1

Filed 5/21/15

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

ISMAEL ROSAS,

Plaintiff and Appellant,

v.

BASF CORPORATION et al.,

Defendants and Respondents.

 B257127

 (Los Angeles County Super. Ct. 

 No. BC400974)

APPEAL from a judgment of the Superior Court of Los Angeles County, Amy D. 

Hogue, Judge. Reversed and remanded. 

Metzger Law Group, Raphael Metzger, Kimberly A. Miller, Kathryn A. Saldana, 

Kenneth A. Holdren, for Plaintiff and Appellant. 

Schiff Hardin, John N. Scholnick, Amy M. Rubenstein, Kathleen A. Stimeling, for 

Defendant and Respondent BASF Corporation. 

Wilson Elser Moskowitz Edelman & Dicker, Thomas C. Corless, Josephine C. 

Lee-Nozaki; Cray Huber Horstman Heil & Vanausdal, Daniel K. Cray, Scott D. Pfeiffer, 

for Defendant and Respondent Berje Inc.

Booth, Jason M. Booth, Emily J. Atherton, for Defendant and Respondent Citrus 

and Allied Essences Ltd. 

Horvitz & Levy, David M. Axelrad, Dean M. Bochner; Lewis, Brisbois, Bisgaard 

& Smith, Peter L. Garchie, Ruben Tarango; Sedgwick, Craig S. Barnes, Robert Kum, for 

Defendant and Respondent Centrome, Inc.
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Arnett Law Group, Daniel J. Arnett, Kurt B. Drain; Wood, Smith, Henning & 

Berman, Tracy M. Lewis, for Defendant and Respondent Elan Chemical Company, Inc. 

Gordon & Rees, Miles D. Scully, Jason F. Meyer, J. Todd Konold, Kara Persson, 

for Defendant and Respondent Emoral, Inc. 

WFBM, Karen M. Sullivan, Sadaf A. Nejat, for Defendant and Respondent 

O’Laughlin Industries, Inc.

Alston & Bird, Peter Masaitis, Jesus J. Torres, for Defendants and Respondents

O’Laughlin Industries Co., Ltd. and O’Laughlin Tianjin Industries Co. 

___________________
2

Plaintiff and appellant Ismael Rosas appeals from judgments entered after the trial 

court granted summary judgment in favor of defendants and respondents BASF 

Corporation; Berje Inc.; Citrus and Allied Essences Ltd.; Centrome, Inc., dba Advanced 

Biotech; Elan Chemical Company, Inc.; Emoral, Inc.; O’Laughlin Industries, Inc.; 

O’Laughlin Industries Co., Ltd.; and O’Laughlin Tianjin Industries Co.1 He also appeals 

the order denying his postjudgment motion for relief and reconsideration. 

The result on appeal turns on whether the evidence2is susceptible to only one 

legitimate inference supporting the conclusion that, as a matter of law, Rosas was aware 

of his injury and facts that would lead a reasonable person to suspect a wrongful cause for 

that injury. The trial court concluded that a two-year statute of limitations began to run 

on Rosas’s claims in 2003, because the undisputed evidence demonstrated he was 

hospitalized with an unknown disease that he suspected was caused by exposure to a 

particular chemical at his work in a food flavoring plant. We conclude the evidence is 

susceptible to more than one legitimate inference, and that it is a question of fact for the 

jury to determine whether the facts known to Rosas before November 2006 were enough 

to put a reasonable person on inquiry notice that his lung disease was caused by the 

wrongful act of another. Accordingly, we reverse the trial court’s order granting 

summary judgment and remand for further proceedings. 

 

1 Defendant and respondent BASF Corporation filed a respondent’s brief, to which 

defendants and respondents Berje Inc.; Citrus and Allied Essences Ltd.; Centrome, Inc., 

dba Advanced Biotech; Elan Chemical Company, Inc.; Emoral, Inc.; O’Laughlin 

Industries, Inc.; O’Laughlin Industries Co., Ltd.; and O’Laughlin Tianjin Industries Co. 

joined. 

2 Unless specifically noted, the facts relied upon in this opinion are based solely 

on the evidence before the court at the time of the April 9, 2014 summary judgment 

hearing. We need not consider any of the evidence presented by the parties in connection 

with Rosas’s April 18, 2014 motion for reconsideration.
3

FACTUAL AND PROCEDURAL BACKGROUND

Rosas was an employee at Gold Coast Ingredients, Inc. from 1994 or 1995 until

April 2007. The company manufactures and sells food flavoring products. After he was 

transferred to the powder production room in 1996, Rosas’s responsibilities included 

mixing various powders and liquids, including liquid chemicals such as diacetyl and 

benzaldehyde, to make food flavorings. Rosas testified he used many liquid chemicals, 

too many to remember all their names. Between 1996 and 2001, Rosas made flavorings 

using diacetyl about three times a day, and after 2001, the frequency increased to about 

six times a day, because the company was making larger amounts of butter flavoring. 

Sometime after he began working with the powders and chemicals, he began 

experiencing pain or irritation in his nose, eyes, throat, and lungs. He began coughing 

around 2000 or 2002. In 2001, he saw a doctor for flu-like symptoms and was given 

antibiotics. He was out of work for two or three days due to his illness, and returned with 

a doctor’s note stating he had “chronic acute bronchitis.” 

In 2003, Rosas spent four days in the hospital for symptoms of pneumonia. He 

had a lot of coughing, fever, phlegm, and pain in his nose and lungs. Rosas shared with 

his doctors his suspicions that his illness might be related to chemicals at work, but 

doctors never communicated a diagnosis to him or told him his illness was due to his 

work. 

Rosas continued to experience coughing and flu-like symptoms in 2004, but the 

appellate record does not contain evidence any doctor diagnosed the problem or its cause. 

