Joyce Ledderer v. Gursey Schneider

Plaintiff Joyce Lederer employed accounting firm Gursey

Schneider LLP and its employee Spencer Inada (collectively,

Gursey) to manage her finances. As part of their agreement,

Gursey purchased insurance for Joyce1 and her family members.

Joyce requested that Gursey purchase uninsured/underinsured

insurance with a policy limit of $5 million. Gursey actually

purchased a policy with a limit of only $1.5 million.

In February 2010, Joyce’s adult son, Jonathan Lederer, was

in a motorcycle accident that resulted in serious injuries. Shortly

afterward, Joyce and Jonathan discovered that the limit on the

policy Gursey purchased was only $1.5 million. In January 2012,

the insurance company for the other driver involved in the

accident tendered the $15,000 limit of the driver’s policy to

Jonathan. In June 2012, the insurance company tendered the

$1.5 million limit of the underinsured motorist policy to

Jonathan. In March 2013, Joyce and Jonathan sued Gursey,

alleging that they had been damaged because they could not

collect the additional money they would have been entitled to had

Gursey purchased an insurance policy with the limits Joyce had

requested. Jonathan alleged that he was entitled to additional

insurance benefits due to his injuries, and Joyce alleged that she

was damaged by the diminished benefits because she had to

financially support Jonathan.

Gursey moved for summary adjudication, asserting that the

lawsuit was untimely. It argued that the cause of action accrued

shortly after the accident when plaintiffs discovered that the



1 Because both plaintiffs and one witness share a last

name, we refer to them by first name for clarity. No disrespect is

intended.

3

insurance coverage Gursey purchased was less than what Joyce

had requested. Plaintiffs opposed, asserting that even though

they discovered Gursey’s negligence shortly after the accident,

they did not incur actual damages until they collected the

insufficient policy benefits. The trial court agreed with Gursey,

and held that plaintiffs’ claims were time-barred. The court also

found that Joyce did not show that she was required to

financially support Jonathan as a matter of law, and therefore

plaintiffs did not demonstrate a triable issue of fact as to Joyce’s

claim for damages. The trial court entered judgment for Gursey,

and plaintiffs appealed.

We reverse the trial court’s order holding that plaintiffs’

claims are time-barred. As the Supreme Court has said, “Only in

the unusual case will the [plaintiff] discover . . . negligence

without having suffered any consequential damage.” (Budd v.

Nixen (1971) 6 Cal.3d 195, 201.) This is one of those unusual

cases, which distinguishes it from the more common “delayed

discovery” scenario in which a plaintiff suffers damages and later

discovers the damages were caused by wrongdoing. Here,

although plaintiffs were aware of Gursey’s alleged negligence

shortly after the accident, Jonathan did not suffer actual

damages as a result of that negligence until he received a

payment of insurance benefits that was less than he would have

received in the absence of Gursey’s negligence. Plaintiffs

therefore did not incur actual damages until Jonathan became

entitled to the benefits of the underinsured motorist policy in

June 2012. As a result, plaintiffs’ causes of action against Gursey

accrued less than two years before they filed this action, and the

trial court erred in holding that plaintiffs’ claims were timebarred.



4

We affirm the trial court’s ruling that plaintiffs failed to

demonstrate a triable issue of fact as to Joyce’s legal

responsibility for financial support of Jonathan. The evidence

showed that Jonathan held the same job both before and after the

accident, and therefore plaintiffs failed to demonstrate that

Jonathan was incapacitated from earning a living and without

sufficient means under Family Code section 3910.

FACTUAL AND PROCEDURAL BACKGROUND

A. Second Amended Complaint

Plaintiffs alleged in the operative complaint that they

employed Gursey and related individuals and entities as financial

advisors, bookkeepers, and money managers.2 They further

alleged that they requested and needed an uninsured/

underinsured motorist policy with a $5 million policy limit.

Instead, Gursey obtained an uninsured/underinsured motorist

policy with only a $1.5 million limit.

3 Gursey knew this coverage

was insufficient, and should have obtained a uninsured/

underinsured motorist policy with a $5 million limit instead.

Plaintiffs also alleged that “coverage protection was only for

$1,500,000 . . . which was contrary to the directions/

instructions/orders of the Plaintiffs,” but defendants represented

to plaintiffs that insurance coverage totaled $5 million. Plaintiffs

alleged that in February 2010, while the $1.5 million policy was

in place, Jonathan suffered catastrophic injuries in a motorcycle



2 The complaint named multiple parties as defendants, but

only Gursey Schneider LLP and Spencer Inada are respondents

on appeal. We therefore do not address plaintiffs’ claims as they

relate to any other named defendant.

3 Parts of the complaint alleged that the uninsured/

underinsured motorist policy had a $1 million limit. The parties

agree that the limit was $1.5 million.

5

accident. The driver of the other vehicle involved had a $15,000

insurance policy limit, which eventually was tendered to

Jonathan. Plaintiffs’ insurers then agreed to pay the entire

limits of the uninsured/underinsured motorist coverage to

Jonathan due to the severity and permanence of Jonathan’s

injuries. Plaintiffs contended they were damaged because

Gursey should have purchased a policy with a $5 million limit,

and paid that amount to Jonathan. Plaintiffs alleged that

because the insurance proceeds did not adequately address

Jonathan’s expenses, Joyce was required to support Jonathan.

Plaintiffs asserted causes of action for negligence, negligent

misrepresentation, breach of written contract, breach of oral or

implied contract, and breach of fiduciary duty.

B. Motion for summary adjudication and court ruling

1. Motion

Gursey moved for summary adjudication. It asserted that

Joyce testified that before Jonathan’s accident, she asked Gursey

to secure vehicle insurance coverage for $5 million in case

Jonathan injured anyone, and $5 million in case Jonathan was

injured. Deposition testimony attached to the motion indicated

that both Jonathan and Joyce requested that Gursey obtain at

least $5 million in automobile insurance coverage. At the time of

the accident, Joyce believed that that she had $5 million in

coverage.

