Supreme Court of California Justia
Citation 40 Cal.4th 623, 54 Cal.Rptr.3d 735, 151 P.3d 1151

Grisham v. Philip Morris


Filed 2/15/07

IN THE SUPREME COURT OF CALIFORNIA

LESLIE J. GRISHAM et al.,
Plaintiffs
and
Appellants,
S132772
v.
PHILIP MORRIS U.S.A., INC. et al.,
Defendants and Respondents. )

In the context of two lawsuits against tobacco companies by smokers Leslie
J. Grisham and Maria Cannata, the Ninth Circuit Court of Appeals asks us to
resolve two questions:1 (1) For the purpose of the statute of limitations period
applicable under California law to a personal injury action alleging injury arising
from smoking tobacco, are persons presumed to have been aware by 1988 that
smoking causes addiction and other health problems? If California law recognizes
such a presumption, under what circumstances is it rebuttable? (2) Under

1
The first question was originally phrased by the Ninth Circuit as follows:
“Under California law, can a plaintiff overcome the presumed awareness that he or
she knows that smoking causes addiction and other health problems, and so show
justifiable reliance?” (Grisham v. Philip Morris U.S.A. (9th Cir. 2005) 403 F.3d
631, 633 (Grisham).) The question was rephrased so as to more directly pertain to
the statute of limitations question at issue in this case, and because we did not wish
to be confined by the assumption of the above question that there is “a presumed
awareness that . . . smoking causes addiction and other health problems.” (Ibid.)
1



California law, if a plaintiff seeks damages resulting from an addiction to tobacco,
does an action for personal injury accrue when the plaintiff recognizes that he or
she is addicted to tobacco, if the plaintiff has not yet been diagnosed with an injury
stemming from tobacco use? (Grisham, supra, 403 F.3d at p. 633.)
The answers to these questions are better understood in the factual context
in which these two cases arise. As will be explained below, Grisham essentially
alleges two types of claims: one for physical injury in the form of respiratory and
other ailments caused by smoking, and another for economic injury2 that resulted
from becoming addicted as a minor to cigarettes, and continually being compelled
by the addiction to purchase them. As to this second type of claim, we conclude
that although there is no reason to judicially create a special presumption of
awareness that smoking cigarettes is addictive, a plaintiff who alleges that accrual
of this cause of action is delayed because of delayed discovery of her addiction
must plead facts explaining the delay. As we shall see, Grisham’s complaint
admits actual or at least constructive knowledge that she was addicted to cigarettes
long before filing the complaint.
We also conclude that, assuming Grisham’s economic injury claim or
claims are time barred, that bar does not extend to her causes of action based on
physical injury from smoking that manifested itself after the economic injury
claim was or should have been discovered. We reject the proposition advanced by

2
We note that although question 2 speaks in terms of “damages” for
addiction, Grisham’s claims for economic injury brought under the unfair
competition law, Business and Professions Code section 17200 et seq. and the
false advertising act (id., § 17500 et seq.), seek disgorgement of defendant’s
profits and other equitable remedies. Compensatory damages are unavailable
under these statutes. (See Cortez v. Purolator Air Filtration Products Co. (2000)
23 Cal.4th 163, 173-174; Bus. & Prof. Code, §§ 17203, 17535.)
2



defendants, based on Soliman v. Philip Morris, Inc. (9th Cir. 2002) 311 F.3d 966
(Soliman), that the statute of limitations should have commenced on the physical
injury claims as soon as Grisham discovered or should have discovered she was
addicted to cigarettes.
As also explained below, we conclude that Cannata has not alleged that her
reliance on defendants’ misrepresentations continued into the limitations period,
although we express no opinion on the continuing viability of her conspiracy claim
based on continuing wrong.
I. FACTUAL BACKGROUND
The cases are in federal court via diversity jurisdiction, and arise from
physical and monetary injuries suffered by plaintiffs Maria Cannata and Leslie
Grisham as the alleged result of smoking cigarettes manufactured and marketed by
defendants, Philip Morris U.S.A., Inc. and Brown & Williamson Tobacco
Corporation. (Hereafter sometimes Philip Morris.) Both cases come to the Ninth
Circuit on a motion to dismiss and, like the Ninth Circuit, we will assume the truth
of the facts asserted in the complaints. (Grisham, supra, 403 F.3d at p. 634, fn. 5.)

A. Grisham’s Complaint
Grisham began smoking in 1962-1963 as a young teenager. At the time she
began smoking, she was unaware of the increased risk of developing emphysema
from smoking, or the increased risk of developing, as she did, persistent and
chronic periodontitis and gingivitis. She was induced to start smoking by the
advertising and representations of cigarette manufacturers, including defendants.
(Grisham, supra, 403 F.3d at p. 634, fn. 5.)
Grisham attempted to quit smoking unsuccessfully on a number of
occasions. One such occasion was during a period in 1993 and 1994. As she
states in her complaint: “Plaintiff, while still smoking, joined Nicotine
3



Anonymous, to help her overcome her nicotine addition. One suggestion plaintiff
received was to give up her regular brand of cigarettes and switch to a less
desirable brand of cigarettes that were not as satisfying, but were low in tars and
nicotine. For several months, on the basis of that suggestion, plaintiff stopped
smoking Merit 100’s and began smoking Carlton’s, which were advertised as
lower in tars and nicotine. Plaintiff smoked Carlton cigarettes for approximately
four to six months. Plaintiff then attempted, unsuccessfully, to quit smoking by
obtaining a prescription for Nicorette gum. The Nicorette gum did not control the
nicotine addiction and plaintiff began smoking again in mid-1994.”
Grisham was diagnosed with the beginning stages of irreversible
emphysema on or about March 28, 2001. Shortly thereafter, in April 2001, she
was diagnosed with persistent and chronic periodontitis and gingivitis, leading to
loss of teeth and facial disfigurement. She alleges that had she been aware of the
true facts regarding the magnitude of the health risks and extent to which
cigarettes were addictive, and that nicotine levels were manipulated by defendants
and other cigarette manufacturers to foster the addiction, she would not have
started smoking.
Grisham filed suit on March 15, 2002, within a year of her diagnosis for
emphysema and persistent and chronic periodontitis and gingivitis. She alleged
(1) negligence, (2) strict liability, (3) false representation, (4) deceit/fraudulent
concealment, (5) unfair competition and business practices, (6) negligent false and
misleading advertising, (7) intentional false and misleading advertising, (8) civil
conspiracy and breach of express warranty.
Throughout her complaint, Grisham alleges that her addiction to cigarettes
was a key link in the causal chain that led to her physical injuries. For example, in
her civil conspiracy cause of action, she alleges that she “has now developed the
4

irreversible beginning stages of emphysema, she has suffered from painful chronic
and persistent periodontitis and gingivitis, as well as suffered alveolar bone loss
which has led to the disfiguring loss of teeth, all of which was caused by plaintiff’s
addiction to smoking.
In at least one of Grisham’s causes of action, however, she alleges that
addiction caused not physical but economic injury. In her cause of action for
“Unfair Competition/Unlawful Business Practices” she states: “As a result of the
point of sale targeting of youth and minor smokers, at least 90% of adult smokers,
including plaintiff, began purchasing the cigarettes to which they became addicted
while under the age of 18[,] [i]n reliance upon the representations and
inducements of the point of sale targeting of minor smokers by the cigarette
manufacturers, including defendants . . . .”
“As a result of the continuing course of conduct of the defendants, and each
of them, as outlined above, defendants have been unjustly enriched from the years-
long sales of addictive cigarettes, first to minors and youths, including plaintiff, to
addict and ensure to the said defendants, and each of them, an ongoing flow of
profits throughout the years, as the addicted smokers continued to purchase
cigarettes. The true amount of unjust enrichment gained from the ongoing and
continuing purchase of cigarettes by addicted smokers who began smoking as
minors is as yet unknown to Plaintiff, who requests leave to amend this Complaint
to conform to proof at the time of trial.”
B. The Cannata Complaint
Marie Cannata began smoking as a minor sometime before 1969. Cannata
believed, and was induced to start smoking by, the representations of the
defendants that smoking did not cause emphysema, lung problems, cardio-
obstructive pulmonary disease, or any other problems. She states that “[b]ecause
5

plaintiff began smoking before there was substantial public information
concerning the negative effects of smoking, she justifiably relied on the
misrepresentations put forth by the . . . defendants.” The complaint further states
that Cannata “just came to the realization that advertisements and cigarette
company statements relating to safety of smoking were false.”
Cannata further states that had she “known the true facts concerning the
magnitude of the health risks of smoking, the addictive nature of nicotine, the
intentional manipulation of nicotine levels in cigarettes, or the targeting of her and
other youths like her to replace in the market those older cigarette smokers who
were dying from smoking, she would never have started smoking. By the time
plaintiff was aware that there were indeed deadly health risks associated with
smoking, she was addicted, which addiction was maintained by the purposeful
actions of cigarette defendants . . . .”
As a result of defendants’ conduct, “plaintiff is dying and has suffered, and
continues to suffer permanent injuries to the person, body and health, including
but not limited to emphysema, shortness of breath, anatomical changes to her
alveoli, and other lung damage. [She] has further suffered, continues to suffer, and
will suffer in the future pain, discomfort, fears, anxiety and other mental and
emotional distress directly and proximately caused by” defendants’ conduct. The
complaint does not reveal when Cannata was diagnosed with the above injuries.
Indeed, although her 50-page complaint alleges in detail the reprehensible and
duplicitous conduct on the part of the various tobacco company defendants, it tells
little more about plaintiff than is set forth immediately above.
Although Cannata alleges a number of different causes of action, she
apparently agrees that her claims are time-barred if she cannot toll the statute of
6

