K.A. v. C.A. CA4/3

Filed 12/2/22 K.A. v. C.A. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

K.A.,

Appellant, G060387

v. (Super. Ct. No. 20V002406)

C.A., OPINION

Respondent.

Appeal from an order of the Superior Court of Orange County, Renee E.
Wilson, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Merritt L. McKeon for Appellant.
Nordhoff Bengfort and Steven G. Nordhoff for Respondent.
* * *
 This appeal arises from a commissioner’s issuance of a domestic violence
restraining order against K.A. and dismissal of K.A.’s own request for a restraining order
(collectively the rulings). K.A. asserts that on the morning of the hearing underlying the
rulings, she understood the case would be reassigned and therefore did not attend the
afternoon evidentiary hearing that resulted in the rulings. K.A.’s attorney had not been
able to reestablish communication with K.A. and the commissioner had denied the
attorney’s request for a continuance. After the rulings, K.A. filed an unsuccessful motion
to reconsider.
K.A. argues the rulings should be vacated because she did not agree to have
a commissioner hear the matter. She also contends she was prevented from participating
in the underlying evidentiary hearing because, before K.A. became unavailable, the
commissioner had indicated the case was to be reassigned. We discern no reversible
error and affirm.

FACTS
Requests for Restraining Orders
In December 2020, K.A. requested the trial court issue a domestic violence
restraining order (DVRO) against her mother, C.A., based on an alleged physical
altercation at their residence, where K.A. had lived for 26 years with C.A. and her father,
G.A. At the time of her request, K.A.’s parents had been litigating their marital
dissolution action, and G.A. had been ordered to move out of the residence.
Ten days after K.A.’s request, C.A. filed her own request for a restraining
order against K.A. C.A. asserted, among other things, that K.A. had
“continued to harass [C.A.] by allowing [G.A.] into our residence repeatedly and making
false claims,” including that C.A. had physically abused K.A.
The trial court granted temporary restraining orders for both K.A. and C.A.
and set an evidentiary hearing for March 5, 2021. On March 4, 2021, a notice was sent to

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the parties that the case had been assigned to a commissioner who was the same
commissioner also assigned to C.A. and G.A.’s ongoing dissolution action.

The Initial Hearing and Continuance
On March 5, 2021, counsel for each party appeared remotely before the
commissioner through their attorneys.1 K.A.’s attorney requested a continuance due to
medical treatment K.A. was receiving. The commissioner granted K.A.’s request and set
an evidentiary hearing to be conducted on April 8, 2021.
K.A. has not provided us with the reporter’s transcript for the March 5,
2021 hearing. Accordingly, the clearest record of what occurred is the court’s minute
order. Among other things, the order memorialized the parties’ time estimates for
presentation of evidence as well as the commissioner’s reissuance of the parties’
temporary restraining orders. Critical to this appeal, the order also stated: “Both counsel
stipulate to [the c]ommissioner[] as the [j]udicial [o]fficer for all purposes.”
Thirty-three days after the March 5, 2021, hearing, on April 7, 2021, one
day before the evidentiary hearing, K.A.’s counsel filed a declaration in the trial court “in
order to clarify [counsel’s] position as it relate[d] to the March 5, 2021 continuance of the
domestic violence hearing and restraining orders in this matter.” Counsel asserted: “It
was my understanding [on March 5] that my appearance in this matter . . . was for the
sole purpose of continuing the domestic violence hearing and that my stipulation to the
Commissioner was limited to the continuance only.” Counsel also asserted that K.A.
“ha[d] not authorized [counsel] to stipulate to a commissioner ‘for all purposes’ in this
matter and [counsel] presently remain[ed] unable to stipulate to a commissioner hearing
to hear [sic] this matter for all purposes.”

1
All appearances were done virtually through video conferencing.

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The April 8, 2021 Hearing and Rulings
The following morning, at the scheduled April 8, 2021, hearing, K.A.’s
attorney informed the court he had filed his declaration regarding the scope of his March
5, 2021 stipulation. The commissioner admonished the attorney for the timing of the
declaration, given its context, but nonetheless entertained the request to have the case
reassigned to a judge.
The commissioner initially reasoned that because K.A. had not been
personally present at the March 5 2021 hearing, there was insufficient consent for a
commissioner to hear the parties’ DVRO requests. Specifically, the following colloquy
occurred:
“THE COURT: . . . this all appears to be a ploy at the day of the hearing
that everybody gets blindsided – ‘we won’t stipulate, but we have known since over a
month ago that this case was assigned to [the commissioner]. But more importantly, that
it was stipulated.
“But I can’t get out of the requirements [for valid consent to a
commissioner conducting the evidentiary hearing], and I’m not going to try — because as
a commissioner, that would only be problematic for myself. Because there is case law
that says the client also has to agree.
“I can waive it if his client[, K.A., had been] standing right next to him [at
the March 5, 2021 hearing], but his client was in the hospital. So it’s a free pass. I’m not
issuing any reissuances [of temporary restraining orders], though, because I can’t.
“[C.A.’S COUNSEL]: I would like [the temporary order entered in favor
of C.A.] reissued.
“THE COURT: I can’t. I can’t.
“We will let you know where to go.
“[C.A.’S COUNSEL]: They got theirs reissued last time by you.
“THE COURT: I know that.

