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BORESS v. REYNOLDS

August 5, 2004.

HARRY BORESS, Plaintiff,
v.
S. SCOTT REYNOLDS, BERNARD BORESS and RUTH SOLOFF, Defendants.



The opinion of the court was delivered by: VAUGHN WALKER, District Judge

ORDER

Before the court is defendant's motion to dismiss and to impose sanctions. Doc # 10.

I

  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.

  ...


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