Ellen Rozario v. Kim Richards , 687 F. App'x 568 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 18 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELLEN CATHERINE ROZARIO, an No. 15-56077
Individual,
D.C. No.
Plaintiff-Appellant, 2:14-cv-09540-AB-JPR
v.
MEMORANDUM *
KIM RICHARDS,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Andre Birotte, Jr., District Judge, Presiding
Submitted March 6, 2017**
Pasadena, California
Before: REINHARDT and NGUYEN, Circuit Judges, and EZRA,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
Ellen Catherine Rozario appeals the district court’s adverse rulings and
damages calculation in granting her default judgment against Kim Richards. We
have jurisdiction under 28 U.S.C. § 1291. We affirm in part, reverse in part, and
remand.
“In reviewing a default judgment, this court takes ‘the well-pleaded factual
allegations’ in the complaint ‘as true,’” DIRECTV, Inc. v. Hoa Huynh, 503 F.3d
847, 854 (9th Cir. 2007) (quoting Cripps v. Life Ins. Co. of N. Am., 980 F.2d 1261,
1267 (9th Cir. 1992)), “except those relating to the amount of damages,” Geddes v.
United Fin. Group, 559 F.2d 557, 560 (9th Cir. 1977); see Fed. R. Civ. P. 8(b)(6),
55(b)(2)(B). Whether Richards is liable for default judgment or punitive damages
is a legal question that this court reviews de novo. Trs. of the Constr. Indus. &
Laborers Health & Welfare Tr. v. Hartford Fire Ins. Co., 578 F.3d 1126, 1129 (9th
Cir. 2009). The district court’s damages computation is reviewed for clear error.
NewGen, LLC v. Safe Cig, LLC, 840 F.3d 606, 617 (9th Cir. 2016).
1. “Damages for emotional distress are inextricably related to the conduct
causing that distress. The more aggravated the conduct, the larger the award of
damages is likely to be.” Kardly v. State Farm Mut. Auto. Ins., 255 Cal. Rptr. 40,
43 (Ct. App. 1989). For this reason, “[t]he amount and severity of damages for
emotional distress is a question of fact for the jury [or court] to decide based on all
the evidence before it.” Id. Although “the amount of damages must be
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reasonable,” there “is no fixed or absolute standard by which to compute [them].”
Plotnik v. Meihaus, 146 Cal. Rptr. 3d 585, 596 (Ct. App. 2012) (quoting Hope v.
Cal. Youth Auth., 36 Cal. Rptr. 3d 154, 169 (Ct. App. 2005)).
Although the district court did not err by considering damages awarded for
emotional distress in other dog bite cases, see Reilly v. Cal. St. Cable R.R., 173
P.2d 872, 876 (Cal. Ct. App. 1946) (observing that “cases involving damage
awards for similar injuries” are “continually resorted to by . . . courts as of some
guidance”), it erred to the extent that the selection of cases appears to be arbitrary
and unrepresentative. Moreover, these cases appear to be the sole basis for its
award. Because “other somewhat similar cases furnish no precise or accurate
bases for comparison,” id., “in the final analysis the question in each case must be
determined from its own peculiar facts and circumstances.” Power v. Cal. St.
Cable R.R., 126 P.2d 4, 5 (Cal. Ct. App. 1942).
The district court acknowledged Rozario’s uncontested declaration, but it is
unclear whether, and to what extent, the court considered her statements about the
seriousness of her injury and its continuing impact on her. Further, to the extent
the district court suggested that Rozario needed corroborating medical evidence, it
was incorrect. The plaintiff’s subjective account is sufficient where, as here, “the
circumstances . . . make it obvious that a reasonable person would suffer
significant emotional harm.” In re Dawson, 390 F.3d 1139, 1150 (9th Cir. 2004).
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The district court is of course free to reject Rozario’s declaration, but under those
circumstances the court should explain any adverse credibility finding. See Lutz v.
United States, 685 F.2d 1178, 1186 (9th Cir. 1982).
The district court also erred by relying on damages awards in decades-old
cases without accounting for the passage of time. In arriving at $4,000 for
emotional distress damages, the district court appears to have simply selected a
point somewhere between the two “guidepost” amounts in Uva v. Evans, 147 Cal.
Rptr. 795, 800 (Ct. App. 1978) (reversing “grossly disproportionate” $30,000
award to plaintiff who required two weeks to heal from “dog bites on her right
forearm and abdomen”), and Smythe v. Schacht, 209 P.2d 114, 119 (Cal. Ct. App.
