Filed 10/23/17

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

CURTIS ENGINEERING 

CORPORATION,

Petitioner,

v.

THE SUPERIOR COURT OF SAN 

DIEGO COUNTY,

Respondent;

 D072046

 (San Diego County

Super. Ct. No. 37-2016-00014529-

 CU-PL-CTL)

GEORGE R. SUTHERLAND,

Real Party in Interest.

ORIGINAL PROCEEDING in mandate. Eddie C. Sturgeon, Judge. Petition 

granted.

Blackmar, Principe & Schmelter, Timothy D. Principe; and Richard H. Benes for 

Petitioner.

No appearance for Respondent.

Marc D. Adelman; Worthington Law Offices and Brian P. Worthington for Real 

Party in Interest.
Code of Civil Procedure1 section 411.35 requires the attorney for plaintiffs or 

cross-complainants in certain professional negligence cases to serve and file a certificate 

on the defendant or cross-defendant on or before the date of service of the complaint or 

cross-complaint declaring that he or she has consulted with and received an opinion from 

an expert in the field, or an adequate excuse for not doing so. (§§ 411.35, subd. (a), (b).) 

In this case, we conclude that a certificate filed after expiration of the statute of 

limitations and more than 60 days after filing the original pleading (§ 411.35, subd. 

(b)(2)) does not relate back to the filing of the original pleading. The trial court erred 

when it overruled a demurrer alleging noncompliance with the certificate requirement of

section 411.35. Accordingly, we grant the petition for writ of mandate.

FACTUAL AND PROCEDURAL BACKGROUND

On May 5, 2014, plaintiff George R. Sutherland, while working as a crane 

operator, sustained injuries when his crane tipped over. On May 3, 2016,2 Sutherland 

filed his original complaint, which included a negligence cause of action against real 

party in interest, Curtis Engineering Corporation (Curtis), a provider of engineering 

services. Sutherland's original complaint did not include a certificate, as required by 

section 411.35, subdivisions (a) and (b).

On December 1, Sutherland filed and served a first amended complaint which 

included a certificate. The original and amended complaint are identical, except for two 

1 Undesignated statutory references are to the Code of Civil Procedure.

2 All further date references are to 2016.

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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.

Curtis demurred to the amended complaint arguing, among other things, that 

Sutherland failed to file the required certificate within the limitations period. The trial

court overruled the demurrer. As relevant here, the court concluded that the amended 

complaint related back to the filing date of the original complaint. 

Curtis filed the instant 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. In response to 

the petition we stayed the matter and issued an order to show cause why the petition

should not be granted.

DISCUSSION

Curtis contends the trial court erred as a matter of law in overruling the demurrer 

based on Sutherland's failure to timely file a certificate as required by section 411.35, 

subdivisions (a) and (b) (hereinafter sections 411.35(a) and 411.35(b)). Curtis notes that 

the two-year statute of limitations applicable to Sutherland's negligence cause of action 

(§ 339, subd. (1)) expired on May 5, about seven months before he filed the amended 

complaint and certificate. Section 411.35(b)(2) requires that if an attorney files a 

certificate stating the attorney was unable to obtain a consultation or certificate before the 

statute of limitations impaired the action, the certificate required by section 411.35(b)(1) 

must be filed within 60 days after filing the complaint. Here, the 60-day period for filing 

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a certificate under section 411.35(b)(2) expired on July 2, about five months before 

Sutherland filed his certificate.

Sutherland does not contest these dates, or the requirement that he file a 

certificate. Instead, he claims the filing of the amended complaint and certificate related 

back to the date he filed the original complaint. He argues that had the Legislature not 

wanted the relation-back doctrine to apply to an amended complaint that includes a 

certificate, the Legislature could and would have accounted for that when enacting 

section 411.35. He reasons that not applying the relation-back doctrine under these 

circumstances bars a meritorious case for technical reasons that do not serve the purpose 

of section 411.35. 

