Soltero v. City of Bakersfield et al

Filing 32

FINDINGS and RECOMMENDATIONS Denying 29 30 Plaintiff's Motion for Default Judgment, signed by Magistrate Judge Jennifer L. Thurston on 11/21/2014. Referred to Judge O'Neill. Objections to F&R due within 14 days. (Hall, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CYNTHIA SOLTERO,

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Plaintiff,
v.

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CITY OF BAKERSFIELD, et al.,
Defendants.

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Case No.: 1:12-cv-01791 - LJO - JLT
FINDINGS AND RECOMMENDATIONS
DENYING PLAINTIFF’S MOTIONS FOR
DEFAULT JUDGMENT
(Docs. 29, 30)

Plaintiff Cynthia Soltero asserts the defendants are liable for wrongful death and violations of

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the civil rights of her deceased husband, Matthew Yzaguirre. Nominal defendant Robert Yzaguirre,

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father of the deceased, did not file an answer to Plaintiff’s complaint. Plaintiff now seeks the entry of

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default judgment pursuant to Rule 55(a)(b)(1) of the Federal Rules of Civil Procedure against nominal

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defendant Robert Yzaguirre. (Docs. 29, 30.) Because Plaintiff fails to plead a sum certain in her

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complaint, and just reason exists to delay entry of a final judgment, the Court recommends her motion

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for default judgment be DENIED.

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I.

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Background
Plaintiff initiated an action in Kern County Superior Court by filing a complaint on April 28,

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2011. (Doc. 2 at 1.) She filed an unverified amended complaint on October 20, 2011, asserting the

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following claims: (1) violation of Cal. Civ. Code § 52.1; (2) wrongful death under Cal. Code of Civ.

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Proc. § 377.60; (3) assault; (4) battery; (5) intentional infliction of emotional distress; (6) negligence;
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and (7) negligent hiring, training and supervision against City of Bakersfield and Bakersfield Police

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Department. (Id. at 2.) Defendants filed an answer to the complaint on November 21, 2011. (Id.)

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After Plaintiff received leave to file a Second Amended Complaint adding claims for civil rights

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violations arising under 42 U.S.C. § 1983, the defendants filed a Notice of Removal, thereby initiating

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the action in this Court. (Doc. 2.)
Plaintiff filed a Third Amended Complaint against the City of Bakersfield, Timothy Berchtold,

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Jason Felgenhaurer, and Robert Yzaguirre on June 23, 2014, which is now the operative pleading in the

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action. (Doc. 23.) The City of Bakersfield, Timothy Berchtold, and Jason Felgenhaurer filed their

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answer to the Third Amended Complaint on June 23, 2014. (Doc. 24.) To date, nominal defendant

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Robert Yzaguirre has neither filed an Answer nor made any attempt to appear in the action. Plaintiff

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requested the Clerk of Court enter default against Yzaguirre on September 9, 2014 (Doc. 27), and the

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request was granted on September 10, 2014 (Doc. 28.)

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II.

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Legal Standards Governing Default Judgment
After default is entered because “a party against whom a judgment for relief is sought has

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failed to plead or otherwise defend,” the party seeking relief may apply to the Clerk or the Court for a

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default judgment. Fed. R. Civ. P. 55(a)-(b). The Clerk of the Court may enter default judgment if the

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plaintiff’s claim is for a sum certain or when a sum can be made certain by computation. Fed.R.Civ.P.

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55(b) (1). If there is not a sum certain, the Court may enter default judgment by taking well-plead

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factual allegations as true and calculating the amount of damages to be awarded. See Pope v. United

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States, 323 U.S. 1, 22 (1944); Geddes v. United Financial Group, 559 F.2d 557, 560 (9th Cir. 1977).

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Entry of default judgment is within the discretion of the Court. Aldabe v. Aldabe, 616 F.2d

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1089, 1092 (9th Cir. 1980). The entry of default “does not automatically entitle the plaintiff to a

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court-ordered judgment. Pepsico, Inc. v. Cal. Sec. Cans, 238 F.Supp.2d 1172, 1174 (C.D. Cal 2002),

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accord Draper v. Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986). The Ninth Circuit determined:

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Factors which may be considered by courts in exercising discretion as to the entry of a
default judgment include: (1) the possibility of prejudice to the plaintiff, (2) the merits
of plaintiff’s substantive claim, (3) the sufficiency of the complaint, (4) the sum of
money at stake in the action, (5) the possibility of a dispute concerning material facts,
(6) whether the default was due to excusable neglect, and (7) the strong policy
underlying the Federal Rules of Civil Procedure favoring decisions on the merits.
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Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). As a general rule, the issuance of default

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judgment is disfavored. Id. at 1472.

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III.

Discussion and Analysis

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A.

