Preview
ELECTRONICALLY FILED
Superior Court of California
County of Santa Barbara
Darrel E. Parker, Executive Officer
David J. Tappeiner (SBN 243979) 9/7/2023 6:06 PM
DT LAW PARTNERS, LLP By: Terri Chavez , Deputy
125 East Victoria, Suite I
Santa Barbara, California 93101
Telephone: (805) 456-8323
Facsimile: (805) 453-8055
Email: david@dtlawpartners.com
Attorneys for Plaintiffs, Mark Sellars, Individually and as Trustee of the Rosemary Free Trust
u/d/t dated September 13, 2000, and Rebecca Morin, Conservator of the Estate and Person of
Rosemary Free Leahy
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SANTA BARBARA
ANACAPA DIVSION
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MARK SELLARS, individually and as Case No. 20CV04132
11 Trustee of the Rosemary Free Trust u/d/t dated )
September 13, 2000; and REBECCA MORIN, ) [Assigned for all purposes to Hon. Thoma:
12 Conservator of the Estate and Person of P. Anderle]
Rosemary Free Leahy,
13 PLAINTIFFS’ NOTICE OF MOTION AND)
Plaintiffs, MOTION FOR LEAVE TO FILE SECOND
14 AMENDED COMPLAINT;
VS. MEMORANDUM OF POINTS AND
15 AUTHORITIES; DECLARATIONS OF
PATRICK LEAHY; CHANNE COLES, THE DAVID J. TAPPEINER AND MARK.
16 LAW OFFICE OF CHANNE G. COLES, a SELLARS IN SUPPORT
California corporation; PATRICIA
17 WOLLUM; SUSAN REYNOLDS; HONOR
HOME CARE SERVICES CALIFORNIA,
18 INC., a Delaware corporation doing business Date: October 4, 2023
in California; and DOES 1-10, inclusive, Time: 10:00 a.m.
19 Dept.: Three (3)
Defendants.
20 ORIGINAL ACTION FILED: 12/11/2020
21 NO TRIAL DATE SET
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23 TO THE COURT, DEFENDANTS, AND DEFENDANTS’ RESPECTIVE ATTORNEYS
24 OF RECORD:
25 PLEASE TAKE NOTICE that on October 4, 2023, at 10:00 a.m., or as soon thereafter as
26 the matter may be heard, in Department 3 of the Santa Barbara County Superior Court, located at
27 1100 Anacapa Street, Santa Barbara, CA 93101, Plaintiffs Mark Sellars, individually and as
28 Trustee of the Rosemary Free Trust u/d/t dated September 13, 2000, and Rebecca Morin,
PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR
LEAVE TO FILE SECOND AMENDED COMPLAINT
Conservator of the Estate and Person of Rosemary Free Leahy (“Plaintiffs”), will and hereby do
move this Court for an order granting Plaintiffs leave to file their Second Amended Complaint for
Elder Abuse; Financial Elder Abuse; Legal Malpractice; Breach of Fiduciary duty; Intentional
Infliction of Emotional Distress; and Negligence pursuant to this Notice of Motion and Motion for
Leave to File Second Amended Complaint (“Plaintiffs’ Motion for Leave”).
Plaintiffs’ proposed Second Amended Complaint for Elder Abuse; Financial Elder Abuse;
Legal Malpractice; Breach of Fiduciary duty; Intentional Infliction of Emotional Distress; and
Negligence (the “SAC”) has been prepared in response to the demurrers and motions to strike filed
by defendants Channe Coles and The Law Office of Channe G. Coles the “Coles’ Defendants”),
10 and by caregiver defendants Patricia Wollum and Susan Reynolds. As explained in footnote 1
11 below, the proposed SAC is also necessary to properly add defendant Honor Home Care Services
12 California, Inc. (“Honor”), as Plaintiffs just learned in May 2023 that Honor was the employer of
13 caregiver defendants Patricia Wollum and Susan Reynolds at the time said caregivers committed
14 the acts complained of in the SAC.
15 Accordingly, in order to add Honor as a defendant herein, and in order to address the issues
16 raised in the demurrers and motions to strike filed by the above-referenced defendants, Plaintiffs’
17 seek to amend the First Amended Complaint filed by Plaintiffs on January 23, 2023 (the “FAC”)
18 by the proposed SAC attached hereto as Exhibit “1” and incorporated herein by reference, which
19 complaint substantially modifies and supplements the FAC, seeks to add Honor as a “Doe”
20 defendant, and addresses the issues raised in the demurrers and motions to strike filed by the above-
21 referenced defendants.
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'For the sake of clarity, Plaintiffs filed their First Amended Complaint on January 23, 2023.
Thereafter, Plainiffs filed an “amendment” to the FAC, seeking to add Honor Homes Honor
26 Home Care Services California, Inc. (“Honor”), as a defendant in place of originally named
defendant Help Unlimited, Inc. That amendment was was invalid and, although accepted by the
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Court, Plainitffs dismissed Honor, without prejudice, and now seek to add Honor as a defendant
28 pursuant to this Motion for Leave. For the foregoing reasons, and based on the Court’s ruling at
the least hearing in this matter, the revised complaint submitted by Plainitffs in connection with
this Motion for Leave is referred to as Plaintiffs’ Second Amended Complaint.
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PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR
LEAVE TO FILE SECOND AMENDED COMPLAINT
In order to clearly show the revisions by the Plaintiffs’ proposed SAC, attached to the
Declaration of David J. Tappeiner filed herewith is the filed FAC (as Exhibit 1 thereto), the clean
version of the proposed SAC (attached as Exhibit 2 thereto — without exhibits), and a
“strikethrough” or “redline” version showing all chages between the FAC and the proposed SAC
(attached as Exhibit 3 thereto). While the above-referenced clean and strikethrough versions
clearly show all substantive changes, such changes are also generally summarized in Mr.
Tappeiner’s Declaration.
As set forth more fully in the Memorandum of Points and Authorities attached hereto,
Plaintiffs’ Motion for Leave should be granted as (i) the motion is timely; (ii) no undue prejudice
10 or hardship to any party will result from this amendment; and (iii) the ends of justice will be served.
11 Plaintiffs’ Motion for Leave is made pursuant to California Code of Civil Procedure
12 Section 473(a)(1) on the grounds that Plaintiffs’ Proposed SAC should be permitted in furtherance
13 of justice. Plaintiffs’ Motion is based on this Notice of Motion, the Memorandum of Points and
14 Authorities and Declarations of David J. Tappeiner and Mark Sellars filed in support, and all of
15 the files and records of this action, matters of which the Court may take judicial notice, the
16 Proposed SAC attached hereto, and such further argument and evidence as may be presented at or
17 before the hearing.
18 on PAR
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20 Dated: September 6, 2023
David J. T: i
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Attorneys for Plaintiffs
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PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR
LEAVE TO FILE SECOND AMENDED COMPLAINT
MEMORANDUM OF POINTS AND AUTHORITIES
L INTRODUCTION
This cases involves the abuse of Plaintiffs’ elderly mother, Rosemary Free Leahy
(“Rosemary”). Rosemary is age 92, is under Conservatorship, and suffers from severe cognitive
disabilities. As explained in detail in the Plaintiffs’ Proposed Second Amended Complaint, as
Rosemary’s faculties became compromised in or around year 2017, Rosemary’s husband, Partick
Leahy (“Mr. Leahy”) began to abuse Rosemary, financially, emotionally, and otherwise. As if
that was not bad enough, defendant attorney Channe Coles, who claimed to be, and was supposed
to be, representing Rosemary in connecton with the conservatorship proceeding that was initiad
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by her son, Mark Sellars (plaintiff herein), instead egregeiously represented the interests of Mr.
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Leahy, the very person who was abusing Rosemary. Equally egregious, defendants Patricia
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Wollum and Susan Reynolds, caregivers who were hired by Rosemary’s Conservator to provide
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care and protection to Rosemary, failed to report the continued abuse of Rosemary by Mr. Leahy
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that they witnessed, and engaged in actions to assist Mr. Leahy to conceal and avoid being held
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accountable for the egregious abusive actions againt Rosemary, his mentally compromised spouse.
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Each defendant named in Plaintiffs’ Proposed SAC committed egregious acts of abuse and
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negligence against Rosematy and each breached the fiduciary duties which they owed to
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Rosemary, all of which allowed the primary perpetrator of the abuse against Rosemary, i.e., her
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husband Patrick Leahy, to continue to abuse Rosemary. Newly added caregiver defendants
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Patricia Wollum and Susan Reynolds were employed by Honor Home Care Services California,
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Inc. (“Honor”) when they engaged in the heinous conduct described in Plaintiffs’ proposed SAC.
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However, as explained herein and in the Declaration of Mark Sellars filed herewith, Plaintiffs were
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originally told by the former professional Conservator that their employer was Help Unlimited,
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Inc. Since filing the FAC naming Help Unlimited as a defendant, Plaintiffs learned that Honor
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was in fact the employer of Patricia Wollum and Susan Reynolds at all relevant times.
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Based on such information, Plaintiffs dismissed Help Unlimited as a defendant, without
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prejudice. Plaintiffs then filed an amendment using simplified form SC-2000 on May 26, 2023,
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attempting to add Honor as a defendant, however, Plaintiffs then learned that Honor had and has
PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR
LEAVE TO FILE SECOND AMENDED COMPLAINT
no affiliation with Help Unmited. As such, Plaintiffs’ Second Amendment was ineffective to add
Honor as a defendant herein. Accordingly, Plaintffs dismissed Honor, without prejudice, and now
seek to add Honor as a defendant pursuant to this Motion for Leave.
The acts of each defendant named in the Proposed SAC are acts committed against a 92-
year old incapacitated woman. Said defendants must be held accountable for their conduct.
Therefore, in the furtherance of justice, Plaintiff seeks leave to file their Proposed SAC pursuant
to California Code of Civil Procedure § 473(a)(1).
IL STATEMENT OF FACTS AND RELEVANT PROCEDURAL HISTORY
This matter began with a Conservatorship that was established for Rosemary in related case
10 entitled Jn Re: Conservatorship of the Estate and Person of Rosemary Free Leahy, Santa Barbara
I Superior Court Case No. 18PR00576 (the “Conservatorship Proceeding”).
