Sarracino v. Superior Court

• Decision Date: 03 December 1974
• Citation: 13 Cal.3d 1,529 P.2d 53,118 Cal.Rptr. 21
• Court: California Supreme Court
• Parties: , 529 P.2d 53 Ernest James SARRACINO, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; Dorothy Darlington Sarracino et al., Real Parties in Interest. L.A. 30309. In Bank

Page 21

118 Cal.Rptr. 21

13 Cal.3d 1, 529 P.2d 53

Ernest James SARRACINO, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent Dorothy Darlington Sarracino et al., Real Parties in Interest.

L.A. 30309.

Supreme Court of California,

In Bank.

Dec. 3, 1974.

Rehearing Denied Jan. 8, 1975.

Huston T. Carlyle, Glendale, for petitioner.

John H. Larson, County Counsel, and Robert C. Lynch, Asst. County Counsel, Los Angeles, for respondent.

A. Tod Hindin and Hindin & McKay, Beverly Hills, for real parties in interest.

WRIGHT, Chief Justice.

Petitioner Ernest James Sarracino seeks a writ of mandate to compel vacation of orders rendered against him by a superior court commissioner presiding as temporary judge at a consolidated hearing on applications for temporary support and related relief in (1) a proceeding for dissolution of marriage brought by petitioner's wife, Dorothy Sarracino, and (2) an action for support brought by petitioner's adult daughter, Jane Sarracino, by her guardian ad litem, Dorothy Sarracino. Having failed to appear at the hearing, petitioner challenges the commissioner's power to act as temporary judge on the ground that the required 'stipulation of the parties litigant' (Cal.Const. art. VI, § 21) was signed only by the wife and guardian ad litem. Petitioner also questions the authority of the guardian ad litem to act in the absence of any adjudication of the daughter's incompetency apart from the order granting the guardian ad litem's ex parte petition for appointment under Code of Civil Procedure sections 372 and 373, subdivision 3.

On November 24, 1972, petitioner was personally served in both the dissolution proceeding and the support action with summonses, initial pleadings, and notices of a hearing to be held on December 4, 1972, on the wife's and daughter's respective applications for temporary support. Petitioner did not appear at the hearing, which proceeded before the commissioner on the date stated in the notices. Stipulations for the appointment of the commissioner as temporary judge in each matter were signed by Dorothy Sarracino and her counsel; she was sworn and testified; and the commissioner rendered the orders now before us. ¹ Thereafter petitioner appeared by filing responsive pleadings in both matters and moved to vacate the orders. ² These motions were denied by a judge of respondent court. ³ An alternative writ of mandate issued requiring the granting of the motions to vacate unless good cause is shown to the contrary. ⁴

Petitioner challenges the respondent's court's jurisdiction to make the temporary support orders on two grounds: (1) that the stipulation was ineffective to empower the commissioner to act as temporary judge in either matter because it was not signed by petitioner, who claims to have been a party litigant (Cal.Const., art. VI, § 21) at the time of the hearing because his time to file a pleading after service of summons had not yet expired; and (2) that the order appointing Dorothy Sarracino as Jane Sarracino's guardian ad litem was void because of an alleged lack of adjudication of Jane's incompetency. For reasons which follow we conclude that neither objection is valid.

Sufficiency of Stipulation to Authorize Commission to Act as Temporary Judge

Court commissioners are appointed under the authority of section 22 of article VI of the California Constitution which permits the Legislature to provide for the appointment by trial courts of record of commissioners 'to perform subordinate judicial duties.' However, a major part of the assistance which commissioners give to the courts is rendered not in performing subordinate judicial duties under article VI, section 22 but in presiding as temporary judges under the distinct provisions of section 21 of article VI. (See Rooney v. Vermont Investment Corp. (1973) 10 Cal.3d 351, 365, fn. 11, 110 Cal.Rptr. 353, 515 P.2d 297; People v. Oaxaca (1974) 39 Cal.App.3d 153, 165, 114 Cal.Rptr. 178.) Section 21 states: '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.' (Italics added.) The statutory power of a commissioner '(t)o act as judge pro tempore when otherwise qualified so to act and when appointed for that purpose' (Code Civ.Proc., § 259a, subd. 4) is subject to this constitutional provision, and accordingly a commissioner cannot act as a temporary judge except 'on stipulation of the parties litigant.' (People v. Tijerina (1969) 1 Cal.3d 41, 48--49, 81 Cal.Rptr. 264, 268, 459 P.2d 680, 684.)

