Lopez v. Sony Electronics, Inc.
Lopez v. Sony Electronics, Inc.
Opinion of the Court
Opinion
We are asked to resolve whether an action alleging personal injuries caused by prenatal exposure to toxic substances is governed by the statute of limitations set forth in Code of Civil Procedure section 340.4
Plaintiff and appellant Dominique Lopez, at age 12, by and through her mother and guardian ad litem Cheryl Lopez, brought an action against defendant and respondent Sony Electronics, Inc. (Sony), alleging that her prenatal exposure to toxic substances caused her to suffer birth defects and permanent injuries. Sony successfully argued in the trial court that plaintiffs action was time-barred under section 340.4, which expressly provides that actions for prenatal injuries are not tolled during the plaintiffs minority. Plaintiff appeals from the entry of summary judgment in favor of Sony, contending the correct statute of limitations applicable to her claims is section 340.8, under which her action would be timely.
We conclude section 340.4 governs plaintiff’s claims and that her action is time-barred. In so holding, we depart from our colleagues in the Sixth District who concluded that section 340.8 supplants the limitations period of section 340.4 for claims based on prenatal injuries caused by exposure to hazardous materials or toxic substances. (See Nguyen v. Western Digital Corp. (2014) 229 Cal.App.4th 1522 [178 Cal.Rptr.3d 897] (Nguyen).)
FACTUAL AND PROCEDURAL BACKGROUND
The material facts related to the time-bar are not in dispute. Plaintiff was born in April 1999, with numerous birth defects, including fusion of her cervical vertebrae, facial asymmetry, dysplastic nails, diverticulum of the bladder, and a misshapen kidney. She also suffers from developmental delays. Plaintiffs mother worked at a Sony facility in San Diego from 1978 through 2000, including during her pregnancy with plaintiff.
On January 6, 2012, plaintiff filed this action against Sony for negligence, strict liability, willful misconduct, and intentional misrepresentation. Plaintiff
Sony moved for summary judgment on the ground plaintiffs action was barred by section 340.4 which imposes a six-year statute of limitations for birth and prebirth injuries, and which also expressly provides there is no tolling of the limitations period under section 352
Plaintiff opposed Sony’s motion, arguing her action was subject to section 340.8, not section 340.4. While section 340.8 incorporates the shorter two-year limitations period of the general personal injury statute (§ 335.1), the limitations period may be tolled under section 352 during a plaintiff’s minority. Thus, plaintiff argued her action was timely because it was filed when she was still a minor. Plaintiff did not offer any evidence to dispute that her mother knew, since at least 2000, of the connection between her workplace exposures at Sony and plaintiff’s birth defects. Instead, plaintiff objected to the admissibility of the evidence presented by Sony on that issue (e.g., records from the workers’ compensation proceeding), and otherwise argued it was irrelevant because tolling under section 352 applied to an action under section 340.8, so she need not rely on the separate tolling afforded by the delayed discovery rule.
The trial court granted Sony’s motion, reasoning that section 340.4 applied and barred plaintiff’s action as a matter of law. Judgment in favor of Sony was entered thereafter on April 8, 2014. (Nguyen was not decided until Sept. 2014.)
This appeal followed.
DISCUSSION
The sole issue before us is one of statutory interpretation based on undisputed facts. We therefore exercise independent review. (Imperial
“The cardinal rule of statutory construction is to ascertain and give effect to the intent of the Legislature.” (Young v. Haines (1986) 41 Cal.3d 883, 894 [226 Cal.Rptr. 547, 718 P.2d 909] (Young); accord, Title Ins. & Trust Co. v. County of Riverside (1989) 48 Cal.3d 84, 95 [255 Cal.Rptr. 670, 767 R2d 1148] [“the intent of the Legislature is the end and aim of all statutory construction”].) Courts look first to the statutory language in attempting to glean legislative intent, giving the words their “ ‘usual and ordinary meaning.’ [Citation.]” (Imperial Merchant Services, supra, 47 Cal.4th at p. 387.) If the statutory language is clear and unambiguous, the plain meaning of the statute governs. (Vafi v. McCloskey (2011) 193 Cal.App.4th 874, 880 [122 Cal.Rptr.3d 608].)
Section 340.4 provides: “An action by or on behalf of a minor for personal injuries sustained before or in the course of his or her birth must be commenced within six years after the date of birth, and the time the minor is under any disability mentioned in Section 352 shall not be excluded in computing the time limited for the commencement of the action.”
Section 340.8, subdivision (a) provides: “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.”
