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  1. #1
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    Default When Can You Refuse to Stipulate to a Commissioner in Small Claims Court

    My question involves court procedures for the state of: California

    I went to Small Claims (in San Diego County) court today to observe and (to my astonishment) a litigant wanted to object to the presiding judge; however, this wasn't a Judge, it's a commissioner. The form the bailiff handed the litigant was form CCP 170.6. Doesn't said litigant simply need to refuse to stipulate to the use of a commissioner and save that one usage of CCP 170.6 just in case said litigant REALLY does have a problem with the assigned Judge? Not only that, they (the Bailiffs) stated they would try to find "someone to take the assignment". Wouldn't you want to know ahead of time what Judge does get assigned and therefore reserve usage of CCP 170.6? Can I refuse to stipulate to a commissioner BEFORE I go to my assigned court date/time, so I can see who (what Judge) gets assigned the case?

    This is directly applicable to me because I intend to refuse to stipulate to a commissioner. Principally because I believe the matter has possible criminal components and a commissioner has a limited scope of authority and likely can't/won't refer this case for anything criminal because he/she lacks the authority to do so.

  2. #2
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    Default Re: Ccp 170.6 or Refusal of Stipulation

    Civil court judges (or commissioners or whatever) have no obligation (at any level) to refer a case for criminal prosecution. If you think somebody committed a crime against you, report it to the police and provide evidence of the criminal act. Don't expect anybody else to do it for you.

    Besides, CCP 170.6 is not a form it's a section of the CA Code of Civil Procedure that addresses disqualification of judges:

    http://leginfo.legislature.ca.gov/fa...er=3.&article=

  3. #3
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    Default Re: Ccp 170.6 or Refusal of Stipulation

    Understood, however that doesn't really address the core issue I have in that I want to reserve the utilization of CCP 170.6 and simply reject the stipend acquiescing to the use of a commissioner/judge pro tem. I understand it's a code of procedure, but the Bailiffs in question simply hand litigants who do not want to use the commissioner a pre-populated form that the litigant completes and returns to the Bailiff, that's their version of rejecting the stipend I suppose.

    http://www.sdcourt.ca.gov/pls/portal...RMS/CIV249.PDF

    The form in question is sdsc civ-249.

    The rules in question are California Rules of Court, Rule 10.700(b) as it pertains to the scope of authority for a commissioner or judge pro tem.

  4. #4
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    Sep 2010
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    Default Re: Ccp 170.6 or Refusal of Stipulation

    Stipend isn't the word you want. Anyhow you don't have to do anything to "reserve" the use of 170.6. You either use it in the time frame permitted. There's nothing you need do to make that declaration within the allowed time and there's nothing you can do that allows you to hold off making it beyond the specified time. Either you have cause to ask the judge to recuse or you don't. You don't get to hold it in your pocket and spring it later if you don't like what's going on.

  5. #5
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    Default Re: Ccp 170.6 or Refusal of Stipulation

    Quote Quoting vulgartech
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    The form the bailiff handed the litigant was form CCP 170.6.
    No it wasn't. "CCP 170.6" refers to section 170.6 of the Code of Civil Procedure. CCP 170.6 is a law that allows a party to a lawsuit to have the case reassigned to a different judicial officer based on alleged prejudice or bias but without having to produce any evidence of such. It has nothing to do with the parties consenting to a commissioner hearing the case.


    Quote Quoting vulgartech
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    Doesn't said litigant simply need to refuse to stipulate to the use of a commissioner and save that one usage of CCP 170.6 just in case said litigant REALLY does have a problem with the assigned Judge?
    If you're asking whether a party may refuse to stipulate to a commissioner and then use CCP 170.6 to challenge the judge, the answer is yes.


    Quote Quoting vulgartech
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    Wouldn't you want to know ahead of time what Judge does get assigned and therefore reserve usage of CCP 170.6?
    In small claims court, it likely matters little or not at all, but I suppose it might matter in some circumstances.


    Quote Quoting vulgartech
    View Post
    This is directly applicable to me because I intend to refuse to stipulate to a commissioner. Principally because I believe the matter has possible criminal components and a commissioner has a limited scope of authority and likely can't/won't refer this case for anything criminal because he/she lacks the authority to do so.
    A commissioner certainly can refer a matter for criminal prosecution, but judicial officers rarely do so. If you want something investigated by the police or the district attorney, contact them.

    Quote Quoting vulgartech
    View Post
    The form in question is sdsc civ-249.
    Parties consenting to a commissioner hearing a case need to sign a consent form. No form is needed to decline to stipulate to the use of a commissioner.


    Quote Quoting vulgartech
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    The rules in question are California Rules of Court, Rule 10.700(b) as it pertains to the scope of authority for a commissioner or judge pro tem.
    CRC 10.700(b) says, "The primary role of subordinate judicial officers is to perform subordinate judicial duties. However, a presiding judge may assign a subordinate judicial officer to sit as a temporary judge where lawful, if the presiding judge determines that, because of a shortage of judges, it is necessary for the effective administration of justice." That has nothing at all to do with a commissioner's ability or lack thereof to refer a matter to the district attorney for possible criminal action.

  6. #6
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    Default Re: Ccp 170.6 or Refusal of Stipulation

    Quote Quoting vulgartech
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    Understood, however that doesn't really address the core issue I have
    What, exactly, is that core issue?

    What's so special about your small claim that you think a commissioner isn't qualified to handle it?

    After all, it's "small" claims court: cheap, informal, relaxed rules, designed for simple monetary cases.

