United States District Court, N.D. California
August 5, 2004.
HARRY BORESS, Plaintiff,
S. SCOTT REYNOLDS, BERNARD BORESS and RUTH SOLOFF, Defendants.
The opinion of the court was delivered by: VAUGHN WALKER, District Judge
Before the court is defendant's motion to dismiss and to impose
sanctions. Doc # 10.
On October 11, 1998, plaintiff's brother Edward Boress died
intestate in Contra Costa County, California. Reynolds Decl (Doc
# 13) at ¶ 2. Edward's only heirs were his five surviving
siblings: Bernard Boress, Sidney Boress, Beatrice Weinberg, Ruth
Soloff and plaintiff Harry Boress. Id. Under California law,
Edward's estate was to be divided equally among his siblings. Id. Bernard Boress was made administrator of the
The administrator's first and final account and report to the
Contra Costa superior court showed the total value of Edward's
estate to be $460,173.19. Id at ¶ 3. It also revealed that Edward
had held $497,064.19 in a joint tenancy account with his sister
Ruth Soloff. The assets in this joint account did not pass
through the probate estate. Id.
Plaintiff Harry Boress filed an objection to the final report,
arguing that the administrator should have pursued the joint
tenancy assets. Id at ¶ 4. Plaintiff also argued that the
administrator improperly sold estate assets at less than market
value and spent too much money preparing a condominium for sale.
Id at ¶ 5. Finally, plaintiff objected to the amount of legal
fees requested by the administrator. Id.
In response, the administrator filed a declaration by his
attorney, Scott Reynolds, justifying the legal fees and
confirming the estimated value of the property sold. Id at ¶ 6.
The administrator also sought an instruction from the probate
court whether a claim against the joint tenancy account should be
On December 4, 2000, the probate court denied plaintiff's
motions. Estate of Edward Boress, No P98-01744 (Cal Sup Ct Dec
28, 2000) (Doc # 13, Exh B) at 8-9.
Plaintiff appealed, and the California court of appeal
affirmed. Boress v. Boress, A092576 (Mar 29, 2002) (Doc # 13,
Exh C). On April 29, 2002, the court of appeal denied plaintiff's
motion for a rehearing. Boress v. Boress, A092576 (Apr 29, 2002) (Doc # 13, Exh D). On June 12, 2002, the
California Supreme Court denied plaintiff's petition for review.
Boress v. Boress, S107026 (Cal Ct App. June 13, 2002) (Doc # 13,
Plaintiff then filed a new action in Contra Costa superior
court, making basically the same allegations and naming the
presiding magistrate from the previous case as an additional
defendant. Compl, Boress v. Superior Court, C02-2127 (Cal Sup Ct
June 25, 2002) (Doc # 13, Exh F). Because plaintiff's action
alleged "the identical issues which were decided in the earlier
proceeding," plaintiff was classified as a vexatious litigant
under California Code of Civil Procedure § 391 et seq. Boress v.
Superior Court, C02-2127 (Cal Sup Ct Jan 7, 2003) (Doc # 13, Exh
G) at 2. Plaintiff's action was stayed until such time as he
posted a $10,000 bond with the court, and plaintiff was
prohibited from filing any new lawsuits in California related to
the same claims without first obtaining leave to do so from the
presiding judge of the court in which the suit would be filed. Id
Defendants contend that plaintiff has filed four subsequent
pleadings in Contra Costa superior court without first obtaining
leave to do so. Def Mem (Doc # 11) at 10. Plaintiff justifies
this behavior on grounds that "when an order is based on absolute
prejudice(s) it is not enforceable, but is merely the prejudices
of the judge." Pl Reply (Doc # 17) at 3.
On June 23, 2003, plaintiff brought suit in this court against
Scott Reynolds, Bernard Boress and Ruth Soloff alleging causes of action for violation of the RICO Act and abuse of
process. Pl Mot (Doc # 1) at 1.
Under FRCP 12(b)(6), dismissal is proper if the complaint
fails "to state a claim upon which relief can be granted." The
court must accept the factual allegations as true and construe
them in the light most favorable to the plaintiff. Broam v.
Bogan, 320 F.3d 1023, 1028 (9th Cir 2003). Although a plaintiff
is not held to a "heightened pleading standard," the plaintiff
must provide more than mere "conclusory allegations."
Swierkiewicz v. Sorema NA, 534 U.S. 506, 515 (2002) (rejecting
heightened pleading standards); Schmier v. United States Court of
Appeals for the Ninth Circuit, 279 F.3d 817, 820 (9th Cir 2002)
(rejecting conclusory allegations). A motion to dismiss must be
denied "unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle
him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
"Generally, a district court may not consider any material
beyond the pleadings in ruling on a Rule 12(b)(6) motion." Hal
Roach Studios, Inc v. Richard Feiner & Co, 896 F.2d 1542, 1555 n19
(9th Cir 1990). The court may consider "documents whose contents
are alleged in a complaint and whose authenticity no party
questions, but which are not physically attached to the
pleading," whether such documents are provided by a plaintiff or
a defendant. See Lapidus v. Hecht, 232 F.3d 679, 682 (9th Cir 2000) (internal quotation omitted).
