Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BP081612. Aviva K. Bobb, Judge.
Caryn Shaw, in pro. per., for Petitioner and Appellant.
Raymond G. Fortner, Jr., County Counsel, David F. Skjeie, Principal Deputy County Counsel, for Objector and Respondent.
COOPER, P. J.
In this probate proceeding, a commissioner acting as a temporary judge issued an order appointing the public administrator with limited authority and issuing letters. The commissioner failed to obtain a stipulation of the parties and therefore had no authority to appoint the public administrator or issue the letters to the public administrator. The order is void and appellant’s collateral attack has merit. We vacate the commissioner’s order and reverse the subsequent order confirming the sale of property by the public administrator.
FACTUAL AND PROCEDURAL BACKGROUND
Michael, Terri, and Caryn Shaw are siblings. Their grandfather, Nathaniel Shaw, died intestate in 1981, and their father, Nathaniel Shaw, Jr., died in 2000, without having filed a petition to probate his father’s estate. On September 19, 2003, Michael Shaw filed a petition for probate and sought authorization to administer the estate of Nathaniel Shaw, Sr. Terri and Caryn Shaw objected to the appointment of Michael as an administrator of their grandfather’s estate. Caryn is the sole appellant.
Because they have the same last name, we sometimes refer to the grandchildren of Nathanial Shaw Sr. using their first names.
At a hearing on April 7, 2004, appellant refused to stipulate to Commissioner H. Ronald Haupman and the case immediately was transferred to another courtroom. At a hearing on June 7, 2004, appellant again refused to stipulate to a judge pro tem informing the court, “I haven’t stipulated to you as our judge pro tem. We didn’t stipulate before to another judge pro tem. We’ve asked for a judge . . . .” The case was transferred, and judge Hugh Gardner held a hearing on June 14, 2004. Evidence was admitted concerning whether Michael should become the administrator of Nathanial Shaw Sr.’s estate.
On July 7, 2004, Judge Gardner issued a minute order. It provided: “Due to conflicts between the family members, the court on its own motion, orders that Greg Mc[C]arthy public administrator be appointed pursuant to Prob[ate] Code [sections] 8467, 7620 and 7621.” A hearing to confirm the appointment was scheduled.
On August 6, 2004, appellant filed a document entitled “objection to proposed order appointing the public administrator . . . request for findings of the contested probate issues.” At an August 11, 2004, hearing to confirm the appointment of the public administrator, also before Judge Gardner, the court indicated, “Well, I have before me the objection to the proposed order. I believe about one month or so ago I’d appointed an administrator, a public administrator to -- .” At the conclusion of the hearing the court stated, “under Probate Code 8467, I appoint a public administrator.” The court’s minute order dated August 11, 2004 states, “Greg Mc[C]arthy, public administrator, is appointed pursuant to probate code sections 8467, 7620, and 7621.” The court set a hearing to confirm the appointment for August 6, 2004, which was later continued to August 11, 2004. On August 11, 2004, the Public Administrator was appointed by Judge Gardner.
Undesignated statutory citations are to the Probate Code.
The next hearing, on September 10, 2004, was before Commissioner Ronald Hauptman. The hearing was noticed by the public administrator’s office. The parties agree that “when the Public Administrator appointment petition came before Commissioner Hauptman, the court file containing the documents reflecting Shaw’s refusal to stipulate to the Commissioner was missing.”
At the outset of the hearing, Commissioner Haupman stated that “[a]apparently some objections were filed, but they were not calendared.” Counsel for the public administrator responded saying that “the objectors have no standing to file objections . . . .” He continued, explaining that trial had already occurred and Judge Gardner had ruled the public administrator must be appointed “so there’s already been a legal determination of the contest.” Appellant attempted to present an explanation of the proceedings, but Commissioner Haupman concluded “the court is not going to -- this is not a court of appeal” and did not allow appellant an opportunity to complete her objections.
Commissioner Hauptman confirmed the appointment of the public administrator. An order issued by Commissioner Hauptman appoints the Office of County Counsel, Gregory A. McCarthy principal deputy as administrator of the estate. In the same order, Commissioner Haupman issued letters to the public administrator. The issuance of letters was necessary to make effective the appointment of the public administrator. (§ 8400.) Appellant did not appeal from that order.
On September 30, 2005, another hearing before Commissioner Hauptman was scheduled. Appellant objected to having a commissioner hear the case. Counsel for Michael Shaw stated appellant “has a continuing non-stip each time we appear.” Commissioner Haupman asked why the case was before him and was told that the public administrator’s office set it in that courtroom. The case was transferred to a different courtroom.
On October 6, 2005, Judge Aviva Bobb presided over the public administrator’s petition to confirm the sale of real property. Appellant indicated that the public administrator incorrectly noticed hearings before Commissioner Haupman. Appellant stated, “The main thing is jurisdiction. Judge Haupman signed his order appointing him and Judge Haupman is not authorized to sign any orders in Nathanial Shaw Senior estate as of April 7th 2004. And it is all over the front of the file. So there is no way it could be a mistake.”
