Nickell v. Matlock CA2/2 ( 2014 )

Filed 4/3/14 Nickell v. Matlock CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
JERRY NICKELL, B246970
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MC018074)
v.
TONIE MATLOCK et al.,
Defendants and Appellants.
APPEAL from orders and a judgment of the Superior Court of Los Angeles
County, Carol Koppel, Judge. (Retired judge of the L.A. Sup. Ct. assigned by the Chief
Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Tonie Matlock, in pro. per., for Defendant and Appellant.
Paul Matlock, in pro. per., for Defendant and Appellant.
Charlton Weeks and Erik Gunderson for Plaintiff and Respondent.
_____________________________________________
This is the second time this matter has come before us. In Nickell v. Matlock
(2012) 206 Cal. App. 4th 934 (Nickell I) we addressed the issue of whether a defaulted
defendant was entitled to participate in an open-court evidentiary hearing in a quiet title
action pursuant to Code of Civil Procedure section 764.010. We answered affirmatively,
remanding to allow the trial court to hold an open-court evidentiary hearing in which the
defaulted defendants, Tonie and Paul Matlock, could participate and awarding the
Matlocks their costs on appeal.
The open-court evidentiary hearing now has been held, a judgment quieting title
and providing other relief has been entered in favor of the plaintiff, Jerry Nickell, and the
Matlocks have appealed.
We hold that, due to the default entered against them, the Matlocks have no right
to appeal any aspect of the judgment that does not arise from their right to participate in
an open-court evidentiary hearing on the quiet title cause of action. As to matters that
might arise from their right to participate in an open-court evidentiary hearing on the
quiet title cause of action, the Matlocks have failed to provide the court with a record on
appeal that supports their contentions. Their failure to do so requires that we affirm.
PROCEDURAL AND FACTUAL BACKGROUND
A. The first appeal
Nickell sold real property to the Matlocks, there was a dispute as to what property
he conveyed, and Nickell sued the Matlocks and others to quiet title and for other relief.
The trial court issued terminating sanctions against Tonie Matlock and terminating and
monetary sanctions against Paul Matlock for discovery abuses and entered their default
and a default judgment against them, without allowing the Matlocks to participate in an
open-court evidentiary hearing on the quiet title cause of action. (Nickell I, supra, 206
Cal.App.4th at pp. 938–940.) The Matlocks appealed. This court reversed the judgment
and remanded, instructing the trial court to allow the Matlocks to “participate in an open-
court evidentiary hearing to determine the merits of the quiet title action.” (Id. at p. 947.)
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B. This appeal
The trial court held an open-court evidentiary hearing over a three-day period in
December 2012 and January 2013. The Matlocks were represented by counsel. The
hearing was continued twice at the Matlocks’ request “to give the Matlocks additional
time and opportunity to provide the court with additional documentary and other
evidence . . . .” On all three hearing dates, the Matlocks “actually participated in the
open-court evidentiary hearing by way of proffering testimony and documentary
evidence and by conducting cross-examination of witnesses and questioning of all parties
and counsel by the Court.” The trial court signed a settled statement and a statement of
decision prepared by Nickell. The court found in favor of Nickell on all his causes of
action and entered judgment for him on January 25, 2013.
After judgment was entered, the Matlocks sought recovery of costs on appeal
pursuant to this court’s order. Each sought $213.66, for a total of $427.32. On October
5, 2012, Nickell filed a “Motion to Tax Costs (CLAIMED ON APPEAL AND FOR
OFFSET OF APPEAL COSTS AGAINST OUTSTANDING SANCTIONS (HEARING
11/29/12)).” This motion is missing from the superior court’s file and the appellate
record, as is any order that resulted therefrom. From the arguments of the parties and the
court’s file, we glean that the motion to tax contained a request that the trial court offset
against the award of costs on appeal a prior award of monetary sanctions for abuse of
discovery against Paul Matlock or the Matlocks. We also glean that the trial court
declined to tax costs but did offset against the cost award the amount of monetary
sanctions for abuse of discovery that had been issued previously. The record on appeal
does not indicate that the Matlocks’ defaults were ever vacated.