"[A] district court should grant leave to amend even if no
request to amend the pleading was made, unless it determines that
the pleading could not possibly be cured by the allegation of
other facts." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir 2000).
The district court has broad discretion, however, to deny leave
to amend after the first amendment of the complaint. See Wagh v.
Metris Direct, Inc, 348 F.3d 1102, 1111 (9th Cir 2003).
The doctrine of collateral estoppel holds that a "right,
question or fact distinctly put in issue and directly determined
by a court of competent jurisdiction * * * cannot be disputed in
a subsequent suit between the same parties or their privies."
Montana v. United States, 440 U.S. 147, 153 (1979) (internal
Plaintiff lost his motions in the original probate proceeding,
including his motion to compel the executor to pursue the joint
tenancy assets. The court found that plaintiff raised no triable
issues of fact that would justify an action against the joint
tenancy assets. The appellate court affirmed, and the California
Supreme Court declined to review the case. All of the objections
plaintiff raised in the probate proceeding have been finally
decided against him by courts of competent jurisdiction.
Therefore, under the doctrine of collateral estoppel, plaintiff
may not reassert the same claims here. Because he cannot assert the facts underlying the claims he has
previously lost, plaintiff's RICO claim collapses. To violate the
RICO Act, a defendant must "1) conduct 2)  an enterprise 3)
through a pattern 4) of racketeering activity." Fireman's Fund
Ins Co v. Stites, 258 F.3d 1016, 1021 (9th Cir 2001); see also
18 U.S.C. § 1962. Plaintiff's only RICO allegations are that defendants
improperly failed to pursue the joint tenancy assets, sold estate
assets at an improperly low price and charged excessive
attorney's fees. Because these are all claims brought in prior
lawsuits, plaintiff is barred from pursuing them here.
Accordingly, because plaintiff fails to state a claim upon
which relief can be granted, the court GRANTS defendants' motion
to dismiss the RICO claim under FRCP 12(b)(6). Moreover, because
plaintiff's complaint could not be cured by the allegation of
other facts, it is DISMISSED with prejudice.
Plaintiff also alleges a cause of action for abuse of process
based on defendants' successful motion to declare him a vexatious
plaintiff in state court. The tort of abuse of process involves
"[f]irst, an ulterior purpose, and second, a wilful act in the
use of the process not proper in the regular conduct of the
proceeding." Templeton Feed and Grain v. Ralston Purina Co,
72 Cal.Rptr. 344, 347 (1968). A vexatious plaintiff is one who
"[a]fter a litigation has been finally determined against the
person, repeatedly relitigates or attempts to relitigate." Cal
CCP § 391(b)(2). Plaintiff cannot prevail on this cause of action because filing
a motion to declare an opposing party a vexatious litigant is a
proper use of section 391(b)(2). Defendants used process for the
purpose for which it was established, that is, to prevent
successive relitigation. Moreover, defendants prevailed on this
motion. Plaintiff has thus not alleged a "wilful act in the use
of process not proper in the regular conduct of the proceeding."
Templeton, 72 Cal Rptr at 347.
Accordingly, plaintiff fails to state a claim of abuse of
process for which relief can be granted. Because plaintiff's
complaint could not be cured by the allegation of other facts,
his cause of action for abuse of process is DISMISSED with
Defendants move the court to sanction plaintiff under
28 U.S.C. § 1927. Def Mem (Doc # 11) at 17. "Any * * * person * * * who so
multiplies the proceedings in any case unreasonably and
vexatiously may be required by the court to satisfy personally
the excess costs, expenses, and attorneys' fees reasonably
incurred because of such conduct." 28 U.S.C. § 1927. "Section 1927
sanctions require a bad faith showing." West Coast Theater Corp
v. City of Portland, 897 F.2d 1519, 1526 (9th Cir 1990). Repeated
filing of materially identical complaints despite an adverse
judgment is evidence of bad faith. Wages v. Internal Revenue
Service, 915 F.2d 1230, 1235 (9th Cir 1990). Pro se plaintiffs
may be sanctioned under section 1927. Id at 1235-36. Plaintiff has multiplied proceedings unreasonably and
vexatiously. After his objections were overruled by the probate
court and his appeal was denied, he filed essentially duplicate
claims in state court. He was declared a vexatious plaintiff as a
result and enjoined from filing any further claims in California
without first obtaining leave from the court to do so.
Nevertheless, he filed essentially the same claims in this court.
Plaintiff's claims are without merit and barred by collateral
estoppel. The court finds that plaintiff's conduct demonstrates
bad faith and violates 28 U.S.C. § 1927.
Accordingly, defendants' motion for sanctions is GRANTED.
For the foregoing reasons, defendants' motion to dismiss is
GRANTED and plaintiff's claims are DISMISSED with prejudice.
Defendants' motion for sanctions under 28 U.S.C. § 1927 is GRANTED.
Defendants may file their request for costs and attorneys' fees
with the court no later than August 26, 2004. Plaintiff may file
a response to defendants' request, if any, no later than
September 9, 2004. The parties are directed to the court's recent
decision in Albion Pacific Property Resources, LLC v. Seligman, C03-3427 (ND Cal July 1, 2004) for guidance on
the request for costs and attorney fees.
IT IS SO ORDERED.
© 1992-2004 VersusLaw Inc.