If read separately and in isolation, both section 340.4 and section 340.8 are unambiguous on their face under the plain meaning rule. Both may be read to govern plaintiffs action for injuries sustained before her birth and for exposure to toxic substances. However, we do not construe statutory provisions in isolation. “Where, as here, we are called upon to interpret two seemingly inconsistent statutes to determine which applies under a particular set of facts, our goal is to harmonize the law [citation] and avoid an interpretation that requires one statute to be ignored.” (Chatsky & Associates v. Superior Court (2004) 117 Cal.App.4th 873, 876 [12 Cal.Rptr.3d 154].) “ ‘ “[E]very statute should be construed with reference to the whole system of law of which it is a part so that all may be harmonized and have effect. [Citations.]” ’ [Citation.]” (In re Michael G. (1988) 44 Cal.3d 283, 296 [243 Cal.Rptr. 224, 747 P.2d 1152] (Michael G.); accord, Fuentes v. Workers’ Comp. Appeals Bd. (1976) 16 Cal.3d 1, 7 [128 Cal.Rptr. 673, 547 P.2d 449].)
First, we discuss the statute of limitations applicable to prenatal injuries. Code of Civil Prodecure section 340.4 was enacted in 1992 (Stats. 1992, ch. 163, § 16, p. 731), but has its provenance in statutes enacted in 1872 and amended in 1941. The California Legislature first created a statutory cause of action for prenatal injuries in 1872. Civil Code former section 29 abrogated ‘“the common law rule that an unborn child has no independent existence and, therefore, no right of action for injuries suffered before its birth.” (Young, supra, 41 Cal.3d at p. 892.) ‘“As originally enacted, [Civil Code former section 29] applied to all actions which might be brought after birth and thus did not provide any single statute of limitations for these actions. The applicable statutes of limitations were set forth in other statutes, depending on the nature of the cause of action. Furthermore, [Code of Civil Procedure] section 352, also enacted in 1872, established a general rule that the statute of limitations for most actions was tolled during the plaintiff’s minority.” (Ibid., fn. omitted.)
In Scott v. McPheeters (1939) 33 Cal.App.2d 629, 631 [92 P.2d 678], the court suggested in dictum that an action for prenatal injuries would be tolled during the child’s minority. To clarify that was not the legislative intent, at the next regular session, the Legislature amended Civil Code former section 29 to include a six-year limitations period, running from the date of birth, for actions alleging prenatal injuries. (Stats. 1941, ch. 337, § 1, p. 1579; see also Olivas v. Weiner (1954) 127 Cal.App.2d 597, 599 [274 P.2d 476].) The Legislature also amended Civil Code former section 29 ‘“to state expressly that [Code of Civil Procedure] section 352 tolling did not apply to actions brought under that statute.” (Young, supra, 41 Cal.3d at p. 892, italics added.)
Then, in 1992, the Legislature moved the limitations period of Civil Code former section 29 to the Code of Civil Procedure and reenacted it, without
Now, we turn to the statute of limitations applicable to exposure to toxic substances. Section 340.8 was first enacted in 2004, introduced in the regular legislative session for 2003 and 2004 as Senate Bill No. 331 (Senate Bill No. 331). We granted Sony’s request to take judicial notice of the published legislative records for Senate Bill No. 331, including records and reports from both the Senate and Assembly Committees on Judiciary. The legislative records reveal a narrow and specific purpose for the enactment of section 340.8, having nothing to do with prenatal injuries.
Senate Bill No. 331 was described as an act to “codify the doctrine of ‘delayed discovery’ as it applies to the statute of limitations for filing a lawsuit for illness, injury or death caused by exposure to hazardous waste.” (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 331 (2003-2004 Reg. Sess.) as amended Apr. 29, 2003, p. 1.) The Senate Committee on Judiciary report explains that the only “existing law” to be affected by the enactment of the proposed new statute is the general personal injury limitations period codified at section 335.1. (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 331 (2003-2004 Reg. Sess.) as amended Apr. 29, 2003, p. 2.)
The Senate Committee on Judiciary explained the genesis of Senate Bill No. 331 and the “[sjtated need” for the new statute as follows: “Last year, the Legislature extended the statute of limitations from one year to two years [(§ 335.1)] for suits alleging personal injury or death due to the wrongful act of another. (SB 688 (Burton), Ch. 488, Stats, of 2002.) Supporters of that bill argued that the one-year statute was one of the shortest limitation periods in the nation for such cases, and that its brevity encouraged needless litigation by forcing plaintiffs to rush to court to protect their rights, whereas a longer time period would favor settlement of claims prior to litigation. [¶] With this bill, [the sponsor] seeks to build on SB 688’s extended limitations period by codifying the ‘delayed discovery’ doctrine as it applies to suits for personal injury caused by hazardous substances.” (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 331 (2003-2004 Reg. Sess.) as amended Apr. 29, 2003, p. 3, underscoring omitted.)
