Judge Kenneth J. Medel, Case 37-2022-00033174-CU-OR-CTL 2024-01-05 Tentative Ruling

Judge: Kenneth J. Medel, Case: 37-2022-00033174-CU-OR-CTL, Date: 2024-01-05 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - January 03, 2024

01/05/2024 09:30:00 AM C-66 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Kenneth J Medel

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Civil - Unlimited Other Real Property Motion Hearing (Civil) 37-2022-00033174-CU-OR-CTL DOYLE VS EARTH TEK CONSTRUCTION INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Leave to Amend, 12/01/2023

The Court GRANTS Plaintiff's Motion for Leave to File a Second Amended Complaint. Plaintiff is to file the Second Amended Complaint within 5 days of this ruling.

The Demurrer to the First Amended Complaint is moot in light of this ruling.

While this ruling would not foreclose a demurrer to the Second Amended Complaint, the Court provides the following advisory opinion to assist the parties.

The demurrer to the FAC is based upon the failure to identify any allegations against the engineers. That is cured in the SAC.

The demurrer to the FAC also argues that plaintiff failed to timely file a Certificate of Merit. Miraftab is a professional engineer. Plaintiff amended her complaint to substitute Miraftab in place of a Doe defendant on June 6, 2023. Plaintiff to file and serve a 'certificate of merit' supporting her professional negligence claim against Miraftab either at or prior to the date she served him with summons on July 11, 2023, or within 60 days of naming him as a party to this suit, as required by Code of Civil Procedure Section 411.35. Instead, Plaintiff delayed filing the required certificate until November 29, 2023. Because Plaintiff did not file her certificate within the timeframe required by Section 411.35, Defendant argues the filing of the certificate does not relate back to the filing of the complaint, and the timeliness of Plaintiff's suit is measured against the date the certificate was ultimately filed. (Curtis Engineering Corp. v. Sup. Ct.

(2017) 16 Cal.App.5th 542, 551.) In Curtis, the plaintiff attempted to amend a complaint – after the statute of limitations for the claim had passed and 60 days had passed since the filing of the original complaint – seeking to 'relate back' a CCP § 411.35 certificate to the original filing date of the complaint before the statute of limitations had expired. (Id. at p. 549.) The appellate court in Curtis found that the failure to file a certificate (1) was grounds for demurrer; and (2) did not relate back to the original filing of the complaint in that case. (Id. at p. 548.) Here, distinguished from Curtis, this case is being amended within the limitations period – at least as alleged in the SAC.

Nothing in Code of Civil Procedure section 411.35 requires dismissal of a complaint for the failure to file an attorney certificate. And nothing in the section negates the usual rule of liberality to provide leave to amend. (Id at pp. 359-360 ['[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.'].) Code of Civil Procedure § 411.35] 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.

This is supported by the language of Code of Civil Procedure section 411.35, subdivision (b)(2): 'That the attorney was unable to obtain the consultation required by paragraph (1) because a statute of Calendar No.: Event ID: TENTATIVE RULINGS

3064345 CASE NUMBER: CASE TITLE: DOYLE VS EARTH TEK CONSTRUCTION INC [IMAGED] 37-2022-00033174-CU-OR-CTL limitations would impair the action and that the certificate required by paragraph (1) could not be obtained before the impairment of the action. If a certificate is executed pursuant to this paragraph, the certificate required by paragraph (1) shall be filed within 60 days after filing the complaint.' At least as alleged in the SAC, this is not a case where the statute of limitations forced plaintiff's attorney to file prior to obtaining a certificate of merit, which triggered section 411.35(b)(2) and a 'relation back' problem.

The SAC alleges the following with respect to timing.

38. During the course of litigation, Doyle took the deposition of Earth Tek's principal Paris Dawson on June 2, 2023. Mr. Dawson revealed that the Engineers knew or should have known that the retaining wall for planned for the Doyle Project was not feasible and would not be approved by City.

39. In fact, Mr. Dawson further revealed that the unsuitable design and plan was submitted based on a topographical survey, wall layout, and plan for development prepared by Harrison and reviewed and approved by Engineers.

40. Upon information and belief, during the relevant time period, Engineers did not inform Doyle of the unfeasibility of critical components of the Doyle Project, Engineers never sufficiently or reasonably responded or corrected City of San Diego reviewer comments and demanded corrections, and no reasonable engineer would submit such a design and plan for development to the City and then never act on it for years to see it through.

41. Then, to make matters worse, Mr. Dawson revealed that he and the Engineers changed the entire breadth and purpose of Doyle's to be a 'demolition only' plan with no plan or project for any backyard improvements, and they did so without advising Doyle of the change that was substantially inconsistent with the Doyle Project.

A claim of professional negligence is generally governed by the two-year statute of limitations under Code of Civil Procedure section 339, subdivision (1). (Cyr v. McGovran, (2012) 206 Cal.App.4th 645, 651.) Doyle's proposed SAC alleges discovery of liability of Miraftab on June 2, 2023. (SAC ¶ 38.) 'The discovery rule postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action.' (E-Fab, Inc. v. Accts., Inc. Servs., (2007) 153 Cal.App.4th 1308, 1318, internal quotations omitted.) The allegations in the SAC would seem to be sufficient to invoke the discovery rule for purposes of pleading and would require the Court to overrule any demurrer to the pleading.

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