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Samuels v. Mix12/30/1999
appointed when Mix recommended she accept Showa Denko's $400,000 settlement offer. Nonetheless, in 1990, Samuels did accept the offer, based on Mix's advice that it was "very good," and that Showa Denko, beset with other L-tryptophan cases, might enter bankruptcy.
The evidence, particularly including Samuels's own deposition and trial testimony, further establishes the following: By October 1991, Samuels realized her $400,000 settlement with Showa Denko was insufficient, because the progress of her disease made clear she would never be able to work. She was also displeased with how Mix had handled the settlement, and had therefore lost confidence in him. Thus, in mid-October 1991, Samuels made an appointment with another attorney, Donald Hildre. Hildre, like Mix, specialized in L-trypto-phan cases. Samuels met with Hildre on October 28, 1991. Her purpose was to determine whether she could "reopen" her case, and whether remedies were available against defendants other than Showa Denko. During the October 28, 1991, meeting, Hildre told her, contrary to Mix's advice, that Showa Denko was financially sound and in no danger of bankruptcy . Samuels left the meeting believing that Mix had materially misrepresented Showa Denko's financial status.
In sum, no later than October 28, 1991, Samuels had concluded her settlement was inadequate, was actively exploring her remedies against all potential defendants, believed Mix had based his settlement advice on crucial misinformation, and distrusted Mix's handling of her case for other reasons as well. By that date, Samuels was therefore on at least constructive notice that she had been the victim of professional negligence. Her suit, filed one year and two days later, was thus barred by the one-year provision of section 340.6(a). There is no reasonable probability the jury, if instructed that Mix rather than Samuels bore the burden of proving when discovery occurred, would have found otherwise. (People v. Watson (1956) 46 Cal.2d 818, 836; see Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574.) Any instructional error was therefore harmless.
For any or all of the reasons stated above, I would reverse the judgment of the Court of Appeal.
BAXTER, J.
Name of Opinion Samuels v. Mix
Review Granted XXX 63 Cal.App.4th 71
Rehearing Granted
Opinion No. S070599
Date Filed: December 30, 1999
Court: Superior
County: San Diego
Judge: Robert Carroll Baxley
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