Curtis Eng'g Corp. v. Superior Court of San Diego Cnty.
16 Cal. App. 5th 542
| Cal. Ct. App. 5th | 2017Background
- Plaintiff George R. Sutherland sued Curtis Engineering for professional negligence after a 2014 crane accident; original complaint filed May 3, 2016.
- Code Civ. Proc. § 411.35 requires a plaintiff's attorney to file a certificate of merit "on or before the date of service" of the complaint; an "excuse" certificate under § 411.35(b)(2) allows a 60‑day extension to file the merit certificate if the statute of limitations would otherwise bar consultation.
- Sutherland did not file any certificate with his May 3, 2016 original complaint.
- On December 1, 2016—after the two‑year statute of limitations and the 60‑day § 411.35(b)(2) extension had expired—Sutherland filed an amended complaint that was substantively the same as the original but attached a certificate of merit.
- Curtis demurred for failure to comply with § 411.35; the trial court overruled the demurrer, concluding the December 1 filing related back to the original complaint.
- The Court of Appeal granted writ relief, holding the late certificate could not relate back and ordering the demurrer sustained without leave to amend.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a certificate of merit filed after the statute of limitations and more than 60 days after the original complaint may "relate back" to cure § 411.35(a)/(b) noncompliance | Sutherland: the amended complaint (with certificate) relates back because it is the same as the original; relation‑back should apply to avoid dismissal for a technical defect | Curtis: statute requires filing the certificate "on or before" service and, alternatively, filing the merit certificate within 60 days if (b)(2) excuse invoked; late filing cannot relate back | Court: relation‑back does not apply; statute's plain language and (b)(2) 60‑day rule bar curing a certificate filed after those deadlines; demurrer sustained without leave to amend |
| Whether leave to amend should be allowed to add the missing certificate allegation after the fact | Sutherland: omission was an attorney oversight; amendment would be technical and curable | Curtis: failure is substantive and time‑barred; plaintiff bears burden to show reasonable possibility amendment cures defect | Court: plaintiff forfeited late argument; even on merits plaintiff did not show a reasonable possibility amendment could cure the statutorily mandated, timely‑filed certificate; no leave to amend |
Key Cases Cited
- Norgart v. Upjohn Co., 21 Cal.4th 383 (same general‑facts relation‑back test for amended complaints)
- Doyle v. Fenster, 47 Cal.App.4th 1701 (late certificates held untimely when no statutory excuse filed)
- McVeigh v. Doe 1, 138 Cal.App.4th 898 (interpreting a similar 60‑day excuse provision; distinguished because plaintiff there filed within 60 days)
- Price v. Dames & Moore, 92 Cal.App.4th 355 (defective but timely certificate cured by amendment; does not permit curing an untimely certificate)
- Barrington v. A.H. Robins Co., 39 Cal.3d 146 (statute‑of‑limitations and relation‑back principles)
- Austin v. Massachusetts Bonding & Ins. Co., 56 Cal.2d 596 (relation‑back doctrine general principles)
- Dyna‑Med, Inc. v. Fair Employment & Housing Com., 43 Cal.3d 1379 (statutory‑construction principle: avoid rendering words surplusage)