Demurrer and Motion to Strike
Case Number
Case Type Civil Law & Motion Hearing Date / Time Fri, 05/08/2026 - 10:00 Nature of Proceedings Demurrer and Motion to Strike Tentative Ruling For all reasons stated herein, the demurrer of defendants is sustained with leave to amend. Plaintiff Theresa
Colosi may file a first amended complaint on or before June 15, 2026. Defendants' motion to strike is denied as moot. Defendants' request for judicial notice is granted. On or before May 11, 2026, Defendants shall file and serve a notice of ruling on plaintiff, attaching this order, and file a proof of service with the court.
Background: On October 6, 2025, plaintiff Theresa Colosi (Colosi) initiated this action by filing a complaint against defendants Mindi Boulet, Office of the Public Defender, and Santa Barbara County (collectively, the County), setting forth one cause of action for ineffective assistance of counsel under the sixth amendment of the United States Constitution and article one, section 15 of the California Constitution.
As alleged in the complaint: The County's representation of Colosi during criminal proceedings, including People v. Theresa Colosi, Case No. 19CR12190 (the Proceedings), fell below an objective standard of reasonableness. (Compl., P. 16.) The County failed to challenge unlawful searches and seizures, resulting in the introduction of false or inadmissible evidence. (Compl., p. 6, ll. 8-11.) The OPD failed to file an appeal of one or more rulings which led to the introduction of inadmissible information. (Compl., p. 6, ll. 12-14.)
The County unreasonably failed to pursue an available remedy under Penal Code section 1001.36 pertaining to a pretrial diversion program. (Compl., p. 6, ll. 15-18.) The County failed to advise Colosi of her right to appeal a conviction. (Compl., p. 6, ll. 19-26.) These alleged failures affected the outcome of the Proceedings and led to loss of liberty or a conviction of Colosi that otherwise would not have occurred. (Compl., p. 6, ll. 13-16, 27-28.)
On March 13, 2026, the County filed a demurrer to the complaint on the grounds that the complaint failed to allege facts sufficient to state a cause of action against the County. The County also filed a motion to strike specific paragraphs and allegations in the complaint. Colosi did not file an opposition to the demurrer or to the motion to strike.
Analysis: "Because the function of a demurrer is to test the sufficiency of a pleading as a matter of law, we ... assume the truth of the allegations in the complaint, but do not assume the truth of contentions, deductions, or conclusions of law. [Citation.] It is error for the trial court to sustain a demurrer if the plaintiff has stated a cause of action under any possible legal theory, and it is an abuse of discretion for the court to sustain a demurrer without leave to amend if the plaintiff has shown there is a reasonable possibility a defect can be cured by amendment." (
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"The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded." (Payne v. National Collection Systems, Inc. (2001) 91 Cal.App.4th 1037, 1043.)
"[I]n ruling on a demurrer the trial court may take into account in addition to the complaint itself any matter that may be properly considered under the doctrine of judicial notice." (Cruz v. County of Los Angeles (1985) 173 Cal.App.3d 1131, 1133-1134.)
It appears the complaint seeks to allege a cause of action for professional negligence. "The failure to provide competent representation in a civil or criminal case may be the basis for civil liability under a theory of professional negligence. In a legal malpractice action arising from a civil proceeding, the elements are (1) the duty of the attorney to use such skill, prudence, and diligence as members of his or her profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; and (4) actual loss or damage resulting from the attorney's negligence. [Citations.] In a legal malpractice case arising out of a criminal proceeding, California, like most jurisdictions, also requires proof of actual innocence." (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199-1200 (Coscia).)
" 'The fact that nonnegligent counsel 'could have done better' may warrant postconviction relief, but it does not translate into civil damages, which are intended to make the plaintiff whole.' " [Citation.] 'Only an innocent person wrongly convicted due to inadequate representation has suffered a compensable injury because in that situation the nexus between the malpractice and palpable harm is sufficient to warrant a civil action, however inadequate, to redress the loss. [Citation.]' " (Coscia, supra, 25 Cal.4th at p. 1200.)
"[A]n individual convicted of a criminal offense must obtain reversal of his or her conviction, or other exoneration by postconviction relief, in order to establish actual innocence in a criminal malpractice action. As discussed, public policy considerations require that only an innocent person wrongly convicted be deemed to have suffered a legally compensable harm. Unless a person convicted of a criminal offense is successful in obtaining postconviction relief, the policies ... preclude recovery in a legal malpractice action." (Coscia, supra, 25 Cal.4th at p. 1201.)
Here, the complaint does not allege facts establishing Colosi's actual innocence in the Proceeding by reversal of her conviction, or other exoneration by postconviction relief. This is an essential element of a professional negligence cause of action under these circumstances. (Coscia, supra, 25 Cal.4th at pp. 1199-1201.) Thus, the complaint fails to state a claim for professional negligence against the County.
The court will sustain the demurrer with leave to amend. The court will grant Colosi leave to file a first amended complaint to address the deficiencies noted herein. To the extent Colosi seeks to allege a theory other than professional negligence, Colosi may also state that theory in a first amended complaint.
The court will grant the County's request for judicial notice of the court documents attached as Exhibits A though L pertaining to the Proceeding, Case No. 19CR12190, Theresa Colosi v. County of Santa Barbara and Montecito Bank & Trust, a petition for habeas corpus, Case No. 23CR07932, and the appeal proceedings in The People v. Theresa Colosi, Case No. B340639. (See Evid. Code, Sec. 452, subd. (d).)
The court will also grant County's request as to Colosi's government tort claim submitted to the County of Santa Barbara Clerk of the Board, attached to the request as Exhibit M. (See Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 368, fn. 1.)
The court notes that the complaint in this action incorporates and seeks judicial notice of some of the pleadings in the Proceeding, Case No. 19CR12190. (See Compl., p. 1, ll. 22-23.) To the extent granted, judicial notice of the documents described above extends to the existence of court records but does not extend to the truth of facts contained in the documents that are subject to dispute or to any hearsay or irrelevant matter. (See Johnson & Johnson v Superior Court (2011) 192 Cal.App.4th 757, 768.)
Tentative Ruling: Mark Davis vs EF Santa Barbara School et al Tentative Ruling: Mark Davis vs EF Santa Barbara School et al