1

Filed 5/16/16 Pinto v. Pantaleoni CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

SHEREEN PINTO et al. , Plaintiffs and Appellants,

v. A N THONY PANTALEONI et al ., Defendants and Respondents. A143214
(San Francisco City & County Super. Ct. No. CGC

- 11

- 516428)

Plaintiffs, who had interest s in a mixed

- use development at 15th and Market in San Francisco, sued various contractors for construction defects. They also sued
ficti tious Doe defendants for design defects. Later, after the statute of repose had run on any new defect claims, plaintiffs amended their complaint to substitute the project’s architects for Does 1, 2, and 3. The architects moved for and were granted summar y judgment based on the statute of repose. Plaintiffs assert, as they did below, that California’s Doe pleading statute allow s them to avoid the statute of repose because their substitution of the architects “relates back” to the timely filing of the ir initial complaint. For plaintiffs to prevail on this argument , they must show there is a triable issue of material fact that they were truly and in good faith “ignorant” of any basis for the architects ’ alleged liability

. Like the trial
court, w e conclud e the y failed to make this showing, and therefore affirm the judgment

.2 B ACKGROUND Jerem y Kotas and Anthony Pantaleoni own Kotas/Pantaleoni Architects , the principal architect for a four

- story mixed use building located at 15th and Market Street
in San Franci sco, California. The Caridad Gravitt Trust, through its successor trustee William Gravitt, was the p roject developer. A certificate of final completion and occupancy for the building issue d on March 21, 200 2.
The first two floors of the building are commercial space and serve as a “podium” atop which sit nine residential units. The residential units surround an outdoor courtyard

c alled the podium d eck. A Joint Maintenance Committee cares for common areas, including the podium, and a homeowners association (HOA) governs the residential portions of the building

. About nine years after building completion, in early 2011, Gravit t , the developer,
learned of a leak in one of the commercial units and suspected water int rusion fr om the podium above. He hired Aquatech Consul tancy to investigate. Meanwhile, the HOA hired a lawyer, Ann Rankin, to investigate a leak emanating from a landing between two of the residential units which had damaged the unit o wned by Shereen Pinto

. Rankin served up on develo per Gravitt a “Calderon n otice” of the HOA’s claims pursuant to the then

- effectiv e version of Civil Code section 1375. 1 The
notice referenced both the landing leak and the podium leak. Gravitt’s attorney , Mark Humbert, forwarded the Calderon notice to the architects on August 18, 2011. He did so believing the architects were “design professionals” who bore “potential responsibility,” and thus were entitled to notice from the developer under

1 That statute, which has since been repealed and recodified, set forth pre

litigation requirements when “a complaint for damages against a builder, developer, or general contractor . . . of a common interest development” is contemplated because of “defects in the design or construction of the common interest development.” (Former Civ. Code, § 1375, repealed by Stats.2012, c h . 180 (A.B.805), § 1; see Civ. Code, § 6000.)3

former Civil Code section 1375, subdivision (e)(2). Humbert’s letter state d it was enclosing “reports from Aquatech . . . and estimates by Draeger Construction to repair problems caused by the design and construction of the property.”
The Aquatech reports Humbert included were all signed by Charles Saul. The
rep ort dated August 12, 2011 , summarized Aquatech’s findings to date

. As to the podium leak, it found:

“ 1. The building plans indicate a flat structural slab (substrate) to be covered with a waterproof membrane, covered with a sloped topping (walking) s lab. [¶] 2. The substrate was constructed flat. [¶] 3. The waterproof membrane used must be adhered to a sloped substrate. [¶] 4. The waterproof membrane was ins talled contrary to manufacturer’ s installation instructions. ”
These findings suggest ed a design flaw , as the building plans indicated for a flat
substrate , desp ite the need for a sloped one given the Bituthene membrane the plans specified. The recommended fix was to, among other things, install a different kind of membrane that would be compatible with a flat substrate. As to the landing leak, the report found:

