Sarracino v. Superior Court , 13 Cal. 3d 1 ( 1974 )

Opinion

WRIGHT, C. J.

Petitioner Ernest James Sarracino seeks a writ of mandate to compel vacation of orders rendered against him by a superior court commissioner presiding as temporary judge at a consolidated hearing on applications for temporary support and related relief in (1) a proceeding for dissolution of marriage brought by petitioner’s wife, Dorothy Sarracino, and. (2) an action for support brought by petitioner’s adult daughter, Jane Sarracino, by her guardian ad litem, Dorothy Sarracino. Having failed to appear at the hearing, petitioner challenges the commissioner’s power to act as temporary judge on the ground that the required “stipulation of the parties litigant” (Cal. Const., art. VI, § 21) was signed only by the wife and guardian ad litem. Petitioner also questions the authority of the guardian ad litem to act in the absence of any adjudication of the daughter’s incompetency apart from the order granting the guardian ad litem’s ex parte petition for appointment under Code of Civil Procedure sections 372 and 373, subdivision 3.

On November 24, 1972, petitioner was personally served in both the dissolution proceeding and the support action with summonses, initial pleadings, and notices of a hearing to be held on December 4, 1972, on the wife’s and daughter’s respective applications for temporary support. Petitioner did not appear at the hearing, which proceeded before the commissioner on the date stated in the notices. Stipulations for the appointment of the commissioner as temporary judge in each matter were signed by Dorothy Sarracino and her counsel; she was sworn and testified; and the commissioner rendered the orders now before us.¹ Thereafter petitioner appeared by filing responsive pleadings in both matters and moved to vacate the orders.² These motions were denied by a judge of respondent court.³ An alternative writ of mandate issued requiring the granting of the motions to vacate unless good cause is shown to the contrary.⁴

Petitioner challenges the respondent court’s jurisdiction to make the temporary support orders on two grounds: (1) that the stipulation was ineffective to empower the commissioner to act as temporary judge in either matter because it was not signed by petitioner, who claims to have been a party litigant (Cal. Const., art. VI, § 21) at the time of the hearing because his time to file a pleading after service of summons had not yet expired; and (2) that the order appointing Dorothy Sarracino as Jane Sarracino’s guardian ad litem was void because of an alleged lack of adjudication of Jane’s incompetency. For reasons which follow we conclude that neither objection is valid.

Sufficiency of Stipulation to Authorize Commissioner to Act as Temporary Judge

Court commissioners are appointed under the authority of section 22 of article VI of the California Constitution which permits the Legislature to provide for the appointment by trial courts of record of commissioners “to perform subordinate judicial duties.” However, a major part of the assistance which commissioners give to the courts is rendered not in performing subordinate judicial duties under article VI, section 22 but in presiding as temporary judges under the distinct provisions of section 21 of article VI. (See Rooney v. Vermont Investment Corp. (1973) 10 Cal.3d 351, 365, fn. 11 [110 Cal.Rptr. 353, 515 P.2d 297]; People v. Oaxaca (1974) 39 Cal.App.3d 153, 165 [114 Cal.Rptr. 178].) Section 21 states: “On stipulation of the parties litigant the court may order a cause to be tried by a temporary judge who is a member of the State Bar, sworn and empowered to act until final determination of the cause.” (Italics added.) The statutory power of a commissioner “[t]o act as judge pro tempore when otherwise qualified so to act and when appointed for that purpose” (Code Civ. Proc., § 259a, subd. 4) is subject to this constitutional provision, and accordingly a commissioner cannot act as a temporary judge except “on stipulation of the parties litigant.” (People v. Tijerina (1969) 1 Cal.3d 41, 48-49 [81 Cal.Rptr. 264, 459 P.2d 680].)

Petitioner concedes that the commissioner who made the temporary support orders was a duly qualified appointee of respondent court. Furthermore, petitioner does not question that the stipulations under which the commissioner purported to act were sufficient in form for that purpose but contends that they were ineffective because they were signed only by petitioner’s adversary and her counsel and not by petitioner or his counsel. We are thus faced with the question whether petitioner was a “party litigant” within the meaning of article VI, section 21, at the time of the hearing of December 4, 1972.

