Opinion
NOT TO BE PUBLISHED
San Francisco City and County Super. Ct. No. CGC05448385
Reardon, Acting P.J.
Plaintiff Madonna Meadors appeals from summary judgment granted in favor of defendants Laci Le Beau Corporation, Natrol, Inc., General Nutrition Corporation, and Albertson’s, Inc. (collectively defendants) in an action for personal injuries allegedly caused by plaintiff’s consumption of Super Dieter’s Tea (SDT). The primary question on appeal is whether the trial court properly concluded there was no triable issue of fact on the statute of limitations defense and that as a matter of law defendants were entitled to judgment. Finding no error, we affirm.
I. PROCEDURAL AND FACTUAL BACKGROUND
Meadors filed her personal injury action on January 6, 2006. The gravamen of the complaint is the claim that defendants’ failure to adequately warn about the dangers of SDT, a purported “all natural” herbal beverage. According to the complaint, defendants knew that SDT contained “dangerous and unsafe laxative[s] and diuretics” that were “habit forming[,]” but defendants failed to warn consumers about the hazards of SDT use. As a result, plaintiff suffered injuries to her colon, which subsequently required the surgical removal of her colon on January 12, 2005.
According to the allegations in the complaint, the facts in the parties’ separate statements which are basically undisputed, and other testimony that is not disputed, Meadors began drinking SDT in 1987. She drank SDT “religiously” every night to assist in bowel regularity. In 2002, after 15 years of using SDT, Meadors began to experience prolonged bouts of constipation. In February 2002, Meadors was referred to a gastroenterologist, Terence Heywood, M.D. At the time of the consultation, Meadors told Dr. Heywood that she was laxative dependent; she also indicated that she had been drinking SDT and had a long history of constipation. Dr. Heywood believed that Meadors’s laxative use contributed to the decreased motility in her colon and he recommended that she undergo a colonoscopy. Dr. Heywood explained that if he determined Meadors was suffering from slow-transit constipation, a potential therapeutic remedy would be a colectomy.
On March 28, 2002, Dr. Heywood performed a colonoscopy on Meadors, which revealed a dark stain on her colon known as melanosis coli. Dr. Heywood advised Meadors to stop drinking SDT because it contained senna, a laxative stimulant that causes melanosis coli, as well as possible neurological damage in the colon. From this conversation, Meadors understood that senna could damage her colon. At that point, Meadors believed SDT was contributing to her colon problems and she stopped drinking it.
Approximately one week after learning that she had melanosis coli, Meadors contacted her sister and discussed the diagnosis; Meadors’s sister had originally recommended that Meadors take SDT for constipation relief. Following this discussion, Meadors’s sister conducted Internet research about SDT, which indicated that SDT was a dangerous product. Meadors and her sister discussed the Internet articles; Meadors received a copy of the articles sometime before the end of 2003. Meadors then began wondering if her current colon problems were associated with her past consumption of SDT.
After Dr. Heywood conducted a diagnostic marker test, he confirmed that Meadors was suffering from slow-transit constipation. On July12, 2002, Meadors called Dr. Heywood and inquired about a surgical referral for a colectomy. Dr. Heywood explained that a surgical evaluation could not be completed until Meadors underwent a colon motility evaluation. On July 26, 2002, Meadors underwent a rectal workup, the results of which recommended biofeedback treatments.
After the rectal evaluation, Dr. Heywood referred Meadors to a surgeon, Steven Freshman, M.D. On September 5, 2002, Dr. Freshman examined Meadors and opined that she was laxative dependent and suffering from chronic constipation. Dr. Freshman discussed the option of a colectomy with Meadors, but recommended pursuing conservative measures first and referred her for biofeedback treatments.
In March 2003, Meadors underwent six biofeedback sessions, which revealed that she needed the dual therapy of laxative pills and deep breathing in order to move her bowels. Meadors had bowel movements that occurred five to six times a week without problem, but she also had episodes of irregularity associated with pain and “emotional overlay.”
On April 3, 2003, Meadors consulted with a psychotherapist. The therapist’s notes from the consultation indicated that Meadors was in the process of “deciding” whether or not to “file a lawsuit against the company w/damaging tea.” By the end of July 2003, Meadors believed that she could not have a bowel movement without the use of a stimulant.