  7. #7
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    Jun 2018
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    Default Re: Ccp 170.6 or Refusal of Stipulation

    The core issue pertains to whether or not the utilization of CCP 170.6 is REQUIRED, versus simply refusing to stipulate to the use of a commissioner or judge pro tem. Whether or not a judge hears the case or an appointed commissioner/judge pro tem hears the case has zero bearing on Small Claims, it's still Small Claims and the same rules apply. Meaning, the use of a commissioner/judge pro tem is a tactic used to relieve the court of the need to have a judge hear each and every case, hence the need for a stipulation to even exist.

    Every case is special, irregardless of where it takes place, my case took over a year to get filed, 4 months to get scheduled and theres been a 4 month continuance filed, special or not I would prefer that a judge with all the authority afforded a judge hear my case, as is my right, after over 20 months of waiting and likely having to deal with an appeal, thus extending the duration for any semblance of justice to occur out to over 2 years.

    How "special" the case is is a matter of opinion, my question is one simply of procedure, the details of my case shouldn't hold any relevance.

    As it turns out my question is answered in Rule 2.816.. Specifically 2.816 (e) which states:

    "(e) Application or motion to withdraw stipulation

    An application or motion to withdraw a stipulation for the appointment of a temporary judge must be supported by a declaration of facts establishing good cause for permitting the party to withdraw the stipulation. In addition:

    (1)The application or motion must be heard by the presiding judge or a judge designated by the presiding judge.

    (2)A declaration that a ruling by a temporary judge is based on an error of fact or law does not establish good cause for withdrawing a stipulation.

    (3)The application or motion must be served and filed, and the moving party must provide a copy to the presiding judge.

    (4)If the application or motion for withdrawing the stipulation is based on grounds for the disqualification of, or limitation of the appearance by, the temporary judge first learned or arising after the temporary judge has made one or more rulings, but before the temporary judge has completed judicial action in the proceeding, the temporary judge, unless the disqualification or termination is waived, must disqualify himself or herself. But in the absence of good cause, the rulings the temporary judge has made up to that time must not be set aside by the judicial officer or temporary judge who replaces the temporary judge."

    Additionally these rules state very clearly a written stipulation is NOT required. A plaque or sign clearly stating all proceedings are taken under consideration by a commissioner or judge pro tem works, assuming both parties raise no objection to such.

    A well written article detailing the legal background to stipulation to a commissioner or judge pro tem:

    Rules for stipulating to a commissioner

    So, it would appear that you CAN in fact raise an objection to the use of a commissioner or judge pro tem much the same way you would use CCP 170.6 by virtue of [being] supported by a declaration of facts establishing good cause for permitting the party to withdraw the stipulation.

    This would preserve the use of CCP 170.6 and force the proceeding to take place in front of a judge.

    For further clarification, my complaint has already been referred to the SD City Atty by virtue of the National City City Atty in conjunction with the OIG. None of the entities will do anything until my cases (all 3 are in Small Claims) have all been heard and ruled upon, so all I've been permitted to do is stay in touch with an investigator with the City Attys office, keeping him abreast of where each case is currently positioned, this current one being the first of the three.

  8. #8
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    Jun 2017
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    Default Re: Ccp 170.6 or Refusal of Stipulation

    If you don't want the commissioner to hear the case, you don't sign the stipulation. The case should then be immediately referred to the presiding judge and assigned to another department. There are no temporary rulings in small claims. The case is called on the day it's calendared for hearing and the trial begins. If no other departments are available the date the hearing was set for, it will be continued and likely not assigned to a particular department until the day before when the calendar is finalized in the clerk's office. The commissioner for small claims is hired by the superior court judges. They are sent to judge's school just like the judges and they serve at the pleasure of the judges. They are employees of the superior court, and they aren't pro-tems. Pro-tems are attorneys who take a course and are approved by the judges to serve when the commissioner is unavailable.

  9. #9
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    Jun 2018
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    7

    Default Re: Ccp 170.6 or Refusal of Stipulation

    It is true that a commissioner is a full-time employee versus a judge pro tem being a temporary judge (part-time employee), more or less meaning the rank order to be judge, commissioner, then judge pro tem; however, the rules governing a commissioners authority refer to a commissioner as a temporary judge.

    Section 259(d) of the CCP:

    "(d)Act as temporary judge when otherwise qualified so to act and when appointed for that purpose, on stipulation of the parties litigant. While acting as temporary judge the commissioner shall receive no compensation therefor other than compensation as commissioner."

    As I've stated, I understand I can reject to stipulate in the moment and the case will get referred to an available judge, but as I stated, it would be nice to know who (what specific judge) the case gets assigned to ahead of time, in case I don't want that judge to hear my case, thus invoking CCP 170.6. It is my belief that's how it is supposed to work, I shouldn't have to use CCP 170.6 as a blanket motion to absolve myself from having my case heard by a commissioner or judge pro tem.

    The fact that the judgment is not temporary is specifically addressed in the stipend to negate appeals based on authority, that was never in question.

  10. #10
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    Default Re: Ccp 170.6 or Refusal of Stipulation

    You're not listening. A small claims commissioner is hired by the superior court judges to work full-time handling small claims cases. Their work isn't temporary. In smaller counties, they are also assigned to handle all the traffic matters as well. That small claims department IS that commissioner's department. If you don't stip to the commissioner, the case goes to the presiding judge who assigns it to another department. You go there, you don't want that judge, your file you 170.6. The case goes back to the presiding judge and another judge is assigned and you are stuck with that judge. You're not going to find out what judge the case will be sent to until it's sent there. It will be whoever is available at the time. The court's are all busy and small claims is very low priority.

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