The Matlocks appeal the results of both the “motion to tax costs” and the decision
on the merits of the quiet title action. Nickell does not dispute the ripeness or timeliness
of this appeal. Nickell and the Matlocks are the only parties to this appeal.
In December 2013, we augmented the record by ordering the superior court file.
We take judicial notice pursuant to Evidence Code section 452, subdivision (b) of
Nickell’s proposed settled statement, signed by the court and filed on January 15, 2013,
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Nickell’s proposed statement of decision, signed by the court and filed on February 25,
2013, and the absence of any order setting aside the Matlocks’ default. For ease of
analysis, we set forth the contents of the settled statement and the statement of decision
where they are discussed below.
THE MATLOCKS’ ARGUMENTS ON APPEAL
The Matlocks’ opening brief recites that they are appealing from a December 27,
2012 order on a motion to tax the Matlocks’ costs and also on the merits of the judgment
on the quiet title action.
A. “Motion to tax costs” arguments
Nickell made a motion to tax the costs on appeal claimed by the Matlocks, which
the trial court apparently denied. The Matlocks have no right or reason to appeal that
favorable order. (See Maxwell Hardware Co. v. Foster (1929) 207 Cal. 167, 170 [if
judgment or order is in favor of party, that party is not “aggrieved” and lacks standing to
appeal favorable order]; Ruben v. City of Los Angeles (1959) 51 Cal. 2d 857, 864.)
Thus, it appears that, notwithstanding the title of the opening brief, the Matlocks’
appeal is not of the favorable ruling on the motion to tax costs, but rather of the trial
court’s order on Nickell’s request in the motion to offset the award of costs on appeal by
the amount that had been awarded as monetary sanctions for abuse of discovery against
the Matlocks in favor of Nickell prior to Nickell I. In essence, the Matlocks challenge the
court’s order issuing monetary sanctions for discovery abuse, which was made before the
Matlocks’ default was entered prior to the first appeal.
The Matlocks’ arguments as to “the motion to tax costs” appear to be as follows:
1. The monetary sanctions awarded against them for discovery abuse prior to the
first appeal should not have been offset against this court’s award of costs on appeal in
their favor because the sanctions award nullifies and effectively overturns this court’s
order awarding costs on appeal.
2. Attorney fees should have been awarded as costs to the Matlocks.
3. Copying costs should have been calculated at a higher rate per page.
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4. This court should issue an order requiring counsel for Nickell to produce
documents concerning its liability insurance.
B. Quiet title arguments
The Matlocks argue:
1. The opinion of this court in the prior appeal required that the Matlocks prevail
on the merits in the quiet title action.
2. The trial court erred because the Matlocks did not receive sufficient notice of
the open-court evidentiary hearing.
3. The trial court erred by not insuring that the Matlocks were provided with
witness lists 45 days before “trial.”
4. The Matlocks’ due process rights were violated.1
DISCUSSION
A. The Matlocks’ appeal as to issues other than those that arise out of their right to
participate in an open-court evidentiary hearing on the quiet title cause of action are
barred because the Matlocks are defaulted parties.
Where a default judgment is entered against a party, that party is held “‘to
“confess” the material facts alleged by the plaintiff,’” and the default “‘has the same
effect as an express admission of the matters well pleaded in the complaint. The
judgment is, in consequence, res judicata on the issue of the right to the relief awarded.’”
(Steven M. Garber & Associates v. Eskandarian (2007) 150 Cal. App. 4th 813, 823,
quoting 6 Witkin, Cal. Procedure (4th ed. 1997) Proceedings Without Trial, § 153,
p. 570.) “A classic statement of the rule is found in Brown v. Brown (1915) 170 Cal. 1, 5:
‘The judgment which follows upon this sort of admission is, in contemplation of law, a
complete adjudication of all the rights of the parties embraced in the prayer for relief and
1 During oral argument the Matlocks argued for the first time that the property had
been subdivided illegally. We allowed both sides to file letter briefs. We have concluded
that the Matlocks’ argument lacks merit because, inter alia, any division of the property
occurred in 1961 or 1962 and the Subdivision Map Act states that “any parcel created
prior to 1972 shall be conclusively presumed to have been lawfully created.” (Gov.