Petitioner concedes that the commissioner who made the temporary support orders was a duly qualified appointee of respondent court. Furthermore, petitioner does not question that the stipulations under which the commissioner purported to act were sufficient in Form for that purpose but contends that they were ineffective because they were signed only by petitioner's adversary and her counsel and not by petitioner or his counsel. We are thus faced with the question whether petitioner was a 'party litigant' within the meaning of article VI, section 21, at the time of the hearing of December 4, 1972.

Section 21 was adopted in 1966 in place of former article VI section 5, paragraph 3, which similarly authorized appointment of temporary judges (then referred to as judges pro tempore) to try causes in the superior and municipal courts on 'stipulation of the parties litigant.' Referring to the former provision, this court said in Estate of Kent (1936) 6 Cal.2d 154, 57 P.2d 901: "Under the customary rules of constitutional interpretation each word should be given some value. In the constitutional provision the word 'litigant' qualifies the word 'parties,' and the two words must be given some value beyond the one word 'parties.' Obviously The phrase 'parties litigant' means the parties who are taking part in the litigation--those who have appeared therein. There are many causes of law and in equity where the rights of parties are determined although the parties themselves do not conduct the litigation. These actions, where contested, proceed under the direction of parties to the controversy who have appeared--who are 'parties litigant.' At the same time the proceeding determines the rights of other parties in interest but not litigant. Among such cases are receiverships, representative suits, actions by and against trustees, and, assuming that nonappearing heirs and devisees and creditors are parties, then the several proceedings in probate." (Id., at p. 162, 57 P.2d at p. 906, italics added.)

The Kent decision upheld the authority of a commissioner to hear a probate matter as a judge pro tempore on the stipulation of all the parties Who had appeared in the proceeding but without the stipulation of the heirs, devisees, and creditors of the estate who had not appeared. Although the facts of Kent suggest considerations peculiar to in rem proceedings (see Lilienkamp v. Superior Court (1939) 14 Cal.2d 293, 93 P.2d 1008), its reasoning has been applied to deny 'litigant' status under the former constitutional provision to a person named as a party in the pleadings and served with process. In Barfield v. Superior Court (1963) 216 Cal.App.2d 476, 31 Cal.Rptr. 30, a commissioner sitting as judge pro tempore rendered an interlocutory judgment of divorce against a defendant whose default had been duly entered. The appellate court held that the defendant was not a 'party litigant' and therefore a stipulation signed by the plaintiff alone was constitutionally sufficient to empower the commissioner to act. ⁵

The Kent and Barfield decisions construing the phrase 'parties litigant' in the former constitutional provision assume added importance in the light of circumstances surrounding the adoption of the provision now before us, article VI, section 21. The new section was originally drafted by the California Constitution Revision Commission as part of a general revision of article VI. The initial draft would have required only a stipulation of the 'parties' for the appointment of a temporary judge, omitting the word 'litigant.' (Proposed Revision (1966), Cal.Const. Revision Com., p. 98.) 'The Legislature restored the terminology 'parties litigant's as it appeared in the former constitutional provision instead of the unmodified term 'parties' in referring to the persons from whom a stipulation is required. This preserves intact the preexisting law.' (Judicial Council of Cal., Annual Rep. (1967) p. 90.) The adoption of constitutional language similar to that in a former constitutional provision is presumed to incorporate authoritative judicial construction of the former language. (In re Lavine (1935) 2 Cal.2d 324, 331, 41 P.2d 161; People v. District Court of Appeal (1924) 193 Cal. 19, 222 P. 353; People v. Pacific Gas & Elec. Co. (1914) 168 Cal. 496, 499, 143 P. 727.) This presumption carries even greater weight when as here the Legislature has amended an initial draft for the apparent express purpose of preserving the pre-existing language.

Petitioner claims he was a party litigant at the time of the hearing of December 4, 1972, because his time to file a responsive pleading in the dissolution proceeding and in the action for adult child support had not yet expired. He was served on November 24, 1972, with an initial pleading and summons in each of the two proceedings. Each summons clearly notified him that he had 30 days after service in which to file a responsive pleading (Code Civ.Proc., § 412.20, subd. (a)(3)), and therefore his time to plead in each proceeding could not expire before December 26, 1972 (Code Civ.Proc., §§ 12a, 418.10, subd. (d)). However, his good standing with respect to the pleadings did not cure his default in failing to make a timely response to the order to show cause and notice of motion which were served on him at the same time as the...