SAMUELS v. MIX

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Court of Appeal, Fourth District, Division 1, California.

Arlayna SAMUELS, Plaintiff and Appellant, v. Terence J. MIX et al., Defendants and Respondents.

No. D023528.

-- April 15, 1998

Nugent & Newnham, Michael H. Fish, Thompson & Thompson and Peter R. Thompson, San Diego, for Plaintiff and Appellant. Terence J. Mix, in pro. per., Mix & Sneathern and Julie Sullwood Hernandez, Palos Verdes, for Defendants and Respondents.

Plaintiff Arlayna Samuels appeals a judgment after bifurcated jury trial determining Code of Civil Procedure 1 section 340.6, subdivision (a)'s one-year statute of limitations barred her legal malpractice action against defendants Terence J. Mix and Mix, Sneathern & Brown (together Mix).2  Asserting Mix had the burden of proof on his affirmative defense of the statute of limitations, Samuels contends the court erred in not so instructing the jury and instead telling the jury that Samuels had the burden to prove she filed this lawsuit within one year after actually or constructively discovering the facts constituting Mix's alleged wrongdoing.   Finding prejudicial instructional error, we reverse the judgment.

I

INTRODUCTION

Samuels sued attorney Mix for negligently advising her to settle a case against a pharmaceutical manufacturer for an inadequate amount.   Mix affirmatively alleged the statute of limitations barred Samuels's lawsuit because more than one year before filing this action Samuels actually or constructively discovered the facts constituting Mix's asserted wrongdoing.

At the bifurcated trial on the statute of limitations issue, the court rejected Samuels's proffered instructions that Mix had the burden to prove Samuels actually or constructively discovered facts constituting his alleged wrongdoing more than one year before filing this action.   Instead, the court instructed the jury that Samuels had the burden to prove she did not actually or constructively discover such facts more than one year before commencing this lawsuit.

We conclude the trial court's instruction on the burden of proof was erroneous and on this record prejudiced Samuels.

II

FACTS

 In determining whether the court should have instructed the jury that Mix bore the burden of proof on his affirmative defense of the statute of limitations, we view the evidence in the light most favorable to Samuels.   (Bernal v. Richard Wolf Medical Instruments Corp. (1990) 221 Cal.App.3d 1326, 1338, 272 Cal.Rptr. 41,3 disapproved and overruled on another point in Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574, 580, 34 Cal.Rptr.2d 607, 882 P.2d 298.)

Samuels suffered from eosinophilia myalgia syndrome (EMS), an incurable muscular and blood disease she attributed to taking the medication L-tryptophan.

In May 1990 Samuels retained attorney Mix to represent her in a personal injury lawsuit against L-tryptophan manufacturer Showa Denko.

Showa Denko offered to settle the case for $400,000.   Believing her case against Showa Denko to be worth $2 million, Samuels asked Mix if the case were worth $2 or $3 million.   Answering no, Mix told Samuels the offer was “very good” and the best he had seen in 21 years of practice.   Mix recommended that Samuels accept the settlement offer because of the possibility Showa Denko might file for bankruptcy.   Trusting and believing in Mix, Samuels did not consult any other lawyer about the value of her case before accepting Showa Denko's offer.

On December 13, 1990, at Mix's recommendation, Samuels settled the case against Showa Denko for $400,000.   At time of settlement, Samuels knew her disease was incurable but did not believe she would suffer future lost earnings.

In October 1991 Samuels's medical condition worsened and she realized her physical limitations would preclude her from working.

On October 19, 1991, wanting to know whether in light of her worsened condition she could reopen her case against Showa Denko, Samuels left a telephone message for attorney Donald Hildre to call her.   Hildre specialized in representing plaintiffs in L-tryptophan cases.   Samuels knew of Hildre through an L-tryptophan support group.   Samuels thought Hildre was compassionate and cared about people suffering from the effects of L-tryptophan.   Samuels called Hildre rather than Mix since Mix had charged her $100 for courier service without authorization and had discussed with others the amount of her settlement despite telling her it was confidential.

On October 28, 1991, Samuels met with Hildre at his office for five minutes.   Samuels did not have a copy of the settlement agreement or any other documents with her.   At the meeting Samuels told Hildre she had settled her case against Showa Denko but did not disclose the settlement amount.   Expressing concern she could never work again, Samuels asked if she could reopen her case against Showa Denko.   During the five-minute meeting Samuels did not complain about Mix's handling of her case;  Hildre did not tell Samuels the settlement amount was inadequate or that Mix had improperly investigated or prosecuted her case;  and Samuels and Hildre did not discuss the possibility whether Mix had obtained an inadequate settlement or otherwise committed legal malpractice.   Hildre said he was very busy and told Samuels to return with relevant documents at another time.

On October 30, 1991, Samuels delivered various documents to Hildre's office.   Samuels did not give Hildre information disclosing the amount of her settlement with Showa Denko.   Samuels tried to speak with Hildre but did not reach him.

On November 16, 1991, Samuels told Hildre the amount of her settlement with Showa Denko.   Samuels signed a fee contract with Hildre and a claim form prepared by Hildre against the Food and Drug Administration on Samuels's behalf.

In February 1992 Samuels requested and received from Mix a copy of her settlement agreement with Showa Denko.

In March 1992 Samuels met with Hildre and gave him a copy of her settlement agreement with Showa Denko.   Hildre referred Samuels to a physician to evaluate the extent of her injuries.

In July 1992 Samuels conferred with Hildre about her medical test results.   Hildre told Samuels her case against Showa Denko had settled for an inadequate amount and she might have a malpractice claim against Mix. Until that meeting with Hildre, no one had told Samuels her case was worth more than $400,000.   Before July 1992, Samuels had not thought Mix did anything wrong in negotiating the settlement amount and had not thought or been told that Mix had improperly evaluated or investigated her case.

III

SUPERIOR COURT PROCEEDINGS

On October 30, 1992, Samuels sued Mix for legal malpractice.