12 After a Conservator was appointed for Rosemary, as additional facts were uncovered
13 confirming Mr. Leahy’s abuse of Rosemary, financially, emotionally, and otherwise, Mark
14 individually and as current Trustee of his mother’s trust, the Rosemary Free Trust wd/t dated
15 September 13, 2000 (“Rosemary’s Trust”), filed his elder abuse complaint (the “Original
16 Complaint”) in this matter against Mr. Leahy, the sole named defendant at that time.
17 Prior to February 10, 2022, professional fiduciaries Jacquelyn Quinn and then Courtney
18 DeSoto served as Rosemary’s conservators. On February 10, 2022, Rosemary’s daughter and
19 Plaintiff herein, Rebecca Morin (“Becky”), was appointed as Rosemary’s Conservator and
20 continues to act in that capacity.
21 After Becky was appointed as her mother’s Conservator, and after Mark was able to take
22 Mr. Leahy’s Deposition in connection with the Original Complaint, and the occurrence of the other
23 events described in detail in the Proposed SAC, evidence was discovered supporting the claims
24 made by Plaintiffs against Channe Coles, the Law Office of Channe G. Coles, Patricia Wollum,
25 Susan Reynolds, and the employer of Patricia Wollum and Susan Reynolds. As such, on
26 November 9, 2022, Mark filed his Motion for Leave to File First Amended Complaint to amend
27 the Original Complaint: (i) to add Becky as a Plaintiff in her capacity as Rosemary’s Conservator;
28 and (ii) to name attorney Channe Coles, the Law Office of Channe G. Coles, Patricia Wollum,
PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR
LEAVE TO FILE SECOND AMENDED COMPLAINT
1 Susan Reynolds, and Help Unlimited, Inc., as additional defendants. The Court approved Mark’s
2 motion and the First Amended Complaint (the “FAC”) was filed on January 23, 2023. It was
3 important to add Becky as a Plaintiff as she has the authority to pursue the claims against attorney
4 Coles and her law office on her mother’s behalf for the malpractice, breach of fiduciary duty, and
5 other egregious actions undertaken by attorney Coles in the course of her alleged representation of
Rosemary in connection with the Conservatorship Proceeding.
On April 26, 2023, attorney Channe Coles and the Law Office of Channe G. Coles (the
“Coles’ Defendnats”) filed a Demurrer and Motion to Strike to the FAC. On June 20, 2023,
defendants Patricia Wollum and Susan Reynolds filed their own Demurrer and Motion to Strike.
10 The hearing on said demurrers and motions to strike referenced above was originally set for July
1 19, 2023.
12 In response to the demurrers and motions to strike, Plaintiffs filed a motion seeking leave
13 to file an amended Complaint. The demurrer and motion to strike filed by defendants Wollum and
4 Reynolds were then withdrawn. However, the Coles’ Defendants opposed Plaintffs’ motion to
15 amend the FAC.
16 Ultimately, the Court sustained the demurrer of the Coles’ Defendants, permitted Plaintiffs
17 to file their proposed Second Amended Complaint by September 6, 2023, and ordered Plaintiffs
18 to file a declaration regarding service on defendant Partick Leahy. Plaintiffs did file their Second
19 Amended Complaint on September 6, 2023 and served the same on counsel for the Coles’
20 Defendants only at that time. However, the clerk of the court njotified Plaintiffs’ counsel
21 that there was an issue with the electronic filing, so the entire set of pleadings is being refiled
22 today, September 7, 2023. The hearing is set for October 4, 2023, so all defendants will have
23 ample time to respond to Plaintiffs’ Motion for Leave.
24 Plaintiffs’ proposed SAC referenced is attached hereto in full with exhibits as EXHIBIT 1.
25 Assuming the Court grants the relief requested by Plaintiffs in this Motion for Leave, such that
26 leave is granted for Plaintiffs to file the Proposed SAC, all defendants responsible for the harm
27 and damages caused to Rosemary and her family will be before the Court in this action..
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PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR
LEAVE TO FILE SECOND AMENDED COMPLAINT
Ii. ARGUMENT
A CALIFORNIA LAW PROVIDES FOR THE LIBERAL AMENDMENT OF
PLEADINGS.
"The court may, in furtherance of justice, and on any terms as may be proper, allow a
party to amend any pleading[.]" Cal. Civ. Proc. Code§ 473(a)(1); see also Cal. Civ. Proc. Code
§576 ("Any judge, at any time before or after commencement of trial, in the furtherance of
justice, and upon such terms as may be proper, may allow the amendment of any pleading.").
"There is a strong policy in favor of liberal allowance of amendments." Mes/er v. Bragg Mgmt.
Co. (1985), 39 Cal. 3d 290, 296. If the granting of a timely motion for leave to amend "will not
10 prejudice the opposing party, it is error to refuse permission to amend, and where the refusal also
11 results in a party being deprived of the right to assert a meritorious cause of action[;] it is not
12 only error but an abuse of discretion." Morgan v. Super. Ct, 172 Cal. App. 2d (1959) 527,530
13 (finding that the trial court acted arbitrarily and abused its discretion when it denied a motion for
14 leave to file an amended complaint that was filed before a trial date had been set). "[I]t is a rare
15 case in which a court will be justified in refusing a party leave to amend his pleadings so that he
16 may properly present his case." Morgan, 172 Cal. App. 2d at 530 (citations omitted) (internal
17 quotation marks omitted).
18 B PLAINTIFFS’ MOTION FOR LEAVE SHOULD BE GRANTED BECAUSE
PLAINTIFFS” REQUEST FOR LEAVE TO AMEND IS TIMELY AND BECAUSE
19 DEFENDANTS WILL NOT BE PREJUDICED IF PLAINTIFFS’ MOTION FOR LEAVE IS
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GRANTED.
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No defendant named herein will suffer any prejudice whatsoever by granting the relief
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requested by Plaintiffs. As explained above, after considering the demurrers and motions to strike
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filed by the Coles’ Defendnats and Patricia Wollum, and Susan Reynolds, and after learning that
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Honor needed to be substituted in as a defendant for previously named Help Unlimited, Plaintiffs
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determined that the best course of action was to seek leave of this Court to file an amended
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complaint. A separate action could be filed against Honor and the cases could then be consolidated
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but Plaintiffs’ request to add Honor as a “Doe” defendant in this matter is proper, timely, and
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promotes judicial economy.
PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR
LEAVE TO FILE SECOND AMENDED COMPLAINT
Prejudice is the “touchstone” of the Court’s decision on whether to grant leave to amend.
Eminence Capital, LLC v. Aspeon, Inc. (9th Cir. 2003) 316 F.3d 1048, 1052. Prejudice however is
more than simply requiring a party to respond to a valid cause of action or defend against a stronger
case than before the amendment. Hirsa v. Sup. Ct. (1981) 118 Cal.App.3d 486, 490 (“It is difficult
to understand how ... a defendant can be prejudiced by amendment to add an additional theory of
liability against it.”); Gonzales v. Brennan (1965) 238 Cal.App.2d 69, 75 (“To be sure without the
amendment [plaintiff] might have won his lawsuit; with it, he was bound to lose, but as the cases
just cited demonstrate prejudice and detriment are not synonymous”); Zellerino v. Brown (1991)
235 Cal.App.3d 1097, 1109 (“prejudice is an unfair result, not an unfavorable one”).
10 There will be absolutely no prejudice to any defendants named herein if the Court grants
1 the relief requested by Plaintffs herein. This has essentially become a “new” case in that there are
12 four (4) defendants being added. No answers have been filed except by defendant Leahy as to the
13 Original Complaint filed. Furthermore, Honor was only recently identified as a proper defendant
4 and should be added as a “doe” defendant and pursuant to the “relation back” doctrine. CCP
15 Section 474. In addition, the filing of the SAC is intended to address the concerns and issues raied
16 by the demurrers and motions to strike filed by the Coles’ Defendants and defendnats Patricia
17 Wollum and Susan Reynolds. Each such defendant continues to have the right to file a demurrer
18 or motion to strike to Plaintiffs’ Proposed SAC, if any such defendant determines it is appropriate
19 to do so. Lastly, the case not at issue yet, no trial date has been set, and discovery as to the newly
20 added or defendants and those proposed to be added has not commenced.
21 For all of the reasons set forth above, no defendant will be prejudiced by granting the relief
22 requested by Plaintiffs in this Motion for Leave.
23 Cc PLAINTIFFS HAVE MET THE FUNDAMENTAL STANDARDS FOR LEAVE
24 TO AMEND.
25 The claims and causes of action plead in Plaintiffs’ Proposed SAC are the same as set
26 forth in Plaintffs’ FAC. Plaintiffs have provided additional facts and evidence to support their
27 claims and to address the issues raised in the demurrers and motions to strike filed by defendants
28 in response to Plaintiffs’ original motion for leave to amend the FAC.
PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR
LEAVE TO FILE SECOND AMENDED COMPLAINT
Moreover, allowing leave to Plaintiffs to file the Proposed SAC will serve the ends of
justice and judicial economy. More likely than not, if the Court had sustained the demurrers
filed by defendants, the Court would have given Plaintiffs leave to amend the FAC. Rather than
wait, Plaintiffs instead elected to seek leave of the Court to file the proposed SAC attached
hereto as Exhibit 1.
D AS EXPLAINED IN THE DECLARATION OF DAVID J. TAPPEINER FILED
IN SUPPORT HEREOF, ALTHOUGH THE SECOND AMENDED COMPLAINT
SUBSTANTIALLY MODIFIES AND SUPPLEMENTS THE FIRST AMENDED
COMPLAINT, NO NEW CAUSES OF ACTION ARE ADDED; RATHER ADDITIONAL
10 FACTS AND EXHIBITS WERE ADDED IN ORDER TO SUPPORT PLAINTIFFS’ CLAIMS
1 AND TO ADDRESS THE ISSUES RAISED BY DEFEDANTS’ DEMMURRERS.
12 As explained above, the SAC makes substantial changes to the FAC by including
13 significant additional factual information along with exhibits supporting the same. In order to
14 clearly show the revisions by Plaintiffs’ proposed SAC, attached to the Declaration of David J.