The reports and records from the Assembly Committee on Judiciary reflect the same narrow focus. (See, e.g., Assem. Com. on Judiciary, Rep. on Sen. Bill No. 331 (2003-2004 Reg. Sess.) as amended June 26, 2003, pp. 1-9.)
It was the holding in McKelvey v. Boeing North American, Inc., that the Legislature intended to override by enactment of section 340.8, in addition to codifying the applicability of the delayed discovery rule for toxic exposure cases generally. Jolly v. Eli Lilly & Co., Norgart v. Upjohn Co., and Clark v. Baxter Healthcare Corp. all concerned application of the common law delayed discovery rule with respect to the accrual of personal injury or wrongful death claims under former section 340, subdivision (3) (the former one-year limitations period for general personal injury claims). McKelvey v. Boeing North American, Inc. held media reports put plaintiffs on inquiry notice of the link between exposures and resulting injury, which the Legislature expressly disapproved by enacting section 340.8.
Plaintiff, relying primarily on Nguyen, argues that section 340.8 is the later-enacted, and more specific statute, which applies to “any” action for injuries based on exposure to toxic substances, and the statute was therefore intended to supplant section 340.4 in actions alleging prenatal injuries caused by exposure to toxic substances. We are not persuaded the Legislature intended to make such a big change in such an obscure way.
As the Supreme Court has explained, “[w]e do not presume that the Legislature intends, when it enacts a statute, to overthrow long-established principles of law unless such intention is clearly expressed or necessarily implied.” (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 199 [96 Cal.Rptr.2d 463, 999 P.2d 686].) It is well settled that “[t]he law shuns repeals by implication. [Citation.] In fact, ‘ “[t]he presumption against implied repeal is so strong that, ‘To overcome the presumption the two acts must be irreconcilable, clearly repugnant, and so inconsistent that the two
When section 340.8 was enacted in 2004, the six-year limitations period for prenatal injuries had been in existence for six decades, along with the corresponding provision that tolling under section 352 did not apply to extend the limitations period for actions alleging birth or prebirth injuries. The timeworn principles of statutory interpretation recited above simply do not support the conclusion that the Legislature intended to overthrow that longstanding law, without expressly saying so, and having expressed an entirely different purpose for enacting section 340.8. (See Whitman v. American Trucking Assns., Inc. (2001) 531 U.S. 457, 468 [149 L.Ed.2d 1, 121 S.Ct. 903] [rejecting claim that Clean Air Act (42 U.S.C. § 7401 et seq.) grants authority to the Environmental Protection Agency to consider costs in setting national air quality standards in the absence of clear statutory language that was the congressional intent; ‘“Congress . . . does not . . . hide elephants in mouseholes.”].)
Plaintiff’s contrived interpretation not only fails to give effect to the legislative intent behind both statutes as reflected in the legislative history, but it also fails to respect our mandate to harmonize conflicting statutes “ ‘ ‘“with reference to the whole system of law” ’ ” of which they are a part. (Michael G., supra, 44 Cal.3d at p. 296.)
In 1941, the Legislature struck a balance as to the appropriate limitations period for prenatal injury claims, settling on the relatively long six-year limitations period for injured minors to assert their claims, but protecting defendants against the assertion of stale claims by expressly prohibiting tolling during the period of minority which could result in a limitations period in excess of 20 years. In 1954, the common law delayed discovery rule was held to apply to actions for prenatal injuries, ameliorating any harsh effects of the prohibition on section 352 tolling. (Myers v. Stevenson (1954) 125 Cal.App.2d 399, 407 [270 P.2d 885]; see also Young, supra, 41 Cal.3d at pp. 892-893.)
In 2004, the Legislature enacted section 340.8 on the heels of its enactment, a year earlier, of a new two-year limitations period for general personal injury claims (§ 335.1). The Legislature plainly expressed that its purpose in
We are not persuaded by plaintiffs argument that we should read subdivision (d) of section 340.8 to mean the opposite of what it says. Subdivision (d) of section 340.8 provides: “Nothing in this section shall be construed to limit, abrogate, or change the law in effect on the effective date of this section with respect to actions not based upon exposure to a hazardous material or toxic substance.” Plaintiff argues the “clear import” of this language is that the Legislature intended to change the law in effect with respect to all claims based on exposure to toxic substances, including prenatal exposures. We read subdivision (d) to mean only that section 340.8 does not change any law except that it codifies the delayed discovery rule in personal injury cases based on toxic exposures that were previously governed by the two-year limitations period of section 335.1. Subdivision (d) states a limited purpose, not an expansive sweep.