limitations by alleging defendants’ ongoing conspiracy to defraud. (Grisham,
supra, 403 F.3d at p. 635, fn. 6.)
C. Proceedings in the District Court
The district court in the present case held that Grisham’s claims were
time-barred because, as explained below, under the Ninth Circuit’s decision in
Soliman, she was charged with constructive knowledge of the risks of smoking.
Further, the court pointed to Grisham’s admission that she tried to overcome her
addiction in 1993 as evidence that she was aware of her injury at that time. The
court determined that Grisham’s subsequent physical injuries stemmed from the
same tortious conduct that caused her addiction, and thus her causes of action
based on those injuries were also time-barred. The court also found that
Grisham’s allegations of continuing wrong could not toll the statute of limitations
because the presumption of awareness established in Soliman prevented a showing
of justifiable reliance. The district court dismissed without prejudice Grisham’s
claims on behalf of third parties under the unfair competition law, Business and
Professions Code section 17200 et seq.
A different district court determined that Cannata’s claims were time-barred
under California law. As noted, Cannata claimed that the applicable statutes of
limitations were tolled by an alleged ongoing civil conspiracy. (See Wyatt v.
Union Mortgage Co. (1979) 24 Cal.3d 773, 786 [holding that the statute of
limitations does not begin to run until the last overt act pursuant to the conspiracy
is completed].) The district court held that Cannata could not show an ongoing
conspiracy to defraud because she could not show the essential element of
justifiable reliance. (See Applied Equipment Corp. v. Litton Saudi Arabia Ltd.
(1994) 7 Cal.4th 503, 510-511 [holding that there is no separate cause of action for
civil conspiracy, and that to establish such an action, a plaintiff must show some
7

other underlying tort or civil wrong]); see also Chicago Title Ins. Co. v. Superior
Court (1985) 174 Cal.App.3d 1142, 1151 [“Justifiable reliance is an essential
element of any cause of action for fraud and conspiracy to commit fraud.”].) The
district court considered dispositive the holding in Soliman, supra, 311 F.3d at
page 975 that “California law presumes a plaintiff’s awareness that smoking
causes addiction and other health problems.”
On appeal, the Ninth Circuit panel recognized that at least one Court of
Appeal decision, upholding a fraud verdict for a cigarette smoker against
defendants, criticized Soliman’s apparent holding that common knowledge of the
harms of cigarette smoking would invariably defeat such a fraud action by
negating the possibility of justifiable reliance. (See Whiteley v. Philip Morris, Inc.
(2004) 117 Cal.App.4th 635, 690-691 (Whiteley.)3 The court requested decisions
from this court on the above issues (Grisham, supra, 403 F.3d at p. 633), and we
granted its request.
II.
DISCUSSION
Because each complaint requires a different analysis, we will address each
complaint separately.
A. The Grisham Complaint
1. Unfair
Competition Cause of Action
As noted, Grisham’s cause of action for unfair competition/unfair business
practices alleges that defendants targeted “youth and minor smokers” and that

3
We note that shortly after the Ninth Circuit made its request, another
decision of the California Court of Appeal came to a similar conclusion as
Whiteley in upholding a fraud verdict against a tobacco company. (Boeken v.
Philip Morris, Inc.
(2005) 127 Cal.App.4th 1640, 1666-1667 (Boeken).)
8



Grisham, relying on various representations and inducements of defendants’
advertising, became addicted to cigarettes before the age of 18 years. As a result,
“defendants have been unjustly enriched from the years-long sales of addictive
cigarettes, first to minors and youths, including plaintiff, to addict and ensure to
the said defendants, and each of them, an ongoing flow of profits throughout the
years, as the addicted smokers continued to purchase cigarettes.” The Ninth
Circuit’s first question, as rephrased by this court, is pertinent to this cause of
action.4 The question, again, is: “For the purpose of the statute of limitations
period applicable under California law to a personal injury action alleging injury
arising from smoking tobacco, are persons presumed to have been aware by 1988
that smoking causes addiction and other health problems? If California law
recognizes such a presumption, under what circumstances is it rebuttable?”
“Generally speaking, a cause of action accrues at ‘the time when the cause
of action is complete with all of its elements.’ [Citation.] 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.] Under the discovery rule, suspicion of one or more of the elements of
a cause of action, coupled with knowledge of any remaining elements, will

4
Several of Grisham’s other causes of action include allegations of the same
sort of economic injury in addition to allegations of physical injury. What is said
in this opinion with respect to allegations of economic injury from addiction in
Grisham’s unfair competition cause of action applies as well to those portions of
her other causes of action pertaining to such injury.
9



generally trigger the statute of limitations period.” (Fox v. Ethicon Endo-Surgery,
Inc. (2005) 35 Cal.4th 797, 806-807 (Fox).)
As determined from the face of the complaint, plaintiff’s unfair competition
cause of action — based on the novel theory of economic injury from addiction —
alleges her addiction was caused by defendants’ marketing their products to young
people such as she had been when she began smoking. She also alleges that
defendants fraudulently concealed the danger and addictive nature of cigarettes
and manipulated nicotine levels, all in order to induce a new generation of
smokers to become addicted to smoking for defendants’ profit.5 Grisham alleges
she was unaware she was addicted to cigarettes until after she contracted her
serious, tobacco-related diseases, and that this delayed discovery tolled her unfair
competition cause of action.6 If there is an unrebutted or unrebuttable
presumption that by 1988, a plaintiff was aware that cigarettes were addictive,
then this fact would go at least part of the way toward establishing that her
complaint was time-barred.7 Before addressing arguments for and against such a
presumption, it is useful to review the nature of evidentiary presumptions.

5
We express no opinion on whether Grisham’s unfair competition cause of
action based on economic injury from addiction is valid, under the unfair
competition law or otherwise, nor on whether this cause of action would be subject
to dismissal on the pleadings on grounds other than the statute of limitations.
These questions are beyond the scope of the Ninth Circuit’s request.
6
We discuss the statute of limitations issue solely in connection with claims
asserted by Grisham individually. Grisham’s injunctive relief claims and other
claims on behalf of third parties are not before us and we express no opinion on
the viability of such claims. (See Grisham, supra, 403 F.3d at p. 636, fn. 7.)
7
We assume for purposes of this discussion that the delayed discovery rule
applies to unfair competition claims. We note that this point is currently not
settled under California law (compare Snapp & Associates Ins. Services, Inc. v.
Robertson
(2002) 96 Cal.App.4th 884, 891 [discovery rule does not apply] with

(footnote continued on next page)
10



“A presumption is either conclusive or rebuttable. Every rebuttable
presumption is either (a) a presumption affecting the burden of producing
evidence or (b) a presumption affecting the burden of proof.” (Evid. Code, § 601.)
“A presumption affecting the burden of producing evidence is a presumption
established to implement no public policy other than to facilitate the determination
of the particular action in which the presumption is applied.” (Evid. Code, § 603.)
“Typically, such presumptions are based on an underlying logical inference. In
some cases, the presumed fact is so likely to be true and so little likely to be
disputed that the law requires it to be assumed in the absence of contrary
evidence.” (Recommendation Proposing an Evidence Code (Jan. 1965) 17 Cal.
Law Revision Com. Rep. (1965) p. 97.) On the other hand, “[a] presumption
affecting the burden of proof is a presumption established to implement some
public policy other than to facilitate the determination of the particular action in
which the presumption is applied . . . .” (Evid. Code, § 605.)
“ ‘ “Conclusive presumptions are not evidentiary rules so much as they are
rules of substantive law.” [Citation.]’ ” (People v. McCall (2004) 32 Cal.4th 175,
185-186.) Conclusive presumptions are primarily statutory in nature, although
Witkin cites two long-standing common law conclusive presumptions that are still
operative. (1 Witkin, Cal. Evidence (4th ed. 2000) Burden of Proof and
Assumptions, § 164, pp. 305-306.) We have also more recently recognized certain
constitutionally mandated conclusive presumptions. (See id. at p. 306, citing

(footnote continued from previous page)

Massachusetts Mutual Life Ins. Co. v. Superior Court (2002) 97 Cal.App.4th
1282, 1295 [discovery rule “probably” applies]), and we do not address it.
11



People v. Ortiz (1990) 51 Cal.3d 975, 988 [violation of defendant’s right to
counsel of choice per se reversible error].)
Although not entirely clear, Philip Morris appears to be arguing both for a
conclusive presumption based on statute and, failing that, a rebuttable presumption
shifting the burden of producing evidence because “the presumed fact is so likely
to be true and so little likely to be disputed that the law requires it to be assumed in
the absence of evidence to the contrary.” (7 Cal. Law Revision Com. Rep., supra,
p. 97.)
In making the case for a statutorily based conclusive presumption, Philip
Morris relies to a large extent on Soliman. As that court stated: “The California
legislature acknowledged some time ago that the inherent risks of smoking are
commonly known to the people of the state. In 1987, it enacted an immunity
statute that shielded manufacturers and sellers of tobacco products from liability
for the commonly known risks of smoking. [Citations.] The California Supreme
Court interpreted this statute in Naegele v. R.J. Reynolds Tobacco Co., [(2002)] 28
Cal.4th 856 . . . . The plaintiffs in that case alleged that the tobacco industry had
‘lied about the addictive nature of smoking,’ ‘disseminate[d] deceptive . . .
statements about the . . . addictive nature of cigarettes,’ and ‘control[led] the
nicotine content of their cigarettes.’ Id. at 865-66 . . . (internal quotation marks
omitted). The court held that the immunity statute barred these claims, reasoning
that ‘[t]hese allegations do not suggest that the cigarettes plaintiff smoked exposed
him to dangers other than those inherent in cigarette smoking’ of which the public
had a ‘general understanding.’ Id. at 866 . . . (internal quotation marks omitted).
The premise of the immunity statute was that ‘certain products . . . are ‘inherently
unsafe,’ but . . . the public wishes to have [them] available despite awareness of
their dangers.’ Id. at 862 . . . .
12