Sometime in 2005, Rosas asked to be moved from the powder production room to the 

warehouse, because he felt the powder related to his increasing cough. According to 

Rosas’s testimony, he brought a note from one of his doctors and Gold Coast transferred 

him to the warehouse a few days later. However, Rosas’s supervisor testified he did not 

recall learning of any health issues as a result of Rosas’s work at Gold Coast until after 

Rosas stopped working in 2007. 
4

In May 2005, Rosas was referred to Dr. Korotzer, a pulmonary physician at 

Kaiser, because his symptoms were no longer “flu-like.” Dr. Korotzer examined Rosas 

and determined that he had severe obstructive lung disease, but that its etiology, or cause, 

was unclear. Dr. Korotzer’s medical report included a medical history that noted Rosas’s 

past diagnoses of chronic bronchitis and his hospitalization in February 2003 for 

pneumonia. It notes a chronic runny nose and congestion, including postnasal drip, and 

that a February 2003 sinus x-ray was consistent with chronic sinusitis. Dr. Korotzer also 

notes that a chest x-ray from February 2005 “is relatively unchanged from x-rays dating 

back to February 2003, although there may be some slight increase in the prominence of 

the lung markings over this time period.” The “social history” section of the report 

stated: “The patient works in a boiler room. In the past, he has been exposed to some 

dust, which is sand-like, and he thinks it is some sort of sugar molecules, although he is 

not sure of the exact name of it. He wore a mask during this time, and was exposed to 

this dust for approximately three years. He is no longer working in that department, and 

is now no longer exposed to any type of dust. He does work with some chemicals at the 

present time. These do not cause him any kind of irritation.” Dr. Korotzer ordered a 

CAT scan to rule out some possible explanations for Rosas’s lung disease. 

On April 26, 2006, Rosas saw his primary care physician, Dr. Rodriguez, because 

his cold was more constant and his nose was very itchy. Dr. Rodriguez told him it was 

normal for people who worked with powder to have allergic symptoms like a cough and 

runny nose. The doctor gave him a note stating Rosas “suffers from chronic lung disease. 

He should not work around chemicals or toxic substances. He also shouldn’t do work 

that requires moderate to heavy exertion.” 

On July 14, 2006, Rosas returned to the pulmonary physician, Dr. Korotzer, who 

noted that the likely cause of his disease was an old infection. Dr. Korotzer wrote and 

gave Rosas the following note: “To Whom It May Concern: [¶] I am a pulmonary 

physician at Kaiser Permanente Bellflower caring for Ismael Rosas. The patient has a 

chronic lung condition. Usually with this chronic lung condition exposure to odors from 

chemicals or fumes from any type causes the patient’s respiratory condition and 
5

symptoms to worsen. Therefore, possible in the work environment minimization of any 

exposure to chemicals, fumes or odors will help the patient in [sic] and would be 

advisable if possible.” Although Dr. Korotzer believed that exposure to irritants such as 

strong odors or chemicals could exacerbate Rosas’s underlying chronic lung condition, 

causing a flare-up or increased symptoms such as severe cough and wheezing, he did not 

believe Rosas’s exposure to chemicals had caused the lung condition. 

Rosas saw Dr. Korotzer again in September 2006 about his continuing cough and 

difficulty breathing. Rosas told Dr. Korotzer he worked with powder, and Dr. Korotzer 

responded that some people sometimes respond to that type of powder. The notes from 

that visit indicate that the cause of Rosas’s illness remained unknown, but the severe lung 

obstruction had worsened from August 2006. There is no evidence in the record that Dr. 

Korotzer asked any follow-up questions about the powders or chemicals Rosas was 

exposed to at work, and Rosas testified he did not tell the doctor about any suspicions the 

powders or chemicals might be causing his illness. Rosas did not list the particular 

powders or chemicals he was exposed to at work, but there is no evidence a doctor asked 

him to do so either. Dr. Korotzer wrote another “To Whom It May Concern” letter 

advising that Rosas has a chronic lung condition and is limited to carrying no more than 

50 pounds for any length of time. The letter noted that this would greatly aid Rosas in 

terms of his respiratory function. 

In November 2006, doctors from the National Institute for Occupational Safety 

and Health (NIOSH) met with Gold Coast employees, and a doctor informed Rosas the 

results from his pulmonary function test were the worst of all the employees, he had 

bronchiolitis obliterans, and his illness was caused by diacetyl. In early November, a 

doctor with the occupational health branch of the California Department of Health 

Services contacted Dr. Korotzer and informed him of the health risks associated with 

exposure to flavoring ingredients, including the chemical diacetyl, and its association to 

the lung disease bronchiolitis obliterans. Before communicating with the Department of 

Health Services, Dr. Korotzer had never read anything about any connection between the 

flavoring industry and lung disease, and had never treated a patient for bronchiolitis 
6

obliterans. After reading some materials, Dr. Korotzer felt confident that chemical 

exposure had likely caused Rosas’s lung disease. Dr. Korotzer met with Rosas on 

November 22, 2006, noting that the patient “[f]eels OK” and is able to do his work 

assembling boxes with little problem. The doctor’s notes also state that he advised Rosas 

to notify him if he had increased symptoms, and Rosas was no longer exposed to any 

chemicals at the workplace. 

In the context of a workers’ compensation proceeding, a qualified medical 

examiner opined that Rosas’s injury “became permanent and stationary on March 21, 

2007.” Rosas continued working at Gold Coast until April 2007, and in February 2008, 

Dr. Korotzer wrote a letter stating Rosas was “completely and totally permanently 

disabled, due to a severe, chronic lung infection.” 

A. Complaint

Rosas filed an initial complaint on October 30, 2008.3 In January 2012, he filed a 

Second Amended Complaint, which contained more detailed allegations and named 

many more defendants. The gravamen of Rosas’s complaint is respondents are liable for 

the lung injuries he suffered as a result of his workplace exposure to diacetyl, a chemical 

manufactured or sold by respondents for use in food manufacturing.4 The complaint 

alleges that Rosas did not learn of his injuries or their cause until he was diagnosed with 

bronchiolitis obliterans. 