Nor do we find any merit in plaintiffs reliance on Young, supra, 41 Cal.3d 883, as support for the notion that subdivision (d) of section 340.8 expresses a legislative intent to cover all personal injury claims arising from toxic exposures, including prenatal exposures. In Young, the Supreme Court was asked to determine whether section 340.4, or section 340.5 regarding medical negligence claims, governed an action alleging prenatal injuries arising from medical negligence. The court concluded that section 340.5 specified the applicable limitations period, reasoning that “section 340.5 is a later-enacted statute, intended to cover all personal injury claims arising from medical malpractice. That statute was adopted as a response to a perceived ‘major health care crisis in the State of California attributable to skyrocketing malpractice premium costs and resulting in a potential breakdown of the health delivery system . . . .’ [Citation.]” {Young, at p. 894.)
Central to the court’s analysis was the fact that section 340.5 was part of a comprehensive and “interrelated legislative scheme enacted to deal specifically with all medical malpractice claims” and “to treat all malpractice victims differently from other personal injury victims.” {Young, supra, 41 Cal.3d at p. 894.) Moreover, the statute contains express language pertaining to claims by minor plaintiffs. (§ 340.5 [“Actions by a minor shall be commenced within three years from the date of the alleged wrongful act except that actions by a minor under the full age of six years shall be commenced within three years or prior to his eighth birthday whichever provides a longer period. Such time limitation shall be tolled for minors for any period during which parent or guardian and defendant’s insurer or health
Unlike the medical malpractice statute of limitations construed in Young, section 340.8 was not enacted as part of a comprehensive legislative scheme. The statute contains no express language concerning minor plaintiffs. And, we repeat, the legislative history plainly demonstrates that the statute was only intended to codify the delayed discovery rule as to toxic exposure cases previously governed by the general personal injury statute (§ 335.1), and to reject the holding of McKelvey v. Boeing North American, Inc. It had a narrow focus and was not at all concerned with prenatal claims as to which section 335.1 did not apply.
Plaintiff further argues that in crafting section 340.8, the Legislature specifically used the broad and inclusive phrase ‘“any civil action . . . based upon exposure to a . . . toxic substance” in describing the scope of the statute, and carved out only two exemptions from that coverage in subdivision (c)(1). Section 340.8, subdivision (c)(1) provides: ‘“A ‘civil action for injury or illness based upon exposure to a hazardous material or toxic substance’ does not include an action subject to Section 340.2 or 340.5.” Section 340.2 governs claims related to asbestos exposure, and section 340.5 governs claims related to medical negligence. Plaintiff contends the omission of actions governed by section 340.4 in the list of exemptions defining the phrase ‘“any civil action” demonstrates that the Legislature intended to overthrow the limitations period of section 340.4 for actions for prenatal injuries caused by exposure to toxic substances. Plaintiff cites the rule of construction expressio unius est exclusio alterius, which provides that “ ‘where exceptions to a general rule are specified by statute, other exceptions are not to be implied or presumed.’ ” (Michael G., supra, 44 Cal.3d at p. 291.)
However, the rule “ ‘is inapplicable where its operation would contradict a discernible and contrary legislative intent. [Citation.]’ [Citations.]” (Michael G., supra, 44 Cal.3d at p. 291.) In Michael G., the court rejected the argument that the juvenile court’s broad authority to hold wards in contempt, pursuant to Welfare and Institutions Code section 213, had been impliedly proscribed by the Legislature’s enactment of two more-specific statutes (Welf. & Inst. Code, §§ 207, 601, subd. (b)), one of which enumerated the circumstances for the ‘“secure detention” of wards, omitting incarceration under section 213 as a sanction for contempt of court. (Michael G., at pp. 289-294.) Michael G. nevertheless refused to apply the rule of expressio unius est exclusio alterius, concluding it would be improper to infer a legislative intent to proscribe the juvenile court’s fundamental contempt power under section 213, a statute which had been around ‘“in some form for decades.” (Michael G., at pp. 293-294.)
DISPOSITION
The judgment entered in favor of defendant and respondent Sony Electronics, Inc. is affirmed. Defendant and respondent to recover costs on appeal.
All undesignated section references are to the Code of Civil Procedure.
Section 352, subdivision (a) provides: “If a person entitled to bring an action, mentioned in Chapter 3 (commencing with Section 335) is, at the time the cause of action accrued either under the age of majority or lacking the legal capacity to make decisions, the time of the disability is not paid of the time limited for the commencement of the action.”
Dissenting Opinion
Dissenting.—I respectfully dissent. I generally adopt the principled opinion written by Justice Márquez of the Sixth District in Nguyen v. Western Digital Corp. (2014) 229 Cal.App.4th 1522 [178 Cal.Rptr.3d 897] (Nguyen).
For the most part, my dissent accepts all the facts and legal authorities offered by the majority. There is no material dispute between the majority and dissent on the events underlying our review of the order granting summary judgment: The mother of plaintiff Dominique Lopez had worked in a manufacturing facility operated by defendant Sony Electronics, Inc., while pregnant with Dominique. Her mother was exposed to several teratogenic chemicals that caused Dominque’s birth defects. Teratogenic chemicals are chemicals that cause birth defects. (People ex rel. Brown v. Tri-Union Seafoods, LLC (2009) 171 Cal.App.4th 1549, 1556 [90 Cal.Rptr.3d 644].)
