FYBEL, J.
Pastor Jack Loo, an employee of The Presbyterian Church of the Master (Church of the Master) provided counseling services to Carol Ann Carlson. After eight years of counseling, Loo and Carlson's relationship became sexual, and continued as such for 11 more years. Carlson was 35 to 46 years old during this time period. Carlson contends she was the victim of sexual abuse. She sued Church of the Master and The Presbytery of Los Ranchos (Presbytery), among others, for breach of a confidential relationship and for the negligent supervision, retention, and hiring of Loo. Church of the Master and Presbytery filed separate motions for summary judgment, contending the statute of limitations on Carlson's claims ran before she filed her lawsuit. The trial court granted the motions; Carlson appeals.
We conclude the trial court properly granted the motions. Church of the Master and Presbytery offered Carlson's deposition testimony that between 1995 and 1999, she was diagnosed with posttraumatic stress disorder (PTSD), caused by the sexual relationship with Loo. Carlson did not file her complaint until 2008. Thus, Carlson was aware of her injury and its cause at least nine, and as many as 13, years before filing her complaint. By statute, she was entitled to and did make substantive changes to her deposition testimony. Nevertheless, evidence before the trial court, in the form of Carlson's deposition testimony that she did not change, established the statute of limitations began to run much more than two years before Carlson filed her complaint. We therefore affirm the judgments.
In 1987, at the age of 27,
In 1995, Loo and Carlson (then age 35) began a sexual relationship. Loo continued counseling Carlson while the sexual relationship was occurring. The sexual relationship continued until 2006, when Carlson was 46 years old.
Carlson filed a complaint against Church of the Master on February 29, 2008. On July 1, 2009, Carlson filed a third amended complaint, and added Presbytery as a Doe defendant. The third amended complaint included causes of action against Church of the Master and Presbytery for breach of a confidential relationship; negligent supervision, retention, and hiring; and psychotherapist malpractice.
During her deposition, Carlson testified that sometime in the period between 1995 and 1999, Dr. Dennis Lowe had diagnosed her with and treated her for PTSD and that her PTSD was caused by Loo's misconduct. Carlson made written corrections to her deposition transcript, which changed most, but not all, of her responses to the questions about Dr. Lowe's PTSD diagnosis.
Church of the Master filed a motion for summary judgment, arguing Carlson's claims against it were barred by the applicable statute of limitations. The trial court granted the motion, and entered judgment in favor of Church of the Master. Carlson timely appealed.
Presbytery filed a separate motion for summary judgment; this motion was based, in part, on the statute of limitations. The trial court granted the motion and entered judgment, and Carlson timely appealed.
This court granted Carlson's unopposed motion to consolidate the two appeals for all purposes.
"A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. [Citation.] We review the trial court's decision de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. [Citation.]" (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) This case presents the question of what evidence was actually before the trial court in connection with the motions for summary judgment.
The parties agree that this case is governed by Code of Civil Procedure section 335.1, which applies a two-year statute of limitations to any claim for injury caused by the wrongful act or neglect of another. "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.] . . . [¶] . . . [¶] . . . In other words, 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." (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807-808 [applying Code of Civil Procedure section 340, former subdivision (3), which was replaced by section 335.1 in 2002 (Stats. 2002, ch. 448, § 2)].)
"Generally, a cause of action accrues for purposes of the statute of limitations, and the applicable limitations period begins to run, when the plaintiff has suffered damages from a wrongful act. [Citation.] However, this rule has an important exception, referred to as the discovery rule that `postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action.' [Citation.] But the rule is not so broad as to delay accrual indefinitely until the plaintiff stumbles upon a claim. Rather, the 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, `wrong' being used, not in any technical sense, but rather in accordance with a lay understanding. [Citation.] Thus, under the discovery rule, the plaintiff need not be aware of the specific facts or legal theory necessary to establish the claim. [Citation.] He or she need not even know the identity of the wrongdoer. [Citation.] Rather, the plaintiff need only be aware of his or her injury and have knowledge of sufficient facts to place him or her on actual or inquiry notice that the injury has a negligent cause. [Citation.]" (Lyles v. State of California (2007) 153 Cal.App.4th 281, 286-287.)
The summary judgment motion filed by Church of the Master was based solely on the statute of limitations defense. Church of the Master's separate statement of undisputed material facts read, in relevant part, as follows: "Sometime between 1995 at the earliest and 1999 at the latest Dr. Dennis Lowe diagnosed Plaintiff as having suffered Post Traumatic Stress Disorder caused by sexual abuse perpetrated against Plaintiff by her therapist, Pastor Jack Loo." This undisputed material fact was supported by many references to Carlson's deposition, as transcribed. Church of the Master contended it established the undisputed fact that, no later than 1999, Carlson had knowledge of the harm she suffered and of its cause. Carlson's complaint was filed on February 29, 2008. Church of the Master argued it had therefore met its initial burden on summary judgment to show there was a complete defense to Carlson's claim, namely, that the action was barred by the applicable statute of limitations. (Code Civ. Proc., § 437c, subd. (p)(2).)
