25CV01828, John W. Conomos v. Landsdown
Plaintiff John W. Conomos (“Plaintiff’) filed the presently operative complaint (“Complaint”) against defendants Melissa Lansdown (“Defendant”), Ellis Greenberg (“Greenberg”)[1], as well as and Does 1-20. This matter is on calendar for the motion by Defendant under Code Civ. Proc. (“CCP”) § 473 (d) to set aside the judgment.
Plaintiff has filed a late opposition noting that they were not served with the hearing date resulting from the ex parte order shortening time. The Court considers the opposition on the merits.
The motion to set aside is GRANTED.
- Set Aside Under CCP § 473(d)
A court may upon motion of a party set aside a void judgment or order. CCP §473(d). Entry of a default while a responsive pleading is on file renders such default void. Johns v. Mongan (1961) 190 Cal.App.2d 94, 97. “Although courts have often also distinguished between a judgment void on its face, i.e., when the defects appear without going outside the record or judgment roll, versus a judgment shown by extrinsic evidence to be invalid for lack of jurisdiction, the latter is still a void judgment with all the same attributes of a judgment void on its face.” County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1226.
“On stipulation of the parties litigant the court may order a cause to be tried by a temporary judge who is a member of the State Bar, sworn and empowered to act until final determination of the cause.” Cal. Const., art. VI, § 21. A commissioner is empowered to act as a temporary judge “when otherwise qualified so to act and when appointed for that purpose, on stipulation of the parties litigant.” CCP, § 259 (d). “The power of a court commissioner to act as a temporary judge emanates solely from stipulation by the parties to the proceeding.” Nierenberg v. Superior Court (1976) 59 Cal.App.3d 611, 616. However, stipulations may be either express, or implied based on the facts and conduct of the parties. In re Courtney H. (1995) 38 Cal.App.4th 1221, 1227. Where there is no valid stipulation to the commissioner, any act taken under CCP § 259 (d) is without jurisdiction, and orders thereon are void. In re Steven A. (1993) 15 Cal.App.4th 754, 772. The burden is on the party seeking relief from a commissioner’s order that it was entered without the party’s stipulation to the commissioner. Elena S. v. Kroutik (2016) 247 Cal.App.4th 570, 575.
- The Ruling on the Motion to Quash is Void
Defendant filed a motion to quash on April 21, 2025. In the motion, Defendant expressly stated that she does not stipulate to a commissioner. The motion further stated that Defendant would not be appearing at the hearing on the motion, but would instead be submitting on the papers pursuant to California Rules of Court, Rule 3.1304(c). The matter came before Commissioner David Kim on April 25, 2025, and was dropped for failure to serve. Defendant refiled the same motion to quash (with the same non-stipulation and submission on the papers) on May 19, 2025. At the hearing on May 29, 2025, Commissioner Kim again heard the matter, and dropped the matter for non-appearance of the parties. Plaintiff subsequently obtained Defendant’s default on June 25, 2025. Judgment and a writ of possession followed. The instant motion was filed on September 15, 2025, seeking to set aside the judgment because the ruling on the motion to quash, and every subsequent action in the case, was void.
Defendant argues, and successfully shows, that her motion to quash was her first appearance in the case, and that the motion expressly denied stipulation to the commissioner hearing the matter. This cannot be interpreted as either the express or implied stipulation to the commissioner, as it represented an express repudiation of the stipulation. The ruling by the commissioner issued without stipulation of the parties on the motion to quash is void. In re Steven A. (1993) 15 Cal.App.4th 754, 772. Given that the ruling on the motion to quash has been rendered void, that motion was still effectively unadjudicated at the time the clerk entered the default. The clerk does not have the power to enter a default when there is a responsive pleading before the court. Johns v. Mongan (1961) 190 Cal.App.2d 94, 97. The default, and subsequent judgment, are therefore similarly void. The court must grant Defendant’s motion to set aside under CCP § 473(d).
Plaintiff’s opposition fails to rebut the void nature of the ruling on the motion to quash. Plaintiff argues that the motion fails to show diligence, excusable neglect, or that there is any merit to the Defendant’s motion to quash in the first instance. None of these appear relevant, because the ruling thereon is void regardless of these issues. Whether or not Defendant’s motion to quash has any merit, Defendant has a constitutional right to have that determined by a judge. The decision on the instant motion is governed accordingly.
Defendant’s motion to set aside the ruling on the motion to quash, the default, and the judgment is GRANTED. The writ of possession is VACATED.
Defendant shall submit a written order to the court consistent with this tentative ruling and in compliance with Rule of Court 3.1312(a) and (b). Thereafter, the Court will set Defendant’s motion to quash for hearing.
[1] Greenberg has made no appearance in the case, and as such is not relevant to determination of this motion.