Judge Michelle C. Kim, Case 21STCV20084 2023-05-18 Tentative Ruling

On May 27, 2021, Plaintiff Willie Juanita Moss (“Plaintiff”) filed a Complaint asserting causes of action for (1) general negligence and (2) premises liability against Defendant Lucky Nails & Foot Spa (“Defendant”), which arises from an acrylic fingernail striking and lacerating Plaintiff’s eye.

Defendant now moves for summary judgment, or, in the alternative, summary adjudication. Plaintiff opposes the Motion, and Defendant has filed a reply.

Defendant did not owe the duty of care that Plaintiff seeks to impose. Plaintiff also cannot establish that Defendant’s services caused Plaintiff’s injury. Further, Plaintiff cannot establish the elements for premises liability.

Defendant did owe Plaintiff a duty of care. In addition, Plaintiff can satisfy a prima facie case of causation. Further, Plaintiff can establish all of the elements for premises liability.

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure section 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “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 delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.)

As to each claim as framed by the complaint, the moving party must satisfy the initial burden of proof by presenting facts proving the essential elements of a cause of action, negating the essential elements of a cause of action, or establishing a defense. (Code Civ. Proc., § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc.¿(2006) 39 Cal.4th 384, 389.)

Once the moving party has met that burden, the burden shifts to the opposing party to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Defendant moves for summary judgment, or, in the alternative, summary adjudication, on the grounds that: (1) Defendant did not owe the duty of care that Plaintiff seeks to impose, (2) Plaintiff cannot establish that Defendant’s services caused Plaintiff’s injury, and (3) Plaintiff cannot establish the elements for premises liability.

The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.” (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998 (citing Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205; Civil Code § 1714(a)).)

Defendant contends it did not owe Plaintiff the scope of duty of care Plaintiff seeks to impose. In addition, Defendant contends its manicurist (the “Manicurist”) was trained and tested on safely providing manicure services, and the services she provided on the day of the incident were in accordance with the specific training, guidelines, and procedures required by the California Board of Barbering & Cosmetology (the “Board”). (Def. UMF Nos. 36-42.)

The Factors to consider in determining whether a defendant owes a duty of care are (1) the extent to which the transaction was intended to affect the plaintiff, (2) the foreseeability of harm to the plaintiff, (3) the degree of certainty that the plaintiff suffered injury, (4) the closeness of the connection between the defendant's conduct and the injury suffered, (5) the moral blame attached to the defendant's conduct, and (6) the policy of preventing future harm. (Biakanja v. Irving (1958) 49 Cal.2d 647, 650.)

“To assess the scope of a duty, a court must identify the specific action or actions the plaintiff claims the defendant had a duty to undertake. Only after the scope of the duty under consideration is defined may a court meaningfully undertake the balancing analysis of the risks and burdens present in a given case to determine whether the specific obligations should or should not be imposed.” (Staats v. Vintner's Golf Club, LLC (2018) 25 Cal.App.5th 826, 833–834 (quotations omitted.))

The Complaint provides that Defendant was negligent in the way it applied, cut, and trimmed Plaintiff’s acrylic nail. (Compl. p. 4, ¶ 2) In addition, Plaintiff alleges Defendant failed to implement and/or follow adequate safeguards to prevent Plaintiff’s injury. (Id. at ¶¶ 4, 6.) Further, Plaintiff alleges Defendant’s actions did not comport with the industry standards for the services for a professional manicurist. (Id. at ¶ 5.)

Defendant claims any duty was satisfied by the fact that the manicurist was trained and the services she provided were in accordance with requirements of the Board. Defendant concedes a limited duty but contests the expansion of the duty to include specific requirements, such as safety goggles and a specific way of holding the hand. The Defendant concedes that Plaintiff has a duty to recognize potential safety hazards associated with the services offered by way of the profession, and to conform to a standard of reasonable conduct when serving its patrons in light of this risk. (Def. MPA p. 14, lines 21-24.)

Here, the transaction of the Manicurist performing a manicure service of acrylic overlay for Plaintiff’s fingernails is intended to affect Plaintiff directly, as the services were provided to Plaintiff. (Def. UMF Nos. 2-3.) Defendant’s services include filing down Plaintiff’s nails, and the use of a cuticle nipper, which is used to trim cuticles and hangnails, and the use of an acrylic nail tip cutter. (Def. UMF Nos. 9-13.) As Defendant’s services involved filing down fingernails and trimming/cutting the same, with specific tools, it is foreseeable that unsanitary and negligent practices involving the nail service and/or tools could result in infection. (Pl. ADMF 68, 76, 84, 96.) It is certain that Plaintiff suffered an injury. (Def. UMF Nos. 17-23.) Further there is a closeness between Defendant’s conduct and Plaintiff’s injury, as Defendant’s services led to Plaintiff’s injury. (Id.) Therefore, Defendant owed a duty of care to Plaintiff. This duty encompasses conforming to the industry standard of care, including compliance with Board required sanitation practices to avoid the risk of infection and injury. This Court is not interpreting the duty of care owed by Plaintiff to necessarily include the requirement of offering safety goggles to customers or require a particular angle at which a hand should be held. The issue of whether safety goggles or a particular hand angle should have been used is an issue of fact for the jury to determine. Similarly, the issue of whether Defendant’s duty was properly discharged due to participation in training is an issue of fact for the jury to determine.

Thus, Defendant’s Motion for Summary Adjudication on the grounds Defendant did not owe Plaintiff a duty of care is DENIED.

A defendant’s negligence is the actual cause of the plaintiff’s injury if it is a substantial factor in bringing about the harm. (See Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1052-53.)

