KRIEGLER, J. —
Plaintiff and appellant Ismael Rosas appeals from judgments entered after the trial court granted summary judgment in favor of defendants and respondents BASF Corporation; Berje Inc.; Citrus and Allied Essences Ltd.; Centrome, Inc., doing business as Advanced Biotech; Elan Chemical Company, Inc.; Emoral, Inc.; O'Laughlin Industries, Inc.; O'Laughlin Industries Co., Ltd.; and O'Laughlin Tianjin Industries Co.
The result on appeal turns on whether the evidence
FACTUAL AND PROCEDURAL BACKGROUND
Rosas was an employee at Gold Coast Ingredients, Inc., from 1994 or 1995 until April 2007. The company manufactures and sells food flavoring products. After he was transferred to the powder production room in 1996, Rosas's responsibilities included mixing various powders and liquids, including liquid chemicals such as diacetyl and benzaldehyde, to make food flavorings. Rosas testified he used many liquid chemicals, too many to remember all their names. Between 1996 and 2001, Rosas made flavorings using diacetyl about three times a day, and after 2001, the frequency increased to about six times a day because the company was making larger amounts of butter flavoring.
Sometime after he began working with the powders and chemicals, he began experiencing pain or irritation in his nose, eyes, throat, and lungs. He began coughing around 2000 or 2002. In 2001, he saw a doctor for flulike symptoms and was given antibiotics. He was out of work for two or three days due to his illness, and returned with a doctor's note stating he had "chronic acute bronchitis."
In 2003, Rosas spent four days in the hospital for symptoms of pneumonia. He had a lot of coughing, fever, phlegm, and pain in his nose and lungs. Rosas shared with his doctors his suspicions that his illness might be related to chemicals at work, but the doctors never communicated a diagnosis to him or told him his illness was due to his work.
Rosas continued to experience coughing and flulike symptoms in 2004, but the appellate record does not contain evidence any doctor diagnosed the problem or its cause. Sometime in 2005, Rosas asked to be moved from the powder production room to the warehouse, because he felt the powder related to his increasing cough. According to Rosas's testimony, he brought a note from one of his doctors and Gold Coast transferred him to the warehouse a few days later. However, Rosas's supervisor testified he did not recall learning of any health issues as a result of Rosas's work at Gold Coast until after Rosas stopped working in 2007.
In May 2005, Rosas was referred to Dr. Korotzer, a pulmonary physician at Kaiser, because his symptoms were no longer "flu-like." Dr. Korotzer examined Rosas and determined that he had severe obstructive lung disease, but that its etiology, or cause, was unclear. Dr. Korotzer's medical report included a medical history that noted Rosas's past diagnoses of chronic bronchitis and his hospitalization in February 2003 for pneumonia. It notes a chronic runny nose and congestion, including postnasal drip, and that a February 2003 sinus X-ray was consistent with chronic sinusitis. Dr. Korotzer also notes that a
On April 26, 2006, Rosas saw his primary care physician, Dr. Rodriguez, because his cold was more constant and his nose was very itchy. Dr. Rodriguez told him it was normal for people who worked with powder to have allergic symptoms like a cough and runny nose. The doctor gave him a note stating Rosas "suffers from chronic lung disease. He should not work around chemicals or toxic substances. He also shouldn't do work that requires moderate to heavy exertion."
On July 14, 2006, Rosas returned to the pulmonary physician, Dr. Korotzer, who noted that the likely cause of his disease was an old infection. Dr. Korotzer wrote and gave Rosas the following note: "To Whom It May Concern: [¶] I am a pulmonary physician at Kaiser Permanente Bellflower caring for Ismael Rosas. The patient has a chronic lung condition. Usually with this chronic lung condition exposure to odors from chemicals or fumes from any type causes the patient's respiratory condition and symptoms to worsen. Therefore, possible in the work environment minimization of any exposure to chemicals, fumes or odors will help the patient in [sic] and would be advisable if possible." Although Dr. Korotzer believed that exposure to irritants such as strong odors or chemicals could exacerbate Rosas's underlying chronic lung condition, causing a flareup or increased symptoms such as severe cough and wheezing, he did not believe Rosas's exposure to chemicals had caused the lung condition.