15 Tappeiner filed herewith is the filed FAC (as Exhibit 1 thereto), the clean version of the proposed
16 SAC (attached as Exhibit 2 thereto — without exhibits), and a “strikethrough" or “redline” version
17 showing all chages between the FAC and the proposed SAC (attached as Exhibit 3 thereto), While
18 the above-referenced clean and strikethrough versions clearly show all substantive changes, such
19 changes are also generally summarized in Mr. Tappeiner’s Declaration.
20 IV. CONCLUSION
21 In light of Plaintiffs’ good faith and timely conduct, the fact that the SAC will serve the
22 ends of justice and judicial economy and will not prejudice any defendant named therein,
23 Plaintiffs respectfully request the Court grant Plaintiffs’ Motion for Leave to file the proposed
24 SAC attached hereto as Exhibit 1.
25 Respect itted,
26 T LAW PAI LLP
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Dated: September 6, 2023
28 David J. Tappeiner
Attorneys for Plaintiffs
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PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR
LEAVE TO FILE SECOND AMENDED COMPLAINT
EXHIBIT 1
EXHIBIT 1
EXHIBIT 1
EXHIBIT 1
David J. Tappeiner (SBN 243979)
DT LAW PARTNERS, LLP
125 East Victoria, Suite I
Santa Barbara, California 93101
Telephone: (805) 456-8323
Facsimile: (805) 453-8055
Email: dav id @atlaw partners com
Attorneys for Plaintiffs, Mark Sellars, Individually and as Trustee of the Rosemary Free Trust
wd/t dated September 13, 2000, and Rebecca Morin, Conservator of the Estate and Person of
Rosemary Free Leahy
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SANTA BARBARA
ANACAPA DIVISION
10
MARK SELLARS, individually and as Case No. 20CV04132
IL Trustee of the Rosemary Free Trust u/d/t
dated September 13, 2000; and REBECCA [Assigned for all purposes to Hon.
12 MORIN, Conservator of the Estate and Thomas P. Anderle]
Person of Rosemary Free Leahy,
13 PLAINTIFFS’ SECOND AMENDED
Plaintiffs, COMPLAINT FOR:
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VS. 1. ELDER ABUSE;
15 2. FINANCIAL ELDER ABUSE;
PATRICK LEAHY; CHANNE COLES, 3. LEGAL MALPRACTICE;
16 THE LAW OFFICE OF CHANNE G. 4. BREACH OF FIDUCIARY DUTY;
COLES, a California corporation; 5. INTENTIONAL INFLICTION OF
17 PATRICIA WOLLUM; SUSAN EMOTIONAL DISTRESS: AND
REYNOLDS; HONOR HOME CARE 6. NEGLIGENCE
18 SERVICES CALIFORNIA, INC., a
Delaware corporation doing business in NO TRIAL DATE SET
19 California; and DOES 1-10, inclusive,
20 Defendants.
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Plaintiffs Mark Sellars, individually and as Trustee of the Rosemary Free Trust w/d/t dated
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September 13, 2000, and Rebecca Morin , Conservator of the Estate and Person of Rosemary Free
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Leahy, by and through their attorneys, DT LAW PARTNERS, LLP, submit this Second Amended!
Complaint for Elder Abuse; Financial Elder Abuse; Legal Malpractice; Intentional Infliction of
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Emotional Distress; Breach of Fiduciary Duty, and Negligence against the defendants identified
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PLAINTIFFS’ SECOND AMENDED COMPLAINT FOR ELDER ABUSE; FINANCIAL ELDER ABUSE; LEGAL MALPRACTICE;
BREACH OF FIDUCIARY DUTY; INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS: AND NEGLIGENCE
above and remaining Doe Defendants 1-10 (individually and collectively, “Defendants”), and in|
support thereof allege as follows:
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THIS SECOND AMENDED COMPLAINT IS NECESSARY IN ORDER TO ADD
HONOR HOME CARE SERVICES CALIFORNIA, INC., AS A “DOE” DEFENDANT
IN THESE PROCEEDINGS AND TO ADDRESS THE ISSUES RAISED IN THE
PENDING DEMURRER AND MOTION TO STRIKE FILED BY DEFENDANTS
CHANNE COLES AND THE LAW OFFICE OF CHANNE G. COLES
1 Rosemary Free Leahy (“Rosemary”) began suffering from cognitive disabilities in or
10 around 2017. As soon as Rosemary became compromised, her third-husband, Patrick Leahy (“Mr]
i Leahy”), started to abuse Rosemary, financially, emotionally, and otherwise. Because of the abuse
12 committed against Rosemary by Mr. Leahy, her son, Mark Sellars (“Mark”), filed to have
13 Rosemary conserved on December 5, 2018, which was ultimately granted. Rosemary is now 92}
14 years old. Unfortunately, her dementia is now so advanced that she has had to be moved from her
15 home to a memory care facility, something Rosemary wished would never happen.
16 2. As Mark had been designated by Rosemary to act as her Conservator, in his Petition for
17 Appointment of Probate Conservator for Rosemary in related case In Re: Conservatorship of the
18 Estate and Person of Rosemary Free Leahy, Santa Barbara Superior Court Case No. 18PR00576
19 (the “Conservatorship Proceeding”), Mark requested that he be appointed as Rosemary’
20 Conservator. As explained further below, as Mr. Leahy filed a meritless objection to Mark’s
21 request, a temporary conservatorship was established for Rosemary by Court order dated March
22 21, 2019 (filed on March 26, 2019, the same date Letters of Temporary Conservatorship were
23 issued), appointing professional fiduciary Jacquelyn Quinn as Rosemary’s temporary Conservator,
24 Ms. Quinn later became the general Conservator for Rosemary
25 3. On December 11, 2020, Mark individually and as current Trustee of his mother’s trust, the]
26 Rosemary Free Trust u/d/t dated September 13, 2000 (“Rosemary’s Trust”), filed his elder abuse
27 complaint (the “Original Complaint”) in this matter against Mr. Leahy, the sole named defendantl
28 at that time. 2
PLAINTIFFS' SECOND AMENDED COMPLAINT FOR ELDER ABUSE; FINANCIAL ELDER ABUSE; LEGAL MALPRACTICE;
BREACH OF FIDUCIARY DUTY; INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS: AND NEGLIGENCE
1 4. Prior to February 10, 2022, as explained further below, professional conservators
Jacquelyn Quinn and then Courtney DeSoto served as Rosemary’s conservators. On February 10]
2022, Rosemary’s daughter and Plaintiff herein, Rebecca Morin (“Becky”), was appointed as
Rosemary’s Conservator and continues to act in that capacity.
5. After Becky was appointed as her mother’s Conservator, and after Mark was able to take
Mr. Leahy’s Deposition in this case, and the occurrence of the other events described hereinafter.
evidence was discovered which supports the claims made herein against the recently added|
defendants, attorney Channe Coles, the Law Office of Channe G. Coles, and caregivers Patricial
Wollum (“Wollum”) and Susan Reynolds (“Reynolds”), each of whom were added as defendants
10 pursuant to Plaintiffs’ First Amended Complaint dated January 23, 2023 (the “FAC’), which was
IL approved by the Court pursuant to Mark’s Motion for Leave to File First Amended Complaint.!
12 6. When Mark filed his Motion for Leave to File First Amended Complaint, based on]
13 information that was provided to Becky and Mark, it was believed that a company known as Help
14 Unlimited, Inc., was the employer of defendant caregivers Reynolds and Wollum. As such, the
15 Court approved the request to add Help Unlimited, Inc., as an additional defendant.
16 7. On April 26, 2023, attorney Channe Coles and the Law Office of Channe G. Coles filed
17 a demurrer to the FAC and a motion to strike certain portions of the FAC.
18 8. After the FAC was filed, it was discovered that Honor Home Care Services California, Inc]
19 (“Honor”), was the employer of defendants Wollum and Reynolds rather than Help Unlimited.
20 Inc., as originally believed. Based on such discovery, on or about May 26, 2023, Plaintiffs filed]
21 an amendment to the FAC, seeking to substitute Honor as a defendant in place of Help Unlimited,
22 Inc., and to dismiss Help Unlimited, Inc., as a defendant, without prejudice.
23 9. The above-referenced amendment was approved and Honor was served with the summons
24 and complaint. Thereafter, after Honor was served, it was discovered that Honor has no affiliation]
25 with Help Unlimited, Inc. As such, the above-referenced amendment was ineffective to add Honor
26 as a defendant in this action. Accordingly, on July 11, 2023, Honor was dismissed as a defendant,
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28 "On January 23, 2023, the Court approved Mark’s Motion for Leave to File First Amended Complaint and such
First Amended Complaint (the “FAC”) was filed on the same date.
PLAINTIFFS’ SECOND AMENDED COMPLAINT FOR ELDER ABUSE; FINANCIAL ELDER ABUSE; LEGAL MALPRACTICE;
BREACH OF FIDUCIARY DUTY; INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS: AND NEGLIGENCE
without prejudice. However, under Plaintiffs’ Motion for Leave to File this Second Amended
Complaint, Plaintiffs seek to add Honor as a defendant.
10. On June 20, 2023, defendants Wollum and Reynolds filed a joint demurrer and motion to
strike, which have since been withdrawn.
11. The demurrer and motion to strike filed by attorney Channe Coles and the Law Office of
Channe G. Coles (the “Coles’ Defendants”) remain pending. At the hearing on August 16, 2023
this Court ordered Plaintiffs to file their revised motion for leave to file this Second Amended
Complaint.
I.
10 CURRENT PARTIES
IL 12. Mark is Rosemary’s biological son and the current Trustee of the Rosemary Free Trust
12 w/d/t dated September 13, 2000 (“Rosemary’s Trust”), which trust held most of Rosemary’s assets
13 since it was established
14 13. Becky is Rosemary’s biological daughter and the court-appointed Conservator of
15 Rosemary’s Estate and Person in the Conservatorship Proceeding.
16 14. Mr. Leahy is Rosemary’s spouse and, at all times mentioned herein, was an individual
17 residing in Santa Barbara County, California.
