Judge: Serena R. Murillo, Case: 21STCV31849, Date: 2023-05-02 Tentative Ruling
Case Number: 21STCV31849 Hearing Date: May 2, 2023 Dept: 29
TENTATIVE
Defendant Tait & Associates, Inc.’s demurrer to the First Amended Complaint is
OVERRULED.
Legal
Standard
A demurrer for
sufficiency tests whether the complaint states a cause of action. (Hahn
v. Mirda (2007) 147 Cal. App. 4th 740, 747.)
When considering demurrers, courts read the allegations liberally and in
context. Taylor v. City of Los Angeles Dept. of Water and Power,
144 Cal. App. 4th 1216, 1228 (2006). The court “treat[s] the demurrer as
admitting all material facts properly pleaded, but not contentions, deductions
or conclusions of fact or law ….” (Berkley v. Dowds (2007) 152
Cal. App. 4th 518, 525.) In a demurrer proceeding, the defects must be apparent
on the face of the pleading or via proper judicial notice. (Donabedian
v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994.) A demurrer tests
the pleadings alone and not the evidence or other extrinsic matters; therefore,
it lies only where the defects appear on the face of the pleading or are
judicially noticed. (Code Civ. Proc. §§ 430.30, 430.70.) The only
issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected
with extraneous matters, states a cause of action. (Hahn, 147 Cal.
App. 4th at 747.)
On demurrer, a
trial court has an independent duty to “determine whether or not the …
complaint alleges facts sufficient to state a cause of action under any legal
theory.” (Das v. Bank of America, N.A. (2010) 186 Cal. App. 4th
727, 734.) Demurrers do not lie as to only parts of causes of action, where
some valid claim is alleged but “must dispose of an entire cause of action to
be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.
App. 4th 97, 119.) “Generally, it is an abuse of discretion to sustain a
demurrer without leave to amend if there is any reasonable possibility that the
defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18
Cal. 3d 335, 349.)
Discussion
I.
Meet and Confer
The
demurrer is accompanied by the declaration of Andrew C. Harris, which satisfies
the meet and confer requirements. (Code Civ. Proc. § 430.41(a).)
II.
Failure to State Sufficient Facts and Uncertainty
Defendant first argues that claims against
design professionals for professional negligence have additional pleading
requirements from other negligence claims, which Plaintiff’s First Amended
Complaint fails to satisfy.
The elements of a cause of action in tort for professional
negligence are “(1) the duty of the professional to use such skill, prudence,
and diligence as other members of his profession commonly possess and exercise;
(2) a breach of that duty; (3) a proximate causal connection between the negligent
conduct and the resulting injury; and (4) actual loss or damage resulting from
the professional’s negligence.” (Budd v. Nixen (1971)
6 Cal. 3d 195, 200; Carlton v. Quint (2000)
77 Cal.App.4th 690, 699.)
Defendant argues that in order to state a
claim against a design professional, there must be factual allegations that the
professional’s design was implemented. If the design was not followed, the
design cannot not be a cause of the alleged injuries as it would not be in the
causal chain of any alleged injuries. However, Defendant has not provided any
authority for that proposition. The general rule is
that the plaintiff need only allege ultimate facts, not evidentiary
facts. (Doe v. City of Los Angeles (2007) 42 Cal. 4th 531,
550.) “All that is required of a plaintiff, as a matter of pleading … is
that his complaint set forth the essential facts of the case with reasonable
precision and with sufficient particularity to acquaint the defendant with the
nature, source and extent of his cause of action.” (Rannard v.
Lockheed Aircraft Corp. (1945) 26 Cal. 2d 149, 156-57.)
The FAC alleges that: “Defendants ...
and/or their management, administrators, designers, developers, planners,
engineers, maintenance personnel, inspectors and/or other employees,
principals, staff, agents, contractors, or subcontractors, acting within the
course and scope of their agency and/or their employment relationship so
negligently, carelessly, unskillfully, unlawfully, tortuously, and/or
wrongfully owned, possessed, maintained, operated, supervised, managed,
entrusted, repaired, monitored, designed, constructed, and/or controlled the
curb-ramp to allow the same to be in such a condition that plaintiff and other
invitees would and could become injured while lawfully using the curb-ramp and
thereby exposing persons to the unreasonable risk of harm.” (See, FAC, page 6.)
The Court finds Plaintiff has stated sufficient facts to constitute a cause of
action for professional negligence or general negligence, and thus, the
demurrer is overruled.