As we shall explain, the plain language of section 411.35 does not allow

application of the relation-back doctrine.

Questions of statutory interpretation are subject to de novo review. (People ex rel. 

Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432.) "[O]ur primary task is to 

determine the lawmakers' intent." (Delaney v. Superior Court (1990) 50 Cal.3d 785, 

798.) Statutory interpretation to determine legislative intent may involve up to three 

steps. (Alejo v. Torlakson (2013) 212 Cal.App.4th 768, 786-787.) "The first step in the 

interpretive process looks to the words of the statute themselves." (Id. at p. 787.) "It is 

only when the meaning of the words is not clear that courts are required to take a second 

step and refer to the legislative history." (Soil v. Superior Court (1997) 55 Cal.App.4th 

872, 875.) If an ambiguity remains after reviewing secondary rules of construction, we 

then " ' "apply reason, practicality, and common sense." ' " (Alejo, at p. 788.)

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"Where the words of the statute are clear, we may not add to or alter them to 

accomplish a purpose that does not appear on the face of the statute or from its legislative 

history.'' (Burden v. Snowden (1992) 2 Cal.4th 556, 562.) To that end, we generally 

must "accord[] significance, if possible, to every word, phrase and sentence in pursuance 

of the legislative purpose," and have warned that "[a] construction making some words 

surplusage is to be avoided." (Dyna-Med, Inc. v. Fair Employment & Housing Com.

(1987) 43 Cal.3d 1379, 1387.) "We must presume that the Legislature intended 'every 

word, phrase and provision . . . in a statute . . . to have meaning and to perform a useful 

function.' " (Garcia v. McCutchen (1997) 16 Cal.4th 469, 476.) Additionally, under 

"well-settled principle[s] of statutory construction," we ordinarily construe the word 

"may" as permissive and the word "shall" as mandatory, "particularly when both terms 

are used in the same statute." (Common Cause v. Board of Supervisors (1989) 49 Cal.3d 

432, 443.) 

We turn to the language of the statute. In any action for damages or indemnity 

arising out of the professional negligence of a person holding a valid architect's 

certificate, registration as a professional engineer, or land surveyor's license "the attorney 

for the plaintiff or cross-complainant shall file and serve the certificate specified by 

subdivision (b)" "on or before the date of service of the complaint or cross-complaint on 

any defendant or cross-defendant." (§ 411.35(a).) Section 411.35(b) states:

"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 

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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."3

"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." 

(§ 411.35, subd. (g).) 

Section 411.35(a) requires that "on or before the date of service" of a complaint 

the plaintiff "shall file and serve the certificate specified by subdivision (b)." It is 

undisputed that Sutherland filed his original complaint without the required certificate. 

3 We refer to the certificate described in section 411.35(b)(1) as a "certificate of 

merit" and generally refer to the certificates described in section 411.35(b)(2) and (3) as 

"excuse certificates."

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To avoid this glaring insufficiency, Sutherland contends that the certificate of merit he 

filed with his amended complaint related back to the filing of the original complaint 

because the original and amended complaints are substantially the same.

Under the relation-back doctrine, a court will ordinarily deem a later-filed 

pleading to have been filed at the time of an earlier complaint if the amended complaint is 

based on the same general set of facts. (Austin v. Massachusetts Bonding & Ins. Co.

(1961) 56 Cal.2d 596, 600-601.) Where the statute of limitations has expired before the 

filing of an amended complaint, unless an amended complaint relates back to a timely 

filed original complaint, the amended complaint will be time-barred. (Barrington v. A.H. 

Robins Co. (1985) 39 Cal.3d 146, 150.) Under the relation-back doctrine, to avoid the 

statute of limitations bar, the amended complaint must allege the same general set of 

facts, refer to the same accident, same injuries, and refer to the same instrumentality as 

alleged in the original complaint. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 408-

409.)

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. (§ 

411.35(a).) 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." (§ 411.35(a).) 

