Judge: Christian R. Gullon, Case: 23PSCV03846, Date: 2024-05-07 Tentative Ruling

Case Number: 23PSCV03846    Hearing Date: May 7, 2024    Dept: O

Tentative Ruling

Plaintiff’s Application for Default Judgment is DENIED without prejudice as there is insufficient evidence to support the damages/NOT RIPE because the entry of default was improper (and is vacated).

Background

This is a negligence action arising from a motor vehicle accident that occurred on 12/16/2021.

On December 12, 2023, Plaintiff Kelsie Ramona Valenzuela filed suit against Defendants Roberto Cuevas (“Cuevas” or the “Driver”) and Vangaurd Construction (the “Corporation”).

On January 2, 2024, proof of service (POS) was filed as to Cuevas, indicating that he was served via personal service on 12/29/23.

On January 11, 2024, the POS was filed as to the Corporation indicating that it was served via substituted service on 1/4/24 by serving the “personal authorized to accept” on behalf of the agent for service, Billie Sposeto.

On January 30, 2024, default was entered as to Cuevas.

On February 15, 2024, default was entered as to the Corporation.

On February 27, 2024, Plaintiff filed the instant application for entry of default judgment.

Discussion

As a prefatory matter, the court notes that the default entered on 2/15/24 is improper as the name of the corporation is spelled incorrectly. The complaint spells the company name as Vangaurd and the default entered is as to Vangard. However, elsewhere the name of the corporation is spelled differently: The POS filed on 1/11/24 says that it is Vanguard (so A and U interchanged) and latter, Vanguard, appears to be correct because the material submitted in support of DJ spells the company name as "Vanguard." Therefore, as the name in the proof of service must match that in the complaint, and here, it did not, the default is vacated, rendering the default judgment application not ripe.

Even assuming the default was properly entered, the application for default judgment would be denied as there is insufficient evidence of damages.

Plaintiff seeks entry of default judgment in the total amount of $2,612,452.92, $2,611,768.00 of which is for damages and $684.92 in court costs. As more specifically laid out in the CIV-100 form, Plaintiff seeks $2,111,768.00 in special damages and $500,000.00 for general damages.

Overview of Injuries

According to the ‘Declaration Of Plaintiff Kelsie Ramona Valenzuela In Support Of Application For Default Judgment Pursuant To Code Of Civil Procedure Section 585(d)’ (“Plaintiff’s Declaration”), after the accident, she was seen in the emergency room where she received an examination and was discharged and instructed to follow-up with her primary care doctor. (p. 3:24-27.) As a result of her “severe and serious injury” (Plaintiff’s Decl., p. 2:25-26), Plaintiff was “required to employ the services of hospitals, physicians, surgeons, nurses, and other professional services, and I have been compelled to incur expenses for hospitalization, medicines, x-rays, MRIs and other medical supplies and services.” (p. 3.) About one week after the accident (on 12/23/21) she began to experience depression, headaches, etc. On February 24, 2022, she underwent a neurological consultation which showed post concussive syndrome, post concussive headache and neck spasm with bilateral radiation. (p. 4.) On August 8, 2022, she was diagnosed with post-traumatic stress disorder. (p. 5.)

Explanation of Plaintiff’s Damages

Plaintiff states her current medical bills total $61,768.00 and that she “expect[s] to incur future medical bills in the amount of $1,000,000.” (p. 5.)

As for current past loss earnings, those amount to at least $50,000 and her future loss earning capacity is to be at least $1,000,000.00. (p. 5.)

Based thereon, she seeks $2,611,768.00.

While a defendant’s failure to answer is an admission of liability, the court is required to render default judgment only “for that relief … as appears by the evidence to be just.” [CCP § 585(b)] Therefore, it is up to plaintiff to “prove up” the right to relief, by introducing sufficient evidence to support his or her claim. Without such evidence, the court may refuse to grant a default judgment for any amount, notwithstanding defendant's default. [Taliaferro v. Hoogs (1963) 219 CA2d 559, 560, 33 CR 415, 416; Holloway v. Quetel (2015) 242 CA4th 1425, 1434-1435, 195 CR3d 920, 927-928.)

Here, Plaintiff has failed to prove up her damages.

First, Plaintiff has not submitted an expert declaration from a medical professional to explain whether and how Defendants’ negligence caused Plaintiff’s damages. Absent such evidence, the court’s interpretation shows a lack thereof.[1]

According to Exhibit 7 (starting at p. 39 of 155 of PDF), Plaintiff appears to have only sustained a few lacerations/wounds. And John Zimmerman’s (D.C., L.Ac., RN, Q.M.E) report does not speak to whether the accident caused Plaintiff’s “herniated disc or compression of one vertebral body.” (p. 56 of 155 of PDF). Nor does Zimmerman’s report state what future care is recommended. Instead, the report states that “It is medically determined that future treatments are recommended when there is a 51% or greater chance of "Medically Probable" clinical occurrence.” (p. 57 of 155 of PDF.). If anything, the “stat reports” provided undermine a showing of causation. For example, the 12/27/2021 “stat report” states that x-rays of Plaintiff’s cervical spine shows that there is “no prevertebral soft tissue swelling” or “no significant foraminal narrowing” (p. 62 of 155 of PDF) and the 1/4/22 stat report (x-ray of right ribs) showed “no acute rib fracture …no pneumothorax or pleural effusion” and that the “overlying soft tissues are within normal limits.” (p. 63 of 155 of PDF.)

Thus, there is insufficient evidence of causation.

To the extent evidence of causation is provided, it is as to Dr. Anthony Francisco’s NEUROPSYCHOLOGICAL EVALUATION of Plaintiff wherein he concludes that “Neuropsychological assessment indicates that the patient is suffering neuropsychological symptoms. The above symptoms are as a result and are a consequence of the events that took place during and out of the course of the above-described incident.” (p. 139 of 155 of PDF.)[2]

Second, Plaintiff has offered no evidence such as paystubs or W2 forms to substantiate her past loss earnings.

Third, Plaintiff has offered no meaningful explanation or analysis to substantiate future loss earning capacity of over $1,000,000.00.

Fourth, as to Plaintiff claimed $61,768.00 in medical bills, it is not the court’s responsibility to perform Plaintiff’s calculations. Plaintiff is to provide a calculation/computation (i.e., cite to the specific Exhibit and much the bill was for a certain treatment). That aside, some of the exhibits do not even provide billing (e.g., Plaintiff’s Declaration states Exhibit 12 provides billing, but that is just a copy of a neurological consultation).

Fifth, Plaintiff has not explained the Corporation’s liability. It appears to be predicated upon vicarious liability, but there is no explicit mention of such.

In sum, Plaintiff has not proved-up her damages of over 2 million dollars.

Conclusion

Based on the foregoing, the application is both not ripe (as the default is vacated) and, in the alternative, would have been denied without prejudice for insufficient evidence in support of damages.