Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This case arises from a trip and fall.  Plaintiff Marion Zola alleges she tripped and fell while trying to exit an elevated booth at Javier’s restaurant, located at the Westfield Shopping Mall, 10250 Santa Monica Blvd., Ste. # 1005, in Los Angeles, California.  (Compl. ¶ 5.) 

Plaintiff filed her original Complaint on May 17, 2023. On September 26, 2024, Plaintiff amended her Complaint, naming Defendant AAD Fitch, Inc. (“Moving Defendant”) as DOE 1.  Plaintiff’s Complaint alleges two causes of action against all Defendants, including AAD Fitch, for (1) negligence, and (2) premises liability.  (Compl. ¶¶ 8-19.)   

The Complaint alleges design deficiencies at Javier’s.  The Complaint states that “DEFENDANTS [including AAD Fitch] . . . negligently . . . failed . . . to use a safer or more standard design of a handrail or clear markings for the step down” at the booth where Plaintiff alleges she fell.  (Compl. ¶ 11.)  

Moving Defendant provided “professional design and architectural services” for Javier’s restaurant.  (Ex. A to Fordyce Decl.)  Plaintiff alleges that she suffered injuries as a result of the professional services provided by Moving Defendant.  (Compl. ¶¶ 7, 13, 14, 16, 18, 19.)   

This hearing is on Moving Defendant’s demurrer to the Complaint.  Moving Defendant argues that Plaintiff failed to serve or file a Certificate of Merit as required by Code Civ. Proc. 411.35.  There was no opposition filed as of the posting of this tentative ruling.  Plaintiff did file a Statement of Non-Opposition filed by Plaintiff, in which Plaintiff states that she “does not necessarily oppose the Demurrer.”  And Moving Defendant filed a Response to Plaintiff’s Notice of Non-Opposition. 

MEET AND CONFER 

Code Civ. Proc. § 430.41 requires that before the filing of a demurrer the moving party “shall meet and confer in person or by telephone” with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.  (Code Civ. Proc., § 430.41(a).)  The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41(a)(2).)  Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41(a)(3).)  Defendant submits the Declaration of Niall Fordyce which attests the parties spoke on October 29, November 15 and November 18 regarding the alleged deficiencies raised in this demurrer.  (Fordyce Decl. ¶5.)  This satisfies the meet and confer requirements of § 430.41.    

LEGAL STANDARD 

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable.  (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents).)  For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)  

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”).)  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)   

DISCUSSION 

Defendant argues that the Complaint is defective as a matter of law because Plaintiff failed to obtain a Certificate of Merit, as required by Code Civ. Proc. § 411.35.  The Court agrees. 

Section 411.35 requires that in every action arising out of the professional negligence of a person holding a valid certificate’s license, the plaintiff shall file and serve the certificate specified by subdivision (b), on or before the date of service of the complaint.  Subdivision (b) requires that the certificate declare (1) that the attorney has reviewed the facts of the case and has consulted with at least one architect and has concluded on the basis of the review and consultation that there is reasonable and meritorious basis for the filing of the action; (2) that the attorney was unable to obtain the consultation because a statute of limitations would impair the action and that the certificate could not be obtained before the limitations period had run; or (3) that the attorney was unable to obtain the consultation because the attorney had made three separate good faith attempts to obtain the consultation and none of those contacted would agree to the consultation.  Section 411.35 subdivision (g) provides that the failure to file a certificate in accordance with this section shall be grounds for demurrer pursuant to Section 430.10 or a motion to strike pursuant to Section 435.  

The language in the Complaint clearly implicates Moving Defendant’s design of the booth at Javier’s.  (Compl. ¶¶ 16 and 17.)  California law is clear that in such circumstances, where a plaintiff sues a design professional such as an architect for professional negligence, on or before the date of service of the complaint, the attorney for the plaintiff shall file and serve a certificate that the attorney has consulted with and received an opinion from at least one architect (who is properly qualified to render such an opinion and who the attorney reasonably believes in knowledgeable in the relevant issues in the action) and has concluded on the basis of that review and consultation that there is reasonable and meritorious basis for filing the action. (Code of Civ. Proc. § 411.35(a) and (b).)  

There are only two exceptions to this requirement, neither of which apply here. The attorney may submit a declaration on or before the date of service of the complaint stating that the attorney has made three separate good faith attempts with three separate architects, none of whom would agree to the consultation.  (Code of Civ. Proc. § 411.35(b)(3).) There is no indication that this is the case here.  

The other exception is that the attorney may submit a declaration on or before the date of service of the complaint that the attorney was unable to obtain the consultation required as set forth above because a statute of limitations “would impair the action” and that the certificate required could not be obtained before the impairment of the action.  (Id. at § 411.35(b)(2).)  If the action would be “impaired”, the Certificate of Merit must be filed within 60 days after filing the complaint. Again, there is no indication that this exception is applicable here, and no Certificate of Merit was filed “within 60 days after filing the complaint.” (Code of Civ. Proc. § 411.35(b)(2).)  

In sum, Plaintiff’s Complaint as against Moving Defendant does not comply with Code Civ. Proc. § 411.35 and is subject to demurrer.  Further, Plaintiff cannot cure the failure to comply with Code Civ. Proc. § 411.35, which requires the certificate of merit to be filed no later than 60 days after the original complaint.  (Curtis Engineering Corp. v. Superior Court (2017) 16 Cal.App.5th 542, 548-550 (allowing a certificate of merit to be filed more than 60 days after the original complaint would “render meaningless” the statutory requirement that a late certificate of merit be filed within 60 days after filing the complaint).)   Accordingly, the Court sustains the demurrer without leave to amend.  

Moving Defendant originally sought attorneys’ fees, but according to Moving Defendant’s Response to Plaintiff’s Notice of Non-Opposition, it has withdrawn that request.  

CONCLUSION 

For the foregoing reasons, the Court SUSTAINS the demurrer to the Complaint without leave to amend.   

  

DATED:  February 4, 2025 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court