Filed 10/31/13 Hakimjavadi v. Getinge, USA CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


AHMAD HAKIMJAVADI et al.,
         Plaintiffs and Appellants,
                                                                     A134939
v.
GETINGE, USA, INC.,                                                  (San Francisco City & County
                                                                     Super. Ct. No. CGC-10-503562)
         Defendant and Respondent.


         Plaintiffs Ahmad and Behjat Hakimjavadi appeal the judgment entered following
the trial court’s order granting summary judgment in favor of defendant and respondent
Getinge, USA, Inc. (Getinge) on plaintiffs’ complaint against Getinge for personal injury,
breach of implied warranty and loss of consortium. The trial court awarded summary
judgment in favor of Getinge because plaintiffs filed their complaint after the statute of
limitations had expired. We shall affirm.
                                                   BACKGROUND
         Plaintiffs1 filed their complaint on September 14, 2010. According to the
allegations of the complaint, Ahmad and Behjat are husband and wife and were married
in Iran. Before plaintiffs moved to the U.S.A., Ahmad was a licensed dentist in Iran from
1995 to 2005. From 2005–2007, Ahmad worked as a dental assistant in Concord, during
which time he passed his national board dental exam and applied to a dentist program at
         1
        For ease of reference, and meaning no disrespect, in the course of this opinion
we shall refer to Ahmad and Behjat Hakimjavadi jointly as “plaintiffs” and refer to each
individually by their first name.
                                                             1
the University of Pacific (UOP) in order to become a fully licensed dentist. In October
2007, Ahmad was hired by UOP to work at its San Francisco location as a sterilization
technician. As such, his main duty was to sort the used dental instruments and load them
into auto washers to sterilize the equipment; this process entailed the regular use of three
types of detergents, viz., acid detergent, alkaline detergent and Powercon. From time to
time, the auto washers leaked detergent-filled water onto the floor and released aerosol
fumes during the sterilization process, thereby exposing Ahmad to Powercon and other
detergents. Ahmad was unaware of the health effects of inhaling the fumes from these
detergents. At some point, Ahmad started developing pain in his wrists and elbows and
numbness in his right fingers. Also, an urologist diagnosed him with kidney stones. On
September 19, 2008, Dr. Rachel Dotson diagnosed Ahmad with asthma, found his
symptoms were aggravated by chemicals and fumes and advised Ahmad that he should
be moved to a location where he would not be exposed to chemicals and fumes. In July
2010, Dr. Sue Lessin diagnosed Ahmad with occupational asthma, autoimmune thyroid
disease and memory loss.
       In the first cause of action for strict liability, the complaint alleged Powercon was
manufactured by Getinge, sold to UOP prior to September 18, 2008, defective at the time
of its manufacture because the product and accompanying warnings and instructions
failed to warn of its dangerous propensities, and that Getinge knew or should have known
Powercon posed a medical risk of causing occupationally-induced asthma. The
complaint further alleged the auto washers manufactured by Getinge were also defective
because they leaked solvents and detergents such as Powercon. In addition, the
complaint alleged causes of action for breach of implied warranty and loss of consortium,
and prayed for damages and medical expenses according to proof at trial.
       In January 2011, Getinge filed an answer to complaint, generally denying
plaintiffs’ causes of action and asserting multiple affirmative defenses. Getinge’s second
affirmative defense stated that the complaint was barred by the applicable statutes of
limitation. Subsequently, Getinge filed a motion for summary judgment, contending the


                                              2
complaint was barred by the two-year statute of limitations for personal injury actions
because the undisputed facts showed Ahmad was aware, or should have been aware upon
the exercise of reasonable diligence, of his injury and its cause by mid-2008 at the latest.
         Plaintiffs opposed the motion for summary judgment, contending there was a
triable issue of fact as to when the two-year statute of limitations began to run and
asserting the statute of limitations was triggered on September 17, 2008,2 when Dr.
Dotson first diagnosed Ahmad with occupationally-related asthma.
         The trial court held a hearing on the motion for summary judgment on
December 12, 2011. On January 18, 2012, the trial court filed an order granting
Getinge’s motion for summary judgment, stating, “After full consideration of the . . .
papers, evidence, and authorities submitted by the parties, as well as the argument at the
hearing, the Court finds that the statute of limitations was triggered on [Ahmad’s] visit
with Dr. Dotson on August 7, 2008.” Notice of entry of judgment was filed on
February 8, 2012, and plaintiffs filed a timely notice of appeal on March 8, 2012.
                                           DISCUSSION
         The statute of limitations for an action for injury to an individual caused by the
wrongful act or neglect of another is two years. (See Code of Civ. Proc., § 335.1.)3
Furthermore, “[i]n 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.” (§ 340.8, subd. (a).)

