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Application For Default Judgement Against Kim RichardsTRANSCRIPT
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Jay W. MacIntosh, Esq., #209912Email:[email protected] Ventura Boulevard, Suite 1200Encino, California 91436Telephone (310) 288-4330Facsimile (310) 479-4629
Bill Zuhdi, OBA #10013 Email: [email protected] Bar #22293340 (Texas)The Zuhdi Law FirmP.O. Box 1077Oklahoma City, OK 73101Telephone: (405)232-1400Facsimile (405)755-9686Admitted Pro Hac ViceAttorneys for Plaintiff Ellen Catherine Rozario
UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA
ELLEN CATHERINE ROZARIO, ) an Individual, )
)v. )
)KIM RICHARDS, )EVOLUTION FILM & TAPE, )INC., a California Corporation and )DOES 1 through 5, inclusive )
Case No.: 2:14-cv-09540 AB (JPRx)
APPLICATION FOR DEFAULTJUDGMENT AGAINSTDEFENDANT KIM RICHARDS
Plaintiff Ellen Catherine Rozario makes application to the Court pursuant
Central Dist. L.R. 55–1 and L.R. 55-2 and F. R. Civ. P Rule 55(b), to render a
default judgment against Defendant Kim Richards.
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Case 2:14-cv-09540-AB-JPR Document 54 Filed 04/21/15 Page 1 of 7 Page ID #:339
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INTRODUCTION
1. Plaintiff filed her Complaint in this matter on December 12, 2014 (Doc. 1).
2. Plaintiff filed her First Amended Complaint on February 9, 2015 (Doc. 23).
3. Service of the summons and a copy of the First Amended Complaint, by
personal service, was obtained upon Defendant Kim Richards (“Defendant
Richards”) by and through Chad Doe, Defendant’s son, at Defendant
Richard’s residence located at 3701 Loadstone Drive, Los Angeles,
California on March 2, 2015 (Doc. 34).
4. The causes of action against Defendant Richards in the First Amended
Complaint (FAC) (Doc. 23) are:
a. First Cause of Action: Negligence;
b. Second Cause of Action: Strict Liability (pursuant California Civil
Code §3342);
c. Third Cause of Action: Negligence Per Se (pursuant Los Angeles
Municipal Code §53.33);
d. Fourth Cause of Action: Intentional Misrepresentation;
e. Fifth Cause of Action: Intentional Infliction of Emotional Distress;
f. Sixth Cause of Action: Negligent Infliction of Emotional Distress;
g. Seventh Cause of Action: Fraudulent Concealment; and
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Case 2:14-cv-09540-AB-JPR Document 54 Filed 04/21/15 Page 2 of 7 Page ID #:340
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h. Eighth Cause of Action: Defendant Richards named as coconspirator
with Defendant Evolution Film & Tape, Inc.
5. Defendant Richards failed to answer, plead or otherwise defend against the
FAC. The allegations and causes of action in the FAC against Defendant
Richards are deemed admitted by Defendant Richards’ failure to answer.
See infra.
6. Request for Entry of Default by Clerk against Defendant Kim Richards was
filed on March 30, 2015 (Doc. 48).
7. Default by the Clerk as to Kim Richards was entered on April 1, 2015 (Doc.
51).
8. Plaintiff now asks the Court to render a default judgment pursuant FRCP
55(b); Central Dist. LR 55-1 and L.R. 55-2.
ARGUMENT
A court may render default judgment against a party who has not filed a
responsive pleading or otherwise defended the suit. Fed. R. Civ. P. 55(a), (b)(2).
This Court should render a default judgment against Defendant Richards because
Defendant Richards did not file a responsive pleading within 21 days after being
served with the Complaint. Fed. R.Civ. P. 12(a)(1)(A)(I). In compliance with F.
R. Civ. P 55(b)(1), Declaration of Bill Zuhdi is attached as Exhibit “1".
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Case 2:14-cv-09540-AB-JPR Document 54 Filed 04/21/15 Page 3 of 7 Page ID #:341
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Plaintiff seeks unliquidated damages in the amount of $350,000.00.
Attached is evidence by Declaration of Ellen Catherine Rozario of the amount of
damages claimed, pursuant L.R. 55-2,which provides that: “If the amount claimed
in a judgment by default is unliquidated, the applicant may submit evidence of the
amount of damages by declarations.” Id.
