Second, "cause" as used in section 21, article VI is defined as "the proceeding before the court." ( Sarracino v. Superior Court, 13 Cal.3d 1, 10 [ 118 Cal.Rptr. 21, 529 P.2d 53].) Thus the proceeding before the court in which the stipulation was entered into was the criminal prosecution of defendant Harris.
Appellant, citing Sarracino v. Superior Court, argues that the correct standard is to be found in Probate Code section 1801, while respondent, citing In re Christina B., argues the correct standard is found in Penal Code section 1367.Sarracino v. Superior Court (1974) 13 Cal.3d 1, 12. Probate Code section 1801 states, in relevant part:
(10) A party who has notice of a proceeding but fails to appear or otherwise take part loses the status of party litigant. ( Sarracino v. Superior Court (1974) 13 Cal.3d 1, 6-8 [ 118 Cal.Rptr. 21, 529 P.2d 53].) The parties who do appear and take part may thus stipulate to the appointment of a temporary judge without the consent of the absent, nonlitigating parties. ( Id., at p. 10.)
" In Sarracino v. Superior Court (1974) 13 Cal.3d 1 [ 118 Cal.Rptr. 21, 529 P.2d 53], the Supreme Court cited Benson favorably — holding, where a petitioner defaults by failing to appear at a hearing the "stipulation of the parties litigant" required by article VI, section 21 of the California Constitution may be entered into by the other party alone. "Accordingly, petitioner was not a party litigant, and the stipulations executed by the applicants . . . were sufficient to empower the commissioner to act as a temporary judge."
They rely on the rule that the "adoption of constitutional language similar to that in a former constitutional provision is presumed to incorporate authoritative judicial construction of the former language." ( Sarracino v. Superior Court (1974) 13 Cal.3d 1, 8 [ 118 Cal.Rptr. 21, 529 P.2d 53].) (5) To assess the strength of this argument, we will review the historical antecedents of article VI, section 11, to determine whether, in 1966, the term "appellate jurisdiction" had an "authoritative judicial construction" that embraced a right to a direct appeal. 1849 Constitution
(1) When a court renders an interlocutory order collateral to the main issue, dispositive of the rights of the parties in relation to the collateral matter, and directing payment of money or performance of an act, direct appeal may be taken. ( Sarracino v. Superior Court (1974) 13 Cal.3d 1, 9 [ 118 Cal.Rptr. 21, 529 P.2d 53], and cases cited therein; see also Sjoberg v. Hastorf (1948) 33 Cal.2d 116, 119 [ 199 P.2d 668] and cases cited therein; Lukens, The Collateral Order Doctrinein California (1963) 15 Hastings L.J. 105; 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, §§ 38, 39, pp. 4052-4053.) This constitutes a necessary exception to the one final judgment rule.
(Cal. Const., art. VI, § 22; Rooney v. Vermont Investment Corp. (1973) 10 Cal.3d 351, 361-362 [ 110 Cal.Rptr. 353, 515 P.2d 297].) Although full judicial powers can be conferred on an otherwise qualified referee by "stipulation of the parties litigant" (Cal. Const., art. VI, § 21; Sarracino v. Superior Court (1974) 13 Cal.3d 1, 5-6 [ 118 Cal.Rptr. 21, 529 P.2d 53]), there is here not only an absence of any such stipulation but an affirmative objection by the minor to the hearing of the case by any referee of the juvenile court. At the outset of the proceedings minor's counsel filed an affidavit, purportedly pursuant to Code of Civil Procedure section 170.6, asserting that Edgar M. could not have a fair hearing before the presiding judge of the juvenile court "or before any referee appointed under his authority."
(See Tsakos Shipping & Trading, S.A. v. Juniper Garden Town Homes, Ltd. (1993) 12 Cal.App.4th 74, 95, 15 Cal.Rptr.2d 585 [“[A] presumption exists that an attorney who appears on behalf of a party has authority to do so. This presumption may be overcome only by a strong showing that the attorney had no authority”]; accord, Sarracino v. Superior Court (1974) 13 Cal.3d 1, 13, 118 Cal.Rptr. 21, 529 P.2d 53 [“An attorney's authority to represent his purported client is presumed in the absence of a strong factual showing to the contrary”]; In re Helen W. (2007) 150 Cal.App.4th 71, 78, 57 Cal.Rptr.3d 914 [“in the absence of evidence affirmatively showing the attorney's lack of authorization, a notice of appeal signed by the client's attorney should raise no question about its validity”]; People v. American Bankers Ins. Co. (1987) 191 Cal.App.3d 742, 745, 236 Cal.Rptr. 501 [“An oral statement by counsel that he is appearing on the defendant's behalf and is ready to proceed with the hearing or trial will suffice absent proof that the attorney did not have authority to proceed on the defendant's behalf”].)
) In addition, an order requiring one party to pay another party's attorney fees during a family law proceeding is immediately appealable as a final judgment on a collateral matter. (Sarracino v. Superior Court (1974) 13 Cal.3d 1, 9 ["The provision of the order in the dissolution proceeding requiring petitioner to pay his wife's attorney's fees was 'in effect a final judgment against a party in a collateral proceeding growing out of the action' "] (Sarracino); In re Marriage of Skelley (1976) 18 Cal.3d 365, 368 [order reducing temporary support and denying attorney fees and costs is appealable] (Skelley); In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1311 [order awarding attorney fees for future work was immediately appealable] (Tharp); see Smith v. Krueger (1983) 150 Cal.App.3d 752, 756 [order denying attorney fees is appealable as a final determination on a collateral matter].) If a matter is immediately appealable, but no appeal is timely filed, the right to appeal the matter is waived.
(Cf. Code Civ. Proc., § 367; Sarracino v. Superior Court (1974) 13 Cal.3d 1, 13 [ 118 Cal.Rptr. 21, 529 P.2d 53] ["A guardian ad litem who appears for an incompetent person in an action or proceeding does not thereby become a party to that action or proceeding any more than the incompetent person's attorney of record is a party."].) This "strictly literal" construction — construing the term "party" to exclude a guardian — leaves no one available to respond to interrogatories.