Professional Negligence Actions Requiring Certificates of Merit
With the goal of discouraging frivolous lawsuits against licensed professionals, many states, including California, have enacted legislation requiring plaintiffs to file affidavits or certifications of merit showing that they have a valid legal claim against the would-be defendant. Some states require an expert to issue the certification; others require the plaintiff’s attorney to consult with a professional before attesting to the claim’s merit.
Complying with California’s Certificate of Merit Statute
California Civil Procedure Code, Section 411.35 is California’s certificate of merit statute. It covers professional negligence actions against architects, engineers, and land surveyors. The statute requires a certificate of merit to be sent before or with service of the plaintiff’s lawsuit on the defendant (Section 411.35(a)). In the certificate, the plaintiff’s lawyer must state:
- The attorney has reviewed the facts of the case and consulted with a third-party design professional “in the same discipline as the defendant” and “that the attorney has concluded on the basis of this review and consultation that there is a reasonable and meritorious cause for the filing of this action” (Section 411.35(b)(1)).
- The attorney was unable to obtain the consultation required because a statute of limitation would stop the action if the attorney waited to file the certificate. In this case, the attorney can delay filing the certificate for 60-days after filing the suit, before the end of which period the certificate must still be filed (Section 411.35 (b)(2)).
- After making three separate good faith attempts to obtain a consultation, the attorney may file a certificate stating that no consultation was obtained because no architect, engineer, or land surveyor contacted would agree to the consultation. In this case, the attorney may be required by the court to divulge the names of the design professionals contacted who refused to give a consultation (Section 411.35 (b)(3)).
While California courts (and other state courts with similar laws) have given plaintiffs some leeway when technical requirements of the statute have not been met (see Price v. Dames & Moore, allowing the plaintiff to amend a complaint and receive proper certification), a complaint has a much greater chance of success if the plaintiff’s attorney is careful to follow all of the statute’s rules. Failure to comply with the statute is grounds for dismissal for failure to state a cause of action (Section 411.35(g)). Furthermore, compliance is necessary to avoid sanctions, including attorneys’ fees and costs.
Construction Defect & Design Failure Expert Witness
Pierre Handl, P.E. evaluates construction and design defect cases involving professional negligence in California and across the United States. If you need a civil engineer to assist with a certificate of merit or appear as an expert witness in your case, contact Engineering Expert Witnesses today for a free initial consultation.