On November 2, 1992, Samuels filed a first amended complaint alleging Mix negligently advised her to settle her case against Showa for an inadequate amount.   Samuels pleaded that she first learned of Mix's negligence after November 1991 upon discovering that Mix had substantially understated the actual value of her claim against Showa Denko.

On March 29, 1993, Mix filed an answer affirmatively alleging Samuels's lawsuit was time barred under section 340.6.

In December 1994 the superior court granted Mix's motion to bifurcate trial and try separately the statute of limitations issue.

In January 1995 Mix moved in limine for an order compelling Samuels to establish by a preponderance of the evidence that the statute of limitations had not run.   After argument by counsel, the court granted Mix's motion.

At the bifurcated trial, only Samuels and Hildre testified.

The court instructed the jury that Samuels had the burden to prove all facts necessary to establish the lawsuit was filed within one year after her actual or constructive discovery of the facts constituting Mix's wrongful act or omission.4  The court refused Samuels's proffered instructions providing that Mix had the burden of proof on the statute of limitations issue.5

Mix argued to the jury that Samuels had the burden of proof on the issue of the one-year statute of limitations.

The jury by a margin of nine to three returned a special verdict finding Samuels's lawsuit was not commenced 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 February 1995, in accord with the jury's special verdict, the court entered judgment favoring Mix against Samuels.   Samuels appeals.

IV

DISCUSSIONAInstructional Error

Samuels contends the trial court erroneously instructed the jury that she had the burden to prove her lawsuit was timely filed.   Samuels also contends the court erroneously rejected her proffered instructions that Mix bore the burden to prove the lawsuit was untimely.   We agree.

1

The Law

Before 1978, most legal malpractice actions were subject to the two-year statute of limitations of former section 339, subdivision 1. (Radovich v. Locke-Paddon (1995) 35 Cal.App.4th 946, 966-967, 41 Cal.Rptr.2d 573.)   Until 1971, former section 339, subdivision 1, was treated as an “occurrence statute:  ‘[T]he statute of limitations commenced to run when the facts constituting the cause of action occurred, no matter when these facts are discovered by the client.’ ”  (Radovich v. Locke-Paddon, supra, at p. 967, 41 Cal.Rptr.2d 573, italics in original.)   However, in Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176, 98 Cal.Rptr. 837, 491 P.2d 421 (Neel ), the Supreme Court held that as applied to legal malpractice section 339 should be “a discovery statute:  ‘[T]he statute of limitations for legal malpractice, as for all professional malpractice, should be tolled until the client discovers, or should discover, his cause of action.’  (Neel, supra, 6 Cal.3d at p. 179 [98 Cal.Rptr. 837, 491 P.2d 421] ․)”  (Radovich v. Locke-Paddon, supra, at p. 967, 41 Cal.Rptr.2d 573, italics in original.)   Further, observing that an “attorney's error may not work damage or achieve discovery for many years after the act, and the extension of liability into the future poses a disturbing prospect,” the Supreme Court recognized “the possible desirability of the imposition of some outer limit upon the delayed accrual of actions for legal malpractice.”  (Neel, supra, at p. 192, 98 Cal.Rptr. 837, 491 P.2d 421;  Radovich v. Locke-Paddon, supra, at p. 967, 41 Cal.Rptr.2d 573.)   Accordingly, effective January 1, 1978, the Legislature enacted section 340.6 “providing for both a four-year occurrence period and a one-year discovery period, in the alternative.   Manifestly the Legislature's intent was to impose (subject to several tolling provisions) the ‘longer, absolute limit’ Neel had suggested.”  (Radovich v. Locke-Paddon, supra, at p. 967, 41 Cal.Rptr.2d 573, italics in original.)   The “plain language” of section 340.6 reflects “the manifest intent of the Legislature to place an outside time limitation (subject to tolling) on claims for legal malpractice.”  (Radovich v. Locke-Paddon, supra, at p. 968, 41 Cal.Rptr.2d 573.)

Enacted in response to “judicial recognition that under some circumstances causes of action for negligence ․ may not arise until discovery,” section 340.6 is “an ordinary, procedural statute of limitation” requiring “suit be filed within the shorter of two periods, one measured from the date of discovery and a second, longer period measured from the event giving rise to the cause of action.”  (Regents of University of California v. Hartford Acc. & Indem. Co. (1978) 21 Cal.3d 624, 640-641, 147 Cal.Rptr. 486, 581 P.2d 197.)  “On its face Code of Civil Procedure section 340.6 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, supra, 35 Cal.App.4th at p. 966, 41 Cal.Rptr.2d 573, italics in original;  3 Witkin, Cal. Procedure (4th ed.   1996) Actions, § 581, p. 737.)   The Supreme Court has characterized section 340.6 as “setting [the] limitations period for attorney malpractice at four years but shortening [the] time if plaintiff discovers [the] cause of injury sooner.”  (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 999, 35 Cal.Rptr.2d 685, 884 P.2d 142.)

 Under the “discovery” portion of section 340.6, subdivision (a), the “actual or constructive discovery of an act or omission the client alleges was wrongful commences the limitations period for an action based on that act or omission.”  (Worton v. Worton (1991) 234 Cal.App.3d 1638, 1649, 286 Cal.Rptr. 410;  accord Adams v. Paul (1995) 11 Cal.4th 583, 589, fn. 2, 46 Cal.Rptr.2d 594, 904 P.2d 1205.) The statutory “one-year period is triggered by the client's discovery of ‘the facts constituting the wrongful act or omission,’ not by his discovery that such facts constitute professional negligence, i.e., by discovery that a particular legal theory is applicable based on the known facts.”  (Worton v. Worton, supra, at p. 1650, 286 Cal.Rptr. 410.)  “It is irrelevant that the plaintiff is ignorant of his legal remedy or the legal theories underlying his cause of action.   Thus, if one has suffered appreciable harm and knows or suspects that professional blundering is its cause, the fact that an attorney has not yet advised him does not postpone commencement of the limitations period.”  (Gutierrez v. Mofid (1985) 39 Cal.3d 892, 898, 218 Cal.Rptr. 313, 705 P.2d 886;  accord Laird v. Blacker (1992) 2 Cal.4th 606, 611, 7 Cal.Rptr.2d 550, 828 P.2d 691;  Worton v. Worton, supra, at p. 1650, 286 Cal.Rptr. 410;  McGee v. Weinberg (1979) 97 Cal.App.3d 798, 804, 159 Cal.Rptr. 86.)

