Lederer v. Schneider ( 2018 )

Filed 4/19/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
JOYCE LEDERER et al., B276266
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC502549)
v.
GURSEY SCHNEIDER et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of
Los Angeles County, Holly E. Kendig, Judge. Reversed in part,
affirmed in part, and remanded with instructions.
Law Offices of Cohen & Marzban, Michael M. Marzban;
The Ehrlich Law Firm, Jeffrey I. Ehrlich for Plaintiffs and
Appellants.
Chapman Glucksman Dean Roeb & Barger, Randall J.
Dean, Ashley H. Verdon; Clark Hill, Neda Cate and David L.
Brandon for Defendants and Respondents.
INTRODUCTION
Plaintiff Joyce Lederer employed accounting firm Gursey
Schneider LLP and its employee Spencer Inada (collectively,
Gursey) to manage her finances. As part of their agreement,
Gursey purchased insurance for Joyce1 and her family members.
Joyce requested that Gursey purchase uninsured/underinsured
insurance with a policy limit of $5 million. Gursey actually
purchased a policy with a limit of only $1.5 million.
In February 2010, Joyce’s adult son, Jonathan Lederer, was
in a motorcycle accident that resulted in serious injuries. Shortly
afterward, Joyce and Jonathan discovered that the limit on the
policy Gursey purchased was only $1.5 million. In January 2012,
the insurance company for the other driver involved in the
accident tendered the $15,000 limit of the driver’s policy to
Jonathan. In June 2012, the insurance company tendered the
$1.5 million limit of the underinsured motorist policy to
Jonathan. In March 2013, Joyce and Jonathan sued Gursey,
alleging that they had been damaged because they could not
collect the additional money they would have been entitled to had
Gursey purchased an insurance policy with the limits Joyce had
requested. Jonathan alleged that he was entitled to additional
insurance benefits due to his injuries, and Joyce alleged that she
was damaged by the diminished benefits because she had to
financially support Jonathan.
Gursey moved for summary adjudication, asserting that the
lawsuit was untimely. It argued that the cause of action accrued
shortly after the accident when plaintiffs discovered that the
1Because both plaintiffs and one witness share a last
name, we refer to them by first name for clarity. No disrespect is
intended.
2
insurance coverage Gursey purchased was less than what Joyce
had requested. Plaintiffs opposed, asserting that even though
they discovered Gursey’s negligence shortly after the accident,
they did not incur actual damages until they collected the
insufficient policy benefits. The trial court agreed with Gursey,
and held that plaintiffs’ claims were time-barred. The court also
found that Joyce did not show that she was required to
financially support Jonathan as a matter of law, and therefore
plaintiffs did not demonstrate a triable issue of fact as to Joyce’s
claim for damages. The trial court entered judgment for Gursey,
and plaintiffs appealed.
We reverse the trial court’s order holding that plaintiffs’
claims are time-barred. As the Supreme Court has said, “Only in
the unusual case will the [plaintiff] discover . . . negligence
without having suffered any consequential damage.” (Budd v.
Nixen (1971) 6 Cal.3d 195, 201.) This is one of those unusual
cases, which distinguishes it from the more common “delayed
discovery” scenario in which a plaintiff suffers damages and later
discovers the damages were caused by wrongdoing. Here,
although plaintiffs were aware of Gursey’s alleged negligence
shortly after the accident, Jonathan did not suffer actual
damages as a result of that negligence until he received a
payment of insurance benefits that was less than he would have
received in the absence of Gursey’s negligence. Plaintiffs
therefore did not incur actual damages until Jonathan became
entitled to the benefits of the underinsured motorist policy in
June 2012. As a result, plaintiffs’ causes of action against Gursey
accrued less than two years before they filed this action, and the
trial court erred in holding that plaintiffs’ claims were time-
barred.
3
We affirm the trial court’s ruling that plaintiffs failed to
demonstrate a triable issue of fact as to Joyce’s legal
responsibility for financial support of Jonathan. The evidence
showed that Jonathan held the same job both before and after the
accident, and therefore plaintiffs failed to demonstrate that
Jonathan was incapacitated from earning a living and without
sufficient means under Family Code section 3910.
FACTUAL AND PROCEDURAL BACKGROUND
A. Second Amended Complaint
Plaintiffs alleged in the operative complaint that they
employed Gursey and related individuals and entities as financial
advisors, bookkeepers, and money managers.2 They further
alleged that they requested and needed an uninsured/
underinsured motorist policy with a $5 million policy limit.
Instead, Gursey obtained an uninsured/underinsured motorist
policy with only a $1.5 million limit.3 Gursey knew this coverage
was insufficient, and should have obtained a uninsured/
underinsured motorist policy with a $5 million limit instead.
Plaintiffs also alleged that “coverage protection was only for
$1,500,000 . . . which was contrary to the directions/
instructions/orders of the Plaintiffs,” but defendants represented
to plaintiffs that insurance coverage totaled $5 million. Plaintiffs
alleged that in February 2010, while the $1.5 million policy was
in place, Jonathan suffered catastrophic injuries in a motorcycle
2 The complaint named multiple parties as defendants, but
only Gursey Schneider LLP and Spencer Inada are respondents
on appeal. We therefore do not address plaintiffs’ claims as they
relate to any other named defendant.
3 Parts of the complaint alleged that the uninsured/
underinsured motorist policy had a $1 million limit. The parties
agree that the limit was $1.5 million.
4
accident. The driver of the other vehicle involved had a $15,000
insurance policy limit, which eventually was tendered to
Jonathan. Plaintiffs’ insurers then agreed to pay the entire
limits of the uninsured/underinsured motorist coverage to
Jonathan due to the severity and permanence of Jonathan’s
injuries. Plaintiffs contended they were damaged because
Gursey should have purchased a policy with a $5 million limit,
and paid that amount to Jonathan. Plaintiffs alleged that
because the insurance proceeds did not adequately address
Jonathan’s expenses, Joyce was required to support Jonathan.
Plaintiffs asserted causes of action for negligence, negligent
misrepresentation, breach of written contract, breach of oral or
implied contract, and breach of fiduciary duty.
B. Motion for summary adjudication and court ruling
1. Motion
Gursey moved for summary adjudication. It asserted that
Joyce testified that before Jonathan’s accident, she asked Gursey
to secure vehicle insurance coverage for $5 million in case
Jonathan injured anyone, and $5 million in case Jonathan was
injured. Deposition testimony attached to the motion indicated
that both Jonathan and Joyce requested that Gursey obtain at
least $5 million in automobile insurance coverage. At the time of
the accident, Joyce believed that that she had $5 million in
coverage.
