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.