In Re Plotkin

California Court of Appeal Jan 29, 1976 No. Civ. 46911Published

Before: Roth

AI Brief

AI-generated · verify before citing

Holding. A court commissioner lacks jurisdiction to act as a temporary judge in a contempt proceeding unless all parties litigant, including the person subject to the contempt order, stipulate to the commissioner's authority. Because the petitioner did not stipulate to the commissioner's authority, the resulting contempt orders were null and void.

Issues

Whether a court commissioner was properly appointed to hear an order to show cause proceeding.
Whether a commissioner exceeded his jurisdiction in ruling on a contempt matter without the petitioner's stipulation.

Disposition. annulled

Quotations verified verbatim against the opinion

“Before a commissioner may act as a judge the parties litigant must so stipulate.”

“Since petitioner was not a party to the stipulation at either hearing, that on May 19th or the one on July 9th, the commissioner’s acts were null and void by virtue of article VI section 21.”

“the commissioner’s acts were null and void by virtue of article VI section 21.”

Opinion

ROTH, P. J.

In this habeas corpus proceeding we are called upon to decide whether a commissioner was properly appointed to hear an order to show cause proceeding, and if so whether he exceeded his jurisdiction in ruling on the contempt which resulted.

Petitioner, Sheldon C. Plotkin, was retained as an expert witness by attorneys for the plaintiff in a cause of action against Datsun Motor Company. No fee was agreed upon and thereafter a dispute arose with

[1016]

respect thereto and as a consequence petitioner refused to give his deposition. Thereafter petitioner responded to an order to show cause on May 19, 1975, before Commissioner Levin, acting as a judge pro tem., pursuant to the application of Datsun and on that date petitioner was ordered to appear and testify on June 26th, 1975. The order also specified that if Datsun and petitioner could not agree on a fee prior to June 26th, petitioner could apply for expert witness fees pursuant to section 68092.5 of the Government Code. The order to show cause was then continued to July 9,- 1975. \\At the hearing held on May 19, 1975, petitioner was, as noted above, personally present but he was not represented by counsel and only counsel for Datsun stipulated that Commissioner Levin could act as a judge pro tem.

On June 3, 1975, petitioner wrote to plaintiff’s attorney, with a copy to the attorneys for Datsun in which he notified the parties that he would not appear for the deposition on June 26, 1975, nor would he appear in court on July 9, 1975, stating further that he was withdrawing from the case due to the fact that he was being forced to testify for an unfixed fee.

Petitioner did not appear for the deposition hearing on June 26th, nor did he appear in court on July 9. On July 9th a stipulation was entered into by respective counsel for plaintiff and Datsun authorizing Commissioner Levin to hear the evidence in respect of petitioner’s failure to comply with the order of May 19th and take appropriate action. Petitioner was not present. The court having heard the evidence found petitioner in contempt and sentenced him to serve five days in jail; sentence was suspended and petitioner was placed on summary probation on condition that he pay the sum of $500 to counsel for Datsun.

In Re Plotkin

AI Brief

ROTH, P. J.

More from California Court of Appeal

Related research

AI Brief