18 15. Defendant Channe Coles is a duly licensed attorney by the State Bar of California
19 practicing in Santa Barbara County, State Bar Number 261234.
20 16. Defendant The Law Office of Channe G. Coles is a California corporation doing
21 business in Santa Barbara at 19 East Mission Street, Suite B, Santa Barbara, CA 93101.
22 17. For the reasons stated above, defendant Help Unlimited, Inc., has been dismissed without
23 prejudice.
24 18. Defendant Wollum is or was employed by Honor and was paid to provide caregiving
25 services to Rosemary and, in connection with such services, engaged in wrongful acts at
26 Rosemary’s home in Santa Barbara County, which acts caused injury to Rosemary.
27 Mit
28
PLAINTIFFS’ SECOND AMENDED COMPLAINT FOR ELDER ABUSE; FINANCIAL ELDER ABUSE; LEGAL MALPRACTICE;
BREACH OF FIDUCIARY DUTY; INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS: AND NEGLIGENCE
19. Similarly, Defendant Reynolds is or was employed by Honor and was paid to provide
caregiving services to Rosemary and, in connection with such services, engaged in wrongful acts
at Rosemary’s home in Santa Barbara County, which acts caused injury to Rosemary.
20. For the reasons stated above, Plaintiffs are filing their Motion for Leave to file this
Second Amended Complain to add Honor as a defendant and to address issues raised by the Coles’
Defendants in their Demurrer and Motion to Strike. Honor is a Delaware corporation doing
business in California, with its principal place of business is at 201 3rd Street, Suite 1010, San]
Francisco, California 94103.
21. Remaining Does | through 10, inclusive, are individuals, corporations, partnerships, or
10 other entities whose identity and form are unknown to Plaintiffs, who therefore sue said
I individuals, corporations, partnerships or other entities under such fictitious names, pursuant to the
12 provisions of Section 474 of the California Code of Civil Procedure. Plaintiffs will amend this
13 Complaint to allege the true names and capacities of such individuals, corporations, partnerships
14 or other entities at such time as the same have been ascertained. Plaintiffs are informed and
15 believe, and based thereon allege, that each of the fictitiously named individuals, corporations,
16 partnerships or other entities is liable and responsible in some manner for the claims, demands.
17 losses, acts, and damages alleged herein.
18 22. Plaintiffs believe and allege that the tortious acts and omissions of Defendants and
19 the fictitiously named individuals, corporations, partnerships or other entities, and each of them,
20 were done in concert with each other and pursuant to a common design and agreement t
21 accomplish a particular result, and that Defendants and the fictitiously named individuals
22 corporations, partnerships or other entities, and each of them, enabled, aided and abetted each other
23 in accomplishing the acts and omissions alleged herein.
24 TIL.
25 VENUE AND JURISDICTION
26 23. This Court has jurisdiction over this action pursuant to the California Constitution,
27 Article VI, Section 10, which grants the superior court “original jurisdiction” in all other causes”
28 5
PLAINTIFFS’ SECOND AMENDED COMPLAINT FOR ELDER ABUSE; FINANCIAL ELDER ABUSE; LEGAL MALPRACTICE;
BREACH OF FIDUCIARY DUTY; INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS: AND NEGLIGENCE
except those given by statute to other courts. The statutes under which this action is brought do
not specify any other basis for jurisdiction.
24. This Court has jurisdiction over Defendants because, upon information and belief,
the individually named defendants are citizens of the United States and at all times relevant
hereto did reside in Santa Barbara County, California and/or each defendant has sufficient
minimum contacts in California or have otherwise intentionally availed themselves of the
California market so as to render the exercise of jurisdiction over such defendants by the
California courts consistent with traditional notions of fair play and substantial justice.
25. Venue is proper in this Court because all of the wrongs committed against
10 Rosemary occurred here in Santa Barbara County, the corporate defendants maintain offices,
ML have agents, and/or transact business in the State of California, in Santa Barbara County, and, at
12 all relevant times hereto, the individually named defendants resided here or have otherwise
13 consented to venue here. In addition, the Conservatorship Proceeding for Rosemary remains
14 pending here.
15 Iv.
16 ROSEMARY’S BACKGROUND, EVENTS LEADING TO INITIATION OF
17 CONSERVATORSHIP
———S—E—_
E E FOR ROSEMARY
R AND
NEELELDER
E ABUSE
ADLSE OF
UE ROSEMARY
RVUSEMARY
18 ENGAGED IN BY MR. LEAHY
19 26. Rosemary was a lifelong medical professional. She received her degree from Columbia
20 University, became the Director of Nurses at Santa Barbara Cottage Hospital, and eventually
21 served as the Nursing Administrator of the USC-LAC medical center.
22 27. Rosemary raised her children as a single-mother and worked hard to build a home for
23 them in Santa Barbara despite her commutes to Los Angeles for many years.
24 28. Through her hard work, Rosemary took care of her children, acquired assets and was
25 financially secure. Rosemary was always smart, tough, and opinionated and valued her family
26 over anything else.
27 Wi
28
PLAINTIFFS’ SECOND AMENDED COMPLAINT FOR ELDER ABUSE; FINANCIAL ELDER ABUSE; LEGAL MALPRACTICE:
BREACH OF FIDUCIARY DUTY; INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS: AND NEGLIGENCE.
1 29. Before marrying Mr. Leahy in 1999, Rosemary had a Premarital Agreement prepared and
executed in order to ensure that her assets were protected in the case of a divorce from Mr.
Leahy. While Rosemary owned substantial assets that time of marriage, including her home, Mr,
Leahy had virtually no assets. Rosemary repeatedly told Mark that she did not want Mr. Leahy
to be in charge of any of her finances. She also made this clear in her estate planning documents,
prohibiting Mr. Leahy from acting as her trustee or agent.
30. In addition to the Premarital Agreement, Rosemary executed estate planning documents
in September 2000, under which Mark was named as her successor Trustee, Executor, and
primary agent for health and financial decisions.
10 31. As explained above, as Mr. Leahy continued to abuse Rosemary, which included
11 isolating her from her family and cutting off all communications, Mark had no choice but to file
12 his petition to have Rosemary conserved.
13 32. As part of his scheme to keep Rosemary isolated, Mr. Leahy removed Rosemary from the|
14 care of her primary physician, Dr. Robert Byers, who had been Rosemary’s physician for at least
15 15 years. In 2017, Dr. Byers indicated that he believed that Rosemary might be suffering from
16 early Alzheimer’s Disease and ordered further testing. Future appointments were scheduled for
17 Rosemary in order to have her further evaluated. As soon as Mr. Leahy learned of Dr. Byers?
18 diagnosis and realized the uncovering of his abuse and financial wrongdoings were imminent, he
19 panicked and removed Rosemary from the care of Dr. Byers.
20 33. Although Rosemary was experiencing cognitive decline, she still had the ability to
21 understand that she needed assistance. She sought such assistance from her children and adult
22 grandchildren and did not seek assistance from Mr. Leahy because she knew he could not be
23 trusted.
24 34. Prior to the time Mark commenced the Conservatorship Proceeding, Rosemary asked
25 Mark to move into her home in 2017, to evaluate her situation and render assistance. It was clear|
26 to Mark at that time that his mother was beginning to have memory issues and needed help, so
27 Mark agreed.
28 WH
PLAINTIFFS’ SECOND AMENDED COMPLAINT FOR ELDER ABUSE; FINANCIAL ELDER ABUSE; LEGAL MALPRACTICE;
BREACH OF FIDUCIARY DUTY; INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS: AND NEGLIGENCE
1 35. After Mark moved into Rosemary’s home to assist her, he learned that her prescriptions
were cut off due to numerous missed doctor’s appointments. Rosemary could not drive and had)
been relying on Mr. Leahy to assist her with maintaining appointments and for transportation. As
part of his overall plan, Mr. Leahy ensured that Rosemary was not treated for her cognitive
difficulties and that her prescriptions went unfilled.
36. In addition to the foregoing, Mark discovered serious financial issues concerning
Rosemary, including but not limited to the fact that the amount of money that was being spent on|
gambling by Rosemary and Mr. Leahy (primarily using Rosemary’s money) was many times
greater than Rosemary allocated towards gambling when she had capacity.
10 37. Mr. Leahy exercised control over and unduly influenced Rosemary, his impaired wife, in
i ways that allowed him to socially and physically isolate her from her familiar network of protection!
12 ~ email, Skype, phone calls and regular visits with her family.
13 38. Mark, Becky, and other of Rosemary’s family attempted hundreds of contacts with
14 Rosemary that were unsuccessful due to Mr. Leahy’s continued isolation of Rosemary and his
15 attempts to unduly influence Rosemary to fear her family.
16 39. Examples of Mr. Leahy’s abuse of Rosemary before and after a conservator was
17 appointed for her include and are not limited to the following:
18 a. At the first supervised visit with Rosemary in March 2019, mediator Lol
19 Sorenson reported that Rosemary did not know she was not seeing her family and thereb’
20 confirmed Mr. Leahy’s isolation and abuse of Rosemary;
21 b For the first family unsupervised visit in April 2019, Mr. Leahy was told by
22 the temporary conservator not to be present but was present and disrupted the visit.
23 Cc. Mr. Leahy kept the only working landline phone behind a locked home
24 office door.
25 d Mr. Leahy continually interfered with Rosemary’s ability to communicate
26 with family members (e.g., phones unplugged from phone-jacks, tampering with her cell phone.)
27 e Mr. Leahy routinely unduly influenced Rosemary prior to visitations by
28 family to spoil visits. 8
PLAINTIFFS’ SECOND AMENDED COMPLAINT FOR ELDER ABUSE; FINANCIAL ELDER ABUSE; LEGAL MALPRACTICE;
BREACH OF FIDUCIARY DUTY; INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS: AND NEGLIGENCE
f. Mr. Leahy removed Rosemary from her home prior to scheduled visitations
(e.g., Easter 2019).
g Mr. Leahy attempted to remove Rosemary from her home prior to visitation
(the family caught him leaving as they arrived). The visit was unpleasant and cut short because off
Mr. Leahy (Thanksgiving 2019).
h. Throughout 2020, Mr. Leahy tampered with Rosemary’s communications
to prevent contact with family. This included using the pandemic to limit phone and in perso
communications and visits.
