STIPULATIONS

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HYPOTHETICALS FOR “STIPULATIONS” PANEL SJO SEMINAR -- OCTOBER 25, 2008

LOS ANGELES SUPERIOR COURT

Commissioners Lori Behar, Doug Carnahan, and Bruce Mitchell

1. Can A Party Be Relieved Of A Valid Stipulation? [Doug]

Civil litigants, personally, sign a commissioner stipulation in a limited civil case. The stipulation is countersigned by counsel for each party. The stipulation reads that the commissioner in question is stipulated to “for all purposes.” The case is in a direct-set calendar court. Certain pretrial motions are heard and determined by this commissioner. However, on the date of trial, one of the parties, through counsel, moves to be relieved from the stipulation and asks that the case be assigned for trial to a judge.

What ruling by the commissioner?

See Huston v. Workers’ Compensation Appeals Board (1979) 95 Cal.App.3d 856, 865.

2. Can An Attorney Stipulate To An SJO At A New Hearing If The Client Previously Refused To Stipulate To That SJO? [Doug]

At the hearing on a demurrer in a general civil case, the plaintiff, who is attending the hearing with his counsel, informs counsel that he prefers not to stipulate to the commissioner who is assigned to that department. The lawyer imparts this information to the clerk, who informs the commissioner, who in turn simply directs that the clerk call the court services office in the courthouse and find a judge who will hear the demurrer.

The case is transferred to a judge, who overrules the demurrer. Since the courthouse is operating on a direct-set calendaring system,

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the case file, without further question, is transferred back to the department presided over by the commissioner.

Later in the handling of the file the defendant, through counsel, makes a motion for summary judgment and sets it in the commissioner’s department. The motion comes on for hearing and neither party is present, only the two counsel. The commissioner (who was the one non-stipped on the demurrer) recalls the previous refusal to stipulate to him but says nothing about it. He merely calls the case on the record. Both lawyers announce their appearances, but neither one says anything about the previous non-stip. Counsel argue the motion and the commissioner decides it, against the plaintiff (the previous non-stipper).

A couple of weeks later the plaintiff, through the same counsel, makes a motion before the commissioner to vacate the ruling on the MSJ on the ground that the plaintiff had not legally stipulated to the commissioner.

What result on the motion to vacate?

See In re Horton (1991) 54 Cal.3d 82.

3. Can An SJO Conduct A Contempt Hearing? [Doug]

A commissioner is presiding, without stipulation, pursuant to Government Code 72190, in a small claims case. During the trial the defendant loses his patience with the commissioner and says, in open court, “This is not a fair proceeding. This is a kangaroo court, or a Star Chamber, or something like that, and you’re an idiot.”

Can the commissioner immediately hold the defendant in direct contempt of the court?

See CCP sections 128(a)(3), 177, 178, and 259; Fine v. Superior Court (DeFlores) (2nd Dist. 2002) 97 Cal.App.4th 651; Little v. Kern County Superior Court 294 F. 3d 1075 (9th Cir, 2002).

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4. Can An SJO Hear An Ex Parte Without A Stipulation? [Lori]

In an unlawful detainer action a default is entered against the defendant by the clerk. The defendant files an ex parte application for an order to vacate the judgment and stay the writ of execution or in the alternative for an order shortening time to file a noticed motion. The plaintiff does not appear at the hearing. The defendant refuses to stipulate to the commissioner and demands that a judge hear the ex parte. Does the commissioner have the authority to hear the ex parte or should the case be transferred? CCP section 259. 5. After A Non-Stipulation, May The SJO Discuss The Case With The Judge Who Received It? [Lori]

The defendant in a limited civil case arising out of a personal injury accident refuses to stipulate to the commissioner to hear the trial. The case is transferred to a judge and after trial the case is taken under submission. The judge discusses the case with the commissioner at lunch, including discussing the denial of a motion for summary judgment by the commissioner. Is this proper communication between the judge and the commissioner? Assume that a timely CCP 170.6 challenge was filed as to the commissioner at the first appearance on the case. Under these circumstances would it be proper for the judge and the commissioner to discuss the case? See David M. Rothman, California Judicial Conduct Handbook section 5.09 at 206-207 (3rd ed.2007). People v Hernandez (1984) 160 Cal. App. 725; Gubler v Commission on Judicial Performance (1995) 11 Cal. 4th 294 (overruled on other grounds in Doan v Commission on Judicial Performance (1995) 11 Cal. 4th 294.

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6. Is It Permissible To Have A Stipulation “For All Purposes”? [Lori]

In a limited civil case the parties execute a stipulation "for all purposes" for the commissioner to hear a breach of contract case. The plaintiff is in pro per at the first hearing when the stipulation is executed. The stipulation includes all of the following provisions: the parties waive any right to withdraw or revoke the stipulation; the stipulation is binding upon all successor parties in interest, parties in pro per after withdrawal of counsel, and all successor counsel; and the SJO is authorized to hear and adjudicate both "direct" and "indirect" contempt proceedings which arise out of matters where the parties have stipulated that the SJO preside. At the next hearing plaintiff has retained counsel. Counsel states that she is not stipulating to the commissioner. What is the proper ruling? Is there a different result if a new party is brought into the case by a cross-complaint and the new party refuses to stipulate to the commissioner? See Huston v. Worker's Compensation Appeals Board (1979) 95 Cal. App. 3d 859; Burkle v. Burkle (2006) 144 Cal. App. 4th 387, 402; Saccacino v. Superior Court (1974) 13 Cal. 3d 1, 6-7. 7. What If A Party Fails To Appear And Stipulate At Trial? [Bruce] Two neighboring homeowners in Pacific Palisades have litigated for years over whether a fence built by Smith encroaches on the property of Jones. Throughout the case Jones refused to stipulate to an SJO to hear the case. The extensive pre-trial law-and-motion proceedings were therefore all heard by a judge. On the day of trial Jones fails to appear although he received proper notice. Smith stipulates that Commissioner Robertson can hear the case and the supervising judge transfers the case to her.

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Can the commissioner conduct the trial under these circumstances? See Sarracino v. Superior Court (1974) 13 Cal. 3d 1,10; Reisman v. Shahverdian (1984) 153 Cal. App. 3d 1074, 1089. 8. When Is A New Stipulation Needed For A Subsequent Proceeding? “Direct Progeny” vs. “Ancillary” [Bruce] Lilllian Johnson bought a late-model used Toyota Corolla from defendant Auto World for $9,500. After driving it for several days she became concerned that the steering was too loose and the car seemed to shimmy on the road. She took the car to Felix, her mechanic, who advised her the car had been in a major accident, that the frame was bent, and that it was unsafe to drive. Auto World refused to rescind the transaction so Johnson filed suit as a limited jurisdiction case. Pursuant to a written stipulation signed by both parties, Commissioner Young presided over the trial. He found that Auto World failed to disclose material defects in the vehicle and granted rescission. Defendant moved for a new trial, alleging it found newly-discovered evidence that Johnson was informed of the prior accident before she made the purchase. Auto World refused to sign a new stipulation for Commissioner Young to hear the motion for new trial. Can Commissioner Young hear the motion? See Reisman v. Shahverdian (1984) 153 Cal. App. 3d 1074, 1095; Orange County Dept. of Child Support Services v. Superior Court of Orange County (2005) 129 Cal. App. 4th 798. 9. If The Stipulation Is Ambiguous, Can It Be Enforced? [Bruce]

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At the first hearing in a family law case the court uses a standard stipulation form that states the parties are stipulating to the SJO “for this proceeding.” Both the wife and the husband sign it. After testimony that the husband had physically and emotionally abused the son, Commissioner Sanchez grants temporary custody to the mother. The husband strongly disagrees with the court’s decision and says in the hallway that the commissioner is biased in favor of women.

At the next hearing the husband refuses to sign the stipulation form. The wife insists that the stipulation form signed at the first hearing is effective for the entire case.

Who is correct?

See In re. Steven A. (1993) 15 Cal. App. 4th 754, 770-771.

