Carlsen v. Koivumaki

Filed 7/7/14
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Shasta)

JASON MICHAEL CARLSEN, C070671

Plaintiff and Appellant, (Super. Ct. No. 170436)

v.

SARAH KOIVUMAKI,

Defendant and Appellant;

ZACHARY GUDELUNAS,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Shasta County, Monica
Marlow, Judge. Reversed in part and affirmed in part.

Kern, Noda, Devine & Segal and Michael G. Thomas for Plaintiff and Appellant.

Johnson & Haslerud, Haslerud Law Office and Gary E. Haslerud for Defendant
and Appellant.

No appearance for Defendant and Respondent.

This is a defendant’s summary judgment case. A summary judgment may be
granted a defendant if it is shown that the plaintiff cannot establish one or more elements
of his or her cause of action or that there is a complete defense to the claim. (Code Civ.

1
Proc., § 437c, subd. (p)(2).)1 A defendant’s “burden of production is to show that ‘ “one
or more elements of” the [plaintiff’s] “cause of action” . . . “cannot be established . . .”
. . . .’ [Citations.] The burden can be satisfied by a showing that ‘the plaintiff does not
possess, and cannot reasonably obtain, needed evidence . . . .’ [Citation.] ‘If a plaintiff
pleads several theories, the defendant has the burden of demonstrating there are no
material facts requiring trial on any of them.’ ” (Teselle v. McLoughlin (2009) 173
Cal.App.4th 156, 162-163 (Teselle).)
Plaintiff Jason Michael Carlsen (Jason) was severely injured from a fall from a
cliff above the Sacramento River in Redding.2 Although he cannot recall how or why he
fell, he sued his two companions Sarah Koivumaki (Sarah) and Zachary Gudelunas
(Zach), asserting causes of action for assault and battery, negligence, willful misconduct,
and intentional infliction of emotional distress. He claims that defendants put him in
peril by bringing him to the edge of a cliff when he was highly intoxicated, leading to his
fall, and that they aggravated his injuries by waiting several hours to inform the
authorities of the fall.
The trial court granted summary judgment in favor of Sarah, finding that it could
not reasonably be inferred from the evidence submitted that she touched or threatened to
touch Jason or that she breached a duty of care owed to him. Jason contends the trial
court erred because “[m]ultiple material issues of fact [exist] relating to [Sarah]’s role in
placing [him] in peril at the bottom of the cliff,” and “[Sarah] owed [him] an affirmative
duty to summon aid so as to protect [him] in the face of the ongoing imminent harm,
danger, and medical emergency” and “as a result of a special relationship.”

1 Further undesignated statutory references are to the Code of Civil Procedure.
2 We refer to the parties by their first names, not from disrespect, but to ease the reader’s
burden.

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 The question on summary judgment is whether a jury reasonably could infer that
Sarah put Jason in a position of peril by planning a trip to the cliff with Zach and in
cooperating with him in bringing an inebriated Jason to a place at the edge of a cliff and
in delaying the summoning of help for several hours. Sarah relies on the rule that a
person has no general duty to safeguard another from harm or to rescue an injured person.
But that rule has no application where the person has caused another to be put in a
position of peril of a kind from which the injuries occurred. While “[t]here may be no
duty to take care of a man who is ill or intoxicated, and unable to look out for himself;
. . . it is another thing entirely to eject him into the danger of a street or railroad yard; and
if he is injured there will be liability.” (Prosser & Keeton, Torts (5th ed. 1984) § 56, p.
378, fn. omitted.) That is the case here.
We shall conclude that Jason established triable issues of material fact as to the
negligence and willful misconduct causes of action, that on the facts tendered a jury
reasonably could infer that Sarah had acted to put an inebriated Jason in peril at the edge
of a cliff. We shall reverse the summary judgment entered in favor of Sarah but affirm
the summary adjudication of the assault and battery and intentional infliction of
emotional distress causes of action.3
This is also a default judgment case. Unlike a summary judgment proceeding, no
evidence is required to establish liability. (Kim v. Westmoore Partners, Inc. (2011) 201
Cal.App.4th 267, 281-282 (Kim).) A defendant’s failure to answer the complaint admits
the well-pleaded allegations of the complaint, and no further proof of liability is required.
(§ 431.20; Kim, supra, at pp. 281-282.) The only additional proof required for a default
judgment is that needed to establish damages. (See Beeman v. Burling (1990) 216

3 We shall affirm the summary adjudication (as opposed to summary judgment) because
we shall conclude that Jason established triable issues of material fact as to two of his
four causes of action.

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Cal.App.3d 1586, 1597; Ostling v. Loring (1994) 27 Cal.App.4th 1731, 1745.) That the
plaintiff lacks evidence to prove the well-pleaded allegations of the complaint is of no
consequence. (See Kim, supra, at pp. 281-282.)
Zach failed to respond to Jason’s complaint, and a clerk’s default was entered
against him. After the trial court entered summary judgment in favor of Sarah, Jason
filed a request for the entry of a default judgment against Zach. Following a “prove-up”4
hearing, the trial court denied Jason’s request and entered judgment in favor of Zach,
finding that Jason “failed to prove his case against [him].” Jason contends the trial court
erred because the well-pleaded allegations of material fact of his complaint state a cause
of action against Zach.
We agree and shall reverse the judgment entered in Zach’s favor and remand the
matter to the trial court with directions to conduct a hearing to determine whether Jason
can establish damages and, if so, to enter a default judgment for Jason and against Zach.
Finally, we shall affirm the postjudgment order denying Sarah’s request for
attorney fees as cost-of-proof sanctions. (§ 2033.420.)
FACTUAL AND PROCEDURAL BACKGROUND5
The facts alleged or tendered in a summary judgment proceeding perform two
different functions. As material facts they measure whether the plaintiff has alleged a
cause of action. As evidentiary facts they establish whether the material facts have been

4 Generally, a plaintiff is required to prove up his damages at a prove-up hearing. (See
Kim, supra, 201 Cal.App.4th at p. 272.) Here, however, the trial court required Jason to
substantively “prove his case against [Zach],” and concluded Jason failed to meet that
requirement. Accordingly, the trial court did not reach the issue of damages.
5 We view the facts in the light most favorable to Jason as the losing party on summary
judgment. (Morris v. De La Torre (2005) 36 Cal.4th 260, 265.)