2

Analysis

 For purposes of the statute of limitations, Samuels suffered “ ‘actual injury’ ” at the time of her allegedly unfavorable settlement with Showa Denko on December 13, 1990.  (ITT Small Business Finance Corp. v. Niles (1994) 9 Cal.4th 245, 258, 36 Cal.Rptr.2d 552, 885 P.2d 965.)   It is undisputed that Samuels filed this lawsuit more than one year after such actual injury.   Hence, with respect to Mix's limitations defense, the jury faced only the issue whether the action was filed within one year after Samuels actually or constructively discovered the facts constituting Mix's alleged wrongful act or omission.6  As we shall explain, the law imposed upon Mix the burden of proof on such issue.

Evidence Code section 110 defines the burden of producing evidence as “the obligation of a party to introduce evidence sufficient to avoid a ruling against him on the issue.”  Evidence Code section 115 defines the burden of proof as “the obligation of a party to establish by evidence a requisite degree of belief concerning a fact in the mind of the trier of fact or the court.”   Initially those burdens coincide.  (Rancho Santa Fe Pharmacy, Inc. v. Seyfert (1990) 219 Cal.App.3d 875, 880, 268 Cal.Rptr. 505.)

 The statute of limitations is an affirmative defense.  (Minton v. Cavaney (1961) 56 Cal.2d 576, 581, 15 Cal.Rptr. 641, 364 P.2d 473.)   Defendant Mix thus had the burden to demur to Samuels's first amended complaint on grounds of the statute of limitations or to plead such affirmative defense in his answer to Samuels's pleading.  (Ibid.) This record contains no indication Mix demurred.   However, Mix's answer affirmatively alleged Samuels's pleading was barred by applicable statutes of limitations including section 340.6.

 Defendant Mix indisputably had the burden to prove his affirmative defense of the statute of limitations.  (Primm v. Joyce (1948) 87 Cal.App.2d 288, 291, 196 P.2d 829.)   Further, at the outset of trial Mix's burden of proof on his limitations defense coincided with his burden to produce evidence on such affirmative defense.  (Rancho Santa Fe Pharmacy, Inc. v. Seyfert, supra, 219 Cal.App.3d at p. 880, 268 Cal.Rptr. 505;  Evid.Code, § 550, subd. (b).) 7  “The party having the burden of proof must offer evidence so that the trier may have a basis for finding in his favor.”  (Rancho Santa Fe Pharmacy, Inc. v. Seyfert, supra, at p. 880, 268 Cal.Rptr. 505.)   As Samuels acknowledges, Mix through cross-examination met his burden of producing evidence that Samuels's lawsuit was filed more than one year after Samuels actually or constructively discovered the facts constituting Mix's alleged wrongdoing.   However, Mix's satisfaction of his burden to produce such evidence did not shift to Samuels the burden of proof on Mix's affirmative defense of the statute of limitations.   Such burden of proof remained with Mix. (Valentine v. Provident Mut. L. Ins. Co. (1936) 12 Cal.App.2d 616, 618, 55 P.2d 1243.) 8  Instead, when Mix satisfied his production burden, Samuels simply faced the burden to produce evidence sufficient to avoid a nonsuit on the issue whether this lawsuit was filed within one year after Samuels's actual or constructive discovery of facts constituting Mix's alleged wrongdoing.  (Evid.Code, § 550, subd. (a);  Rancho Santa Fe Pharmacy, Inc. v. Seyfert, supra, at p. 880, 268 Cal.Rptr. 505.) 9  Once Samuels met her production burden to overcome nonsuit, the jury's task was to determine whether Mix satisfied his abiding burden of proof on his statute of limitations defense.   However, in effect, the court improperly told the jury that the burden to disprove such defense rested with Samuels.

3

Mix's Contentions Are Meritless

In support of their conflicting views on allocation of the burden of proof, both parties rely on Burgon v. Kaiser Foundation Hospitals (1979) 93 Cal.App.3d 813, 823-824, 155 Cal.Rptr. 763.  Burgon was a medical malpractice case involving a grant of nonsuit on the basis of a limitations statute (§ 340.5) 10 analogous to section 340.6, subdivision (a).   In Burgon the appellate court stated:  “Finally, there is the matter of where the burden of coming forward with the evidence falls as it is involved in this case.   Accepting that the alleged malpractice began before January 11, 1973 (a date one year before the action was filed), defendants sought to invoke the bar of the statute of limitations and actually introduced evidence, including the answers to interrogatories and plaintiff's deposition to establish that plaintiff discovered the implications of malpractice such as to put him on notice requiring reasonable inquiry as of December 15, 1972. [¶]  At that point, defendant had made a prima facie case for application of the statute, and in the context of a prospective nonsuit motion the burden of going forward with the evidence shifted to plaintiff.”  (Burgon v. Kaiser Foundation Hospitals, supra, at pp. 823-824, 155 Cal.Rptr. 763, italics added.)   The appellate court concluded:  “Translated into the language of the authority, ‘[i]t is fundamental that a litigant who relies on facts [alleged] in order to avoid the bar of the statute of limitations bears the burden of proving such facts.  [Citations.]’  (DeVault v. Logan [ (1963) ] 223 Cal.App.2d 802, 809 [36 Cal.Rptr. 145].)   When the plaintiff fails to carry that burden, i.e., to go forward with the evidence, ‘the trial court properly determined that plaintiff's cause of action was a stale claim when suit was filed.’  (Id. at p. 809 [36 Cal.Rptr. 145].)”  (Id. at p. 824, 155 Cal.Rptr. 763, italics added.)   Hence, in reaching its conclusion, the appellate court in Burgon effectively paraphrased language in DeVault v. Logan (1963) 223 Cal.App.2d 802, 36 Cal.Rptr. 145 about burden of proof as referring to the burden of producing evidence.  (Burgon v. Kaiser Foundation Hospitals, supra, at p. 824, 155 Cal.Rptr. 763.)

