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By John W. Ralls
Howrey LLP
A
commercial landlord sued her tenant to recover the cost
of environmental remediation. The landlord's claims were
dismissed during trial because she was unable to prove by
admissible expert testimony that the tenant was responsible
for the contamination. The landlord then sued her environmental
consultants for professional negligence.
California
Code of Civil Procedure §411.35 provides (emphasis
added): "In every action… arising out of the professional
negligence of a person holding a valid architect's certificate…
or of a person holding a valid registration as a professional
engineer… or a person holding a valid land surveyor's
license… on or before the date of service of the
complaint or cross-complaint on any defendant or cross-defendant,
the attorney for the plaintiff or cross-complainant shall
file and serve the certificate specified by subdivision
(b)… [which] certificate shall be executed by the
attorney for the plaintiff or cross-complainant…."
After
the environmental consultants filed demurrers to the original
complaint, the landlord filed a certificate of merit, followed
by a first amended complaint. The landlord signed the certificate
of merit herself as "Plaintiff in Propria Persona."
An attorney "specially appearing" signed the first
amended complaint. The environmental consultants took the
position that because the landlord failed to file the certificate
of merit before service of the original complaint, the action
should be dismissed. The trial court agreed, sustaining
the demurrers without leave to amend. The Court of Appeal
reversed, finding that the demurrer should have been sustained
but not without leave to amend. Price v. Dames &
Moore, 92 Cal.App.4th 355, 112 Cal.Rptr.2d 65 (2001).
"The
statute does not provide that failure to file a certificate
requires dismissal. It declares that failure to file a certificate
is a ground for demurrer or motion to strike, both procedures
in which leave to amend is routinely and liberally granted
to give the plaintiff a chance to cure the defect in question….
[B]y granting leave to file an amended complaint the court
can give the plaintiff an opportunity to fully comply with
the statutory requirements for filing a certificate of merit."
The
court found that because the landlord's attorney signed
the first amended complaint, he also should have signed
the certificate of merit. The court concluded that leave
to amend should be granted because there was a reasonable
possibility that the plaintiff would be able to file a proper
certificate. "Whether [plaintiff] succeeds in finding
other counsel or will be representing herself as she did
at the demurrer hearing, her… declaration that she
had already obtained the opinion required for a certificate
of merit is a sufficient showing of her ability to file
a proper certificate before serving a second amended complaint."
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For more information about the issues covered in this report, please contact John Ralls in our San Francisco office at 415-848-3362 or at rallsj@howrey.com or contact your Howrey attorney. For more information about Howrey's Construction Practice Group, click here.
©2002 Howrey LLP
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