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Re: Seismic / building code

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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.
 
snip

> '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 
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.
	(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 
this section.
	(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.]

Robert