By Jim Castles
IS THE CERTIFICATE OF MERIT STATUTE (CCP 411.35) EFFECTIVE; SHOULD IT BE CHANGED AND HOW CAN DESIGN PROFESSIONALS PROTECT THEMSELVES
CCP 411.35 (b) (1) requires that before filing a complaint or cross-complaint against a design professional for professional negligence, the lawyer representing the plaintiff and the lawyer(s) representing the cross-complainant(s) must serve a certificate declaring that the attorney has consulted with and received an opinion from at least one architect, professional engineer or land surveyor who is licensed in the same discipline as the defendant or cross-defendant(s) and who the attorney believes is knowledgeable in the relevant issues involved in the particular action and that the attorney has concluded based on this review and his consultation that there is reasonable and meritorious cause for filing the action or cross-complaint. The statute also requires that 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.
In a case where an Owner is suing an Architect solely based on the services provided by the Architect, the statute may have some value. Even under this circumstance, however, the Owner’s counsel has a privilege under paragraph (c) to refuse to disclose the identity of the consulting Architect. Similarly, there is no requirement that the certificate explain the bases of the opinion that the Architect was negligent. There is no requirement that the certificate identify the specific acts, errors or omissions which are the bases of the lawsuit.
So where does this leave the Architect in the example above? He knows he’s been sued. He knows there is some licensed Architect who has opined that he has committed professional negligence. He does not know who this Architect is nor does he know what it is that he supposedly did wrong. One thing we suggest is that when the Architect is aware a claim may be forthcoming but no lawsuit or certificate of merit has yet been received, the Architect should provide a letter to the Owner that explains the “facts of the case.” The letter should also request that the Architect be allowed to participate in the “consultation” to ensure that all relevant facts are discussed. The statute (CCP 411.35) requires that the “facts of the case” be reviewed as part of the consultation. If the Architect does not get to participate in the Owner’s counsel’s consultation, one is left to wonder what “facts of the case” were discussed. Perhaps the only facts discussed were those that would lead the consulting architect to offer an opinion that the Architect was negligent. Perhaps if additional facts were known, this opinion would have been different. For this reason, we recommend presenting all facts to the Owner and demanding that these be disclosed to anyone involved in a consultation for a certificate of merit. As stated, we also recommend asking to participate in the “consultation,” but the statute does not require such participation. Obviously, such a letter may come back later in the case as evidence so you need to ensure that the facts are supportable. The following is an example of such a letter:
It is my understanding that you may be contemplating pursuing litigation against ______. As I have repeatedly explained, ______ bears no responsibility for the water intrusion issues. Reviewing the masonry walls to determine whether water would, or could, permeate the walls was simply not part of ______ scope. My purpose in writing is to inform you that prior to pursuing litigation against _____, you are required to obtain a certificate of merit pursuant to California Code of Civil Procedure 411.35. That section requires that the facts of the case must be reviewed by a licensed architect and that this architect must render an opinion that ______ was negligent. In discussing the facts of the case for purposes of a consultation, you must review all relevant facts with the architect being consulted. Thus, the fact that evaluating the walls was not within our scope must be discussed. You must also explain the fact that pursuant to Article 2 of our contract, it was your contractual responsibility to provide “full information about the objectives, schedule, constraints and existing conditions of the Project …” We are aware that you purchased the building sometime in the 2015 timeframe. Presumably, there was some due diligence done at that time regarding the condition and serviceability of the building. If the masonry walls were evaluated, and it was found that the walls would, or even could, leak in a very heavy rainfall, this information should have been provided and you should have had the design and construction team address this as part of the project. No such information regarding the existing condition of the wall was ever provided. This is either because (1) no such information existed, i.e., the due diligence investigation did not include an evaluation of these walls or (2) the walls were, in fact, evaluated and no concerns were raised. As you presumably know as the owner of the building, there was no reported history of any issues of these walls leaking. Had there been, presumably this would have been something that you would have asked the design team and the contracting team to address as part of the scope of their contracts. Presumably a water intrusion expert would have been brought on board to evaluate the condition. None of this occurred and, as a result, the evaluation of the walls was within no one’s scope on this project. These facts must be included in any consultation for purposes of a CCP 411.35 certificate. To ensure that all relevant facts are discussed in the consultation, we request that we be allowed to participate in the consultation to ensure that the licensed architect with whom you may consult is aware of all relevant facts. Under section (h) of CCP 411.35, we may be entitled to recoup all reasonable expenses, including attorney’s fees, incurred as a result of the failure to comply with CCP 411.35. The purpose here is simply to ensure that if a consultation is had with a licensed architect pursuant to CCP 411.35 that all relevant facts are discussed so that the consulting architect has the benefit of those facts before reaching an opinion. Thank you.