Terri and Michael Shaw did not object to the sale. The court approved the public administrator’s petition for conformation of the sale of the property in the amount of $816,000 and issued an order on October 14, 2005.
Appellant appealed from the order confirming the sale of the property, which is an appealable order. (Prob. Code § 1300, subd. (a).)
DISCUSSION
Appellant argues that Commissioner Haupman’s order is void because she did not stipulate to him and that his order issuing letters of administration to the public administrator can therefore be challenged in this collateral attack. For reasons we will explain, we agree.
I. Commissioner Haupman’s Order Is Void
In the absence of an express or implied stipulation to a commissioner, the order or judgment issued by that commissioner is void. (In re Horton (1991) 54 Cal.3d 82, 90; Kim v. Superior Court (1988) 64 Cal.App.4th 256, 260.) “The jurisdiction of a court commissioner, or any other temporary judge to try a cause derives from the parties’ stipulation.” (Ibid.) A party may impliedly stipulate to a commissioner where the parties’ conduct is tantamount to a stipulation such as where a party proceeds through an entire trial with a commissioner with knowledge that the person conducting the trial is a commissioner and the commissioner is treated as competent to rule on matters which rest solely in the discretion of a judge. (Id. at p. 98.)
Here there was no express stipulation to Commissioner Haupman. Respondent argues that appellant impliedly stipulated to Commissioner Haupman because she never reminded him of her refusal to stipulate to him. There are two reasons why this argument lacks merit. First, appellant refused to stipulate to Commissioner Haupman at the April hearing and that refusal meant that Commissioner Haupman did not have authority to decide any issue in the case. Although the file apparently was missing, as appellant argued, it was not her responsibility to reiterate her previously made refusal to stipulate to Commissioner Haupman. Second, appellant was not given an opportunity to speak at the hearing. Each time she attempted to speak, she was silenced. First, respondent argued to the trial court that appellant had no standing. Then, the court refused to hear her version of the events. Unlike in In re Horton, where the court found an implied stipulation, here appellant did not participate in a full trial on the merits in front of the commissioner.
In O’Conner v. Old Republic Surety Co. (1996) 48 Cal.App.4th 1076, 1087, a case relied upon by respondent, the court distinguished between “conduct by a court that has no jurisdiction over the subject matter on the one hand and action which is in excess of the court’s jurisdiction on the other hand.” “The principle of ‘subject matter jurisdiction’ relates to the inherent authority of the court involved to deal with the case or matter before it. [Citation.] In contrast, a court acts in excess of jurisdiction ‘ “ where though the court has jurisdiction over the subject matter and the parties in the fundamental sense, it has no ‘jurisdiction’ (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites.” ’ ” (Id. at pp. 1087-1088.) Conduct in excess of jurisdiction is voidable but not void. (Id. at p. 1088.)
O’Conner is not helpful because, as discussed above, our high court has made clear that conduct by a commissioner absent stipulation is void. The power of a commissioner to act as a temporary judge requires a stipulation. (In re Frye (1983) 150 Cal.App.3d 407, 410.) The stipulation is not merely a regulation of procedure, but is what allows the temporary judge authority over the parties. Without it, the court has no jurisdiction in the fundamental sense. (Cf. People v. Tijerina (1969) 1 Cal.3d 41, 49; In re Steven A. (1993) 15 Cal.App.4th 754, 772.)
Respondent argues that no stipulation was required because Commissioner Haupman performed only a subordinate judicial duty. A commissioner is empowered only to perform subordinate judicial duties. (Cal. Const. Art. VI, § 22 [“The Legislature may provide for the appointment by trial courts of record of officers such as commissioners to perform subordinate judicial duties.”].) However, subordinate judicial duties as listed in Code of Civil Procedure section 259 do not include appointing a representative of an estate or issuing letters. (See also Foosadas v. Superior Court (2005) 130 Cal.App.4th 649 [listing duties a commissioner may undertake without a stipulation].) In addition, subordinate judicial duties are performed “only if [the] findings and recommendations are advisory and not binding until adopted by the court”; an event which did not happen in this case. (People v. Superior Court (Laff) (2001) 25 Cal.4th 703, 721.)
In contrast to duties which may be performed by a commissioner absent a stipulation, a commissioner may be empowered to act as a temporary judge. However, a temporary judge is empowered to act only upon the stipulation of the parties. (Cal. Const., art. VI, § 21 [“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.”].) Here, Commissioner Haupman was purporting to act as a temporary judge. The order appointing the Office of County Counsel as the public administrator was issued by H. Ronald Hauptman Judge pro tempore. More importantly, the order included deciding questions of law, which was not a subordinate judicial duty. (Kim v. Superior Court (1988) 64 Cal.App.4th 256, 260.) The order issued by Commissioner Haupman was necessary for the public administrator to have power to administer the estate. “Appointment of a personal representative becomes effective when the person appointed is issued letters.” (§ 8400, subd. (a).) Contrary to respondent’s contention, it was a duty for which a stipulation was required.