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proved.6 (See Teselle, supra, 173 Cal.App.4th at p. 172.) The facts are tendered as
undisputed in “supporting papers” appended to the motion for summary judgment.
(§ 437c, subd. (a).) They appear in the form of admissible evidence in “affidavits,
declarations, admissions, answers to interrogatories, depositions, and matters of which
judicial notice shall or may be taken.” (§ 437c, subd. (b)(1).) The opposing papers
appear in the same form and include a separate statement as to whether the facts in the
supporting papers are disputed or undisputed. (§ 437c, subd. (b)(2) & (3).) “Evidentiary
objections not made at the hearing shall be deemed waived.” (§ 437, subd. (b)(5).)
While we may not weigh the admitted evidence as though we are sitting as a trier of fact,
we “must nevertheless determine what any evidence or inference could show or imply to
a reasonable trier of fact. . . . In so doing, [we do] not decide on any finding of [our]
own, but simply decide[] what finding such a trier of fact could make for itself.” (Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 856, fn. omitted (Aguilar).)
The following facts are facts as to which no objection was made or sustained.
They were tendered in Sarah’s admissions, Sarah’s deposition, Jason’s deposition,
Sarah’s declaration, Nicholas De la Cruz’s declaration, Debbie Morton’s declaration, and
the “Statements of facts and truths” prepared by Sarah at the request of the dean of the

6 A cause of confusion may arise from the use of the term “facts” to refer both to
material facts and to evidentiary facts. Material facts are facts to be proved to establish a
cause of action. (Teselle, supra, 173 Cal.App.4th at p. 172.) Evidentiary facts are facts
by which the material facts are proved. (Ibid.) Material facts are criterial, are elements
of a cause of action, and define the cause of action in the circumstances of the case. (See
ibid.) Whether a fact is one or the other depends on the function to be performed. (See
ibid.) If the facts are used to establish a ground for relief, they are material. If the facts
are used to establish the truth of the material facts they are evidentiary. (See ibid.)

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Bethel School of Supernatural Ministry (Bethel), where she and Zach were students at the
time of the incident.7
On the evening of October 4, 2008, Jason went to a party with his friend Nicholas
De la Cruz. While there, Jason consumed alcohol and was “clearly intoxicated.” De la
Cruz had driven Jason to the party and felt responsible for ensuring he got home safely.
De la Cruz’s car had broken down as he and Jason arrived at the party; therefore, he
asked his roommate Zach to drive Jason home, and Zach agreed. In Sarah and Zach’s
presence, De la Cruz told Jason that Sarah and Zach had agreed to drive him home.
Sarah had known Zach for about a year prior to the night in question. They both
were students at Bethel and hung out a lot.
Jason left the party with defendants around 1:00 a.m. on the morning of October 5,
2008. Zach asked Jason if he wanted to go to “the Bluffs,” a cliff overlooking the
Sacramento River, and Jason said, “no.” After leaving the party, they drove to Food
Maxx, where Jason stole a fifth of rum. They then went to a second party, where Jason
had a couple of shots of the rum. From there they drove to the Bluffs to watch the
sunrise. Zach parked on the side of the road, and they walked to the Bluffs. Zach placed
a blanket near the cliff’s edge for the three of them to sit on. They sat on the blanket
drinking the rum Jason had stolen. They were happy and joking around until Sarah
brought up the death of her brother eight months earlier. Sarah told the others that her

7 Sarah objected to admissibility of the “Statements of facts and truths” but the trial court
declined to rule on her objection. Accordingly, we may consider the document. (§ 437c,
subd. (c).) In her respondent’s brief, she notes that in the “Statements of facts and truths”
she stated that “all times are just guesses . . .” However, she omits the remainder of her
statement, which reads: “I cannot remember fully the times or details from 2 years ago,
but this is what I do remember to the best of my ability.” (Italics added.) Thus, we reject
Sarah’s suggestion that the statements contained in the “Statements of facts and truths”
are unreliable. As relevant here, the principal difference between Sarah’s deposition and
the “Statements of facts and truths” is that at her deposition she claimed that she could
not remember the timing of events.

6
brother had died after falling off a bridge while intoxicated. Jason laughed, which upset
Sarah, who began crying and wanted to leave. Sarah eventually calmed down and
returned to the blanket. Shortly after, Jason fell. According to Sarah, Jason fell within 30
minutes of their arrival at the Bluffs. Jason attempted to hang onto the edge of the cliff
before losing his grip and falling. No one else was around when Jason fell, and, as far as
Sarah knew, there were no other witnesses to the fall besides her and Zach. Sarah heard
Jason fall down the cliff side and land on the rocks below.
After Jason fell, defendants grabbed the blanket and ran to the car. Once inside,
Sarah told Zach, “[W]e need to call 911.” They did not do so, however, because they
were afraid they would get into trouble for being intoxicated or be accused of causing
Jason’s fall. At the time, Sarah was 18 or 19 years old. Instead, they attempted to locate
Jason by driving closer to the Sacramento River, running through vegetation, and wading
into the river. When the water reached Sarah’s chest and she could feel the current, she
decided she could not go any further. Defendants spent approximately one hour
attempting to locate Jason. Sarah ripped her jeans, cut her left knee, and lost her shoes
that morning. According to Sarah, she did so while attempting to locate Jason.
Next, defendants drove to Whiskeytown Lake, where they discussed Jason’s
“suicide.” They returned to Redding at approximately 7:00 a.m. and went to Sarah’s
apartment complex where they attempted to warm up in the sauna. At approximately
8:30 a.m., Sarah telephoned her mother in Canada, telling her, “ ‘this guy committed
suicide, he jumped.’ ” Her mother told her to “ ‘go to the police station right away, call
911.’ ” Defendants drove to the police station and reported the incident at approximately
9:20 a.m. Jason was located one-half hour later. Sarah admitted that “[s]everal hours
passed after [Jason]’s fall from the cliff before [she] reported the incident to the Redding
Police.”
Earlier that morning, between 5:00 a.m. and 6:00 a.m., Debbie Morton, who lived
near the Bluffs, heard a man and a woman yelling. The sounds came from the Bluffs.

7
She could not hear what they were saying, but said that “they were definitely screaming
and yelling at each other.”
Jason had no recollection of being at the Bluffs, much less anything that happened
there. Sarah denied touching or threatening Jason while they were there or otherwise
contributing to his fall. According to Sarah, a few minutes after she shared the story
about her brother, Jason stood up, faced defendants, said something to the effect of,
“ ‘I’ve had a hard life,’ ” and “ ‘You can’t die in the will of God,’ ” and stepped
backwards off the cliff.
Jason sued defendants, asserting causes of action for (1) assault and battery, (2)
negligence, (3) willful misconduct, and (4) intentional infliction of emotional distress.
Sarah answered the complaint with general denials and affirmative defenses. Zach did
not respond, and Jason served him with a statement of damages seeking general damages
in the amount of $20 million, special damages of at least $11 million, and punitive
damages in the amount of $20 million. Thereafter, a clerk’s default was entered against
Zach.
Meanwhile, Sarah filed a motion for summary judgment, or in the alternative
summary adjudication, based on the following contentions: (1) there was no triable issue
of material fact that she neither assaulted nor battered Jason; (2) there was no triable issue
of material fact that she had not breached any duty owed to Jason; (3) there was no triable
issue of material fact that she had not engaged in any outrageous conduct; and (4) there
was no triable issue of material fact that Jason had not suffered emotional distress as an
actual and proximate result of her conduct. The trial court ruled that Jason failed to meet
his burden because he had no recollection of being at the Bluffs, much less falling from
the cliff, and it could not reasonably be inferred from the evidence that Sarah pushed or
otherwise caused him to fall. The court further found that there was insufficient evidence
to support a finding that Sarah placed Jason “in the perilous position of falling off the
cliff,” that a special relationship existed between Jason and Sarah such that Sarah owed