Plaintiff fails to establish a sum certain

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Establishing a sum certain under Rule 55(b)(1) is a high standard. The Ninth Circuit explained:

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“A claim is not a sum certain unless there is no doubt as to the amount which Plaintiff is entitled as a

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result of the defendant's default.” Franchise Holding II, LLC v. Huntington Restaurants Group Inc.,

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375 F. 3d 922, 928 (9th Cir. 2004) (emphasis added, citing KPS & Assocs., Inc. v. Designs by FMC,

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Inc., 318 F.3d 1, 19 (1st Cir. 2003)).

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Here, Plaintiff’s counsel filed an affidavit in support of the request for entry of default

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judgment by the Clerk, asserting: “The claim for the plaintiff is for the sum of $75,000.” (Doc. 30-1 at

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2.) However, it is not clear how counsel arrived at this number to calculate the amount of damages.

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Review of the Third Amended Complaint offers no assistance. To the contrary, Plaintiff seeks

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“general and special damages in an as yet unascertained amount” and civil penalties totaling $25,000

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under Cal. Civ. Code § 52.1. (Doc. 23 at 12, emphasis added.) Consequently, Plaintiff fails to meet

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her burden to establish a sum certain for her claims.

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B.

Plaintiff fails to demonstrate the entry of default judgment is appropriate against
the nominal defendant.

As initial matter, Plaintiff acknowledges that Yzaguirre is a nominal defendant in this action for

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the wrongful death of Plaintiff’s husband and Yzaguirre’s son. (See Doc. 30 at 1.) California law

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permits only one action for wrongful death. Cross v. Pacific Gas & Elec. Co., 60 Cal. 2d 690, 694

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(1964). As a result, all heirs are necessary parties and plaintiffs “have a mandatory duty to join all

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known omitted heirs” in a single action. Ruttenberg v. Ruttenberg, 53 Cal. App. 4th 801, 808 (1997).

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In Ruttenberg, the court explained: “If an heir refuses to participate in the suit as a plaintiff, he or she

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may be named as a defendant so that all heirs are before the court in the same action. An heir named as

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a defendant in a wrongful death action is, in reality, a plaintiff.” Id. Although identified as a nominal

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defendant, an heir may recover against the wrongful death action plaintiffs if he is not properly joined

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in the action. See id.; Cotta v. Robinson, 2014 WL 4249144 at *4 (E.D. Cal. Aug. 27, 2014).
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Accordingly, though Plaintiff was required to name Yzaguirre as a nominal defendant in this action,

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there is no showing that he is entitled to an award of damages from him.
Moreover, it does not appear appropriate to enter judgment against Yzaguirre while the action

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remains against the City of Bakersfield and its officers involved in the shooting. Under the Federal

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Rules of Civil Procedure, “[w]hen an action presents more than one claim for relief . . . or when

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multiple parties are involved, the court may direct entry of a final judgment as to one or more, but

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fewer than all claims or parties only if the court expressly determines that there is no just reason for

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delay.” Fed. R. Civ. P. 54(b) (emphasis added).
The Supreme Court warned that “absurdity might follow” in instances where a court “can

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lawfully make a final decree against one defendant . . . while the cause was proceeding undetermined

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against the others.” Frow v. De La Vega, 82 U.S. 552, 554 (1872). When a case involves multiple

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parties, “[c]onsiderations of fairness and sound administration of justice are also applicable to the entry

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of default judgment.” Johnson v. Cate, 2009 U.S. Dist. LEXIS 57942, at * 2 (E.D. Cal. June 23, 2009).

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The Ninth Circuit explained, “It is a fundamental legal principle that an injured party is ordinarily

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entitled to only one satisfaction for each injury.” Franklin v. Kaypro Corp., 884 F.2d 1222, 1230 (9th

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Cir. 1989) (quoting U.S. Indus., Inc. v. Touche Ross & Co., 854 F.2d 1223, 1236 (10th Cir. 1988)).

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Given defendant Yzaguirre’s status as a nominal defendant and the fact that Plaintiff is entitled to only

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one judgment on her claims, the Court finds just cause to delay the entry of judgment against Robert

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Yzaguirre.

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IV.

Findings and Recommendations

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As noted above, default judgments are disfavored because “[c]ases should be decided on their

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merits whenever reasonably possible.” Eitel, 782 F.2d at 1472. Plaintiff fails to demonstrate the entry

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of default judgment is appropriate by the Clerk or the Court under Rule 55. Based upon the foregoing,

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the Court RECOMMENDS that Plaintiff’s request for entry of default judgment against defendant

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Robert Yzaguirre (Docs. 29, 30) be DENIED WITHOUT PREJUDICE.

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These Findings and Recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local

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Rules of Practice for the United States District Court, Eastern District of California. Within fourteen
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days of the date of service of these Findings and Recommendations, any party may file written

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objections with the court. Such a document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” Failure to file objections within the specified time may waive the

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right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

November 21, 2014

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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