                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       APR 18 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

ELLEN CATHERINE ROZARIO, an                     No.    15-56077
Individual,
                                                D.C. No.
                Plaintiff-Appellant,            2:14-cv-09540-AB-JPR

 v.
                                                MEMORANDUM *
KIM RICHARDS,

                Defendant-Appellee.

                   Appeal from the United States District Court
                      for the Central District of California
                   Andre Birotte, Jr., District Judge, Presiding

                            Submitted March 6, 2017**
                              Pasadena, California

Before: REINHARDT and NGUYEN, Circuit Judges, and EZRA,*** District
Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
      Ellen Catherine Rozario appeals the district court’s adverse rulings and

damages calculation in granting her default judgment against Kim Richards. We

have jurisdiction under 28 U.S.C. § 1291. We affirm in part, reverse in part, and

remand.

      “In reviewing a default judgment, this court takes ‘the well-pleaded factual

allegations’ in the complaint ‘as true,’” DIRECTV, Inc. v. Hoa Huynh, 503 F.3d

847, 854 (9th Cir. 2007) (quoting Cripps v. Life Ins. Co. of N. Am., 980 F.2d 1261,

1267 (9th Cir. 1992)), “except those relating to the amount of damages,” Geddes v.

United Fin. Group, 559 F.2d 557, 560 (9th Cir. 1977); see Fed. R. Civ. P. 8(b)(6),

55(b)(2)(B). Whether Richards is liable for default judgment or punitive damages

is a legal question that this court reviews de novo. Trs. of the Constr. Indus. &

Laborers Health & Welfare Tr. v. Hartford Fire Ins. Co., 578 F.3d 1126, 1129 (9th

Cir. 2009). The district court’s damages computation is reviewed for clear error.

NewGen, LLC v. Safe Cig, LLC, 840 F.3d 606, 617 (9th Cir. 2016).

      1. “Damages for emotional distress are inextricably related to the conduct

causing that distress. The more aggravated the conduct, the larger the award of

damages is likely to be.” Kardly v. State Farm Mut. Auto. Ins., 255 Cal. Rptr. 40,

43 (Ct. App. 1989). For this reason, “[t]he amount and severity of damages for

emotional distress is a question of fact for the jury [or court] to decide based on all

the evidence before it.” Id. Although “the amount of damages must be


                                           2
reasonable,” there “is no fixed or absolute standard by which to compute [them].”

Plotnik v. Meihaus, 146 Cal. Rptr. 3d 585, 596 (Ct. App. 2012) (quoting Hope v.

Cal. Youth Auth., 36 Cal. Rptr. 3d 154, 169 (Ct. App. 2005)).

      Although the district court did not err by considering damages awarded for

emotional distress in other dog bite cases, see Reilly v. Cal. St. Cable R.R., 173

P.2d 872, 876 (Cal. Ct. App. 1946) (observing that “cases involving damage

awards for similar injuries” are “continually resorted to by . . . courts as of some

guidance”), it erred to the extent that the selection of cases appears to be arbitrary

and unrepresentative. Moreover, these cases appear to be the sole basis for its

award. Because “other somewhat similar cases furnish no precise or accurate

bases for comparison,” id., “in the final analysis the question in each case must be

determined from its own peculiar facts and circumstances.” Power v. Cal. St.

Cable R.R., 126 P.2d 4, 5 (Cal. Ct. App. 1942).

      The district court acknowledged Rozario’s uncontested declaration, but it is

unclear whether, and to what extent, the court considered her statements about the

seriousness of her injury and its continuing impact on her. Further, to the extent

the district court suggested that Rozario needed corroborating medical evidence, it

was incorrect. The plaintiff’s subjective account is sufficient where, as here, “the

circumstances . . . make it obvious that a reasonable person would suffer

significant emotional harm.” In re Dawson, 390 F.3d 1139, 1150 (9th Cir. 2004).


                                           3
The district court is of course free to reject Rozario’s declaration, but under those

circumstances the court should explain any adverse credibility finding. See Lutz v.

United States, 685 F.2d 1178, 1186 (9th Cir. 1982).

      The district court also erred by relying on damages awards in decades-old

cases without accounting for the passage of time. In arriving at $4,000 for

emotional distress damages, the district court appears to have simply selected a

point somewhere between the two “guidepost” amounts in Uva v. Evans, 147 Cal.

Rptr. 795, 800 (Ct. App. 1978) (reversing “grossly disproportionate” $30,000

award to plaintiff who required two weeks to heal from “dog bites on her right

forearm and abdomen”), and Smythe v. Schacht, 209 P.2d 114, 119 (Cal. Ct. App.

