Background and Summary
On May 5, 2014, George Sutherland sustained injuries when, while working as a crane operator, his crane became unstable and fell over. Sutherland brought an action almost exactly two years later, on May 3, 2016. His complaint alleged a cause of action for negligence against defendant Curtis Engineering Corporation. Curtis Engineering Co. provided engineering services to Sutherland’s project and at the worksite where Sutherland’s crane tipped over. When filing his complaint, Sutherland failed to include the certificate of merit required by California Code of Civil Procedure section 411.35(a) and (b), a prerequisite to bringing an action against architects, engineers and many other types of professionals in California.
Approximately six months later, Sutherland filed and served an amended complaint containing the statutory certificate, certifying the merit of his claims against Curtis Engineering. The original and amended pleadings were identical in every respect beyond minor references contained in the amended complaint. The amended complaint (a) referred to the now-attached and incorporated by reference certificate and (b) included a further reference indicating notice of the claim had been provided to defendant Oregon State University.
Curtis engineering demurred to the amended complaint on the grounds that Sutherland failed to file the requisite certificate within before the statute of limitations ran on his claim against the engineering firm. The trial court overruled the demurrer. In reaching its decision, the trial court concluded that the amended pleading “related back” to the date of filing of the original, an nearly identical initial complaint. Curtis Engineering appealed. The appellate court ruled that a certificate of merit filed beyond the conclusion of applicable limitations period, and more than 60 days after the initial pleading, could not “relate back” to the date Sutherland filed his original pleading.
Certificate of Merit Requirement
Generally, plaintiff’s attorneys prepare the certificate of merit. The document serves as an exhibit to a complaint for professional negligence. It simply contains the attorneys’ declaration that he/she consulted with an expert in the same discipline as the proposed defendant(s), and the expert concluded that her client’s claim(s) against the professional has merit. Code of Civil Procedure section 411.35 (b)(1) requires the attorney file and serve the certificate of merit on or before service of the summons and complaint.
As with Sutherland’s claim, professional negligence claims often times have as short as a 2-year statute of limitations. For this reason, Code of Civil Procedure section 411.35 (b)(2) provides a 60-day grace period to file the certificate of merit, where not filing a statute of limitations problem would “impair” the client’s case if the attorney took additional time to obtain the mandatory consultation. Under these circumstances, Code of Civil Procedure section 411.35 (b)(2) allows plaintiff’s attorneys to file the complaint, preserve the statute of limitations, and file and serve the certificate of merit within 60 days, assuming all other statutory perquisites are met. Additionally, but not relevant in Sutherland’s case, Code of Civil Procedure section 411.35 (b)(3) provides for an additional “excuse” to not filing a certificate of merit where at least three separate professionals are consulted but will attest that the allegedly negligent professional’s work fell below the applicable standard of care.
The Court of Appeals’ Rationale in Finding the Late Certificate Fatal to Sutherland’s Case
The Court of Appeals found that the trial court erred when it overruled a demurrer alleging noncompliance with the certificate requirement of section 411.35. Accordingly, the Court granted the petition for writ of mandate. On appeal, Sutherland argued that the certificate of merit should relate back to the filing of his original pleading (May 3, 2016). The doctrine of a pleading “relating back” to a prior-filed document for statute of limitations purposes is most typically applied when later-discovered Doe defendants are named, often years, after a complaint is filed. This allows a plaintiff to utilize discovery to find and serve all appropriate defendants.
The Court of Appeals disagreed. It found that the plain language of section 411.35 prevented it from applying the doctrine to relate-back Sutherland’s later-filed certificate of merit to his earlier filed Complaint. In so ruling, the Court explained that “[a]pplying the relation-back doctrine in this situation would render meaningless the statutory requirement that the certificate be filed ‘on or before the date of service.’” It reversed the trial court’s decision, finding that Curtis Engineering’s demurrer must be sustained without leave to amend because Sutherland failed to file the required certificate of merit within the 60-day period set forth Code of Civil Procedure section 411.35(b)(2) or within the statutory limitations period. Because there was now no way for Sutherland to cure this defect, the Court ordered his suit dismissed. The court made its ruling on the grounds that the statute of limitations ran before plaintiff filed the certificate of merit, a necessary prerequisite to bringing his claim.
Considering the matter further, the appellate court also explained that the Section 411.35(b)(2) exception, allowing for the filing of a certificate of merit within 60 days of the filing of the complaint, could only apply when a party (a) actually files the 60-day “excuse certificate.” While Sutherland filed no such certificate, the appellate court reasoned that, even if he had, he would have been required to do so both within the 60-day period of time allowing for such a certificate and before the statute of limitations ran on his claim.
The Court’s ruling gives good reason for defense attorneys to carefully examine the statute of limitations applicable to claims brought against their client, the timely filing of a valid certificate of merit, and the potential application of one of the substitute certificates the Code of Civil Procedure allows plaintiffs’ attorneys to file under. In a case where a plaintiff fails to meet both requirements within the applicable period of repose, defendant attorneys may be able to apply this dispositive affirmative defense.