Gursey argued that because the basis for plaintiff’s claims
was accounting malpractice, the two-year statute of limitations in
Code of Civil Procedure, section 339, subdivision (1) applied.4
4All further statutory references are to the Code of Civil
Procedure unless otherwise indicated. Section 339 states in
relevant part, “Within two years: 1. An action upon a contract,
5
Gursey asserted that plaintiffs’ lawsuit, filed in March 2013, was
untimely. Gursey said that the statute of limitations began to
run on all claims in April 2010, when plaintiffs began exploring
insurance issues relating to the accident and discovered that the
coverage Gursey purchased had a lower limit than Joyce had
requested. Gursey also contended that plaintiffs knew then that
the damage from Jonathan’s injuries would exceed the amount of
all available insurance coverage. In support of this assertion,
Gursey cited to a demand letter by Jonathan’s counsel to the
other driver’s insurance company, demanding $10 million to
settle Jonathan’s claims. Gursey also argued that Jonathan
suffered actual injury because he retained an attorney to
investigate available insurance coverage and otherwise represent
Jonathan’s interests with respect to the accident.
Gursey further argued in its motion that there was no
triable issue of fact regarding legally recoverable harm to Joyce.
It asserted that only Jonathan was injured in the accident, and
therefore only Jonathan had a right to the insurance proceeds.
Gursey also asserted that although Joyce chose to financially
support her adult son following the accident, she did not have a
legal obligation to do so. Gursey attached transcripts from
obligation or liability not founded upon an instrument of writing,
except as provided in Section 2725 of the Commercial Code or
subdivision 2 of Section 337 of this code; or an action founded
upon a contract, obligation or liability, evidenced by a certificate,
or abstract or guaranty of title of real property, or by a policy of
title insurance; provided, that the cause of action upon a contract,
obligation or liability evidenced by a certificate, or abstract or
guaranty of title of real property or policy of title insurance shall
not be deemed to have accrued until the discovery of the loss or
damage suffered by the aggrieved party thereunder.”
6
Jonathan’s deposition, in which he testified that at the time of
the accident, he was 29 years old and lived with Joyce. Before
the accident, Jonathan always had been financially supported by
Joyce or his father, Les Lederer. At the time of the deposition,
Jonathan was living in an apartment by himself, and Joyce paid
the rent. Jonathan agreed that his sources of financial support
had not changed from before the accident to after.
Gursey also asserted that Jonathan was not disabled to the
extent that he cannot care for himself, and in fact he “earns an
income and is currently employed by his father’s law firm . . . to
perform computer-related IT services.” Gursey attached a
transcript of Les’s deposition, in which Les testified that before
the accident, Jonathan had been employed by his law firm and
did work for a retail shopping center Les owns. Les testified that
Jonathan is still employed by the firm, but he works reduced
hours. Les said that Jonathan does “real work”; his position at
the firm was not a “made-up job.” Jonathan also testified that he
primarily works for his father, and he also does some work for
family friends. Jonathan testified that he often works remotely,
and he can do much of his work “from home or from anywhere.”
Jonathan testified that both before and after the accident, the
money he earned by working for Les went into an account that
Les controlled and Jonathan could not access. Gursey also
asserted that Jonathan “has performed other computer work for
third parties, as well as drone photography work.” Jonathan
testified that he drives a car that is not modified to accommodate
any disability, and his driver’s license carries no restrictions.
2. Opposition
Plaintiffs opposed the motion for summary adjudication.
Regarding the statute of limitations, plaintiffs pointed out that
7
injuries caused by the vehicle accident should not be conflated
with the injury caused by Gursey’s negligence. Plaintiffs
asserted that they even though they knew of Gursey’s
wrongdoing in 2010, “mere knowledge of wrongdoing is not
damages.” Plaintiffs said they did not suffer damages in 2010 by
retaining an attorney on Jonathan’s behalf relating to the
accident, because the firm did not bill for any work relating to the
insurance issues with Gursey. Instead, that firm simply
investigated the existence of applicable insurance, as it would in
any other vehicle accident case. A declaration from Jonathan’s
attorney stated that neither he nor his firm did any work relating
to Gursey’s purchase of insurance until the summer of 2012. The
attorney researched available insurance following a demand
made by Jonathan’s passenger on the motorcycle during the
accident. The attorney said that the amount of underinsured
motorist coverage procured by Gursey had no effect on the work
he did before 2012.
Plaintiffs also stated that the timing of Jonathan’s
underinsured motorist claim was governed by Insurance Code
section 11580.2, subdivision (p)(3), which required all third party
claims to be exhausted before an underinsured motorist claim
could be made to plaintiffs’ insurer. Entitlement to underinsured
motorist coverage was not a given, because “Jonathan had a
heavily disputed motorcycle accident. The police report was
against him, as was his passenger who filed a lawsuit against
him. As such, he could have gone to trial and been met with a
defense verdict. In that event, Jonathan’s [underinsured
motorist] coverage would have been non-existent.” Jonathan’s
counsel wanted to determine whether the other driver was within
the scope of her employment at the time of the accident, in which
8
case Jonathan may have been entitled to additional insurance.
Thus, Jonathan did not accept any settlement money until he
received two declarations: “one from the owner of the
underinsured motorist vehicle and one from the driver of the
underinsured motorist vehicle,” in order to ensure that money
from the “full maximum insurance available from all policies”
had been paid. Plaintiffs asserted that entitlement to the
underinsured motorist coverage, if any, began only in January
2012, after those declarations were received and Jonathan had
been paid.
Plaintiffs therefore asserted that January 2012 was the
earliest their causes of action against Gursey could have accrued.
In addition, “the making of a [underinsured motorist] claim does
not automatically mean one is entitled to compensation.”
Instead, the claim was required to be arbitrated or settled.
Jonathan’s underinsured motorist claim was “concluded on June
22, 2012, for the maximum amount available to him.” Plaintiffs
argued that because they filed their complaint in March 2013,
within two years of exhausting the other available insurance and
within two years of completing the underinsured motorist claim,
their lawsuit against Gursey was timely.
Plaintiffs also asserted that Gursey was liable for Joyce’s
out-of-pocket losses for Jonathan’s accident-related care because
Jonathan was unemployable following the accident. They
pointed to Family Code section 3910, subdivision (a), which states
that a father and mother have the responsibility to care for a
child of any age who is incapacitated from earning a living.
Plaintiffs contended there was a triable issue of fact as to
whether Jonathan was incapacitated from earning a living.
