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Samuels v. Mix12/30/1999
riod. (Maj. opn., ante, at p. 14, quoting Hobart, supra, 26 Cal.2d 412, 437.)
The majority's semantic analysis is overliteral and exaggerated. Section 340.6(a), like a "delayed accrual" rule, provides that even after malpractice and injury have occurred, the one-year limitations period will not begin until the plaintiff discovers his claim. Just as the defendant need not prove there was no delayed "accrual," so he should not have to prove there was no delayed commencement.
The only practical distinction between section 340.6(a) and traditional delayed-discovery rules is that, with specified exceptions, section 340.6(a) imposes an absolute cut-off date of four years after malpractice and injury, regardless of discovery. But that particular feature of the statute has no logical relevance to the issue before us. Though the majority suggest otherwise, I see no reason why the statute's provision of an alternate four-year limitations period should bear upon how to allocate the burden of proof of delayed discovery when the one-year period is at issue.
The majority assert there is no evidence of legislative purpose to adopt, for legal malpractice, the traditional allocation of proof of delayed discovery. But the majority have it backwards. The history of section 340.6(a), its language, and its subsequent construction by this court demonstrate that the Legislature intended no radical departure from traditional delayed-discovery rules. Indeed, the Legislature's manifest aim was to adopt the common law delayed-discovery rule we had already announced for legal malpractice, subject only to exceptions we had invited the Legislature to impose.
The relevant background is set forth in the companion cases of Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176 (Neel) and Budd v. Nixen (1971) 6 Cal.3d 195 (Budd). At the time of those decisions, there was no distinct limitations period for attorney malpractice. Courts applied the two-year statute for "action upon a contract, obligation or liability not founded upon an instrument of writing" (§ 339, subd. 1). (Neel, supra, at pp. 181-182.) The cause of action was deemed to accrue, and the limitations period thus began to run, when malpractice and resulting injury had occurred. (Neel, supra, at p. 182-183; Budd, supra, at pp. 200-201.) In contrast with most other instances of professional negligence, however, courts declined to find that "accrual of the limitations period" was further delayed while the client lacked actual or constructive knowledge of the attorney's negligence. (Neel, supra, at pp. 183-187.)
We found no justification for denying legal malpractice plaintiffs the benefit of the delayed-discovery rule. Thus, we held that a cause of action for legal malpractice did not accrue, and the limitations period thus did not begin to run (see § 312), until the client both discovered or should have discovered the malpractice, and suffered "actual and appreciable harm" thereby. (Neel, supra, 6 Cal.3d 176, 186-190; Budd, supra, 6 Cal.3d 195, 201.)
In Neel, we recognized that a rule of delayed accrual pending discovery could operate unfairly against legal malpractice defendants by extending the limitations period indefinitely. Neel thus expressly invited the Legislature to consider a solution already adopted for medical malpractice, i.e., an outside time limit that would apply regardless of the client's failure to discover the professional negligence. (Neel, supra, 6 Cal.3d 176, 192-193, & fn. 32.)
The Legislature responded by enacting section 340.6 in 1977. Using a formula previously employed for medical malpractice (see § 340.5), section 340.6(a) established alternative lim
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