“Under California law, addiction is a commonly known risk of smoking
and is therefore a danger of which a plaintiff is presumed to be aware. Because
the immunity statute was repealed in relevant part in 1997, nicotine addiction
claims are no longer categorically barred. [Citations.] But they are still subject to
limitations. For precisely the same reason a plaintiff couldn’t avoid the immunity
statute by claiming ignorance of the risk of nicotine addiction, Naegele, [supra,]
28 Cal.4th at 866 . . . he can’t now avoid the statute of limitations based on the
same claim.” (Soliman, supra, 311 F.3d at pp. 973-974, fns. omitted.)
We do not believe that the Legislature, which repealed the tobacco
immunity statute (Stats. 1997, ch. 570, § 1), intended or intends for the repealed
statute to be reincarnated, as it were, as a presumption of knowledge about the
hazards of smoking that serves to disqualify tobacco lawsuits as time-barred.
Indeed, the legislative history of the immunity repeal, recounted by the Court of
Appeal in Whiteley, demonstrates that the immunity was withdrawn in part
precisely because tobacco company misrepresentations had put into question the
extent to which the public had received accurate information about the dangers of
smoking. “The legislative history of the amendment refers to the grant of
immunity in 1987 and observes, ‘ “Evidence has now become available showing
tobacco companies may have deliberately manipulated the level of nicotine . . . to
create and sustain addiction . . . [and] have systematically suppressed and
concealed material information and waged an aggressive campaign of
disinformation about the health consequences of tobacco use.” ’ (Sen. Com. on
Judiciary, Rep. on Sen. Bill No. 67 (1997-1998 Reg. Sess.) Apr. 8, 1997, pp. 1-2;
Sen. Rules Com., 3d reading analysis of Sen. Bill. No. 67 (1997-1998 Reg. Sess.),
Apr. 16, 1997, p. 3.)” (Whiteley, supra, 117 Cal.App.4th at p. 690.) We conclude
that this repealed statute does not serve as the basis of a conclusive presumption
13

that a particular plaintiff who was a smoker was aware or should have been aware
in 1988 that cigarettes were addictive or dangerous.
As to whether we should judicially recognize a rebuttable presumption, we
first note that our statute of limitations law generally has not recognized special
presumptions, conclusive or otherwise, based on some presumed state of common
knowledge. The cases cited by Philip Morris in support of its position do not
employ such presumptions, but stand for a quite different proposition: evidence
that information of a particular hazard has received widespread publicity may
under some circumstances be a basis for granting summary judgment for
defendants on statute of limitations grounds and for defeating a plaintiff’s delayed
discovery claim. (See, e.g., Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112-
1113; McKelvey v. Boeing North American, Inc. (1999) 74 Cal.App.4th 151,
162.)8
Moreover, although knowledge of smoking addiction has been widespread,
Grisham alleges, and other cases have found, that tobacco companies’

8
We note that Code of Civil Procedure section 340.8, subdivision (c)(2),
enacted in 2003, partly supersedes McKelvey. That subdivision provides: “Media
reports regarding . . . hazardous material or toxic substance contamination do not,
in and of themselves, constitute sufficient facts to put a reasonable person on
inquiry notice that the injury or death was caused or contributed to by the
wrongful act of another.” (Code Civ. Proc., § 340.8, subd. (c)(2), added by Stats.
2003, ch. 873, § 1.) An uncodified portion of this legislation states that the
Legislature intends to disapprove of McKelvey “to the extent the ruling in
McKelvey is inconsistent” with the above subdivision. (Stats. 2003, ch. 873, § 2.)
Amicus curiae Consumer Attorneys of California argues that the above section
supports Grisham’s argument that widespread media publicity about cigarettes
should not necessarily preclude a plaintiff’s delayed discovery argument.
Because, as discussed below, Grisham pleads actual knowledge of her cigarette
addiction, we have no occasion to decide what effect if any section 340.8,
subdivision (c)(2) would have on the timeliness of her claims.
14



misrepresentations of the danger and addictiveness of smoking were also
widespread. (See Whiteley, supra, 117 Cal.App.4th 635, 690-691; Boeken, supra,
127 Cal.App.4th 1640, 1666-1667.) A defendant’s fraud in concealing a cause of
action against him will toll the statute of limitations, and that tolling will last as
long as a plaintiff’s reliance on the misrepresentations is reasonable. (See Bernson
v. Browning-Ferris Industries (1994) 7 Cal.4th 926, 931; Brown v. Bleiberg
(1982) 32 Cal.3d 426, 433-436.) We cannot generalize about the precise point in
time when reliance on the tobacco companies’ misrepresentations became
unreasonable. “[W]hether reliance was reasonable is a question of fact for the
jury, and may be decided as a matter of law only if the facts permit reasonable
minds to come to just one conclusion.” (Boeken, supra, 127 Cal.App.4th at p.
1666, italics in original.) Where it is claimed that common knowledge undermines
a plaintiff’s claimed reasonable reliance on misinformation, “ ‘a fact-finder should
examine the extent of common knowledge in comparison to the alleged
convincingness of the misrepresentation . . . .’ ” (Whiteley, supra, 117
Cal.App.4th at pp. 684-685.)
We therefore reject Soliman to the extent that it holds that there is a special
presumption under California law based on common knowledge that a plaintiff is
aware that smoking is addictive or harmful. On the other hand, California law
recognizes a general, rebuttable presumption, that plaintiffs have “knowledge of
the wrongful cause of an injury.” (Fox, supra, 35 Cal.4th at p. 808.) In order to
rebut that presumption, “[a] plaintiff whose complaint shows on its face that his
claim would be barred without the benefit of the discovery rule must specifically
plead facts to show (1) the time and manner of discovery and (2) the inability to
have made earlier discovery despite reasonable diligence.’ [Citation.] In
assessing the sufficiency of the allegations of delayed discovery, the court places
15

the burden on the plaintiff to ‘show diligence’; ‘conclusory allegations will not
withstand demurrer.’ ” (Ibid.) Thus, if a plaintiff’s cause of action depends upon
delayed discovery of his or her addiction to tobacco in order to be timely, he or
she must plead facts showing an inability to have discovered that addiction, such
as reasonable reliance on tobacco company misrepresentations.
Grisham has not done so with respect to her unfair competition and related
causes of action. On the contrary, as noted above, she stated in her complaint that
in 1993 she “joined Nicotine Anonymous, to help her overcome her nicotine
addiction.” After experimenting with low-tar-and-nicotine cigarettes, the
complaint states that she “then attempted, unsuccessfully, to quit smoking by
obtaining a prescription for Nicorette gum. The Nicorette gum did not control the
nicotine addiction and plaintiff began smoking again in mid-1994. Plaintiff
continued to smoke until April 8, 2001.”9
Grisham argues before us that in fact she did not realize she was addicted to
cigarettes even when she joined Nicotine Anonymous and failed to quit smoking
— that she only joined to appease her family and still believed that she could quit
at will if she wanted to. Assuming this to be correct, we conclude Grisham at the
very least had reason to suspect that she was addicted to cigarettes at this point,

9
This portion of the opinion is particularly responsive to a footnote in the
Ninth Circuit’s opinion in Grisham in which the Ninth Circuit asked for additional
clarification from this court as follows: “It may also be helpful for the court to
address the effect of an admission by a plaintiff that he or she is aware of an
addiction to tobacco more than a year before filing suit. Grisham alleges
awareness of her addiction to tobacco in 1993. If the presumption identified in
Soliman is rebuttable, it may be helpful for the court to address whether this
awareness prevents rebuttal of the presumption as a matter of law, such that
reliance on defendants’ representations would no longer be justifiable.” (Grisham,
supra, 403 F.3d at p. 633, fn. 3.)
16



and therefore had reason to discover that part of her unfair competition cause of
action. (See Fox, supra, 35 Cal.4th at p. 807.)
We therefore conclude from the face of the complaint that Grisham knew or
should have known of her tobacco addiction and the economic injury it was
causing her by at least 1993-1994, outside the limitations period. (Bus. & Prof.
Code, § 17208 [unfair competition law claim must be brought within four years of
accrual].)10
2. Timeliness of Grisham’s Physical Injury Claims
As noted, Grisham’s other claims involve primarily physical rather than
economic injury. Although denominated under various headings such as fraud,
negligence, strict liability, and breach of warranty, these claims all allege that
cigarette smoking caused various serious ailments, including emphysema and
persistent and chronic periodontitis and gingivitis. Suit was filed within a
year of the diagnosis of those ailments, and nothing on the face of the
complaint appears to suggest that these claims are time-barred. In these
claims, her addiction, although potentially harmful, is not alleged to have
manifested appreciable physical harm until Grisham contracted a serious physical
ailment.
Philip Morris nonetheless argues that all of Grisham’s causes of action are
time-barred, inasmuch as all her causes of action began to accrue at the point she

10
In so concluding, we express no opinion as to whether Grisham’s unfair
competition cause of action might still survive the statute of limitations bar based
on her contention that she did not discover until recently, and did not reasonably
suspect, defendants’ alleged wrongful business practices of targeting minors
through fraudulent marketing practices and manipulation of nicotine levels in
cigarettes. This question is beyond the scope of the questions asked of us by the
Ninth Circuit.
17



discovered that she was addicted to cigarettes. Philip Morris relies on Soliman. In
that case, the plaintiff was diagnosed in January 2000 with two respiratory
ailments attributable to smoking, dyspnea and orthopnea, after having smoked
cigarettes for 32 years. He filed his complaint in March 2000, and it was
eventually removed to the federal court, which dismissed his complaint on statute
of limitations grounds. (Soliman, supra, 311 F.3d at pp. 969-972.) The plaintiff
argued before the Ninth Circuit that the statute should have begun to run when he
was diagnosed with respiratory ailments in January 2000. The Soliman court
rejected this position: “The relevant date . . . is not when Soliman knew about
these particular injuries, but when he should have known of any significant injury
from defendants’ wrongful conduct.” (Id. at p. 972.)
In support, the Soliman court quoted California cases. “ ‘[I]f the statute of
limitations bars an action based upon harm immediately caused by defendant’s
wrongdoing, a separate cause of action based on a subsequent harm arising from
that wrongdoing’ is normally barred. Miller v. Lakeside Vill. Condo. Ass’n
[(1991)] 1 Cal.App.4th 1611, 1622 . . . . ‘[A]lthough a right to recover nominal
damages will not trigger the running of the period of limitation, the infliction of
appreciable and actual harm, however uncertain in amount, will commence the
statutory period.’ ” Davies v. Krasna [(1975)] 14 Cal.3d 502, 514 . . . .”
(Soliman, supra, 311 F.3d at p. 372.) The court then stated that “Soliman alleges
that he suffered a number of significant injuries from the cigarettes he smoked.
The injury he should have known about first is the one that starts the statute of
limitations.” (Ibid., fn. omitted.)
The
Soliman court then concluded that the injury from addiction was the
one the plaintiff should have known about first. Although recovery of damages
for addiction alone was a “novel” theory of recovery, the Soliman court concluded
18