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 “[C.A.’S COUNSEL]: I don’t know why — if the court is going to
reassign the matter, then I understand.
“THE COURT: I’m reassigning it, and we will send you to another
department and they can reissue them today.
“[C.A.’S COUNSEL]: Today? Okay.
“THE COURT: It would be one thing if we can find you a home today.
“[K.A.’S COUNSEL]: Thank you, your Honor.
“THE COURT: Thank you.
“[C.A.’S COUNSEL]: Your Honor, maybe for efficiency — maybe
[K.A.’s counsel] will agree that this court could reassign —
“THE COURT: I’m not touching it.
“[C.A.’S COUNSEL]: This is very frustrating, Your Honor. This is, like,
the eighth appearance we have had with this kind of nonsense.
“[K.A.’S COUNSEL]: That’s not true. There has been no other nonsense
that I’m aware of —
“THE COURT: I’m not saying with the other case. I’m saying with this
particular case. I do find it somewhat disingenuous that you have known it for 30 days,
stipulated on the record, had me sign reissuances, and it’s the day of — but I can’t do
anything about it. I will leave that for another judge.
“My clerk will call you and let you know.
“[C.A.’S COUNSEL]: Thank you, Your Honor.
“THE COURT: Sorry.
“[K.A.’S COUNSEL]: Thank you, Your Honor.
“(Matter trails.)”
When the matter was recalled—24 minutes later, according to the trial
court’s minute order—prior to the lunch recess, the commissioner changed her position
on K.A.’s request for a judge, explaining: “[U]pon review, the law is not as I had

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[initially] indicated.” The commissioner concluded K.A.’s attorney’s stipulation at the
March 5 hearing constituted sufficient consent for a commissioner to hear the parties’
DVRO requests. The commissioner instructed the attorneys that they and their clients
should return at 1:30 p.m. for the evidentiary hearing
At 1:30 p.m., the attorneys and C.A. appeared, but K.A.’s attorney advised
he had not been able to establish communication with K.A., explaining:
“[K.A.’S COUNSEL]: Your Honor, I haven’t been able to reach her since
last time we were here earlier.
“I gave her a note when — I sent her a note when we finished the first time.
I haven’t been able to reach her since. She hasn’t gotten back to me.”
After C.A. confirmed she was ready to proceed and noted the matter had
been pending for several months, the court and K.A.’s attorney discussed the posture of
the case:
“THE COURT: In between, I did say we are going to try and find you a
place for today, so it wasn’t as if I gave you any impression that this matter would be
continued.
“[K.A.’S COUNSEL]: No.
“THE COURT: All right.
Well, we will proceed. With the case of — I believe it’s [K.A.] against
[C.A.] — as to that case.
“[K.A.’S COUNSEL]: Yes, Your Honor. You called [K.A.]’s first.
“THE COURT: Yes. She filed first, as I recall.
“[K.A.’S COUNSEL]: Yes.
K.A.’s attorney requested a continuance based on his inability to reestablish
communication with K.A. After C.A. objected, the commissioner denied the request and
proceeded with the evidentiary hearing on the parties’ DVRO requests. The
commissioner dismissed K.A.’s request with prejudice and, after hearing testimony by

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C.A., granted her request for a restraining order against K.A., ordering it would be
effective for two years, subject to future requests for an extension or dismissal.
Five days after the rulings, K.A. filed an unsuccessful motion for
reconsideration and then a notice of appeal timely challenging the April 8, 2021, rulings.

DISCUSSION

K.A. contends the commissioner’s rulings should be vacated because she
did not stipulate to a commissioner, and also because the commissioner had recused
herself thereby excusing K.A. from appearing later that day. We apply to all of K.A.’s
assertions “three fundamental principles of appellate review: (1) a judgment [or order] is
presumed correct; (2) all intendments and presumptions are indulged in favor of
correctness; and (3) the appellant bears the burden of providing an adequate record
affirmatively proving error.” (Fladeboe v. American Isuzu Motors Inc. (2007)
150 Cal.App.4th 42, 58.) Further, even where error is demonstrated, an appellant
generally has a burden to also show the error resulted in a miscarriage of justice. (Cal.
Const., art. VI, § 13; Denham v. Superior Court (1970) 2 Cal.3d 557, 566.)

