May 14, 2015 is a day that will live in infamy – at least for “Real Housewives of Beverly Hills,” star Kim Richards. On Thursday, a California federal court GRANTED Ellen Catherine Rozario’s (“Kay”) Application for Default Judgment against Defendant Kim Richards. But upon closer inspection, the Order isn’t all doom and gloom for the Bravo cast member, whom we learned on May 14 would be charged with public intoxication, resisting arrest and battery on a cop (all misdemeanors) stemming from her arrest in April at the Beverly Hills Hotel. An arraignment hearing is scheduled for June 11 at the Los Angeles Courthouse.
Legal drama has followed Kim Richards as of late but did she escape this dog bite lawsuit relatively unscathed? Today, headlines saturate the web claiming the RHOBH star lost the $1 million dog bite case. There is no question Judge André Birotte, Jr. granted Kay’s Application for Default Judgment against Kim Richards but the award for damages was minor. Kim may be breathing a sigh of relief this morning if she has any clue as to what is going on in the civil suit filed against her by Kay. The District Court handed Kim a lifeline by awarding Kay only $8,083.53 in damages.
A quick recap: Kay, Kim’s longtime family friend, sought recovery for the injuries she sustained from Kim’s pit bull named Kingsley. On March 19, 2014, Kay, her daughter, and Kay’s granddaughter visited Kim at her home. During the course of the stay, Kay alleged that Kim made statements and representations to her that Kingsley was a “sweet, cuddly dog.” Those depictions evidently caused Kay to feel comfortable being around Kingsley. The next morning when Kim and Kay were having a conversation in the former’s bedroom, Kingsley, “without provocation,” according to Kay, jumped up from the bed, moved across it and bit her. As the dog continued to attack, Kay twisted and fell backwards on the floor, landing on her back with her head between the bed and the dresser.
Rule 55(b)(2) governs applications to the Court for a judgment by default. Entry of judgment by default is within the Court’s discretion. A defendant’s default does not automatically entitle the plaintiff to a court-ordered judgment. However, if you are a Defendant in a civil action, the Court will have little patience for your lethargy, inaction, and refusal to answer Plaintiff’s suit.
Here, the Court noted several times that Kim refuses to respond or otherwise deny the allegations against her. The reality star that allegedly kicked a police officer in the leg declines to litigate this action. She never filed a responsive pleading or requested additional time to serve her answer. Moreover, the mom who is reportedly in rehab, failed to appear in this lawsuit. As such, the Court held it was appropriate for the clerk to enter Defendant’s default on April 1, 2015. Since then, Defendant has not notified the Court or tendered any excuse for her continued absence from this case. Therefore, no circumstances suggest that Kim’s failure to appear was excusable. As a result, Kim has made deciding this case on the merits virtually impossible for this Court.
On pg. 4 of its Order, the Court declares, “While the evidence in this case is scant, the Court must take the factual allegations in the complaint as true.” The Court identifying Kay’s evidence as “scant” speaks volumes. Translation: If the case went to trial based on the evidence Plaintiff presented up to this point, a jury would unlikely have found in favor of Kay because the proof produced was insufficient.
However, in viewing the merits of Kay’s substantive claim, the Court must take the factual allegations in the complaint as true. Furthermore, while public policy favors deciding cases on the merits, in this case, Kim refused to litigate this action. Thus it determined Kay’s complaint was sufficiently pled and contained merit as to all of her claims EXCEPT her Intentional Infliction of Emotional Distress claim since Kim’s conduct was not outrageous. “Actions such as greeting house guests and encouraging the petting of a dog are not the types of acts that are intended to cause emotional distress,” the Court stated on pg. 5.
Game over? Not so fast. The District Court found judgment in favor of Plaintiff should be entered for general damages in the amount of $8,083.53, which covers Kay’s medical bills and then some. One of the most critical aspects of any civil judgment is the award of damages. Liability has more meaning if there is a substantial damage figure tied to it. For instance, a court could find Defendant was negligent but if the damages are tiny, defense attorneys will tell you that is a “win” for their client.
Kay sought “unliquidated” damages and punitive damages totaling $1,050,000.00. The Court found this amount “excessive when comparing her medical bills which total $4083.53,” see, pg. 5. Moreover, the Court held, “Default may be entered without a hearing on damages only when the amount claimed is capable of ascertainment from definitive figures contained in the documentary evidence or in detailed affidavits,” see, pg. 6. Therefore, just because Kay says her damages are X doesn’t make X a true reflection of what the Court should award. Granted, $8,083.53 is not an insignificant sum but it is a fraction of the amount pled.
Considering the evidence Plaintiff has set forth, the Court noted it “exercised its discretion in awarding Plaintiff $8,083.53 in general damages,” see, pg. 7. Here are a few reasons why the $1,050,000.00 figure was tossed:
Generally, a default judgment must be supported by specific allegations as to the exact amount of damages in order to provide defendants notice for the amount sought. “These claims are difficult to measure,” intoned the Court on pg. 7.
“[I]t would be in Plaintiff’s benefit to provide more evidence then what is before the Court. Plaintiff has only provided a declaration and several pictures in proving up her damages. The only ascertainable amount Plaintiff submitted in her declaration was her medical bills which total $4083.53,” see, pg. 7.
Kay declares that it took her two months to recover from her injuries, but she did not shed light on any economic loss that may have occurred over that two-month span.
Plaintiff also claims to still suffer from back pain and currently has problems gripping her right hand. However, there are no medical files or declarations from her physician with regard to these ongoing injuries.
According to Plaintiff, her mental injuries are ongoing. Plaintiff asserts to be traumatized from the attack and can no longer be in the presence of dogs. Nevertheless, the Court found the extent of her emotional distress is only evident in her declarations. The Court said she has not provided evidence of any therapeutic counseling nor has she cited any other remedial measures she has taken to address these newfound fears.
Considering the meager evidence Kay has set forth for damages, the Court pronounced general damages only were warranted. Although she incurred permanent scarring and still suffers from back pain and problems with gripping her right hand, Plaintiff healed from her other physical injuries in about two-months.
In order to determine whether punitive damages should be awarded, the court considers: (1) the nature of defendant’s acts; (2) the amount of compensatory damages awarded; and (3) the wealth of the defendant. The Court opined, “Without adequate evidence of Defendant’s wealth or net worth, the Court ‘does not have a sufficient basis to determine the appropriateness of punitive damages,’” see, pg. 8.
Finally, Judge Birotte determined Kay failed to submit any evidence or argument in support of attorney’s fees and costs and appears to have abandoned her claim in this regard.
Simply stated, Kay did not provide adequate evidence or sufficient information to justify an award in excess of $1 million for unliquidated (which is an unfixed sum) and punitive damages. AATT posters had strong opinions about whether Kay was entitled to $1,050,000.00. It appears the Court sided with those that believed $1,050,000.00 was a deeply bloated and baseless figure. Did justice prevail? Did the law show its mighty force against Kim?
Grab your gavel, join the conversation, and tell us whether you think Kim or Kay won after reading the Court’s Order and this blog.
Stacy Slotnick, Esq. holds a J.D., cum laude, from Touro Law Center and a B.A., summa cum laude, from the University of Massachusetts Amherst. She performs a broad range of duties as an entertainment lawyer, including drafting and negotiating contracts; addressing and litigating trademark, copyright, and other IP issues; and directing the strategy and implementation of public relations, blogging, and social media campaigns.