Carlson responded to the summary judgment motion by offering evidence that she had made changes to her original deposition testimony, pursuant to Code of Civil Procedure section 2025.520, subdivision (b), which provides: "For 30 days following each notice under subdivision (a), unless the attending parties and the deponent agree on the record or otherwise in writing to a longer or shorter time period, the deponent may change the form or the substance of the answer to a question, and may either approve the transcript of the deposition by signing it, or refuse to approve the transcript by not signing it." (Italics added.)
Because Carlson's changes were made within the 30-day period after the deposition was certified, they effectively removed from the record much of the testimony cited in Church of the Master's separate statement. A deponent's right to change the substance of his or her testimony during the statutory period is absolute. It does not matter that a dispositive motion relying on the original testimony is filed in the interim.
The case of Shapero v. Fliegel (1987) 191 Cal.App.3d 842, relied on by Church of the Master and Presbytery, is inapposite. In Shapero, in opposition to the defendant's motion for summary judgment, the plaintiff filed a declaration contradicting her earlier deposition testimony. (Id. at p. 849.) The plaintiff also interlineated her deposition transcript with the corrections she wished to make, but the trial court rejected her changes, and granted summary judgment. (Id. at pp. 849-850.) It appears that the deposition in question was taken at least three years before the motion for summary judgment was filed; there is no question that the deposition changes were not made during the 30-day period permitted by statute. (Id. at p. 845.) The plaintiff in Shapero was not exercising her rights under Code of Civil Procedure section 2025.520, subdivision (b); she was belatedly attempting to rewrite history.
D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1 (D'Amico) and its progeny are also not on point to the issue before us. In D'Amico, the California Supreme Court held that a party's discovery responses may properly be used against that party as admissions supporting a motion for summary judgment. (Id. at pp. 21-22.) D'Amico has been correctly cited for the following proposition: "In a nutshell, the rule bars a party opposing summary judgment from filing a declaration that purports to impeach his or her own prior sworn testimony." (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1522; see Thompson v. Williams (1989) 211 Cal.App.3d 566, 573 [summary judgment properly granted based on the plaintiff's deposition answers, where the plaintiff never sought to amend those answers, but filed "a self-serving declaration, seeking to avoid the consequences of his prior admissions" in opposition to the summary judgment motion].) Carlson did not seek to contradict her deposition testimony with a "self-serving" declaration; rather, she used the procedures provided by statute to amend some of her deposition answers. Accordingly, D'Amico is inapplicable in this case.
For the same reason, Gray v. Reeves (1977) 76 Cal.App.3d 567, relied on by Church of the Master and Presbytery at oral argument on appeal, is not relevant. In that case, the plaintiff sued the defendants for negligence in treating the plaintiff with the drug prednisone. (Id. at p. 570.) The plaintiff's deposition was taken in December 1973, but he did not sign the deposition transcript. (Id. at p. 571.) In June 1975, the defendants moved for summary judgment on the ground the complaint was barred by the statute of limitations. (Id. at p. 572.) On the day of the hearing on the motion for summary judgment, the plaintiff signed his deposition, and made corrections to it; those corrections changed the substance of the deposition testimony on which the defendants' motion for summary judgment relied. (Id. at pp. 573-574.) The appellate court affirmed the judgment entered after the trial court granted the motion for summary judgment.
Church of the Master and Presbytery rely on Gray v. Reeves for the proposition that D'Amico applies not only when the party opposing summary judgment files a declaration contrary to his or her previous deposition testimony, but also when the party changes that deposition testimony. In Gray v. Reeves, supra, 76 Cal.App.3d at page 574, the court stated: "There is no reason to draw a distinction between an attempt to counter an admission by affidavit and an attempt to counter an admission by changing the content of an answer given by a party directly in the deposition, especially where there is no assertion the original answer was incorrectly transcribed or the question was misleading or ambiguous. In both the changed affidavit and changed deposition cases the credibility of the parties is held up for examination by the contradicting statements, the first of which constitutes a reliable admission against interest. The trial court may accept the first and reject the later of these contrary positions. This choice is particularly called for where, as here, the deponent waits 19 months to make the changes and is then inspired to make the changes by pressures attending an apparently grantable motion for summary judgment." We reiterate that our case involves a situation where Carlson made changes to her deposition testimony during the statutorily authorized time, not 19 months later. Therefore, contrary to the argument of Church of the Master and Presbytery, Carlson was not required to explain or justify the changes she made to the deposition testimony, nor was the trial court permitted to determine on summary judgment whether the original or the changed testimony was more credible.
The present case does not involve Carlson's attempt to use a declaration to contradict the substance of her deposition testimony, or to change her deposition testimony outside the statutory time period. Rather, we are confronted with the question of determining what constitutes Carlson's deposition testimony. This question is answered by the words of Code of Civil Procedure section 2025.520, subdivision (b), discussed ante.
Carlson did not change all of her deposition testimony cited in Church of the Master's motion for summary judgment. So the question becomes, based on the record as a whole, is her unchanged deposition testimony sufficient to establish no triable issue of material fact exists regarding the date on which the statute of limitations began to run.