“ 1. The building plans indicate a sloped wood substrate. [¶] 2. The substra te was constructed flat. [¶] 3. The waterproof membrane used must be adhered to a sloped substrate. [¶] 4. The waterproof membrane was installed contrary to manufacturer’ s installation instructions. ” Unlike with the podium , there was no sugg estion of deficient design , but rather a suggestion the landing was deficiently built despite proper design. Humbert’s August letter also informed the architects about an upcoming mediation, telling them he had included “an email from mediator Ann Goyette, setting a mediation in this matter for Wednesday, September 21, 2011. We request that you place your insurer(s) on notice of this mediation, and we request your and their presence at the mediation.”
Humbert now disclaims having had any pre

- litigation knowledge of facts suggesting potential liability on the part of the architect s

. In his declaration filed in4

opposition to the motion for summary judgment, Humbert avers that , in September 2011 ( a month after he for warded the Calderon notice and Aquatech report s ), he “communicated with Charles Saul of Aquatech

— who had been investigating the Podium and preparing the reports noted above

— regarding [the architects’] pote ntial liability.”
His declaration continue s : “Alt hough Mr. [ Saul ] is not an architect, Aquatech specializes in water infiltration investigations. As a result of this communication, I did not believe I had a basis to pursue a claim again st” the architects. There is no declaration from Saul

. In mid

- Septem

ber 2011, the mediation got rescheduled , with plans for a preparatory teleconference on September 21 and media tion on October 5.
Also in mid

- September, t he HOA’s lawyer , Rankin, sent settlement demand letters

to both Gravitt and the architects. E ach demand s ought compensation for $116,136 in damages incurred by the HOA and Pinto in responding to the landing lea k. The letter to
the architects closed by stating :

“ Unless this claim can be resolved informally or by mediation by October 5, 2011, the Association and Ms. Pinto intend to file suit against your client and against the developer and general cont ractor. Please put your client’ s professional liability insurer on notice of this claim and inform the claims representatives of the deadline. Thank you for your anticipated courtesies. ”
The architects did not attend the mediation and no resolution w ith them was
reached. At the end of October, Rankin sent a letter to the various parties, including the architects “ ‘ seeking cooperation in our ongoing efforts to resolve the legal proceedings arising from the work performed at 2189 Market Street without resort to filing a
lawsuit. ’ ” The letter sought an extension of time to file suit under tolling provisions of
former Civil Code section 1375. It threatened a failure to consent would resu lt in litigation. The architects did not grant an extension.
In November 2011 , Scott Williams, the attorney who had been representing the Joint Maintenance Committee, which oversees podium maintenance, took over5

representation o f all the soon

- to

- be plaintiffs

— the HOA (formerly represented by Rankin) , Pinto, Gravitt (formerly represented by Humbert) , the trust, and the Joint
Maint enance Committee.
Plaintiffs filed suit the following month, on December 8, 2011 , against the general

contract or and several subcontractors asserting defects related to the landing and damage to Pinto’s unit, and to the podium and damage to the commercial area

. In their initial complaint, plaintiffs also named fictitious “Doe” defe ndants, alleging: “Plaintiffs are ignorant of the true names and capacities of defendants sued herein as Does 1 through 3000, and plaintiffs are further ignorant of the appropriate charging allegations and theories of liability with respect to said fictit iously named defendants, and plaintiffs therefore sue such defendants by such fictitious names. Plaintiffs will amend this complaint to allege their true names and capacities when ascertained. Based on information and belief, each of the defendants so des ignated herein is legally responsible and liable in same manner for the events and happenings referred to herein, and is therefore liable and responsible to plaintiffs for amounts to be
her einafter determined.” In particular, “Defendants Does 1 through 200,” alleged plaintiffs, “ designed, engineered, surveyed, provided plans and specifications for, supervised and provided other services related to the design and supervision of construction of the Property.” Thus, Does 1 through 200 were alleged to have engaged in negligent design and breach of warranty. In his declaration in opposition to the motion for summary judgment, Williams
averred that he did not , before filing the initial complaint, “consult with an architect or design professional regarding the liability of Kotas or any of the other design professionals on the project. ” Nor did he “ review any of the project documents, the plans or specifications, or any of the contracts with the designers and contractors on the project, including Kotas’ cont ract. ” Further, he “ did not receive any information from Aquatech,6