Such a letter may impact whether the Owner can get a certificate of merit. It also sets you up much better if you take the case to trial and win and you seek to invoke the provisions of CCP 411.35 that may entitle you to recoup attorney’s fees.
Let’s assume that despite such a letter, the Owner does obtain a certificate of merit and does not include you in the consultation. The meter now starts running and the Architect starts spending considerable monies (typically deductible monies) to ascertain what he supposedly did wrong and to try to have a meeting with the Owner’s Architect who provided the opinion for the certificate so that he can better understand the opinion and have an opportunity to provide comments or explanations, for example, for technical decisions. There may be issues of scope that the consulting Architect did not fully understand. There could be many facts, decisions and processes that the consulting Architect simply was not informed about in the initial consultation with the lawyer. None of this is known unless such a meeting occurs very early in the litigation process. Unfortunately, it is this author’s experience that having an open and transparent meeting between the consulting Architect and the Architect being sued rarely occurs early in the litigation process.
Also, the Architect being sued knows that he will now need to retain an expert to evaluate the allegations and to get the expert’s opinion whether he performed within the standard of care or whether he violated the standard of care. How is this done when the specifics of how the Architect purportedly committed professional negligence have not yet been disclosed? When the expert is retained and he is told that he has been retained to evaluate the Architect’s performance from the standpoint of standard of care, he asks “what do you want me to look at? What are the architectural deficiencies being asserted by the Plaintiff?” If the expert reviews all of the work (plans/specifications) within the Architect’s scope, he may be reviewing things that have no bearing on the case because they are not part of what the consulting expert opined were negligently performed for purposes of the certificate of merit. On the other hand, the Architect cannot wait until the specifics are disclosed because by then the case will be close to trial. Percipient witness depositions will have already been taken. To the extent percipient witness testimony is important to the defense of any of the contentions, the opportunity will have been lost.
So what usually happens in these cases? Usually, the case follows a standard construction case process in which documents are produced; there is some written discovery; some deposition discovery of percipient experts and eventually expert depositions are taken. Depending on the size of the case, this can cost tens of thousands if not hundreds of thousands of dollars. The Architect’s counsel will typically try to get the Plaintiff’s counsel to identify who his expert is and to provide a thorough explanation of the bases of the claim against the Architect and to schedule a meeting or series of meetings for discussion. This occasionally works but in far too many cases, the request for the identity of the expert and a notification of the specific claims are met with objections that this is premature and seeks expert opinion and, therefore, the time to disclose such information is governed by CCP 2034 which means the first time the Architect being sued will know the identity of the opposing expert and finally learn the details of what the he supposedly did wrong is approximately 50 days before trial! In the interim, substantial monies have been spent on the litigation. Some cases utilize a special master or a discovery referee to help move the case and get it to the point where it can hopefully be intelligently mediated but even here, the Architect is often provided with little in the way of explanations of what he/she did wrong. More often than not, the assertion is that the Architect should settle because the case so going to cost $X to go though trial whereas the case can be settled for 1/2 of $X in mediation. There could be zero liability and the Architect still has not received a clear explanation of what he/she supposedly did wrong. Yet, this is the basis on which many cases settle.
This is wrong. When someone accuses an Architect of committing professional negligence, the Architect should have the right to know who his accuser is and he should also have the right to know what he is specifically being accused of. Unless CCP 411.35 is amended to require these things, Architects will need to modify their contracts to require such information before any suit can be filed. This will be discussed later in this paper.