Section 411.35 provides an exception to the requirement that the certificate be 

filed "on or before the date of service." (§ 411.35(a).) Section 411.35(b)(2) provides that 

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where an attorney files an excuse certificate stating he or she was unable to obtain the 

consultation required by section 411.35(b)(1) because a statute of limitations would 

impair the action and that the certificate of merit required by section 411.35(b)(1) could 

not be obtained before the impairment of the action, then the certificate of merit required 

by section 411.35(b)(1) "shall be filed within 60 days after filing the complaint."

Sutherland did not file an excuse certificate under section 411.35(b)(2) stating that 

he could not obtain the required consultation before the statute of limitations impaired his 

action.4 Even if Sutherland had filed an excuse certificate under section 411.35(b)(2), 

the subsequent certificate of merit under section 411.35(b)(1) was required to have been 

filed no later than 60 days after filing the complaint. In other words, assuming that an 

excuse certificate was filed under subdivision (b)(2) on the very last day in which the

statute of limitations expired, a plaintiff has two years and an additional 60 days to file a 

certificate of merit. 

Here, more than 60 days after filing his original complaint Sutherland filed an 

amended complaint that included a certificate of merit.5 Application of the relation-back 

doctrine in this situation would render meaningless the statutory requirement that the 

4 With this said, one could reasonably infer that Sutherland was in this situation as 

the accident occurred on May 5, 2014, and he filed his complaint on May 3, 2016, only 

two days before the two-year limitation period of section 339, subd. (1) expired. 

5 The certificate of merit must contain several pieces of information, including the 

opinion of the person consulted that the named defendant or cross-defendant was 

negligent or was not negligent in the performance of the applicable professional services. 

(§ 411.35(b)(1).) While not argued by Curtis, the certificate of merit filed with the 

amended complaint is defective because it does not contain the opinion of the person 

consulted as required by section 411.35(b)(1).

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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.

Citing Price v. Dames & Moore (2001) 92 Cal.App.4th 355, Sutherland asserts 

that his failure to file the required certificate of merit with the original complaint can be 

cured by filing the required certificate of merit with an amended complaint. In Price, 

however, the plaintiff filed a certificate of merit within the statute of limitations period.

(Id. at pp. 358, 361-362.) Although the certificate was defective, because plaintiff signed 

it rather than an attorney as required by section 411.35(a), the appellate court held that 

the trial court should have allowed leave to amend because the defect was curable. (Id. at 

pp. 360-361.) The Price court did not hold that a failure to timely file a certificate of 

merit within the statutory deadlines may be cured by leave to amend.

The trial court found support for its application of the relation back doctrine in 

McVeigh v. Doe 1 (2006) 138 Cal.App.4th 898 (McVeigh). McVeigh addressed the 

certificate of merit requirement for victims of childhood sexual abuse 26 years of age or 

older when the action is filed. (§ 340.1, subd. (g).) In a provision virtually identical to 

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that contained in section 411.35(b)(2), section 340.1 allows a plaintiff to file an excuse 

certificate "within 60 days after filing the complaint." (§ 340.1, subd. (h)(3).)6

The plaintiff in McVeigh timely filed his complaint within the applicable statute of 

limitations period, but without the required certificates of merit from an attorney and 

mental health practitioner. (McVeigh, supra, 138 Cal.App.4th at p. 901; § 340.1, subd. 

(h)(1) & (2).) The plaintiff later filed an excuse certificate after the statute of limitations 

expired, but within 60 days after filing the complaint. (McVeigh, at p. 902.) The 

McVeigh court concluded that the excuse certificate under subdivision (h)(3) of section 

340.1, like the certificates described in subdivisions (h)(1) and (h)(2) of section 340.1, 

can be filed up to 60 days after the complaint is filed, if the requisite mental health 

consultation cannot be timely obtained. (Ibid.) Here, unlike McVeigh, Sutherland filed 

his certificate of merit more than 60 days after filing his original complaint.