Defendant also
argues that the FAC does not allege which defendant provided which services,
and does not allege which design professional designed the curb-ramp at issue,
making it uncertain, vague and ambiguous. Demurrers
for uncertainty are strictly construed, because discovery can be used for
clarification, and apply where defendants cannot reasonably determine what
issues or claims are stated. (Khoury v. Maly’s of Cal., Inc. (1993) 14
Cal.App.4th 612, 616; Weil & Brown, Civ. Pro. Before Trial (The Rutter
Group 2011) ¶¶7:85-7:86.) “A demurrer for uncertainty will not lie where the
ambiguous facts alleged are presumptively within the knowledge of the demurring
party.” (Bacon v. Wahrhaftig (1950) 97 Cal.App.2d 599, 605.) As these
facts can be ascertained during discovery, and because Defendant knows which
ramp it designed, the demurrer for uncertainty is overruled.
III. Certificate of Merit under CCP section 411.35
Defendant argues the
claims in the FAC are improper against it because Plaintiff failed to file a
Certificate of Merit in accordance with C.C.P. §411.35.
C.C.P. §411.35(a)
provides: “In every action, including a cross–complaint for damages or
indemnity, arising out of the professional negligence of a person holding a
valid architect’s certificate issued pursuant to Chapter 3 (commencing with
Section 5500) of Division 3 of the Business and Professions Code, or of a
person holding a valid registration as a professional engineer issued pursuant
to Chapter 7 (commencing with Section 6700) of Division 3 of the Business and
Professions Code, or a person holding a valid land surveyor’s license issued
pursuant to Chapter 15 (commencing with Section 8700) of Division 3 of the
Business and Professions Code on or before the date of service of the complaint or cross–complaint on any
defendant or cross–defendant, the attorney for the plaintiff or
cross–complainant shall file and serve the certificate specified by subdivision
(b).” (Emphasis Added.)
C.C.P. §411.35(b)
provides:
A certificate shall be executed by the attorney for the plaintiff
or cross–complainant declaring one of the following:
(1) That the attorney has reviewed the facts of the case, that the
attorney has consulted with and received an opinion from at least one
architect, professional engineer, or land surveyor who is licensed to practice
and practices in this state or any other state, or who teaches at an accredited
college or university and is licensed to practice in this state or any other state,
in the same discipline as the defendant or cross–defendant and who the attorney
reasonably believes is knowledgeable in the relevant issues involved in the
particular action, and that the attorney has concluded on the basis of this
review and consultation that there is reasonable and meritorious cause for the
filing of this action. The person consulted may not be a party to the
litigation. The person consulted shall render his or her opinion that the named
defendant or cross–defendant was negligent or was not negligent in the
performance of the applicable professional services.
(2) That the attorney was unable to obtain the consultation
required by paragraph (1) because a statute of 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.
(3) That the attorney was unable to obtain the consultation
required by paragraph (1) because the attorney had made three separate good
faith attempts with three separate architects, professional engineers, or land
surveyors to obtain this consultation and none of those contacted would agree
to the consultation.
CCP § 411.35(c)
states, “Where a certificate is required pursuant to this section, only one
certificate shall be filed, notwithstanding that multiple defendants have been
named in the complaint or may be named at a later time.”
C.C.P.
§411.35(g) provides the “failure to file a certificate in accordance with this
section shall be grounds for a demurrer pursuant to Section 430.10 or a motion
to strike pursuant to Section 435.”
Here, the allegations
in the FAC suggest Plaintiff complied with C.C.P. §411.35. Plaintiff filed the
complaint on August 27, 2021. Plaintiff filed an Amendment to Complaint on June
20, 2022, identifying Defendant as DOE 3. A Certificate of Merit was filed on
May 26, 2022, by Cross-Complainant MPRP Tract 3 (MPRP). On September 30, 2022,
MPRP served Defendant with the certificate of merit. On October 18, 2022,
Plaintiff filed proof of service, showing that Defendant was served with the
amendment to the complaint on October 13, 2023. Thus, there was a Certificate
of Merit filed and served before Plaintiff served Defendant with the amendment
to complaint. (See Weil & Brown, California Practice Guide, Civil Procedure
Before Trial §§1:886 and 1:886.1 (“The certificate of merit must be filed and served
‘on or before the date’ on which ‘any defendant’ is served with the
complaint...The statute seems to say that the certificate of merit must be
served on each defendant before ‘any defendant’ is served with the complaint.
However, as long as the certificate is filed and served along with the
complaint, most courts will probably find substantial compliance with the
statute.”).)
Defendant’s reliance
on Curtis Engineering Corp. v. Superior Court (2017) 16 Cal.App.5th 542,
is misplaced.
In Curtis Engineering
Corp., Sutherland (the real party in interest) sustained injuries on May 5,
2014, while working as a crane operator. (Id. at 545.) Sutherland filed his
original complaint on May 3, 2016. The complaint included a cause of action for
negligence against Curtis Engineering Corporation (“Curtis”), “a provider of
engineering services.” (Id.) “Sutherland’s original complaint did not include a
certificate, as required by section 411.35, subdivisions (a) and (b).” (Id.)
