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Samuels v. Mix12/30/1999
ture achieved when enacting the statute, including the interests in hearing meritorious malpractice suits, extinguishing stale claims, and avoiding consumer costs attendant on indefinite malpractice exposure. (See generally, Mallen, Panacea, supra, 52 State Bar J. 22.)
Thus, defendant fails to persuade us that our Legislature, when enacting section 340.6(a), intended to incorporate therein every judicially formulated appendage to the common law discovery rule. Neither the rule itself, Neel's gloss on it (that it "finds justification in the special nature of the relationship between the professional . . . and client") (Neel, supra, 6 Cal.3d at p. 188), nor Laird's remark that it was "codified" in section 340.6(a) (Laird, supra, 2 Cal.4th at p. 611), provides a sufficient ground for relieving defendant of his statutory burden to prove "each fact the existence or nonexistence of which is essential" (Evid. Code, § 500) to his one-year-from-discovery limitations defense.
3. Analogy to Fraud Claims
Defendant argues that, as plaintiffs in some fraud actions are required, in order to avoid the three-year limitation on commencement of such actions found in Code of Civil Procedure section 338, subdivision (d) (section 338(d)), to plead and prove their reasonably delayed discovery of the conduct they allege to constitute fraud (3 Witkin, Cal. Procedure, supra, Actions, § 602, pp. 773-775; 5 Witkin, Cal. Procedure, supra, Pleading, § 883, pp. 342-343, and authorities cited there), and as section 340.6(a) is worded somewhat similarly to section 338(d), plaintiff here should face a similar requirement.
Section 338(d) provides that a plaintiff must commence within three years any "action for relief on the ground of fraud or mistake. The cause of action in that case is not to be deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake." Defendant correctly notes that in Hobart v. Hobart Estate Co., supra, 26 Cal.2d 412, we stated: "The provision tolling operation of [section 338(d)] until discovery of the fraud has long been treated as an exception and, accordingly, this court has held that if an action is brought more than three years after commission of the fraud, plaintiff has the burden of pleading and proving that he did not make the discovery until within three years prior to the filing of his complaint." (Id. at p. 437, citing Sublette v. Tinney (1858) 9 Cal. 423; Lady Washington C. Co. v. Wood (1896) 113 Cal. 482; Consolidated R. & P. Co. v. Scarborough (1932) 216 Cal. 698; Knapp v. Knapp (1940) 15 Cal.2d 237, 242.)
In suggesting that we construe section 340.6(a) similarly to section 338(d), defendant emphasizes the presence in each of a reference to when the plaintiff discovers the facts underlying his or her cause of action. While defendant errs in calling the two references "almost identical," each statute indeed contains a discovery provision. (Cf. § 340.6(a) ["action . . . shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission"] with § 338(d) ["cause of action . . . is not to be deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake"].)
Defendant seeks to buttress his argument based on this statutory phrasing by analogizing fraud and malpractice claims, generally. Defendant points to our suggestion in Neel that " ` ases in which the defendant stands in a fiduciary relationship to the plaintiff are frequently treated as if they involved fraudulent concealment of the cause of action by the defend
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