Nor is there any material disagreement between the majority and dissent on the relevant authorities that must be considered in reviewing the summary
A. Brief Review of the Applicable Statutes
1. Section 340.4. Section 340.4 deals with prenatal and birth injuries, was enacted in 1992, took effect on January 1, 1994, and continues in substance Civil Code former section 29. (Stats. 1992, ch. 163, §§ 16, 161, pp. 731, 842; 22 Cal. Law Revision Com. Rep. (1992).) Section 340.4 provides: “An action by or on behalf of a minor for personal injuries sustained before or in the course of his or her birth must be commenced within six years after the date of birth, and the time the minor is under any disability mentioned in Section 352 shall not be excluded in computing the time limited for the commencement of the action.”
Section 340.4 has a lengthy legislative bloodline. As enacted in 1872, Civil Code former section 29 provided: “A child conceived, but not yet born, is to be deemed an existing person, so far as may be necessary for its interests in the event of its subsequent birth.” No express private right of action was created by Civil Code former section 29 and, obviously, no statute of limitations was provided. At the time, section 352—also enacted in 1872— provided tolling for most actions while an injured party was a minor.
In Scott v. McPheeters (1939) 33 Cal.App.2d 629, 631 [93 P.2d 562], the appellate court held that Civil Code former section 29 created a cause of action for prenatal injuries. It also suggested in dictum that under Code of Civil Procedure section 352 the statute of limitations for prenatal injuries was
Although tolling during the period of minority under section 352 is expressly made inapplicable to section 340.4 actions, claims for prenatal injuries are subject to the delayed discovery rule, based on the actual or constructive knowledge of the child’s parents. (Young, supra, 41 Cal.3d at p. 890, fn. 4.) By case law, malpractice actions against health care providers based on prenatal injuries (no such claims are present here) are carved out of section 340.4 and are covered by the medical malpractice statute of limitations, section 340.5. (Young, at pp. 891-892, 894.)
2. Section 340.8. Section 340.8 deals with toxic torts, was enacted in 2003, and took effect on January 1, 2004. (Stats. 2003, ch. 873, p. 6398; Cal. Const., art. IV, § 8, subd. (c).) It provides:
“(a) 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. [¶] ■ ■ ■ [¶]
“(c) For purposes of this section:
“(1) A ‘civil action for injury or illness based upon exposure to a hazardous material or toxic substance’ does not include an action subject to Section 340.2 [the statute of limitations for asbestos exposure actions] or 340.5 [the medical malpractice statute of limitations].
“(2) Media reports regarding the hazardous material or toxic substance contamination do not, in and of themselves, constitute sufficient facts to put a*459 reasonable person on inquiry notice that the injury or death was caused or contributed to by the wrongful act of another.
“(d) Nothing in this section shall be construed to limit, abrogate, or change the law in effect on the effective date of this section with respect to actions not based upon exposure to a hazardous material or toxic substance.”
3. Minority Tolling under Section 340.8. Under section 352, actions subject to the statutes of limitation set forth in chapter 3, title 2, part 2 of the Code of Civil Procedure are tolled while the plaintiff is a minor. (§ 352; Nguyen, supra, 229 Cal.App.4th at p. 1540.) Because section 340.8 is found within that portion of the Code of Civil Procedure, section 340.8 actions are also subject to minority tolling. (Nguyen, at pp. 1540-1541.)
B. The Nguyen Decision
Central to this appeal is the reconciliation of sections 340.4 and 340.8 in cases presenting prenatal or birth injuries caused by toxic torts. Reconciliation may not be the best word because, on their face, the two statutes appear almost irreconcilable. A reasonable argument can be made that because section 340.4 covers prenatal injuries, the statute includes prenatal injuries from tortious exposure to toxic substances. Equally reasonable from facial inquiry is that because section 340.8 covers toxic torts, it also includes toxic torts causing prenatal injuries. Given that both statutes have superficial appeal, the judicial task is to determine whether there is anything in the language of the statutes that informs us which statute the Legislature intended to be paramount. That is essentially how Nguyen analyzed the issue. (Nguyen, supra, 229 Cal.App.4th at p. 1547.) Nguyen, which was decided after summary judgment was entered in this case, held that section 340.8, and not section 340.4, provides the limitations period applicable to actions for injuries caused by prenatal exposure to toxic substances.
The majority cites Nguyen but devotes little discussion of its analysis. Because I find the Sixth District’s opinion compelling, I address the decision in more detail.
