International Jet Ski Boating Ass'n v. Superior Court

Opinion

WALLIN, J.

—Petitioner International Jet Ski Boating Association, Inc., seeks a writ of mandate to compel the Orange County Superior Court to vacate its order denying summary judgment and to reconsider the motion. At issue is the propriety of referring a summary judgment motion to a court commissioner, whose findings and report were then adopted by the judge.

I

The real party in interest, Tony Parker, sued petitioner for negligence for injuries he suffered in a jet ski race at Lake Mead. In December 1989, Commissioner Ronald Bauer heard the parties’ cross-motions for summary

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judgment or summary adjudication, sitting as a temporary judge by stipulation of the parties. The primary issue was the validity of a purported release from liability in favor of petitioner. Commissioner Bauer treated the motions as motions for judgment on the pleadings and granted judgment in favor of petitioner, while allowing the real party in interest leave to amend to assert a cause of action based on breach of contract. Thereafter, a first amended complaint was filed, alleging, inter alia, petitioner had failed to comply with its “contract” in sanctioning the race at which the real party in interest was injured.

Petitioner successfully demurred to two of the three causes of action alleged in the first amended complaint. That motion was also heard by Commissioner Bauer, again sitting as a temporary judge by stipulation of the parties. Petitioner then filed a motion for summary judgment on the breach of contract claim, the only surviving cause of action. That motion was also assigned to Commissioner Bauer, but petitioner refused to stipulate to him as a temporary judge.

The parties were directed to Department 1 of the Orange County Superior Court, Judge James L. Smith presiding. Judge Smith ordered the matter returned to Commissioner Bauer’s courtroom and directed the commissioner to make a report and recommendations under section 259 of the Code of Civil Procedure.

1

Petitioner’s counsel objected and explained her disagreement with the commissioner’s prior rulings. Counsel’s objections were overruled and the parties argued the motion before Commissioner Bauer. He later filed a written report with Judge Smith recommending the motion be denied. Petitioner did not file any exceptions to the report, as allowed by section 259, subdivision (b). Judge Smith “accepted, approved, and adopted” the commissioner’s report and denied the motion. The minute order also noted, however, the judge had considered the commissioner’s report, as well as the moving and opposition papers filed by counsel.