1 Mr. Leahy took Rosemary to the Chumash Casino at least 16 times since
10 the pandemic began, five of which times occurred after he was clearly admonished not to do so
IL by Courtney DeSoto, Rosemary’s Conservator at the time. During this same time period, Mr.
12 Leahy had a sign posted on Rosemary’s door that
Preview
ELECTRONICALLY FILED Superior Court of California County of Santa Barbara Darrel E. Parker, Executive Officer David J. Tappeiner (SBN 243979) 9/7/2023 6:06 PM DT LAW PARTNERS, LLP By: Terri Chavez , Deputy 125 East Victoria, Suite I Santa Barbara, California 93101 Telephone: (805) 456-8323 Facsimile: (805) 453-8055 Email: david@dtlawpartners.com Attorneys for Plaintiffs, Mark Sellars, Individually and as Trustee of the Rosemary Free Trust u/d/t dated September 13, 2000, and Rebecca Morin, Conservator of the Estate and Person of Rosemary Free Leahy SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA BARBARA ANACAPA DIVSION 10 MARK SELLARS, individually and as Case No. 20CV04132 11 Trustee of the Rosemary Free Trust u/d/t dated ) September 13, 2000; and REBECCA MORIN, ) [Assigned for all purposes to Hon. Thoma: 12 Conservator of the Estate and Person of P. Anderle] Rosemary Free Leahy, 13 PLAINTIFFS’ NOTICE OF MOTION AND) Plaintiffs, MOTION FOR LEAVE TO FILE SECOND 14 AMENDED COMPLAINT; VS. MEMORANDUM OF POINTS AND 15 AUTHORITIES; DECLARATIONS OF PATRICK LEAHY; CHANNE COLES, THE DAVID J. TAPPEINER AND MARK. 16 LAW OFFICE OF CHANNE G. COLES, a SELLARS IN SUPPORT California corporation; PATRICIA 17 WOLLUM; SUSAN REYNOLDS; HONOR HOME CARE SERVICES CALIFORNIA, 18 INC., a Delaware corporation doing business Date: October 4, 2023 in California; and DOES 1-10, inclusive, Time: 10:00 a.m. 19 Dept.: Three (3) Defendants. 20 ORIGINAL ACTION FILED: 12/11/2020 21 NO TRIAL DATE SET 22 23 TO THE COURT, DEFENDANTS, AND DEFENDANTS’ RESPECTIVE ATTORNEYS 24 OF RECORD: 25 PLEASE TAKE NOTICE that on October 4, 2023, at 10:00 a.m., or as soon thereafter as 26 the matter may be heard, in Department 3 of the Santa Barbara County Superior Court, located at 27 1100 Anacapa Street, Santa Barbara, CA 93101, Plaintiffs Mark Sellars, individually and as 28 Trustee of the Rosemary Free Trust u/d/t dated September 13, 2000, and Rebecca Morin, PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT Conservator of the Estate and Person of Rosemary Free Leahy (“Plaintiffs”), will and hereby do move this Court for an order granting Plaintiffs leave to file their Second Amended Complaint for Elder Abuse; Financial Elder Abuse; Legal Malpractice; Breach of Fiduciary duty; Intentional Infliction of Emotional Distress; and Negligence pursuant to this Notice of Motion and Motion for Leave to File Second Amended Complaint (“Plaintiffs’ Motion for Leave”). Plaintiffs’ proposed Second Amended Complaint for Elder Abuse; Financial Elder Abuse; Legal Malpractice; Breach of Fiduciary duty; Intentional Infliction of Emotional Distress; and Negligence (the “SAC”) has been prepared in response to the demurrers and motions to strike filed by defendants Channe Coles and The Law Office of Channe G. Coles the “Coles’ Defendants”), 10 and by caregiver defendants Patricia Wollum and Susan Reynolds. As explained in footnote 1 11 below, the proposed SAC is also necessary to properly add defendant Honor Home Care Services 12 California, Inc. (“Honor”), as Plaintiffs just learned in May 2023 that Honor was the employer of 13 caregiver defendants Patricia Wollum and Susan Reynolds at the time said caregivers committed 14 the acts complained of in the SAC. 15 Accordingly, in order to add Honor as a defendant herein, and in order to address the issues 16 raised in the demurrers and motions to strike filed by the above-referenced defendants, Plaintiffs’ 17 seek to amend the First Amended Complaint filed by Plaintiffs on January 23, 2023 (the “FAC”) 18 by the proposed SAC attached hereto as Exhibit “1” and incorporated herein by reference, which 19 complaint substantially modifies and supplements the FAC, seeks to add Honor as a “Doe” 20 defendant, and addresses the issues raised in the demurrers and motions to strike filed by the above- 21 referenced defendants. 22 Mi 23 24 25 'For the sake of clarity, Plaintiffs filed their First Amended Complaint on January 23, 2023. Thereafter, Plainiffs filed an “amendment” to the FAC, seeking to add Honor Homes Honor 26 Home Care Services California, Inc. (“Honor”), as a defendant in place of originally named defendant Help Unlimited, Inc. That amendment was was invalid and, although accepted by the 27 Court, Plainitffs dismissed Honor, without prejudice, and now seek to add Honor as a defendant 28 pursuant to this Motion for Leave. For the foregoing reasons, and based on the Court’s ruling at the least hearing in this matter, the revised complaint submitted by Plainitffs in connection with this Motion for Leave is referred to as Plaintiffs’ Second Amended Complaint. 2 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT In order to clearly show the revisions by the Plaintiffs’ proposed SAC, attached to the Declaration of David J. Tappeiner filed herewith is the filed FAC (as Exhibit 1 thereto), the clean version of the proposed SAC (attached as Exhibit 2 thereto — without exhibits), and a “strikethrough” or “redline” version showing all chages between the FAC and the proposed SAC (attached as Exhibit 3 thereto). While the above-referenced clean and strikethrough versions clearly show all substantive changes, such changes are also generally summarized in Mr. Tappeiner’s Declaration. As set forth more fully in the Memorandum of Points and Authorities attached hereto, Plaintiffs’ Motion for Leave should be granted as (i) the motion is timely; (ii) no undue prejudice 10 or hardship to any party will result from this amendment; and (iii) the ends of justice will be served. 11 Plaintiffs’ Motion for Leave is made pursuant to California Code of Civil Procedure 12 Section 473(a)(1) on the grounds that Plaintiffs’ Proposed SAC should be permitted in furtherance 13 of justice. Plaintiffs’ Motion is based on this Notice of Motion, the Memorandum of Points and 14 Authorities and Declarations of David J. Tappeiner and Mark Sellars filed in support, and all of 15 the files and records of this action, matters of which the Court may take judicial notice, the 16 Proposed SAC attached hereto, and such further argument and evidence as may be presented at or 17 before the hearing. 18 on PAR 19 20 Dated: September 6, 2023 David J. T: i 21 Attorneys for Plaintiffs 22 23 24 25 26 27 28 3 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT MEMORANDUM OF POINTS AND AUTHORITIES L INTRODUCTION This cases involves the abuse of Plaintiffs’ elderly mother, Rosemary Free Leahy (“Rosemary”). Rosemary is age 92, is under Conservatorship, and suffers from severe cognitive disabilities. As explained in detail in the Plaintiffs’ Proposed Second Amended Complaint, as Rosemary’s faculties became compromised in or around year 2017, Rosemary’s husband, Partick Leahy (“Mr. Leahy”) began to abuse Rosemary, financially, emotionally, and otherwise. As if that was not bad enough, defendant attorney Channe Coles, who claimed to be, and was supposed to be, representing Rosemary in connecton with the conservatorship proceeding that was initiad 10 by her son, Mark Sellars (plaintiff herein), instead egregeiously represented the interests of Mr. ll Leahy, the very person who was abusing Rosemary. Equally egregious, defendants Patricia 12 Wollum and Susan Reynolds, caregivers who were hired by Rosemary’s Conservator to provide 13 care and protection to Rosemary, failed to report the continued abuse of Rosemary by Mr. Leahy 14 that they witnessed, and engaged in actions to assist Mr. Leahy to conceal and avoid being held 15 accountable for the egregious abusive actions againt Rosemary, his mentally compromised spouse. 16 Each defendant named in Plaintiffs’ Proposed SAC committed egregious acts of abuse and 17 negligence against Rosematy and each breached the fiduciary duties which they owed to 18 Rosemary, all of which allowed the primary perpetrator of the abuse against Rosemary, i.e., her 19 husband Patrick Leahy, to continue to abuse Rosemary. Newly added caregiver defendants 20 Patricia Wollum and Susan Reynolds were employed by Honor Home Care Services California, 21 Inc. (“Honor”) when they engaged in the heinous conduct described in Plaintiffs’ proposed SAC. 22 However, as explained herein and in the Declaration of Mark Sellars filed herewith, Plaintiffs were 23 originally told by the former professional Conservator that their employer was Help Unlimited, 24 Inc. Since filing the FAC naming Help Unlimited as a defendant, Plaintiffs learned that Honor 25 was in fact the employer of Patricia Wollum and Susan Reynolds at all relevant times. 26 Based on such information, Plaintiffs dismissed Help Unlimited as a defendant, without 27 prejudice. Plaintiffs then filed an amendment using simplified form SC-2000 on May 26, 2023, 28 attempting to add Honor as a defendant, however, Plaintiffs then learned that Honor had and has PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT no affiliation with Help Unmited. As such, Plaintiffs’ Second Amendment was ineffective to add Honor as a defendant herein. Accordingly, Plaintffs dismissed Honor, without prejudice, and now seek to add Honor as a defendant pursuant to this Motion for Leave. The acts of each defendant named in the Proposed SAC are acts committed against a 92- year old incapacitated woman. Said defendants must be held accountable for their conduct. Therefore, in the furtherance of justice, Plaintiff seeks leave to file their Proposed SAC pursuant to California Code of Civil Procedure § 473(a)(1). IL STATEMENT OF FACTS AND RELEVANT PROCEDURAL HISTORY This matter began with a Conservatorship that was established for Rosemary in related case 10 entitled Jn Re: Conservatorship of the Estate and Person of Rosemary Free Leahy, Santa Barbara I Superior Court Case No. 18PR00576 (the “Conservatorship Proceeding”). 