Filed 8/5/15 Certified for Publication 8/31/15 (order attached)




           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                 FOURTH APPELLATE DISTRICT

                                              DIVISION TWO



PETER DANIEL MICHAELS,

         Plaintiff and Respondent,                                E060854

v.                                                                (Super.Ct.No. SWV1301018)

PEGGY ANN TURK,                                                   OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Bradley O. Snell,

Commissioner. Reversed.

         J. Scott Bennett for Plaintiff and Respondent.

         Reed Smith, Keith A. Meyer and Ilana R. Herscovitz for Defendant and Appellant.

         Defendant and appellant Peggy Ann Turk appeals from a domestic violence

restraining order issued against her under the Domestic Violence Prevention Act (Fam.

Code, § 6200 et seq.) by a commissioner of the Riverside County Superior Court. The

order prohibits appellant from posting negative and harassing communications online


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about her ex-boyfriend, plaintiff and respondent Peter Daniel Michaels. Appellant argues

that the order is void because as a self-represented party, she did not consent to having a

commissioner hear the matter. We agree.


                   FACTUAL AND PROCEDURAL BACKGROUND

       Plaintiff and defendant lived with each other from 2001 to 2006 and have one

child together, a son born in 2002. For nearly a decade, they have been litigating over

child custody, child support, and various restraining orders. Except for the restraining

order at issue here, all of the litigation has taken place in Orange County.1

       In 2006, the parties stipulated to joint legal custody over their son. In 2008, the

court issued mutual restraining orders prohibiting the parties from contacting each other

for five years, and defendant and plaintiff’s wife entered into a no-contact civil

harassment stipulation. Around that same time, the court awarded sole legal custody to

defendant as a result of a federal restraining order against plaintiff prohibiting him from

contacting their son. When the federal restraining order terminated in 2010, plaintiff

sought sole custody. After a six-day trial, the family court in Orange County issued an

order denying plaintiff’s change-in-custody request. Among the grounds for denial were

plaintiff’s three prior felony convictions and his history of committing child abuse and

neglect.

       1 We take the facts in the following brief background from the documents
attached to the parties’ filings in the current matter.



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       In December 2013, after the five-year mutual restraining orders had terminated,

plaintiff filed a request for a domestic violence restraining order against defendant in the

Riverside County Superior Court. Plaintiff argued that defendant was posting harassing

comments on the page dedicated to his company on a Web site known as “InvestorsHub”

or “iHub.” According to iHub’s terms of service, the Web site is designed to help users

make informed investment decisions by providing a public forum “to discuss financial-

related information, views, opinions, and the recommendations of individuals and

organizations.”2

       At the hearing on the restraining order, plaintiff presented various comments that

he alleged defendant had posted on iHub. Examples of these comments include:

“Personally I think [plaintiff] is a dope, a big fat dope”; “He is a deadbeat dad, he has

dozens of judgements [sic] against him and he practically lives in a courtroom”;

“[Plaintiff], as I have discovered through research… is a CONFICTED [sic] FELON (2

times), CON and a LIAR and a man that doesn’t support the children he has fathered . . .

unless forced to by the courts”; “[Plaintiff’s company] IS A SCAM . . . [Plaintiff] is a

lying dirt bag who is also a dead beat dad. What a loser!”

       Defendant, who represented herself at the hearing, argued that several of the posts

were not hers. The commissioner found that defendant had been posting comments about

       2 We granted defendant’s unopposed motion for judicial notice, which contained
iHub’s terms of service.



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plaintiff on iHub and that the comments were harassing to a degree “that . . . does rise to

a level that warrants issuing a restraining order.” The commissioner issued a domestic

violence restraining order that, among other stay-away conditions, prohibits defendant

from posting “negative [and] harassing communications about [plaintiff] on the internet”

for three years.

                                      DISCUSSION

       Defendant contends that the restraining order is void because she did not consent

to a commissioner presiding over the hearing. She is correct.

       The California Constitution provides that “[o]n stipulation of the parties litigant

the court may order a cause to be tried by a temporary judge.” (Cal. Const., art VI, § 21.)

Our state’s Supreme Court has interpreted this constitutional 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.” (People v. Tijerina (1969) 1 Cal.3d 41, 49

[reversing order revoking probation entered by commissioner]; accord Rooney v.

Vermont Investment Corp. (1973) 10 Cal.3d 351, 359-360 [commissioner did not have

power to act because no stipulation was “shown by the record”].)

       Following Tijerina and Rooney, California appellate courts have reversed and

voided actions taken by commissioners where no stipulation appeared on the record. In

Lovret v. Seyfarth (1972) 22 Cal.App.3d 841, a contractor petitioned the superior court to

confirm an arbitration award against his clients, a husband and wife. (Id. at pp. 846-848.)



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The petition was heard and ultimately granted by a commissioner. (Id. at pp. 848-850.)

The husband and wife appealed the judgment and the order affirming the arbitration

award on the ground that they had not consented to a commissioner hearing the matter.

(Id. at p. 852.) Although the Court of Appeal recognized that to hold the judgment and

order void would mean that “so much of the judicial and legal labors expended, together

with the time of the litigants and witnesses, must be discarded as vain and abortive

expenditures of time, effort, and money,” the court nevertheless held that the lack of oral

or written stipulation on the record rendered the commissioner’s actions void. (Id. at

pp. 852-853.)

