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Samuels v. Mix12/30/1999
such cutoff. (Assem. Com. on Judiciary, analysis of Assem. Bill No. 298 (1977-1978 Reg. Sess.) May 12, 1977, at p. 3 [noting the then-existing attorney malpractice statute of limitations "is virtually open-ended as the statute does not commence to run until discovery" and that "Assembly Bill 298 prescribes a four-year outer-limit"].)
We also observe that, in enacting section 340.6, the Legislature apparently intended to benefit potential attorney malpractice defendants, insofar as section 340.6 ended Neel's regime of endless potential exposure under the common law discovery rule. Members of the Assembly Judiciary Committee considered and reviewed the article by Ronald E. Mallen, Panacea or Pandora's Box? A Statute of Limitations for Lawyers (1977) 52 State Bar J. 22 (Mallen, Panacea), wherein Mr. Mallen proposed a legal malpractice statute of limitations. (Assem. Com. on Judiciary, analysis of Assem. Bill No. 298, supra, May 12, 1977, at p. 3; Southland Mechanical Constructors Corp. v. Nixen (1981) 119 Cal.App.3d 417, 428, superseded by statute on another point [noting the bill digest's reference to Mallen, Panacea].) Section 340.6 constitutes relief for potential attorney malpractice defendants because it provides two alternate bases (either four years from occurrence or one year from discovery(for cutting off potential liability for attorney malpractice that otherwise, under the common law discovery rule, might have lingered indefinitely. (Mallen, Panacea, supra, 52 State Bar J. at pp. 23-24 [proposing two-year/four-year attorney malpractice limitation statute similar to section 340.6 as "legislative relief . . . but this time for the attorney" from the "literally interminate liability of the discovery rule"]; cf. Newell v. Richards (Md. 1991) 594 A.2d 1152, 1156-1158 [holding Maryland legislature must have intended to burden a defendant invoking alternative date-of-injury/date-of-discovery medical malpractice limitations statute, similar to section 340.6(a), with proving when injury was discovered, partly on ground the " `purpose of the statute, readily evident from its terms, was to contain the "long-tail" effect of the [common law] discovery rule' "].)
While we had no occasion in Jordache, supra, 18 Cal.4th 739, to detail the "additional concerns" underlying the Legislature's enactment of section 340.6's "exclusive scheme," we did, in the course of deciding the tolling question presented in that case, note that "section 340.6 reflects the balance the Legislature struck between a plaintiff's interest in pursuing a meritorious claim and the public policy interests in prompt assertion of known claims." (Id. at p. 756.) In that same vein, we quite recently observed that to "establish any particular limitations period under any particular statute of limitations entails the striking of a balance" between the public policy favoring extinction of stale claims and that favoring resolution of disputes on their merits. (Norgart v. Upjohn Co., supra, 21 Cal.4th at p. 396.) Because it involves such policymaking, to establish a statute of limitation "belongs to the Legislature alone [citation], subject only to constitutional constraints [citation]." (Id. at pp. 396-397, citing Weinberger v. Weidman (1901) 134 Cal. 599, 602; Regents of University of California v. Superior Court (1999) 20 Cal.4th 509, 534.)
While our judicially engrafting section 340.6(a) with the common law discovery rule's exception to the normal burden of proof might not directly invade the Legislature's exclusive province to specify limitation periods, it well might indirectly do so. This is because such a judicially recognized exception risks disturbing the policy balance among the various societal interests that the Legisla
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