9
Plaintiffs argued that Jonathan has never received the
money he earned from working with Les, and Joyce had
supported Jonathan financially even before the accident. But
after the accident, “Jonathan’s expenses go beyond his pre-
accident living needs.” “Whatever work that Jonathan does for
his father is his father’s way of trying to teach him a lesson,” and
does not qualify as employment. They asserted that Jonathan is
confined to a wheelchair, takes medications that affect his
cognition, and suffers from severe depression, anxiety, and
extreme pain.
In support of their opposition, plaintiffs attached the
declaration of a vocational expert, Paul Broadus, who had
analyzed Jonathan’s employability. Broadus said that following
the accident, Jonathan “was diagnosed with an open book pelvic
fracture with avulsion of the nerve roots with neuropathic limb
pain. He subsequently underwent multiple surgeries . . . .”
Jonathan lost the use of his left leg. He was mostly confined to a
wheelchair, and he lived alone but employed an assistant who
worked for him 12 hours a day, seven days a week. The assistant
did the cooking and cleaning, and assisted with dressing and
hygiene. Jonathan continued to suffer from “chronic, severe
pain” in his left leg, which “comes repeatedly without warning” as
often as “multiple times per day.” A nerve blocker had been
implanted in Jonathan’s brain, which succeeded in reducing the
pain by 55-65 percent. Jonathan continued to take pain
medications to address pain that is insufficiently managed by the
nerve blocker. Severe pain “comes without warning,” and when it
does, “any useful activity is impossible.”
Broadus said that Jonathan was employed at Les’s law firm
part time, but he “has no set hours, cannot show up if he is in
10
pain or fatigued, and can work remotely if needed.” Other than
the work he does for his father, Jonathan “has never been
employed and has no other work experience.” He had not
graduated from college and had no professional certifications.
Broadus concluded that although Jonathan had computer skills,
his pain episodes made him undependable as a worker, and
therefore he was “not employable in the open labor market.”
Jonathan also submitted a declaration. He said that the
accident left him “depressed, anxious, in extreme pain, grossly
overweight, temperamental, mentally erratic,” and “physically
restricted to a wheelchair.” He also said he was unable to drive
long distances, and unable to get in and out of a car by himself.
He said he could not support himself and relied on his mother for
rent, his car, his caregiver, and medical expenses. In a response
to a form interrogatory that was submitted with plaintiffs’
opposition, Jonathan set out a seven-page list of injuries
sustained in the accident, ranging from relatively mild issues
such as stiffness, discoloration, and itching, to severe injuries and
consequences such as multiple fractures, injury to organs,
multiple surgeries, “extreme neuropathic pain,” and the inability
to walk. Joyce submitted a declaration stating that she pays for
Jonathan’s rent, car, caretaker, and medical expenses. Plaintiffs
submitted portions of Les’s deposition, in which he testified that
Jonathan uses a wheelchair and cannot walk unassisted.
Jonathan said in his declaration that he works for Les but
has never received any money in exchange for that work.
Jonathan said that he does not consider the work he does for Les
to be real “employment.” In his discovery responses, Jonathan
said he was not employed at the time of the accident. Les also
submitted a declaration stating that Jonathan works for Les’s
11
law firm, but Les keeps the money Jonathan earns. Les also said
that Jonathan’s work at the law firm is “only symbolic,” and
Jonathan is not a good or reliable worker. Les said he plans to
retire within the next couple of years and will not continue to
employ Jonathan. Plaintiffs also attached a portion of Jonathan’s
deposition in which he said that the money he earns working for
Les has always been placed in “a separate account for me that
just accumulated and he was investing it and stuff, and . . .
teaching me to use the stock market and whatnot.” Jonathan
said that he used the settlement money he received following the
accident “for business ventures, but they failed and most of the
funds have been depleted.”
3. Reply
In its reply, Gursey repeated many of the arguments from
its motion. It also asserted that Jonathan’s and Les’s
declarations should be disregarded because the facts they stated
contradicted the testimony in their depositions. Gursey pointed
out that Jonathan and Les both said in their depositions that
Jonathan worked at Les’s law firm before and after the accident,
and that Jonathan’s pay went into an account that Les managed.
Gursey argued that in their declarations submitted with the
opposition, Jonathan and Les contradicted this testimony by
saying that Jonathan’s work was only symbolic and that
Jonathan had no entitlement to the money he earned.5
4. Hearing and court ruling
Following a hearing, the court issued a written ruling
granting the motion. With respect to the timeliness contentions,
the court cited Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103 and
5Gursey also submitted objections to plaintiffs’ evidence,
which are not relevant on appeal.
12
stated that the limitations period begins when a plaintiff
suspects injury was caused by wrongdoing. The court said
plaintiffs “had knowledge [of], or at least should have suspected,
the negligent conduct a ‘couple months’ after the accident in
February 2010.” The court noted that Joyce said she did not
learn of the actual insurance payment until later, and said,
“[R]ealizing that the insurance would not pay the $5 million is
different from learning a couple of months after the motorcycle
accident that Defendant did not get the correct amount of
insurance.”
The court also said that plaintiffs incurred damages before
2012, because even though Jonathan’s attorney said that he did
not charge any fees relating to the underinsured motorist
coverage before 2012, “the fact that Plaintiffs would incur
attorney fees is a sufficient basis to show that Plaintiffs incurred
more than nominal damage even if the exact amount of damage
of the fees was yet unknown.” Moreover, Joyce incurred damages
before 2012 because she had to pay for Jonathan’s medical care
and other needs following the accident. The court concluded, “As
such, there is no basis to conclude that actual injury did not
accrue until the summer of 2012; rather, the evidence shows that
actual injury occurred following the accident in February 2010.”
The court also said that acceptance of the underinsured
motorist settlement was not the event that triggered the statute
of limitations: “[S]imply because Plaintiffs did not accept the
$15,000 in UIM [underinsured motorist coverage] until January
2012 does not mean that the Plaintiffs did not suffer injury in
fact” before then. The court also said that because the injury was
to Jonathan, rather than a third party, “this action involves a
first-party claim where damages could be ascertained once there
13
was a basis to claim damages in excess of $1 million.”6 Because
Jonathan’s attorney made a $10 million demand to the other
driver involved in the accident in August 2010, “actual damages
began almost immediately.” “As such, as early as August 2010,
damages could be ascertained once there was a basis to claim
damages in excess of $1 million.” The court held that because
plaintiffs did not file their complaint until March 2013, their
action was time-barred under the applicable two-year statute of
limitations.
