NOT TO BE PUBLISHED IN OFFICIAL REPORTS
NARES, Acting P. J.
In this action for personal injuries allegedly sustained by exposure to mold in an office building, Regina Schueneman appeals after the trial court granted summary judgment to the defense on statute of limitations grounds. Resolving the statute of limitations issue in this case turns on whether sinusitis and/or other illnesses Schueneman suffered from the mold exposure in 2011 are "separate and distinct" and "qualitatively different" from a lung disorder—allergic pulmonary aspergillosis—her physician first definitively diagnosed in November 2014. (See Pooshs v. Philip Morris USA, Inc. (2011) 51 Cal.4th 788 (Pooshs).)
Whether Schueneman suffers from a single disease or separate and distinct, qualitatively different diseases is a medical issue requiring expert testimony. However, defendants submitted no expert declaration, excerpts from any physician's deposition, or any other expert opinion evidence on this issue. Accordingly, defendants failed to sustain their burden as the moving parties seeking summary judgment and, therefore, we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
A. Schueneman's Sinusitis
Respondents John Lively and Onie Lively (collectively Lively) are cotrustees of the Lively Trust, which owned certain commercial property in Escondido, California. Lively leased those premises to the California Department of Motor Vehicles (DMV) until May 2013.
Schueneman worked in the DMV's Escondido office. In 2010 there was a sewage spill in the building. Later the same year water pipes broke and the building sustained water damage.
In January 2010 Schueneman began experiencing headaches, coughing, and blurred vision. By November 2010 her symptoms worsened and she was unable to work. Several of her coworkers were also suffering from the same symptoms. In a timeline Schueneman prepared for one of her physicians, she stated that as of November 2010 she "knew then it had to be the building."
Before 2010, Schueneman never had a sinus problem. In December 2010 she had a severe sinus infection. One of her treating physicians wrote a letter to the DMV requesting the building be checked for mold.
In May 2011 Schueneman complained of sinus pain and blurred vision. A physician, Jason A. Kouri, M.D., diagnosed her as suffering from a "[r]ecurrent sinus infection . . . from mold exposure." In 2011 Schueneman saw workers cutting different areas of the walls "because of mold."
Schueneman continued to have persistent sinusitis through the summer of 2012. In October 2012 she complained of "chronic sinusitis due to the toxic work enviro[n]ment" caused by "the building I work in." In January 2013 her physician determined her condition was "permanent and stationary" and attributed her sinus condition to mold exposure, stating:
Schueneman stopped working at the DMV in February 2013 and in May 2013 underwent sinus surgery.
B. Lung Disease
In November 2013 Schueneman consulted a physician for "persistent respiratory symptoms." She was now experiencing shortness of breath, chest congestion, and exacerbation of asthma to the extent she required steroids. Schueneman was having coughing episodes lasting several minutes and required oxygen at home. Her physician diagnosed her condition as "chronic respiratory condition due to fumes and vapors." He noted that Schueneman's symptoms "compromising her upper respiratory and lower respiratory tract are suggestive of an allergic like process" that "may have a relation to mold or sewage exposure."
By December 2013 Schueneman had been hospitalized for breathing difficulties and again required oxygen at home. Physicians were administering high doses of prednisone, a steroid, for her "[c]hronic obstructive asthma with (acute) exacerbation" and "[c]hronic respiratory conditions due to fumes and vapors."
Timothy Killeen, M.D., who is board certified in internal and pulmonary medicine, first examined Schueneman in January 2014. At that time, she was coughing up reddish brown sputum. Dr. Killeen suspected Schueneman's lung condition was due to mold, a disease called allergic pulmonary aspergillosis. He was the first of her doctors to perform a bronchoscopy; however, the results were negative. Despite the negative test results, Dr. Killeen did not rule out pulmonary aspergillosis because "it is hard to culture Aspergillus."
From February through July 2014, physicians continued treating Schueneman for chronic respiratory problems. She was hospitalized for 12 days in February 2014 for pneumonia. Her treating physician diagnosed "[c]hronic respiratory conditions due to fumes and vapors." Some of her treating physicians thought she may have an autoimmune disorder. In May 2014 Schueneman presented with fatigue, headache, dark yellow sinus discharge, cough, wheezing, chest tightness and abdominal discomfort.
