Judge: Edward B. Moreton, Jr., Case: 24SMCV01071, Date: 2024-07-16 Tentative Ruling
Case Number: 24SMCV01071 Hearing Date: July 16, 2024 Dept: 205
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DAVID GOMEZ, Plaintiff, v. NEXT HEALTH INC., et al., Defendants. |
Case No.:
24SMCV01071 Hearing Date: July 16, 2024 [TENTATIVE]
order RE: DefendanT NEXT HEALTH INC.’S |
MOVING PARTY: Defendant Next Health Inc.
RESPONDING PARTY: Plaintiff
David Gomez
BACKGROUND
This
is a negligence and strict products liability case regarding the sale and
administration of an “Infrared LED Light Bed Therapy” which resulted in a
third-degree burn to Plaintiff David Gomez according to the First Amended
Complaint. (FAC ¶ 1.) Plaintiff’s sister, Laura Gonzalez, purchased
a session at Next Health as a gift for the Plaintiff prior to December 10, 2023.
(FAC ¶ 10.) On December 10, 2023, Plaintiff, along with
their sister and brother, visited Defendant Next Health’s facility to undergo “Infrared
LED Light Bed Therapy” and other therapies. (FAC ¶ 11.) The “Infrared LED Light Bed Therapy” required
Plaintiff to lie inside a fully encapsulating machine (the “Subject Light Bed”)
for approximately 45 minutes. This
machine is lined with thousands of infrared lights and/or LED bulbs. Next Health advertises this therapy as
optimizing mitochondrial function with 13,000 LED bulbs designed for near and
far infrared exposure to support cellular repair and recovery. (FAC ¶ 12.)
Plaintiff alleges that the “Infrared LED Light Bed Therapy” and the Subject
Light Bed are the same, with the therapy being entirely derived from the bed
itself, which is considered a product. (FAC
¶ 13.)
Defendants
did not examine Plaintiff’s body or assess Plaintiff’s suitability for the
Infrared LED Light Bed Therapy prior to the session. (FAC ¶ 14.) Before the therapy, Plaintiff informed
Defendants about having abdominal scars from a previous surgery and inquired if
the therapy would affect those scars. Defendants
assured the Plaintiff that the scars would remain unaffected. (FAC ¶ 15.) While undergoing the therapy, Plaintiff
suffered severe burns across his abdomen from the Subject Light Bed. Medical evaluations later confirmed these
burns as third-degree burns. (FAC ¶ 16.)
The therapy also caused Plaintiff’s
previously healed surgical scars to fully reopen. (FAC ¶ 17.)
Plaintiff’s injuries are permanent, including an open wound and
third-degree burns on his abdomen. (FAC
¶ 18.)
This hearing is on Defendant’s demurrer to
the FAC. Defendant argues that (1) Plaintiff’s
first cause of action for Negligence fails to state facts sufficient to
constitute a cause of action against Defendant; and (2) Plaintiff’s second
cause of action for Strict Products Liability fails to state facts sufficient
to constitute a cause of action against Defendant and is also impermissibly
uncertain as against Defendant.
LEGAL STANDARD
“[A] demurrer tests the legal sufficiency of
the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235
Cal.App.4th 385, 388.) A demurrer can be
used only to challenge defects that appear on the face of the pleading under
attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co.
(2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not
consider declarations, matters not subject to judicial notice, or documents not
accepted for the truth of their contents).)
For purposes of ruling on a demurrer, all facts pleaded in a complaint
are assumed to be true, but the reviewing court does not assume the truth of
conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962,
967.)
Leave to amend must be allowed where there is
a reasonable possibility of successful amendment. (See Goodman v. Kennedy
(1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to
amend if there is any reasonable possibility that the defect can be cured by
amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency
(2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without
leave to amend if the complaint, liberally construed, can state a cause of
action under any theory or if there is a reasonable possibility the defect can
be cured by amendment.”).) The burden is
on the complainant to show the Court that a pleading can be amended
successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
DISCUSSION
Request for Judicial Notice
Defendant’s
request for judicial notice as to Exhibits A and B regarding Plaintiff’s
Program and Membership Agreement as well as receipt for payment is DENIED for
the reasons discussed below.
Strict Products Liability
“The elements of a strict products liability
cause of action are defect in the manufacture or design of the product or
failure to warn, causation, and injury.” (Cnty. of Santa Clara v. Atl. Richfield Co.
(2006) 137 Cal.App.4th 292, 318.)
“Strict liability has been invoked for three
types of defects—manufacturing defects, design defects, and ‘warning defects,’
i.e., inadequate warnings or failures to warn.” (Anderson v. Owens-Corning Fiberglas Corp.