         2
         The complaint alleges this diagnosis occurred on September 19, 2008, but the
record indicates the correct date is September 17, 2008. Any discrepancy has no bearing
on the outcome here.
         3
             Further statutory references are to the Code of Civil Procedure unless otherwise
noted.

                                                 3
       Section 340.8 codified California’s discovery rule, as the rule is explained in Jolly
v. Eli Lilly & Co. (1988) 44 Cal.3d 1103 (Jolly) and Clark v. Baxter Healthcare Corp.
(2000) 83 Cal.App.4th 1048 (Clark). (See Historical and Statutory Notes, 13C West’s
Ann. Code Civ. Proc. (2006 ed.) foll. § 340.8, p. 248.) “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. [T]he
limitations period begins once the plaintiff has notice or information of circumstances to
put a reasonable person on inquiry. . . . A plaintiff need not be aware of the specific facts
necessary to establish the claim; that is a process contemplated by pretrial discovery.
Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she
must decide whether to file suit or sit on her rights. So long as a suspicion exists, it is
clear that the plaintiff must go find the facts; she cannot wait for the facts to find her.”
(Jolly, supra, 44 Cal.3d at pp. 1110–1111 [internal citations, footnote and quotation
marks omitted, italics in original].)
       In reviewing a grant of summary judgment based on the statute of limitations, our
task is to identify the issues framed by the pleadings and “determine whether only one
legitimate inference may be drawn from [the undisputed facts] 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 p. 1112.]” (Clark, supra, 83 Cal.App.4th
at p. 1055.)
       In this regard, the key issue framed by the pleadings is whether Ahmad suffered
injury as alleged, including “numbness, tingling, blurred vision, headaches, excessive
tiredness, asthma,” caused by inhaling fumes from chemical detergents released in
aerosol form from the auto washers during operation, or released from detergent-filled
water that spilled from the auto washers onto the floor of the facility. Pertinent to that
issue, the undisputed facts show Ahmad was hired by UOP as a sterilization technician in
October 2007. His main duty as a sterilization technician was to sort used dental


                                               4
instruments and load them into the auto washers to sterilize the equipment. The auto
washers were supplied to UOP by Getinge. During the course of his duties, Ahmad
regularly utilized an acid detergent, an alkaline detergent and Powercon detergent, all
supplied by Getinge to UOP. Ahmad complained about water spilling from the auto
washers on several occasions and every time a person responded to the problem. Ahmad
also noticed a problem with the drain system in the sterilization room; the drain system
could not handle discharge from all three auto washers at once, resulting in spillage.
Ahmad also complained multiple times about the ventilation system in the sterilization
room; the room was always humid and he thought the ventilation system was insufficient
to handle three auto washers running all the time in a confined space.
       The undisputed facts also show Ahmad began to complain about injuries
associated with his work in the sterilization room some time before August 7, 2008.
Indeed, according to Behjat’s deposition testimony, Ahmad began complaining about the
auto washers in late 2007, a few months after he began working at UOP. According to
Behjat, Ahmad complained the machines were giving him headaches and said, “the smell
[was] bothering him.” Also, Behjat said Ahmad complained the machines gave him a
burning sensation in his eyes and she noticed “[h]e came home with . . . red eyes.”
       Ahmad’s time frame differed slightly; in his deposition, he stated he began to
complain to Behjat about physical ailments resulting from his work at UOP after an
incident that occurred on BART on March 6, 2008. A few weeks after the BART
incident, he would come home after work and complain to Behjat that the conditions at
work made his eyes burn, gave him a cough and made him fatigued.
       Ahmad described the BART incident in his declaration opposing summary
judgment. He stated, “[o]n March 6, 2008, I had some form of a breathing attack on the
BART train to work. I could not [find] breath. This was the first time I had ever had
such an incident in my life. I went to the Emergency Room that day . . . .” Ahmad
further stated that at the emergency room he was diagnosed with anxiety which he did not
attribute to work, but to his son’s illness with cancer. However, the discharge