 

3 Two other individuals are named plaintiffs in the complaint, but their claims 

were not the subject of the motion for summary judgment, nor are they parties to this 

appeal.

 

4 The Second Amended Complaint alleges four causes of action: (1) strict 

liability, design defect; (2) strict liability, failure to warn; (3) negligence; and (4) 

fraudulent concealment.
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B. Motion for Summary Judgment

In an amended motion for summary judgment, BASF argued that Rosas’s claims 

were barred by the statute of limitations because he was on inquiry notice more than two 

years before filing his original complaint on October 30, 2008.5 BASF offered evidence 

demonstrating that Rosas had been healthy before starting work at Gold Coast, began 

experiencing adverse health effects soon after he started working in the powder 

production room, and that by 2003, his exposure to diacetyl was making him sick. BASF 

argued that the statute of limitations started to run by mid-2005 at the latest, because by 

then, doctors had told Rosas he had severe obstructive lung disease, and he had asked to 

be moved from the powder production room to the warehouse because he suspected the 

chemicals were making him sick. 

C. Opposition to Motion for Summary Judgment

In his opposition, Rosas argued that in order to prevail on summary judgment, 

BASF bore the burden of proving that he was, or should have been aware of (1) his 

injury, (2) its physical cause, and (3) sufficient facts that would lead a reasonable person 

to suspect his injury was caused by the wrongful act of another. He argued that the 

evidence in support of BASF’s motion did not establish that Rosas was aware of the three 

distinct elements required to trigger the statute of limitations before October 30, 2006. 

Instead, the statute did not begin to run until November 2006, when NIOSH diagnosed 

Rosas with bronchiolitis obliterans, caused by diacetyl exposure. First, until receiving a 

diagnosis from NIOSH in November 2006, he was unaware of an injury significant 

 

5 BASF initially filed a motion for summary judgment on October 28, 2013. Its 

January 14, 2014 amended motion made the same legal arguments, but included Rosas’s 

testimony at a workers’ compensation hearing. 

Berje Inc.; Citrus and Allied Essences Ltd.; Centrome, Inc., dba Advanced 

Biotech; O’Laughlin Industries, Inc.; O’Laughlin Industries Co., Ltd.; and O’Laughlin 

Tianjin Industries Co. each joined in BASF’s motion for summary judgment. Elan 

Chemical Company, Inc. filed a separate motion for summary judgment. 
8

enough to trigger the statute of limitations. Second, because his doctors did not believe 

or advise him that the chemicals in his workplace were causing his lung disease, and 

instead only told him the chemicals were only aggravating his symptoms, he was 

unaware of the cause of his lung disease until November 2006. The opposition brief 

pointed to deposition testimony by Dr. Korotzer, a pulmonary physician who treated 

Rosas beginning in May 2005, admitting that at the time he did not believe exposure to 

chemicals was causing Rosas’s lung condition, and instead only thought the cause of the 

lung disease was unknown, and that the chemicals may have been causing his symptoms 

to be worse. According to Rosas’s deposition testimony, the first time a doctor told him 

chemicals caused his lung disease was when the NIOSH doctor told him in November of 

2006. Third, the statute of limitations was not triggered until he suspected or should have 

suspected a wrongful cause of his injury, and there is a triable issue of fact about whether 

the facts were sufficient to trigger a duty to inquire as to a wrongful cause before 

November 2006. In support of his last argument, Rosas pointed to deposition testimony 

where he was asked, “At some time did you start to think in your own mind that 

somebody had done something wrong to cause your lung disease?” and he answered 

“No.”

D. Court’s Tentative Ruling and Hearing

The trial court issued a tentative ruling indicating it would grant summary 

judgment on the statute of limitations, noting that under Grisham v. Philip Morris U.S.A., 

Inc. (2007) 40 Cal.4th 623 (Grisham), once a plaintiff is aware of an injury and its cause, 

there is a rebuttable presumption plaintiff is aware of wrongdoing as well. At the hearing 

on April 9, 2014, Rosas argued defendants had failed to satisfy their burden as to each 

element necessary to establish a statute of limitations bar, particularly that they offered no 

evidence that Rosas had reason to suspect wrongdoing. Counsel also argued the Grisham

presumption raised by the court did not apply. The trial court entered its orders granting 

summary judgment in favor of BASF and the joining defendants. 
9

E. Post-Summary Judgment Proceedings

On April 18, 2014, Rosas filed a motion for reconsideration and relief under Code 

of Civil Procedure sections 473 and 1008,6 presenting additional evidence that Rosas was 

unaware of a wrongful cause for his injury. While Rosas’s motion remained pending, the 

trial court entered judgment in favor of respondents on May 5, 2014, and June 6, 2014. 

On June 10, 2014, the trial court denied Rosas’s motion. Rosas filed his notice of appeal 

from the judgments and postjudgment order on June 12, 2014. 

DISCUSSION

Rosas contends the trial court erred in granting summary judgment because triable 

issues of fact remain as to when he should have known of his injury and its wrongful 

cause. Rosas argues his complaint was filed within the two-year limitations period under 

section 340.8, because his cause of action did not accrue until NIOSH advised him that 

he had bronchiolitis obliterans, caused by his exposure to diacetyl. Until that time, he 

was unaware of an actionable injury, its cause, or any wrongdoing. Because reasonable 

minds can differ on whether the facts known by Rosas before October 30, 2006 were 

such that he should have suspected his lung injuries had a wrongful cause, the lower court 

erred in granting summary judgment. 

A. Standard of Review 

“We review the trial court’s ruling on a summary judgment motion de novo, 

liberally construe the evidence in favor of the party opposing the motion, and resolve all 

doubts concerning the evidence in favor of the opponent. [Citation.]” (Garrett v. 

