Metropolitan News-Enterprise


Thursday, August 25, 2016


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Supreme Court to Resolve Conflict Over Delayed-Discovery Rule in Toxics Cases


By a MetNews Staff Writer


The state Supreme Court yesterday agreed to decide whether a statute applying the delayed-discovery rule to claims for exposure to toxic substances or hazardous materials applies to claims for prenatal injuries.

The justices, at their weekly conference in San Francisco, voted 6-0 to review the May 13 ruling by Div. Eight of this district’s Court of Appeal in Lopez v. Sony Electronics, Inc. (2016) 247 Cal. App. 4th 444.

That court, in a 2-1 decision, held that Code of Civil Procedure §340.8—which allows a plaintiff to sue up to two years from date of discovery of an injury, or of the physical cause of the injury, or of sufficient facts to put a reasonable person on inquiry notice, and which is tolled during the plaintiff’s minority—did not apply.  

The panel affirmed Los Angeles Superior Court Judge Frederick Shaller’s order dismissing an action against Sony Electronics, Inc. as time-barred under §340.4, which limits the time in which to sue for birth and prenatal injuries to six years, and is not tolled during minority. The high court’s 6-0 decision to hear the case will enable it to resolve an express conflict with the Sixth District decision in Nguyen v. Western Digital Corporation (2014) 229 Cal.App.4th 1522, which applied §340.8 in finding a similar claim to be timely.

Justice Kathryn M. Werdegar was absent from conference and did not participate in the vote.

The suit against Sony was brought by Cheryl Lopez in 2012 on behalf of her daughter Dominique, who recently turned 17. Dominique suffers from multiple birth defects and from developmental delays, which her mother attributes to exposure to toxics while working for Sony during her pregnancy.

Cheryl Lopez worked at a Sony facility in San Diego from 1978 to 2000. Her complaint seeks to hold the company liable for negligence, strict liability, willful misconduct and intentional misrepresentation.

Shaller granted Sony’s motion for summary judgment on statute of limitations grounds in April 2014, six months before the Sixth District decided Nguyen.

Justice Elizabeth Grimes, writing for Div. Eight, cited legislative history in concluding that the intent of §340.8, which was enacted in 2004, was to codify that existing law relating to delayed discovery applied to toxics cases. In doing so, she explained, the Legislature disapproved contrary language in one of several Court of Appeal decisions on the subject, by adding specific language to the effect that media coverage alone would not put a potential plaintiff on notice of a claim.

Given that the six-year limitations period for prenatal injury claims had been on the books for six decades before §340.8 was enacted, and there was no reference to such claims in the text or legislative history of the bill, it must be concluded that there was no intent to change the prior law as to such claims, Grimes wrote.

She noted that the statute includes a subdivision reading:

“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.”

The plaintiff, she said, was arguing “that we read subdivision (d)…to mean the opposite of what it says.”

Dissenting Justice Laurence Rubin argued that Nguyen reached the correct result:

“My disagreement with the majority is in the final conclusion that it reaches: Even though section 340.8 deals specifically with toxic torts and was enacted after section 340.4, section 340.8 does not mean what it says and is trumped by the shorter statute of limitations of section 340.4 for prenatal and birth injuries. This is so even though, as the majority observes, section 340.4 has its genesis in the 19th century when claims for toxic torts were generally unknown.”

In other conference action, the justices left standing Div. Eight’s June 7 ruling in Terry v. Morgan Lewis & Bockius, LLP, B262463. The panel held, in an unpublished opinion, that the plaintiff, a legal secretary who represented herself on appeal, lacked a triable cause of action for retaliation.

The plaintiff claimed that the employing law firm transferred her from a partner’s desk to an assignment working for two associates, in retaliation for her earlier, unsuccessful suit alleging she was paid less than promised and denied medical leave.

The trial and appellate courts held that even if the transfer was retaliatory, it wasn’t actionable because it was not an adverse employment action, and because it occurred more than a year before she filed her administrative claim. The courts rejected her arguments that the transfer was an adverse action because it affected her future prospects for advancement, and that it was part of a continuing violation of the Fair Employment and Housing Act, which would have made the suit timely. 


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