By November 2014 Schueneman had been hospitalized 12 times for chronic recurrent pneumonia and chronic obstructive pulmonary disease. That month, Dr. Killeen performed another bronchoscopy, which showed Schueneman had allergic pulmonary aspergillosis. In plain language, Dr. Killeen states Schueneman had mold growing in her lungs.
According to Dr. Killeen, the failure to perform bronchoscopy earlier prevented a definitive diagnosis of allergic pulmonary aspergillosis. As a result of the delayed diagnosis, physicians had not prescribed antifungal medication until after Schueneman had already sustained substantial lung damage. Dr. Killeen states that although allergic pulmonary aspergillosis was suspected early on, Schueneman was on high doses of steroids "which alters tests" and "makes it hard to diagnose, which explains the delay in efficient treatment." Before Dr. Killeen's definitive diagnosis in November 2014, Schueneman's treating physicians believed she was suffering from an autoimmune disease.
Schueneman's injuries worsened over time because her bronchial tubes were severally damaged. The longer it took to diagnose her as having allergic pulmonary aspergillosis, the more damage she suffered. In a motion seeking calendar preference in this court, Schueneman's physician submitted a declaration stating Schueneman currently needed 24-hour care, was receiving oxygen and, due to the heavy doses of steroids, she had suffered eight compression vertebra fractures.
C. Schueneman's Complaint
Schueneman commenced this action on January 29, 2015.
D. Defense Motion for Summary Judgment
Lively filed a motion for summary judgment on statute of limitations grounds. Based on excerpts from Schueneman's medical records and her interrogatory answers, Lively asserted that Schueneman knew her sinusitis was caused by exposure to mold in the DMV building no later than December 2011 when Schueneman filed a worker's compensation claim. Citing Davies v. Krasna (1975) 14 Cal.3d 502, 514 (Davies), Lively asserted that once Schueneman suffered this "actual and appreciable harm," the two-year limitations period in Code of Civil Procedure
Schueneman opposed the motion based on excerpts of her medical records and a declaration from Dr. Killeen. The thrust of the opposition was that Schueneman was not suing for sinusitis diagnosed in 2011, but for her pulmonary aspergillosis—and until Dr. Killeen's 2014 examinations, Schueneman did not know she had pulmonary aspergillosis from mold in Lively's building. Among several other arguments, Schueneman asserted her lung disease was "distinct from the common condition of chronic sinusitis" she experienced in 2011. Citing Pooshs, supra, 51 Cal.4th at page 792, Schueneman asserted the limitations period should commence in 2014. She also asserted Lively had "contributed to delay of the correct diagnosis by failing to warn of the presence of mold and the health hazard" and by "conceal[ing] that mold continued to exist in the work areas. . . ."
Before the hearing, the court issued a tentative ruling denying summary judgment. After an unreported hearing, the court confirmed its tentative ruling, but took "the strict liability issue under submission." However, two weeks later, without notice to counsel, the court reversed itself and granted summary judgment. Later, the court denied Schueneman's motion for new trial and on May 10, 2016, awarded Lively over $5,000 costs in an amended judgment.
I. LIVELY FAILED TO SUSTAIN HIS BURDEN ON SUMMARY JUDGMENT
A. The Standard of Review
Summary judgment is properly granted if there is no triable issue on any material fact and the moving party is entitled to judgment as a matter of law. (§ 437c, subd. (c); Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 847 (Eriksson).) We resolve ambiguities in favor of the party opposing summary judgment. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.)
When a defendant seeks summary judgment based on an affirmative defense, the defendant bears the initial burden to produce evidence establishing each element of the defense. (Fazio v. Fairbanks Ranch Country Club (2015) 233 Cal.App.4th 1053, 1057.) Where an affirmative defense contains an exception, a defendant must also negate the exception as part of its initial burden on summary judgment if the complaint alleges facts triggering potential applicability of the exception. (County of San Diego v. Superior Court (2015) 242 Cal.App.4th 460, 470 (County of San Diego).) If the defendant fails to meet his initial burden of showing entitlement to judgment as a matter of law, the burden does not shift to the plaintiff and the motion should be denied without regard to plaintiff's opposition. (Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 587.)
On appeal following the grant of summary judgment, we review the record de novo. (Eriksson, supra, 191 Cal.App.4th at p. 848.)