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STIPULATIONS FOR SJOs

SJO SEMINAR, OCTOBER 25, 2008 LOS ANGELES SUPERIOR COURT

I. A STIPULATION IS REQUIRED FOR AN SJO TO ACT AS A TEMPORARY JUDGE FOR OTHER THAN “SUBORDINATE JUDICIAL DUTIES”

A. No Stipulation Required For Subordinate Judicial Duties Article VI, Section 22 of the California Constitution provides for appointment of “officers such as commissioners” to perform “subordinate judicial duties” for which no stipulation is required. A subordinate judicial duty does not raise “complex facts and legal issues or contested questions of law.” Foosadas v. Superior Court (2005) 130 Cal.App.4th 649, 655. B. A Stipulation Is Required To Act As Temporary Judge For Other

Than Subordinate Judicial Duties

• “On stipulation of the parties litigant the court may order a cause to be tried by a temporary judge who is a member of the State Bar, sworn and empowered to act until final determination of the cause.” California Constitution, article VI, § 21.

• “The jurisdiction of a court commissioner, or any other temporary judge, to

try a cause derives from the parties’ stipulation. (Citation omitted.) Thus, in the absence of a proper stipulation, the judgment entered by the court commissioner in this case would be void. (Citations omitted.)” In re Horton (1991) 54 Cal.3d 82, 90.

• CCP § 259(d) states that “every court commissioner” shall have the power

to “[a]ct as temporary judge when otherwise qualified so to act and when appointed for that purpose, on stipulation of the parties litigant.”

C. A Stipulation May Be Written, Oral, Or Implied By Conduct “[A] written stipulation is not required by the Constitution.” In re Estate of Fain (1999) 75 Cal.App.4th 973, 989. Thus, consent may be implied by conduct “if the hearing involves the performance of judicial function, e.g., a trial, sentencing, or

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preliminary hearing, and the party affirmatively participates in the proceeding and fails to object to the conduct of the proceeding by a commissioner until after it is completed.” Foosadas v. Superior Court (2005) 130 Cal.App.4th 649, 655. D. Full Judicial Powers Conferred By A Stipulation

“Temporary judges who act under stipulation have ‘full judicial powers’ until final determination of the cause.” Fine v. Superior Court (DeFlores) (2002) 97 Cal.App.4th 651, 664.

A commissioner acting as temporary judge upon stipulation of the parties “has full judicial powers, and his orders are as final and nonreviewable as those of a permanent judge.” In re Mark L. (1983) 34 Cal.3d 171, 178.

II. POWERS AND DUTIES WHICH REQUIRE NO STIPULATION A. Statutory Subordinate Judicial Duties CCP § 259 specifically lists duties for which no stipulation is required:

“Subject to the supervision of the court, every court commissioner shall have power to do all of the following:

(a) Hear and determine ex parte motions for orders and alternative writs and writs of habeas corpus in the superior court for which the court commissioner is appointed. (b) Take proof and make and report findings thereon as to any matter of fact upon which information is required by the court. . . . (c) Take and approve any bonds and undertakings in actions or proceedings, and determine objections to the bonds and undertakings. (d) Act as temporary judge when otherwise qualified so to act and when appointed for that purpose, on stipulation of the parties litigant. . . . (Emphasis added.) (e) Hear and report findings and conclusions to the court for approval, rejection, or change, all preliminary matters including motions or petitions for the custody and support of children, the allowance of temporary spousal support, costs and attorneys' fees,

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and issues of fact in contempt proceedings in proceedings for support, dissolution of marriage, nullity of marriage, or legal separation. (f) Hear actions to establish paternity and to establish or enforce child and spousal support pursuant to subdivision (a) of Section 4251 of the Family Code. (g) Hear, report on, and determine all uncontested actions and proceedings subject to the requirements of subdivision (d). “ (Emphasis added.) [Note that under the prior version of CCP § 259 as amended in 1982, case law held that a commissioner was performing a subordinate judicial duty–and thus no stipulation was necessary–in hearing an uncontested action or proceeding, as where a defendant failed to answer or appear. See Reisman v. Shahverdian (1984) 153 Cal.App.3d 1074, 1093-1094. However, § 259 was subsequently amended in 1989 to require a stipulation even in uncontested actions and proceedings.]

B. Other Specific Types Of Cases Which An SJO Is Authorized By

Statute To Hear Additional statutes provide that certain duties are “subordinate judicial duties” for which no stipulation is required. Examples include:

• Writs of attachment and writs of possession are heard by commissioners. CCP § 482.060 and CCP § 516.040.

• Small claims and infractions are heard by commissioners. Govt. Code § 72190.

• Emergency protective orders are heard by commissioners and referees. Family Code §§ 6241. Penal Code § 646.91.

• Bail increases and decreases are heard by commissioners. Penal Code § 1269c.

• Criminal arraignments are heard by commissioners. Govt. Code § 72190.1.

• Numerous types of juvenile offenses are heard by Juvenile Hearing Officers under Welfare & Institutions Code § 256, including traffic, drug possession, vandalism, and curfew violations.

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For a more thorough listing of SJO powers see Staff Attorney Theresa Jauregui’s “The Scope of Commissioner’s Powers,” published by the Planning & Research Department of the Los Angeles Superior Court. C. A “Reference” To An SJO For Fact-Finding If there has been a non-stipulation to an SJO, the court may order a special reference to an SJO without consent of the parties. This may be desirable, for example, in cases where a number of parties in coordinated cases have stipulated to an SJO but a newly added party refuses to so stipulate. The interests of the court and the litigants are served by having a single judicial officer jointly manage the group of cases. In that instance, the court may direct a special reference to the non-stipulated SJO on specific terms delineating the scope of the reference, subject to the parties’ right to file formal written objections to the commissioner’s orders. If the parties consent, a “general” reference may be made. If the parties do not consent, only a “special” reference may be used.

“There are two kinds of reference hearings: general and special. In a general reference hearing, the referee, with the consent of the parties, hears and decides the entire controversy. (Citation.) ‘A trial court's nonconsensual general reference constitutes an unconstitutional abdication of judicial authority.’ (Citation omitted.)

‘A special reference, in contrast, is limited to specific fact determinations. (Citation omitted.) A court may appoint a referee without the consent of the parties ‘[w]hen a question of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of the action.’ (Citation omitted.) Although the findings and recommendations made by a commissioner at a special reference hearing are advisory and not binding, great weight is given to the commissioner's opinion.”

Settlemire v. Superior Court (2003)105 Cal.App.4th 666, 670-671. The order of reference should be specific. A trial court’s order for reference of a case which involves multiple factual issues without specifically stating the facts to be decided by the SJO is an improper delegation of judicial duties. Id. at 675. In short:

“A general reference to a commissioner has a binding effect and must be consensual. ‘[A] special reference may be ordered without

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consent but is merely advisory, not binding on the superior court.’” Stratton v. Stratton (1991) 226 Cal.App.3d 1392, 1395-96.

III. A STIPULATION IS A CONTRACT AND IS GOVERNED BY

GENERAL CONTRACT PRINCIPLES A. A Stipulation Is A Contract Between The Court and The Litigants The stipulation is an agreement between the court and the litigant(s), not between the litigants themselves. Barfield v. Superior Court (Barfield) (1963) 216 Cal.App.2d 476, 479. Under a stipulation agreement “[t]he litigants receive the benefit of a more speedy adjudication than could be offered if the court were compelled to assign a judge to the matter, while the court is afforded flexibility in scheduling and the opportunity to make full use of all of its judicial officers, of whatever status.” In re Steven A. (1993) 15 Cal.App.4th 754, 770-71. B. The Terms And Scope Of The Stipulation Must Be Clear. Any

Ambiguities Will Be Construed Against The Drafter, Which Is Usually The Court

Basic principles of contract law apply and a stipulation may be found to be ambiguous such that a party is entitled to withdraw a stipulation before a “new proceeding” distinct from the “within action.” In re Steven A., supra, 15 Cal.App.4th at 770, 771.

“[A]ny ambiguity should be construed against the party causing it – normally, the party who was responsible for drafting the instrument.” Id. at 771.

“The stipulation forms are prepared by the court, and, we assume, are presented to the parties with no realistic opportunity for modification. In the circumstances, it is the court's duty to prepare a form stipulation which plainly and unambiguously sets forth the limits–whether narrow or expansive–of the authority the parties thereby confer. Here, the court unquestionably failed to do so, and it cannot now insist that its ambiguous document be interpreted other than favorably to appellant. Nor can respondents take advantage of the defects.” Id. at 771-72.

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IV. VARIATIONS ON THE SCOPE OF AUTHORITY CONFERRED BY A STIPULATION

A stipulation can be for all purposes, for all pre-trial purposes, or for a single hearing. Given that general contract principles apply to stipulations and that ambiguities will be construed against the court (In re Stephen A., supra, 15 Cal.App.4th at 770-71), stipulation to commissioner forms should be drafted in as clear and specific language as possible to clarify the scope of the stipulation.

