Samuels v. Mix12/30/1999
rts have recognized a postponement of the accrual until the beneficiary has knowledge or notice of the act constituting a breach of fidelity"]; see, e.g., April Enterprises, Inc. v. KTTV (1983) 147 Cal.App.3d 805, 832 ["discovery rule may be applied to breaches which can be, and are, committed in secret and, moreover, where the harm flowing from those breaches will not be reasonably discoverable by plaintiffs until a future time"]; 3 Witkin, Cal. Procedure, supra, Actions, § 594, pp. 763-764, and authorities listed there [delayed accrual; accountant malpractice cases]; 5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 884, pp. 343-344 [delayed accrual; other actions].)
According to defendant, in applying the common law discovery rule, California courts generally have burdened plaintiffs with justifying any undue delay in filing their complaints. (See generally, April Enterprises, Inc. v. KTTV, supra, 147 Cal.App.3d at pp. 829, 833.) Defendant further asserts that the Legislature, when enacting the one-year-from-discovery provision of section 340.6(a) in 1977 (Stats. 1977, ch. 863, § 1, p. 2609), intended to codify for attorney malpractice cases a version of the common law discovery rule of delayed accrual, one that incorporates the prevailing judicial allocation of burdens of proof thereunder. In advancing this legislative intent argument, however, defendant refers neither to the text of section 340.6 nor to any legislative history materials.
Defendant does not dispute he has the burden of proof on section 340.6(a)'s basic four-years-from-occurrence limitation on attorney malpractice actions. As previously explained, a defendant must prove the facts necessary to enjoy the benefit of a statute of limitations (Evid. Code, § 500; see, e.g., Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (1985) 39 Cal.3d 57, 67, fn. 8; Colonial Ins. Co. v. Ind. Acc. Com. (1945) 27 Cal.2d 437, 440) and, indisputably, section 340.6(a)'s four-year provision is, as section 340.6(a) is generally, a statute of limitations.
For the same reason, defendant has the burden of proof on section 340.6(a)'s alternate one-year-from-discovery limitation on attorney malpractice actions. Simply stated, this one-year alternate provision also is a statute of limitations and, therefore, a defendant must prove the facts necessary to enjoy its benefit. That the alternate limitations provision happens to use verbal cognates of the noun "discovery" cannot be deemed to effect an incorporation of the "discovery rule," complete and in its entirety. Unlike the discovery rule, which is "treated as an exception" to the statute of limitations (Hobart v. Hobart Estate Co. (1945) 26 Cal.2d 412, 437), section 340.6(a)'s alternate limitations provision is indeed a statute of limitations. And unlike the discovery rule, which runs in favor of the plaintiff by enlarging his or her time without a set limit, the alternate limitations provision of section 340.6(a) runs in favor of the defendant by cutting off the plaintiff's time definitively. (See Flowers v. Torrance Memorial Hospital Medical Center, supra, 8 Cal.4th at p. 999.)
The alternate limitations provision, moreover, is potentially available only to the defendant, and only to reduce the limitations period of four years down to as little as one. Accordingly, whether or not the alternate limitations provision is actually available in any given case is for the defendant to prove. For, if the defendant has the burden of proof on the basic limitations provision, which can only prescribe a longer period, a fortiori he has the burden of proof on the alternate limitations provision, which can only prescribe a shorter one.
In seeking to analogize section 34
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