 

6 All statutory references are to the Code of Civil Procedure, unless otherwise 

indicated. 
10

Howmedica Osteonics Corporation (2013) 214 Cal.App.4th 173, 181.) “To determine 

whether triable issues of fact do exist, we independently review the record that was 

before the trial court when it ruled on defendants’ motion.” (Martinez v. Combs (2010) 

49 Cal.4th 35, 68.) “The rules governing a motion for summary judgment are well 

known and we need not set them out in detail. A defendant seeking summary judgment 

must either prove an affirmative defense, disprove at least one element of the plaintiff’s 

cause of action, or show that some such element cannot be established. [Citation.]” 

(Government Employees Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 95, 100.) “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.] Section 437c, subdivision (c) allows the 

trial court ruling on the motion to consider all evidence and all the inferences reasonably 

deducible from the evidence set forth in the papers, ‘except summary judgment shall not 

be granted by the court based on inferences reasonably deducible from the evidence, if 

contradicted by other inferences or evidence, which raise a triable issue as to any material 

fact.’ (§ 437c, subd. (c).)” (Clark v. Baxter Healthcare Corp. (2000) 83 Cal.App.4th 

1048, 1054 (Clark).)

B. Statute of Limitations and the Discovery Rule

“While 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); see also Aguilar v. Atlantic Richfield Co. (2001) 25 

Cal.4th 826, 850 (Aguilar) [a triable issue of material fact exists only if the evidence 

would allow a reasonable trier of fact to find the underlying fact in favor of the party 

opposing the motion in accordance with the applicable standard of proof].)
11

“[S]tatutes of limitation do not begin to run until a cause of action accrues.” (Fox 

v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806 (Fox).) “[A] cause of action 

accrues at ‘the time when the cause of action is complete with all of its elements.’” 

(Ibid.) “An 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.] [¶] 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.]” (Id. at p. 807.) A potential plaintiff “discovers the cause of action when he

at least suspects a factual basis, as opposed to a legal theory, for its elements, even if he 

lacks knowledge thereof—when, simply put, he at least ‘suspects . . . that someone has 

done something wrong’ to him [citation], ‘wrong’ being used, not in any technical sense, 

but rather in accordance with its ‘lay understanding’ [citation].” (Norgart v. Upjohn Co.

(1999) 21 Cal.4th 383, 397-398 (Norgart), fn. omitted.) 

“The discovery rule only delays accrual until the plaintiff has, or should have, 

inquiry notice of the cause of action. The discovery rule does not encourage dilatory 

tactics because plaintiffs are charged with presumptive knowledge of an injury if they 

have ‘“‘information of circumstances to put [them] on inquiry’”’ or if they have ‘“‘the 

opportunity to obtain knowledge from sources open to [their] investigation.’”’ 

[Citations.]” (Fox, supra, 35 Cal.4th at pp. 807-808, fn. omitted.) “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 p. 1111.) Statutes of limitation 

serve two potentially competing purposes. First, they “give defendants reasonable 

repose, that is, to protect parties from defending stale claims.” (Id. at p. 1112.) Second, 

they “require plaintiffs to diligently pursue their claims.” (Ibid.) The discovery rule 

strikes a balance between the two purposes. “Because a plaintiff is under a duty to 

reasonably investigate and because a suspicion of wrongdoing, coupled with a knowledge 
12

of the harm and its cause, will commence the limitations period, suits are not likely to be 

unreasonably delayed, and those failing to act with reasonable dispatch will be barred. At 

the same time, plaintiffs who file suit as soon as they have reason to believe that they are 

entitled to recourse will not be precluded.” (Ibid., fn. omitted.)

Section 340.8 incorporates the discovery rule into the statute of limitations for 

toxic torts, requiring a plaintiff to file a complaint within “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 . . . .” 

(§ 340.8, subd. (a).) This two-year limitations period applies in cases alleging personal 

injury caused by harmful chemicals. (Nelson v. Invedus Pharmaceuticals, Inc. (2006) 

142 Cal.App.4th 1202, 1209 (Nelson).) The Legislature passed section 340.8 to codify 

for toxic torts the delayed discovery rule as described in Jolly, supra, 44 Cal.3d 1103, 

Norgart, supra, 21 Cal.4th 383, and Clark, supra, 83 Cal.App.4th 1048, and to repudiate 

the holding in McKelvey v. Boeing North American, Inc. (1999) 74 Cal.App.4th 151, that 

media reports regarding a toxic substance could be sufficient to trigger inquiry notice. 

(Alexander v. Exxon Mobil (2013) 219 Cal.App.4th 1236, 1252 (Alexander); Nelson, 

supra, 142 Cal.App.4th at p. 1209.) 

C. Summary Judgment is Not Warranted When There is a Triable Issue About 

Whether a Reasonable Person Would Suspect Wrongdoing

Rosas contends the court erred in granting summary judgment because the 

uncontradicted evidence does not establish that Rosas either was or should have been 

aware of all three elements required to trigger the statute of limitations under section 

340.8: injury, cause, and wrongfulness. We need not decide whether the evidence 

satisfies the injury element, because BASF fails to establish that a reasonable person 

would suspect a wrongful cause leading to Rosas’s chronic lung condition. “Under the 

discovery rule, the statute of limitations begins to run when the plaintiff suspects or 
13

should suspect that her injury was caused by wrongdoing, that someone has done 

something wrong to her.” (Jolly, supra, 44 Cal.3d at p. 1110.) We conclude BASF’s 

evidence is inadequate to establish as a matter of law that Rosas was aware of “sufficient 

facts to put a reasonable person on inquiry notice that the injury was caused or 

contributed to by the wrongful act of another . . . .” (§ 340.8, subd. (a)(3).) 

