Legal Question in Legal Ethics in California

Civil Restraining Order and Commissioner assigned to hear case

I filed for a civil harassment restraining order. I did not give the party whom the TRO is against prior notice that I was going to court to get a TRO due to her excalating out of control behaviour and violence. The Commissioner who heard my request for a TRO pending the hearing later this month was upset that I didn't give the other party prior notice before coming to court even though I told the Commissioner that the other party was likely to become out of control. So the Commissioner did issue a TRO for the usual stalking/annoying, etc but refused to grant me my stay away orders which kind of defeats the purpose of the TRO but he wouldn't give it to me. This particular commissioner was rude, abrasive and intimidating. Can I get him tossed off the case? Don't we have a right to have our cases heard only by a real judge if we want?

A cite would be great.

Thanks.


Asked on 10/10/05, 12:18 am

2 Answers from Attorneys
Carl Starrett Law Offices of Carl H. Starrett II

Re: Civil Restraining Order and Commissioner assigned to hear case

The first thing you need to determine is whether or not you have a judge that has been assigned for all purposes and then take a look at Code of Civil Procedure Section 170.6. A petitioner is allowed 1 peremptory challenge which can be filed up to 10 days after the suit is filed if you have a judge assigned for all purpose. If you DON'T have a judge assigned for all purposes, then you may have more time to fill out the necessary form which you can find at the following link:

http://www.lasuperiorcourt.org/forms/pdf/CIV015.pdf

Also, I believe you have the general right to object to having a commisioner hear this type if case. If the court asks if you will stipulate to the use of a commissioner, you can simply say no and the court will assign the matter to a judge.

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Answered on 10/10/05, 12:32 am
Robert F. Cohen Law Office of Robert F. Cohen

Re: Civil Restraining Order and Commissioner assigned to hear case

In following up to Mr. Starrett's comment, if you do not stipulate to the commissioner on the day of the hearing, be prepared to spend a few hours or days waiting for an open courtroom.

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Answered on 10/10/05, 2:24 am


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