                                             5
instructions Ahmad received from the hospital after treatment at the emergency room
stated, “[y]ou have been diagnosed by your caregiver as having chest wall pain.” It
further stated, “[y]our present problem may be from anxiety and emotional distress.”
       The record shows Ahmad also suffered ailments not encompassed in this suit. He
began to develop pain in his right wrist and arm on June 27, 2008, and was working a
light duty schedule until July 21, stopped work on that date due to a kidney stone
condition and was off work on disability leave through September 2008. Ahmad was
sent to Dr. Rachel Dotson, a pulmonary specialist, for evaluation after a CAT scan in
connection with his kidney stone condition revealed nodules at the base of his lungs. In
her deposition, Dr. Dotson stated she first saw Ahmad on August 7, 2008. At that time,
Ahmad complained he had been suffering shortness of breath over the past six months
and had experienced “one or two episodes” due to shortness of breath during that time
frame. Ahmad also had hemoptysis (the coughing up of blood or of blood-stained
sputum from the bronchi, larynx, trachea, or lungs).4 Dr. Dotson asked Ahmad if he had
any known exposure to chemicals and he replied that he “may be exposed” while
working in the sterilization room at UOP. Dr. Dotson thought the shortness of breath and
chest tightness experienced by Ahmad might be caused by asthma. Asked whether she
discussed that with him, she stated she ordered a pulmonary function test for asthma, and
when she orders a test it is her standard practice to tell the patient why she is ordering the
test, and she had no reason to believe she strayed from her standard practice in treating
Ahmad.
       Dr. Dotson saw Ahmad for a followup appointment on September 17, 2008,
immediately after Ahmad took a pulmonary function test. In her report of that date to
Ahmad’s primary physician, Dr. Dotson states, Ahmad “has not had any further episodes
of hemoptysis, but continues to have an occasional cough, productive of scant yellow
sputum. He has occasional wheezing, but has not had any more attacks of shortness of
breath . . . . While he was away from work to study for the board exam, he felt much

       4
           (See http://en.wikipedia.org/wiki/Hemoptysis.)
                                              6
better from a respiratory standpoint. He is fairly certain that the chemicals and fumes that
he has been exposed to at work aggravate his symptoms.” Also, Dr. Dotson stated,
Ahmad’s “pulmonary function tests show a borderline ratio and an elevated residual
volume which is consistent with mild obstruction and airtrapping. In addition, he does
have expiratory wheezing on exam. This is consistent with a diagnosis of asthma. He
may simply have adult-onset asthma or this may be more of a reactive airways disease
picture due to fume and chemical exposure at work.”
       On September 19, 2008, Dr. Dotson wrote a letter on Ahmad’s behalf addressed
“To Whom It May Concern.” The letter stated in pertinent part, “Mr. Hakimjavadi has
recently been diagnosed with asthma. His asthma symptoms are aggravated by chemicals
and fumes at his current workplace. Please relocate the patient to a position where he is
not exposed to these fumes and chemicals.”
       The foregoing facts are all undisputed. Considered in the context of the key issue
framed by the pleadings, the undisputed facts are “susceptible of only one legitimate
inference”—by August 7, 2008, at the latest, Ahmad was on inquiry notice that
conditions at work might be causing the headaches, burning eyes, fatigue and shortness
of breath he had been suffering over the prior six months or so. (Jolly, supra, 44 Cal.3d
at p. 1112.) Accordingly, under the discovery rule, the two-year statue of limitations was
triggered on August 7, 2008, at the latest; therefore, the complaint, filed in September
2010, was time barred and summary judgment was properly granted. (See id. at pp.
1110–1111 [“statute of limitations begins to run when the plaintiff suspects or should
suspect that her injury was caused by wrongdoing [i.e.,] . . . once the plaintiff has notice
or information of circumstances to put a reasonable person on inquiry.”] [Internal
citations & quotation marks omitted; first italics added, second in original].)
       Plaintiffs, however, assert the undisputed facts show the statute of limitations was
triggered on September 17, 2008, when Ahmad was actually diagnosed with asthma by
Dr. Dotson. Specifically, plaintiffs submit Ahmad did not sustain “actual and
appreciable” damage until his asthma diagnosis because without such diagnosis, “there


