Calhoun v. Roca CA6
H048414
| Cal. Ct. App. | May 9, 2022Background
- Calhoun hired Roca, a licensed structural engineer, to prepare structural plans for a custom residence; contractor discovered ceiling/ floor defects in May 2017.
- On May 26, 2017, Roca told Calhoun he acknowledged defects and proposed a fix; Calhoun said he would refer the matter to counsel.
- Roca later denied error (May 30, 2017); Calhoun retained engineer Brian Olson, whose report of July 18, 2017 concluded Roca’s calculations were erroneous.
- Calhoun sued on March 7, 2018 but his original complaint lacked the certificate of merit required by Code Civ. Proc. § 411.35; a certificate was filed with a first amended complaint on July 3, 2019.
- Trial court sustained Roca’s demurrer without leave to amend, holding the malpractice claim accrued no later than May 26, 2017, the § 411.35 certificate was untimely, and the defect could not be cured; Calhoun appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the original complaint satisfied § 411.35 "in substance" | Calhoun: paragraphs in original complaint contained the essentials of a certificate of merit and substance should control over form | Roca: the complaint lacked statutory elements (attorney consultation and expert opinion) required by § 411.35(b)(1) | Court: The original complaint did not satisfy § 411.35; paragraphs cited lacked the specific consultation/opinion requirements, so certificate was missing |
| Proper accrual date for statute of limitations (May 26, 2017 vs July 18, 2017) | Calhoun: accrual occurred July 18, 2017 when Olson’s report definitively confirmed error, so the July 3, 2019 certificate was timely | Roca: accrual occurred by May 26, 2017 when contractor reported defects and Roca admitted responsibility; plaintiff had presumptive notice then | Court: Accrual was May 26, 2017 (presumptive knowledge); statute expired before July 3, 2019, so certificate was untimely |
| Equitable estoppel to bar statute-of-limitations defense | Calhoun: lengthy settlement communications and agreed extensions with defense counsel estop Roca from asserting limitations | Roca: counsel told plaintiff’s counsel in April 2018 that a certificate was required; no misrepresentation of fact or promise to waive limitations; plaintiff represented by counsel who should know law | Court: No estoppel — negotiations between counsel and extensions alone, without factual misrepresentations, do not reasonably justify tolling; plaintiff’s counsel could have researched the law |
| Fraudulent concealment tolling limitations | Calhoun: Roca’s May 30 denial of error concealed reality until Olson’s July 18 report, tolling the period | Roca: denial of liability is not affirmative concealment; plaintiff had notice and opportunity to investigate by May 26 and retained an engineer | Court: No fraudulent concealment — plaintiff was on notice by May 26; there was no allegation Roca took affirmative steps to prevent discovery |
Key Cases Cited
- Curtis Engineering Corp. v. Superior Court, 16 Cal.App.5th 542 (certificate-of-merit requirement cannot be cured after the limitations period)
- Aryeh v. Canon Business Solutions, Inc., 55 Cal.4th 1185 (standards for reviewing demurrer and equitable exceptions to limitations)
- Price v. Dames & Moore, 92 Cal.App.4th 355 (statute of limitations in professional negligence governed by discovery and appreciable harm)
- McCoy v. Gustafson, 180 Cal.App.4th 56 (presumptive knowledge starts statute-running; expert confirmation not required to start accrual)
- Jackson v. Doe, 192 Cal.App.4th 742 (certificate requirements are mandatory; merits of claim do not excuse noncompliance)
- Pashley v. Pacific Electric Railway Co., 25 Cal.2d 226 (fraudulent concealment tolling requires affirmative acts intended to prevent plaintiff from suing)