12 After a Conservator was appointed for Rosemary, as additional facts were uncovered 13 confirming Mr. Leahy’s abuse of Rosemary, financially, emotionally, and otherwise, Mark 14 individually and as current Trustee of his mother’s trust, the Rosemary Free Trust wd/t dated 15 September 13, 2000 (“Rosemary’s Trust”), filed his elder abuse complaint (the “Original 16 Complaint”) in this matter against Mr. Leahy, the sole named defendant at that time. 17 Prior to February 10, 2022, professional fiduciaries Jacquelyn Quinn and then Courtney 18 DeSoto served as Rosemary’s conservators. On February 10, 2022, Rosemary’s daughter and 19 Plaintiff herein, Rebecca Morin (“Becky”), was appointed as Rosemary’s Conservator and 20 continues to act in that capacity. 21 After Becky was appointed as her mother’s Conservator, and after Mark was able to take 22 Mr. Leahy’s Deposition in connection with the Original Complaint, and the occurrence of the other 23 events described in detail in the Proposed SAC, evidence was discovered supporting the claims 24 made by Plaintiffs against Channe Coles, the Law Office of Channe G. Coles, Patricia Wollum, 25 Susan Reynolds, and the employer of Patricia Wollum and Susan Reynolds. As such, on 26 November 9, 2022, Mark filed his Motion for Leave to File First Amended Complaint to amend 27 the Original Complaint: (i) to add Becky as a Plaintiff in her capacity as Rosemary’s Conservator; 28 and (ii) to name attorney Channe Coles, the Law Office of Channe G. Coles, Patricia Wollum, PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT 1 Susan Reynolds, and Help Unlimited, Inc., as additional defendants. The Court approved Mark’s 2 motion and the First Amended Complaint (the “FAC”) was filed on January 23, 2023. It was 3 important to add Becky as a Plaintiff as she has the authority to pursue the claims against attorney 4 Coles and her law office on her mother’s behalf for the malpractice, breach of fiduciary duty, and 5 other egregious actions undertaken by attorney Coles in the course of her alleged representation of Rosemary in connection with the Conservatorship Proceeding. On April 26, 2023, attorney Channe Coles and the Law Office of Channe G. Coles (the “Coles’ Defendnats”) filed a Demurrer and Motion to Strike to the FAC. On June 20, 2023, defendants Patricia Wollum and Susan Reynolds filed their own Demurrer and Motion to Strike. 10 The hearing on said demurrers and motions to strike referenced above was originally set for July 1 19, 2023. 12 In response to the demurrers and motions to strike, Plaintiffs filed a motion seeking leave 13 to file an amended Complaint. The demurrer and motion to strike filed by defendants Wollum and 4 Reynolds were then withdrawn. However, the Coles’ Defendants opposed Plaintffs’ motion to 15 amend the FAC. 16 Ultimately, the Court sustained the demurrer of the Coles’ Defendants, permitted Plaintiffs 17 to file their proposed Second Amended Complaint by September 6, 2023, and ordered Plaintiffs 18 to file a declaration regarding service on defendant Partick Leahy. Plaintiffs did file their Second 19 Amended Complaint on September 6, 2023 and served the same on counsel for the Coles’ 20 Defendants only at that time. However, the clerk of the court njotified Plaintiffs’ counsel 21 that there was an issue with the electronic filing, so the entire set of pleadings is being refiled 22 today, September 7, 2023. The hearing is set for October 4, 2023, so all defendants will have 23 ample time to respond to Plaintiffs’ Motion for Leave. 24 Plaintiffs’ proposed SAC referenced is attached hereto in full with exhibits as EXHIBIT 1. 25 Assuming the Court grants the relief requested by Plaintiffs in this Motion for Leave, such that 26 leave is granted for Plaintiffs to file the Proposed SAC, all defendants responsible for the harm 27 and damages caused to Rosemary and her family will be before the Court in this action.. 28 Mit 6 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT Ii. ARGUMENT A CALIFORNIA LAW PROVIDES FOR THE LIBERAL AMENDMENT OF PLEADINGS. "The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading[.]" Cal. Civ. Proc. Code§ 473(a)(1); see also Cal. Civ. Proc. Code §576 ("Any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading."). "There is a strong policy in favor of liberal allowance of amendments." Mes/er v. Bragg Mgmt. Co. (1985), 39 Cal. 3d 290, 296. If the granting of a timely motion for leave to amend "will not 10 prejudice the opposing party, it is error to refuse permission to amend, and where the refusal also 11 results in a party being deprived of the right to assert a meritorious cause of action[;] it is not 12 only error but an abuse of discretion." Morgan v. Super. Ct, 172 Cal. App. 2d (1959) 527,530 13 (finding that the trial court acted arbitrarily and abused its discretion when it denied a motion for 14 leave to file an amended complaint that was filed before a trial date had been set). "[I]t is a rare 15 case in which a court will be justified in refusing a party leave to amend his pleadings so that he 16 may properly present his case." Morgan, 172 Cal. App. 2d at 530 (citations omitted) (internal 17 quotation marks omitted). 18 B PLAINTIFFS’ MOTION FOR LEAVE SHOULD BE GRANTED BECAUSE PLAINTIFFS” REQUEST FOR LEAVE TO AMEND IS TIMELY AND BECAUSE 19 DEFENDANTS WILL NOT BE PREJUDICED IF PLAINTIFFS’ MOTION FOR LEAVE IS 20 GRANTED. 21 No defendant named herein will suffer any prejudice whatsoever by granting the relief 22 requested by Plaintiffs. As explained above, after considering the demurrers and motions to strike 23 filed by the Coles’ Defendnats and Patricia Wollum, and Susan Reynolds, and after learning that 24 Honor needed to be substituted in as a defendant for previously named Help Unlimited, Plaintiffs 25 determined that the best course of action was to seek leave of this Court to file an amended 26 complaint. A separate action could be filed against Honor and the cases could then be consolidated 27 but Plaintiffs’ request to add Honor as a “Doe” defendant in this matter is proper, timely, and 28 promotes judicial economy. PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT Prejudice is the “touchstone” of the Court’s decision on whether to grant leave to amend. Eminence Capital, LLC v. Aspeon, Inc. (9th Cir. 2003) 316 F.3d 1048, 1052. Prejudice however is more than simply requiring a party to respond to a valid cause of action or defend against a stronger case than before the amendment. Hirsa v. Sup. Ct. (1981) 118 Cal.App.3d 486, 490 (“It is difficult to understand how ... a defendant can be prejudiced by amendment to add an additional theory of liability against it.”); Gonzales v. Brennan (1965) 238 Cal.App.2d 69, 75 (“To be sure without the amendment [plaintiff] might have won his lawsuit; with it, he was bound to lose, but as the cases just cited demonstrate prejudice and detriment are not synonymous”); Zellerino v. Brown (1991) 235 Cal.App.3d 1097, 1109 (“prejudice is an unfair result, not an unfavorable one”). 10 There will be absolutely no prejudice to any defendants named herein if the Court grants 1 the relief requested by Plaintffs herein. This has essentially become a “new” case in that there are 12 four (4) defendants being added. No answers have been filed except by defendant Leahy as to the 13 Original Complaint filed. Furthermore, Honor was only recently identified as a proper defendant 4 and should be added as a “doe” defendant and pursuant to the “relation back” doctrine. CCP 15 Section 474. In addition, the filing of the SAC is intended to address the concerns and issues raied 16 by the demurrers and motions to strike filed by the Coles’ Defendants and defendnats Patricia 17 Wollum and Susan Reynolds. Each such defendant continues to have the right to file a demurrer 18 or motion to strike to Plaintiffs’ Proposed SAC, if any such defendant determines it is appropriate 19 to do so. Lastly, the case not at issue yet, no trial date has been set, and discovery as to the newly 20 added or defendants and those proposed to be added has not commenced. 21 For all of the reasons set forth above, no defendant will be prejudiced by granting the relief 22 requested by Plaintiffs in this Motion for Leave. 23 Cc PLAINTIFFS HAVE MET THE FUNDAMENTAL STANDARDS FOR LEAVE 24 TO AMEND. 25 The claims and causes of action plead in Plaintiffs’ Proposed SAC are the same as set 26 forth in Plaintffs’ FAC. Plaintiffs have provided additional facts and evidence to support their 27 claims and to address the issues raised in the demurrers and motions to strike filed by defendants 28 in response to Plaintiffs’ original motion for leave to amend the FAC. PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT Moreover, allowing leave to Plaintiffs to file the Proposed SAC will serve the ends of justice and judicial economy. More likely than not, if the Court had sustained the demurrers filed by defendants, the Court would have given Plaintiffs leave to amend the FAC. Rather than wait, Plaintiffs instead elected to seek leave of the Court to file the proposed SAC attached hereto as Exhibit 1. D AS EXPLAINED IN THE DECLARATION OF DAVID J. TAPPEINER FILED IN SUPPORT HEREOF, ALTHOUGH THE SECOND AMENDED COMPLAINT SUBSTANTIALLY MODIFIES AND SUPPLEMENTS THE FIRST AMENDED COMPLAINT, NO NEW CAUSES OF ACTION ARE ADDED; RATHER ADDITIONAL 10 FACTS AND EXHIBITS WERE ADDED IN ORDER TO SUPPORT PLAINTIFFS’ CLAIMS 1 AND TO ADDRESS THE ISSUES RAISED BY DEFEDANTS’ DEMMURRERS. 12 As explained above, the SAC makes substantial changes to the FAC by including 13 significant additional factual information along with exhibits supporting the same. In order to 14 clearly show the revisions by Plaintiffs’ proposed SAC, attached to the Declaration of David J. 15 Tappeiner filed herewith is the filed FAC (as Exhibit 1 thereto), the clean version of the proposed 16 SAC (attached as Exhibit 2 thereto — without exhibits), and a “strikethrough" or “redline” version 17 showing all chages between the FAC and the proposed SAC (attached as Exhibit 3 thereto), While 18 the above-referenced clean and strikethrough versions clearly show all substantive changes, such 19 changes are also generally summarized in Mr. Tappeiner’s Declaration. 