Case Number: BC627222 Hearing Date: June 05, 2019 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

niurka hernandez,

Plaintiff,

v.

beverly hot springs, inc.,

Defendant.

Case No.: BC627222

Hearing Date: June 5, 2019

[TENTATIVE] order RE:

Defendant’s MOTION FOR SUMMARY JUDGMENT

BACKGROUND

Plaintiff Niurka Hernandez (“Plaintiff”) filed this action against Defendant Beverly Hot Springs, Inc. (“Defendant”) alleging that she contracted Methicillin Resistant Staphylococcus Aureus (“MRSA”) at Defendant’s spa facility following a body scrub, herbal massage, and mineral bath. Defendant moves for summary judgment on Plaintiff’s complaint for negligence. The motion is denied.

LEGAL STANDARD

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.)

OBJECTIONS

The court sustains Plaintiff’s objection to Defendant’s Appendix of Exhibits in Support of Defendant’s Motion for Summary Judgment, Exhibit H, on the grounds of hearsay. The Court need not rule on any additional objections, as they are not material to the Court’s decision on this motion.

DISCUSSION

Defendant contends the primary assumption of risk doctrine bars Plaintiff’s claim for negligence. “Primary assumption of risk arises where a plaintiff voluntarily participates in an activity or sport involving certain inherent risks; primary assumption of risk . . . bar[s] recovery because no duty of care is owed as to such risks.” (West v. Sundown Little League of Stockton (2002) 96 Cal.App.4th 351, 357, internal quotations and citations omitted.) Nonetheless, a defendant has “a duty to use due care not to increase the risks to a participant over and above those inherent in the [activity].” (Knight v. Jewett (1992) 3 Cal.4th 296, 315-316.) An inherent risk is one that cannot be eliminated without altering the nature of the activity. (Id. at 317.)

Defendant has not advanced any competent evidence that MRSA infection is an inherent risk of spa services. Defendant proffers publications from the California Department of Health and the Los Angeles County Department of Health. (See Appendix of Exhibits in Support of Defendant’s Motion for Summary Judgment, Exhibit H.) These publications are offered for the truth of the matters asserted, meaning they are inadmissible hearsay that the Court cannot consider. (Evid. Code, § 1200.) Defendant also proffers its own guidelines to prevent skin infections. (See Appendix of Exhibits in Support of Defendant’s Motion for Summary Judgment, Exhibit I.) Specifically, Defendant has a policy of cleaning the massage table with bleach or using a new sheet atop each massage table, using a new scrub on each client, and using new towels with each client. (Ibid.) However, this evidence suggests that MRSA infection is not an inherent risk of spa services, but rather a risk that the providers of spa services can eliminate, or, at minimum, reduce. Therefore, there is a triable issue whether MRSA is, in fact, an inherent risk of spa services.

Defendant also argues that Plaintiff signed a waiver of liability. Express assumption of risk applies when a plaintiff has signed a writing in which the plaintiff waives the risks from the defendant’s acts or omissions, thus relieving the defendant of the duty of care towards the plaintiff. (Von Beltz v. Stuntman, Inc. (1989) 207 Cal.App.3d 1467.) For such a writing to be enforceable, the writing “must be clear, unambiguous and explicit in expressing the intent of the parties . . . ,” the defendant acts or omissions “must be reasonably related to the object or purpose for which the release is given . . . ,” and “the release cannot contravene public policy.” (Sweat v. Big Time Auto Racing, Inc. (2004) 117 Cal.App.4th 1301, 1304-1305.) “[A]n agreement . . . purporting to release liability for future gross negligence, generally is unenforceable as a matter of public policy.” (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 751.) Gross negligence is “the want of even scant care or an extreme departure from the ordinary standard of conduct.” (Van Meter v. Bent Const. Co. (1956) 46 Cal.2d 588, 594.)

The agreement states that Defendant “shall not be liable for any damages for personal injuries or property damage sustained by [Plaintiff] whatsoever in or about the premises of Beverly Hot Springs. This waiver is intended to be a complete release of any and all negligence of [Defendant.] (Appendix of Exhibits in Support of Defendant’s Motion for Summary Judgment, Exhibit F.) Thus, Defendant has advanced evidence that, in signing this agreement, Plaintiff waived any claims for ordinary negligence against Defendant, and Defendant is only liable if its conduct rose to the level of gross negligence. Defendant has not, however, proffered sufficient evidence that Defendant acted with care to avoid the risk of transmitting a skin infection to Plaintiff. In other words, there is a triable issue whether Defendant acted with gross negligence.

Defendant proffers its guidelines to prevent skin infections, and Defendant’s person most qualified testified that Defendant’s practice is to “clean the area out” after each body scrub, and to “change out the towels” after each customer. (Appendix of Exhibits in Support of Defendant’s Motion for Summary Judgment, Exhibit J, p. 40.) However, Defendant proffers no evidence that these policies and guidelines were actually followed on the date of the incident with respect to Plaintiff. Indeed, Defendant concedes that, while it is Defendant’s policy to have its employees use new loofas for each client, Defendant has no record that the employee who performed the scrub on Plaintiff used a new loofa to scrub Plaintiff. (Appendix of Exhibits in Support of Defendant’s Motion for Summary Judgment, Exhibit J, p. 68.) Defendant does not identify the employee who performed the scrub on Plaintiff. Nor does Defendant offer any testimony or declaration from any employee confirming that these guidelines were followed. Therefore, Defendant fails to satisfy its burden of proffering sufficient evidence to establish there is no triable issue on gross negligence.

Defendant argues that Plaintiff breached the terms of the agreement by failing to disclose that she had recently undergone acupuncture treatment. Specifically, the agreement between Plaintiff and Defendant states that Plaintiff agrees to not hold Defendant “responsible for any problem that may result from [Plaintiff’s] failure to disclose a medical condition.” (Appendix of Exhibits in Support of Defendant’s Motion for Summary Judgment, Exhibit F, p. 121.) However, there is a triable issue whether the acupuncture was covered by this agreement. Plaintiff states that she did not go to acupuncture treatments to treat a medical condition, but rather “because it just made [her] feel wonderful.” (Appendix of Exhibits in Support of Defendant’s Motion for Summary Judgment, Exhibit D, p. 113.) Further, Defendant has not advanced any competent evidence that Plaintiff’s MRSA infection could have been the result of the acupuncture treatment.

In sum, Defendant fails to satisfy its burden of establishing there is no triable issue whether MRSA is an inherent risk of the spa, and whether Defendant acted with gross negligence. Accordingly, the motion for summary judgment is denied.

CONCLUSION AND ORDER

Defendant’s motion for summary judgment is denied. Defendant shall provide notice and file proof of such with the Court.

DATED: June 5, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court