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Barry Fox, et al v. Jasmine Delgado

February 12, 2013

BARRY FOX, ET AL., PLAINTIFFS,
v.
JASMINE DELGADO,
DEFENDANT.



The opinion of the court was delivered by: Allison Claire United States Magistrate Judge

ORDER AND FINDINGS & RECOMMENDATIONS

Pending before the court is plaintiffs' September 28, 2012 motion for default judgment as to defendant Jasmine Delgado. This matter is before the court pursuant to Local Rule 302(c)(19). The court has determined that the matter shall be submitted upon the record and briefs on file and accordingly, the date for hearing of this matter shall be vacated. Local Rule 230. Upon review of the motion, THE COURT FINDS AS FOLLOWS:

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

A. Introduction

On February 14, 2011, plaintiffs filed this case and are proceeding on a first amended complaint ("FAC") filed May 2, 2011. Plaintiffs name as defendants the City of Rancho Cordova ("City"), the County of Sacramento ("County"), three deputy sheriffs employed by the County ("the police defendants"), four employees of Child Protective Services ("the CPS defendants"), and Jasmine Delgado. Plaintiffs Barry and Narcisa ("Nancy") Fox ("the parent plaintiffs"), appearing individually and as parents and natural guardians and guardians ad litem of their four minor sons (A.F., D.F., S.F., and M.F.), accuse the City, the County, the police defendants, and the CPS defendants of failing to conduct an adequate investigation into the cause of blisters found on the feet of their youngest son, M.F., while in the care of his babysitter, Delgado. Having failed to properly investigate the matter, plaintiffs claim that these defendants baselessly accused Barry and Nancy Fox of causing M.F.'s injury and, accordingly, removed all four children from the care and custody of the parent plaintiffs for nearly two months, in violation of state and federal law. Plaintiffs brings suit against Delgado for negligence.

On January 22, 2013, plaintiffs filed a notice of dismissal by stipulation as to the City, the County, the police defendants, and the CPS defendants. ECF No. 83. Only defendant Delgado, who has one claim asserted against her, remains in this action.

B. Allegations as to Delgado

In the FAC, plaintiffs claim that, on the morning of January 29, 2010, Nancy Fox dropped off 2.5 year old M.F., still in his "footy" pajamas and without injury, at Delgado's second-floor apartment for baby-sitting services. FAC ¶¶ 26-30. In the early afternoon on January 29, 2010, Nancy received a telephone call from Delgado telling her that something was wrong with M.F.'s feet and that Nancy should come pick him up as soon as possible at Delgado's mother's apartment, which was a first-floor apartment in the same complex as Delgado's second-floor apartment. Id. ¶ 31. When Nancy arrived, she saw that M.F. had his pants on but no shoes or socks. Id. ¶ 32. When she examined his feet, she noticed that they were pink to red in color and appeared to have large water blisters and detached skin on their tops. Id. Delgado told Nancy "M.F. was fine before I put his shoes on him," and suggested that M.F. must be suffering from a bacterial infection caused by his shoes. Id. ¶ 34. Nancy and Jasmine then took M.F. to the hospital, where the attending physician diagnosed the condition of M.F.'s feet as second degree immersion burns and directed Nancy to take M.F. to the Shriner's Burn Center Hospital in Sacramento ("Shriner's"). Id. ¶ 39. At Shriner's, M.F. was treated for immersion burns. Id. ¶ 46. While there, M.F. was interviewed by one of the officer defendants and stated that "grandma" had hurt him and that "grandma" lived near or "under" Delgado. Id. ¶ 121.

In their Eighth Claim for Relief in the FAC, plaintiffs assert that, as a result of Delgado's negligence, M.F. has been damaged in the "form of extreme pain and suffering, permanent injury and disfigurement to his feet and the donor skin graft site on his back and psychic injury in a degree to be ascertained and determined from the evidence received at trial and in the need for future medical care." FAC ¶ 151. They seek damages not less than $200,000.

C. Delgado's Failure to Appear

On March 1, 2011, Delgado was personally served with the summons and

complaint. ECF No. 10. On May 2, 2011, Delgado was served by mail with the first amended complaint. ECF No. 14, Ex. 1. While Delgado did appear to give a deposition, see Pls.' Mot. for Def. J. at 2, she has not filed or served any pleading.

On September 18, 2012, plaintiffs filed a Request for Entry of Default against Delgado ECF No. 66. On September 20, 2012, the Clerk of the Court entered default against Delgado.

Now pending is plaintiffs' September 28, 2012 motion for default judgment on plaintiffs' negligence claim in the amount of $200,000. Plaintiffs served by mail a copy of this motion on ...


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