Reason to suspect wrongful cause found as a matter of law

Cases in which courts have upheld a grant of summary judgment on statute of 

limitations grounds have involved facts supporting only one legitimate inference. In each 

case, the court determined that, as a matter of law, the facts supported the legal 

conclusion that a reasonable person would have suspected their injury had a wrongful 

cause. In Rivas v. Safety Kleen Corp. (2002) 98 Cal.App.4th 218 (Rivas), the court 

upheld a grant of summary judgment based on a one-year statute of limitations where the 

plaintiff suffered kidney injuries because he used a particular solvent at work. The 

plaintiff had worked with the solvent daily for almost 18 years, and a number of events 

took place more than one year before the plaintiff filed a complaint against the solvent 

manufacturer. First, almost seven years before filing suit, the plaintiff saw a doctor who 

diagnosed his kidney disease and asked him about the chemicals he used at work. The 

plaintiff provided the doctor with a list of chemicals, the doctor told him to stay away 

from the solvent, and plaintiff complied. After receiving a kidney transplant several 

years later, the plaintiff consulted a workers’ compensation attorney to investigate the 

possibility that the solvent he used at work caused his kidney damage. More than a year 

before filing his civil lawsuit, the plaintiff filed a workers’ compensation action seeking 

relief based on kidney injuries suffered as a result of exposure to toxic fumes, gases, and 

liquids. (Id. at pp. 223-224.) The appellate court concluded that even if the doctor’s 

advice to keep away from the solvent could be seen as ambiguous and insufficient to 

arouse a reasonable person’s suspicion, the plaintiff’s workers’ compensation claim “is 
14

definitive proof that he had a suspicion that ‘someone ha[d] done something wrong to 

[him]’ long before his civil complaint was filed . . . .” (Id. at p. 229.) 

In Norgart, supra, 21 Cal.4th at pages 405-406, the California Supreme Court held 

that there was no triable issue of material fact and the defendant pharmaceutical company 

was entitled to judgment as a matter of law based upon the statute of limitations where a 

plaintiff admitted, on more than one occasion, suspecting that someone had done 

something wrong to cause his daughter’s death by suicide. The court pointed out that the 

cause of action accrued when the plaintiffs suspected or had reason to suspect a wrongful 

cause for their daughter’s death, and their failure to file a complaint within one year 

resulted in their claims being barred. (Ibid.) 

In Miller v. Lakeside Village Condominium Assn. (1991) 1 Cal.App.4th 1611, at 

pages 1622-1624 (Miller), the appellate court rejected the plaintiff’s argument that there 

were triable issues of fact on the question of when she suffered injuries caused by mold 

exposure such that the statute of limitations on her claims would be triggered. There was 

undisputed evidence that the plaintiff experienced severe bouts of asthma and was 

hospitalized in the summer of 1984, and on or before October 1984, plaintiff had her 

condominium unit tested for mold contamination, retained a microbiologist to pinpoint 

the source of the mold, and her husband sent a letter to the defendant stating that the 

flooding caused mold which caused the plaintiff to suffer extreme allergic reactions a 

year earlier. Based on this evidence, the court concluded that “reasonable minds can 

draw only one conclusion—that [the plaintiff] suffered appreciable and actual harm . . . 

and was also aware of its negligent cause by October 1984.” (Id. at pp. 1623-1624.) 

In Rose v. Fife (1989) 207 Cal.App.3d 760, the plaintiff suffered an infection and 

complications from an intrauterine device (IUD), but did not file a complaint against her 

doctor and the IUD manufacturer until almost three years later. The appellate court

rejected her argument that she did not learn of wrongdoing until reading a newspaper 

article linking her particular IUD type to injuries similar to her own. Instead, a 

reasonable person would have suspected wrongdoing when the doctors who treated her 

during her hospitalization told her they felt the IUD was the cause of her infection and it 
15

had to be removed. (Id. at 766-767.) Citing to Jolly, the court concluded that even if the 

plaintiff did not suspect wrongdoing when she was hospitalized, she reasonably should 

have suspected wrongdoing. “We hold as a matter of law that a reasonable person would 

have suspected wrongdoing by [the doctor] and would have inquired; she would have 

gone to find the facts rather than waiting until October 1985 for the facts to come to her.” 

(Id. at p. 770.) 

Reason to suspect wrongful cause a question of fact left for the jury to decide

In contrast to the cases discussed above, summary judgment cannot be granted 

when the facts are susceptible to more than one reasonable inference, or the undisputed 

facts do not support a finding, as a matter of law, that a reasonable person would suspect 

that an injury was wrongfully caused. For example, in Nelson, supra, 142 Cal.App.4th 

1202, a case decided by this division, the plaintiff suffered from a heart valve disease 

after taking a diet drug manufactured by the defendant. The defendant moved for 

summary judgment, arguing that that the plaintiff should have suspected wrongdoing 

more than a year before she filed suit, citing to evidence of news reports outlining the 

risks associated with the drug. In our published opinion, we reviewed the plaintiff’s 

physical symptoms, which were not directly associated with the one-month time frame 

during which the plaintiff was taking the drug. She experienced intermittent heart 

palpitations, fatigue, and dizziness, and while she did not specifically ask whether her 

symptoms could be caused by the diet drug, she did ask her doctors about those 

symptoms, and no doctor ever told her that they were symptoms of heart valve disease or 

connected to diet drugs. We concluded that the plaintiff’s common and non-specific 

symptoms did not establish, as a matter of law, that she should have investigated the 

possibility that she had been harmed by the diet drug. We therefore reversed the trial 

court’s decision granting summary judgment. (Id. at pp. 1210-1211.) 

Clark, supra, 83 Cal.App.4th 1048 also reversed an order granting summary 

judgment, concluding that triable material issues existed about the timeliness of the 
16

plaintiff’s complaint. Clark involved a plaintiff who wore latex gloves while working at 

a hospital and began suffering from intermittent rashes on her hands and had difficulty 

breathing. In the spring of 1992, she informed two doctors about an itchy rash on her 

hands and legs, and thought the problem might have been caused by the gloves she used 

at work. By the fall of 1993, the plaintiff’s hands were cracked and bleeding at work, and 

she would itch and sneeze when she wore latex gloves. After switching to non-latex 

gloves, her symptoms subsided. In May 1995, she had an anaphylactic attack (acute 

allergic reaction) when her gynecologist touched her while wearing latex gloves. 

