any visit. (Ibid.) “The recordings authorized by the Court in the Elder Abuse Restraining Order Matter not only confirmed Mr. Leahy’s continued abuse of Rosemary but also revealed that caregiver defendants Wollum and Reynolds were not only negligent but engaged in conduct which caused Rosemary substantial emotional distress and themselves and abused Rosemary by, inter alia: (i) conspiring with Mr. Leahy to conceal his abuse and to cast Rosemary’s family members in a negative light; (ii) discussed the distressing legal matters with Mr., Leahy in front of Rosemary despite the fact that each of them were aware that such matters were not to be discussed in front of Rosemary; (iii) failed to report the ongoing abuse of Rosemary by Mr. Leahy which they witnessed; (iv) intentionally did not include information about Mr. Leahy’s abuse of Rosemary in the reports they filed with Rosemary’s Conservator; and (v) in an attempt to cast Rosemary’s family members in a false light, filed knowingly false reports with Rosemary’s Conservator, SC-2411 (Revised July 1, 2013) MINUTE ORDER accusing Rosemary’s family members of engaging in conduct which they did not engage in, which reports were refuted in their entirety by actual evidence.” (SAC, ¶ 43 & Exhs. B, C.) Leahy discussed legal proceedings with Wollum and Reynolds, in the presence of Rosemary, at length. (SAC, ¶ 45.) Leahy, in speaking with Wollum and Reynolds in front of Rosemary, disparages Rosemary’s family members, threatens Rosemary with being placed in a nursing home, and berates Rosemary regarding her memory. (Ibid.) Leahy receives advice from Wollum regarding defeating the claims against him and, in response to her concerns about potentially being implicated in this matter, Leahy assures Wollum that he will not disclose their conversations to anyone. (Ibid.) “The caregivers hired by Rosemary’s Conservator, Courtney DeSoto, including but not limited to defendants Patricia Wollum and Susan Reynolds, were made aware of the court proceedings concerning the abuse being committed by Mr. Leahy against Rosemary and knew that the legal proceedings involving Rosemary were not to be discussed in front of Rosemary at any time. Despite such knowledge, not only did caregiver defendants Patricia Wollum and Susan Reynolds discuss such proceedings in front of Rosemary, they encouraged Mr. Leahy to discuss such proceedings in front of Rosemary by asking him questions about such matters in front of Rosemary. Further, as shown in the attached transcripts, portions of which are set forth below, each of them negligently, recklessly, and intentionally colluded and/or conspired with Mr. Leahy to try to assist him with trying to defeat the elder abuse claims which had been made against him.” (SAC, ¶ 46 & Exhs. B, C.) “Not only did defendant caregivers Patricia Wollum and Susan Reynolds know that there was a Court Order in place specifically prohibiting Mr. Leahy from discussing legal proceedings in front of Rosemary and from disparaging Rosemary’s family members, as caregivers who were hired and paid to provide care for Rosemary, common sense dictates that they should not discuss such matters with or in front of Rosemary, as they knew such discussions were distressing and confusing to Rosemary. As shown in the attached transcripts, Mr. Leahy verbally abused Rosemary in front of them and they did nothing, not even alerting the Conservator or Rosemary’s court- appointed counsel of such abuse.” (SAC, ¶ 47 & Exhs. B, C.) “Defendant caregivers Patricia Wollum and Susan Reynolds were not just negligent; each of them recklessly and/or intentionally engaged in conduct which caused Rosemary significant emotional distress and which, in and of itself, constitutes elder abuse under California’s Elder Abuse Act (Welfare & Institutions Code § 15610, et seq.). Examples of such conduct are as follows: (i) they failed to report Mr. Leahy’s repeated verbal abuse of Rosemary; (ii) they asked Mr. Leahy about the court proceedings in front of Rosemary, knowing that such matters were not to be discussed in front of her; (iii) they failed to report that Mr. Leahy was disparaging Rosemary’s family members; (iv) they intentionally omitted such information from the reports that they made to Rosemary’s Conservator; (v) they advised Mr. Leahy as to what he should say and/or how he should act in such proceedings in order to attempt to assist Mr. Leahy from being held accountable for his abuse of Rosemary; and (vi) they filed reports with Rosemary’s Conservator containing false and disparaging information about Rosemary’s family.” (SAC, ¶ 48.) “Wollum falsified the information contained in reports submitted to the Conservator. For example, on December 29, 2020, Conservator Courtney DeSoto emailed Becky and Mark stating that she had received ‘information from the care agency that not all family members are adhering to the covid 19 protocols, specifically wearing a mask when visiting Rosemary.’ After receiving the email, SC-2411 (Revised July 1, 2013) MINUTE ORDER evidence was then provided to Conservator DeSoto that it was in fact the caregivers who were not wearing masks.” (SAC, ¶ 55.) “[D]efendant Wollum committed elder abuse against Rosemary by failing to report the abusive actions of Mr. Leahy, by colluding and conspiring with Mr. Leahy in an attempt to conceal his ongoing abuse of Rosemary, and even filed false reports with Conservator DeSoto in an attempt to cast Rosemary’s family members in a false light.” (SAC, ¶ 57.) Caregiver Susan Reynolds engaged in similar conduct. (SAC, ¶ 58 & Exh. C.) “The conduct identified in the foregoing paragraphs created circumstances or conditions likely to produce great distress to Rosemary and such Defendants willfully caused or permitted Rosemary to suffer or inflicted upon her unjustifiable pain and mental suffering.” (SAC, ¶ 105.) “The named Defendants willfully caused or permitted Rosemary, with knowledge that she was an elder and dependent adult, to suffer, or inflicted upon her unjustifiable distress and mental suffering.” (SAC, ¶ 106.) “As a direct and proximate result of Defendants’ malicious, oppressive, fraudulent and/or reckless conduct, as alleged herein, Rosemary suffered unjustifiable and substantial distress and mental suffering.” (SAC, ¶ 107.) Wollum and Reynolds committed financial elder abuse for all the reasons discussed above, including failure to report Leahy’s continued abuse of Rosemary, working with Leahy against Rosemary’s interests, and receiving compensation for such services. (SAC, ¶ 117.) Wollum and Reynolds intentionally engaged in the above-described conduct which caused severe emotional distress to Rosemary. (SAC, ¶ 135.) “Each Defendant’s conduct was outrageous. Each Defendant knew of Rosemary’s emotional, mental and physical frailty and that their conduct would cause her extreme emotional distress, yet each of them acted in complete disregard of such facts.” (SAC, ¶ 137.) “Caregivers Patricia Wollum and Susan Reynolds had the duty to care for and protect Rosemary. When they were recorded engaging in conduct which was detrimental to Rosemary and adverse to her interests, they were immediately terminated.” (SAC, ¶ 146.) Elder Abuse “The elements of a cause of action under the Elder Abuse and Dependent Adults Act, section 15600 et seq. . . . are statutory, and reflect the Legislature’s intent to provide enhanced remedies to encourage private, civil enforcement of laws against elder abuse and neglect.” (Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, 82.) “(a) ‘Abuse of an elder or a dependent adult’ means any of the following: “(1) Physical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering. “(2) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering. “(3) Financial abuse, as defined in Section 15610.30.” (Welf. & Inst. Code, § 15610.07, subd. (a); italics added.) SC-2411 (Revised July 1, 2013) MINUTE ORDER Wollum and Reynolds, as alleged in the SAC, are mandated reporters and had a duty to report Leahy’s allegedly abusive behavior towards Rosemary, pursuant to Welfare & Institutions Code section 15630. The purposes of the Elder Abuse and Dependent Adult Civil Protection Act include a requirement for “health practitioners, care custodians . . . to report known or suspected cases of abuse of elders and dependent adults . . . “ (Welf. & Inst. Code, § 15601, subd. (a).) The plain language of the regulations includes a duty of care that includes reporting of abuse. “[T]he Legislature intended to create solely an objective standard for determining when it is necessary to report suspected abuse.” (People v. Davis (2005) 126 Cal.App.4th 1416, 1427.) It is a question of fact, not properly decided by demurrer, whether Wollum and Reynolds violated the Elder Abuse and Dependent Adults Act by their failure to report Leahy’s alleged abuse of Rosemary, whether that failure caused injury to Rosemary, whether that injury resulted from an occurrence of the nature which the Elder Abuse and Dependent Adults Act was designed to prevent, and whether Rosemary was one of the class of persons for whose protection the Elder Abuse and Dependent Adults Act was adopted. Plaintiffs have alleged more than sufficient facts, in the SAC, to overcome demurrer. Wollum and Reynolds’ actions and inactions, as alleged in the complaint and contained in the attached transcripts, adequately set forth “other treatment” that could be considered elder abuse resulting in emotional distress. The demurrer to the first cause of action for elder abuse is overruled. Financial Elder Abuse “The substantive law of elder abuse provides that financial abuse of an elder occurs when any person or entity takes, secretes, appropriates, or retains real or personal property of an elder adult to a wrongful use or with an intent to defraud, or both.” (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 174.) “A person or entity shall be deemed to have taken, secreted, appropriated, obtained, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates, obtains, or retains the property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder or dependent adult.” (Welf. & Inst. Code, § 15610.30, subd. (b).) “Under California law, liability may be imposed for assisting in financial elder abuse under an aiding and abetting standard.” (Gray