K.A. Has Not Shown the Rulings Should Be Reversed Because They Were Rendered by a
Commissioner
First, we review de novo K.A.’s contention the commissioner’s rulings on
April 8, 2021, were void. (See In re Horton (1991) 54 Cal.3d 82, 90.) Code of Civil
Procedure section 259, subdivision (d),2 establishes that a commissioner can act as a
“temporary judge when otherwise qualified so to act and when appointed for that
purpose, on stipulation of the parties litigant.” The California Constitution, article VI,
section 21, provides that: “On stipulation of the parties litigant the court may order a

2
All further undesignated statutory references are to the Code of Civil Procedure.

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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.”
Parties can consent to a commissioner verbally or impliedly by conduct.
(See In re Richard S. (1991) 54 Cal.3d 857, 864 [“[I]t would be ‘“‘intolerable to permit a
party to play fast and loose with the administration of justice by deliberately standing by
without making an objection of which he is aware and thereby permitting the proceeding
to go to a conclusion which he may acquiesce in, if favorable, and which he may avoid, if
not’”’”].) If K.A.’s attorney stipulated on March 5, 2021, that the commissioner could
conduct the April 8, 2021 evidentiary hearing, the stipulation sufficiently bound K.A. to
having the commissioner adjudicate the parties’ restraining order requests. (In re Horton,
supra, 54 Cal.3d at pp. 86, 91-93 [party stipulation to commissioner that satisfies
California Constitution, article VI, section 21, may be inferred from attorney’s conduct
without express stipulation by client].)
A sufficient stipulation is shown by the partial record presented because, as
noted, the trial court’s minute order for the March 5, 2021 hearing explicitly stated that
“[b]oth counsel stipulate[d] to [the c]ommissioner[] as the [j]udicial [o]fficer for all
purposes.”
Nothing in the record presented overrides the minute order documenting
K.A.’s counsel’s consent to the commissioner. K.A. notes an absence in the record of a
completed L-200 local court form. The form was required to record written stipulations
to a commissioner and, before 2022, was described by Orange County Superior Court
Local Rules, rule 701, as a “mandatory” form.3
Although K.A. is correct that an executed form was required at the time of
the proceedings, her argument does not support a reversal because the issue was waived

3
Effective January 1, 2022, the language describing the form was amended to
describe the form as “optional.” (Orange County Superior Court Local Rules, rule
701(D).)

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when K.A.’s counsel stipulated on the record to having the commissioner hear the case
for all purposes on March 5, 2021. (See In re Richard S., supra, 54 Cal.3d at p. 866
[otherwise valid stipulation to temporary judge waives claim of error based on absence of
written stipulation].) K.A.’s reliance on Michaels v. Turk (2015) 239 Cal.App.4th 1411
does not change the valid waiver here because that case, which involved a local rule
designed to confirm consent by self-represented parties (id. at p. 1416), is factually inapt
on that point. The appellate court in Michaels held there had been insufficient consent to
a commissioner because “there [was] no indication in the record that [the self-represented
appellant] consented to [a] commissioner presiding over the hearing on [appellant]’s
request for a restraining order.” (Id. at p. 1416.) In contrast, the March 5, 2021 minute
order in this case explicitly documented consent by K.A.’s counsel.
K.A. also argues she was justified in unilaterally excusing herself from the
April 8, 2021 hearing, without notifying either the court or her attorney, due to the
commissioner’s initial position that the case would be reassigned. We are not persuaded.
While K.A. is correct the commissioner initially indicated the case would
be reassigned, the record also shows the commissioner simultaneously communicated
that a judge would be sought to conduct further proceedings the same day. As quoted
ante, K.A.’s attorney agreed the commissioner had not misled the parties to believe the
hearing would be continued to another date. Accordingly, the record does not support a
conclusion that K.A. was excused from further court proceedings for the rest of the day.

