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Samuels v. Mix12/30/1999
ff discovered, or should have discovered, the cause of action.
As the majority concede, however, this holding contravenes a long line of California decisions, including cases interpeting the identically structured limitations statute for medical malpractice (§ 340.5). These authorities consistently hold that where a limitations period runs from the time of the plaintiff's discovery, he bears the burden of showing his suit was filed within the requisite time after discovery occurred. (E.g., Hobart v. Hobart Estate Co. (1945) 26 Cal.2d 412, 437 (Hobart) [fraud limitations statute]; April Enterprises, Inc. v. KTTV (1983) 147 Cal.App.3d 805, 833 [breach of fiduciary duty]; Christ v. Lipsitz (1979) 99 Cal.App.3d 894, 898 [current medical malpractice limitations statute]; Burgon v. Kaiser Foundation Hospital (1979) 93 Cal.App.3d 813, 824 [same]; Dujardin v. Ventura County General Hosp. (1977) 69 Cal.App.3d 350, 355-356 [same]; G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 25-26 [product liability; latent injury]; Devault v. Logan (1963) 223 Cal.App.2d 802, 809 [predecessor medical malpractice limitations statute].)
Courts have given various rationales for the prevailing rule, but it is amply supported by the principle that one should usually not have to defend himself by proving facts peculiarly within his opponent's knowledge. (See Cal. Law Revision Com. com., reprinted at 29B pt. 1 West's Ann. Evid. Code (1995 ed.) foll. § 500, p. 554.) This principle applies with particular force where a claim of legal malpractice is asserted. In such a case, the time of the plaintiff's actual or constructive discovery may, and often will, depend on what information he obtained, and when he obtained it, from confidential and absolutely privileged consultations with another attorney. A party need not waive the privilege in order to help his opponent prove facts on which the adversary has the burden, and, for obvious reasons, there is little incentive to cooperate voluntarily. Indeed, as a result of the majority's holding, it seems likely that in any retrial of this case, plaintiff Samuels and Attorney Hildre will invoke the attorney-client privilege to avoid testifying about the timing and content of their communications. Defendant Mix may therefore be left without any opportunity to show Samuels's claim is untimely.
I cannot join the vote to place an attorney sued for malpractice in such a legal and practical bind.
The issue here is whether the Legislature, when it adopted the legal malpractice limitations statute, intended an anomalous exception to the long-established rule that the plaintiff must demonstrate when his discovery of a cause of action triggered the running of the statute of limitations. The majority say such an exception arises on the face of the statute, appears consistent with legislative intent, and comports with public policy. I am not convinced.
Invoking the plain language of section 340.6(a), the majority distinguish the structure of this section from other statutory and common law rules of delayed discovery. The majority reason that in technical terms, section 340.6(a) defines the basic limitations period in terms of discovery, thus requiring the defendant to prove, as an element of his affirmative limitations defense, that the action is barred under the statutory terms. (Maj. opn., ante, at p. 5, citing Evid. Code, § 500.) By contrast, the majority argue, because belated discovery in other cases postpones the time at which the cause of action would "accrue" (see, e.g., § 338, subd. (d) [fraud or mistake]), the plaintiff may properly have the burden of proving this "exception" to normal commencement and expiration of the limitations pe
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