Foosadas

This case presents an important question concerning the right of a litigant to the performance of a judicial function by a judicial officer.

The defendant was denied a preliminary hearing before a judge on the ground that he impliedly stipulated to the service of a temporary judge in lieu of a judge in any proceeding in the case because he failed to file “an oral or written objection ... in open court prior to the commencement of the first hearing on the matter.” He filed a writ petition in this court seeking to set aside an order issued pursuant to the rule and to set a preliminary hearing before a judicial officer.

We issued a Palma letter to consider the validity of the rule. (See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171 [ 203 Cal.Rptr. 626 , 681 P.2d 893 ].) The real party in interest, represented by the Attorney General, conceded the rule was in error in its response on the merits but argued that since the commissioner before whom the preliminary hearing was to be held (Commissioner Kronlund) has been appointed to the superior court, any relief granted would “necessarily address a hypothetical situation.” 1 We disagree. The issue on appeal does…