In 2004, Meadors again consulted with Dr. Freshman, who concluded that she was a good candidate for a colectomy. On January 12, 2005, Meadors’s colon was surgically removed. Meadors then filed the instant action on January 6, 2006.
Defendants moved for summary judgment on the ground that the action was time-barred under the applicable statute of limitations. In opposition, Meadors argued that her colectomy and ensuing complications constituted a later-manifesting and “separate” injury, which raised a triable issue as to whether her complaint was timely filed. In granting summary judgment, the trial court explained that Meadors “certainly” had inquiry notice that her colon problems were caused by SDT, irrespective of whether she knew the exact cause of each symptom or diagnosis.
II. DISCUSSION
A. Standard of Review
In reviewing a grant of summary judgment, an appellate court employs the same process as the trial court in determining whether, as a matter of law, summary judgment was appropriate. (Clark v. Baxter Healthcare Corp. (2000) 83 Cal.App.4th 1048, 1054 (Clark); Miller v. Lakeside Village Condominium Assn. (1991) 1 Cal.App.4th 1611, 1620 (Miller). Specifically, “[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.]” (Clark, supra, 83 Cal.App.4th at p. 1054.)
Finally, “[w]hile resolution of the statute of limitations issue is normally a question of fact, where the uncontradicted facts established through discovery are susceptible of only one legitimate inference, summary judgment is proper. [Citation.]” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112 (Jolly).)
B. Statute of Limitations Defense
1. Applicable Law
Civil actions may only be commenced within the periods prescribed by law. (Code Civ. Proc., § 312.) Generally, there is a two-year limitations period to file suit for personal injuries. (See §§ 335.1, 340.8.) Under the common law rule, the statute of limitations commences when the last element essential to a cause of action occurs. If the last element is damage or injury, the statute of limitations begins to run on the occurrence of “appreciable and actual harm” that consists of more than nominal damages. (Davies v. Krasna (1975) 14 Cal.3d 502, 514 (Davies); Miller, supra, 1 Cal.App.4th at pp. 1622-1624.)
All further undesignated statutory references are to the Code of Civil Procedure.
Thus, under the common law rule, a cause of action for personal injury generally accrues from the date of the injury. (Jolly, supra, 44 Cal.3d at p. 1109.) However, “[a]n 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.]” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807 (Fox).) As Fox explains, “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.]” (Ibid.) Under the discovery rule, articulated in Jolly, “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.... [T]he limitations period begins once the plaintiff ‘ “ ‘ has notice or information of circumstances to put a reasonable person on inquiry....’ ” ’ [Citations.] A plaintiff need not be aware of the specific ‘facts’ necessary to establish the claim; that is a process contemplated by pretrial discovery.” (Jolly, supra, 44 Cal.3d at pp. 1110-1111, fn. omitted, italics omitted.) Jolly furthernotesthat in the context of determining a plaintiff’s suspicion of “wrong,” “wrongdoing,” and “wrongful” conduct, those terms are used in their lay understanding. (Id. at p. 1110, fn. 7.) It is the plaintiff’s burden to establish delayed discovery. (Fox, supra, 35 Cal.4th at p. 803.)
Meadors contends that section 340.8 governs the instant case. Section 340.8, subdivision (a) provides, in part, as follows: “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.”
According to Meadors, the trial court erroneously applied section 331.5, by concluding this statute was ostensibly the same as section 340.8 for purposes of the delayed discovery rule. However, the legislative history of section 340.8 indicates that it was enacted to codify the delayed discovery rule articulated in Jolly, supra, 44 Cal.3d 1103, Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, and Clark, supra, 83 Cal.App.4th 1048. (See Historical & Statutory Notes, 13C West’s Ann. Code Civ. Proc. (2006 ed.) foll. § 340.8, p. 248.) Moreover, Jolly and its progeny were decided under former section 340, subdivision (3), now covered by section 335.1. (See Historical & Statutory Notes, 13C West’s Ann. Code Civ. Proc. (2006 ed.) foll. § 340, p. 79; see also Jolly, supra, 44 Cal.3d at pp. 1109-1110; Norgart v. Upjohn Co., supra, 21 Cal.4th at p. 390; Clark, supra, 83 Cal.App.4th at p. 1053.) In any event, the parties concede that, for purposes of this appeal, the delayed discovery rule is the same whether it is triggered by section 331.5 or section 340.8.