Rosas saw Dr. Korotzer again in September 2006 about his continuing cough and difficulty breathing. Rosas told Dr. Korotzer he worked with powder, and Dr. Korotzer responded that some people sometimes respond to that type of powder. The notes from that visit indicate that the cause of Rosas's illness remained unknown, but the severe lung obstruction had worsened from August 2006. There is no evidence in the record that Dr. Korotzer asked any followup questions about the powders or chemicals Rosas was exposed to at work, and Rosas testified he did not tell the doctor
In November 2006, doctors from the National Institute for Occupational Safety and Health (NIOSH) met with Gold Coast employees, and a doctor informed Rosas the results from his pulmonary function test were the worst of all the employees, he had bronchiolitis obliterans, and his illness was caused by diacetyl. In early November, a doctor with the occupational health branch of the State Department of Health Services contacted Dr. Korotzer and informed him of the health risks associated with exposure to flavoring ingredients, including the chemical diacetyl, and its association to the lung disease bronchiolitis obliterans. Before communicating with the State Department of Health Services, Dr. Korotzer had never read anything about any connection between the flavoring industry and lung disease and had never treated a patient for bronchiolitis obliterans. After reading some materials, Dr. Korotzer felt confident that chemical exposure had likely caused Rosas's lung disease. Dr. Korotzer met with Rosas on November 22, 2006, noting that the patient "[f]eels OK" and is able to do his work assembling boxes with little problem. The doctor's notes also state that he advised Rosas to notify him if he had increased symptoms and that Rosas was no longer exposed to any chemicals at the workplace.
In the context of a workers' compensation proceeding, a qualified medical examiner opined that Rosas's injury "became permanent and stationary on March 21, 2007." Rosas continued working at Gold Coast until April 2007, and in February 2008, Dr. Korotzer wrote a letter stating Rosas was "completely and totally permanently disabled, due to a severe, chronic lung infection."
Rosas filed an initial complaint on October 30, 2008.
B. Motion for Summary Judgment
In an amended motion for summary judgment, BASF argued that Rosas's claims were barred by the statute of limitations because he was on inquiry notice more than two years before filing his original complaint on October 30, 2008.
C. Opposition to Motion for Summary Judgment
In his opposition, Rosas argued that in order to prevail on summary judgment, BASF bore the burden of proving that he was, or should have been aware of (1) his injury, (2) its physical cause, and (3) sufficient facts that would lead a reasonable person to suspect his injury was caused by the wrongful act of another. He argued that the evidence in support of BASF's motion did not establish that Rosas was aware of the three distinct elements required to trigger the statute of limitations before October 30, 2006. Instead, the statute did not begin to run until November 2006, when NIOSH diagnosed Rosas with bronchiolitis obliterans, caused by diacetyl exposure. First, until receiving a diagnosis from NIOSH in November 2006, he was unaware of an injury significant enough to trigger the statute of limitations. Second, because his doctors did not believe or advise him that the chemicals in his workplace were causing his lung disease and instead only told him the chemicals were aggravating his symptoms, he was unaware of the cause of his lung disease until November 2006. The opposition brief pointed to
D. Court's Tentative Ruling and Hearing
The trial court issued a tentative ruling indicating it would grant summary judgment on the statute of limitations, noting that under Grisham v. Philip Morris U.S.A., Inc. (2007) 40 Cal.4th 623 [54 Cal.Rptr.3d 735, 151 P.3d 1151] (Grisham), once a plaintiff is aware of an injury and its cause, there is a rebuttable presumption the plaintiff is aware of wrongdoing as well. At the hearing on April 9, 2014, Rosas argued defendants had failed to satisfy their burden as to each element necessary to establish a statute of limitations bar, particularly that they offered no evidence that Rosas had reason to suspect wrongdoing. Counsel also argued the Grisham presumption raised by the court did not apply. The trial court entered its orders granting summary judgment in favor of BASF and the joining defendants.