“[I]t is the court’s duty to prepare a form stipulation which plainly and unambiguously sets forth the limits–whether narrow or expansive–of the authority parties thereby confer.” In re Stephen A., supra, 15 Cal.App.4th at 772.

“[T]he parties have the power to define and circumscribe the authority of a temporary judge,’ [so] stipulations to a temporary judge are narrowly construed. (Citation omitted.)” Orange County Dept. of Child Support Services v. Superior Court (2005) 129 Cal.App.4th 798, 807. Recommended provisions include:

• The parties waive any right to withdraw or revoke the stipulation; • The stipulation is binding upon all successor parties in interest, parties in

pro per after withdrawal of counsel, and all successor counsel;

V. A STIPULATION CAN ONLY BE REVOKED FOR GOOD CAUSE A. A Party Needs Good Cause To Be Released From A Stipulation As a matter of general contract law, where a stipulation has become an executed contract, there must be “good cause” shown to be released from the agreement. Huston v. Workers’ Compensation Appeals Board (1979) 95 Cal.App.3d 856, 865. B. The Court Has Discretion To Set Aside A Stipulation For Fraud,

Mistake, Or Excusable Neglect Where a stipulation has been “entered into through inadvertence, excusable neglect, fraud, mistake of fact or law, where the facts stipulated have changed or there has been a change in the underlying conditions that could not have been anticipated, or where special circumstances exist rendering it unjust to enforce

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the stipulation,” a court may exercise its sound discretion and set aside the stipulation. (Citations omitted.) But, “[when] there is no mistake but merely a lack of full knowledge of the facts, which . . . is due to the failure of a party to exercise due diligence to ascertain them, there is no proper ground for relief.” Huston, supra, 95 Cal. App 3d at 865-866. C. A Presiding Or Supervising Judge May Relieve A Party From

Their Stipulation If There Is Good Cause “Unless the presiding or designated judge, in his or her discretion, relieves a party from his or her stipulation, the party and the courts are bound by it.” Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 766. However, a presiding judge of a superior court may not remove a court commissioner already validly hearing a case and reassign the case without good cause. In re Guardianship of Simpson (1998) 67 Cal.App.4th 914, 941-42. D. Successor Counsel Are Bound A stipulation expressly authorized by the parties is binding upon successor counsel. Burkle v. Burkle (2006) 144 Cal.App.4th 387, 402.

VI. DETERMINING “PARTIES LITIGANT” FOR A HEARING WHERE A

STIPULATION IS REQUIRED A. Parties Who Have Appeared In The Proceeding For purposes of determining whose consent must be obtained in order for an SJO to serve as a temporary judge, the term “parties litigant” refers to all parties who have appeared in the proceeding, but excludes parties who have not yet appeared. See Sarracino v. Superior Court (Sarracino) (1974) 13 Cal.3d 1, 6-7. Thus, a defaulted party is not a “party litigant.” Barfield v. Superior Court (Barfield) (1963) 216 Cal.App.2d 476, 479. B. As A Practical Precaution Against New Parties, Obtain A New

Stipulation For Each Hearing As a practical matter, before each hearing all parties appearing should sign a new stipulation so that the consent of any parties appearing for the first time is procured. It is administratively impracticable for court staff to search through volumes of files to ensure that each party checking-in has signed a stipulation.

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To prevent “judge shopping,” tentative rulings should be distributed to the parties only after they have signed the stipulation. C. No Stipulation Needed For Party Who Fails To Appear For Trial A named party who receives notice of a hearing and fails to appear is not a “party litigant” whose agreement is required; a stipulation by only the party who appeared at the noticed hearing is sufficient to empower the commissioner to act as a temporary judge. Sarracino, supra, 13 Cal.3d at 8-10. This holds true even if the non-appearing party’s time to file a responsive pleading to the summons has not yet expired. Id. Even a party who participated in the litigation up until trial may lose party litigant status by failing to appear at trial despite receipt of proper notice. Lint v. Chisholm (1981) 121 Cal.App.3d 615, 621-22. See also Reisman v. Shahverdian (1984) 153 Cal.App.3d 1074, 1089 (“A party who has notice of a proceeding but fails to appear or otherwise take part loses the status of a party litigant. (Citation omitted.)”) This is certainly the case where the record reflects a party’s inaction over the course of the litigation. Id. at 1090. However, “when a formerly absent party appears at a subsequent proceeding, that party becomes a party litigant and gains the right to stipulate to the temporary judge’s power. Refusal to so stipulate deprives the temporary judge of power to hear the new but related proceeding.” Id. at 1096-97. D. Election To Arbitrate Does Not Create Party Litigant An election to arbitrate does not confer the status of a party litigant, because such proceedings do not occur before the court. Reisman v. Shahverdian (1984) 153 Cal.App.3d 1074, 1091. E. No Jurisdiction To Act Conferred If A Party Fails To Receive

Notice Of A Hearing If the non-appearing party did not receive notice of the hearing, an SJO as to whom that party has not yet stipulated does not have the power to so act. Rooney v. Vermont Investment Corp. (1973) 10 Cal.3d 351, 360, 370.

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VII. TANTAMOUNT / IMPLIED STIPULATION A. A Stipulation Can Be Implied From Conduct The right to be tried by a regularly appointed or elected superior court judge is not a fundamental personal right requiring an admonition and express waiver. Thus, “the stipulation necessary to vest [a court] commissioner with authority to try the case can be inferred from the conduct of counsel.” In re Horton, supra, 54 Cal.3d at 86. That is, an express stipulation by the client is not necessary; counsel’s conduct may provide the basis for the tantamount stipulation. Id. at 93. Provided that the attorney knows that a commissioner is presiding, “[a]n implied stipulation arises from the parties’ common intent that the subordinate officer hearing their case do things which, in fact, can only be done by a judge.” Id. at 98 (italics in original), 99-100. See also Foosadas, supra, 130 Cal.App.4th at 655 (“[An implied stipulation . . . may be made if the hearing involves the performance of a judicial function . . . and the party affirmatively participates in the proceeding and fails to object to the conduct of the proceeding by a commissioner until after it is completed.”); In re Marriage of Crook (1991) 235 Cal.App.3d 30, 35 (“[The client] is bound by her attorney’s written stipulation . . . and neither [the client’s] signature nor her knowledge of Judge Riley’s status [as a temporary judge] was required in order to validate the proceedings.”) Further, “merely by intending to have the subordinate judicial officer decide the case, the parties may impliedly confer temporary judge status on the officer even without their knowledge that a stipulation is required.” In re Courtney H. (1995) 38 Cal.App.4th 1221, 1227. However, where a party refuses to stipulate and objects to the commissioner hearing a contempt cause, the party’s acquiescence to defer adjudication of the contempt and mere request for continuance does not constitute an implied stipulation. Nierenberg v. Superior Court (1976) 59 Cal.App.3d 611, 619. B. A Challenge To The SJO Must Be Timely Or It Is Waived

A failure to timely object to a matter being heard by the commissioner sitting as a temporary judge may be tantamount to an implied waiver of the required stipulation. In re Brittany K. (2002) 96 Cal.App.4th 805, 813. “ ‘Absent timely challenge, the orders of a subordinate judicial officer sitting as a temporary judge, even without proper stipulation, become final upon expiration of the time for rehearing.’ (Citation omitted.) Here, as in appellant's earlier appeal, her failure either to make any objection to the commissioner sitting as a temporary judge or to draw attention to her alleged refusal to so stipulate,

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together with the fact she did not seek a rehearing before a juvenile court judge, has rendered the disputed ex parte order final.” In re Brittany K. (2005) 127 Cal.App.4th 1497, 1503. However, an objection to the stipulation made soon after the temporary judge begins to conduct the hearing, coupled with the attorney leaving the hearing, is probably a sufficient refusal to stipulate, and the objection is not waived, notwithstanding a commissioner’s courtroom rule to the contrary. Yetenekian v. Superior Court (Leonard) (1983) 140 Cal.App.3d 361, 364-65, 367. C. A Posted Rule Of A Deemed Stipulation Is Insufficient If It Fails

To Distinguish Between Subordinate and Non-subordinate Judicial Duties

A rule posted outside the courtroom that “[a]ll parties and their attorneys are deemed to have stipulated to a commissioner acting as a temporary judge unless an oral or written objection is made in open court prior to the commencement of the first hearing on the matter” was held to be invalid where the hearing at issue involved only a subordinate judicial duty. Foosadas, supra, 130 Cal.App.4th at 655. Because a commissioner may perform subordinate judicial duties without a stipulation [id. at 654], the parties’ participation in a hearing which involved only subordinate judicial duties did not imply a stipulation that the commissioner may also act as a temporary judge. Id. at 655. The constitutional requirement of a stipulation “contemplates a voluntary and knowing assent,” that a commissioner hear the matter. In re Frye (1983) 150 Cal.App.3d 407, 409. A notice posted in the courtroom reciting the court’s stipulation policy is not part of the record unless the parties’ attention is called to it on the record. Id. D. A Stipulation To A Particular SJO Is Not Transferrable To A

Different SJO An original stipulation for a temporary judge does not authorize the superior court to appoint a different temporary judge without new consent. Kim v. Superior Court (Palmco Corporation) (1998) 64 Cal.App.4th 256, 258.

