Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. N08-1093
Graham, J.
Defendant Kathleen Marie Stevens appeals from the granting of a civil harassment restraining order brought by plaintiff Kevin Francis David Bernie. Because defendant did not stipulate to allowing the commissioner who issued the injunction to serve as a temporary judge, we vacate the order.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On July 14, 2008, plaintiff filed a request for an injunction against defendant to prohibit harassment, pursuant to Code of Civil Procedure section 527.6. In his request he alleged that defendant, a former girlfriend, had “engaged in an on-going, persistent, pattern of telephone harassment” directed against him and his current girlfriend. He asked the court to issue temporary orders restraining defendant from harassing, contacting, or attempting to locate him. The court issued the temporary orders on July 14, 2008. The orders appear to have been signed by Commissioner Joel H. Golub. The hearing on the request was set for July 24, 2008.
Section 527.6, subdivision (a), provides: “A person who has suffered harassment as defined in subdivision (b) may seek a temporary restraining order and an injunction prohibiting harassment as provided in this section.” Subdivision (b) of this section provides: “For the purposes of this section, ‘harassment’ is unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the plaintiff.”
At the hearing held on July 24, 2008, before Commissioner Golub, plaintiff signed a stipulation authorizing the commissioner to hear the matter as a temporary judge. Defendant did not appear at the hearing, as she had not been served with plaintiff’s moving papers. Consequently, her signature does not appear on the stipulation. The matter was “reset for service” and a new hearing date was set for August 28, 2008. The temporary restraining orders were reissued.
On August 8, 2008, defendant was served with notice of the civil harassment proceeding.
On August 26, 2008, defendant filed an ex parte application for a 45-day continuance. In her accompanying declaration, she stated that she did not presently have sufficient funds to afford the 175-mile journey to attend the hearing. The application was denied. The order denying the application was signed by Commissioner Lowell Richards. The signature line on the order identifies Commissioner Richards as a “Judge of the Superior Court.”
At the hearing on August 28, 2008, defendant appeared and requested a continuance in order to seek legal counsel. The request was denied. After a brief hearing, the court granted a 90-day restraining order against defendant. This appeal followed.
DISCUSSION
I. The Appeal Is Not Moot
Plaintiff has elected not to file a responsive brief in this court. He did, however, submit a letter to this court urging us to dismiss the appeal as moot because the restraining order has now expired. Defendant argues that the matter is not moot because she may yet suffer adverse effects should, for example, a prospective employer conducting a background check learn that she had previously been the subject of a civil harassment order. As defendant’s argument appears to be plausible, we decline to dismiss this appeal and proceed to analyze its merits.
II. Failure to Stipulate to Commissioner Richards
Defendant claims Commissioner Richards’s order is void because she did not stipulate to his serving as a temporary judge. For reasons we will explain, we agree.
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.”].) Code of Civil Procedure section 259 sets forth the powers and duties of court commissioners, and specifies that court commissioners are subject to the supervision of the court. The powers set forth do not include the power to issue restraining orders. (See also Foosadas v. Superior Court (2005) 130 Cal.App.4th 649, 654 [listing duties a commissioner may undertake without a stipulation].)
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. (In re Frye (1983) 150 Cal.App.3d 407, 410.) Article VI, section 21 of the California Constitution 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.” (See also Code Civ. Proc., § 259, subd. (d).) The stipulation of the parties is a constitutional and jurisdictional requirement. (In re Brittany K. (2002) 96 Cal.App.4th 805, 813.) 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.)
A party’s stipulation to a commissioner does not have to be express. A party may impliedly stipulate to a commissioner where the party’s conduct is tantamount to a stipulation, such as where the 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. (In re Horton (1991) 54 Cal.3d 82, 98.) In the absence of an express or implied stipulation to a commissioner, the order or judgment issued by that commissioner is void. (Id. at p. 90; Kim v. Superior Court (1998) 64 Cal.App.4th 256, 260.)
We have examined the trial court file and it does not contain a written stipulation with respect to Commissioner Richards. The reporter’s transcript of the hearing discloses neither an oral stipulation, nor any mention of the fact that Commissioner Richards is a commissioner rather than a judge. We note the documents served on defendant do not reflect that the presiding judicial officer was a court commissioner. On the contrary, the order denying defendant’s request for a continuance erroneously refers to the presiding judicial officer as a judge of the superior court. Thus, we see no evidence that defendant impliedly stipulated to having the matter heard by a commissioner. Because no valid stipulation to Commissioner Richards appears in the record, and one cannot on this record be inferred, the order filed on August 28, 2008, is void.
While plaintiff initially stipulated to Commissioner Golub, defendant did not join in that stipulation. Commissioner Golub was not involved in the decision to grant the 90-day restraining order.
We note that defendant was not represented by counsel at any stage of these proceedings.
As we have concluded the order is void, we need not address defendant’s additional contention that the court erred in refusing to grant her a continuance.
DISPOSITION
The order is vacated.
We concur: Marchiano, P. J., Margulies, J.