E. Postsummary Judgment Proceedings
On April 18, 2014, Rosas filed a motion for reconsideration and relief under Code of Civil Procedure sections 473 and 1008,
Rosas contends the trial court erred in granting summary judgment because triable issues of fact remain as to when he should have known of his injury
A. Standard of Review
"We review the trial court's ruling on a summary judgment motion de novo, liberally construe the evidence in favor of the party opposing the motion, and resolve all doubts concerning the evidence in favor of the opponent. [Citation.]" (Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 181 [153 Cal.Rptr.3d 693].) "To determine whether triable issues of fact do exist, we independently review the record that was before the trial court when it ruled on defendants' motion." (Martinez v. Combs (2010) 49 Cal.4th 35, 68 [109 Cal.Rptr.3d 514, 231 P.3d 259].) "The rules governing a motion for summary judgment are well known and we need not set them out in detail. A defendant seeking summary judgment must either prove an affirmative defense, disprove at least one element of the plaintiff's cause of action, or show that some such element cannot be established. [Citation.]" (Government Employees Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 95, 100 [93 Cal.Rptr.2d 820].) "A court identifies the issues framed by the pleadings, determines whether the moving party's showing has established facts which negate the opponent's claim and justify a judgment in the moving party's favor, and if the summary judgment motion is meritorious on its face, the court will look to whether the opposition demonstrates there are triable, material factual issues. [Citation.] Section 437c, subdivision (c) allows the trial court ruling on the motion to consider all evidence and all the inferences reasonably deducible from the evidence set forth in the papers, `except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact.' (§ 437c, subd. (c).)" (Clark v. Baxter Healthcare Corp. (2000) 83 Cal.App.4th 1048, 1054 [100 Cal.Rptr.2d 223] (Clark).)
B. Statute of Limitations and the Discovery Rule
"[S]tatutes of limitation do not begin to run until a cause of action accrues." (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806 [27 Cal.Rptr.3d 661, 110 P.3d 914] (Fox).) "[A] cause of action accrues at `the time when the cause of action is complete with all of its elements.'" (Ibid.) "An important exception to the general rule of accrual is the `discovery rule,' which postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action. [Citations.] [¶] A plaintiff has reason to discover a cause of action when he or she `has reason at least to suspect a factual basis for its elements.' [Citations.]" (Id. at p. 807.) A potential plaintiff "discovers the cause of action when he at least suspects a factual basis, as opposed to a legal theory, for its elements, even if he lacks knowledge thereof — when, simply put, he at least `suspects ... that someone has done something wrong' to him [citation], `wrong' being used, not in any technical sense, but rather in accordance with its `lay understanding' [citation]." (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397-398 [87 Cal.Rptr.2d 453, 981 P.2d 79], fn. omitted (Norgart).)
Section 340.8 incorporates the discovery rule into the statute of limitations for toxic torts, requiring a plaintiff to file a complaint within "two years after the plaintiff becomes aware of, or reasonably should have become aware of, (1) an injury, (2) the physical cause of the injury, and (3) sufficient facts to put a reasonable person on inquiry notice that the injury was caused or contributed to by the wrongful act of another...." (§ 340.8, subd. (a).) This two-year limitations period applies in cases alleging personal injury caused by harmful chemicals. (Nelson v. Indevus Pharmaceuticals, Inc. (2006) 142 Cal.App.4th 1202, 1209 [48 Cal.Rptr.3d 668] (Nelson).) The Legislature passed section 340.8 to codify for toxic torts the delayed discovery rule as described in Jolly, supra, 44 Cal.3d 1103, Norgart, supra, 21 Cal.4th 383, and Clark, supra, 83 Cal.App.4th 1048, and to repudiate the holding in McKelvey v. Boeing North American, Inc. (1999) 74 Cal.App.4th 151 [86 Cal.Rptr.2d 645], that media reports regarding a toxic substance could be sufficient to trigger inquiry notice. (Alexander v. Exxon Mobil (2013) 219 Cal.App.4th 1236, 1252 [162 Cal.Rptr.3d 617] (Alexander); Nelson, supra, 142 Cal.App.4th at p. 1209.)
