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Clark v. Baxter Healthcare Corp.9/26/2000
hargeable with taking action to file suit based on the facts he knew is not suitable for disposition on summary judgment.)
Due to a dearth of record evidence of admitted suspicion of wrongdoing, Clark's case is distinguishable from Norgart, supra, 21 Cal.4th 383 and Jolly, supra, 44 Cal.3d 1103. The discovery rule here allows the statute of limitations to begin to run "when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her." (Id. at p. 1110.) Here, there is evidence in the record to support a reasonable inference that Clark's latex allergies did not perforce lead her to suspect that the latex gloves might have been defectively manufactured in some respect. Although the statute of limitations may be applied to bar an action based upon harm immediately caused by Defendants' wrongdoing, in a case in which no timely filing has been made in relation to the immediate harm, this case does not support such an analysis. (Miller v. Lakeside Village Condominium Assn., supra, 1 Cal.App.4th at p. 1622.) Rather, Clark may not be deemed at this point to have been placed on notice, through her allergies, of potential Defendant wrongdoing. The record could support an inference that she did not become aware of a potential wrongfulness component of her cause of action until more information than the existence of her allergies placed her on inquiry notice and then was actually gained. Under the analyses of Jolly, Norgart and Miller, we conclude that triable material issues of fact remain as to the limitations issue.
In their Petition for Rehearing, defendants express the fear that our reasoning in this opinion represents a departure from the objective standards established in Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110-1111 (Jolly) and Norgart v. Upjohn Co. (1999) 21 Cal.4th 383 (Norgart) for determining when the limitations period in such a case begins to run. No such departure is intended or achieved in this respect. Rather, our application of limitations law is consistent with the Supreme Court's caveat in Norgart, supra, 21 Cal.4th 383 that a plaintiff, under a reasonable person standard, need only suspect a factual basis for the elements of her cause of action in order to discover its existence. (Id. at p. 410, fn. 8.) In this case, under these peculiar circumstances, it cannot yet be determined as a matter of law when the limitations period began to run. Further factual development is required.
DISPOSITION
The summary judgment entered in favor of defendants is reversed. Costs are awarded to plaintiff.
CERTIFIED FOR PUBLICATION
WE CONCUR:
KREMER, P. J.
NARES, J.
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