8
Jason a duty of care, or that Sarah engaged in any outrageous conduct. Accordingly, the
trial court granted summary judgment in favor of Sarah.
Thereafter, the trial court issued an order directing Jason and his counsel to appear
and show cause why Jason’s action against Zach should not be dismissed for the
following reasons: (1) Jason’s counsel failed to appear at a case management conference;
(2) Jason failed to seek entry of default judgment against Zach; and (3) a default
judgment against Zach would be inconsistent with the trial court’s ruling granting
summary judgment in Sarah’s favor. Jason responded by filing a “Judgment Packet
Following Entry of Default,” a request for entry of default judgment against Zach, and a
brief and 35 exhibits in support of his request. Following a prove-up hearing, the trial
court denied Jason’s request for entry of default judgment against Zach because “[t]he
elements of the four cause of actions pled are not proved by the admitted facts” or by the
additional evidence submitted by Jason in support of his request.
Meanwhile, Sarah moved for attorney fees as cost-of-proof sanctions for Jason’s
asserted unreasonable refusal to admit the truth of certain pretrial requests for admissions.
(§ 2033.420.) The trial court denied Sarah’s motion, finding that while it disagreed with
Jason’s arguments presented in opposition to the motion for summary judgment, Jason
had a good faith belief that he could prevail on the theories asserted.
DISCUSSION
I
Summary Judgment Was Improvidently Entered in Sarah’s Favor Because Jason
Established Triable Issues of Material Fact as to the Negligence and Willful Misconduct
Causes of Action
“ ‘The purpose of a summary judgment proceeding is to permit a party to show
that material factual claims arising from the pleadings need not be tried because they are
not in dispute.’ [Citation.] ‘The function of the pleadings in a motion for summary
judgment is to delimit the scope of the issues: The function of the affidavits or
declarations is to disclose whether there is any triable issue of fact within the issues

9
delimited by the pleadings.’ [Citations.] The complaint measures the materiality of the
facts tendered in a defendant’s challenge to the plaintiff’s cause of action. [Citation.]”
(FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381 (FPI).) “The
distinction between a material fact and its supporting evidence lies in the difference
between an ultimate fact, an element of a cause of action, and an evidentiary fact which
supports the existence of the element.” (Teselle, supra, 173 Cal.App.4th at p. 172, fn.
omitted.)
“The role of the pleadings in measuring materiality is supplemented by rules
directly applicable to a summary judgment proceeding. The parties must submit
‘separate statements’ identifying each of the material facts in dispute with reference to
the supporting evidence. (Code of Civ. Proc., § 437c, subd. (b).) The motion or
opposition thereto must be supported by facts in the form of ‘affidavits, declarations,
admissions, answers to interrogatories, depositions, and matters of which judicial notice
shall or may be taken.’ (Ibid.) In a properly pleaded case this showing addresses the
matters of fact put in issue by the pleadings, for properly drafted pleadings aver the
ultimate facts which constitute the cause of action or defense thereto. [Citation.] In a
summary judgment proceeding the factual submissions of the parties must track these
averments by providing evidence of the ultimate facts averred. Because of this
relationship, in the absence of an appropriate objection, some defects in the pleading of
an ultimate fact may be remedied by resort to a factual showing in the summary judgment
proceeding. In this manner the pleadings may be read together with the factual showings
in the summary judgment proceeding for purposes of discerning what is in issue.” (FPI,
supra, 231 Cal.App.3d at p. 382.)
A “motion for summary judgment shall be granted if all the papers submitted
show that there is no triable issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law. In determining whether the papers show that
there is no triable issue as to any material fact the court shall consider all of the evidence

10
set forth in the papers, except that to which objections have been made and sustained by
the court, and all inferences reasonably deducible from the evidence, except summary
judgment may not be granted by the court based on inferences reasonably deducible from
the evidence, if contradicted by other inferences or evidence, which raise a triable issue
as to any material fact.” (§ 437c, subd. (c).) A defendant moving for summary judgment
bears the initial burden to show the plaintiff’s action has no merit. (Teselle, supra, 173
Cal.App.4th at pp. 168-169.) The defendant can meet that burden by either showing the
plaintiff cannot establish one or more elements of his or her cause of action or there is a
complete defense to the claim. (Id. at p. 169; § 437c, subd. (p)(2).) To meet this burden,
the defendant must present evidence sufficient to show he or she is entitled to judgment
as a matter of law. (Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 847-848.) “ ‘If a
plaintiff pleads several theories, the defendant has the burden of demonstrating there are
no material facts requiring trial on any of them.’ ” (Teselle, supra, 73 Cal.App.4th at p.
163.)
Once the defendant meets that burden, the burden shifts to the plaintiff to present
evidence establishing a triable issue exists on one or more material facts. (Teselle, supra,
173 Cal.App.4th at pp. 168-169; § 437c, subd. (p)(2).) “In deciding whether a plaintiff
has met h[is] burden of proof, we consider both direct and circumstantial evidence, and
all reasonable inferences to be drawn from both kinds of evidence, giving full
consideration to the negative and affirmative inferences to be drawn from all of the
evidence, including that which has been produced by the defendant.” (Leslie G. v. Perry
& Associates (1996) 43 Cal.App.4th 472, 483.) “An issue of fact can only be created by
a conflict of evidence. It is not created by ‘speculation, conjecture, imagination or guess
work.’ [Citation.] Further, an issue of fact is not raised by ‘cryptic, broadly phrased, and
conclusory assertions’ [citation], or mere possibilities [citation]. ‘Thus, while the court in
determining a motion for summary judgment does not “try” the case, the court is bound
to consider the competency of the evidence presented.’ [Citation.]” (Sinai Memorial

11
Chapel v. Dudler (1991) 231 Cal.App.3d 190, 196-197.) Responsive evidence that
“gives rise to no more than mere speculation” is not sufficient to establish a triable issue
of material fact. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.)
We review a trial court’s ruling on a summary judgment motion de novo.
(Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 939-940.)
A. Assault and Battery
Jason’s arguments on appeal focus primarily on his negligence cause of action and
his assertion that Sarah owed him an affirmative duty to summon aid, an issue we address
below. His remaining causes of action are addressed collectively in a single section at the
end of his opening brief wherein he contends “[m]ultiple material issues of fact relating
to [Sarah]’s role in placing [him] in peril at the bottom of the cliff precluded summary
adjudication on all of the other causes of action.” We address the assault and battery
cause of action first because Jason’s ability to pursue that cause of action bears upon his
remaining causes of action. As noted, on summary judgment, the issues are determined
by the pleadings, the rules of pleadings, and the substantive law. (Teselle, supra, 173
Cal.App.4th at p. 172.) We begin our analysis with the substantive law.
The elements of a cause of action for assault are: (1) the defendant acted with
intent to cause harmful or offensive contact, or threatened to touch the plaintiff in a
harmful or offensive manner; (2) the plaintiff reasonably believed he was about to be
touched in a harmful or offensive manner or it reasonably appeared to the plaintiff that
the defendant was about to carry out the threat; (3) the plaintiff did not consent to the
defendant’s conduct; (4) the plaintiff was harmed; and (5) the defendant’s conduct was a
substantial factor in causing the plaintiff’s harm. (So v. Shin (2013) 212 Cal.App.4th
652, 668-669.) The elements of a cause of action for battery are: (1) the defendant
touched the plaintiff, or caused the plaintiff to be touched, with the intent to harm or
offend the plaintiff; (2) the plaintiff did not consent to the touching; (3) the plaintiff was

