Judge Upinder S. Kalra, Case Number: 23STCV15416, Date: 2025-02-25 Tentative Ruling

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MOVING PARTY: Defendant John Ruzicka, individually and dba Ruzicka Architecture

1. Demurrer to the Second and Fourth Causes of Action for failing to state sufficient facts to constitute a cause of action due to failure to file a required certificate of merit.

On June 30, 2023, Plaintiff Denmix II, LLC filed a Verified Complaint against Defendants Thomas Fanning, individually and doing business as Bowery Design & Development aka Bowery Design Group; Bowery Design & Development aka Bowery Design Group, John Ruzicka, individually and doing business as Ruzicka Architecture (Defendants) with causes of action for breach of contract and negligence.

According to the Complaint, Plaintiff and Defendants contracted to design and build a house on property Plaintiff owned. Plaintiff alleges that Defendants breached the contract by including significant architectural errors that violated the City of Beverly Hills’ municipal code. Plaintiff further alleges negligent design.

On August 31, 2023, Defendants Thomas Fanning (Fanning) and Bowery Investment Group, Inc. dba Bowery Design & Development (Bowery) filed an Answer.

On September 13, 2024, Defendant John Ruzicka, individually and doing business as Ruzicka Architecture, (Ruzicka) filed a demurrer.

On October 25, 2024, Plaintiff filed the operative First Amended Complaint (FAC).

On November 25, 2024, Defendant Ruzicka filed the instant demurrer. On February 11, 2025, Plaintiff filed an opposition. On February 18, 2025, Ruzicka filed a reply.

The court GRANTS Ruzicka’s request for judicial notice. (Evid. Code § 452(d), (h); See Kalnoki v. First American Trustee Servicing Solutions, LLC (2017) 8 Cal.App.5th 23,37.) However, the court only takes judicial notice of the foregoing documents only as to “the existence, content and authenticity of public records and other specified documents”; it does not take judicial notice of the truth of the factual matters asserted in those documents. (Dominguez v. Bonta (2022) 87 Cal. App. 5th 389, 400.)¿¿

Before filing a demurrer, the demurring party shall meet and confer in person or by telephone with the party who has filed the pleading subject to the demurrer and file a declaration detailing their meet and confer efforts. (Code Civ. Proc., (CCP) § 430.41(a).) Here, Ruzicka’s counsel attempted to meet and confer via phone, letter, and email on November 20, 2024. (Zech Decl. ¶¶ 4-5.) Counsel sent a follow-up email on November 21, 2024. (Zech Decl. ¶ 6.) This was four days before filing this demurrer and is hardly sufficient meet and confer efforts. However, an insufficient meet and confer process is not grounds to overrule or sustain a demurrer. (CCP § 430.41(a)(4).)

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 (2006) 144 Cal.App.4th 1216, 1228.) 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. (CCP §§ 430.30, 430.70). Demurrers do not lie as to only parts of causes of action, where some valid claim is alleged. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119 (“A demurrer must dispose of an entire cause of action to be sustained.”).)

There is no abuse of discretion to sustain a demurrer without leave, unless Plaintiff has met their burden to prove there is a reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Ruzicka contends demurrer is proper because Plaintiff failed to provide a certificate of merit pursuant to CCP § 411.35(g) for their professional negligence claims against Ruzicka as a licensed architect and that the letters that are provided lack required information.[1] Ruzicka further contends that this is an incurable defect under Curtis Engineering v. Superior Court (2017) 16 Cal.App.5th 542 (Curtis).

Plaintiff argues that the original Complaint complies with CCP § 411.35 because it includes a declaration by Jeffrey Eyster concerning design defects and that Counsel neglected to include his own declaration. Plaintiff further argues that they did not know of the filing requirement and that this case is distinguishable from Curtis. Plaintiff additionally argues that their breach of contract claim does not require the CCP § 411.35 declaration.