it need not decide whether the theory was valid, “because Soliman can’t claim that
his addiction is an appreciable injury and, at the same time, ask us to ignore it in
determining when his claim accrued. If Soliman had actual or constructive
knowledge of his addiction before he was diagnosed with respiratory illness, the
date of actual or constructive knowledge of addiction would govern.” (Soliman,
supra, 311 F.3d at p. 973; see also Spain v. Brown & Williamson Tobacco Corp.
(Ala. 2003) 872 So.2d 101, 114-115 [agreeing with Soliman that the statute of
limitations on all claims by smokers against tobacco companies begins to run
when addiction is or should have been discovered].) The Soliman court then
concluded, for reasons discussed in part in the previous section of this
memorandum, that Soliman did have constructive knowledge of addiction and that
therefore all his claims were barred.
Philip Morris takes essentially the same position. It does not argue that
Grisham would have had a viable cause of action when she discovered, or
reasonably should have discovered, her addiction to cigarettes. Nor does it argue
that we should recognize a cause of action against a company that causes an
individual to become addicted to its products, independent of any physical injury
resulting from use of the product. Rather, its position, as stated in its answer brief
in this court, is that “[w]here a plaintiff alleges that addiction is a serious, severe,
and/or incapacitating condition that caused appreciable injury, actual or
constructive knowledge of addiction will trigger the statute of limitations, and
under the single-injury rule all smoking-related claims that accrue, even if the
plaintiff has not yet been diagnosed with other illnesses stemming from tobacco
use.”
Because Philip Morris’s argument that knowledge of addiction should
trigger the statute of limitations is based on Grisham’s allegations that such
19

addiction caused appreciable harm that predated her diagnosis with serious
tobacco-related illnesses, our starting point in evaluating that argument must be to
understand precisely what kind of appreciable harm Grisham is alleging. As noted
in the previous section of this opinion, the alleged injury from addiction that
predated the 2001 diagnosis was economic in nature: Grisham was allegedly
compelled by the addiction to devote a steady stream of her income to the
purchase of cigarettes. We do not read Grisham’s complaint as alleging an
appreciable physical harm from addiction prior to 2001. 11 The question then is
whether, assuming Grisham had discovered or should have discovered a viable
unfair competition cause of action based on economic injury from addiction long
before she was diagnosed with serious physical ailments, the statute of limitations
began to run at that point of discovery on both her physical injury and economic
injury causes of action. The argument that all her causes of action are time-barred
is based on the rule against splitting a cause of action, and in order to evaluate that
argument, a discussion of this rule is in order.
“The longstanding rule in California . . . is that ‘[a] single tort can be the
foundation for but one claim for damages.’ ” (DeRose v. Carswell (1987) 196

11
We assume for purposes of discussion, without deciding, that the economic
costs of addiction can be considered an “appreciable and actual harm” for statute
of limitation purposes. (Davies v. Krasna, supra, 14 Cal.3d at p. 514.) We also
note that Philip Morris cites the portion of Grisham’s complaint in which she
states that she has “undergone costly nicotine replacement therapy to assist in her
breaking her nicotine addiction” as an indication that Grisham has pleaded
appreciable physical injury caused by that addiction occurring before 2001. But
Grisham’s various pre-2001 efforts to break her nicotine addiction do not amount
to an allegation that the addiction was causing her appreciable physical harm, nor
that the addiction itself was actionable, other than as a cause of economic injury.
Grisham’s complaint does not allege appreciable physical injury until discovery of
her physical ailments in 2001.
20



Cal.App.3d 1011, 1024, fn. 5 (DeRose).) This rule is a corollary of the primary
right theory found in California law. As we have explained: “The primary right
theory is a theory of code pleading that has long been followed in California. It
provides that a ‘cause of action’ is comprised of a ‘primary right’ of the plaintiff, a
corresponding ‘primary duty’ of the defendant, and a wrongful act by the
defendant constituting a breach of that duty. [Citation.] The most salient
characteristic of a primary right is that it is indivisible: the violation of a single
primary right gives rise to but a single cause of action. [Citation.] A pleading that
states the violation of one primary right in two causes of action contravenes the
rule against ‘splitting’ a cause of action.” (Crowley v. Katleman (1994) 8 Cal.4th
666, 681 (Crowley).)
As we further explained: “The primary right theory has a fairly narrow field
of application. It is invoked most often when a plaintiff attempts to divide a
primary right and enforce it in two suits. The theory prevents this result by either
of two means: (1) if the first suit is still pending when the second is filed, the
defendant in the second suit may plead that fact in abatement (Code Civ. Proc., §
430.10, subd. (c); [citation]) or (2) if the first suit has terminated in a judgment on
the merits adverse to the plaintiff, the defendant in the second suit may set up that
judgment as a bar under the principles of res judicata [citation.].)” (Crowley,
supra, 8 Cal.4th at p. 682.)
The cases have invoked the rule against splitting causes of action in order
to abate a later suit or bar it on res judicata grounds when that suit alleged a
different theory of recovery for the same injury (see, e.g., Wulfjen v. Dolton (1944)
24 Cal.2d 891; Savage v. Emery (1967) 255 Cal.App.2d 603), or a different
remedy for the same injury (see, e.g., Hatch v. Bank of America (1960) 182
Cal.App.2d 206; McCaffrey v. Wiley (1951) 103 Cal.App.2d 621), or a somewhat
21

greater factual elaboration of the same injury (see, e.g., McCloskey v. Carlton
Builders (1985) 165 Cal.App.3d 689; Wick v. Wick Tool Co. (1959) 176
Cal.App.2d 677).
The rule against splitting a cause of action is distinct from the rule,
discussed above, that “the infliction of appreciable and actual harm, however
uncertain in amount, will commence” the running of the statute of limitations.
(Davies v. Krasna, supra, 14 Cal.3d at p. 514.) “The rule against splitting a cause
of action is neither an aspect, nor a restatement, of the statute of limitations; rather,
it is in part a rule of abatement and in part a rule of res judicata.” (Hamilton v.
Asbestos Corp., Ltd. (2000) 22 Cal.4th 1127, 1146 (Hamilton), italics in original.)
These two rules may intersect, however, when a single wrongdoing gives rise to
two or more different injuries, manifesting at different times, raising the question
whether the two injuries are invasions of two different primary rights. Some
courts have held that the earlier injury, even if less serious than the later injury,
sets the statute running as to both injuries, and expiration of the statute on the
earlier injury bars a suit on the later one. (See Miller v. Lakeside Village
Condominium Assn., supra, 1 Cal.App.4th at p. 1622; DeRose, supra, 196
Cal.App.3d 1011, 1024, fn. 5.) Other courts have found that, under various
theories, suit on a later manifesting injury was not time-barred even when suit on
the earlier injury would be. (Zambrano v. Dorough (1986) 179 Cal.App.3d 169,
174; see Martinez-Ferrer v. Richardson-Merrell, Inc. (1980) 105 Cal.App.3d 316.
326-327.)
Amicus curiae for Grisham cites a number of out-of-state cases holding that
distinct injuries manifesting at different times caused by the same exposure to or
22

ingestion of a toxic substance can give rise to more than one cause of action.12
We confronted the same issue in Hamilton, supra, 22 Cal.4th 1127, in which the
plaintiff alleged that mesothelioma is a separate and distinct injury from
asbestosis, although both were caused by the same exposure to asbestos, and that
therefore accrual of a cause of action for one of these injuries does not commence
the running of the statute of limitations on the other. The majority never
addressed the question whether the plaintiff had a separate primary right to be free
of each of the two diseases; instead, the court resolved the issue on statutory
grounds, concluding that under the special statute of limitations for asbestos
victims, Code of Civil Procedure section 340.2, which commences with the date of
disability, neither cause of action was time-barred. (Hamilton, supra, 22 Cal.4th
at pp. 1144-1145.) Justice Brown in her concurring opinion would have resolved
the issue by holding that mesothelioma and asbestosis injuries formed the basis for
two separate and distinct causes of action. (Id. at p. 1150 (conc. opn. of Brown,
J.).)

12
See, e.g., Nicolo v. Philip Morris, Inc. (1st Cir. 2000) 201 F.3d 29, 35-36,
38-39; Golod v. Hoffman La Roche (S.D.N.Y. 1997) 964 F.Supp. 841, 850-851;
Sackman v. Liggett Group, Inc. (E.D.N.Y. 1996) 167 F.R.D. 6, 14. The above rule
has been commonly recognized in asbestos cases. (See, e.g., Wilson v. Johns-
Manville Sales Corp.
(D.C. Cir. 1982) 684 F.2d 111; Miller v. Armstrong World
Industries
(Colo. 1991) 817 P.2d 111; Sheppard v. A.C. & S. Co. (Del. Super.Ct.
1985) 498 A.2d 1126; Wilber v. Owens-Corning Fiberglas Corp. (Iowa 1991) 476
N.W.2d 74; Giffear v. Johns-Manville Corp. (Pa.Super.Ct. 1993) 632 A.2d 880;
Sopha v. Owens-Corning Fiberglas Corp. (Wis. 1999) 601 N.W.2d 627;
Pustejovsky v. Rapid-American Corp. (Tex. 2000) 35 S.W.3d 643.) The rule also
has been applied in other toxic exposure cases involving latent injuries. (See
Braune v. Abbott Laboratories (E.D.N.Y. 1995) 895 F.Supp. 530, 567-568; Colby
v. E.R. Squibb & Sons, Inc.
(D. Kan. 1984) 589 F.Supp. 714, 716-717.)
23



We need not resolve whether and under what circumstances two different
physical injuries arising out of the same wrongdoing can give rise to two separate
lawsuits, or whether the two injuries in the present case can be conceived of as
invading two different primary rights. Here, what is alleged are two different
types of injury, one serious physical injury or injuries, the other an economic
injury, giving rise to two different types of action. The economic injury was a
more or less immediate result of Grisham’s addiction to cigarettes, whereas her
physical injuries occurred after many years of smoking. The addictiveness of a
product is distinct from its capacity to cause serious physical injury, as
demonstrated by the fact that other addictive products are not associated with the
same harmful consequences. (See Juliano, Is Caffeine a Drug of Dependence?
(Feb. 2001) Psychiatric Times <http://psychiatrictimes.com/p010247.html> [as of
Feb. 15, 2007] [caffeine documented as commonly creating significant physical
and psychological dependence].)
Philip Morris cites no authority, and we have found none, for the
proposition that the rule that the statute of limitations commences with the
infliction of appreciable injury bars suits based on a later manifesting injury of a
different type. (See, e.g., Davies v. Krasna, supra, 14 Cal.3d at p. 514 [statute of
limitations commences when plaintiff incurred earlier economic injury based on
intellectual property theft, not later injury of the same type]; Miller v. Lakeside
Village Condominium Assn., supra, 1 Cal.App.4th at p. 1622 [plaintiff cannot sue
on later developed physical injuries when earlier physical injuries are appreciable];
DeRose, supra, 196 Cal.App.3d 1011, 1024, fn. 6 [recovery for intentional
infliction of emotional distress based on later-developed emotional injury from
childhood sexual assault barred when original injury could have given rise to the
same cause of action].) Indeed, Davies v. Krasna, which first announced the
24