Code, § 66499.6.)
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arising from the facts stated in the complaint, including the facts in his favor as well as
those against him. The defendant here is presumed to have acceded to the proposition
embraced in the complaint and to have consented that plaintiff should obtain the relief
therein prayed for, upon the conditions and facts set forth in the complaint.’” (Steven M.
Garber & Associates, at p. 823, fn. 10.)
In a quiet title action, however, a defaulting defendant is accorded a right that
defaulting parties in other matters do not possess. The defaulting defendant is entitled
pursuant to Code of Civil Procedure section 764.010 to participate in an open-court
evidentiary hearing to determine the merits of the quiet title action. (Nickell I, supra, 206
Cal.App.4th at p. 938.)
A defaulting defendant in a quiet title action is not relieved of the other disabilities
imposed as a result of the default. As the court recognized in Harbour Vista, LLC v.
HSBC Mortgage Services Inc. (2011) 201 Cal. App. 4th 1496 (Harbour Vista), quoted in
Nickell I, supra, 206 Cal.App.4th at page 942, “[I]t is not true . . . that allowing a
defendant to participate in a quiet title judgment hearing nullifies the legal effect of a
default. . . . [Code of Civil Procedure] section 764.010 does not prohibit a quiet title
plaintiff from taking a defendant’s default. Once that happens, the defendant is severely
disadvantaged. The plaintiff is no longer required to serve documents on it or give notice
of any future court dates. . . . This cuts the defendant off from the most readily available
source of information about the case. The defendant also cannot participate in any other
hearings or conferences with the court. In fact, the most likely outcome is that the
defaulting defendant will not learn of the hearing to adjudicate title until it is too late to
attend.” (Harbour Vista, supra, 201 Cal.App.4th at pp. 1504–1505, citation omitted.)
After an evidentiary hearing is held and a default judgment is entered, a defaulting
defendant in a quiet title action “will have to move to have the default and the judgment
set aside under [Code of Civil Procedure] section 473, subdivision (b), in order to contest
the judgment.” (Harbour Vista, at p. 1508.)
Our decision in Nickell I and the decision in Harbour Vista clearly contemplate
that, although Code of Civil Procedure section 764.010 does not allow a defaulting
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defendant in a quiet title action to be deprived of the right to participate in the open-court
evidentiary hearing, a defaulting defendant in a quiet title action is still burdened with all
the other consequences that befall a defendant who has had a default judgment entered
against him.
The Matlocks have not confined their arguments on appeal to issues arising from
their right to participate in the open-court evidentiary hearing. Their arguments
concerning “the motion to tax costs” listed above range beyond those issues and cannot
be considered on appeal because the Matlocks never cured their defaults. Thus, we need
not address their arguments.2
B. The record on appeal is inadequate to support the Matlocks’ arguments arising
from their right to an open-court evidentiary hearing on the quiet title cause of
action.
1. The record on appeal does not provide a basis for concluding the trial
court erred on the merits in any way in ruling on the quiet title action.
a. Appeal on an incomplete record
Rule 8.163 of the California Rules of Court addresses the standards to be applied
when the record on appeal is incomplete. It provides: “The reviewing court will presume
that the record in an appeal includes all matters material to deciding the issues raised. If
the appeal proceeds without a reporter’s transcript, this presumption applies only if the
claimed error appears on the face of the record.” The consequence of this rule is that, if
the record on appeal does not show error on its face, the Court of Appeal will presume in
the absence of a reporter’s transcript that the trial court did not err. (Dumas v. Stark
(1961) 56 Cal. 2d 673, 674; Codekas v. Dyna-Lift Co. (1975) 48 Cal. App. 3d 20, 23, fn. 1.)
Moreover, where the appeal does not contain a reporter’s transcript, the reviewing
court presumes there was substantial evidence to support the judgment. “‘It is elementary
2 Even if we could, the Matlocks have failed to provide us with a copy of the
motion seeking the offset or the order granting the offset. Nor have they provided any
evidence that they raised in the trial court the issues on which they now appeal. Indeed,
the record indicates that such costs were not included in their cost bills.