MCA or any other source indicating that Kotas was liable for the deficiencies in the Podium, the Landings, or any other defects or damages at the property.” Three months after plaintiff s filed their complaint an important date passed

— March 21, 2012

— marking 10 years from the issuance of the certificate of final completion and occupanc y for the project. As will be discussed, Code of Civil Procedure
section 337.15 2 requires that claims bas ed on the design or construction of real property be brought within 10 years of substantial completion of the property’s development.
Williams claims to have “ first learned ” of the architects ’ potential liability about a year after that, in March 2013, when one of plaintiffs’ experts discovered it while preparing for his deposition. The entirety of the explanation for this belated discovery , as stated in Williams’ declaration in opposition to the motion for summary judgment, is as
follows: “In the cour se of preparing for his deposition, Omar Hindiyeh of CMA Consulting, one of plaintiffs’ experts, became aware of [the architects’] liability and so informed me.” Plaintiffs provided no information about what documents and materials
the ir expert reviewed , why the expert now suspected liability , or even the theory of such liability. In any event, o n April 9 , 2013, plaintiffs filed an amendment to their complaint , substituting the architects for Does 1

– 3. T hey also filed a certificate of meri t under
section 411.35 , which stated a third

- party architect had reviewed the work of Kot as, Pantaleoni, and their firm, and opined they had been negligent in their design services. The architects answered the amended complaint i n June and raised the 10

- year
sta tute of repose in Code of Civil Procedure section 337.15 as an affirmative defense

. Plaintiffs filed a second amended compla int in early 2014. In addition to negligence and breach of warranty , the new pleading asserted a breach of contract c ause

2 All further statutory references are to the Code of Civil Procedure unless otherwise indicated.7

of act ion a gainst the architectur al firm

. Again, the architects answered, asserting

sect ion 337.15 as a bar.
The architects eventually moved for and were granted summary judgment on the
basis of the statute of repose

. D ISCUSSION “ ‘A defendant moving for su mmary judgment based upon an affirmative defense, as here, bears an overall burden of persuasion that there is a complete defense to the plaintiff ’ s action. . . .’ [Citation.] In other words, the defendant must persuade the court
there is no triable iss ue of fact as to that defense. [Citation.] In meeting the burden of persuasion, the defendant ‘bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact’ as to the defense. ( Aguilar v. A tlantic Richfield Co. (2001) 25 Cal.4th 826, 850 . . . .) ‘Once the defendant has met that initial burden of production, the burden shifts to the plaintiff to present evidence showing the existence of a triable issue of one or more material facts as to th at defense.’ [Citation.] A triable issue of material fact exists if ‘ “the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof ” at tria l.’ ” ( Fazio v. Fairbanks Ranch Country Club (2015) 233 Cal.App.4th 1053, 1057 ( Fazio ) .) Our review of an order granting summary judgment is de novo. ( Fazio, supra , 233 Cal.App.4th at p. 1058.) “ We exercise our independent judgment as to the legal effect of the undisputed facts [citation] and must affirm on any ground supported by the
record. ” ( Jimenez v. County of Los Angeles (2005) 130 Cal.App.4th 133, 140.) We view
the evidence in the light mos t favorable to the non moving, losing party. ( Fazio , at
p p

. 1057

– 1508

. ) Nevertheless, an opposing party must still come forward with “admissible evidence . . . , not merely claims or theories” or mere “conclusionary” statements or “conjecture and specula tion.” ( Wiz Technology, Inc. v. Coopers & Lybrand (2003) 106 Cal.App.4th 1, 10

– 11.)8

Prima Facie Showing That Claims Are Time Barred
T he architects plainly made out a prima facie case that plaintiffs’ claims against them are barred by section 337.15. The y were not named as defendants until well over
10 years after completion of the project at 15th and Market , even taking into account
extensions of that period under the Calderon notice process

. Th us, the pivotal issue is whether plaintiffs can avoid the 10

- year statute through the “relation back” doctrine.
The use of fictitious Doe defendants in California arises from statute. When a plaintiff “is ignorant of the name of a defendant” and plaintiffs “state that fact in the complaint . . . such defendan t may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be
amended a ccordingly.” ( § 474.) An amendment substituting a named defendant for a Doe defendant can relate
back to a timely initial pleading and there by “defeat[] the bar of [a] statute of limitations,” so long as the requir ements of section 474 are met . ( Marasco v. Wadsworth (1978) 21 Cal.3d 82, 85; McOwen v. Grossman (2007) 153 Cal.App.4th 937, 943 ( McOwen ) [ with a ti mely complaint, the issue becomes relation back]; Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1169

