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Samuels v. Mix12/30/1999
encement, an element of their opponents' limitations defense under that statute, would be quite another.
Third, the two statutes function differently in their respective areas of the law. As mentioned, section 338(d)'s discovery provision has "long been treated as an exception" to the limitation defense otherwise provided by section 338(d). (Hobart v. Hobart Estate Co., supra, 26 Cal.2d at p. 437.) Section 340.6(a)'s discovery provision is, by contrast, not an exception, but itself a discrete, independent limitation defense. (Flowers v. Torrance Memorial Hospital Medical Center, supra, 8 Cal.4th at p. 999; Regents of University of California v. Hartford Acc. & Indem. Co., supra, 21 Cal.3d at pp. 640-641; Radovich v. Locke-Paddon, supra, 35 Cal.App.4th at p. 966; see generally, 3 Witkin, Cal. Procedure, supra, Actions, § 581, p. 737.)
Given these fundamental differences in provenance, structure and function between the discovery provisions of section 338(d) and section 340.6(a), we cannot conclude that the latter's plain language is somehow trumped by a judicial gloss relating to the former, so as to determine the burden of proof question presented in this case. Rather, we must construe section 340.6 on its own terms.
4. Fairness
Even if the Legislature did not specifically intend section 340.6 to incorporate the common law discovery rule's entire related jurisprudence, defendant suggests, we should declare as a matter of fairness and judicial policy that proof burdens under the statute are the same as under the common law rule. As defendant points out, in other contexts we have adverted to "fundamental fairness" as the "lodestar for our analysis" in determining the incidence of the burden of proof. (See, e.g., Adams v. Murakami (1991) 54 Cal.3d 105, 119-120 [quoting the California Law Revision Commission's remark that such a determination "is merely a question of policy and fairness based on experience in the different situations" (italics omitted)].)
In advancing this policy argument, defendant reiterates that, in order to invoke the common law discovery rule, a plaintiff bears the burden of proving that reasonable diligence to ascertain the facts underlying a claim did not bear fruit until a time within the applicable limitation period. By analogy, defendant argues, the same should apply here. Because plaintiff Samuels seeks to bring herself within the one-year-from-discovery limitations period of section 340.6(a) by asserting she did not know, and could not with reasonable diligence have known, the facts allegedly constituting Mix's legal malpractice more than one year before she instituted this action, Samuels fairly is burdened with proving the truth of her assertion. For support, defendant cites a prominent treatise in the field. (See 2 Mallen & Smith, Legal Malpractice (4th ed. 1996) § 21.15, pp. 846-847 ["The onus of the discovery rule is the threat of open-ended liability of attorneys. The correlative burden on the client is the need to act with diligence in pursuing existing remedies. A consequence of that rule is that, if suit is filed after the apparent expiration the statute of limitations, the plaintiff will be required to both plead and prove facts explaining the lack of discovery." (Fn. omitted.)].)
To begin with, the cited treatise extract and its argument, which concern the common law discovery rule, do not particularly bear on our task, which is the construction of section 340.6(a). As we need hardly repeat, unlike the common law rule discussed in the treatise, section 340.6(a) does not involve "the threat of open-ended liability of attorneys." Rather, the statute supplies potential attorney malpractice defendants
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