Despite Burgon's concluding analysis framed expressly in terms of the burden of producing evidence, Mix cites other language in that opinion to support a contention that Samuels had the burden to plead and prove she filed this lawsuit within one year after actually or constructively discovering facts constituting Mix's alleged wrongdoing.  (Burgon v. Kaiser Foundation Hospitals, supra, 93 Cal.App.3d at pp. 821, 824, 155 Cal.Rptr. 763.)   Mix further relies on other case law, primarily Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 281 Cal.Rptr. 827;  April Enterprises, Inc. v. KTTV (1983) 147 Cal.App.3d 805, 195 Cal.Rptr. 421;  and DeVault v. Logan, supra, 223 Cal.App.2d 802, 36 Cal.Rptr. 145.   Mix also relies on cases involving the limitations period for fraud under section 338, subdivision (d), and its predecessors.   However, when properly analyzed, such case law did not impose on Samuels the burden to plead or prove that this lawsuit was filed within one year after her actual or constructive discovery of facts constituting Mix's alleged wrongdoing.   As we shall explain, Mix's contention to the contrary reflects confusion of the discovery element of section 340.6, subdivision (a)'s one-year statute of limitations with the common law exception to application of various other limitation statutes and with the special rules applicable to fraud.

(a)

 In April Enterprises, Inc. v. KTTV, supra, 147 Cal.App.3d 805, 195 Cal.Rptr. 421, the appellate court approved application of the common law “discovery” rule to delay accrual of causes of action for breach of fiduciary duty and breach of contract for purposes of motions for judgment on the pleadings and nonsuit after plaintiff's opening statement.  (Id. at pp. 815, 827-833, 195 Cal.Rptr. 421.)   By delaying accrual of a cause of action, the common law discovery rule effectively operates as an exception to the “traditional rule [ ] that a statute of limitations begins to run upon the occurrence of the last element essential to the cause of action, even if the plaintiff is unaware of his cause of action.  [Citation.]  The harshness of that rule has been ameliorated in cases where it would be manifestly unjust to deprive a plaintiff of a cause of action before he is aware he has been injured.  [Citation.]  A cause of action under this discovery rule accrues when ‘ “plaintiff either (1) actually discovered his injury and its negligent cause or (2) could have discovered injury and cause through the exercise of reasonable diligence․” ’ ”  (Mangini v. Aerojet-General Corp., supra, 230 Cal.App.3d at pp. 1149-1150, 281 Cal.Rptr. 827, italics in original, fns. omitted.)   Hence, “[w]hether the discovery rule applies at all is initially a matter of pleading.”  (Id. at p. 1150, 281 Cal.Rptr. 827.)   Specifically, “ ‘[a] plaintiff who relies on this exception must plead facts justifying delayed accrual;  the complaint must allege (1) the time and manner of discovery and (2) the circumstances excusing delayed discovery․’ ”  (Ibid.) “This pleading requirement is a procedural safeguard against lengthy litigation on the issue of accrual.”  (Id. at pp. 1150-1151, 281 Cal.Rptr. 827,11 citing April Enterprises Inc. v. KTTV, supra, at p. 832, 195 Cal.Rptr. 421.12 )

In contending Samuels had the burden to plead and prove she filed this lawsuit within one year after actually or constructively discovering facts constituting his alleged wrongdoing, Mix's reliance on Mangini v. Aerojet-General Corp., supra, 230 Cal.App.3d 1125, 281 Cal.Rptr. 827, and April Enterprises, Inc. v. KTTV, supra, 147 Cal.App.3d 805, 195 Cal.Rptr. 421, is misplaced.   Those cases involved attempts by plaintiffs to establish under common law principles that their causes of action had not accrued because their discovery of crucial facts was reasonably delayed.   Those cases did not present the issue whether a lawsuit was time barred under a limitations statute analogous to section 340.6, subdivision (a), containing two distinct alternative limitations periods.   Unlike Mangini v. Aerojet-General Corp., supra, and April Enterprises, Inc. v. KTTV, supra, Samuels's lawsuit did not present the issue whether accrual of her cause of action was delayed under the common law discovery rule.   Instead, the issue was whether Samuels's lawsuit was barred by the one-year statute of limitations of section 340.6, subdivision (a), applicable if more than one year before commencing this action Samuels actually or constructively discovered the facts constituting Mix's wrongdoing.

 Mix misperceives the structure of section 340.6, subdivision (a), and its interplay with the burdens of pleading and proof.   As noted, the statute sets forth two distinct alternative limitation periods, to wit, the earlier of four years from the date of the defendant's wrongdoing or one year after the plaintiff's actual or constructive discovery of the facts constituting such wrongdoing.  (Radovich v. Locke-Paddon, supra, 35 Cal.App.4th at p. 966, 41 Cal.Rptr.2d 573;  3 Witkin, Cal. Procedure, supra, Actions, § 581, p. 737.)   Hence, unlike the situations in Mangini v. Aerojet-General Corp., supra, 230 Cal.App.3d 1125, 281 Cal.Rptr. 827, and April Enterprises, Inc. v. KTTV, supra, 147 Cal.App.3d 805, 195 Cal.Rptr. 421, this lawsuit did not involve an attempt by plaintiff Samuels to invoke an exception to a statute of limitations based upon her reasonably delayed discovery of her injury and its negligent cause.  (Mangini v. Aerojet-General Corp., supra, at p. 1150, 281 Cal.Rptr. 827.)   Instead, under the language of section 340.6, subdivision (a), the date of Samuels's factual discovery constituted an integral element of the one-year statute of limitations.   Thus, Mix had the burden of proof on such element as part of his affirmative defense of the statute of limitations.  (Primm v. Joyce, supra, 87 Cal.App.2d at p. 291, 196 P.2d 829.) 13

For similar reasons, Mix's reliance on DeVault v. Logan, supra, 223 Cal.App.2d 802, 36 Cal.Rptr. 145, is also misplaced.   In DeVault, the appellate court affirmed a defense judgment in a medical malpractice case after the superior court on statute of limitations grounds granted a motion for judgment notwithstanding the verdict.   Noting the applicable one-year limitation under former section 340, subdivision (3), the appellate court observed:  “Exceptions which relax this general rule have been recognized and established.   Thus, it has been held that the statute does not commence to run ․ until the plaintiff discovers the injury, or through the use of reasonable diligence should have discovered it․”  (DeVault v. Logan, supra, at pp. 806-807, 36 Cal.Rptr. 145.)   Thus, DeVault involved a plaintiff's attempt to prove under common law principles that a cause of action had not accrued since plaintiff's discovery of facts was reasonably delayed.   DeVault did not present the issue whether a lawsuit was untimely under a limitations statute analogous to section 340.6, subdivision (a).