v. JPMorgan Chase Bank, N.A. - F.Supp.3d - 2023 WL 2471381.) The allegations contained in the SAC provide that Wollum and Reynolds “received compensation” for their caregiving services. There are no allegations that Wollum or Reynolds took, secreted, appropriated, or retained any of Rosemary’s personal money, or other property, to a wrongful use or with an intent to defraud, nor are there any allegations that Wollum or Reynolds knew anything about Leahy’s alleged financial abuse of Rosemary and colluded with him. SC-2411 (Revised July 1, 2013) MINUTE ORDER As pled, the allegations contained in the SAC are insufficient to state a cause of action for financial elder abuse. As such, the demurrer to the second cause of action for financial elder abuse will be sustained. While the court has doubts that plaintiffs will be able to amend the complaint to properly allege a cause of action for financial elder abuse, plaintiff will be given leave to amend. Intentional Infliction of Emotional Distress “The elements of a cause of action for IIED are as follows: (1) defendant engaged in extreme and outrageous conduct (conduct so extreme as to exceed all bounds of decency in a civilized community) with the intent to cause, or with reckless disregard to the probability of causing, emotional distress; and (2) as a result, plaintiff suffered extreme or severe emotional distress. [Citation.] Additionally, “ ‘ “[i]t must be conduct directed at the plaintiff, or occur in the presence of the plaintiff of whom the defendant is aware.’ ” [Citation.] ‘ “The requirement that the defendant’s conduct be directed primarily at the plaintiff is a factor which distinguishes intentional infliction of emotional distress from the negligent infliction of such injury.” ’ ” [Citations.] (So) [conduct must be directed to the plaintiff, but malicious or evil purpose is not required].)” (Berry v. Frazier (2023) 90 Cal.App.5th 1258, 1273.) Assuming the correctness of plaintiffs’ allegations, reasonable minds could certainly differ whether Wollum and Reynolds engaged in outrageous conduct with disregard to the probability of causing Rosemary emotional distress, or that the conduct was beyond the bounds of conduct to be tolerated in civilized society for caregivers to ignore a TRO, engage in improper conversations with Leahy, and fail to report alleged abuse by Leahy. The caregivers were hired to care for Rosemary and assist her with her needs. Reading the SAC as a whole, and its subparts in their context, plaintiffs have pled sufficient facts to state a cause of action for intentional infliction of emotional distress. The demurrer to the fourth cause of action for intentional infliction of emotional distress will be overruled. Negligence “To state a cause of action for negligence, a plaintiff must allege (1) the defendant owed the plaintiff a duty of care, (2) the defendant breached that duty, and (3) the breach proximately caused the plaintiff’s damages or injuries. [Citation.] Whether a duty of care exists is a question of law to be determined on a case-by-case basis. [Citation.]” (Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 62.) As caregivers, there can be no doubt that Wollum and Reynolds owed a duty to plaintiff. “(a) The failure of a person to exercise due care is presumed if: “(1) He violated a statute, ordinance, or regulation of a public entity; “(2) The violation proximately caused death or injury to person or property; “(3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and “(4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.” (Evid. SC-2411 (Revised July 1, 2013) MINUTE ORDER Code, § 669, subd. (a).) This section of the Evidence Code is commonly referred to as negligence per se. The SAC alleges, in addition to other breaches of duty, that Wollum and Reynolds violated the Elder Abuse and Dependent Adult Civil Protection Act. Even without that allegation, the other conduct described in the SAC would be sufficient to overcome demurrer as to the negligence cause of action. The demurrer to the fifth cause of action for negligence will be overruled. 2. Motion to Strike As noted above, Wollum and Reynolds seek to strike references to punitive damages and attorney’s fees in the SAC. “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc., § 436.) “Irrelevant matter” includes a “demand for judgment requesting relief not supported by the allegations of the complaint.” (Code Civ. Proc., § 431.10, subds. (b)(3), (c).) “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437, subd. (a).) “In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” (Civ. Code, § 3294, subd. (a).) As discussed above, reasonable minds could certainly conclude that Wollum and Reynolds acted with oppression, fraud, or malice by their actions and inactions. Punitive damages are potentially recoverable under both the elder abuse and intentional infliction of emotional distress causes of action. As the demurrer was overruled as to both of those causes of action, the motion to strike will be denied. DARREL E. PARKER, EXECUTIVE OFFICER Minutes Prepared by: Veronica Robles , Deputy SC-2411 (Revised July 1, 2013) MINUTE ORDER