– 11 70 ( Fuller ) ; Woo v. Superior Court (1999)
75 Cal.App.4th 169, 176 ( Woo ) [ “If the requirements of section 474 are satisfied, the amended complaint substituting a new defendant for a fictitious Doe defendant filed after the statute of limitations has expired is deemed filed as of the date th e original complaint was filed.”].) Thus, s ection 474 can be characterized as an exception to a statute of
limi tations defense. ( Woo , supra , 75 Cal.App.4th at p. 176 [section 474 a “recognized exception” to rule that amendments adding new defendants do not relate back to earlier complaints]. ) 3

3 Section 474 is said to give a plaintiff up to three extra years to name defendants. ( Bernson v. Browning

- Ferris Industries (1994) 7 C al.4th 926, 932.) This is due to the interaction of section 474 and section 583.210, which requires service of a complaint on a9

Here, as in most relation back cases, the c rucial question is the stat e of plaintiffs’ knowledge or their ability to know the relevant facts

— that is, were they truly ignorant of any basis for the architects’ alleged liability before filing their amendment substituting
the m for Does. (See McOwen , supra , 153 Cal.App.4th at p. 942.) “ ‘ In keeping with th[e] liberal interpretation of section 474, it is now well established that even though the plaintiff knows of the existence of the defendant sued by a fictitious name, and even though th e plaintiff knows the defendant’ s actual identity (that i s, his name), the plaintiff is “ignorant” within the meaning of the statute if he lacks knowledge of that person’ s connection with the case or with his injuries. ’ ” ( Ibid. ; see also Fuller , supra , 84 Cal.App.4th at p. 1170.)
At this juncture in the analysis, w e make two assumptions to simplify the
discussion. First, we assume, without deciding, th at th e proper naming of Doe
defendants under section 474 defeat s not only the bar of a statute of limitations, but also a
statute of repose such as the 10

- year statute of repose set forth in section 337.15 at issue
here. 4 Second, we assume, without deciding, that the architects bore the initial burden of producing evidence showing plaintiffs were not “ignorant” of the architects’ potential
l iability , even though section 474 appears to be an exception to, and not an element of,

defendant within three years of its filing. ( Bernson , supra , at p. 932; Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 398.) So ultimately, a timely Doe action “ ‘effectively enlarg[es] the . . . limitations period for three years.’ ” ( Norgart , supra , at p. 398.)

4 While “a statute of limitations creates ‘a time limit for suing in a civil case, based on the date when the claim a ccrued’ . . . [¶] [a] statute of repose . . . puts an outer limit on the right to bring a civil action. That limit is measured not from the date on which the claim accrues but instead from the date of the last culpable act or omission of the defendant. A statute of repose ‘bar[s] any suit that is brought after a specified time since the defendant acted (such as by designing or manufacturing a product), even if this period ends before the plaintiff has suffered a resulting injury.’ ” ( CTS Corp. v. Waldbur ger (2014) __ U.S. __ [ 134 S.Ct. 2175, 2182

– 2183 ] .)10

the 10

- year time bar. 5 We , thus, turn to the question of ignorance and the parties’ evidentiary showings. To claim ignorance and take advantage of the relation back doctrine, a plaintiff need not first attempt to investigat e to determine the identity or liability of a potential defendant. ( Fuller , supra , 84 Cal.App.4th at p. 1172 .) The test is the plaintiff’s knowledge at the time of filing, not the plaintiff’s reasonable diligence, and Doe pleading can be used whether a plaintiff’s ignorance derives from misfortune or negligence. ( Id. at p. 1170.) Nevertheless, over a century ago , our Supreme Court has indicated the Doe pleading statute should not reward the plaintiff who overlooks “ ‘ re a dily accessible ’ ” means of identifying a defendant. ( Bernson v. Browning

