Foosadas v. Superior Court

Opinion

BLEASE, Acting P. J. This case presents an important question concerning the right of a litigant to the performance of a judicial function by a judicial officer.

The defendant was denied a preliminary hearing before a judge on the ground that he impliedly stipulated to the service of a temporary judge in lieu of a judge in any proceeding in the case because he failed to file “an oral or written objection ... in open court prior to the commencement of the first hearing on the matter.” He filed a writ petition in this court seeking to set aside an order issued pursuant to the rule and to set a preliminary hearing before a judicial officer.

We issued a Palma letter to consider the validity of the rule. (See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171 [203 Cal.Rptr. 626, 681 P.2d 893].) The real party in interest, represented by the Attorney General, conceded the rule was in error in its response on the merits but argued that since the commissioner before whom the preliminary hearing was to be held (Commissioner Kronlund) has been appointed to the superior court, any relief granted would “necessarily address a hypothetical situation.”1 We disagree. The issue on appeal does not turn on a specific individual but on the rule by which the stipulation is implied. The issue is not moot and we will consider the validity of the rule.

A subordinate judicial officer may serve as a temporary judge only upon the stipulation of the parties litigant. (Cal. Const., art. VI, § 21; Code Civ. Proc., § 259, subd. (d).) This requires an express or implied stipulation that the particular proceeding may be conducted by a temporary judge.

We will issue a peremptory writ of mandate directing respondent superior court to vacate its order of March 22, 2005, disallowing defendant’s refusal [653]to stipulate to the conduct of a preliminary hearing by a court commissioner and directing that a preliminary hearing be held before a judge.

FACTS AND PROCEDURE

Defendant was arraigned on a felony complaint charging him with failing to stop at the scene of an accident involving injury to a person. (Veh. Code, § 20001, subd. (b)(2).) Following a series of appearances at the Tracy branch of the San Joaquin County Superior Court for arraignment and prepreliminary hearing conferences variously conducted by judges, retired judges, and by Commissioner Kronlund, not acting as a temporary judge, a preliminary hearing was set before Commissioner Kronlund.