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and fundamental that on a clerk’s transcript appeal the appellate court must conclusively
presume that the evidence is ample to sustain the findings, and that the only questions
presented are as to the sufficiency of the pleadings and whether the findings support the
judgment.’ [Citations.]” (Ehrler v. Ehrler (1981) 126 Cal. App. 3d 147, 154.)
b. The record on appeal supplied by the Matlocks
The record on appeal supplied by the Matlocks consists primarily of the opinion
we issued in this case on June 4, 2012 (Nickell I, supra, 206 Cal. App. 4th 934), the
Matlocks’ notices of the current appeal and designations of the record on this appeal, the
superior court’s case summary, filings concerning peremptory challenges, the Matlocks’
memorandum of costs on appeal and their brief in opposition to Nickell’s motion to tax
costs on appeal and for offset, court filings concerning the scheduling of the hearing on
the motion to tax costs and for an evidentiary hearing on the merits of Nickell’s quiet title
cause of action, documents concerning the chapter 7 bankruptcy of Tonie Matlock,
documents concerning the Matlocks’ representation agreement with counsel and
substitution of counsel, the Matlocks’ motion to use a settled statement in lieu of a
reporter’s transcript, the Matlocks’ proposed settled statements, and the trial court’s order
approving Nickell’s proposed settled statement. The Matlocks’ civil case information
sheet attaches the judgment signed by the trial court. The Matlocks have not included in
the record any reporter’s transcript of the proceedings.
The principal documentation offered by the Matlocks as to the evidence adduced
and the legal theories pursued at the open-court evidentiary hearing consists of their own
proposed settled statements. The trial court did not sign them and instead adopted the
settled statement and statement of decision submitted by Nickell, which contradict the
Matlocks’ settled statements.
Nickell contends the record on appeal is inadequate to support the Matlocks’
arguments. Nickell argues in pertinent part that the Matlocks’ failure to include in the
record on appeal any document describing the evidence adduced at the open-court
evidentiary hearing is fatal to the Matlocks’ appeal. We agree there is no support in the
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record from which we may conclude the trial court erred in any legal decision, in
exercising its discretion, or in ruling without substantial evidence.
c. The statement of decision and settled statement signed by the
trial court
The statement of decision submitted by Nickell and signed by the trial court on
February 25, 2013, states the following.
“The open court evidentiary hearing having started December 27, 2012 and held
thereon, and having been continued at the request of the Matlocks to January 7, 2013 and
held thereon, and having been continued again at the request of the Matlocks to
January 15, 2013 and held thereon, on all three dates of the evidentiary hearing, all
parties present having actually participated in the open-court evidentiary hearing by way
of proffering testimony and documentary evidence and by conducting cross-examination
of witnesses and questioning of all parties and counsel by the Court.
“The Court, after consideration of all evidence and argument described
hereinabove, finds as follows:
“1. Jerry Nickell, Tonie Matlock and Paul Matlock, and each of them, on July 27,
2006, [were] experienced in real estate transactions. Jerry Nickell was an experienced
builder of property and both Tonie Matlock and Paul Matlock had been owners of several
other parcels of real estate which they had purchased and rented to third parties. All of
them had been parties to contracts to buy or sell real estate prior to this date, and all
possessed the intellectual understanding of the importance of contracts to buy and sell
real property and the identification of property within those transactions.
“2. On July 27, 2006, Jerry Nickell was the owner of two parcels of property, one
identified as 37424 90th Street East, Littlerock, CA 93543, APN 3042-015-007, and the
other identified as 37418 90th Street East, Littlerock, CA 93543, APN 3042-015-008.
On that date, both parcels had been substantially improved and had large single-family
houses substantially near completion built upon them as of that date. Each parcel is
approximately one-half acre in size.
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“3. An agreement by which Jerry Nickell agreed to sell, and Tonie Matlock
agreed to buy, improved real property identified as 37424 90th Street East, Littlerock, CA
93543, APN 3042-015-007 to Tonie Matlock in exchange for payment of $435,900.00 to
Jerry Nickell was reached on July 27, 2006. There was no mistake of fact or law as to the
transaction between Jerry Nickell on the one hand and Tonie Matlock on the other hand
as to improved real property identified as 37424 90th Street East, Littlerock, CA 93543,
APN 3042-015-007.