12
harmed or offended by the defendant’s conduct; and (4) a reasonable person in the
plaintiff’s position would have been offended by the touching. (Id. at p. 669.)
As relevant here, the complaint alleges that “as a result of Defendants’ contact
with . . . [Jason] and/or through Defendants’ creation of an imminent apprehension of
such contact, [Jason] was knocked or pushed backwards, such that he began to fall over
the edge of the cliff.”
Sarah’s summary judgment motion asserted that Jason had no evidence that he
was knocked or pushed backwards causing him to fall over the cliff. In support of her
assertion, she relied on the following facts: (1) Jason’s admission that he had no memory
of the events that took place at the Bluffs on October 5, 2008; and (2) her assertion, as set
forth in her declaration, that she did not touch Jason, cause him to be touched, or threaten
to touch him while they were at the Bluffs on October 5, 2008. Sarah’s evidence was
sufficient to shift the burden to Jason to create a triable issue of material fact because, if
left uncontroverted, Jason would be unable to establish Sarah touched or threatened to
touch him. (See Thrifty Oil Co. v. Superior Court (2001) 91 Cal.App.4th 1070, 1077
[Evidence is sufficient to shift the burden of proof to the opposing party if “standing
alone, uncontroverted, and without submission of any issue to a trier of fact, [such
evidence] would compel a . . . verdict” in the moving party’s favor at trial.].)
In his opposition to the summary judgment motion, Jason admitted he had no
memory of his fall or the events immediately preceding it, but he “[d]isputed” Sarah’s
other fact, namely that she did not touch, let alone push, him while they were at the
Bluffs. In doing so, he cited the following facts: (1) Sarah became upset with him while
they were at the Bluffs because he laughed when she told him about her brother’s death,
(2) Sarah’s jeans were torn and she had a scrape on her left knee, (3) a woman living near
the Bluffs heard a man and a woman arguing between 5:00 and 6:00 a.m. on October 5,
2008, (4) Sarah left the “scene” and delayed in reporting the incident to police, (5) the
blanket they were sitting on and Jason’s sweatshirt were found in Zach’s car, and (6)

13
Sarah’s inconsistent statements as to whether she owned a cell phone at the time of the
incident.8 Based on these facts, Jason claimed it could be inferred that Sarah pushed him,
causing him to fall off the cliff. The inference is unreasonable.
“An inference is a deduction of fact that may logically and reasonably be drawn
from another fact or group of facts found or otherwise established in the action.” (Evid.
Code, § 600, subd. (b).) An inference must be reasonable to raise a triable issue of
material fact on summary judgment. (McGrory v. Applied Signal Technology, Inc.
(2013) 212 Cal.App.4th 1510, 1529-1530.) While we may not weigh Jason’s evidence or
inferences against Sarah’s evidence as though we are sitting as a trier of fact, we “must
nevertheless determine what any evidence or inference could show or imply to a
reasonable trier of fact. . . . In doing so, [we do] not decide on any finding of [our] own,
but simply decide[] what finding such a trier of fact could make for itself.” (Aguilar,
supra, 25 Cal.4th at p. 856, fn. omitted.)
Jason claimed that his response to news of Sarah’s brother’s death provided Sarah
with a motive to “push [him] off the cliff,” Sarah’s torn jeans and scraped knee were
evidence of a struggle at the top of the cliff, the early morning argument overheard by a
neighbor was evidence Sarah and Zach returned “to clear the scene of evidence they had
been there with Jason,” Sarah’s leaving the scene and delaying in reporting the incident
“provide[d] direct evidence of flight and circumstantial evidence of guilt,” the presence
of the blanket and Jason’s sweatshirt in Zach’s car was evidence Sarah and Zach

8 There is no admissible evidence to support Jason’s assertion that Sarah and Zach gave
“contradictory descriptions of how [Jason] fell.” Sarah’s objections to the police reports
themselves were sustained, and Jason does not challenge the trial court’s evidentiary
ruling here. Moreover, the portion of Sarah’s deposition testimony cited by Jason reflects
only that the police told Sarah that Zach said that Jason ran to the edge of the cliff,
jumped into the air, and did a turn, and that Sarah did not agree with that version of how
Jason fell. In addition to constituting triple hearsay, Sarah’s deposition testimony is not
evidence that Zach actually told the police that is how Jason fell.

14
“deliberately tampered, destroyed and concealed evidence at the crime scene,” and
Sarah’s inconsistent statements as to whether she owned a cell phone constituted a
“deliberate attempt[] to deceive the police” and provided further evidence she “intended
to conceal material evidence that would implicate her.”
Whether considered individually or collectively, none of Jason’s facts support a
reasonable inference that he was assaulted or battered. As the trial court correctly found,
Jason’s claim that Sarah pushed him in a fit of anger, causing him to fall off the cliff,
relies on inferences that are too speculative to create a triable issue of material fact.
At best, Jason presented evidence that Sarah may have possessed the motive, opportunity,
and means to push him off the cliff. But that is all. And that is not enough. Such
evidence merely allows speculation about an altercation that may have resulted in Jason
falling off the cliff. Speculation, however, is not evidence. (Aguilar, supra, 25 Cal.4th at
p. 864.) The trial court did not err in summarily adjudicating the assault and battery
cause of action.
B. Negligence
Jason contends the trial court erred in summarily adjudicating his second cause of
action for negligence because (1) defendants, “by virtue of the pre-existing relation[ship]
of the parties, owed [him] a duty to call 911 or otherwise summon aid for [him] after he
fell from the cliff,” and (2) “[m]ultiple material issues of fact [exist] relating to [Sarah]’s
role in placing [him] in peril at the bottom of the cliff . . . .” As we shall explain, Jason
created a triable issue of material fact as to whether Sarah breached a duty owed to Jason
by bringing him to the cliff side when she knew he was intoxicated and waiting several
hours to call 911 or otherwise summon aid after the fall.
The elements of any negligence cause of action are duty, breach of duty,
proximate cause, and damages. (Lockheed Martin Corp. v. Superior Court (2003) 29
Cal.4th 1096, 1106.) In California, “[e]veryone is responsible . . . for an injury
occasioned to another by his or her want of ordinary care or skill in the management of