appreciable harm rule, was concerned that a plaintiff not delay bringing an action
until there was “a more certain proof of damages” (Davies v. Krasna, supra, 14
Cal.3d at p. 515), and did not address whether an appreciable injury would bar a
suit based on a later-discovered injury of a different type.
We decline to extend the appreciable harm rule to the circumstances of this
case, when there is an earlier manifesting economic injury and a later manifesting
physical injury, because such an extension would be inconsistent with the
discovery rule. In Fox, supra, 35 Cal.4th 797, we faced a similar issue. The
plaintiff in Fox suffered serious complications after gastric bypass surgery. She
sued the surgeon and hospital for medical malpractice. In the course of discovery,
the plaintiff learned that the complications may have been due in part to a
defective stapler manufactured by defendant Ethicon. The plaintiff amended her
complaint to add Ethicon as a defendant and to add a products liability cause of
action, and Ethicon demurred on statute of limitations grounds. We upheld the
Court of Appeal’s reversal of the trial court’s order sustaining the demurrer,
holding that discovery and accrual of the medical malpractice cause of action did
not necessarily mean discovery that the products liability action had accrued.
In so ruling, we rejected the holding in Bristol-Myers Squibb Co. v.
Superior Court (1995) 32 Cal.App.4th 959, 966, that “[w]hen a plaintiff has cause
to sue based on knowledge or suspicion of negligence the statute starts to run as to
all potential defendants,” regardless of whether those defendants are alleged to be
wrongdoers in a different cause of action. One of the reasons for our rejection was
that “[i]t would be contrary to public policy to require plaintiffs to file a lawsuit ‘at
a time when the evidence available to them failed to indicate a cause of action.’
[Citations.] Were plaintiffs required to file all causes of action when one cause of
action accrued, as they would be under the Bristol-Myers Squibb rule, they would
25

run the risk of sanctions for filing a cause of action without any factual support.
[Citations.] Indeed, it would be difficult to describe a cause of action filed by a
plaintiff, before that plaintiff reasonably suspects that the cause of action is a
meritorious one, as anything but frivolous. At best, the plaintiff’s cause of action
would be subject to demurrer for failure to specify supporting facts (see, e.g., 4
Witkin, Cal. Procedure (4th ed. 1997), Pleading, § 339, p. 436 [requirement of
pleading facts]). In sum, the interest of the courts and of litigants against the filing
of potentially meritless claims is a public policy concern that weighs heavily
against the Bristol-Myers Squibb formulation of the discovery rule.” (Fox, supra,
35 Cal.4th at p. 815.)
In the present case the rule proposed by Philip Morris, like the Bristol-
Myers Squibb rule we rejected in Fox, would compel cigarette smokers either
to file groundless tort causes of action based on physical injury against
tobacco companies as soon as they discovered they were addicted to cigarettes
and had an unfair competition cause of action (again, assuming such a cause of
action exists), or risk losing their right to sue in tort for such physical injury.
This rule would violate the essence of the discovery rule that a plaintiff need not
file a cause of action before he or she “ ‘has reason at least to suspect a factual
basis for its elements.’ [Citation.]” (Fox, supra, 35 Cal.4th at p. 807.)
It would directly contravene “the interest of the courts and of litigants against
the filing of potentially meritless claims.” (Id., at p. 815.) Indeed, Philip
Morris nowhere argues that tobacco addiction inevitably or even probably
leads to serious physical ailments. (See, e.g., Risk and Life Expectancy,
Lung Cancer and Smoking Statistics, Cancer Research UK,
<http://info.cancerresearchuk.org/cancerstats/types/lung/smoking> [as
26

of Feb. 15, 2007] [the cumulative risk of dying of lung cancer by age 75 for a
lifelong male smoker is 15.9 percent].)
Philip Morris contends that Fox is distinguishable because it involved
misconduct by two different defendants. But this distinction was not a basis for
our ruling. (Fox, supra, 35 Cal.4th at p. 807 [failure to discover the identity of the
second defendant does not toll statute of limitations].) Fox’s basic rationale —
that the discovery of one cause of action does not necessarily mean plaintiff
should have discovered the factual basis for a qualitatively different type of action
— is fully applicable in the present case. If anything, its application has greater
force here, where, unlike in Fox, the injury that was the crucial element of the later
suit had not yet manifested at the time the earlier cause of action accrued.
We therefore conclude that Grisham’s discovery of her alleged unfair
competition cause of action and related causes of action for economic injury based
on smoking addiction did not start the statute of limitations running on her tort
causes of action based on later-discovered appreciable physical injury. Rather,
these latter causes of action did not begin to accrue until the physical ailments
themselves were, or reasonably should have been, discovered. We leave for
another day the question of whether and under what circumstances two physical
injuries with different manifestation periods arising out of the same wrongdoing
can be the legitimate basis for two different lawsuits.
B. The
Cannata
Complaint
As discussed in the statement of facts (pt. I.B., ante), Cannata states that
“[b]ecause plaintiff began smoking [in 1969] before there was substantial public
information concerning the negative effects of smoking, she justifiably relied on
the misrepresentations put forth by the . . . defendants” and that she “just came to
the realization that advertisements and cigarette company statements relating to
27

safety of smoking were false.” Had she “known the true facts concerning the
magnitude of the health risks of smoking, the addictive nature of nicotine, the
intentional manipulation of nicotine levels in cigarettes, or the targeting of her and
other youths like her to replace in the market those older cigarette smokers who
were dying from smoking, she would never have started smoking. By the time
plaintiff was aware that there were indeed deadly health risks associated with
smoking, she was addicted, which addiction was maintained by the purposeful
actions of cigarette defendants . . . .”
Unlike Grisham, Cannata does not plead that she discovered her serious
physical injury within the limitations period, and the Ninth Circuit appears to
presume that her action can only survive if she has successfully alleged an
ongoing conspiracy to defraud, which would include an allegation that her
justifiable reliance on defendants’ misrepresentations continued into the
limitations period. (Grisham, supra, 403 F.3d at p. 635 & fn. 6.) Assuming that
Cannata adequately pleaded that she justifiably relied on tobacco company
misrepresentations when she began smoking in 1969, however, at some point that
is unknown from the face of the complaint, her justifiable reliance ended. She
does not allege with any specificity that her justifiable reliance in the present case
terminated within the limitations period. (See Fox, supra, 35 Cal.4th at p. 808
[specific facts regarding delayed discovery must be pleaded].) Consequently,
Cannata has not adequately pleaded that the fraud continued into the limitations
period. Whether she should be permitted to amend her pleadings, or whether she
can maintain a conspiracy action based on the wrongful conduct of defendants
even after the fraud was discovered (see Wyatt v. Union Mortgage Co., supra, 24
Cal.3d at p. 788), is beyond the scope of the questions asked by the Ninth Circuit.
28

III. CONCLUSION
We conclude there is no special presumption that smokers are aware of the
addictiveness or health hazards of smoking, but there is a general, rebuttable
presumption that a plaintiff has knowledge of the wrongful cause of his or her
injury. Here Grisham has failed to plead specific facts justifying the delay in
discovering her smoking addiction. The fact that the unfair competition claim
based on her economic injury from addiction may be barred, however, does not
mean that Grisham’s other claims, based on physical injury, are also barred.
Cannata does not adequately allege that her justifiable reliance on defendants’
misrepresentations continued into the limitations period.
MORENO, J.
WE CONCUR: GEORGE, C. J.
KENNARD,
J.
BAXTER,
J.
WERDEGAR,
J.
CHIN,
J.
CORRIGAN,
J.
29

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Grisham v. Philip Morris, U.S.A., et al.
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
XXX on certification pursuant to rule 8.548, Cal. Rules of Court
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S132772
Date Filed: February 15, 2007
__________________________________________________________________________________

Court:


County:
Judge:


__________________________________________________________________________________

Attorneys for Appellant:

Baum, Hedliund, Aristei & Guilford, Baum Hedlund, Frances M. Phares, Michael L. Baum, J. Clark
Aristei; Law Offices of Daniel U. Smith and Daniel U. Smith for Plaintiff and Appellant Leslie Grisham.

Brayton Purcell, Alan R. Brayton, Gilbert L. Purcell, Lloyd F. LeRoy and Nance F. Becker for Nikki
Pooshs as Amicus Curiae on behalf of Plaintiff and Appellant Leslie Grisham.

Arkin & Glovsky and Sharon J. Arkin for Consumer Attorneys of California s Amicus Curiae on behalf of
Plaintiff and Appellant Leslie Grisham.

Law Offices of Martin L. Louis and Martin L. Stanley for Plaintiff and Appellant Maria Cannata.

__________________________________________________________________________________

Attorneys for Respondent:

Munger, Tolles & Olson, Daniel P. Collins, Daniel B. Levin; Arnold & Porter and Murray R. Garnick for
Defendant and Respondent Philip Morris USA Inc.

Jones Day, Elwood Lui, Peter N. Larson, Paul G. Crist; Sedgwick, Detert, Moran & Arnold, Frederick D.
Baker, Ralph A. Campillo; and Maurice Leiter for Defendant and Respondent Brown & Williamson
Holdings, Inc.

Daniel J. Popeo, Richard A. Stamp; Zacks Utrecht & Leadbetter and Paul F. Utrecht for Washington Legal
Foundation as Amicus Curiae on behalf of Defendants and Respondents.

Hugh F. Young, Jr., and Harvey M. Grossman for The Product Liability Advisory Council, Inc., as Amicus
Curiae on behalf of Defendants and Respondents.



Counsel who argued in Supreme Court (not intended for publication with opinion):

Daniel U. Smith
Law Offices of Daniel U. Smith
P.O. Box 278
Kentfield, CA 94904
(415) 461-5630

Martin L. Stanley
Law Offices of Martin L. Louis
9701 Wilshire Boulevard, 10th Floor
Beverly Hills, CA 90212
(310) 601-7115

Daniel P. Collins
Munger, Tolles & Olson
355 South Grand Avenue, 35th Floor
Los Angeles, CA 90071-1560
(213) 683-9100


Request under California Rules of Court, rule 29.8, that this court decide questions of California law presented in a matter pending in the United States Court of Appeals for the Ninth Circuit. As restated by the court, the questions presented are: "(1) For the purpose of the statute of limitations period applicable under California law to a personal injury action alleging injury arising from smoking tobacco, are persons presumed to have been aware by 1988 that smoking causes addiction and other health problems? If California recognizes such a presumption, under what circumstances is it rebuttable? (2) Under California law, if a plaintiff seeks damages resulting from an addiction to tobacco, does addiction constitute an injury causing all related claims to accrue at the time the plaintiff recognizes that he or she is addicted to tobacco, even if the plaintiff has not yet been diagnosed with an illness stemming from tobacco use?"