20 IV. CONCLUSION 21 In light of Plaintiffs’ good faith and timely conduct, the fact that the SAC will serve the 22 ends of justice and judicial economy and will not prejudice any defendant named therein, 23 Plaintiffs respectfully request the Court grant Plaintiffs’ Motion for Leave to file the proposed 24 SAC attached hereto as Exhibit 1. 25 Respect itted, 26 T LAW PAI LLP 27 Dated: September 6, 2023 28 David J. Tappeiner Attorneys for Plaintiffs 9 PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT EXHIBIT 1 EXHIBIT 1 EXHIBIT 1 EXHIBIT 1 David J. Tappeiner (SBN 243979) DT LAW PARTNERS, LLP 125 East Victoria, Suite I Santa Barbara, California 93101 Telephone: (805) 456-8323 Facsimile: (805) 453-8055 Email: dav id @atlaw partners com Attorneys for Plaintiffs, Mark Sellars, Individually and as Trustee of the Rosemary Free Trust wd/t dated September 13, 2000, and Rebecca Morin, Conservator of the Estate and Person of Rosemary Free Leahy SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA BARBARA ANACAPA DIVISION 10 MARK SELLARS, individually and as Case No. 20CV04132 IL Trustee of the Rosemary Free Trust u/d/t dated September 13, 2000; and REBECCA [Assigned for all purposes to Hon. 12 MORIN, Conservator of the Estate and Thomas P. Anderle] Person of Rosemary Free Leahy, 13 PLAINTIFFS’ SECOND AMENDED Plaintiffs, COMPLAINT FOR: 14 VS. 1. ELDER ABUSE; 15 2. FINANCIAL ELDER ABUSE; PATRICK LEAHY; CHANNE COLES, 3. LEGAL MALPRACTICE; 16 THE LAW OFFICE OF CHANNE G. 4. BREACH OF FIDUCIARY DUTY; COLES, a California corporation; 5. INTENTIONAL INFLICTION OF 17 PATRICIA WOLLUM; SUSAN EMOTIONAL DISTRESS: AND REYNOLDS; HONOR HOME CARE 6. NEGLIGENCE 18 SERVICES CALIFORNIA, INC., a Delaware corporation doing business in NO TRIAL DATE SET 19 California; and DOES 1-10, inclusive, 20 Defendants. 21 22 23 Plaintiffs Mark Sellars, individually and as Trustee of the Rosemary Free Trust w/d/t dated 24 September 13, 2000, and Rebecca Morin , Conservator of the Estate and Person of Rosemary Free 25 26 Leahy, by and through their attorneys, DT LAW PARTNERS, LLP, submit this Second Amended! Complaint for Elder Abuse; Financial Elder Abuse; Legal Malpractice; Intentional Infliction of 27 Emotional Distress; Breach of Fiduciary Duty, and Negligence against the defendants identified 28 PLAINTIFFS’ SECOND AMENDED COMPLAINT FOR ELDER ABUSE; FINANCIAL ELDER ABUSE; LEGAL MALPRACTICE; BREACH OF FIDUCIARY DUTY; INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS: AND NEGLIGENCE above and remaining Doe Defendants 1-10 (individually and collectively, “Defendants”), and in| support thereof allege as follows: L THIS SECOND AMENDED COMPLAINT IS NECESSARY IN ORDER TO ADD HONOR HOME CARE SERVICES CALIFORNIA, INC., AS A “DOE” DEFENDANT IN THESE PROCEEDINGS AND TO ADDRESS THE ISSUES RAISED IN THE PENDING DEMURRER AND MOTION TO STRIKE FILED BY DEFENDANTS CHANNE COLES AND THE LAW OFFICE OF CHANNE G. COLES 1 Rosemary Free Leahy (“Rosemary”) began suffering from cognitive disabilities in or 10 around 2017. As soon as Rosemary became compromised, her third-husband, Patrick Leahy (“Mr] i Leahy”), started to abuse Rosemary, financially, emotionally, and otherwise. Because of the abuse 12 committed against Rosemary by Mr. Leahy, her son, Mark Sellars (“Mark”), filed to have 13 Rosemary conserved on December 5, 2018, which was ultimately granted. Rosemary is now 92} 14 years old. Unfortunately, her dementia is now so advanced that she has had to be moved from her 15 home to a memory care facility, something Rosemary wished would never happen. 16 2. As Mark had been designated by Rosemary to act as her Conservator, in his Petition for 17 Appointment of Probate Conservator for Rosemary in related case In Re: Conservatorship of the 18 Estate and Person of Rosemary Free Leahy, Santa Barbara Superior Court Case No. 18PR00576 19 (the “Conservatorship Proceeding”), Mark requested that he be appointed as Rosemary’ 20 Conservator. As explained further below, as Mr. Leahy filed a meritless objection to Mark’s 21 request, a temporary conservatorship was established for Rosemary by Court order dated March 22 21, 2019 (filed on March 26, 2019, the same date Letters of Temporary Conservatorship were 23 issued), appointing professional fiduciary Jacquelyn Quinn as Rosemary’s temporary Conservator, 24 Ms. Quinn later became the general Conservator for Rosemary 25 3. On December 11, 2020, Mark individually and as current Trustee of his mother’s trust, the] 26 Rosemary Free Trust u/d/t dated September 13, 2000 (“Rosemary’s Trust”), filed his elder abuse 27 complaint (the “Original Complaint”) in this matter against Mr. Leahy, the sole named defendantl 28 at that time. 2 PLAINTIFFS' SECOND AMENDED COMPLAINT FOR ELDER ABUSE; FINANCIAL ELDER ABUSE; LEGAL MALPRACTICE; BREACH OF FIDUCIARY DUTY; INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS: AND NEGLIGENCE 1 4. Prior to February 10, 2022, as explained further below, professional conservators Jacquelyn Quinn and then Courtney DeSoto served as Rosemary’s conservators. On February 10] 2022, Rosemary’s daughter and Plaintiff herein, Rebecca Morin (“Becky”), was appointed as Rosemary’s Conservator and continues to act in that capacity. 5. After Becky was appointed as her mother’s Conservator, and after Mark was able to take Mr. Leahy’s Deposition in this case, and the occurrence of the other events described hereinafter. evidence was discovered which supports the claims made herein against the recently added| defendants, attorney Channe Coles, the Law Office of Channe G. Coles, and caregivers Patricial Wollum (“Wollum”) and Susan Reynolds (“Reynolds”), each of whom were added as defendants 10 pursuant to Plaintiffs’ First Amended Complaint dated January 23, 2023 (the “FAC’), which was IL approved by the Court pursuant to Mark’s Motion for Leave to File First Amended Complaint.! 12 6. When Mark filed his Motion for Leave to File First Amended Complaint, based on] 13 information that was provided to Becky and Mark, it was believed that a company known as Help 14 Unlimited, Inc., was the employer of defendant caregivers Reynolds and Wollum. As such, the 15 Court approved the request to add Help Unlimited, Inc., as an additional defendant. 16 7. On April 26, 2023, attorney Channe Coles and the Law Office of Channe G. Coles filed 17 a demurrer to the FAC and a motion to strike certain portions of the FAC. 18 8. After the FAC was filed, it was discovered that Honor Home Care Services California, Inc] 19 (“Honor”), was the employer of defendants Wollum and Reynolds rather than Help Unlimited. 20 Inc., as originally believed. Based on such discovery, on or about May 26, 2023, Plaintiffs filed] 21 an amendment to the FAC, seeking to substitute Honor as a defendant in place of Help Unlimited, 22 Inc., and to dismiss Help Unlimited, Inc., as a defendant, without prejudice. 23 9. The above-referenced amendment was approved and Honor was served with the summons 24 and complaint. Thereafter, after Honor was served, it was discovered that Honor has no affiliation] 25 with Help Unlimited, Inc. As such, the above-referenced amendment was ineffective to add Honor 26 as a defendant in this action. Accordingly, on July 11, 2023, Honor was dismissed as a defendant, 27 28 "On January 23, 2023, the Court approved Mark’s Motion for Leave to File First Amended Complaint and such First Amended Complaint (the “FAC”) was filed on the same date. PLAINTIFFS’ SECOND AMENDED COMPLAINT FOR ELDER ABUSE; FINANCIAL ELDER ABUSE; LEGAL MALPRACTICE; BREACH OF FIDUCIARY DUTY; INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS: AND NEGLIGENCE without prejudice. However, under Plaintiffs’ Motion for Leave to File this Second Amended Complaint, Plaintiffs seek to add Honor as a defendant. 10. On June 20, 2023, defendants Wollum and Reynolds filed a joint demurrer and motion to strike, which have since been withdrawn. 11. The demurrer and motion to strike filed by attorney Channe Coles and the Law Office of Channe G. Coles (the “Coles’ Defendants”) remain pending. At the hearing on August 16, 2023 this Court ordered Plaintiffs to file their revised motion for leave to file this Second Amended Complaint. I. 10 CURRENT PARTIES IL 12. Mark is Rosemary’s biological son and the current Trustee of the Rosemary Free Trust 12 w/d/t dated September 13, 2000 (“Rosemary’s Trust”), which trust held most of Rosemary’s assets 13 since it was established 14 13. Becky is Rosemary’s biological daughter and the court-appointed Conservator of 15 Rosemary’s Estate and Person in the Conservatorship Proceeding. 16 14. Mr. Leahy is Rosemary’s spouse and, at all times mentioned herein, was an individual 17 residing in Santa Barbara County, California. 18 15. Defendant Channe Coles is a duly licensed attorney by the State Bar of California 19 practicing in Santa Barbara County, State Bar Number 261234. 20 16. Defendant The Law Office of Channe G. Coles is a California corporation doing 21 business in Santa Barbara at 19 East Mission Street, Suite B, Santa Barbara, CA 93101. 22 17. For the reasons stated above, defendant Help Unlimited, Inc., has been dismissed without 23 prejudice. 24 18. Defendant Wollum is or was employed by Honor and was paid to provide caregiving 25 services to Rosemary and, in connection with such services, engaged in wrongful acts at 26 Rosemary’s home in Santa Barbara County, which acts caused injury to Rosemary. 27 Mit 28 PLAINTIFFS’ SECOND AMENDED COMPLAINT FOR ELDER ABUSE; FINANCIAL ELDER ABUSE; LEGAL MALPRACTICE; BREACH OF FIDUCIARY DUTY; INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS: AND NEGLIGENCE 19. Similarly, Defendant Reynolds is or was employed by Honor and was paid to provide caregiving services to Rosemary and, in connection with such services, engaged in wrongful acts at Rosemary’s home in Santa Barbara County, which acts caused injury to Rosemary. 