- Ferris Industries (1994)
7 Cal.4th 926, 942 (dsn. opn. of Kennard, J.) , quoting Irving v. Carpentier (1886) 70 Cal. 23, 26.) A plaintiff may not have a duty to unearth new information, but a plaintiff does bear a responsibility for reviewing “readily available information ” in his or her possession. ( Woo , supra , 75 Cal.App.4th at p. 180.) “A requirement of reviewing readily available information is no t a significant burden, is not inconsistent with the cases that impose no duty of inquiry on plaintiffs who never knew the defendant ’ s identity, and assures the good faith of plaintiffs who seek to use the section 474 relation

- back doctrine.” ( Ibid. , crit icizing Balon v. Drost (1993) 20 Cal.App.4th 483, 486 [divided

5 Compare Acosta v. Glenfed Development Corp. (200 5) 128 Cal.App.4th 1278, 1293 [ as for the statutory exception to the section 337.15 time bar

— the exception for a contractor’s willful misconduct

— “plaintiffs, not defendants, had the burden of production, specifically, the burden of producing sufficient evidence to raise a triable issue of material fact”], with Varshock v. California Dept. of Forestry and Fire Protection (2011) 194 Cal.App.4th 635, 651 [“Where, as here, an affirmative defense contains an exception, a defendant must also negate the exception as part of its initial burden on summary j udgment if, but only if, the complaint alleges facts triggering potential applicability of the exception.”].11

panel conclude s the plaintiff , who forgot the name of a defendant and did not review a police report with the name in it, could avail herself of section 474].)
T he architects offered several significant pieces of evidence of plaintiffs’ knowledge: (1) the August 2011 letter from the developer’s lawyer to the architects, notifying them, under former Civil Code section 1375, of potential responsibility and also enclosing the Aquatech report s ; ( 2) the September 2011 demand letter from the residential HOA’s lawyer to the architects ; 6 and (3) correspondence from both the commercial and residential owners demanding the architect’s presence at mediation proceedings. These documents, which were in the hands of plaintiffs’ lawyers , including the lawyer who filed this lawsuit , were sufficient to make out a prima facie case of knowledge foreclosing use of the relation back doctrine. In particular, in the hands of plaintiffs’ litigation counsel, the Aq uatech reports were “readily available informa tion , ” and they suggested a possible design problem

. ( Woo , supra , 75 Cal.App.4th at p. 180.) The mediation demands, which threatened litigation and whose intent was to pull the architects into a proceeding at which they would likely be asked to compensate plaintiffs for design defects, also signaled a belief th at the architects likely bore some liability.
And while the residential HOA’s settlement demand letter pertained to the landing leak,

6 Contrary to plaintiffs’ assertion, the “mediation privilege” codified in Evidence Code section 1119 does not bar use of the settlement demand letter

. First, it appears plaintiffs never raised the privilege below, and so cannot assert it on appeal. ( Code Civ. Proc., § 437c, subd. (b) (5) [“Evidentiary objections not made at the hearing shall be deemed waived .”]; see Foxgate Homeowners’ Ass n

. v. Bramalea California, Inc. (2001) 26 Cal.4th 1, 10 , fn. 7 [“ Failure to object to admission of evidence of events occurring during a prior mediation has been held to constitute a waiver. ”]. ) H aving not raised and litigated the objection below, there is also insufficient evidence linking the demand letter to , for instance, the conduct of ongoing mediation. Second, e ven if parties engage in mediation, not every communication between them is shielded by the privilege. The privilege does not protect “commu nications, negotiations, and settlements made in the regu lar course of the litigation.” ( Wimsatt v. Superior Court (2007) 152 Cal.App.4th 137, 161.)12

not the podium leak, it also is some evidence plaintiffs believ ed the architect should face liability , at least on some theory . ( See Optical Surplus, Inc. v. Superior Court (1991)
228 Cal.App.3d 776, 784 [demand letter gives rise to knowledge of identity and liability , even when the recipient’s response convinces the plaintiff otherwise]. ) Insufficiency of Showing t o Raise Triable Issue
W ith the burden shifted, it was incumbent on plaintiffs to present evidence that (a) they were reasonably ignorant of the theories of liability suggested by the evidence defendants presented , or (b) if their theory of liability was different, what that theory was and why they first discovered it only after the 10