Gursey argued that because the basis for plaintiff’s claims

was accounting malpractice, the two-year statute of limitations in

Code of Civil Procedure, section 339, subdivision (1) applied.4



4 All further statutory references are to the Code of Civil

Procedure unless otherwise indicated. Section 339 states in

relevant part, “Within two years: 1. An action upon a contract,

6

Gursey asserted that plaintiffs’ lawsuit, filed in March 2013, was

untimely. Gursey said that the statute of limitations began to

run on all claims in April 2010, when plaintiffs began exploring

insurance issues relating to the accident and discovered that the

coverage Gursey purchased had a lower limit than Joyce had

requested. Gursey also contended that plaintiffs knew then that

the damage from Jonathan’s injuries would exceed the amount of

all available insurance coverage. In support of this assertion,

Gursey cited to a demand letter by Jonathan’s counsel to the

other driver’s insurance company, demanding $10 million to

settle Jonathan’s claims. Gursey also argued that Jonathan

suffered actual injury because he retained an attorney to

investigate available insurance coverage and otherwise represent

Jonathan’s interests with respect to the accident.

Gursey further argued in its motion that there was no

triable issue of fact regarding legally recoverable harm to Joyce.

It asserted that only Jonathan was injured in the accident, and

therefore only Jonathan had a right to the insurance proceeds.

Gursey also asserted that although Joyce chose to financially

support her adult son following the accident, she did not have a

legal obligation to do so. Gursey attached transcripts from



obligation or liability not founded upon an instrument of writing,

except as provided in Section 2725 of the Commercial Code or

subdivision 2 of Section 337 of this code; or an action founded

upon a contract, obligation or liability, evidenced by a certificate,

or abstract or guaranty of title of real property, or by a policy of

title insurance; provided, that the cause of action upon a contract,

obligation or liability evidenced by a certificate, or abstract or

guaranty of title of real property or policy of title insurance shall

not be deemed to have accrued until the discovery of the loss or

damage suffered by the aggrieved party thereunder.”

7

Jonathan’s deposition, in which he testified that at the time of

the accident, he was 29 years old and lived with Joyce. Before

the accident, Jonathan always had been financially supported by

Joyce or his father, Les Lederer. At the time of the deposition,

Jonathan was living in an apartment by himself, and Joyce paid

the rent. Jonathan agreed that his sources of financial support

had not changed from before the accident to after.

Gursey also asserted that Jonathan was not disabled to the

extent that he cannot care for himself, and in fact he “earns an

income and is currently employed by his father’s law firm . . . to

perform computer-related IT services.” Gursey attached a

transcript of Les’s deposition, in which Les testified that before

the accident, Jonathan had been employed by his law firm and

did work for a retail shopping center Les owns. Les testified that

Jonathan is still employed by the firm, but he works reduced

hours. Les said that Jonathan does “real work”; his position at

the firm was not a “made-up job.” Jonathan also testified that he

primarily works for his father, and he also does some work for

family friends. Jonathan testified that he often works remotely,

and he can do much of his work “from home or from anywhere.”

Jonathan testified that both before and after the accident, the

money he earned by working for Les went into an account that

Les controlled and Jonathan could not access. Gursey also

asserted that Jonathan “has performed other computer work for

third parties, as well as drone photography work.” Jonathan

testified that he drives a car that is not modified to accommodate

any disability, and his driver’s license carries no restrictions.

2. Opposition

Plaintiffs opposed the motion for summary adjudication.

Regarding the statute of limitations, plaintiffs pointed out that

8

injuries caused by the vehicle accident should not be conflated

with the injury caused by Gursey’s negligence. Plaintiffs

asserted that they even though they knew of Gursey’s

wrongdoing in 2010, “mere knowledge of wrongdoing is not

damages.” Plaintiffs said they did not suffer damages in 2010 by

retaining an attorney on Jonathan’s behalf relating to the

accident, because the firm did not bill for any work relating to the

insurance issues with Gursey. Instead, that firm simply

investigated the existence of applicable insurance, as it would in

any other vehicle accident case. A declaration from Jonathan’s

attorney stated that neither he nor his firm did any work relating

to Gursey’s purchase of insurance until the summer of 2012. The

attorney researched available insurance following a demand

made by Jonathan’s passenger on the motorcycle during the

accident. The attorney said that the amount of underinsured

motorist coverage procured by Gursey had no effect on the work

he did before 2012.

Plaintiffs also stated that the timing of Jonathan’s

underinsured motorist claim was governed by Insurance Code

section 11580.2, subdivision (p)(3), which required all third party

claims to be exhausted before an underinsured motorist claim

could be made to plaintiffs’ insurer. Entitlement to underinsured

motorist coverage was not a given, because “Jonathan had a

heavily disputed motorcycle accident. The police report was

against him, as was his passenger who filed a lawsuit against

him. As such, he could have gone to trial and been met with a

defense verdict. In that event, Jonathan’s [underinsured

motorist] coverage would have been non-existent.” Jonathan’s

counsel wanted to determine whether the other driver was within

the scope of her employment at the time of the accident, in which

9

case Jonathan may have been entitled to additional insurance.

Thus, Jonathan did not accept any settlement money until he

received two declarations: “one from the owner of the

underinsured motorist vehicle and one from the driver of the

underinsured motorist vehicle,” in order to ensure that money

from the “full maximum insurance available from all policies”

had been paid. Plaintiffs asserted that entitlement to the

underinsured motorist coverage, if any, began only in January

2012, after those declarations were received and Jonathan had

been paid.

Plaintiffs therefore asserted that January 2012 was the

earliest their causes of action against Gursey could have accrued.

In addition, “the making of a [underinsured motorist] claim does

not automatically mean one is entitled to compensation.”

Instead, the claim was required to be arbitrated or settled.

Jonathan’s underinsured motorist claim was “concluded on June

22, 2012, for the maximum amount available to him.” Plaintiffs

argued that because they filed their complaint in March 2013,

within two years of exhausting the other available insurance and

within two years of completing the underinsured motorist claim,

their lawsuit against Gursey was timely.

Plaintiffs also asserted that Gursey was liable for Joyce’s

out-of-pocket losses for Jonathan’s accident-related care because

Jonathan was unemployable following the accident. They

pointed to Family Code section 3910, subdivision (a), which states

that a father and mother have the responsibility to care for a

child of any age who is incapacitated from earning a living.

Plaintiffs contended there was a triable issue of fact as to

whether Jonathan was incapacitated from earning a living.

10

Plaintiffs argued that Jonathan has never received the

money he earned from working with Les, and Joyce had

supported Jonathan financially even before the accident. But

after the accident, “Jonathan’s expenses go beyond his preaccident

living needs.” “Whatever work that Jonathan does for

his father is his father’s way of trying to teach him a lesson,” and

does not qualify as employment. They asserted that Jonathan is

confined to a wheelchair, takes medications that affect his

cognition, and suffers from severe depression, anxiety, and

extreme pain.