Opinion Information
Date:Citation:Docket Number:
Thu, 02/15/200740 Cal.4th 623, 54 Cal.Rptr.3d 735, 151 P.3d 1151S132772

Parties
1Grisham, Leslie (Plaintiff and Appellant)
Represented by Michael L. Baum
Baum Hedlund, PC
12100 Wilshire Boulevard, Suite 950
Los Angeles, CA

2Grisham, Leslie (Plaintiff and Appellant)
Represented by Frances M. Phares
Attorney at Law
606 E. Sixteenth Avenue
Covington, LA

3Grisham, Leslie (Plaintiff and Appellant)
Represented by Daniel U. Smith
Law Office of Daniel U. Smith
P.O. Box 278
21 Rancheria Road
Kentfield, CA

4Brown & Williamson Tobacco Corporation (Defendant and Respondent)
Represented by Peter N. Larson
Jones Day
555 California Street, 26th Floor
San Francisco, CA

5Brown & Williamson Tobacco Corporation (Defendant and Respondent)
Represented by Paul Grant Crist
Jones Day
555 California Street, 26th Floor
San Francisco, CA

6Brown & Williamson Tobacco Corporation (Defendant and Respondent)
Represented by Elwood Lui
Jones Day Reavis & Pogue
555 S. Flower Street, 50th Floor
Los Angeles, CA

7Philip Morris Usa, Inc. (Defendant and Respondent)
Represented by Daniel P. Collins
Munger, Tolles & Olson, LLP
355 S. Grand Avenue, 35th Floor
Los Angeles, CA

8Philip Morris Usa, Inc. (Defendant and Respondent)
Represented by Murry R. Garnick
Arnold & Porter, LLP
555 Twelfth Street N.W.
Washington, DC

9Philip Morris Usa, Inc. (Defendant and Respondent)
Represented by Fred D. Heather
Piper, Rudnick, Gray, Cary, U.S., LLP
1999 Avenue of the Stars
Los Angeles, CA

10Philip Morris Usa, Inc. (Defendant and Respondent)
Represented by Maurice A. Leiter
Arnold & Porter, LLP
777 S. Figueroa Street, 44th Floor
Los Angeles, CA

11Cannata, Maria (Plaintiff and Appellant)
Represented by Martin Louis Stanley
Law Offices of Martin Louis Stanley
9701 Wilshire Blvd., 10th Floor
Beverly Hills, CA

12United States Court Of Appeals For The Ninth Circuit (Overview party)
95 Seventh Street
P. O. Box 193939
San Francisco, CA 94119

13Pooshs, Nikki (Amicus curiae)
Represented by Alan R. Brayton
Brayton Purcell, LLP
222 Rush Landing Road
Novato, CA

14Product Liability Advisory Council Inc. (Amicus curiae)
Represented by Harvey M. Grossman
Attorney at Law
P.O. Box 360919
Los Angeles, CA

15Washington Legal Foundation (Amicus curiae)
Represented by Paul F. Utrecht
Attorney at Law
235 Montgomery Street, Suite 600
San Francisco, CA

16Consumer Attorneys Of California (Amicus curiae)
Represented by Sharon J. Arkin
Arkin & Glovsky
27031 Vista Terrace, Suite 201
Lake Forest, CA


Opinion Authors
OpinionJustice Carlos R. Moreno

Disposition
Feb 15 2007Opinion filed

Dockets
Mar 30 2005Request to answer question of state law filed
  By U.S. Courts of Appeal, Ninth Circuit
Mar 30 2005Received:
  Record from US Court of Appeal, Ninth Circuit containing: Court opinion, docket report for #03-56018 & #03-55780; Grisham opening brief & 3-vols. of appellant's excerpt of record; Cannata's opening brief & excerpt of record; Defendants/Appellees brief & supplemental excerpts of record; Grisham's reply brief; Defendants/Appellees Brief & supplemental excerpts; and Cannata's reply brief.
Apr 18 2005Received:
  Letter from Brayton & Purcell LLP dated 4-15-2005 (non-party) Received amended proof of service.
Apr 19 2005Received:
  letter from respondents Philip Morris USA, etal
Apr 19 2005Received:
  Letter dated 4/18/2005 from Baum & Hedlund, counsel for Appellant Grisham
Apr 19 2005Received:
  Letter dated 4-18-2005 from Robinson, Calcagnie et al, counsel for non-party (Consumer Attorneys of California)
May 2 2005Received:
  letter from respondents Philip Morris USA and Brown & Williamson Tobacco Corporation
Aug 10 2005Request for certification granted
  The request, made pursuant to California Rules of Court, rule 29.8, that this court decide a question of California law presented in a matter pending in the United States Court of Appeals for the Ninth Circuit, is granted. As restated by this court (Cal. Rules of Court, rule 29.8(f)(5)), the questions presented are: (1) For the purpose of the statute of limitations period applicable under California law to a personal injury action alleging injury arising from smoking tobacco, are persons presumed to have been aware by 1988 that smoking causes addiction and other health problems? If California law recognizes such a presumption, under what circumstances is it rebuttable? (2) Under California law, if a plaintiff seeks damages resulting from an addiction to tobacco, does addiction constitute an injury causing all related claims to accrue at the time the plaintiff recognizes he or she is addicted to tobacco, even if the plaintiff has not yet been diagnosed with an illness stemming from tobacco use? For the purposes of briefing and oral argument, plaintiffs Leslie Grisham and Marie Cannata are deemed petitioners to this court. (Cal. Rules of Court, rule 29.1(a)(6).) Werdegar, J., was absent and did not participate. Votes: George, C.J., Kennard, Baxter, Chin, and Moreno, JJ.
Aug 10 2005Note:
  Copies of the order mailed to all parties herein
Aug 11 2005Letter sent to:
  parties regarding Certification of Interested Entities or Persons.
Aug 12 2005Notice of substitution of counsel
  filed by Paul G. Crist and Peter N.Larson of Jones Day in place of Sedwick, Detert et al. as counsel for respondent (Brown & Williamson Tobacco Corporation. [See notice of withdrawal herein by Fred D. Baker, Gale Gough and Ralph A. Campillo of Sedwick, Detert, Moran and Arnold)
Aug 22 2005Certification of interested entities or persons filed
  respondent Philip Morris USA, Inc.
Aug 22 2005Filed:
  Joint Application for Modification of Due Dates for Parties' Briefs on the Merits. (CRC 29.1(a)(5) )
Aug 25 2005Note:
  Order and letter sent to attorney Paul G. Crist.
Aug 26 2005Order filed
  Under rule 29.3 of the Calfornia Rules of Court, the times stated in rule 29.3 for filing briefs in the Supreme Court "may be extended only by order of the Chief Justice under rule 45, and not by stipulation." For good cause shown, the Joint Application of Modification of Briefing Schedule, filed August 22, 2005, is granted as follows: (a) The time to file plaintiffs and appellants' opening brief on the merits is extended to and including October 7, 2005. (b) The time to file defendants and respondents' answer brief on the merits is extended to and including December 6, 2005. (c) The time to file plaintiffs and apellants' reply brief is extended to and including January 6, 2006. No further extensions are contemplated.
Aug 29 2005Application to appear as counsel pro hac vice (granted case)
  by Frances M. Phares of the State of Louisiana, Bar Number LA 10388.
Aug 30 2005Application to appear as counsel pro hac vice granted
  The application of Frances M. Phares of the State of Louisiana (Louisiana Bar No. 10388) for admission to appear as counsel pro hac vice on behalf of Plaintiff and Appellant Leslie J. Grisham is hereby granted. (See Cal. Rules of Court, rule 983.)
Sep 1 2005Certification of interested entities or persons filed
  by Peter N. Larson, Jones Day, counsel for Defendant Brown & Williamson Tobacco Corporation
Sep 6 2005Certification of interested entities or persons filed
  By counsel for appellant {Maria Cannata}.
Sep 6 2005Certification of interested entities or persons filed
  By counsel for appellant {Grisham}.
Sep 16 2005Filed:
  Appellant's Application for Modification of due Dates for Parties' Merits Briefs Proposed Order: Opening Brief - October 24, 2005 Answer Brief - December 23, 2005 Reply Brief - January 23, 2006
Sep 20 2005Note:
  TO ALL PARTIES: PLEASE ENSURE THAT THE CORRECT CASE NUMBER S132772 APPEARS IN ALL FILINGS AS SHOWN ON THE GRANT ORDER.
Sep 20 2005Filed:
  Under rule 29.3 of the California Rules of Court, the times stated in rule 29.3 for filing briefs in the Supreme Court may be extended only by order of the Chief Justice under rule 45. For good cause, appellants' Application for Modification of Briefing Schedule, filed September 16, 2005, is granted as follows: (a) The time to file plaintiffs' and appellants' opening brief on the merits is extended to and including October 24, 2005. (b) The time to fle defendants' and respondents' answer brief on the merits is extended to and including December 23, 2005. (c) The time to file plaintiffs' and appellants' reply brief is extended to and including January 23, 2006. No further extensions are contemplated.
Oct 24 2005Opening brief on the merits filed
  on behalf of plaintiff/appellant MARIA CANNATA by counsel
Oct 25 2005Opening brief on the merits filed
  by Appellant Leslie J. Grisham (CRC 40.1(b)/FedEx]
Oct 25 2005Request for judicial notice filed (granted case)
  by Appellant Grisham [with proposed order] (CRC 40.1(b))
Oct 26 2005Received:
  Appellant (Grisham's) Amended Proof of Service for Opening Brief on the Merits, Request for Judicial Notice and (Proposed) Order.
Nov 2 2005Request for extension of time filed
  to file response to appellant's Reqt for Judicial Notice>> respondents Philip Morris USA Inc. and Brown & Williamson Tobacco Corporation
Nov 3 2005Received:
  (faxed copy) Respondents' (Philip Morris) request to file Response to Appellant Grisham's RFJN to December 23,, 2005, the same time respondents answer brief on the merits is due.
Nov 3 2005Extension of time granted
  On application of respondents and good cause appearing, it is hereby ordered that the time to serve and file Respondents' Response to Appellant Grisham's Request for Judicial Notice is extended to and including December 23, 2005, the same time both Respondents' Answer Briefs on the Merits are due.
Dec 27 2005Filed:
  Response to Aplt's Request for Judicial Notice>> Defendant and Respondents Philip Morris USA, Inc., etal [rule 40.1]
Dec 27 2005Answer brief on the merits filed
  Defendants and Respondents Philip Morris USA, Inc., etal [rule 40.1]
Dec 27 2005Request for judicial notice filed (granted case)
  Defendants and Respondents Philip Morris USA, Inc., etal in 2 vols
Jan 9 2006Filed:
  appellant's reply to respondent's response to appellant's request for judicial notice Leslie Grisham, plaintiff and appellant Michael Baum, Daniel Smith, counsel
Jan 11 2006Opposition filed
  to respondents' request for judicial notice Leslie Grisham, plaintiff and appellant Michael Baum, Daniel Smith, counsel
Jan 19 2006Filed:
  Reply Memorandum In Support Of Respondents' Request For Judicial Notice Peter N. Larson, counsel (Brown & Williamson Holdings, Inc. & Daniel P. Collins, counsel (Philip Morris USA Inc.
Jan 24 2006Filed:
  Appellants Final Application for Modification of Due Date to February 1, 2006 to file both reply briefs on the merits. (faxed copy) (faxed copy received 1/23/2006]
Jan 24 2006Extension of time granted
  On application of appellants and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including February 1, 2006.
Feb 1 2006Reply brief filed (case fully briefed)
  Maria Canata, appellant
Feb 3 2006Application filed to:
  File Petitioner Grisham's Oversized Reply Brief on the Merits [containing 7,473 words, in excess of the word limit of 4200 words (CRC 29.1(c) ]
Feb 7 2006Order filed
  The application of petitioner for permission to file Petitioner Grisham's Reply Brief on the Merits containing 7,473 words that exceeds the 4200 word limit prescribed by California Rules of Court rule 29.1(c)(1) by 3,273 words is hereby granted.
Feb 7 2006Reply brief filed (case fully briefed)
 