Of critical importance in this case is Carlson's testimony regarding her treatment by Dr. Lowe between 1995 and 1999. At her deposition, Carlson testified several times that during her treatment with Dr. Lowe, she had been diagnosed with PTSD resulting from the sexual abuse by Loo. In exercising her right to make changes to the deposition transcript, Carlson changed much of her testimony from a positive statement that Dr. Lowe diagnosed her with PTSD between 1995 and 1999, to a disclaimer that she did not know how Dr. Lowe diagnosed her. What follows is a recitation of the deposition testimony relied on by Church of the Master in its summary judgment motion, with Carlson's original testimony marked by strikethroughs, and the changes she made to the testimony indicated by double underscoring. Incorporating Carlson's changes to her deposition testimony, the following evidence was before the trial court in support of Church of the Master's motion for summary judgment:
Even with the changes made by Carlson to her deposition testimony, she does not create a triable issue of material fact. The evidence properly before the trial court established that Dr. Lowe provided counseling to Carlson between 1995 and 1999 to address the effects of Loo's behavior, and Dr. Lowe diagnosed Carlson with PTSD in 1995. This evidence shows that, under the well-established California Supreme Court authority cited ante, Carlson had a factual basis for the elements of her claim in 1995, meaning the statute of limitations began to run in 1995 and expired long before Carlson's complaint was filed, 13 years later. Indeed, Carlson's admitted knowledge of the existence of her claims far surpasses the requirements for the accrual of the statute of limitations set forth in both Fox v. Ethicon Endo-Surgery, Inc., supra, 35 Cal.4th 797, and Lyles v. State of California, supra, 153 Cal.App.4th 281.
Carlson argues for the first time in her post-oral argument supplemental brief that although Dr. Lowe diagnosed her with PTSD in 1995, there is no evidence she learned of the diagnosis at that time. The only reasonable inference from Carlson's own testimony (quoted ante) that she was diagnosed with a particular disease at a particular time is that she was given the diagnosis at that time. Carlson's attempt to parse the testimony does not withstand analysis. Significantly, Carlson did not testify at any time—during her deposition, when she made the changes to her deposition testimony, when she opposed the motion for summary judgment, or at any other time—she learned of her PTSD diagnosis at any time other than when it was made.
Also in her post-oral argument supplemental brief, Carlson relies heavily on Scalf v. D. B. Log Homes, Inc., supra, 128 Cal.App.4th 1510. We agree with the law and analysis of that opinion, but the record in Scalf is dramatically different from the record before us. In Scalf, a party-witness's testimony was contradicted by testimony of many other witnesses, and the very foundation for the party-witness's testimony was put into doubt by his own limited knowledge. There is nothing in the record before us remotely analogous to the facts of Scalf.
Other evidence offered by Carlson in opposition to Church of the Master's summary judgment motion does not create a triable issue of material fact. The declaration of Dr. Lowe states: "From approximately 1995 through approximately 1999, I provided counseling to Plaintiff Carol Carlson. I no longer have records of these sessions and, therefore, cannot state what transpired in these sessions as this counseling took place many years ago." Dr. Lowe's declaration simply adds nothing to the mix.
The trial court did not err in granting Church of the Master's motion for summary judgment.
Similarly, Presbytery's separate statement included the following undisputed material fact: "Between 1995 and 1999, Dr. Lowe diagnosed plaintiff with Post-Traumatic Stress Disorder (PTSD) due to the sexual abuse and the therapeutic deception perpetrated by Jack Loo."
In addition to the bases justifying the grant of summary judgment described ante, Presbytery's motion was properly granted because the evidence established both Dr. Lowe and another therapist had advised Carlson that the relationship with Loo was causing Carlson injury, which would have caused the statute of limitations to begin to run, under well-established authority. The trial court did not err in granting Presbytery's motion for summary judgment.
The judgments are affirmed. Respondents to recover costs on appeal.
O'LEARY, P. J. and IKOLA, J., concurs.
In her opposition to the motion for summary judgment, Carlson argued the statute of limitations did not begin to run until the alleged sexual abuse ended in 2006, citing Pugliese v. Superior Court (2007) 146 Cal.App.4th 1444 under the theory of a continuing tort. The trial court rejected this argument. Carlson did not address this issue in her opening or reply appellate briefs. In her postargument supplemental brief, for the first time on appeal, Carlson addressed this issue. In addition to being raised far too late (see Chicago Title Ins. Co. v. AMZ Ins. Services, Inc. (2010) 188 Cal.App.4th 401, 427-428 [argument raised for the first time in reply brief is waived]), this issue is well outside the limited scope of our postargument supplemental briefing order. That order posed only the question whether Carlson's unchanged deposition testimony was sufficient to support summary judgment. The supplemental briefing order was filed in response to Carlson's contention at oral argument on appeal that the question whether the statute of limitations barred her claims as a result of her unchanged testimony was not already embraced in the issues before this court. (Code Civ. Proc., § 437c, subd. (m)(2).)
