Tuesday, September 1, 2015
Appellate Panel Rejects Claim That Pro Per Litigant Impliedly Consented to Commissioner
By a MetNews Staff Writer
A self-represented litigant does not impliedly consent to having the case heard by a commissioner merely because there may be signs in the courtroom that purport to require parties to object if they do not wish the subordinate judicial officer to hear their case.
Div. Two yesterday certified for publication its Aug. 15 opinion throwing out a domestic violence restraining order obtained by Peter Daniel Michaels against Peggy Ann Turk, his former girlfriend and the mother of his 13-year-old son.
Michaels and Turk have been battling in the Orange and Riverside superior courts for years, over child custody, support, and other issues. Last month’s appellate ruling arose from Michaels’s request that Turk be barred from continuing to post negative comments about him online, such as those referring to him as a “dope,” a “deadbeat dad,” a “CONFICTED [sic] FELON,” and a “CON and a LIAR” whose business was a “SCAM.”
Although Turk denied that some of the posts were hers, Riverside Superior Court Commissioner Bradley O. Snell ruled that Michaels was entitled to the restraining order.
On appeal, Turk—represented by counsel, unlike at the hearing—argued that the order was void under the California Constitution because she never stipulated that Snell could hear the case.
Presiding Justice Manuel Ramirez, writing for the Court of Appeal, agreed.
Even if, as the plaintiff contended, there were signs in or outside the courtroom saying that parties had to object if they did not want to have a commissioner hear the case, consent could not be implied absent evidence Turk saw the signs, Ramirez said. He rejected the plaintiff’s argument that the burden was on the defendant to show that there were no such signs.
“While there are circumstances where consent may be implied from the actions of a party or her counsel, those actions must be apparent from the record,” the presiding justice wrote.
He went on to note that the Riverside court has a local rule stating that self-represented parties “will be asked on the record” whether they stipulate that a commissioner will hear their matters, and that there was nothing in the record showing that Turk was so asked.
The error requires reversal, contrary to the plaintiff’s argument that there was no prejudice because the local rule does not state a consequence if the commissioner proceeds in the absence of a stipulation.
The issue “is not one of adherence to local court rules, it is of adherence to the California Constitution,” Ramirez said, noting that cases have consistently held that an order made by a commissioner in the absence of a stipulation is void.
The case is Michaels v. Turk, 15 S.O.S. 4195.
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