The Nguyen court based its analysis on the plain language of section 340.8. (Nguyen, supra, 229 Cal.App.4th at pp. 1545-1548.) The court acknowledged that nothing in the statute or the legislative history mentioned section 340.4 by name or evidenced an intent to exclude toxic tort cases from its reach.
The Nguyen court found further support for its conclusion in the Legislature’s choice to exempt from section 340.8 two types of claims—those for asbestos exposure and those for professional negligence by health care providers. Those causes of action were subject to specific statutes of limitations—sections 340.2 and 340.5 which, respectively, deal exclusively with those two claims. The Legislature’s failure to include section 340.4 actions as an exception when it enacted section 340.8 supported the conclusion that, except for those claims expressly excluded, the Legislature intended section 340.8 to apply broadly to all other claims based on exposure to toxic substances, including those based on prenatal injuries. (Nguyen, supra, 229 Cal.App.4th at p. 1548.)
The Nguyen court also drew an analogy to our Supreme Court’s decision in Young, supra, 41 Cal.3d 886, which considered whether a minor’s action for medical malpractice that occurred before or at the time of birth was subject to section 340.4 and therefore timely under the discovery rule, or was untimely under section 340.5, which, with certain exceptions, requires minors under the age of six to sue by their eighth birthday. Although both provisions on their face appeared to govern {Young, at p. 894), the Young court was swayed by the fact that section 340.5 was the newer provision and was part of a comprehensive legislative scheme designed to address the medical malpractice insurance crisis. As a result, the later, more specific statute controlled. (Nguyen, supra, 229 Cal.App.4th at p. 1549, citing Young, at pp. 891-892, 894.)
Similar to Young, the Nguyen court noted that sections 340.8 and 340.4 each superficially appeared to govern the claims that Dominique now makes. Although section 340.8 may not have been part of a comprehensive statutory scheme to deal with claims for exposure to toxic substances, the Nguyen court found an analogous purpose in subdivision (d) of section 340.8, which provides that the statute shall not be construed to limit, abrogate, or otherwise change the laws in place when section 340.8 took effect, other than those
Upon careful analysis of the statute, the Nguyen court found the statutory language unambiguous. Accordingly it found it unnecessary to turn to the legislative history in order to construe section 340.8. (Nguyen, supra, 229 Cal.App.4th at p. 1550.) Even so, the Nguyen court saw nothing in the legislative history that altered its interpretation. The legislative history addressed only the Legislature’s intent to codify the discovery rule for toxic tort exposure cases, as well as abrogate an appellate court decision holding that media reports about the harmful substance might constitute inquiry notice under the delayed discovery rule. (Nguyen, at p. 1551.)
Although the section 340.8 legislative history did not mention section 340.4 or the intent to create an exception to that statute, it also failed to state that “the Legislature intended that a different limitations period apply if the exposure occurred before or during the plaintiff’s birth. In other words, there is no indication that the Legislature intended, and it makes no sense, for there to be a different discovery rule (e.g., regarding inquiry notice and media reports) depending on whether the toxic exposure occurred before or after birth. Nothing in the legislative history suggests that the Legislature intended that section 340.4 (prenatal injuries) rather than section 340.8 (toxic exposures), should apply to prenatal toxic exposure cases, or that section 352 should not apply to such cases.” (Nguyen, supra, 229 Cal.App.4th at p. 1551.)
C. Nguyen Is Correct and Its Holding Applies Equally Here
I agree with Nguyen that the plain language of section 340.8 shows that it supersedes section 340.4 where an action for prenatal or birth injuries is based on exposure to toxic or hazardous substances. It is a well-established rule of statutory construction that use of the term “any” means without limit and no matter what kind. (People v. Arias (2008) 45 Cal.4th 169, 187 [85 Cal.Rptr.3d 1, 195 P.3d 103]; California State Auto. Asso. Inter-Insurance Bureau v. Warwick (1976) 17 Cal.3d 190, 195 [130 Cal.Rptr. 520, 550 P.2d 1056] [term has been considered broad, general, and all-embracing since the earliest days of statehood].)
Giving “any” its customary interpretation, I conclude that when the Legislature said section 340.8 applies to “any” civil action for injuries caused
My conclusion is also bolstered by subdivision (d) of section 340.8, which states that nothing in that section “shall be construed to limit, abrogate, or change the law in effect on the effective date of this section with respect to actions not based upon exposure to a hazardous material or toxic substance.” (Italics added.) The Nguyen court held that this language showed a legislative intent to treat victims of toxic substance exposures differently from other personal injury victims, but did not expound upon its reasoning. (Nguyen, supra, 229 Cal.App.4th at p. 1550.)