We now turn to the merits of Meadors’s claims. In analyzing these issues, we are “required to examine the undisputed facts to determine whether only one legitimate inference may be drawn from them regarding the amount of notice or information of circumstances that would put a reasonable layperson on inquiry about potential wrongdoing that harmed her, such as will begin the running of the limitations period. (Jolly, supra, 44 Cal.3d at pp. 1110-1112.)” (Clark, supra, 83 Cal.App.4th at p. 1055.)
2. Analysis
The first step in our analysis requires us to segregate the personal injury claims. According to Meadors, her slow-transit constipation and colectomy complications are separate injuries with separate accrual dates. She further maintains that the cause of her slow-transit constipation was unknown until shortly before she filed the instant action.
As the California Supreme Court explained in Fox, “[I]f a plaintiff’s reasonable and diligent investigation discloses only one kind of wrongdoing when the injury was actually caused by tortious conduct of a wholly different sort, the discovery rule postpones accrual of the statute of limitations on the newly discovered claim.” (Fox, supra, 35 Cal.4th at p. 813.) In such cases, the key issue is whether “a reasonable investigation at that time would... have revealed a factual basis for that particular cause of action.” (Id. at p. 803, italics added.) Applying that principle, Fox held that the plaintiff’s later-discovered cause of action for products liability against one defendant did not necessarily accrue at the same time as her cause of action for medical malpractice against another defendant, her surgeon. (Id. at pp. 802-803.)
Likewise, in Grisham v. Philip Morris U.S.A., Inc. (2007) 40 Cal.4th 623 (Grisham), the California Supreme Court declined to extend the “appreciable harm rule... when there is an earlier manifesting economic injury and a later manifesting physical injury, because such an extension would be inconsistent with the discovery rule. [¶]... [¶]... This rule would violate the essence of the discovery rule that a plaintiff need not file a cause of action before he or she ‘ “has reason at least to suspect a factual basis for its elements.” [Citations.]’ ” (Id. at pp. 644-645.)
The rule to be derived from Fox and Grisham is that the accrual of a cause of action is not triggered by knowledge of a different type of harm. In other words, although the discovery of appreciable injury will commence the statute of limitations as to that injury, it does not necessarily bar a claim based on a later manifesting injury of a different type. (See Fox, supra, 35 Cal.4th at pp. 802-803; Grisham, supra, 40 Cal.4th at pp. 643-644.)
Similar accrual principals have been recognized in other contexts, in decisions predating Fox and Grisham. (See, e.g., Davies, supra, 14 Cal.3d at p. 514 [statute of limitations commences when plaintiff incurred earlier economic injury based on intellectual property theft, not later injury of same type]; Miller, supra, 1 Cal.App.4th at p. 1622 [plaintiff cannot sue on later developed physical injuries when earlier physical injuries are appreciable]; Zambrano v. Dorough (1986) 179 Cal.App.3d 169, 174 [cause of action did not accrue as to later injury because loss of reproductive capacity was qualitatively different type of injury than initial misdiagnosis]; Martinez-Ferrer v. Richardson-Merrell, Inc. (1980) 105 Cal.App.3d 316, 322, 327 [knowledge of dermatitis did not trigger statute of limitations as to later-developed cataracts].) Davies, which first announced the appreciable harm rule, was concerned that a plaintiff not delay bringing an action until there was “a more certain proof of damages” (Davies, supra, 14 Cal.3d at p. 515), did not address whether an appreciable injury would bar a suit based on a later-discovered injury of a different type.
In Grisham, the California Supreme Court explained that although the rule against splitting a cause of action is not an aspect of the statute of limitations, “[t]hese two rules may intersect... when a single wrongdoing gives rise to two or more different injuries, manifesting at different times, [thus] raising the question whether the two injuries are invasions of two different primary rights.” (Grisham, supra, 40 Cal.4th at p. 642.) However, based on the circumstances of that case, an earlier economic injury and a later manifesting physical injury, the court left open the question regarding “whether and under what circumstances two different physical injuries arising out of the same wrongdoing can give rise to two separate lawsuits, or whether the two injuries... [could] be conceived of as invading two different primary rights.” (Grisham, supra, 40 Cal.4th at p. 643.)
