Samuels v. Mix12/30/1999
ant. The theory is that although the defendant makes no active misrepresentation, this element "is supplied by an affirmative obligation to make full disclosure, and the non-disclosure itself is a `fraud.' " ' " (Neel, supra, 6 Cal.3d at p. 189, quoting Amen v. Merced County Title Co. (1962) 58 Cal.2d 528, 534.)
For several reasons, we agree with the Court of Appeal that, while there may be some linguistic similarity between parts of section 340.6(a) and section 338(d), the case law involving the statute of limitations for fraud does not help defendant here.
First, the relatively recent vintage of section 340.6(a), which, as noted, was added to the code in 1977 (Stats. 1977, ch. 863, § 1, p. 2609), as compared to section 338(d), which originally was enacted in 1872 (Historical Note, 13A West's Ann. Code Civ. Proc. (1982 ed.) foll. § 338, p. 295), affords us a different perspective in construing the former than courts have enjoyed in construing the latter. Thus, legislative enactment of the fraud limitations statute, including its discovery provision, predated judicial development of the common law discovery rule (see Neel, supra, 6 Cal.3d at p. 192, fn. 32; Hobart v. Hobart Estate Co., supra, 26 Cal.2d at p. 437; April Enterprises, Inc. v. KTTV, supra, 147 Cal.App.3d at pp. 828-829) and necessarily cannot have embodied a rejection of that jurisprudence. More recently, however, "in section 340.6 the Legislature has chosen to abrogate the common law rule and to enact a special rule for actions against attorneys for wrongful acts or omissions." (Radovich v. Locke-Paddon, supra, 35 Cal.App.4th at p. 970; see also Jordache, supra, 18 Cal.4th at p. 748.) At least one of the Legislature's purposes in enacting section 340.6 evidently was to benefit potential attorney malpractice defendants, providing them with a means of cutting off the endless exposure to suit that existed under the common law discovery rule. (Southland Mechanical Constructors Corp. v. Nixen, supra, 119 Cal.App.3d at p. 428; Mallen, Panacea, supra, 52 State Bar J. at pp. 23-24.) To the extent it serves that specific remedial purpose, of course, "analyses of other statutes are not pertinent to section 340.6." (Radovich v. Locke-Paddon, supra, at p. 970.)
Second, the respective provisions are structured differently. Section 338(d)'s discovery provision, like the common law discovery rule, affords fraud plaintiffs a rule of indefinitely delayed accrual ("cause of action . . . is not to be deemed to have accrued"), thus saving certain otherwise barred claims when plaintiffs can prove diligence. Section 340.6(a)'s discovery provision, by contrast, affords attorney malpractice defendants a defensive limitation on commencement of lawsuits ("action . . . shall be commenced within"), thus barring suit on otherwise viable claims when malpractice defendants(as we conclude(can prove a plaintiff's lack of diligence. (Neel, supra, 6 Cal.3d at p. 191 [distinguishing between "classifying . . . civil actions as to their period of limitation" from "the different issue as to when the cause of action accrues" (italics in original)].) While the difference in a statute of limitations between a delayed accrual provision and one limiting commencement of actions may be primarily linguistic, without significant practical import in a given case, the Legislature's choice of terminology in a statute may, nevertheless, illustrate the legislative intent lying behind its enactment. Thus, to burden plaintiffs with proving that their causes of action have accrued (as section 338(d) has been construed to require of fraud plaintiffs) is one thing; to burden plaintiffs (as defendant suggests we should in construing section 340.6(a)) with disproving dilatory comm
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