However, the plaintiff claimed she did not suspect any of her problems were caused by 

any wrongdoing until receiving an article in late 1995 about latex allergies litigation. She 

filed her complaint in January 1996. The court reviewed the facts and holdings from 

Jolly, supra, 44 Cal.3d 1103, Norgart, supra, 21 Cal.4th 383, and Miller, supra, 1 

Cal.App.4th 1611, and concluded that the plaintiff had raised a triable issue of fact 

regarding her knowledge or awareness of wrongdoing, because “there is evidence in the 

record to support a reasonable inference that [plaintiff’s] latex allergies did not perforce 

lead her to suspect that the latex gloves might have been defectively manufactured in 

some respect.” (Clark, supra, pp. 1059-1060.) Because the record could support an 

inference that the plaintiff “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 . . . . triable material issues of fact 

remain as to the limitations issue.” (Id. at p. 1060.)

Demurrer cases where court declines to find statute triggered as a matter of law

Two other cases were decided at the demurrer stage, but further illustrate that even 

undisputed facts can sometimes be insufficient to support the conclusion that the statute 

of limitations was triggered. Instead, the question of when the limitations period 

commences is a factual issue that cannot be decided as a matter of law. In Fox, supra, 35 

Cal.4th at pages 803-804, the plaintiff suffered complications after gastric bypass 
17

surgery, and filed a medical malpractice action against the doctor, treating hospital, and 

doe defendants in a timely manner. Later, the doctor’s deposition testimony revealed 

problems with the stapler used during the surgery, and the plaintiff filed an amended 

complaint asserting a products liability claim against the stapler manufacturer, Ethicon. 

Ethicon demurred, asserting the plaintiff’s claims were barred by a one-year statute of 

limitations, and the plaintiff offered to file an amended complaint clarifying that she had 

no reason to suspect the stapler until after the doctor’s deposition, and that no reasonable 

person would have suspected a defective stapler. On appeal to the California Supreme 

Court, Ethicon argued that a Court of Appeal holding in Bristol-Myers Squibb Co. v. 

Superior Court (1995) 32 Cal.App.4th 959, 965-966, established that once a plaintiff has 

knowledge or suspicion of negligence, the statute of limitations starts to run as to all 

defendants, regardless of the nature of the wrongdoing or cause of action. (Fox, supra, 

35 Cal.4th at pp. 811-812.) The Supreme Court rejected that argument, concluding 

instead that when a plaintiff may only reasonably suspect one type of wrongdoing, the 

statute of limitations does not begin to run on a wholly different cause of action based on 

a different type of wrongdoing, the facts as to which the plaintiff may not yet be aware. 

(Id. at pp. 814-815.) In Alexander, supra, 219 Cal.App.4th at page 1260, Division Seven 

of this court refused to uphold a decision sustaining a demurrer where the plaintiffs 

alleged they did not discover the facts upon which their claims were based until less than 

two years before filing suit. The defendants argued that the plaintiff’s factual allegations, 

together with additional judicially-noticed facts, established that a reasonable person 

would have suspected causation and wrongdoing much earlier. (Id. at p. 1250.) In 

rejecting the defendant’s argument, the court declined to make that determination as a 

matter of law, pointing out, “‘[w]hen a plaintiff reasonably should have discovered facts 

for purposes of the accrual of a cause of action or application of the delayed discovery 

rule is generally a question of fact, properly decided as a matter of law only if the 

evidence (or, in this case, the allegations in the complaint and facts properly subject to 

judicial notice) can support only one reasonable conclusion.’ [Citations.]” (Id. at p. 

1252.)
18

D. A Triable Issue Exists as to Whether Before November 2006, Rosas was 

Aware of the Cause of his Lung Disease and was on Inquiry Notice as to 

Possible Wrongdoing

The trial court erroneously granted summary judgment when the evidence before 

it was susceptible to more than one legitimate inference. It also erroneously construed 

BASF’s evidence broadly and Rosas’s evidence narrowly and drew inferences in favor of 

BASF, rather than Rosas. (Aguilar, supra, 25 Cal.4th at p. 856 [court must view 

evidence in light most favorable to the party opposing motion for summary judgment].)

Because the evidence can support a legitimate inference that a reasonable person in 

Rosas’s situation, knowing the facts known to Rosas, would not have suspected a 

wrongful cause for his lung disease, respondents are not entitled to summary judgment. 

Triable issue whether facts would lead a reasonable person to suspect a wrongful cause 

Rosas started working with flavoring chemicals in 1996, but testified in deposition 

that he did not begin experiencing a cough until at least four years later in 2000 or 2002. 

Although he did experience some illness in 2001 and 2003, his doctors did not express 

undue concern, viewing his illnesses as perhaps slightly serious versions of maladies such 

as pneumonia, bronchitis, and sinusitis. Even after he was referred to a specialist because 

his symptoms were no longer “flu-like,” the pulmonary physician did not express concern 

about anything in his medical history that would lead a person to believe that his illness 

(by that time diagnosed as “[s]evere obstructive lung disease”) was caused by a wrongful 

act of another. 

Neither Rosas’s primary care physician, Dr. Rodriguez, nor his pulmonary 

physician, Dr. Korotzer, ever suggested to Rosas that his lung disease was being caused 

by his exposure to chemicals at work. Rather, Dr. Rodriguez assured him in April 2006 

“[t]hat it was normal for people who worked with powder to have that cough, the runny 

nose, type of allergy.” Dr. Korotzer also testified he did not suspect the chemical 
19

exposure to be the cause of Rosas’s underlying lung disease, only a factor in aggravating 

his symptoms. 

