Judge Pro Tem. Small claims courts frequently use pro tem judges to hear cases. "Pro tem" is short for the Latin phrase pro tempore, which means temporary. Accordingly, a "judge pro tem" refers to someone who has been a lawyer for at least 10 years and is trained to hear and decide small claims cases. The person temporarily serves in place of a regular judge. Because of budget constraints and the shortage of judges, small claims courts make extensive use of temporary judges.
Commissioner. A small claims commissioner is a step above a pro tem and a step below a judge. Instead of being volunteers who fill in from time-to-time, commissioners are paid a salary and hired full-time to hear small claims cases.
Right to Decline. Parties to a small claims action are not required to use commissioners or pro tem judges. If one of the parties does not want a temporary judge, they can ask the court to have a judge hear the case. That may require coming back on another day when a judge is available.
As provided for in California Rules of Court, Rule 2.816(d): A party stipulates to a court-appointed temporary judge by either of the following:
(1) The party is deemed to have stipulated to the attorney serving as a temporary judge if the party fails to object to the matter being heard by the temporary judge before the temporary judge begins the proceeding; or
(2) The party signs a written stipulation agreeing that the matter may be heard by the temporary judge.
Section 259(d) of the Code of Civil Procedure provides that a commissioner has the power to act as temporary judge upon stipulation of the parties. Where a party fails or refuses to stipulate, actions of a commissioner are void, as in excess of jurisdiction. (Yetenekian v. Superior Court (1983) 140 Cal.App.3d 361.)
Section 170.6 of the Code of Civil Procedure allows replacement of any judicial officer (pro tem, commissioner, or appointed judge) if timely made. Parties must object at their first opportunity in small claims court or the objection may be deemed waived, i.e., a stipulation may be implied by the parties’ conduct. (Foosadas v. Superior Court (2005) 130 Cal.App.4th 649.)
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