15
his or her property or person, except so far as the latter has, willfully or by want of
ordinary care, brought the injury upon himself or herself.” (Civ. Code, § 1714, subd. (a).)
In other words, “each person has a duty to use ordinary care and ‘is liable for injuries
caused by his failure to exercise reasonable care in the circumstances . . . .’ ” (Parsons v.
Crown Disposal Co. (1997) 15 Cal.4th 456, 472, quoting Rowland v. Christian (1968) 69
Cal.2d 108, 112.)
“As a rule, one has no duty to come to the aid of another. A person who has not
created a peril is not liable in tort merely for failure to take affirmative action to assist or
protect another unless there is some [special] relationship between them which gives rise
to a duty to act.” (Williams v. State of California (1983) 34 Cal.3d 18, 23 (Williams).)
“Typically, in special relationships, ‘the plaintiff is particularly vulnerable and dependent
upon the defendant who, correspondingly, has some control over the plaintiff’s welfare.
[Citation.]’ [Citation.] A defendant who is found to have a ‘special relationship’ with
another may owe an affirmative duty to protect the other person from foreseeable harm,
or to come to the aid of another in the face of ongoing harm or medical emergency.”
(Rotolo v. San Jose Sports & Entertainment, LLC (2007) 151 Cal.App.4th 307, 325
(Rotolo), disapproved on other groups in Verdugo v. Target Corp. (June 23, 2014,
S207313) ___ Cal.4th ___, ___ & fn. 15 [2014 Cal. Lexis 4319, 44-45 & fn. 15.)
The complaint alleges inter alia that defendants were negligent in that they “were
directly involved in creating the conditions that placed [Jason] in peril; Defendants’
affirmative acts were linked, and a substantial factor, in [Jason’s] initial fall . . . .” The
complaint also alleges that defendants owed Jason a duty to call 911 or otherwise
summon aid after he fell due to “the nature of the special relationship among the parties,”
and because “. . . Defendants’ conduct caused and/or contributed to place [Jason] in
peril,” and that defendants breached that duty by waiting several hours before reporting

16
the incident to police.9 According to the complaint, Jason’s “presence at the edge of the
cliff was closely connected with Defendants’ conduct in inviting him, and driving him to
this remote location.”
Sarah’s summary judgment motion asserted Jason could not establish his
negligence cause of action because “the only admissible evidence establishes that Sarah
. . . did nothing to cause or contribute to [Jason]’s fall,” and she had no duty to call 911 or
otherwise summon aid after Jason fell. She cited the following facts in support of her
assertions: (1) Jason’s admission that he had no memory of the events that took place at
the Bluffs on October 5, 2008; (2) her assertion, as set forth in her declaration, that she
did nothing to cause or contribute to Jason’s fall; (3) there is no familial relationship
between Sarah and Jason; (4) Jason first met Sarah on October 4, 2008; (5) Jason went to
the Bluffs of his own free will; (6) at no time did Sarah agree to be responsible for
plaintiff; (7) Jason fell as a result of his own conduct; (8) after Jason fell, Sarah and Zach
initiated a search for him but were unable to reach him; and (9) at no time did Sarah
conceal any of Jason’s property with the intent of hiding evidence or delaying his
discovery. Sarah’s evidence was sufficient to shift the burden to Jason to create a triable
issue of material fact.
In his opposition to the summary judgment motion, Jason pointed to the following
facts: (1) defendants agreed to drive him home; (2) rather than drive him home,
defendants took him to a remote cliff side; (3) defendants knew he was intoxicated when
they brought him to the cliff side; (4) when asked if he wanted to go to the cliff, Jason

9 In addition, the complaint alleges “that as a result of Defendants’ negligence, including
physical contact with . . . [Jason], [Jason] was knocked or pushed backwards such that he
began to fall over the edge of the cliff.” For the reasons set forth above in the discussion
of the assault and battery cause of action, Jason failed to establish a triable issue of
material fact as to whether he was pushed or knocked, causing him to fall off the cliff.
(Ante, at pp. 14-15.)

17
said, “no”; (5) Sarah and Zach had previously made plans to go to the Bluffs, and Zach
had brought a large blanket to sit on; (6) Sarah had both the means and the opportunity to
call 911 after Jason fell but chose not to because she was afraid she would be blamed for
his fall; and (6) she left the scene and waited hours before contacting the police.
From these facts and the supporting evidence, a jury reasonably could infer that
Sarah breached her duty of ordinary care owed to Jason, and as a direct and proximate
result of her breach, Jason fell from the cliff. While “[t]here may be no duty to take care
of a man who is ill or intoxicated, and unable to look out for himself; . . . it is another
thing entirely to eject him into the danger of a street or railroad yard; and if he is injured
there will be liability.” (Prosser & Keeton, Torts, supra, § 56, p. 378, fn. omitted.)
Although Sarah did not drive the car that transported Jason to the cliff, the evidence
supports a finding that she played an active role in placing Jason in a position of peril.
She and Zach were close friends and were together at the party. She was present when
De la Cruz told Jason that she and Zach had agreed to drive him home. She knew Jason
was highly intoxicated. She and Zach had previously planned to go to the Bluffs to
watch the sunrise, and Zach had brought a large blanket for that purpose. She and Zach
walked with Jason from the roadside to the Bluffs and sat on a blanket with him drinking
the rum he had stolen. There is no indication Sarah objected to any of the actions that led
to Jason being on the cliff side while in a highly intoxicated state; to the contrary, the
evidence suggests she and Zach had planned to go to the Bluffs to watch the sunrise.
Sarah was not a passive participant; the only thing she did not do was drive the car.
Should a jury conclude that Sarah was responsible for Jason’s fall, she had a legal duty to
take affirmative action to assist or protect him after he fell. (See Williams, supra, 34
Cal.3d at p. 23.) A jury reasonably could conclude that Sarah breached that duty by
waiting several hours before reporting his fall to police.
Jason’s facts, if proved, also support a finding of a special relationship between
Sarah and Jason. A special relationship arises from the facts of the case, from the

18
circumstances which create a peril. A jury reasonably could find that Jason, who was
highly intoxicated, was in a particularly vulnerable state and dependent upon defendants
for getting him home safely. (See Rotolo, supra, 151 Cal.App.4th at p. 325.) Should a
jury conclude there was a special relationship, Sarah had a legal duty to take affirmative
action to assist or protect Jason after he fell. (See Williams, supra, 34 Cal.3d at p. 23.)
While the complaint alleges “Defendants were directly involved in creating the
conditions that placed [Jason] in peril,” it does not allege the specific conditions that
placed Jason in peril, and defendants did not demur on the ground of lack of specificity.
Under these circumstances, where the complaint “has made out some intelligible but
defectively pled claim, in the absence of an appropriate challenge we will examine the
[plaintiff’s] showing, treating it as supplementing the pleading where it is plausibly
connected to the claim, to determine whether a legally cognizable [claim] has been made
out.” (FPI, supra, 231 Cal.App.3d at pp. 383-384.) As detailed above, Jason’s showing
made out a legally cognizable claim that Sarah breached her duty to use ordinary care by
participating in bringing Jason, whom she knew was highly intoxicated, to the edge of a
cliff. (Ante, at p. 18.)
For all the foregoing reasons, the trial court erred in summarily adjudicating the
negligence cause of action.
C. Willful Misconduct
Jason contends “[m]ultiple material issues of fact relating to [Sarah]’s role in
placing [him] in peril at the bottom of the cliff precluded summary adjudication” of his
willful misconduct cause of action. We agree.
Willful misconduct is an aggravated form of negligence. (New v. Consolidated
Rock Products Co. (1985) 171 Cal.App.3d 681, 689.) “ ‘Three essential elements must
be present to raise a negligent act to the level of wilful misconduct: (1) actual or
constructive knowledge of the peril to be apprehended, (2) actual or constructive