I believe the full import of this language becomes apparent by holding it up to an analytical mirror and examining its corollary obverse: Section 340.8 does “limit, abrogate, and change the law in effect upon the effective date . . . with respect to actions” that are based on exposure to toxic substances. That language shows a clear intent to affect section 340.4, albeit by necessary inclusion, if not express iteration. The Legislature’s choice to specifically exempt asbestos exposure and medical malpractice claims from its reach, but no others, also supports my interpretation. (In re Michael G. (1988) 44 Cal.3d 283, 291 [243 Cal.Rptr. 224, 747 P.2d 1152] (Michael G.) [rule of statutory construction that where exceptions to a general rule are specified, other exceptions may not be implied or presumed]; Nguyen, supra, 229 Cal.App.4th at pp. 1546-1548; Steven S. v. Deborah D. (2005) 127 Cal.App.4th 319, 327 [25 Cal.Rptr.3d 482] [courts presume Legislature knows how to create an exception to statutory provisions, and where it does not do so, we presume it did not intend to do so].)
I agree with the majority that the legislative history of section 340.8 never mentions section 340.4 and focuses on the goal of codifying the delayed discovery rule as announced in three appellate decisions, while rejecting a narrow formulation of that rule in another.
Even if I considered the legislative history, it would still point us in the same direction. The Legislative Counsel’s Digest is the official summary of the legal effect of a bill and is relied upon by the Legislature throughout the legislative process. As a result, even though it is not binding, it is entitled to great interpretive weight. (Joannou v. City of Rancho Palos Verdes (2013) 219 Cal.App.4th 746, 759 [162 Cal.Rptr.3d 158].) The digest states that section 340.8 was intended to create “a separate statute of limitations for a civil action for injury or illness based upon exposure to a hazardous material or toxic substance other than asbestos, as specified.” (Legis. Counsel’s Dig., Assem. Amends. to Sen. Bill No. 331 (2003-2004 Reg. Sess.) as amended Sept. 8, 2003, italics added.) That statement is consistent with my interpretation: section 340.8 created a new statute of limitations for all toxic substance exposure actions except for those types of actions specifically excepted.
This point is reinforced by a senate committee bill analysis, which said that the bill clarified that it “does not apply to actions relating to [asbestos exposure or medical malpractice] and specifies that the bill does not limit, abrogate, or change the law in effect on the effective date of the bill with respect to actions not based upon exposure to a hazardous material or toxic substance.” (Sen. Rules Com., Off. of Sen. Floor Analyses, Unfinished Business Analysis of Sen. Bill No. 331 (2003-2004 Reg. Sess.) as amended Sept. 8, 2003, p. 3.) By tying together those two provisions—the exceptions for asbestos and medical malpractice actions and the effect on existing laws—this analysis also shows that section 340.8 was designed to have broad effect and apply to all other toxic substance exposure cases.
I also observe that if the Legislature had intended to adopt only a discovery rule for toxic tort cases, it could have simply amended section 335.1, which deals generally with personal injuries and which at that time applied to toxic torts. Instead, the Legislature adopted a new statute of limitations for exposure to hazardous materials and toxic substances, stated its intent that the new statute apply to any action for such exposure, and excluded from its ambit asbestos and medical malpractice causes of action.
If, as the majority concludes, the Legislature’s sole purpose in enacting section 340.8 was to make clear that media reports do not in themselves create inquiry notice in toxic tort cases, what purpose could there conceivably be in excluding from that rule cases in which the injury occurred prenatally or during childbirth? Was the Legislature intending that media reports do create inquiry notice in prenatal and birth toxic tort cases?
More fundamentally, that the Legislature would conclude that toxic tort claims should be subject to a period of limitation different than the general personal injury statute of limitation (§ 335.1) and other statutes is neither surprising nor absurd. On the contrary, it is historically quite understandable. As one commentator has observed, and our own experience undoubtedly reveals, “Toxic torts is a relatively new area of the law . . . .” (Eggen, The Synergy of Toxic Tort Law and Public Health: Lessons From a Century of Cigarettes (2008) 41 Conn L.Rev. 561, italics omitted.) Not only is the law relatively new, the nature of the harm from exposure to toxic and hazardous substances differs significantly from more typical personal injuries. “Insidious disease cases are fundamentally different from . . . snapshot torts . . . .” (Green, The Paradox of Statutes of Limitations in Toxic Substances Litigation (1988) 76 Cal. L.Rev. 965, 972-973 (Green).)
The development of special statutes of limitations for toxic torts is also a recent phenomenon. The first of these statutes—section 340.2 for asbestos exposure—was enacted in 1979. Before 1979, toxic tort claims were governed by the then one-year statute of limitations for personal injuries. The cause of action accrued at the time of the wrongful act. (Nelson v. Flintkote Co. (1985) 172 Cal.App.3d 727, 730-731 [218 Cal.Rptr. 562].)
