Opinion
E065666
09-07-2017
DAVID C. PATKINS, Plaintiff and Appellant, v. REBECCA PIANTINI, Defendant and Respondent.
David C. Patkins, in pro. per., for Plaintiff and Appellant. No appearance for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. CIVDS1504254) OPINION APPEAL from the Superior Court of San Bernardino County. Brian S. McCarville, Judge. Affirmed in part; reversed in part. David C. Patkins, in pro. per., for Plaintiff and Appellant. No appearance for Defendant and Respondent.
Plaintiff and appellant David C. Patkins sued defendant and respondent Rebecca Piantini, M.D. Patkins brought causes of action for (1) fraud; (2) intentional infliction of emotional distress; and (3) violations of the Business and Professions Code (Bus. & Prof. Code, §§ 2230.5, subd. (c), 2234, subds. (d) & (e), 2262). Patkins sought entry of a default judgment against Piantini. (Code Civ. Proc., § 585.) The trial court denied Patkins's request for a default judgment and dismissed Patkins's case with prejudice. Patkins contends the trial court erred. We affirm in part and reverse in part.
FACTUAL AND PROCEDURAL HISTORY
A. BACKGROUND
Piantini was a doctor who worked in forensic pediatrics at Loma Linda University Children's Hospital. In 1993, Patkins suffered a conviction for child cruelty for shaking his oldest child. The victim was born in October 2000. Patkins was the victim's father or stepfather.
The record is contradictory as to whether Patkins was the victim's biological father.
On April 28, 2001, an ambulance was summoned for the victim because Patkins alleged he tripped over a dog on a staircase while holding the victim and dropped the victim, causing the victim to hit his head and roll down the stairs. A CT scan of the victim's brain revealed various injuries, such as "fractures of the right temporal and left parietal lobes" and "[a] 3 mm thick collection of blood along the inner table of the skull in the right frontotemporal region [that] is consistent with an epidural hematoma."
The character, age, and multitude of injuries indicated the victim had suffered repeated episodes of head trauma. The victim was admitted to the hospital. On April 30, the victim suffered brain death.
Piantini was a consulting physician for the victim, referred by Dr. Slaughter. Piantini wrote a consultation report. In the report, Piantini set forth the victim's medical history and described the observations she made during a physical examination of the victim. Piantini's report concludes with notes from April 30, and with the opinion that the victim's death was caused by "abusive head trauma."
A second brain death diagnosis was made on May 1. On May 1, some of the victim's organs were removed for donation purposes. The victim's date of death was May 1.
On May 2, the San Bernardino County Coroner's Office conducted an autopsy on the victim. The autopsy was conducted by Steven Trenkle, M.D. The witnesses present during the autopsy included deputy district attorneys and a police detective. The autopsy report describes removing the victim's brain and discovering 10 to 15 cc. of blood and clotting in the mid right cerebral hemisphere and "extensive subarachnoid hemorrhage over the entire left cerebral hemisphere." The Coroner listed the victim's cause of death as "[a]busive head trauma."
A jury found Patkins guilty of second degree murder (Pen. Code, § 187) and child abuse resulting in death (Pen. Code., § 273a). Patkins was sentenced to prison for a term of 59 years to life.
We take judicial notice of this court's opinion filed in People v. Patkins (People v. Patkins (Nov. 19, 2003, E032757) [nonpub. opn.] [2003 Cal. App. Unpub. LEXIS 10853, *1-2].). (Evid. Code, § 452, subd. (d).)
B. COMPLAINT
On March 19, 2015, Patkins sued Piantini. Patkins brought causes of action for (1) fraud; (2) intentional infliction of emotional distress; and (3) violations of the Business and Professions Code (Bus. & Prof. Code, §§ 2230.5, subd. (c), 2234, subds. (d) & (e), 2262).
