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> Maybe we should enlist attorneys to write our codes to protect the
> engineers. Any engineer worth his salt is going to do his best to protect
> the public.
> 'May be it's time to write some code provisions to protect the engineer...
> Fountain E. Conner, P.E.
> Gulf Breeze, Fl. 32561
See California Code of Civil Procedure section 411.35.
CCP §411.35. Professional Negligence of Licensed Architect,
Engineer or Land Surveyor
(a) In every action, including a cross-complaint for damages or
indemnity, arising out of the professional negligence of a person
holding a valid architect's certificate issued pursuant to Chapter 3
(commencing with Section 5500) of Division 3 of the Business and
Professions Code, or of a person holding a valid registration as a
professional engineer issued pursuant to Chapter 7 (commencing
with Section 6700) of Division 3 of the Business and Professions
Code, or a person holding a valid land surveyor's license issued
pursuant to Chapter 15 (commencing with Section 8700) of Division
3 of the Business and Professions Code on or before the date of
service of the complaint on any defendant, the plaintiff's attorney
shall file the certificate specified by subdivision (b).
(b) 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 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
(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.
(c) Where a certificate is required pursuant to this section, only
one certificate shall be filed, notwithstanding that multiple
defendants have been named in the complaint or may be named at
a later time.
(d) Where the attorney intends to rely solely on the doctrine of
"res ipsa loquitur," as defined in Section 646 of the Evidence Code,
or exclusively on a failure to inform of the consequences of a
procedure, or both, this section shall be inapplicable. The attorney
shall certify upon filing of the complaint that the attorney is solely
relying on the doctrines of "res ipsa loquitur" or failure to inform of
the consequences of a procedure or both, and for that reason is not
filing a certificate required by this section.
(e) For purposes of this section, and subject to Section 912 of
the Evidence Code, an attorney who submits a certificate as
required by paragraph (1) or (2) of subdivision (b) has a privilege to
refuse to disclose the identity of the architect, professional
engineer, or land surveyor consulted and the contents of the
consultation. The privilege shall also be held by the architect,
professional engineer, or land surveyor so consulted. If, however,
the attorney makes a claim under paragraph (3) of subdivision (b)
that he or she was unable to obtain the required consultation with
the architect, professional engineer, or land surveyor, the court
may require the attorney to divulge the names of architects,
professional engineers, or land surveyors refusing the consultation.
(f) A violation of this section may constitute unprofessional
conduct and be grounds for discipline against the attorney, except
that the failure to file the certificate required by paragraph (1) of
subdivision (b), within 60 days after filing the complaint and
certificate provided for by paragraph (2) of subdivision (b), shall not
be grounds for discipline against the attorney.
(g) 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.
(h) Upon the favorable conclusion of the litigation with respect
to any party for whom a certificate of merit was filed or for whom a
certificate of merit should have been filed pursuant to this section,
the trial court may, upon the motion of a party or upon the court's
own motion, verify compliance with this section, by requiring the
attorney for the plaintiff or cross-complainant who was required by
subdivision (b) to execute the certificate to reveal the name,
address, and telephone number of the person or persons consulted
with pursuant to subdivision (b) that were relied upon by the
attorney in preparation of the certificate of merit. The name,
address, and telephone number shall be disclosed to the trial judge
in an in-camera proceeding at which the moving party shall not be
present. If the trial judge finds there has been a failure to comply
with this section, the court may order a party, a party's attorney, or
both, to pay any reasonable expenses, including attorney's fees,
incurred by another party as a result of the failure to comply with
(i) For purposes of this section, "action" includes a complaint
or cross-complaint for equitable indemnity arising out of the
rendition of professional services whether or not the complaint or
cross-complaint specifically asserts or utilizes the terms
"professional negligence" or "negligence." [Added 1979 ch. 973;
amended 1983 ch. 414; 1986 ch. 1231; 1988 ch. 1070; 1990 ch.
204; 1991 ch. 272; 1995 ch. 241.]