B. General Principles of Accrual and Statute of Limitations
Statutes of limitation begin to run when a cause of action accrues. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806 (Fox).) In general, a cause of action accrues when it is complete with all of its elements. (Ibid.) If the last element of the cause of action to occur is damage, the limitations period begins to run on the occurrence of "appreciable and actual harm, however uncertain in amount." (Miller v. Lakeside Village Condominium Assn. (1991) 1 Cal.App.4th 1611, 1622 (Miller).)
"Once the plaintiff has suffered actual and appreciable harm, neither the speculative nor uncertain character of damages nor the difficulty of proof will extend the limitations period." (Davies, supra, 14 Cal.3d at p. 514.) Generally, the extent of damage is not an element of a cause of action in tort. Thus, a plaintiff need not suffer her ultimate harm for the limitations period to start running. "'"[W]here an injury, although slight, is sustained in consequence of the wrongful act of another, and the law affords a remedy therefor, the statute of limitations attaches at once. It is not material that all the damages resulting from the act shall have been sustained at that time, and the running of the statute is not postponed by the fact that the actual or substantial damages do not occur until a later date. . . ."'" (Spellis v. Lawn (1988) 200 Cal.App.3d 1075, 1080-1081, italics omitted.)
Generally, once a cause of action has accrued and the statute of limitations has run, a plaintiff may not bring an action for later-incurred damages caused by the same wrongdoing. "[I]f the statute of limitations bars an action based upon harm immediately caused by [the] defendant's wrongdoing, a separate cause of action based on a subsequent harm arising from that wrongdoing would normally amount to splitting a cause of action." (Miller, supra, 1 Cal.App.4th at p. 1622.)
Miller, supra, 1 Cal.App.4th 1611 illustrates these general rules in the context of a claim for a single disease arising from exposure to mold. There, the plaintiff began to suffer from chronic allergies and asthma in 1983 due to mold in her condominium. (Id. at p. 1619.) She sued in 1986, seeking recovery for immune dysregulation, a disease she allegedly discovered only that year. (Id. at pp. 1616, 1619.) The appellate court held her complaint was time barred. (Id. at pp. 1623-1625.) Significantly, in Miller, the plaintiff's physician submitted a declaration stating the plaintiff always had one disease, "immune dysregulation," which first manifested in allergic reactions. (Id. at p. 1624, fn. 2.) Thus, Miller is a case where the plaintiff waited until the limitations period expired before suing for the one disease that she had developed from exposure to mold.
Statutes of limitation pose a conflict between two strong public policies. One favors granting repose for events that occurred in the distant past. The other favors merits-based disposition of legal claims. These general rules, as illustrated by Miller, supra, 1 Cal.App.4th 1611, are based on the policy that because discovering the full extent of one's injuries often takes many years, a rule that resets the clock every time a new injury is discovered would effectively eliminate the protections afforded by the statute of limitations. So long as the plaintiff remains alive, the possibility would often exist that he or she would suffer a new injury that is traceable to the long-ago wrongdoing, and thus the defendant would lose all possibility of repose.
However, the single injury rule creates an injustice in toxic exposure cases where an exposure can lead to two or more separate and distinct injuries or illnesses, one or more of which does not arise for years. The injustice stems from the fact that the plaintiff may be left with no remedy for the later, serious illness, no matter what she does. If she immediately sues for the minor injury and also alleges there is a possibility she may suffer other serious injuries in the future, she will be unsuccessful because a plaintiff must generally show more than a speculative possibility of future harm. (See Pooshs, supra, 51 Cal.4th at p. 802.) But if the plaintiff waits until she actually suffers from the latent disease, under the single injury rule it will be too late to sue. In short, initially the claim for the latent disease is speculative, and, when it is no longer speculative, it is time-barred. Such a result is manifestly unfair.