The court also considered Gursey’s argument that there
was no triable question of fact about whether Joyce suffered
damages because she supported Jonathan financially. The court
stated in its written ruling, “[T]here are insufficient facts to
support Plaintiff’s claim that Jonathan is incapacitated from
earning a living and without sufficient means.” The court
pointed to Jonathan’s testimony stating that he was employed by
Les and occasionally worked for others, and Les’s testimony that
Jonathan did computer work for Les’s law firm. The court said,
“[B]ased on the deposition testimony, it is clear that Plaintiff
Jonathan is able to perform work at both his father’s law office
and at home. He also received income from drone photography
work. . . . Thus, to the extent the plaintiff claims that he cannot
work, such is contradicted by his deposition testimony, and
cannot be considered.” The court said that based on Jonathan’s
admission that he does work, “there is no basis to conclude that
he is incapacitated from earning a living and without sufficient
6 As noted in footnote 3, ante, there was some confusion
throughout the case as to whether existing coverage was $1
million or $1.5 million. On appeal, the parties seem to agree that
the underinsured motorist coverage totaled $1.5 million.
14
means.” The court therefore granted the motion. Joyce had
asserted additional claims unrelated to the issues on appeal, and
she dismissed those claims to allow for a judgment and appeal.
Judgment was entered in favor of Gursey. Plaintiffs timely
appealed.
DISCUSSION
“We review the trial court’s grant of summary
[adjudication] de novo and decide independently whether the
parties have met their respective burdens and whether facts not
subject to triable dispute warrant judgment for the moving party
as a matter of law.” (Jessen v. Mentor Corp. (2008) 158
Cal.App.4th 1480, 1484.)
A. Accrual
The parties agree that the two-year statute of limitations in
section 339, subdivision (1) applies. The undisputed facts provide
the following relevant dates. Jonathan’s motorcycle accident
occurred in February 2010. Plaintiffs knew sometime in the first
half of 2010 that the insurance Gursey purchased for plaintiffs
did not include the $5 million policy limit plaintiffs requested.
Jonathan settled with the other driver for her $15,000 policy
limits, and received that benefit payment in January 2012.
Jonathan received the policy limits of the underinsured motorist
coverage, $1.5 million, in June 2012. Plaintiffs filed their lawsuit
in March 2013. Thus, if plaintiffs’ causes of action against
Gursey accrued before March 2011 and are not otherwise tolled,
they are time-barred.
Because the relevant facts are not in dispute, the
application of the statute of limitations may be decided as a
question of law. (Jordache Enterprises, Inc. v. Brobeck, Phleger &
15
Harrison (1998) 18 Cal.4th 739, 764 (Jordache); International
Engine Parts, Inc. v. Feddersen & Co. (1995) 9 Cal.4th 606, 611.
Generally speaking, a cause of action accrues at “‘the time
when the cause of action is complete with all of its elements.’”
(Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806.)
Thus, “[t]he statute begins to run when (1) the aggrieved party
discovers the negligent conduct causing the loss or damage and
(2) the aggrieved party has suffered actual injury as a result of
the negligent conduct.” (Apple Valley Unified School Dist. v.
Vavrinek, Trine, Day & Co. (2002) 98 Cal.App.4th 934, 942 (Apple
Valley).) For purposes of this case, only the second of these two
factors is relevant.
It is undisputed that plaintiffs discovered shortly after the
accident in 2010 that Gursey had failed to secure the insurance
coverage plaintiffs requested. Thus, this case does not involve
the delayed discovery doctrine, which makes “accrual of a cause
of action contingent on when a party discovered or should have
discovered that his or her injury had a wrongful cause.” (Fox v.
Ethicon Endo-Surgery, Inc., supra, 35 Cal.4th at p. 808.) In
delayed discovery cases, “plaintiffs are required to conduct a
reasonable investigation after becoming aware of an injury, and
are charged with knowledge of the information that would have
been revealed by such an investigation.” (Ibid.) Here, the
question is when plaintiffs incurred “actual injury”—not when
they discovered Gursey’s negligence. The trial court erred to the
extent that it relied on the delayed discovery doctrine to
determine when plaintiffs incurred actual injury.
The Supreme Court in Budd v. Nixen, supra, 6 Cal.3d 195held that actual harm is required before a cause of action accrues:
“If the allegedly negligent conduct does not cause damage, it
16
generates no cause of action in tort. [Citation.] The mere breach
of a professional 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.” (Id. at p. 200.)
In Adams v. Paul (1995) 11 Cal.4th 583 (Adams), the court said
that that “the fact of damage rather than the amount is the
relevant consideration. [Citation.] In addition, the character or
quality of the injury must be manifest and palpable.” (Id. at p.
589.)
Here, Jonathan clearly suffered damages from the
motorcycle accident in February 2010, and plaintiffs discovered
Gursey’s negligence shortly after the accident in early 2010.
However, plaintiffs did not suffer the damages alleged to be
caused by Gursey—diminished benefits under the underinsured
motorist coverage—until Jonathan received that diminished
benefit payment in June 2012.
Under relevant statutes and case law, a right to
underinsured motorist coverage does not accrue until the insured
has reached a settlement or judgment exhausting the
underinsured motorist policy. Insurance Code section 11580.2,
subdivision (p)(3) (section 11580.2(p)(3)) states that underinsured
motorist coverage “does not apply to any bodily injury until the
limits of bodily injury liability policies applicable to all insured
motor vehicles causing the injury have been exhausted by
payment of judgments or settlements, and proof of the payment is
submitted to the insurer providing the underinsured motorist
coverage.”
The Supreme Court discussed this requirement in
Quintano v. Mercury Casualty Co. (1995) 11 Cal.4th 1049(Quintano), stating, “[S]ection 11580.2(p)(3) establishes a
17
condition precedent to the accrual of the insured’s right to
coverage.” (Id. at p. 1057.) The Court continued, “[U]nder
section 11580.2(p)(3), the right to coverage under the
underinsured motorist policy does not even arise until after the
tortfeasor’s insurer has paid the insured pursuant to a judgment
or settlement with the tortfeasor.” (Ibid.) The Court said that an
insured may not make a demand for arbitration to determine
coverage before settling with the underinsured motorist, because
“the insured’s right to claim coverage would not have accrued, so
that any demand for arbitration would be premature. Further,
as a practical matter, the insurer’s liability cannot be determined
by arbitration until settlement or judgment against the
tortfeasor, as the insurer is only liable for the difference between
the amount paid by the tortfeasor or his or her insurer and the
insured’s policy limits. (§ 11580.2(p)(4), (5).)” (Id. at p. 1059.)