Ruzicka replies that the late opposition should not be considered, that there is nothing in the statute indicating satisfaction by significant compliance, that Mr. Eyster’s letters are not a certificate of merit, and that Curtis is directly on point.[2] Ruzicka further replies that the breach of contract claim is based solely on professional negligence and so a certificate of merit is also required.

Section 411.35 requires a certificate of merit for “every action . . . arising out of the professional negligence of a person holding a calid architect’s certificate” filed by the attorney for plaintiff. (CCP § 411.35(a).) There are three options for the certificate of merit:

“(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, . . . 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.

(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.”

Failing to file this certificate of merit is grounds for demurrer. (CCP § 411.35(g).) A plaintiff must file this certificate of merit “on or before the date of service” unless the attorney files an excuse certificate, in which case the certificate “shall be filed within 60 days after filing the complaint.” (Curtis, supra, 16 Cal.App.5th at p. 544-545.) Courts will allow leave to amend a defective certificate. (Price v. Dames & Moore (2001) 92 Cal.App.4th 355, 361.)

Curtis, the main case at issue here, directly discussed whether a late-filed certificate of merit relates back to the original complaint.[3] It does not.

“Sutherland has not cited, and we have not found, any cases supporting the proposition that the relation-back doctrine applies to a certificate which, by statute, is required to be filed “on or before the date of service” of the original complaint. [citation.] Applying the relation-back doctrine in this situation would render meaningless the statutory requirement that the certificate be filed “on or before the date of service.” [citation.]”

“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.” [citation.] 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.”

“Sutherland never filed an excuse certificate regarding the reason for his late filed certificate of merit and he failed to file a certificate of merit within 60 days of filing the original complaint. The proper ruling in this situation is to enter a judgment of dismissal because the required certificate of merit was not filed within the statute of limitations period, or within 60 days after filing the original complaint.”

“Under Sutherland's reasoning a “defective certificate of merit” has been filed any time an attorney files a complaint that alleges professional negligence without complying with section 411.35. This reasoning would negate the certificate of merit requirement and we reject it.”

This case is like Curtis. First, it is undisputed that the original complaint did not have a certificate of merit. Indeed, Plaintiff’s counsel admits there was no certificate of merit because he did not know one was required in addition to a verified complaint (not required) and an attached opinion by a licensed architect that there was defective design (also not required). (Opp. 2:1-22.) Second, Plaintiff never filed an excuse certificate. Third, Plaintiff’s FAC with a certificate of merit was filed well after 60 days from the original complaint.

Separately, the letters from Mr. Eyster are not defective certificates of merit. Notably, they are addressed to Plaintiff (not part of the complaint) to “discuss some critical structural design considerations” for the project and not a rendered opinion as to Ruzicka’s negligence. (FAC, Exhibit E.) But there is more.

In Curtis, the plaintiff’s amended complaint and certificate of merit were outside both the statute of limitations and the 60 days to file compliance. (Curtis, supra, 16 Cal.App.5th at p. 545.) The Court reasoned that dismissal was appropriate “because the required certificate of merit was not filed within the statute of limitations period, or within 60 days after filing the original complaint.” (Id. at p. 550.) In Price, the plaintiff filed a certificate of merit within the statute of limitations period. (Price, supra, 92 Cal.App.4th at p. 360-361.) Here, Plaintiff contends that the FAC was filed on October 25, 2025, which was within the applicable statute of limitations periods. (Opp. 5:16-26.) Ruzicka does not directly challenge this. As a result, the certificate of merit included with the FAC is timely because it was included and served with the timely FAC. (CCP § 411.35(a).) The authorities indicate the certificate of merit must be filed within the statute of limitations period or within 60 days after filing the complaint. The “or” is met here.

[1] These are the only grounds advanced by Ruzicka for each cause of action against him. Therefore, the court analyzes them together.

[2] The court exercises its discretion to consider Plaintiff’s opposition because Ruzicka had the opportunity to fully reply to its arguments.

[3] The Court discussed cases where the statute of limitations had run and the certificate of merit was filed more than 60 days from filing the complaint. (Curtis, supra, 16 Cal.App.5th at p. 549-550.)