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VIII. WHAT IS A SUBSEQUENT PROCEEDING? “DIRECT PROGENY” VS. “ANCILLARY”

In general, proceedings which are the “direct progeny” of a proceeding for which there was a stipulation can be heard by the same SJO. But for proceedings which are “ancillary” to the original proceeding a new stipulation is required.

“The appointment of a temporary judge to hear a particular ‘cause’ carries with it the power to act until the final determination of that proceeding. (Citation omitted.) Such appointment does not, however, authorize the temporary judge to act in distinct proceedings, albeit ancillary to the same principal action, without being appointed and qualified for that purpose.” Sarracino, supra, 13 Cal.3d at 10 (italics in original); See also Fine v. Superior Court (DeFlores) supra.

Example: An order of judgment was entered pursuant to a class action settlement, thereby ending a commissioner’s authority to act as a temporary judge as to all pretrial proceedings pursuant to a stipulation for pretrial purposes. Fine, supra, 97 Cal.App.4th at 663. However, the parties had, by virtue of a settlement agreement pursuant to which the stipulated judgment was entered, authorized the commissioner to preside over postjudgment proceedings. Id. at 664. “Upon stipulation of the parties, a court commissioner is empowered to adjudicate a ‘cause’ until its final determination. (Cal. Const., art. VI, § 21.) The determination of a cause encompasses subsequent proceedings that are its ‘direct progeny,’ but not those considered ‘ancillary’ to the stipulated cause. (Citation omitted.) Direct progeny are those which are a continuation of the stipulated cause or question its finality, such as motions to vacate or reconsider. (Citations omitted.) An ancillary proceeding, on the other hand, is heard on a separate record and seeks an independent judgment or reviewable order.” Orange County Dept. of Child Support Services v. Superior Court (2005) 129 Cal.App.4th 798, 807. An original stipulation at the commencement of proceedings is sufficient as to all subsequent proceedings which are the direct progeny of the stipulated cause; no further stipulation is necessary, except as to ancillary proceedings. See Walker v. San Francisco Housing Authority (2002) 100 Cal.App.4th 685, 692. Proceedings which challenge the finality of the temporary judge’s ruling or which are a continuation of the stipulated cause are the direct progeny of the stipulated cause. McCartney v. Superior Court (University of Southern California) (1990)

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223 Cal.App.3d 1334, 1339. This includes motions to vacate which constitute a direct attack upon the judgment rendered in the stipulated cause, rather than seeking an independent judgment. Id. Likewise, a motion to reconsider, even if based on new or different facts, necessarily implicates the record of the underlying proceeding, constitutes a direct attack on the temporary judge’s order or judgment, and is the direct progeny of the proceeding on the stipulated cause. Id. One test: In evaluating whether a proceeding is the direct progeny of the stipulated cause, consider whether the new hearing necessarily implicates the record of the underlying proceeding. IX. AFTER A NON-STIP, THE SJO MAY CONSULT WITH THE JUDGE

ASSIGNED TO THE CASE A non-stipulation to an SJO does not have the effect of a disqualification from the matter. Thus, it is proper for a judge to consult with the SJO as to whom the parties have refused to stipulate. See David Rothman, California Judicial Conduct Handbook, section 5.09, at 129-130 (2nd Ed. 1999). Per the California Code of Judicial Ethics, Canon 3.B(7)(b): “A judge may consult with court personnel whose function is to aid the judge in carrying out the judge’s adjudicative responsibilities or with other judges.” In People v. Hernandez (1984) 160 Cal.App.3d 725, the court recognized “that discourse between judges such as occurred in the instant case is not inconsistent with public expectations of the decision-making process or erosive of public confidence in the judiciary. We find no basis for the contention that the letter of the canon or its spirit was violated by either the trial judge or the judge who was consulted.” Id. at 739-40. However, an SJO disqualified by a CCP 170.6 challenge may not advise the judge who was then assigned to hear the matter. See Gubler v. Commission on Judicial Performance (1984) 37 Cal.3d 27, 54 (overruled on other grounds in Doan v. Commission On Judicial Performance (1995) 11 Cal.4th 294): “The right to disqualify a judge, guaranteed by [CCP] section 170.6 (citations omitted), would be undermined and perhaps vitiated if the disqualified judge were permitted to circumvent the disqualification by initiating advice to another judicial officer on how to decide the matter.” Rothman, supra, § 5.09 at 130.

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X. UNDER A STIPULATION FOR TEMPORARY JUDGE, AN SJO MAY HEAR BOTH DIRECT AND INDIRECT CONTEMPT

A. Statutory Authorization For A Temporary Judge To Hear

Contempt CCP § 128(a)(3), the court’s inherent power

“While the parties to an action have the power to define and circumscribe the authority of a temporary judge (In re Steven A. (1993) 15 Cal. App. 4th 754, 768 [19 Cal. Rptr. 2d 576]), no express authority to issue contempt orders need be granted; such authority is inherent in the trial court’s power to exercise reasonable control over its proceedings. (Section 128, subd.(a)(3).)” Fine v. Superior Court, supra, at 664.

CCP §§ 177 and 178 grant every “judicial officer” the powers of direct and indirect contempt

“Temporary judges who act under stipulation have “full judicial powers” until final determination of the cause. (In re Mark L. (1983) 34 Cal. 3d 171, 178 [193 Cal. Rptr. 165, 666 P. 2d 22].) One of those judicial powers is to punish for contempt. (Sections 177, 178.) Section 177 provides that ‘[e]very judicial officer shall have the power: [P] 1. To preserve and enforce order in his immediate presence, and in proceedings before him, when he is engaged in the performance of official duty; [P] 2. To compel obedience to his lawful orders as provided in this Code; [P] 3. To compel the attendance of persons to testify in a proceeding before him, in the cases and manner provided in this Code; [P] To administer oaths to persons in a proceeding pending before him, and in all other cases where it may be necessary in the exercise of his powers and duties.’ Section 178 provides that “[f]or the effectual exercise of the powers conferred in the last section, a judicial officer may punish for contempt in the cases provided in this Code.” Fine v. Superior Court, supra, at 664-665.

B. Caution: Certain Older Cases Took A Restricted View Of The Authority Of SJOs To Hear Contempt Some prior cases drew a distinction between an SJO’s power to hear direct versus indirect contempt, or the power of an SJO to cite for, but not

14

adjudicate, contempt. Those cases did not discuss sections 177 and 178, which were enacted in 1872. No case has yet held that an SJO sitting without a stipulation for temporary judge has full contempt powers. C. No Jurist May Hear A Contempt Which Consists Of A Personal Criticism Or Attack Against The Jurist If The Circumstances Permit A Noticed Hearing With A Different Jurist In Little v. Kern County Superior Court 294 F. 3d 1075, 1080-1084 (9th Cir. 2002), decided after Fine v. Superior Court, supra, the Ninth Circuit held that, where delay between the offending act and the contempt hearing “is not impracticable” the “ordinary rudiments of due process” require: [1] that a party charged with contempt be given reasonable notice of specific charges and an opportunity to be heard, and, [2] where there is personal criticism or attack upon the jurist, the contempt must be referred to an impartial adjudicator” for decision to avoid the risk of embroilment. D. If The Original Proceeding Has Concluded, A New Stipulation Is

Required To Hear A Contempt An SJO does not have the power to adjudicate and punish even direct

contempt after final determination of the underlying proceeding absent a new stipulation for the contempt, because the contempt proceeding becomes a cause distinct from the underlying proceeding. Nierenberg, supra, 59 Cal.App.3d at 615, 617. Fine v. Superior Court, supra, at 662-663.

