Samuels v. Mix

Citation91 Cal.Rptr.2d 273,989 P.2d 701,22 Cal.4th 1
Decision Date30 December 1999
Docket NumberNo. S070599.,S070599.
CourtUnited States State Supreme Court (California)
PartiesArlayna SAMUELS, Plaintiff and Appellant, v. Terence J. MIX et al., Defendants and Respondents.

McKenna & Cuneo, Michael H. Fish; Thompson and Thompson and Peter R. Thompson, San Diego, for Plaintiff and Appellant.

Terence J. Mix, in pro. per.; and Julie Sullwood Hernandez, Palos Verdes Estates, for Defendants and Respondents.

WERDEGAR, J.

For purposes of applying the one-year-from-discovery limitation on commencement of attorney malpractice actions in Code of Civil Procedure section 340.6, subdivision (a)(section 340.6(a)),1 who bears the burden of proving when the plaintiff discovered, or through the use of reasonable diligence should have discovered, the facts constituting the defendant's alleged malpractice? As explained below, we hold the defendant bears that burden.

BACKGROUND

In October 1992, plaintiff Arlayna Samuels filed her complaint in this attorney malpractice action, amending it three days later to allege defendants Terence J. Mix and Mix, Sneathern & Brown (collectively defendant or Mix) negligently had advised her to settle, for an inadequate amount, a personal injury claim stemming from injuries she attributed to ingesting the medication L-tryptophan. Samuels pleaded she first learned of Mix's negligence after November 1991, upon discovering that Mix had substantially understated to her the actual value of her claim.

On March 29, 1993, Mix answered, denying all the allegations of the complaint and alleging numerous affirmative defenses, including that every cause of action in this lawsuit is barred by an applicable statute of limitations, including, but not limited to, section 340.6.

The superior court granted Mix's motion to bifurcate the proceedings and separately try the statute of limitations issue. Mix moved in limine for an order burdening Samuels to establish, by a preponderance of the evidence, that the statute of limitations had not run; the court granted Mix's motion.

At the bifurcated trial, only plaintiff Samuels and Attorney Donald Hildre, whom Samuels previously had consulted, testified. As the Court of Appeal explained, Samuels, who suffered from an incurable blood and muscular disease she attributed to ingesting L-tryptophan, retained defendant Mix in May of 1990 to represent her in a personal injury lawsuit against the drug's manufacturer, Showa Denko. Showa Denko offered to settle for $400,000, but Samuels, thinking the case worth $2 million, inquired of Mix regarding the value of her claim. Mix told Samuels the case was not worth as much as Samuels thought. Characterizing Showa Denko's offer as "very good" and the best he had seen, he recommended she accept it because Showa Denko might file for bankruptcy.

In December of 1990, Samuels, on Mix's advice, accepted Showa Denko's settlement offer. In October of the following year, her medical condition deteriorated. Samuels met briefly with Donald Hildre, an attorney specializing in L-tryptophan cases whom she had met through a support group, about the possibility of reopening her case against Showa Denko. She brought him certain documents. In November 1991, Samuels told Hildre she had settled with Showa Denko for $400,000. Thereafter, in early 1992, Samuels obtained from Mix a copy of the settlement agreement and conveyed it to Hildre.

Hildre referred Samuels to a doctor. In July of 1992, after reviewing medical test results, Hildre told Samuels she had settled her case against Showa Denko for an inadequate amount.

The court refused Samuels's proffered instruction that Mix had the burden to prove the lawsuit was untimely filed. The court, rather, instructed the jury that Samuels had the burden of proving that the lawsuit was timely filed.

By a vote of nine to three, the jury specially found Samuels had failed to commence her suit within one year from the date she discovered, or through the use of reasonable diligence should have discovered, the facts constituting Mix's wrongful act or omission. In accordance with that special verdict, the court entered judgment for Mix.

Samuels appealed. The Court of Appeal reversed. We granted Mix's petition for review.

DISCUSSION

Pursuant to section 340.6(a), an attorney malpractice 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, or four years from the date of the wrongful act or omission, whichever occurs first." "[U]nder the provisions of section 340.6, discovery of the negligent act or omission initiates the [one-year] statutory period...." (Adams v. Paul (1995) 11 Cal.4th 583, 589, fn. 2, 46 Cal.Rptr.2d 594, 904 P.2d 1205.)

