Case Number: BC498604 Hearing Date: May 27, 2014 Dept: 56

Case Name: Quigg v. Nickelberry
Case No.: BC498604
Matter: Motion to Set Aside Default and Default Judgment
Moving Party: Defendant Bambi Nickelberry MD
Responding Party: Plaintiff Vincent Quigg

Tentative Ruling: Motion is denied.

Plaintiff Vincent Quigg filed this action against Defendant Bambi Nickelberry MD, alleging breach of a commercial lease. Default was entered against Defendant on 2/13/13, and on 9/3/13 the Court entered judgment by default in favor of Plaintiff. Defendant now moves to set aside the default and default judgment.

Defendant’s motion is not based on statutory grounds under CCP §473(b) or §473.5. The motion is based on the court’s equitable power to set aside a judgment based on extrinsic mistake. E.g. Gibble v. Car-Lene Research (1998) 67 Cal.App.4th 295, 314. To set aside a judgment based upon extrinsic mistake, the moving party must establish a meritorious case, a satisfactory excuse for not defending the original action, and diligence in seeking to set aside the default. E.g. Stiles v. Wallis (1983) 147 Cal.App.3d 1143, 1147-1148.

Proof of a meritorious case is particularly important. As the Court of Appeal held in NY Higher Ed. Assistance Corp. v. Siegel (1979) 91 Cal.App.3d 684, 688-689, “A valid judgment will not be set aside merely because it was obtained by extrinsic fraud or mistake, in order to give the barren right to an adversary hearing. The plaintiff must plead and prove that he has a meritorious case, i.e., a good claim or defense which, if asserted in a new trial, would be likely to result in a judgment favorable to him.” Accord Baske v. Burke (1981) 125 Cal.App.3d 38, 46 (“The existence of a meritorious defense to the action is generally regarded as a prerequisite to vacating or setting aside of a default judgment.”); Huron College v. Yetter (1947) 78 Cal.App.2d 145, 150; Gibble, supra 67 Cal.App.4th at 316.

Defendant’s motion addresses payment of rent. Defendant states that in 2012 she received conflicting notices about paying rent to the landlord or an assignee of rent; see Nickelberry Decl. at ¶¶4-5 & Ex. 1-3. Despite this confusion, Defendant states that she paid rent each month and provides cancelled rent checks for all of 2012; Id. ¶13 & Ex. 10.

Defendant’s evidence misses the point. Plaintiff’s judgment has nothing to do with payment of rent – it is based on non-payment of property taxes. The complaint alleged that Defendant breached the lease by failing to pay property taxes, failing to provide property insurance, and unjustly receiving a rental reduction for full payment of all obligations due under the lease; see 1/7/13 complaint at ¶11, ¶12 & ¶17. The lease addendum expressly states that “Nickelberry will be solely responsible for all property taxes on the property during the lease period”; see Quigg Decl. filed 9/3/13, Ex. 2 at ¶2. In proving up the default judgment, Plaintiff presented evidence that Defendant had failed to pay property taxes and provide property insurance during the 5 year period of Jan. 2008 through Jan. 2013, and Plaintiff sought damages in the amount of $54,000 for unpaid property tax, $10,800 for unpaid insurance, and $30,000 for unearned rent reductions; Id. at ¶4, ¶5 & ¶6. The court awarded judgment in the total amount of $84,705, based upon proof of unpaid property taxes ($54,000), unearned rent reductions ($30,000) and costs ($705), denying the claims for property insurance premiums (because they were not owed to Plaintiff and there was no proof that Plaintiff paid them) and attorney fees (because Plaintiff is an attorney representing himself); see 9/3/13 judgment and minute order.

Other than stating a mere offhand conclusion (see Nickelberry Decl. at ¶13: “I paid all required taxes”); Defendant has ignored the basis for Plaintiff’s judgment and has presented no persuasive evidence that she has a meritorious defense that would likely result in a favorable judgment. The motion is therefore denied.