(b)

Also unavailing is Mix's reliance on various references to burden of pleading and burden of proof in Burgon v. Kaiser Foundation Hospitals, supra, 93 Cal.App.3d 813, 155 Cal.Rptr. 763, to support his contention Samuels bore those burdens.   Specifically, in Burgon, a case involving a medical malpractice limitations statute similar to section 340.6, subdivision (a), the appellate court stated:  “The trial court rightly concluded that a litigant seeking to avoid the effects of filing suit more than one year after the advent of the alleged malpractice must not only plead, but also prove, discovery of the alleged malpractice within the one-year period, as prescribed by the statute of limitations, next preceding the filing date.”  (Burgon v. Kaiser Foundation Hospitals, supra, at p. 821, 155 Cal.Rptr. 763.)   The appellate court also stated:  “Translated into the language of the authority, ‘[i]t is fundamental that a litigant who relies on facts [alleged] in order to avoid the bar of the statute of limitations bears the burden of proving such facts.   [Citations.]’ ”  (Id. at p. 824, 155 Cal.Rptr. 763, citing DeVault v. Logan, supra, 223 Cal.App.2d at p. 809, 36 Cal.Rptr. 145.)   However, in light of Burgon's concluding analysis expressly paraphrasing such language from DeVault in terms of the burden of producing evidence, other references to burden of proof in Burgon may be attributable in part to linguistic imprecision.  (Burgon v. Kaiser Foundation Hospitals, supra, at pp. 821, 823-824, 155 Cal.Rptr. 763.)   Further, as discussed, Burgon's citation to the DeVault language was inapposite as involving the common law rule of delayed discovery not at issue here.   Moreover, since the ultimate decision in Burgon turned on the plaintiff's evidentiary showing in opposition to a nonsuit motion, the opinion's language about the plaintiff's burden to plead is dictum.  (Id. at p. 821, 155 Cal.Rptr. 763.)   Although cited by both parties, such dictum also confuses the common law “discovery rule” exception to various limitations statutes with the operation of statutes such as section 340.6, subdivision (a), where the date of the plaintiff's actual or constructive discovery of facts constituting the defendant's alleged wrongdoing is an integral element of the statutorily established one-year limitations period.   As discussed, under limitations statutes structured like section 340.6, subdivision (a), the defendant has the burden to plead and prove such integral element as part of his affirmative defense of the statute of limitations.  (Minton v. Cavaney, supra, 56 Cal.2d at p. 581, 15 Cal.Rptr. 641, 364 P.2d 473;  Primm v. Joyce, supra, 87 Cal.App.2d at p. 291, 196 P.2d 829.)   Hence, the analogous statute involved in Burgon should be similarly analyzed.

(c)

 Further unavailing is Mix's reliance on case law involving the fraud statute of limitations under section 338, subdivision (d),14 and its predecessors.   Courts construing those fraud limitations statutes have long imposed upon the plaintiff the burden to plead and prove the circumstances of such discovery.  (Hobart v. Hobart Estate Co. (1945) 26 Cal.2d 412, 437, 159 P.2d 958; 15  Shapiro v. Equitable Life Assur. Soc. (1946) 76 Cal.App.2d 75, 95, 172 P.2d 725.16 )  Indeed, the discovery element of the fraud limitations statutes predated development of the common law rule of delayed discovery applicable to actions for professional malpractice.   (Neel v. Magana, Olney, Levy, Cathcart & Gelfand, supra, 6 Cal.3d at p. 192, fn. 32, 98 Cal.Rptr. 837, 491 P.2d 421;  Hobart v. Hobart Estate Co., supra, at p. 437, 159 P.2d 958;  April Enterprises, Inc. v. KTTV, supra, 147 Cal.App.3d at pp. 828-829, 195 Cal.Rptr. 421.)   However, case law involving the statute of limitations for fraud does not help Mix.

Unlike section 340.6, the fraud statutes have not set forth an absolute limitation period commencing upon the defendant's wrongdoing but shortened by an alternative limitation period initiated by the plaintiff's actual or constructive discovery of facts constituting such wrongdoing.   Instead, lacking any absolute limitation period, the fraud statutes would potentially run forever but for the three-year discovery component.   Under those circumstances, courts have reasonably required plaintiffs to plead and prove reasonably delayed discovery in lawsuits filed more than three years after commission of the fraud.

In any event, case law arising under the fraud statute of limitations is not persuasive here.   In Radovich v. Locke-Paddon, supra, 35 Cal.App.4th 946, 41 Cal.Rptr.2d 573, the appellate court deemed inapposite a party's reliance on cases involving “discovery requirements in contexts other than that of section 340.6.”  (Id. at p. 970, 41 Cal.Rptr.2d 573.)   The appellate court observed:  “These analyses of other statutes are not pertinent to section 340.6.   It is apparent that 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.”  (Ibid., italics added.)   Similarly, we construe section 340.6, subdivision (a), on its own terms without application of the analyses under either the common law discovery rule or the fraud limitations statutes.