In support of their opposition, plaintiffs attached the

declaration of a vocational expert, Paul Broadus, who had

analyzed Jonathan’s employability. Broadus said that following

the accident, Jonathan “was diagnosed with an open book pelvic

fracture with avulsion of the nerve roots with neuropathic limb

pain. He subsequently underwent multiple surgeries . . . .”

Jonathan lost the use of his left leg. He was mostly confined to a

wheelchair, and he lived alone but employed an assistant who

worked for him 12 hours a day, seven days a week. The assistant

did the cooking and cleaning, and assisted with dressing and

hygiene. Jonathan continued to suffer from “chronic, severe

pain” in his left leg, which “comes repeatedly without warning” as

often as “multiple times per day.” A nerve blocker had been

implanted in Jonathan’s brain, which succeeded in reducing the

pain by 55-65 percent. Jonathan continued to take pain

medications to address pain that is insufficiently managed by the

nerve blocker. Severe pain “comes without warning,” and when it

does, “any useful activity is impossible.”

Broadus said that Jonathan was employed at Les’s law firm

part time, but he “has no set hours, cannot show up if he is in

11

pain or fatigued, and can work remotely if needed.” Other than

the work he does for his father, Jonathan “has never been

employed and has no other work experience.” He had not

graduated from college and had no professional certifications.

Broadus concluded that although Jonathan had computer skills,

his pain episodes made him undependable as a worker, and

therefore he was “not employable in the open labor market.”

Jonathan also submitted a declaration. He said that the

accident left him “depressed, anxious, in extreme pain, grossly

overweight, temperamental, mentally erratic,” and “physically

restricted to a wheelchair.” He also said he was unable to drive

long distances, and unable to get in and out of a car by himself.

He said he could not support himself and relied on his mother for

rent, his car, his caregiver, and medical expenses. In a response

to a form interrogatory that was submitted with plaintiffs’

opposition, Jonathan set out a seven-page list of injuries

sustained in the accident, ranging from relatively mild issues

such as stiffness, discoloration, and itching, to severe injuries and

consequences such as multiple fractures, injury to organs,

multiple surgeries, “extreme neuropathic pain,” and the inability

to walk. Joyce submitted a declaration stating that she pays for

Jonathan’s rent, car, caretaker, and medical expenses. Plaintiffs

submitted portions of Les’s deposition, in which he testified that

Jonathan uses a wheelchair and cannot walk unassisted.

Jonathan said in his declaration that he works for Les but

has never received any money in exchange for that work.

Jonathan said that he does not consider the work he does for Les

to be real “employment.” In his discovery responses, Jonathan

said he was not employed at the time of the accident. Les also

submitted a declaration stating that Jonathan works for Les’s

12

law firm, but Les keeps the money Jonathan earns. Les also said

that Jonathan’s work at the law firm is “only symbolic,” and

Jonathan is not a good or reliable worker. Les said he plans to

retire within the next couple of years and will not continue to

employ Jonathan. Plaintiffs also attached a portion of Jonathan’s

deposition in which he said that the money he earns working for

Les has always been placed in “a separate account for me that

just accumulated and he was investing it and stuff, and . . .

teaching me to use the stock market and whatnot.” Jonathan

said that he used the settlement money he received following the

accident “for business ventures, but they failed and most of the

funds have been depleted.”

3. Reply

In its reply, Gursey repeated many of the arguments from

its motion. It also asserted that Jonathan’s and Les’s

declarations should be disregarded because the facts they stated

contradicted the testimony in their depositions. Gursey pointed

out that Jonathan and Les both said in their depositions that

Jonathan worked at Les’s law firm before and after the accident,

and that Jonathan’s pay went into an account that Les managed.

Gursey argued that in their declarations submitted with the

opposition, Jonathan and Les contradicted this testimony by

saying that Jonathan’s work was only symbolic and that

Jonathan had no entitlement to the money he earned.

5

4. Hearing and court ruling

Following a hearing, the court issued a written ruling

granting the motion. With respect to the timeliness contentions,

the court cited Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103 and



5 Gursey also submitted objections to plaintiffs’ evidence,

which are not relevant on appeal.

13

stated that the limitations period begins when a plaintiff

suspects injury was caused by wrongdoing. The court said

plaintiffs “had knowledge [of], or at least should have suspected,

the negligent conduct a ‘couple months’ after the accident in

February 2010.” The court noted that Joyce said she did not

learn of the actual insurance payment until later, and said,

“[R]ealizing that the insurance would not pay the $5 million is

different from learning a couple of months after the motorcycle

accident that Defendant did not get the correct amount of

insurance.”

The court also said that plaintiffs incurred damages before

2012, because even though Jonathan’s attorney said that he did

not charge any fees relating to the underinsured motorist

coverage before 2012, “the fact that Plaintiffs would incur

attorney fees is a sufficient basis to show that Plaintiffs incurred

more than nominal damage even if the exact amount of damage

of the fees was yet unknown.” Moreover, Joyce incurred damages

before 2012 because she had to pay for Jonathan’s medical care

and other needs following the accident. The court concluded, “As

such, there is no basis to conclude that actual injury did not

accrue until the summer of 2012; rather, the evidence shows that

actual injury occurred following the accident in February 2010.”

The court also said that acceptance of the underinsured

motorist settlement was not the event that triggered the statute

of limitations: “[S]imply because Plaintiffs did not accept the

$15,000 in UIM [underinsured motorist coverage] until January

2012 does not mean that the Plaintiffs did not suffer injury in

fact” before then. The court also said that because the injury was

to Jonathan, rather than a third party, “this action involves a

first-party claim where damages could be ascertained once there

14

was a basis to claim damages in excess of $1 million.”6 Because

Jonathan’s attorney made a $10 million demand to the other

driver involved in the accident in August 2010, “actual damages

began almost immediately.” “As such, as early as August 2010,

damages could be ascertained once there was a basis to claim

damages in excess of $1 million.” The court held that because

plaintiffs did not file their complaint until March 2013, their

action was time-barred under the applicable two-year statute of

limitations.

The court also considered Gursey’s argument that there

was no triable question of fact about whether Joyce suffered

damages because she supported Jonathan financially. The court

stated in its written ruling, “[T]here are insufficient facts to

support Plaintiff’s claim that Jonathan is incapacitated from

earning a living and without sufficient means.” The court

pointed to Jonathan’s testimony stating that he was employed by

Les and occasionally worked for others, and Les’s testimony that

Jonathan did computer work for Les’s law firm. The court said,

“[B]ased on the deposition testimony, it is clear that Plaintiff

Jonathan is able to perform work at both his father’s law office

and at home. He also received income from drone photography

work. . . . Thus, to the extent the plaintiff claims that he cannot

work, such is contradicted by his deposition testimony, and

cannot be considered.” The court said that based on Jonathan’s

admission that he does work, “there is no basis to conclude that

he is incapacitated from earning a living and without sufficient



6 As noted in footnote 3, ante, there was some confusion

throughout the case as to whether existing coverage was $1

million or $1.5 million. On appeal, the parties seem to agree that

the underinsured motorist coverage totaled $1.5 million.