19
knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3)
conscious failure to act to avoid the peril. [Citations.]’ [Citation.]” (Id. at pp. 689-690.)
In addition to incorporating the allegations set forth in his negligence cause of
action into his willful misconduct cause of action, the complaint alleges that Sarah
“consciously decided to forbear from calling 911” even though she “understood that
immediate action to aid, assist or summon help was necessary” and “knew that further,
aggravated, serious injuries were a probable result in any delay . . . .”
Sarah’s summary judgment motion asserted there was no triable issue of material
fact with respect to Jason’s willful misconduct cause of action for essentially the same
reason that there was no triable issue of material fact as to his negligence cause of action
-- Sarah did not owe Jason a duty of care “as she did nothing to place him in peril and she
had no ‘special relationship’ with him.” Assuming for argument’s sake that Sarah’s
evidence was sufficient to shift the burden to Jason to create a triable issue of material
fact, Jason satisfied his burden. As detailed above, Jason created a triable issue of
material fact as to whether Sarah breached a duty owed to Jason by bringing him to the
cliff side when she knew he was intoxicated and waiting several hours to call 911 or
otherwise summon aid after the fall. (Ante, at pp. 18-19.) Accordingly, the trial court
also erred in summarily adjudicating the willful misconduct cause of action.
D. Intentional Infliction of Emotional Distress
Jason does not specifically address his intentional infliction of emotional distress
cause of action in his briefs on appeal, arguing only that “[m]ultiple material issues of
fact relating to [Sarah]’s role in placing [him] in peril at the bottom of the cliff precluded
summary adjudication on all of the other causes of action.” (Italics added.) As we shall
explain, Jason’s admission that he has no memory of being at the Bluffs, much less his
fall, precludes him from prevailing on that cause of action.
“The elements of the tort of intentional infliction of emotional distress are:
‘ “(1) extreme and outrageous conduct by the defendant with the intention of causing, or

20
reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s
suffering severe or extreme emotional distress; and (3) actual and proximate causation of
the emotional distress by the defendant’s outrageous conduct. . . .” Conduct to be
outrageous must be so extreme as to exceed all bounds of that usually tolerated in a
civilized community.’ [Citation.] The defendant must have engaged in ‘conduct
intended to inflict injury or engaged in with the realization that injury will result.’
[Citation.]” (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903 (Christensen); see
also Hughes v. Pair (2009) 46 Cal.4th 1035, 1050 (Hughes).)
In his complaint, Jason alleges that “[b]y the conduct alleged above [(in
connection with his causes of action for assault and battery, negligence, and willful
misconduct)], Defendants . . . acted outrageously, with the intention to cause, or with
reckless disregard of the probability of causing [him] severe emotional distress,” and that
such “conduct actually and proximately caused [him] severe emotional distress.”
Sarah’s summary judgment motion asserted inter alia that Jason could not
establish he suffered any emotional distress as a result of her conduct when, by his own
admission, he has no memory of such conduct.
As previously discussed, Jason failed to establish a triable issue of material fact as
to whether Sarah pushed or knocked him backwards, such that he began to fall over the
edge of the cliff. (Ante, at p. 13.) He did, however, establish a triable issue of material
fact as to whether Sarah created a peril by bringing him to the cliff side knowing he was
intoxicated, and whether she breached a duty owed to protect or assist him by waiting a
number of hours before reporting the incident to police. (Ante, at pp. 16-17.) Thus, the
“conduct” we are concerned with here is bringing Jason, highly intoxicated, to the cliff
side and delaying in reporting his fall. Assuming for argument’s sake that such conduct
was outrageous, Jason has no memory of it. He does not recall being at the Bluffs, much
less his fall or waiting for help to arrive. Accordingly, Sarah’s conduct could not be the
actual and proximate cause of any mental distress he has suffered. In other words, a jury

21
could not reasonably conclude that Jason suffered mental distress as a result of Sarah’s
conduct when he has no memory of that conduct. Accordingly, summary adjudication
was properly entered as to the intentional infliction of emotional distress cause of action.
This is not to say that Jason is precluded from recovering for any emotional
distress he may have suffered. To the contrary, should he prevail on his negligence or
willful misconduct causes of action, damages for emotional distress are recoverable.
(Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 981 [“[I]t is settled in
California that in ordinary negligence actions for physical injury, recovery for emotional
distress caused by that injury is available as an item of parasitic damages.”].)
II
The Trial Court Erred in Entering Judgment in Favor of Zach
Jason next contends the trial court erred in entering judgment in Zach’s favor
because the “complaint legally states a cause of action against him.” We agree.
Section 585, subdivision (b) states that after a defendant fails to answer the
complaint and does not file a demurrer, enumerated motions, or a petition for writ of
mandate, the clerk of the court, upon plaintiff’s written application, shall enter the default
of defendant. “The plaintiff thereafter may apply to the court for the relief demanded in
the complaint. The court shall hear the evidence offered by the plaintiff, and shall render
judgment in the plaintiff’s favor for that relief, not exceeding the amount stated in the
complaint, in the statement required by Section 425.11, or in the statement provided for
by Section 425.115, as appears by the evidence to be just.” (§ 585, subd. (b).)
A defendant’s failure to answer the complaint has the same effect as admitting the
well-pleaded allegations of the complaint, and as to these admissions no further proof of
liability is required. (§ 431.20, subd. (a); Kim, supra, 201 Cal.App.4th at pp. 281-282.)
Thus, in a default situation such as this, if the complaint properly states a cause of action,
the only additional proof required for the judgment is that needed to establish the amount

22
of damages. (See Beeman v. Burling, supra, 216 Cal.App.3d at p. 1597; see also Ostling
v. Loring, supra, 27 Cal.App.4th at p. 1745.)
“The ‘well-pleaded allegations’ of a complaint refer to ‘ “ ‘all material facts
properly pleaded, but not contentions, deductions or conclusions of fact or law.’ ” ’
[Citations.]” (Kim, supra, 201 Cal.App.4th at p. 281.) A well-pleaded complaint “set[s]
forth the ultimate facts constituting the cause of action, not the evidence by which
plaintiff proposes to prove those facts.” (Committee on Children’s Television, Inc. v.
General Foods Corp. (1983) 35 Cal.3d 197, 211-212, fn. omitted; see also Doe v. City of
Los Angeles (2007) 42 Cal.4th 531, 550 [“[T]he complaint ordinarily is sufficient if it
alleges ultimate rather than evidentiary facts.”].) “The complaint delimits the legal
theories a plaintiff may pursue and the nature of the evidence which is admissible.
[Citation.] ‘The court cannot allow a plaintiff to prove different claims or different
damages at a default hearing than those pled in the complaint.’ [Citation.]” (Electronic
Funds Solutions, LLC v. Murphy (2005) 134 Cal.App.4th 1161, 1182.) Thus, the plaintiff
cannot supplement the general allegations of the complaint by reference to the plaintiff’s
showing in the summary judgment proceeding. (Cf. FPI, supra, 231 Cal.App.3d at pp.
383-384.)
On January 12, 2011, the complaint and a statement of damages were personally
served on Zach. The statement of damages advised Zach that Jason was seeking general
damages in the amount of $20 million ($10 million for pain, suffering, and
inconvenience, and $10 million for emotional distress), special damages in an amount in
excess of $11 million ($5 million for medical expenses, $3 million for future medical
expenses, $3 million for loss of future earning capacity, and yet to be determined
amounts for lost earnings to date, rehabilitation, health care, household, and other special
damages), and punitive damages in the amount of $20 million. On April 27, 2011, Jason
requested entry of Zach’s default. That same day, the court clerk entered Zach’s default.
After summary judgment was entered in Sarah’s favor, the trial court issued an order