(d)

 Mix is also mistaken to the extent he contends the burden of proof shifted to Samuels because she pleaded delayed discovery in her first amended complaint.   As discussed, defendant Mix had the burden to plead and prove the discovery element of the one-year statute of limitations established by section 340.6, subdivision (a).  (Minton v. Cavaney, supra, 56 Cal.2d at p. 581, 15 Cal.Rptr. 641, 364 P.2d 473;  Primm v. Joyce, supra, 87 Cal.App.2d at p. 291, 196 P.2d 829.)   Samuels's pleading's anticipatory allegation of timely discovery was no more than surplus without impact on Mix's burden of proof under Evidence Code section 115.  (Cf. Rancho Santa Fe Pharmacy, Inc. v. Seyfert, supra, 219 Cal.App.3d at p. 880, 268 Cal.Rptr. 505;  Valentine v. Provident Mut. L. Ins. Co., supra, 12 Cal.App.2d at p. 618, 55 P.2d 1243.)

(e)

 Finally, we reject Mix's contention that the burden of proof on the limitations issue shifted to Samuels because evidence of her state of knowledge before October 30, 1991, was assertedly more readily accessible to Samuels than to Mix. Mix's contention is based upon products liability case law indicating that the burden of proof on the causation issue may shift to defendants due to their greater access to evidence.   However, those products liability cases are not persuasive here in analyzing the burden to prove the affirmative defense of the statute of limitations.   Further, Mix effectively acknowledges that evidence of Samuels's mental state was not uniquely accessible to her.

4

Conclusion

In sum, the one-year portion of section 340.6, subdivision (a), is a limitations statute incorporating as an element the plaintiff's discovery of the defendant's alleged wrongdoing.   Unlike the common law “discovery rule,” the discovery element of section 340.6, subdivision (a), does not afford the plaintiff a means to delay running of the limitations period.   Instead, the statutory discovery element gives the defendant the opportunity to assert that a legal malpractice lawsuit is time barred before the end of the four-year absolute limitations period of the “occurrence” portion of the statute.   Thus, contrary to Mix's contention, the discovery element of section 340.6, subdivision (a), operates to benefit him rather than plaintiff Samuels.   Hence, consistent with well-established law, defendant Mix should properly bear the burden to prove the applicability of such discovery element of the limitations statute he alleged as an affirmative defense.   However, instead of instructing the jury that Mix bore the burden of proof on his statute of limitations defense, the court erroneously told the jurors that such burden rested with Samuels.

B

Prejudice to Samuels

 Samuels contends her ability to present her case was prejudiced by the erroneous jury instruction given and by the omission of proper instructions on burden of proof.   Asserting entitlement to judgment as a matter of law, Mix contends any instructional error did not prejudice Samuels.   Specifically, Mix claims the record was devoid of evidence refuting Samuels's deposition testimony assertedly indicating that on October 28, 1991, a date more than one year before filing this lawsuit, Samuels suspected wrongful conduct by Mix in handling her case against Showa Denko.17

 “Instructional error in a civil case is prejudicial ‘where it seems probable’ that the error ‘prejudicially affected the verdict.’   [Citations.]  Of course, that determination depends heavily on the particular nature of the error, including its natural and probable effect on a party's ability to place his full case before the jury.  [¶] But the analysis cannot stop there.   Actual prejudice must be assessed in the context of the trial record.”  (Soule v. General Motors Corp., supra, 8 Cal.4th 548, 580, 34 Cal.Rptr.2d 607, 882 P.2d 298.)

 “In assessing prejudice from an erroneous instruction, we consider, insofar as relevant, ‘(1) the degree of conflict in the evidence on critical issues [citations];  (2) whether respondent's argument to the jury may have contributed to the instruction's misleading effect [citation];  (3) whether the jury requested a rereading of the erroneous instruction [citation] or of related evidence [citation];  (4) the closeness of the jury's verdict [citation];  and (5) the effect of other instructions in remedying the error [citations].’ ”  (Soule v. General Motors Corp., supra, 8 Cal.4th at pp. 570-571, 34 Cal.Rptr.2d 607, 882 P.2d 298.)   Such multifactor test “is as pertinent in cases of instructional omission as in cases where instructions were erroneously given.   Thus, when deciding whether an error of instructional omission was prejudicial, the court must also evaluate (1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsel's arguments, and (4) any indications by the jury itself that it was misled.”   (Id. at pp. 580-581, 34 Cal.Rptr.2d 607, 882 P.2d 298.)

This record contained conflicting evidence on the determinative limitations issue of when Samuels actually or constructively discovered facts constituting Mix's alleged wrongdoing.  (Soule v. General Motors Corp., supra, 8 Cal.4th at pp. 570-571, 580-581, 34 Cal.Rptr.2d 607, 882 P.2d 298.)   The parties disputed whether the evidence indicated that before accepting Showa Denko's offer Samuels consulted another lawyer about the value of her case.   The parties also disputed whether the evidence indicated Samuels first contacted Hildre in August 1991 rather than in October or November 1991.   Further, evidence varied on the substance of Samuels's discussion with Hildre on October 28, 1991, at their first meeting about settlement of her case against Showa Denko.   Stating that in initially consulting Hildre she wanted only to reopen her case against Showa Denko, Samuels testified she told Hildre she had settled such case but was concerned about not working again.   Hildre testified that at such meeting Samuels said her medical condition had worsened since the settlement, she was concerned the settlement was inadequate to cover the future and she wanted to know if there were anyone else she could sue.   However, Hildre also testified that at such meeting Samuels did not complain about Mix's handling of her case and they did not discuss the possibility that Mix had obtained an inadequate settlement.   Moreover, the parties also disputed whether after her October 28, 1991, meeting with Hildre, Samuels believed that Mix had misrepresented Showa Denko's true financial condition or otherwise had committed wrongdoing related to settlement of her case against Showa Denko.   Samuels testified she trusted Mix's evaluation of her case, did not tell Hildre the settlement amount until November 16, 1991, and never thought Mix had committed malpractice until Hildre said so in July 1992.   The parties further disputed the reason Samuels initially consulted Hildre as bearing on when she first suspected Mix of wrongdoing.   Mix cross-examined Samuels about various asserted discrepancies between her trial testimony and her deposition testimony bearing on when she first suspected facts constituting wrongdoing by Mix in negotiating the settlement agreement.   At trial, Samuels sought to explain any such discrepancies by testifying as to imprecise memory and by arguing her deposition statements about believing Mix mishandled her case did not pinpoint the date she first held such beliefs and, in any event, did not refer to wrongdoing in negotiating the settlement but instead only to her disillusionment with Mix arising from his unauthorized use of a courier and particularly his discussing with others the amount of the settlement despite telling her it was confidential.   Hence, the record disclosed conflicts in evidence, disputes about reasonable inferences from such evidence, and questions of credibility bearing on determination of the crucial issue of when Samuels actually or constructively discovered facts constituting Mix's alleged wrongdoing.   Contrary to Mix's intimations, the issue of Samuels's credibility was a matter for the jury at the bifurcated trial.   Mix misses the mark in seeking application here of case law permitting a court deciding a summary judgment motion to disregard evidence submitted by a plaintiff when contradicted by the plaintiff's discovery responses.

