Judge: Peter A. Hernandez, Case: 23PSCV01379, Date: 2024-07-23 Tentative Ruling

Case Number: 23PSCV01379    Hearing Date: July 23, 2024    Dept: K

Plaintiff A.A., a minor by and through his Guardian Ad Litem, Sherry Gua’s

Application for Default Judgment is DENIED without prejudice.

Background   

This is a dog bite case.

On May 5, 2023, Plaintiff A.A., a minor by and through his Guardian Ad Litem, Sherry Gua

(“Plaintiff”), filed a complaint, asserting causes of action against Eileen Ortega (“Defendant”)

and Does 1-10 for:

1.                  Negligence

2.                  Common Law Strict Liability Based on Known Dangerous Propensities

3.                  Statutory Strict Liability Based on the Dog Bite Statute

On June 25, 2024, Defendant’s default was entered.

A Case Management Conference is set for July 23, 2024.

Discussion

Plaintiff’s Application for Default Judgment is denied without prejudice. The following defects

are noted:

1.                  Plaintiff’s Statement of Damages (Galindo Decl., ¶ 6, Exh. B) lists $337,500.00 as the total damages amount, which is itemized as follows: (1) $12,500.00 past medical expenses; (2) $25,000.00 future medical expenses; (3) $250,000.00 past pain, suffering, anxiety, disfigurement and (4) $50,000.00 future pain, suffering, anxiety and disfigurement. Plaintiff, however, seeks $342,438.00 in total damages via this instant default prove-up application, which is comprised of $42,438.00 in special damages and $300,000.00 in general damages. “The relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in the complaint, in the statement required by Section 425.11 [i.e., statement of damages], or in the statement provided for by Section 425.115 [i.e., punitive damages statement] . . .” (Code Civ. Proc., § 580).

2.                  The court is not inclined to award anywhere near $300,000.00 in general damages

($250,00.00 past/$50,000.00 future) based upon the information provided.

Plaintiff has failed to complete that portion of Item 5a in the proposed judgment

identifying Defendant.

3.                  Plaintiff’s counsel attests, in the “declaration of nonmilitary status,” that she knows Defendant is not in the U.S. military because “Plaintiff’s representative has spoken with Defendant and knows she is not in the U.S. military.” This statement fails to identify how “Plaintiff’s representative” came to have such knowledge.