Here, Jonathan was not entitled to coverage from the
underinsured motorist policy until after he settled with the other
driver’s insurance in January 2012. Gursey argued that Jonathan
suffered actual injury when he “sustained severe bodily injuries
exceeding his available insurance coverage, without any right to
obtain any greater liability protection to fully compensate him for
his injuries.” Gursey asserts that this “diminution of a right”
constitutes actual damages. We are not persuaded that Jonathan
could be damaged by the allegedly inadequate limit of the
underinsured motorist policy before the right to receive any
coverage under that policy had accrued. As the Court said in
Adams, “‘The mere breach of a professional duty, causing only . . .
the threat of future harm—not yet realized—does not suffice’” to
constitute actual harm. (Adams, supra, 11 Cal.4th at p. 589.)
18
Jonathan’s harm was not yet realized before he had a right to the
benefits of the underinsured motorist policy.
Plaintiffs assert that this case is similar to Williams v.
Hilb, Rogal & Hobbs Ins. Services of California, Inc. (2009) 177
Cal.App.4th 624. We agree. In that case, a company bought an
insurance package that its insurance agency specifically designed
for the company. (Id. at pp. 628-629.) After a worker was injured
in a fire, the company owners discovered that the insurance
package they purchased included a $1 million general commercial
liability policy, but did not include any workers’ compensation
insurance. The employee sued, and a jury found the company
liable. (Id. at p. 629-630.) The company then sued the insurance
agency, HRH, which asserted that the statute of limitations
barred the action. HRH argued that the statute of limitations
began to run on the date the employee was injured, because on
that date the company knew that liability was “inescapable,” and
only the amount of the liability, not the fact of liability, remained
to be determined. (Id. at p. 641.)
The Court of Appeal held that the company did not incur
actual injury until judgment was rendered in the employee’s
lawsuit. Although the company knew of potential liability when
the employee was injured, “no actual injury occurred until
judgment was entered” against the company that exceeded the
general liability policy. (Williams, supra, 177 Cal.App.4th at pp.
641-642.) “Until judgment was entered against [the company] in
excess of that amount, other litigation results were possible: a
settlement or verdict under the $1 million policy limit, greater
comparative liability on codefendant Rhino USA, or a defense
verdict. Thus until the judgment was entered, [the company]
19
sustained no appreciable harm from the lack of workers
compensation insurance coverage.” (Id. at p. 642.)
The Williams court relied on Walker v. Pacific Indem. Co.
(1960) 183 Cal.App.2d 513, which presented similar facts. There,
a logging truck owner requested that his insurance broker secure
a policy with a $50,000 bodily injury limit. The broker secured a
policy with only a $15,000 limit. (Id. at p. 515.) The truck was in
an accident, and a jury returned a verdict for the other driver in
the amount of $100,000. (Ibid.) The truck owner assigned his
rights under the policy to the other driver, and she sued the
insurance company and broker. (Ibid.) The broker demurred,
arguing that the claim was time-barred because it accrued at the
latest on the date of the accident. The plaintiff argued that the
cause of action accrued when the judgment was entered. (Ibid.)
The Court of Appeal said, “There is no dispute that the
wrong here occurred March 17, 1952, when defendant
‘negligently and carelessly’ procured a policy with limits of
$15,000, rather than $50,000.” (Walker, supra, 183 Cal.App.2d at
pp. 515-516.) The court continued, “But was there any injury or
damage then? We think not. . . . Until an accident occurred,
bodily injury was inflicted on another, and a liability in excess of
the $15,000 coverage incurred, there was no injury to [the truck
owner] in the absence of possible special facts which do not
appear here.” (Id. at p. 516.)
The reasoning of Williams and Walker applies here,
because the fact of the defendants’ negligence became known to
the plaintiffs before the plaintiffs incurred any damages resulting
from that negligence. These cases can be distinguished from
cases in which a plaintiff suffers damages, and later discovers
negligence caused those damages.
20
For example, Gursey asserts that this case is similar to
Jordache, supra, 18 Cal.4th 739. In that case, Jordache retained
a law firm, Brobeck, to represent it in a lawsuit in which
Jordache had been named as a defendant. Brobeck did not give
Jordache any advice about potential liability insurance coverage,
and neither Jordache nor Brobeck informed Jordache’s insurer of
the lawsuit. Two and a half years later, Jordache retained new
counsel who told Jordache there was potential insurance
coverage for the lawsuit. By December 1987, “Jordache had
discovered Brobeck’s alleged negligence in not notifying or
advising Jordache to notify its insurers” of the lawsuit. (Id. at p.
745.)
Jordache tendered the defense of the lawsuit to its
insurers, which apparently denied the claim; “in February 1988,
Jordache sued its insurers, alleging they failed to provide a
defense and wrongfully refused to acknowledge coverage.”
(Jordache, supra, 18 Cal.4th at p. 745.) In May 1990, the original
lawsuit against Jordache settled. (Id. at p. 746.) In July 1990,
“Jordache settled its insurance coverage suits for $12.5 million.”
(Id. at p. 746.)
Jordache then sued Brobeck in February 1991,7 alleging
that Brobeck failed to investigate possible insurance coverage
and failed to advise Jordache to report the litigation to its
insurers. Brobeck moved for summary judgment on the grounds
that Jordache knew of the alleged negligence and suffered actual
injury in 1987, and therefore its claim was time-barred. Jordache
7 Jordache’s lawsuit against the attorney was filed in
February 1991, but pursuant to a tolling agreement, it was
deemed filed as of August 1990. (Jordache, supra, 18 Cal.4th at
p. 746.)
21
argued that it did not suffer actual injury until it settled with its
insurer for less than the full amount of its claim in July 1990.
(Jordache, supra, 18 Cal.4th at p. 746.)
The Supreme Court said, “‘The mere breach of a
professional 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. [Citations.]
Hence, until the client suffers appreciable harm as a consequence
of [the] attorney’s negligence, the client cannot establish a cause
of action for malpractice.’” (Jordache, supra, 18 Cal.4th at p.
750.) The Court held that Jordache already had suffered actual
injury by the time it learned of Brobeck’s negligence in 1987,
because it had been paying for defense counsel who otherwise
might have been covered by insurance: “By then, Jordache had
lost millions of dollars—both in unpaid insurance benefits for
defense costs in the [original] action and in lost profits from
diversion of investment funds to pay these defense costs. As
Brobeck asserts, these damages were sufficiently manifest,
nonspeculative, and mature that Jordache tried to recover them
as damages in its insurance coverage suits.” (Jordache, supra, 18
Cal.4th at p. 752.)