Further, in arguing to the jury, Mix exacerbated the instructional error by emphasizing the erroneous instruction on burden of proof.  (Soule v. General Motors Corp., supra, 8 Cal.4th at pp. 570-571, 580-581, 34 Cal.Rptr.2d 607, 882 P.2d 298;  Bernal v. Richard Wolf Medical Instruments Corp., supra, 221 Cal.App.3d at pp. 1335-1336, 272 Cal.Rptr. 41.)   Specifically, Mix told the jury “this is the instruction which Judge Baxley read to you earlier.   This is the basic instruction as to what the plaintiff's burden is.”   Mix also argued to the jury that Samuels “has the burden of proving by a preponderance of the evidence all of the facts necessary to establish that this action was filed within one year after she discovered or through the use of reasonable diligence should have discovered.”   Mix closed his argument by telling the jury with respect to the special verdict form that “the test is did plaintiff meet the burden of proof?   The answer to that is no.   When you get to the jury room, the answer is no.   Just say no, ladies and gentlemen.   Just say no.   Thank you.”   Finally, the verdict was close, favoring Mix by nine to three.  (Soule v. General Motors Corp., supra, at pp. 570-571, 34 Cal.Rptr.2d 607, 882 P.2d 298.)

 “While ‘[a]ll instructions to the jury are important, so that careful and conscientious jurors can apply the proper law to the facts they find to have been proven[,] ․ few instructions are of greater importance than that which informs the jury which party bears the burden of proof on the issues in dispute․’ ”  (Bernal v. Richard Wolf Medical Instruments Corp., supra, 221 Cal.App.3d at p. 1335, 272 Cal.Rptr. 41.)   Here, on the crucial issue of the statute of limitations at the bifurcated trial, the court gave an instruction imposing on Samuels a burden she was not bound to meet.   Nothing in the record indicates such erroneous instruction was mitigated or remedied by any other instructions.  (Soule v. General Motors Corp., supra, 8 Cal.4th at pp. 570-571, 34 Cal.Rptr.2d 607, 882 P.2d 298.)   Further, as discussed, the record contained conflicting evidence on when Samuels actually or constructively discovered the facts constituting Mix's alleged wrongdoing.   (Id. at pp. 570-571, 580-581, 34 Cal.Rptr.2d 607, 882 P.2d 298.)   However, the court refused Samuels's proffered instructions on the correct allocation of the burden of proof despite Samuels's entitlement to instructions on every theory she advanced finding support in the evidence.  (Bernal v. Richard Wolf Medical Instruments Corp., supra, at p. 1337, 272 Cal.Rptr. 41.)  “ ‘The evidence necessary to justify the giving of an instruction need not be overwhelming ․ [but] may be slight ․ or even opposed to the preponderance of the evidence.’ ”  (Id. at p. 1338, 272 Cal.Rptr. 41.)   Hence, even if the conflicting evidence on the issue of Samuels's actual or constructive knowledge appeared to favor Mix, the jury instruction erroneously placing the burden of proof on Samuels could not be harmless error.  (Id. at p. 1335, 272 Cal.Rptr. 41.)

In sum, the instructional errors must be considered prejudicial since it is reasonably likely the jury verdict was based upon the erroneously given instruction and the erroneous omission of proper instructions on burden of proof.  (Soule v. General Motors Corp., supra, 8 Cal.4th at p. 580, 34 Cal.Rptr.2d 607, 882 P.2d 298;  Bernal v. Richard Wolf Medical Instruments Corp., supra, 221 Cal.App.3d at p. 1336, 272 Cal.Rptr. 41.)

V

DISPOSITION

The judgment is reversed.   Samuels is awarded costs on appeal.

FOOTNOTES

1.  FN1. All statutory references are to the Code of Civil Procedure unless otherwise specified.

2.   Section 340.6, subdivision (a), provides in relevant part:  “An action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services 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.”

3.   “In reviewing the propriety of a requested instruction, we view the evidence in the light most favorable to the party proposing it.”   (Bernal v. Richard Wolf Medical Instruments Corp., supra, 221 Cal.App.3d at p. 1338, 272 Cal.Rptr. 41.)

4.   The challenged jury instruction stated in its entirety:“California law provides:“An action against an attorney for a wrongful act or omission arising in the performance of professional services shall be commenced within one year after plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission.“The plaintiff has the burden of proving by a preponderance of the evidence all of the facts necessary to establish that this action was filed within one year after plaintiff discovered or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission of the defendant.“ ‘Preponderance of the evidence’ means evidence that has more convincing force than that opposed to it.   If the evidence is so evenly balanced that you are unable to say that the evidence on either side of an issue preponderates, your finding on that issue must be against the party who had the burden of proving it.“You should consider all of the evidence bearing upon every issue regardless of who produced it.”

