Judge: Mark H. Epstein, Case: 23SMCV00120, Date: 2024-06-14 Tentative Ruling

Case Number: 23SMCV00120    Hearing Date: June 14, 2024    Dept: I

This is a discovery motion.  Cross-defendant Fenske moves to compel further responses against cross-complainants.  In a late-filed opposition, new counsel for the opposing party suggests that the papers were not served on him even though he had told Fenske (who is self-represented) that he represented cross-complainants and that he ought to be served, not them.  That is of concern. 

Of greater concern, though, is that it is not clear that cross-complainants have complied with Code of civil procedure section 411.35, subdivision (a), which requires that in an action for professional negligence by a licensed architect, the cross-complainant first obtain a certificate of merit.  The court did not see one attached to the cross-complaint or alleged therein.  Until and unless cross-complainants produce such a certificate—timely obtained—their cross-action cannot go forward in this respect.  And, in fact, that was much of the point of the discovery at issue.

Therefore, on the court’s own motion, the cross-complaint against Fenske is STAYED pending the filing by cross-complainants of the required timely-obtained certificate.  Notwithstanding the stay, Fenske may file an appropriate motion to dismiss the action on this basis.  Of course, if cross-complainants submit the certificate, the stay will be lifted without further order.  Similarly, cross-complainants may move to lift the stay if they believe that they have a legal basis to do so.

This stay does not affect any other aspect of the case.