The Court also said that “Jordache’s injuries were not
speculative or contingent until the trial court ruled the insurers
had a duty to defend Jordache and Jordache settled its coverage
claims. [S]peculative and contingent injuries are those that do
not yet exist, as when an attorney’s error creates only a potential
for harm in the future. [Citations.] An existing injury is not
contingent or speculative simply because future events may affect
its permanency or the amount of monetary damages eventually
incurred. [Citations.].” (Id. at p. 754.) The Court added,
22
“Delaying recognition of actual injury until related litigation
concludes would give a client who has sustained actionable
damages, and who is aware of the attorney’s error unilateral
control over the limitations period. This result would undermine
the Legislature’s purpose in enacting a statute of limitations. (Id.
at p. 755.)
Because Jordache alleged that it was entitled to insurance
coverage at the initiation of the original lawsuit filed against it,
Jordache began to incur actual damages when it began to pay for
the costs that otherwise would have been covered by insurance.
By the time it discovered Brobeck’s negligence, Jordache already
had incurred damages. The record does not demonstrate that the
same is true here. Rather, because the insurance coverage at
issue is underinsured motorist coverage, and Jonathan’s right to
that coverage did not accrue until 2012 due to statutory
restrictions, Jonathan’s actual injury did not occur until he
received the limited benefits payment of $1.5 million.
Gursey asserts that Jonathan was damaged not only by
receipt of the diminished limits of the underinsured motorist
policy in June 2012, but also “because his attorneys had to spend
time to investigate his coverage, and Joyce sustained damages
because she started paying for Jonathan’s expenses” before
Jonathan collected any insurance benefits. Gursey compares this
case to Apple Valley, supra, 98 Cal.App.4th 934. That case, like
Jordache, involves delayed discovery of wrongdoing after
damages already had been incurred, rather than a delay in actual
injury.
In Apple Valley, a public school district hired an accounting
firm to analyze the policies of a charter school and audit the
school’s finances. (Id. at p. 938.) The firm issued a report
23
regarding finances and attendance for part of the school, but
omitted information about associated “satellite” schools that
charged tuition and taught religion—practices that violated state
and federal law. (Id. at p. 939.) The district later learned of the
violations and revoked the school’s charter; a subsequent audit
revealed that the charter school had received $4.4 million more in
funding than it was entitled to receive. (Id. at pp. 939-940.) The
district then sued the accounting firm, alleging that its false
representations about the school led to the improper issuance of
funds to the school. (Id. at p. 940.)
The firm asserted that the district’s claim was time-barred
because the district knew of possible wrongdoing at the school
and had suffered damages more than two years before it sued the
accounting firm. (Apple Valley, supra, 98 Cal.App.4th at p. 942.)
The district countered that it had not suffered damages until an
audit report stated that the district was responsible for the
improper payments to the charter school, because before then,
damages were speculative. (Id. at p. 944.) The Court of Appeal
agreed with the accounting firm. It held that the district suffered
actual injury when it provided funds to the charter school based
on the defendant firm’s misrepresentations, or “after it suspected
the error and suffered out-of-pocket losses by paying
investigation and legal fees in an effort to determine the extent of
the improper payments. In either case, the statute of limitations
lapsed.” (Id. at p. 947.)
The Apple Valley court discussed Jordache, and noted that
according to that opinion, legal fees and investigation costs
incurred as the direct result of another’s tort constitute
recoverable damages. (Apple Valley, supra, 98 Cal.App.4th at p.
948.) The court said, “[T]herefore, the out-of-pocket expenses the
24
District incurred when it engaged its accountant and legal
counsel, in an effort to determine the extent of the improper
payments and arrange for reimbursement of funds improperly
received, constituted actual injury for limitations purposes.” (Id.
at p. 949.) The court also said that later events that might alter
the district’s financial responsibility did not change the accrual
date: “That the District may ultimately avoid liability for the
improper payments through its pending appeal does not mean it
did not suffer injury.” (Id. at p. 951.)
Gursey asserts that here, plaintiffs incurred damages when
they began to investigate the scope of insurance coverage.
However, there is no indication that recovery of attorney fees is
appropriate in the context of this case. Attorney fees are not
typically recoverable in the absence of an agreement between the
parties. (See § 1021.) There is an exception, where “a person
who through the tort of another has been required to act in the
protection of his interests by bringing or defending an action
against a third person.” (Prentice v. North Am. Title Guaranty
Corp., Alameda Division (1963) 59 Cal.2d 618, 620.) In Jordache,
for example, Jordache incurred legal fees as a result of Brobeck’s
negligence because it had to defend itself in the original
litigation. In such cases, “attorney’s fees . . . are recoverable as
damages resulting from a tort in the same way that medical fees
would be part of the damages in a personal injury action.”
(Brandt v. Superior Court (1985) 37 Cal.3d 813, 817.) As Apple
Valley noted, investigation costs incurred as a direct result of
another’s tort can also be deemed recoverable damages. (Apple
Valley, supra, 98 Cal.App.4th at pp. 948-949; see also Stearman
v. Centex Homes (2000) 78 Cal.App.4th 611, 625 [in a
construction defect case, fees were recoverable where “plaintiffs
25
were billed $37,500 by professionals who investigated the
problems in order to formulate an appropriate repair plan.”].)
This “so-called ‘third party tort exception’ to the rule that parties
bear their own attorney fees is not really an ‘exception’ at all but
an application of the usual measure of tort damages. . . . In such
cases there is no recovery of attorney fees qua attorney fees.”
(Sooy v. Peter (1990) 220 Cal.App.3d 1305, 1310.)
Here, there is no indication that the third-party tort
exemption applies. The evidence does not suggest that plaintiffs
employed counsel to do anything more than represent Jonathan
in relationship to the accident—which presumably would have
occurred even if the underinsured policy limits were higher—and
to represent them in this case. Gursey does not assert that
plaintiffs had to defend a separate lawsuit as a result of
defendants’ negligence or incur investigation costs other than
typical litigation discovery. Indeed, the evidence is to the
contrary. Jonathan’s attorney stated in his declaration that he
investigated the scope of available insurance while defending
Jonathan against a claim made by Jonathan’s passenger, which
he would have done in any personal injury case. The attorney
made clear that he did not investigate anything relating to
Gursey’s negligence until the summer of 2012. Moreover,
plaintiffs’ second amended complaint did not request attorney
fees or investigation costs as recoverable damages. Thus,
Gursey’s argument that its negligence caused plaintiffs to incur
recoverable damages in the form of attorney fees before June
2012 is not supported by the evidence or the law.
