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Samuels v. Mix12/30/1999
itations periods, one year from discovery, or four years from wrongdoing, whichever occurred first. Both of these limitations periods would be "tolled" while (1) the plaintiff had sustained no "actual injury" (id., subd. (a)(1)); (2) the negligent attorney continued to represent the plaintiff in the same legal matter (id., subd. (a)(2)); or (3) the plaintiff was under a legal or physical disability to sue (id., subd. (a)(4)). The four-year period, but not the one-year period, would further be "tolled" by the attorney's willful concealment of the wrongful act or omission (id., subd. (a)(3); cf. Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 101 [medical malpractice]).
Thus, section 340.6(a) specifically retained the common law rules of Neel and Budd that commencement of the limitations period for legal malpractice occurs when a client has discovered, and has suffered injury from, an attorney's professional malfeasance. In substance, section 340.6(a) departed from Neel and Budd in just two ways: It shortened the limitations period after discovery from two years to one; and, as Neel had suggested, it eliminated the unfair "long-tail" effect of the common law delayed-discovery rule by providing that failure to discover, unless caused by willful concealment, would not extend the statute of limitations past four years from the lawyer's negligent act.
The majority point to no evidence, and I know of none, suggesting the Legislature had any broader goals in mind. We ourselves have recognized the limited aims, and the limited effects, of section 340.6(a). On several occasions, we have acknowledged that the 1977 statute essentially codified, with specified refinements, the "delayed accrual" rules of Neel and Budd. (Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 749 [discovery and tolling provisions of section 340.6 invoke Neel and Budd; " n section 340.6's terms," one-year limitations period that begins upon discovery is tolled pending actual injury ]; Laird v. Blacker (1992) 2 Cal.4th 606, 611 [section 340.6 "codified the discovery rule of Neel"]; see Cuadra v. Millan (1998) 17 Cal.4th 855, 865, fn. 11 [listing section 340.6(a) among "rules postponing the accrual of a cause of action until a specified event occurs, e.g., until discovery of the facts" (italics in original)].)
But even if I agreed that the structure of section 340.6(a) is materially distinct from other common law and statutory delayed-discovery rules, I would apply the "escape clause" of Evidence Code section 500, and would thus retain, for attorney malpractice, the traditional burden of proving when the claim was discovered. As the Law Revision Commission's Comment to Evidence Code section 500 suggests, in deciding whether to depart from normal rules of burden allocation, "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." (Cal. Law Revision Com. com., reprinted at 29B pt. 1 West's Ann. Evid. Code, supra, foll. ยง 500, p. 554, italics added.)
The italicized portions of the passage quoted above apply directly here. As the majority appear to concede, the time the plaintiff actually learned of his or her claim, when different from the time the claim actually arose, is a matter primarily within the plaintiff's knowledge. The majority brush aside this concern with the comment that we do not "routinely" alter burdens of proof on this basis, and that plaintiffs are often forced to prove facts primarily within the defenda
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