Rochefort v. Chandler CA4/3

Filed 3/27/14 Rochefort v. Chandler CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

LINDY ROCHEFORT,

Plaintiff and Appellant, G048006

v. (Super. Ct. No. 30-2012-00598194)

JEREMY CHANDLER, OPINION

Defendant and Respondent.

Appeal from a judgment of the Superior Court of Orange County, Jane D. Myers, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Motion for sanctions. Judgment reversed. Motion denied. Lindy Rochefort, in pro. per., for Plaintiff and Appellant. Michael Creamer for Defendant and Respondent.

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On September 14, 2012 plaintiff Lindy Rochefort filed a request for a civil harassment restraining order against defendant Jeremy Chandler. Plaintiff was the daughter and defendant was the grandson of Theresa Rochefort. Plaintiff claimed that two weeks prior, defendant had illegally entered her mother’s apartment and taken her backpack containing documents and $300. Plaintiff also alleged defendant “physically pulled [her] to the ground.” Judge Robert Gallivan issued a temporary restraining order (TRO). Defendant answered, filing a declaration in which he denied plaintiff’s allegations. After one continuance at defendant’s request, where the TRO was reissued, the case was assigned to Commissioner Jane D. Myers. Commissioner Myers granted a continuance at plaintiff’s request, specifically ruling, with plaintiff’s consent, she would not reissue the TRO. Subsequently the matter was tried. After receipt of plaintiff’s and defendant’s declarations, testimony, and argument, the court ruled there was no clear and convincing evidence defendant had harassed plaintiff. It awarded defendant $2,000 in attorney fees. The court denied plaintiff’s subsequent motion to vacate the judgment filed pursuant to Code of Civil Procedure section 473. Plaintiff does not appeal the denial of the restraining order. Instead, she challenges only the award of attorney fees. She argues the judgment should be reversed because she was not told she had the right to have a judge try the matter and did not stipulate to a commissioner hearing the matter. We agree the judgment must be reversed. Under Code of Civil Procedure section 259, subdivision (d), a commissioner may sit as a temporary judge “when otherwise qualified so to act and when appointed for that purpose, on stipulation of the parties litigant.” (Accord, Cal. Const., art VI, § 21 [“On stipulation of the parties litigant the court may order a cause to be tried by a temporary judge”].) “The jurisdiction of a court commissioner . . . to try a cause