Jasperson v. Jessica's Nail Clinic

• Decision Date: 20 December 1989
• Docket Number: No. B035656,B035656
• Citation: 216 Cal.App.3d 1099,265 Cal.Rptr. 301
• Court: California Court of Appeals Court of Appeals
• Parties: Paul Glen JASPERSON, Plaintiff and Appellant, v. JESSICA'S NAIL CLINIC, et al., Defendants and Respondents.

Page 301

265 Cal.Rptr. 301

216 Cal.App.3d 1099

Paul Glen JASPERSON, Plaintiff and Appellant, v. JESSICA'S NAIL CLINIC, et al., Defendants and Respondents.

No. B035656.

Court of Appeal, Second District, Division 4, California.

Dec. 20, 1989.

Allred, Maroko, Goldberg & Ribakoff, Gloria Allred, Nathan Goldberg and Carla D. Barboza, Los Angeles, for plaintiff and appellant.

Robert M. Myers, City Atty. (Santa Monica), Joseph Lawrence, Assistant City Atty., Martin T. Tachiki and Jeffrey W. Holtzman, Deputy City Attys., Steven Rosenblit and Michael Colmenares for City of Santa Monica and City of West Hollywood as amici curiae on behalf of plaintiff and appellant.

James K. Hahn, City Atty. (Los Angeles), Charles I. Goldenberg, Asst. City Atty., and David I. Schulman, Deputy City Atty., for City of Los Angeles as amicus curiae on behalf of plaintiff and appellant.

Jon W. Davidson and Paul L. Hoffman for ACLU of Southern California as amicus curiae on behalf of plaintiff and appellant.

Geragos and Geragos and Paul J. Geragos, for defendants and respondents.

ARLEIGH M. WOODS, Presiding Justice.

Paul Jasperson (appellant) appeals the judgment in his action against Jessica's Nail Clinic and Jessica Vartoughian (the clinic, Vartoughian or, collectively, respondents) by which he sought to enjoin them from refusing him a pedicure because he suffered from Acquired Immune Deficiency Syndrome (AIDS). ¹ At stake is the validity of the West Hollywood city ordinance prohibiting discrimination against persons with AIDS.

On July 21, 1986, appellant was discharged from a hospital where he had been treated for pneumocystis carinii pneumonia, an opportunistic disease associated with AIDS.

On July 23, 1986, appellant went to Jessica's Nail Clinic for a pedicure. He was given an appointment for the following day. While at the clinic, appellant, a hairdresser, ran into a client whom he told about his condition. His remarks were overheard by two employees of the clinic. The next day, appellant was called by the clinic and told his appointment had been cancelled. Appellant attempted to reschedule his appointment but was told by an employee that the clinic was "not taking any new male clients." Appellant subsequently called respondent Vartoughian who repeated this explanation of why appellant was not given an appointment. She denied appellant's accusation that the true reason he was refused an appointment was because he had AIDS.

Vartoughian's version of the telephone conversation was that appellant was upset because he had been told that the clinic's pedicurist was "double-booked" and he would be unable to get an appointment for four or five weeks. He then expressed his belief that he had been denied an appointment because he had AIDS. She said that she apologized to him, and asked whether he could wait for an appointment, but also told him that she could not force "the girls" at the clinic to give him a pedicure. She testified that the people at the salon were upset by appellant's revelation that he had AIDS and were unwilling to give appellant a pedicure.

Appellant filed a complaint alleging three causes of action. The only cause of action that went to trial was based on violation of a West Hollywood city ordinance prohibiting discrimination against people with AIDS. The ordinance prohibits discrimination in "employment, housing, business establishments, health care services, city facilities and services, and other public services and public services and accommodations." ² Respondents answered, raising the defense of "justification" in claiming that their conduct did not violate the statute because to have provided services to appellant would have exposed the workers at the clinic to "a deadly risk to their health."

Trial was by court. The evidence adduced at trial pertained to the risk of transmission of the AIDS virus during a pedicure.

Appellant put on three expert witnesses experienced in AIDS research and education.

Dr. Neal Schram is a board certified practitioner of internal medicine and nephrology associated with Kaiser Hospital. Dr. Schram sits on three Kaiser Permanente AIDS committees, and is a past chairman of the Los Angeles City/County AIDS Task Force. Among his other activities in the field of AIDS education, Dr. Schram assisted in the development of nationwide AIDS guidelines in the workplace by the Center for Disease Control.