5.   The first of Samuels's proffered and rejected instructions stated:“California law provides:“ ‘An action against an attorney for a wrongful act or omission arising in the performance of professional services 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.’“The defendant has the burden of proving by a preponderance of the evidence all of the facts necessary to establish that this action was not commenced within one year after the plaintiff discovered, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission of the defendant.“ ‘Preponderance of the evidence’ means evidence that has more convincing force than that opposed to it.   If the evidence is so evenly balanced that you are unable to say that the evidence on either side of an issue preponderates, your finding on that issue must be against the party who had the burden of proving it.“You should consider all of the evidence bearing upon every issue regardless of who produced it.”The second of Samuels's proffered and rejected instructions provided:“The defendant has the burden of proving by a preponderance of the evidence all of the facts necessary to establish that plaintiff did not commence her action within one year of discovering, or using reasonable diligence should have discovered, the facts constituting the wrongful act or omission of the defendant.“ ‘Preponderance of the evidence’ means evidence that has more convincing force than that opposed to it.   If the evidence is so evenly balanced that you are unable to say that the evidence on either side of an issue preponderates, your finding on that issue must be against the party who had the burden of proving it.“You should consider all of the evidence bearing upon every issue regardless of who produced it.”

6.   Mix has not made any claim that Samuels's lawsuit was barred by the portion of section 340.6, subdivision (a), establishing a four-year statute of limitations.

7.   Evidence Code section 550, subdivision (b), provides:  “The burden of producing evidence as to a particular fact is initially on the party with the burden of proof as to that fact.”

8.   In Valentine v. Provident Mut. L. Ins. Co., supra, 12 Cal.App.2d 616, 55 P.2d 1243, the appellate court stated:  “It is not contended by either litigant that the burden of proof to establish the affirmative of an issue ever shifts.   This is, of course, the law.”   (Id. at p. 618, 55 P.2d 1243.)

9.   Evidence Code section 550, subdivision (a), provides:  “The burden of producing evidence as to a particular fact is on the party against whom a finding on that fact would be required in the absence of further evidence.”   Hence, during the course of trial, “the burden of producing evidence ‘may shift from one party to another, irrespective of the incidence of the burden of proof․’ ”  (Rancho Santa Fe Pharmacy, Inc. v. Seyfert, supra, 219 Cal.App.3d at p. 880, 268 Cal.Rptr. 505.)

10.   Section 340.5 provided in relevant part:  “ ‘In an action for injury or death against a health care provider based upon such person's alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.’ ”  (Burgon v. Kaiser Foundation Hospitals, supra, 93 Cal.App.3d at pp. 814-815, fn. 1, 155 Cal.Rptr. 763.)

11.   In Mangini v. Aerojet-General Corp., supra, 230 Cal.App.3d 1125, 281 Cal.Rptr. 827, the appellate court affirmed the sustaining of demurrers to causes of action for negligence and strict liability under the statute of limitations of section 338, subdivision (b).  (Id. at pp. 1149-1153, 281 Cal.Rptr. 827.)   The appellate court concluded that even if the common law discovery rule applied to delay accrual of those causes of action, the lawsuit was time barred.

12.   In April Enterprises, Inc. v. KTTV, supra, 147 Cal.App.3d 805, 195 Cal.Rptr. 421, the appellate court observed:  “Applying the discovery rule to certain, rather unusual breach of contract actions poses no more burden for the courts than the date-of-injury accrual rule in most instances.   The discovery rule itself contains procedural safeguards protecting against lengthy litigation on the issue of accrual.   It presumes that a plaintiff has knowledge of injury on the date of injury.   In order to rebut the presumption, a plaintiff must plead facts sufficient to convince the trial judge that delayed discovery was justified.   And when the case is tried on the merits the plaintiff bears the burden of proof on the discovery issue.  [Citation.]  Failure to meet this burden will result in dismissal of the suit.  [¶] The discovery rule protects those who are ignorant of their cause of action through no fault of their own.   It permits delayed accrual until a plaintiff knew or should have known of the wrongful conduct at issue․  ‘It is plaintiff's burden to establish “facts showing that he was not negligent in failing to make the discovery sooner and that he had no actual or presumptive knowledge of facts sufficient to put him on inquiry.”  [Citation.]  “[W]hether the plaintiff exercised reasonable diligence is a question of fact for the court or jury to decide.”  [Citation.]’ ”  (Id. at pp. 832-833, 195 Cal.Rptr. 421.)

13.   As noted, this record contains no indication Mix demurred to Samuels's pleaded cause action for legal malpractice.   Further, nothing on the face of Samuels's first amended complaint would render her pleading vulnerable to a successful demurrer under the portion of section 340.6, subdivision (a), establishing a one-year statute of limitations.   Without allegations establishing that more than a year before commencing this lawsuit Samuels actually or constructively discovered the facts constituting Mix's wrongdoing, the circumstance that Samuels's complaint was filed more than one year after her actual injury would not prevent her pleading from surviving demurrer.

14.   In prescribing a three-year period for commencing an action for relief on the ground of fraud or mistake, section 338, subdivision (d), provides:  “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.”

15.   In Hobart v. Hobart Estate Co., supra, 26 Cal.2d 412, 159 P.2d 958, the Supreme Court observed:  “The provision tolling operation of the statute 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, 159 P.2d 958, italics added.)

16.   In Shapiro v. Equitable Life Assur. Soc., supra, 76 Cal.App.2d 75, 172 P.2d 725, the appellate court stated:  “While the statute of limitations ordinarily is an affirmative defense and the burden rests on the defendant to prove such defense, yet in an action for fraud which is commenced more than three years after it occurred the burden is not on the defendant to show that knowledge of the facts was brought home to the plaintiff but is on the plaintiff to prove that he did not discover the facts constituting the fraud within three years prior to the commencement of the action;  and he must further show the time and the circumstances under which they were brought to his knowledge.”  (Id. at p. 95, 172 P.2d 725.)

17.   Mix relies on the following portion of the trial transcript where defense counsel read from Samuels's deposition:“ ‘Question:  After that meeting, that first meeting with Don Hildre, did you believe Terry Mix had done anything wrong in the handling of your case?’“There was an objection.“Line 10, ‘Answer:  I don't-you're asking me if after the first time I met Don Hildre, did I think or did I believe that Terry Mix misrepresented to me?’“ ‘Question:  Had done anything wrong in the handling of your case.’“ ‘Answer:  Yes.’ ”

KREMER, Presiding Justice.

BENKE and McDONALD, JJ., concur.

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