C. Summary Judgment Is Not Warranted When There Is a Triable Issue About Whether a Reasonable Person Would Suspect Wrongdoing
Rosas contends the court erred in granting summary judgment because the uncontradicted evidence does not establish that Rosas either was or should have been aware of all three elements required to trigger the statute of limitations under section 340.8: injury, cause, and wrongfulness. We need not decide whether the evidence satisfies the injury element, because BASF fails to establish that a reasonable person would suspect a wrongful cause leading to Rosas's chronic lung condition. "Under the discovery rule, the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her." (Jolly, supra, 44 Cal.3d at p. 1110.) We conclude BASF's evidence is inadequate to establish as a matter of law that Rosas was aware of "sufficient facts to put a reasonable person on inquiry notice that the injury was caused or contributed to by the wrongful act of another...." (§ 340.8, subd. (a)(3).)
Reason to suspect wrongful cause found as a matter of law
In Norgart, supra, 21 Cal.4th at pages 405-406, the California Supreme Court held that there was no triable issue of material fact and the defendant pharmaceutical company was entitled to judgment as a matter of law based upon the statute of limitations where a plaintiff admitted, on more than one occasion, suspecting that someone had done something wrong to cause his daughter's death by suicide. The court pointed out that the cause of action accrued when the plaintiffs suspected or had reason to suspect a wrongful cause for their daughter's death, and their failure to file a complaint within one year resulted in their claims being barred. (Ibid.)
In Miller v. Lakeside Village Condominium Assn. (1991) 1 Cal.App.4th 1611, 1622-1624 [2 Cal.Rptr.2d 796] (Miller), the appellate court rejected the plaintiff's argument that there were triable issues of fact on the question of when she suffered injuries caused by mold exposure such that the statute of limitations on her claims would be triggered. There was undisputed evidence that the plaintiff experienced severe bouts of asthma and was hospitalized in the summer of 1984, and on or before October 1984, plaintiff had her condominium unit tested for mold contamination, retained a microbiologist to pinpoint the source of the mold, and her husband sent a letter to the defendant stating that the flooding caused mold which caused the plaintiff to suffer extreme allergic reactions a year earlier. Based on this evidence, the
In Rose v. Fife (1989) 207 Cal.App.3d 760 [255 Cal.Rptr. 440], the plaintiff suffered an infection and complications from an intrauterine device (IUD) but did not file a complaint against her doctor and the IUD manufacturer until almost three years later. The appellate court rejected her argument that she did not learn of wrongdoing until reading a newspaper article linking her particular IUD type to injuries similar to her own. Instead, a reasonable person would have suspected wrongdoing when the doctors who treated her during her hospitalization told her they felt the IUD was the cause of her infection and it had to be removed. (Id. at pp. 766-767.) Citing to Jolly, the court concluded that even if the plaintiff did not suspect wrongdoing when she was hospitalized, she reasonably should have suspected wrongdoing. "We hold as a matter of law that a reasonable person would have suspected wrongdoing by [the doctor] and would have inquired; she would have gone to find the facts rather than waiting until October 1985 for the facts to come to her." (Id. at p. 770.)