Dr. Shirley Fannin is a board certified pediatrician with a subspecialty in infectious disease, trained in epidemiology. At the time of trial she was employed by the Los Angeles County Department of Health Services as an associate deputy director in charge of disease control programs. Her position required her to take measures to protect county residents from being infected with communicable diseases.

Dr. David Ho is a research scientist associated with Cedars-Sinai Medical Center in Los Angeles, and an assistant professor in medicine at UCLA Medical School. He is board certified in internal medicine. Dr. Ho has been involved in AIDS research since 1982, focusing on the potential development of a vaccine and defining the mechanism by which the virus alters the central nervous system. He has published extensively on various aspects of the AIDS virus in such journals as the New England Journal of Medicine and the Yale Journal of Biological Medicine.

These physicians testified that the AIDS virus is transmitted in only one of three ways: exposure to contaminated blood, sexual contact or perinatal exposure, that is an infected mother to a newborn child. In the case of blood-to-blood transmission, for infection to occur, there must be a direct access between the blood of the infected person and the blood of an uninfected person through an open or "weeping" lesion or sore.

Evidence was introduced that 99.999 percent of the blood cells of an infected person do not carry the virus, rendering it statistically unlikely that a single drop of blood would infect. In a study involving 735 individuals who were stuck with needles known to be contaminated with infected blood, only three people tested positive for the presence of the antibody that the body forms once it is infected with the HIV virus.

Sandra Gullart, a supervising teacher at a cosmetology school, testified that a pedicure involves the following process: First, the client's feet are placed in an antiseptic solution for three to five minutes. By state law, the cosmetologist may not perform a pedicure if the client's feet have open cuts or sores or abrasions of any kind. After the antiseptic bath, any nail polish is removed from the client's feet. Next, the toenails are clipped and the edges filed smooth. The nails are buffed with an emery board or metal file after which the feet are placed in a hot bath. The feet are removed from the bath one at a time and a cuticle solvent is applied by a cotton swab. Finally, cuticle is pushed back using a rubber tipped pusher. The instruments which are used to give a pedicure are an orange wood stick which has the dual function of pushing back the cuticle or applying polish remover, a plastic rubber tipped pusher also used to push back cuticles, toenail clippers, an emery board or metal file for buffing the nails, a brush for brushing loose cuticles and toe separators used when nail polish is applied. Other than the toenail clippers and the metal file, state law prohibits the use of metal instruments in giving a pedicure. ³

There was conflicting evidence as to whether blood is likely to be shed in the course of a pedicure. Ms. Gullart testified that in giving or observing 10,000 pedicures she had only seen bleeding once. Respondent Vartoughian and one of her students characterized accidents during pedicures which result in bleeding as "occasional" or "common" occurrences.

All of these witnesses agreed, however, on various sterilization procedures which, if followed, would inactivate the HIV virus. All instruments are required by law to be sterilized in a 70 percent alcohol solution at the beginning of each day and between customers. Additionally, if blood is drawn during a pedicure the same strength solution is used to disinfect both the cut and the contaminated instrument. Finally, all blood is wiped clean from a contaminated instrument using a 70 percent alcohol solution before the instrument is again used. It was uncontroverted that a 70 percent alcohol solution will completely inactivate the HIV virus within a minute. The virus could also be inactivated by use of .3 percent hydrogen peroxide, household bleach, or other disinfectants.

Dr. Donald O'Conner, a family practitioner, testified as respondents' medical expert. Dr. O'Conner completed his internship in family medicine in 1984 and was hired by the Community Clinic in Vacaville, California as its director. Dr. O'Conner is essentially a sole practitioner, as the other physician employed by the clinic, an obstetrician, is called in only as needed. Dr. O'Conner had no specialized training in infectious diseases and had done no clinical research on AIDS. ⁴

It was Dr. O'Conner's opinion that medical associations, AIDS organizations, the United States Public Health Department and the Attorney General of the United States are lying to the public about AIDS. He believed that reported studies have been falsified and there are unexplained cases of AIDS which support his opinion that, in fact, AIDS can be transmitted through all body fluids and by normal household contact; that the virus can be airborne by coughing, sneezing, etc.; and that it can be transmitted by touching or shaking hands. Dr. O'Conner also disputed the testimony of the other physicians as to what constituted adequate protection against AIDS. He testified that AIDS patients should be quarantined.

On cross-examination Dr. O'Conner conceded that his opinions about AIDS differ substantially from mainstream opinion on the subject. The doctor acknowledged that he had...