law discovery rule in California

2021We agree with plaintiff that the common law discovery rule is available when the statute of limitations under section 338, subdivision (a) is the applicable statute of limitations. “ ‘Statute of limitations’ is the ‘collective term . . . commonly applied to a great number of acts,’ or parts of acts, that ‘prescribe the periods beyond which’ a plaintiff may not bring a cause of action. [Citations.] It has as a purpose to protect defendants from the stale claims of dilatory plaintiffs. [Citations.] It has as a related purpose to stimulate plaintiffs to assert fresh claims against defendants in a

1999(Norgart v. Upjohn Co., supra, 21 Cal.4th at p. 396 .) Because it involves such policymaking, to establish a statute of limitations “belongs to the Legislature alone [citation], subject only to constitutional constraints [citation].” (Id. at pp. 396-397, citing Weinberger v. Weidman (1901) 134 Cal. 599, 602 [ 66 P. 869 ]; Regents of University of California v. Superior Court (1999) 20 Cal.4th 509, 534 [ 85 Cal.Rptr.2d 257 , 976 P.2d 808 ].) While our judicially engrafting section 340.6(a) with the common law discovery rule’s exception to the normal burden of proof might not directly invade the

2021We agree with plaintiff that the common law discovery rule is available when the statute of limitations under section 338, subdivision (a) is the applicable statute of limitations. “ ‘Statute of limitations’ is the ‘collective term . . . commonly applied to a great number of acts,’ or parts of acts, that ‘prescribe the periods beyond which’ a plaintiff may not bring a cause of action. [Citations.] It has as a purpose to protect defendants from the stale claims of dilatory plaintiffs. [Citations.] It has as a related purpose to stimulate plaintiffs to assert fresh claims against defendants in a

2021We agree with plaintiff that the common law discovery rule is available when the statute of limitations under section 338, subdivision (a) is the applicable statute of limitations. “ ‘Statute of limitations’ is the ‘collective term . . . commonly applied to a great number of acts,’ or parts of acts, that ‘prescribe the periods beyond which’ a plaintiff may not bring a cause of action. [Citations.] It has as a purpose to protect defendants from the stale claims of dilatory plaintiffs. [Citations.] It has as a related purpose to stimulate plaintiffs to assert fresh claims against defendants in a

2021(Baxter v. State Teachers’ Retirement System (2017) 18 Cal.App.5th 340, 358 [cases cited therein].) Indeed, absent the Legislature’s 6 clear intent, we presume it intended to make the common law discovery rule applicable to section 338, subdivision (a).

2019(See Lee v. Hanley (2015) 61 Cal.4th 1225, 1240 [although professional negligence claim against attorney was barred by the limitations period of § 340.6, plaintiff could pursue a claim for conversion].) 11 hold that the common law discovery rule was inapplicable to section 340, subdivision (3).

2019(Unruh-Haxton v. Regents of the University of California (2008) 162 Cal.App.4th 343, 356 [§ 340.5 inapplicable to claims for intentional torts]; Perry v. Shaw (2001) 88 Cal.App.4th 658, 668 [MICRA’s non-economic damages cap inapplicable to claims of medical battery]; Brown, supra, 32 Cal.3d at p. 437 [§ 340.5 established a new statute of limitations for professional negligence of health care provider, but not battery].) Nor is there any indication the provisions of section 340.5 were meant to modify the application of the common law discovery rule to section 335.1.

2019(Unruh-Haxton v. Regents of the University of California (2008) 162 Cal.App.4th 343, 356 [§ 340.5 inapplicable to claims for intentional torts]; Perry v. Shaw (2001) 88 Cal.App.4th 658, 668 [MICRA’s non-economic damages cap inapplicable to claims of medical battery]; Brown, supra, 32 Cal.3d at p. 437 [§ 340.5 established a new statute of limitations for professional negligence of health care provider, but not battery].) Nor is there any indication the provisions of section 340.5 were meant to modify the application of the common law discovery rule to section 335.1.

