Relation Back Doesn’t Apply Here

Curtis Eng'g Corp. v. Superior Court, No. D072046 (D4d1 Nov. 16, 2017)

In some professional negligence cases, the plaintiff is required to obtain and file a “certificate of merit”—basically a declaration from an expert attesting that the claim isn’t bogus. Under Code of Civil Procedure § 411.35, the certificate is supposed to be filed with the complaint. But if the attorney certifies that a certificate couldn’t be obtained fast enough to avoid blowing the statute, it can be filed within sixty days of the original filing. Plaintiff in this case didn’t file a certificate with the original complaint, and didn’t try to add one until well after the sixty days had passed and the statute of limitations had otherwise run. The Court here finds that puts plaintiff out of court. 

Although Plaintiff claims that the relation back doctrine should apply, the Court holds that the Legislature didn’t intent to import a relation back concept when it passed § 411.35. The statute made its deadlines clear and mandatory. To apply a relation back concept to permit nunc pro tunc filings more than sixty days after filing would make them essentially meaningless. Thus, the trial court should have granted a demurrer and dismissed the case.

Writ granted.