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Michaels v. Turk summary


Michaels v. Turk summary.  Opinion published August 31, 2015.


Factual Background

Parties Boyfriend and Girlfriend lived with each other for five years until 2006.  The parties had one son together.  In 2008, the court issued mutual restraining orders prohibiting the parties from contacting each other for five years.  The five-year mutual restraining order terminated in 2013.  Boyfriend then filed a request for a DVRO against Girlfriend.  He argued Girlfriend was posting harassing comments on his website and presented several examples. 


Trial Court’s Decision

The commissioner found Girlfriend made the comments.  The commissioner granted a DVRO and prohibited Girlfriend from making similar comments in the future.  Girlfriend appealed and argued she did not consent to a commissioner presiding over the hearing.  She claimed the order was void.


Decision on Appeal

The Court of Appeal agreed the restraining order was void.  The California Constitution governed the use of commissioners and that “on stipulation . . .the court may order a cause to be tried by a temporary judge.”   The Appellate Court noted the California Supreme Court interpreted the “provision to mean that in the absence of a stipulation a commissioner is not qualified to act, and any ruling the commissioner makes ‘must be reversed.’ ” 


Six later appellate decisions followed the same rule as set out by the California Supreme Court.  In a marriage arbitration case also decided by a commissioner without a stipulation, the court recognized the rule lead to a waste in time, money, and effort.  However, the lack of a stipulation nevertheless tied the court’s hands and dictated the arbitration was void.  That case plus the other authorities moved the Appellate Court’s hands here as well.  Girlfriend did not stipulate to the commissioner.  The DVRO was void.  Moreover, there was nothing upon the record to show Girlfriend’s implied consent.




The appellate court found there was no implied consent in here.  However practitioners should exercise caution.  That there was no implied consent in this case was the result of the specific fact Girlfriend was pro per.  Implied consent occurs when “parties . . . by their conduct, impliedly stipulate that a commissioner may act as a temporary judge in a specific proceeding. [Citations.]”  (Courtney H., supra, 38 Cal .App.4th at p. 1227.)  The California Supreme Court has ratified the doctrine of “tantamount stipulation,” by which “a valid stipulation for purpose of the constitutional provision may arise as a result of the conduct of the parties. . . .  [C]onduct short of an express oral or written stipulation may be tantamount to a stipulation that a court commissioner may sit as a temporary judge. [Citations.]”  (Horton, supra, 54 Cal.3d at p. 91, italics in original.)  


“An implied stipulation, also called a de facto or tantamount stipulation, may be made if the hearing involves the performance of judicial function, e.g., a trial, sentencing, or preliminary hearing, and the party affirmatively participates in the proceeding and fails to object to the conduct of the proceeding by a commissioner until after it is completed.”  (Foosadas v. Superior Court (2005) 130 Cal.App.4th 649, 655, citing Horton, supra, 54 Cal.3d at p. 91.)  “Under the ‘tantamount stipulation’ doctrine, the parties confer judicial power not because they thought in those terms; had they done so, the stipulation presumably would be express.  Rather, an implied stipulation arises from the parties' common intent that the subordinate officer hearing their case do things which, in fact, can only be done by a judge.”  (In re Mark L. (1983) 34 Cal.3d 171, 179, fn. 6, italics in original.)


Here, Riverside County’s local rule on stipulations foreclosed Boyfriend’s implied consent argument.  That rule stated that while stipulation is implied in default and uncontested matters and “when attorneys proceed without objection,” self-represented parties “will be asked on the record if they so stipulate.”  (Super. Ct. Riverside County, Local Rules, rule 5145.)  Girlfriend represented herself at the hearing, and there was no indication in the record that she was asked to stipulate to the commissioner hearing the matter.  Thus the implied consent doctrine was not applicable.


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