Even before the effective date of section 340.2, appellate courts recognized that considerations not present in traditional personal injury actions required the statute of limitations for toxic torts to be treated differently than traditional claims. Velasquez v. Fibreboard Paper Products Corp. (1979) 97 Cal.App.3d 881 [159 Cal.Rptr. 113] (Velasquez) was the first case in California to apply a discovery rule to the accrual of a cause of action for a toxic tort. Even though there was no intervening change in law and the then applicable statute of limitations was silent on the subject, the court relied in part on federal law and found strong policy reasons for the discovery rule. “We agree that in a negligence or strict liability action, discovery is the appropriate test for determining accrual of a cause of action for a progressive disease [asbestosis].” (Id. at pp. 887-888.)
After section 340.2 was enacted, the courts were presented with whether that statute was to be applied retroactively. The Court of Appeal in both Blakey v. Superior Court (1984) 153 Cal.App.3d 101, 105 [200 Cal.Rptr. 52] and Puckett v. Johns-Manville Corp. (1985) 169 Cal.App.3d 1010, 1016 [215 Cal.Rptr. 726] answered the question in the affirmative. The Legislature “intended the special statute to be remedial in purpose, subject not only to liberal construction but to retroactive application in a manner which would encompass the causes of action of as many victims of asbestosis as possible.” (Puckett, at pp. 1015-1016.)
A third Court of Appeal opinion upholding the retroactive application of section 340.2 noted that some of the traditional policy reasons for statutes of limitations were not necessarily present in toxic tort cases. “Moreover, the traditional justifications for statutes of limitations do not apply here since
As I see it, section 340.8 is just another extension of the Legislature’s intent to treat toxic tort cases differently from other personal injury actions. It should be applied here.
I would reverse the order granting summary judgment.
Appellant’s petition for review by the Supreme Court was granted August 24, 2016, S235357. Werdegar, J., did not participate therein.
This is not to say that the underlying facts will never be disputed, only that because summary judgment was granted solely on statute of limitations grounds, for the present appeal there is no dispute about the factual claims underlying plaintiff’s lawsuit.
All undesignated statutory references are to the Code of Civil Procedure.
In denying a petition for rehearing, the Supreme Court stated that the Court of Appeal’s discussion of section 352 was not “necessary to the decision and it does not affect the soundness of the conclusion reached by the District Court of Appeal.” (Scott v. McPheeters, supra, 33 Cal.App.2d at p. 640.)
The facts of Nguyen are substantially similar to ours, but have no particular relevance to our analysis. In brief, the plaintiff sued in 2010 when she was 16, alleging that in 1994 her then-pregnant mother was exposed to various teratogenic chemicals while working for the defendant.
While I acknowledge that section 340.8 is not part of a comprehensive scheme, nor is section 340.4 part of a comprehensive scheme.
The Legislature said it intended to disapprove the holding in McKelvey v. Boeing North American, Inc. (1999) 74 Cal.App.4th 151 [86 Cal.Rptr.2d 645] (media reports establish inquiry notice), and to codify the delayed discovery rule as described in Norgart v. Upjohn Co. (1999) 21 Cal.4th 383 [87 Cal.Rptr.2d 453, 981 P.2d 79]; Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103 [245 Cal.Rptr. 658, 751 P.2d 923]; and Clark v. Baxter Healthcare Corp. (2000) 83 Cal.App.4th 1048 [100 Cal.Rptr.2d 223], (Legis. Counsel’s Dig., Assem. Amends. to Sen. Bill No. 331 (2003-2004 Reg. Sess.) as amended Sept. 8, 2003, p. 1.)
Under the interpretation I propose, section 340.4 still has much life left to it. Prenatal and birth injuries can occur through many forms of negligent and intentional acts that fall outside the scope of medical malpractice or toxic substance exposures, and those acts remain subject to section 340.4. Automobile accidents, premises liability, and assaults all come to mind.
By “snapshot torts” the author gave as examples “shootings, and streetcar and occupational accidents” probably because he was discussing the development of the statute of limitations for personal injury claims in the early 20th century. (Green, supra, at p. 972.) Easily added are automobile accidents, simple assaults and batteries, and other impact torts.
At the time, the one-year personal injury statute of limitations was former section 340, subdivision (3). The applicable statute of limitations is now two year's and is found in section 335.1.
When Velasquez was filed, section 340.2 had been enacted but was not yet effective, so the appellate court was interpreting the then one-year' personal injury statute of limitations of former section 340, subdivision (3). (See Nelson v. Flintkote Co., supra, 172 Cal.App.3d at pp. 730-731.)
Reference
- Full Case Name
- DOMINIQUE LOPEZ, a Minor, Etc., Plaintiff and Appellant, v. SONY ELECTRONICS, INC., Defendant and Respondent
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