TENTATIVE 

Plaintiffs Jing Wang and Denny Koo obtained Defendants Chia Jung Chou (“Chou”) and Jesus Guillermo Orozco (“Orozco”), erroneously sued as Jesus Orozco, (collectively, “Defendants”) default on May 19, 2022. One day later, Defendants filed their Answer on May 20, 2022.  

However, entry of default cuts off a party’s right to appear in the action, including by filing pleadings, until default is set aside. (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385-86.) “A defendant against whom a default has been entered is out of court and is not entitled to take any further steps in the cause affecting plaintiff's right of action; he cannot thereafter, until such default is set aside in a proper proceeding, file pleadings or move for a new trial or demand notice of subsequent proceedings.” (Brooks v. Nelson (1928) 95 Cal.App. 144, 147–148.)  

Defendants have not moved to set aside default. The default against Defendants, therefore, still stands.  

This action arises from a wrongful death, wherein Defendant Chou allegedly ran a licensed daycare center for children ranging from 3 months old to 1 year old out of Chou’s residence. Plaintiffs allege Defendant Orozco participated in the marketing, sales, and operation of Chou’s daycare services. Plaintiffs sent their daughter, Laura Koo (“Laura” or “Decedent”) to Chou’s daycare while Decedent had the flu and instructed Chou to take extra precautions because Laura had previously vomited. Plaintiffs allege Chou tightly swaddled Laura and placed her down for a nap, wherein Laura vomited and became unresponsive; Laura passed away later that day. Plaintiffs allege Defendants failed to monitor and observe Decedent, which caused the death of Decedent. Plaintiff sets forth four causes of action for wrongful death, survivorship, fraud, and negligent infliction of emotional distress. 

Plaintiffs Jing Wang (“Wang”), Denny Koo (“Koo”) and Estate of Laura Koo, deceased (collectively, “Plaintiffs”) seek a judgment for $20 million against Defendants, jointly and severally, for the emotional trauma related to the death of their child.  

Emotional distress damages are not recoverable in wrongful death actions. (Martin v. California Dept. of Veterans Affairs (9th Cir. 2009) 560 F.3d 1042 (applying California law); Corder v. Corder, (2007) 41 Cal. 4th 644.) In other words, grief and sorrow or other mental suffering caused to the beneficiaries by the death sued for is not a proper element of damages. (Krouse v. Graham (1977) 19 Cal. 3d 59; Boeken v. Philip Morris USA Inc. (2d Dist. 2013) 217 Cal. App. 4th 992; Mendoza v. City of West Covina (2d Dist. 2012) 206 Cal. App. 4th 702.) 

However, while a parent is not entitled to recover damages for the loss of a child's affection, society, companionship, and love, and disruption of the parent's normal routine of life to care for an injured child, other aspects of a parent's emotional distress may be compensable in negligence actions. (Burgess v. Superior Court (1992) 2 Cal. 4th 1064.) Where the parent is owed a duty and injuries to the child result from a breach of the duty owed the parent, the parent is a direct victim and may recover damages for the negligent infliction of emotional distress, even in the absence of a physical injury or impact on the parent. (Ibid.) Plaintiffs set forth a negligent infliction of emotional distress cause of action.  

Plaintiffs’ request for default judgment provides the declarations of Plaintiffs without any supporting evidence. The Court, in its prior denials, had requested Plaintiffs to provide comparable judgments and other evidence regarding the current generally accepted economic calculations regarding the value of life. Plaintiffs previously submitted a brief in support of general damages on September 7, 2023, but neither re-filed nor filed any other brief in connection with this current request for default judgment. However, in the interests of judicial economy, the Court will consider the prior filed brief in connection with this November 1, 2023 request for default judgment. 

Of the smattering of cases presented by Plaintiffs, this matter appears more akin to Tallen Speck and Kaycee Speck v. Elizabeth Rodriguez, and dba La La Land Day Care; 2013 Jury Verdicts LEXIS 12871, wherein the 6-month-old decedent died at daycare after being fed and aspirating on food when decedent was laid down for a nap. There, the jury awarded the plaintiffs $250,000.  

As to the other matter cited by Plaintiffs, the case David Karow and Tiffany Karow v. Carmen Mendoza-Madrigal, Little House CDC, and Evenflow Company, Inc; 2016 Jury Verdicts LEXIS 2094 involved a products liability claim, wherein the plaintiffs alleged their child died of positional asphyxiation from lying face down on a defectively designed mattress pad. The jury awarded $4 million to each parent, in the total amount of $8 million, on the claim of design defect under the consumer-expectation test and the risk-benefit test. Here, Plaintiffs’ action does not involve a claim for products liability.  

The remaining cases cited by Plaintiffs are not relevant, as they involve the death of adults under dissimilar circumstances.  

Based on the limitations of a wrongful death claim/survival action claim, and the limited evidence submitted by Plaintiffs, the Court grants the request for default judgment against Defendants in the amount of $300,000 for general damages. 

As to the request for costs, the Court’s denial on June 30, 2022 had already requested that Plaintiffs explain the $3,871.75 “Attorney Fee for Bankruptcy Counsel” cost item, because it was unclear whether this cost item is appropriate. Because Plaintiffs have not explained this cost in any of their declarations, the Court declines to award Plaintiffs recovery of this ambiguous item. Therefore, the request for costs is reduced from $4,383.33 to $511.58. 

Accordingly, the application for default judgment filed on November 1, 2023, is GRANTED in the total principal amount of $300,000, and $511.58 in costs, against Defendants Chia Jung Chou aka Lisa Chou and Jesus Guillermo Orozco, jointly and severally.   

Plaintiffs are ordered to give notice of this ruling.¿