Bernhardt v.
Steiner Group

























Filed 12/6/12
Bernhardt v. Steiner Group CA2/3

Reposted to
provide current Rule 8.115 warning, no change to text













NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS





California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.







IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SECOND
APPELLATE DISTRICT



DIVISION
THREE






>

HAROLD J. BERNHARDT, Plaintiff and Appellant, v. THE STEINER GROUP, Defendant and Respondent.

B238764 (Los Angeles County Super. Ct. No. BC443131)

APPEAL from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Mark V. Mooney, Judge. Affirmed.

Forgie & Leonard, Peter S.
Forgie for Plaintiff and Appellant.

Foreman Friedman, Darren W.
Friedman, admitted pro hac vice,
and Teresa C. Senior for Defendant and Respondent.



_______________________________________

Harold
J. Bernhardt (Bernhardt), a resident of New Jersey, href="#_ftn1"
name="_ftnref1" title="">[1]
appeals from a judgment of dismissal in favor of Steiner Transocean
Limited (Steiner), a Bahamian corporation, and Hu Alaric Toy (Toy), an
acupuncturist employed by Steiner, subsequent to an order granting a href="http://www.fearnotlaw.com/">summary judgment motion. Bernhardt contends that he raised href="http://www.mcmillanlaw.com/">triable issues of material fact and,
therefore, the trial court erred in granting respondents’ motion. We disagree and will affirm the judgment.

>FACTUAL
AND PROCEDURAL BACKGROUNDhref="#_ftn2"
name="_ftnref2" title="">[2]

While
a passenger on the Diamond Princess, a cruise ship, Bernhardt underwent
acupuncture treatments over a three-day period in August of 2009 performed by
Toy at the Lotus Spa operated by Steiner onboard the ship. During the treatments, Toy inserted
acupuncture needles into Bernhardt’s left foot as well as other parts of his
body. About a week after his return home
from the cruise, Bernhardt began experiencing pain in his left foot for which
he sought medical care. His physician determined that the pain was
caused by a foreign object lodged in Bernhardt’s foot. Surgery to remove the foreign object was
performed on September 1, 2009. The object was a short, thin piece of metal
similar to a needle or wire. Bernhardt believed
the object to be a broken piece of acupuncture needle and filed a
complaint on August 5, 2010
against Steiner and Toy for negligence.

The
complaint alleged that Bernhardt had suffered an injury that was likely
permanent and incurred damages as the result of Toy’s failure to inform him
that an acupuncture needle had broken off in his foot, to remove the needle,
and to advise him that he should seek medical care. In addition, Bernhardt alleged that it will
be necessary for him to continue receiving medical care and treatment for an
indefinite period of time. He also
sought lost earnings.

Respondents
filed a motion for summary judgment on August 17, 2011 on the grounds that
Bernhardt had not established a prima facie case of (1) breach of duty, or (2) causation,
because he could not show that the foreign object removed from his foot was a
piece of an acupuncture needle from the Lotus Spa. Bernhardt opposed the motion on October 17, 2011 and respondents
replied on October 26, 2011.

The
trial court sustained all of respondents’ evidentiary objections, which
decision is not being challenged on appeal.
The trial court then found that respondents had made a prima facie
showing that the object was not an acupuncture needle of the specified kinds
routinely provided for use in its spas by Steiner and Bernhardt failed to offer
any admissible evidence to the contrary.
As a result, it granted respondents’ motion. The judgment dismissing Bernhardt’s case was
entered on December 2, 2011. Bernhardt filed a notice of appeal on January 26, 2012.

>CONTENTIONS

Bernhardt contends that a triable
issue of material fact was raised as to whether the foreign object removed from
his left foot was a piece of a broken acupuncture needle from the Lotus
Spa. As a result, he argues, the trial
court erred in granting respondents’ motion for summary judgment.