“4. Based upon then-prevailing market conditions, $435,900 was a fair and
appropriate price for improved real property identified as 37424 90th Street East,
Littlerock, CA 93543, APN 3042-015-007, which was (and is) a parcel of land of one-
half acre with a single family home improved thereon.
“5. However, $435,900 would not have been fair and appropriate for one acre of
land with two houses improved thereon, and it would have been significantly lower than
prevailing market conditions for a transaction of two houses and two half-acre lots. It
was not Jerry Nickell’s intent to sell two houses on two half-acre parcels for the then-
prevailing price of a single house on a single half-acre parcel.
“6. In this transaction, Jerry Nickell did not intend to sell property identified as
37418 90th Street East, Littlerock, CA 93543, APN 3042-015-008 to Tonie Matlock,
both of them, or any entity or trust owned or controlled by either or both of them, or any
entity or trust owned or controlled by either or both of them.
“7. There was no other transaction for Jerry Nickell to sell any real property to
Tonie Matlock, Paul Matlock, both of them, or any entity or trust owned or controlled by
either or both of them.
“8. Property identified as 37418 90th Street East, Littlerock, CA 93543, APN
3042-015-008, was not included as an incentive to . . . Tonie Matlock, Paul Matlock, both
of them, or any entity or trust owned or controlled by either or both of them in the sale of
property identified as 37424 90th Street East, Littlerock, CA 93543, APN 3042-015-007
from Jerry Nickell to Tonie Matlock and Paul Matlock.
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“9. As individuals who were at the time experienced in the transaction and sale of
real estate, Tonie Matlock, Paul Matlock, or both of them could have insisted on
identification of the property to be conveyed in the transaction to explicitly include the
improved real property known as 37418 90th Street East, Littlerock, CA 93543, APN
3042-015-008, through inclusion of that property to be identified by assessor’s parcel
number, street address, total square footage of property improvements, or through
reference to two single-family homes. None of this happened, as reflected in the
purchase-sale contract, escrow instructions, property listings, property appraisals, title
insurance, disclosures of the conditions of the property, tax documents, or any other
documents prepared contemporaneously with the agreement to sell the property.
“10. As a matter of fact, the Court finds that Jerry Nickell did not sell the
improved real property known as 37418 90th Street East, Littlerock, CA 93543, APN
3042-015-008 to . . . Tonie Matlock, Paul Matlock, both of them, or any entity or trust
owned or controlled by either or both of them.
“11. The claim of Tonie Matlock and Paul Matlock that because at one time real
property known as 37424 90th Street East, Littlerock, CA 93543, APN 3042-015-007 and
real property known as 37418 90th Street East, Littlerock, CA 93543, APN 3043-015-
008 were once a single lot and at one time a county planning document made reference to
parcels with a minimum lot size of one acre renders both parcels forever together and
inseparably parts of a whole single parcel is found to be without legal or factual merit.
The parcels are severable and separately alienable, and in fact have been severed from
one another. As of August 3, 2006, they have had separate and different titled owners, to
wit, real property known as 37424 90th Street East, Littlerock, CA 93543, APN 3042-
015-007 became the property of Tonie Matlock and was subsequently lost to foreclosure,
whereas real property known as 37418 90th Street East, Littlerock, CA 93543, APN
3042-015-008 was after August 3, 2006 the property of Jerry Nickell, which it remains to
this day.
“12. The deed purporting to convey title to both Tonie Matlock and Paul Matlock,
document XX-XXXXXXX, is mistaken and erroneous to the extent that it includes within the
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description of property conveyed as including real property known as 37814 90th Street
East, Littlerock, CA 93543, APN 3042-015-008 within the scope of its grant. The deed
should be reformed and title to real property known as 37418 90th Street East, Littlerock,
CA 93543, APN 3042-015-008 should be quieted in favor of Jerry Nickell.
“13. Tonie Matlock and Paul Matlock subsequently lost title to improved real
property identified as 37424 90th Street, Littlerock, CA 93543, APN 3042-015-007 to
foreclosure. The foreclosure of improved real property identified as 37424 90th Street
East, Littlerock, CA 93543, APN 3042-015-007 did not affect Jerry Nickell’s claim to
title on improved real property known as 37418 90th Street East, Littlerock, CA 93543,
APN 3042-015-008.