- year statute had run

. In an attempt to satisfy this burden, p laintif fs offered declarations from their various attorneys

. As we have recited above, the ir showing boiled down to the following: Humbert averred that, in September 2011, he “communicated with Charles Saul of Aquatech

— who had been investigating the Podium and pr eparing the reports noted
above

— regarding [the archi tects’] potential liability. Although Mr. [ Saul ] is not an architect,” Humbert stated “Aquatech specializes in water infiltration investigations” and “[a]s a result of this communication, I did not believe I had a basis to pursue a claim against ” the architects.
Williams , in turn, averred he did not, before filing the initial complaint, either “consult with an architect or design professional regarding the liability of Kotas or any of the other design professionals on the project , ” or “review any of the project documents, the plans or specifications, or any of the contracts with the designers and contractors on the project, including Kotas’ contract , ” or “ receive any information from Aquatech, MCA or any other source indicating that Kotas was liable for the deficiencies in the Podium, the Landings, or any other defects or damages at the property.” Rather, “[i]n the course of preparing for his deposition, Omar Hindiyeh of CMA Consulting, one of plaintiffs’ experts, became aware of Kotas’ liability and so informed me.”13

As for the forwarded Calderon No tice, plaintiffs claimed it did not mean anything and they were simply statutorily required to send it on. As for the request that the architects participate in the mediation and the settlement demand directed to the architects, plaintiffs claimed neither indicated a ny basis for believing the architects might
be liable either

— the settlement demand was sent merely because the architects were “involved” in the pre trial mediation. We are troubled, to say the least, by plaintiffs ’ cavalier dismissal of any
si gnificance of the Calderon Notice , their request that the architects participate in the mediation, and the ir settlement demand directed to the architects. T h ese efforts were designed to involve defendants in anticipated litigation and to extract money fro m them for plaintiffs’ claimed losses. It is difficult to reconcile this with plaintiffs’ current assertion that they had no basis whatsoever to believe the architects bore any responsibility for their damages. Thus, we are hard pressed to conclude plain tiffs could ask defendants to mediate and demand payment from them, but could not also timely name them as defendants in their complaint.
T he declarations are best characterized as c onclusory and oblique. They do not expla in why the Aquatech reports were not “ readily available information ” supplying a t least some basis for potential liability by the architect s. While Humbert states he “communicated” with Saul and as “a result” did “not believe” there was a basis to pursue the architects, this is utte rly conclusory. Wilson’s declaration is equally so . The sum total of the explanation of the belated discovery is a single sentence: “ I n the course of preparing for his deposition, Omar Hindiyeh of CMA Consulting, one of plaintiffs’ experts, became aware of Kotas’ liability and so informed me.” This does not explain what in front of the expert was new or provide a clue as to plaintiffs’ newly discovered theory of liability

. In essence, plaintiffs are claiming they were ignorant, but have refused to say of wh at they were ignorant , how their supposedly newfound knowledge came to light , and why this knowledge supports liability.14

P laintiffs seem to believe the architects , themselves, had to make a “foundational

s howing as to what [they] did wrong

. ” O nly then , according to plaintiffs, would they
have to put on evidence of their ignoranc e. This puts the cart before the horse

. It would allow plaintiffs to bring in new defendants without giving any reasons at all, and would
ask newly named defendants to gu ess why th ey were being belatedly hailed into court. Only plaintiffs know the reason they came to believe they had a basis to sue the architects, and they needed to disclose it. The bald assertion that “now we know, but before we did not” is too conclusory to stave off summary judgment. ( Scherer v. Mark (1976) 64 Cal.App.3d 834, 841, 843 ( Scherer ).)
In Scherer , the plaintiff substituted a new defendant, Dr. Mark, for a Doe
defendant after suppos edly gleaning information from the deposition of two nurses. ( Scherer, supra , 64 Cal.App.3d at p. 843

. ) The substitution, however, came after the applicable statute of limitations had expired . ( Id. at p. 839.) With a level of specificity (or lack there of) similar to that which plaintiffs provided here, the plaintiff in Scherer justified the late substitution by asserting only that “ ‘the exact basis of [ Dr. Mark’ s ] negligence did not become exactly apparent until the two depositions were taken

