Understanding the Details: Suing Architects and Engineers Can Get Technical

Before suing an architect or engineer for professional negligence, a plaintiff must obtain a “certificate of merit” (“Certificate”) under Code of Civil Procedure section 411.35. Boiled down to the basics, the Certificate declares that the attorney consulted with and received an opinion from an expert that a reasonable and meritorious case exists against said design professional. The Certificate must be filed before serving the complaint on any defendant, but can be filed within 60 days under certain circumstances. This rule was recently analyzed against another long-standing rule in California, known as the “relation-back doctrine.” Under the relation-back doctrine, a court will deem a later-filed pleading, such as an amended complaint, to be deemed filed at the time of an earlier complaint.

In Curtis Engineering Corp. v. Superior Court of San Diego County, No. D072046, (Cal. Ct. App. 10/23/17), the Fourth Appellate Court considered the interplay between section 411.35 and the relation-back doctrine, holding that a Certificate filed more than 60 days after filing the original pleading does not relate back to the filing of the original pleading.

On May 5, 2014, Plaintiff George R. Sutherland (“Sutherland”), a crane operator, was injured when his crane tipped over. On May 3, 2016, Sutherland filed his complaint for negligence against Curtis Engineering Corporation (“Curtis”), a provider of engineering services. Sutherland’s original complaint did not include a Certificate. On December 1, 2016, Sutherland filed and served a first amended complaint which included a Certificate. The only change to the amended complaint was the addition of two paragraphs stating that: (1) a Certificate is attached as an exhibit and incorporated by reference; and (2) a claim was sent to the defendant Oregon State University.

Curtis demurred to the amended complaint, arguing, among other things, that Sutherland failed to file the required Certificate within the two-year statute of limitations time period. The trial court overruled the demurrer. Curtis filed a petition seeking an immediate stay of all proceedings and a peremptory writ of mandate directing the trial court to set aside and vacate its order overruling the demurrer and to enter a new order sustaining the demurrer.

On appeal, the Fourth Appellate District parsed the plain language of section 411.35 to determine whether Sutherland’s failure to timely file the Certificate mandated by section 411.35 required the demurrer to be sustained as a matter of law. In rejecting Sutherland’s argument that the relation-back doctrine should apply, the Court of Appeal determined that permitting the relation-back doctrine to apply in this situation would render meaningless the statutory requirement that the Certificate be filed on or before the date of service or within 60 days in some circumstances. The Court of Appeal found that permitting the relation-back doctrine to apply, would render section 411.35 meaningless, a result the Legislature likely did not intend.

This opinion is important for parties considering legal actions against design professionals because it makes clear that the relation-back doctrine does not permit an end-run around the requirements of section 411.35. The moral of the story is that claims covered by section 411.35 require utmost diligence at the front end and cannot be saved by a late-filed Certificate.

This document is intended to provide you with information about construction law related developments. The contents of this document are not intended to provide specific legal advice.  This communication may be considered advertising in some jurisdictions.


October 27, 2017