20. For the reasons stated above, Plaintiffs are filing their Motion for Leave to file this Second Amended Complain to add Honor as a defendant and to address issues raised by the Coles’ Defendants in their Demurrer and Motion to Strike. Honor is a Delaware corporation doing business in California, with its principal place of business is at 201 3rd Street, Suite 1010, San] Francisco, California 94103. 21. Remaining Does | through 10, inclusive, are individuals, corporations, partnerships, or 10 other entities whose identity and form are unknown to Plaintiffs, who therefore sue said I individuals, corporations, partnerships or other entities under such fictitious names, pursuant to the 12 provisions of Section 474 of the California Code of Civil Procedure. Plaintiffs will amend this 13 Complaint to allege the true names and capacities of such individuals, corporations, partnerships 14 or other entities at such time as the same have been ascertained. Plaintiffs are informed and 15 believe, and based thereon allege, that each of the fictitiously named individuals, corporations, 16 partnerships or other entities is liable and responsible in some manner for the claims, demands. 17 losses, acts, and damages alleged herein. 18 22. Plaintiffs believe and allege that the tortious acts and omissions of Defendants and 19 the fictitiously named individuals, corporations, partnerships or other entities, and each of them, 20 were done in concert with each other and pursuant to a common design and agreement t 21 accomplish a particular result, and that Defendants and the fictitiously named individuals 22 corporations, partnerships or other entities, and each of them, enabled, aided and abetted each other 23 in accomplishing the acts and omissions alleged herein. 24 TIL. 25 VENUE AND JURISDICTION 26 23. This Court has jurisdiction over this action pursuant to the California Constitution, 27 Article VI, Section 10, which grants the superior court “original jurisdiction” in all other causes” 28 5 PLAINTIFFS’ SECOND AMENDED COMPLAINT FOR ELDER ABUSE; FINANCIAL ELDER ABUSE; LEGAL MALPRACTICE; BREACH OF FIDUCIARY DUTY; INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS: AND NEGLIGENCE except those given by statute to other courts. The statutes under which this action is brought do not specify any other basis for jurisdiction. 24. This Court has jurisdiction over Defendants because, upon information and belief, the individually named defendants are citizens of the United States and at all times relevant hereto did reside in Santa Barbara County, California and/or each defendant has sufficient minimum contacts in California or have otherwise intentionally availed themselves of the California market so as to render the exercise of jurisdiction over such defendants by the California courts consistent with traditional notions of fair play and substantial justice. 25. Venue is proper in this Court because all of the wrongs committed against 10 Rosemary occurred here in Santa Barbara County, the corporate defendants maintain offices, ML have agents, and/or transact business in the State of California, in Santa Barbara County, and, at 12 all relevant times hereto, the individually named defendants resided here or have otherwise 13 consented to venue here. In addition, the Conservatorship Proceeding for Rosemary remains 14 pending here. 15 Iv. 16 ROSEMARY’S BACKGROUND, EVENTS LEADING TO INITIATION OF 17 CONSERVATORSHIP ———S—E—_ E E FOR ROSEMARY R AND NEELELDER E ABUSE ADLSE OF UE ROSEMARY RVUSEMARY 18 ENGAGED IN BY MR. LEAHY 19 26. Rosemary was a lifelong medical professional. She received her degree from Columbia 20 University, became the Director of Nurses at Santa Barbara Cottage Hospital, and eventually 21 served as the Nursing Administrator of the USC-LAC medical center. 22 27. Rosemary raised her children as a single-mother and worked hard to build a home for 23 them in Santa Barbara despite her commutes to Los Angeles for many years. 24 28. Through her hard work, Rosemary took care of her children, acquired assets and was 25 financially secure. Rosemary was always smart, tough, and opinionated and valued her family 26 over anything else. 27 Wi 28 PLAINTIFFS’ SECOND AMENDED COMPLAINT FOR ELDER ABUSE; FINANCIAL ELDER ABUSE; LEGAL MALPRACTICE: BREACH OF FIDUCIARY DUTY; INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS: AND NEGLIGENCE. 1 29. Before marrying Mr. Leahy in 1999, Rosemary had a Premarital Agreement prepared and executed in order to ensure that her assets were protected in the case of a divorce from Mr. Leahy. While Rosemary owned substantial assets that time of marriage, including her home, Mr, Leahy had virtually no assets. Rosemary repeatedly told Mark that she did not want Mr. Leahy to be in charge of any of her finances. She also made this clear in her estate planning documents, prohibiting Mr. Leahy from acting as her trustee or agent. 30. In addition to the Premarital Agreement, Rosemary executed estate planning documents in September 2000, under which Mark was named as her successor Trustee, Executor, and primary agent for health and financial decisions. 10 31. As explained above, as Mr. Leahy continued to abuse Rosemary, which included 11 isolating her from her family and cutting off all communications, Mark had no choice but to file 12 his petition to have Rosemary conserved. 13 32. As part of his scheme to keep Rosemary isolated, Mr. Leahy removed Rosemary from the| 14 care of her primary physician, Dr. Robert Byers, who had been Rosemary’s physician for at least 15 15 years. In 2017, Dr. Byers indicated that he believed that Rosemary might be suffering from 16 early Alzheimer’s Disease and ordered further testing. Future appointments were scheduled for 17 Rosemary in order to have her further evaluated. As soon as Mr. Leahy learned of Dr. Byers? 18 diagnosis and realized the uncovering of his abuse and financial wrongdoings were imminent, he 19 panicked and removed Rosemary from the care of Dr. Byers. 20 33. Although Rosemary was experiencing cognitive decline, she still had the ability to 21 understand that she needed assistance. She sought such assistance from her children and adult 22 grandchildren and did not seek assistance from Mr. Leahy because she knew he could not be 23 trusted. 24 34. Prior to the time Mark commenced the Conservatorship Proceeding, Rosemary asked 25 Mark to move into her home in 2017, to evaluate her situation and render assistance. It was clear| 26 to Mark at that time that his mother was beginning to have memory issues and needed help, so 27 Mark agreed. 28 WH PLAINTIFFS’ SECOND AMENDED COMPLAINT FOR ELDER ABUSE; FINANCIAL ELDER ABUSE; LEGAL MALPRACTICE; BREACH OF FIDUCIARY DUTY; INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS: AND NEGLIGENCE 1 35. After Mark moved into Rosemary’s home to assist her, he learned that her prescriptions were cut off due to numerous missed doctor’s appointments. Rosemary could not drive and had) been relying on Mr. Leahy to assist her with maintaining appointments and for transportation. As part of his overall plan, Mr. Leahy ensured that Rosemary was not treated for her cognitive difficulties and that her prescriptions went unfilled. 36. In addition to the foregoing, Mark discovered serious financial issues concerning Rosemary, including but not limited to the fact that the amount of money that was being spent on| gambling by Rosemary and Mr. Leahy (primarily using Rosemary’s money) was many times greater than Rosemary allocated towards gambling when she had capacity. 10 37. Mr. Leahy exercised control over and unduly influenced Rosemary, his impaired wife, in i ways that allowed him to socially and physically isolate her from her familiar network of protection! 12 ~ email, Skype, phone calls and regular visits with her family. 13 38. Mark, Becky, and other of Rosemary’s family attempted hundreds of contacts with 14 Rosemary that were unsuccessful due to Mr. Leahy’s continued isolation of Rosemary and his 15 attempts to unduly influence Rosemary to fear her family. 16 39. Examples of Mr. Leahy’s abuse of Rosemary before and after a conservator was 17 appointed for her include and are not limited to the following: 18 a. At the first supervised visit with Rosemary in March 2019, mediator Lol 19 Sorenson reported that Rosemary did not know she was not seeing her family and thereb’ 20 confirmed Mr. Leahy’s isolation and abuse of Rosemary; 21 b For the first family unsupervised visit in April 2019, Mr. Leahy was told by 22 the temporary conservator not to be present but was present and disrupted the visit. 23 Cc. Mr. Leahy kept the only working landline phone behind a locked home 24 office door. 25 d Mr. Leahy continually interfered with Rosemary’s ability to communicate 26 with family members (e.g., phones unplugged from phone-jacks, tampering with her cell phone.) 27 e Mr. Leahy routinely unduly influenced Rosemary prior to visitations by 28 family to spoil visits. 8 PLAINTIFFS’ SECOND AMENDED COMPLAINT FOR ELDER ABUSE; FINANCIAL ELDER ABUSE; LEGAL MALPRACTICE; BREACH OF FIDUCIARY DUTY; INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS: AND NEGLIGENCE f. Mr. Leahy removed Rosemary from her home prior to scheduled visitations (e.g., Easter 2019). g Mr. Leahy attempted to remove Rosemary from her home prior to visitation (the family caught him leaving as they arrived). The visit was unpleasant and cut short because off Mr. Leahy (Thanksgiving 2019). h. Throughout 2020, Mr. Leahy tampered with Rosemary’s communications to prevent contact with family. This included using the pandemic to limit phone and in perso communications and visits. 1 Mr. Leahy took Rosemary to the Chumash Casino at least 16 times since 10 the pandemic began, five of which times occurred after he was clearly admonished not to do so IL by Courtney DeSoto, Rosemary’s Conservator at the time. During this same time period, Mr. 12 Leahy had a sign posted on Rosemary’s door that