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Lack of Stipulation to Commissioner Presiding Requires Voiding of DVRO, C.A. Holds
By a MetNews Staff Writer
The Third District Court of Appeal has held that where the parties did not sign a stipulation consenting to a court commissioner presiding in a matter, and nothing in the record reflects consent-by-conduct, an order she issued is void.
Presiding Justice Laurie M. Earl wrote the opinion, filed Wednesday and not certified for publication. It reverses a Dec. 2, 2022 domestic violence restraining order (“DVRO”) that Lassen Superior Court Commissioner Susan A. Rados purported to impose on plaintiff Chelsea Rossheim’s ex-husband, Matthew Rossheim, an associate professor.
Hearings were conducted by Rados on Nov, 8 and 10, 2022. It was not until she issued her order that any document reflected her status as a subordinate judicial officer.
Oral Consent Alleged
On Dec. 22, Matthew Rossheim moved for an order to set aside the DVRO on the ground that, absent a stipulation, Rados had no authority to issue it. In her opposition, Chelsea Rossheim insisted:
“Commissioner Rados consistently presents her disclosure as a Commissioner as she takes the bench. This case is no exception. The disclosure was given upon Commissioner Rados taking the bench on November 8, 2022, in this matter. The Parties and Attorneys orally agreed to have her hear the matter.”
Rados on Jan. 11 acted on the motion to vacate the DVRO. The ex-wife stipulated to her presiding; the former husband did not.
She denied the motion and Matthew Rossheim appealed from the Dec. 2 order.
Earl’s Opinion
In her opinion reversing the DVRO, Earl cited Art. VI, §21 of the California Constitution, which 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.”
She also pointed to Code of Civil Procedure §259 which says that a court commissioner may, among other things, “[a]ct as temporary judge when otherwise qualified so to act and when appointed for that purpose, on stipulation of the parties litigant….”
The presiding justice said:
“[W]e see no indication in the record that appellant consented to Commissioner Rados presiding over the hearing on respondent’s request for a restraining order.”
She noted that Chelsea Rossheim “offered no evidence in the trial court of any stipulation—express or implied —and has not filed a brief in this appeal,” adding:
“Nor did Commissioner Rados provide a basis for denying appellant’s motion to vacate the restraining order. Because we see no evidence that Commissioner Rados was constitutionally authorized to try the case, we conclude her order was void.”
Issuance of Remittitur
Earl declared:
“Because the parties are involved in ongoing child custody proceedings that may be affected by this decision, we invite the parties to stipulate to the immediate issuance of the remittitur….”
Although the docket does not reflect the receipt of such stipulations, the remittitur was issued on Wednesday.
Earl noted in her opinion on Wednesday that the DVRO “would expire one year later, on December 2, 2023” but did not address the matter of mootness.
A hearing on Chelsea Rossheim’s application for a renewal of the DVRO is scheduled for a hearing on Jan. 18 before retired Mendocino Superior Court Judge Leonard J. LaCasse, sitting on assignment.
The case is C.R. v. M.R., C097930.
Copyright 2023, Metropolitan News Company