__________________

Written materials prepared by Commissioner Bruce E. Mitchell and research attorney Nathan Taba of the Los Angeles Superior Court. October, 2008.

SAMPLE STIPULATION FORMS

SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES CASE IVUMBER

Plaintiff,

vs .

The undersigned parties and attorney hereby stipulate that the below-described matters in this cast have been assigned to Bruce E. Mitchell, a Superior Court Commissioner for the County of Lo: Angeles, who is a member of the State Bar of California; who was appointed as a Superior Cour Commissioner in accordance with Article 6, Section 22, of the California Constitution; that saic Commissioner has taken the oath of office; and that said Commissioner has been appointed by tht Superior Court as a Temporary Judge for all matters assigned to him.

Defendant.

Pursuant to Article 6, Section 21, of the California Constitution, each of the parties litigant stipulate: that Commissioner Bruce Mitchell is appointed and empowered to act in this case as a Temporag Judge / Judge Pro Tem for the "for all purposes," including pretrial, bench trial, jury trial, and post. tsial pisoceedings.

STIPULATION FOR THE APPOINTMENT OF BRUCE MITCHELL, COLJRT COMMISSIONER AS TEMPORARY JUDGE / JUDGE PRO TEM

"FOR ALL PURPOSES"

Each of the parties litigant thereby waives any right they might otherwise have to hereafter withdrav this Stipulation to Commissioner Mitchell as Temporary Judge / Judge Pro Tem for the describec proceedings. This Stipulation is bind.ing upon all successor parties in interest, parties in pro per aftei withdrawal of counsel, and all successor counsel.

Party: By: Date:

Rev'd. 6.25.04

SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES '

CASE NUMBER

VS.

The undersigned parties and attorney hereby stipulate that the below-described matters in this case have been assigned to Bruce E. Mitchell, a Superior Court Commissioner for the County of Los Angeles, who is a member of the State Bar of California; who was appointed as a Superior Court Commissioner in accordance with Article 6, Section 22, of the California Constitution; that said Commissioner has taken the oath of office; and that said Commissioner has been appointed by the Superior Court as a Temporary Judge for all matters assigned to him.

Defendant.

Pursuant to Article 6, Section 2 1, of the California Constitution, each of the parties litigant stipulates that Commissioner Bruce Mitchell is appointed and empowered to act in this case as a Temporary Judge 1 Judge Pro Tem for all pretrial proceedings, specifically including, without limitation, those matters assigned to Department 59 by the Los Angeies Superior Court's Locai Kuies, and in particular Rule 2.5 and Chapters 15 and 16 of the Local Rules. For rents, issues, and profits receivership cases only, this stipulation is for all purposes, including pretrial, trial, fair value hearing, and any post- judgment matters. Commissioner Mitchell is also authorized to hear and adjudicate any "direct" and "indirect" contempt proceedings which arise out of matters where the parties have stipulated that he preside.

STIPLILATION FOR THE APPOINTMENT OF BRUCE MITCHELL, COURT COMMISSIONER AS TEMPORARY JUDGE / JUDGE PRO TEM

Each of the parties litigant thereby waives any right they might otherwise have to hereafter withdraw this Stipulation to Commissioner Mitchell as Temporary Judge / Judge Pro Tem for the described proceedings. This Stipulation is binding upon all successor parties in interest, parties in pro per after withdrawal of counsel, and all successor counsel.

Party: By: Date:

Rev'd: 6.25.04

VS. FOR APPOINTMENT OF BRUCE MITCHELL, COURT COMMISSIONER AS TEMPORARY JUDGE I JUDGE PRO TEM

Defendant.

Plaintiff,

The undersigned parties and attorneys hereby stipulate that the below-described matters in this case have been assigned to Bruce E. Mitchell, a Superior Court Commissioner for the County of Los Angeles, who is a member of the State Bar of California; who was appointed as a Superior Court Commissioner in accordance with Article 6, Section 22, of the California Constitution; that said Commissioner has taken the oath of office; and that said Commissioner has been appointed by the Superior Court as a Temporary Judge for all matters assigned to him.

CASE NUMBER

Pursuant to Article 6, Section 21, of the California Constitution, each of the parties litigant stipulates that Cornmissioner Bruce Mitchell is appointed and empowered to act in this case as a Temporary Judge / Judge Pro Tem for the following matters:

Eminent Domain Cases: All pretrial proceedings, all motions under CCP Section 1260.040 including legal issue motions, all legal issue bench trials which are tried independently from the issue of compensation. This stipulation includes, without limitation, those matters assigned to Department 59 by Chapter 16 of the Los Angeles Superior Court's Local Rules.

Rents, Issues, and Profits Receivership Cases: For all receivership issues, including pretrial, trial of receivership causes of action, fair value hearing, and any post-judgment matters.

For All Other Matters: For all pretrial proceedings.

Each of the parties litigant thereby waives any right they might otherwise have to hereafter withdraw this Stipulation to Commissioner Mitchell as Temporary Judge I Judge Pro Tem for the described proceedings. This Stipulation is binding upon all successor parties in interest, parties in pro per after withdrawal of counsel, and all successor counsel.

Party: By: Date:

Rev'd: 6.25.04

3.

SUPERIOR COURT OF THE STATE OF) CALIPORNIA COUNTY OF LOS A N G E L ~ S

a

PETITION EFUPLAINTIFF: 1 .

)

) CASENO. RESPOND ENTIDEFENDANT:

) STIPULATION FOR THE AFPOINTMENT OF ) COURT FOMMISSIONER AS JUDGE PRO ) TEM TOIHEAR AND DECIDE ALL PRESENT ) AND F U ~ ~ U R E MATTERS IN THIS CASE

The judicial omcer in this court, ROBERT AXEL, is a Superior Court Commissioner. Cornmissio~ers are full time judicisl officers. They are hired by Pne judges of the Superior Court. Before this commissioner can hear or preside over this case, all partied must agrec t h ~ t this Commissioner can be the judce for this case. if any party does not agree, this cgse will be sent to snother judicial oficer

. for today's hesring and all future hearings. To stipulate meams that you zgree to the appointment of P . - . . A n -- - - . - -A- m n c r T A V ~ I ,,,. Superior L.uurr L O I I I I I I ~ ~ ~ ; U ! I C I c \ v ~ c R ~ -L& Judge t>:= Tern fc: this heering 2nd a!! f~ tu re

hearings a ~ d trials in this case, including post judgment mattqrs.

Each person signing this stipulation understands that /the pending cEse has been assigned to Superior Csouri commissioner ROBERT AXEL, who is a member of the bar of the Stzre of Caliiorniz. Further, it is undewiood that this Commissioner's sppointmenf es z Superior Courr Commissioner is in ~ccordanc? with F.rticle Six, Szcticns Twenty-one and TwenQ-two of the Constiiution of this State znc: thst this C~~mrnissioner has taken the oath of oiiice as to sll mstters zssigned.

It is stipulated by the undersigned attorneys and partieq that Commissioner ROEE8T AXEL shall hear and ciecide zil matters present 2nd future throughout thq pendency of this case siiiing zs E Judge Pro Tern including post judgment mstters.

Dated: - * 1

- Attorney lor PetitionerIPlaintiffiSignature Attor~ey for RespondenUDefendanVSignaiure

Attorney [PrintlName) ~ttor'bey (Pn'ntlName) .

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES

CASE NO.:

STIPULATION FOR THE APPOINTMENT RESPONDENT/DEFENDANT: OF COURT COMMISSIONER AS

JUDGE PRO TEM TO HEAR AND DECIDE ALL PRESENT AND FUTURE MATTERS IN THIS CASE

The judicial officer inthis court, JOHN W. GREEN, is a Superior Court Commissioner. Commissioners are full-time judicial officers. They are attorneys hired by the judges of the Superior Court. Before this commissioner can hear or preside over this case, all parties must agree that this Commissioner can be the judge for this case. If any party does not agree, this case will be sent to another judicial officer for today's hearing and all future hearings. To stipulate means that you agree to the appointment of Superior Cburt Commissioner JOHN W. GREEN as Judge Pro Tem for this hearing and all future hearings and trials in this case, including post- judgment maiiers.

Each person signing this stipulation understands that the pending case has been assigned to Superior Court Commissioner JOHN W. GREEN. Further, it is understood that this Commissioner's appointment as a Superior Court Commissioner is in accordance with Article Six, Sections Twenty-one and Twenty-two of the Constitutson of this State and that this Commissioner has talten the oath of office as to all matters assigned. The undersigned defendant understands that helshe has the right to have defendant's case heard by a Judge and defendant gives up this right.

