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Jerry Nickell v. Tonie Matlock et al

June 4, 2012


(Los Angeles County Super. Ct. No. MC018074) APPEALS from a judgment of the Superior Court of Los Angeles County, Brian C. Yep, Judge, and Robert A. McSorely, Commissioner.

The opinion of the court was delivered by: Mallano, P. J.


Reversed with directions.

It is hornbook law that a defaulting defendant cannot participate in a prove-up hearing. (See 6 Witkin, Cal. Procedure (5th ed. 2008) Proceedings Without Trial, § 175, p. 617; 46 Am.Jur.2d (2006) Judgments, § 304, pp. 629-630; 40A Cal.Jur.3d (2006) Judgments, § 40, pp. 75-76.) In California, however, there is a statutory exception to this rule in quiet title actions (Code Civ. Proc., § 764.010; all undesignated section references are to that code). Here, the trial court did not allow the defaulting defendants to put on evidence at a prejudgment evidentiary hearing.

We conclude the default judgment must be reversed so defendants may participate in a prejudgment evidentiary hearing to determine the merits of the quiet title action.



According to the operative complaint, plaintiff Jerry Nickell owned real property in Littlerock, California. The parcel was subdivided into a "north half" and a "south half." Nickell intended to sell the north half to defendant Tonie Matlock and to keep the south half for himself. Defendant Paul Matlock, Tonie's husband, was not a party to the transaction. The escrow company prepared a grant deed that incorrectly described the transferred property as the entire parcel. Nickell discovered the misdescription before the closing date and brought it to the attention of the escrow agent. He was told the escrow company would correct the error after the closing. On August 3, 2006, Nickell executed the grant deed conveying the entire parcel to Tonie Matlock. The deed was recorded on August 29, 2006, and escrow closed. The escrow company never corrected the error in the deed.

After the sale, Nickell lived on the south half of the parcel, where he built a house. The Matlocks lived on the north half in a house built before the sale. At some point, the Matlocks threatened to have Nickell removed from the south half, asserting Tonie had purchased the entire parcel. Nickell did not "enter[] his property [after the Matlocks] ejected him from [it]."

On April 2, 2007, Nickell filed this quiet title action against the Matlocks. Amended complaints followed. The second amended complaint became the operative complaint. The Matlocks filed a verified answer to each of the three complaints.

Discovery commenced. The Matlocks repeatedly failed to appear for their depositions even though the trial court ordered their appearance. Nickell moved for terminating and monetary sanctions. On July 28, 2009, the trial court, Judge Brian C. Yep presiding, granted the motion as to Paul Matlock only, awarding monetary sanctions in the amount of $715 and ordering that Paul's answer be stricken and his default entered. Tonie Matlock met the same fate by order dated December 10, 2009, but without monetary sanctions.

On August 10, 2010, the trial court, Commissioner Robert A. McSorely presiding, entered judgment, quieting title in favor of Nickell. The judgment recites that the Matlocks appeared in the case and that their answers were stricken and their defaults entered. The docket entries in the trial court reflect that no evidentiary hearing was held. The judgment does not indicate otherwise but states that "evidence ha[s] been introduced by the declaration [sic] of Jerry Nickell and his attorney."

The record does not show that the clerk of court or a party served the Matlocks with a file-stamped copy of the judgment or a "notice of entry" of the judgment.

On September 23, 2010, Tonie Matlock filed a motion to vacate the default and the default judgment. Paul did not file such a motion. By order dated December 14, 2010, the trial court denied Tonie's motion. Nickell contends the motion was denied by order on October 13, 2010.

Tonie Matlock filed an appeal from the judgment on January 14, 2011. Paul Matlock separately appealed on February 4, 2011. The two appeals were assigned the same case number in this court.

Nickell filed a motion as to each appeal, seeking their dismissal as untimely. We deferred ruling on the motions ...

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