                                              7
was no treatment, no meaningful medical bills, no lost days of work—only nominal
damages.” Here, plaintiffs rely on the rule that the statute of limitations does not begin to
run “before plaintiff possesses a true cause of action, by which we mean that events have
developed to a point where plaintiff is entitled to a legal remedy, not merely a symbolic
judgment such as an award of nominal damages.” (See Davies v. Krasna (1975) 14
Cal.3d 502, 513 (Davies); see also Budd v. Nixen (1971) 6 Cal.3d 195, 200, superseded in
irrelevant part by § 340.6 [holding that limitations period on plaintiff’s legal malpractice
action did not begin until plaintiff had suffered “appreciable harm” and “mere breach of
. . . duty, causing only nominal damages, speculative harm, or the threat of future harm—
not yet realized—does not suffice to create a cause of action for negligence”].)
       However, the Davies court clarified that “although a right to recover nominal
damages will not trigger the running of the period of limitation, the infliction of
appreciable and actual harm, however uncertain in amount, will commence the statutory
period. Under present authority, neither uncertainty as to the amount of damages nor
difficulty in proving damages tolls the period of limitations.” (Davies, supra, 14 Cal.3d
at p. 514, italics added.) Here, whereas Ahmad was not diagnosed with asthma until
September 17, 2008, there is no question that on or before August 7, 2008, Ahmad
suffered appreciable and actual harm induced by conditions at work, including coughing,
burning sensations in his eyes, fatigue and shortness of breath, and hemoptysis. Thus, the
“nominal damages” rule acknowledged in Davies has no application here.
       Also, whereas plaintiffs acknowledge Ahmad related his fatigue, cough, and
burning eyes to his work conditions, they assert he was unsure whether the injury he
suffered in the BART incident was related to the work place. On that basis, plaintiffs
contend “there remains a triable issue of fact as to when Ahmad became aware that the
entire spectrum of symptoms[] could reasonably be connected to the Getinge products at
work.” We disagree. Any reasonable person who suffered fatigue, coughing, and
burning eyes, and associated those symptoms with work place conditions, would also be
suspicious that shortness of breath experienced during the same time frame might also be


                                              8
associated with the same work place conditions. (See Jolly, supra, 44 Cal.3d at p. 1111
“plaintiff need not be aware of the specific ‘facts’ necessary to establish the claim; that is
a process contemplated by pretrial discovery [and] [s]o long as a suspicion exists, it is
clear that the plaintiff must go find the facts; she cannot wait for the facts to find her”.)
       Finally, relying on cases such as Clark, and Nelson v. Indevus Pharmaceuticals,
Inc. (2006) 142 Cal.App.4th 1202 (Nelson), plaintiffs contend that even if Ahmad
suspected his injuries were related to the work place, he was not placed on notice of any
wrongdoing by Getinge until he was diagnosed with asthma in September 2008.
Pertinent here is the rule noted by the Clark court that under California law “it is not
enough to commence the running of the limitations period when the plaintiff knows of
her injury and its factual cause (or physical cause). Rather, the plaintiff must be aware of
her injury, its factual cause, and sufficient facts to put her on inquiry notice of a negligent
cause. [Citation.]” (Clark, supra, 83 Cal.App.4th at p. 1057, italics added.) Applying
this rule, the Clark court reversed summary judgment in favor of manufacturers who
produced and supplied latex gloves used by plaintiff nurse in the course of her
employment. The court reasoned that although plaintiff knew the fact of her injury (an
allergy to natural latex) and its cause (latex gloves), “triable issues of fact have been
raised regarding her knowledge or awareness that a defendant’s wrongdoing [such as
adding toxic chemicals to the latex] may have affected the product, latex gloves, that was
giving rise to her allergies.” (Id. at p. 1059.) Along the same lines, plaintiffs contend
they have raised a triable issue of fact that they were unable to link Ahmad’s injuries to
Getinge’s products until Ahmad was actually diagnosed with asthma. The analogy to
Clark fails, however. Ahmad admitted in his deposition that before Dr. Dotson
diagnosed him with asthma he believed the asthma-like symptoms he was suffering were
connected to his work. Moreover, both Ahmad and Behjat testified that Ahmad would
come home and complain the machines and fumes were giving him headaches and a
burning sensation in his eyes. Thus, in contrast to Clark, the undisputed facts here



                                               9
demonstrate plaintiffs had sufficient facts to put them “on inquiry notice of a negligent
cause” of Ahmad’s injuries. (Id. at p. 1057.)5
                                       DISPOSITION
       The judgment is affirmed. Appellants shall bear costs on appeal.




                                                  ______________________
                                                   Sepulveda, J.*


We concur:


______________________
 Margulies, Acting P.J.

______________________
 Banke, J.




* Retired Associate Justice of the Court of Appeal, First Appellate District, Division
Four, assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.




       5
         Nor does Nelson, supra, 142 Cal.App.4th 1202 aid plaintiffs. In Nelson, where it
was undisputed plaintiff did not know about the danger of the Fen-phen prescription diet
drug before Spring 2002, the appellate court reversed summary judgment in favor of the
manufacturer and rejected the manufacturer’s “constructive suspicion” argument that
plaintiff was on inquiry notice long before 2002 because of the negative publicity the
drug had received in the media. (See id. at pp. 1205–1208.) Patently, Nelson is factually
inapposite to the case at bar.
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