23
directing Jason and his counsel to appear and show cause why Jason’s action against
Zach should not be dismissed for the following reasons: (1) Jason’s counsel failed to
appear at a case management conference; (2) Jason failed to seek entry of default
judgment against Zach; and (3) a default judgment against Zach would be inconsistent
with the trial court’s ruling granting summary judgment in Sarah’s favor. Jason
responded by filing a “Judgment Packet Following Entry of Default,” a request for entry
of default judgment against Zach in the amount of $30 million ($10 million for special
damages and $20 million for general damages), and a brief and 35 exhibits in support of
his request. In addition to evidence of damages, Jason submitted numerous exhibits
aimed at establishing Zach’s liability, including most, if not all, of the evidence submitted
in opposition to Sarah’s summary judgment motion.
Following a prove-up hearing (see ante, fn. 4), the trial court issued a “Final
Decision Re Request For Entry of Default Judgment Against Defendant Zachary
Gudelunas.” As an initial matter, the court found “[t]he request to enter default judgment
does not exceed the amount set forth in the statement of damages. Therefore, the due
process requirement of notice to defendant of potential consequences of entry of default
was satisfied by service of the statement of damages.” The court, however, denied
Jason’s request to enter a default judgment against Zach and entered judgment in Zach’s
favor, finding Jason “failed to prove his case” against Zach. More particularly, the court
found “[t]he elements of the four cause of actions pled are not proved by the admitted
facts” or the evidence submitted by Jason in support of his request. Given its conclusion,
the trial court did not address the issue of damages.
To the extent the trial court’s order to show cause could be understood to request
Jason to tender evidentiary facts supporting the complaint’s allegations of liability, the
trial court erred. The only evidentiary facts that have a place at a prove-up hearing are
those concerning the damages alleged in the complaint. (See Kim, supra, 201
Cal.App.4th at pp. 281-282; Beeman v. Burling, supra, 216 Cal.App.3d at p. 1597;

24
Ostling v. Loring, supra, 27 Cal.App.4th at p. 1745.) The damages, of course, may only
be awarded for a well-pled cause of action, and to that end, the complaint must be
examined. (§431.20, subd. (a); Kim, supra, 201 Cal.App.4th at pp. 281-282.)
Accordingly we look to the allegations of the complaint.
A. Assault and Battery
The trial court concluded “[t]he admitted facts . . . fail to prove that [Zach]
touched [Jason], or that he did any act which would have made [Jason] reasonably
believe he was about to be touched, or that he threatened to touch [Jason].” In reaching
this conclusion, the trial court appears to have confused legal conclusions with material
facts. The complaint alleges that “as a result of Defendants’ contact with . . . [Jason]
and/or through Defendants’ creation of an imminent apprehension of such contact,
[Jason] was knocked or pushed backwards, such that he began to fall over the edge of the
cliff.” Those are material facts and are sufficient to allege the touching element of a
battery cause of action and the imminent apprehension element of an assault cause of
action. Jason was not required to allege how he would prove those ultimate facts. (See,
e.g., Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371,
1390.)
We review the trial court’s ruling and not its reasoning. (Coral Construction, Inc.
v. City and County of San Francisco (2010) 50 Cal.4th 315, 336.) While not discussed
by the trial court, the complaint fails to allege that Jason did not consent to defendants’
conduct, a necessary element of battery and assault. (See So v. Shin, supra, 212
Cal.App.4th at pp. 668-669.) Nor can such a lack of consent be inferred from the express
allegations. (See Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397,
1403.) Had Jason alleged defendants intentionally pushed or knocked him off the cliff,
one arguably could infer that he did not consent to such contact. But that is not what
Jason alleges.

25
 He alleges that “as a result of Defendants’ contact . . . and/or through . . . [the]
imminent apprehension of such contact, [he] was knocked or pushed backwards, such
that he began to fall over the edge of the cliff.” While the complaint fails to specify the
conduct to which it refers, the two immediately preceding paragraphs suggest the conduct
may have been consensual: “15. [Sarah] told the police that after this perceived insult,
[Jason] then challenged [Zach], who boxes as a hobby, to a fight. [Zach] denied that any
such conversation regarding boxing or fighting took place. [¶] 16. [Jason] is informed
and believes that [Sarah] later told the police that in the brief period of time before his
fall from the cliff, she had told [Jason] of her brother’s death under very similar
circumstances, [Jason] had laughed, [Sarah] became upset, boxing was discussed and
then [Jason] backed up and over the edge of the cliff.” These allegations suggest Jason
was knocked or pushed off the cliff during a scuffle that he not only consented to, but
instigated. Because the complaint fails to allege a necessary element of assault and
battery, Jason is not entitled to judgment against Zach as to that cause of action. (Rose v.
Lawton (1963) 215 Cal.App.2d 18, 20.)
B. Negligence
Negligence requires a plaintiff to prove duty, breach of duty, proximate cause, and
damages. (Lockheed Martin Corp. v. Superior Court, supra, 29 Cal.4th at p.1106.) In
California, “[e]veryone is responsible . . . for an injury occasioned to another by his or
her want of ordinary care or skill in the management of his or her property or person,
except so far as the latter has, willfully or by want of ordinary care, brought the injury
upon himself or herself.” (Civ. Code, § 1714, subd. (a).) In other words, “each person
has a duty to use ordinary care and ‘is liable for injuries caused by his failure to exercise
reasonable care in the circumstances . . . .’ ” (Parsons v. Crown Disposal Co., supra, 15
Cal.4th at p. 472, quoting Rowland v. Christian, supra, 69 Cal.2d at p. 112.) However, “a
person who has not created a peril is not liable in tort merely for failure to take

26
affirmative action to assist or protect another unless there is some relationship between
them which gives rise to a duty to act.” (Williams, supra, 34 Cal.3d at p. 23.)
The complaint alleges inter alia that defendants breached their duty to use ordinary
care by “knock[ing] or push[ing] [him] backwards, such that he began to fall over the
edge of the cliff,” and as a direct and proximate result, Jason suffered general and special
damages. These allegations are sufficient to state a cause of action against Zach for
ordinary negligence. Where, as here, the complaint properly states a cause of action,
further proof of liability is not required. (Kim, supra, 201 Cal.App.4th at pp. 281-282.)
The complaint further alleges that defendants owed Jason a duty to call 911 or
otherwise summon aid after he fell because “. . . Defendants’ conduct caused and/or
contributed to place [Jason] in peril,” defendants breached that duty by waiting several
hours before reporting the incident to police, and as a result, Jason’s already severe
injuries were aggravated. These allegations likewise are sufficient to state a claim for
negligence. Having placed Jason in a position of peril by “knock[ing] or push[ing] [him]
backwards, such that he began to fall over the edge of the cliff,” Zach owed him a duty to
call 911 or otherwise summon aid, which he breached by waiting several hours to report
the incident to police. Although this is a different theory of peril than what sufficed to
constitute negligence in the summary judgment proceeding, it is contained in the
allegations of the complaint.
C. Willful Misconduct
A negligent act rises to the level of willful misconduct when the following
additional elements are present: “ ‘(1) actual or constructive knowledge of the peril to be
apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to
a possible, result of the danger, and (3) conscious failure to act to avoid the peril.
[Citations.]’ [Citation.]” (New v. Consolidated Rock Products Co., supra, 171
Cal.App.3d at pp. 689-690) The complaint alleges Zach “consciously decided to forbear
from calling 911” even though he “understood that immediate action to aid, assist or

