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Suing an Architect, Professional Engineer or Land Surveyor? Watch Out!

There’s a lesser known requirement embodied in Code of Civil Procedure Section 411.35 that sets forth special requirements when filing a professional negligence case against an architect, a professional engineer, or a land surveyor.  This section requires that the filing attorney attach a certificate of merit when filing the complaint.  The certificate of merit must be executed by plaintiff’s counsel (or cross-complainant’s counsel in the case of a cross complaint) which declares one of the following:

(1)          That the attorney has reviewed the facts of the case, that the attorney has consulted with and received an opinion from at least one architect, professional engineer, or land surveyor who is licensed to practice and practices in this state or any other state, or who teaches at an accredited college or university and is licensed to practice in this state or any other state, in the same discipline as the defendant or cross-defendant and who the attorney reasonably believes is knowledgeable in the relevant issues involved in the particular action, and that the attorney has concluded on the basis of this review and consultation that there is reasonable and meritorious cause for the filing of this action. The person consulted may not be a party to the litigation. The person consulted shall render his or her opinion that the named defendant or cross-defendant was negligent or was not negligent in the performance of the applicable professional services.

(2)          That the attorney was unable to obtain the consultation required by paragraph (1) because a statute of limitations would impair the action and that the certificate required by paragraph (1) could not be obtained before the impairment of the action. If a certificate is executed pursuant to this paragraph, the certificate required by paragraph (1) shall be filed within 60 days after filing the complaint.

(3)          That the attorney was unable to obtain the consultation required by paragraph (1) because the attorney had made three separate good faith attempts with three separate architects, professional engineers, or land surveyors to obtain this consultation and none of those contacted would agree to the consultation.

Code of Civil Procedure Section 411.35(b)(1-3) [emphasis added].

The purpose of this statute was to curtail the filing of frivolous cases against architects, professional engineers, and land surveyors.

Fair enough, but it seems strange that no similar requirement is made for most other professionals in California – one can file a malpractice action against a doctor without a certificate of merit.

A recent California case has brought this requirement into the limelight in a way that has surprised many plaintiffs’ attorneys in California.  The case is Curtis Engineering Corp. v. Superior Court  2017 Cal. App. LEXIS 920.

In Curtis, a crane operator filed an action against Curtis Engineering when one of their cranes tipped over, causing him serious personal injury.  The plaintiff filed the negligence action against Curtis Engineering two days before the expiration of the 2 year statute of limitations period (May 3, 2016).  Plaintiff’s counsel did not include a certificate of merit, or otherwise meet the conditions of Code of Civil Procedure  Section 411.35(b).

On December 1, 2016, the plaintiff amended the complaint, adding in two additional paragraphs referencing a certificate of merit and attaching a certificate of merit to the first amended complaint which indicated that plaintiff’s counsel had reviewed the case with a professional whom had advised him the claim was meritorious.

Curtis Engineering demurred to the First Amended Complaint, arguing that the plaintiff failed to file the required certificate within the limitations period.  The trial Court overruled the demurrer, finding that the certificate filed on December 1, 2016 “related back” to the complaint filed on May 3, 2016.  Curtis appealed.

On appeal, the Court found that the “relation back doctrine” DID NOT apply to Code of Civil Procedure Section 411.35.  The Court noted that Section 411.35(g) states:

“The failure to file a certificate in accordance with this section shall be grounds for a demurrer pursuant to Section 430.10 or a motion to strike pursuant to Section 435.”

As a result, the Court found that failing to file a certificate was proper grounds for the granting  of a demurrer.  The Court further held that Section 411.35(b)(2) allowed plaintiff’s counsel to file the complaint before the 2 year expiration of the statute of limitations but required a certificate to be filed within 60 days thereafter.  Plaintiff’s counsel eventually filed a certificate of merit but it was well after the 60 day period.

The Court held:

“Moreover, applying the relation-back doctrine in this situation would mean a plaintiff has virtually an unlimited amount of time to obtain the necessary consultation as long as the plaintiff files the certificate of merit with an amended complaint that relates back to the original complaint.”
Curtis Engineering Corp. v. Superior Court 2017 Cal. App. LEXIS 920, at *10

Ultimately, the Court ruled that, plaintiff’s counsel did not (A) file a certificate of merit at the time of filing the complaint; (B) file a certificate of merit within 60 days of the filing of the complaint; or (C) file a declaration indicating the inability to find an expert to support the case despite diligent attempts to do so.  Because of this, the held, “Because there is no possibility of curing this defect, the demurrer must be sustained without leave to amend.”

Thus, the plaintiff’s case was dismissed, leaving him with no recourse against Curtis Engineering.  This finding is troubling, for a number of  reasons.

First, if the intent of the Section was truly to weed out unmeritorious cases, it did not do a good job in this instance.  According to the expert consulted with by plaintiff’s counsel, this was a meritorious case.  The plaintiff did eventually file a certificate of merit, having found an expert to support the case.

Second, the plaintiff’s case would have been allowed to continue had his counsel filed the certificate within 60 days of the filling of the complaint.  This seems very arbitrary given that the certificate need only state that it is the attorney’s belief, based on consulting with an expert, that the case has merit.  The basis for this belief need not be stated and thus it is not as though there is any prejudice to the defendant if the certificate is filed at a later date.

Third, plaintiff’s counsel could have filed a certificate indicating he was unable to receive the support of an expert despite diligent efforts and the case would have been allowed to proceed.  Plaintiff’s counsel would not have EVER been required to thereafter file a certificate of merit.  How does this further the intended purpose of the statute – to cut down on meritless cases?

This is a puzzling ruling  as it seems to require strict adherence to the statute rather than interpreting the intent of the statute.  Clearly, the plaintiff’s counsel found support for the filing of this case, albeit beyond the arbitrary 60 days.  The Court dismissed the case as a result of this technicality and not on the merits of the plaintiff’s case.  This ruling unfairly prejudiced the plaintiff by dismissing his case despite showing that his case ultimately had the merit required for its filing.

Mr. Serrano has been admitted to practice before California State and Federal Courts. He was named to the Super Lawyers’ 2012, 2013, 2014, 2015, and 2016 Southern California Rising Stars List, an honor awarded to no more than 2.5% of attorneys in Southern California each year.
View Attorney Jean-Simon Serrano’s Attorney Bio Here.

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