15

means.” The court therefore granted the motion. Joyce had

asserted additional claims unrelated to the issues on appeal, and

she dismissed those claims to allow for a judgment and appeal.

Judgment was entered in favor of Gursey. Plaintiffs timely

appealed.

DISCUSSION

“We review the trial court’s grant of summary

[adjudication] de novo and decide independently whether the

parties have met their respective burdens and whether facts not

subject to triable dispute warrant judgment for the moving party

as a matter of law.” (Jessen v. Mentor Corp. (2008) 158

Cal.App.4th 1480, 1484.)

A. Accrual

The parties agree that the two-year statute of limitations in

section 339, subdivision (1) applies. The undisputed facts provide

the following relevant dates. Jonathan’s motorcycle accident

occurred in February 2010. Plaintiffs knew sometime in the first

half of 2010 that the insurance Gursey purchased for plaintiffs

did not include the $5 million policy limit plaintiffs requested.

Jonathan settled with the other driver for her $15,000 policy

limits, and received that benefit payment in January 2012.

Jonathan received the policy limits of the underinsured motorist

coverage, $1.5 million, in June 2012. Plaintiffs filed their lawsuit

in March 2013. Thus, if plaintiffs’ causes of action against

Gursey accrued before March 2011 and are not otherwise tolled,

they are time-barred.

Because the relevant facts are not in dispute, the

application of the statute of limitations may be decided as a

question of law. (Jordache Enterprises, Inc. v. Brobeck, Phleger &

16

Harrison (1998) 18 Cal.4th 739, 764 (Jordache); International

Engine Parts, Inc. v. Feddersen & Co. (1995) 9 Cal.4th 606, 611.

Generally speaking, a cause of action accrues at “‘the time

when the cause of action is complete with all of its elements.’”

(Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806.)

Thus, “[t]he statute begins to run when (1) the aggrieved party

discovers the negligent conduct causing the loss or damage and

(2) the aggrieved party has suffered actual injury as a result of

the negligent conduct.” (Apple Valley Unified School Dist. v.

Vavrinek, Trine, Day & Co. (2002) 98 Cal.App.4th 934, 942 (Apple

Valley).) For purposes of this case, only the second of these two

factors is relevant.

It is undisputed that plaintiffs discovered shortly after the

accident in 2010 that Gursey had failed to secure the insurance

coverage plaintiffs requested. Thus, this case does not involve

the delayed discovery doctrine, which makes “accrual of a cause

of action contingent on when a party discovered or should have

discovered that his or her injury had a wrongful cause.” (Fox v.

Ethicon Endo-Surgery, Inc., supra, 35 Cal.4th at p. 808.) In

delayed discovery cases, “plaintiffs are required to conduct a

reasonable investigation after becoming aware of an injury, and

are charged with knowledge of the information that would have

been revealed by such an investigation.” (Ibid.) Here, the

question is when plaintiffs incurred “actual injury”—not when

they discovered Gursey’s negligence. The trial court erred to the

extent that it relied on the delayed discovery doctrine to

determine when plaintiffs incurred actual injury.

The Supreme Court in Budd v. Nixen, supra, 6 Cal.3d 195

held that actual harm is required before a cause of action accrues:

“If the allegedly negligent conduct does not cause damage, it

17

generates no cause of action in tort. [Citation.] The mere breach

of a professional duty, causing only nominal damages, speculative

harm, or the threat of future harm—not yet realized—does not

suffice to create a cause of action for negligence.” (Id. at p. 200.)

In Adams v. Paul (1995) 11 Cal.4th 583 (Adams), the court said

that that “the fact of damage rather than the amount is the

relevant consideration. [Citation.] In addition, the character or

quality of the injury must be manifest and palpable.” (Id. at p.

589.)

Here, Jonathan clearly suffered damages from the

motorcycle accident in February 2010, and plaintiffs discovered

Gursey’s negligence shortly after the accident in early 2010.

However, plaintiffs did not suffer the damages alleged to be

caused by Gursey—diminished benefits under the underinsured

motorist coverage—until Jonathan received that diminished

benefit payment in June 2012.

Under relevant statutes and case law, a right to

underinsured motorist coverage does not accrue until the insured

has reached a settlement or judgment exhausting the

underinsured motorist policy. Insurance Code section 11580.2,

subdivision (p)(3) (section 11580.2(p)(3)) states that underinsured

motorist coverage “does not apply to any bodily injury until the

limits of bodily injury liability policies applicable to all insured

motor vehicles causing the injury have been exhausted by

payment of judgments or settlements, and proof of the payment is

submitted to the insurer providing the underinsured motorist

coverage.”

The Supreme Court discussed this requirement in

Quintano v. Mercury Casualty Co. (1995) 11 Cal.4th 1049

(Quintano), stating, “[S]ection 11580.2(p)(3) establishes a

18

condition precedent to the accrual of the insured’s right to

coverage.” (Id. at p. 1057.) The Court continued, “[U]nder

section 11580.2(p)(3), the right to coverage under the

underinsured motorist policy does not even arise until after the

tortfeasor’s insurer has paid the insured pursuant to a judgment

or settlement with the tortfeasor.” (Ibid.) The Court said that an

insured may not make a demand for arbitration to determine

coverage before settling with the underinsured motorist, because

“the insured’s right to claim coverage would not have accrued, so

that any demand for arbitration would be premature. Further,

as a practical matter, the insurer’s liability cannot be determined

by arbitration until settlement or judgment against the

tortfeasor, as the insurer is only liable for the difference between

the amount paid by the tortfeasor or his or her insurer and the

insured’s policy limits. (§ 11580.2(p)(4), (5).)” (Id. at p. 1059.)