1949) (affirming $1,500 award to 10-year-old plaintiff whose physical injuries
required two months of treatment and whose nightmares and aggravated stuttering
lasted six months). An award that was sufficient in a previous era may well be
inadequate today. 1 For example, in a recent case where, as here, the owner “knew
about [the dog’s] propensities and the danger to others” and the dog “[w]ithout
warning . . . attacked [the victim] . . . , biting [her] on her hand and body,” the jury
awarded the victim $75,000 for “past and future noneconomic loss (pain and
1
Accounting for inflation, the $15,000 award held to be excessive in Uva
would be worth approximately $110,000 today, and the $1,500 award upheld in
Smythe would be worth approximately $15,000. See Bureau of Labor Statistics,
Inflation Calculator, https://data.bls.gov/cgi-bin/cpicalc.pl.
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suffering).” Downing v. Flores, No. B249498, 2014 WL 6640801, at *1-2 (Cal.
Ct. App. Nov. 24, 2014).
Moreover, in many dog bite cases, the plaintiff’s past medical expenses
amount to only a small fraction of the total damages awarded. See e.g. Beck v.
Farazmand, No. B174081, 2005 WL 2667467, at *1 & n.4 (Cal. Ct. App. Oct. 20,
2005) (victim incurred $2,916 in past medical expenses and was awarded $50,000
for pain and suffering, $50,000 for emotional distress, and $100,000 for permanent
disfigurement to his face); Ingenito v. Flores, No. BC512219 (Cal. Super. Ct. Jan.
25, 2016) ($20,000 for dog bite victim’s pain and suffering and $1,702 for past
medical expenses); Judge v. Rivera, No. BC505023 (Cal. Super. Ct. June 18, 2015)
($2,500 for pain and suffering and $1,200 for past medical expenses); Arnold v.
Wollard, No. 56-2014-00448979-CU-PO-VTA (Cal. Super. Ct. Feb. 6, 2015)
($85,000 for pain and suffering and $17,784 for past medical expenses).
Here, the amount of damages awarded for emotional distress was less than
Rozario’s past medical expenses. We recognize that the amount of damages is a
factual matter decided by the district court in the first instance, and we express no
opinion on the appropriate amount in this case. We reverse the award of emotional
distress damages, however, because it was based on an incomplete analysis and,
without further explanation, appears unusually low. On remand, the district court
should reconsider the amount of damages in light of the evidence in the record.
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2. We agree with Rozario that she alleged “outrageous” conduct to support
her claim for intentional infliction of emotional distress. The district court found
that Richards’ only “actionable conduct” was “encouraging [Rozario] to pet the
dog, representing the dog as an animal of ‘sweet’ and ‘cuddly’ behavior, and
discouraging [Rozario] from contacting the paramedics following the dog attack.”
Richards not only encouraged Rozario to pet the dog, a large pit bull; she did so
despite knowing that “the dog was dangerous and vicious” and “had previously
bitten and attacked a person or persons,” and she acted “with the intention to cause
[Rozario] severe emotional distress.” A defendant’s knowledge of and failure to
eliminate or warn about a danger to the plaintiff that was likely to and did result in
physical injuries is sufficient to show outrageous behavior. See Wilson v. S. Cal.
Edison Co., 184 Cal. Rptr. 3d 26, 49 (Ct. App. 2015). We reverse the district
court’s contrary ruling.
3. We affirm the district court’s decision not to award punitive damages.
“[E]vidence of a defendant’s financial condition is essential to support an award of
punitive damages,” and the plaintiff bears the burden of proving this element.
Adams v. Murakami, 813 P.2d 1348, 1357 (Cal. 1991). Rozario’s allegation that
Richards is currently employed as a cast member of Real Housewives of Beverly
Hills is insufficient to meet this burden. There is no evidence of Richards’ salary
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as a reality television star from which an inference might be drawn regarding her
ability to pay punitive damages. 2
We affirm the district court’s holding that Richards is liable under the
default judgment. We reverse the damages award and remand for the district court
to recalculate the emotional distress damages. We affirm the denial of punitive
damages.
Costs on appeal are awarded to appellant.
AFFIRMED in part, REVERSED in part, and REMANDED.
2
We note that under California law, where the record is “‘completely devoid
of any meaningful evidence’ of [the] defendant’s financial condition” and the
“deficiency may be laid at the [defendant’s] door,” the plaintiff’s failure to show
the defendant’s net worth is not a bar to punitive damages. Green v. Laibco, LLC,
121 Cal. Rptr. 3d 415, 424 (Ct. App. 2011). Rozario did not, however, present any
evidence—such as a sworn statement regarding her efforts to obtain this
information and the reason her efforts were unsuccessful—that the lack of
evidence of Richards’ financial condition “may be laid at [Richards’] door.” Id.
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