In regard to fraud, Patkins alleged Piantini attended the victim's autopsy, and while at the autopsy, committed fraud by inducing someone to rely upon pre-autopsy x-ray impressions and a pre-autopsy CT scan, rather than the autopsy findings. Patkins asserts Piantini fraudulently made the cause of death be abusive head trauma, when the autopsy findings did not support such a diagnosis.
As to intentional infliction of emotional distress, Patkins alleged Piantini acted outrageously by maliciously misrepresenting that the victim died as a result of abusive head trauma and that the victim had suffered prior abuse. Patkins alleged he suffered fear, humiliation, shock, anger, and sobbing. In regard to the Business and Professions Code cause of action, Patkins alleged that Piantini knowingly altered the victim's autopsy results.
Patkins alleged the statute of limitations had been tolled because, since 2003, Patkins had been diligently trying to locate missing medical records by making demands upon various agencies. In 2014, Patkins gained access to medical books and was able to discover Piantini's alleged fraud.
In regard to damages, Patkins asserted he should be awarded (1) $468,000 for 15 years of lost wages; (2) $250,000 for emotional suffering; and (3) an unspecified amount of punitive damages. In addition to the Complaint, Patkins filed a Statement of Damages. (Code Civ. Proc., § 425.11.) Patkins asserted he (1) suffered emotional distress in the amount of $250,000; (2) was required to pay court fees and restitution in the amount of $21,000; (3) suffered lost wages in the amount of $468,000; and (4) deserved punitive damages in the amount of $500,000.
Forty-two exhibits were attached to Patkins's complaint. The exhibits include (1) unidentified portions of reporter's transcripts; (2) a 2003 letter from the Medical Board of California reflecting its conclusion that Piantini did not violate any laws; (3) a 2006 letter from the Medical Board of California reflecting it would not take action against Piantini and advising Patkins that he could try to pursue a civil case against Piantini; (4) documents reflecting Patkins's attempts to obtain the victim's medical records; (5) the victim's medical records; and (6) the victim's autopsy report.
C. DEFAULT AND DISMISSAL
In July 2015, Patkins requested an entry of default judgment against Piantini with a damage award of $1,239,435. (Code Civ. Proc., § 585.) A court clerk filed the default against Piantini. On September 21, the trial court considered Patkins's request for entry of a default judgment. The court continued the matter so it could consider the documentation submitted by Patkins.
The following day, on September 22, the court issued a minute order reflecting, "The court has reviewed plaintiff's proposed judgment pursuant to CCP 585(d) and finds no substantial evidence supporting plaintiff's request for judgment. Plaintiff establishes no fraudulent conduct by defendant. The Court finds no basis for plaintiff's suggestion that the statute of limitations was tolled." The court dismissed Patkins's case with prejudice.
D. VERIFICATION
Also on September 22, the trial court filed a verification from Patkins. The register of actions reflects the verification was filed after the court issued its minute order. In the verification, Patkins attested that "the allegations in the petition" were true. Most of Patkins's complaint and exhibits are attached to the verification.
DISCUSSION
A. CONTENTION
Patkins contends the trial court erred because he provided sufficient proof to support his causes of action. We construe Patkins's contention as asserting the trial court erred by (1) denying his request for entry of default judgment, and (2) dismissing his case.
B. DEFAULT JUDGMENT
The failure of a defendant to answer a complaint is an admission of the material allegations in the complaint. (Tuolumne Redemption Co. v. Patterson (1861) 18 Cal. 415, 416; Ellis v. Rademacher (1899) 125 Cal. 556, 557; Johnson v. Stanhiser (1999) 72 Cal.App.4th 357, 361.) Therefore, to obtain a default judgment, a plaintiff need only provide proof of damages. (Code Civ. Proc., § 585, subd. (b); Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 287.) We apply the abuse of discretion standard of review. (Kahn v. Lasorda's Dugout, Inc. (2003) 109 Cal.App.4th 1118, 1121; Matteson v Southern Pac. Co. (1907) 6 Cal.App. 318, 330.)