In holding that plaintiffs incurred damages before 2012,
the trial court also relied on Joyce’s declaration stating that she
paid for Jonathan’s immediate medical bills, caretaker, and other
26
needs after the accident, and said this “shows that actual injury
occurred following the accident in February 2010.” The court’s
conclusion conflates the injuries caused by the accident with the
injuries allegedly caused by Gursey’s negligence. As discussed
above, Jonathan was not entitled to the benefits of the
underinsured policy coverage until after he settled his claim
against the other driver in January 2012. Jonathan (and
presumably, Joyce) would have incurred costs for Jonathan’s
medical care and living expenses from the time of the accident
until Jonathan collected the underinsured motorist policy
benefits, no matter what the limits on the policy were. In other
words, Gursey’s negligence—purchasing a $1.5 million policy
versus a $5 million policy—had no effect on Jonathan’s medical
or living expenses from the time of the accident in February 2010
until the time Jonathan became entitled to underinsured
motorist policy benefits in June 2012. Jonathan’s entitlement to
eventual reimbursement of medical and living expenses through
the underinsured motorist policy is not tantamount to those
expenses being caused by Gursey’s negligence in the first
instance. Thus, the fact that Jonathan and Joyce incurred those
expenses following the motorcycle accident does not warrant a
finding that Jonathan’s causes of action against Gursey accrued
before June 2012.
In addition, as plaintiffs point out, until Jonathan received
the benefit payment from the underinsured motorist policy, his
damages remained speculative. It was not clear that Jonathan
would suffer damages resulting from Gursey’s negligence until a
finding was made that he was entitled to the upper limit of the
underinsured motorist coverage. By statute, the amount of
recovery under an underinsured motorist policy is to be
27
determined by agreement between the insured and the insurer,
or if the parties do not agree, by arbitration. (Ins. Code,
§ 11580.2, subd. (f); see also Bouton v. USAA Cas. Ins. Co. (2008)
43 Cal.4th 1190, 1193 (“if the insurer and the insured cannot
agree whether the insured is legally entitled to recover damages
from an uninsured motorist and the amount of such damages,
those issues shall be determined by arbitration.”).) In addition, if
any other party is deemed liable for the injuries, the
underinsured motorist insurance coverage may be reduced. (See,
e.g., Ins. Code, § 11580.2, subd. (p)(4); Mercury Ins. Co. v.
Vanwanseele-Walker (1996) 41 Cal.App.4th 1093, 1103 [car
manufacturer that settled product liability claims relating to a
car accident was an organization legally liable for the injury, and
therefore recovery under the underinsured motorist policy should
have been reduced].)
Here, the parties seem to agree that Jonathan’s damages
exceeded $1.5 million. However, liability for the damages was
contested, and as plaintiffs point out, “if [the insurer] had been
able to convince the arbitrator that Jonathan bore the brunt of
the fault for causing the accident, the arbitration award could
have been for $1.5 million or less.” If that were the case,
Jonathan would not have been entitled to more than $1.5 million
in underinsured motorist coverage, and Gursey’s negligence in
purchasing a lower-limit policy would not have caused plaintiffs
any harm.
Gursey asserts that the Supreme Court rejected a similar
argument in Jordache. There, the Court stated, “There is no
requirement that an adjudication or settlement must first
confirm a causal nexus between the attorney’s error and the
asserted injury.” (Jordache, supra, 18 Cal.4th at p. 752.) The
28
Court continued, “[T]he result of Jordache’s coverage litigation
could only confirm, but not create, Jordache’s actual injuries from
the late tender of the [litigation] defense. Jordache’s right to an
insurer-funded defense existed or not when that action first
embroiled Jordache. The right to that insurance benefit, the
impairment of that right, and Jordache’s expenditures while that
right was unavailable, did not arise for the first time when
Jordache settled with the insurers.” (Id. at p. 753.)
This passage from Jordache highlights the contrast
between these two cases. There, Jordache allegedly had a right
to insurance coverage from the beginning of the original litigation
against it. Here, Jonathan did not have a right to claim
underinsured motorist insurance coverage until after his claim
against the other driver was settled in January 2012. Jonathan
could not incur actual injury from the inadequate insurance
policy before he was entitled to receive the benefits of the
insurance policy.
Gursey also asserts that Jordache bars plaintiffs’ claims
because that case warned against “a general rule that tolls the
limitations period until a related lawsuit establishes a causal
connection between attorney error and resulting injury.”
(Jordache, supra, 18 Cal.4th at p. 754.) The court said, “[A]
prospective malpractice plaintiff could influence the course of the
collateral suit and the timing of its conclusion. . . . Delaying
recognition of actual injury until related litigation concludes
would give a client who has sustained actionable damages, and
who is aware of the attorney’s error, unilateral control over the
limitations period. This result would undermine the
Legislature’s purpose in enacting a statute of limitations.” (Id. at
p. 755.)
29
Gursey argues that the same reasoning applies here: “To
hold that [plaintiffs’] damages did not arise until Jonathan
settled his claims gives [plaintiffs] ‘unilateral control’ over the
limitations period, because they decided when to file their claim
against [the other driver], when to demand her policy limits,
what conditions to place on her acceptance, when to file the UIM
claim and when to demand the UIM limits. . . . In fact, it was
[plaintiffs] who delayed the resolution of that claim by
conditioning settlement on the other driver providing a
declaration proving there were no other possible sources of
recovery, and then waiting for that declaration for a year and a
half while offering no evidence explaining or justifying the delay.
Similarly, it was [plaintiffs] who decided when to bring the
underinsured motorist claim and when to demand the
underinsured motorist policy limits from the insurance carrier.”
As the Supreme Court in Quintano acknowledged, some
delay is inherent in underinsured motorist claims: “[S]ettlement
with the tortfeasor’s insurer may take close to a year even when
the insured assiduously pursues settlement” (Quintano, supra, 11
Cal.4th at p. 1057), and “even if the insured makes a timely claim
against the tortfeasor’s insurer, that insurer may agree to a
settlement but delay payment for a period beyond a year past the
date of the accident.” (Id. at p. 1058.) However, the court said
that delay is warranted because determination of the tortfeasor’s
liability is critical to the determination of liability under the
underinsured motorist policy: “By statute, the underinsured
motorist insurer owes nothing until satisfaction of judgment or
settlement against the tortfeasor, and is entitled to a credit for
any amount the insured received from the tortfeasor.
(§ 11580.2(p)(3), (5).) The insurer can never be liable for more
30
than the tortfeasor’s liability. (Ibid.)” (Id. at p. 1061.) The court
stated that delay was not a significant concern: “[A]s a practical
matter, we think it unlikely the insured who chooses to settle
with the tortfeasor will delay making a claim on the insurer any
longer than the insured who chooses to sue the tortfeasor. To
make a claim, after all, is the only way to receive full
compensation under the underinsured motorist policy. Nor does
it seem likely the insured will delay concluding a judgment or
settlement with the tortfeasor’s insurer, for the same reason.”