“Accordingly, judgment is to be entered in favor of Jerry Nickell and against
Tonie Matlock and Paul Matlock. [Nickell’s] proposed form of judgment is granted and
the Court signs and executes that proposed form of judgment, which shall become the
judgment of the Court.”
The settled statement, which provides our only record of the open-court
evidentiary hearing held January 7 and 15, 2013, was submitted by Nickell and signed by
the trial court on January 15, 2013. It consists of introductory paragraphs followed by the
identical wording of the statement of decision set forth above. The introductory
paragraphs add some additional information, the principal content of which is that the
Matlocks were represented by counsel in the open-court evidentiary hearing and that at
least part of the hearing was recorded by a court reporter.
d. Given the state of the record, there is no basis for questioning the
trial court’s decision on the merits of the quiet title cause of action.
The statement of decision and the settled statement signed by the trial court do not
contain anything that would discredit them. The statement of decision is virtually
identical to the record supplied by the settled statement. There is no inconsistency. The
Matlocks’ own proposed settled statement is inadmissible. It is simply their hearsay
version of what happened, which was rejected by the trial court. The Matlocks have
failed to provide this court with a reporter’s transcript or any admissible evidence that
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shows the trial court made any legal error, abused its discretion, or acted without
substantial evidence.
This situation is analogous to some appeals on the judgment roll of long ago,
where the record was so incomplete “it was impossible to determine upon what theory the
case was tried, what evidence was introduced, or on what claims the jury based its
verdict.” (9 Witkin, Cal. Procedure (5th ed. 2008) Appeals, § 356, p. 411.)
There is nothing on the face of the record or elsewhere that establishes error.
C. Nickell I did not entitle the Matlocks to prevail in the quiet title action.
The Matlocks’ claim that, because they prevailed on the first appeal, they were
entitled to prevail in the quiet title action is unfounded. In Nickell I we simply remanded
to the trial court to allow the Matlocks “to participate in an open-court evidentiary
hearing to determine the merits of the quiet title action.” (Nickell I, supra, 206
Cal.App.4th at p. 947, italics added.) We did not “predetermine” the merits, as the
Matlocks argue.
D. As parties in default, the Matlocks were not entitled to notice of the hearing or
service of witness lists 45 days in advance of the hearing and have not shown they
were deprived of due process.
The Matlocks express dissatisfaction with the amount of notice they received of
the open-court evidentiary hearings on the quiet title action, notwithstanding that their
two requests for continuances were granted, they were represented by counsel, and they
“actually participated in the open-court evidentiary hearing by way of proffering
testimony and documentary evidence and by conducting cross-examination of witnesses
and questioning of all parties and counsel by the Court.”
The Matlocks have not provided the court with any evidence that the notice was
inadequate. However, even if they had, they were not entitled to any notice because they
were in default. (Nickell I, supra, 206 Cal.App.4th at p. 942, quoting Harbour Vista,
supra, 201 Cal.App.4th at pp. 1504–1505; Code Civ. Proc., § 1010 [defaulted defendant
not entitled to notice or service of papers].)
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Similarly, the Matlocks complain that they were not served with witness lists
45 days prior to trial. Again, Harbour Vista and Nickell I make it clear that a defaulted
party in a quiet title action is not entitled to service of documents. (Nickell I, supra, 206
Cal.App.4th at p. 942, quoting Harbour Vista, supra, 201 Cal.App.4th at pp. 1504–1505.)
Apparently the Matlocks claim that lack of notice or nonservice of documents or
some unspecified factor deprived them of due process in connection with the open-court
evidentiary hearing on the quiet title cause of action. They have provided no evidence
that supports any such claim. Indeed, the statement of decision indicates their right to
participate was honored.
DISPOSITION
The orders and the judgment are affirmed. Respondent Jerry Nickell is to recover
his costs on appeal.
NOT TO BE PUBLISHED.
MILLER, J.*
We concur:
ROTHSCHILD, Acting P. J.
CHANEY, J.
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
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