Feb 22 2006Received application to file Amicus Curiae Brief
  and brief of Nikki Pooshs in support of petitioner (Leslie J. Grisham).
Feb 24 2006Permission to file amicus curiae brief granted
  The application of Nikki Pooshs for permission to file an amicus curiae brief in support of Appellant Leslie J. Grisham is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Feb 24 2006Amicus curiae brief filed
  Nikki Pooshs in support of Appellant Leslie J. Grisham
Feb 28 2006Received application to file Amicus Curiae Brief
  The Liability Advisory Council, Inc. App. & Brief under same cover in support of respondent Phillip Morris Harvey M. Grossman, retained.
Mar 3 2006Request for extension of time filed
  for a 10-day extension of time filed by Mark Gottlieb (MA Bar #627008) on behalf of Tobacco Products Liability Project, Northeastern University School of Law, Boston, Massachusetts.
Mar 6 2006Extension of time granted
  On application of Mark Gottlieb (MA #627008), Tobacco Products Liability Project, Northeastern University School of Law, State of Massachusetts, for an extension of time to file and serve the amicus curiae brief in support of appellant, together with his application to appear as counsel pro hac vice is hereby granted to and including March 20, 2006.
Mar 6 2006Received:
  From the Los Angeles Office, application and amicus curiae brief of Product Liability Advisory Council
Mar 9 2006Request for extension of time filed
  to 3-20-2006 to file Amicus Curiae Application and Amicus Brief of Consumer Attorneys of California in support of appellant, Leslie Grisham.
Mar 9 2006Permission to file amicus curiae brief granted
  The application of The Product Liabiilty Advisory Council, Inc. for permission to file an amicus curiae brief in support of respondents is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Mar 9 2006Amicus curiae brief filed
  The Product Liability Advisory Council, Inc.
Mar 10 2006Received application to file Amicus Curiae Brief
  and brief (separate) by Washington Legal Foundation in support of respondents. CRC 40.1(b)
Mar 10 2006Extension of time granted
  On application of Amicus Curiae Consumer Attorneys of California, and good cause appearing, it is ordered that the time to serve and file its amicus curiae brief in support of Appellant Leslie Grisham herein is extended to and including March 20, 2006. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Mar 10 2006Permission to file amicus curiae brief granted
  The application of Washington Legal Foundation for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Mar 10 2006Amicus curiae brief filed
  Washington Legal Foundation in support of respondent.
Mar 15 2006Request for extension of time filed
  Respondents [Brown & Williamson and Philip Morris USA Inc.] , joint application to April 21, 2006, to file Respondents Combined Response to Amicus Curiae Briefs
Mar 17 2006Extension of time granted
  On joint application of respondents and good cause appearing, it is ordered that the time to serve and file a combined response to amicus curiae briefs is extended to and including April 21, 2006.
Mar 22 2006Received application to file Amicus Curiae Brief
  Consumer Attorneys of California and Amicus Brief (separate) CRC 40.1(b)
Mar 23 2006Permission to file amicus curiae brief granted
  The application of Consumer Attorneys of California for permission to file an amicus curiae brief in support of Appellant Leslie Grisham is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Mar 23 2006Amicus curiae brief filed
  Consumer Attorneys of California in support of Appellant Leslie Grisham.
Mar 27 2006Request for extension of time filed
  to April 21, 2006, to file Appellant Leslie J. Grisham's Response to Amicus Curiae Briefs.
Mar 28 2006Extension of time granted
  On application of Appellant Leslie J. Grisham, and good cause appearing, it is ordered that the time to serve and file Appellant Grisham's response to amicus curiae briefs is extended to and including April 21, 2006.
Apr 24 2006Response to amicus curiae brief filed
  Appellant Leslie J. Grisham's Reply to Amicus Briefs in support of respondents (CRC 40.1(b)
Apr 24 2006Response to amicus curiae brief filed
  Respondents' [Brown & Williamson Holdings, Inc. and Philip Morris USA Inc.] Combined Response to Amicus Curiae Briefs of (1) Consumer Attorneys of California and (2) Nikki Pooshs (CRC 40.1(b))
Apr 24 2006Request for judicial notice filed (granted case)
  Respondents' (Brown & Williamson Holdings, Inc. and Philip Morris USA Inc.) in connection with respondents' combined brief in response to a/c briefs. (CRC 40.1(b))
Apr 25 2006Received:
  Respondents' supplemental proof of service showing service on amici curiae
Apr 28 2006Received:
  Letter dated 4-27-2006 from Baum Hedlund (Petitioner Grisham) re cites
May 16 2006Received:
  letter dated May 15, 2006, from Daniel P. Collins, counsel for respondents (Phillip Morris USA, Inc.) in response to appellant's letter re: recent decision in Bullock v. Phillip Morris USA.
Aug 25 2006Received:
  Letter from Frances M.Phares of Baum & Hedlund [Petitioner Leslie Grisham] dated August 24, 2006 re new authority -- an Auugst 17, 2006 ruling by the Honorable Gladys Kessler, U.S. District Court Court for the District of Columbia, in United States of America et al vs. Philip Morris USA, Inc., et al., Civil Action No. 99-2496 (GK) and with Enclosures: 13 CD-Roms of Judge Kessler's Opinion and Final Judgment and Remedial Order (Order #1015).
Sep 7 2006Received:
  Letter from Frances M. Phares [counsel for Leslie Grisham] dated 9-6-2006, as a follow-up to her August 24, 2006 letter.
Sep 13 2006Request for judicial notice filed (granted case)
  Leslie J. Grisham, petitioner by Frances M. Phares and Michael L. Baum of Baum Hedlund, P.C.
Sep 14 2006Letter brief filed
  Petitioner Leslie Grisham with exhibits attached. by Attorney Frances M. Phares of Baum & Hedlund
Sep 28 2006Received:
  Letter from Daniel P. Collins, Munger Tolles & Olson, counsel for defendants and respondents, in response to Plaintiff-Appellant Leslie Grisham's letters of August 24 and September 5, 2006.
Oct 4 2006Letter brief filed
  Respondents Philip Morris USA, Inc., and Brown & Williamson Holdings, Inc. responding to appellant Leslie Grisham's letter brief.
Oct 5 2006Filed:
  Respondents Philip Morris USA., Inc. and Brown & Williamson Holdings, Inc. Response to Appellant Grisham's second request for judicial notice.
Oct 27 2006Received:
  Letter from Frances M Phares of Baum Hedlund [Appellant Grisham] dated 10-26-2006, in reply to respondents [Tobacco Defendants] 9-27-2006 letter to this court. Enclosures are DVDs of "Exhibits admitted and/or offered into evidence." (14 sets of two)
Oct 30 2006Received:
  Letter dated 10-27-2006 from Frances M. Phares of Baum Hedlund [Appellant Grisham] in reply to Respondents' 10-4- 2006 letter response concerning the 8-29-2006 Massachusetts Department of Public Health (MDPH) report and press release.
Oct 31 2006Filed:
  Appellant Grisham's Reply [to Resopndents Response to her Request for Judicial Notice] and Additional Request for Judicial Notice [Exhibit 1 attached]
Nov 7 2006Case ordered on calendar
  Wednesday, December 6, 2006, at 9:00 a.m., in Los Angeles
Nov 14 2006Received:
  Letter from Frances M. Phares dated 11-13-2006. Previous disks sent with 10-26-2006 letter did not have the exhibits hyperlinked to the index. Enclosed 8 sets of two DVD's submitted with letter.
Nov 15 2006Filed:
  Defendants and respondents (Brown & Williamson and Philip Morris) response to Plaintiff and appellant's (Grisham) 3rd request for judicial notice. Daniel Collins, Peter Larson, counsel
Nov 20 2006Filed letter from:
  Frances Phares, counsel for appellants. Requesting permission to divide oral argument time between Daniel U. Smith, counsel for Leslie Grisham (20 minutes), and Martin Stanley, counsel for Maria Cannata (10 minutes).
Nov 20 2006Filed:
  Reply to defendants-respondents' response to plaintiff-appellant Grisham's 3rd request for judicial notice, Frances Phares, counsel
Nov 21 2006Order filed
  The request of counsel for appellants in the above-referenced cause to allow two counsel to argue on behalf of appellants at oral argument is hereby granted. The request of appellants to allocate to appellant Leslie Grisham 20 minutes and appellant Maria Cannata 10 minutes of appellants' 30-minute allotted time for oral argument is granted.
Nov 22 2006Filed:
  Respondents' Motion to Seal and Motion to Strike Appellant Grisham's Supplemental Submission
Nov 27 2006Received:
  Letter from Frances Phares, counsel for appellant, re addtional cite
Dec 5 2006Request for judicial notice granted
  Defendant/Respondent Philip Morris USA's Request for Judicial Notice of December 27, 2005 is granted. Exhibit A of Leslie Grisham's First Judicial Notice Request of October 25, 2005 is granted, and this Judicial Notice request is otherwise denied. Grisham's Second Judicial Notice Request of September 13, 2006 is denied.
Dec 5 2006Note:
  Order faxed to counsel of record. Telephone call placed to counsel re order filed today.
Dec 6 2006Cause argued and submitted
 
