Appellant seeks reversal of a judgment entered upon a referee’s statement of decision. The sole ground for appeal is the referee’s alleged failure to take the oath required of temporary judges by California Rules of Court, rule 244, and the California Constitution, article VI, section 21.
The appeal fails because it is based on a mistaken assumption concerning the form of alternative dispute resolution employed here. The appeal
wrongly assumes a temporary judge tried this case. Instead, trial was conducted by a referee on a general reference pursuant to Code of Civil
Statement of Facts and Procedural Background
This case arose out of a work-related injury at a construction site. Kajima Engineering and Construction, Inc. (Kajima) sued defendants (collectively Pacific Bell) to recover workers’ compensation benefits paid to its injured employee, Manuel Gonzalez. Gonzalez joined the litigation as a plaintiff in intervention, seeking to recover from Pacific Bell for his personal injury.
The case was assigned for all purposes to Judge Hugh Michael Brenner. The parties stipulated on the record to have the action tried by Edward Y. Kakita, a retired superior court judge. At the conclusion of a four-day bench trial, Judge Kakitа ruled in favor of Pacific Bell and against Kajima and Gonzalez. Judge Kakita issued a statement of decision setting forth his findings of fact and law and filed it in the Orаnge County Superior Court.
Judge Brenner entered judgment on the statement of decision. The parties thereafter litigated the issues of costs, with Pacific Bell seeking over $35,000 and Kajima and Gonzalez moving to tax the costs claimed. Judge Brenner granted the motion to tax costs, allowing Pacific Bell just over $4,000 in costs. Only Gonzalez has appealed the judgment.
Discussion
1. Judge Kakita Was Not Required to Take an Oath.
Gonzalez argues the judgment is void because Judge Kakita did not take an oath before рresiding over the trial—a constitutional prerequisite to serving as a temporary judge. (Cal. Const., art. VI, § 21; City of Shasta Lake v. County of Shasta (1999)
“A reference by the trial court involves the sending of a pending action or proceeding, or some issue raised therein, to a referee for hearing, determination and report back to the court. ... [f] ... A ‘general’ reference is conducted pursuant to section 638, subdivision ([a]), which authorizes the trial court to refer any or all issues to a referee for trial and determination, provided that the parties have agreed thereto in an agreement filed with the clerk or judge or entered in the minutes or dоcket. [Citations.]” (Jovine v. FHP, Inc. (1998)
In contrast to the circumscribed authority of a referеe, a temporary judge has broad powers. “Such judicial officers are authorized to perform judicial functions pursuant to California Constitutiоn, article VI, section 21 and their powers are governed by California Rules of Court, rule 244. Such a temporary judge has the power to render a judgment which is appealable in the same manner as one rendered by a constitutional judge. [Citation.]” (Old Republic Ins. Co. v. St. Paul Fire & Marine Ins. Co. (1996)
In Old Republic Ins. Co. v. St. Paul Fire & Marine Ins. Co., supra,
Similarly, in the present matter, the assigned judge (Judge Brenner) entered judgment on the statement of decision filed by Judge Kakita. Judge Kakita’s lаck of authority to enter judgment establishes he served as a referee on a general reference rather than as a temporary judgе. (Old Republic Ins. Co. v. St. Paul Fire & Marine Ins. Co., supra,
We conclude the judgment was properly entered by the superior court following a general reference to a referee. Consequently, Gonzalez’s challenge to the validity of the judgment fails.
2. Pacific Bell’s Sanctions Request Is Procedurally Improper.
Pacific Bell requests sanctions against Gonzalez and his attorney on the ground the appeal is frivolous. The request is procedurally improper. A party seeking sanctions on appeal must file a separate motion for sanctions that complies with the requirements of Rules of Court, rule 41. (Rules of Court, rule 26 (e).) Paсific Bell failed to file a separate sanctions motion and is thus not entitled to be heard on the subject. The request for sanctions is denied.
3. Paсific Bell Cannot Challenge the Postjudgment Order on Costs.
Pacific Bell seeks review of the postjudgment order granting Kajima and Gonzalez’s motion to tax costs. But Pacific Bell committed a fundamental error which precludes our review of the order: It failed to file a notice of appeаl.
Disposition
The judgment is affirmed. Respondent Pacific Bell is entitled to its costs on appeal.
Sills, P. J., and Moore, J., concurred.
Notes
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
In connectiоn with its attempt to gamer a review of the order granting the motion to tax costs, Pacific Bell asks this court to take judicial notice of the parties’ stipulation concerning the briefing schedule which sets a deadline for Pacific Bell’s “Opening Brief on potential Cross-Appeal.” (Italics added.) Apparently, Pacific Bell hopes we will construe the stipulation as a notice of appeal. We will not. The parties’ acknowledgment of a “potential’ cross-appeal is no substitute for filing a notice of appeal. Moreover, to the extent Pacific Bell argues this stipulation gives it the “right to raise the issue [оf the cost bill],” we note jurisdiction cannot “ ‘be conferred upon the appellate court by the consent or stipulation of the parties[.]’ ” (Hollister Convalescent Hosp., Inc. v. Rico (1975)