Rather than suspecting he or she had been wronged in some way, a reasonable 

person would do what Rosas did, which is to visit a doctor when a cold and cough 

continues and seems to be getting worse. But when a doctor tells a patient his symptoms 

are normal, and a lung specialist is unable to determine the cause of the patient’s lung 

disease, we cannot conclude as a matter of law that a reasonable person would suspect 

their disease has a wrongful cause. In many ways, the facts of this case are similar to 

those at issue in Clark, where the plaintiff suffered from a debilitating allergy to latex 

gloves, but did not have any reason to suspect wrongdoing until after joining a support 

group and receiving an article about possible defective manufacturing. (Clark, supra, 83 

Cal.App.4th at p. 1053.) Without additional facts, we cannot determine as a matter of 

law that the facts available to Rosas before November 2006 would put a reasonable 

person on inquiry notice that his disease was caused by wrongdoing. (Id. at p. 1060 

[“[i]n this case, under these peculiar circumstances, it cannot yet be determined as a 

matter of law when the limitations period began to run”].)

The trial court’s decision rejected Rosas’s argument that he could reasonably rely 

on the doctors’ inability to determine the cause of his lung disease, as well as assurances 

from two doctors that while chemical exposure might aggravate the symptoms of his lung 

disease, they were not the cause of his illness. Based on the case law discussed earlier in 

this opinion, we conclude instead that it is reasonable to expect that a patient with no 

information about potential wrongdoing would rely on the assurance of a pulmonary 

physician that chemical exposure is only aggravating the person’s symptoms, not causing 

his underlying disease. (See, e.g., Fox, supra, 35 Cal.4th at p. 813 [“a plaintiff’s 

ignorance of wrongdoing involving a product’s defect will usually delay accrual because 

such wrongdoing is essential to that cause of action”]; Kitzig v. Nordquist (2000) 81 

Cal.App.4th 1384, 1395 [examining the nature of the subjective suspicion necessary to 

trigger the limitations period during the continued existence of a doctor-patient 

relationship]; Nelson, supra, 142 Cal.App.4th 1202, 1208 [“the law only requires an 
20

investigation when a plaintiff has a reason to investigate”]; compare Goldrich v. Natural 

Y Surgical Specialties, Inc. (1994) 25 Cal.App.4th 772, 776 [finding untimely the 

plaintiff’s claim against breast implant manufacturers when the plaintiff suffered pain, 

scarring and disfigurement, and three physicians advised her to have the implants 

removed more than two years before she filed a complaint].) 

Finally, the context of Rosas’s workplace also factors into our evaluation of 

whether a reasonable person would suspect wrongdoing. This is not a scenario where the 

employee is working with chemicals that are recognized as being hazardous. (See, e.g., 

Nguyen v. Western Digital Corporation (2014) 229 Cal.App.4th 1522 [analyzing when 

cause of action accrued where plaintiff’s mother exposed to hazardous and toxic 

chemicals in semiconductor industry, leading to plaintiff’s birth defects]; Rivas, supra, 98 

Cal.App.4th 218, 223 [plaintiff’s daily work tasks included using chemical solvent to 

degrease automobile parts].) To the contrary, it would be reasonable to assume that 

chemicals used to make food flavorings intended for human consumption would be 

relatively safe. 

Inferences drawn in favor of BASF Corporation

Our independent review of the evidence also highlights the trial court’s error in 

drawing inferences and construing ambiguities in favor of BASF instead of Rosas. For 

example, the trial court’s opinion states that in 2005, “Rosas believed that his cough was 

worsening because of the chemicals and asked Dr. Korotzer for a letter ordering Rosas 

moved to warehouse duty, although Rosas still did not tell Dr. Korotzer about his belief 

that the chemicals were causing his cough.” However, a close analysis of the evidence 

reveals that at the time of the transfer, Rosas was concerned about how powders might be 

aggravating his cough. The court cites to two pages of Rosas’s testimony, during which 

Rosas consistently refers to powders, not chemicals. Responding to a question about why 

he asked Dr. Korotzer for a note, Rosas testified, “Because I was coughing a lot. And 

since we were working with powder, I thought that it was the powder.” This testimony 
21

would still be important if the chemical in question, diacetyl, was a powder, but it is a 

liquid chemical, and so the testimony cannot be construed to establish that Rosas was 

aware of facts that amounted to a cause of action against the manufacturers of diacetyl. 

Other evidence supports a more ambiguous and possibly neutral explanation for 

Rosas’s transfer to the warehouse. Rosas testified he provided the doctor’s note to his 

supervisor, and the trial court inferred that Rosas had brought his suspicions about the 

adverse health effects of continued chemical exposure to his employer’s attention, 

leading Gold Coast to relocate him to the warehouse. Rosas testified that he discussed 

the matter with his supervisor, Ted Rodriguez, but Rodriguez testified he was unaware of 

Rosas’s health complaints until after Rosas stopped working in April 2007. And 

according to the medical notes, Rosas had already moved out of the powder production 

room before his first visit with Dr. Korotzer: “In the past, he has been exposed to some 

dust . . . and was exposed to this dust for approximately three years. He is no longer 

working in that department, and is now no longer exposed to any type of dust. He does 

work with some chemicals at the present time. These do not cause him any kind of 

irritation.” It cannot be considered outside the realm of legitimate inferences that at some 

point before visiting Dr. Korotzer, Rosas asked to be transferred because he wanted to 

work in a less dusty environment, particularly when it is common knowledge that things 

like dust and powder can aggravate a cough. 

The trial court’s conclusion that Rosas suspected diacetyl as the cause of his 

disease as early as 2003 is also based on testimony from which a different legitimate 

inference can easily be drawn. Rosas was asked in a workers’ compensation hearing 

whether he suspected his 2003 hospitalization was work-related, and he answered, “Yes.” 

The testimony continued:

“Q: Was there any specific exposure that you had that you suspected was the 

culprit?

“A: Yes, the chemicals.