Sutherland filed a first amended complaint on December 1, 2016, which included
a certificate. (Id.) “The original and amended complaint are identical, except
for two additional paragraphs in the amended complaint stating that: (1) A
certificate is attached as an exhibit to the amended complaint and is
incorporated by reference, and (2) a claim was sent to defendant Oregon State
University.” (Id.) Curtis filed a demurrer to the amended complaint “arguing,
among other things, that Sutherland failed to file the required certificate
within the limitations period” and the trial court overruled the demurrer.
(Id.) Curtis filed a petition “seeking an immediate stay of all proceedings and
a peremptory writ of mandate directing the trial court to set aside and vacate
its order overruling the demurrer and to enter a new order sustaining the
demurrer.” (Id.)
The California Court
of Appeal determined the “trial court erred when it overruled a demurrer
alleging noncompliance with the certificate requirement of section 411.35.”
(Id.). There was no dispute the statute of limitations for Sutherland’s
negligence claim expired before he “filed the amended complaint and
certificate.” (Id. at 545-546.) There was also no dispute “the 60-day period
for filing a certificate under section 411.35(b)(2) expired on July 2, about
five months before Sutherland filed his certificate.” (Id. at 546.) Sutherland
argued “the filing of the amended complaint and certificate related back to the
date he filed the original complaint.” (Id.) The Court of Appeal determined the
“plain language of section 411.35 does not allow application of the
relation-back doctrine.” (Id.) The Court of Appeal stated:
Here, more than 60 days after filing his original complaint
Sutherland filed an amended complaint that included a certificate of merit.
Application of the relation-back doctrine in this situation would render
meaningless the statutory requirement that the certificate of merit be filed
“within 60 days after filing the complaint.” (§ 411.35(b)(2).) Moreover,
applying the relation-back doctrine in this situation would mean a
plaintiff has virtually an unlimited amount of time to obtain the necessary
consultation as long as the plaintiff files the certificate of merit with an
amended complaint that relates back to the original complaint. This cannot be
what the Legislature intended.
(Id. at 548-549.) The
Court of Appeal concluded “that a certificate filed after expiration of the
statute of limitations and more than 60 days after the filing of the original
pleading [Citation] does not relate back to the filing of the original
pleading.” (Id. at 545.)(Emphasis Added.)
However, Curtis
Engineering Corp. is distinguishable from the instant action, because
Sutherland was aware of Curtis’s identity when he filed the original complaint,
as Sutherland filed his original complaint against Curtis -- the complaint just
did not include a certificate of merit. (Id. at 545.) In contrast to Curtis
Engineering Corp., the instant action involves a Doe Amendment to the
original complaint. Thus, the allegations in the FAC suggest Plaintiff was
unaware of Defendant’s name or identity when the original complaint was filed.
(See C.C.P. § 474.) Plaintiff could not have filed or served a Certificate of
Merit until Defendant’s identity
and the need for such a certificate was discovered, which she argues was when
MPRP cross-complained against Defendant. Thus, when Plaintiff amended the complaint
to name Defendant, a certificate of merit was already filed.
Defendant
argues that Plaintiff cannot piggyback on MPRP’s Certificate of Merit. No party has offered any caselaw as to this point.
However, C.C.P. § 411.35 was enacted to
discourage the filing of frivolous lawsuits. (Guinn v. Dotson (1994) 23
Cal.App.4th 262, 270.) In an action for professional negligence against an
architect, engineer, or land surveyor, the plaintiff’s or cross-complainant’s
attorney must make a bona fide attempt to consult an architect, engineer, or
land surveyor before filing suit. (Id., § 411.35.) Because MPRP, the
cross-complainant in this case, filed a Certificate of Merit, the statutory
purpose to prevent frivolous lawsuits was already served here. To further
bolster this conclusion, as Plaintiff points out, the statute expressly
provides that “only one certificate shall be filed….” (§ 411.35, subd. (c).)
While it follows with: “notwithstanding that multiple defendants have been
named in the complaint or may be named at a later time,” this further statement
does not foreclose the requirement that only certificate shall be filed as
applied to the facts here.
Lastly, in a footnote, Defendant argues that
MPRP’s Certificate of Merit is questionable as it does not account for
engineering services, but rather architectural services. However, in Ponderosa
Center Partners v. McClellan/Cruz/Gaylord & Associates (1996) 45
Cal.App.4th 913, the Court of Appeal held that consulting with a structural
engineer was sufficient to support the filing of a Certificate of Merit as to
an architect, given that “Architectural services and engineering services
frequently overlap and may be rendered by a licensed architect or a registered
engineer.” (Id. at 916.) As such, the inverse applies equally here under
the same reasoning.
Based
on the foregoing, Defendant’s demurrer to the FAC based on Plaintiff’s
purported failure to comply with C.C.P. §411.35 is overruled.
Conclusion
Accordingly,
Defendant’s demurrer to the FAC is OVERRULED.
Moving party is ordered to give notice.