Judge: Bradley S. Phillips, Case: 22STCV16813, Date: 2024-10-09 Tentative Ruling

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Case Number: 22STCV16813    Hearing Date: October 9, 2024    Dept: 26

TENTATIVE RULING:

Defendants’ Motion for Summary Judgment or, in the Alternative, Summary Adjudication of Issues is denied.

The Court finds that there is a material issue of fact and law whether the Waiver and Release signed by Plaintiff concerning his massage therapy is enforceable.  Defendant has not established that, as a matter of law, the circumstances present here bring the transaction “within . . . the category of those affected with a public interest” such that the Waiver and Release is unenforceable.  See Tunkl v. The Regents of the University of California (1963) 60 Cal.2d 92, 98-99.  The parties have not cited and the Court has not found any published decision addressing whether an exculpatory provision in a contract for massage therapy is enforceable.  The case law indicates that an exculpatory provision in a contract with a fitness center or SCUBA instructor would likely be enforceable, while one with a hospital or emergency room would not.  The Court believes further factual development is required with respect to the present context of a massage therapist. 

The Court does not agree with Defendant that Plaintiff “does not contest” the applicability of the Waiver and Release to the general negligence cause of action.  Plaintiff’s distinction between “medical malpractice and professional negligence” and “negligence” related to whether, by its terms, the Waiver and Release, even if enforceable, extended to the former.  There is no reason why the Waiver and Release would, as a matter of public policy, be legally enforceable with respect to general negligence but not with respect to medical malpractice or professional negligence. 

The Court further finds that there is a material issue of fact whether Plaintiff suffered injuries caused by Defendants.  The fact that Plaintiff’s X-Rays one week after the alleged incident were negative in certain respects does not, in light of the medical evidence submitted by Plaintiff, establish as a matter of law that Plaintiff suffered no injury as a result of Defendants’ conduct.