Tuesday, October 24, 2017
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‘Certificate of Merit’ Filed With Amended Pleading Doesn’t Relate Back to Original Filing—C.A.
By a MetNews Staff Writer
A “certificate of merit” filed in a professional negligence case contemporaneously with an amended complaint did not relate back to the filing of the original complaint, the Fourth District Court of Appeal held yesterday, ordering the trial court to grant a demurrer to the new pleading without leave to amend.
Justice Gilbert Nares wrote the opinion which announces the granting of a writ of mandate, effectively terminating an action by crane operator George R. Sutherland. He sued for personal injuries incurred in an industrial accident he attributes to professional negligence of an engineer.
Code of Civil Procedure §411.35 requires a certificate by the plaintiff’s attorney in such a case that he or she consulted with experts in the field to determine merit before bringing the action. Sutherland sued on May 3, 2016 without filing a certificate on the date of service of the complaint or earlier, as generally required.
The certificate he filed six months later along with an amended pleading, Nares said, did not count.
He wrote:
“Sutherland has not cited, and we have not found, any cases supporting the proposition that the relation-back doctrine applies to a certificate which, by statute, is required to be filed ‘on or before the date of service’ of the original complaint….Applying 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.’ ”
The jurist noted that §411.35 provides an exception to filing of a certificate “on or before the date of service”: where the attorney files an “excuse certificate” declaring that consultation could not be obtained before expiration of the time bar on the action.
Nares said that Sutherland filed no such certificate and, even if he had, a certificate of merit would have to have been filed, under the statute, within six months of the filing of the original complaint, and wasn’t.
“[A]pplying 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,” Nares wrote. “This cannot be what the Legislature intended.”
The case is Curtis Engineering Corporation v. Superior Court, D072046.
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