. ’ ” ( I d. at p. 843. ) Affirming summary judgment to Dr. Mark on statute of limitations grounds , t he appellate court concluded plaintiff’s “statement is not an assertion of the existence of a fact giving rise to a cause of action. That statement does not say what if any new fact was discovered through the deposition. It does not say that the defendant Mark concealed any such fact. That statement shows only that after the taking of the deposition plaintiff changed her mind and decided to sue Dr. Mark. ” ( Id. at pp . 841, 843.) Accordingly, the appellate court concluded the plaintiffs’ untimely claim against
Dr

. Mark could not relate back to defeat the statute of limitations. ( Id. at pp. 841, 843.)
As in Scherer , plaintiffs here have not given the architects or th e court any substantive explanation of why they are entitled to use Doe pleading to avoid the 10

- year statute of repose. Thus, in the face of the architects’ prima facie showing , including the15

contents of the Aquatech report, the y presented no evidence ra ising a triable issue of fact on the question of their ignorance

. (See also Woo , supra , 75 Cal.App.4th at pp. 177

– 178 [no genuine explanation for why plaintiff knew, forgot, and then remembered identity of Doe]; Dover v. Sadowinski (1983) 147 Cal.App.3d 113, 117

– 118 [ plaintiff’s ignorance cannot be shown by asserting no knowledge of “ ‘ how deeply as a negligent individual, [defendant] was involved ’ ” ].)
This case is unlike Mishalow v. Horwald (1964) 231 C al.App.2d 517 ( Mishalow ),
d espite plaintiffs’ assert ion it “involved circumstances almost identical to those here.” In
Mishalow , the parents sued several doctors and Doe defendants for negligently treating their son, resulting in his death. ( Id. at p. 518.) Later in the case, the parents substituted
a anothe r doctor, Dr. Horwal d, for one of the Doe s . Dr. Horwald asserted the stat ut e of
limitations on summary judgment , claiming the parents had known of his role as the anesthesiologist to their son since long before the running of the statute. ( Ibid. ) The parents, in response, asserted they only recently became aware of the basi s of Dr. Horwald’s liability. The parents’ attorney submitted a declaration explaining at the time
of first filing, the parents only had reason to believe their son’s death occurred because of an unreasonable delay in starting surgery to remove the child’s spleen; they did not have knowledge of anything that occurred during the surgery related to anesthesia. O nly during consultation with an expert with specialized knowledge in the use of anesthesia did the parents’ lawyer learn their son’s death was likely due to the anest he siologist’s negligence. ( Id. at pp. 518

– 521.) The appellate court reversed the summary judgment to Dr. Horwald, concluding, under section 474, there had been no readily accessible way of sooner discovering Dr. Horwald’s role. ( Id. at p. 525.) Mishalow did not involve any
pre filing claims of liability, requests to mediate or settlement dem and. Nor did it involve a situation where a significant report had been prepared which at least suggested the possibility of negligently drawn plans.16

P laintiff s contend section 411.35 also requires reversal of the summary judgment.
This section provid es that before suing an architect, a plaintiff’s attorney must first file a certificate stating he or she : (1) has consulted with another architect who believes the defendant architect was negligent ; (2) did not have time to consult another architect
beca use of an impending statute of limitations, but will do so promptly ; or (3) attempted to consult with three architects, but none would agree to the consultation. (§ 411.35,
subd s . (a)

– (b).) According to plaintiffs, the fact that they did not to file a ce rtificate until they substituted the architects into the case means they must have lacked the requisite knowledge sufficient to sue them until that time

. But t he mere timing of the certificate , something entirely within plaintiffs’ control, does not answer the question of what plaintiffs knew and when. Moreover, the process under section 411.35 explicitly allows plaintiffs to file a placeholder certificate so as to
not run afoul of the statute of limitations. (See § 411.35, subd. (b)(2).)
D ISPOSITION The judgment is affirmed. Respondents to recover costs on appeal.17 _________________________ Banke, J.

We concur:

_________________________ Humes, P. J.

_________________________ Margulies, J.