Reason to suspect wrongful cause a question of fact left for the jury to decide
Demurrer cases where court declines to find statute triggered as a matter of law
D. A Triable Issue Exists as to Whether Before November 2006, Rosas Was Aware of the Cause of His Lung Disease and Was on Inquiry Notice as to Possible Wrongdoing
The trial court erroneously granted summary judgment when the evidence before it was susceptible to more than one legitimate inference. It also erroneously construed BASF's evidence broadly and Rosas's evidence narrowly and drew inferences in favor of BASF, rather than Rosas. (Aguilar, supra, 25 Cal.4th at p. 856 [court must view evidence in light most favorable to the party opposing motion for summary judgment].) Because the evidence can support a legitimate inference that a reasonable person in Rosas's situation, knowing the facts known to Rosas, would not have suspected a wrongful cause for his lung disease, respondents are not entitled to summary judgment.
Triable issue whether facts would lead a reasonable person to suspect a wrongful cause
Rosas started working with flavoring chemicals in 1996, but testified in deposition that he did not begin experiencing a cough until at least four years later in 2000 or 2002. Although he did experience some illness in 2001 and 2003, his doctors did not express undue concern, viewing his illnesses as perhaps slightly serious versions of maladies such as pneumonia, bronchitis, and sinusitis. Even after he was referred to a specialist because his symptoms were no longer "flu-like," the pulmonary physician did not express concern about anything in his medical history that would lead a person to believe that his illness (by that time diagnosed as "[s]evere obstructive lung disease") was caused by a wrongful act of another.
Neither Rosas's primary care physician, Dr. Rodriguez, nor his pulmonary physician, Dr. Korotzer, ever suggested to Rosas that his lung disease was being caused by his exposure to chemicals at work. Rather, Dr. Rodriguez assured him in April 2006 "[t]hat it was normal for people who worked with powder to have that cough, the runny nose, type of allergy." Dr. Korotzer also testified he did not suspect the chemical exposure to be the cause of Rosas's underlying lung disease, only a factor in aggravating his symptoms.
Rather than suspecting he or she had been wronged in some way, a reasonable person would do what Rosas did, which is to visit a doctor when a cold and cough continues and seems to be getting worse. But when a doctor tells a patient his symptoms are normal, and a lung specialist is unable to determine the cause of the patient's lung disease, we cannot conclude as a matter of law that a reasonable person would suspect the disease has a wrongful cause. In many ways, the facts of this case are similar to those at issue in Clark, where the plaintiff suffered from a debilitating allergy to latex gloves but did not have any reason to suspect wrongdoing until after joining a support group and receiving an article about possible defective manufacturing. (Clark, supra, 83 Cal.App.4th at p. 1053.) Without additional facts, we cannot determine as a matter of law that the facts available to Rosas before November 2006 would put a reasonable person on inquiry notice that his disease was caused by wrongdoing. (Id. at p. 1060 ["[i]n this case, under these peculiar circumstances, it cannot yet be determined as a matter of law when the limitations period began to run"].)
The trial court's decision rejected Rosas's argument that he could reasonably rely on the doctors' inability to determine the cause of his lung disease,
Finally, the context of Rosas's workplace also factors into our evaluation of whether a reasonable person would suspect wrongdoing. This is not a scenario where the employee is working with chemicals that are recognized as being hazardous. (See, e.g., Nguyen v. Western Digital Corp. (2014) 229 Cal.App.4th 1522 [178 Cal.Rptr.3d 897] [analyzing when cause of action accrued where plaintiff's mother exposed to hazardous and toxic chemicals in semiconductor industry, leading to plaintiff's birth defects]; Rivas, supra, 98 Cal.App.4th 218, 223 [plaintiff's daily work tasks included using chemical solvent to degrease automobile parts].) To the contrary, it would be reasonable to assume that chemicals used to make food flavorings intended for human consumption would be relatively safe.