Recognizing the unfairness in applying the first-injury rule to toxic exposure cases, in Pooshs, supra, 51 Cal.4th 788, the California Supreme Court created an exception to the single injury rule in cases involving alleged toxic exposure with delayed manifestation of a latent disease. In Pooshs, plaintiff, a cigarette smoker for 35 years, filed her products liability and negligence lawsuit against a cigarette maker in January 2004, "less than a year after she was diagnosed with lung cancer." (Id. at p. 793.) However, the plaintiff did not file her lawsuit within a year of her first injury from cigarette smoking. To the contrary, she experienced her first injury in 1989, when "she was diagnosed with chronic obstructive pulmonary disease (COPD), which plaintiff knew was caused by her smoking habit." (Id. at p. 791.) Her second injury from smoking came in 1990 or 1991, when "plaintiff was diagnosed with periodontal disease, which she knew was caused by her smoking habit." (Ibid.)
The court in Pooshs, supra, 51 Cal.4th 788 held that notwithstanding the single-injury rule, plaintiff's lawsuit—filed 14 years after her first injury caused by smoking, and well outside the statute of limitations if it had started running then—was not barred. Specifically, the court held that two physical injuries, both caused by the same toxic exposure over the same time period, can "in some circumstances, be considered `qualitatively different' for purposes of determining when the applicable statute of limitations period begins to run. Specifically, when a later-discovered disease is separate and distinct from an earlier-discovered disease, the earlier disease does not trigger the statute of limitations for a lawsuit based on the later disease. . . ." (Id. at p. 792.)
C. Section 340.8
The parties agree that the statute of limitations applicable to this case is section 340.8. This statute states, "In any civil action for injury or illness based upon exposure to a hazardous material or toxic substance, the time for commencement of the action shall be no later than either two years from the date of injury, or 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, whichever occurs later."
The Legislature enacted section 340.8 to codify for toxic torts the delayed discovery rule. (Rosas v. BASF Corp. (2015) 236 Cal.App.4th 1378, 1390.) "'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.'" (Clark v. Baxter Healthcare Corp. (2000) 83 Cal.App.4th 1048, 1055, italics omitted.) "'[W]rong' is not used in a technical sense, but in a lay one." (Creekridge Townhome Owners Assn., Inc. v. C. Scott Whitten, Inc. (2009) 177 Cal.App.4th 251, 258.) A plaintiff discovers a cause of action when she "at least `suspects . . . that someone has done something wrong' to [her]." (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397.)
D. Lively's Contention
Lively's core argument is that Schueneman's chronic sinusitis, diagnosed no later than in 2011, constituted "actual and appreciable harm" triggering the running of the two-year statute of limitations in section 340.8 on her indivisible cause of action for mold-related injury. Lively asserts the only reasonable inference from Schueneman's filing of a workers' compensation claim for mold-related sinus injury in December 2011 is she then had a suspicion that someone had done something wrong. Accordingly, Lively contends Schueneman should have commenced her lawsuit by December 2013 at the latest—that is, within two years from when she had suffered appreciable and actual harm from exposure to mold and suspected someone had done something wrong. (Rivas v. Safety Kleen Corp. (2002) 98 Cal.App.4th 218, 229 [filing worker's compensation claim is "definitive proof" that plaintiff "had a suspicion that `someone ha[d] done something wrong'"].)
Moreover, Lively asserts Schueneman's lung disease, although not properly diagnosed until November 2014, is merely an uncertainty as to the amount or extent of her harm, which does not delay the limitations period. (Miller, supra, 1 Cal.App.4th at pp. 1624-1625.) Additionally, Lively contends that because any action for Schueneman's sinusitis is clearly time barred, she is also precluded from bringing a separate cause of action based on subsequent harm because that would amount to impermissibly splitting a single cause of action. (Id. at p. 1622.) Lively also contends that as a matter of law, the delayed discovery rule in section 340.8 does not apply because Schueneman knew of her injury (sinusitis) and by December 2011 suspected wrongdoing was its cause. Thus, there was no delayed discovery of the cause of action, but instead delayed discovery of the extent of her injuries. Any difficulty Schueneman experienced in discovering the additional lung damage could not delay the limitations period, because it had already started running.
On this record, Lively's argument is correct as far as it goes, but ultimately fails because it is missing an essential issue. In the trial court and again on appeal, Schueneman cites the statute of limitations exception established in Pooshs, supra, 51 Cal.4th 788, asserting she suffered two separate and distinct and qualitatively different injuries, and "the earlier disease does not trigger the statute of limitations for a lawsuit based on the later disease." (Id. at p. 792.) Schueneman admits she "may have had earlier injuries" but contends "they are distinguishable from the seriously debilitating injuries that started the actual running of the statute of limitations." She contends her illnesses "suffered in December  2011 were far different from the permanent disability she was later found to have in 2014." Specifically, on appeal Schueneman asserts her 2014 diagnosis of pulmonary aspergillosis is "distinct from the common condition of chronic sinusitis."