In Pooshs v. Phillip Morris USA, Inc. (9th Cir. 2009) 561 F.3d 964, 966-967, the Ninth Circuit certified two questions to the California Supreme Court for decision regarding the applicable statute of limitations for two separate physical injuries caused by the same wrongdoing.
The facts of this case, however, do not compel a finding that Meadors’s slow-transit constipation was so qualitatively different from her initial symptoms of chronic constipation as to be treated as a different injury for purposes of accruing a separate cause of action. Meadors claimed that her laxative dependence, resulting from her longtime consumption of SDT, was the alleged cause of all the symptoms. The colectomy was not a later developed injury, but was a treatment necessitated by the decreased motility in Meadors’s colon caused by prolonged exposure to laxatives. Meadors’s inability to have an independent bowel movement and her chronic constipation were early manifestations of the later-diagnosed slow-transit constipation, which ultimately required the removal of her colon.
We conclude that Meadors’s discovery in March 2002 that SDT was contributing to her colon problems started the statute of limitations running on her tort causes of action. However, even with the benefit of tolling, as of April 2003, Meadors had a factual basis to suspect wrongdoing. (Fox, supra, 35 Cal.4th at p. 813.) By this time, Meadors had been diagnosed with melanosis coli, which was attributed to her use of senna, the laxative ingredient in SDT; she had been informed that senna could lead to neurological damage in the colon and had been advised to stop drinking SDT, which she did stop in March 2002; she had reviewed Internet materials regarding the dangers of SDT and began to wonder if her colon problems were related to SDT; she had undergone biofeedback testing to determine whether she was a good candidate for a colectomy, and had discussed the possibility of a colectomy with two doctors on at least two occasions. Then, on April 3, 2003, she consulted with a psychotherapist, who noted that Meadors was in the process of “deciding” whether or not to “file a lawsuit against the company w/damaging tea.”
On this record, we find that “reasonable minds can draw only one conclusion” (Miller, supra, 1 Cal.App.4th at p. 1624), namely that Meadors had suffered appreciable and actual harm by April 2003. Since Meadors filed her complaint in January 2006, the action is barred.
C. Other Issues
1. Meadors’s Declaration
Meadors contends that the trial court erred in disregarding her declaration submitted in opposition to the motion for summary judgment. We disagree. In granting the summary judgment motion, the trial court did not completely disregard Meadors’s declaration. Rather, the trial court sustained defendants’ objections as to those paragraphs in Meadors’s declaration that were inconsistent with her prior sworn testimony. The gist of Meadors’s declaration is that she did not know that SDT caused her slow-transit constipation until after she met with her attorney and that her April 2003 reference to bringing a lawsuit related only to the melanosis coli and not the slow-transit constipation. These statements directly contradict Meadors’s deposition testimony, in which she acknowledged that she first formed the opinion that SDT caused her constipation and colon problems when Dr. Heywood advised her about the effects of SDT on her colon.
Long ago, in D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 22 (D’Amico), the California Supreme Court held that a party cannot create a triable issue of material fact by submitting a declaration in opposition to a summary judgment motion that contradicts that party’s prior sworn deposition testimony. This rule was recently examined by the court in Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510 (Scalf). There, the court explained that “[f]or summary judgment purposes, deposition answers are simply evidence. Subject to the self-impeachment limitations of D’Amico, they are considered and weighed in conjunction with other evidence. They do not constitute incontrovertible judicial admissions as do, for example, concessions in a pleading [citations], or answers to requests for admissions, which are specially designed to pare down disputed issues in a lawsuit.” (Scalf, supra, 128 Cal.App.4th at p. 1522.)