Here, Jonathan was not entitled to coverage from the

underinsured motorist policy until after he settled with the other

driver’s insurance in January 2012. Gursey argued that Jonathan

suffered actual injury when he “sustained severe bodily injuries

exceeding his available insurance coverage, without any right to

obtain any greater liability protection to fully compensate him for

his injuries.” Gursey asserts that this “diminution of a right”

constitutes actual damages. We are not persuaded that Jonathan

could be damaged by the allegedly inadequate limit of the

underinsured motorist policy before the right to receive any

coverage under that policy had accrued. As the Court said in

Adams, “‘The mere breach of a professional duty, causing only . . .

the threat of future harm—not yet realized—does not suffice’” to

constitute actual harm. (Adams, supra, 11 Cal.4th at p. 589.)

19

Jonathan’s harm was not yet realized before he had a right to the

benefits of the underinsured motorist policy.

Plaintiffs assert that this case is similar to Williams v.

Hilb, Rogal & Hobbs Ins. Services of California, Inc. (2009) 177

Cal.App.4th 624. We agree. In that case, a company bought an

insurance package that its insurance agency specifically designed

for the company. (Id. at pp. 628-629.) After a worker was injured

in a fire, the company owners discovered that the insurance

package they purchased included a $1 million general commercial

liability policy, but did not include any workers’ compensation

insurance. The employee sued, and a jury found the company

liable. (Id. at p. 629-630.) The company then sued the insurance

agency, HRH, which asserted that the statute of limitations

barred the action. HRH argued that the statute of limitations

began to run on the date the employee was injured, because on

that date the company knew that liability was “inescapable,” and

only the amount of the liability, not the fact of liability, remained

to be determined. (Id. at p. 641.)

The Court of Appeal held that the company did not incur

actual injury until judgment was rendered in the employee’s

lawsuit. Although the company knew of potential liability when

the employee was injured, “no actual injury occurred until

judgment was entered” against the company that exceeded the

general liability policy. (Williams, supra, 177 Cal.App.4th at pp.

641-642.) “Until judgment was entered against [the company] in

excess of that amount, other litigation results were possible: a

settlement or verdict under the $1 million policy limit, greater

comparative liability on codefendant Rhino USA, or a defense

verdict. Thus until the judgment was entered, [the company]

20

sustained no appreciable harm from the lack of workers

compensation insurance coverage.” (Id. at p. 642.)

The Williams court relied on Walker v. Pacific Indem. Co.

(1960) 183 Cal.App.2d 513, which presented similar facts. There,

a logging truck owner requested that his insurance broker secure

a policy with a $50,000 bodily injury limit. The broker secured a

policy with only a $15,000 limit. (Id. at p. 515.) The truck was in

an accident, and a jury returned a verdict for the other driver in

the amount of $100,000. (Ibid.) The truck owner assigned his

rights under the policy to the other driver, and she sued the

insurance company and broker. (Ibid.) The broker demurred,

arguing that the claim was time-barred because it accrued at the

latest on the date of the accident. The plaintiff argued that the

cause of action accrued when the judgment was entered. (Ibid.)

The Court of Appeal said, “There is no dispute that the

wrong here occurred March 17, 1952, when defendant

‘negligently and carelessly’ procured a policy with limits of

$15,000, rather than $50,000.” (Walker, supra, 183 Cal.App.2d at

pp. 515-516.) The court continued, “But was there any injury or

damage then? We think not. . . . Until an accident occurred,

bodily injury was inflicted on another, and a liability in excess of

the $15,000 coverage incurred, there was no injury to [the truck

owner] in the absence of possible special facts which do not

appear here.” (Id. at p. 516.)

The reasoning of Williams and Walker applies here,

because the fact of the defendants’ negligence became known to

the plaintiffs before the plaintiffs incurred any damages resulting

from that negligence. These cases can be distinguished from

cases in which a plaintiff suffers damages, and later discovers

negligence caused those damages.

21

For example, Gursey asserts that this case is similar to

Jordache, supra, 18 Cal.4th 739. In that case, Jordache retained

a law firm, Brobeck, to represent it in a lawsuit in which

Jordache had been named as a defendant. Brobeck did not give

Jordache any advice about potential liability insurance coverage,

and neither Jordache nor Brobeck informed Jordache’s insurer of

the lawsuit. Two and a half years later, Jordache retained new

counsel who told Jordache there was potential insurance

coverage for the lawsuit. By December 1987, “Jordache had

discovered Brobeck’s alleged negligence in not notifying or

advising Jordache to notify its insurers” of the lawsuit. (Id. at p.

745.)

Jordache tendered the defense of the lawsuit to its

insurers, which apparently denied the claim; “in February 1988,

Jordache sued its insurers, alleging they failed to provide a

defense and wrongfully refused to acknowledge coverage.”

(Jordache, supra, 18 Cal.4th at p. 745.) In May 1990, the original

lawsuit against Jordache settled. (Id. at p. 746.) In July 1990,

“Jordache settled its insurance coverage suits for $12.5 million.”

(Id. at p. 746.)

Jordache then sued Brobeck in February 1991,7 alleging

that Brobeck failed to investigate possible insurance coverage

and failed to advise Jordache to report the litigation to its

insurers. Brobeck moved for summary judgment on the grounds

that Jordache knew of the alleged negligence and suffered actual

injury in 1987, and therefore its claim was time-barred. Jordache



7 Jordache’s lawsuit against the attorney was filed in

February 1991, but pursuant to a tolling agreement, it was

deemed filed as of August 1990. (Jordache, supra, 18 Cal.4th at

p. 746.)

22

argued that it did not suffer actual injury until it settled with its

insurer for less than the full amount of its claim in July 1990.

(Jordache, supra, 18 Cal.4th at p. 746.)

The Supreme Court said, “‘The mere breach of a

professional duty, causing only nominal damages, speculative

harm, or the threat of future harm—not yet realized—does not

suffice to create a cause of action for negligence. [Citations.]

Hence, until the client suffers appreciable harm as a consequence

of [the] attorney’s negligence, the client cannot establish a cause

of action for malpractice.’” (Jordache, supra, 18 Cal.4th at p.

750.) The Court held that Jordache already had suffered actual

injury by the time it learned of Brobeck’s negligence in 1987,

because it had been paying for defense counsel who otherwise

might have been covered by insurance: “By then, Jordache had

lost millions of dollars—both in unpaid insurance benefits for

defense costs in the [original] action and in lost profits from

diversion of investment funds to pay these defense costs. As

Brobeck asserts, these damages were sufficiently manifest,

nonspeculative, and mature that Jordache tried to recover them

as damages in its insurance coverage suits.” (Jordache, supra, 18

Cal.4th at p. 752.)