Section 21 was adopted in 1966 in place of former article VI, section 5, paragraph 3, which similarly authorized appointment of temporary judges (then referred to as judges pro tempore) to try causes in the superior and municipal courts on “stipulation of the parties litigant.” Referring to the former provision, this court said in Estate of Kent (1936) 6 Cal.2d 154 [57 P.2d 901]: “ ‘Under the customary rules of constitutional interpretation each word should be given some value. In the constitutional provision the word “litigant” qualifies the word “parties” and the two words must be given some value beyond the one word “parties.” Obviously the phrase “parties litigant” means the parties who are taking part in the litigation,—those who have appeared therein. There are many causes at law and in equity where the rights of parties are determined although the parties themselves do not conduct the litigation. These actions, where contested, proceed under the direction of parties to the controversy who have appeared—who are “parties litigant.” At the same time the proceeding determines the rights of other parties in interest but not litigant. Among such cases are receiverships, representative suits, actions by and* against trustees, and, assuming that nonappearing heirs and devisees and creditors are parties, then the several proceedings in probate.’ ” (Id., at p. 162, italics added.)

The Kent decision upheld the authority of a commissioner to hear a probate matter as a judge pro tempore on the stipulation of all the parties who had appeared in the proceeding but without the stipulation of the heirs, devisees, and creditors of the estate who had not appeared. Although the facts of Kent suggest considerations peculiar to in rem proceedings (see Lilienkamp v. Superior Court (1939) 14 Cal.2d 293 [93 P.2d 1008]), its reasoning has been applied to deny “litigant” status under the former constitutional provision to a person named as a party in the pleadings and served with process. In Barfield v. Superior Court (1963) 216 Cal.App.2d 476 [31 Cal.Rptr. 30], a commissioner sitting as judge pro tempore rendered an interlocutory judgment of divorce against a defendant whose default had been duly entered. The appellate court held that the defendant was not a “party litigant” and therefore a stipulation signed by the plaintiff alone was constitutionally sufficient to empower the commissioner to act.⁵

The Kent and Barfield decisions construing the phrase “parties litigant” in the former constitutional provision assume added importance in the light of circumstances surrounding the adoption of the provision now before us, article VI, section 21. The new section was originally drafted by the California Constitution Revision Commission as part of a general revision of article VI. The initial draft would have required only a stipulation of the “parties” for the appointment of a temporary judge, omitting the word “litigant.” (Proposed Revision (1966) Cal. Const. Revision Com., p. 98.) “The Legislature restored the terminology ‘parties litigant’ as it appeared in the former constitutional provision instead of the unmodified term ‘parties’ in referring to the persons from whom a stipulation is required. This preserves intact the preexisting law.” (Judicial Council of Cal., Annual Rep. (1967) p. 90.) The adoption of constitutional language similar to that in a former constitutional provision is presumed to incorporate authoritative judicial construction of the former language. (In re Lavine (1935) 2 Cal.2d 324, 331 [41 P.2d 161, 42 P.2d 311]; People v. District Court of Appeal (1924) 193 Cal. 19 [222 P. 353]; People v. Pacific Gas & Elec. Co. (1914) 168 Cal. 496, 499 [143 P. 727].) This presumption carries even greater weight when as here the Legislature has amended an initial draft for the apparent express purpose of preserving the pre-existing language.

Petitioner claims he was a party litigant at the time of the hearing of December 4, 1972, because his time to file a responsive pleading in the dissolution proceeding and in the action for adult child support had not yet expired. He was served on November 24, 1972, with an initial pleading and summons in each of the two proceedings. Each summons clearly notified him that he had 30 days after service in which to file a responsive pleading (Code Civ. Proc., § 412.20, subd. (a)(3)), and therefore his time to plead in each proceeding could not expire before December 26, 1972 (Code Civ. Ptoc., §§ 12a, 418.10, subd. (d)). However, his good standing with respect to the pleadings did not cure his default in failing to make a timely response to title order to show cause and notice of motion which were served on him at the same time as the summonses and initial pleadings. Petitioner does not question the efficacy of the order to show cause and notice of motion to subject him to the court’s jurisdiction at the time of the hearing.⁶

