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Court of Appeal, Second District, Division 4, California.

Ernest James SARRACINO, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent; Dorothy Darlington SARRACINO et al., Real Parties in Interest.

Civ. 42911.

Decided: March 20, 1974

Huston T. Carlyle, Glendale, for petitioner. Hindin & McKay and A. Tod Hindin, Beverly Hills, for real parties in interest. No appearance for respondent court.

This proceeding involves the power of a superior court commissioner to hear and decide an uncontested application for temporary support in a family law case.

The petitioner in this court, Ernest James Sarracino, is the defending party in two actions brought in the Los Angeles Superior Court. Case NWD 41155 is a proceeding brought by Dorothy Sarracino for dissolution of marriage. Case NWD 41151 is an action for support brought by his adult daughter, Jane Sarracino, by her guardian ad litem, Dorothy Sarracino. On November 24, 1972 defendant was served with summons and complaint in each case and with an order to show cause in case 41155 and a notice of motion in case 41151, both relating to a hearing to be held on December 4, 1972. On that date defendant failed to appear in person or by counsel. He had not yet filed any pleading or other notice of appearance in either case, and his time to plead had not expired. Mrs. Sarracino and her attorney each signed forms entitled ‘STIPULATION FOR THE APPOINTMENT OF COURT COMMISSIONER AS TEMPORARY JUDGE’ consenting the Commissioner Calof , or any other commissioner of the superior court, might hear the pending matters as a temporary judge. The ‘stipulations' bear no signature by or on behalf of Mr. Sarracino. The commissioner conducted the hearing and made orders requiring Mr. Sarracino to pay temporary support to his wife and daughter. The orders in the dissolution case also restrained Mr. Sarracino from entering the family residence without the consent of his wife or from transferring the community property except in the ordinary course of business or for the necessities of life.

Subsequently Mr. Sarracino appeared in the two superior court actions and moved to set aside the support orders upon the ground that the commissioner lacked jurisdiction to hear and decide these matters. Those motions were denied.

On September 17, 1973 Mr. Sarracino filed his petition in this court seeking a writ to compel the superior court to set aside the support orders because made by a commissioner, and to set aside the order appointing the guardian ad litem upon the ground there had been an inadequate showing of Jane's incompetency.

We issued an alternative writ with respect to the first issue only. The question raised with respect to the guardian ad litem is not one which justifies review by the use of a prerogative writ.

The state Constitution contains two bases of jurisdiction for judicial action by a court commissioner who is also a member of the bar. Article VI, section 21 provides:

‘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.’

Article VI, section 22 provides:

‘The Legislature may provide for the appointment by trial courts of record of officers such as commissioners to perform subordinate judicial duties.’

The record is clear that Commissioner Calof purported to act solely as a temporary judge under section 21, and not as a court commissioner performing subordinate judicial duties under section 22. The petition filed in this court alleges: ‘Said Manley D. Calof was at no time herein mentioned a judge of respondent court, but was, during all the times herein mentioned, a duly qualified and appointed commissioner of respondent, and further was, during all the times mentioned herein, admittedly acting by and through the authority only as set forth and provided in said ‘STIPULATION FOR APPOINTMENT OF COURT COMMISSIONER AS TEMPORARY JUDGE.’'

The answer of real parties in interest admits that allegation. The respondent court has filed no responsive pleading denying the allegation.

People v. Tijerina (1969) 1 Cal.3d 41, 48, 81 Cal.Rptr. 264, 459 P.2d 680, makes it clear that a court commissioner may not act as a temporary judge under section 21 except upon a stipulation of the parties.

Nevertheless, counsel for Mrs. Sarracino contend that Mr. Sarracino was not one of the ‘parties litigant’ and that his agreement was not required because (a) he had not filed a pleading or other appearance in the proceedings and (b) he did not contest or oppose the granting of the relief sought at the hearing on December 4, 1972. We think neither circumstance deprived him of his status as one of the ‘parties litigant’ within the meaning of section 21 of article VI of the California Constitution.

Mr. Sarracino became a party to both the dissolution proceeding and the support action by being named as a party in the original pleadings. (See McDonald v. Severy (1936) 6 Cal.2d 629, 59 P.2d 98.) The jurisdiction of the superior court over Mr. Sarracino in these two proceedings commence with the service of summons on November 24, 1972. (Code Civ.Proc., § 410.50.) He was entitled to appear and assert such defenses as might be appropriate, and he was subject to such orders as the court might make within the scope of its jurisdiction in each proceeding. His failure to make opposition to the matters set for hearing on December 4 implied no more than his willingness that the court make such lawful orders as it found appropriate. His absence cannot reasonably be interpreted as stipulating that any member of the bar agreeable to the other party might hear and decide these matters.

The opinion in Rooney v. Vermont Investment Corp. (1973) 10 Cal.3d 351, 110 Cal.Rptr. 353, 515 P.2d 297, handed down while the present case was pending here, contains a pertinent discussion of the authority of a court commissioner under section 21 and under section 22. In Rooney, the defendant had entered into a written stipulation that a judgment might be entered against it under certain circumstances. The appeal was from a judgment for plaintiff which a court commissioner, purporting to act under that stipulation, had signed after an ex parte request from plaintiff. For the purpose of discussing the jurisdiction of the commissioner, the supreme court assumed the existence of a stipulation which would support a judgment on an ex parte application to a regular judge. (10 Cal.3d at p. 366, 110 Cal.Rptr. 353, 515 P.2d 297.) The court concluded that, under that assumption, the commissioner might have acted under section 22 if the court had ordered him to do so under Code of Civil Procedure section 259a, subdivision 6.1 But in passing upon the merits of the appeal, the supreme court reversed the commissioner's order because, among other reasons, the stipulation of the parties, properly construed, did not consent that judgment might be entered without notice to the defendant that evidence was to be taken to establish the amount of it.