2000Proc., § 312; Romano v. Rockwell Internat., Inc., supra, 14 Cal.4th 479, 487; Angeles Chemical Co. v. Spencer & Jones (1996) 44 Cal.App.4th 112, 120 [ 51 Cal.Rptr.2d 594 ].) Developed to mitigate the harsh results produced by strict definitions of accrual, the common law discovery rule postpones accrual until a plaintiff discovers or has reason to discover the cause of action.

2000Proc., § 312; Romano v. Rockwell Internat., Inc., supra, 14 Cal.4th 479, 487; Angeles Chemical Co. v. Spencer & Jones (1996) 44 Cal.App.4th 112, 120 [ 51 Cal.Rptr.2d 594 ].) Developed to mitigate the harsh results produced by strict definitions of accrual, the common law discovery rule postpones accrual until a plaintiff discovers or has reason to discover the cause of action.

2000Proc., § 312; Romano v. Rockwell Internat., Inc., supra, 14 Cal.4th 479, 487; Angeles Chemical Co. v. Spencer & Jones (1996) 44 Cal.App.4th 112, 120 [ 51 Cal.Rptr.2d 594 ].) Developed to mitigate the harsh results produced by strict definitions of accrual, the common law discovery rule postpones accrual until a plaintiff discovers or has reason to discover the cause of action.

1999(See, e.g., Adams v. Murakami (1991) 54 Cal.3d 105, 119-120 [ 284 Cal.Rptr. 318 , 813 P.2d 1348 ] [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 limitations period.

1999(See, e.g., Adams v. Murakami (1991) 54 Cal.3d 105, 119-120 [ 284 Cal.Rptr. 318 , 813 P.2d 1348 ] [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 limitations period.

1999More 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.

1999In fact, we noted, "[i]n section 340.6, the Legislature established a detailed, explicit, and exclusive scheme for commencing and tolling the legal malpractice limitations periods." ( Jordache, supra, at p. 764, 76 Cal.Rptr.2d 749 , 958 P.2d 1062 .) Contrary to the expansive reading defendant would give the Laird dictum, we believe that, in enacting section 340.6, the Legislature clearly intended more than merely to codify the common law discovery rule, because section 340.6(a), even absent discovery, absolutely cuts off actions after a specified period ("four years from the date of the wrongf

1999Those cases did not address the question presented in this case, viz., whether defendant has proven the statutory elements of his section 340.6(a) limitations defense. [3] Our holding in Hobart was qualified in this manner: "`It is only where the party defrauded should plainly have discovered the fraud except for his own inexcusable inattention that he will be charged with a discovery in advance of actual knowledge on his part.' It follows that plaintiff is not barred because the means of discovery were available at an earlier date provided he has shown that he was not put on inquiry by any ci

1999Those cases did not address the question presented in this case, viz., whether defendant has proven the statutory elements of his section 340.6(a) limitations defense. [3] Our holding in Hobart was qualified in this manner: "`It is only where the party defrauded should plainly have discovered the fraud except for his own inexcusable inattention that he will be charged with a discovery in advance of actual knowledge on his part.' It follows that plaintiff is not barred because the means of discovery were available at an earlier date provided he has shown that he was not put on inquiry by any ci

1999Bill No. 298, supra, at p. 3; Southland Mechanical Constructors Corp. v. Nixen (1981) 119 Cal.App.3d 417, 428 [ 173 Cal.Rptr. 917 ], superseded by statute on another point [noting the bill digest’s reference to Mallen, Panacea].) Section 340.6 constitutes relief for potential attorney malpractice defendants because it provides two alternate bases—either four years from occurrence or one year from discovery—for cutting off potential liability for attorney malpractice that otherwise, under the common law discovery rule, might have lingered indefinitely.