27
summon help was necessary” and “knew that further, aggravated, serious injuries were a
probable result in any delay . . . .” These allegations coupled with those set forth in his
negligence cause of action are sufficient to state a cause of action for willful misconduct.
(Ibid.)10
D. Intentional Infliction of Emotional Distress
Intentional infliction of emotional distress requires a plaintiff to prove:
“ ‘ “(1) extreme and outrageous conduct by the defendant with the intention of causing,
or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s
suffering severe or extreme emotional distress; and (3) actual and proximate causation of
the emotional distress by the defendant's outrageous conduct. . . .” Conduct to be
outrageous must be so extreme as to exceed all bounds of that usually tolerated in a
civilized community.’ [Citation.] The defendant must have engaged in ‘conduct
intended to inflict injury or engaged in with the realization that injury will result.’
[Citation.]” (Christensen, supra, 54 Cal.3d at p. 903; see also Hughes, supra, 46 Cal.4th
at p. 1050.)
The complaint alleges that “[b]y the conduct alleged above, Defendants, and each
of them, acted outrageously, with the intention to cause, or with reckless disregard of the
probability of causing [Jason] severe emotional distress,” “[t]his conduct actually and
proximately caused [Jason] severe emotional distress,” and as a result, he has suffered
damages. The conduct alleged above includes the following: causing Jason to fall over
the edge of the cliff; knowing Jason was in immediate need of assistance; the ability to

10 California has rejected the legal theory form of pleading. “It is not essential that a
complaint state a cause of action for the relief which plaintiff seeks, provided the facts
stated show some right of recovery . . . .” (Zellner v. Wassman (1920) 184 Cal. 80, 88,
disapproved on other grounds in Sterling v. Taylor (2007) 40 Cal.4th 757, 769-770; 4
Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 413, pp. 551-552.) Accordingly, the
allegations tendered under various legal theories may be combined to state a cause of
action.

28
summon aid with minimal effort and under no risk of danger; knowing that Jason would
not otherwise be discovered “at that time due to the early morning hour and remote
location of the incident”; making a conscious decision not to summon aid “for selfish
and/or unreasonable reasons”; and taking steps to delay Jason’s discovery by others, such
as removing Jason’s belongings from the cliff side. Those allegations sufficiently state a
cause of action for intentional infliction of emotional distress. (See Christensen, supra,
54 Cal.3d at p. 903.)
Because the complaint states causes of action for negligence, willful misconduct,
and intentional infliction of emotional distress, judgment was erroneously entered in
Zach’s favor. We reverse that judgment and remand the matter for a hearing in which the
trial court will hear Jason’s evidence of damages, and if it determines that he has
established his damages, it will enter a default judgment for Jason and against Zach.
III
The Trial Court Did Not Abuse its Discretion in Denying Sarah’s Request for
Attorney Fees
Claiming the trial court erred in finding that Jason had a good faith belief that he
could prevail on the theories asserted, Sarah cross-appeals from the trial court’s
postjudgment order denying her request for attorney fees as cost-of-proof sanctions.
(§ 2033.420.) We discern no abuse of discretion.
Section 2033.420, subdivision (a) states: “If a party fails to admit the genuineness
of any document or the truth of any matter when requested to do so under this chapter,
and if the party requesting that admission thereafter proves the genuineness of that
document or the truth of that matter, the party requesting the admission may move the
court for an order requiring the party to whom the request was directed to pay the
reasonable expenses incurred in making that proof, including reasonable attorney’s fees.”
(Italics added.) The trial court must make such order unless it finds (1) an objection to
the request was sustained or a response to it was waived under section 2033.290, (2) the

29
admission sought was of no substantial importance, (3) the party failing to make the
admission had reasonable ground to believe that that party would prevail on the matter, or
(4) there was other good reason for the failure to admit. (§ 2033.420, subd. (b).) “ ‘On
appeal, the trial court’s decision will not be reversed unless the appellant demonstrates
that the lower court abused its discretion.’ [Citation.] ‘[O]ne of the essential attributes of
abuse of discretion is that it must clearly appear to effect injustice. . . .’ ” (Wimberly v.
Derby Cycle Corp. (1997) 56 Cal.App.4th 618, 637, fn. 10.) “Under the deferential
abuse-of-discretion review, we have no authority to substitute our own decision for that
of the trial court. [Citation.] Our inquiry is limited to determining whether the trial
court’s decision exceeds the bounds of reason.” (American Federation of State, County
& Municipal Employees v. Metropolitan Water Dist. (2005) 126 Cal.App.4th 247, 269.)
Here, Sarah’s motion for attorney fees was based on Jason’s asserted unreasonable
refusal to admit the truth of six pretrial requests for admissions. Those requests asked
Jason to admit that (1) Sarah did not assault him as alleged in the complaint, (2) Sarah did
not batter him as alleged in the complaint, (3) Sarah did not owe him a duty of care as
alleged in the complaint, (4) Sarah was not negligent as alleged in the complaint, (5)
Sarah did not engage in willful misconduct as alleged in the complaint, and (6) Sarah did
not intentionally inflict emotional distress on him as alleged in the complaint. Jason
denied each of the requests. To prove Jason’s refusal to admit the truth of those requests
for admissions was unreasonable, Sarah relied on the summary judgment entered in her
favor. In denying Sarah’s request for attorney fees, the trial court explained that although
it disagreed with Jason’s arguments presented in opposition to the summary judgment, it
found he had a good faith belief that he could prevail on his causes of action.
As detailed above, Jason established triable issues of material fact as to his
negligence and willful misconduct causes of action. Three of the six requests for
admission at issue here concern those claims. Thus, it cannot be said that Sarah proved
the truth of those matters. The remaining requests concerned Jason’s assault and battery

30
and intentional infliction of emotional distress causes of action. Although we affirm the
summary adjudication of those causes of action, we cannot say that the trial court
exceeded the bounds of reason in concluding that Jason had a reasonable basis to believe
that he would prevail on them. Accordingly, the trial court’s postjudgment order denying
Sarah’s request for attorney fees is affirmed.
DISPOSITION
The summary judgment entered in Sarah’s favor is reversed. Summary
adjudication of the negligence and willful misconduct causes of action is reversed.
Summary adjudication of the assault and battery and intentional infliction of emotional
distress causes of action is affirmed. The judgment entered in Zach’s favor is reversed,
and the matter is remanded with directions to the trial court to conduct a hearing in which
it will hear Jason’s evidence of damages, and if it determines that he has established his
damages, it will then enter a default judgment for Jason and against Zach. The
postjudgment order denying Sarah’s request for attorney fees is affirmed. The parties
shall bear their own costs on appeal, and Jason shall recover his costs on cross-appeal.
(Cal. Rules of Court, rule 8.278(a).)

BLEASE , Acting P. J.

We concur:

BUTZ , J.

MAURO , J.

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