Case 2:14-cv-09540-AB-JPR Document 54 Filed 04/21/15 Page 1 of 7 Page ID #:339

1
2
3
4
5
6
7
8
9
10
11
12
13
14

Jay W. MacIntosh, Esq., #209912

Email:jay@jaywmacintoshlaw.com
16633 Ventura Boulevard, Suite 1200
Encino, California 91436
Telephone (310) 288-4330
Facsimile (310) 479-4629
Bill Zuhdi, OBA #10013
Email: bill@billzuhdi.com
TX Bar #22293340 (Texas)
The Zuhdi Law Firm
P.O. Box 1077
Oklahoma City, OK 73101
Telephone: (405)232-1400
Facsimile (405)755-9686
Admitted Pro Hac Vice
Attorneys for Plaintiff Ellen Catherine Rozario
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

15
16
17
18
19
20
21
22

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 DEFAULT
JUDGMENT AGAINST
DEFENDANT KIM RICHARDS

Plaintiff Ellen Catherine Rozario makes application to the Court pursuant

23
24
25

Central Dist. L.R. 551 and L.R. 55-2 and F. R. Civ. P Rule 55(b), to render a
default judgment against Defendant Kim Richards.

26
27
28

-1-

Case 2:14-cv-09540-AB-JPR Document 54 Filed 04/21/15 Page 2 of 7 Page ID #:340

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, Defendants son, at Defendant

8
9

Richards residence located at 3701 Loadstone Drive, Los Angeles,

10

California on March 2, 2015 (Doc. 34).

11
12
13

4.

The causes of action against Defendant Richards in the First Amended

Complaint (FAC) (Doc. 23) are:

14
15

a.

First Cause of Action: Negligence;

16

b.

Second Cause of Action: Strict Liability (pursuant California Civil

17

Code 3342);

18
19

c.

20

Third Cause of Action: Negligence Per Se (pursuant Los Angeles

Municipal Code 53.33);

21
22
23
24

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

25
26
27
28

-2-

Case 2:14-cv-09540-AB-JPR Document 54 Filed 04/21/15 Page 3 of 7 Page ID #:341

h.

Eighth Cause of Action: Defendant Richards named as coconspirator

with Defendant Evolution Film & Tape, Inc.

3
4

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.

8
9

6.

Request for Entry of Default by Clerk against Defendant Kim Richards was

10

filed on March 30, 2015 (Doc. 48).

11
12

7.

13

Default by the Clerk as to Kim Richards was entered on April 1, 2015 (Doc.
51).

14
15
16

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.

17
18
19
20

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).

21
22
23
24

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.

25
26

R. Civ. P 55(b)(1), Declaration of Bill Zuhdi is attached as Exhibit 1".

27
28

-3-

Case 2:14-cv-09540-AB-JPR Document 54 Filed 04/21/15 Page 4 of 7 Page ID #:342

Plaintiff seeks unliquidated damages in the amount of $350,000.00.

2
3

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

6
7
8
9

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

10
11

Amended Complaint, deemed admitted by Defendant Richards failure to answer,1

12

evidence punitive damages are warranted and that Defendant Richards is guilty of

13

oppression, fraud2 or malice. Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 402

14
15

[185 Cal.Rptr. 654, 650 P.2d 1171. Not only did Defendant Richards intentionally

16

misrepresent to Plaintiff that the dog was sweet and cuddly and conceal from her

17
18
19

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

20
1

21
22
23
24

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. United
States, 323 U.S. 1, 12, 65 S.Ct. 16, 89 L.Ed. 3 (1944); Geddes v. United Fin. Grp., 559
F.2d 557, 560 (9th Cir. 1977). Rule 8, Fed. R. of Civ. Procedure.
2

27

Fraud is one of the three "bad acts" that justifies an award of punitive damages under
California law. See Civ. C. 3294(b), (c)(3). In her FAC, Plaintiff averred Defendant
Richards committed Intentional Misrepresentation (Count 4) and Fraudulent
Concealment (Count 7) thereby causing injury to Plaintiff. Civ. C. 3294(c)(3).

28

-4-

25
26

Case 2:14-cv-09540-AB-JPR Document 54 Filed 04/21/15 Page 5 of 7 Page ID #:343

and while she was lying on the floor bleeding profusely, Defendant Richards

2
3

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

6
7
8
9

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

10
11
12
13

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

14
15

amount of damages, establish the truth of any allegations by evidence or

16

investigate any other matter. FRCP 55. Pursuant L.R. 55-2, if the amount claimed

17
18
19
20

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

21
22
23
24

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

25
26
27
28

-5-

Case 2:14-cv-09540-AB-JPR Document 54 Filed 04/21/15 Page 6 of 7 Page ID #:344

facts and evidentiary materials support Plaintiffs Application for Default

2
3

Judgment Against Defendant Kim Richards being granted.

CONCLUSION

4
5

WHEREFORE, Plaintiff makes application to the Court to render a default

6
7
8
9

judgment against Defendant Kim Richards for the sum of $1,050,000.00, plus
court costs and interest.
Dated this 21st day of April, 2015.

10
11

Respectfully submitted,

12
13

By:

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-6-

/s/Bill Zuhdi
Bill Zuhdi
The Zuhdi Law Firm
Bill@billzuhdi.com
Attorney for Plaintiff

Case 2:14-cv-09540-AB-JPR Document 54 Filed 04/21/15 Page 7 of 7 Page ID #:345

CERTIFICATION OF SERVICE

2
3
4
5

I certify that on April 21, 2015, I electronically filed the foregoing with the
Clerk of the United States District Court for the Central District of California using
the CM/ECF system, and that I mailed a copy of the foregoing to the Defendant by
United States mail, certified, return receipt requested and by first class mail as
follows:

6
7
8
9
10

Kim Richards
3701 Loadstone Drive
Los Angeles, CA 91403
and via electronic means by email to Michael R. White
white@whitereed.com and Will Parsons at WParsons@shackelfordlaw.net.

11

/s/Bill Zuhdi
Bill Zuhdi

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-7-

at