Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for writ of mandate. Gary B. Tranbarger, Judge, and Paulette Barkley, Temporary Judge. , Super.Ct.No. RIC510203
Pursuant to California Constitution, article VI, section 21.
The Law Offices of Timothy B. McCaffrey, Jr., and Timothy B. McCaffrey, Jr., for Petitioner.
No appearance for Respondent.
Ogletree, Deakins, Nash, Smoak & Stewart and Jack S. Sholkoff for Real Party in Interest.
OPINION
RICHLI, J.
In this matter, we have reviewed the petition and the opposition filed by real party in interest. We have determined that resolution of the matter involves the application of settled principles of law, and that issuance of a peremptory writ in the first instance is therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)
We resolve the matter on the issue of the court commissioner’s authority to decide the matter. In our view, petitioner adequately established by declaration that counsel did not “learn” of the commissioner’s status until the minute order was received. The reporter’s transcript of the hearing, in which petitioner’s counsel participated by telephone, does not reflect any notification that a commissioner was presiding. In these circumstances, no waiver or implied consent can be found. (See Cal. Const., art. VI, § 21; Foosadas v. Superior Court (2005) 130 Cal.App.4th 649; In re Frye (1983) 150 Cal.App.3d 407.)
We are aware that our ruling may only postpone the necessity of reviewing the case on the merits, but as the decision was made without jurisdiction, there is in effect nothing on the merits to review at this time.
DISPOSITION
Let a peremptory writ of mandate issue, directing the Superior Court of Riverside County to vacate its order compelling arbitration, and to set the matter for a new hearing.
Petitioner is directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.
In the interests of justice, the parties shall bear their own costs.
We concur: HOLLENHORST Acting P. J. McKINSTER J.