Although petitioner’s failure to appear at the hearing did not expose him to entry of default judgments pursuant to the pleadings, it did subject him to the rendition of orders having many of the attributes of judgments. An order for temporary support is a final judgment for purposes of appeal. (Greene v. Superior Court (1961) 55 Cal.2d 403, 405 [10 Cal.Rptr. 817, 359 P.2d 249]; Lincoln v. Superior Court (1943) 22 Cal.2d 304, 310 [139 P.2d 13].) Even if the principal action or proceeding is subsequently terminated by dismissal or abatement, the temporary support order remains enforceable as to amounts accruing prior to such termination. (Moore v. Superior Court (1970) 8 Cal.App.3d 804, 809 [87 Cal.Rptr. 620]; Wiley v. Wiley (1960) 183 Cal.App.2d 588 [7 Cal.Rptr. 73]; Douglas v. Superior Court (1956) 143 Cal.App.2d 17, 19 [299 P.2d 285].) An application for temporary support “is heard and determined upon a record of its own” (Robbins v. Mulcrevy (1929) 101 Cal.App. 300, 301 [281 P. 668]), and “while not a separate action, is a proceeding for a separate judgment independent of the final judgment in the action” (Douglas v. Superior Court, supra, 143 Cal.App.2d at p. 19). These principles apply not only in marital proceedings but also to temporary support orders in actions to enforce support obligations between parents and adult children. (See Paxton v. Paxton (1907) 150 Cal. 667 [89 P. 1083]; Kruly v. Superior Court (1963) 216 Cal.App.2d 589 [31 Cal.Rptr. 122].) The provision of the order in the dissolution proceeding requiring petitioner to pay his wife’s attorney’s fees was “in effect a final judgment against a party in a collateral proceeding growing out of the action.” (Fish v. Fish (1932) 216 Cal. 14, 16 [13 P.2d 375]; see Sjoberg v. Hastorf (1948) 33 Cal.2d 116, 119 [199 P.2d 668].) The provisions restraining petitioner’s entry into the family residence and restricting his disposition of community property were similar to final judgments in that they were appealable. (Code Civ. Proc., § 904.1, subd. (f).) Thus, petitioner’s failure to appear after notice at the hearing on the application for temporary support put him in default for purposes of entering orders against him which have most of the attributes of final judgments.

It is. suggested, however, that a party who has defaulted in such an ancillary proceeding but not on the pleadings themselves should be deemed a party litigant because the temporary judge who presides without his consent at the ancillary proceeding must be “sworn and empowered to act until final determination of the cause.” (Const., art. VI, § 21.) According to this argument, such temporary judge would have power to preside over all subsequent phases of the principal action or proceeding, including the trial itself, regardless of the participation therein of parties who had defaulted at the earlier ancillary proceeding at which the temporary judge was appointed.

This argument erroneously attributes an overbroad meaning to the word “cause.” A cause is the proceeding before the court. Thus, when this court exercises its power to “transfer to itself a cause in a court of appeal” (Const., art. VI, § 12), it grants a hearing only on the matter which, if decided by the intermediate appellate court, would operate as a final disposition thereof in that court (see In re Wells (1917) 174 Cal. 467, 473 [163 P. 657]), but the order of transfer does not apply to appellate court proceedings subsequently commenced in the intermediate court which may arise out of the same underlying action or special proceeding.

Similarly, temporary judges may be appointed to hear causes connected with but distinct from the underlying principal case. (Estate of Soforenko (1968) 260 Cal.App.2d 765 [67 Cal.Rptr. 563] (executor’s first account); Amos v. Superior Court (1960) 182 Cal.App.2d 343 [6 Cal.Rptr. 252] (preliminary hearing in municipal court on criminal charge triable in superior court); Quezada v. Superior Court (1959) 171 Cal.App.2d 528 [340 P.2d 1018] (civil contempt to enforce temporary support order).) The appointment of a temporary judge to hear a particular “cause” carries with it the power to act until the final determination of that proceeding. (Anderson v. Bledsoe (1934) 139 Cal.App. 650 [34 P.2d 760] (temporary judge who tried case was thereby empowered to rule on motion to vacate his order granting new trial).) Such appointment does not, however, authorize the temporary judge to act in distinct, proceedings, albeit ancillary to the same principal action, without being appointed and qualified for that purpose. Thus, in the present case the commissioner’s power as temporary judge to render the temporary support orders against petitioner would not include a power to hold petitioner in contempt for noncompliance with those orders. (In re Wales (1957) 153 Cal.App.2d 117 [315 P.2d 433].)