In response, Lively's respondents' brief does not discuss, attempt to distinguish, or even cite Pooshs, supra, 51 Cal.4th 788. Rather, he asserts Schueneman's argument fails because she "presented no evidence that she has separate injuries. . . ."
Lively's response begs the fundamental question—in this motion for summary judgment on statute of limitations grounds, was it Lively's burden to establish as a matter of law that Schueneman's injuries were not "separate and distinct" and not "qualitatively different" within the meaning of Pooshs, supra, 51 Cal.4th 788? Or instead, was it Schueneman's burden to offer admissible evidence creating a triable issue of fact that her injuries were separate and distinct?
A defendant moving for summary judgment has an initial burden to show the plaintiff's action has no merit, and it may sustain this burden by establishing a "complete defense" to the plaintiff's claims. (§ 437c, subds. (a), (p)(2).) In this case, Lively's defense is based on the two-year statute of limitations in section 340.8, subject to the exception established in Pooshs, supra, 51 Cal.4th 788 for latent diseases arising from exposure to toxic substances.
"[W]here[, as here,] `an affirmative defense contains an exception, a defendant must also negate the exception as part of its initial burden on summary judgment if, but only if, the complaint alleges facts triggering potential applicability of the exception.'" (County of San Diego, supra, 242 Cal.App.4th at p. 469.)
Asserting Schueneman's complaint is "devoid of any hint that she was suing for a separate and distinct injury," Lively contends he was not required to negate the Pooshs exception to the statute of limitations. He asserts, "To the contrary, [Schueneman's] complaint alleges that she was injured from mold exposure while working at the DMV, which injury she asserts led to her purported complete disability in 2013."
We disagree with Lively's assertions. Schueneman's complaint alleges, "On February 23, 2013, Plaintiff became completely disabled from work due to serious lung, nasal, and sinus infections and inflammations, and other serious and debilitating diseases as a proximate result of the mold exposure while working at the California DMV." Although it would have been clearer if Schueneman had explicitly alleged her lung and sinus conditions were "separate and distinct" and "qualitatively different," reading her complaint liberally and drawing all inferences in her favor as the party opposing summary judgment, as we must—the complaint sufficiently alleges facts triggering potential application of the latent-disease exception in Pooshs, supra, 51 Cal.4th 788 because the complaint alleges multiple injuries (e.g., sinus and lung diseases) that on their face plausibly suggest they are separate and distinct. (See Pooshs, supra, 51 Cal.4th at p. 793 [noting that it appears "plausible on its face" that COPD and lung cancer are separate and distinct].)
Absent a stipulation or binding admission (neither of which is in this record), determining whether allergic pulmonary aspergillosis is separate and distinct from sinusitis and/or Schueneman's other conditions is a medical issue that can only be resolved by expert opinion evidence. However, Lively offered no such evidence. Accordingly, as the moving party seeking summary judgment, Lively failed to sustain his burden of showing entitlement to judgment as a matter of law, and the summary judgment must therefore be reversed.
In supplemental briefing, Lively asserts he is unfairly prejudiced by the "belated injection into this case of a claim of separate and distinct injury." He contends the defense conducted "voluminous and expensive discovery," in which Schueneman "made no mention of `pulmonary aspergillosis' or any other particular facts or damage form that alleged disease [and] did not distinguish any disease from her bulk fact and damage claims." He asserts "the record reflects that [Schueneman] is not claiming the onset of a separate injury."
Assuming without deciding these representations are true, the remedy is not to affirm this erroneous summary judgment, but instead to afford Lively an opportunity to file a new motion for summary judgment, consistent with the law of the case effect of this decision. Nothing in this opinion precludes Lively from bringing such a motion.
Because we reverse on this ground, it is unnecessary to consider Schueneman's other assertions of error.
The amended judgment entered May 10, 2016, is reversed. Schueneman is entitled to costs incurred on appeal.
O'ROURKE, J. and DATO, J., concurs.