K.A. Has Not Shown the Trial Court Abused Its Discretion Denying Her Attorney’s
Request for a Continuance
Next, K.A. asserts the trial court erred by denying her attorney’s request for
a continuance on the afternoon of April 8, 2021, after he was unable to reestablish
communication with K.A. Outside of a respondent’s right to an initial continuance,
“[e]ither party may request a continuance of the [evidentiary] hearing [on a petition for a

9
domestic violence restraining order], which the court shall grant on a showing of good
cause.” (Fam. Code, § 245, subd. (b).) We review the court’s decision whether to grant
or deny a continuance for abuse of discretion.
In her appellate briefing, K.A. relies on J.M. v. W.T. (2020)
46 Cal.App.5th 1136 (J.M.) to argue the commissioner’s denial in this case amounted to
an abuse of discretion. We are not persuaded. In J.M., a plaintiff who had requested a
continuance of the evidentiary hearing on his request for a domestic violence protective
order (Id. at p. 1138), five days before the hearing, had represented to the trial court that
the defendant had not yet been served and plaintiff had been scheduled for a follow up
spine surgery to occur the day before the hearing. (Id. at p. 1140.) When no one
appeared on the day of the hearing, the trial court denied both plaintiff’s request for a
protective order and request for a continuance of the matter. (Id. at pp. 1138-1139.)
The appellate court reversed based on its conclusion the plaintiff had
sufficiently presented good cause to continue the evidentiary hearing. (J.M., supra,
46 Cal.App.5th at p. 1140.) J.M. is distinguishable from this case because the same
information that persuaded the appellate court had been presented to the trial court. In
contrast, here, K.A. simply did not appear for the remainder of the April 8, 2021 hearing,
without any explanation of why. Indeed, her attorney did not provide any documentation
or factual explanation for K.A.’s absence when he requested the court to continue the
matter on the day of the hearing. Accordingly, K.A. has not shown the court abused its
discretion in finding a lack of good cause to continue the matter. (Fam. Code, § 245,
subd. (b); see In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 823
[“Continuances are granted only on an affirmative showing of good cause requiring a
continuance”].)

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K.A. Has Not Shown the Trial Court Abused Its Discretion Denying Her Motion For
Reconsideration
Next, we review K.A.’s argument the trial court abused its discretion when
it denied her motion to reconsider the April 8, 2021 rulings. “Section 1008, subdivision
(a)[,] requires that a motion for reconsideration be based on new or different facts,
circumstances, or law. A party seeking reconsideration also must provide a satisfactory
explanation for the failure to produce the evidence at an earlier time. [Citation.]” (New
York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212.)
In her reconsideration motion, K.A. asserted for the first time she had
become unavailable because of her health condition. She asserted in her declaration the
following: “Sometime during the late morning hours of April 8, 2021, I was informed
that the Commissioner had made the decision that she ‘was not going to touch the matter’
and was going to recuse herself. Upon learning this information, [K.A.’s doctor]
communicated to me that I was to turn off my laptop, cellphone[,] or any other electrical
devise from my bedroom and to get as much sleep as I possibly could. Attached as
Exhibit D is a summary of [the doctor]’s evaluation and discussion with me.” The
exhibit was a document purportedly typed and signed by a doctor, but not under penalty
of perjury.
C.A. filed hearsay and other objections that the trial court sustained. The
evidentiary rulings are not meaningfully discussed in K.A.’s appellate briefing.
The trial court denied K.A.’s motion for reconsideration concluding she had
not provided a “satisfactory explanation for [her] failure to produce” the proffered
information earlier. Given the record and briefing, we discern no abuse of discretion in
the court’s denial of the motion. (Whyte v. Schlage Lock Co. (2002) 101 Cal.App.4th
1443, 1451 [reviewing court generally affirms or reverses exercises of discretion based
on the correctness of the results and not their reasons].)

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K.A.’s Challenges to Trial Court Actions Outside of the Rulings
Finally, we note K.A. contends the trial court erred at the outset of the case
when it only partially granted K.A.’s initial ex parte request for a temporary restraining
order against C.A. According to K.A., the court should have granted her initial request
for C.A. to temporarily “‘stay away’” and “‘move out.’” Assuming without deciding that
the court’s decision was timely appealed (see § 904.1, subd. (a)(6)), we reject the
contention as beyond the scope of K.A.’s appeal, given that neither her notice of appeal,
designation of record, nor civil case information statement identify the trial court’s initial
issuance of a temporary restraining order as challenged on appeal. (See Filbin v.
Fitzgerald (2012) 211 Cal.App.4th 154, 173 [notwithstanding policy of liberally
construing notices of appeal, “‘“[W]here several judgments and/or orders occurring close
in time are separately appealable . . . , each appealable judgment and order must be
expressly specified—in either a single notice of appeal or multiple notices of appeal—in
order to be reviewable on appeal.”’ [Citations.]”.)

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 DISPOSITION
The trial court’s April 8, 2021 dismissal of K.A.’s request for a protective
order and issuance of a protective order by respondent against K.A. are affirmed.
Respondent is entitled to recover her costs on appeal.

MARKS, J.*

WE CONCUR:

O’LEARY, P. J.

MOTOIKE, J.

*Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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