We conclude that for the purpose of defining “party litigant” (Const., art. VI, § 21), petitioner’s default with respect to the applications for temporary support is indistinguishable from that of a defendant whose default is entered in a civil action following his failure to plead within the required time. Accordingly, petitioner was not a party litigant, and the stipulations executed by the applicants for temporary support were sufficient to empower the commissioner to act as a temporary judge. (Barfield v. Superior Court, supra, 216 Cal.App.2d 476.)⁷

Because we conclude that the commissioner had power to render the support orders in question as a temporary judge, we need not consider the alternative contention by respondent court that he had such power as a commissioner performing subordinate judicial duties under article VI, section 22, of the Constitution.

Jurisdiction Over Support Claim Asserted Through Guardian Ad Litem

In the action for support by Jane Sarracino through her guardian ad litem, Dorothy Sarracino, there was filed and served on petitioner, along with the summons and copies of the complaint and notice of motion for temporary order of support, a copy of a “Petition and Consent for Appointment of Guardian Ad Litem, and Order.” The petition, signed by Dorothy Sarracino, alleges inter alia that she is the mother of Jane, who has a cause of, action for support against Ernest Sarracino, has no general guardian, and is not competent to manage her own financial affairs or protect her property, and prays for the appointment of Dorothy as guardian ad litem to prosecute the action on behalf of the plaintiff, Jane. Attached to the petition is a written consent to the appointment signed by Jane and an order of the court making the appointment as prayed for. It is alleged in the complaint and stated in a declaration attached to the notice of motion that Jane Sarracino is 24 years old.

Petitioner herein, Ernest Sarracino, contends that defects in the appointment of the guardian ad litem deprived the court of jurisdiction to order payments for his daughter Jane’s support at the uncontested hearing of December 4, 1972. His initial argument is that a guardian ad litem cannot be appointed on the ground of a party’s incompetency unless that party has been adjudged insane or incompetent in an independent proceeding.

Petitioner’s argument is without merit. There is no such provision in sections 372 and 373 of the Code of Civil Procedure, which constitute the statutory authorization for appointing guardians ad litem. Section 372 states: “When ... an insane or incompetent person is a party, he must appear either by a guardian of the estate or by a guardian ad litem appointed by the court in which the action is pending, or by a judge thereof, in each case. A guardian ad litem may be appointed in any case, when it is deemed by the court in which the action or proceeding is prosecuted, or by a judge thereof, expedient to represent the . . . insane, or incompetent person in the action or proceeding, notwithstanding he may have a guardian of the estate and may have appeared by him. . . .

“[Reference to ‘incompetent person’ shall be deemed to include ‘a person for whom a conservator may be appointed.’ ”

Section 373 states: “When a guardian ad litem is appointed, he must be appointed as follows: . . . “3. When an insane or incompetent person is a party to an action or proceeding, upon the application of a relative or friend of such insane or incompetent person, or of any party to the action or proceeding, or by the court on its own motion.”

Although these provisions permit the appointment of a guardian ad litem for a party who already has a general guardian of his estate, they do not require any prior independent adjudication of incompetency. (See Dunphy v. Dunphy (1911) 161 Cal. 380, 382, 389 [119 P. 512].) Incompetency may exist independently of any . judicial determination thereof. (Olivera v. Grace (1942) 19 Cal.2d 570, 577 [122 P.2d 564, 140 A.L.R. 1328].)

Petitioner argues that incompetency within the meaning of these code sections is not sufficiently alleged in the petition for appointment of the guardian ad litem or the complaint for support. The petition alleges that Jane Sarracino “is not . . . competent to manage her financial affairs or protect her property,” and the complaint further alleges she “is not competent or able to manage her own affairs.” These allegations sufficiently describe “a person for whom a conservator may be appointed” who is deemed “incompetent” under section 372. (See Prob. Code, § 1751.)⁸ Moreover, the guardian ad litem’s declaration attached to the application for temporary support sets out facts supporting these allegations.