Inferences drawn in favor of BASF Corporation
Our independent review of the evidence also highlights the trial court's error in drawing inferences and construing ambiguities in favor of BASF instead of Rosas. For example, the trial court's opinion states that in 2005, "Rosas believed that his cough was worsening because of the chemicals and asked Dr. Korotzer for a letter ordering Rosas moved to warehouse duty, although Rosas still did not tell Dr. Korotzer about his belief that the chemicals were causing his cough." However, a close analysis of the evidence reveals that at the time of the transfer, Rosas was concerned about how powders might be aggravating his cough. The court cites to two pages of Rosas's testimony, during which Rosas consistently refers to powders, not
Other evidence supports a more ambiguous and possibly neutral explanation for Rosas's transfer to the warehouse. Rosas testified he provided the doctor's note to his supervisor, and the trial court inferred that Rosas had brought his suspicions about the adverse health effects of continued chemical exposure to his employer's attention, leading Gold Coast to relocate him to the warehouse. Rosas testified that he discussed the matter with his supervisor, Ted Rodriguez, but Rodriguez testified he was unaware of Rosas's health complaints until after Rosas stopped working in April 2007. And according to the medical notes, Rosas had already moved out of the powder production room before his first visit with Dr. Korotzer: "In the past, he has been exposed to some dust ... and was exposed to this dust for approximately three years. He is no longer working in that department, and is now no longer exposed to any type of dust. He does work with some chemicals at the present time. These do not cause him any kind of irritation." It cannot be considered outside the realm of legitimate inferences that at some point before visiting Dr. Korotzer, Rosas asked to be transferred because he wanted to work in a less dusty environment, particularly when it is common knowledge that things like dust and powder can aggravate a cough.
The trial court's conclusion that Rosas suspected diacetyl as the cause of his disease as early as 2003 is also based on testimony from which a different legitimate inference can easily be drawn. Rosas was asked in a workers' compensation hearing whether he suspected his 2003 hospitalization was work related, and he answered, "Yes." The testimony continued:
"Q: Was there any specific exposure that you had that you suspected was the culprit?
"A: Yes, the chemicals.
"Q: Do you know the names of those chemicals?
"A: Starting with diacetyl. Benzaldehyde."
Respondents point to this exchange as establishing unequivocally that in 2003 Rosas suspected his exposure to diacetyl at work was the culprit of his
The trial court draws another unwarranted inference by noting that Rosas did not share his suspicions about the potential cause of his illness with Dr. Korotzer. There is no evidence Rosas ever misrepresented to any doctor the nature of his work environment. In fact, Rosas testified that he had shared his suspicion with doctors as early as 2003, and Dr. Korotzer's notes refer to a "sand-like dust, which may be sugar molecules." Furthermore, the letters written in 2006 show that his doctors were well aware that his job involved exposure to odors, fumes and chemicals, and Korotzer confirmed that Rosas told him he was exposed to chemicals, odors and fumes at his worksite.
A rule of law that places on any sick individual the burden of sharing with his or her doctor any suspicion, whether well formed or not, is not yet embodied in California law, and we are not willing to go that far. Instead, we hold that when a reasonable person would not necessarily suspect wrongdoing, it is not a plaintiff's burden to begin an investigation until the objective facts establish a reason to investigate. (Nelson, supra, 142 Cal.App.4th at p. 1206 ["a plaintiff's duty to investigate does not begin until the plaintiff actually has a reason to investigate"].)
The summary judgment entered in favor of respondents is reversed, and costs on appeal are awarded to Rosas. The matter is remanded for further proceedings.
Turner, P. J., and Goodman, J.,
Berje Inc.; Citrus and Allied Essences Ltd.; Centrome, Inc., doing business as Advanced Biotech; O'Laughlin Industries, Inc.; O'Laughlin Industries Co., Ltd.; and O'Laughlin Tianjin Industries Co. each joined in BASF's motion for summary judgment. Elan Chemical Company, Inc., filed a separate motion for summary judgment.