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 Procedure 1 section 411.35 requires the attorney for plaintiffs or

cross - compl ainants 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. T he 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, p laintiff George R. Sutherland , while working as a crane operator, sustained injur ies when his crane tipped over. On May 3, 2016 , 2 Sutherland filed his original complaint, which included a ne gligence 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 f irst a mended c omplaint which
included a c ertificate. The original a nd a mended c omplaint are identical, except for two

1 Undesignated statutory references are to the Code of Civil Procedure.
2 All further date references are to 2016.
2additional paragraphs in the a mended c omplaint stating that: (1) a c ertificate is attached as an exhibit to the a mended c omplaint and is incorporated by reference , and (2) a claim
was sent to d efendant Oregon State University. Curtis demurred to the a mended c omplaint arguing, among other things, that Sutherland failed to file the required cert ificate within the limitations period

. The trial

c ourt overruled the d emurrer. As relevant here, the court concluded that the amended complaint relate d back to the filing date of t he 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 i ssued 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,

s ubdivisions (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, su bd. (1)) expired on May 5, about seven months before he filed the amended complaint and certificate. S ection 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 impair ed 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

3a 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 h ad the Legislature not wanted t he relation

- back doctrine to apply to an amended complaint that includes a certificate, the Legislature could and would have accounted for th at when enacting section 411.35. He reasons that not applying the relation

- back doctrine under these circumstances bar s a meritorious case for technical reasons that do not serv e 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 ar e 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.) S tatutory 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
t hen " ' " apply reason, practicality, and common sense

. " ' " ( Alejo , at p. 788.)

4" 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] cons truction 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 mea ning and to perform a useful function. ' " ( Garcia v. McCutchen (1997) 16 Cal.4th 469, 476 .) Additionally, u nder

" 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 ser ve the certifica te 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).) S ection 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

5one architect, professional engineer, or land surveyor wh o 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 t his 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 s ervices.

" (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 th e 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 c ertificate in accordance with this section shall be grounds for a demurrer pursuant to Section 430.10 or a motion to stri ke pursuant to Section 435. " (§ 411.35, subd. (g).)
S ection 411.35(a) requires that " on or before the date of service " of a complai nt 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 certificate s described in section 411.35(b)( 2 ) and ( 3 ) as

" excuse certificates. "

6To avoid this glaring insufficiency, Sutherland contends that the certificate of merit he filed with his amended complaint relate d 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

- fi led 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 expir ed before the filing of an amended complaint, u nless 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 doc trine, 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 provid es 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

7where an attorney files a n excuse certificate stating he or she was unable to obtain the consultation r equired 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 impair e d his
action

. 4 Even if Sutherland had filed a n 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).) W hile not argued by Curtis , the certificate of merit filed with the amended complaint is defective bec ause it does not contain the opinion of the person consulted as required by section 411.35 (b)(1).
8certificate 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 fail ure to file the required c ertificate of merit with the original complaint can be cured by filing the required c ertificate of merit with an amended complaint. In Price , however, the plaintiff filed a certificate of merit within the statute of limitations p eriod

. ( Id

. at p p . 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 d efect 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 o f the relation b ack 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

9that contained in section 411.35(b)(2), s ection 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 withi n the applicable statute of limitations period, but without the required certificate s 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 de scribed 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 cou rt 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 certific ate re garding 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 lim itations 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) an d (2) shall be filed within 60 days after filing the complaint. "
10found 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 t he 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 cert ificate of merit and he failed to file a certificate of merit within 60 days of filing the original complaint. The proper ruli ng 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 , prohibit s a plaintiff from even naming the defendant in a complaint until the trial court ha s reviewed certificates of merit and determined that there is reasonable and meritori ous 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 corroborat ive fact as to the charging allegations against that defendant. " ] .) This is a distinction without a difference as subdivision (j) of section 340.1

11and 411.35(a) require that a certificate be filed before a ny defendant (be it a Doe or named defendant) is s erved 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 L egislative C ounsel ' s D igest 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 a nd 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 (19 79

– 19 80 Reg. Sess.) as introduced Jan . 24, 19 79 .) 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 tha t 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 requir ed 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.

12DISPOSITION
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.

13