(1991) 53 Cal.3d 987, 995.) “For the
cause of action for strict products liability there is no necessity to show
duty or breach of duty but only that the product was defective and that the
injury to the plaintiff was caused by the defective condition.” (Gonzalez v.
Autoliv ASP, Inc. (2007) 154 Cal.App.4th 780, 793.) However, to state a product liability claim
based on negligence, a plaintiff must allege the defendant owed a legal duty to
plaintiff, that the defendant breached the duty, and that the breach was the
proximate or legal cause of injury. (Ibid.) Regardless of which product liability theory
an action is predicated upon, “where a plaintiff alleges a product is
defective, proof that the product has malfunctioned is essential to establish
liability for an injury¿caused by the defect.”
(Khan v. Shiley Inc.¿(1990) 217 Cal.App.3d 848, 855 [emphasis
omitted].)
“[T]he policy reasons underlying the strict
products liability concept should be considered in determining whether
something is a product within the meaning of its use. . . rather than . . .to
focus on the dictionary definition of the word.” (Fluor Corp. v. Jeppesen & Co.
(1985) 170 Cal.App.3d 468, 475.) “The
purpose of [strict] liability is to insure that the costs of the injuries
resulting for defective products are borne by the manufacturer that put such
products on the market rather than by the injured persons who are powerless to
protect themselves. [citation] The strict liability doctrine achieves its goals
by relieving an injured plaintiff of many of the onerous evidentiary burdens
inherent in a negligence cause of action.” (Anderson, supra, 53 Cal.3d at
p. 994 [internal quotations and brackets omitted].)
“Under the strict products liability
doctrine, a manufacturer is strictly liable in tort when an article he places
on the market, knowing that it is to be used without inspection for defects,
proves to have a defect that causes injury to a human being.” (Arriaga v. CitiCapital Commercial Corp
(2008) 167 Cal.App.4th 1527, 1534 [internal quotations omitted].)
Defendant argues that Plaintiff’s cause of
action for Strict Products Liability fails for two main reasons. First, Plaintiff’s claim does not meet the
legal requirements because Next Health, as a service provider using a product,
is not part of the “stream of commerce.” (FAC ¶ 5.) Second, Plaintiff has not established that the
primary purpose of their transaction with Next Health was to obtain a product
rather than a service. Here, Plaintiff
alleges that “Defendants sold and administered purported health and wellness therapies,
including an “Infrared LED Light Bed Therapy” and “The ‘Infrared LED Light Bed
Therapy’ and the ‘Subject Light Bed’ are one and the same. That is, the therapy
is the bed, and the bed is the therapy. The entirety of the therapy is derived
from the bed itself, which is a product.”
(FAC ¶ 13.) However, despite
alleging that the Subject Light Bed and the Infrared LED Light Bed Therapy are
“one and the same,” the FAC does not allege that Defendant actually sold the
bed to Plaintiff (or is in the business of selling such beds). Rather, it appears that Defendant is a
service provider that provides the service of therapies using the Subject Light
Bed. Further, Defendant shows that Plaintiff’s
transaction with Defendant was primarily for services, not products. A plaintiff cannot prevail on a strict product
liability claim if the dominant purpose of a transaction is to provide services
rather than a product. (Ontiveros v.
24 Hour Fitness USA, Inc. (2008) 169 Cal.App.4th 424, 434-435.) There are no facts in the FAC that reveal
that the primary objective in Plaintiff’s transaction with Defendant was to
obtain or purchase the Subject Light Bed. And there is not sufficient showing that the
complaint can be successfully amended.
Thus, the Court SUSTAINS the demurrer as to
the strict products liability claim WITHOUT LEAVE TO AMEND.
Negligence
“The elements for negligence cause of action
are duty, breach, causation and damages.” (County of Santa Clara v. Atlantic
Richfield Co. (2006) 137 Cal.App.4th 292, 318.)¿ “Ordinarily, negligence may be alleged in
general terms, without specific facts showing how the injury occurred, but
there are limits to the generality with which a plaintiff is permitted to state
his cause of action, and the plaintiff must indicate the acts or omissions
which are said to have been negligently performed. He may not recover upon the bare statement
that the defendant’s negligence has caused him injury.” (Berkley v. Dowds (2007) 152
Cal.App.4th 518, 527 [Internal quotations and ellipses omitted].) “However, there is no requirement that
plaintiff identify and allege the precise moment of the injury or the exact
nature of the wrongful act.” (Hahn v. Mirda (2007) 147 Cal.App.4th 740,
747 [internal brackets omitted].)