II. Because The Order Appointing The Administrator Is Void, The Administrator Lacked Power To Hold A Sale
Appellant aptly compares the sale in this case with a lease in The Texas Company v. Bank of America National Trust & Savings Association (1935) 5 Cal.2d 35 (Texas Co.). In Texas Co., three of L.V. Olcese’s sisters and his brother were the heirs of his estate. (Id. at p. 38.) Bank of America was appointed administrator as the nominee of one of the sisters. (Ibid.) The Superior Court authorized Bank of America, as special administrator, to lease land of the estate to the Texas Company. (Id. at p. 39.) The Supreme Court annulled the order appointing Bank of America the special administrator. (Ibid.) The high court found the order appointing a special administrator to be void as beyond the jurisdiction of the court. (Olcese v. Superior Court (1930) 210 Cal. 566, 567.)
After the high court annulled the order appointing the bank as administrator, the court considered the validity of a lease entered into by the bank. As relevant here, the court found “[a]n attempted sale of land by one who assumes to act as administrator, but who has not been regularly appointed, and who has not given the bond and qualified and received letters as such, is void, even if the sale is ordered and approved by the probate court. (Texas Co., supra, 5 Cal.2d at p. 40.) “To be attackable collaterally for lack for jurisdiction the order must be void on its face and it is not void on its face unless the record affirmatively shows that the court was without jurisdiction to make the order. [Citation.] If the record discloses that the court had no jurisdiction to make the order of appointment, then it is void and can be attacked at any time.” (Id. at p. 41.) The court held the lease to be void. (Ibid.) Similarly here, because the order issuing letters to the public administrator is void, the sale entered into by the public administrator also is void.
Respondent argues that the error in Texas Co. is distinguishable because it “related to an absence of notice required for personal jurisdiction and involved a far more fundamental error than conduct in excess of the probate court’s jurisdiction.” That is incorrect. The stipulation in this case was fundamental as it was the basis of the commissioner’s authority. In addition, Texas Co. is not dependant on a specific reason rendering an order void, but instead discusses the implication of a void order purporting to appoint an administrator of an estate.
III. Because The Order Appointing The Public Administrator Is Void, It Can Be Collaterally Attacked
Respondent emphasizes that appellant appealed from the order confirming a sale, not the order appointing the public administrator. If the order appointing the public administrator did not suffer from voidness, this would be an important point. Generally, Probate Code section 8007 precludes a collateral attack from an appointment order. It provides: “(a) Except as provided in subdivision (b), an order admitting a will to probate or appointing a personal representative, when it becomes final, is a conclusive determination of the jurisdiction of the court and cannot be collaterally attacked. [¶] (b) Subdivision (a) does not apply in either of the following cases: [¶] (1) The presence of extrinsic fraud in the procurement of the court order. [¶] (2) The court order based on the erroneous determination of the decedent’s death.” If the court has jurisdiction to make an order appointing an administrator, such an order should be conclusive. (Bank of Commerce & Trust Co. (1919) 41 Cal.App. 552, 555.)
However, because the order suffers from a fundamental flaw and is void, in this case, section 8007 does not preclude a collateral attack. Section 8007 restates Former Probate Code section 302. (§ 8007 Law Revision Comment].) Interpreting former section 302, the court in Estate of Buckley (1982) 132 Cal.App.3d 434, 447 concluded: “Although we are mindful of the desirability of finality regarding title to property distributed through probate, we find no authority supporting the proposition that section 302, or cases to the same effect, were intended to apply beyond those specific jurisdictional prerequisites required to invoke the probate jurisdiction of the court (and set forth in § 301), to preclude collateral attack upon orders which are jurisdictionally deficient in the ‘fundamental’ sense for other reasons and when deficiency appears on the face of an order.” Here, the order was jurisdictionally deficient in the fundamental sense and could be collaterally attacked.
We are aware, as respondent emphasizes, that the proceedings in this case have been substantially delayed, resources of the public administrator have been expended and a purchaser of the property has had money tied up in escrow for a significant period of time. (Appellant, however, attempted to raise these objections at the hearing confirming the sale.) These severe consequences demonstrate the need for care in properly noticing the hearing in the correct courtroom and properly ensuring the jurisdiction of the court where a commissioner hears a case. These consequences of reversing the order confirming the public administrator’s sale of property cannot confer jurisdiction on Commissioner Haupman where appellant expressly rejected his authority. His order must be reversed.
DISPOSITION
The order confirming the sale of real property entered October 14, 2005, is reversed. The November 1, 2004 order appointing the public administrator and issuing letters is vacated. The case is remanded to the trial court. Each party to bear his or her costs on appeal.
We concur: RUBIN, J., FLIER, J.