Petitioner argues that for the court to make an implied finding of Jane Sarracino’s incompetency and thereupon appoint a guardian ad litem for her simply on the ex parte application of her mother violated her right to due process of law. Petitioner is not appearing on behalf of Jane, however, but is before us only for the purpose of testing the jurisdiction of the respondent court to render a temporary support order against him. For this purpose, his interest is sufficiently protected if Jane was a party within the jurisdiction of the court and bound by the order purportedly made in her favor.

The proceedings for appointment of the guardian ad litem were on their face regular and sufficient to empower the appointee to act in a representative capacity. The appointment may properly be made on an ex parte application. (Granger v. Sheriff (1901) 133 Cal. 416, 418 [65 P. 873]; 3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, § 58, p. 1738.) If any proof of notice to the alleged incompetent was required, which we do not decide, it was afforded by her signature on the consent to the appointment.

A guardian ad litem who appears for an incompetent person in an action or proceeding does not thereby become a party to that action or proceeding any more than the incompetent person’s attorney of record is a party. (In re Marriage of Higgason (1973) 10 Cal.3d 476, 484 [110 Cal.Rptr. 897, 516 P.2d 289].)⁹ The guardian ad litem, like the attorney, is both the incompetent’s representative of record and a representative of the court. (Cole V. Superior Court (1883) 63 Cal. 86, 89; Estate of Cochems (1952) 110 Cal.App.2d 27, 29-30 [242 P.2d 56]; Serway v. Galentine (1946) 75 Cal.App.2d 86, 89 [170 P.2d 32].) An attorney’s authority to represent his purported client is presumed in the absence of a strong factual showing to the contrary. (Sullivan v. Dunne (1926) 198 Cal. 183, 190 [244 P. 343]; Pacific Paving Co. v. Vizelich (1903) 141 Cal. 4, 8 [74 P. 352].) Petitioner having made no factual showing of any irregularity in the guardian ad litem’s appointment or of any deficiency in her authority to represent Jane Sarracino, her authority is presumed.¹⁰

The peremptory writ is denied and the alternative writ is discharged.

McComb, J., Tobriner, J., and Burke, J.,^* concurred.

1 The two orders are combined in a single entry in the court’s minutes. In addition to requiring temporary monthly support payments for the wife and adult daughter, the orders require petitioner to pay a sum for attorney’s fees and costs in the dissolution action and restrain him from certain acts including unconsented entry of the family residence and disposition of community property outside the ordinary course of business.

2 Petitioner filed his response to the petition for dissolution (Cal. Rules of Court, rule 1282) on April 30,1973, and his answer to the complaint for support on July 13, 1973.

The answer to the petition for the writ alleges that on May 18,1973, over one month before petitioner gave notice of his motions to vacate, he filed a notice of motion for relief from the “default” taken against him on December 4, 1972, on the ground that the temporary support orders were rendered against him on that date “through his mistake, inadvertence, surprise or excusable neglect” (Code Civ. Proc., § 473), and attached as an exhibit a proposed response to the order to show cause and notice of motion by which the temporary support proceedings were initiated. It is stated in the brief of the real parties in interest in opposition to the petition that the motion for relief from default was denied on May 30, 1973.

3 The notices of these motions to vacate the temporary support orders on jurisdictional grounds were filed on June 28,1973, and the motions were denied on August 20, 1973. Contempt proceedings to enforce the orders were thereafter initiated before the present writ proceeding was commenced.

4 Mandate is a proper remedy for compelling a trial court to vacate its order made without jurisdiction. (Siegalv. Superior Court (1968) 68 Cal.2d 97 [65 Cal.Rptr. 311, ft 436 P.2d 311].) The absence of another adequate remedy was determined by the Court of Appeal when it granted the alternative writ. (Nathanson v. Superior Court (1974) 12 Cal.3d 355, 361 [115 Cal.Rptr. 783, 525 P.2d 687].)

