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FILED
SAN MATEO
CO
UNTY
NOV 1 5 2012
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Attorneys for Conservator, Laurie R. Sells
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th Supenor Court
DEPUTY CLERK
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ESTHER R. BOYES,
Conservatee.
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CJBNS.ORG
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ENDORSED FILED
SAN MATEO COUNTY
NOV - 9 2012
DEPUTY CLERK
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Esther R. Boyes,
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Conservatee,
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The evidentiary hearing on the Motion by Petitioner Laurie R. Sells, Conservator of the
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person and estate of Esther R. Boyes, for Order Requiring Michele Fotinos to 1) Seek Court
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Authorization Before Filing Any Documents, and 2) Furnish Security came regularly on for
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hearing at 10:3 0 A.M.on November 9, 2012 before Department 20 of the San Mateo Superior
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Order Granting in Part Motion Requiring Michele Fontinos to Seek Court Authorization and Furnish.Security Before Filing
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Melissa R. Karlsten, Esq. of Aaron, Riechert, Carpel & Riffle, APC appeared on behalf
of Petitioner, Laurie R. Sells, conservator of the person and estate of Esther R. Boyes.
Michele
The court records show that the moving papers were filed on September 27, 2012 along
with a proof of service showing that the moving papers were mailed to Michele Fontinos at her
address of record on September 27, 2012. As of November 9, 2012, no opposition to the motion
was filed by Michele Fontinos. An evidentiary hearing was held and the parties were given an
opportunity to submit evidence and provide oral argument, after which, the matter was submitted
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person who, "in any litigation while acting in propria persona, repeatedly files unmeritorious
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motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics
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California Code of Civil Procedure section 391(b)(2) defines "litigation" as any civil
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action or proceeding, commenced, maintained, or pending in any state or federal court." Because
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this conservatorship proceed is currently pending before this court, 39l(b)(3) applies.
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Esq. and Seth D. Watkins, Esq. filed a petition for appointment of herself as conservator of the
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person and estate of Esther R. Boyes, and that Seth D. Watkins, Esq. was present in court on
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behalf of Ms. Fontinos on October 17, 2011 when Ms. Fontinos' petition was denied and Laurie
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Sells, an independent fiduciary, was appointed as conservator of the person and estate of Esther
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R. Boyes.
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The evidence before this court and the records of this court, judicial notice of which this
court takes on its own motion, establishes:
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Order Granting in Part Motion Requiring Michele Fontinos to Seek Court Authorization and Furnish Security Before Filing - 2
a) That on February
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opposition containing objections to a petition by Conservator Laurie Sells for authority to sell
property and to remove David Boyes from title. On February 15, 2012, Michele Fontinos was
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present in court, acting in propria persona. She provided oral argument to supplement her written
objections and this court overruled her objections and the petition by Laure Sells granted.
b) That on March 2, 2012, Michele Fontinos, acting in propria persona, filed a Motion for
Reconsideration of Order to Sell Real and Personal Property. On March 22, 2012, Michele
23, 2012, Michele Fontinos, acting in propira persona, filed a Second Amended Motion for
econsideration. On April
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Reconsideration.
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2012 when she provided oral argument to supplement her motion for reconsideration and when
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c) That on April 11, 2012, Michele Fontinos, acting in propria persona, filed a Motion to
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propria persona on May 9, 2012 when she provided oral argument to supplement her motion to
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change venue and when the court denied her motion to change venue on the merits.
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d) That on April 23, 2012, Michele Fontinos, acting in propria persona, filed a Motion
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For Removal of Conservator and Replace With Conservator Michele Fontinos. On July 12, 2012,
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Michele Fontinos filed an Amended Motion for Removal of Conservator and Replace With
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Conservator Michele Fontinos. Michele Fontinos was present in court, acting in propria persona
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on July 27, 2012 when she provided oral argwnent to supplement her Motion for Removal of
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Conservator and when the court denied her motion to remove the conservator.
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e) That on May 2, 2012 Michele Fontinos, acting in propria persona, filed an ex parte
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petition for stay of all proceedings pending ruling on motion for change of venue. Michele
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Fontinos was present in court, acting in propria persona on May 2, 2012 when she provided oral
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argument to supplement her ex parte petition to stay all proceedings and when the court denied
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Order Granting in Part Motion Requiring Michele Fontinos to Seek Court Authorization and Furnish Security Before Filing - 3
The above evidence establishes that Michele Fontinos filed, during the period February 6,
2012 through July 12, 2012, and while acting in propria persona, seven pleadings in the five
matters listed above. In each of the above five matters in which Michele Fontinos acted in
propria persona, the court either overruled objections filed by Michele Fontinos or denied the
relief requested by Michele Fontinos in both her original and amended pleadings. Consequently
this court finds that the seven pleadings filed by Michele Fontinos while acting in propria
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2012 through July 12, 2012 were unmeritorious within the meaning
This court further finds, in light of the proportion of unmeritorious pleadings filed by
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Michele Fontinos to the total number of pleadings filed by all of the parties in this case, that
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Michele Fontinos has "repeatedly" filed unmeritorious pleadings in this matter while acting in
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propria persona and therefore that Michele Fontinos meets all of the elements of the definition of
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The motion filed by Laurie R. Sells, Conservator, seeks (1) "an order prohibiting Ms.