Defendant contends the undisputed facts show there is no casual effect between the services performed, the alleged, injury, and Plaintiff’s ultimate vision loss. Defendant points the Court to evidence that Plaintiff did not see and could not identify the nail fragment that struck her eye, the Manicurist did not see a nail fragment strike Plaintiff’s eye, and Plaintiff did not advise the Manicurist that a nail fragment struck her eye. (Def. UMF Nos. 19, 22, 26.) Defendant also points to the opinions of Dr. Simon Fung, who opines that because there was glaucomatous damage, Plaintiff was non-compliant with medications, and she waited to see the doctor, he could not confirm a causal relationship between the abrasion and the infection that followed. (Def. UMF Nos. 56, 65, 66, 69) Defendant satisfies its initial burden.

As to whether Plaintiff has shown the existence of a triable issue of material fact, Plaintiff provides evidence that a piece of nail shot into her eye, she told the Manicurist a piece of nail hit her eye, which caused symptoms of eye irritation, which did not resolve, and she suffered an abrasion in her eye. (Moss Decl., ¶¶ 9-10, 12, 14; Flowers Decl., ¶ 22.) Further Plaintiff provides evidence in the form of opinions from Dr. Flowers indicating that corneal abrasions with subsequent infection is documented in medical literature and in clinical practice. (Pl. UMF 31-33, 51) In addition, Plaintiff provides an opinion from Dr. Flowers that Plaintiff’s injury was not caused by a delay in presentation, that her clinical course was consistent with the natural course of a fungal keratitis, and the glaucoma detected is a frequent complication of the type of severe infectious keratitis that developed in Plaintiff. (Pl. UMF 34, 44, 45,46, 48.) Therefore, the Plaintiff has shown there is a triable issue of fact regarding causation.

Thus, Defendant’s Motion for Summary Adjudication on the grounds that the causation element has not been established is DENIED.

As set forth above, the elements for a premises liability cause of action are the same as a negligence cause of action; however, a premises liability cause of action is a specific negligence claim that is based on “a duty to exercise ordinary care in managing [a] property in order to avoid exposing others to an unreasonable risk of harm.” (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.)

Defendant contends Plaintiff cannot establish one or more of the elements for this cause of action. Defendant points the Court to Plaintiff’s allegation that Defendant was negligent in its use, management, and maintenance of the business equipment, and that, to date, there has been no evidence that Defendant was negligent in operating its business, equipment, or failed to comply with applicable laws and codes. Defendant also contends it did not have notice of any dangerous condition, or that there is evidence of a dangerous condition that caused Plaintiff’s injury. (Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1102 [“a [moving] defendant may [meet its burden on summary judgment by] simply show[ing] the plaintiff cannot establish an essential element of the cause of action by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.”) Defendant contends that there have never been any previous complaints regarding any injury for prior services performed on Plaintiff or any other patron for any injury including an eye injury. (Def. UMF No. 33.) . Defendant also contends that Plaintiff did not notice anything unusual about her services. (Def. UMF No. 20.)

Defendant has established it did not have notice of a dangerous condition, or that there is evidence that an alleged dangerous condition caused Plaintiff’s injury. Accordingly, the burden is shifted to Plaintiff to present evidence to establish a triable issue of material fact that there was a dangerous condition at Defendant’s nail salon, and that the dangerous condition caused to Plaintiff’s injury.

In opposition, Plaintiff presents evidence that the Defendant should have known these conditions and practices were potentially harmful, dangerous, and unsanitary, had they done their diligence and followed existing California regulations. (Decl. Schoon, ¶ 11) Plaintiff presents evidence that Defendant’s nail salon was unsanitary and failed to meet industry standards. (Pl. UMF Nos. 59, 62-73.) Specifically, there was dust, debris, nail fragments, and other unsanitary conditions found. (Pl. UMF No. 63.) In addition, Defendant’s cleaning products were mislabeled, and/or did not contain the required disinfectant solution. (Pl. UMF Nos. 63-64, 66-67.) Furthermore, Defendant did not have written rules or procedures for sanitation for its employees, or a record system to ensure cleanliness of the salon for its clients. (Pl. UMF No. 1-3.) Plaintiff contends the manner in which Defendant maintained and cleaned its tools was a substantial factor in causing Plaintiff’s injury (Decl. Schoon, ¶ 12, 14).

The Court finds Plaintiff has established a triable issue of material fact that the dangerous condition relating to Defendant’s unsanitary nail salon was a substantial factor in causing Plaintiff’s injury, and the Defendant should have known about the dangerous condition. The Complaint alleges that at the time of the incident, Defendant created and/or knew of a dangerous condition which caused an acrylic nail striking Plaintiff’s eye, and that Defendant failed to remedy that condition. (Compl., p. 6, ¶ 3.) The Complaint also alleges that Defendants failed to implement and/or follow adequate safeguards. (Compl., p. 6 ¶ 4.) Here, Plaintiff contends the unsanitary conditions at the salon were a substantial factor in causing her injury. For example, Plaintiff contends that the improper use of Barbicide to properly disinfect the tools and the use of an ineffective sterilizer light were a substantial factor in causing Plaintiff’s injuries. (Decl. Flowers ¶11-14.) Plaintiff also contends that Defendant should have ensured Plaintiff’s hands were properly cleaned and washed prior to beginning the service, to clean away any bacteria or fungus, but did not do so. (Decl. Flowers ¶16.) Plaintiff also contends that use of the particular clippers at issue in this case, created a hazard of flying debris. (Decl. Flowers ¶ 16 18.)

Thus, Defendant’s Motion for Summary Adjudication as to Plaintiff’s Premises liability cause of action is DENIED.

· Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.

· If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number. The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.

· Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue.

· If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.

Hon. Michelle C. Kim

Judge of the Superior Court