The Court also said that “Jordache’s injuries were not

speculative or contingent until the trial court ruled the insurers

had a duty to defend Jordache and Jordache settled its coverage

claims. [S]peculative and contingent injuries are those that do

not yet exist, as when an attorney’s error creates only a potential

for harm in the future. [Citations.] An existing injury is not

contingent or speculative simply because future events may affect

its permanency or the amount of monetary damages eventually

incurred. [Citations.].” (Id. at p. 754.) The Court added,

23

“Delaying recognition of actual injury until related litigation

concludes would give a client who has sustained actionable

damages, and who is aware of the attorney’s error unilateral

control over the limitations period. This result would undermine

the Legislature’s purpose in enacting a statute of limitations. (Id.

at p. 755.)

Because Jordache alleged that it was entitled to insurance

coverage at the initiation of the original lawsuit filed against it,

Jordache began to incur actual damages when it began to pay for

the costs that otherwise would have been covered by insurance.

By the time it discovered Brobeck’s negligence, Jordache already

had incurred damages. The record does not demonstrate that the

same is true here. Rather, because the insurance coverage at

issue is underinsured motorist coverage, and Jonathan’s right to

that coverage did not accrue until 2012 due to statutory

restrictions, Jonathan’s actual injury did not occur until he

received the limited benefits payment of $1.5 million.

Gursey asserts that Jonathan was damaged not only by

receipt of the diminished limits of the underinsured motorist

policy in June 2012, but also “because his attorneys had to spend

time to investigate his coverage, and Joyce sustained damages

because she started paying for Jonathan’s expenses” before

Jonathan collected any insurance benefits. Gursey compares this

case to Apple Valley, supra, 98 Cal.App.4th 934. That case, like

Jordache, involves delayed discovery of wrongdoing after

damages already had been incurred, rather than a delay in actual

injury.

In Apple Valley, a public school district hired an accounting

firm to analyze the policies of a charter school and audit the

school’s finances. (Id. at p. 938.) The firm issued a report

24

regarding finances and attendance for part of the school, but

omitted information about associated “satellite” schools that

charged tuition and taught religion—practices that violated state

and federal law. (Id. at p. 939.) The district later learned of the

violations and revoked the school’s charter; a subsequent audit

revealed that the charter school had received $4.4 million more in

funding than it was entitled to receive. (Id. at pp. 939-940.) The

district then sued the accounting firm, alleging that its false

representations about the school led to the improper issuance of

funds to the school. (Id. at p. 940.)

The firm asserted that the district’s claim was time-barred

because the district knew of possible wrongdoing at the school

and had suffered damages more than two years before it sued the

accounting firm. (Apple Valley, supra, 98 Cal.App.4th at p. 942.)

The district countered that it had not suffered damages until an

audit report stated that the district was responsible for the

improper payments to the charter school, because before then,

damages were speculative. (Id. at p. 944.) The Court of Appeal

agreed with the accounting firm. It held that the district suffered

actual injury when it provided funds to the charter school based

on the defendant firm’s misrepresentations, or “after it suspected

the error and suffered out-of-pocket losses by paying

investigation and legal fees in an effort to determine the extent of

the improper payments. In either case, the statute of limitations

lapsed.” (Id. at p. 947.)

The Apple Valley court discussed Jordache, and noted that

according to that opinion, legal fees and investigation costs

incurred as the direct result of another’s tort constitute

recoverable damages. (Apple Valley, supra, 98 Cal.App.4th at p.

948.) The court said, “[T]herefore, the out-of-pocket expenses the

25

District incurred when it engaged its accountant and legal

counsel, in an effort to determine the extent of the improper

payments and arrange for reimbursement of funds improperly

received, constituted actual injury for limitations purposes.” (Id.

at p. 949.) The court also said that later events that might alter

the district’s financial responsibility did not change the accrual

date: “That the District may ultimately avoid liability for the

improper payments through its pending appeal does not mean it

did not suffer injury.” (Id. at p. 951.)

Gursey asserts that here, plaintiffs incurred damages when

they began to investigate the scope of insurance coverage.

However, there is no indication that recovery of attorney fees is

appropriate in the context of this case. Attorney fees are not

typically recoverable in the absence of an agreement between the

parties. (See § 1021.) There is an exception, where “a person

who through the tort of another has been required to act in the

protection of his interests by bringing or defending an action

against a third person.” (Prentice v. North Am. Title Guaranty

Corp., Alameda Division (1963) 59 Cal.2d 618, 620.) In Jordache,

for example, Jordache incurred legal fees as a result of Brobeck’s

negligence because it had to defend itself in the original

litigation. In such cases, “attorney’s fees . . . are recoverable as

damages resulting from a tort in the same way that medical fees

would be part of the damages in a personal injury action.”

(Brandt v. Superior Court (1985) 37 Cal.3d 813, 817.) As Apple

Valley noted, investigation costs incurred as a direct result of

another’s tort can also be deemed recoverable damages. (Apple

Valley, supra, 98 Cal.App.4th at pp. 948-949; see also Stearman

v. Centex Homes (2000) 78 Cal.App.4th 611, 625 [in a

construction defect case, fees were recoverable where “plaintiffs

26

were billed $37,500 by professionals who investigated the

problems in order to formulate an appropriate repair plan.”].)

This “so-called ‘third party tort exception’ to the rule that parties

bear their own attorney fees is not really an ‘exception’ at all but

an application of the usual measure of tort damages. . . . In such

cases there is no recovery of attorney fees qua attorney fees.”

(Sooy v. Peter (1990) 220 Cal.App.3d 1305, 1310.)

Here, there is no indication that the third-party tort

exemption applies. The evidence does not suggest that plaintiffs

employed counsel to do anything more than represent Jonathan

in relationship to the accident—which presumably would have

occurred even if the underinsured policy limits were higher—and

to represent them in this case. Gursey does not assert that

plaintiffs had to defend a separate lawsuit as a result of

defendants’ negligence or incur investigation costs other than

typical litigation discovery. Indeed, the evidence is to the

contrary. Jonathan’s attorney stated in his declaration that he

investigated the scope of available insurance while defending

Jonathan against a claim made by Jonathan’s passenger, which

he would have done in any personal injury case. The attorney

made clear that he did not investigate anything relating to

Gursey’s negligence until the summer of 2012. Moreover,

plaintiffs’ second amended complaint did not request attorney

fees or investigation costs as recoverable damages. Thus,

Gursey’s argument that its negligence caused plaintiffs to incur

recoverable damages in the form of attorney fees before June

2012 is not supported by the evidence or the law.

