Mosler v. Parrington

Opinion

COBEY, Acting P. J. Ellen Mosler, plaintiff, appeals from an order staying proceedings in her action against William Farrington, defendant. This order was made on “the ground that the commissioner in this contested .case had no jurisdiction to- hear and determine the merits of plaintiff’s claim and make findings respecting any alleged fraud of defendant except upon written stipulation of the parties litigant or upon written notice of a default hearing to be heard by the Court.”

This order is appealable as an order made after an appealable judgment (see Code Civ. Proc., § 904.1, subd. (b)) because the judgment referred to in the order is a purported default judgment rendered in 1968 for $66,000 following “dismissal” of defendant’s answer (see 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, §§ 81, 82, pp. 4091-4094) and because the order under appeal would appear to be equivalent in its effect to an order vacating the judgment as a nullity. (See 6 Witkin, op. cit, § 88, p. 4097.)

The sole question on. this appeal is whether the purported 1968 default judgment is a nullity. We hold that it is. Article VI, section 21 of the California Constitution provides that on stipulation of the parties litigant the court may order a case to be tried by a temporary judge. Subdivision 4 of Code of Civil Procedure section 259a empowers superior court commissioners in Los Angeles County to act as temporary judges, when otherwise qualified so to act and when appointed for that purpose. Subdivision 6 of section 259a further enables superior court commissioners in Los Angeles County, when ordered by the court appointing them so to do, “to hear, report on and determine all uncontested actions and proceedings” other than domestic relations actions.

In this case a commissioner of the Los Angeles County Superior Court was apparently duly appointed to hear plaintiff’s motion that defendant’s answer be stricken and that a judgment by default be rendered against defendant pursuant to Code of Civil Procedure section 2034, subdivision (b) [357](2) (iii). Defendant, appearing in propria persona, failed to appear at the hearing of the motion and, contrary to the minutes of the court, no stipulation was obtained from defendant that the commissioner, as a temporary judge, might hear and determine the motion.

People v. Tijerina, 1 Cal.3d 41, 48-49 [81 Cal.Rptr. 264, 459 P.2d 680], holds that in the absence of the aforementioned stipulation, required by our Constitution, a Los Angeles County Superior Court commissioner may not act as a temporary judge pursuant to section 259a, subdivision 4 because under the Constitution he is not then “otherwise qualified so to act.” (See also Lovret v. Seyfarth, 22 Cal.App.3d 841, 852-853 [101 Cal.Rptr. 143].)