The McVeigh court addressed Doyle v. Fenster (1996) 47 Cal.App.4th 1701

(Doyle) a case that the trial court found to be distinguishable. In Doyle, "the plaintiff 

filed her action alleging childhood sexual abuse within the statute of limitations. Her 

certificates of merit were filed after the statute had run, and more than 60 days after the 

complaint was filed. No subdivision (h)(3) attorney certificate regarding the reason for 

the late-filed certificates of merit was ever filed. (§ 340.1, subd. (h).) The trial court 

6 Subdivision (h)(3) of section 340.1 provides: " 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 certificates required by paragraphs (1) and (2) could not be 

obtained before the impairment of the action. If a certificate is executed pursuant to this 

paragraph, the certificates required by paragraphs (1) and (2) shall be filed within 60 days 

after filing the complaint."

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found that the case was time-barred because the (h)(1) and (h)(2) certificates of merit 

were not timely filed, and dismissed the case. The Court of Appeal affirmed, holding that 

the very existence of subdivision (h)(3) meant that the (h)(1) and (h)(2) certificates of 

merit must be filed within the statute of limitations unless there is an attorney statement 

under (h)(3) which explains the late filing of those certificates." (McVeigh, supra, 138 

Cal.App.4th at p. 905, fn. & italics omitted.) The McVeigh court stated that "[t]he ruling 

is obviously correct, but it is not a ruling on the question before us." (Ibid.) 

The fact pattern before us is similar to that in Doyle. 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.

We are not persuaded by Sutherland's argument that Doyle is inapposite because 

section 340.1, at issue in Doyle, prohibits a plaintiff from even naming the defendant in a 

complaint until the trial court has reviewed certificates of merit and determined that there 

is reasonable and meritorious cause for filing the action. (§ 340.1, subd. (m) ["In any 

action subject to [the certificate of merit requirement], no defendant may be named 

except by 'Doe' designation in any pleadings or papers filed in the action until there has 

been a showing of corroborative fact as to the charging allegations against that 

defendant."].) This is a distinction without a difference as subdivision (j) of section 340.1

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and 411.35(a) require that a certificate be filed before any defendant (be it a Doe or 

named defendant) is served with the original complaint. 

Finally, although the plain language of section 411.35 supports dismissal of the 

complaint, we find support for this result in the legislative history of section 411.35. 

When first introduced, the Legislative Counsel's Digest stated that "[t]he bill would 

provide that if consultation with an architect, professional engineer, or land surveyor 

could not be obtained because of a statute of limitations problem, the attorney may file 

such certificate stating such problem and would be required to file such certificate 

involving such a consultation within 60 days after filing or the complaint shall be 

dismissed." (Legis. Counsel's Dig., Assem. Bill No. 357 (1979–1980 Reg. Sess.) as 

introduced Jan. 24, 1979.) This sentence is repeated in the Legislative Counsel's Digest 

accompanying the chaptered bill enacting section 411.35. (Legis. Counsel's Dig., Assem. 

Bill No. 357, Stats. 1979, ch. 973, approved by Governor, Sept. 22, 1979.) This 

statement supports our conclusion that the Legislature intended to give plaintiffs a limited 

period of time to obtain the necessary consultation and the failure to obtain the 

consultation within that time period would result in dismissal of the complaint.

Sutherland failed to file the required certificate of merit within the statute of 

limitations period or within the 60-day period set forth in section 411.35(b)(2). Because 

there is no possibility of curing this defect, the demurrer must be sustained without leave 

to amend.

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DISPOSITION

Let a peremptory writ of mandate issue directing that respondent superior court 

vacate its order overruling petitioner's demurrer, and enter a new order sustaining 

petitioner's demurrer without leave to amend. The temporary stay is vacated effective 

upon the issuance of the remittur. Petitioner is entitled to its costs in this writ proceeding.

(Cal. Rules of Court, rule 8.493(a)(1)(A).)

NARES, J.

WE CONCUR:

McCONNELL, P. J.

BENKE, J.

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