In holding that plaintiffs incurred damages before 2012,

the trial court also relied on Joyce’s declaration stating that she

paid for Jonathan’s immediate medical bills, caretaker, and other

27

needs after the accident, and said this “shows that actual injury

occurred following the accident in February 2010.” The court’s

conclusion conflates the injuries caused by the accident with the

injuries allegedly caused by Gursey’s negligence. As discussed

above, Jonathan was not entitled to the benefits of the

underinsured policy coverage until after he settled his claim

against the other driver in January 2012. Jonathan (and

presumably, Joyce) would have incurred costs for Jonathan’s

medical care and living expenses from the time of the accident

until Jonathan collected the underinsured motorist policy

benefits, no matter what the limits on the policy were. In other

words, Gursey’s negligence—purchasing a $1.5 million policy

versus a $5 million policy—had no effect on Jonathan’s medical

or living expenses from the time of the accident in February 2010

until the time Jonathan became entitled to underinsured

motorist policy benefits in June 2012. Jonathan’s entitlement to

eventual reimbursement of medical and living expenses through

the underinsured motorist policy is not tantamount to those

expenses being caused by Gursey’s negligence in the first

instance. Thus, the fact that Jonathan and Joyce incurred those

expenses following the motorcycle accident does not warrant a

finding that Jonathan’s causes of action against Gursey accrued

before June 2012.

In addition, as plaintiffs point out, until Jonathan received

the benefit payment from the underinsured motorist policy, his

damages remained speculative. It was not clear that Jonathan

would suffer damages resulting from Gursey’s negligence until a

finding was made that he was entitled to the upper limit of the

underinsured motorist coverage. By statute, the amount of

recovery under an underinsured motorist policy is to be

28

determined by agreement between the insured and the insurer,

or if the parties do not agree, by arbitration. (Ins. Code,

§ 11580.2, subd. (f); see also Bouton v. USAA Cas. Ins. Co. (2008)

43 Cal.4th 1190, 1193 (“if the insurer and the insured cannot

agree whether the insured is legally entitled to recover damages

from an uninsured motorist and the amount of such damages,

those issues shall be determined by arbitration.”).) In addition, if

any other party is deemed liable for the injuries, the

underinsured motorist insurance coverage may be reduced. (See,

e.g., Ins. Code, § 11580.2, subd. (p)(4); Mercury Ins. Co. v.

Vanwanseele-Walker (1996) 41 Cal.App.4th 1093, 1103 [car

manufacturer that settled product liability claims relating to a

car accident was an organization legally liable for the injury, and

therefore recovery under the underinsured motorist policy should

have been reduced].)

Here, the parties seem to agree that Jonathan’s damages

exceeded $1.5 million. However, liability for the damages was

contested, and as plaintiffs point out, “if [the insurer] had been

able to convince the arbitrator that Jonathan bore the brunt of

the fault for causing the accident, the arbitration award could

have been for $1.5 million or less.” If that were the case,

Jonathan would not have been entitled to more than $1.5 million

in underinsured motorist coverage, and Gursey’s negligence in

purchasing a lower-limit policy would not have caused plaintiffs

any harm.

Gursey asserts that the Supreme Court rejected a similar

argument in Jordache. There, the Court stated, “There is no

requirement that an adjudication or settlement must first

confirm a causal nexus between the attorney’s error and the

asserted injury.” (Jordache, supra, 18 Cal.4th at p. 752.) The

29

Court continued, “[T]he result of Jordache’s coverage litigation

could only confirm, but not create, Jordache’s actual injuries from

the late tender of the [litigation] defense. Jordache’s right to an

insurer-funded defense existed or not when that action first

embroiled Jordache. The right to that insurance benefit, the

impairment of that right, and Jordache’s expenditures while that

right was unavailable, did not arise for the first time when

Jordache settled with the insurers.” (Id. at p. 753.)

This passage from Jordache highlights the contrast

between these two cases. There, Jordache allegedly had a right

to insurance coverage from the beginning of the original litigation

against it. Here, Jonathan did not have a right to claim

underinsured motorist insurance coverage until after his claim

against the other driver was settled in January 2012. Jonathan

could not incur actual injury from the inadequate insurance

policy before he was entitled to receive the benefits of the

insurance policy.

Gursey also asserts that Jordache bars plaintiffs’ claims

because that case warned against “a general rule that tolls the

limitations period until a related lawsuit establishes a causal

connection between attorney error and resulting injury.”

(Jordache, supra, 18 Cal.4th at p. 754.) The court said, “[A]

prospective malpractice plaintiff could influence the course of the

collateral suit and the timing of its conclusion. . . . Delaying

recognition of actual injury until related litigation concludes

would give a client who has sustained actionable damages, and

who is aware of the attorney’s error, unilateral control over the

limitations period. This result would undermine the

Legislature’s purpose in enacting a statute of limitations.” (Id. at

p. 755.)

30

Gursey argues that the same reasoning applies here: “To

hold that [plaintiffs’] damages did not arise until Jonathan

settled his claims gives [plaintiffs] ‘unilateral control’ over the

limitations period, because they decided when to file their claim

against [the other driver], when to demand her policy limits,

what conditions to place on her acceptance, when to file the UIM

claim and when to demand the UIM limits. . . . In fact, it was

[plaintiffs] who delayed the resolution of that claim by

conditioning settlement on the other driver providing a

declaration proving there were no other possible sources of

recovery, and then waiting for that declaration for a year and a

half while offering no evidence explaining or justifying the delay.

Similarly, it was [plaintiffs] who decided when to bring the

underinsured motorist claim and when to demand the

underinsured motorist policy limits from the insurance carrier.”

As the Supreme Court in Quintano acknowledged, some

delay is inherent in underinsured motorist claims: “[S]ettlement

with the tortfeasor’s insurer may take close to a year even when

the insured assiduously pursues settlement” (Quintano, supra, 11

Cal.4th at p. 1057), and “even if the insured makes a timely claim

against the tortfeasor’s insurer, that insurer may agree to a

settlement but delay payment for a period beyond a year past the

date of the accident.” (Id. at p. 1058.) However, the court said

that delay is warranted because determination of the tortfeasor’s

liability is critical to the determination of liability under the

underinsured motorist policy: “By statute, the underinsured

motorist insurer owes nothing until satisfaction of judgment or

settlement against the tortfeasor, and is entitled to a credit for

any amount the insured received from the tortfeasor.