Of particular significance here is another holding which the Rooney opinion summarized in the following language: ‘The commissioner did not have the power to act as a temporary judge because no stipulation that he could so act had been entered into by the parties. (Cal.Const., art. VI, § 21 . . ..)’ (10 Cal.3d at p. 357, 110 Cal.Rptr. at p. 357, 515 P.2d at p. 301.)

The implication is that, even on the assumption that the defendant had consented to the entry of a judgment against him without notice, such a consent did not deprive him of his status as one of the ‘parties litigant’ within the meaning of section 21.

Two older cases require brief note.

Estate of Kent (1963) 6 Cal.2d 154, 57 P.2d 901, holds that in probate proceedings the ‘parties litigant’ who may stipulate to a temporary judge are those parties who have appeared. In probate the jurisdiction of the court is in rem, and the ‘parties' are not identified in the pleadings as in civil actions. Anyone who claims to have an interest in the estate is entitled to appear and be heard. Such interested persons may include heirs and creditors whose names do not appear in the court's records. Other interested persons may be creditors of heirs or persons whose tax liability may be affected by the probate proceedings, whose interest is unknown to the court until the party appears. (See Estate of Kovacs (1964) 227 Cal.App.2d 308, 38 Cal.Rptr. 612.) Hence, there is the rule in probate, applied in the Kent case, that a person is not deemed a party to probate proceeding until he actually appears, though he may be bound by determinations made before he appears. (See Lilienkamp v. Superior Court (1939) 14 Cal.2d 293, 93 P.2d 1008.) The definition of ‘parties litigant,’ as used in the probate cases, has no application to personal actions and proceedings where the parties are named in the pleadings, and the relief granted is between the parties so named and those in privity with them.

Barfield v. Superior Court (1963) 216 Cal.App.2d 476, 31 Cal.Rptr. 30, involved a default divorce heard by a commissioner, sitting as a temporary judge. There the court held that the defendant, whose default had been entered, was not one of the ‘parties litigant’ whose consent was required for the appointment of a temporary judge. The status of a party changes drastically after the entry of his default. He is deemed to have admitted the allegations of the adverse pleading (see Brown v. Brown (1951) 170 Cal. 1, 5, 147 P. 1168) and, thus for most purposes, is no longer a litigant. That analysis is not applicable to a party who simply fails to make an appearance for a hearing on a motion.

Having concluded that the commissioner had no jurisdiction to act as a temporary judge in the absence of a stipulation joined in by Mr. Sarracino, we now consider whether the record would permit us to uphold the commissioner's jurisdiction under section 22. The Rooney decision, supra, 10 Cal.3d 351, 360, 367, 110 Cal.Rptr. 353, 515 P.2d 297, indicates that the hearing of an uncontested motion may be within the jurisdiction of a commissioner, as defined in Code of Civil Procedure, section 259a, subdivision 6, (fn. 1, supra) without a stipulation of the parties, ‘[w]hen ordered by the court appointing him so to do.’ One difficulty in the present case is that there is no order of the superior court appointing Commissioner Calof to hear the Sarracino cases. The record shows that Manley D. Calof has been duly appointed a commissioner of the superior court of Los Angeles County and as a ‘judge pro tem’; and that the presiding judge has assigned him to sit in Department North West ‘J’ which is the department in which the December 4, 1972, proceedings were heard.

With respect to the form of the order required by Code of Civil Procedure, section 259a the Rooney opinion says: ‘The order may take any form that establishes the court's official determination that the proceeding is one that the commissioner should hear and determine.’ (10 Cal.3d at p. 368, 110 Cal.Rptr. at p. 364, 515 P.2d at p. 308.)

No such order appears. The explanation, no doubt, is that the superior court assumed that Commissioner Calof would sit as a temporary judge, relying upon a stipulation of the parties to establish jurisdiction under section 21. There being no such stipulation, the orders cannot stand.

Let a peremptory writ of mandate issue directing the superior court to set aside the orders made by Commissioner Calof on December 4, 1972, in cases NWD 41151 and NWD 41155. In other respects the petition is denied.

In Rooney, the Supreme Court said at page 367, 110 Cal.Rptr. at page 364, 515 P.2d at page 308 (speaking there of an application of section 22 of article VI and subdivision (6) of section 259a of the Code of Civil Procedure:

‘Thus, even though the filing of an answer to a complaint makes the action itself contested, the failure to oppose a motion that is duly noticed and brought on for hearing in the action makes the motion itself an uncontested proceeding within the meaning of subdivision 6 of section 259a.’

I cannot see that there is anything other than a semantic distinction between a person not being a ‘contestant’ under subdivision (6) of section 259a and not being a ‘party litigant’ as to a severable motion within the meaning of article VI, section 21. The difficulty in Rooney was that the stipulation there, as analyzed by the Supreme Court, neither authorized an unnoticed hearing nor referred to a judge pro tem. The stipulation before us in the case at bench is clear as to the use of a judge pro tem., and notice of hearing was duly given. I can see no legitimate distinction between the severable hearing in this case and the situation in Barfield.


1.  Code of Civil Procedure, Section 259a:‘Subject to the supervision of the court, every court commissioner of a county or city and county having a population of nine hundred thousand inhabitants or more shall, in addition to the powers and duties contained in Section 259 of this code, have power:‘. . .‘6. When ordered by the court appointing him so to do, to hear, report on and determine all uncontested actions and proceedings other than actions for divorce, maintenance or annulment of marriage;‘. . .’

FILES, Presiding Justice.

DUNN, J., concurs.