Plaintiff is also seeking punitive damages against Defendant Richards in the
amount of $700,000.00. Defendant Richards’ actions as set forth in the First
Amended Complaint, deemed admitted by Defendant Richards’ failure to answer,1
evidence punitive damages are warranted and that Defendant Richards is guilty of
oppression, fraud or malice. Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 4022
[185 Cal.Rptr. 654, 650 P.2d 1171. Not only did Defendant Richards intentionally
misrepresent to Plaintiff that the dog was sweet and cuddly and conceal from her
that the dog was vicious and dangerous, Defendant Richards also had a conscious
disregard of the safety of Plaintiff after the attack. After the dog attacked Plaintiff
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The general rule of law is that upon default, the factual allegations of the complaint,except those relating to the amount of damages, will be taken as true. Pope v. UnitedStates, 323 U.S. 1, 12, 65 S.Ct. 16, 89 L.Ed. 3 (1944); Geddes v. United Fin. Grp., 559F.2d 557, 560 (9th Cir. 1977). Rule 8, Fed. R. of Civ. Procedure.
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Fraud is one of the three "bad acts" that justifies an award of punitive damages underCalifornia law. See Civ. C. § 3294(b), (c)(3). In her FAC, Plaintiff averred DefendantRichards committed Intentional Misrepresentation (Count 4) and FraudulentConcealment (Count 7) thereby causing injury to Plaintiff. Civ. C. § 3294(c)(3).
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Case 2:14-cv-09540-AB-JPR Document 54 Filed 04/21/15 Page 4 of 7 Page ID #:342
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and while she was lying on the floor bleeding profusely, Defendant Richards
begged Plaintiff not to call 911 and not to tell anyone about the attack. Defendant
Richards consciously disregarded the safely of Plaintiff because she was aware of
the probable dangerous consequences of her conduct in not calling for medical
help, i.e., that Plaintiff would bleed to death. Hasson v. Ford Motor Co., supra, 32
Cal.3d at p. 402. Plaintiff knew she was bleeding profusely from the attack and
when Defendant begged her not to call for help, Plaintiff believed she would bleed
to death. (Exhibit “2").
The Court may conduct hearings or make referrals when to enter or
effectuate judgment, the Court needs to conduct an accounting, determine the
amount of damages, establish the truth of any allegations by evidence or
investigate any other matter. FRCP 55. Pursuant L.R. 55-2, if the amount claimed
in a judgment by default is unliquidated, the applicant may submit evidence of the
amount of damages by declarations. The Plaintiff Ms. Rozario has submitted along
with this application applying for default judgment, evidence of the amount of
damages by her declaration. Based upon the Declaration of Ellen Catherine
Rozario, the FAC and Defendant Richards’ failure to answer or otherwise defend,
Plaintiff submits a hearing may not be necessary because the Court may find the
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Case 2:14-cv-09540-AB-JPR Document 54 Filed 04/21/15 Page 5 of 7 Page ID #:343
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facts and evidentiary materials support Plaintiff’s Application for Default
Judgment Against Defendant Kim Richards being granted.
CONCLUSION
WHEREFORE, Plaintiff makes application to the Court to render a default
judgment against Defendant Kim Richards for the sum of $1,050,000.00, plus
court costs and interest.
Dated this 21 day of April, 2015. st
Respectfully submitted,
By: /s/Bill Zuhdi Bill ZuhdiThe Zuhdi Law [email protected] for Plaintiff
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Case 2:14-cv-09540-AB-JPR Document 54 Filed 04/21/15 Page 6 of 7 Page ID #:344
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CERTIFICATION OF SERVICE
I certify that on April 21, 2015, I electronically filed the foregoing with theClerk of the United States District Court for the Central District of California usingthe CM/ECF system, and that I mailed a copy of the foregoing to the Defendant byUnited States mail, certified, return receipt requested and by first class mail asfollows:
Kim Richards 3701 Loadstone DriveLos Angeles, CA 91403
and via electronic means by email to Michael R. White [email protected] and Will Parsons at [email protected].
/s/Bill Zuhdi Bill Zuhdi
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Case 2:14-cv-09540-AB-JPR Document 54 Filed 04/21/15 Page 7 of 7 Page ID #:345