>DISCUSSION

1. Standard
of Review

Code of Civil
Procedure section 437c, subdivision (a), states, “Any party may move for
summary judgment in any action or proceeding if it is contended that the action
has no merit or that there is no defense to the action or proceeding.” Section 437c goes on to state in
subdivision (c) that a “motion for summary judgment shall be granted if all the
papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” (Italics
added.) An appellate court reviews a
trial court’s ruling on a motion for summary judgment de novo. (Rio
Linda Unified School Dist. v. Superior Court (1997) 52 Cal.App.4th
732, 734-735.)

“We first identify
the issues framed by the pleadings since it is these allegations to which the
motion must respond. We then determine
if the moving party has established a prima facie entitlement to judgment in
its behalf. Only if the moving party has
satisfied this burden do we consider whether the opposing party has produced
evidence demonstrating there is a triable issue of fact with respect to any
aspect of the moving party’s prima facie case.”
(Rio Linda Unified School Dist. v.
Superior Court, supra, 52 Cal.App.4th at pp. 734-735.) “ ‘In making this determination, the moving
party’s affidavits are strictly construed while those of the opposing party are
liberally construed.’ [Citations.] We accept as undisputed facts only those
portions of the moving party’s evidence that are not contradicted by the
opposing party’s evidence.
[Citation.] In other words, the
facts alleged in the declarations of the party opposing summary judgment must
be accepted as true.
[Citation.]” (>Waisbren v. Peppercorn Productions, Inc.,
supra, 41 Cal.App.4th at pp.
251-252.)

2. No
Triable Issue of Material Fact Was Raised
to Counter the Expert’s Opinion that the Foreign Object Was Not an Acupuncture
Needle

>

“To
establish negligence, it must be shown that (1) the defendant owed the
plaintiff a legal duty, (2) the defendant breached that duty, and (3) the
breach was a proximate or legal cause of the plaintiff’s injuries. [Citations.]
The absence of any one of these three elements is fatal to a negligence
claim.” (Gilmer v. Ellington (2008) 159 Cal.App.4th 190, 195.)

Bernhardt
argues that the trial court erred in finding that he presented no triable issue
of material fact with respect to the issue of causation. We disagree.
“In California, the causation element of negligence is satisfied when
the plaintiff establishes (1) that the defendant’s breach of duty (his
negligent act or omission) was a substantial factor in bringing about the
plaintiff’s harm and (2) that there is no rule of law relieving the defendant
of liability. [Citation.]” (Leslie
G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 481.) Respondents do not raise the issue of whether
any law relieves them of liability and we, therefore, do not discuss it.

Along
with their motion for summary judgment, respondents submitted the declaration
of David J. Coates, who has a Ph.D. in metallurgy. Dr. Coates was selected and retained by
both parties pursuant to stipulation in order to analyze the object removed from
Bernhardt’s foot in comparison to sample needles of the kind Steiner provided
for use in its spas. Based on his
analysis, Dr. Coates stated that, in his expert opinion, the object removed
from Bernhardt’s foot (1) was substantially dissimilar to the sample
needles provided and therefore was not
a piece that had broken off from any of those types of needles;href="#_ftn3" name="_ftnref3" title="">[3]> and (2) was not a piece broken off from an acupuncture needle> at all.
Based on this evidence the burden shifted to Bernhardt to show a triable
issue of material fact.

In
response to this evidence, Bernhardt submitted his own declaration stating that
the only time a foreign object was lodged in his foot was during the
acupuncture treatment and, therefore, the object is most likely to be an
acupuncture needle. He also disputed Dr.
Coates’ expert opinion, arguing that the foreign object removed from his foot
does resemble, in significant part, an acupuncture needle. However, he failed to present any competent
and admissible evidence, beyond that of his own speculation, that conflicted
with Dr. Coates’ conclusion that the foreign object found in Bernhardt’s left
foot was, in fact, not a piece broken off from any acupuncture needle. (Ochoa
v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1487
[speculation is insufficient to rebut the definitive testimony
of . . . experts].)
As a result, he failed to raise any triable issue of material fact and
the trial court properly granted respondents’ motion for summary judgment.





























>DISPOSITION

The judgment of dismissal is
affirmed. Respondents shall receive
their costs on appeal.



NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS





CROSKEY,
Acting P. J.

We Concur:





KITCHING, J.





ALDRICH, J.