Legal Question in Civil Litigation in California
According to the Code of Civil Procedure Section 259 paragraphs d and g and the California Constitution Article 6, SEC. 21 I have the right to be heard by a judge if I refuse to stipulate to a commissioner hearing the claim in a small claims action. But the judge with whom I filed the complaint sites Government Code Section 72190 as the reason I don't.
My question is that, even if the GC section can be construed as saying I don't, can it override the CCP and/or the Constitution, so do I or do I not have that right?
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STIPULATION OF SUBORDINATE JUDICIAL OFFICERS IS REQUIRED
California Codes Code Of Civil Procedure Section 259. Subject to the supervision of the court, every court commissioner shall have power to do all of the following:
(d) Act as temporary judge when otherwise qualified so to act and when appointed for that purpose, on stipulation of the parties litigant. While acting as temporary judge the commissioner shall receive no compensation therefor other than compensation as commissioner.
(g) Hear, report on, and determine all uncontested actions and proceedings subject to the requirements of subdivision (d).
California Constitution Article 6 Judicial
SEC. 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.
SEC. 22. The Legislature may provide for the appointment by trial courts of record of officers such as commissioners to perform subordinate judicial duties.
CASE AUTHORITIES:
You must agree to have that commissioner hear the case, under California Constitution Article 6, Section 21, as explained by the California Supreme Court in Sarracino v. Superior Court (1974) 13 Cal.3d 1, at pages 5-6.
Any decision rendered by the Court commissioner in the face of your objection is void, under Yetenekian v. Superior Court (Leonard) (1983, 2d) 140 Cal.App.3d 361, 366 .
California Codes Government Code Section 71622. (a) Each trial court may establish and may appoint any subordinate judicial officers that are deemed necessary for the performance of subordinate judicial duties, as authorized by law to be performed by subordinate judicial officers.
CALIFORNIA CODES GOVERNMENT CODE SECTION. 72190. Within the jurisdiction of the court and under the direction of the judges, commissioners shall exercise all the powers and perform all of the duties prescribed by law. At the direction of the judges, commissioners may have the same jurisdiction and exercise the same powers and duties as the judges of the court with respect to any infraction or small claims action. They shall be ex officio deputy clerks.
2 Answers from Attorneys
Interesting. If you want to test the legal issue of whether you can non-stip to a commissioner in small claims court, you could research the issue at a law library to see if there is any case law on the point, and if the results are encouraging you could file a petition for a writ of mandate.
Nothing in CCP sec. 259 nor Const. Article 6, sec. 21 says anything about commissioners hearing small claims cases, much less prohibits it. Commissioners hearing small claims cases are acting under Gov. Code section 72190 that provides direct authority and jurisdiction to commissioners to hear small claims cases. They are not serving as "Temporary Judges" governed the CCP and Constitutional provisions you cite when they hear small claims cases. Many times private attorneys volunteering as temporary judges are assigned to small claims. Your argument would have merit in that case, but not in the case of a duly appointed and sworn commissioner who has direct jurisdiction under GC section 72190.
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