It is stipulated by the undersigned attorneys and parties that Commissioner JOHN W. GREEN shall hear and decide all matters present and future throughout the pendency of this case sitting as a Judge Pro Tern including post-judgment matters.

Dated: , I 9

Attol-ney for Petitionel-tPlaintiff Attorney for Respondent/Defendant

Superior Court of California, County of Los Angeles CASE NUMBER

STIPULATION FOR APPOINTMENT OF VICTOR GREENBERG COURT COMMISSIONER AS TEMPORARY JUDGE

It is understood between the undersigned attorneys and parties that the pending matter has been assigned to a Superior Court Commissioner for the County of Los Angeles, and a member of .the bar or the state of California, and that said Commissioner's appointment as a Superior Court Commissioner is in accordance with Article six, &tion ~ w e n t ~ - ~ w d of the Constitution of this State and hrther that said Commissioner has taken the oath of office as to all matters assigned.

It is stipulated between the undersigned attorney and parties that said Commissioner, shall hear the within action sitting as a Temporary Judge until the final determination thereof.

It is further stipulated that said Commissioner, by this signed document, shall be vested with the authority to hear any new proceeding in this case, whether contested or uncontested, as a Temporary Judge.

Dated:

Attorney for PlaintifVPetitioner Attorney for DefendanUClaimant

STIPULATION FOR THE APPOINTMENT OF COURT COMMISSIONER AS TEMPORARY JUDGE

SWPERZOR COURT OF CALIPORNIA, COUNTY OF LOS ANGELES

I I I I

. j CASENUMBER I I I ] STIPULATION FOR THE APPI:)XNTMENT OF 1 COMMISSIONER VICTOR G13LEENIZERG AS

TEMPORARY JUDGE

The judicial officer in this court , is a I;upcrior Court Commissioner. Commissioners are full time judicial officers appointed by he judges of the Superior Court. Before this Commissioner can hear o r preside over this c:J..re, all parties must agree that this Commissioner an be the judge for this case presiding over the Claim of Exemption and related matters only.

Each person signiug this stipuiation understand that the pending case has heen assigned to the above Commissioner, who is a member of the State Bar of California. :ll t is also ~rnderstood thatthis commissioner has been appointed as a Superior Coml~lnissioner (California Constitution, Article Six, Section Twenty-lwo). F'urther it is usljerstood that this Commissioner has been appointed as a Temporary hdge pursuant to .an order of the Presiding Judge of the Superior Court and has taken the oath of office as Iio all matters assigned.[California Constitution, Article Six, Section 21, Code of Civil Prr~cedure Section 259, subdivision(e)].

It is stipulated by the undersigued attorneys and parties that the above aa;t.ned Commissioner, sitting as a Temporary Judge shall hear and decide all pre!rernt and future matters related to the Claim of Exemption only.

Dated

Attorney fox Plain tif'f/Petitioner(printed) Attorneyfor defendant~kes~ondent

Attorney for Plaint iPeti t ioner (signature) Attorney for defenden t/l&spond m t

COUNTY OF LOS ANGELES SUPERIOR COURT OF CALIFORNIA

COURTHOUSE ADDRESS: t-- Resewed for Clerk'8 File Stamp

COURT COMMISSIONER AS TEMPORARY JUDGE STIPULATION FOR THE APPOINTMENT OF

-The judicial officer in this court, , is a Superior Court Commissioner. Commissioners are full time judicial officers appointed by the judges of the Superior Court. Before this Commissioner can hear or preside over this case, all parties must agree that this Commissioner can be the judge for this case. This stipulation is an agreement to the appointment of the above named Commissioner as a Temporary Judge for this hearing and all future hearings and trials in this case, including post judgment matters.

CASE NUMBER:

Each person signing this stipulation understands that the pending case has been assigned to the above named Commissioner, who is a member of the State Bar of California. It is also understood that this commissioner has been appointed as a Superior Court Commissioner (California Constitution, Article Six, Section Twenty-Two). Further, it is understood that this Commissioner has been appointed as a Temporary Judge pursuant to an order of the Presiding Judge of the Superior Court and has taken the oath of office as to all matters assigned [California Constitution, Article Six, Section Twenty-One; Code of Civil procedure section 259, subdivision (e)].

It is stipulated by the undersigned attorneys and parties that the above named Commissioner, sitting as a Temporary Judge, shall hear and decide all present and future matters, including post judgment proceedings, 'throughout the pendency of this case.

Dated:

Attorney for the PlaintiffIPetitioner (printed)

Attorney for PlaintifflPetitioner (signature)

Attorney for DefendantlRespondent (printed)

Attorney for DefendantfRespondent (signature)

STIPULATION FOR THE APPOINTMENT OF COURT COMMISSIONER LAClV I 1 7 (Rev. 01107) AS TEMPORARY JUDGE Code Civ. Proc.. 5 259 LASC Approved 04-04

NAME, ADDRESS AND TELEPHONE NUMBER OF ATTORNEY(S1

Attorney(s) For

I

SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES

CASE NUMBER

It is understood between the undersigned attorneys and parties that the pending matter has been assigned to a Superior Court Commissioner for the County of Los Angeles, and a member of the bar of the State of California, and that said Commissioner's appointment as a Superior Court Commissioner is in accordance with Article six, Section Twenty-two of the Constitution of this State and further that said Commissioner has taken the oath of office as !c! a!! n?a??ers assigned.

Petitioner/Plaintiff, VS.

Respondent/Defendant.

It is stipulated between the undersigned attorneys and parties that said Commissioner, or any other Commissioner appointed as set forth above, shall hear the within action sitting as a Temporary Judge until the final determination thereof.

STIPULATION FOR THE APPOINTMENT OF COURT COMMISSIONER AS TEMPORARY JUDGE

It is further stiplated that said Commissioner, or any Commissioner appointed as set forth above, by this signed document, shall be vested with the authority to hear:

Any new proceedings or the trial in this case, whether contested or uncontested, as a Temporary Judge, without prejudice to either party appearing at such new proceedings or trial and withdrawing the continuing authority contained herein. Notice of withdrawal shall be in writing or made orally in open court.

The Matter before the Court this date as Judge Pro Tern.

Dated: .I9

AlTORNEY FOR PETITIONER/PLAINTIFF ATTORNEY FOR RESPONDENT/DEFENDANT

PLEASE PRINT PLEASE PRINT

STIPULATION FOR THE APPOINTMENT OF COURT COMMISSIONER AS TEMPORARY JUDGE 9.

FOR COURT USE ONLY

SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES JUVENILE COURT

THE PEOPLE OF THE STATE OF CALIFORNIA Case Number Department Number a Petitioner

VS.

Stipulation for Appointment of Court Commissioner as Temporary Judge

A Minor

It is hereby stipulated by and between the undersigned attorneys that the above- entitled matter may be heard until final determination of the cause, including the jurisdiction hearing and the disposition hearing, if any by \,f8d p/. - ~ d @ ~ , % a Court Commissioner of Los Angeles County, and a member of the ~ h r of this State, in accordance with Article Six, Section Twenty-One of the Constitution of this State, and further, in accordance with an appointn~ent of said Commissioner by the Presiding Judge of the Superior C w r ! as Temporay J~uSge heretofore iiiade under the authority of Articie Six, Section Twenty-Two of said Constitution and Section 259a, Subdivision 4, of the Code of Civil Procedure.

It is understood that by order of the Presiding Judge of the Superior Court, said Commissioner has heretofore been appointed to act as a Temporary Judge as to all matters assigned to him by a judge of this Court for hearing by him as such Temporary Judge and that he has taken the necessary oath of office as to all matters so assigned.

STEVE COOLEY, DISTRICT ATTORNEY ATTORNEY FOR MINOR

By: By:

Dated: Minor

SUPERIOR COURT OF CALIFORMA /,

COUNTY OF LOS ANGELES L M T E D JuFtISDICTION, CENTRAL DISTRICT

Stanley Moslc Courthouse, Department 94 1 11 North Kdl Street

Los Angeles CA 90012

- 1 DATE: , FrPULATION FOR T W TO BE HEARD BY COmISSIONER; STPULATION RE COURT COSTS AND ATTORNEYS FEES, IF' -ANY

The undersigned (Plaintiff or Defendant or both) acknowledge that they have the right to trial before a Superior Court Judge, but they give up and waive that right and agree that the following Commissioner of the Superior Court will try their case:

whose business address is Room 536, in the above-entitled Courthouse.

