Carlsen v. Koivumaki

Citation227 Cal.App.4th 879,174 Cal.Rptr.3d 339
Decision Date07 July 2014
Docket NumberC070671
CourtCalifornia Court of Appeals
PartiesJason Michael CARLSEN, Plaintiff and Appellant, v. Sarah KOIVUMAKI, Defendant and Appellant; Zachary Gudelunas, Defendant and Respondent.

OPINION TEXT STARTS HERE

See 6 Witkin, Cal. Procedure (5th ed. 2008) Proceedings Without Trial, § 221 et seq.

APPEAL from a judgment of the Superior Court of Shasta County, Monica Marlow, Judge. Reversed in part and affirmed in part. (Super. Ct. No. 170436)

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

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

No appearance for Defendant and Respondent.

BLEASE, Acting P.J.

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. 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, 92 Cal.Rptr.3d 696 ( 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.”

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, 133 Cal.Rptr.3d 774 (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, 133 Cal.Rptr.3d 774.) The only additional proof required for a default judgment is that needed to establish damages. (See Beeman v. Burling (1990) 216 Cal.App.3d 1586, 1597, 265 Cal.Rptr. 719; Ostling v. Loring(1994) 27 Cal.App.4th 1731, 1745, 33 Cal.Rptr.2d 391.) 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, 133 Cal.Rptr.3d 774.)

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 BACKGROUND 5

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 proved.6 (See Teselle, supra, 173 Cal.App.4th at p. 172, 92 Cal.Rptr.3d 696.) 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, 107 Cal.Rptr.2d 841, 24 P.3d 493, 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 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 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...

To continue reading

Request your trial
115 cases
  • Mason v. Superior Court of Placer Cnty.
    • United States
    • California Court of Appeals
    • November 30, 2015
    ...to establish a cause of action.... Evidentiary facts are facts by which the material facts are proved." (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 884, fn.6, 174 Cal.Rptr.3d 339, citations omitted.) The act of causing to be burned a structure, forest land, or property is a material (......
  • Orange Cnty. Water Dist. v. Arnold Eng'g Co., D070763
    • United States
    • California Court of Appeals
    • December 19, 2018
    ...p. 352, 185 Cal.Rptr.3d 331 ; Bloxham v. Saldinger (2014) 228 Cal.App.4th 729, 753, 175 Cal.Rptr.3d 650 ; Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 903-904, 174 Cal.Rptr.3d 339 ; Laabs, supra , 163 Cal.App.4th at pp. 1275-1276, 78 Cal.Rptr.3d 372 ; Miller, supra , 161 Cal.App.4th at ......
  • Colonial Van & Storage, Inc. v. Superior Court
    • United States
    • California Court of Appeals
    • March 18, 2022
    ...to inflict injury or engaged in with the realization that injury will result." ’ " ( 76 Cal.App.5th 507 Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 896, 174 Cal.Rptr.3d 339 ; accord, Hughes v. Pair (2009) 46 Cal.4th 1035, 1050, 95 Cal.Rptr.3d 636, 209 P.3d 963.) Plaintiffs allege Colon......
  • Musgrove v. Silver
    • United States
    • California Court of Appeals
    • August 25, 2022
    ...she enjoyed swimming at night in the lagoon), and then failing to protect her from that peril. (Accord Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 894-895, 174 Cal.Rptr.3d 339 ( Carlsen ) [defendant is negligent for transporting a visibly intoxicated person to a hillside cliff and then......
  • Request a trial to view additional results
2 books & journal articles
  • Emotional distress
    • United States
    • James Publishing Practical Law Books California Causes of Action
    • March 31, 2022
    ...tolerated in a civilized community’” Chang v. Lederman , 172 Cal.App.4th 67, 86 (Cal. Ct. App. 2009); see also Carlsen v. Koivumaki , 227 Cal.App.4th 879 (Cal. Ct. App. 2014) (to be outrageous, conduct “must be so extreme as to exceed all bounds of that usually tolerated in a civilized comm......
  • Negligence
    • United States
    • James Publishing Practical Law Books California Causes of Action
    • March 31, 2022
    ...person has caused another to be put in a position of peril of a kind from which the injuries occurred.” Carlsen v. Koivumaki (2014) 227 Cal. App. 4th 879, 883. In relationships where a plaintiff is “particularly vulnerable and dependent upon the defendant” and the defendant has some level o......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT