Dearwester v. Dept. of Corrections CA3

Filed 4/15/16 Dearwester v. Dept. of Corrections CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

FRANK LEE DEARWESTER, C077602

Plaintiff and Appellant, (Super. Ct. No. 34201300155708CUCRGDS) v.

DEPARTMENT OF CORRECTIONS AND REHABILITATION,

Defendant and Respondent.

Appellant Frank Lee Dearwester, proceeding in pro. per., appeals from a trial court’s finding that he is a vexatious litigant. Appellant brought suit against respondents California Department of Corrections and Rehabilitation (Department) and Los Angeles County California State Prison, challenging their denial of his request to photocopy and provide envelopes for a letter to be sent to hundreds of prospective attorneys. Following a hearing, the trial court issued an order finding appellant a vexatious litigant. We shall reverse the order designating appellant a vexatious litigant.

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FACTUAL AND PROCEDURAL BACKGROUND Appellant was convicted of numerous felony counts of violating Penal Code section 288, subdivision (a), lewd or lascivious acts with a child under the age of 14. The court sentenced appellant to 32 years in state prison. Appellant’s claims against respondents stem from his allegation that the Department refused his request to photocopy and provide “indigent legal mail envelopes” for a two-page form letter to be sent to hundreds of prospective attorneys. The correspondence seeks representation in two civil rights actions filed in federal court alleging negligence by the public defender’s office in the underlying criminal case. Appellant argued he was entitled to “free and unlimited” photocopies and postage for correspondence with any members of the State Bar. Appellant also named over 500 attorneys as defendants in his suit. He filed a request to waive court fees, including sheriff’s and marshal’s fees for service of process on all the attorneys. The trial court issued an order to show cause, scheduling a hearing to ascertain whether appellant was a vexatious litigant. At the hearing, appellant confirmed he named over 500 attorneys in his complaint because the Department “will only allow him to send a limited number of letters, and this way it would cost him nothing to get his letter to all of the attorneys. He clearly stated he wants to find an attorney to represent him in the federal cases, and the present action was his way of achieving that goal.” In its order declaring appellant a vexatious litigant, the trial court found he had no contact with any of the attorneys he proposed sending the letter to and has no actual cause of action against any of them. In addition, the court noted that appellant’s complaint and request to waive court fees appear to be his “way of requiring the state to bear the cost of delivering a form letter to hundreds of attorneys in order to solicit legal representation in another case.”