The Commissioner '~vlll hear all proceedings connected with the case, as Temporary Judge, in accordance with prior order of the Presiding J d g e of this Court, and the Commissioner's oath which is on file with the Court. Ii is stipulated and ageed tbat the Commissioner has been duly and lawfully appointed to try this case and has taken the necessary oath as Temporary Judge. It is further stipulated that the Commissioner may award costs and attorneys fees, if lawful and proven, in the judgment. No cost memo or motion for fees will be required. IT IS SO STIPULATED.

Dated this . . . . . . . . . . . . . . ... day of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .., 200 , - CASE # PLAINTIFF

ATTORNEY PLAINTIFF , DEFENDANT DEFENDANT

ATTORNEY

I STIPULATION AND SUPEMOR @ O m T OF CAEEFOW4fA ORDER APPOINTING CoCYTY OF LGS ~ f i G E e E 3 , STATE OF CALIF0Rfff.a I Bate:

I TEhlPORARY JUDGE . ( .!.!.!:N:.E!XC!+. SsT.~~TJJ.5,.0_$..ANGELES~.?(>.C1.!~~ . . . I

L I . . . . . I STIPULATION

The plaintiff andlor defendant acknowledges that helske has been advised personally that he/she has the right b have ihis/&er c; heard before a JudgelC~mmi~siofler sf the Court. -With h i s understanding, helshe waives or gives up said right; and it is he

. . .................... ............................... stipylalM ,ap.Qagr,eed by,, and/or beheen the'yndersigned, 6'lat saidd%e may be fried by i. - 6 - ...... (AffomeybComrnissioner of the Los.Anae& Superior Court), w h o s ~ o f f i e addre;

c/o I%& 536, 11 I'N&~~HIII ~%ee~, d&Pjnqsles, CA , 90012 . may l ~ y this cause lo the condlusion of:, .. ..'...."..*... ". .... ".'...."...........a ....."...... -..-' -..---" All proceedings connected with this case, . . .

UThe proceeding(s) on calendar today, a member of the Bar of the State of Ca!ifornia, as Ternporaq Judge, in accordance with ~ & l e 6, Sechan 21 of the Constjtutjon of I State of California, and further in accordance with an appointment of said A~orneylCorimissioner by (he Presiding Jardgre o f s; ." Superior Court to act as such Temporary Judge, heretofore madeas authorized by law. I' i t is understood and acknowledged by the undersigned that by order of said Presiding Judge of the Superior Court, sa AitorneylCornmissioner has heretofore been appointed lo act as Temporary Judge in all causes which may be assigned to hidha? by Judge of said Superior Court for hearing by hidher as Temporary Judge and that helshe has been sworn heretofore to by aid c e u s vrjlherein hetshe may be appointed to act as Temporary Judge. I t is stipulated ,andl agreed by the undersigned mat sa ARorney/Commlssioner has been duly and regularly appointed to Lry the eause(s) referred b below and has taken the nwessary oat o f ofice.to try said cause(s) as Temporary Judge.

.- . . . . Caseuumber I .. * .PJaintitf. ' ' ' ' . ( Affaeky for.Plafntiff 1 Defendant I 'Attorney for Clefendant

1. 1. I . '.

OR,DER h e selection of . . . .......... ......................................................................... as Tempora~ J and ordered. -, Dated . - . - -. - - - - -. -. . :. - . - - - - :-. . - - 2 - - - ....

......................................... : For the Office of Judge Pro Tam. 1. : ............-...........-....................-..- do solemlly swear (or affirm)-hat 1 ~ r i l l support ma! defend the Constitution of the United States and the Constitumn of the State of California against all enemies, foreign and domestic; that I will bsar true faith and allegiance to (he Constitution of -.United States and the Constittrltlon of the Stab3 of. California: .*t 1 kke this obligation freely, without any mental reservaUan.or purpam of evasian;.and that I will well .and faithfulw discharge the duties upon which I am about to enter. I do hereby cedify that I am aware of and will comply wifh applicable pmvlsions of Canon 6 of Code 0l

Judicial Ethics and the California Rules of Court - - .................... i ............................................

(Signature) Clerk of me abave named court

rn.,3~ bef~rg me an ::::!.::,;a;:;ziiiiiiii::i:i;::~ii~ii~ii by 2 c s = z s ~ z ~ a ~ a ~ a ~ z x ~ ~ z ~ ~ ~ . ~ z ~ ~ ~ ~ z . A a z A z t s L ~ = = a z = z z = ~ z = John A Clark, ~xecutive-0fficerlCIerk

STIPULATION AND ORDER APPOINTkNG TEMPORARY JUDGE

33. 1 hereby freely and voluntarily plead to: GUILTY OR NO CONTEST

LIST CHARGE(S)

34. 1 understand that I have the right to a delay of from 6 hours to 5 days prior to being sentenced. I give up this right and agree to be sentenced at this time.

35. If applicable - I understand that I have the right to enter my plea before, and to be sentenced by, a judge. I give up this right and agree to enter my plea before, and to be sentenced by:

TEMPORARY JUDGE'S NAME

INITIALS +

33.

34.

35.

** DEFENDANT'S SIGNATURE: DATE:

ATTORNEY'S STATEMENT

I am the attorney of record for the defendant. I have reviewed the form and any addenda with my client. I have explained each of the defendant's rights to the defendant and answered all of the defendant's questions with regard to this plea. I have also discussed the facts of the defendant's case with the defendant, and explained the consequences of this plea, the elements of the offense(s), and the possible defenses. I concur'in this plea and in the defendant's decision to waive his or her constitutional rights.

SIGNATURE OF DEFENDANT'S ATTORNEY

INTERPRETER'S STATEMENT (if applicable)

I, having been sworn or having a written oath on file, certify that I truly translated this form to the defendant in the 1anaua;e indicated below. he defendant stated that (s)he understood the contents of the form, and then (s)he . , in i th le i and signed the form. Language: Spanish Other (specify):

COURT INTERPRETER'S SIGNATURE TYPE OR PRINT NAME DATE

COURT'S FINDINGS AND ORDER

The Court, having reviewed this form and any addenda, and having questioned the defendant concerning the defendant's constitutional rights, finds that the defendant has expressly, knowingly, understandingly and intelligently waived his or her constitutional rights. The Court finds that the defendant's plea is freely and voluntarily made with an understanding of the nature and consequences thereof, and-that there is a factual basis for the plea. The Court accepts the defendant's plea and orders this form filed and incorporated in the docket by reference as though fully set forth therein.

DATE Judge of the Superior Court

Temporary Judge of the Superior Court

3- Pane 4 of 4

STIPULATIONS FOR SJOsCASE UPDATE - SEPTEMBER 2008

In re the Marriage of Sagonowsky (October 26,2007) 2007 CaI.App.Unpub.LEXIS 8657:

The trial court did not err in denying a motion to vacate a stipulation authorizing acommissioner to sit and act as judge pro tem in an action where the client'sattorney knowingly signed such stipulation for strategic reasons following theclient's repeated refusals to stipulate to a commissioner hearing prior motions.

Estate of Pippins v. Pippins (November 16,2007) 2007 CaI.App.Unpub.LEXIS 9237:

A stipulation to have a court commissioner sit as judge pro tem was properlyimplied where no objection was ever raised to the commissioner presiding over atrial. .

Estate of Shaw v. Saladinao (December 3, 2007) 2007 CaI.App.Unpub.LEXIS 9764:

An order appointing a public administrator with limited authority and issuingletters was made without authority, was void, and was subject to collateral attackwhen the commissioner failed to obtain the parties' stipulation.

Counsel had authority to stipulate to having a commissioner hear the matter astemporary judge because the client did not instruct counsel not to stipulate to that'commissioner, even though she had previously refused to stipulate to a differentcommissioner.

In re the Marriage of Tighe (April 25, 2008) 2008 CaI.App.Unpub. LEXIS3459:

The parties cannot empower by stipulation a commissioner to hear matters whichthe commissioner is not statutorily authorized to hear. The commissioner,presiding as temporary judge over a child support enforcement proceedingpursuant to Family Code § 4251, had entered an order pertaining toreimbursements that were not related to child support, and thus beyond hisauthority.