Dec 20 2006Received:
  Respondents' Reply in Support of Motion to Seal and Motion to Strike Appellant Grisham's Supplemental
Jan 10 2007Received:
  Supplemental Proof of Service by Federal Express (Reflecting Correct Address for Counsel for Cannata) by Daniel P. Collins of Munger, Tolles & Olson LLP
Jan 24 2007Order filed
  Defendants-Respondents Motion to Strike Plaintiff-Appellant Grisham's Supplemental Submissions of November 13, 2006 and October 26, 2006 is granted. Defendant's motion to seal the contents of these supplemental submissions is denied. Grisham's Third Request for Judicial Notice is denied. Moreno, J., was absent and did not participate.
Feb 14 2007Notice of forthcoming opinion posted
 
Feb 15 2007Opinion filed
  We conclude there is no special presumption that smokers are aware of the addictiveness or health hazards of smoking, but there is a general, rebuttable presumption that a plaintiff has knowledge of the wrongful cause of his or her injury. Here Grisham has failed to plead specific facts justifying the delay in discovering her smoking addiction. The fact that the unfair competition claim based on her economic injury from addiction may be barred, however, does not mean that Grisham's other claims, based on physical injury, are also barred. Cannata does not adequately allege that her justifiable reliance on defendants' misrepresentations continued into the limitations period. Opinion by Moreno, J. -- Joined by George, C.J., Kennard, Baxter, Werdgar, Chin, Corrigan, JJ.
Mar 23 2007Letter sent to counsel: opinion now final
 

Briefs
Oct 24 2005Opening brief on the merits filed
 
Oct 25 2005Opening brief on the merits filed
 
Dec 27 2005Answer brief on the merits filed
 
Feb 1 2006Reply brief filed (case fully briefed)
 
Feb 7 2006Reply brief filed (case fully briefed)
 
Feb 24 2006Amicus curiae brief filed
 
Mar 9 2006Amicus curiae brief filed
 
Mar 10 2006Amicus curiae brief filed
 
Mar 23 2006Amicus curiae brief filed
 
Apr 24 2006Response to amicus curiae brief filed
 
Apr 24 2006Response to amicus curiae brief filed
 
Brief Downloads
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Respondents’ Brief in Response to Amicus Curiae Briefs of (1) Consumer Attorneys of California and (2) Nikki Pooshs.pdf (4476631 bytes) - Respondents' Brief in Response to Amicus Curiae Briefs of (1) Consumer Attorneys of California and (2) Nikki Pooshs
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Respondents' Answering Brief.pdf (4880491 bytes) - Respondents' Answering Brief
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Petitioner's Brief on the Merits.pdf (2495496 bytes) - Petitioner's Brief on the Merits
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Petitioner Grisham's Reply Brief on the Merits.pdf (1648343 bytes) - Petitioner Grisham's Reply Brief on the Merits
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
Dec 31, 1969
Annotated by Talya Goldfinger

Facts

Plaintiffs Leslie Grisham and Maria Cannata brought suit for physical and monetary injuries suffered as the alleged result of smoking cigarettes manufactured and marketed by defendants, Philip Morris, U.S.A., Inc.

Induced by advertising representations of cigarette manufacturers, including defendants, Grisham began smoking in 1962-1963 and Cannata began in 1969. Both were unaware of the health risks and alleged that, had they been aware of the risks, they would not have started smoking. Grisham tried unsuccessfully to quit several times. In 2001, Grisham was diagnosed with irreversible emphysema and persistent and chronic periodontitis and gingivitis, which led to teeth loss and facial disfigurement. Cannata suffered from life-threatening injuries including emphysema, shortness of breath, anatomical changes to her alveoli, and other lung damage. Her complaint did not reveal the dates of her diagnosis.

Grisham filed suit in 2002 for her physical injuries as well as for her economic injuries resulting from her cigarette addiction. Cannata also brought suit for several different causes of action.

Procedural History

The district court found that Grisham's claims were time-barred by the statute of limitations. Once she knew the risks of smoking, Grisham had a limited amount of time under the statute of limitations in which to bring her claims. Relying on the Ninth Circuit’s decision in Soliman, the court found that there is a presumption in California that a plaintiff is aware of the risks of smoking. This presumption meant that Grisham must have known about the risks of her smoking. The court also pointed to Grisham's attempt to quit in 1993 to evidence her awareness. She waited too long to bring suit once she had this knowledge and so her claims were time-barred. The court concluded that both Grisham’s monetary and physical injuries were time-barred because they stemmed from the same defendant conduct.

A different district court heard Cannata’s claims but also relied on Soliman and concluded that they were time-barred under California law. Cannata argued that her claims were not time-barred because defendant committed an ongoing conspiracy to defraud and the statute of limitations does not begin to run until the last act in the conspiracy is finished. The court rejected her argument because Cannata could not prove that she had relied on the fraud.

On appeal, the Ninth Circuit panel recognized a critique of the Soliman holding interpretation by at least one Court of Appeal decision and requested a decision from the Supreme Court on the issue. The Court granted its request.

Issues

(1) Under California law, are persons presumed to have been aware of the risks of smoking by 1988 as it relates to the statute of limitations period applicable to a personal injury action arising from harms caused by tobacco smoking?

(2) If there is such a presumption, under what circumstances can it be overcome?

(3) If a plaintiff seeks damages resulting from tobacco addiction, must she bring all actions for personal injuries caused by the addition even if she has not yet been diagnosed with the injuries?

Holding

(1) As to Grisham’s economic injury claims, the Court found there was no reason to create a presumption of knowledge about smoking’s addictiveness but

(2) There is a general rebuttable presumption (it is presumed, but the plaintiff can overcome this presumption with certain evidence) that a plaintiff has knowledge of the wrongful cause of her injury. Because plaintiff’s complaint already admits that she had actual knowledge of smoking’s addictiveness, she did not rebut this presumption.

(3) As to Grisham’s physical injury claims, the Court concluded that the statute of limitations for the claims did not necessarily commence on the discovery of her addiction.

(4) The Court found that Cannata did not show that she continued to rely on defendants’ misrepresentation into the limitations period, but did not express an opinion on the validity of her conspiracy claim.

Analysis

A. The Grisham Complaint

1. Economic Injury Claims

A plaintiff has can be considered to have discovered a cause of action, which triggers the statute of limitations, when she “has reason at least to suspect a factual basis for its elements.” If there were to be a presumption that plaintiff was aware that cigarettes are addictive by 1988, this would mean that she was too late to bring her claim for economic injury. For this presumption, Philip Morris relied heavily on Soliman, which stated that California legislature created an immunity statute in 1987 to protect tobacco products’ manufacturer and sellers from responsibility for the commonly known risks of smoking. The Court rejects Soliman's holding of this presumption. The Court points out that the Legislature repealed the tobacco immunity statute and so it cannot serve as a basis for the presumption. The Court declines to itself create such a presumption because (1) California statute of limitations law does not generally recognize special presumptions (2) the cases cited by defendant in support of creating such a presumption were unconvincing and (3) while knowledge of smoking addiction is widespread, so are the tobacco companies’ misrepresentations of the risks of smoking and the Court will not generalize when reliance on these misrepresentations became unreasonable. Rather, the Court leaves it as a question of fact for the jury to decide whether it was reasonable for a person not to know the risks of smoking.

However, the Court quotes Fox for the idea that California law recognizes a general rebuttable presumption that a plaintiff knows the wrongful cause of her injury. This presumption can be rebutted by showing (1) when and how the cause of injury was actually discovered and (2) that plaintiff could not have made the discovery sooner. The Court finds that Grisham did not rebut this presumption because her statement that she tried to quit in 1993 showed that she was aware of the addictiveness of smoking. Grisham argued that she only joined Nicotine Anonymous to appease her family and not because she actually believed she was addicted. The Court, however, finds that this at least created a reason for Grisham to suspect their addictiveness and so she could have discovered it.

The Court concludes that Grisham either knew or should have known about the addictiveness of tobacco by 1993 or 1994 and so she brought her case in 2002 too late to be within the statute of limitations.

2. Physical Injury Claims

Plaintiff filed suit for these claims within a year of her diagnosis of the injuries, but Philip Morris claimed that Grisham's physical injury claims were also time-barred because they came about after she discovered her cigarette addiction. Again relying Soliman, Philip Morris argued that if harm immediately caused by defendant’s wrongdoing (such as addiction) is barred by the statute of limitations, so too is any subsequent harm (such as lung-disease) arising from that wrongdoing. The Court finds, however, that the addiction claims and the other injuries claims are two separate causes of action, the former harm being only economic in nature and the latter physical. The Court finds that it would be against public policy to require a plaintiff to file a suit before she has all the evidence of her injuries. Cigarette smokers would be required to file baseless suits for injuries they don’t have as soon as they find out that they are addicted to cigarettes or else they lose the opportunity to sue for them at all.

The Court concludes that Grisham’s discovery of her addiction/economic injuries did not start the statute of limitations running for her later-discovered physical injury claims.

B. The Cannata Complaint

As to Cannata’s ongoing conspiracy claims, the Court agrees with the Ninth Circuit that Cannata could not have justifiably relied on defendants’ misrepresentations. The Court finds that she may have justifiably relied on the misrepresentations when she began smoking, but she did not adequately plead that this reliance ended within the statute of limitations period. The Court does not answer whether Cannata should be allowed to amend her pleadings or whether defendant’s actions could still be considered a conspiracy when their fraud was revealed.

Tags

statute of limitations, time-barred, smoking, cigarettes, tobacco, risks of smoking, cause of action, physical injury, economic injury, personal injury, addiction, misrepresentations, unfair competition, ongoing conspiracy to defraud, conspiracy, rebuttable presumption, presumption

Annotation By: Talya Goldfinger