“Q: Do you know the names of those chemicals?

“A: Starting with diacetyl. Benzaldehyde.” 
22

Respondents point to this exchange as establishing unequivocally that in 2003 

Rosas suspected his exposure to diacetyl at work was the culprit of his lung disease, and 

further argue that Rosas cannot create a factual dispute by contradicting his earlier sworn 

testimony. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21 (D’Amico) 

[court need not liberally construe a counteraffidavit presented by party opposing 

summary judgment to contradict a clear and unequivocal admission of a fact in 

deposition]; Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1522 [declining 

to find D’Amico applicable where initial testimony is merely a tacit admission or 

equivocal concession].) Rosas’s testimony regarding the extent and timing of his 

subjective suspicions is not susceptible to only one legitimate inference. Nothing in the 

testimony establishes that Rosas suspected in 2003 that a particular chemical was causing 

his illness, especially because the question asking him to name the chemicals is phrased 

in the present tense: “Do you know the names of those chemicals?” In the same hearing, 

when he was asked for the basis for his belief that the chemicals were the culprits, Rosas 

responded by referencing future events. “Because since they hospitalized me for the first 

time in 2003, my health kept getting worse.” Later in the same hearing, Rosas 

equivocated on the question of whether the chemicals caused his illness “because the 

problems that I had was like similar to the flu.” In addition, Rosas testified he had shared 

with his doctor his suspicion that his illness “could be because of the chemicals” but the 

doctors never told him whether or not his illness was work related. In other testimony, 

Rosas says he suspected the powders were causing him to cough, and his doctors agreed 

that some people respond to powders that way. Again, Dr. Korotzer’s May 2005 notes 

corroborate the inference that in 2003 and 2005, Rosas was not contemporaneously aware 

of facts that would lead him to suspect that a liquid chemical such as diacetyl was causing 

his lung disease. Instead, the notes report Rosas had “been exposed to some dust, which 

is sand-like, and he thinks is some sort of sugar molecules, although he is not sure of the 

exact name of it.” Such evidence is insufficient to establish that Rosas was aware of facts 

that triggered a duty to investigate. 
23

The trial court draws another unwarranted inference by noting that Rosas did not 

share his suspicions about the potential cause of his illness with Dr. Korotzer. There is 

no evidence Rosas ever misrepresented to any doctor the nature of his work environment. 

In fact, Rosas testified that he had shared his suspicion with doctors as early as 2003, and 

Dr. Korotzer’s notes refer to a “sand-like dust, which may be sugar molecules.” 

Furthermore, the letters written in 2006 show that his doctors were well aware that his job 

involved exposure to odors, fumes and chemicals, and Korotzer confirmed that Rosas 

told him he was exposed to chemicals, odors and fumes at his work site. 

In determining when a plaintiff is aware of facts that would lead a reasonable 

person to suspect an injury was wrongfully caused, we disagree that the onus is placed on 

the patient to share his subjective suspicions, in the absence of an inquiry from the 

doctor. If there was evidence that Dr. Korotzer had asked Rosas for a list of the powders 

and chemicals he worked with, and Rosas did not thereafter provide the doctor with such 

a list, a legitimate inference could be drawn that a reasonable person would have done so. 

Instead, Rosas testified Dr. Korotzer never asked him about the chemicals he was 

exposed to at work. Contrast the facts in this case to those in Rivas, where the plaintiff’s 

doctor not only asked the plaintiff about the chemicals he used at work, but then 

instructed the plaintiff to stay away from a particular solvent suspected of causing his 

kidney disease, and plaintiff complied. (Rivas, supra, 98 Cal.App.4th at p. 223.) In 

Rivas, the appellate court emphasized that the plaintiff’s interaction with his doctor, taken 

alone “should have been sufficient to arouse a reasonable person’s suspicion and lead to 

further investigation.” (Id. at p. 228.) However, because there was a potential ambiguity 

based on later doctor’s notes stating the etiology of the plaintiff’s disease was unknown, 

the court concluded the statute was triggered once the plaintiff filed a workers’ 

compensation claim based on exposure to toxic chemicals at work, reasoning that such a 

filing “is definitive proof that he had a suspicion that ‘someone ha[d] done something 

wrong to [him]’ long before his civil complaint was filed . . . . (Jolly [], supra, 44 Cal.3d 

at p. 1110.)” (Rivas, supra, 98 Cal.App.4th at p. 229.) In this case, Rosas produced 

evidence that neither he nor his doctor definitively suspected a workplace chemical 
24

exposure as a cause of his disease. During Dr. Korotzer’s deposition, he was asked if he 

had considered that Rosas’s “exposure to chemicals and fumes at work might actually be 

contributing to his injury or causing his injury?” He responded, “I don’t think it was 

causing his injury. I wish I had figured that out, but—I don’t think I did. But I was 

concerned the chemicals were irritating him and causing his symptoms to be worse.” 

A rule of law that places on any sick individual the burden of sharing with their 

doctor any suspicion, whether well formed or not, is not yet embodied in California law, 

and we are not willing to go that far. Instead, we hold that when a reasonable person 

would not necessarily suspect wrongdoing, it is not a plaintiff’s burden to begin an 

investigation until the objective facts establish a reason to investigate. (Nelson, supra, 

142 Cal.App.4th at p. 1206 [“a plaintiff’s duty to investigate does not begin until the 

plaintiff actually has a reason to investigate”].)

Because there are triable issues regarding whether Rosas was aware of the cause 

of his lung disease and of facts that would lead a reasonable person to suspect a wrongful 

cause, the court erred in granting summary judgment. 
25

DISPOSITION

The summary judgment entered in favor of respondents is reversed, and costs on 

appeal are awarded to Rosas. The matter is remanded for further proceedings.

KRIEGLER, J. 

We concur: 

TURNER, P. J.

GOODMAN, J.*

 

*

Judge of the Los Angeles County Superior Court, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.