The Court of Appeal concluded the trial court erred in instructing the jury that plaintiff had the burden of proving, by a preponderance of the evidence, all the facts necessary to establish that this action was timely filed, and in rejecting her proffered instructions that defendant bore the burden of proving the suit was untimely. For the following reasons, we agree with the Court of Appeal.

1. Plain Language

On its face, section 340.6(a) states "two distinct and alternative limitation periods: one year after actual or constructive discovery, or four years after occurrence (the date of the wrongful act or omission), whichever occurs first." (Radovich v. Locke-Paddon (1995) 35 Cal.App.4th 946, 966, 41 Cal.Rptr.2d 573, italics in original; see Regents of University of California v. Hartford Acc. & Indem. Co. (1978) 21 Cal.3d 624, 640-641 & fn. 12, 147 Cal.Rptr. 486, 581 P.2d 197 [by implication].) As defendant concedes, in section 340.6 the Legislature provided an affirmative defense to a cause of action for attorney malpractice. (See Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 396, 87 Cal.Rptr.2d 453, 981 P.2d 79; Fuller v. White (1948) 33 Cal.2d 236, 240, 201 P.2d 16.)

Section 500 of the Evidence Code provides that "Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting." Defendant is asserting section 340.6(a)'s one-year-from-discovery limitation defense. In plain language, section 340.6(a) makes essential to that defense the fact that any attorney malpractice action against which it is invoked was not "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...." Absent a compelling reason for doing otherwise, we must construe section 340.6(a) in accordance with its plain language (cf. Belton v. Bowers Ambulance Service (1999) 20 Cal.4th 928, 931-932, 86 Cal. Rptr.2d 107, 978 P.2d 591) [tolling provision in statute of limitations on actions against health care providers]; Rossi v. Brown (1995) 9 Cal.4th 688, 694, 38 Cal. Rptr.2d 363, 889 P.2d 557 [state Constitution and local charter] and the normal allocation of the burden of proof established by the Legislature (Aydin Corp. v. First State Ins. Co. (1998) 18 Cal.4th 1183, 1193, 77 Cal.Rptr.2d 537, 959 P.2d 1213; Fukuda v. City of Angels (1999) 20 Cal.4th 805, 820, 85 Cal.Rptr.2d 696, 977 P.2d 693).

Just as plainly as section 340.6(a) makes the plaintiff's actual or constructive discovery of the defendant's wrongdoing an element of its one-year-from-discovery limitations defense, it does not—nor does any other law—make the plaintiff's actual or constructive discovery of the defendant's wrongdoing an element of a prima facie claim for attorney malpractice. (See Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 762, 76 Cal.Rptr.2d 749, 958 P.2d 1062 (Jordache) [noting "discovery of damage is not a necessary component of actual injury under section 340.6, subdivision (a)(1)" (italics in original) ].) In this case, if defendant had never pled the statute of limitations as a defense, that defense would have been forfeited (Minton v. Cavaney (1961) 56 Cal.2d 576, 581, 15 Cal. Rptr. 641, 364 P.2d 473) and plaintiff would have been entitled to a trial on the merits of her claim, regardless of whether her action was timely under the terms of section 340.6 (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 999, 35 Cal.Rptr.2d 685, 884 P.2d 142 [legislatively imposed medical malpractice statute of limitations could not alter the substance of such actions]).

In this case of first impression, defendant obviously cannot cite any existing law burdening plaintiff with negating the facts essential to section 340.6(a)'s one-year-from-discovery limitation defense to attorney malpractice actions. (See generally, California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1154, 43 Cal.Rptr.2d 693, 899 P.2d 79 [noting that Evidence Code section 500's general rule allocating the burden of proof "does not supersede other, specific, rules established by statute or judicial decision"].) It follows that, until and unless we create a new exception to the general rule, the burden of proving plaintiff's actual or constructive discovery of defendant's wrongdoing in connection with that defense falls statutorily to defendant. (Evid. Code, § 500; see, e.g., Buss v. Superior Court (1997) 16 Cal.4th 35, 53, 65 Cal. Rptr.2d 366, 939 P.2d 766 [declining to create new exception to Evidence Code section 500 for insurer seeking reimbursement of defense costs].)

Thus, in accordance with section 340.6(a)'s plain language, defendant, if he is to avail himself of the statute's one-year-from-discovery limitation defense, has the burden of proving, under the "traditional allocation of the burden of proof" (Fukuda v. City of Angels, supra, 20 Cal.4th at p. 820, 85 Cal.Rptr.2d 696, 977 P.2d 693, citing Evid.Code, § 500), that plaintiff discovered...

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