Forrest v. State

• Decision Date: 25 April 2007
• Docket Number: No. B186670.,B186670.
• Citation: 150 Cal.App.4th 183,58 Cal.Rptr.3d 466
• Parties: Ernestine FORREST, Plaintiff and Appellant, v. STATE of California DEPARTMENT OF CORPORATIONS et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

58 Cal.Rptr.3d 466

150 Cal.App.4th 183

Ernestine FORREST, Plaintiff and Appellant, v. STATE of California DEPARTMENT OF CORPORATIONS et al., Defendants and Respondents.

No. B186670.

Court of Appeal, Second District, Division 2.

April 25, 2007.

Dunn Koes, Pamela E. Dunn, Daniel J. Koes, Pasadena, and Mayo Makarczyk for Plaintiff and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Jacob A. Appelsmith, Assistant Attorney General, Silvia M. Diaz and Patricia A. Nevonen, Deputy Attorneys General, for Defendants and Respondents.

DOI TODD, J.

Appellant Ernestine Forrest filed suit against respondents in propria persona. At the time she had been designated a vexatious litigant and was subject to a prefiling order which prohibited her from filing suit without counsel or obtaining permission from the presiding judge to proceed unrepresented. Forrest later retained counsel, but the court permitted counsel to withdraw on the day the case was set for trial. When appellant failed to retain new counsel after a number of continuances, the court dismissed the case and later denied reconsideration of the dismissal when Forrest appeared with counsel.

We hold here that the trial court has authority under Code of Civil Procedure section 391.7¹ to dismiss a lawsuit during the pendency of litigation when a vexatious litigant under a prefiling order is not represented by counsel and has not obtained permission from the presiding judge to proceed unrepresented. We find no abuse of discretion and affirm the dismissal.

FACTUAL AND PROCEDURAL BACKGROUND

Forrest Declared a Vexatious Litigant

In 1994, Division Five of this court declared Forrest a vexatious litigant and issued a prefiling order pursuant to section 391.7, subdivision (a) that prohibited her from filing any new litigation in propria persona without first obtaining leave of the presiding judge of the court where the litigation was proposed to be filed. (Forrest v. Sargoy (Apr. 25, 1994, B077881) [nonpub. opn.].) That order remained in effect throughout these proceedings.

Forrest's Employment and Termination

Forrest was employed as an attorney by respondent California Department of Corporations (DOC) between 1989 and 2004. Respondents Brian Thompson and Morton Riff were also DOC employees. While employed by DOC, Forrest made a number of complaints of race and gender discrimination against DOC, alleging wrongful acts and retaliation. She was terminated by DOC in 2000 and then reinstated by the State Personnel Board in 2002.²

Forrest Initiates a Lawsuit in Propria Persona, Then Appears With Counsel

On February 24, 2003, Forrest filed this suit against respondents in propria persona alleging wrongful termination, race and gender discrimination, harassment, retaliation and breach of contract. The case was assigned to Judge Thomas L. Willhite, Jr. Forrest was represented by attorney David J. Duchrow at a case management conference held on May 16, 2003. The complaint had not been served on respondents at that time. On June 27, 2003, Duchrow filed and served a first amended complaint (FAC), asserting the same causes of action but including more detail with respect to Forrest's termination and DOC's alleged wrongful acts.

Demurrer, Summary Adjudication, Mistrial

Respondents demurred and moved to strike portions of the FAC. The trial court sustained the demurrer of the individual defendants to one cause of action and struck the word "age" from the FAC. The demurrer was otherwise overruled and the motion to strike denied. DOC filed an answer and litigation proceeded.

On August 19, 2004, DOC filed a motion for summary adjudication, which the trial court granted in part, deemed moot in part, and denied in part on November 9, 2004.

The case was set for trial in August 2004, and then continued to December 7, 2004. Prior to the December 7 trial date, Duchrow informed Forrest by facsimile that he would be withdrawing as counsel, but he did not in fact withdraw at that time. The December trial date was continued to January 18, 2005, then January 31, and then February 7. On February 4, 2005, Duchrow informed Forrest by letter that he would withdraw on February 7, but filed no motion with the court seeking to withdraw.

A jury trial commenced February 8, 2005. After the first witness began testimony, Judge Willhite declared a mistrial when he was nominated to the Court of Appeal and became unavailable to complete the case. The case was reassigned to Judge Tricia Ann Bigelow on March 28, 2005, and a "final status conference and trial were set on June 20, 2005.