5 The court rejected the argument that the constitutionally required “stipulation” must be an agreement between at least two parties: “It must be remembered that the ‘stipulation’ required is that ‘of’ and not ‘between’ the litigants. The decision to refer a pending cause to a judge pro tempore, and the selection of the individual member of the bar who is to so act, are, in the end, with the court, which must approve and order the designation, not with the litigant. If ‘agreement’ is here required, it is the agreement between court and litigant which controls." (Barfield v. Superior Court, supra, 216 Cal.App.2d at p. 479.)

In Bill Benson Motors, Inc. v. Macmorris Sales Corp. (1965) 238 Cal.App.2d Supp. 937 [48 Cal.Rptr. 123], a commissioner sitting in a municipal court as judge pro tempore under a stipulation signed by the plaintiff but not by the appealing defendants rendered a judgment against the defendants after a trial conducted in their absence under section 594 of the Code of Civil Procedure. On appeal it was held that the defendants by willfully remaining away from the trial after denial of their motion for continuance had removed themselves from the class of parties litigant whose stipulation was required for the appointment of the judge pro tempore.

6 The order to show cause, issued in the dissolution proceeding over the signature of a commissioner of respondent court (Code Civ. Proc., § 259a, subd. 1; Lewis v. Neblett (1961) 188 Cal.App.2d 290, 296-297 [10 Cal.Rptr. 441]) served not only as a notice of hearing but also as a citation or summons, giving the court personal jurisdiction when served on petitioner. (Difani v. Riverside County Oil Co. (1927) 201 Cal. 210, 213-214 [256 P. 210]; Sturm v. Sturm (1955) 138 Cal.App.2d 25, 28 [291 P.2d 527]; 4 Witkin, Cal. Procedure (2d ed. 1971) Proceedings Without Trial, § 30, p. 2698.) The petition for the instant writ refers to this order and to the notice of motion served in the adult daughter’s support action as “both said orders to show cause” and petitioner does not question his subjection to the jurisdiction of the court at the hearing of which both documents gave notice. Hence we need not consider any distinction' between the legal effects of the two documents in this case.

7 Rooney v. Vermont Investment Corp., supra, 10 Cal.3d 351, 359-360, is distinguishable. There, a judgment was signed by a commissioner, purportedly pursuant to a settlement stipulation, on the ex parte application of the plaintiffs in the absence of the defendants and with no notice to the defendants of any date of hearing. The stipulation contained no authorization for the appointment of a temporary judge, and the absence of defendants who had appeared in the action from a proceeding therein of which they had no notice could not impair their standing as parties litigant.

8 Probate Code section 1751 provides: “Upon petition as provided in this chapter, the superior court, if satisfied by sufficient evidence of the need therefor, shall appoint a conservator of the person and property or person or property of any adult person who by reason of advanced age, illness, injury, mental weakness, intemperance, addiction to drugs or other disability, or other cause is unable properly to care for himself or (for his property, or who for said causes or for any other cause is likely to be deceived or imposed upon by artful or designing persons . . . .”

9 Thus McClure v. Donovan (1949) 33 Cal.2d 717, 723-729 [205 P.2d 17], which petitioner quotes extensively in his brief, is not in point because in it an action to annul a marriage on grounds of the husband’s being of “unsound mind” when the marriage was contracted was brought by his sister as plaintiff under former Civil Code sections 82 and 83, permitting such an action to be brought by the incompetent spouse’s “relative or guardian.” It was held that the court could not enter a judgment of annulment without making the husband himself a party.

10 Petitioner’s reply brief tardily raises two other objections to the guardian ad litem’s authority, neither of which has merit.

He points out that the complaint for support is verified by Dorothy Sarracino as “plaintiff” instead of as guardian ad litem. This oversight is not fatal since the body of the complaint properly and repeatedly identifies Jane Sarracino as the plaintiff.

Petitioner also argues that the guardian ad litem and her counsel have a conflict of interest in that she herself may be liable to furnish support as Jane Sarracino’s mother, but adds that he “recognizes that this is not a matter involving jurisdiction which is the foundation of a petition for a Writ of Prohibition/ Mandate.” Petitioner thus correctly answers his own argument.

* Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.