The Scalf court further explained that “the cases are clear that summary judgment should not be granted on the basis of ‘tacit admissions or fragmentary and equivocal concessions.’ ” (Scalf, supra, 128 Cal.App.4th at p. 1523.) The court reasoned that “[w]hile the D’Amico rule permits a trial court to disregard declarations by a party which contradict his or her own discovery responses (absent a reasonable explanation for the discrepancy), it does not countenance ignoring other credible evidence that contradicts or explains that party’s answers or otherwise demonstrates there are genuine issues of factual dispute.” (Scalf, supra, 128 Cal.App.4th at pp. 1524-1525, italics omitted; see also Wright v. StangManufacturing Co. (1997) 54 Cal.App.4th 1218, 1224-1225, fn. 2 [“ ‘ “summary judgment should not be based on tacit admissions or fragmentary and equivocal concessions, which are contradicted by other credible evidence” ’ ”].)
In this case, Meadors’s prior deposition testimony was neither tacit nor equivocal with respect to her understanding of the side effects of SDT. Moreover, in her declaration Meadors did not provide any credible evidence to support her assertion that she had only recently learned about the cause of her slow-transit constipation. The cases cited by Meadors in support of the proposition that the trial court erred in disregarding the challenged portions of her declaration do nothing to further her position. (See Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 592-593 [denial of summary judgment reversed where plaintiff’s prior admissions were clear and unequivocal and not susceptible to contradiction by subsequent affidavit purporting to create triable issue of fact]; Leasman v. Beech Aircraft Corp. (1975) 48 Cal.App.3d 376, 382-384 [summary judgment affirmed where facts alleged in plaintiff’s subsequent declaration were evasive and irrelevant]; King v. Andersen (1966) 242 Cal.App.2d 606, 610 [plaintiff’s contradictory affidavit did not create a triable issue of fact].)
Another case cited by Meadors, Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64 (Scheiding), is similarly inapposite. There, a defendant in an asbestos case failed to engage in meaningful discovery as to the basis of the plaintiff’s claims against it, and then moved for summary judgment on the ground that the plaintiff had no evidence supporting a case against the defendant. (Id. at pp. 67, 80, 82.) In reversing summary judgment granted in favor of the defendant, the appellate court refused to extend the doctrine of judicial admission in a case involving an evidentiary void created by the lack of meaningful discovery. (Id. at pp. 80-81.) In so holding, the court explained that “the duty to answer completely only extended so far as the reasonable ambit of the questions which were asked. The plaintiff had no duty to volunteer information that was not requested.” (Id. at p. 80.) Based on that record, the Scheiding court concluded it would be unreasonable to infer that the plaintiff could not present any other evidence to link the defendant to the asbestos-related injuries. (Id. at p. 81.)
Here, unlike in Scheiding, there was no evidentiary void with respect to defendants’ alleged liability such that Meadors was entitled to present additional evidence in support of her opposition to summary judgment. Rather, ample evidence was presented that Meadors first formed the opinion that SDT was contributing to her colon problems as early as March 2002.
In sum, we conclude the trial court properly disregarded the portions of Meadors’s declaration that contradicted her prior deposition testimony and discovery responses.
2. Attorney’s Declaration
Meadors also contends that the trial court erred in excluding the declaration and accompanying exhibits of her attorney, Christopher E. Grell. In his declaration, Grell professed that he was an expert in the dangers of SDT and submitted numerous articles reflecting his opinion. The trial court ruled that the declaration and exhibits were inadmissible for lack of foundation.
On appeal, Meadors fails to establish the admissibility of this evidence. Indeed, she presents no argument at all on this particular issue in her opening brief. (See Bullock v. Philip Morris USA, Inc. (2008)159 Cal.App.4th 655, 685 [“appellant must affirmatively demonstrate error through reasoned argument, citation to the appellate record, and discussion of legal authority”]; People ex rel. Dept. of Alcoholic Beverage Control v. Miller Brewing Co. (2002) 104 Cal.App.4th 1189, 1200 [“appellant must present a factual analysis and legal authority on each point made or the argument may be deemed waived”].) Accordingly, we conclude Meadors has waived this issue on appeal.
Meadors briefly addresses this issue in her reply brief. Even assuming this late-raised claim is cognizable on appeal (see Authority for California Cities Excess Liability v. City of Los Altos (2006) 136 Cal.App.4th 1207, 1216, fn. 2), Meadors has not established reversible error.
To the extent Meadors purports to appeal from the denial of her motion to reconsider, we similarly find this issue to be waived.
III. DISPOSITION
The judgment is affirmed. Defendants are entitled to their costs on appeal.
We concur: Sepulveda, J., Rivera, J.