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Michele Fontinos from filing any new court documents, including, without limitation, motions,
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pleading, objections, in propria persona in the California courts without first obtaining leave of
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the presiding judge of the court in which the papers are proposed to be filed"; and (2) "an order
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requiring Ms. Michele Fontinos to furnish security before filing any additional documents."
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(Notice of Motion Filed September 27, 2012 by Conservator Laurie R. Sells, Page 1-2.)
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Code of Civil Procedure section 391.7(a) provides: "In addition to any other relief
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provided in this title, the court may, on its own motion or the motion of any party, enter a
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prefiling order which prohibits a vexatious litigant from filing any new litigation in the courts of
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this state in propria persona without first obtaining leave of the presiding judge of the court
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where the litigation is proposed to be filed." Code of Civil Procedure section 391.7(d) provides
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"For purposes of this section 'litigation' includes any petition, application, or motion other than a
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discovery motion, in a proceeding other than a discovery motion, in a proceeding under the
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Order Granting in Part Motion Requiring Michele Fontinos to Seek Court Authorization and Furnish Security Before Filing
Accordingly, the motion by Laurie R. Sells for an order prohibiting Ms. Michele Fontino
from fili1:1g any new court documents in propria persona is GRANTED IN PART and DENIED
IN PART.
petition, application, or motion other than a discovery motion, for any order in propria persona
without first obtaining leave of the presiding judge is GRANTED pursuant to Code of Civil
Procedure section 3 91.7. The request for a prefiling order prohibiting Ms. Michele Fontinos
fromfiling any document including pleadings and objections is DENIED to the extent such
request seeks a prefiling order for the filing of documents other than any petition, application, or
motion for any order or seeks a prefiling order for any discovery motion because such request is
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The request for a prefiling order prohibiting Ms. Michele Fontinos from filing any
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guiding and facilitating the inpropria persona filings by Ms. Michele Fontinos. This court finds
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that Attorney Patricia Barry has acted as a mere conduit for unmeritorious filings and therefore
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that the above order prohibiting Ms. Michele Fontinos from filing any petition, application, or
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motion other than a discovery motion, for any order in propria persona without first obtaining
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leave of the presiding judge shall also prohibit Patricia Barry from filing any petition,
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application, or motion other than a discovery motion, for any order on behalf of Ms. Michele
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re
Shieh (193 7) 17
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Cal.App.4t 1154, 1167.)
California Code of Civil Procedure section 391. l provides, "In any litigation pending in
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any court of this state, at any time until final judgment is entered, a defendant may move the
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court, upon notice and hearing, for an order requiring the plaintiff to furnish security. The motion
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must be based upon the ground, and supported by a showing that the plaintiff is a vexatious
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litigant an that there is not a reasonable probability that he will prevail in the litigation against
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California Code of Civil Procedure section 3 91.3 provides: "If, after hearing the evidence
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upon the motion, the court determines that the plaintiff is a vexatious litigant and that there is no
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reasonable probability that the plaintiff will prevail in the litigation against the moving
Order Granting in Part Motion Requiring Michele Fontinos to Seek Court Authorization and Furnish Security Before Filing - 5
defendant, the court shall order the plaintiff to furnish, for the benefit of the moving defendant,
security in such amount and within such time as the comi shall fix."
Michele Fontinos is not currently the petitioner in any pending matter that is part of this
probate proceeding and is not the plaintiff in any litig,ation currently pending before this court,
though she is the defendant in an unlawful detainer proceeding, is the appellant in three matters
before the California Court of Appeals and is the Plaintiff in a civil suit filed with the U.S.
Procedure sections 391.1 and 391.3 were not intended to authorize a Superior Court to require a
party to litigation in the California Court of Appeals or the U.S. District Court to furnish security
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in connection with litigation before the California Court of Appeals or the U.S. District Court.
Accordingly, the motion for an order requiring Ms. Michele Fontinos to furnish security
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is DENIED WITHOUT PREJUDICE to the right of any party to bring a motion in the California
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Court of Appeals or the U.S. District Court asking such court to order Ms. Michele Fontinos to
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To the extent that Laure. R. Sells, Conservator, seeks an order requiring Ms. Fontinos to
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provide security concerning future litigation that Ms. Fontinos may wish to bring before this
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court, the motion is DENIED. This court cannot assess the merits of future litigation that has not
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yet been filed or even proposed by Ms. Fontinos and therefore cannot determine whether there is
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SO ORDERED
Dated: November 9, 2012
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CJBNS.ORG
Order Granting in Part Motion Requiring Michele Fontinos to Seek Court Authorization and Furnish Security Before Filing