Judge: William A. Crowfoot, Case: 20STCV20258, Date: 2023-01-03 Tentative Ruling

Case Number: 20STCV20258    Hearing Date: January 3, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

On May 28, 2022, plaintiff Kyong Soon Kang (“Plaintiff”) filed this action against defendant DK Sol, Inc. dba Dangki Woman Spa (the “Spa”) asserting causes of action for negligence and premises liability after she fell at the spa on August 27, 2018 while receiving a “wet massage.”  On May 6, 2022, Plaintiff named Yushun Piao (“Piao”) as Doe 1. 

On October 10, 2022, the Spa and Piao (collectively, “Defendants”) filed this motion for summary judgment.  Defendants argue that summary judgment should be entered because Plaintiff’s claims are barred by the primary assumption of risk doctrine. 

II.          LEGAL STANDARD

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”  (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.”  (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)  A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.”  (Code Civ. Proc., § 437c, subd. (p)(2).)  To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)  It is insufficient for the defendant to merely point out the absence of evidence.  (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.)

“Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.”  (Code Civ. Proc., § 437c, subd. (p)(2).)  The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.”  (Ibid.)  “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

III.        EVIDENTIARY OBJECTIONS

Defendants object to Plaintiff’s evidence submitted in opposition.  However, pursuant to CRC 3.1345, the Court need not rule on these objections because the Court finds that Defendants have not met their moving burden and the burden does not shift to Plaintiff to raise a triable issue of fact. 

IV.         DISCUSSION

The primary assumption of risk doctrine was developed in recognition that some activities are inherently dangerous such that the defendant has no duty to protect the plaintiff from those inherent dangers.  (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1154; Knight v. Jewett (1992) 3 Cal.4th 296, 308.)  “The primary assumption of risk doctrine rests on a straightforward policy foundation: the need to avoid chilling vigorous participation in or sponsorship of recreational activities by imposing a tort duty to eliminate or reduce the risks of harm inherent in those activities.”  (Id. at p. 1156.)  “It operates on the premise that imposing such a legal duty ‘would work a basic alteration—or cause abandonment’ of the activity.”  (Id. [quoting Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003]).)  “Where the doctrine applies to a recreational activity, operators, instructors and participants in the activity owe other participants only the duty not to act so as to increase the risk of injury over that inherent in the activity.”  (Id. at p. 1154 (emphasis in original).)  “When the doctrine applies, the plaintiff’s assumption of the risk acts as a complete bar to liability.”  (Moser v. Ratinoff (2003) 105 Cal.App.4th 1211, 1219.)  “Determining whether the primary assumption of risk doctrine applies is a legal question to be decided by the court.”  (Id. at p. 1217.) 

“‘[W]hether the defendant owed a legal duty to protect the plaintiff from a particular risk of harm does not turn on the reasonableness or unreasonableness of the plaintiff’s conduct, but rather on the nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport.’”  (Moser, supra, 105 Cal.App.4th at 1219-20 [quoting Knight, supra, 3 Cal.4th at 309].)  “[T]he primary assumption of risk doctrine is not limited to activities classified as sports, but applies as well to other recreational activities ‘involving an inherent risk of injury to voluntary participants . . . where the risk cannot be eliminated without altering the fundamental nature of the activity.’”  (Nalwa, supra, 55 Cal.4th at 1156 [quoting Beninati v. Black Rock City, LLC (2009) 175 Cal.App.4th 650, 658].)  “Judges deciding inherent risk questions under Knight may consider not only their own or common experience with the recreational activity involved but may also consult case law, other published materials, and documentary evidence introduced by the parties on a motion for summary judgment.”  (Id. at 1158.) 

Defendants argue that Plaintiff’s claims are barred because wet floors are an ordinary risk associated with wet massages and they did not take any action which increased the ordinary risks associated with having a wet massage.  As evidence, Defendants rely on the declaration of the manager and operator of the Spa, Thomas Jin Woo Yi, who states that “[b]ased on his experience and knowledge as the manager and operator of a spa which provides wet massages, wet and slippery floors, tables, and customers are all ordinary risks which are inherent to wet massages.”  (Def.’s Notice of Lodging of Evidence, Ex. B, Declaration of Thomas Jin Woo Yi, ¶ 8.)  He additionally states that “no action taken by defendant [Spa] or the masseuse [Piao] who gave [P]laintiff her massage increased the ordinary risks associated with receiving a wet massage.”  (Yi Decl., ¶ 9.) 

Defendants argue that the use of service and equipment as a spa constitute a recreational activity within the meaning of California’s limited primary assumption of the risk doctrine and receiving a wet massage at a spa is a recreational activity.  However, Defendants cite no authority which leads the Court to conclude that the primary assumption of risk doctrine applies to receiving a wet massage.  Defendants only cite to Grebing v. 24 Hour Fitness USA, Inc. (2015) 234 Cal.App.4th 631, 637, Zipusch v. LA Workout, Inc. (2007) 155 Cal.App.4th 1281, 1291, and Leon v. Family Fitness Center (#107) Inc. (1998) 61 Cal.App.4th 1127, 1234 in their moving papers.  (Motion, 4:26-5:3.)  These cases are unpersuasive.  Grebing and Leon include no discussion of the primary assumption of risk and primarily involve the scope of written liability waivers.  Zipusch concerned the inherent risk of “exercising at a health club” and concluded that “negligent inspection and maintenance of exercise equipment” is not an inherent risk.  Even Defendants’ citation to Beninanti v. Black Rock City (2009) 175 Cal.App.4th 650 in their reply brief is unavailing.  In Beninanti, a man was burned when he tripped and fell into the remnants of the Burning Man effigy while participating in Burning Man festival’s commemorative ritual: the burning of a 60-foot-tall wood sculpture in the figure of a man during the penultimate night of the festival.  (Id. at p. 653.)  Festival attendees were invited to approach the flames to deposit tokens, mementos, and other combustible objects into the fire.  (Ibid.)  The Beninanti court concluded that the primary assumption of risk applied because the activity and “risk of stumbling on buried fire debris” and being burned by the flames or hot ash was “similar to that engaged in by a firefighter as part of the firefighter’s professional duties.”  (Ibid.) 

Rather, the Court looks to the court of appeal’s explanation in Bush as instructive. “Indeed, it is an open question whether all sports are included within the [primary assumption of risk doctrine]” and noted that “it would seem to apply only when engaging ‘in a potentially dangerous activity or sport.’” (Bush v. Parents Without Partners, Inc. (1993) 17 Cal.App.4th 322, 328 [citing Knight, supra, 3 Cal.4th at p. 311.)  The Bush court concluded that the primary assumption of risk doctrine did not apply to recreational dancing.  (Ibid.)  The Bush court also stated, “It is no answer to say that dancing is inherently dangerous because some dancers have been known to injure themselves by falling. The same could be said of driving a vehicle or virtually any human activity.”  (Id. at p. 329.) 

Based on the foregoing, the Court does not find that the primary assumption of risk doctrine applies to receiving a wet massage at a spa.  But even if it did, Yi’s conclusory and factually devoid declaration is insufficient to show that Defendants did not increase the inherent risks of receiving a wet massage.  (Yi Decl., ¶ 9 [“No action taken by the defendant or the masseuse . . . increased the ordinary risks associated with receiving a wet massage.”])

VI.     CONCLUSION

          In light of the foregoing, the Motion for summary judgment is DENIED.

Moving party to give notice. 

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.