The record is unclear as to whether the trial court had Patkins's verification at the time it ruled upon the request for entry of a default judgment. The chronology of the register of actions reflects the verification was filed after the trial court issued its ruling. However, when the trial court issued its ruling, it wrote, "The court has reviewed Patkins's proposed judgment pursuant to CCP 585(d)." Code of Civil Procedure section 585, subdivision (d), concerns using affidavits in lieu of live testimony. Thus, the trial court's citation to that particular subdivision supports a finding that the court read Patkins's verification prior to issuing its ruling. We will address both possibilities.
The chronology of the filings in this case reflect the trial court did not have Patkins's verification at the time it ruled upon Patkins's request for a default judgment. As a result, the court did not have evidence to support Patkins's request for damages. Due to the lack of evidence concerning damages, the trial court could reasonably conclude Patkins failed to prove damages in support of his request for entry of a default judgment. Further, the complaint does not reflect a means of calculating the damages, such as lost wages. Patkins fails to allege how much money he previously earned and when he stopped earning that money. Therefore, the trial court did not err in denying Patkins's request for entry of a default judgment.
To the extent the trial court had Patkins's verification at the time it ruled upon his request, the trial court could reasonably conclude Patkins failed to adequately plead and prove damages. A plaintiff seeking a default judgment must prove he is entitled to the damages claimed. (Kim v. Westmoore Partners, Inc., supra, 201 Cal.App.4th at p. 288.) "The requirement of proof of damages is meaningless if it can be fulfilled by any evidence." (Ibid.) Damages require proof that the plaintiff suffered detriment due to harm inflicted by the defendant. (Civ. Code, § 3281.)
Patkins's complaint reflects allegations that Piantini committed fraud and that Patkins suffered detriment. However, the complaint and attached exhibits fail to explain how the fraud created Patkins's detriment. For example, Patkins fails to allege that he was charged, convicted, and sentenced for murdering the victim. Patkins alleges he suffered a loss of liberty, but does not explain how or why that occurred. Patkins does not allege that there is a connection between Piantini's alleged acts and Patkins's alleged harm.
This court is aware Patkins was convicted of the victim's murder because we took judicial notice of our opinion in Patkins's criminal case. In the complaint and exhibits in the instant case, we do not have information concerning Patkins being convicted of murdering the victim. Because Patkins failed to connect Piantini's alleged fraud to the harm he allegedly suffered, the trial court could not determine damages. For example, the evidence does not reflect why Patkins lost 15 years of wages; therefore, it is problematic to award Patkins 15 years of lost wages when there is no evidentiary basis explaining the loss of wages, e.g., no evidence that Patkins was imprisoned. Additionally, the complaint does not reflect a means of calculating the lost wages: Patkins fails to allege how much money he previously earned and when he stopped earning that money. In sum, the trial court did not err in denying Patkins's request for entry of a default judgment.
Patkins requests this court take judicial notice of a page of a reporter's transcript that was attached as an exhibit to his complaint, and which is missing from Patkins's version of the clerk's transcript. We deny Patkins's request because the page at issue is included in the version of the clerk's transcript that was sent to this court. In other words, the page is already in the record.
C. DISMISSAL
We now turn to the trial court's dismissal of Patkins's case. "'"An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections."'" (Edward v. Lamkins (2002) 99 Cal.App.4th 516, 529.)
The trial court failed to provide Patkins notice that, when ruling upon the default judgment, it would also be considering dismissal of Patkins's case. For example, the court did not set an order to show cause re: dismissal to be heard at the same time as the default judgment request. Because Patkins did not have notice regarding the potential dismissal, he did not have an opportunity to present his objections to the dismissal or argue that he could amend his complaint. The trial court's failure to provide Patkins with an opportunity to be heard on the issue of dismissing the lawsuit was a due process violation. Accordingly, we will reverse the dismissal of the lawsuit.
DISPOSITION
The order denying Patkins's request for entry of a default judgment is affirmed. The judgment dismissing the lawsuit is reversed. Patkins is to bear his own costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J. We concur: CODRINGTON
J. FIELDS
J.