1

QUICK REFERENCE

STIPULATIONS FOR SJOs

I. A STIPULATION IS REQUIRED FOR AN SJO TO ACT AS A TEMPORARY JUDGE FOR OTHER THAN “SUBORDINATE JUDICIAL DUTIES”

A. No Stipulation Required For Subordinate Judicial Duties. Article VI, Section

22, California Constitution. A subordinate judicial duty does not raise “complex facts and legal issues or contested questions of law.” Foosadas v. Superior Court (2005) 130 Cal.App.4th 649, 655.

B. A Stipulation Is Required To Act As Temporary Judge For Other Than

Subordinate Judicial Duties. California Constitution, article VI, § 21. CCP § 259(d).

C. A Stipulation May Be Written, Oral, Or Implied By Conduct. In re Estate of

Fain (1999) 75 Cal.App.4th 973, 989; Foosadas v. Superior Court (2005) 130 Cal.App.4th 649, 655.

D. Full Judicial Powers Conferred By A Stipulation. “Temporary judges acting

under stipulation have ‘full judicial powers’ until final determination of the cause.” Fine v. Superior Court (DeFlores) (2002) 97 Cal.App.4th 651, 664.

II. POWERS AND DUTIES WHICH REQUIRE NO STIPULATION A. Statutory Subordinate Judicial Duties. > CCP § 259 lists duties for which no stipulation is required. They include

hearing ex partes; writs of habeas corpus; taking proof and reporting findings; bonds and undertakings; and actions to establish paternity or to establish and enforce child and spousal support.

> Writs of attachment and writs of possession are heard by commissioners. CCP § 482.060 and CCP § 516.040.

> Small claims and infractions are heard by commissioners. Govt. Code § 72190.

> Emergency protective orders are heard by commissioners and referees. Family Code §§ 6241. Penal Code § 646.91.

> Bail increases and decreases are heard by commissioners. Penal Code § 1269c.

2

> Criminal arraignments are heard by commissioners. Govt. Code § 72190.1.

> Numerous types of juvenile offenses are heard by Juvenile Hearing Officers under Welfare & Institutions Code § 256, including traffic, drug possession, vandalism, and curfew violations.

For a more thorough listing of SJO powers see Staff Attorney Theresa Jauregui’s “The Scope of Commissioner’s Powers,” published by the Planning & Research Department of the Los Angeles Superior Court. B. Making A “Reference” To An SJO For Fact-Finding. If the parties consent, a

“general” reference may be made. If the parties do not consent, only a “special” reference may be used. Settlemire v. Superior Court (2003)105 Cal.App.4th 666, 670-671.

III. A STIPULATION IS A CONTRACT AND IS GOVERNED BY GENERAL CONTRACT PRINCIPLES

A. A Stipulation Is A Contract Between The Court and The Litigants. Barfield v.

Superior Court (Barfield) (1963) 216 Cal.App.2d 476, 479. In re Steven A. (1993) 15 Cal.App.4th 754, 770-71.

B. The Terms And Scope Of The Stipulation Must Be Clear. Ambiguities Will

Be Construed Against The Drafter, Usually The Court. In re Steven A., supra, 15 Cal.App.4th at 770, 771.

IV. A STIPULATION CAN BE FOR ALL PURPOSES, FOR ALL PRE-

TRIAL PURPOSES, OR FOR A SINGLE HEARING In re Stephen A., supra, 15 Cal.App.4th at 770-71. Orange County Dept.

of Child Support Services v. Superior Court (2005) 129 Cal.App.4th 798, 807.

V. A VALID STIPULATION CAN ONLY BE REVOKED FOR GOOD

CAUSE, SUCH AS FRAUD, MISTAKE, OR EXCUSABLE NEGLECT

Huston v. Workers’ Compensation Appeals Board (1979) 95 Cal.App.3d 856, 865-866; Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 66; In re Guardianship of Simpson (1998) 67 Cal.App.4th 914, 941-42.

VI. SUCCESSOR COUNSEL ARE BOUND BY A PRIOR

STIPULATION Burkle v. Burkle (2006) 144 Cal.App.4th 387, 402.

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VII. DETERMINING “PARTIES LITIGANT” FOR A HEARING WHERE A STIPULATION IS REQUIRED

A. “Parties Litigant” Are Parties Who Have Appeared In The Proceeding.

Sarracino v. Superior Court (Sarracino) (1974) 13 Cal.3d 1, 6-7. Barfield v. Superior Court (Barfield) (1963) 216 Cal.App.2d 476, 479.

B. No Stipulation Needed For Party Who Fails To Appear For Trial. Sarracino,

supra, 13 Cal.3d at 8-10; Lint v. Chisholm (1981) 121 Cal.App.3d 615, 621-22; Reisman v. Shahverdian (1984) 153 Cal.App.3d 1074, 1089.

C. Election To Arbitrate Does Not Create Party Litigant. Reisman v.

Shahverdian (1984) 153 Cal.App.3d 1074, 1091. D. SJO Has No Jurisdiction To Act If A Party Fails To Receive Notice. Rooney

v. Vermont Investment Corp. (1973) 10 Cal.3d 351, 360, 370. VIII. TANTAMOUNT / IMPLIED STIPULATION A. A Stipulation Can Be Implied From Conduct. In re Horton, supra, 54 Cal.3d

at 86 and 93; Foosadas, supra, 130 Cal.App.4th at 655. B. A Challenge To The SJO Must Be Timely Or It Is Waived. In re Brittany K.

(2002) 96 Cal.App.4th 805, 813; Yetenekian v. Superior Court (Leonard) (1983) 140 Cal.App.3d 361, 364-65, 367.

C. A Posted Rule Of A “Deemed” Stipulation Is Insufficient If It Fails To

Distinguish Between Subordinate and Non-subordinate Judicial Duties. Foosadas, supra, 130 Cal.App.4th at 655; In re Frye (1983) 150 Cal.App.3d 407, 409.

D. A Stipulation To One SJO Is Not Transferrable To A Different SJO. Kim v.

Superior Court (Palmco Corporation) (1998) 64 Cal.App.4th 256, 258. IX. WHAT CONSTITUTES A SUBSEQUENT PROCEEDING? “DIRECT

PROGENY” VS. “ANCILLARY” Proceedings which are the “direct progeny” of a proceeding for which

there was a stipulation can be heard by the same SJO. For proceedings which are “ancillary” to the original proceeding, a new stipulation is required. “Sarracino, supra, 13 Cal.3d at 10; Fine v. Superior Court (DeFlores) supra; Orange County Dept. of Child Support Services v. Superior Court (2005) 129 Cal.App.4th 798, 807.

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X. AFTER A NON-STIP THE SJO MAY CONSULT WITH THE JUDGE ASSIGNED TO THE CASE. BUT IF A 170.6 CHALLENGE IS USED, THE SJO MAY NOT CONSULT WITH THE JUDGE

David Rothman, California Judicial Conduct Handbook, section 5.09, at 129-130 (2nd Ed. 1999); Gubler v. Commission on Judicial Performance (1984) 37 Cal.3d 27, 54 (overruled on other grounds in Doan v. Commission On Judicial Performance (1995) 11 Cal.4th 294).

XI. UNDER A STIPULATION FOR TEMPORARY JUDGE, AN SJO

MAY HEAR BOTH DIRECT AND INDIRECT CONTEMPT A. Statutory Authorization For A Temporary Judge To Hear Contempt. CCP § 128, subd.(a)(3) [statutory powers]. CCP §§ 177 and 178 grant

every “judicial officer” the powers of direct and indirect contempt. See Fine v. Superior Court, supra, at 664-665.

B. Caution: Certain Older Cases Took A Restricted View Of The Authority Of SJOs To Hear Contempt. Some cases drew a distinction between direct and indirect contempt, or the power of an SJO to cite for, but not adjudicate, contempt. Those cases did not discuss sections 177 and 178, which were enacted in 1872. No case has yet held that an SJO sitting without a stipulation for temporary judge has full contempt powers. C. No Jurist May Hear A Contempt Which Consists Of A Personal Criticism Or Attack Against The Jurist If The Circumstances Permit A Noticed Hearing With A Different Jurist. Little v. Kern County Superior Court 294 F. 3d 1075, 1080-1084 (9th Cir. 2002). D. If The Original Proceeding Has Concluded, A New Stipulation Is Required

To Hear A Contempt. Nierenberg, supra, 59 Cal.App.3d at 615, 617. Fine v. Superior Court, supra, at 662-663.

_____________ By Commissioner Bruce E. Mitchell and research attorney Nathan Taba of the Los Angeles Superior Court. October, 2008.