1949) (affirming $1,500 award to 10-year-old plaintiff whose physical injuries

required two months of treatment and whose nightmares and aggravated stuttering

lasted six months). An award that was sufficient in a previous era may well be

inadequate today. 1 For example, in a recent case where, as here, the owner “knew

about [the dog’s] propensities and the danger to others” and the dog “[w]ithout

warning . . . attacked [the victim] . . . , biting [her] on her hand and body,” the jury

awarded the victim $75,000 for “past and future noneconomic loss (pain and



      1
        Accounting for inflation, the $15,000 award held to be excessive in Uva
would be worth approximately $110,000 today, and the $1,500 award upheld in
Smythe would be worth approximately $15,000. See Bureau of Labor Statistics,
Inflation Calculator, https://data.bls.gov/cgi-bin/cpicalc.pl.

                                           4
suffering).” Downing v. Flores, No. B249498, 2014 WL 6640801, at *1-2 (Cal.

Ct. App. Nov. 24, 2014).

      Moreover, in many dog bite cases, the plaintiff’s past medical expenses

amount to only a small fraction of the total damages awarded. See e.g. Beck v.

Farazmand, No. B174081, 2005 WL 2667467, at *1 & n.4 (Cal. Ct. App. Oct. 20,

2005) (victim incurred $2,916 in past medical expenses and was awarded $50,000

for pain and suffering, $50,000 for emotional distress, and $100,000 for permanent

disfigurement to his face); Ingenito v. Flores, No. BC512219 (Cal. Super. Ct. Jan.

25, 2016) ($20,000 for dog bite victim’s pain and suffering and $1,702 for past

medical expenses); Judge v. Rivera, No. BC505023 (Cal. Super. Ct. June 18, 2015)

($2,500 for pain and suffering and $1,200 for past medical expenses); Arnold v.

Wollard, No. 56-2014-00448979-CU-PO-VTA (Cal. Super. Ct. Feb. 6, 2015)

($85,000 for pain and suffering and $17,784 for past medical expenses).

      Here, the amount of damages awarded for emotional distress was less than

Rozario’s past medical expenses. We recognize that the amount of damages is a

factual matter decided by the district court in the first instance, and we express no

opinion on the appropriate amount in this case. We reverse the award of emotional

distress damages, however, because it was based on an incomplete analysis and,

without further explanation, appears unusually low. On remand, the district court

should reconsider the amount of damages in light of the evidence in the record.


                                          5
      2. We agree with Rozario that she alleged “outrageous” conduct to support

her claim for intentional infliction of emotional distress. The district court found

that Richards’ only “actionable conduct” was “encouraging [Rozario] to pet the

dog, representing the dog as an animal of ‘sweet’ and ‘cuddly’ behavior, and

discouraging [Rozario] from contacting the paramedics following the dog attack.”

Richards not only encouraged Rozario to pet the dog, a large pit bull; she did so

despite knowing that “the dog was dangerous and vicious” and “had previously

bitten and attacked a person or persons,” and she acted “with the intention to cause

[Rozario] severe emotional distress.” A defendant’s knowledge of and failure to

eliminate or warn about a danger to the plaintiff that was likely to and did result in

physical injuries is sufficient to show outrageous behavior. See Wilson v. S. Cal.

Edison Co., 184 Cal. Rptr. 3d 26, 49 (Ct. App. 2015). We reverse the district

court’s contrary ruling.

      3. We affirm the district court’s decision not to award punitive damages.

“[E]vidence of a defendant’s financial condition is essential to support an award of

punitive damages,” and the plaintiff bears the burden of proving this element.

Adams v. Murakami, 813 P.2d 1348, 1357 (Cal. 1991). Rozario’s allegation that

Richards is currently employed as a cast member of Real Housewives of Beverly

Hills is insufficient to meet this burden. There is no evidence of Richards’ salary




                                          6
as a reality television star from which an inference might be drawn regarding her

ability to pay punitive damages. 2

      We affirm the district court’s holding that Richards is liable under the

default judgment. We reverse the damages award and remand for the district court

to recalculate the emotional distress damages. We affirm the denial of punitive

damages.

      Costs on appeal are awarded to appellant.

      AFFIRMED in part, REVERSED in part, and REMANDED.




      2
        We note that under California law, where the record is “‘completely devoid
of any meaningful evidence’ of [the] defendant’s financial condition” and the
“deficiency may be laid at the [defendant’s] door,” the plaintiff’s failure to show
the defendant’s net worth is not a bar to punitive damages. Green v. Laibco, LLC,
121 Cal. Rptr. 3d 415, 424 (Ct. App. 2011). Rozario did not, however, present any
evidence—such as a sworn statement regarding her efforts to obtain this
information and the reason her efforts were unsuccessful—that the lack of
evidence of Richards’ financial condition “may be laid at [Richards’] door.” Id.

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