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Commissioner May Decide Application for TRO Without Stipulation of Parties, C.A. Declares
By a MetNews Staff Writer
A court commissioner may rule on an ex parte application for a temporary restraining order absent a stipulation by the parties, Div. Three of the Fourth District Court of Appeal held yesterday.
Justice Thomas M. Goethals authored the unpublished opinion affirming the denial of a TRO by Orange Superior Court Commissioner Glenn Mondo.
Goethals pointed to Code of Civil Procedure §259 which provides:
“Subject to the supervision of the court, every court commissioner shall have power to do all of the following: [¶](a) Hear and determine ex parte motions for orders and alternative writs and writs of habeas corpus in the superior court for which the court commissioner is appointed.”
He wrote:
“Section 259, subdivision (a), specifically allows commissioners to decide ex parte motions without a stipulation….There is no difference between an application for a TRO and a motion. A motion is simply an ‘application for an order.’…An ex parte application for a TRO is a request for an order from the court. Therefore, an ‘ex parte motion’ includes an ex parte application for a TRO; a commissioner can review and decide them without a stipulation from the parties.”
By contrast, §259(d) requires a stipulation when a commissioner acts “as temporary judge.”
The case is Lopez v. Elias, G061430.
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