Attorney's Motion to be Relieved as Counsel

On June 11, 2005, Duchrow filed a motion on shortened notice to be relieved as counsel. He simultaneously filed an ex parte application to continue the trial for 120 days to allow Forrest to retain new counsel.

At the June 20 hearing, DOC's counsel indicated she did not oppose Duchrow's withdrawal; however, she did oppose the continuance because of witness health issues. The trial court conferred with Duchrow, pointing out that there were two witnesses with significant health problems, respondent Morton Riff and Susan Wood. The trial court then inquired: "And if there is a need for a continuance in this case, would you stipulate that both of those witnesses can be videotaped for the questions and answers to be used at trial?" Duchrow responded: "I was going to suggest that."

The trial court sealed the reporter's notes of an in camera hearing with Duchrow regarding his motion to withdraw and granted the motion. With respect to DOC's witnesses, the trial court reiterated in open court that Duchrow had "stipulated to the fact that Morton Riff and Susan Wood ... can have their trial testimony reported." DOC's counsel then clarified that it was Wood's testimony that required videotaping. The court's order read: "The court finds good cause and orders the deposition of Wood to proceed." But Forrest argued that if Duchrow was no longer her attorney, he could not stipulate to the videotaping. The trial court rejected this argument: "It was stipulated before he was relieved as counsel but, nevertheless, I will order it, finding good cause in light of the fact that—this is as to Wood, right?" Forrest objected, asking "shouldn't this be a noticed motion? Shouldn't I have a right to respond?" Forrest and the trial court then engaged in a lengthy discussion about whether Duchrow could be permitted to withdraw.

During this discussion, DOC revealed that Forrest had been designated a vexatious litigant. Ultimately, the trial court advised Forrest that she should retain counsel to advise her on her request to waive her privilege as to the matters Duchrow had revealed in camera and to "either agree or not agree as to whether or not [Duchrow's] stipulation is appropriate and then I will hear it then."

The court asked Forrest how much time she needed to hire another attorney. Forrest responded that "attorneys don't like to come into this kind of circumstance." The court then stated: "[I]f there is a necessity for continuance, I am going to have to consider that. So I will give you two weeks." The court then set an OSC hearing for July 7, 2005 "re failure of plaintiff to retain counsel...." In response to Forrest's question about the purpose of the July 7 OSC, the court clarified: "For you to get new counsel; with regard to whether or not you want to disclose and have Mr. Duchrow represent you and potentially for that person being appointed as your trial counsel for all purposes, okay?" With respect to the trial date, the court stated: "Why don't we continue the trial to the 7th, with the understanding if new counsel comes in I, obviously, am not going to make him pick up the paper and have him pick it up and go to trial that same date."

July 7, 2005 OSC

Forrest filed a response to Duchrow's motion to be relieved as counsel, calling it an "unjustified abandonment on the date of trial" and describing her efforts to obtain new counsel. She informed the trial court that when first instituting the lawsuit she had difficulty locating counsel because employment attorneys advised her they did not like litigating with the government. She also stated, "I attempted to initiate contact with a lawyer to consult after the June 20, 2005 proceedings but he was away on vacation. I now have an appointment with that lawyer on Wednesday, July 6, 2005." At the OSC hearing on July 7, Forrest advised that she did not yet have counsel, that she had not yet been able to retrieve the case file from Duchrow, and that she questioned the judge's neutrality given her past working relationship with defense counsel. In response, the court informed Forrest that she would "hear any motion that you have if you have an attorney here in two weeks...."

DOC's counsel raised the issue of the videotaped testimony: "At the last hearing you gave us authorization to videotape the trial testimony of ... Wood, and we were unsure as to the procedure for "doing that since ... Forrest is between attorneys. How much notice you think we should give her in fairness of doing that, since she won't be allowed to participate?" The trial court set an OSC regarding dismissal for failure to retain counsel for July 22, 2005 and instructed DOC to set the deposition after July 22, 2005.

July 22, 2005 OSC and DOC's Request for Dismissal

On July 22, 2005, Forrest filed an update regarding her efforts to retain counsel. In her declaration she explained that since the June 20 hearing her only contact with Duchrow had been when he told her to pick up her case file from him, that her courier tried repeatedly to do so, and that the files were obtained on July 15. She stated that she was not certain that she had been given the full file. She stated that the attorney with whom she met on July 6, 2005 could not represent her due to his involvement in another major case. Forrest also...