1999Bill No. 298, supra, at p. 3; Southland Mechanical Constructors Corp. v. Nixen (1981) 119 Cal.App.3d 417, 428 [ 173 Cal.Rptr. 917 ], superseded by statute on another point [noting the bill digest’s reference to Mallen, Panacea].) Section 340.6 constitutes relief for potential attorney malpractice defendants because it provides two alternate bases—either four years from occurrence or one year from discovery—for cutting off potential liability for attorney malpractice that otherwise, under the common law discovery rule, might have lingered indefinitely.

1999Those cases did not address the question presented in this case, viz., whether defendant has proven the statutory elements of his section 340.6(a) limitations defense. [3] Our holding in Hobart was qualified in this manner: "`It is only where the party defrauded should plainly have discovered the fraud except for his own inexcusable inattention that he will be charged with a discovery in advance of actual knowledge on his part.' It follows that plaintiff is not barred because the means of discovery were available at an earlier date provided he has shown that he was not put on inquiry by any ci

1999Those cases did not address the question presented in this case, viz., whether defendant has proven the statutory elements of his section 340.6(a) limitations defense. [3] Our holding in Hobart was qualified in this manner: "`It is only where the party defrauded should plainly have discovered the fraud except for his own inexcusable inattention that he will be charged with a discovery in advance of actual knowledge on his part.' It follows that plaintiff is not barred because the means of discovery were available at an earlier date provided he has shown that he was not put on inquiry by any ci

1999(Norgart v. Upjohn Co., supra, 21 Cal.4th at p. 396 .) Because it involves such policymaking, to establish a statute of limitations “belongs to the Legislature alone [citation], subject only to constitutional constraints [citation].” (Id. at pp. 396-397, citing Weinberger v. Weidman (1901) 134 Cal. 599, 602 [ 66 P. 869 ]; Regents of University of California v. Superior Court (1999) 20 Cal.4th 509, 534 [ 85 Cal.Rptr.2d 257 , 976 P.2d 808 ].) While our judicially engrafting section 340.6(a) with the common law discovery rule’s exception to the normal burden of proof might not directly invade the

1999(Norgart v. Upjohn Co., supra, 21 Cal.4th at p. 396 .) Because it involves such policymaking, to establish a statute of limitations “belongs to the Legislature alone [citation], subject only to constitutional constraints [citation].” (Id. at pp. 396-397, citing Weinberger v. Weidman (1901) 134 Cal. 599, 602 [ 66 P. 869 ]; Regents of University of California v. Superior Court (1999) 20 Cal.4th 509, 534 [ 85 Cal.Rptr.2d 257 , 976 P.2d 808 ].) While our judicially engrafting section 340.6(a) with the common law discovery rule’s exception to the normal burden of proof might not directly invade the

1999(Mallen, Panacea, supra, 52 State Bar J. at pp. 23-24 [proposing two-year/four-year attorney malpractice limitations statute similar to section 340.6 as “legislative relief . . . but this time for the attorney” from the “literally interminate liability of the discovery rule”]; cf. Newell v. Richards (1991) 323 Md. 717 [ 594 A.2d 1152, 1156-1158 ] [holding Maryland legislature must have intended to burden a defendant invoking alternative date-of-injury/date-of-discovery medical malpractice limitations statute, similar to section 340.6(a), with proving when injury was discovered, partly on groun

1999(Mallen, Panacea, supra, 52 State Bar J. at pp. 23-24 [proposing two-year/four-year attorney malpractice limitations statute similar to section 340.6 as “legislative relief . . . but this time for the attorney” from the “literally interminate liability of the discovery rule”]; cf. Newell v. Richards (1991) 323 Md. 717 [ 594 A.2d 1152, 1156-1158 ] [holding Maryland legislature must have intended to burden a defendant invoking alternative date-of-injury/date-of-discovery medical malpractice limitations statute, similar to section 340.6(a), with proving when injury was discovered, partly on groun