(§ 11580.2(p)(3), (5).) The insurer can never be liable for more

31

than the tortfeasor’s liability. (Ibid.)” (Id. at p. 1061.) The court

stated that delay was not a significant concern: “[A]s a practical

matter, we think it unlikely the insured who chooses to settle

with the tortfeasor will delay making a claim on the insurer any

longer than the insured who chooses to sue the tortfeasor. To

make a claim, after all, is the only way to receive full

compensation under the underinsured motorist policy. Nor does

it seem likely the insured will delay concluding a judgment or

settlement with the tortfeasor’s insurer, for the same reason.”

(Id. at p. 1064.)

Here, the delay does not warrant a holding that Jonathan

incurred actual injury before his right to the benefits of the

underinsured motorist policy was determined. Gursey has not

presented any evidence to suggest that Jonathan influenced the

timing of the underinsured motorist’s insurance payment.

Moreover, Gursey has not demonstrated that it was prejudiced by

the delay. Standing alone, the fact that underlying litigation was

required to determine whether Jonathan would incur damages

does not render his claim for those damages untimely.

In summary, our holding is as follows. A cause of action

accrues when it is complete with all of its elements. Damages is

an element of the torts alleged in this case. Jonathan did not

incur actual damages arising from Gursey’s negligence until June

2012, when he recovered $1.5 million from the underinsured

motorist policy instead of the higher amount he allegedly would

have received in the absence of Gursey’s negligence. Jonathan’s

causes of action against Gursey therefore did not accrue until

June 2012. The trial court erred by granting summary

adjudication on the basis that plaintiffs’ causes of action were

time-barred.

32

B. Liability to Joyce based on Family Code section 3910

Plaintiffs also assert that the trial court erred in finding

that there was no triable issue as to Joyce’s alleged damages.

Plaintiffs alleged that Joyce incurred damages because she has

an obligation to support Jonathan under Family Code section

3910, subdivision (a), which states in full, “The father and mother

have an equal responsibility to maintain, to the extent of their

ability, a child of whatever age who is incapacitated from earning

a living and without sufficient means.”8 An adult child is deemed

incapacitated from earning a living within the meaning of Family

Code section 3910 “if he or she demonstrates ‘an inability to be

self-supporting because of a mental or physical disability or proof

of inability to find work because of factors beyond the child’s

control.’” (In re Marriage of Cecilia and David W. (2015) 241

Cal.App.4th 1277, 1285.) “[T]he question of ‘sufficient means’

should be resolved in terms of the likelihood a child will become a

public charge.” (In re Marriage of Drake (1997) 53 Cal.App.4th

1139, 1154.)

The trial court granted Gursey’s motion for summary

adjudication on this issue, finding that “there are insufficient



8 It is not clear that this statute provides an appropriate

basis upon which a parent may establish liability against a third

party. (See, e.g., In re Marriage of Drake (1997) 53 Cal.App.4th

1139, 1152 [“[A] parent’s statutory duty to support an

incapacitated adult child runs to the child [citations], although

this duty may be enforced by an action initiated by the other

parent.”].) The parties do not address the applicability of this

statute to the facts of this case, however. Thus, we assume

without deciding that Gursey could be liable if plaintiffs could

make a showing that Jonathan was incapacitated and without

means under this statute.

33

facts to support Plaintiff’s claim that Jonathan is incapacitated

from earning a living and without sufficient means.” The court

said, “[I]t is clear that Jonathan is able to perform work at both

his father’s law office and at home,” and he also received income

from other work. The court found that Jonathan had “admitted

that he was able to work,” warranting summary adjudication of

this issue.

Plaintiffs assert that the court erred because it “went far

beyond determining whether there was a triable issue of fact

concerning the extent of Jonathan’s incapacity,” and instead

“improperly resolved those disputed issues in favor of Gursey.”

“[T]he court’s sole function on a motion for summary judgment is

to determine from the submitted evidence whether there is a

‘triable issue as to any material fact’ (§ 437c, subd. (c)).” (Zavala

v. Arce (1997) 58 Cal.App.4th 915, 926.) “There is a triable issue

of material fact if, and only if, the evidence would allow a

reasonable trier of fact to find the underlying fact in favor of the

party opposing the motion in accordance with the applicable

standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25

Cal.4th 826, 850.) The question here, therefore, is whether the

evidence would allow a reasonable trier of fact to find that

Jonathan is “incapacitated from earning a living and without

sufficient means.”

The evidence shows that both before and after the accident,

Jonathan was employed at Les’s law firm doing computer work.

In his deposition, Les said that Jonathan does “real work”; his

position at the firm was not a “made-up job.” Jonathan testified

that he works for Les and also does some work for family friends.

Jonathan testified that both before and after the accident, the

money he earned by working for Les went into an account that

34

Les controlled, and the money was invested and used to teach

Jonathan how to invest in stocks.

In opposition to the motion, plaintiffs submitted

declarations that contradicted the deposition testimony. For

example, Jonathan testified that Les deposited Jonathan’s pay

“in a separate account for me that just accumulated and [Les]

was investing it,” but in his declaration he said that Les used

Jonathan’s pay to reimburse debts Jonathan owes to Les. Les

also contradicted his deposition testimony, because at his

deposition he testified that Jonathan does “real work” at his law

firm, but in his declaration he said that Jonathan’s employment

is “only symbolic.” As the court correctly noted, “a party cannot

create an issue of fact by a declaration which contradicts his prior

discovery responses.” (Shin v. Ahn (2007) 42 Cal.4th 482, 500 fn.

12.)

Plaintiffs assert that a triable issue of fact was

demonstrated by vocational expert Paul Broadus’s conclusion

that Jonathan is “not employable in the open labor market” and

Joyce’s declaration that before the accident, she did not plan to

continue supporting Jonathan. However, when there is a dispute

over the child’s capacity, “the incapacity standards require courts

to focus not on the adult child’s conditions and their potential

impact on employment, but rather on his or her ability to find

work or become self-supporting in light of such conditions.” (In re

Marriage of Cecilia and David W., supra, 241 Cal.App.4th at p.

1286.) Here, Jonathan did find work—the very same work he

was doing before the accident. At his deposition, counsel asked

Jonathan, “[T]he method of support of yourself hasn’t changed

from before the accident; is that right?” Jonathan answered,

“That’s right.” The trial court did not err by finding that

35

plaintiffs failed to demonstrate a triable issue of fact as to

Jonathan’s incapacity and lack of means under Family Code

section 3910.9

The judgment is reversed in part and affirmed in part. On remand, the trial court shall vacate its order granting summary adjudication of plaintiffs’ claims, and enter a new order denying the motion as to the statute of limitations, and granting the motion as to Joyce’s damages based on Family Code section 3910.

The parties shall bear their own costs on appeal.