Tekwani v. Superior Court

Filed 7/13/07 Tekwani v. Superior Court CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Petitioner Chandrashekhar Tekwani (father) and real party in interest Monica Tekwani (mother) are parties to a dissolution proceeding involving the custody of their minor child. Petitioner challenges orders made by a temporary judge authorizing mother to take the child to India. We agree with petitioner that the temporary judge acted in excess of his authority since the stipulation and order appointing the temporary judge expressly excluded custody and visitation issues. Therefore, we will issue a peremptory writ in the first instance directing respondent court to set aside the challenged orders.

FACTS AND PROCEDURAL HISTORY

Petitioner and real party in interest were married in 1997 and have one child (born November 2000) from the marriage. The parties separated and commenced dissolution proceedings in 2004. Pursuant to a stipulation and order regarding custody and visitation filed by the superior court on September 28, 2005, the parties share joint legal and physical custody of their child. The custody and visitation order also sets forth a time-share schedule and contains travel restrictions, including, inter alia, a provision that the child may not be removed from the State of California without the prior written consent of the non-removing parent.

In October 2005, the parties stipulated to and the superior court ordered the appointment of James Frederic Cox, a member of the State Bar of California, as temporary judge of the superior court to hear and decide the issues identified in the foregoing Stipulation pursuant to Article VI, Section 21 of the California Constitution and [former] Rule 244, of the California Rules of Court, until final determination of the case, with the temporary judge being granted all powers as defined herein. The stipulation and order provides that the appointment is an all purpose judicial assignment, as specifically limited by excluding all custody and visitation issues. The stipulation and order also limits ex parte communications.

The parties had a dispute regarding whether and under what conditions mother could take the child to India, and, on March 22, 2007, mother presented Temporary Judge Cox with an ex parte application for an order allowing her to travel with the child to India from April 6 to April 27, 2007. Temporary Judge Cox entertained the ex parte application and exchanged e-mails dated between March 28 and April 2, indicating his intention to sign such an order and allow the requested travel. At the time the petition for writ of mandate was filed in this court on April 5, 2007, petitioner stated that Temporary Judge Cox had entered an oral order allowing such travel, but petitioner had not yet received a formal order allowing the travel. Since it appeared that Temporary Judge Cox did not have the authority to entertain the ex parte application and that any such order would be in excess of his jurisdiction under his appointment as a temporary judge, this court issued a temporary stay on April 5, 2007, staying all proceedings related to custody and visitation issues being heard by Temporary Judge Cox, including any order purporting to authorize the child to travel to India; however, this limited stay order did not preclude the parties from seeking orders related to custody and visitation issues directly from the superior court.

In the meantime, after this courts temporary stay order issued on April 5, 2007, petitioner submitted copies of two orders issued by Temporary Judge Cox on April 2, 2007 and filed by the superior court on April 3, 2007, requiring petitioner to cooperate in obtaining a new passport for the child, allowing mother to use the passport to travel to India with the child from April 5 to April 30, 2007, requiring mother to execute a $100,000 promissory note, secured by a deed of trust against her residence, and allowing father to record and enforce the note and deed of trust if mother failed to return the child to California within the time specified.

This courts temporary stay order also requested mother to file opposition to the writ petition, but she did not do so. This court then issued a Palma notice (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180), advising the parties that the court was considering issuing a peremptory writ in the first instance and allowing mother a final opportunity to submit opposition, but again mother did not file opposition.

DISCUSSION

Petitioner contends that Temporary Judge Cox acted in excess of his jurisdiction since the stipulation and order appointing him as a temporary judge expressly precluded custody and visitation issues. We agree.

Pursuant to article VI, section 21 of the California Constitution, 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. Appointment of a temporary judge to hear a particular cause carries with it the power to act until final determination of that proceeding. (Walker v. San Francisco Housing Authority (2002) 100 Cal.App.4th 685, 692.) Absent a valid stipulation, a temporary judge has no jurisdiction to act and any actions purportedly taken are therefore void. (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 765.) Because [t]he parties have the power to define and circumscribe the authority of a temporary judge, stipulations to a temporary judge are narrowly construed. (Orange County Dept. of Child Support Services v. Superior Court (2005) 129 Cal.App.4th 798, 807, quoting In re Steven A. (1993) 15 Cal.App.4th 754, 768.)

Here, the order of appointment and order approving the stipulation provided that the appointment of Temporary Judge Cox was an all purpose judicial assignment, as specifically limited by excluding all custody and visitation issues. Prior to the appointment of Temporary Judge Cox, the superior court had entered a stipulation and order regarding custody and visitation that included travel restrictions. In light of the express limitation in the appointment order and the prior superior court custody and visitation order, Temporary Judge Cox was without authority to enter the challenged ex parte orders authorizing the child to travel to India.

Furthermore, since Temporary Judge Cox clearly did not have authority to issue the challenged orders and since mother does not oppose the writ petition, we further conclude that a peremptory writ of mandate in the first instance is appropriate to correct the error.

In limited situations, an appellate court may issue a peremptory writ in the first instance, without issuance of an alternative writ or order to show cause, and without providing an opportunity for oral argument. (Code Civ. Proc., 1088; Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1252-1253.) A court may issue a peremptory writ in the first instance only when petitioners entitlement to relief is so obvious that no purpose could reasonably be served by plenary consideration of the issue-for example, when such entitlement is conceded or when there has been clear error under well-settled principles of law and undisputed facts-or where there is an unusual urgency requiring acceleration of the normal process. . . . [Citation.] (Lewis v. Superior Court, supra, 19 Cal.4th at p. 1241, quoting Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1223.)

However, Code of Civil Procedure section 1088 requires, at a minimum, that a peremptory writ of mandate or prohibition not issue in the first instance unless the parties adversely affected by the writ have received notice, from the petitioner or from the court, that the issuance of such a writ in the first instance is being sought or considered. In addition, an appellate court, absent exceptional circumstances, should not issue a peremptory writ in the first instance without having received, or solicited, opposition from the party or parties adversely affected. (Lewis v. Superior Court, supra, 19 Cal.4th at p. 1240.)

All procedural requirements for issuance of the writ in the first instance have been followed. We notified the parties we were considering issuance of a peremptory writ of mandate in the first instance, and each party had the opportunity to file a written response. The applicable principles of law are well established, the relevant facts are undisputed, and petitioners entitlement to relief is so obvious that plenary consideration of the issues is unwarranted. (Lewis v. Superior Court, supra, 19 Cal.4th at p. 1241.) Accordingly, we grant the petition for writ of mandate in the first instance.

DISPOSITION

Let a peremptory writ of mandate issue directing respondent court to vacate both the April 3, 2007 order and the April 3, 2007 supplemental order issued by Temporary Judge James Frederic Cox on real party in interest Monica Tekwanis ex parte application regarding the childs passport and travel to India. This opinion is made final as to this court seven days from the date of filing. (Cal. Rules of Court, rule 8.264(b)(3).) The temporary stay order issued on April 5, 2007, shall remain in effect until finality of this opinion. Each party is to bear its own costs in this original proceeding.

Premo, Acting P.J.

WE CONCUR:

Elia, J.

Duffy, J.

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line Lawyers.