Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.


United States District Court, N.D. California

August 5, 2004.

HARRY BORESS, Plaintiff,

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 estate. Id.

  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 pursued. Id.

  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, Exh E).

  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 at 2-3.

  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 quotations omitted).

  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 prejudice.


  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.



© 1992-2004 VersusLaw Inc.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.