Going back to the initial example of a lawsuit by a Plaintiff solely against an Architect for architectural services, let’s change the facts a little to find another major problem with CCP 411.35. Suppose the Architect is in contract to provide not just architectural services but also the services of the various engineering subconsultants (structural, mechanical, electrical, etc.). In this scenario, the Architect is legally liable to the Owner for the negligence of the subconsultants. Suppose the Plaintiff decides to just sue the Architect. Suppose also that the Plaintiff’s case is not based solely on negligence in the architectural services provided by the Architect but also negligence in the services provided by the structural, mechanical and electrical engineers. The first question is whether the Plaintiff’s certificate of merit must only identify a consultation with a licensed architect or must it also identify a consultation with licensed engineers in the disciplines which are the subject of Plaintiff’s claim of professional negligence? The second question is whether the Architect must provide a certificate of merit against the various disciplines when the Architect brings a cross-complaint against these disciplines seeking indemnity. The third question is whether the Architect must bring a certificate of merit against the subconsultants even when the Plaintiff’s counsel’s identifies specific subconsultants in his certificate. In other words, can the Architect piggyback off the Plaintiff’s counsel’s certificate or must he obtain and serve his own certificate against these disciplines?
Imagine the confusion that this creates. When the Plaintiff is allowed to just obtain and file a certificate that identifies the Architect, he has literally satisfied CCP 411.35 since he has obtained and filed a certificate in the same discipline as the defendant, i.e., the Architect. The Architect, however, may want to protect himself in the event the Plaintiff’s claim ends up also including the services of the subconsultants so he wants to join the subconsultants into the suit on a cross-complaint for express or equitable indemnity. Where the only certificate that has been served identifies only the Architect, the statute requires that the Architect now go and obtain a certificate against the cross-defendants. As in the earlier example, the Architect does not even know if the Plaintiffs’ claim implicates the services of the subconsultants. How does the Architect obtain a certificate of merit as to these subconsultants? If he retains experts to evaluate the subconsultants’ services, what does he tell them to evaluate? If he just instructs them to do a peer review, it is even conceivable that they might find issues that are not even part of the Plaintiffs’ claims! All of the other problems identified in the example of the claim being solely related to the architectural services also apply to this second scenario although the problems are multiplied.
For this reason, when an Architect is the lead and the subconsultants are under contract with the Architect, CCP 411.35 should be changed so that the Plaintiff’s certificate must identify each subconsultant whose services are part of Plaintiff’s claim. The statute should also be amended so that the Architect, in this situation can piggyback off the Plaintiff’s certificate such a that a certificate is not required for a cross-complaint against a discipline identified in the Plaintiff’s certificate.
Because it is uncertain whether CCP 411.35 will ever be amended as suggested in this paper, it is recommended that contractual provisions be added to design professional contracts to attempt to accomplish these same results.
- First, in any contract in which the Architect is the lead and the subconsultants are in contract with the Architect, the Owner-Architect agreement should state that in addition to the requirements of CCP 411.35, should the Owner obtain a certificate of merit, the certificate shall identify all disciplines whose services are part of the Plaintiff’s claims and that Plaintiff has consulted with licensed engineers in those disciplines and received the opinion that there is good and meritorious cause for the claims against those disciplines;
- Second, the Architect-subconsultants agreements should also state that notwithstanding the requirements of CCP 411.35, the Architect shall not be required to obtain certificates of merit when filing a cross-complaint against the subconsultants where the Plaintiff’s certificate identifies the subconsultant or subconsultants’ services as part of the Plaintiff’s claim. In this regard subconsultants knowingly waive the provisions of CCP 411.35.
- Third, all Owner – Architect agreements should contain some provision aimed at an early disclosure of the bases of the claim against the design team and a procedural mechanism for facilitating dialogue about the claim to ensure that the claim is fully understood as well as the design team’s response to the claim. This may help narrow, or possibly even eliminate, the claims but at a minimum it provides the design team with an understanding that will enable them to best prepare their defense and to participate intelligently in document reviews and percipient witness depositions.
- Fourth, add a contractual provision that gives you the right to participate in any CCP 411.35 consultations to ensure that all relevant facts are discussed with the Consulting Architect or Consulting Engineer. This may afford you at least some opportunity to dissuade the Owner from proceeding with a claim.
Jim Castles specializes in construction matters and has over 40 years of experience advising architects and engineers with respect to contracts, risk management, project documentation and strategic positioning. He has also successfully tried, arbitrated and negotiated numerous settlements on behalf of architects and engineers in construction related disputes of all types including schedule-related claims (delays, disruptions and accelerations), cost overruns, defects and earth movements (landslides and subsidence). Jim has repeatedly been recognized as a Super Lawyer in construction in California.