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MELISSA R. KARLSTEN, SB#220976

SARAH A. BROOKS, SB#255679
AARON, RIECHERT, CARPOL & RIFFLE, APC
900 Veterans Boulevard, Suite 600
P.O. Box 5787
Redwood City, CA 94063
Telephone: (650) 368-4662
Facsimile: ( 650) 367-8531

FILED

SAN MATEO
CO

UNTY

NOV 1 5 2012

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Attorneys for Conservator, Laurie R. Sells

Cler

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th Supenor Court

DEPUTY CLERK

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

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IN AND FOR THE COUNTY OF SAN MATEO

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The Conservatorship of the Person and Estate of

CASE NO. 121437

NOTICE OF ENTRY OF ORDER

ESTHER R. BOYES,
Conservatee.

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NOTICE IS HEREBY GIVEN THAT on November 9, 2012, the Clerk of the

Superior Court entered the Order Granting In Part Motion to Require Michele Fotinos to 1) Seek
Court Authorization Before Filing Any Documents, and 2) Furnish Security.
A true and correct copy of that Order attached as Exhibit A.

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Dated: November 15, 2012

AARON, RIECHERT, CARPOL & RIFFLE, APC

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NOTICE OF ENTRY OF ORDER

CALIFORNIA JUDICIAL BRANCH NEWS SERVICE

CJBNS.ORG

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ENDORSED FILED
SAN MATEO COUNTY

NOV - 9 2012

Clerk or u ;:;.;; ;;:,,.11Ai iul Court

Patricia van der Scheer
By

DEPUTY CLERK

SUPERJOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF SAN MATEO

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In Re the Matter of the

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Conservatorship of the Person and Estate of

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Esther R. Boyes,

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Conservatee,

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Case No.: PRO 121437

ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO
REQUIRE MICHELE FOTINOS TO
1) SEEK COURT AUTHORJZATION
BEFORE FILING ANY DOCUMNTS, AND
2) FURNISH SECURJTY

Date: November 9, 2012

Time: 9:00 A.M.
Dept: 20

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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Court, the Honorable Jonathan E. Karesh, presiding.

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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.

Fontinos appeared with attorney Patricia Barry, Esq.

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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GOOD CAUSE APPEARING.

The Motion for Order Requiring Michele Fotinos to 1) Seek Court Authorization Before
Filing Any Documents, and 2) Furnish Security is GR.A!'\JTED in part and DENIED in part.
California Code of Civil Procedure section 3 91 (b)(3) defines a "vexatious litigant" as a

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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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that are frivolous or solely intended to cause unnecessary delay."

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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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On September 9, 2011, Michele Fontinos, then represented by attorneys James Palmer,

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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

6, 2012,

Michele Fontinos, then acting in propria persona, filed an

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

Fontinos, acting in propria persona2 fied a First Amnded Motion for

23, 2012, Michele Fontinos, acting in propira persona, filed a Second Amended Motion for

econsideration. On April

Michele Fontinos was present in court, acting in propria persona on May 9,

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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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the court denied her motion for reconsideration on the merits.

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c) That on April 11, 2012, Michele Fontinos, acting in propria persona, filed a Motion to

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Change Venue to San Francisco County.

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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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Michele Fontinos was present in court, acting in

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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her petition to stay all proceedings.

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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

persona between February

of Code of Civil Proced_u re seti_on 39l(b)(3).

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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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a "vexatious litigant" provided in Code of Civil Procedure section 391 (b)(3 ).

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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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Family Code or Probate Code, for any order."

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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

outside the scope of Code of Civil Procedure section 3 91.7.

Attorney Patricia Barry offered evidence at the hearing to the effect that she had been

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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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Fontinos without first obtaining leave of the presiding judge. (See In

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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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the moving defendant."

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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.

District Court of the Northern District of California.

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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This court finds that Code of Civil

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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provide security in connection with the action before that court.

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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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a likelihood that Ms. Fontinos will prevail.

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SO ORDERED
Dated: November 9, 2012

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Judge of the Superior Court

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CALIFORNIA JUDICIAL BRANCH NEWS SERVICE

CJBNS.ORG

Order Granting in Part Motion Requiring Michele Fontinos to Seek Court Authorization and Furnish Security Before Filing