(Id. at p. 1064.)
Here, the delay does not warrant a holding that Jonathan
incurred actual injury before his right to the benefits of the
underinsured motorist policy was determined. Gursey has not
presented any evidence to suggest that Jonathan influenced the
timing of the underinsured motorist’s insurance payment.
Moreover, Gursey has not demonstrated that it was prejudiced by
the delay. Standing alone, the fact that underlying litigation was
required to determine whether Jonathan would incur damages
does not render his claim for those damages untimely.
In summary, our holding is as follows. A cause of action
accrues when it is complete with all of its elements. Damages is
an element of the torts alleged in this case. Jonathan did not
incur actual damages arising from Gursey’s negligence until June
2012, when he recovered $1.5 million from the underinsured
motorist policy instead of the higher amount he allegedly would
have received in the absence of Gursey’s negligence. Jonathan’s
causes of action against Gursey therefore did not accrue until
June 2012. The trial court erred by granting summary
adjudication on the basis that plaintiffs’ causes of action were
time-barred.
31
B. Liability to Joyce based on Family Code section 3910
Plaintiffs also assert that the trial court erred in finding
that there was no triable issue as to Joyce’s alleged damages.
Plaintiffs alleged that Joyce incurred damages because she has
an obligation to support Jonathan under Family Code section
3910, subdivision (a), which states in full, “The father and mother
have an equal responsibility to maintain, to the extent of their
ability, a child of whatever age who is incapacitated from earning
a living and without sufficient means.”8 An adult child is deemed
incapacitated from earning a living within the meaning of Family
Code section 3910 “if he or she demonstrates ‘an inability to be
self-supporting because of a mental or physical disability or proof
of inability to find work because of factors beyond the child’s
control.’” (In re Marriage of Cecilia and David W. (2015) 241
Cal.App.4th 1277, 1285.) “[T]he question of ‘sufficient means’
should be resolved in terms of the likelihood a child will become a
public charge.” (In re Marriage of Drake (1997) 53 Cal.App.4th
1139, 1154.)
The trial court granted Gursey’s motion for summary
adjudication on this issue, finding that “there are insufficient
8It is not clear that this statute provides an appropriate
basis upon which a parent may establish liability against a third
party. (See, e.g., In re Marriage of Drake (1997) 53 Cal.App.4th
1139, 1152 [“[A] parent’s statutory duty to support an
incapacitated adult child runs to the child [citations], although
this duty may be enforced by an action initiated by the other
parent.”].) The parties do not address the applicability of this
statute to the facts of this case, however. Thus, we assume
without deciding that Gursey could be liable if plaintiffs could
make a showing that Jonathan was incapacitated and without
means under this statute.
32
facts to support Plaintiff’s claim that Jonathan is incapacitated
from earning a living and without sufficient means.” The court
said, “[I]t is clear that Jonathan is able to perform work at both
his father’s law office and at home,” and he also received income
from other work. The court found that Jonathan had “admitted
that he was able to work,” warranting summary adjudication of
this issue.
Plaintiffs assert that the court erred because it “went far
beyond determining whether there was a triable issue of fact
concerning the extent of Jonathan’s incapacity,” and instead
“improperly resolved those disputed issues in favor of Gursey.”
“[T]he court’s sole function on a motion for summary judgment is
to determine from the submitted evidence whether there is a
‘triable issue as to any material fact’ (§ 437c, subd. (c)).” (Zavala
v. Arce (1997) 58 Cal.App.4th 915, 926.) “There is a triable issue
of material fact if, and 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.” (Aguilar v. Atlantic Richfield Co. (2001) 25
Cal.4th 826, 850.) The question here, therefore, is whether the
evidence would allow a reasonable trier of fact to find that
Jonathan is “incapacitated from earning a living and without
sufficient means.”
The evidence shows that both before and after the accident,
Jonathan was employed at Les’s law firm doing computer work.
In his deposition, Les said that Jonathan does “real work”; his
position at the firm was not a “made-up job.” Jonathan testified
that he works for Les and also does some work for family friends.
Jonathan testified that both before and after the accident, the
money he earned by working for Les went into an account that
33
Les controlled, and the money was invested and used to teach
Jonathan how to invest in stocks.
In opposition to the motion, plaintiffs submitted
declarations that contradicted the deposition testimony. For
example, Jonathan testified that Les deposited Jonathan’s pay
“in a separate account for me that just accumulated and [Les]
was investing it,” but in his declaration he said that Les used
Jonathan’s pay to reimburse debts Jonathan owes to Les. Les
also contradicted his deposition testimony, because at his
deposition he testified that Jonathan does “real work” at his law
firm, but in his declaration he said that Jonathan’s employment
is “only symbolic.” As the court correctly noted, “a party cannot
create an issue of fact by a declaration which contradicts his prior
discovery responses.” (Shin v. Ahn (2007) 42 Cal.4th 482, 500 fn.
12.)
Plaintiffs assert that a triable issue of fact was
demonstrated by vocational expert Paul Broadus’s conclusion
that Jonathan is “not employable in the open labor market” and
Joyce’s declaration that before the accident, she did not plan to
continue supporting Jonathan. However, when there is a dispute
over the child’s capacity, “the incapacity standards require courts
to focus not on the adult child’s conditions and their potential
impact on employment, but rather on his or her ability to find
work or become self-supporting in light of such conditions.” (In re
Marriage of Cecilia and David W., supra, 241 Cal.App.4th at p.
1286.) Here, Jonathan did find work—the very same work he
was doing before the accident. At his deposition, counsel asked
Jonathan, “[T]he method of support of yourself hasn’t changed
from before the accident; is that right?” Jonathan answered,
“That’s right.” The trial court did not err by finding that
34
plaintiffs failed to demonstrate a triable issue of fact as to
Jonathan’s incapacity and lack of means under Family Code
section 3910.9
DISPOSITION
The judgment is reversed in part and affirmed in part. On
remand, the trial court shall vacate its order granting summary
adjudication of plaintiffs’ claims, and enter a new order denying
the motion as to the statute of limitations, and granting the
motion as to Joyce’s damages based on Family Code section 3910.
The parties shall bear their own costs on appeal.
CERTIFIED FOR PUBLICATION
COLLINS, J.
We concur:
EPSTEIN, P. J.
WILLHITE, J.
9 Our finding that plaintiffs failed to demonstrate a triable
issue of fact under the particular requirements of Family Code
section 3910 is limited to this specific issue, and should not be
construed as relating to Jonathan’s capacity or employability in
any other aspect of the case.
35