COM Was Defective For Not Indicating County Had Received An Opinion From COM Expert.
Here is a special fee-shifting statute that we have not talked about very often--if at all.
Code of Civil Procedure section 411.35 requires a plaintiff or cross-complainant to file a certificate of merit (COM) from an expert consultant showing that a professional engineer negligence/indemnity claim has a reasonable meritorious basis. Once a professional engineer prevails on any such claim, it can request the trial court to order disclosure of the expert and also order payment of reasonable expenses, including attorney’s fees, by the party or party’s attorney for noncompliance with the COM requirements which are set forth in section 411.35. (See Code Civ. Proc., § 411.35(h).)
County of Riverside v. Skanska, Case No. E052034 (4th Dist., Div. 2 Nov. 27, 2012) (unpublished) involved an appeal by County after it lost a contractual indemnity cross-action against a professional engineer. Winning engineering firm challenged the COM as defective. The trial court agreed, awarding engineer $245,949 in attorney’s fees, $19,386.24 in expert witness fees (because County did not beat a CCP § 998 offer), and $21,500 in routine costs (under CCP §§ 1032, 1033.5)--all against County.
County’s appeal of the merits and amounts of the fee/costs awards did not succeed.
County did fail to comply with COM requirements, never indicating in the expert’s opposition declaration that it “received an opinion” from the expert on the probable merit of the cross-action. The fees incurred on the complaint were intertwined with the work on the cross-claim such that they were causally related.
County argued that section 411.35 only applies to equitable rather than contractual indemnity claims, but the appellate court found no such statutory limitation and found this would undercut the statute’s policy to discourage frivolous engineer negligence/indemnity suits.
The costs, too, were justified. The appellate court found that engineer’s use of computerized graphics services was proper, given that they allowed the parties and court to expeditiously retrieve documents, plans, and deposition transcripts.
BLOG UNDERVIEW--This case has a nice discussion of the legislative history behind the COM requirements and changes over the years. Good consulting information for any practitioners facing issues about the nature of the COM requirements.
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