Tantamount to Proceeding Without Consent

McClintock v. Djulus, No. D049757 (D4d1 Apr. 14, 2017)

A divorce case gets assigned to a commissioner. Wife, who is represented, signs the consent form but Husband, who is pro per, did not. Indeed, the record doesn’t reflect that at the original hearing Husband was ever given the form or even informed that the “judge” to whom the case was assigned was actually a commissioner. The commissioner made several rulings at that hearing. At a later hearing, after being informed that the presiding officer was a commissioner, Husband objected to proceeding before her. But the commissioner ruled that Husband’s participation in the prior hearing was a “tantamount stipulation” to her presiding over the case.

That was a mistake. A stipulation to a commissioner doesn’t need to be formal or in writing. And indeed, it can sometimes be implied from the fact of actively litigating before a commissioner after the party becomes aware that the presiding officer is not, in fact, a full-blown superior court judge. But that rule can’t apply if a party did not actually know that the “judge” is just a commissioner. And the record here shows that Husband did not. 

So it was error to find that husband had engaged in a tantamount stipulation by participating in the prior hearing. And indeed, that error required vacation of all of the commissioner’s orders since she had no authority to act.

Reversed.

Be Careful what You Stip to ...

Needelman v. Dewolf Realty Co., Inc., No. A141306 (D1d3 Aug. 18, 2015)

To buy some time in his apartment, Plaintiff settled an unlawful detainer case with his Landlord by entering a stipulated judgment. The judgment let him stay in the apartment, rent free, for several additional months, conditioned on his abiding by the building’s house rules. The judgment further provided that, if the landlord received a verified complaint that Plaintiff broke the rules, the landlord could enforce an unlawful detainer through ex parte application and kick him out, that any property left behind would be deemed abandoned, and that plaintiff waived any action for wrongful eviction arising out of the tenancy. When, two months later, fellow tenants complained that Plaintiff appeared naked, banging on his door, at 4 am, Landlord did just that.

Stipulation Beats Five-Year Rule

Munoz v. City of Tracy, C075955 (Jun. 30, 2015)

This case got dismissed under Code of Civil Procedure §§ 583.310 and 583.630 for plaintiff’s failure to bring it to trial within five years. But two months before the five years had run, with a scheduled trial date only a month away, the parties jointly stipulated to continue the trial for six months, so that plaintiff’s newly hired trial attorney could get up to speed. The stip didn’t mention the five-year rule. Soon after the five years had run—and during the continuance to which Defendant had stipulated—Defendant moved to dismiss under §§ 583.310 and 583.360(a). The trial court held that the stip didn’t prevent dismissal, because it did not contain an express waiver of the five-year rule. It dismissed the case with prejudice.

If it seems unfair that a defendant can rock a plaintiff to sleep by stipulating to extend the trial date past the five-year window, and then jack him up with a motion to dismiss as soon as the five years run, that’s because it is. So the court of appeal reverses. Section 583.330 says that the five-year period can be extended by stipulation. It mentions no formalities. That is bolstered by § 583.130, which adopts a policy that the parties stipulations and agreements about the progress of a case are generally preferred over the statutory policy requiring trial within five years. The court finds further support in Miller & Lux. Inc. v. Superior Court, 192 Cal. 333, 337–38 (1923), a ninety-two year old California Supreme Court opinion. There, interpreting a prior version of the statute, the court noted that the five year window could be tolled by a stipulation that either expressly stopped the clock or extended the trial date beyond the five year window. Since the defendant took the second option, the dismissal was improper.

Reversed.