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Samuels v. Mix12/30/1999
with two distinct limitations defenses barring, upon requisite proof, commencement of actions filed either four years after the alleged wrong or one year after discovery of the alleged wrong, whichever occurs first. (§ 340.6(a); cf. Newell v. Richards, supra, 594 A.2d at pp. 1155-1158 [construing analogous statute of limitations].)
In any event, contrary to defendant's characterization, plaintiff does not seek to "excuse" herself from compliance with an otherwise expired statute of limitations. The discovery provision of section 340.6(a) describes alternative time limitations on commencement of actions for attorney malpractice, not exceptions to other limitations or rules. (See Flowers v. Torrance Memorial Hospital Medical Center, supra, 8 Cal.4th at p. 999; Regents of University of California v. Hartford Acc. & Indem. Co., supra, 21 Cal.3d at pp. 640-641; Radovich v. Locke-Paddon, supra, 35 Cal.App.4th at p. 966.)
Perhaps more fundamentally, the observation, that because the common law discovery rule generally benefits plaintiffs it has been thought fair to burden them with proving its elements (see, e.g., Mangini v. Aerojet-General Corp., supra, 230 Cal.App.3d at pp. 1149-1150 [negligence], citing G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 26 [products liability]; April Enterprises, Inc. v. KTTV, supra, 147 Cal.App.3d at p. 832 [breach of contract]), supports plaintiff's position in this case, not defendant's. Plainly, in providing for definite and relatively early termination of attorney malpractice exposure, section 340.6 generally benefits defendants. Section 340.6 sets up two alternative limitations periods, and defendants are just as fairly burdened with proving entitlement to the more beneficial one-year period as they are with proving entitlement to the less beneficial four-year period. When the applicability of the one-year period is at issue, the defendant is the one who seeks to shorten the limitations period that would otherwise apply. "The general rule has long been that `He who takes the benefit must bear the burden.' " (Adams v. Murakami, supra, 54 Cal.3d at p. 120, quoting Civ. Code, § 3521.)
Moreover, whereas the common law discovery rule and the fraud tolling provision of section 338(d) each place a very substantial burden on defendants, such as may seem to warrant burdening plaintiffs with justifying any delay, section 340.6(a), with its four-year-from-occurrence limitation, does not. Accordingly, insofar as general considerations of fairness may be thought to bear, they suggest the defendant appropriately is burdened with proving all the elements of section 340.6(a)'s one-year-from-discovery defense.
5. Access to Evidence
Finally, defendant points out that the Evidence Code section 500 rule allocating the burden of proof applies " xcept as otherwise provided by law" and that the exception, as we have stated, " `is included in recognition of the fact that the burden of proof is sometimes allocated in a manner that is at variance with the general rule. In determining whether the normal allocation of the burden of proof should be altered, the courts consider a number of factors: the knowledge of the parties concerning the particular fact, the availability of the evidence to the parties, the most desirable result in terms of public policy in the absence of proof of the particular fact, and the probability of the existence or nonexistence of the fact.' " (Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 660-661, quoting Cal. Law Revision Com. com., 29B West's Ann. Evid. Code (1966 ed.) foll. § 500, p. 431; see also Aydin Corp. v. First State Ins. Co., supra, 18 Cal.4th at p. 1193.)
Defen
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