Actionable negligence is traditionally
regarded as involving the following: (1) a legal duty to use due care; (2) a
breach of that duty; and (3) the breach as the proximate or legal cause of the
resulting injury. (6 Witkin, Summary
11th Torts § 961 (2022).)
Defendant argues that the Membership
Agreement should be judicially noticed by the Court because it is essential for
evaluating the Plaintiff's allegations. Pursuant to the waiver clause in the
Membership Agreement, Defendant states that all of Plaintiff’s claims are barred. Defendant highlights that the waiver language
in the Membership Agreement explicitly releases Next Health and its employees
from any liability arising from any treatment performed or not performed. Claims that Plaintiff did not read or
understand the agreement before signing do not negate the legal effect of the
waiver, as supported by Stewart v. Preston Pipeline Inc. (2005) 134 Cal.App.4th
1565.)
In opposition, Plaintiff argues that Defendant’s
reliance on the Membership Agreement is misplaced because it is not judicially
noticeable because while the Court may take judicial notice of certain facts
under Evidence Code § 452(h), it cannot take judicial notice of the existence
of a contract between private parties. (See
Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137.) Further, even if the Court were to take
judicial notice of the Membership Agreement, Plaintiff states it cannot accept
the truth of its contents or a particular interpretation of its meaning during
a demurrer as the Court’s role is limited to testing the legal sufficiency of
the complaint.
The Court agrees with Plaintiff that the
Court may not take judicial notice of a parties’ contract as it would require
“engag[ing] in the kind of fact-finding appropriate for a trial on the merits,
not for a hearing on demurrer.” (Gould,
supra, 31 Cal.App.4th at 1146.) “While
most matters subject to judicial notice can be established by reference to a
statute, court file, treatise or other document, a court cannot simply look at
a piece of paper and conclude as a matter of law it is a contract between the
parties.” (Id.) Upon review of the FAC, it appears that there
are sufficient facts to support a negligence claim: (1) Defendants owed a duty
of care to Plaintiff given that they “were fully aware that they were required
to perform a screening of plaintiff prior to administering the therapy and
placing Plaintiff in the light bed” (FAC ¶ 22); (2) Defendants failed to use
that duty of care by failing “to ensure, inspect, and/or otherwise maintain the
Subject Light Bed that Plaintiff used,” “ensuring the safety and proper orientation
of the red light bed used for the treatment,” “misrepresentati[ng] to Plaintiff
GOMEZ regarding the safe monitoring protocols of the light bed,” “fail[ing] to
perform a mandatory physical examination of Plaintiff prior to the treatment,
despite being expressly informed by Plaintiff of the pre-existing scars,”
falsely assuring “Plaintiff GOMEZ regarding the safety of the treatment for
individuals with pre existing scars,” and failing “to properly administer
and/or supervise the treatment provided to Plaintiff.” (FAC ¶ 21.); (3)
Plaintiff alleged that Defendant’s breach of duty was the legal cause of his
damages. (FAC¶ 23-24.).
Thus, the Court OVERRULES the demurrer as to
the negligence claim.
Motion to Strike
Defendant moves to strike the following from
the FAC:
1.
Pg. 6, lines 25-26: “Defendant was engaged in
the business of manufacturing, distributing, selling[…‘Infrared LED Light Bed
Therapy.’]”
2. Pg. 6, line 3-4: “Defendants were and are the owners of
and/or successors in interest to the companies.”
3. Pg. 6, lines 18-19: “was carried out with a willful and
conscious disregard of the risk of safety to Plaintiff GOMEZ”
4. Paragraph 48, pg. 9, lines 6-7: “manufacturing,
distributing, selling,”
5. Paragraph 73, pg. 12, lines 14-19: “Defendants were
engaged in the business of manufacturing, distributing, selling, providing,
administering, and promoting ‘Infrared LED Light Bed Therapy.’”
6.
Prayer, at para. 4, pg. 13, line 9:
“prejudgment interest.”
Given the Court’s sustaining of the demurrer
as to the strict liability claim, the Court DENIES the motion to strike as
MOOT.
CONCLUSION
Based on the foregoing, the Court SUSTAINS
IN PART and OVERRULES IN PART Defendant’s demurrer. The demurrer is sustained with leave to amend
as to the second cause of action for strict products liability and overruled as
to the first cause of action for negligence.
The Court also DENIES Defendant’s motion to strike.
IT IS SO ORDERED.
DATED: July 16, 2024 ___________________________
Edward
B. Moreton, Jr.
Judge
of the Superior Court