       In In re Marriage of Galis (1983) 149 Cal.App.3d 147 (Galis) and In re Frye

(1983) 150 Cal.App.3d 407 (Frye), both decided in the same year, the Court of Appeal

voided a commissioner’s judgment in a contested marital dissolution proceeding and a

commissioner’s order of contempt for failure to make child support payments,

respectively. (Galis, at pp. 150, 155; Frye, at p. 409.) In so ruling, the court in Galis

explained that while it was mindful that commissioners are an “important tool in the

economical and expeditious administration of justice” and are so widely used that

stipulation is usually a “mere formality,” it would nevertheless be unlawful to “force an

unwilling litigant to try his or her case before someone other than a judge.” (Galis, at

p. 154.)




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       A decade later, in In re Steven A. (1993) 15 Cal.App.4th 754, the Fourth District

Court of Appeal held that a commissioner’s order terminating family reunification

services was void. (Id. at p. 772.) In that case, the father had signed a stipulation

allowing a temporary judge to hear “ ‘the within [dependency] action . . . until the final

determination thereof.’ ” (Id. at p. 767.) The stipulation also stated that the

commissioner could hear “ ‘any new proceedings,’ ” but “ ‘without prejudice’ ” to a party

who sought to withdraw “ ‘the continuing authority contained [in the stipulation].’ ”

(Ibid.) After the jurisdictional hearing, but before dispositional hearing, the father

attempted to withdraw the stipulation. (Ibid.) The commissioner refused the request and

continued to preside over the matter. (Ibid.) At the permanency planning hearing, the

commissioner issued an order terminating family reunification services. (Id. at p. 762.)

       On appeal, the father challenged the commissioner’s authority to issue the order.

(In re Steven A., supra, 15 Cal.App.4th at p. 770.) The court stated that the stipulation

was “analogous to a contract between the litigants and the court,” and it interpreted the

phrase “the within action” to mean up to the dispositional hearing. (Id. at pp. 770-771.)

It further interpreted that the permanency planning hearing was a “ ‘new proceedings’ ”

under the terms of the stipulation, and thus required new consent. (Id. at pp. 771-772.)

Because the father had attempted to withdraw the stipulation, the court held that there

was no consent and the order was therefore void. (Id. at p. 772.)




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       Here, there is no indication in the record that defendant consented to the

commissioner presiding over the hearing on plaintiff’s request for a restraining order.

Plaintiff argues that defendant impliedly consented to the commissioner presiding over

the restraining order hearing. He asserts that it is common practice for courts to post

notices, which state that where parties do not object, they will be deemed to have

stipulated to the authority of the commissioner. He also asserts that it is the defendant’s

burden to establish such signs were not posted on the day of the hearing, and that she

failed to carry this burden because she relied “only [on] the written record.”

       Plaintiff’s argument was rejected in Frye, where the court held that a stipulation,

even one that is constructive in the sense of parties proceeding with actual notice of a

posted sign, must be apparent on the record. (Frye, supra, 150 Cal.App.3d at p. 409.)

Because there was “no . . . indication in the record” that the appellant had seen a

stipulation sign before or during the hearing over which the commissioner presided, the

court held that the commissioner’s order was void. (Ibid.) That is also the case here.

Whether or not stipulation signs were posted in or outside of the courtroom the day of the

hearing, there is no indication in the record that defendant saw them. 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. (See e.g., In re Horton (1991) 54 Cal.3d

82, 91-93 [discussing cases where the “doctrine of tantamount stipulation” was applied

based on statements or conduct apparent in the record].)



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       Moreover, Riverside County’s local rule on stipulations to commissioners hearing

matters as temporary judges further precludes plaintiff’s argument for implied consent.

That rule states 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.)

Defendant was representing herself at the hearing, and there is no indication in the record

that she was asked to stipulate to the commissioner hearing the matter.

       Plaintiff urges us to treat the lack of actual or implied consent as harmless error.

He argues that “[a]ll courts regularly and consistently waive provisions of both Local

Rules and the Rules of Court” and that “[t]here is no statutory procedure or consequence

for such waiver.” But the issue here is not one of adherence to local court rules, it is of

adherence to the California Constitution. The California Supreme Court was clear in

setting forth the consequences for lack of consent, and our appellate courts have been

consistent in applying those consequences. We will not stray from that precedent and

therefore we hold that the restraining order is void.

       Finally, because we agree with defendant’s first contention, we do not address her

remaining arguments on the merits of the restraining order.




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                                       DISPOSITION

       The restraining order is reversed.

       In the interests of justice, the parties shall bear their own costs.




                                                                  RAMIREZ
                                                                              P. J.


We concur:


KING
                           J.


MILLER
                           J.




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Filed 8/31/15

                          CERTIFIED FOR PUBLICATION

          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                          FOURTH APPELLATE DISTRICT

                                    DIVISION TWO



PETER DANIEL MICHAELS,

        Plaintiff and Respondent,                   E060854

v.                                                  (Super.Ct.No. SWV1301018)

PEGGY ANN TURK,                                     ORDER CERTIFYING OPINION
                                                    FOR PUBLICATION
        Defendant and Appellant.



THE COURT

       A request having been made to this court pursuant to California Rules of Court,
rule 8.1120(a) for publication of a nonpublished opinion heretofore filed in the above
matter on August 5, 2015, and it appearing that the opinion meets the standards for
publication as specified in California Rules of Court, rule 8.1105(b),

       IT IS SO ORDERED that said opinion be certified for publication pursuant to
California Rules of Court, rule 8.1105(b).

                                                              RAMIREZ
                                                                                     P. J.

I concur:

KING
                          J.


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