PUBLISHED OPINION: Presiding Justice Ramirez reversed appeal. Restraining order void as there was no consent to having a commissioner hear the matter.

Litigants usually cite Yetenekian v. Superior Court, 140 Cal. App. 3d 361, 189 Cal. Rptr. 458 (Ct. App. 1983) to object to having a commissioner hear a case. http://law.justia.com/cases/california/court-of-appeal/3d/140/361.html

Presiding Justice Ramirez reversed the restraining order declaring it void in the below opinion. The Riverside Superior Court has all the stipulations on the table for litigants to sign. They are not filed nor are they referred to in the transcript, unless someone objects to a commissioner.

http://www.courts.ca.gov/opinions/documents/E060854.PDF

APPEAL from the Superior Court of Riverside County. Bradley O. Snell,
Commissioner. Reversed.
J. Scott Bennett for Plaintiff and Respondent.
Reed Smith, Keith A. Meyer and Ilana R. Herscovitz for Defendant and Appellant.
Defendant and appellant Peggy Ann Turk appeals from a domestic violence
restraining order issued against her under the Domestic Violence Prevention Act (Fam.
Code, § 6200 et seq.) by a commissioner of the Riverside County Superior Court. The
order prohibits appellant from posting negative and harassing communications online
about her ex-boyfriend, plaintiff and respondent Peter Daniel Michaels. Appellant argues that the order is void because as a self-represented party, she did not consent to having a commissioner hear the matter. We agree.

FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff and defendant lived with each other from 2001 to 2006 and have one
child together, a son born in 2002. For nearly a decade, they have been litigating over
child custody, child support, and various restraining orders. Except for the restraining
order at issue here, all of the litigation has taken place in Orange County.1
In 2006, the parties stipulated to joint legal custody over their son. In 2008, the
court issued mutual restraining orders prohibiting the parties from contacting each other
for five years, and defendant and plaintiff’s wife entered into a no-contact civil
harassment stipulation. Around that same time, the court awarded sole legal custody to
defendant as a result of a federal restraining order against plaintiff prohibiting him from
contacting their son. When the federal restraining order terminated in 2010, plaintiff
sought sole custody. After a six-day trial, the family court in Orange County issued an
order denying plaintiff’s change-in-custody request. Among the grounds for denial were
plaintiff’s three prior felony convictions and his history of committing child abuse and
neglect.
1 We take the facts in the following brief background from the documents attached to the parties’ filings in the current matter.
3
In December 2013, after the five-year mutual restraining orders had terminated,
plaintiff filed a request for a domestic violence restraining order against defendant in the
Riverside County Superior Court. Plaintiff argued that defendant was posting harassing
comments on the page dedicated to his company on a Web site known as “InvestorsHub”
or “iHub.” According to iHub’s terms of service, the Web site is designed to help users
make informed investment decisions by providing a public forum “to discuss financial
related information, views, opinions, and the recommendations of individuals and
organizations.”2
At the hearing on the restraining order, plaintiff presented various comments that
he alleged defendant had posted on iHub. Examples of these comments include:
“Personally I think [plaintiff] is a dope, a big fat dope”; “He is a deadbeat dad, he has
dozens of judgements [sic] against him and he practically lives in a courtroom”;
“[Plaintiff], as I have discovered through research… is a CONFICTED [sic] FELON (2
times), CON and a LIAR and a man that doesn’t support the children he has fathered . . .
unless forced to by the courts”; “[Plaintiff’s company] IS A SCAM . . . [Plaintiff] is a
lying dirt bag who is also a dead beat dad. What a loser!”
Defendant, who represented herself at the hearing, argued that several of the posts
were not hers. The commissioner found that defendant had been posting comments about
2 We granted defendant’s unopposed motion for judicial notice, which contained iHub’s terms of service.
4
plaintiff on iHub and that the comments were harassing to a degree “that . . . does rise to
a level that warrants issuing a restraining order.” The commissioner issued a domestic
violence restraining order that, among other stay-away conditions, prohibits defendant
from posting “negative [and] harassing communications about [plaintiff] on the internet”
for three years.
DISCUSSION
Defendant contends that the restraining order is void because she did not consent
to a commissioner presiding over the hearing. She is correct.
The California Constitution provides that “[o]n stipulation of the parties litigant
the court may order a cause to be tried by a temporary judge.” (Cal. Const., art VI, § 21.)
Our state’s Supreme Court has interpreted this constitutional provision to mean that in the absence of a stipulation a commissioner is not qualified to act, and any ruling the commissioner makes “must be reversed.” (People v. Tijerina (1969) 1 Cal.3d 41, 49
[reversing order revoking probation entered by commissioner]; accord Rooney v.
Vermont Investment Corp. (1973) 10 Cal.3d 351, 359-360 [commissioner did not have
power to act because no stipulation was “shown by the record”].)
Following Tijerina and Rooney, California appellate courts have reversed and
voided actions taken by commissioners where no stipulation appeared on the record. In
Lovret v. Seyfarth (1972) 22 Cal.App.3d 841, a contractor petitioned the superior court to
confirm an arbitration award against his clients, a husband and wife. (Id. at pp. 846-848.)
5
The petition was heard and ultimately granted by a commissioner. (Id. at pp. 848-850.)
The husband and wife appealed the judgment and the order affirming the arbitration
award on the ground that they had not consented to a commissioner hearing the matter.
(Id. at p. 852.) Although the Court of Appeal recognized that to hold the judgment and
order void would mean that “so much of the judicial and legal labors expended, together
with the time of the litigants and witnesses, must be discarded as vain and abortive
expenditures of time, effort, and money,” the court nevertheless held that the lack of oral
or written stipulation on the record rendered the commissioner’s actions void. (Id. at
pp. 852-853.)
In In re Marriage of Galis (1983) 149 Cal.App.3d 147 (Galis) and In re Frye
(1983) 150 Cal.App.3d 407 (Frye), both decided in the same year, the Court of Appeal
voided a commissioner’s judgment in a contested marital dissolution proceeding and a
commissioner’s order of contempt for failure to make child support payments,
respectively. (Galis, at pp. 150, 155; Frye, at p. 409.) In so ruling, the court in Galis
explained that while it was mindful that commissioners are an “important tool in the
economical and expeditious administration of justice” and are so widely used that
stipulation is usually a “mere formality,” it would nevertheless be unlawful to “force an
unwilling litigant to try his or her case before someone other than a judge.” (Galis, at
p. 154.)
6
A decade later, in In re Steven A. (1993) 15 Cal.App.4th 754, the Fourth District
Court of Appeal held that a commissioner’s order terminating family reunification
services was void. (Id. at p. 772.) In that case, the father had signed a stipulation
allowing a temporary judge to hear “ ‘the within [dependency] action . . . until the final
determination thereof.’ ” (Id. at p. 767.) The stipulation also stated that the
commissioner could hear “ ‘any new proceedings,’ ” but “ ‘without prejudice’ ” to a party
who sought to withdraw “ ‘the continuing authority contained [in the stipulation].’ ”
(Ibid.) After the jurisdictional hearing, but before dispositional hearing, the father
attempted to withdraw the stipulation. (Ibid.) The commissioner refused the request and
continued to preside over the matter. (Ibid.) At the permanency planning hearing, the
commissioner issued an order terminating family reunification services. (Id. at p. 762.)
On appeal, the father challenged the commissioner’s authority to issue the order.
(In re Steven A., supra, 15 Cal.App.4th at p. 770.) The court stated that the stipulation
was “analogous to a contract between the litigants and the court,” and it interpreted the
phrase “the within action” to mean up to the dispositional hearing. (Id. at pp. 770-771.)
It further interpreted that the permanency planning hearing was a “ ‘new proceedings’ ”
under the terms of the stipulation, and thus required new consent. (Id. at pp. 771-772.)
Because the father had attempted to withdraw the stipulation, the court held that there
was no consent and the order was therefore void. (Id. at p. 772.)
7
Here, there is no indication in the record that defendant consented to the
commissioner presiding over the hearing on plaintiff’s request for a restraining order.
Plaintiff argues that defendant impliedly consented to the commissioner presiding over
the restraining order hearing. He asserts that it is common practice for courts to post
notices, which state that where parties do not object, they will be deemed to have
stipulated to the authority of the commissioner. He also asserts that it is the defendant’s
burden to establish such signs were not posted on the day of the hearing, and that she
failed to carry this burden because she relied “only [on] the written record.”
Plaintiff’s argument was rejected in Frye, where the court held that a stipulation,
even one that is constructive in the sense of parties proceeding with actual notice of a
posted sign, must be apparent on the record. (Frye, supra, 150 Cal.App.3d at p. 409.)
Because there was “no . . . indication in the record” that the appellant had seen a
stipulation sign before or during the hearing over which the commissioner presided, the
court held that the commissioner’s order was void. (Ibid.) That is also the case here.
Whether or not stipulation signs were posted in or outside of the courtroom the day of the
hearing, there is no indication in the record that defendant saw them. While there are
circumstances where consent may be implied from the actions of a party or her counsel,
those actions must be apparent from the record. (See e.g., In re Horton (1991) 54 Cal.3d
82, 91-93 [discussing cases where the “doctrine of tantamount stipulation” was applied
based on statements or conduct apparent in the record].)
8
Moreover, Riverside County’s local rule on stipulations to commissioners hearing
matters as temporary judges further precludes plaintiff’s argument for implied consent.
That rule states that while stipulation is implied in default and uncontested matters and
“when attorneys proceed without objection,” self-represented parties “will be asked on
the record if they so stipulate.” (Super. Ct. Riverside County, Local Rules, rule 5145.)
Defendant was representing herself at the hearing, and there is no indication in the record
that she was asked to stipulate to the commissioner hearing the matter.
Plaintiff urges us to treat the lack of actual or implied consent as harmless error.
He argues that “[a]ll courts regularly and consistently waive provisions of both Local
Rules and the Rules of Court” and that “[t]here is no statutory procedure or consequence
for such waiver.” But the issue here is not one of adherence to local court rules, it is of
adherence to the California Constitution. The California Supreme Court was clear in
setting forth the consequences for lack of consent, and our appellate courts have been
consistent in applying those consequences. We will not stray from that precedent and
therefore we hold that the restraining order is void.
Finally, because we agree with defendant’s first contention, we do not address her
remaining arguments on the merits of the restraining order.
9
DISPOSITION
The restraining order is reversed.
In the interests of justice, the parties shall bear their own costs.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J.
We concur:
KING J.
MILLER

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One comment on “PUBLISHED OPINION: Presiding Justice Ramirez reversed appeal. Restraining order void as there was no consent to having a commissioner hear the matter.

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